Archives for: June 2012, 10
06/10/12
N.D.Ill.: Plaintiff was properly temporarily removed from a city council meeting when it was discovered he was armed
In a combined First and Fourth Amendment case, plaintiff was at a city council meeting to speak, and he was animated and concerned others when they determined he was armed. He was removed from the meeting, and it was determined that he was a law enforcement officer, so they let him back in. The decision to remove him was reasonable under the circumstances. Sandefur v. Hanover Park, 2012 U.S. Dist. LEXIS 79412 (N.D. Ill. June 7, 2012)*:
Here, the court finds it significant that the stop took place in the context of a Village Board meeting. The situation is thus somewhat different from a typical Terry stop of an individual on the street. In the public setting of a Village Board meeting, the potential consequences of failing to apprehend an individual about to commit a crime are significantly enhanced, for any criminal activity is a threat not only to the order of the meeting, but also to the safety of all present. A stop that would not be justified on the street might therefore be reasonable in the setting and circumstances of a public meeting.
With that backdrop, the court determines that there was reasonable suspicion to seize Sandefur at the meeting, take him to the hallway, and search him. As explained above, the defendants had observed that Sandefur was carrying a concealed weapon, and they were not aware that he was a law enforcement officer. Moreover, Sandefur was very animated as he addressed the Board. The defendants were thus justified in attempting to ascertain whether Sandefur was legitimately carrying the weapon. Moreover, the search was minimally intrusive, for it lasted no longer than necessary to ascertain that Sandefur was a law enforcement officer and involved only as much force as necessary to secure Sandefur and prevent any potential harm to the attendees of the meeting. Within only a few minutes of the commencement of the search, Sandefur was free to leave.
N.D.Ga.: After consent search, officer explained that drug dog was needed, too, and defendant acquiesced in expanding consent
Defendant consented to a search that led the officer to determine that a dog sniff was required. He explained it to the defendant, and defendant’s acquiescence expanded the consent. The officer did not have to remove a duffle bag from the car before having the drug dog smell it. United States v. Hill, 2012 U.S. Dist. LEXIS 79250 (N.D. Ga. June 7, 2012).*
Plaintiff sufficiently pled trespass by border patrol officers coming on his property and assault and battery for nearly driving into him because he attempted to take their picture with his cell phone camera. Moher v. United States, 875 F. Supp. 2d 739 (W.D. Mich. 2012).*
Defendant was in custody, but the state can meet his heavy burden of showing consent without having Mirandized the defendant. People v. McCray, 2012 NY Slip Op 4579, 96 A.D.3d 1480, 946 N.Y.S.2d 744 (4th Dept. 2012).*
CA9: Fact a state or local employee lacks statutory arrest authority has no bearing on the Fourth Amendment question of probable cause
In a § 1983 case, the fact a state or local employee lacks statutory arrest authority has no bearing on the Fourth Amendment question of probable cause. Saunders v. Silva, 473 Fed. Appx. 769 (9th Cir. 2012):
The district court found that Silva seized Saunders when he ordered her to leave church and return to her home. It further found that this seizure was unreasonable because Silva, as a Deputy Animal Control Officer within the Yavapai County Sheriff's Office, lacked the authority to conduct an arrest. Although Silva was not authorized under Arizona law to arrest Saunders, "state restrictions [on arrest authority] do not alter the Fourth Amendment's protections." Virginia v. Moore, 553 U.S. 164, 176 (2008). To constitute a Fourth Amendment violation, an arrest by a state officer must be unreasonable under the United States Constitution, rather than simply not in compliance with state laws. See United States v. Becerra-Garcia, 397 F.3d 1167, 1174-75 (9th Cir. 2005).
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by John Wesley Hall
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2013-14 Term:
Fernandez v. California, granted May 20 (ScotusBlog)
2012-13 Term: 2010-11 Term: General (many free): Congressional Research Service: "If it was easy, everybody would be doing it. It isn't, and they don't." "A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
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can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment. "There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today." "The great end, for which men entered into society, was to secure their
property." "It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment." "The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth." "A search is a search, even if it happens to disclose nothing but the
bottom of a turntable." "For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected." “Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.” “Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.” "You can't always get what you want /
But if you try sometimes / You just might find / You get what you need." "In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up." “You know, most men would get discouraged by
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"There is never enough time, unless you are serving it."
Maryland v. King, granted Nov. 9, argued Feb. 26
(ScotusBlog)
Missouri
v. McNeeley, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (Apr. 17) (ScotusBlog)
Bailey
v. United States, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (Feb. 19) (ScotusBlog)
Florida
v. Harris, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (Feb.
19) (ScotusBlog)
Florida
v. Jardines, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (Mar. 26) (ScotusBlog)
2011-12 Term:
Ryburn
v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (Jan. 23,
2012) (other
blog)
Florence
v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (April 2,
2012) (ScotusBlog)
United
States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (Jan. 23, 2012) (ScotusBlog)
Messerschmidt
v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (Feb. 22, 2012) (ScotusBlog)
Kentucky
v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (May 16, 2011) (ScotusBlog)
Camreta
v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (May 26, 2011) (ScotusBlog)
Ashcroft
v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (May 31, 2011) (ScotusBlog)
Davis
v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (June 16, 2011) (ScotusBlog)
2009-10 Term:
Michigan
v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (Dec. 7, 2009) (per
curiam) (ScotusBlog)
City
of Ontario v. Quon, 130 S.Ct. 2619, 177 L.Ed.2d 216 (June 17, 2010) (ScotusBlog)
2008-09 Term:
Herring
v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (Jan. 13,
2009) (ScotusBlog)
Pearson
v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (Jan. 21, 2009)
(ScotusBlog)
Arizona
v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (Jan. 26, 2009)
(ScotusBlog)
Arizona
v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (April 21, 2009)
(ScotusBlog)
Safford
Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174
L.Ed.2d 354 (June 25, 2009) (ScotusBlog)
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Section 1983 Blog
—Me
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
—Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
—Katz
v. United States, 389 U.S. 347, 351 (1967)
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
—Mick Jagger & Keith Richards
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
—Pepé Le Pew
—Malcolm Forbes
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)
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