Archives for: July 2012, 01
07/01/12
OH5: Reasonable mistake of fact that a wanted person was in the car justified stop
Officer’s reasonable mistake of fact that a passenger in defendant’s car had a warrant out for him made the stop reasonable and with good faith. The trial court’s finding of reasonableness is supported by the record. State v. Butler, 2012 Ohio 2902, 2012 Ohio App. LEXIS 2544 (5th Dist. June 22, 2012):
[*P46] The United States Supreme Court has held that a police officer's mistake of fact will not lead to the suppression of evidence where the mistake was "understandable" and a reasonable response to the situation facing the police officer. Hill v. California, 401 U.S. 797, 804, 91 S.Ct.1106, 28 L.Ed.2d 484 (1971). Here, the trial court's finding that Doty's misidentification was reasonable is supported by competent, credible evidence in the record: ...
The state had the burden of proving that the consent to frisk occurred during an “unavoidable lull” in a stop when dispatch was queried for wants or warrants. State v. Dennis, 250 Ore. App. 732, 282 P.3d 955 (2012).*
Defendant discarded the cocaine he was indicted for when he was approached by officers, so his attorney was not ineffective for not moving to suppress. United States v. Calhoun, 2012 U.S. Dist. LEXIS 90110 (E.D. Pa. June 28, 2012).*
S.D.N.Y.: Breath testing of NYPD officers involved in shootings reasonable under “special needs” doctrine
NYPD’s policy of giving a breath test to officers involved in shooting incidents is reasonable under the “special needs” doctrine. Palladino v. City of New York, 870 F. Supp. 2d 350 (S.D. N.Y. 2012) (prior history: preliminary injunction denied, Palladino v. The City of New York, 07 CV 9246 (S.D.N. Y. Sep. 30, 2008), aff’d Lynch v. City of New York, 589 F.3d 94 (2d Cir. 2009), cert, denied, 131 S. Ct. 415 (2010)):
Plaintiffs argue that the breathalyzer test is unreasonable in light of the emotional trauma NYPD officers might experience after discharging their weapons. NYPD officers are without question a category of the bravest and finest public servants, and often must face the consequences of difficult and even potentially life-threatening situations. But the breathalyzer test—even with its immediate post-shooting application—is not an unreasonably traumatic intrusion when viewed in the context of the thorough post-shooting investigation protocol already in place. Officers understand that there will be an administrative investigation into each instance in which they must discharge their firearms. Officers also understand that they will be subject to a five minute breathalyzer test every time they discharge their weapons and someone is injured as a result. It is a brief, mandatory process. The breathalyzer test is uniformly conducted and is neither arbitrary nor oppressive. The test is conducted immediately to quickly lift the cloud of any suspicion that an officer has acted improperly.
The final balancing factor of the special needs test requires the Court to consider "the nature and immediacy of the government's needs" and "the efficacy of its policy in addressing those needs." Cassidy, 471 F.3d at 75. As the Second Circuit articulated in Lynch, "the NYPD's regulations involving alcohol and firearms are vital to public safety, and the NYPD has a substantial interest in detecting and disciplining officers who violate these policies... [and] in deterring its officers from using their firearms while intoxicated." 589 F.3d at 104. The NYPD has a very practical and important interest in managing its personnel and ensuring that officers comply with the Patrolman's Guide regulations concerning officer fitness for duty. Officers are prohibited from possessing a firearm if they are overly intoxicated. The breathalyzer test deters officers from violating this important rule, and serves to identify those officers who do discharge their weapons while under the influence of alcohol. Accordingly, IO 52 is narrowly tailored to accomplish the NYPD's goals of ensuring compliance with its policies regarding personnel management. See id. ("By quickly and unequivocally determining whether alcohol was involved in an NYPD officer's use of his or her firearm, the breathalyzer policy will assist the NYPD in disciplining officers who use their firearms while intoxicated and will provide an incentive to officers to stow their firearms before drinking alcohol").
Under Von Raab and Skinner, this really was not even a close question.
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by John Wesley Hall
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government and its servants in their place. That is one of the costs of having
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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
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here, has not–to put it mildly–run smooth." "A search is a search, even if it happens to disclose nothing but the
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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,
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Maryland v. King, granted Nov. 9, argued Feb. 26
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Missouri
v. McNeeley, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (Apr. 17) (ScotusBlog)
Bailey
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Florida
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19) (ScotusBlog)
Florida
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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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—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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