Archives for: July 2012, 03
07/03/12
OH5: Reasonable but mistaken suspicion still justified stop
Defendant was stopped because of a reasonable mistake that he was a robbery suspect for whom there was an arrest warrant. When the stop occurred, defendant reached for his waistband, and the officer did, too, retrieving a gun. The stop was with reasonable, albeit mistaken, suspicion. State v. Pickens, 2012 Ohio 2901, 2012 Ohio App. LEXIS 2543 (5th Dist. June 22, 2012).
“The tip, the suspects' location, Detective Almeida's knowledge of Teixeira's ineligibility to possess a firearm, and the suspects' movements [“blading”] once Detective Almeida approached combined to provide a basis for Detective Almeida's reasonable suspicion that Teixeira and Shaw were engaged in criminal activity.” United States v. Shaw, 874 F. Supp. 2d 13 (D. Mass. 2012).*
Defendant’s car was lawfully impounded; the officer did not need to leave it on an exit ramp where it was a hazard. Scott v. State, 316 Ga. App. 341, 729 S.E.2d 481 (2012).*
E.D.Okla.: Knock-and-talk with RS here led to valid warrantless entry
Officers did a knock-and-talk with reasonable suspicion of a place with known felons and then smelled drugs. Noises came from inside that were apparently inconsistent with somebody just coming to the door [“The officers knocked on the door, whereupon they heard ‘scurrying and shuffling’ within the residence, which caused the officers concern.”], and that justified their entry. United States v. Moore, 2012 U.S. Dist. LEXIS 90579 (E.D. Okla. May 17, 2012)* [I can’t believe that’s all it takes, and it never says that the officers identified themselves.]:
Certainly, in this case, law enforcement had a reasonable suspicion of criminal activity at the time of the "knock and talk" encounter. Based upon the heightened traffic at the residence, the known prior criminal activity at the residence, the presence of Defendant Moore at the residence -- a known felon who had previously engaged in a drug selling enterprise, officers were justified in inquiring at the residence through the "knock and talk" procedure. Upon hearing the activity within the residence upon announcing their presence and the smell of illegal drugs once the door was opened and the presence of known or suspected felons on the premises, officers were justified in entering the residence to secure evidence and for their own safety. Officers did not seize any observed contraband until signed consents were obtained from the residents.
AL: Lack of plan for DUI roadblock made it unreasonable
The lack of a plan for this DUI roadblock made it unreasonable and a stop with unfettered discretion. Ogburn v. State, 104 So. 3d 267 (Ala. Crim. App. 2012).
A search warrant for a cell phone in a money forfeiture trial was issued without probable cause where it was “based on [only] (1) the money found in Bolden's vehicle and (2) Officer Kendrick's personal knowledge that Bolden had sold illegal drugs in the past.” Bolden v. State, 2012 Ala. Civ. App. LEXIS 175 (June 29, 2012).
Defendant was removed to the back of a police car while a search warrant was sought for child pornography. He was seized for Fourth Amendment purposes and in custody for Miranda purposes. United States v. Wooten, 2012 U.S. Dist. LEXIS 90627 (E.D. Mich. June 29, 2012).*
WSJ.com: "DA Gets to See Occupy Tweets"
WSJ.com: DA Gets to See Occupy Tweets by Pervaiz Shallwani:
Twitter Inc. must turn over messages posted by an Occupy Wall Street protester, a Manhattan judge ruled on Monday, another move toward giving law-enforcement agencies broad access to comments made on social media.
Monday's order was the second time Manhattan Criminal Court Judge Matthew Sciarrino Jr. has ruled that law-enforcement agencies can subpoena messages posted on Twitter.
Twitter is the most protective of any Internet service of customer privacy.
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by John Wesley Hall
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Little Rock, Arkansas
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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
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frequently been forged in controversies involving not very nice people. And
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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
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
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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,
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"There is never enough time, unless you are serving it."
Maryland v. King, granted Nov. 9, argued Feb. 26
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Missouri
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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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