Archives for: July 2012, 19
07/19/12
CA9: Refusal to empty pockets is not a search under Hodari D.
A forest service officer reasonably suspected defendant of smoking marijuana and he ordered him to empty his pockets. His refusal made it not a search. “Cf. California v. Hodari D., 499 U.S. 621, 629, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991) (holding no Fourth Amendment seizure occurred when juvenile did not comply with officer's command to halt).” When defendant finally did, it was with probable cause. United States v. Pope, 686 F.3d 1078 (9th Cir. 2012).
Officers who had probable cause to believe the occupants in a car were involved in a crime was sufficient to justify a search. Williams v. State, 316 Ga. App. 821, 730 S.E.2d 541 (2012).*
MA: Where there's justification for a frisk for weapons it might extend to the car as well when none is found on the person
The officer had reasonable suspicion for a “patfrisk” during a traffic stop, and defendant was “agitated” when it was happening. Defendant was put in the patrol car, and a frisk of the car for a weapon was justified by defendant’s demeanor because the officer didn’t want the defendant to later come out of the car and get a hidden weapon. Commonwealth v. Myers, 82 Mass. App. Ct. 172, 971 N.E.2d 815 (2012).
Trial court found consent, but defendant did not raise the scope of consent in the trial court. He asked for remand to settle that, but it was waived by not having raised it in the first place. State v. Bell, 2012 N.C. App. LEXIS 868 (July 17, 2012).*
CA9: Frisk without reasonable suspicion of nervous crime victim unreasonable
Defendant was on probation and he was an assault victim beaten on a bus. When the police arrived, they treated him like the suspect and searched him, and the motion to suppress should have been granted. Inevitable discovery does not apply because the officers did not know that he was on probation, and there was no reasonable suspicion for any search. United States v. Hernandez, 489 Fed. Appx. 157 (9th Cir. 2012):
N.D.Ohio: Foreigner did not truly consent to opening trailer during stop
Defendant was “asked” to get out of the truck and open the trailer to show whether the contents really was furniture. Because he was a foreigner, he didn’t understand this as a request; rather it was submission to a claim of authority. United States v. Younis, 890 F. Supp. 2d 818 (N.D. Ohio 2012):
The defendant is a foreign national with limited ability to understand and speak English. In all likelihood he, unlike native born citizens. probably had no culturally acquired or even subliminal understanding of his Fourth Amendment rights. On being stopped, he was simply asked, in English, if the trooper could see the furniture. To which his wife responded, "Yeah." This was followed by some conversation in Arabic between the defendant and his wife. The trooper then asked who would be getting out of the truck. The defendant said, "I am" and went to the back of the truck and opened the door.
The Fourth Circuit has previously found a drug dog’s 60% reliability rate to be sufficient, and this one was better than that, so motion to suppress denied. United States v. Green, 2012 U.S. Dist. LEXIS 99220 (W.D. Va. June 28, 2012).*
E.D.Tex.: Search incident of a cell phone is reasonable in the Fifth Circuit
Relying on circuit precedent, a seizure and then search of a cell phone on an arrest with probable cause was reasonable. United States v. Johnson, 2012 U.S. Dist. LEXIS 99099 (E.D. Tex. June 18, 2012).*
The affidavit for the search warrant adequately showed that the defendant ran a drug trafficking organization from his business, and that justified an all records search warrant. “And, given the nature of the crime being investigated, the list of the items to be seized, although broad and covering many categories of items, was sufficiently particular and not over-broad.” United States v. Santiago Villaueva Pineda, 2012 U.S. Dist. LEXIS 98692 (N.D. Ga. June 4, 2012).*
2255 movant’s search claims were already subject to “full and fair litigation.” His claim that “the date stamp on the search warrant application equates with fraud is utterly frivolous, inasmuch as the stamp only indicates the day that the application was received by the clerk's office following the application's approval by the undersigned. His other arguments are also deficient, inasmuch as they rely upon self-serving allegations with no support other than the movant's word. The movant demonstrates neither error by his counsel nor cause and prejudice, and these claims accordingly fail.” Hicks v. United States, 2012 U.S. Dist. LEXIS 99118 (S.D. W.Va. January 12, 2012).*
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by John Wesley Hall
Criminal Defense Lawyer
Little Rock, Arkansas
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www.LawofCriminalDefense.com
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Online since Feb. 24, 2003
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Most recent SCOTUS cases:
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
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced." "The criminal goes free, if he must, but it is the law that sets him free. Nothing
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
now. Fortunately for you, I am not most men!”
"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)
Research Links:
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F.R.Crim.P.
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www.fd.org
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DEA
Agents Manual (2002) (download)
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Electronic
Communications Privacy Act (2012)
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ACLU on privacy
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Appeal (post-conviction) (9th Cir.)
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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