Archives for: July 2012, 22

07/22/12

Permalink 07:55:23 am, by fourth, 175 words, 267 views   English (US)
Categories: General

CA6: Forcibly removed co-tenant still can have apparent authority to consent

Plaintiff was acquitted of domestic battery so he sued all the officers involved, and they had qualified immunity. The entry into plaintiff’s house was with the apparent authority of the victim who still had it despite having been forcibly removed by plaintiff. Hays v. Bolton, 488 Fed. Appx. 971 (6th Cir. 2012):

We have held that "magic words" are not necessary for effective consent; rather, the totality of the circumstances, including a party's non-verbal conduct, should be considered in determining whether consent exists. See United States v. Carter, 378 F.3d 584, 588 (6th Cir. 2004) (finding consent "considering th[e] testimony and all [of] the circumstances" where an ordinary citizen would have recognized that assent had been given). Here, the totality of the circumstances suggested that Heather was a forcibly removed co-tenant with authority to consent to a warrantless search of the residence. Even assuming Heather was no longer a resident and lacked the actual authority to consent to a search, we conclude that she displayed apparent authority sufficient to justify Officers Bolton and Grassnig's conduct under the Fourth Amendment.

Permalink 07:50:02 am, by fourth, 167 words, 263 views   English (US)
Categories: General

TN: IAC: Not filing a motion to suppress bloody shoes was valid strategy where defense was alibi and they weren't defendant's

It was a valid strategic decision not to file a motion to suppress a search of defendant’s bedroom where bloody shoes were found. Defendant’s contention all along was that the shoes were not his, were the wrong size, and he had an alibi for the murder. Besides, it looks like there was no valid ground to suppress anyway. Gardner v. State, 2012 Tenn. Crim. App. LEXIS 526 (July 20, 2012).

Officers conducted an illegal protective sweep of defendant’s house before they got a search warrant. Removing what was learned from the illegal protective sweep from the search warrant affidavit still left probable cause for the search. Martinez-Vargas v. State, 730 S.E.2d 633 (Ga. App. 2012).*

The trial court did not abuse its discretion in not suppressing defendant’s arrest for “a vicious murder” without an arrest warrant. When police arrived at the residence of the defendant, they saw him doing something with a bicycle, which was the motive for the murder. Paul v. State, 971 N.E.2d 172 (Ind. App. 2012).*

Permalink 07:00:55 am, by fourth, 145 words, 265 views   English (US)
Categories: General

OH4: State was sufficiently on notice from motion to suppress to know to call the dog handler at the hearing

Defendant’s motion to suppress was sufficiently detailed [not a lot but still enough] to put the state on notice what the issues were at the suppression hearing, and the state was not entitled to a continuance at the hearing to get the dog handler there to testify to finding the drugs. State v. Rife, 2012 Ohio 3264, 2012 Ohio App. LEXIS 2856 (4th Dist. July 10, 2012).

Walking through the parking lot of a closed business at 1:30 am to an illegally parked car is reasonable suspicion. State v. Pittman, 2012 Ohio 3297, Ohio App. LEXIS 2900 (6th Dist. July 20, 2012).*

When the officer stopped defendant for a headlight being out, she was asked “is there anything in the car I should be concerned about,” and she produced a pipe. That was enough to get her out of the car and extend the stop further. State v. McDaniel, 2012 Ohio 3286, 2012 Ohio App. LEXIS 2887 (2d Dist. July 20, 2012).*

Permalink 06:23:25 am, by fourth, 142 words, 259 views   English (US)
Categories: General

CA6: Answering a knock at the door and unlocking it is not consent to enter

Officers were not entitled to qualified immunity for this entry because unlocking the door to answer it is not consent to enter. Even if it could be construed as consent, the officers’ banging on the door and threatening jail time if he didn’t let them in is hardly consent. Turk v. Comerford, 488 Fed. Appx. 933 (6th Cir. 2012).*

Officers who traveled outside their jurisdiction in Illinois could not statutorily arrest the defendant without a local officer present. Search incident and statements suppressed. People v. Harrell, 2012 IL App (1st) 103724, 975 N.E.2d 624 (2012).*

Collateral estoppel: “The district court properly granted summary judgment on Patten's Fourth Amendment claim because issues related to the initial search and seizure were precluded by the California Court of Appeal's judgment affirming the denial of Patten's motion to suppress.” Patten v. County of Lake, 2012 U.S. App. LEXIS 14934 (9th Cir. July 20, 2012).*

Permalink 12:01:35 am, by fourth, 145 words, 251 views   English (US)
Categories: General

TX13: Consent to search car included under the kickplate that could be removed without tools

Defendant’s consent to search the car included the kickplate which could be removed without tools. Cedeno v. State, 2012 Tex. App. LEXIS 2716 (Tex. App. – Corpus Christi-Edinburg April 5, 2012), Released for Publication May 17, 2012

A motion to reconsider is appropriate to bring attention to something that changed or is missing, but this one doesn’t, and it’s also untimely. United States v. Lopez, 2012 U.S. Dist. LEXIS 100749 (D. Kan. July 20, 2012).*

The police received an anonymous call about a black Saturn in a particular location occupied by a man with a gun who was hunting another man who’d robbed him so he could shoot the robber. The first effort to find the car was fruitless, but later in the night the car was found and the details were corroborated. The officers had reasonable suspicion. United States v. Garcia, 2012 U.S. Dist. LEXIS 99754 (S.D. N.Y. July 10, 2012).*

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by John Wesley Hall
Criminal Defense Lawyer
Little Rock, Arkansas
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2012-13 Term:
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  Missouri v. McNeeley, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (Apr. 17) (ScotusBlog)
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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)

2010-11 Term:
  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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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"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."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"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."
Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"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."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"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."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"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."
Katz v. United States, 389 U.S. 347, 351 (1967)

“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.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“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.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"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."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
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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