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.
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).*
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).*
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).*
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
Contact / About
www.johnwesleyhall.com
www.LawofCriminalDefense.com
@JohnWesleyHall
Online since Feb. 24, 2003
~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and links
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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:
Supreme Court:
SCOTUSBlog
S. Ct.
Docket
Solicitor General's
site
SCOTUSreport
Briefs
online (but no amicus briefs)
Curiae (Yale
Law)
Oyez
Project (NWU)
"On the Docket"–Medill
S.Ct.
Monitor: Law.com
S.Ct.
Com't'ry: Law.com
LexisWeb
Google Scholar | Google
LexisOne
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Crimelynx
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$
Lexis.com
(criminal law/ 4th Amd) $
Findlaw.com
Findlaw.com (4th
Amd)
Westlaw.com
$
F.R.Crim.P.
41
www.fd.org
FBI
Domestic Investigations and Operations Guide (2008) (pdf)
DEA
Agents Manual (2002) (download)
DOJ
Computer Search Manual (2009) (pdf)
Electronic
Communications Privacy Act (2012)
Overview
of the Electronic Communications Privacy Act (2012)
Outline
of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
Federal
Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
Federal
Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
ACLU on privacy
Privacy
Foundation
Electronic Privacy
Information Center
Criminal
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)