Archives for: July 2012, 26

07/26/12

Permalink 10:46:12 am, by fourth, 285 words, 326 views   English (US)
Categories: General

CA10: Officers believing exigency and beating on door were not threatening to violate the Fourth Amendment if door not opened

Officers beating on the door to open when they reasonably believed there was an exigency was not unreasonable. Their actions did not amount to a threat to violate the Fourth Amendment if the door wasn’t opened. United States v. Ramirez-Fragozo, 490 Fed. Appx. 125 (10th Cir. 2012) [Co-defendant's case: United States v. Canas, 462 Fed. Appx. 836, 2012 U.S. App. LEXIS 3329 (10th Cir. 2012)]:

We emphasize two fundamentals: First, the facts creating the exigency occurred well prior to the officers' arrival at the house, as discussed above. Second, the officers made no overt threat to violate the occupant's rights. After their arrival, the officers knocked on the door several times; they twice announced their presence; they twice asked the occupants to come to the door; and they twice waited for a response. This is not a "demand that amounts to a threat to violate the Fourth Amendment." King, 131 S. Ct. at 1863.

Ramirez-Fragozo argues the "show of military force ... clearly implied that if there was no compliance with their demands the Fourth Amendment would be violated," (Appellant's Br. at 27). However, there was no evidence that the occupants were aware of the extent of the police presence or felt threatened. Mostly we have the suppositions of counsel. We know only that someone spread a blind, peeked out of the window and then drew the blind. We have no idea what the occupants saw or thought.

But we know that after the peek there was a flurry of activity, reasonably suggesting destruction of evidence. Before the officers arrived they were legitimately concerned that critical evidence would be lost if they did not act decisively. The events at the door exacerbated those pre-existing concerns—destruction of evidence was not merely likely, it was ongoing.

Permalink 10:35:59 am, by fourth, 429 words, 302 views   English (US)
Categories: General

CA9: Even under Arvizu BP couldn't show RS for this stop

Defendant was stopped 70 miles north of the Mexican border without reasonable suspicion to believe he was smuggling drugs or people. United States v. Valdes-Vega, 685 F.3d 1138 (9th Cir. 2012) (2-1):

In evaluating whether the stop of a vehicle satisfies the reasonable suspicion standard, we must look to the "totality of the circumstances." Arvizu, 534 U.S. at 273 (internal quotation marks omitted). When a border patrol stop is at issue, the totality of the circumstances may include:

(1) characteristics of the area; (2) proximity to the border; (3) usual patterns of traffic and time of day; (4) previous alien or drug smuggling in the area; (5) behavior of the driver, including obvious attempts to evade officers; (6) appearance or behavior of passengers; (7) model and appearance of the vehicle; and, (8) officer experience.

Berber-Tinoco, 510 F.3d at 1087 (quoting United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir. 1997)). Under the totality of the circumstances approach, reasonable suspicion may exist even when each individual fact is susceptible to an innocent explanation or is not probative. Arvizu, 534 U.S. at 277. This approach "allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person." Id. at 273. The court, however, "will defer to officers' inferences only when such inferences rationally explain how the objective circumstances 'arouse[d] a reasonable suspicion that the particular person being stopped ha[d] committed or [was] about to commit a crime.'" ... Accordingly, "reasonable suspicion may not be based on broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped." ...

. . .

D. The Totality of the Circumstances Did Not Provide Agents with Reasonable Suspicion to Believe that Valdes-Vega Was Smuggling Drugs or Aliens

The facts of this case, when considered cumulatively, do not create a reasonable suspicion that Valdes-Vega was smuggling drugs or aliens. Taken together they reveal the following profile: a Ford F-150 pickup truck, with Baja California plates, being erratically driven on I-15, 70 miles north of the border, at approximately 2:00 in the afternoon, that slowed down as it passed through the closed Temecula Checkpoint, and whose driver failed to look a Border Patrol Agent in the eyes. Putting aside the erratic driving, this description likely "fit[s] hundreds or thousands of law abiding daily users of the highways of Southern California." United States v. Rodriguez, 976 F.2d 592 (9th Cir. 1992), amended by 997 F.2d 1306 (9th Cir. 1993).

The question, then, is whether the addition of the erratic driving to this equation pushes this otherwise innocent profile to a reasonably suspicious one. ...

Permalink 10:20:33 am, by fourth, 515 words, 366 views   English (US)
Categories: General

CA6 elaborates the collective knowledge doctrine

The DEA had reasonable suspicion for stops of this vehicle in a health care fraud case. The state officers involved could rely on the DEA under the fellow officer rule which has it's limits, but they weren't exceeded here. United States v. Lyons, 687 F.3d 754, 2012 FED App. 0229P (6th Cir. 2012).*

Despite its flexibility, the collective knowledge doctrine is not without its restrictions. The doctrine's primary boundary is, of course, the Fourth Amendment itself. As with any traditional investigative stop, a traffic stop based on collective knowledge must be supported by a proper basis and must remain reasonably related in its scope to the situation at hand. See Davis, 430 F.3d at 354. Accordingly, if an investigating officer "lacked sufficient information to satisfy the reasonable suspicion requirement, and the [responding officer's] subsequent observations did not produce reasonable suspicion," then the stop violates the Fourth Amendment. Feathers 319 F.3d at 849. Likewise, if a responding officer exceeds the stop's scope because he was not provided with the facts necessary to stay within its proper bounds, then any evidence improperly obtained therefrom remains subject to the exclusionary rule, just as if the investigating officer committed the error. See, e.g., United States v. Pineda-Buenaventura, 622 F.3d 761, 776 n.5 (7th Cir. 2010) (finding that the exclusionary rule "remain[ed] in play" when supervisors failed to communicate the proper bounds of a search warrant to executing officers). The taint of a stop effected without reasonable suspicion similarly cannot be cured by an after-the-fact relay of information. See Blair, 524 F.3d at 751-52. Applying traditional Fourth Amendment restrictions equally to the collective knowledge doctrine ensures that communications among law enforcement remain an efficient conduit of permissible police activity, rather than a prophylactic against behavior that violates constitutional rights.

The Seventh Circuit has helpfully clarified the application of the collective knowledge doctrine by identifying three separate inquiries: (1) the officer taking the action must act in objective reliance on the information received; (2) the officer providing the information must have facts supporting the level of suspicion required; and (3) the stop must be no more intrusive than would have been permissible for the officer requesting it. United States v. Williams, 627 F.3d 247, 252-53 (7th Cir. 2010) (citing United States v. Nafzger, 974 F.2d 906, 911 (7th Cir. 1992)). We are persuaded by the simplicity of this approach.

Moreover, and from a purely functional standpoint, practical considerations naturally restrict the collective knowledge doctrine, because a responding officer is invariably in a better position when provided with the details helpful and necessary to perform his duties. The relay of sufficient information is critical to a responding officer who needs to, for example, report to the correct location, identify the correct suspect, respond appropriately to exigent circumstances, and protect his safety and the safety of others.

. . .

Moreover, it is immaterial that the troopers were unaware of all of the specific facts that supported the DEA's reasonable suspicion analysis. The troopers possessed all the information they needed to act—a request by the DEA (subsequently found to be well-supported) that they execute the traffic stop in the expectation that illegal narcotics would be found in the vehicle. ...

Permalink 12:42:36 am, by fourth, 151 words, 326 views   English (US)
Categories: General

DailyTech.com: "D.C. Cops: You Can Take Pictures, But we Can Still Seize Your Cameras"

DailyTech.com: D.C. Cops: You Can Take Pictures, But we Can Still Seize Your Cameras by Jason Mick:

Police can no longer detain citizens for taping them doing their job on taxpayer dollars

You pay the bills of an employee. But suddenly, he's holding you at gunpoint, all because you videotaped him while on the job to make sure he was doing the right thing.

I. Police Detain Man for Photographing Him, Forced to Apologize Later

That's the situation a taxpayer named Jerome Vorus found himself in when he was detained by police officers in Washington D.C. for taking pictures of them on the job. The incident occurred in Washington D.C.'s historic Georgetown district, during a traffic stop by police officers. Mr. Vorus -- not involved in the stop -- decided to use the incident to practice his skills as a photojournalist, chronicling the stop in pictures.

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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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