Archives for: August 2012, 05
08/05/12
D.Ariz.: Use of emergency lights may make driver of stopped car think he can't leave, but that wasn't the intention of the officer
An officer was tailing two vehicles heading north from the border apparently in tandem, which was suspicious to the officer. An immigration checkpoint was ahead, so he didn’t intend to stop them. One pulled off when a “checkpoint ahead” sign was seen, and the officer stopped too. The emergency lights were turned on, and it was reasonable for the driver to believe he’d been stopped, but it was still consensual up to the point the officer saw marijuana. United States v. Holley, 2012 U.S. Dist. LEXIS 107882 (D. Ariz. June 13, 2012), adopted 2012 U.S. Dist. LEXIS 107983 (D. Ariz. August 2, 2012):*
Although the Government's case here is arguably not as strong as it was in Al Nasser, it is similar to facts of Chan-Jimenez, but without the determinative retention of the license and registration. Though a closer case than either of those, the outcome is dictated by the application of the Ninth Circuit instruction that "[a] person is seized when he is 'meant to be stopped by [a particular law enforcement action] ... and [is] so stopped.'" Al Nasser, 555 F.3d at 731. Here, Holley voluntarily stopped and there is no evidence that indicates Agent Alvarenga activated his lights meaning to stop him. While the lights may have caused Holley, or any reasonable person, to believe he was seized, that was not the will of Agent Alvarenga and therefore the encounter was consensual and no seizure occurred until the agent saw the marijuana in the vehicle.
So this was consensual stop or not? Since the officer didn't mean to "stop" him and he was already stopped, it was consensual even though the driver thought he couldn't leave. I don't quite get it.
CA7: Reasonably complete private search was not exceeded by the officers
Defendant was convicted of a child pornography offense in state court and sought habeas which was denied by the district court which granted a COA. The court reached the merits of the Fourth Amendment claim before turning to the AEDPA standard of review and found the evidence supported the conclusion that the private search before the police received it was reasonably complete so the police did not exceed the private search without a warrant. Rann v. Atchison, 689 F.3d 832 (7th Cir. 2012).
Plaintiff’s decedent was in a one-car crash that required the “jaws of life” to extricate him, but he was hogtied and allegedly physically abused by officers while unconscious. He ultimately died. There was no qualified immunity for the officers, but there was as to the EMTs for lack of a settled constitutional right as to them. Brown v. Jenne, 2012 Fla. App. LEXIS 12520 (Fla. App. 4th DCA August 1, 2012), on rehearing from 2011 Fla. App. LEXIS 17766 (Fla. 4th DCA Nov. 9, 2011).*
The alleged Franks error, if it was, was not remotely material to the finding of probable cause. United States v. Gordon, 493 Fed. Appx. 617 (6th Cir. 2012).*
D.Ariz.: Use of emergency lights behind an already parked car not necessarily a stop
Pulling up to an already stopped vehicle and turning on the emergency lights is not per se a stop. United States v. Holley, 2012 U.S. Dist. LEXIS 107983 (D. Ariz. August 2, 2012).*
Collective knowledge supported reasonable suspicion and probable cause for a stop and search in an alien smuggling case. A cell phone was recovered and a search warrant obtained. A mistake in the application as whether the passenger or driver was on the phone was not material for Franks purposes. United States v. Cruz-Grijalva, 2012 U.S. Dist. LEXIS 107940 (D. Ariz. July 13, 2012).*
While the initial robbery report did not have a description of the car, police found a car with occupants matching their description and observed it, ultimately getting probable cause to believe that the car was involved, thus permitting a search of the car. United States v. Burnett, 2012 U.S. Dist. LEXIS 107341 (E.D. Pa. August 1, 2012).*
Zwillgen: "Twitter to Appeal Ruling That the Fourth Amendment Does Not Protect Public Tweets"
Zwillgen.com: Law Across the Wire and Into the Cloud: Twitter to Appeal Ruling That the Fourth Amendment Does Not Protect Public Tweets by Melissa Maalouf:
A lawyer for Twitter recently announced through a tweet that the company intends to appeal the recent decision of a New York criminal court that an Occupy Wall Street protester’s tweets are not protected by the Fourth Amendment.
In State v. Harris, the issue was whether Twitter must comply with a subpoena requesting all user information for the protester and tweets on his account between September and December 2011, including tweets that were no longer visible because new ones had crowded them out. In April, the court denied the protester’s motion to quash the subpoena, holding that he did not have standing because the subpoena was issued to Twitter. Following the ruling, Twitter filed its own motion to quash the subpoena.
Of course it's through a tweet.
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Ryburn
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2012) (other
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Florence
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Messerschmidt
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Camreta
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Davis
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Herring
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Pearson
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—Me
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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
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—Entick
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—United
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—Chapman
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—Arizona
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—Mick Jagger & Keith Richards
—Martin Niemöller (1945) [he served seven years in a concentration
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—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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