Archives for: September 2012, 12
09/12/12
Lawfare: "Drone Lost in Skies Over Washington D.C. Neighborhood"; a private drone
Lawfare: Drone Lost in Skies Over Washington D.C. Neighborhood by Ritika Singh
A drone has gone missing in Washington. No, not a Predator or a Reaper—and not one of the drones that is gearing up for the Lawfare Drone Smackdown. And no, not @drunkenpredator on his latest binge. It’s just some guy’s drone—and he’s done just what you would do if you lost your pride and joy: He’s posted a flier.
No, this is not a joke. It is real. I promise.
CA6: Because Davis followed DC decision suppressing the search, the govt gets remand for DC to consider it
The government perfunctorily defended the search and lost on Fourth Amendment grounds and failed to fully address the good faith exception in the district court, instead briefing it on appeal. The case is remanded to the district court to give the government another bite at the apple only because Davis came along after the district court ruled. United States v. Fugate, 499 Fed. Appx. 514, 2012 FED App. 0994N (6th Cir. 2012):
Here, the district court did not have the benefit of the parties' briefing and argument on this issue. Likewise, the Supreme Court issued Davis after the district court granted Fugate's motion to suppress. As we explained in Master, "the Supreme Court has effectively created a balancing test by requiring that in order for a court to suppress evidence following the finding of a Fourth Amendment violation, the benefits of deterrence must outweigh the costs." In Master, we remanded to allow the district court to consider whether the officers' conduct was deliberate, reckless, or grossly negligent. 614 F.3d at 243 (citation and alterations omitted). As in Master, the district court has not had this opportunity, and we therefore remand the case for further proceedings not inconsistent with this opinion.
W.D.Okla.: Defendant consented to stay and talk to the officer after the paperwork was returned after a traffic stop
Defendant consented to stay and talk to the officer after the paperwork was returned after a traffic stop. United States v. Santana-Gomez, 2012 U.S. Dist. LEXIS 128147 (W.D. Okla. September 10, 2012)*:
Upon careful review of the parties' submissions and the testimony presented at the hearing, the Court finds that Lt. Glass' further questioning unrelated to the initial stop occurred after Lt. Glass returned defendant's license and registration and informed defendant that he was "good to go." Although Lt. Glass posed further questions to defendant within seconds of saying defendant was "good to go," Lt. Glass did nothing to reasonably indicate that defendant was not free to leave. In fact, a review of Lt. Glass' in-car video of defendant's stop shows that Lt. Glass did not coerce the defendant by raising his voice, brandishing his weapon, removing his canine from the back seat, or calling for another officer.
Defendant’s appellate argument only presents the defendant’s version of the evidence which the district court rejected. Appellate review grants deference to the trial court’s findings of fact which are essentially overlooked, and they are not clearly erroneous. United States v. Snellgrove, 488 Fed. Appx. 827 (5th Cir. 2012).*
D.Haw.: SI of bag in defendant's possession at time of arrest was valid, as was later re-search at police station
Search of a black bag in defendant’s possession at the time of his arrest was valid as a search incident because it could have contained evidence or weapons. A later search of the bag was valid. United States v. Gordon, 895 F. Supp. 2d 1011 (D. Haw. 2012):
CA8: Reasonable suspicion of possible forged paper tags explained
A lengthy explanation of reasonable suspicion and suspected forged paper tags is United States v. Mendoza, 691 F.3d 954 (8th Cir. 2012).* Was it a genuine suspicion or not?
Separation of an agitated parent and her child in an ER for treatment was not a Fourth Amendment violation. Mueller v. Auker, 2012 U.S. App. LEXIS 18972 (9th Cir. September 10, 2012) (prior appeal Mueller v. Auker, 576 F.3d 979 (9th Cir. 2009)):
The Fourth Amendment usually requires an officer to have a warrant issued upon probable cause before seizing someone, but "neither probable cause nor a warrant is required when 'special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.'" Yin v. California, 95 F.3d 864, 869 (9th Cir. 1996) (quoting Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 653, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995)). In these "special needs" cases, we "dispense[ ] with the probable cause and warrant requirements and simply appl[y] a balancing test to determine if a search or seizure is reasonable and thus constitutional." Yin, 95 F.3d at 869.
FourthAmendment.com
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by John Wesley Hall
Criminal Defense Lawyer
Little Rock, Arkansas
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www.LawofCriminalDefense.com
@JohnWesleyHall
Online since Feb. 24, 2003
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2013-14 Term:
Fernandez v. California, granted May 20 (ScotusBlog)
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, 2013 U.S. LEXIS 4165, 2013 WL 2371466 (June 3, 2013) (ScotusBlog)
Missouri
v. McNeeley, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (Apr. 17, 2013) (ScotusBlog)
Bailey
v. United States, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (Feb. 19, 2013) (ScotusBlog)
Florida
v. Harris, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (Feb. 19, 2013) (ScotusBlog)
Florida
v. Jardines, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (Mar. 26, 2013) (ScotusBlog)
2011-12 Term:
Ryburn
v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other
blog)
Florence
v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
United
States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
Messerschmidt
v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)
Kentucky
v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
Camreta
v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
Ashcroft
v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
Davis
v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)
2009-10 Term:
Michigan
v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam)
(ScotusBlog)
City
of Ontario v. Quon, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)
2008-09 Term:
Herring
v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
Pearson
v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
Arizona
v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
Arizona
v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
Safford
Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174
L.Ed.2d 354 (2009) (ScotusBlog)
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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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