Archives for: November 2012, 01

11/01/12

Permalink 06:25:19 pm, by fourth, 130 words, 440 views   English (US)
Categories: General

N.D.Ohio: Search of defendant’s detached garage was permissible under a search warrant for the house

The court declines to view each paragraph of the affidavit separately because it has to consider the totality of the circumstances. On the totality, there is probable cause. A search of defendant’s detached garage was permissible under a search warrant for the house. United States v. Green, 2012 U.S. Dist. LEXIS 156068 (N.D. Ohio October 31, 2012).*

Four men went into a house when a police showed up in the neighborhood. They could see a gun in defendant’s waistband, and he was last in. That was a furtive movement first, and reaching for a gun was probable cause. The officer was acting reasonably giving pursuit and then stopping for the gun when it was discarded in flight through the house. State v. Gibson, 2012 La. App. LEXIS 1354 (La. App. 5 Cir. October 30, 2012).*

Permalink 06:09:45 pm, by fourth, 501 words, 582 views   English (US)
Categories: General

MO: Inventory was pretext: search too intense, officer wrote nothing down, video of search showed no effective inventory

Removing the gearshift boot from a car as a part of an inventory search showed it was really a criminal search. Also, when the officer was conducting the inventory, she had no pen and paper in hand suggesting that there was no inventory. The video of the inventory process also was relied upon. State v. Williams, 382 S.W.3d 232 (Mo. App. 2012):

Although we do not have the inventory report itself, from Officer Laffoon's cross-examination we know that she also failed to document all of the valuable property found within the vehicle. According to Officer Laffoon's testimony, and as depicted in the video recording, two cell phones found in the vehicle were returned to Williams. The Kansas City Police Department inventory policy provides that "[p]roperty other than evidence and contraband may be released at the scene by the officer to a responsible person. Release information on the reverse side of the Physical Evidence/Property Inventory Report, Form 236 P.D., will be completed prior to releasing the property." Despite the explicit requirement to document the release of property to third parties, Officer Laffoon admitted on cross-examination that "no, it doesn't look like [the cell phones] ended up being listed on there."

We also note that the dashboard video recording makes clear that Officer Laffoon "did not have a pen, [and] did not write anything down" as she conducted her search. United States v. Garcia-Medina, No. 2:11-CR-545-TC, 2012 U.S. Dist. LEXIS 80620, 2012 WL 23597765, at *4 (D. Utah Aug. 20, 2012). Although Officer Laffoon told Officer Henry that she should be the only person physically searching the vehicle's interior, she did not complete the inventory form. According to Officer Laffoon, Officer Henry completed the form, "[m]ore than likely" based on what she told him. The video recording reflects that Officer Henry did not ask Officer Laffoon whether she had Tow-In reports in her patrol car until fifteen minutes after the search had begun. The fact that Officer Laffoon had no device to actually document the property she was uncovering, and that fifteen minutes elapsed before Officer Henry began the process of documenting whatever he listed, are additional factors indicating that this was not a true inventory.

Officer Laffoon's failure to completely and accurately document the property found in Williams' vehicle as required by the Kansas City Police Department inventory policy, and the behavior indicating that her objective was not to prepare an exhaustive property listing, are highly significant in determining whether this was a bona fide inventory search. "The policy or practice governing inventory searches should be designed to produce an inventory.'" Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990) (emphasis added). The underlying purpose of an inventory search is (or at least should be) to produce a report documenting the nature, and condition, of property being impounded, to protect the police department from spurious claims of lost or damaged property. Investigating officers' failure to properly record the property they find is a significant consideration in determining the bona fides of the inventory.

Permalink 05:29:19 pm, by fourth, 122 words, 352 views   English (US)
Categories: General

E.D.Pa.: Consent while police unlawfully in the consenter's house not valid

The court concludes that the officers are not believable and the officers were searching defendant’s apartment without a warrant or exigent circumstances when they obtained his consent which could not be voluntary. United States v. Johnson, 2012 U.S. Dist. LEXIS 155710 (E.D. Pa. October 31, 2012).

Notice of forfeiture provides due process so there is no Bivens claim for such forfeitures. Rankin v. United States, 2012 U.S. Dist. LEXIS 156034 (S.D. Miss. October 31, 2012).*

The SW was based on IP access to child pornography, and it was in somebody else’s name. That, however, does not invalidate the search warrant, and the cases defendant cites in his 2255 don’t support his claim. Ables v. United States, 2012 U.S. Dist. LEXIS 155220 (S.D. Ohio October 30, 2012).*

Permalink 01:52:26 pm, by fourth, 218 words, 464 views   English (US)
Categories: General

E.D.Ky.: In a drug trafficking case, it is a reasonable inference for an issuing magistrate that drugs and guns will be kept in the trafficker’s home

In a drug trafficking case, it is a reasonable inference for an issuing magistrate that drugs and guns will be kept in the trafficker’s home. United States v. Johnson, 2012 U.S. Dist. LEXIS 155885 (E.D. Ky. October 31, 2012), quoting United States v. Williams, 544 F.3d 683, 686 (6th Cir. 2008):

In a recent line of cases, we have held that an issuing judge may infer that drug traffickers use their homes to store drugs and otherwise further their drug trafficking. See, e.g., United States v. Miggins, 302 F.3d 384, 393-94 (6th Cir. 2002); see also United States v. Gunter, 266 Fed.Appx. 415, 419 (6th Cir. 2008) (unpublished decision) (noting that our precedents establish that there is a nexus between a drug dealer's criminal activity and the dealer's residence when there is reliable evidence connecting the criminal activity to the residence); United States v. Newton, 389 F.3d 631, 636 (6th Cir. 2004), vacated in part on other grounds, 546 U.S. 803, 126 S.Ct. 280, 163 L.Ed.2d 35 (2005) (holding that in cases involving drug traffickers engaged in "continuing operations," the "lack of a direct known link between the criminal activity and the residence[ ] becomes minimal"); United States v. Caicedo, 85 F.3d 1184, 1192-93 (6th Cir. 1996) (holding that there was probable cause based on an affidavit that stated, in the affiant's experience, many drug traffickers use their residences to conduct their drug trafficking activities). ...

Permalink 12:31:04 pm, by fourth, 263 words, 391 views   English (US)
Categories: General

D.Kan.: A "general statistical inquiry into the background of individual canine units" is discouraged

“[A] general statistical inquiry into the background of individual canine units” should be avoided by the courts. United States v. King, 2012 U.S. Dist. LEXIS 155647 (D. Kan. October 31, 2012):

The [Tenth Circuit] further cautioned against a general statistical inquiry into the background of individual canine units:

[I]t surely goes without saying that a drug dog's alert establishes probable cause only if that dog is reliable. But none of this means we mount a full-scale statistical inquisition into each dog's history. Instead, courts typically rely on the dog's certification as proof of its reliability. After all, it is safe to assume that canine professionals are better equipped than judges to say whether an individual dog is up to snuff. And beyond this, a dog's credentials provide a bright-line rule for when officers may rely on the dog's alerts – a far improvement over requiring them to guess whether the dog's performance will survive judicial scrutiny after the fact. Of course, if a credentialing organization proved to be a sham, its certification would no longer serve as proof of reliability. But the judicial task, we hold, is so limited: to assessing the reliability of the credentialing organization, not individual dogs. And in this case there is no suggestion that the California Narcotic Canine Association, the organization that credentialed the drug dog in this case, is all smoke and mirrors.

[United States v. Ludwidg, 641 F.3d 1243, 1251 (10th Cir. 2011)]. (emphasis added, citations omitted).

OK, so there is no defense to the alleged "well trained" drug dog?

Cop talk adopted by the court: Not "dog"; it's now "canine unit."

Permalink 12:27:02 am, by fourth, 178 words, 375 views   English (US)
Categories: General

AR: Reference to drug statute in SW for semen on sheets was a mere scrivener's error that could be ignored

A reference to the drug crimes statute in a search warrant was a mere scrivener’s error where the search warrant clearly was looking for semen on sheets. Magness v. State, 2012 Ark. App. 609, 2012 Ark. App. LEXIS 721 (October 31, 2012):

Appellant filed a motion to suppress the evidence seized during the search of his cabin based on his allegation that the warrant’s reference to section 5-64-401 in the description of the property to be seized rendered it defective. Highly technical attacks on search warrants are not favored because the success of such attacks could discourage law-enforcement officers from utilizing search warrants. [Moss v. State, 2011 Ark. App. 14, ___ S.W.3d ___.] Moreover, to uphold the validity of an affidavit made in support of a search warrant, it is not necessary that the affidavit be completely without inaccuracy as long as the inaccuracies are relatively minor when viewed in the context of the totality of the circumstances, including the affidavit taken as a whole and the weight of the testimony of the participants who procured and executed the search warrant. Moss, supra.

Permalink 12:02:57 am, by fourth, 147 words, 357 views   English (US)
Categories: General

Thursday in SCOTUS: Bailey argument

Atlantic.com: What the 'Bailey' Case May Reveal About Supreme Court Ideology by Daniel Epps:

Imagine that the police have a warrant to search a house. Could they detain you -- in handcuffs -- just because you happen to be driving away from that house before the search?

That's the issue in Bailey v. United States, which the Supreme Court will hear Thursday. (The case was originally scheduled for Tuesday, but umpire-in-Chief John Roberts declared a rainout due to Hurricane Sandy.)

Though the situation in Bailey is relatively rare, the way the Court decides the case could reveal a lot about the future of Fourth Amendment jurisprudence.

The case arose, like so many Fourth Amendment cases do these days, out of a narcotics investigation. Police got a tip that someone nicknamed "Polo" was selling drugs out of the basement apartment of a house in Islip, New York.

FourthAmendment.com

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (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)

2010-11 Term:
  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, 560 U.S. 746, 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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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"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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