Archives for: November 2012, 07


Permalink 09:54:22 am, by fourth, 324 words, 488 views   English (US)
Categories: General

CA5: Wearing a bandana over one's face on a transit train justified stop and frisk

DART transit operators called central control that two men got on a train wearing bandanas over their faces. Customers were fearful of a robbery. A transit police officer swept the train finding them, and they had reasonable suspicion for a frisk when the defendants were found. The call was not treated as an anonymous call, and the choice of wearing a bandana over one’s face justified the officer’s actions. The district court was not clearly wrong. While defendant claimed it was cold, video of the stop and frisk showed officers in short sleeves. United States v. Roberson, 496 Fed. Appx. 390 (5th Cir. 2012):

Third, Roberson argues that his attire--that is, the bandana covering his face--was not a legitimate basis for reasonable suspicion. He does not cite any case law holding that attire is an inherently inappropriate factor for a reasonable suspicion calculus. Roberson's principal contention regarding his attire is that there are reasons other than robbery that he might have been wearing a bandana, namely that it was cold. During the suppression hearing, Roberson presented evidence that a cold front had developed in Dallas that evening, and that at the time he boarded the DART train, the temperature was possibly 40 degrees Fahrenheit with wind chill, and that the inside temperature of the train was roughly similar. On the other hand, the train conductor and Officer Ibarra testified that it was not that cold on the train and that the train had a heater. The Government also presented video evidence that while some officers were wearing jackets on the scene, others were wearing short sleeves. This conflicting evidence does not clearly support Roberson's portrayal of the events, and thus we defer to the district court's resolution of the facts, since the court was uniquely situated to determine the credibility and reliability of the testimony. The district court did not clearly err in finding that Roberson was wearing the bandana for reasons unrelated to the weather.

Permalink 09:38:31 am, by fourth, 277 words, 425 views   English (US)
Categories: General

CA7: Entry into defendant's fenced backyard two hours after a shooting was still justified under exigency

Officers saw bullet holes in a car next to defendant’s fenced backyard and shell casings. While two hours had passed and there were 20 officers in the area, the entry was justified because of the risk of a wounded person, not a gunman. United States v. Schmidt, 700 F.3d 934 (7th Cir. 2012):

At the time of the search, gunshots had recently been heard in the neighborhood. Bullet holes were in a car that was adjacent to the backyard, bullet holes were in the 1424/1426 duplex itself, and there was a trail of about nine spent casings on the ground nearby, including five right next to the 1424/1426 duplex and one in the yard. These circumstances, taken together, made it reasonable for an officer to believe, at the time of the search, that people in the backyard area may have recently been shot and in need of immediate aid.

Schmidt principally argues that by the time of the search, two hours had already passed since the shots were fired and over 20 officers had blanketed the block. But the prime exigency in this case was the potential for wounded victims, not necessarily the threat of further shooting. If a victim had been shot in the yard, as a reasonable officer could have suspected, that victim would not have become any less wounded after two hours had passed; to the contrary, he would need immediate aid. It would not have made sense for an officer to wait for a warrant when a shooting victim could have been dying in the yard, and the officer also did not need to know that someone had actually been shot in order to go into the yard. ...

Permalink 09:22:25 am, by fourth, 265 words, 380 views   English (US)
Categories: General

E.D.Ark.: Mere opinion evidence would be found in a digital camera found in a car searched with a warrant was not probable cause

Officers got a valid warrant for defendant’s car for evidence linked to a shooting. In the car they found a digital camera, and they looked at pictures. Then they got a warrant for the camera, opining that there might be evidence on the camera. There was no showing of any reason to believe evidence would be found on the camera. The good faith exception was also inapplicable. United States v. Alkhaldi, 2012 U.S. Dist. LEXIS 158870 (E.D. Ark. September 18, 2012), adopted 2012 U.S. Dist. LEXIS 158874 (E.D. Ark. November 6, 2012):

In this instance, the LRPD detective's declaration in the affidavit that "[i]t is believed that this camera is now concealing possible evidence of a crime" could not have been made without his premature and undisclosed search of the camera. Without that initial unauthorized search of the camera, his truthful representation to the issuing judicial officer would have been consistent with his testimony at the suppression hearing, that being, he did not suspect that there would be evidence in the camera until he looked in it. Under the state of facts, as the detective knew them to be, his belief in the existence of probable cause was entirely unreasonable.

The motion to suppress the evidence obtained from the execution of the car warrant should be denied. See Document 25. The motion to suppress the evidence obtained from the execution of the camera warrant, though, should be granted. See Document 16. Alkhaldi's supplemental motion to suppress should be denied as moot. See Document 17.

[Disclaimer: My case. Government didn't object to R&R, which was adopted yesterday. JT Tuesday.]

Permalink 09:13:33 am, by fourth, 149 words, 424 views   English (US)
Categories: General

D.Ariz.: Arrest on a business parking lot justified tow and inventory of vehicle

Defendant was arrested on a fast food restaurant parking lot, and it was appropriate for the officers to tow and inventory the vehicle under Ninth Circuit precedent. Also, defendant’s sister was called about getting the car, but she wouldn’t come until the following day. United States v. Sequeira, 2012 U.S. Dist. LEXIS 158636 (D. Ariz. September 28, 2012).*

Defendant’s consent was voluntary; defendant told the officers where the firearms were and provided the key to get in. United States v. Yonts, 2012 U.S. Dist. LEXIS 158911 (E.D. Ky. November 6, 2012).*

The security sweep of defendant’s garage was proper. The officers properly looked behind things for persons, and there they found hidden marijuana. This was called a “second” sweep by one of the officers, but the court finds that it was a continuation of the initial sweep. United States v. Sinclair, 2012 U.S. Dist. LEXIS 158445 (W.D. N.Y. November 2, 2012).*

Permalink 08:39:59 am, by fourth, 250 words, 396 views   English (US)
Categories: General

D.Mont.: Defendant's attempt to delete files from computer justified its seizure without a warrant

Officers had information that child pornography had been received at defendant’s house via the Internet, so they did a knock-and-talk. Defendant was then attempting to delete files to the recycle bin, so the officers decided to take the computer without a warrant for safekeeping. While the files were not being permanently deleted from the computer, that wasn’t determinative. United States v. Ma, 2012 U.S. Dist. LEXIS 158775 (D. Mont. November 6, 2012):

The court finds that the agents' decision to take the computer with them did not violate the Fourth Amendment. Whether or not Ma's actions could have permanently destroyed the evidence of child pornography is not the question here. Ma's actions, taken immediately after he was informed that the agents were looking for evidence of possession of child pornography, made it reasonable for the agents to believe he was attempting to destroy evidence, regardless of the language in which the files were captioned. Ma points to no authority stating that agents in the field are required to have a sophisticated understanding of computer technology or absolute certainty about whether Ma's actions were reversible. Furthermore, the court notes that once the computer was seized by law enforcement, nothing was done to access its files until the search warrant was issued. This action adds to the reasonableness of the agents' actions, a critical inquiry under the Fourth Amendment. See Kentucky v. King, __ U.S. __, 131 S.Ct. 1849, 1856 (2011) ("The ultimate touchstone of the Fourth Amendment is 'reasonableness'") (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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2013-14 Term:
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  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."

"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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