Archives for: November 2012, 10

11/10/12

Permalink 11:15:48 am, by fourth, 80 words, 520 views   English (US)
Categories: General

WA: Gant applies to all pending cases

Gant is retroactive under the Washington Constitution and applies to all nonfinal cases. State v. Louthan, 175 Wn.2d 751, 287 P.3d 8 (2012).

Defendant’s postconviction claim of unsworn affidavits for search warrant is shown to be false. Johnson v. State, 2012 Fla. LEXIS 2276 (November 8, 2012),* connected case, Johnson v. State, 104 So. 3d 1010 (Fla. 2012).*

Defendant was found to have consented to an entry into his curtilage where the police waited and got permission to enter the yard. State v. Collins, 101 So. 3d 557 (La. App. 3 Cir. 2012).*

Permalink 10:45:58 am, by fourth, 210 words, 545 views   English (US)
Categories: General

D.Neb.: Merely talking to a parked motorist was not a seizure

Officers talking to a motorist parked in a Lexus in a high crime area to watch out was not a seizure. The officer walked around the car and saw the butt of a gun, but it turned out to be a BB gun. United States v. Mahr, 2012 U.S. Dist. LEXIS 161000 (D. Neb. October 22, 2012):

Taking the "position that a person is 'seized' for Fourth Amendment purposes whenever an officer interrupts what that person was otherwise doing is absurd." United States v. Tarantola, 332 F.3d 498, 499 (8th Cir. 2003). Merely attempting to attract a person's attention to further investigate suspected criminal behavior "does not implicate any Fourth Amendment interest, does not amount to a seizure, and thus falls outside the ambit of the Fourth Amendment." Tarantola, 332 F.3d 499-500 (knocking on glass door of laundromat is not a seizure). More specifically, an officer's attempt to make contact with individuals occupying a vehicle parked in a public place does not constitute a seizure. See Mabery, 686 F.3d at 596-97(citing cases) (finding no seizure where officer shined a spotlight on vehicle from the street); see also United States v. Barry, 394 F.3d 1070 (8th Cir. 2005) (finding no seizure where officer knocked on vehicle's window as it was parked in vacant parking lot behind a mall).

Permalink 12:15:48 am, by fourth, 164 words, 554 views   English (US)
Categories: General

GA: Cell provider's voluntarily relinquishing records in a recent double homicide was no ground to suppress

Georgia law limits access to cell phone records, and a double murderer was at large and the police were trying desperately to locate him. There is a statutory suppression remedy, but the telephone company turned them over voluntarily when asked by the police, in good faith. This obviated the suppression remedy. Registe v. State, 292 Ga. 154, 734 S.E.2d 19 (2012).*

“In light of Grimes, Reyes, and Newton, as well as subsequent district court precedent, it is crystal clear that the stalking horse theory is not a valid defense to warrantless searches of probationers, parolees, or individuals on supervised release in this Circuit.” United States v. Washington, 2012 U.S. Dist. LEXIS 159863 (S.D. N.Y. November 7, 2012).*

Plaintiffs sued the government exactly one year after their house was searched and their son arrested. The government was moved to be substituted 18 months later. The two year Federal Tort Claims Act statute of limitations ran on the government. Farmer v. United States, 2012 U.S. Dist. LEXIS 160405 (E.D. La. November 8, 2012).*

Permalink 12:01:49 am, by fourth, 211 words, 466 views   English (US)
Categories: General

D.Mont.: Defendant had standing in a mailed package even though the return address wasn't his

Defendant had standing to challenge the search of a mailed package even though the return address was not his name. United States v. Gardenier, 2012 U.S. Dist. LEXIS 160030 (D. Mont. November 7, 2012):

The parties do not dispute that Gardenier sent the package, even though the return label read "Jenny Harbinger." As the sender of the package, Gardenier had a legitimate expectation of privacy in it. She thus has standing to challenge the warrantless seizure of the package from the UPS facility and the subsequent search of the package at the Task Force headquarters.

A store security guard reported to the police, apparently without any factual justification, that somebody in a car was doing drugs. A police car pulled up behind the car, without blue lights on, but non-flashing white lights on the light bar. That still conveyed “Stay put” and was a seizure. The seizure was without factual justification. United States v. Gray, 2012 U.S. Dist. LEXIS 159292 (D. Kan. November 7, 2012).*

The facts are not in dispute, so defendant is not entitled to a hearing on his motion to suppress a probation search. It was a valid probation search. United States v. Muhammad, 903 F. Supp. 2d 132 (E.D. N.Y. 2012)*; United States v. Washington, 2012 U.S. Dist. LEXIS 159863 (S.D. N.Y. November 7, 2012).*

FourthAmendment.com

Notes on Use

November 2012
Sun Mon Tue Wed Thu Fri Sat
<< < Current > >>
        1 2 3
4 5 6 7 8 9 10
11 12 13 14 15 16 17
18 19 20 21 22 23 24
25 26 27 28 29 30  

Search

by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting
www.johnwesleyhall.com

© 2003-14, online since Feb. 24, 2003

HWC e
URL hits since 2010

~~~~~~~~~~~~~~~~~~~~~~~~~~

Fourth Amendment cases,
citations, and links

Latest Slip Opinions:
U.S. Supreme Court
(Home)
Federal Appellate Courts Opinions
  First Circuit
  Second Circuit
  Third Circuit
  Fourth Circuit
  Fifth Circuit
  Sixth Circuit
  Seventh Circuit
  Eighth Circuit
  Ninth Circuit
  Tenth Circuit
  Eleventh Circuit
  D.C. Circuit
  FDsys: Many district courts
  FDsys: Many federal courts
  FDsys: Other
  Military Courts: C.A.A.F., Army, AF, N-M, CG
State courts (and some USDC opinions)

Google Scholar
Advanced Google Scholar
Google search tips
LexisWeb
LII State Appellate Courts
LexisONE free caselaw
Findlaw Free Opinions
To search Search and Seizure on Lexis.com $

Most recent SCOTUS cases:
2009 to date:

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)


Research Links:
  Supreme Court:
  SCOTUSBlog
  S. Ct. Docket
  Solicitor General's site
  SCOTUSreport
  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
  Oyez Project (NWU)
  "On the Docket"–Medill
  S.Ct. Monitor: Law.com
  S.Ct. Com't'ry: Law.com

  General (many free):
  LexisWeb
  Google Scholar | Google
  LexisOne Legal Website Directory
  Crimelynx
  Lexis.com $
  Lexis.com (criminal law/ 4th Amd) $
  Findlaw.com
  Findlaw.com (4th Amd)
  Westlaw.com $
  F.R.Crim.P. 41
  www.fd.org

  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (pdf)

  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"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)


Misc

XML Feeds

What is RSS?

Who's Online?

  • ketitesetug Email
  • hyncassinny Email
  • jolosizezef Email
  • jineunreali Email
  • pyncnachind Email
  • illilmbiostus Email
  • cyperewly Email
  • tempouab8p Email
  • vomozigocog Email
  • carpinteyrocpl Email
  • abileachali Email
  • chaphsiperype Email
  • iteptinenna Email
  • excexycheetry Email
  • j5rqydkhcx Email
  • carpinteyrogve Email
  • carpinteyrohjl Email
  • fuhintoneetef Email
  • hildevavalm Email
  • spisyfoes Email
  • oppopezed Email
  • emunlinuifofs Email
  • driertyrord Email
  • exitiettwesee Email
  • shodiaded83 Email
  • repflielt Email
  • comeensuche Email
  • teartgrittink Email
  • immuctiohic Email
  • himbdyday Email
  • deannydwerm Email
  • boypepelelync Email
  • Guest Users: 114

powered by
b2evolution