Archives for: November 2012, 17
11/17/12
W.D.N.Y.: Count in indictment of maintaining drug premises does not automatically confer standing; affidavit still needed
Defendant was named in the indictment with using and maintaining drug premises, but this alone was not enough to give him standing to get a hearing on a motion to suppress. He still had to file an affidavit showing his connection to the property to give him standing. “However, ‘[a] defendant's unsworn assertion of the Government's representations does not meet [his] burden’ to establish standing to contest the search.” United States v. Marshall, 2012 U.S. Dist. LEXIS 163606 (W.D. N.Y. November 9, 2012).
The CI’s support of reliability was thin, but just barely gets over the hurdle for reasonable suspicion to justify the stop of the vehicle defendant was riding in. United States v. Osorieo-Torres, 2012 U.S. Dist. LEXIS 163901 (D. Kan. November 13, 2012).*
Defendant normally can’t raise an IAC claim on direct appeal. Here, even if he could, he’d lose on the merits. Two issues: (a) typo in a date wasn’t prejudicial; (b) items not listed in the SW were listed in the attached affidavit. United States v. Scott, 2012 U.S. App. LEXIS 23454 (3d Cir. November 15, 2012).*
MA: Nexus was shown for SW for house by defendant going to place of meet right from house
Nexus for a search warrant for defendant’s house was shown by the fact she left her house to go the place for the meet for a prearranged drug deal minutes after the call from the buyer. In other deliveries, she went from the place of the delivery back home. Commonwealth v. Tapia, 463 Mass. 721, 978 N.E.2d 534 (2012).
Once a drug dog alerted, the more intensive search of the car was valid. [Also, this case involved letting the officer testify that defendant’s multiple cell phones, empty pill bottles, and car rental agreements were indicative of drug dealing.] State v. Brooks, 2012 Ohio 5235, 2012 Ohio App. LEXIS 4580 (3d Dist. November 13, 2012).*
Defendant conceded that he was speeding, and that justified his stop. The stop was not overlong and was continued on reasonable suspicion. “Within minutes of the initial traffic stop, Norton provided Agent Campbell with a travel itinerary that seemed improbable; shortly thereafter, Comegys provided a different improbable itinerary and appeared nervous while searching for the car rental agreement.” United States v. Comegys, 2012 U.S. App. LEXIS 23364 (3d Cir. November 14, 2012).*
FL4: Defendant had not abandoned a sweatshirt he was handing to another
Defendant was confronted by the police walking in a park with a companion. As the officer got close, he handed the sweatshirt in his hand to his companion and the officer grabbed it. Defendant’s hand was still on it, so that was not an abandonment, and he still had control over it. The seizure was invalid. B.L. v. State, 2012 Fla. App. LEXIS 19731 (Fla. App. 4th DCA November 14, 2012).*
Officers had information from a good source that defendant was at a particular address, and they had an arrest warrant. They knocked at the door, and nobody answered. They went to the back and found a man who said that Stoekel was the tenant. They went back to the front door, and Stoekel finally answered the door. He would not consent to an entry to search for defendant but he let the officers into the living room. Once in the living room, a discussion of the crime of harboring got Stoekel to point upstairs. That was consent to go upstairs, and defendant was found asleep with a gun next to him. That was valid consent. United States v. Collins, 699 F.3d 1039 (8th Cir. 2012).*
Defendant “indicated” during his valid stop that he was attempting to flee, and that supported an arrest and search incident. State v. Durham, 107 So. 3d 755 (La. App. 2 Cir. 2012).*
WSJ: "Affair Highlights Uncertainty of Email-Privacy Laws"
WSJ: Affair Highlights Uncertainty of Email-Privacy Laws by Ashby Jones and Joe Palazzolo:
The adultery scandal that short-circuited David Petraeus's career also shined a light on the peculiar legal standards governing the privacy of email.
According to U.S. officials, the Federal Bureau of Investigation obtained search warrants after developing probable cause that Mr. Petraeus's biographer, Paula Broadwell, may have sent harassing emails to Jill Kelley, who planned social events for military personnel in Tampa, Fla.
Probable cause for what? What's the federal crime?
E.D.Tenn.: Question to defendant whether gun was loaded was not a Miranda violation
Question to defendant whether gun was loaded was not a Miranda violation. United States v. Ashmore, 2012 U.S. Dist. LEXIS 161613 (E.D. Tenn. October 11, 2012).
A locked box in a car that was being towed was not subject to search at first, but it was as a part of the inevitable inventory, so it could have been searched then. The prior search was thus not illegal. United States v. Ashmore, 2012 U.S. Dist. LEXIS 161612 (E.D. Tenn. October 2, 2012).*
Probable cause for the search of defendant’s car was shown, so the search was valid under the automobile exception. United States v. Boyd, 2012 U.S. Dist. LEXIS 163187 (W.D. Pa. November 15, 2012).*
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by John Wesley Hall
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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, granted Nov. 9, argued Feb. 26
(ScotusBlog)
Missouri
v. McNeeley, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (Apr. 17) (ScotusBlog)
Bailey
v. United States, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (Feb. 19) (ScotusBlog)
Florida
v. Harris, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (Feb.
19) (ScotusBlog)
Florida
v. Jardines, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (Mar. 26) (ScotusBlog)
2011-12 Term:
Ryburn
v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (Jan. 23,
2012) (other
blog)
Florence
v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (April 2,
2012) (ScotusBlog)
United
States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (Jan. 23, 2012) (ScotusBlog)
Messerschmidt
v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (Feb. 22, 2012) (ScotusBlog)
Kentucky
v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (May 16, 2011) (ScotusBlog)
Camreta
v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (May 26, 2011) (ScotusBlog)
Ashcroft
v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (May 31, 2011) (ScotusBlog)
Davis
v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (June 16, 2011) (ScotusBlog)
2009-10 Term:
Michigan
v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (Dec. 7, 2009) (per
curiam) (ScotusBlog)
City
of Ontario v. Quon, 130 S.Ct. 2619, 177 L.Ed.2d 216 (June 17, 2010) (ScotusBlog)
2008-09 Term:
Herring
v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (Jan. 13,
2009) (ScotusBlog)
Pearson
v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (Jan. 21, 2009)
(ScotusBlog)
Arizona
v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (Jan. 26, 2009)
(ScotusBlog)
Arizona
v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (April 21, 2009)
(ScotusBlog)
Safford
Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174
L.Ed.2d 354 (June 25, 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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