Archives for: November 2012, 21


Permalink 07:07:23 am, by fourth, 240 words, 434 views   English (US)
Categories: General

M.D.Ala.: Way cash was packaged supported reasonable cause it was possessed for acquiring drugs

Claimant admitted smoking marijuana two hours before his traffic stop as an explanation for the smell of marijuana in the car. He admitting having cash, but when it was found there was more than he admitted and it was packaged strangely. That was reasonable suspicion of use of the money for drug acquisition for seizure for forfeiture. United States v. Nineteen Thousand Eight Hundred Fifty Five ($19,855.00) Dollars in United States Currency, 2012 U.S. Dist. LEXIS 164737 (M.D. Ala. November 19, 2012)*:

Though there is nothing criminal about carrying large sums of money, even in unconventional ways, the characteristics of the res and its packaging offer the best support for the reasonable belief that a substantial connection existed between the res and illegal activity. First, Claimant carried approximately twice the amount of cash he first told officers he was carrying; his bag contained almost $20,000 rather than the $8,000 to $10,000 he first indicated. Second, the money was divided into stacks, secured with rubber bands, and stashed inside a microwave popcorn box carried in his backpack. "A common sense reality of everyday life is that legitimate businesses do not transport large quantities of cash rubber-banded into bundles and stuffed into packages in a backpack." United States v. $242,484, 389 F.3d 1149, 1161 (11th Cir. 2004). The facts sufficiently and plausibly support a reasonable belief that the res was furnished or intended to be furnished in exchange for illegal drugs, or that it was otherwise traceable to the illegal drug trade.

Permalink 06:52:55 am, by fourth, 123 words, 446 views   English (US)
Categories: General

OH2: Not being on the rental car paperwork and not knowing renter was RS

The officer had reasonable suspicion to continue the stop where defendant and his passenger were in a brand new rental car, neither was on the paperwork, and they didn’t know the name of the renter. State v. Jalloh, 2012 Ohio 5314, 2012 Ohio App. LEXIS 4636 (2d Dist. November 16, 2012).

Because digital camera can record videos, a digital camera is seizable under a search warrant for “video recording devices.” United States v. Carson, 2012 U.S. Dist. LEXIS 165041 (C.D. Ill. November 19, 2012),* R&R 2012 U.S. Dist. LEXIS 168149 (C.D. Ill. October 25, 2012).

Defendant’s consent to DUI test was valid where he signed two consent forms that said it was voluntary, and he was not in custody when he signed. State v. Doyle, 139 Conn. App. 367, 55 A.3d 805 (2012).*

Permalink 06:20:29 am, by fourth, 556 words, 401 views   English (US)
Categories: General

NY: Defense needs to seek the inventory policy rather than just complain testimony was vague

The officer did not produce the inventory policy and testified vaguely to it. Since the defense did not ask for it, the court can’t say the inventory was unconstitutional. The inventory itself will not be micro-managed by the courts. “The inventory here, while not a model, was sufficient to meet the constitutional minimum.” Also, policy was to impound a vehicle if the driver had no valid DL and the owner was not present. Since neither the driver nor passenger mentioned a word about the owner, the officer wasn’t constitutionally obligated to inquire. People v. Walker, 2012 NY Slip Op 7851, 20 N.Y.3d 122, 957 N.Y.S.2d 272, 980 N.E.2d 937 (2012):

Neither defendant nor his girlfriend asked the trooper if the girlfriend could drive the car, or told him that she had a driver's license and the owner's permission to drive it. The trooper was not required, as a matter of constitutional law, to raise the question, or to initiate a phone call to the owner. To impose such a requirement on police in such situations would not only create an administrative burden, but would involve them in making (and the courts in reviewing) difficult decisions in borderline cases. If a person present claims to have the owner's permission to drive, must the police take her word for it? If the owner is called and does not answer immediately, must police wait for a call back? It is reasonable for the police to institute clear and easy-to-follow procedures that avoid such questions.

. . .

Defendant's argument focuses on several alleged deficiencies in the proof relating to the inventory search: the written policy that governed the search was never produced; the state trooper's description of the policy was very vague; and the descriptions of the returned property on the inventory form — "misc. items" and "paperwork" — would be of limited usefulness in the event the car's owner claimed that some of her property was missing. These criticisms are not without force. Certainly, it would be better for a prosecutor seeking to prove the existence of a written policy to put a copy of the policy into evidence. On the other hand, defense counsel could have demanded that the policy be produced to help her cross-examine the trooper. She did not do so.

When a car has been lawfully impounded, the reasonable expectation of the person who was driving it that its contents will remain private is significantly diminished. In such a case, the driver presumably expects the police to find whatever is in the car. Galak, Johnson and Gomez establish that this does not give the police carte blanche to conduct any search they want and call it an "inventory search." The police must follow a reasonable procedure, and must prepare a "meaningful inventory list" (Johnson, 1 NY3d at 256). But it would serve little purpose for courts to micro-manage the procedures used to search properly impounded cars. The United States Supreme Court implicitly recognized as much in Bertine, by upholding as constitutionally valid a search producing what a trial court had found to be a "somewhat slipshod" inventory (479 U.S. at 369; see id. at 383 [Brennan, J., dissenting] [describing the inventory's deficiencies]). The inventory here, while not a model, was sufficient to meet the constitutional minimum.

Compare State v. Williams, 382 S.W.3d 232 (Mo. App. 2012), posted 11/1 with a different view of inventory.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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2011-12 Term:
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  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)
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  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
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  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)

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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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