Archives for: November 2012, 23


Permalink 08:29:29 am, by fourth, 240 words, 388 views   English (US)
Categories: General

TX1: 15-minute delay for DWI Task Force officer to arrive to do FSTs was reasonable

Defendant was stopped for drifting from lane to lane without signaling. The officer suspected DWI, and defendant did not challenge the initial stop. He did challenge the delay in waiting for a DWI Task Force officer to arrive to do the FSTs. The court found the delay reasonable under the circumstances. Bullock v. State, 2012 Tex. App. LEXIS 9625 (Tex. App. – Houston (1st Dist.) November 21, 2012) (not yet on court's website):

When a traffic stop detention is prolonged by a reasonable delay to comply with legitimate police policy, no Fourth Amendment violation has occurred. See Belcher, 244 S.W.3d at 539; Hartman, 144 S.W.3d at 573. 4 But the duration of the delay must be reasonable in light of the law enforcement purposes served. Texas courts of appeals that have reviewed delays for the same law enforcement purposes at issue here—increased experience and expediency in conducting DWI investigations and the need to have officers available to respond to emergency calls—have found delays of twenty minutes or more were reasonable with respect to the public policies served. See Belcher, 244 S.W.3d at 541-42 (holding twenty-seven minute delay while waiting for DWI officer did not violate Fourth Amendment). The delay here was approximately fifteen minutes—shorter than the delays in these cases. Like the delay in Belcher, the delay here was reasonable in light of the public policies served by the role of the DWI task force. See Belcher, 244 S.W.3d at 541-42.

Permalink 08:18:38 am, by fourth, 145 words, 351 views   English (US)
Categories: General

DE: 1" wad of cash and talk of selling something was RS under T.L.O.

The juvenile had an 1" thick wad of cash on him visible to a teacher, and he was talking to other students about selling something. While having a large amount of cash doesn’t violate school policy, it does create potential problems. That was reasonable suspicion for a search. Marijuana was found. The search was valid under T.L.O. State v. M.W., 2012 Del. Fam. Ct. LEXIS 70 (October 9, 2012).*

The search of defendant’s place was with valid third party consent. Motion to reconsider denied. United States v. Utley, 2012 U.S. Dist. LEXIS 166248 (E.D. Mich. November 21, 2012).*

Defendant was indicted in a RICO murder case, and the FBI went to arrest. They had a forfeiture warrant for her car, and they seized and searched it using inventory as a justification. The inventory was valid. United States v. Savage, 2012 U.S. Dist. LEXIS 166010 (E.D. Pa. November 20, 2012).*

Permalink 12:23:05 am, by fourth, 214 words, 402 views   English (US)
Categories: General

CA2: Knock and talk based on Colombian wiretaps and defendant's evasion justified warrantless entry

A Colombian wiretap gave highly specific information that a kilo of heroin was coming to a hotel room in Queens. Every detail gleaned from the wiretap proved to be accurate, and it played out as foretold. When the officers went to the motel room door, the evasive actions of defendant added to the probable cause. The warrantless entry was justified because the defendant was clearly aware the police were there for the heroin and it would be moved or destroyed if not seized right then. United States v. Moreno, 701 F.3d 64 (2d Cir. 2012).*

Defendant had a choice to consent between a blood draw by needle or a breath test. Since he said he was afraid of a needle, it is clear that he consented to a breath test. Fienen v. State, 2012 Tex. Crim. App. LEXIS 1597 (November 21, 2012).*

Defendant did not show that the searches were unlawful where defense counsel did not challenge them. As to an inventory, the record does not show that there was an inventory except for paperwork filled out saying it was from an inventory, and that at least shows an attempt at complying with standardized procedures. Defendant, at least, did not show the search to be invalid if his 2255 filing. Rosado v. United States, 2012 U.S. Dist. LEXIS 165609 (D. Mass. November 20, 2012).*

Permalink 12:12:44 am, by fourth, 401 words, 762 views   English (US)
Categories: General

TX: Officers' refusal to leave a disturbance call when it was obvious the homeowner was alone was unreasonable

Officers responded to a 12:30 am call of a disturbance at defendant’s apartment reported by neighbors hearing crashing sounds. When they arrived, they could see that she had trashed the place because she was upset that her boyfriend was cheating on her. She said she was alone, and officers had no reason to disbelieve her. She told them to leave four times. They waiting until “wants or warrants” came back clean in case there was a no contact order, which was found not to make sense. Their refusal to leave was unreasonable. Miller v. State, 393 S.W.3d 255 (Tex. Crim. App. 2012), dissents here and here:

The trial court's fact findings and conclusions of law state that the officers' presence in the apartment at the time they found the illegal substance was permissible as part of their investigation for domestic violence. But the record does not support this. Although it is undisputed that the officers' initial entry into the apartment was part of their investigation for domestic violence, it is also undisputed that they found no evidence of domestic abuse, appellant told them to leave four times, and the only reason that they did not leave was because they were waiting for a return on the warrant check on appellant. The officers' explanation for refusing to leave before they received the warrant check was, essentially, "But we always do it that way." This is insufficient justification for their continued presence, as is the state's argument that remaining in appellant's apartment was appropriate because the entire encounter was very short—under six minutes.

The state's brief suggests that the warrant check was part of the officers' domestic-violence investigation; they wanted to determine whether there was a protective order in place. No evidence, however, explains why a warrant check on the appellant would provide information about a protective order and, in their testimony, the officers never mentioned checking, or wanting to check, for a protective order.

The state's entire argument on appellant's second and third grounds is based on "the statutory obligations of law enforcement officers to investigate domestic violence and protect victims." Certainly, law-enforcement officers should investigate allegations of domestic violence and protect victims, but if such an investigation reveals that domestic violence was not involved and that there are no victims to protect, officers no longer have a sufficient legal basis for remaining in a residence over the objections of the resident.

Permalink 12:03:19 am, by fourth, 336 words, 448 views   English (US)
Categories: General

NC: Police look into backyard during attempted knock and talk violated curtilage

Officers were doing a knock and talk and got no answer. One of them decided to look into the backyard by going to the driveway to get a better view seeing potted plants he suspected were marijuana. They got a search warrant and came back. The appellate court rejects that this is a plain view. The state has been clear before that the backyard is curtilage. State v. Grice, 2012 N.C. App. LEXIS 1316 (November 20, 2012):

In this case, we decline to adopt the State's argument that the initiation of a valid "knock and talk" inquiry gave Detectives Guseman and Allen a lawful right of access to walk across Defendant's backyard in order to seize the plants. If we were to adopt such an approach, it would be difficult to articulate a limiting principle such that "knock and talk" investigations would not become a pretense to seize any property within the home's curtilage, so long as that property otherwise satisfied the remaining prerequisites for seizure under the plain view doctrine. As this Court has observed, "[t]he implication that police officers have the right to seize any item which comes into their plain view at a place they have a right to be is fraught with danger and would sanction the very intrusions into the lives of private citizens against which the Fourth Amendment was intended to protect." State v. Bembery, 33 N.C. App. 31, 33, 234 S.E.2d 33, 35, disc. review denied, 293 N.C. 160, 236 S.E.2d 704 (1977). Accordingly, we hold the trial court erred in its conclusion that no Fourth Amendment violation resulted from the seizure in light of the fact "Detective Allen visually observed what he believed to be marijuana plants in plain view."

In the alternative, the State argues that since the trial court found the detectives' seizure of the plants "was to prevent their destruction," that the seizure was valid under the "exigent circumstances" exception to the warrant requirement. We disagree, because no evidence was presented at trial to support the trial court's finding to that effect.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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2012-13 Term:
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  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)
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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)
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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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