Archives for: December 2012, 01


Permalink 11:55:03 am, by fourth, 200 words, 528 views   English (US)
Categories: General

D.D.C.: SW for robbery proceeds not stale just because a wily robber might dispose of the proceeds

Defendant’s claim that the AUSA’s signature on warrant papers is constitutionally meaningless even if it was true. Similarly, the fact the affidavit was signed on one day before one judge and the warrant issued on another day before another judge does mean anything. The information about a robbery in this case wasn’t stale; just because the robber could have disposed of the proceeds doesn’t mean that he would. It was within a really short time after the robbery. United States v. Burroughs, 2012 U.S. Dist. LEXIS 169066 (D. D.C. November 29, 2012).*

Probable cause existed for defendant’s arrest, and it was more than mere propinquity (Ybarra). He was known to have driven the co-defendant to a drug deal, and the CI said that more than one person would be coming. The DEA also had prior information about defendant dealing heroin. United States v. Nunez, 2012 U.S. Dist. LEXIS 169893 (W.D. N.Y. February 9, 2012).*

Nervousness and four cell phones, two of which were prepaid, and conflicting travel plans between the passenger and driver was reasonable suspicion to detain for 13 minutes for a drug dog to arrive which was also reasonable. United States v. Vaughan, 700 F.3d 705 (4th Cir. 2012).*

Permalink 11:09:37 am, by fourth, 159 words, 463 views   English (US)
Categories: General

CA2: Motorcycle checkpoint shown justified by special needs

A motorcycle checkpoint program in New York State was shown to be justified by special needs. Wagner v. Sprague, 489 Fed. Appx. 500 (2d Cir. 2012) [but this is a memorandum opinion with no facts].

The government justified a protective sweep of defendant’s house by showing his history of violence. This one took less than two minutes. United States v. Davis, 906 F. Supp. 2d 545 (S.D. W.Va. 2012)*:

The officers' check of the rooms was prudent, cursory, and over and done with in about two minutes. Given the Defendant's past history of violence, his evasive behavior upon the officers' arrival at the home, and the presence of a fully loaded assault weapon fitted with a large, unsheathed bayonet that was within easy reach of a potential hidden attacker, the officers had every reason to be concerned for their safety. In light of these facts, the officers' limited precautionary check of the spaces immediately adjoining the point of arrest was constitutionally reasonable.

Permalink 10:58:10 am, by fourth, 126 words, 455 views   English (US)
Categories: General

OR: Automobile exception only applies to vehicles, not the occupants

The automobile exception applies to vehicles, not their occupants, and the state confesses error based on United States v. Di Re, 332 U.S. 581, 586-87 (1948). State v. Freeman, 253 Ore. App. 472, 290 P.3d 908 (2012).

Defendant was seized by being ordered by loudspeaker to come out of the house, but there was probable cause to believe that he was involved in crime because the house was a murder scene, police knew an unidentified man was in there, and he wasn’t answering the telephone when they called the house. State v. Hudson, 253 Ore. App. 327, 290 P.3d 868 (2012).*

Defendant was lawfully stopped for blocking the street, and the officer could order defendant out of the vehicle, and that revealed a gun in plain view. State v. Kinard, 105 So. 3d 974 (La. App. 5 Cir. 2012).*

Permalink 08:49:25 am, by fourth, 155 words, 549 views   English (US)
Categories: General

MD: Violation of state SCA not subject to exclusion for lack of standing in provider information

The state violated the Maryland Stored Communications Act, similar to the federal Stored Communications Act, in obtaining cell phone provider created information about his account by a state subpoena served out of state. He has no reasonable expectation of privacy in that information, so the evidence is not excluded. While the state did not explicitly raise standing in the trial court, the trial court found a lack of standing. Defendant’s argument that he did not have an opportunity to provide standing fails because he wouldn’t have standing as a matter of law, and this is harmless error if error at all. Upshur v. State, 208 Md. App. 383, 56 A.3d 620 (2012).

Defendant was stopped because he was suspected of being a hack taxi and threatening his passenger. He denied everything. In a patdown, the car keys in his pocket were subject to “plain feel” connecting him to the hack taxi. McCracken v. State, 429 Md. 507, 56 A.3d 242 (2012).*

Permalink 08:33:16 am, by fourth, 336 words, 464 views   English (US)
Categories: General

W.D.Wash.: Franks reckless disregard shown

Franks “reckless disregard” was shown in a wiretapping case. Here, the issue was the government’s claim they could not use additional GPS devices in exhausting other investigative techniques, and then actually did after that. United States v. Hamilton, 2012 U.S. Dist. LEXIS 169290 (W.D. Wash. November 16, 2012). Examples of Franks reckless disregard from the Ninth Circuit used to aid the analysis:

In Stanert, the Ninth Circuit held that an affiant acted with reckless disregard for the truth when he stated that a suspect had been arrested without mentioning that the suspect was not convicted, and stated that he investigated a lab blowup at the suspect's residence a year before without mentioning the suspect had purchased and moved into the residence after the explosion. 762 F.2d at 782. Similarly, in U.S. v. Chesher, the Ninth Circuit held that the affiant acted with reckless disregard for the truth by representing that a suspect was a current member of the Hell's Angels when affiant had been conducting an investigation for some time which would have apprised him that was untrue. 678 F.2d 1353, 1361 (9th Cir. 1982). In U.S. v. Davis, the Ninth Circuit held that an affiant acted with reckless disregard for the truth when he signed an affidavit written in the first person knowing that it would mislead the magistrate judge into believing he had first-hand knowledge of the facts therein. 714 F.2d 896, 899-901 (9th Cir. 1983). By contrast, in U.S. v. Dozier, the Ninth Circuit held that the trial court's finding that an affiant acted with negligence, rather than reckless disregard for the truth, was "not clearly erroneous." 844 F.2d 701, 705 (9th Cir. 1988). In that case, the affiant misrepresented the defendant's prior criminal history because he did not know how to read the rap sheets. He also falsely stated that another agent had told him that he had seen two vehicles on the defendant's property registered to drug suspects, when in fact, the affiant had conducted a registration check and knew this was not true. See id. at 705-06.

Permalink 08:21:06 am, by fourth, 283 words, 723 views   English (US)
Categories: General

D.Ariz.: Use of a pole camera for surveillance from off property not a violation of REP

Surveillance of comings and goings to defendant’s apartment with a pole camera does not constitute a “trespass” under Jones. United States v. Brooks, 911 F. Supp. 2d 836 (D. Ariz. 2012):

Additionally, as argued by the Government, despite a block wall that could potentially act as an enclosure or barrier that could obstruct the view of a person standing on the outside of the Westgate complex, the typical focal point of the pole camera was visible to any passerby inside the complex or to any person in the arena parking lot. In fact, Detective Kinsey testified that the complex's outer wall also had iron openings that allowed for easy visibility of Building "L" for someone standing outside of the complex. Defendant presented no evidence to rebut Detective Kinsey's testimony that he could simply walk into the complex from the street, leaving Defendant's assertions about the apartment community's keypad access as insufficient to show that there were special features or activities associated with the Westgate complex parking lot to support a reasonable expectation of privacy in the parking lot.

The evidence points to the fact that a person would not be required to be a complex resident to see the "comings and goings" at the Glendale Apartment, and any expectation of privacy by Defendant in the complex parking lot in front of Building "L" from surveillance was unreasonable. Therefore, law enforcement's use of the pole camera did not violate the Fourth Amendment and, thus, there was no need for law enforcement to seek a warrant before using the camera.

Defendant had been Mirandized and told he could refuse consent, so his consent is found voluntary. United States v. Brooks, 2012 U.S. Dist. LEXIS 168734 (D. Ariz. November 28, 2012).*

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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:
  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)
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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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