Archives for: December 2012, 05


Permalink 08:01:46 am, by fourth, 355 words, 674 views   English (US)
Categories: General

CA9: Gated front yard clearly curtilage by common experience and applying Dunn

Plaintiffs’ gated front yard was curtilage, and the officer had to know it. Kicking open the gate hitting plaintiff was unreasonable. Sims v. Stanton, 706 F.3d 954 (9th Cir. 2012), amended January 16, 2012:

Sims's small, enclosed, residential yard is quintessential curtilage. "[A] small, enclosed yard adjacent to a home in a residential neighborhood [] is unquestionably such a 'clearly marked' area 'to which the activity of home life extends,' and so is 'curtilage' subject to the Fourth Amendment protection." Struckman, 603 F.3d at 739 (quoting Oliver, 466 U.S. at 182 n.12). Because Sims's front yard obviously meets the definition of curtilage, the district court did not need to analyze it under the factors announced by the Supreme Court in United States v. Dunn. 480 U.S. at 294. These factors serve as "useful analytical tools" to ensure that Fourth Amendment protections extend to areas that are much further from the house but that still should be "treated as the home itself." Id. at 300-01. Here, however, the factors are unnecessary because it is "easily understood from our daily experience" that Sims's yard is curtilage.4 Oliver, 466 U.S. at 182 n.12; see also Struckman, 603 F.3d at 739.

4 Of course, applying the Dunn factors to Sims's yard leads to the same result. The first factor, "the proximity of the area claimed to be curtilage to the home," id. at 301, is met because her front yard is adjacent to her home and extends only a short distance. The second factor, whether the area is "included within an enclosure surrounding the home," id., is met because a tall wooden fence encloses both her front yard and her home. Sims meets the third factor, "the nature of the uses to which the area is put," id., because Sims stated that she enjoyed a high degree of privacy in her front yard, that she used it to store her wheelchair, and that she entertains guests there. The final factor, "steps taken by the resident to protect the area from observation by people passing by," id., is met because the gate that Stanton kicked in was a "sturdy, solid wood," six-foot-high fence with narrow slats between the planks of wood.

Permalink 07:54:51 am, by fourth, 525 words, 1595 views   English (US)
Categories: General

CA6: Fourth Amendment does not recognize de minimus intrusions of the home

One defendant in this § 1983 case argued that his entry into plaintiffs’ home was de minimus and, therefore, reasonable. The Sixth Circuit disagreed that a de minimus entry is reasonable, finding support in Payton and Steagald. Andrews v. Hickman County, 700 F.3d 845 (6th Cir. 2012):

Finally, Wade argues that his actions were de minimis and thus qualify for an exception where conduct that technically qualifies as a warrantless search or seizure may be found reasonable and thus excused due to the minor nature of the violation. The de minimis rationale has been recognized in limited circumstances. See, e.g., United States v. Jacobsen, 466 U.S. 109, 125, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). Wade cites Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001), to support his claim that his intrusion was de minimis and reasonable. However, McArthur is clearly distinguishable from Wade's alleged conduct. McArthur involved the temporary seizure of an individual and a trailer while law enforcement officers obtained a search warrant. The officers had been told by the individual's wife that she had just seen the individual in question hide drugs in the trailer in which he lived. Id. at 329. An officer then proceeded to prevent the individual from reentering the trailer for the two hours it took another officer to obtain a warrant. Id. Unlike the officer in McArthur, Wade and Chessor did not enter the Andrews' home to preserve the status quo while a warrant was sought. Wade had no intention of seeking a warrant or preserving evidence when he stepped into the Andrews' home. In addition, Wade's entry into the home was not de minimis. Under either his account or that of the Plaintiffs, he fully entered the Andrews' home, unlike the officer in McArthur who remained in the doorway observing the individual when he was allowed to reenter the trailer for cigarettes and to use the phone. See id. Further, Wade cannot rely on cases such as United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984), which held that the destruction of a small amount of cocaine during a field test of the substance was a de minimis seizure, because his violation is an invasion of a different degree. Indeed, even in Jacobsen the Supreme Court emphasized that, despite its holding, "where more substantial invasions of constitutionally protected interests are involved, a warrantless search or seizure is unreasonable in the absence of exigent circumstances." 466 U.S. at 125 n.28. The Court cited Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980), and Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981), to support the proposition, suggesting that cases implicating warrantless in-home searches and arrests are not appropriate for de minimis arguments. See id.

Wade carried out a warrantless, non-consensual entry into the Andrews' home. As Payton instructs, "the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." 445 U.S. at 590. Viewing the record in the light most favorable to the Andrews, a violation of the Andrews's Fourth Amendment right to be free from unreasonable searches and seizures has been shown.

Permalink 07:38:26 am, by fourth, 176 words, 337 views   English (US)
Categories: General

LA: Entry through open door of unoccupied house to extinguish candles reasonable; plain view sustained

Defendant was Tasered and arrested outside his own house at night in an area known for burglaries and trespasses. He said the house was his, and the door was ajar. The officers acted reasonably by going to the open door and calling out for anyone inside. They pushed the door open and saw lit candles. It was reasonable to enter to extinguish them because of the risk of fire if left unattended too long. Cocaine was in plain view, and the entry was reasonable under all the circumstances. State v. Washington, 2012 La. LEXIS 3083 (La. November 16, 2012).*

Use of a PBT to determine a minor in possession case was waived where not presented to the trial court. In re J.J.M., 2012 Ohio 5605, 2012 Ohio App. LEXIS 4844 (7th Dist. December 3, 2012).*

The evidence supported the trial court’s finding that defendant consented to a search of her person for drugs during a stop. City of Ashland v. Zehner, 2012 Ohio 5545, 2012 Ohio App. LEXIS 4826 (5th Dist. November 29, 2012).* Same; search of a house. State v. Jackson, 2012 Ohio 5548, 2012 Ohio App. LEXIS 4827 (5th Dist. November 29, 2012).*

Permalink 07:16:18 am, by fourth, 200 words, 308 views   English (US)
Categories: General

CT: Error in time on issuance of SW a "mere technicality" that can be overcome by state

Incorrect time of issuance on the search warrant was a “mere technicality” and a scrivener’s error that could be overlooked by the state proving the correct time. State v. Thompson, 307 Conn. 567, 57 A.3d 323 (2012); State v. Jevarjian, 307 Conn. 559, 58 A.3d 243 (2012) (Also, parking an RV at the house of another did not give one standing to contest the search of the entire house as an overnight guest. It presented a moot question on the RV which still supported the guilty plea.):

Turning first to the defendant's claim that the trial court improperly relied on parol evidence to determine whether a scrivener's error was made, we previously have observed that, "although probable cause must be determined from the four corners of the warrant, we are not confined to the four corners of the warrant in determining whether the affidavit in support of probable cause has been validly executed." State v. Colon, supra, 230 Conn. 34. Mere technical defects are likewise insufficient to invalidate an otherwise valid search warrant. See, e.g., State v. Browne, 291 Conn. 720, 743-44, 970 A.2d 81 (2009). Accordingly, we do not agree with the defendant that the trial court's reliance on parol evidence to determine the timing of the warrant's execution was improper.

Permalink 06:54:47 am, by fourth, 178 words, 1443 views   English (US)
Categories: General

Cal.: Parole search of car extends anywhere parolee could keep his stuff

Parole search of a car extends where the parolee could keep his stuff. People v. Schmitz, 55 Cal. 4th 909, 149 Cal. Rptr. 3d 640, 288 P.3d 1259 (2012):

This case involves the constitutional limits of a vehicle search based on a passenger's parole status. Here, an officer, aware that the front seat passenger was on parole, searched the backseat of defendant's car and recovered drugs and drug paraphernalia from a chips bag and a pair of shoes. Defendant, the driver, sought to suppress that evidence. We conclude that the search was reasonable under the Fourth Amendment to the United States Constitution. We hold that the Constitution permits a search of those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity. Additionally, the officer may search personal property located in those areas if the officer reasonably believes that the parolee owns those items or has the ability to exert control over them.

Court of Appeals reversed. People v. Schmitz, 187 Cal. App. 4th 722, 114 Cal. Rptr. 3d 490 (4th Dist. 2010).

Permalink 06:53:44 am, by fourth, 117 words, 326 views   English (US)
Categories: General

OH9: SW didn't permit search of persons outside of house

The trial court correctly determined that the search of defendant was outside the specific terms of the search warrant because he was not inside the house at the time of the search. The warrant was otherwise issued with probable cause. State v. Stambaugh, 2012 Ohio 5568, 2012 Ohio App. LEXIS 4832 (9th Dist. December 3, 2012).*

The trial court’s finding on credibility is almost unassailable, and here it was against the officer on consent. Affirmed. State v. Evans, 2012 Ohio 5485, 2012 Ohio App. LEXIS 4763 (9th Dist. November 28, 2012).*

State court pen registers were valid because they said they were to be conducted within the jurisdiction of the state court that authorized them. 18 U.S.C. § 3123(b)(1)(B). United States v. Mamalis, 498 Fed. Appx. 240 (4th Cir. 2012).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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Search and seizure law consulting

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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:
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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  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
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  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."

"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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