Archives for: December 2012, 07


Permalink 03:29:17 pm, by fourth, 137 words, 430 views   English (US)
Categories: General

AOL AutoBlog: "White House clears way for NHTSA to mandate vehicle black boxes"

AOL AutoBlog: White House clears way for NHTSA to mandate vehicle black boxes by Jeremy Korzeniewski:

At present, over 90 percent of all new vehicles sold in the United States today are equipped with event data recorders, more commonly known as black boxes. If the National Highway Traffic Safety Administration gets its way, that already high figure will swell to a full 100 percent in short order.

Such automotive black boxes have been in existence since the 1990s, and all current Ford, General Motors, Mazda and Toyota vehicles are so equipped. NHTSA has been attempting to make these data recorders mandatory for automakers, and according to The Detroit News, the White House Office of Management Budget has just finished reviewing the proposal, clearing the way. Now NHTSA is expected to draft new legislation to make the boxes a requirement.

Permalink 09:12:39 am, by fourth, 573 words, 1963 views   English (US)
Categories: General

OH: An individual subject to an arrest warrant does not forfeit all expectations of privacy from illegal arrest

An individual subject to an arrest warrant does not forfeit all expectations of privacy from illegal arrest. State v. Gardner, 2012 Ohio 5683, 135 Ohio St. 3d 99, 984 N.E.2d 1025 (2012):

=> Read more!

Permalink 08:43:39 am, by fourth, 199 words, 420 views   English (US)
Categories: General

CA4: Where there's PC, officers telling the defendant they believed he had child pornography on his computer was exigency to seize it

Telling a person that he’s the target of a child pornography investigation creates exigency to seize his work computer so he won’t destroy what’s on it. Here, the officers told defendant they had probable cause against him. United States v. Brown, 701 F.3d 120 (4th Cir. 2012):

Based on their investigation, the detectives had probable cause to believe that any computer used by either Brown or Yarboro during their work shifts at Medical Transport harbored evidence of child pornography. Accordingly, when the Charlottesville detectives informed Brown that they were investigating internet crimes against children, they had probable cause to believe that Brown's laptop, which he possessed during his work shift, contained evidence of child pornography. See United States v. Place, 462 U.S. 696, 701 (1983) (recognizing that the Fourth Amendment permits a warrantless seizure of property "[w]here law enforcement authorities have probable cause to believe that [the property] holds contraband or evidence of a crime ..., if the exigencies of the circumstances demand it."). Following up on Brown's response, it was entirely reasonable for the officers to seize Brown's laptop – as they did – to prevent either it or its contents from being damaged or destroyed. See King at 1862.

Police created exigency?

Permalink 08:35:53 am, by fourth, 96 words, 515 views   English (US)
Categories: General

DE: Criminal impersonation arrest during traffic stop supports SI

Defendant was arrested for criminal impersonation for giving false name, address, and DOB to officer during a traffic stop, and that supported his search incident. Stafford v. State, 59 A.3d 1223 (Del. 2012).

Validity of consent issue is not one normally appealable by the state in Arkansas. State v. Myers, 2012 Ark. 453, 2012 Ark. LEXIS 486 (December 6, 2012)*; Same; consent in advance for parole search. State v. Jones, 2012 Ark. 454, 2012 Ark. LEXIS 484 (December 6, 2012).*

Trial court’s crediting officer’s testimony that defendant failed to stop at a red light was sufficient to justify a stop. State v. Turk, 2012 Tenn. Crim. App. LEXIS 985 (December 5, 2012).*

Permalink 08:15:02 am, by fourth, 134 words, 417 views   English (US)
Categories: General

MI: Defendant’s revocation of his consent did not make the officers’ presence unlawful

Defendant’s revocation of his consent did not make the officers’ presence unlawful for purposes of his resisting arrest prosecution. People v. Kodlowski, 298 Mich. App. 647, 828 N.W.2d 67 (2012).*

There was [apparently] probable cause for plaintiff’s arrest and the impoundment of his car, so his Fourth Amendment claim fails. Philpott v. Weaver, 497 Fed. Appx. 667 (8th Cir. 2012).*

A Kansas ruse checkpoint led to a stop. The government argued that the defendants were not seized at the time of the stop, but the district court didn’t believe the trooper’s testimony because it was contradictory. Substantial evidence supported the district court’s findings of fact leading to suppression of the search. The stop was in Kansas and the indictment was in the Northern District of New York. United States v. Murphy, 703 F.3d 182 (2d Cir. 2012).*

Permalink 08:00:34 am, by fourth, 146 words, 427 views   English (US)
Categories: General

E.D.N.C.: Defendant staying at friend's house on house arrest had no REP in their storage room

Defendant was staying at a house on house arrest, and he did not have a reasonable expectation of privacy as to its storage room to which he had a key. He did not have exclusive access to it, and others came and went. United States v. Gardner, 2012 U.S. Dist. LEXIS 171927 (E.D. N.C. August 9, 2012).*

Inability to name what defendant did what makes it impossible to hold them responsible for a failure to intervene or forced consent search. Bark v. Chacon, 504 Fed. Appx. 741 (10th Cir. 2012).*

Defendant in a car seen seven blocks from a shots fired call matching the description of the car involved was reasonable suspicion. Statements of counsel alone are insufficient to make a question of fact in this district for a hearing; there must be an affidavit of fact. United States v. Russell, 2012 U.S. Dist. LEXIS 172206 (S.D. N.Y. November 14, 2012).*

Permalink 07:37:51 am, by fourth, 149 words, 426 views   English (US)
Categories: General

D.S.D.: Wrong house number on SW was a correctable error where right house was searched

The wrong number for the address of defendant’s place (“34” not “32”) was not a constitutional error. The correct color was shown, and the officers made certain that they entered the correct house when they got there by rechecking with other sources. United States v. Running Shield, 2012 U.S. Dist. LEXIS 172245 (D. S.D. December 4, 2012).

In an interstate transportation for prostitution case, a search warrant was validly issued for evidence to corroborate the victim’s version of events. A search warrant for sealed evidence bags coming from another state was as particular as it could get. United States v. Campbell, 2012 U.S. Dist. LEXIS 172246 (D. S.C. December 5, 2012).*

Any errors in the officers’ “smell statistic” of the number of times the smell of marijuana bore fruit at a grow operation were not so material or beyond reckless that they undermined the probable cause. Hamilton v. State, 2012 Alas. App. LEXIS 173 (December 5, 2012).*

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

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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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