Archives for: December 2012, 17


Permalink 07:39:19 am, by fourth, 569 words, 876 views   English (US)
Categories: General

NJ: Stop of man merely for being same race as a wanted man was unreasonable; PV warrant found led to search which was suppressed

Defendant was stopped coming out of an apartment building because he was the same race as a man wanted in an arrest warrant who was thought to be there. Defendant refused to give his name. Parole officers came to the scene and recognized defendant, not as the man wanted, but as a PV. He was searched and drugs were found. The stop of the defendant was for merely being the same race as a wanted man, with no other sign of criminality. Under the Brown v. Illinois attenuation factors, this was not attenuated. Applying the exclusionary rule is necessary to protect privacy of the people. The search incident to the PV warrant is suppressed. State v. Shaw, 213 N.J. 398, 64 A.3d 499 (2012):

Although the exclusionary rule "may vindicate the Fourth Amendment rights of a particular defendant, and more generally the privacy rights of all persons," it also may "depriv[e] the jury or judge of reliable evidence that may point the way to the truth." Id. [State v. Williams, 192 N.J. 1, 16, 926 A.2d 340 (2007)] at 14-15, 926 A.2d 340 (citations omitted). Because of the high price exacted by suppressing evidence, "the exclusionary rule is applied to those circumstances where its remedial objectives can best be achieved." Id. at 15, 926 A.2d 340 (citing Calandra, supra, 414 U.S. at 348, 94 S. Ct. at 620, 38 L. Ed. 2d at 571). Thus, when law enforcement officials secure evidence that is sufficiently independent of the illegal conduct -- evidence that is not tainted by the misdeed -- then withholding evidence from the trier of fact is a cost that may not be justified by the exclusionary rule. Badessa, supra, 185 N.J. at 311, 885 A.2d 430.

. . .

Significantly, two of the courts cited above suggested that the random stopping of people in the hope of picking up some on outstanding warrants is the type of flagrant or purposeful conduct that would weigh against a warrant serving as a determinative intervening circumstance. See Brendlin, supra, 195 P.3d at 1082; McBath, supra, 108 P.3d at 249. In Brendlin, supra, the California Supreme Court indicated that where a seizure is "undertaken as a fishing expedition, the third Brown factor will make it unlikely that the [State] would be able to demonstrate an attenuation of the taint of the initial unlawful seizure." 195 P.3d at 1082. The Brendlin court contrasted the "fishing expedition" scenario with "a chance discovery of an outstanding arrest warrant in the course of a seizure that is later determined to be invalid." Ibid. (internal quotation marks and citations omitted).

Similarly, the Alaska appellate court in McBath, supra, observed that an arrest warrant may not constitute a determinative intervening circumstance "where the police conducted an unjustifiable 'dragnet' investigative stop of many people, hoping to find some for whom there were outstanding arrest warrants." 108 P.3d at 249. In such a case, "the flagrance of the police misconduct may still require suppression of the evidence." Ibid.

There is a difference between an unlawful motor vehicle or investigatory stop in which, incidental to the stop, the police learn about an outstanding warrant and, as here, an unlawful stop executed for the specific purpose of ascertaining whether a suspect is the subject of an arrest warrant. That is a point clearly made in People v. Mitchell, 355 Ill. App. 3d 1030, 824 N.E.2d 642, 291 Ill. Dec. 786 (Ill. App. 2005) (cited with approval in Brendlin, supra, 195 P.3d at 1082).

People v. Brendlin, 45 Cal. 4th 262, 85 Cal. Rptr. 3d 496, 195 P.3d 1074 (2008)
McBath v. State, 108 P.3d 241, 242, 248 (Alaska App. 2005)

Permalink 12:13:59 am, by fourth, 121 words, 919 views   English (US)
Categories: General

N.D.Ala.: Defendant volunteered consent before he was asked

In the dashcam video, defendant consented to a search of his vehicle without even being asked, and it was voluntary. United States v. McGowan, 2012 U.S. Dist. LEXIS 177630 (N.D. Ala. October 30, 2012).*

The stop of the vehicle was with probable cause, and the officer developed reasonable suspicion that defendant was not legally in the country. The stop was not overlong and was reasonable. United States v. Munoz, 2012 U.S. Dist. LEXIS 177633 (D. S.D. October 10, 2012).*

An officer unexpectedly ran into defendant and asked defendant whether he had a gun. It was not in an accusatory tone, and defendant fled. He was not seized at the point the question was asked. United States v. Sanchez, 2012 U.S. Dist. LEXIS 177623 (D. Mass. December 14, 2012).*

Permalink 12:02:57 am, by fourth, 196 words, 1781 views   English (US)
Categories: General

D.S.C.: Under Randolph the police can wait for defendant to leave and ask a joint occupant for consent

Defendant was not prejudiced by defense counsel’s failure to move to suppress his girlfriend’s written consent. He was removed from the premises on arrest, and the police had no duty under Randolph to seek consent from him. United States v. Swain, 2012 U.S. Dist. LEXIS 177193 (D. S.C. December 14, 2012). [Yes, the police can wait for their suspect to leave and then seek consent from somebody with apparent authority.]

The officer stopped defendants walking on the street because they matched the description of two men who robbed a cell phone store. His lights were on and he commanded them to stop and show their hands with his hand on his gun. That was a seizure, and it was with reasonable suspicion. United States v. Brown, 2012 U.S. Dist. LEXIS 176658 (D. Mass. December 12, 2012).*

Defendant consented to a time-limited search of his cell phone. He was asked for consent, and he said he would except that he wanted the phone back that day so he could use it as an alarm clock the next morning. When asked for clarification, he reaffirmed. The search was by consent. United States v. Weisinger, 2012 U.S. Dist. LEXIS 177129 (D. Vt. December 11, 2012).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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2013-14 Term:
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  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)

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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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