Archives for: December 2012, 21


Permalink 10:13:50 am, by fourth, 163 words, 1139 views   English (US)
Categories: General

WA: While Washington recognizes pretext stops, a mixed motive is not unconstitutional

While Washington recognizes pretext stops, a mixed motive is not unconstitutional. State v. Arreola, 176 Wn.2d 284, 290 P.3d 983 (2012), rev’g State v. Arreola, 163 Wn. App. 787, 260 P.3d 985 (2011):

¶1 The issue in this case is whether a traffic stop motivated primarily by an uncorroborated tip, but also independently motivated by a reasonable articulable suspicion of a traffic infraction, is unconstitutionally pretextual under article I, section 7 of the Washington State Constitution and State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999).

¶2 We hold that a mixed-motive traffic stop is not pretextual so long as the desire to address a suspected traffic infraction (or criminal activity) for which the officer has a reasonable articulable suspicion is an actual, conscious, and independent cause of the traffic stop. So long as a police officer actually, consciously, and independently determines that a traffic stop is reasonably necessary in order to address a suspected traffic infraction, the stop is not pretextual in violation of article I, section 7, despite other motivations for the stop.

Permalink 10:02:51 am, by fourth, 154 words, 426 views   English (US)
Categories: General

D.Utah: Argument that state trooper caused traffic infraction didn't undermine PC for stop

Defendant’s argument that the Utah state trooper caused him to commit the traffic violation that led to his stop was rejected. There was still reason for the stop. United States v. McCoy, 2012 U.S. Dist. LEXIS 178936 (D. Utah December 18, 2012).

“Based on these facts, we agree with the district court's conclusion that the officers were in the home for a legitimate law enforcement purpose, and, given the violent nature of the drug cartel, that the officers possessed a reasonable, articulable suspicion that the house posed a danger to them.” United States v. Gutierrez, 503 Fed. Appx. 261 (5th Cir. 2012).*

The search of defendant’s vehicle was valid by inevitable discovery, the court not having to decide probable cause, because the defendant committed felony fleeing attempting to elude the officer, and the vehicle was subject to forfeiture because of a prior heroin find in the vehicle. United States v. Jordan, 2012 U.S. Dist. LEXIS 178972 (D. Kan. December 17, 2012).*

Permalink 09:42:02 am, by fourth, 417 words, 359 views   English (US)
Categories: General

E.D.Wis.: General consent to search includes hidden compartments that might be found with tools

A general consent to search a vehicle for “weapons, drugs, or money” permitted the officers to use tools to take the dashboard apart and find a hidden compartment. It was expected that compartments would be searched, and that had to include hidden compartments. United States v. Locke, 2012 U.S. Dist. LEXIS 179425 (E.D. Wis. October 9, 2012) adopted 2012 U.S. Dist. LEXIS 179420 (E.D. Wis. December 19, 2012):

Here, Trooper Taylor asked Locke whether he had any weapons, drugs, or money in the vehicle, and Locke answered "no." Trooper Taylor specifically asked if he could search Locke's Expedition, and Locke answered "yes." So, Locke was well aware that Trooper Taylor was searching for weapons, drugs, and money. While suspects may limit the scope of their consent, Locke placed no limit on the extent of the search. Thus, a reasonable person in the officer's position would have understood that, by consenting to search the Expedition and all of its contents, Locke agreed to permit a search of any compartments or containers that could contain contraband, including the hidden compartment that was ultimately discovered.

Locke argues, however, that Trooper Taylor's search exceeded the scope of his consent because he used tools to access the hidden compartment. Locke cites no case law to support his argument. Indeed, and quite to the contrary, cases suggest that, in the absence of intentional damage "to the places or things to be searched," using tools to access hidden compartments is not per se unreasonable. See Saucedo, 688 F.3d at 866-67. In Saucedo, the court upheld as reasonable an officer's use of a flashlight and screwdriver to look behind a TV, unscrew the molding, and remove the hidden compartment from an alcove. See id. at 866. Additionally, in United States v. Torres, 32 F.3d 225 (7th Cir. 1994), an officer used a screwdriver to remove six screws that secured the cover of a wooden compartment in a trailer. The court found it to be objectively reasonable for the officer to believe that the scope of consent allowed him to open the compartment in such a manner. Id. at 231-32.

Locke makes no claim that Trooper Taylor, or any other officer on the scene, intentionally damaged the Expedition or any personal property inside. At one point, Locke accused Trooper Taylor of "tearing the truck up." However, it appears Locke's concern stemmed from a general rummaging of contents, as opposed to destruction of the contents in the vehicle. Further, Trooper Taylor assured Locke that the officers would put everything back the way it was. ...

Permalink 08:28:06 am, by fourth, 187 words, 402 views   English (US)
Categories: General "Ruling Revives Claims Against City Over Stop-and-Frisk Data" Ruling Revives Claims Against City Over Stop-and-Frisk Data by John Caher:

Information gleaned from stop-and-frisk targets must be sealed and cannot be used for subsequent police investigations, an appellate panel has held while finding that individuals whose information was disclosed or utilized have a private right of action against New York City.

In an opinion addressing the ongoing debate over the New York City Police Department's stop-and-frisk policies, a unanimous panel of the Appellate Division, First Department, yesterday reversed a trial court and delivered a victory to civil rights activists who have criticized and legally challenged police procedures.

The panel in an unsigned opinion flatly rejected the city's position and, significantly, held that targets need not await a "readily apparent prospective injury" before seeking relief under a state privacy law.

NYT: Suit on Police Stops Is Reinstated by Joseph Goldstein:

In a further blow to the Police Department’s database of stop-and-frisk interactions, a state appellate court on Thursday reinstated a lawsuit challenging the police’s authority to retain information about people who were arrested after a street stop, but later cleared of criminal charges.

Permalink 06:12:00 am, by fourth, 572 words, 801 views   English (US)
Categories: General

CA10: State troopers' crossing state line was not a Fourth Amendment violation

The Missouri Highway Patrol followed defendant from Kansas City MO to Kansas City KS, and their actions in Kansas allegedly in violation of Kansas law are not pertinent to the Fourth Amendment reasonableness inquiry. “In sum, for all of the foregoing reasons, we reject Mr. Jones's argument that the Missouri officers' seizure of him in Kansas effected a Fourth Amendment violation simply because they were acting outside of their jurisdiction and without authority under Kansas law.” United States v. Jones, 701 F.3d 1300 (10th Cir. 2012):

It is "well established in this circuit that in federal prosecutions the test of reasonableness in relation to the Fourth Amendment protected rights must be determined by Federal law even though the police actions are those of state police officers." United States v. Green, 178 F.3d 1099, 1105 (10th Cir. 1999) (emphasis added) (quoting United States v. Le, 173 F.3d 1258, 1264 (10th Cir. 1999)) (internal quotation marks omitted); ...; see also Virginia v. Moore, 553 U.S. 164, 176, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008) (holding that "warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections"); California v. Greenwood, 486 U.S. 35, 43, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988) ("We have never intimated, however, that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs."); ... More specifically, "officers' violation of state law is not, without more, necessarily a federal constitutional violation." United States v. Mikulski, 317 F.3d 1228, 1232 (10th Cir. 2003); accord Pasiewicz v. Lake Cnty. Forest Pres. Dist., 270 F.3d 520, 526 (7th Cir. 2001) ("A violation of a state statute is not a per se violation of the federal Constitution. The federal government is not the enforcer of state law."); .... Accordingly, Mr. Jones's argument that the Missouri officers' actions effected a Fourth Amendment violation simply because they were acting outside of their jurisdiction and without authority under Kansas law is mistaken.

. . .

While "compliance with state law may be relevant to our Fourth Amendment reasonableness analysis" in some circumstances, "we have never held it to be determinative of the constitutionality of police conduct." Gonzales, 535 F.3d at 1182; see Sawyer, 441 F.3d at 899 ("State law is not determinative of the federal question, but rather may or may not be relevant to the determination of the federal question."). In Gonzales, we explained that "compliance with state law is 'highly determinative' only when the constitutional test requires an examination of the relevant state law or interests." 535 F.3d at 1182 (quoting Sawyer, 441 F.3d at 896-97). No such examination was required in Gonzales:

[W]e need not examine state law or interests. The federal test for determining the validity of a traffic stop simply requires us to determine whether a traffic violation has occurred .... It does not require an examination of a state's law or interests, but focuses instead on whether the stop was reasonable under the circumstances.

Id. at 1183 (citation omitted). We do not perceive such an examination of state-law interests to be required here either. The Missouri officers' encounter with Mr. Jones principally implicates federal legal standards related to the reasonableness of a Fourth Amendment seizure and, at least under the circumstances of this case, we see no need to assess state-law interests.

Written 12/20, and set to post at 6:11 am EST, 11:11 UTC, the time the "world is supposed to end."

Permalink 12:20:12 am, by fourth, 200 words, 477 views   English (US)
Categories: General

VA: Curiosity is not enough to justify the community caretaking function

The search of defendant’s backpack was because the officer was “curious” because of its weight and not because of any concern about it. Therefore, the search of the backpack was not justified under the community caretaking exception. “The record lacks evidence that gives rise to an objectively reasonable belief that Officer Lancaster's searching appellant's backpack was necessary to protect the backpack or its contents from theft or damage; to protect Deputy Hayes or Officer Lancaster from appellant's claims of stolen property; or to protect the police or public from danger.” Knight v. Commonwealth, 61 Va. App. 297, 734 S.E.2d 716 (2012).

Defendant’s search incident was justified because officers had information that he was armed, and he fled from the police in the hallway of an apartment building under circumstances that justifies the inference that he had hidden evidence. State v. Sanders, 2013 WI App 4, 345 Wis. 2d 754, 826 N.W.2d 394 (2012).*

Defendant was driving 13 mph below the speed limit in the left lane, but there was nothing that showed why, like that cars in front of him may be going too slow. Therefore, the trial court abused its discretion in crediting this finding. Delafuente v. State, 389 S.W.3d 616 (Tex. App. – Houston (14th Dist.) 2012).*

Permalink 12:05:45 am, by fourth, 231 words, 517 views   English (US)
Categories: General

PA: A combination of innocent facts can add up to RS

The officer had reasonable suspicion because of the owner not being present with the car, the occupants were inconsistent in describing their travel plans, they were nervous, and they had multiple types of air fresheners. “[E]ven a combination of innocent facts, when taken together, may warrant further investigation by the police officer.” Commonwealth v. Caban, 2012 PA Super 278, 60 A.3d 120 (2012).*

The CI here was named and was the next door neighbor relating observations and what he heard from occupants of the house, and that was enough to give the officers probable cause for a search warrant for marijuana plants in the basement. Yet, the officer had PC without the information from the CI, so that is academic. Here, defendant was verified to be a medical marijuana cardholder, and he consented to the search of his basement and showed the officers around. State v. Deshaw, 2012 MT 284, 367 Mont. 218, 291 P.3d 561 (2012).*

The stop was reasonable in duration, and the passenger has standing to challenge the length of the stop. Since it was reasonable, he lacks standing to challenge the search of the car. State v. Franklin, __ N.C. App. __, 736 S.E.2d 218 (2012).*

A lost and final suppression motion is collateral estoppel to the basis for the seizure in a forfeiture. Three Hundred Eighty-Nine Thousand Nine Hundred Five & No/100 Dollars v. State, No. 04-11-00666-CV, 2012 Tex. App. LEXIS 10453 (Tex. App. – San Antonio December 19, 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:
  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)

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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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