Archives for: January 2013, 02

01/02/13

Permalink 07:23:33 am, by fourth, 164 words, 949 views   English (US)
Categories: General

OH2: The city vehicle tow policy was put into evidence, and there was no evidence this inventory was pretext

Defendant was stopped for a traffic offense, and he admitted that he had no DL. That was probable cause to arrest him right there. The city tow policy was put into evidence, and there was no evidence that the inventory of the vehicle was a pretext for an evidentiary search. Defendant blurted out that there was a gun in the glove compartment, and that was cause to search it. [Although it would have been valid under the inventory anyway.] State v. Shipp, 2012 Ohio 6189, 2012 Ohio App. LEXIS 5390 (2d Dist. December 28, 2012).

Police observed defendant’s girlfriend get out of his vehicle and they were yelling at each other. They came up to her to see what was going on, and she said the two of them had been drinking all day and were “working on [their] relationship.” She seemed intoxicated. He came back and stopped, and they talked to him, and he seemed intoxicated. The detention was valid. Bowers v. State, 980 N.E.2d 911 (Ind. App. 2012).*

Permalink 12:22:20 am, by fourth, 149 words, 894 views   English (US)
Categories: General

N.D.Iowa: Fact paper temporary tag in window couldn't be seen in dark was still valid basis for stop

The court finds a valid basis for a traffic stop to check a paper temporary tag in the back window that just wasn’t visible at night. It was valid, but it led to a dog sniff and finding drugs. United States v. Givens, 2012 U.S. Dist. LEXIS 182909 (N.D. Iowa December 31, 2012).*

During a traffic stop for speeding, the officer saw numerous indications of possible drug trafficking from defendant’s story and looking at his vehicle which apparently had a hidden compartment. Parts of the reasonable suspicion came from a tip relayed by another trooper, heavy masking odors, a recently registered vehicle, nervousness, vague and inconsistent answers to travel questions, and a criminal history that included drug convictions and an open investigation. The detention was reasonable and led to valid consent. Moreover, the dog alert gave probable cause. United States v. Urias, 2012 U.S. Dist. LEXIS 182879 (D. Utah December 7, 2012).*

Permalink 12:10:17 am, by fourth, 255 words, 497 views   English (US)
Categories: General

TN: Knock-and-talk at side door was not onto curtilage

Officer went to defendant’s door for a knock-and-talk and saw things in plain view that were subject to seizure. When defendant didn’t answer, the officer went to another door, this one on the side which was also visible from the street. Going to the back door would have been more troubling, but that’s not the case. State v. Ronewicz, 2012 Tenn. Crim. App. LEXIS 1085 (December 26, 2012):

The officer's decision to move from the front door to the "back" door of the defendant's residence while conducting the "knock and talk" is more troubling. This court has cautioned on numerous occasions that the "knock and talk" exception is not an open license for police officers to prowl through the yards of private citizens or peer through their windows. "Any substantial and unreasonable departure from an area where the public is impliedly invited exceeds the scope of the implied invitation and intrudes upon a constitutionally protected expectation of privacy." Harris, 919 S.W.2d at 624 (internal quotation omitted). When Detective Howell stepped off the presumably well-worn path from the street to the defendant's front door, he began treading on constitutionally-dangerous turf.

However, it is plain from the testimony and exhibits we have reviewed in this case that what the parties refer to as the "back" door of the defendant's residence was actually more akin to a side door, as it was visible from the public street (because the defendant's house was located on a corner lot), there was a path leading to it, and it was not fenced-in. ...

Permalink 12:02:13 am, by fourth, 132 words, 395 views   English (US)
Categories: General

W.D.Va.: No IAC for not raising a frivolous Fourth Amendment issue

Defendant was convicted of running a ponzi scheme from his house, and a search warrant had been executed on the records there. There was no motion to suppress filed, and he raised that in a 2255 petition claiming that his private journal had religious sentiment in it. He argued that this was a violation of self-incrimination, and apparently a violation of the First Amendment. As to self-incrimination, that’s a dead argument since Fisher v. United States. The argument is meritless, and defense counsel can’t be ineffective for raising a meritless claim. Johnson v. United States, 2012 U.S. Dist. LEXIS 182843 (W.D. Va. December 28, 2012).*

The trial court’s credibility determination that defendant consented to a search during a traffic stop was affirmed on appeal. State v. Scott, 2012 Tenn. Crim. App. LEXIS 1087 (December 28, 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
www.johnwesleyhall.com

© 2003-14, online since Feb. 24, 2003

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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)


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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
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    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"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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