Archives for: January 2013, 03


Permalink 07:53:06 am, by fourth, 218 words, 1135 views   English (US)
Categories: General

W.D.Wash.: "[i]n the case of drug dealers, evidence is likely to be found where the dealers live."

The search under the search warrant in this case is not suppressed. While there was a traffic stop that could not be justified, it is excised from the affidavit for the search warrant, and the remainder still shows probable cause. While there was information that was over three months old, “the evidence was not stale because it described a firmly entrenched, widespread, and continuing narcotics trafficking organization.” There is nexus to the home of those involved in drug trafficking as a place where the drugs would be kept. Furthermore, GPS tracking on a cell phone used in drug trafficking put it regularly at the home, and there were officer observations of comings and goings to the home. United States v. Silva, 2012 U.S. Dist. LEXIS 183043 (W.D. Wash. December 31, 2012):

The Ninth Circuit has recognized that "[i]n the case of drug dealers, evidence is likely to be found where the dealers live." United States v. Terry, 911 F.2d 272, 276 (9th Cir. 1990) (quoting United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986)). Under the law of this Circuit, the Affidavit's details regarding Palacios-Rodriguez's lengthy involvement in the DTO, including supplying cocaine to others in the conspiracy and participating in other narcotics transactions while living at the Edmonds Apartment, was sufficient basis to believe that contraband might be found at the residence. ...

Permalink 07:43:17 am, by fourth, 425 words, 1056 views   English (US)
Categories: General

CA4: Written inventory policy not constitutionally required

Lack of a written policy does not make an inventory invalid. Bertine requires a “standard criteria” and following it is all that is required. Leaving defendant’s car in a Wal-Mart parking lot is not required by the police. United States v. Cartrette, 502 Fed. Appx. 311 (4th Cir. 2012):

In the instant case, no one was immediately available to take custody of Cartrette's vehicle, and a reasonable officer could have concluded that it constituted a nuisance where it was parked, in a Wal-Mart parking lot. Even if we credit Cartrette's testimony that his brother was nearby – testimony the district court did not find credible, see J.A. 353 – the police were not required to stay on the scene and wait for the brother to return. See Brown, 787 F.2d at 932 (impoundment reasonable when no known individual is "immediately available to take custody of the car").

Furthermore, we are not persuaded by Cartrette's argument that the Conway Police Department's lack of a written impoundment policy renders the impoundment unlawful. Bertine requires standard criteria for impounding vehicles, 479 U.S. at 375, but it does not require the criteria to be in writing. Here, the testimony of Officers Ridgeway and Hardee indicates there was a standard procedure to impound vehicles when no one is immediately available to take custody of the vehicle, and that they understood and followed that procedure. The district court was entitled to credit that testimony.

Notes: (1) Wal-Mart allows people with RVs to park on store parking lots overnight, but that does not by any means mean that a vehicle can be left there for days on end. Here, the police were not required to wait for the brother at all. If he were coming that day, what would be the harm in leaving the car on the Wal-Mart parking lot for a half day or even a day? Wal-Mart would clearly not care. But, there is something else more obviously at work: The allegedly non-pretextual search of the trunk of the car that turned up the shotgun. If there was no inventory, well, then, the police could not have found it and this case would not exist.

(2) Bertine requires a “standard criteria,” and a lack of a writing is an open invitation to abuse. Any police department larger than two officers ought to have a written inventory policy by now. Inventory has been recognized over 35 years since South Dakota v. Opperman, probably since before this searching officer was born. It's not that hard to come up with a policy since almost all departments of any repute have one.

Permalink 12:01:06 am, by fourth, 439 words, 1195 views   English (US)
Categories: General

New law review article: "After United States v. Jones, After the Fourth Amendment Third Party Doctrine"

New law review article: Stephen E. Henderson, After United States v. Jones, After the Fourth Amendment Third Party Doctrine, __ N.C. J.L. & Tech. __ (2013):


United States v. Jones, in which the Court unanimously held that month-long Global Positioning System (GPS) tracking of a vehicle constitutes a Fourth Amendment search, did not in itself tell us too much. The government took an egregious position, and therefore lost nine to zero. We now apply a resurrected trespass-based conception of search, but we know extremely little about how to do so and what results it will alter. We know five Justices believe long-term location tracking is typically a search because it invades a reasonable, seemingly empirical, expectation of privacy. And we know one Justice is willing to reconsider the entire third party doctrine, which holds that one typically retains no Fourth Amendment expectation of privacy in information conveyed to another.

But when we take a broader view, it is not merely one Justice who will not apply the third party doctrine in a strong form, and thus I have previously written the doctrine’s obituary. Jones fits nicely within a string of cases in which the Court is cautiously developing new standards of Fourth Amendment protections, rather than declaring generally applicable categorical rules. Given that it was a grand pronouncement of an allegedly categorical rule in United States v. Miller that has caused much of the trouble, this strikes me as a sensible way to proceed. I expect the road will not be smooth, but we are used to zigs and zags in the Fourth Amendment. It is hard to imagine anything less when the High Court is attempting to ferret out what is reasonable, which requires balancing private and law enforcement interests, and when technology, policing, crime, and social norms are constantly in flux.

Much of the ground has been plowed before, both by myself and others dating back many years, which calls for brevity. Indeed, Jones will surely spark a new crop of Fourth Amendment papers, the authors of some of which will read what has gone before and some of whom will not. But Jones provides a nice hinge around which to discuss where the Fourth Amendment has been and where it might be going – and more generally where citizens’ protections against unreasonable searches and seizures, which do not depend solely upon the Fourth Amendment, might be going. Here I will content myself with that relatively high level, and like many others I will begin in other fora to drill down into specifics of how the Fourth Amendment should apply to the particular techniques of location tracking.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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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)

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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
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    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
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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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