Archives for: January 2013, 04

01/04/13

Permalink 08:27:30 am, by fourth, 163 words, 536 views   English (US)
Categories: General

CA3: Parolee seen living at unapproved address reason for parole search

Defendant was on parole, and parole officers saw him involved in an apparent hand-to-hand drug transaction. A warrant was issued for his arrest. By the time they got to serve it, they discovered he was living at an unapproved address. That was reasonable suspicion for a parole search. The court declines to engage in determining whether they were “cajoled” into the search by the police since there was a basis. United States v. Marcano, 508 Fed. Appx. 119 (3d Cir. 2013).*

Defendant did not object to the GPS at his December 2009 suppression hearing, so it is reviewed for plain error, which it is not under Davis. United States v. Andres, 703 F.3d 828 (5th Cir. 2013).*

Defendant’s 2255 argument that the operator of a rental car had the authority of the actual renter, although not on the rental agreement, was the better way to argue the standing issue was a loser. Therefore, defense counsel wasn’t ineffective. United States v. Hunter, 2013 U.S. Dist. LEXIS 519 (D. Kan. January 3, 2013).*

Permalink 08:10:00 am, by fourth, 184 words, 438 views   English (US)
Categories: General

SCOTUSBlog: "Ask the author: Tracey Maclin on the Court and the Fourth Amendment"

SCOTUSBlog: Ask the author: Tracey Maclin on the Court and the Fourth Amendment:

The following is a series of questions posed by Orin Kerr to Tracey Maclin on the occasion of the publication of The Supreme Court and the Fourth Amendment’s Exclusionary Rule (Oxford University Press, 2012).

Welcome, Tracey. Thank you for taking the time to participate in this Question and Answer exchange for our readers. And congratulations on the publication of your book.

Question:

What inspired you to write a book on the exclusionary rule?

Answer:

Often lawyers and law students ask me to explain what the Justices were thinking when they decided a particular Fourth Amendment case. Before I started the book, I would provide an answer based on the Court’s opinion. After having taught constitutional law and criminal procedure for over twenty-five years, I have learned, however, that although a Court opinion might provide the justification for a particular result, that opinion may not reveal the motivations for the decision. I decided it was time to read the Justices’ private papers to determine the motivations behind their exclusionary rule decisions.

. . .

Permalink 08:01:12 am, by fourth, 230 words, 424 views   English (US)
Categories: General

NC: SWs are primarily for places and things

An anonymous CI provided information that the defendant was coming from New York to North Carolina to get away from the police, and he was bring drugs. He was going to a specific house. While an anonymous CI doesn’t have a track record, this one’s information all panned out and proved to be accurate. A search warrant is for the place where things may be found, not necessarily for persons, and probable cause and nexus was shown to defendant’s house. State v. Oates, __ N.C. App. __, 736 S.E.2d 228 (2012).*

POs did a home compliance check of various probationers, and this one was because two probationers came up in the system with the same address, and they both were to have no contact with other probationers. When they knocked at the door and announced “probation and parole,” the woman answering the door opened it all the way, implying they could enter. They did a quick walk through and found cocaine on a table. The probation entry was justified under Knights. Wallace v. State, 62 A.3d 1192 (Del. 2012).*

The owner of the house consented to a protective sweep of the premises, then a search of the premises. There are booking and public safety exceptions to Miranda. Asking about aliases and a gun here were not within the exceptions. United States v. Chavez-Maciel, 2012 U.S. Dist. LEXIS 183038 (N.D. Ga. December 7, 2012).*

Permalink 12:10:14 am, by fourth, 501 words, 2012 views   English (US)
Categories: General

CA2: “Giving the finger” to a police officer is not disorderly conduct as a matter of law, and it violated the Fourth Amendment to arrest the plaintiff for it

“Giving the finger” to a police officer is not disorderly conduct as a matter of law, and it violated the Fourth Amendment to arrest the plaintiff for it. There was no reasonable suspicion for plaintiff's arrest. Swart v. Insogna, 2013 U.S. App. LEXIS 186 (2d Cir. January 3, 2013):

An irate automobile passenger’s act of “giving the finger,” a gesture of insult known for centuries,1 to a policeman has led to a seizure of two persons ordered to return to an automobile, an arrest for disorderly conduct, a civil rights suit, and now this appeal.

1 See Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87, 91 n.1 (2d Cir. 1998) (reporting the use of the gesture by Diogenes to insult Demosthenes). Even earlier, Strepsiades was portrayed by Aristophanes as extending the middle finger to insult Aristotle. See Aristophanes, The Clouds (W. Arrowsmith, trans., Running Press (1962)). Possibly the first recorded use of the gesture in the United States occurred in 1886 when a joint baseball team photograph of the Boston Beaneaters and the New York Giants showed a Boston pitcher giving the finger to the Giants. See Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403, 1415 (2008).

. . .

Even with the wide range of conduct subsumed under New York’s expansive definition of disorderly conduct, John’s conduct, on the Plaintiffs’ version of the facts, could not create a reasonable suspicion that a disorderly conduct violation had been or was being committed. Neither Collins, whom John says arrested him, nor Insogna, whose report says he made the arrest, had observed any disruptive conduct, any threatening conduct, any shouting, or anything that risked a public disturbance. Whether or not giving the finger is properly considered an obscene gesture, neither Collins, who had not observed the gesture, nor Insogna, who had observed it and was likely piqued by having seen it, makes any claim on appeal that the gesture was disorderly conduct. Indeed, such a gesture alone cannot establish probable cause to believe a disorderly conduct violation has occurred. “The disorderly conduct statute at issue here does not circumscribe pure speech directed at an individual. Rather, it is directed at words and utterances coupled with an intent to create a risk of public disorder ....” People v. Tichenor, 89 N.Y.2d 769, 775 (1997) (citations omitted). On the Plaintiffs’ version, probable cause did not exist for an arrest for disorderly conduct. And because an objectively reasonable police officer would not have believed that probable cause existed, neither Defendant was entitled to the defense of qualified immunity on a motion for summary judgment. Of course, the defense of qualified immunity and the lawfulness of the arrest itself will appropriately be in issue at trial, where both versions of the episode will be presented.

Note: Read the opinion for the officer's rationalization for the arrest to the District Court, which the court found utterly fantastic and incredible: “giving the finger” was a distress call for a stop. Just admit it: you stopped him for contempt of cop.

Permalink 12:01:50 am, by fourth, 418 words, 1522 views   English (US)
Categories: General

CA4: Three hour detention of defendant waiting for search warrant was unreasonable because there was no probable cause as to him

The three hour detention of defendant in a building while waiting for a search warrant to arrive where there was no probable cause to believe that the defendant committed any crime or was going to destroy any evidence was unreasonable. His statement during the detention is suppressed. United States v. Watson, 703 F.3d 684 (4th Cir. 2013):

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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www.johnwesleyhall.com

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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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"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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