Archives for: January 2013, 09


Permalink 07:06:55 pm, by fourth, 70 words, 342 views   English (US)
Categories: General

NYLJ: "Federal Judge Orders NYPD to Limit Trespass Searches"

NYLJ: Federal Judge Orders NYPD to Limit Trespass Searches by Mark Hamblett:

In the latest in a series of rulings in hotly contested litigation over New York City Police Department stop-and-frisk policies, a federal judge has found that police officers are violating the Fourth Amendment rights of people stopped on suspicion of trespass as they walk into and out of privately owned buildings that participate in a Bronx anti-crime program.

Permalink 05:06:38 pm, by fourth, 280 words, 526 views   English (US)
Categories: General

For What It's Worth Dept.: "Supreme Court signals blood tests protected by Fourth Amendment"

Supreme Court signals blood tests protected by Fourth Amendment by M. Alex Johnson, staff writer, NBC News:

Justices indicated Wednesday that the dangers of drunken driving don't trump the Fourth Amendment, peppering lawyers for the state of Missouri with objections to their request that the Supreme Court allow law enforcement to order blood tests for DUI without suspects' consent.

The case, Missouri v. McNeely, is seen as a landmark that could clear up almost 50 years of uncertainty over the constitutionality of blood tests that are conducted without a warrant. Legal scholars say it could rewrite drunken-driving laws in all 50 states.

The case hinges on how you interpret a 1966 opinion by then-Chief Justice William Brennan, who wrote (.pdf) that law enforcement should get a warrant before taking a blood draw without a suspect's consent, except in a few very limited circumstances that rise to the level of an emergency.

See also ScotusBlog: Argument recap: Compromise on DUI blood tests? by Lyle Denniston:


Even allowing for the reality that what is said at a Supreme Court hearing does not necessarily dictate the outcome, now and then a case comes along where the Justices join so obviously in a common pursuit of a compromise that little suspense remains. That happened on Wednesday, in the case of Missouri v. McNeely (docket 11-1425), when it seemed quite predictable that the Court is not going to let police across the nation order — on their own authority — the taking of blood samples from those suspected of drunk driving. Police, it would appear, are at least going to have to try to get a search warrant, even though they sometimes will be allowed to do without one.

Permalink 07:42:07 am, by fourth, 607 words, 568 views   English (US)
Categories: General

CA8: Assuming Fourth Amendment was violated, the GFE saved this search because the police conduct was objectively reasonable

The Eighth Circuit assumed a Fourth Amendment violation in police entry into the back room of a car dealership during a routine fire inspection that revealed what the fire marshal thought was a child pornography production facility. Without deciding whether the police violated the Fourth Amendment in the entry [a tough question], the court instead decided whether the good faith exception applied based on how the investigation started, the entry into the area, and the obtaining of the search warrant. The court concluded that the good faith exception applied, and the search would not be suppressed. Defendant’s computer was seized and child pornography was found. The police conduct was objectively reasonable. United States v. Cannon, 703 F.3d 407 (8th Cir. 2013):

=> Read more!

Permalink 07:28:30 am, by fourth, 345 words, 328 views   English (US)
Categories: General

S.D.Tex.: Large number of weapons and potential bombmaking stuff was exigency to call ATF to arrest scene for warrantless check for bombs

Defendant was seen at a gun show in possession of a rifle slung over his back with a box of ammunition in hand by his PO, and he was photographed. That was used to get an arrest warrant from a state court judge. When an arrest was sought with a multiagency task force, the officers heard a woman say “your probation officer is here” and sounds of a gun being readied to fire. Backup was sought. They finally came out, and officers went in to conduct a protective sweep “for the protection of the officers.” Aside from a duffle bag of “AK-47s,” suspicious chemicals were seen, and they called for the ATF to come and check for bombmaking materials, and that was justified by exigent circumstances. Then a search warrant was sought. The evidence shows that officers had an objectively reasonable belief that defendant was residing at the third party’s residence (Steagald). United States v. Yarbrough, 2013 U.S. Dist. LEXIS 2571 (S.D. Tex. January 8, 2013)*:

Applying these principles to this firearm case, the Court concludes that exigent circumstances continued to exist from the time the agents and officers heard the sound of guns being racked through the time the search warrant was obtained. The quantity of people and firearms, as well as the chemicals and other explosive precursors justified the entry of ATF agents for purposes of inspecting the premises for danger and indications of criminal activity. Defendants did not supply any authority on which to base a conclusion that the exigent circumstances had come to rest and no further danger was present. And the facts in this case would not support such a conclusion.

Defendant was a passenger without standing. Moreover, he wasn’t even in the car when it was searched hours later. “In any event, this case did not involve a traffic stop, Defendant's stint as a passenger in the vehicle had ended hours before he was arrested, and he was standing outside the vehicle when confronted by Officer Stewart.” United States v. Spencer, 2012 U.S. Dist. LEXIS 183866 (D. Minn. December 14, 2012).*

Permalink 06:57:29 am, by fourth, 216 words, 399 views   English (US)
Categories: General

W.D.Okla.: Defense not only moved to suppress, but sought dismissal for outrageous conduct; so far off the mark request for sanctions made

The motion to suppress is denied because the defendant consented. The defendant’s motion to dismiss for outrageous governmental conduct in the consent search is denied, and the government’s motion for sanctions against defense counsel for being so far off the mark here is held in abeyance. United States v. Amar, 2013 U.S. Dist. LEXIS 2653 (W.D. Okla. January 8, 2013). [Pursue the motion to suppress if you can, but don’t seek sanctions unless you win easily. Just because the police violated the Fourth Amendment, the defense hardly is justified in seeking sanctions. If the search was that bad, presumably the government wouldn’t have sought the indictment.]

“But whether law enforcement officers had probable cause to believe the truck contained contraband, they had probable cause to believe it contained evidence of a crime. The totality of the circumstances – the wire intercepts, observations from the pole camera outside Mr. Davis's home, and the agents' knowledge and experience – allowed a reasonable officer to deduce with fair probability that the truck contained a secret compartment.” United States v. Reese, 2013 U.S. Dist. LEXIS 2422 (M.D. Ala. January 8, 2013).*

The consent to search defendant’s car was voluntary; she offered to let the officer search without being asked. United States v. Rodriguez, 2013 U.S. Dist. LEXIS 2566 (S.D. Tex. January 8, 2013).*

Permalink 06:08:42 am, by fourth, 175 words, 478 views   English (US)
Categories: General

E.D.Mich.: A suspicious bulge and saying "shit" on seeing the police is not RS

There was no reasonable suspicion for defendant’s stop for allegedly being nervous and only allegedly walking away from the officers after making eye contact with one and saying “shit.” One of them said he had a suspicious bulge in his clothing like a gun. This was around a gas station in Detroit so it was “high crime,” so they said. This is like United States v. Beauchamp, 659 F.3d 560 (6th Cir. 2011), and there is no reasonable suspicion. United States v. Davis, 2013 U.S. Dist. LEXIS 1862 (E.D. Mich. January 7, 2013).*

Defendants asserted a Franks challenge, and the court had a hearing to find out what was the deliberate omission, and it didn’t undermine the existing probable cause or really even amount to anything. United States v. Kistner, 2013 U.S. Dist. LEXIS 2128 (S.D. Ohio January 4, 2013).*

Probable cause supported both the search warrant and the vehicle tracking order in this case (sought 11 days before Jones came down) issued under both federal and state statute. United States v. Ponce, 2012 U.S. Dist. LEXIS 183671 (D. Minn. December 10, 2012).*

Permalink 12:04:11 am, by fourth, 161 words, 528 views   English (US)
Categories: General

CA7: Nervousness alone is not enough for RS; it is just a factor

Nervousness alone is not reasonable suspicion, but it is a valid factor to consider with other things, and other things were present here [and they are thin]. Defendant's 39 minute detention was not unreasonable. United States v. Bueno, 703 F.3d 1053 (7th Cir. 2013):

Some nervousness around law enforcement officials is to be expected, however, and we have expressed skepticism regarding the value of such observations. See United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005). Nevertheless, while "the appearance of anxiety may not by itself form an objective basis for suspecting criminal activity," McBride, 635 F.3d at 882 (citation omitted), we consider such behavior as a factor in the totality of circumstances, United States v. Brown, 188 F.3d 860, 865 (7th Cir. 1999) (citation omitted).

Even assuming a Fourth Amendment violation occurred, exclusion didn’t apply in civil removal proceedings. The record supports the BIA and IJ determination that the conduct of the agents was not egregious (which would support exclusion). Santos v. Holder, 506 Fed. Appx. 263 (5th Cir. 2013).*

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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

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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)

Research Links:
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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  DOJ Computer Search Manual (2009) (pdf)

  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
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  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"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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