Archives for: January 2013, 13


Permalink 09:35:24 am, by fourth, 335 words, 444 views   English (US)
Categories: General

TX14: Strip club ordered to conduct searches of employees lacks standing to complain of illegal searches

A trial court issued an injunction against a strip club requiring searches of employees' bags coming to work and video recording those searches as well as any public area of the club. The court held that the club lacked standing to complain of the searches and recording that it was being ordered to conduct invasions of privacy by injunction and make the recordings available to the government. Nabilco Inc. v. State, 2013 Tex. App. LEXIS 157 (Tex. App. – Houston (14th Dist.) January 10, 2013) (memorandum opinion):

The provisions at issue in this appeal require appellants to thoroughly check all bags of independent contractors and employees each time they enter appellants' premises and videotape those checks, enforce a dress code for all patrons on the premises requiring shirts to be tucked in, enforce a dress code for dancers to cover their buttocks, and use existing video cameras to record activity at all times that the premises are open.

Appellants argue that bag checks and video cameras, with tapes submitted to the State, violate the Fourth Amendment protections against unreasonable searches and seizures. This contention fails because the rights invoked by Treasures belong to the individual employees, contractors, and patrons — not to Treasures. "HN15Fourth Amendment Rights are personal rights which . . . may not be vicariously asserted." Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 428, 58 L. Ed. 2d 387 (1978); see also United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010) ("Fourth Amendment rights are personal rights, which may be enforced only by the person whose rights were infringed."). A party lacks standing to complain about the invasion of someone else's personal rights. Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004). Therefore, appellants have no standing to assert a Fourth Amendment claim on behalf of Treasures' dancers and customers. See Club Retro, LLC v. Hilton, 568 F.3d 181, 195 n. 5 (5th Cir. 2009) (club owner had no standing to assert Fourth Amendment rights on behalf of its patrons).

In Skinner, the railroad companies had to conduct the searches of employees by federal regulation. That didn't bother SCOTUS.

Permalink 09:25:36 am, by fourth, 323 words, 896 views   English (US)
Categories: General

OR: Consent after illegal police conduct and purging the taint explained

Oregon explains consent after illegal police conduct and purging the taint. State v. Hemenway, 353 Ore. 129, 295 P.3d 617 (2013):

Properly considered, then, a voluntary consent to search that is prompted by an officer's request can be sufficient to purge the taint of illegal police conduct. Whether the voluntary consent is sufficient to purge the taint — or whether the police exploited their illegal conduct to obtain consent — will depend on the totality of the circumstances. We reject the state's position that voluntary consent during an unlawful stop necessarily breaks the causal chain and makes the evidence admissible, as we do defendant's argument that such consent will rarely, if ever, break the causal chain.

In an effort to clarify this complicated area of law, we again review the basic principles at issue. As noted, the overarching inquiry is whether the evidence that the state seeks to introduce must be suppressed because that evidence was obtained in violation of the defendant's constitutional rights. In the context of Hall and this case, where an illegal stop preceded a consent to search, that inquiry has two prongs. First, the court must assess whether the consent was voluntary. If the consent to search was not voluntary, then the evidence must be suppressed, because only a voluntary consent to search provides an exception in this context to the warrant requirement of Article I, section 9. Second, even if the consent was voluntary, the court must address whether the police exploited their prior illegal conduct to obtain the evidence. Evidence may be tainted directly by the illegal police conduct, if, for example, the police illegally stop a vehicle, allowing them to view contraband that otherwise would not have been visible, and then request the driver's consent to search the vehicle as a result of what they saw. The consent in that example does not "purge the taint" of the prior illegal stop, because the evidence has a direct causal connection to the illegal conduct.

Permalink 08:28:01 am, by fourth, 153 words, 421 views   English (US)
Categories: General

PA: Suspicion drug deal was about to occur didn't add to RS

Defendant stopped and talked to a couple that police saw pacing on a parking lot. Police stopped him, and he was nervous. It was not reasonable suspicion that a drug deal was going to go down. Commonwealth v. Walton, 2013 PA Super 3, 63 A.3d 253 (2013).*

The stop was not overlong and unreasonable because reasonable suspicion developed. [The court uses unfortunate language that suggests the burden is on defendant: “Campbell has not provided sufficient evidence to support the conclusion that the duration of the stop was excessive.” The burden is on the government, and the appellate review is de novo. What is his burden on appeal? To show legal error.] United States v. Campbell, 511 Fed. Appx. 424 (6th Cir. 2013).*

The conversation after defendant’s papers were returned to him was consensual, and there was nothing that indicated that the conversation couldn’t be terminated. United States v. Chung Dam, 2012 U.S. Dist. LEXIS 184139 (M.D. Fla. November 16, 2012).*

Permalink 07:53:11 am, by fourth, 650 words, 870 views   English (US)
Categories: General

D.Minn.: Second search under same warrant hours later was valid

Defendant’s house was searched under a state search warrant starting at 9:05 pm. Officers came back and searched again early the next morning. In these circumstances, the second search was a continuation of the first. United States v. Pape, 917 F. Supp. 2d 888 (D. Minn. 2012):

=> Read more!

Permalink 07:26:59 am, by fourth, 99 words, 475 views   English (US)
Categories: General

New Law Review Article: "Power Down: Tasers, The Fourth Amendment, and Police Accountability in the Fourth Circuit"

Power Down: Tasers, The Fourth Amendment, and Police Accountability in the Fourth Circuit by Ian A. Mance, 91 N.C. L. Rev. (forthcoming 2013):

This Comment focuses its attention on the phenomenon of taser abuse in the states that comprise the Fourth Circuit: Maryland, North Carolina, South Carolina, Virginia, and West Virginia. It assesses the state of the law as presented to genuine victims of police abuse who wish to vindicate their right to be free of excessive force under 42 U.S.C. § 1983, the federal statute under which plaintiffs can seek relief for violations of their constitutional rights by state actors.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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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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  Electronic Privacy Information Center
  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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