Archives for: January 2013, 14


Permalink 12:20:08 am, by fourth, 171 words, 529 views   English (US)
Categories: General

S.D.Tex.: Reasonable to use drug dog at border patrol checkpoint if no prolonging of stop

Defendant’s truck was stopped at a border patrol checkpoint, and a drug dog there alerted before defendant even produced his driver’s license. The Fifth Circuit has held that the use of dogs at border patrol checkpoints is not unreasonable if they do not prolong the stop, and this one didn’t. United States v. Washington, 2012 U.S. Dist. LEXIS 184188 (S.D. Tex. October 16, 2012).*

Among appellant’s post-conviction issues, there appeared to be a genuine issue of fact on consent, whether it was valid, and whether defense counsel was ineffective for not objecting. Logan v. State, 2013 OK CR 2, 293 P.3d 969 (2013).*

Defendant’s stop for failure to dim headlights was justified, although it appeared after the stop that the headlights might have been unusually bright. Nevertheless, the stop was objectively reasonable, and the conviction for driving on a suspended license is affirmed. This is not a situation where the reasonable suspicion was dispelled before interaction with the driver, as sometimes happens with LPN stops. State v. Bonacker, 2013 SD 3, 825 N.W.2d 916 (2013).*

Permalink 12:15:26 am, by fourth, 208 words, 415 views   English (US)
Categories: General

E.D.Tenn.: Defendant had standing in car he regularly drove but licensed to another

Defendant was suspected of a bank robbery. While the vehicle searched was in another person’s name, defendant regularly drove it, and that gave him standing to contest the search by consent the other person gave. Her consent was free and voluntary after reading a consent form. Defendant never negated the consent at the scene. Moreover, the officers had probable cause to search the car because they believed it was involved in the bank robbery. United States v. Lopez, 2012 U.S. Dist. LEXIS 184211 (E.D. Tenn. August 22, 2012).*

In a Rule 41(g) motion for return of property, the government showed that it may use most of the things seized from defendant for trial, but some it offered to return. Essentially, as long as the things may reasonably be used at trial, the government doesn’t have to return them. As to the things being returned, defendant is in custody, so it’s up to the BOP what happens with it. United States v. White, 2013 U.S. Dist. LEXIS 4627 (S.D. Fla. January 11, 2013).*

“Applying the relevant principles, the Court concludes that the search warrant affidavits are replete with probable cause.” Motion to suppress for lack of probable cause denied. United States v. Winfrey, 2013 U.S. Dist. LEXIS 4585 (D. Neb. January 10, 2013).*

Permalink 12:05:08 am, by fourth, 325 words, 429 views   English (US)
Categories: General

W.D.N.Y.: Order to empty pockets after a frisk for weapons was excessive under Terry

Defendant was stopped for a traffic offense, and he reeked of smoked marijuana. He was ordered out of the car, and the officer saw a bulge in the pocket, felt it, and knew it was not a weapon. He told defendant to empty his pockets thinking it was a baggy of marijuana, and it was. Cash also was produced. This was excessive under Terry. The government’s argument it was valid as a search incident is rejected since it argued that defendant was not arrested to claim the benefits of Terry. United States v. Mitchell, 2012 U.S. Dist. LEXIS 184187 (W.D. N.Y. November 27, 2012):

Applying the foregoing constitutional standards to the evidence adduced at the suppression hearing I conclude that Officer Funderburk's post-frisk order to Mitchell to "empty his pockets" was not reasonable under the Fourth Amendment. Funderburk never testified that the bulks felt like weapons or even that he suspected that they contained weapons. Indeed, Officer Funderburk testified that before commencing the frisk he "had a suspicion" that the bulk was a baggie of marijuana based on the odor coming from the Van (see 4/27/12 Tr. at p. 55) and after the frisk never suspected that the bulge was a weapon. The Government did not present evidence that the contour or mass of the bulge made its identity as contraband immediately apparent to Officer Funderburk. Accordingly, I find that the seizure of the currency after the Terry frisk was improper. See United States v. Owens, No. 07-20568-CR, 2008 WL 151978, at *5 (S.D. Fla. Jan. 15, 2008) (Officer's "failure to state any reason for suspecting that the bulge in the defendant's pocket was a weapon or contraband made the removal of the object impermissible under Terry."); United States v. Thornton, 493 F. Supp. 2d 1024, 1034 (S.D. Ohio 2007) (In the absence of "testimony that either the cellphones or the cash felt like a weapon" the government "failed to show that the frisking/searching officer stayed within the bounds marked by Terry.").

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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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  F.R.Crim.P. 41

  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  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
  Privacy Foundation
  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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