Archives for: January 2013, 15

01/15/13

Permalink 08:05:50 am, by fourth, 194 words, 554 views   English (US)
Categories: General

CA11: Plaintiff's planned violent crime justified force to arrest him; no excessive force

Federal officers arresting defendant were alleged to have used excessive force. Plaintiff was arrested as he was planning a violent felony, and taking the proof most favorably to him, the force here was not unreasonable considering what the officers knew when he was arrested. Williams v. Bauer, 503 Fed. Appx. 858 (11th Cir. 2013)*:

Even viewing the facts alleged by Williams in the light most favorable to him, Defendants' use of force was not excessive and did not violate the Fourth Amendment. Defendants arrested Williams on the day they believed he intended to commit a serious crime. They also had reason to believe that Williams would harm them and others. Williams had informed Zayas, who was working undercover, that he was going to rob a stash house and "the plan was to kill everyone present in the stash house." Williams said that police in the area would not be able to "handle" him. Shortly before the arrest, Zayas saw that the man in the passenger seat of Williams's car, Mercutio Stokes, had a rifle. Zayas informed the arresting agents that Stokes had a gun in the car. Stokes admitted that he had a rifle "between the seat."

Permalink 07:53:57 am, by fourth, 131 words, 496 views   English (US)
Categories: General

OH2: Failure to corroborate anonymous CI but for one public detail was a complete failure of PC

Information from the anonymous informant was not verified, except for one piece of personal information that was obvious. Therefore, issuance of the search warrant lacked probable cause. This was a fundamental violation of state law, therefore the Fourth Amendment, and suppression was required. Defense counsel was thus ineffective for not challenging the search. State v. Humphrey, 2013 Ohio 40, 2013 Ohio App. LEXIS 21 (2d Dist. January 11, 2013).

Possession of a reencoded (fraudulent) credit card was pretty much probable cause in itself, aside from all the false statements and the statements of the suspects connecting themselves. United States v. Robinson, 2013 U.S. Dist. LEXIS 5128 (S.D. Ind. January 14, 2013).*

Law enforcement is not prohibited from recording a conversation between a CI and the defendant. United States v. Houston, 2013 U.S. Dist. LEXIS 5320 (E.D. N.Y. January 12, 2013).*

Permalink 07:38:55 am, by fourth, 153 words, 430 views   English (US)
Categories: General

N.D.Okla.: When a consent search of the home is involved, differences in the testimony of the officers was too much to bear

The government bore the burden of proof on consent to search defendant’s house, and it failed. While the officers were otherwise credible, the discrepancies in their versions was too much to tolerate when a search of the home is an issue. United States v. Starks, 2013 U.S. Dist. LEXIS 4985 (N.D. Okla. January 14, 2013)*:

While discrepancies in the testimony of the officers could be the result of the passage of time (here, more than one year), where the government bears the burden of proof, and the discrepancies are material to the issue of consent, the Court should not turn a blind eye to even minor discrepancies.²

2 The Court does not find that any officer was not credible or that an officer intentionally falsified testimony or otherwise was intentionally deceptive. Instead, the discrepancies in the officers' testimonies, when balanced with other credibility findings, are especially important where, as here, the government bears the burden.

Permalink 07:22:00 am, by fourth, 306 words, 2269 views   English (US)
Categories: General

UT: Livestock inspector could enter open field

A state livestock inspector's entry into an open field to inspect defendant’s cattle was into an open field and did not violate any rights of trespass under Jones. State v. Lamb, 2013 UT App 5, 725 Utah Adv. Rep. 15, 294 P.3d 639 (2013):

=> Read more!

Permalink 07:12:33 am, by fourth, 121 words, 622 views   English (US)
Categories: General

TN: “48 hour hold” for investigation is an arrest requiring probable cause

The Memphis P.D.’s practice of a “48 hour hold” for investigation is an arrest requiring probable cause. This court has criticized it before. Here, they had probable cause for defendant’s arrest, and his confession to murder was otherwise voluntary. State v. Cox, 2013 Tenn. Crim. App. LEXIS 18 (January 9, 2013).*

Call about shots fired in a house justified a warrantless entry when the officer got there. State v. Hopkins, 2013 Ohio 48, 2013 Ohio App. LEXIS 32 (6th Dist. January 11, 2013).*

The motion to suppress never raised the issue presented for appeal, and, while it was discussed in argument, nothing in the trial court's findings and conclusions even mentions this issue, so it wasn’t raised or preserved below. State v. Fry, 828 N.W.2d 325 (Iowa App. 2013).*

Permalink 06:51:45 am, by fourth, 189 words, 472 views   English (US)
Categories: General

New law review article: "DNA Profiles, Computer Searches, and the Fourth Amendment"

Catherine W. Kimel, DNA Profiles, Computer Searches, and the Fourth Amendment, 62 Duke Law Journal 933-973 (2013). Abstract:

Pursuant to federal statutes and to laws in all fifty states, the United States government has assembled a database containing the DNA profiles of over eleven million citizens. Without judicial authorization, the government searches each of these profiles one-hundred thousand times every day, seeking to link database subjects to crimes they are not suspected of committing. Yet, courts and scholars that have addressed DNA databasing have focused their attention almost exclusively on the constitutionality of the government's seizure of the biological samples from which the profiles are generated. This Note fills a gap in the scholarship by examining the Fourth Amendment problems that arise when the government searches its vast DNA database. This Note argues that each attempt to match two DNA profiles constitutes a Fourth Amendment search because each attempted match infringes upon database subjects' expectations of privacy in their biological relationships and physical movements. The Note further argues that database searches are unreasonable as they are currently conducted, and it suggests an adaptation of computer-search procedures to remedy the constitutional deficiency.

FourthAmendment.com

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

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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)


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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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    Electronic Communications Privacy Act (2012)
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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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