The Arkansas Senate proposes drug testing those seeking unemployment benefits. The bill, SB58, has 15 Senate sponsors, so there's a good chance it will pass:
(a) “Physically and mentally able to perform suitable work” includes passing a United States Department of Transportation-qualified drug screen or a drug screen approved by the Department of Workforce Services as specified in subdivision (3)(A)(ii)(c) of this section.
(b) An applicant for unemployment benefits shall submit to a drug screen to be tested for illegal drugs through a program established by the Department of Workforce Services.
(c) A drug screen under this subdivision (3)(A)(ii) shall be administered to a random sampling of applicants before the first weekly benefits payment and before the thirteenth week of weekly benefits payments.
(d) A person who refuses to submit to a drug screen required under subdivision (3)(A)(ii)(b) of this section or who has tested positive for illegal drugs in a drug screen required under subdivision (3)(A)(ii)(b) of this section is not eligible to receive benefits.
It looks like it will be a good year at my law firm when I sue the state, if this is actually enacted. The primary sponsor is considered by his cohorts to be a constitutional oracle, at least he was at the last session, for some unfathomable reason (tells them what they want to hear), but he only recognizes two of the Bill of Rights: The Second and Tenth Amendments. The rest are white noise.
Remember: (1) every similar provision around the country has either been struck down or withdrawn when the legislature came to their senses; (2) Arkansas passed its creation science statute back in 1981, and it cost the state about half a million in attorney's fees in 1982 dollars, and they knew it when they passed it what they were getting into. McLean v. Arkansas Bd. of Education, 529 F. Supp. 1255 (E.D. Ark. 1982); meaning: (3) the Arkansas legislature still, 32 years later, doesn't care if it is violating the constitution when it passes stuff.
Perhaps Gov. Mike Beebe will veto it and give SB58 the constitutional burial it deserves, putting it out of its misery.
NYTimes: Philadelphia "Police Accused of Retaliatory Arrests" for videorecording them by AP:
The Philadelphia police have shown a pattern of wrongfully arresting people who videotaped officers in public, according to a federal lawsuit filed Wednesday. The complaint by the American Civil Liberties Union was drawn up on behalf of a Temple University photojournalism student, Chris Montgomery, 24, who was charged with disorderly conduct for using his cellphone to record the police during a large altercation.
NYTimes: Felony Charges for Officer Accused of False Arrest by Russ Buettner
A New York City police officer was charged with 10 felony counts of filing a false document in connection with what prosecutors said was an unwarranted arrest of a man in a Harlem housing project last year.
The officer, Isaias Alicea, was arraigned on Wednesday in State Supreme Court in Manhattan on the felony counts and on two misdemeanor counts of official misconduct. The felony charge carries a maximum sentence of four years in prison.
Defendant was being investigated by the ATF. He was followed to the Atlanta airport, and he checked a gun through luggage with Spirit Airlines. The airline didn’t ask if the gun was unloaded, but, even if they did, they take a passenger’s denial at face valid. Defendant filled out all the proper paperwork to fly with a gun, and noted it was checked unloaded. TSA’s Air Marshals were called to deal with the situation. They decided to search the bag at the behest of the ATF officers there. The search of the bag was not a proper administrative search, and TSA has no criminal investigative purpose. Defendant’s bag had already been cleared by TSA on an x-ray inspection. United States v. Muhammad, 2013 U.S. Dist. LEXIS 5677 (N.D. Ga. January 14, 2013):
While airport and air travel safety is a major concern, the Court finds that the Government has not met its burden of showing a valid administrative search occurred. Based on the evidence presented, or lack thereof, the Court must agree with Muhammad that it appears the search of his luggage was not for an administrative purpose, but rather was for an investigatory purpose. This is not the type of case in which during the course of a search a "second, subjective motive" was developed. Instead, the desire to investigate Muhammad for alleged criminal conduct spurred and shaped the ensuing search, and the totality of the events and circumstances on December 23, 2010 undermine the Government's argument to the contrary.
. . .
Instead, the search was spurred by Agent Southall's involvement—again, an ATF agent who was only present at the airport to investigate a criminal suspect. 9 While Agent Southall's own experience may have been that his own guns were physically checked when he declared them, this does not show that proper protocol was not followed with Muhammad's bag and thus there was a need to perform the search at issue. Again, the search occurred after Muhammad's bag had already been cleared by TSA screeners. McCarty, 648 F.3d at 835 ("[W]here an action is taken that cannot serve the administrative purpose—either because the threat necessitating the administrative search has been dismissed, or because the action is simply unrelated to the administrative goal—the action clearly exceeds the scope of the permissible search.").
. . .
3. Investigation Shaped the Search
Third, while Air Marshal Barber testified that he conducted the search due to safety concerns, the oddities and occurrences on the date in question take this search out of the realm of a valid administrative search. For example, if the purpose of the search was really to allay safety concerns, Air Marshal Barber or other TSA agents could have stopped Muhammad at the oversized baggage checkpoint and had the weapons physically inspected then. Instead, all parties involved waited until after Muhammad left this screening area. The only reason the Court can see for why this "need" for an inspection of the declared gun was not brought to the screeners' attention at the time Muhammad was present, was out of concern for damaging the underlying investigation.
R&R: United States v. Muhammad, 2012 U.S. Dist. LEXIS 184741 (N.D. Ga. October 16, 2012).
Officers arrived at a known drug house with a search warrant, and they saw the defendant in the front yard. His hesitation in getting on the ground was an indication of a possible attempt to flee or look to escape, and that justified a stop and frisk. United States v. Lucas, 2012 U.S. Dist. LEXIS 184488 (N.D. Ga. December 14, 2012):
Here, the Court finds that the officers possessed reasonable suspicion of criminal activity. As the warrant established, the officers arrived at the house with probable cause to believe that it was the site of drug trafficking activity. The officers saw the Defendant on the front lawn of this known drug dealing location. When they instructed him to get on the ground, he hesitated. According to one officer, he made a movement that suggested he was about to flee. The other witness did not recall seeing movement but recalled that the Defendant looked around as if trying to find an avenue of escape. Either way, he did not immediately comply. The officers also explained that it is common for drug dealers to post look-outs or guards outside of drug dealing locations. All of these facts combined to establish reasonable suspicion that the Defendant was participating in criminal activity.
The court added "looking around" as if to find an avenue of escape as a critical fact, and it was. Just standing in the yard should mean nothing if he can't be otherwise connected to the drug house. High crime area alone is not enough, and I recall other cases actually holding merely being outside a house during a drug raid isn't enough. Moral: Just let them arrest you and deal with it later. It never helps to run, or, as here, even try to run. If he hadn't flinched, the suppression motion might have had to be granted. Sometimes criminal defendants are their own worse enemies.
It was not an improper threat to get consent for a police officer to stay in the home until a search warrant was obtained. They had enough information to get a search warrant, and they could stay in his house a reasonable time until a search warrant had been obtained. Consent was otherwise voluntary. State v. Mullien, 140 Conn. App. 299, 58 A.3d 383 (2013).*
Defendant’s 2255 motion for defense counsel’s failure to raise a search incident issue is denied. That issue came up during trial when defendant said he was dissatisfied with defense counsel for the same reason, and the court heard argument and determined that the facts don’t support a valid search incident claim. That opinion hasn’t changed. United States v. Gee, 2012 U.S. Dist. LEXIS 184449 (N.D. Fla. November 28, 2012).*
Police received a 911 call about potential credit card fraud from a known person. When they arrived, the stop was reasonable in length to investigate the circumstances. One defendant’s disavowing ownership of a laptop computer seized during a roadside investigation is a disavowing of standing to challenge its search when it was seized. United States v. Phillips, 2013 U.S. Dist. LEXIS 5562 (M.D. Tenn. January 14, 2013).*
Defendant’s patdown led to finding drugs before the actual arrest. The fact it preceded the arrest is not error here because he was going to be arrested. Also, the officer making the stop did it pretextually, but validly, because they were hiding the fact of an ongoing wiretap from him and others who might be aware of the stop and search. United States v. Welch, 2013 U.S. Dist. LEXIS 5938 (D. Me. January 15, 2013).*
A 22 month old child was taken to the ER with a report of injuries caused in the home, likely at the hands of the mother’s boyfriend. There was a newborn in the house, too. Police went to the house to check on the child, and, while people were inside, nobody would come to the door, and then defendant tried to go out the window. Officers also discovered defendant was under investigation for another battery. Based on all this, an entry was justified, and defendant was found to be a FIPF. United States v. Duhon, 503 Fed. Appx. 874 (11th Cir. 2013).*
The stop for hitting the fogline was valid despite defendant’s arguments. His consent thereafter was otherwise voluntary. State v. Magallanes, 284 Neb. 871, 824 N.W.2d 696 (2012).*
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"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
—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
—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."
"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)