Archives for: January 2013, 25


Permalink 11:43:21 pm, by fourth, 129 words, 505 views   English (US)
Categories: General

NY Daily News: NYPD will begin testing a new high-tech device that scans for concealed weapons

NY Daily News: NYPD Commissioner says department will begin testing a new high-tech device that scans for concealed weapons | The device, which tests for terahertz radiation, is small enough to be placed in a police vehicle or stationed at a street corner where gunplay is common by Rocco Parascandola:

Get ready for scan-and-frisk.

The NYPD will soon deploy new technology allowing police to detect guns carried by criminals without using the typical pat-down procedure, Police Commissioner Raymond Kelly said Wednesday.

The department just received a machine that reads terahertz — the natural energy emitted by people and inanimate objects — and allows police to view concealed weapons from a distance.

“If something is obstructing the flow of that radiation, for example a weapon, the device will highlight that object,” Kelly said.

Permalink 02:47:10 pm, by fourth, 275 words, 828 views   English (US)
Categories: General

TX: In a civil forfeiture, the defense apparently must prove a negative on summary judgment

On defense summary judgment in a forfeiture case, the defense has to prove a negative, that the officers did not have “a reasonable belief that the property had or would have a substantial connection with illegal activity.” Grant of summary judgment reversed. State v. Ninety Thousand Two Hundred Thirty-five Dollars and No Cents in United States Currency ($90,235), 11-0642 (Tex. January 25, 2013).* This is the gobbledygook of the month:

Bueno’s only summary judgment evidence was his affidavit. We need not address the affidavit’s weight in light of Bueno’s status as an interested witness, because his affidavit was insufficient to support summary judgment regardless of his status. See Tex. R. Civ. P. 166a(c) (stating the specific requirements for when summary judgment may be based on the uncontroverted testimonial evidence of an interested witness). The affidavit states, as relevant to any connection between the seized property and illegal drug dealing activities, that (1) the vehicle and money were “acquired legally and lawfully”; and (2) the money represented a partial payment from the sale of his ranch. But the affidavit wholly fails to address whether the officers had a reasonable belief that the property had or would have a substantial connection with illegal activity as pleaded by the State—even assuming Bueno could address what the officers believed and whether their beliefs were reasonable. The affidavit certainly does not conclusively prove that none of them did. And until Bueno conclusively established that none of them had such a belief, the trial court could not have properly granted summary judgment on Bueno’s second ground. The court of appeals erred by holding otherwise.

h/t Americans for Forfeiture Reform

Permalink 12:11:58 pm, by fourth, 239 words, 445 views   English (US)
Categories: General

IN: Photographs of defendant's car didn't objectively support state's justification for window tint stop

The court of appeals looks at the photographs of defendant’s car and concludes the window tint justification for the stop was objectively unreasonable, and the motion to suppress should have been granted. Sanders v. State, 981 N.E.2d 616 (Ind. App. 2013).*

Defendant was arrested for OWI, but the officer knew defendant and that he was a suspect in several burglaries. On this record, there was a fair probability defendant had evidence of burglaries in the car. Thus, Gant was no impediment to searching the trunk. State v. Lefler, 2013 WI App 22, 346 Wis. 2d 220, 827 N.W.2d 650 (2013).*

Defendant was carrying a gun in his waistband at a racetrack. Security there was provided by private security and sheriff’s deputies. A tipster told a security officer that defendant had a gun, and defendant was near a bathroom near a large crowd including children. “Mr. Johnson walked by Mayes and intentionally gave him a ‘shoulder bump,’ allowing him to feel a gun in Mayes’s front waistband. Based on his experience searching for weapons at night clubs, Mr. Johnson felt what he believed to be an automatic. He proceeded to move Mayes away from the bathroom, search him, secure the loaded gun, and place Mayes in handcuffs.” Defendant was taken to a sheriff’s deputy and turned over. He was a felon in possession, and this was purely a private search. United States v. Mayes, 2013 U.S. Dist. LEXIS 9471 (D. S.C. January 24, 2013).*

Permalink 11:49:59 am, by fourth, 125 words, 398 views   English (US)
Categories: General

CA3: Police reliance on a prosecutor’s legal advice on PC to arrest gives qualified immunity

Police reliance on a prosecutor’s legal advice on probable cause to arrest is entitled to qualified immunity. Fiore v. City of Bethlehem, 510 Fed. Appx. 215 (3d Cir. 2013).*

In this § 1983 false arrest case, defendants did not violate plaintiffs’ Fourth Amendment rights by arrest and seizure of a car for a hit-and-run where the car well matched the description given by the victims. There was probable cause. Robinson v. Cook, 706 F.3d 25 (1st Cir. 2013).*

Defendant’s truck was illegally parked near the visitor center of Yosemite National Park, and a park ranger approached to get defendant to move it. The smell of marijuana coming from the truck was probable cause more might be found in the truck. United States v. Parker, 919 F. Supp. 2d 1072 (E.D. Cal. 2013).*

Permalink 10:39:18 am, by fourth, 324 words, 379 views   English (US)
Categories: General

W.D.Pa.: Finding standing from the CI

You never know where you can finding sufficient evidence of standing: Here, the CI’s statement to the police showed the defendant had standing. Then defense counsel undermined it in a 404(b) pleading admitting no privacy interest in the premises. United States v. Stanton, 2013 U.S. Dist. LEXIS 8983 (W.D. Pa. January 22, 2013)*:

On the other hand, Officer Wilner's communications with CI support the conclusion that Defendant had an expectation of privacy in 310 Broadway. Officer Wilner testified that CI had seen Defendant at the residence "more than once." (Tr. at 25-26). Although CI reported that Defendant was dealing narcotics out of the residence, (Tr. at 41), Officer Wilner also testified that CI told him that "[Defendant] was staying there." (Tr. at 57, 60). Although no addressed mail, clothing or witness testimony was produced relating to Defendant's status, the evidence does show that Defendant had been staying at the residence for some time. Defendant had not been located at his other listed residences by his probation officer, and CI had seen Defendant multiple times at the residence, stating that he had been staying there. Accordingly, based on the present record, it appears that Defendant was more than just a "short-term guest" and had an expectation of privacy in 310 Broadway. Therefore, he has established standing to challenge the evidence resulting from the September 9, 2010 search of 310 Broadway Avenue.9

9 The Court does recognize defense counsel's argument that 310 Broadway is "a residence to which the Defendant did not even have a privacy interest" in her supplemental brief addressing Rule 404(b) issues. (Docket No. 91, Supplemental Brief to Defendant's Motion to Produce Evidence that the Government Intends to use Under Federal Rules of Evidence 404(b) and 609 and Motion to Sever). If Defendant maintains this statement, then he would lack standing to challenge the evidence found during the September 9, 2010 search of 310 Broadway Avenue. Because the Court concludes there was no Fourth Amendment violation, there is no need to further address the legal effect of Defendant's statement.

Permalink 08:43:49 am, by fourth, 887 words, 1176 views   English (US)
Categories: General

E.D.Pa.: Three opinions on standing and nexus

In a drug-homicide death penalty case, three informative Fourth Amendment opinions on standing and nexus [the court has an "opinions" page [also here]; check back to see if posted]:

1. Whether an organizer has standing in the “office” of this DTO is a close question, and this defendant might actually have it. Moreover, the government makes many contentions of this defendant’s control over and presence at the place then argues he still doesn’t have standing. So, assuming standing, he loses on the merits of staleness, lack of probable cause, and a Franks issue. United States v. Savage, 2013 U.S. Dist. LEXIS 9360 (E.D. Pa. January 24, 2013).* As to standing, which is all dicta:

Defendant's classification of 3510 Palmetto as his "office" also bolsters his claim to standing. See, e.g., United States v. Chaves, 169 F.3d 687, 690-91 (11th Cir. 1999) (defendant had legitimate expectation of privacy in warehouse despite lack of formal ownership and maintenance of a different "principal place of business," because he conducted business and kept personal possessions there). The fact that Defendant was employed in the business of narcotics distribution does not negate the legitimate expectation of privacy in a place of business under his control.

The Government contends that management of a criminal enterprise dedicated to narcotics distribution is not a privacy interest that society is prepared to recognize as legitimate. It is true that an "interest in possessing contraband cannot be deemed 'legitimate.'" Illinois v. Caballes, 543 U.S. 405, 408 (2005). At stake for Defendant here was not merely an interest in possessing contraband that could justify, as in Caballes, a cursory dog sniff of a vehicle. Much of Defendant's business operations were conducted from the 3510 Palmetto warehouse.

We will assume that Defendant has standing to challenge this search, even as we have reservations about 3510 Palmetto's status as an "office." Accordingly, we will proceed to Defendant's substantive Fourth Amendment claims.

2. “Defendant's use of an alias in renting Apartment 46C and registering the Villager does not negate his standing to challenge this search.” Defendant’s car was sufficiently connected to drug activity and was where he was found, and it was named in the warrant. Its search was proper, and, if it wasn’t, the good faith exception clearly applies. United States v. Savage, 2013 U.S. Dist. LEXIS 9354 (E.D. Pa. January 24, 2013):

Defendant's use of an alias in renting Apartment 46C and registering the Villager does not negate his standing to challenge this search. See, e.g., United States v. Watson, 950 F.2d 505, 508 (8th Cir. 1991) (defendant had standing to challenge search when he had rented home under alias); United States v. Pitts, 322 F.3d 449, 459 (7th Cir. 2003) (defendant had standing to challenge search of mail sent to alias); United States v. Newbern, 731 F.2d 744, 748 (11th Cir. 1984) (defendant had standing to challenge search of hotel room rented to alias). Defendant had rented Apartment 46C several weeks prior to his arrest and the subsequent search of the apartment. (Notice of Occupancy.) Defendant was, by all accounts, residing in Apartment 46C at the time of his arrest. Similarly, the Villager was registered to Defendant's alias and was sitting in front of the apartment. Accordingly, Defendant has standing to challenge the search of Apartment 46C and the Villager.

3. Sufficient nexus was shown to search defendant’s storage locker based on the facts and the affiant officer’s assertion of knowledge of where drug traffickers keep their stuff. United States v. Savage, 2013 U.S. Dist. LEXIS 9362 (E.D. Pa. January 24, 2013):

Defendant also argues that "the information provided within the four corners of the affidavit fails to establish a sufficient nexus between the alleged criminal activity and the storage locker." (Def.'s Mot. 20.) Courts may inquire into whether there is probable cause as to "the nexus between the crime and the place to be searched." United States v. Jones, 994 F.2d 1051, 1054 (3d Cir. 1993). Such a nexus can "be established by direct observation or by normal inferences." United States v. Martinson, 811 F. Supp. 1097, 1102 (E.D. Pa. 1993) (citations omitted).

Special Agent Lewis's Affidavit was more than sufficient to establish probable cause to believe that Unit #105 was linked to the drug trafficking crimes in which Defendant was a suspect at the time. The Affidavit notes that the receipt was seized from Defendant's vehicle. (Affidavit ¶ 9.) It notes that the search of Apartment 46C—in front of which the Villager was parked—yielded illicit controlled substances and equipment used for processing cocaine. (Id. at ¶ 8.) It further describes conversations with Anne Ketterer at Devon, which yielded evidence that Defendant, using his alias, had rented Unit #105. Finally, the Affidavit notes, based on Special Agent Lewis's training and experience, that "individuals who distribute controlled substances frequently use storage facilities" for illegal purposes. (Id. at ¶ 13.) The experience of an affiant can assist a magistrate in determining that probable cause exists. See, e.g., United States v. Price, 558 F.3d 270, 282-83 (3d Cir. 2009) (finding probable cause to search defendant's home where the affiant stated in the affidavit that based on his experience, individuals who engage in drug trafficking often keep drugs, money and other contraband in their homes). The Affidavit clearly establishes that Defendant was connected to illegal drug activities, and that Defendant was connected to Unit #105. We are satisfied that Judge Smith had more than a sufficient basis upon which to determine that there existed probable cause to issue the Devon search warrant.

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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)

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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
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    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (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 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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