Archives for: February 2013, 10


Permalink 09:07:04 am, by fourth, 211 words, 460 views   English (US)
Categories: General

WI: No suppression for excessive force in a seizure not causally related to finding evidence

Excessive force in a seizure shouldn’t lead to suppression of evidence not causally related to it. State v. Herr, 2013 WI App 37, 346 Wis. 2d 603, 828 N.W.2d 896 (2013):

P11 As there is no causal relationship between the alleged use of unreasonable force and the evidence sought to be suppressed, Herr's suggested remedy would ill serve our legal system. Deterring police misconduct is an important goal, but not one that should necessarily be pursued at the expense of bringing criminals to justice. See Felix, 339 Wis. 2d 670, ¶39. The exclusionary rule is an extraordinary remedy that exacts "substantial social costs," including potentially releasing guilty and dangerous criminals into our communities and impairing the truth-seeking objectives of our legal system. See Hudson, 547 U.S. at 591. "Suppression of evidence ... has always been our last resort, not our first impulse." Id. Even though the threat that evidence may be suppressed may deter some police officers from using unreasonable force in carrying out otherwise lawful seizures, "[t]he Fourth Amendment does not require courts to exclude all evidence or forgo prosecuting a defendant following unlawful police conduct." Felix, 339 Wis. 2d 670, ¶40. As the evidence Herr seeks to suppress was not causally related to the alleged use of unreasonable force, we affirm the decision of the circuit court and Herr's conviction.

Permalink 08:59:40 am, by fourth, 516 words, 820 views   English (US)
Categories: General

S.D.N.Y.: Search incident of cell phone six hours later invalid

Search incident of a cell phone requires a narrow view. The search here was six hours after the arrest, so it was not “incident.” United States v. Dimarco, 2013 U.S. Dist. LEXIS 16279 (S.D. N.Y. February 5, 2013) (good analysis of the history of search incident as it would apply):

First, the timing of Agent Morales's search of DiMarco's cell phone makes it unreasonable to conclude that the search was performed incident to or contemporaneous with his arrest. Even the Government admits that more than six hours passed between DiMarco's arrest and the search of his cell phone. (See generally Gov't Post Hr'g Opp'n Mem. at 15 (chart establishing timing and events on February 2, 2012); see also Tr. at 69-70, 91-94; Gov't Exs. 3, 8.) By comparison, almost all of the courts of authority that have upheld the search of a cell phone under the search incident to arrest exception, contemplated searches that occurred as, or soon after, a suspect was arrested. See, e.g., Murphy, 552 F.3d at 411-12 (initial search of cell phone occurred when arrestee handed phone to arresting officer); Curry, 2008 U.S. Dist. LEXIS 5438, 2008 WL 219966, at *10 (search occurred "within less than a half hour of defendant's arrest"); Santillan, 571 F. Supp. 2d at 1102 (search occurred "mere minutes after the arrest and seizure" of phone).

Even in Finley, the case upon which the Government relies, the cell phone search was contemporaneous to Finley's arrest because the DEA Agent searched the phone during the course of investigative activities in the field and well before the police took him to the police station to begin processing the arrest and inventorying the items seized. See 477 F.3d at 254-55, 260. In addition, multiple courts have determined that cell phone searches occurring within much fewer than six hours were not sufficiently contemporaneous to be considered an incident of an arrest. ...

. . .

Although the Government asserts that it is relying on the search incident to arrest exception as discussed in Edwards, and not the inventorying procedure exception, for the proposition that a search may be incident to a lawful custodial arrest so long as the administrative procedures inherent to the arrest are ongoing, (Gov't Post Hr'g Opp'n Mem. at 14), this is too simplistic a reading of Edwards. ...

Second, the delayed search of DiMarco's cell phone was unreasonable because the reasons that Agent Morales stated for conducting the search are not relevant to the justifications underlying the search incident to arrest exception. DiMarco's cell phone presented no threat to the officers. Cf. Chimel, 395 U.S. 752 at 773, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (justifying warrantless search incident to arrest because "[t]here is always a danger that the suspect will try to escape, seizing concealed weapons with which to overpower and injure the arresting officers"). Nor has the Government, which has the burden of proof to show reasonableness, shown that DiMarco would have been able to destroy the evidence on his cell phone once the phone was placed under the exclusive authority of the NYPD. See id. (justifying warrantless search incident to arrest because "there is [also] a danger that [a suspect] may destroy evidence vital to the prosecution").

Permalink 08:19:33 am, by fourth, 156 words, 418 views   English (US)
Categories: General

E.D.Mich.: Defendant's excuse for his conduct does not undermine initial probable cause

An illegal power connection outside the house led to a search warrant for the house for proof of electricity theft. The defendant’s excuse for his conduct that arguably made it legal, at least in his mind, did not undermine the initial probable cause. Contraband was found. United States v. Lewis, 2013 U.S. Dist. LEXIS 15277 (E.D. Mich. February 5, 2013).

Officers had reasonable suspicion defendant was under the influence for an FST. He left a bar at 2:15 am and drove erratically. When stopped, he fumbled with his wallet looking for his DL, he smelled of alcohol, and admitted having consumed alcohol. State v. Dillehay, 2013 Ohio 327, 2013 Ohio App. LEXIS 295 (3d Dist. February 4, 2013).*

Defendant did not show “standing” to challenge the search of the house he was visiting when the raid occurred. He presented no witnesses and asked no questions of government witnesses that even suggested standing. United States v. Rose, 2013 U.S. Dist. LEXIS 16366 (W.D. Pa. February 7, 2013).*

Permalink 08:09:02 am, by fourth, 305 words, 507 views   English (US)
Categories: General

NC: Roadside strip search was conducted reasonably

Defendant’s roadside “strip search” was reasonable in its justification and how it was conducted. There was a lump in his groin area found during a patdown that was apparently the source of marijuana odor coming from his person. State v. Johnson, 2013 N.C. App. LEXIS 136 (February 5, 2013):

Having concluded that there was a specific basis for believing that contraband was present in defendant's undergarments, the next question is whether the searching officers took reasonable steps to protect defendant's privacy. See Robinson, __ N.C. App. at __, 727 S.E.2d at 723. Here, the troopers placed defendant on the side of Trooper Hicks's vehicle so that the vehicle blocked them from the travel lanes of the highway and formed a wall around defendant as he was being searched so that he could not be seen by passers-by. The troopers never actually removed or pulled down his pants and never examined any of his "private parts". Defendant was wearing two layers of clothing underneath his pants. The first layer was a pair of boxer-briefs of the type found in the passenger compartment of his car. Underneath the boxer-briefs, defendant was wearing athletic-style compression shorts with a compartment for a protective cup. The only private areas subjected to search by the troopers remained covered by defendant's compression shorts and they did not remove his pants or outer underwear to retrieve the package from his pants.

We hold that these facts, as found by the trial court, support the trial court's conclusion that "[t]he troopers took necessary and reasonable precautions to guard against any public exposure of defendant's private areas during the search of his person, and the search of his private areas was not constitutionally intolerable in its intensity or scope." Therefore, we affirm the trial court's order denying defendant's motion to suppress the evidence seized from his person.

Permalink 12:00:27 am, by fourth, 57 words, 428 views   English (US)
Categories: General Tracking Privacy and Ownership in an Online World Tracking Privacy and Ownership in an Online (Audio):

Your phone knows where you are. Social networks know who your friends are, and what you ate last night. How much of your personal data is really yours to control? Khaliah Barnes of the Electronic Privacy Information Center helps sort out the politics and policies of privacy.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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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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"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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