Archives for: February 2013, 11


Permalink 08:07:41 am, by fourth, 146 words, 886 views   English (US)
Categories: General

E.D.Wis.: Going home after drug deals creates nexus to house for SW

Where defendant was followed home after his alleged drug deals, nexus was shown for a warrant for his house. United States v. Toniolo, 2013 U.S. Dist. LEXIS 17305 (E.D. Wis. February 8, 2013), R&R 2013 U.S. Dist. LEXIS 17307 (E.D. Wis. January 14, 2013).*

Defendant’s stop near the border was valid and with reasonable suspicion. “Under the totality of the circumstances in this case, Border Patrol Agent DeBaun possessed reasonable suspicion to stop Defendant. Although each fact in the circumstances previously described, taken individually, may appear innocent, it had significance to a trained law enforcement officer.” United States v. Valencia, 2013 U.S. Dist. LEXIS 17402 (D. Ariz. February 8, 2013).*

The City moves to stay the 2012 consent decree against it barring use of excessive force in violation of the Fourth Amendment. The motion is denied. United States v. City of New Orleans, 2013 U.S. Dist. LEXIS 17249 (E.D. La. February 8, 2013).*

Permalink 07:48:51 am, by fourth, 255 words, 1581 views   English (US)
Categories: General

CA9: Contempt of cop arrest here violated First Amendment

Plaintiff was stopped for violation of a noise ordinance but he was arrested because he argued some with the officer on video. The Court of Appeals found it was protected speech, and plaintiff was retaliated against under the First Amendment, even if there was probable cause. Ford v. City of Yakima, 706 F.3d 1188 (9th Cir. 2013):

Ford invoked his right to free speech. Urlacher replied:

I have the freedom to take you to jail, too. And that's what's going to happen. . . . You exercise [your freedom of speech] all you want, okay? If you just cooperate and treat the police like humans, we'll treat you like that. But when you act like that, like an animal, you've got to get treated that way, you know.

You're going to jail for numerous reasons. The crime you're going to jail for is the city noise ordinance. A lot of times we tend to cite and release people for that or we give warnings. However ... you acted a fool ... and we have discretion whether we can book or release you. You talked yourself—your mouth and your attitude talked you into jail. Yes, it did.

Urlacher later testified that he booked Ford (1) because he violated the city noise ordinance, which gives him discretion to book a person "if I feel like it," and (2) because he "failed to listen[,] ... failed to act civil, ... failed to take responsibility for his actions, [and because of] his rageful [and disrespectful] behavior towards the law enforcement," which put public safety at risk. (emphasis in original)

Permalink 07:42:25 am, by fourth, 150 words, 501 views   English (US)
Categories: General

IN: Dog sniff of car within five minutes of stop is reasonable

Because the dog sniff happened quickly, the stop was not unreasonable in its length. Smith v. State, 981 N.E.2d 1262 (Ind. App. 2013).* [Cases like this should scare us all. Do they mean that law enforcement can sniff any car as long as a drug dog can get there in five minutes? What does that say about us as a nation? Even those of us not carrying dope would be grossly offended if the police could use a drug dog on all of us.]

Defendant’s standing is tenuous at best, but he loses on the merits of the automobile exception anyway. United States v. Campbell, 2013 U.S. Dist. LEXIS 16535 (N.D. Ala. January 4, 2013), adopted 2013 U.S. Dist. LEXIS 15805 (N.D. Ala., Feb. 6, 2013).*

Defendant was a mere visitor to the apartment searched, so she doesn’t have standing. United States v. Clements, 2012 U.S. Dist. LEXIS 185740 (W.D. N.Y. November 30, 2012).*

Permalink 07:18:38 am, by fourth, 158 words, 421 views   English (US)
Categories: General

E.D.Mich.: Defendant's hesitation not a seizure

When confronted by the police, defendant hesitated and then bolted. His hesitation wasn’t a seizure. United States v. Brown, 2013 U.S. Dist. LEXIS 17246 (E.D. Mich. February 8, 2013):

fn2 To the extent there was any momentary hesitation by Defendant after he was ordered to put his hands on the hood of Van Buskirk's cruiser, before he took off running, such hesitation would be insufficient to transform the encounter into a Fourth Amendment seizure. See United States v. Hernandez, 27 F.3d 1403, 1405, 1407 (9th Cir. 1994) ("We decline to adopt a rule whereby momentary hesitation and direct eye contact prior to flight constitute submission to a show of authority. Such a rule would encourage suspects to flee after the slightest contact with an officer in order to discard evidence, and yet still maintain Fourth Amendment protections.").

Such a rule could never be judicially enforced. We’d be arguing over whether a hesitation was one second or five and whether one was enough.

Permalink 07:02:30 am, by fourth, 145 words, 399 views   English (US)
Categories: General

OR: Defendant’s “No Trespassing” sign alone was not determinative of complete privacy

Defendant’s “No Trespassing” sign alone was not determinative of complete privacy. More was required. He otherwise consented to entry into the house. State v. Cam, 255 Ore. App. 1, 296 P.3d 578 (2013):

We agree with the state that, under the circumstances, defendant's intent to exclude visitors from his property was not manifest. The state correctly notes that the posting of a sign indicating that property is private does not in and of itself suggest that visitors to the property are excluded. As we said in Gabbard, in order to exclude the casual visitor from approaching a residence, "a person must make a greater showing than that which would be required to exclude individuals who would use the property for their own purpose, such as hiking." ...

Threat to issue further traffic citations if defendant didn’t consent makes his consent involuntary. State v. Beaudreau, 255 Ore. App. 175, 296 P.3d 623 (2013).*

Permalink 06:54:00 am, by fourth, 158 words, 522 views   English (US)
Categories: General

PA: State chose to stand on lack of "standing" and lost

The state relied on defendant having no standing and refused to put on proof that the search was legal. The trial judge ruled against the state on the merits, and it’s affirmed. Commonwealth v. Enimpah, 2013 PA Super 20, 62 A.3d 1028 (2013).*

Plaintiff, likely inebriated, accidentally called the police and made suicidal statements. Police arrived and forcibly entered her home and she fought with them, and her arm got broken. The entry into the home was valid on exigent circumstances, as was the use of force. Fitzgerald v. Santoro, 707 F.3d 725 (7th Cir. 2013), affg 842 F. Supp. 2d 1064 (N.D. Ill. 2012).

The police came because a neighbor called police that defendant was missing and hadn’t been seen for a while. The police knocked and got no answer. “[W]e conclude that the community caretaker exception to the warrant requirement was implicated upon consideration of all of the surrounding circumstances taken in unison.” People v. Hill, 299 Mich. App. 402, 829 N.W.2d 908 (2013).*

Permalink 06:39:36 am, by fourth, 238 words, 693 views   English (US)
Categories: General

IN: Dog sniff at front door not Fourth Amendment violation

Even though this issue has already been argued in SCOTUS, something not even mentioned by this court, a dog sniff at defendant’s front door is not unreasonable. The dog's alert was PC for a search warrant. Perez v. State, 981 N.E.2d 1242 (Ind. App. 2013):

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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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  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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