Archives for: February 2013, 12


Permalink 04:13:49 pm, by fourth, 354 words, 1019 views   English (US)
Categories: General

New law review article: "Off the Fourth Amendment Leash?: Law Enforcement Incentives to Use Unreliable Drug-Detection Dogs"

Leslie A. Shoebotham, Off the Fourth Amendment Leash?: Law Enforcement Incentives to Use Unreliable Drug-Detection Dogs on SSRN. Abstract:

After United States v. Place and Illinois v. Caballes, the central concern for courts asked to determine the admissibility of positive, canine drug-detection sniffs was whether the sniff was performed by a “well-trained” detection dog - which most courts equated with “reliability” for purposes of establishing probable cause. Florida v. Harris asks the U.S. Supreme Court to resolve the dispute concerning what evidence trial courts are permitted to consider in determining whether a drug-detection dog is well trained. This Article responds to the State of Florida’s assertions in Harris that trial courts must defer to law enforcement determinations of canine-reliability, and should be prohibited from performing independent determinations of reliability by examining detection-dog field performance records. The Article argues that clear incentives exist for law enforcement to use unreliable drug-detection dogs (or dogs with only marginal reliability) in the field: (1) financial self-interest, based on civil forfeiture statutes that authorize police to seize cash discovered during a physical search (which, pursuant to statute, may be placed into local, law-enforcement coffers to supplement law enforcement budgets) based on the money’s connection to a drug crime — which is often established by a positive canine alert to the cash, and (2) targeting of certain groups, such as racial or ethnic minorities, for police investigation. Additionally, the State of Florida’s argument that law enforcement is deterred from using unreliable drug-detection dogs because “inaccurate” dogs “put an officer in harm’s way” is a red herring. While traffic stops are dangerous encounters for law enforcement, those dangers are produced by the officer’s decision to stop a particular vehicle — presumably on the basis of probable cause for a traffic violation or other criminal wrongdoing — not a driver’s apprehension upon being stopped that his or her vehicle might eventually be subjected to a canine drug-detection sniff. Therefore, trial court consideration of detection-dog field performance records as part of a court’s canine-reliability determination is an essential firewall to preventing police use of marginal, or even unreliable, drug-detection dogs.

Permalink 07:46:41 am, by fourth, 335 words, 1277 views   English (US)
Categories: General

N.D.Iowa: “Public safety exception” applies to asking defendant about a possible meth lab

“Public safety exception” applies to asking defendant about a possible meth lab in the car. It isn’t just limited to questions about guns. United States v. Noonan, 2013 U.S. Dist. LEXIS 17794 (N.D. Iowa February 11, 2013):

First, the court finds that Defendant's argument that the public safety exception is limited to the context of firearms is without merit. In United States v. Luker, 395 F.3d 830 (8th Cir. 2005), the Eighth Circuit held that the public safety exception was applicable where an officer, without first advising the defendant of his Miranda rights, asked the defendant "if there was anything in [the defendant's] vehicle that shouldn't be there or that [the officers] should know about." Id. at 832. The Eighth Circuit held that the defendant's response was admissible because "[t]he officers were aware of [the defendant's] methamphetamine use and were concerned about needles or substances associated with such use in the car." Id. at 833-34. ... Thus, the Eighth Circuit has extended the public safety exception beyond the context of firearms.

Moreover, the Eighth Circuit has recognized the public safety hazard posed by the manufacture of methamphetamine. See United States v. Ellefson, 419 F.3d 859, 866 n.4 (8th Cir. 2005) ("[T]he manufacture of methamphetamine is an inherently dangerous activity that creates substantial risks to public health and safety."); United States v. Walsh, 299 F.3d 729, 734 (8th Cir. 2002) (holding that there were exigent circumstances justifying the officers' warrantless search of a storage shed where an officer smelled ether and saw equipment that "suggested an on-going manufacture in the shed" and noting that "[t]he potential hazards of methamphetamine manufacture are well documented"); .... Given these dangers, the court finds that the public safety exception is applicable where an officer is concerned about a possible methamphetamine lab. See United States v. King, 182 F. App'x 88, 91 (3d Cir. 2006) (holding that there was no Miranda violation where officers' questions were aimed at "obtain[ing] safety information ... before law enforcement personnel entered the potentially dangerous clandestine methamphetamine laboratory" (quoting United States v. King, 366 F. Supp. 2d 265, 274 (E.D. Pa. 2005)).

Permalink 07:40:13 am, by fourth, 145 words, 923 views   English (US)
Categories: General

D.Me.: No standing for gun stashed on apartment's shared back porch

Stashing a gun in the rafters of a back porch of an apartment with another apartment door there was a waiver of a reasonable expectation of privacy. Also, removing the defendant was for interrogation and because the police felt he didn’t have standing to object to a search anyway. The court finds Randolph not violated. United States v. Constant, 2013 U.S. Dist. LEXIS 15524 (D. Me. February 5, 2013).*

Probable cause existed for search of defendant’s house for evidence of social security and passport fraud. United States v. Cadet, 2013 U.S. Dist. LEXIS 17436 (N.D. Ga. January 16, 2013).*

Based on reports, defendant’s parole officer had reasonable suspicion to believe he was involved in guns and drugs, so a search of his house was justified. Guns and drugs were in plain view, so a more intense search was permitted. State v. Edwards, 107 So. 3d 883 (La.App. 3 Cir. 2013).*

Permalink 07:21:51 am, by fourth, 425 words, 1371 views   English (US)
Categories: General

NM: Violation of knock-and-announce requires exclusion under state constitution

“The police entry into defendant's home after waiting only one to five seconds after knocking and announcing violated her right to be free of unreasonable searches under the New Mexico Constitution.” Violation of the knock-and-announce requirement is fundamental and requires exclusion under the state constitution. (Hudson is cited, but not discussed.) State v. Jean-Paul, 2013 NMCA 032, 2013 N.M. App. LEXIS 13 (January 22, 2013):

P18 The State also contends that the futility exception applies because Dickson knew of the police officers' presence. Again, however, it is not sufficient that occupants know of the police's presence; they must also know of the police's purpose and authority for being there. We recognize that in this case the officers could have reasonably believed that what Dickson saw when he was facing the direction of the window was six uniformed officers carrying a battering ram and approaching the house. While these facts might come closer to providing a reasonable suspicion that Dickson knew that the officers were there to execute a warrant than those cases in which the occupant of a home simply sees an officer outside of the door, we nevertheless conclude that these facts do not support a reasonable suspicion that Dickson knew that the officers were there to search the home pursuant to a warrant. This is not a case in which occupants of a home engaged in any conduct evincing a consciousness of guilt or some other action that would demonstrate that they knew why the police were there.

P19 Furthermore, even if these facts did give rise to such a reasonable suspicion, we would nevertheless conclude that the futility exception does not apply. New Mexico has only applied the exception when there has been an affirmative act of refusal by an occupant of the premises because such action more clearly demonstrates that an occupant does not intend to voluntarily permit the police to enter than does a mere brief period of inaction. ...

P26 The State argues that the fact that Dickson was seen by the police in the window and then not seen provides a reasonable suspicion that either he or Defendant was destroying evidence. Although the record is somewhat ambiguous as to when Dickson was seen and not seen, if his movement away from the window occurred prior to the officers' announcement of their presence and purpose, we cannot reasonably conclude that the fact that someone moves about a residence knowing that the police are outside, but not knowing that they are there to execute a warrant, gives rise to the inference that he is destroying evidence. ...

Permalink 07:18:45 am, by fourth, 171 words, 799 views   English (US)
Categories: General

TX6: Failure to object to search is waiver

When defendant makes no objection to a search and seizure, the presumption remains that the issuing magistrate did his duty. Davidson v. State, 2013 Tex. App. LEXIS 1224 (Tex. App. – Texarkana February 8, 2013).*

The warrant for defendant’s DNA was properly issued. Although there were inconsistent statements, defendant had sex with the mother of the child from age 10 to 15, and the child was born during that time. PC still existed. Rhodes v. State, 2013 Ga. App. LEXIS 44 (February 5, 2013).*

During surveillance of a downstairs apartment, people would sometimes leave it and go upstairs for a minute. When the police came with a warrant for the downstairs apartment, they had reasonable suspicion to go to the upstairs apartment, too, here for officer protection while on the scene. Once there, the crack in defendant’s shoe was in plain view. State v. McAllister, 2013 Tenn. Crim. App. LEXIS 108 (February 7, 2013).*

Since officers had probable cause for defendant’s arrest, removing him to the police station for interrogation was not a constitutional violation. United States v. Slaughter, 708 F.3d 1208 (11th Cir. 2013).*

Permalink 12:00:19 am, by fourth, 315 words, 811 views   English (US)
Categories: General

WI: Warrant for GPS issued on PC permitted moving vehicle to install it

A GPS device was placed on defendant’s vehicle with a warrant, and the vehicle was moved to install it when the vehicle was once stopped. That was reasonable under the warrant and the Fourth Amendment, given the probable cause. State v. Brereton, 2013 WI 17, 345 Wis. 2d 563, 826 N.W.2d 369 (2013), affg State v. Brereton, 2011 WI App 127, 337 Wis. 2d 145, 804 N.W.2d 243:

[*P41] Moreover, the probable cause that the officers had at the time of the stop of Brereton's vehicle was sufficient to justify the officers' decision to continue the seizure of the vehicle and move it to a location where a GPS device could be installed more safely and effectively. See Ross, 456 U.S. at 807 n.9 (reaffirming that where officers have probable cause to justify the warrantless seizure of an automobile, they may conduct an immediate search of the vehicle, and if an immediate, warrantless search on the street is justified, moving the vehicle for a search at another location is equally permissible).

[*P42] Indeed, the Supreme Court's decisions in Ross, Chambers, and White provide explicit support for the methods chosen by the officers in this case. After seizing Brereton's vehicle pursuant to probable cause that the vehicle was or contained evidence of the rash of local burglaries, the officers elected to move the vehicle from its location along Highway 51 to the impound lot, where officers awaited judicial authorization prior to installing the GPS device. Cf. Chambers, 399 U.S. at 51-52. After receiving such authorization, officers installed the GPS device. Accordingly, under the relevant Supreme Court precedent, with probable cause for the seizure, neither the fact that officers moved the vehicle to install the GPS, nor the amount of time that officers held the vehicle can be said to be unreasonable in light of law enforcement's substantial interests in safety and in the effective installation of the GPS device that was used to search the vehicle.

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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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