Archives for: February 2013, 17


Permalink 08:15:39 am, by fourth, 175 words, 552 views   English (US)
Categories: General

TN: Matching description of car fleeing burglary was RS for stop

Officers had reasonable suspicion to stop defendant in a car that matched one reported in a burglary near the time of the burglary speeding away from the area of the burglary. State v. Rogers, 2013 Tenn. Crim. App. LEXIS 124 (February 13, 2013).*

Defendant was stopped for speeding, and the odor of marijuana coming from his car was strong, and that gave probable cause to search it. State v. Bashir, 2013 Tenn. Crim. App. LEXIS 136 (February 14, 2013).*

Where defendant would lose on the nexus argument he raised in an ineffectiveness claim, his lawyer couldn’t be ineffective. Kratochvil v. State, 2013 Tenn. Crim. App. LEXIS 142 (February 15, 2013).*

Despite procedural bars to raising attorney ineffectiveness in defendant’s state court proceeding for failure to raise issues in state court, defendant’s arrest was lawful, so defense counsel was not ineffective for not challenging it. The certificate of appealability is denied. Hyatt v. Rudek, 511 Fed. Appx. 723 (10th Cir. 2013).*

Defendant was properly stopped because his LPN was blocked by snow, and it turned out he was under the influence. State v. Haldane, 2013 MT 32, 2013 Mont. LEXIS 33 (February 12, 2013).*

Permalink 07:55:35 am, by fourth, 376 words, 722 views   English (US)
Categories: General

CA4: Report of live grenade in house still wasn't exigency without knowing more

The mere presence of an alleged live grenade, without more, did not justify exigency for a police entry into defendant’s house. In fact, it turned out that the grenade was last seen by defendant’s wife, the reporter to them, two years earlier, although the police didn't know that at the time. See United States v. Bonitz, 826 F.2d 954, 957 (10th Cir. 1987) (concluding no exigency existed where officers found cans of gun powder because "[s]tanding undisturbed, cans of gun powder are inert"). United States v. Yengel, 711 F.3d 392 (4th Cir. 2013):

=> Read more!

Permalink 07:47:20 am, by fourth, 195 words, 530 views   English (US)
Categories: General

D.Ariz.: One doesn't need to be a police target for a search warrant to issue for evidence

Defendant contended that he was not a suspect in a crime, but a witness, therefore a search warrant could not issue for his place. To the contrary, a person can be innocent of crime but have evidence subject to a search warrant (Zurcher). United States v. Kelly, 2013 U.S. Dist. LEXIS 20949 (D. Ariz. February 14, 2013).*

While defendant did not testify, the circumstances showed his reasonable expectation of privacy in the two containers searched. Keeping the containers closed and locked manifested his expectation of privacy. United States v. Gardner, 2013 U.S. Dist. LEXIS 20527 (E.D. N.C. January 30, 2013).*

The search of defendant’s car was with probable cause. Officers observed a hand-to-hand transaction with defendant standing next to the car, and he drove off and stopped at a business. They followed and talked to defendant, and the odor of marijuana was coming from the car. United States v. Farmer, 2013 U.S. Dist. LEXIS 20933 (E.D. Mo. January 2, 2013).*

While this is a close case, the anonymous CI provided his basis of knowledge to the officer, and that supported credibility for the stop based on reasonable suspicion. United States v. Aviles-Vega, 2013 U.S. Dist. LEXIS 20220 (D. P.R. January 8, 2013).*

Permalink 07:26:51 am, by fourth, 223 words, 488 views   English (US)
Categories: General

N.D.Ga.: Search warrant for drugs and records at a business includes owner's attache case

Search warrant for drugs and records of a business included defendant’s attache case that was there when the warrant arrived. The warrant was conceded to be otherwise valid. United States v. Votrobek, 2012 U.S. Dist. LEXIS 185962 (N.D. Ga. June 25, 2012).*

Defendant’s stop on a motorcycle was for speeding. A drug dog alerted on the saddlebag, and that was probable cause. United States v. Gunnell, 2012 U.S. Dist. LEXIS 185931 (W.D. Mo. December 17, 2012).*

The prosecution put on evidence of the drug dog’s training and experience. “In short, it is difficult to contemplate a more complete and compelling record that could be before the court regarding this drug dog's abilities.” The extra time of conversation with the defendant was de minimus. United States v. Givens, 923 F. Supp. 2d 803 (E.D. Va. 2013).*

The entry into the house was with the consent of defendant’s parents. The search of his room was with his consent. A shotgun was in plain view. United States v. Carter, 2012 U.S. Dist. LEXIS 186034 (D. Me. November 30, 2012).*

When the registered owner of a vehicle is shown to have a suspended DL, a stop of the vehicle is justified if the officer cannot tell that the operator is a different person (such as different gender, much different age). United States v. Barber, 2013 U.S. Dist. LEXIS 19596 (N.D. Iowa January 25, 2013).*

Permalink 07:10:10 am, by fourth, 244 words, 433 views   English (US)
Categories: General

W.D.Va.: No reasonable expectation of privacy in an unlocked vehicle parked off one's property

Because the defendant’s truck was not on the property when the warrant for the property was issued, it wasn’t subject to the warrant. However, the truck was left unlocked and with the key in the ignition, and the court finds that shows a lack of a “reasonable expectation of privacy” in the truck. United States v. Conrad, 923 F. Supp. 2d 843 (W.D. Va. 2013).*

Defendant kept drugs in a camper on another’s property. He agrees he doesn’t have standing in the curtilage there, and he argues just in the camper, a “place of business.” There was no Fourth Amendment protection from surveillance of the camper. There was probable cause for the search in the two affidavits. A GPS device had also been placed with a warrant. United States v. Belisle, 2013 U.S. Dist. LEXIS 17805 (D. Me. February 11, 2013).*

The warrant for the cell phone was properly issued. United States v. Satchell, 2013 U.S. Dist. LEXIS 19725 (E.D. Mo. February 14, 2013).*

Pro se defendant does not argue the application of the good faith exception in the USMJ R&R, and the motion to suppress is denied. United States v. Hunter, 2013 U.S. Dist. LEXIS 19751 (D. Minn. February 14, 2013).*

Defendant’s ineffective assistance claim that defense counsel did not present some important evidence at the hearing on the motion to suppress is denied. That which wasn’t presented wouldn’t change the outcome. United States v. Harris, 2013 U.S. Dist. LEXIS 19672 (W.D. Pa. February 14, 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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