Archives for: February 2013, 18

02/18/13

Permalink 02:29:30 pm, by fourth, 220 words, 491 views   English (US)
Categories: General

Am.Crim.L.Rev. Blog: “So, What Have You Been Up To? Maryland v. King and the Implications of DNA Searches on Arrestees”

Am.Crim.L.Rev. Blog: So, What Have You Been Up To? Maryland v. King and the Implications of DNA Searches on Arrestees by Regan Gibson, ACLR Featured Blogger:

On February 26, 2013, the Supreme Court will hear argument in Maryland v. King, and will determine the constitutionality of a Maryland statute that authorizes the collection of DNA from individuals arrested for certain felonies. In brief, the case concerns Alonzo King, who was arrested in 2009 on first and second-degree assault charges, and was subjected to DNA collection under the 2008 amendments to the Maryland DNA Collection Act. The Act authorizes authorities to collect DNA samples from those arrested for a crime of violence, an attempted crime of violence, a burglary, or an attempted burglary. Samples taken from arrestees are analyzed and profiles are uploaded in the FBI’s Combined DNA Index System (“CODIS”), where they can be compared against samples taken from crime scenes.[1] King’s profile was uploaded into the system and a few months later (but before his trial on the assault charges) was matched with an unknown sample collected after an unsolved sexual assault. The CODIS match was used as probable cause for a search warrant to collect a new sample from King and he was subsequently indicted and convicted for first-degree rape. King was sentenced to life in prison.

Permalink 09:00:36 am, by fourth, 118 words, 554 views   English (US)
Categories: General

FL5: Defendant not entitled to be Mirandized before consent to search his person was sought during a traffic stop

Defendant was not entitled to be Mirandized before consent to search his person was sought during a traffic stop. State v. Thomas, 109 So. 3d 814 (Fla. 5th DCA 2013).*

Defendant was detained for consuming alcohol in public. His admission he was armed justified a patfrisk for the gun because the officers were unfamiliar with him and whether he would do something unpredictable. Commonwealth v. Jones, 83 Mass. App. Ct. 296, 983 N.E.2d 253 (2013).

The government’s affidavit that they had information defendant was a felon in possession on supervision justified the search of his house for the gun. Defendant doesn’t even get a hearing; motion to suppress denied. United States v. Patterson, 2013 U.S. Dist. LEXIS 21203 (S.D. N.Y. February 14, 2013).*

Permalink 08:49:49 am, by fourth, 137 words, 487 views   English (US)
Categories: General

OH8: USMs did not show reasonable basis to believe fleeing fugitive in defendant's home

The USMs were looking for a fleeing violent fugitive who cut off an ankle monitor, and they ended up at defendant’s house. There was no showing at all of a reasonable belief that the fugitive was even in defendant’s residence (Steagald). There was allegedly “a tip,” but no factual basis at all was given for it. The state also argued exigency because the USMs claimed to hear a window open and cocaine be thrown, but no facts support that because, admittedly, it was speculation, and not based on an observation. State v. Rodriguez, 2013 Ohio 491, 2013 Ohio App. LEXIS 435 (8th Dist. February 14, 2013).

Where defendant was unlawfully still on “post-release control,” he could not be lawfully subject to a search condition. The good faith exception does not permit that. State v. Fleming, 2013 Ohio 503, 990 N.E.2d 145 (2d Dist. 2013).*

Permalink 08:42:27 am, by fourth, 792 words, 838 views   English (US)
Categories: General

OH2: Precedent permitting hot pursuit entry into home for fleeing mere traffic stop should be overruled

Hot pursuit into a home of somebody fleeing a mere traffic offense is permitted by City of Middletown v. Flinchum, 95 Ohio St.3d 43, 2002 Ohio 1625, 765 N.E.2d 330, but this court sure doesn’t like it. State v. Lam, 2013 Ohio 505, 2013 Ohio App. LEXIS 442 (2d Dist. February 15, 2013):

[*P20] The supreme court's opinion in Flinchum contains a strongly-worded dissent in which Justice Pfeifer distinguishes Santana from Flinchum, based on the seriousness of the offense and the "realistic expectation" in Santana that delay in executing a search would result in the destruction of evidence (heroin and marked money), a concern which was not present in Flinchum. It also emphasizes that "the circumstances of a particular situation must be grave * * * to merit a lifting of [Fourth Amendment] protections." Flinchum, 95 Ohio St.3d at 47 (Pfeifer, J., dissenting), citing Welsh, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (involving exigent circumstances). Justice Pfeifer observed that, when warrantless arrests in the home are at issue, hesitation in finding a basis for acting without a warrant "is particularly appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. * * * When the government's interest is only to arrest for a minor offense, th[e] presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate." Id., citing Welsh at 750. The dissent concluded that the government had not successfully rebutted the presumption of unreasonableness in Flinchum, because only a minor traffic offense was at issue, and that the arrest of "a mere tire spinner" did not justify the chipping away of a well-established Fourth Amendment right.

[*P21] We share the concerns expressed in the Flinchum dissent. Although we are bound by supreme court precedent, we have reservations about permitting police officers to chase a suspect who is known to have committed only a minor traffic violation and to forcibly enter into his house, in the absence of exigent circumstances. This is a circumstance where a potential traffic violation developed into a chase of the driver, which led to the forcible entry of that person's home, which turned into a protective sweep of the home, which resulted in the plain view of contraband, which generated a search warrant, which resulted in the arrest of a second person, which resulted in the discovery of drugs. This may be the unusual situation where legal reasoning has plunged off the slippery slope or where the exceptions have swallowed the rule.

[*P22] We see no reason why, in Jeffrey Lam's case, the officers could not have waited outside the house while they obtained a search warrant or checked for outstanding warrants for Jeffrey. In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the U.S. Supreme Court held that the Fourth Amendment prohibits police from making a warrantless and nonconsensual entry into a suspect's house in order to make a routine felony arrest. As discussed above, Payton and other decisions have recognized an exception for "exigent circumstances." Id. at 1386. Similarly, R.C. 2935.12 only permits entry by force to make a warrantless arrest if exigent circumstances exist. State v. Boyd, 2d Dist. Montgomery No. 13425, 1993 WL 169104 (May 21, 1993).

[*P23] However, the principle from which any exceptions to the warrant requirement emanate is reflected in the oft-quoted remarks of William Pitt in 1763: "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it, the storm may enter; the rain may enter; but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!" Payton at 1388, fn. 54, citing Miller v. United States, 357 U.S. 301, 307, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). Indeed, President John Adams traced the origins of our independence from England to James Otis's 1791 argument against British writs of assistance, where he declared that a "man's house is his castle." United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 1072, 108 L.Ed.2d 222, fn. 8 (1990) (Brennan, J., dissenting). It may be that Jeffrey would have temporarily "defeated" his citation for the traffic offense by "escaping to a private place," but weighing the immediate serving of a citation for a non-jailable minor misdemeanor against the Fourth Amendment's protection of the home, we would make what should be the obvious choice.

[*P24] However, the facts surrounding the chase of Jeffrey Lam are not legally distinguishable from the facts in Flinchum. Thus, we are obligated to follow our understanding of the majority's opinion in Flinchum, as the trial court did, and to conclude that the police officers lawfully entered into the house. We hope that the Ohio Supreme Court will reconsider or clarify its position.

Permalink 12:00:08 am, by fourth, 193 words, 516 views   English (US)
Categories: General

IA: People in apartment talking loud about drugs and what to do with the cops outside was exigency

People inside the apartment “discuss[ing] their concern about police presence in the building” including one saying he had drugs on him was exigency for entry. State v. Floyd, 829 N.W.2d 191 (Iowa App. 2013):

Here, in contrast, the information relayed to police officers indicated a large amount of foot traffic and drugs, an officer heard several individuals inside the apartment discuss their concern about police presence in the building, and one individual stated he had drugs on him and needed to leave the apartment. Given the specific, articulable facts known to Officer Nice regarding the scenario unfolding behind the apartment door, along with the rational inferences that could be made therefrom, a reasonable officer in his position could have feared either the escape of a subject or the destruction of evidence.

A vehicle parked at the owner’s house is immobile for the purposes of Oregon’s automobile exception. State v. Pirtle, 255 Ore. App. 195, 296 P.3d 625 (2013).*

Landlord’s standing in the premises that burned in a fire was limited, and here gave him no standing to challenge the fire scene search. United States v. Cromer, 2013 U.S. Dist. LEXIS 20738 (E.D. Mo. February 15, 2013).*

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2013-14 Term:
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  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."
—Me

"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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