Archives for: March 2013

03/31/13

Permalink 09:45:33 am, by fourth, 170 words, 430 views   English (US)
Categories: General

D.S.D.: Cell phone properly seized incident to juvenile prostitution arrest

Defendant was accused of transporting a juvenile for prostitution. An undercover officer saw the screen of his Blackberry and saw a reference to “bring[ing] condoms.” There was probable cause to seize the cell phone incident to his arrest. The cell phone was later searched with a warrant. United States v. Nyoun, 2013 U.S. Dist. LEXIS 45260 (D. S.D. March 29, 2013).*

Indiana requires reasonable suspicion for a trash search, and the detail of the anonymous tip here showed that it had to come from personal observation inside defendant’s house. Fuqua v. State, 984 N.E.2d 709 (Ind. App. 2013).*

Trial court erroneously used “nexus” for probable cause and standing. “Nexus” is reserved for search warrant questions and whether the PC relates to the place to be searched. Nevertheless, the point being: what was the connection between the defendant and the drugs? That’s a question of standing and probable cause to arrest. Here, defendant didn’t have standing, and the police had probable cause. State v. Johnson, 2013 Tenn. Crim. App. LEXIS 275 (March 26, 2013).*

Permalink 09:30:16 am, by fourth, 178 words, 478 views   English (US)
Categories: General

D.Ariz.: Using a co-conspirators’ code word at the door to get defendant to open it was not unreasonable under the Fourth Amendment

Using a co-conspirators’ code word at the door to get defendant to open it was not unreasonable under the Fourth Amendment. It was also not consent obtained by deception. United States v. Poom-Medina, 2013 U.S. Dist. LEXIS 45469 (D. Ariz. March 29, 2013).

A protective weapons search in this case was valid because the totality of circumstances supported it. United States v. Scott, 2013 U.S. Dist. LEXIS 44124 (W.D. Mo. January 23, 2013). But, the court cautioned:

Reckless application of the Long protective search rule has the potential to effectively eviscerate the general warrant requirement of the Fourth Amendment when a vehicle stop is undertaken by law enforcement officers. Unlike the limitations imposed on a valid "automobile search" and a "search incident to arrest," the Long protective search rule (like the Terry analysis) is constrained only by the reasonable suspicion requirement.

A question of fact remains whether it was objectively reasonable to make plaintiffs take the car they were driving in to a border station for a vehicle x-ray. Henry v. County of Niagara, 2013 U.S. Dist. LEXIS 45939 (W.D. N.Y. March 29, 2013).*

Permalink 09:14:10 am, by fourth, 391 words, 813 views   English (US)
Categories: General

CA5: Two day warrantless search of tractor-trailer with PC was reasonable

There was probable cause for the stop and search of defendant’s tractor-trailer. The fact contraband wasn’t found in the first three hours didn’t cause the PC to dissipate. The truck was moved and searched for two days. Given there was probable cause, the two day search of the truck was reasonable. United States v. Hernandez, 518 Fed. Appx. 270 (5th Cir. 2013):

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Permalink 09:02:33 am, by fourth, 181 words, 1394 views   English (US)
Categories: General

S.D.Ind.: IU RAs can enter dorm rooms for announced “health and safety inspections”

Indiana University Resident Advisors in the dormitories conducted a quarterly announced “health and safety inspection” of dorm rooms, and a small quantity of marijuana was seen in plaintiff’s room. The RAs were not “state actors.” A campus police officer came when called, and his warrantless entry was lawful. While students have some reasonable expectation of privacy in the dorm rooms, it isn’t absolute. (“See Serpas v. Schmidt, 827 F.2d 23, 28 (7th Cir. 1987), abrogated in part on other grounds by Leroy v. Ill. Racing Bd., 39 F.3d 711, 714 (7th Cir. 1994) (holding that on-track dormitory rooms for racetrack employees must be considered ‘homes’ under the Fourth Amendment); Morale v. Grigel, 422 F. Supp. 988, 997 (D.N.H. 1976) (‘A dormitory room is a student's home away from home, and any student may reasonably expect that once the door is closed to the outside, his or her solitude and secrecy will not be disturbed by a governmental intrusion ...’)”) The marijuana could be used against him in a student disciplinary proceeding. Medlock v. Trs. of Ind. Univ., 2013 U.S. Dist. LEXIS 44408 (S.D. Ind. March 28, 2013).

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Permalink 08:55:13 am, by fourth, 296 words, 981 views   English (US)
Categories: General

S.D.Ohio: While Ohio law requires PC to search a parolee, the Fourth Amendment doesn’t

While Ohio law requires PC to search a parolee, the Fourth Amendment doesn’t in federal court. United States v. Hill, 2013 U.S. Dist. LEXIS 45754 (S.D. Ohio March 29, 2013):

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03/30/13

Permalink 10:52:48 am, by fourth, 128 words, 361 views   English (US)
Categories: General

W.D.Mo.Bankr.: Criminal seizure for counterfeit labeling could not be addressed in Bankruptcy court

A bankruptcy adversary proceeding was instituted to get return of imported lamps with counterfeit Underwriters Laboratory stickers on them. They were seized because of the labels, and a federal prosecution started. The bankruptcy court has no jurisdiction over them because of the criminal case, and the remedy is in that court. In re Guildmaster, Inc., 2013 Bankr. LEXIS 1241 (Bankr. W.D. Mo. March 29, 2013).

The standard for detention for Miranda purposes isn’t the same as for Fourth Amendment purposes. Here, the suppression order of defendant’s statement is set aside because he could not have understood he was in custody for Miranda purposes. People v. Pleshakov, 2013 CO 18, 298 P.3d 228 (2013).*

Disputed facts underlying a Fourth Amendment qualified immunity appeal means no appellate jurisdiction. Hernandez v. Grant, 520 Fed. Appx. 668 (10th Cir. 2013).*

Permalink 10:31:55 am, by fourth, 207 words, 898 views   English (US)
Categories: General

TN exhaustively discusses the community caretaking function; this case didn't qualifiy

The community caretaking function did not support defendant’s “stop” with blue lights in a parking lot at night. Defendant was already parked with lights on, and the officer decided to see what was going on. Defendant was arrested for DUI. The opinion exhaustively discusses the community caretaking function. State v. Moats, 403 S.W.3d 170 (Tenn. 2013):

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Permalink 10:10:26 am, by fourth, 206 words, 590 views   English (US)
Categories: General

MS erroneously puts burden on defendant to show a lack of third party consent

In a sex assault on a minor case, the court erroneously puts the burden on the defendant to show that the third party consenter didn’t consent rather than on the state where it belongs under the Fourth Amendment. Brown v. State, 119 So. 3d 1079 (Miss. App. 2013):

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Permalink 09:53:13 am, by fourth, 107 words, 390 views   English (US)
Categories: General

E.D.Okla: Apparent hand-to-hand transaction by known drug dealer was RS for stop

Defendant was a known drug dealer, and his actions on the day in question showed a hand-to-hand drug transaction, and that was sufficient to stop him. United States v. Jackson, 2013 U.S. Dist. LEXIS 45276 (E.D. Okla. February 28, 2013).*

Driving in the left lane without passing for one mile as justification for the stop. Abney v. State, 394 S.W.3d 542 (Tex. Crim. App. 2013).*

Defendant failed to show standing to challenge the search warrant and search of the premises in this case. A vehicle was searched which he disavowed, so he has no standing as to that either. United States v. Alamo-Santellanes, 2013 U.S. Dist. LEXIS 43872 (D. Minn. February 26, 2013).*

Permalink 09:46:24 am, by fourth, 308 words, 370 views   English (US)
Categories: General

D.S.D.: Suppression facts and issues too complicated; good faith exception is all court has to decide

If the suppression issue is complicated, the court refuses to resolve it, and turns instead straight to the good faith exception. United States v. LaBatte, 2013 U.S. Dist. LEXIS 45261 (D. S.D. March 25, 2013), adopted 2013 U.S. Dist. LEXIS 73243 (D.S.D. May 23, 2013):

In light of staleness issues, those pertaining to the reliability of the juvenile informants, certain conclusory allegations, the over-seizure of evidence and the manner in which the supporting application was filled out, ascertaining -- definitively -- whether the search warrant comported with Fourth Amendment strictures is no easy task, given the facts and circumstances present. The Court, however, need not engage in this complicated exercise because there is a simpler and more straight forward way to resolve the overarching constitutional question: The "good-faith" exception to the warrant requirement.

Note: This is not the first time I've seen a court just throw up its hands to a motion to suppress as too complicated to resolve. Instead, the court just turns to the good faith exception and says that the warrant is fine. There is a moral here: Defense counsel should focus the motion to suppress better and even cut out a lot of cases. If you have six issues of why the warrant fails, make it appear obvious and argue that the total failure of the warrant completely undermines the probable cause. Alternatively, pick one or two and go with that. (Take heed from Jones v. Barnes, 463 U.S. 745, 751-52 (1983): "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.")

I confess that I've read plenty of affidavits where the GFE was looming, and the PC under Gates was close enough that I knew the court was never going to suppress.

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03/29/13

Permalink 09:34:25 am, by fourth, 351 words, 824 views   English (US)
Categories: General

CA11: Fourth Amendment protects arrestees against gratuitous uses of force

The district court properly denied summary judgment on qualified immunity that officers were at best negligent in running his head into a door while carrying him into the jail while he was in a hobble restraint. The Fourth Amendment protects against gratuitous uses of force against arrestees. Here, it was all on videotape. Runge v. Snow, 514 Fed. Appx. 891 (11th Cir. 2013):

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Permalink 06:40:33 am, by fourth, 144 words, 750 views   English (US)
Categories: General

Police one: 2 Texas cops indicted over roadside cavity searches

Police one: 2 Texas cops indicted over roadside cavity searches | One trooper was charged with 2 counts of sexual assault and 2 counts of official oppression; the other was charged for theft after a prescription allegedly went missing by Jennifer Emily, The Dallas Morning News (video included from YouTube):

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Permalink 06:32:21 am, by fourth, 425 words, 670 views   English (US)
Categories: General

IN: Police created exigency did not permit warrantless entry

A GPS was planted in a UPS package found to contain marijuana during a lawful opening of the damaged box by UPS. This did not offend Jones because the box was not in defendant’s possession at the time. Monitoring it to tail the box did not violate any expectation of privacy, and it was not monitored when it was inside his house. A parcel wire, however, violated Karo because it told the police when the package was opened inside the house. The warrantless entry into defendant’s home to secure the package was invalid because of police created exigent circumstances. State v. Lagrone, 985 N.E.2d 66 (Ind. App. 2013):

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Permalink 06:30:53 am, by fourth, 175 words, 325 views   English (US)
Categories: General

M.D.Fla.: Defendant couldn't replace his CJA lawyer because the lawyer wouldn't file a frivolous motion to suppress

Defendant sought to remove his court appointed lawyer for, inter alia, not filing a motion to suppress, which the court finds would be a loser anyway. United States v. Brown, 2013 U.S. Dist. LEXIS 43110 (M.D. Pa. March 27, 2013).*

Defendant’s Franks challenge to the search warrant affidavit fails because the objection he raised is not material to the finding of probable cause. United States v. Harris, 2013 U.S. Dist. LEXIS 43375 (D. Vt. March 27, 2013).*

Officers on P2P internet trolling found a computer with child pornography on it. Once the IP address was tied to defendant’s address, they had probable cause for issuance of a search warrant for the computers at that address. United States v. Upshaw, 2013 U.S. Dist. LEXIS 43339 (D. Minn. February 5, 2013).*

Reasonable suspicion that a driver of a stopped vehicle is involved in large-scale drug activity, including recent drug activity involving the vehicle, supports a frisk of the passenger based on the officer’s reasonable belief that the passenger may be armed and dangerous. State v. Lemert, 829 N.W.2d 421 (Minn. App. 2013).*

Permalink 06:02:56 am, by fourth, 134 words, 305 views   English (US)
Categories: General

OH10: Can't review a SW claim if it isn't in the record

In an alleged IAC claim against defense counsel for, inter alia, not properly pursuing a claim that the search exceeded the warrant, the failure to put the warrant into the record precluded appellate review. State v. McClurkin, 2013 Ohio 1140, 2013 Ohio App. LEXIS 1031 (10th Dist. March 26, 2013).*

Defendant’s probation included that he not keep animals. When the PO knocked at the door, he heard dogs barking inside, and that was justification for the probation search. State v. Helmbright, 2013 Ohio 1143, 990 N.E.2d 154 (10th Dist. 2013).*

Defendant stopped at a yield sign at a traffic circle and didn’t move. The officer turned on his lights and got out to talk to defendant. That was a consensual encounter, but it was validly initiated under the community caretaking function. State v. Shelley, 2013 Ohio 1116, 2013 Ohio App. LEXIS 1003 (7th Dist. March 22, 2013).*

03/28/13

Permalink 07:53:07 am, by fourth, 109 words, 379 views   English (US)
Categories: General

PA: Use of a key fob left behind in a burglary was not an unreasonable search

Use of a key fob to see whether it matched defendant’s vehicle was not an unreasonable search where it was left in the house of a burglary victim. Commonwealth v. Harvard, 2013 PA Super 64, 64 A.3d 690 (2013).

School nurse’s examination of a child’s genital area was subject to qualified immunity because the law about pure medical examination at school was not clearly established. Hearring v. Sliwowski, 712 F.3d 275 (6th Cir. 2013).*

2254 petitioner had a full and fair opportunity to litigate this search in state court, and he is denied a COA for appeal of the denial of the habeas on all grounds. Brown v. Bravo, 514 Fed. Appx. 739 (10th Cir. 2013).*

Permalink 07:38:57 am, by fourth, 94 words, 506 views   English (US)
Categories: General

IL: Furtive movement and slow to show hands during traffic stop justified handcuffing

Handcuffing defendant during a traffic stop was reasonable when he made a furtive movement to the floorboard, refused to show his hands when directed, and the stop was in a high crime area where police had been shot. People v. Daniel, 2013 IL App (1st) 111876, 369 Ill. Dec. 843, 987 N.E.2d 470 (2013).*

Following too close supported defendant’s stop, and marijuana was in plain view. State v. Woods, 2013 Ohio 1136, 2013 Ohio App. LEXIS 1047 (5th Dist. February 26, 2013).

Defendant’s glib comment about consent not being actual consent is affirmed on appeal. United States v. Spencer, 516 Fed. Appx. 53 (2d Cir. 2013).*

Permalink 07:31:32 am, by fourth, 207 words, 371 views   English (US)
Categories: General

NY: Nine month delay in searching memory card for child porn not unreasonable

Defendant was arrested for child pornography on a computer and a memory card to a camera was seized that also turned out to have child pornography on it. Defendant was prosecuted and convicted for the computer image. He sought return of the memory card, and finally the police looked at it nine months after the seizure. There is no limit under the Fourth Amendment or New York law for the time to execute, and probable cause never dissipated in the memory card. People v. Deprospero, 2013 NY Slip Op 01992, 20 N.Y.3d 527, 964 N.Y.S.2d 487, 987 N.E.2d 264 (2013).*

Co-defendant had access to a thumb drive on a night stand sufficient to consent to its seizure in an access device fraud case. While it didn’t belong to her, it was available to her and it was fixed in with her stuff. The three week delay in getting a search warrant for it wasn’t unreasonable. United States v. Marchante, 514 Fed. Appx. 878 (11th Cir. 2013).*

Trial court finding that no consent was asked for was clearly erroneous. There was consent to a patdown, and that produced a “hard chunky substance” that the officer believed by feel was contraband. The search was lawful. State v. Andrews, 2013 Ga. App. LEXIS 279 (March 26, 2013).*

03/27/13

Permalink 11:07:53 am, by fourth, 425 words, 1088 views   English (US)
Categories: General

CA10: Jury verdict for unreasonable force and handcuffing without objective justification is upheld

Jury verdict for unreasonable force and handcuffing without objective justification is upheld. Also, there were disputed facts for trial. Plascencia v. Taylor, 514 Fed. Appx. 711 (10th Cir. 2013):

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Permalink 10:57:19 am, by fourth, 237 words, 545 views   English (US)
Categories: General

CNN: How your movements create a GPS 'fingerprint'

CNN: How your movements create a GPS 'fingerprint' by Doug Gross, CNN:

(CNN) -- Can you be identified only by where you take your phone? Yes, according to a new study, which finds it's not very hard at all.

While most of us are free to go wherever we want, our daily and weekly movement patterns are pretty predictable. We go to work, to school, to church, to our neighborhood gym, grocery store or coffee shop, and we come home -- all quietly tracked by the GPS in our phone.

And with nothing more than this anonymous location data, someone who wanted to badly enough could easily figure out who you are by tracking your smartphone. Patterns of our movements, when traced on a map, create something akin to a fingerprint that is unique to every person.

And, The growing push to track your location indoors by Doug Gross, CNN:

(CNN) -- Sure, the GPS on your phone or dedicated device can get you from Point A to Point B on the interstate, frustrating "Calibrating ... calibrating ..." moments aside.

But a new move in mobile tech is seeing startups who want to help you find the store you're looking for in the mall, turn around when you're getting farther from your terminal at the airport or figure out where your friends are in an expansive convention hall.

And the big guys of the tech world are taking notice.

Permalink 09:56:31 am, by fourth, 308 words, 736 views   English (US)
Categories: General

CA1: "Binding precedent" under Davis doesn't have to be that obvious

A GPS was installed on defendant’s car, and then Jones was decided. The Davis good faith exception applies to save this search. How close does the binding precedent have to be? Not too, apparently. United States v. Sparks, 711 F.3d 58 (1st Cir. 2013):

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Permalink 12:00:41 am, by fourth, 97 words, 389 views   English (US)
Categories: General

Philly.com: Report finds problems persist with city's stop-and-frisk policy

Philly.com: Report finds problems persist with city's stop-and-frisk policy:

Although the number of Philadelphians stopped under the city's controversial stop-and-frisk policy has dropped by 15 percent, an analysis by civil rights groups shows that many stops are still made without "reasonable suspicion."

The American Civil Liberties Union and the law firm of Kairys, Rudovsky, Messing & Feinberg filed a report in federal court today that found that the number of stops had decreased from 253,000 in 2009 to 215,000 in 2012, but a large number of the stops -- 45 percent violated the right to be free from unreasonable searches and seizures.

03/26/13

Permalink 11:30:54 am, by fourth, 512 words, 998 views   English (US)
Categories: General

SCOTUS decides Jardines: Dog sniff at the door of the home is a "search" under Jones

Florida v. Jardines, 2013 U.S. LEXIS 2542, 2013 WL 1196577 (U.S. March 26, 2013): Dog sniff at the door of a home is a "search" under Jones requiring probable cause and a warrant.

The syllabus:

Police took a drug-sniffing dog to Jardines’ front porch, where the dog gave a positive alert for narcotics. Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court’s decision to suppress the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause.

Held: The investigation of Jardines’ home was a “search” within the meaning of the Fourth Amendment. Pp. 3–10.
(a) When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” United States v. Jones, 565 U. S. ___, ___, n. 3. Pp. 3–4.
(b) At the Fourth Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U. S. 505, 511. The area “immediately surrounding and associated with the home”—the curtilage—is “part of the home itself for Fourth Amendment purposes.” Oliver v. United States, 466 U. S. 170, 180. The officers entered the curtilage here: The front porch is the classic exemplar of an area “to which the activity of home life extends.” Id., at 182, n. 12. Pp. 4–5.
(c) The officers’ entry was not explicitly or implicitly invited. Officers need not “shield their eyes” when passing by a home “on public thoroughfares,” California v. Ciraolo, 476 U. S. 207, 213, but “no man can set his foot upon his neighbour’s close without his leave,” Entick v. Carrington, 2 Wils. K. B. 275, 291, 95 Eng. Rep. 807, 817. A police officer not armed with a warrant may approach a home in hopes of speaking to its occupants, because that is “no more than any private citizen might do.” Kentucky v. King, 563 U. S. ___, ___. But the scope of a license is limited not only to a particular area but also to a specific purpose, and there is no customary invitation to enter the curtilage simply to conduct a search. Pp. 5–8.
(d) It is unnecessary to decide whether the officers violated Jardines’ expectation of privacy under Katz v. United States, 389 U. S. 347. Pp. 8–10.

73 So. 3d 34, affirmed.

SCALIA, J., delivered the opinion of the Court, in which THOMAS, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. KAGAN, J., filed a concurring opinion, in which GINSBURG and SOTOMAYOR, JJ., joined. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and KENNEDY and BREYER, JJ., joined.

I figured this outcome because of the higher protection of the home running from Payton to Kyllo. I did not think it would be 5-4, nor did I think Breyer would dissent nor Thomas be in the majority. (I thought it would be 6-3 with Roberts, Alito, and Thomas dissenting. Kennedy truly is a loose cannon.)

And, my friends in Florida say the name is pronouced "Har-day-nis."

This case is important on curtilage.

Permalink 07:36:07 am, by fourth, 116 words, 747 views   English (US)
Categories: General

MD: There is a difference between an “unlawful arrest” under state law and an “unconstitutional arrest” under Virginia v. Moore

There is a difference between an “unlawful arrest” under state law and an “unconstitutional arrest” under Virginia v. Moore. “Neither a Maryland statute nor rule of procedure can render unconstitutional what the Fourth Amendment deems to be constitutional.” In re Darryl P., 211 Md. App. 112, 63 A.3d 1142 (2013).

Defendant was stopped at a yield sign as a patrol car came up from behind. After the officer stopped, defendant sat there for another 13 seconds before the officer decided to turn on his overhead lights and check on the driver under the community caretaking function. The fact defendant started to drive off did not nullify the purpose of the stop. State v. Shelley, 2013 Ohio 1116, 2013 Ohio App. LEXIS 1003 (7th Dist. March 22, 2013).*

Permalink 07:18:49 am, by fourth, 271 words, 593 views   English (US)
Categories: General

W.D.Ky.: Oil and gas drilling is highly regulated industry

Oil and gas drilling is a highly regulated industry, and state officials did not violate the Fourth Amendment by an inspection to see if ground water was being contaminated. Defendants were indicted for injecting “produced water” from a well into a sinkhole in violation of the Safe Drinking Water Act. United States v. Stinson, 2013 U.S. Dist. LEXIS 41241 (W.D. Ky. March 25, 2013):

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Permalink 05:34:06 am, by fourth, 172 words, 673 views   English (US)
Categories: General

Warrantless.org: Raytheon’s “Riot” Software: Big Data Analytics and Data Security for Activists

Warrantless.org: Raytheon’s “Riot” Software: Big Data Analytics and Data Security for Activists by Alex Marthews from the Campaign for Digital Fourth Amendment Rights:

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03/25/13

Permalink 07:15:23 am, by fourth, 206 words, 1003 views   English (US)
Categories: General

OH2: Arrest outside apartment doesn't justify its protective sweep

Defendant was arrested outside his apartment, and a protective sweep of the apartment was unjustified. State v. Boyd, 2013 Ohio 1067, 2013 Ohio App. LEXIS 950 (2d Dist. March 22, 2013):

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Permalink 06:54:49 am, by fourth, 153 words, 360 views   English (US)
Categories: General

TX: Description of house in SW was slightly off, but no reasonable likelihood wrong house was searched

The description of the place to be searched was slightly off, but the officer who prepared the affidavit was there and the right house was searched per the “four corners” of the affidavit. This is not a case where the wrong house was searched: there “was no reasonable probability that the officers would search any place other than the intended house.” Bonds v. State, 403 S.W.3d 867 (Tex. Crim. App. 2013), rev'g Bonds v. State, 355 S.W.3d 902 (Tex. App. – Fort Worth 2011).

One officer observed defendant committing a gross misdemeanor of loitering for drugs, and he radioed to another to make the arrest. The one arresting did not observed the crime, and the arrest was invalid under state law. State v. Ortega, 171 Wn.2d 116, 297 P.3d 57 (2013).*

Not signaling a left turn when already in a “left turn only” lane is still a traffic offense justifying a stop. Commonwealth v. Brown, 2013 PA Super 60, 64 A.3d 1101 (2013).*

Permalink 06:26:13 am, by fourth, 233 words, 455 views   English (US)
Categories: General

LA4: Carrying concealed weapon that was tossed justified hot pursuit

Defendant was standing in front of an apartment complex and saw the police come up. Officers saw him pull a gun and put it in the bushes and then run. They gave chase, and he ran into his apartment. In hot pursuit, they kicked in his door and found cocaine on him, and he consented to a search of his apartment. They had probable cause for carrying a concealed weapon. State v. Carter, 112 So. 3d 381 (La.App. 4 Cir. 2013).*

Defendant concedes that he was legally stopped for reasonable suspicion of heroin dealing from his car, and the officer testified he and his passenger leaned forward when stopped. That movement tied with the number of situations where firearms were found with drugs supported the frisk. State v. Magee, 110 So. 3d 680 (La. App. 4 Cir. 2013).*

Defendant on post-conviction claimed his attorney was ineffective for not challenging, among other things, his stop, but the court finds that waived by his Alford plea. [Actually, this is wrong because he’s alleging IAC prior to the plea which misinformed him, and that should be sufficient to overcome waiver. Whether he would have won the suppression motion is the issue. He was stopped by a Narcotics Task Force checkpoint, and that was a viable Fourth Amendment issue. No drug checkpoint has ever been sustained.] Jackson v. State, 122 So. 3d 1220 (Miss. App. 2013).* [This is typical of the short shrift post-conviction issues get.]

03/24/13

Permalink 08:49:04 am, by fourth, 87 words, 495 views   English (US)
Categories: General

TX13: Defendant refused consent and was ignored

Defendant refused to consent to two requests, then was silent on another request. This was not consent. Yet, the officer still searched. State's appeal of suppression order affirmed. State v. Walker, 2013 Tex. App. LEXIS 3120 (Tex. App. – Corpus Christi-Edinburg March 21, 2013)*:

Stover: You don't have any drugs or weapons on you tonight, do you?
Defendant: Nuh-uh.
Stover: Okay. You mind if I take a look?
Defendant: Yeah.
[Defendant exits the vehicle.]
Stover: You mind if I check to make sure you ain't got no weapons on you?
Defendant: Yeah.

Permalink 08:38:17 am, by fourth, 116 words, 662 views   English (US)
Categories: General

KY: Entry onto curtilage to search trash violates Fourth Amendment

Police entry onto the curtilage to seize trash from defendant’s property violated the Fourth Amendment. Commonwealth v. Ousley, 393 S.W.3d 15 (Ky. 2013).*

Defense counsel was not ineffective for not challenging the probable cause for his arrest in an effort to suppress his booking photograph used in a photo array because there was probable cause, and it was found at his first appearance. United States v. Stubblefield, 931 F. Supp. 2d 118 (D. D.C. 2013).*

Defendant’s Fourth Amendment claim, if there was one, was procedurally defaulted by his plea where he affirmed his lawyer did a good job. There is no showing of cause and prejudice. Jones v. United States, 2013 U.S. Dist. LEXIS 37864 (D. Md. March 15, 2013).*

Permalink 07:55:03 am, by fourth, 246 words, 1222 views   English (US)
Categories: General

MO: Officers could not enter garage for DUI arrest; hot pursuit fails

Police on DUI patrol saw defendant cross the centerline twice in a mile. They followed. He pulled into his driveway then garage and the door was closing. Officers slipped under the door to arrest him. They did not have probable cause for DUI yet, and the entry was an entry into the home in violation of Payton. This was not hot pursuit. State v. Foster, 392 S.W.3d 576 (Mo. App. 2013):

=> Read more!

03/23/13

Permalink 02:10:36 pm, by fourth, 207 words, 705 views   English (US)
Categories: General

SSRN: Redefining Fourth Amendment Reasonableness: A Crime-Severity Model for Terry Stops

Permalink 02:06:28 pm, by fourth, 226 words, 633 views   English (US)
Categories: General

AALL: Book Review: More Essential Than Ever: The Fourth Amendment in the Twenty-first Century

Permalink 07:29:59 am, by fourth, 128 words, 503 views   English (US)
Categories: General

E.D.Va.: Texting while driving justifies stop for inattentive driving

Texting while driving justified defendant’s stop for inattentive driving on an Army base, and he was found intoxicated. An inventory of the vehicle produced drug paraphernalia. The stop was valid. United States v. Wingle, 2013 U.S. Dist. LEXIS 38862 (E.D. Va. March 20, 2013).*

The frisk of defendant was justified by the officer seeing the outline of a gun in his waistband after a hand-to-hand drug deal. United States v. Blackburn, 2013 U.S. Dist. LEXIS 39626 (W.D. Mo. March 6, 2013).*

Defendant was convicted of robbery. He had no standing in a gym bag left at a friend’s house obtained by search warrant because he never claimed ownership, either in the motion to suppress, by testifying, or to the police when arrested. Jones v. State, 320 Ga. App. 681, 740 S.E.2d 655 (2013).*

Permalink 07:02:32 am, by fourth, 422 words, 838 views   English (US)
Categories: General

E.D.Ky. strictly limits search incident of cell phone to its exigency

A search incident of defendant’s telephone for the contact list was proper under the [near carte blanche] search incident doctrine, but it’s utility quickly ended, and the exigencies dissipated. A search warrant was later required to prevent a general rummaging. United States v. Brown, 2013 U.S. Dist. LEXIS 40004 (E.D. Ky. March 20, 2013):

=> Read more!

Permalink 06:48:10 am, by fourth, 177 words, 400 views   English (US)
Categories: General

N.D.Tex.: Outing undercover officer on Facebook leads to SW for house

Defendant was believed to have outed an undercover narcotics officer by posting his picture on Facebook. Officers got a search warrant for his computer for the crime of harassment. When executing the search warrant, drugs were found in the course of the search of a dresser because there might have been thumb drives hidden there. Whether there was probable cause was never considered; just whether the affidavit was so bare bones it couldn’t be relied on for the good faith exception, and the court concludes that it wasn’t. United States v. Pickens, 2013 U.S. Dist. LEXIS 39235 (N.D. Tex. March 21, 2013).*

The exclusionary rule generally does not apply in probation revocation proceedings, but it could if it could be shown that the search was harassing. This wasn’t. State v. Burress, 2013 Tenn. Crim. App. LEXIS 239 (March 18, 2013).*

The officers here had independent probable cause for a search of defendant’s car, so the search incident doctrine doesn’t even apply. Gant says so. 556 U.S. at 347. United States v. Savaiinaea, 2013 U.S. Dist. LEXIS 38912 (D. Utah March 19, 2013).*

03/22/13

Permalink 02:31:31 pm, by fourth, 109 words, 445 views   English (US)
Categories: General

NYTimes: Recording Points to Race Factor in Stops by NYPD

NYTimes: Recording Points to Race Factor in Stops by New York Police by Joseph Goldstein:

For years, the debate over the New York Police Department’s use of stop-and-frisk tactics has centered on whether officers engage in racial profiling. Now, a recording suggests that, in at least one precinct, a person’s skin color can be a deciding factor in who is stopped.

The recording, played on Thursday in Federal District Court in Manhattan, was of a conversation between a patrol officer and his commanding officer in the 40th Precinct in the South Bronx, a violent command that recorded the highest number of police stops in the Bronx in 2011.

Permalink 02:26:20 pm, by fourth, 134 words, 459 views   English (US)
Categories: General

Law.com/Recorder: Suit Challenges Warrantless Cell Phone Searches

Law.com/Recorder: Suit Challenges Warrantless Cell Phone Searches by Julia Love:

SAN FRANCISCO — Two years after the California Supreme Court OK'd warrantless cell phone searches, a new suit aims to force a closer look at the issue.

The American Civil Liberties Union Foundation of Northern California and Pillsbury Winthrop Shaw Pittman filed suit Wednesday against the city and county of San Francisco and Police Chief Gregory Suhr on behalf of Robert Offer-Westort, a civil rights activist whose cell phone was searched after he was arrested for camping in a local plaza.

The plaintiffs want to bar the city from executing warrantless searches of arrestees' cell phones, arguing that such searches violate the individuals' rights to privacy and free speech provided by the California Constitution and the First Amendment to the U.S. Constitution.

Permalink 07:17:18 am, by fourth, 242 words, 615 views   English (US)
Categories: General

PA: Arrest for hand-to-hand drug deals at front door justified exigent entry to freeze situation

Defendant was observed doing three hand-to-hand drug deals at his front door. When he left the house he was stopped, and the house was entered to freeze the situation to preserve evidence to get a search warrant. The entry was based on exigency, and it did not taint the search warrant. Commonwealth v. Howard, 2013 PA Super 56, 64 A.3d 1082 (2013).

The officer’s testimony that the defendant’s driving was suspicious was based on having both hands on the wheel and both arms extended. That is not reasonable suspicion. Also, the officer apparently let slip during testimony that the defendant’s name was a Mohawk Indian name, and that bordered on racial profiling. Motion to suppress granted. People v Deer, 2013 NY Slip Op 23077, 39 Misc. 3d 677, 960 N.Y.S.2d 891 (St. Lawrence Co. 2013)*:

=> Read more!

Permalink 07:00:04 am, by fourth, 146 words, 731 views   English (US)
Categories: General

OH9: Reasonable suspicion not required to ask for consent

An officer does not need reasonable suspicion to ask a motorist for consent, and the trial court erred in finding to the contrary. State v. Miller, 2013 Ohio 985, 2013 Ohio App. LEXIS 874 (9th Dist. March 18, 2013).

Officers had a reasonable belief in the consenter’s authority to consent where she was inside the house with a key and stuff of hers was there, too. State v. Bump, 2013 Ohio 1006, 2013 Ohio App. LEXIS 892 (3d Dist. March 18, 2013).*

An anonymous tipster’s accurate predications of where the defendant was going corroborated by the officer is reasonable suspicion for a stop. State v. Massaro, 2013 Mo. App. LEXIS 327 (Mo. App. March 18, 2013).*

The trial court ruled that the search of the car was valid as a search incident, but that is incorrect. Because there was probable cause, the search of the car was valid under the automobile exception. State v. Deaton, 395 S.W.3d 50 (Mo. App. 2013).*

Permalink 06:31:11 am, by fourth, 251 words, 460 views   English (US)
Categories: General

To those trying to sell cell phone apps to criminal defense lawyers:

For those criminal defense lawyers seeing cell phone apps targeted to them for marketing purposes (I got six emails from one in the last three months), ignore them. I started to write about it at the beginning and decided not to. The reason why I ignore them just showed up in a case today, albeit a case 10½ months old.

My clients usually come to me as a result of an arrest where they had no reasonable opportunity to call anybody at the time of their felony arrest, often at gunpoint. Also, even repeat clients are usually 7-10 years between cases. If they were to have the presence of mind to use a cell phone app to call my answering service during their evening drug arrest, they are inviting (1) serious difficulty from the police for not immediately putting their hands up and dropping the phone, and (2) a search incident of their cell phone. Marketing people don’t have a clue.

In United States v. Brown, 2012 U.S. Dist. LEXIS 186968 (E.D. Ky. May 3, 2012), the court held that a search incident of a cell phone was justified, inter alia, because “Brown ignored police commands to exit the truck while visibly manipulating a cell phone.” A person in the vehicle also fled, but that is surplusage. My review of the cases tells me that manipulating the cell phone should reasonably be interpreted by the police and the courts as an attempt to warn co-conspirators, thereby inviting a search of the phone to see whom.

Permalink 06:14:11 am, by fourth, 207 words, 575 views   English (US)
Categories: General

CA11 seems to adopt a separate reasonable suspicion standard for parole violations

For a parole search, reasonable suspicion, at least for a parole officer, was shown by the new PO’s review of defendant’s file that showed multiple prior violations for: moving without permission, three hot UAs, not paying supervision fee for previous seven months, and being on parole for drugs and guns. “The Field Operations Manual states, inter alia, that a positive drug test is sufficient to constitute reasonable suspicion.” Any ulterior motive is irrelevant. United States v. Robinson, 515 Fed. Appx. 790 (11th Cir. 2013).

The affidavit for a search warrant directed at a “pill mill” was “a close question” which means the warrant was good under the regular standard of review or the good faith exception. Just the first and last sentences of one long paragraph says it all, with the discussion of the affidavit in the middle omitted: “Whether the issuing magistrate reasonably determined that there was probable cause to search all of Dr. Roos's Kentucky patient files is a close question. ... But even if it were, the suppression would not be warranted because the good-faith exception for searches conducted pursuant to warrants applies.” United States v. Roos, 2013 U.S. Dist. LEXIS 37787 (E.D. Ky. March 18, 2013),* R&R 2013 U.S. Dist. LEXIS 41856 (E.D. Ky. January 24, 2013).*

03/21/13

Permalink 01:51:10 pm, by fourth, 210 words, 684 views   English (US)
Categories: General

arstechnica: Finally, Feds say cops’ access to your e-mail shouldn’t be time-dependent

Permalink 01:45:27 pm, by fourth, 339 words, 563 views   English (US)
Categories: General

HuffPo: Raid Of The Day: Cheryl Ann Stillwell, Killed In A Drug Raid Over Two OxyContin Pills

Permalink 07:27:45 am, by fourth, 190 words, 378 views   English (US)
Categories: General

GA: Inevitable discovery supported seizure of briefcase in sex abuse case

Inevitable discovery of briefcase seized in ongoing investigation that supposedly contained a videotape of sexual abuse of a child saved the search in this case. The investigation was ongoing. The officer had a civilian obtain the briefcase for them so they could hold it to get a search warrant. Even assuming the briefcase was seized unlawfully, it was inevitable it would have been lawfully found. Wilder v. State, 320 Ga. App. 497, 740 S.E.2d 241 (2013), on remand from Wilder v. State, 290 Ga. 13, 717 S.E.2d 457 (2011).

The police adequately inquired into the third party consenter’s control over the upstairs living area, and she affirmed that she had control. That was sufficient to obtain her consent. It turned out that defendant asked her to lie about it. “Moreover, the record demonstrates that Wheeler wanted police to believe that Bates had authority over the upper unit. It is undisputed that Wheeler instructed Bates to lie to police and claim that she lived in the upper unit. To argue now that police wrongly relied on Bates's authority, when Wheeler orchestrated the attempt to mislead police, is disingenuous.” State v. Wheeler, 2013 WI App 53, 830 N.W.2d 278 (2013).*

Permalink 07:03:29 am, by fourth, 244 words, 362 views   English (US)
Categories: General

D.Utah: Cut and paste mistake leads to successful Franks challenge; no probable cause

Franks challenge succeeds: The affidavit was only three pages long and had a paragraph about hand-to-hand deliveries from the property that admittedly didn’t belong in there and should have been removed when drafting the affidavit. Also, the affidavit went through three levels of review before submission to the issuing court. This was reckless disregard, but still sufficient for Franks. Second, there was an attempt to connect a car to the premises but the officer omitted knowing that the car wasn’t registered to that address, and that was something the issuing judge needed to know. Striking the first reference, and adding in the omitted information leaves tenuous inferences that don’t measure up to probable cause. Finally, the good faith exception does not apply when there is a successful Franks challenge. United States v. Rodriguez-Ramirez, 2013 U.S. Dist. LEXIS 37789 (D. Utah March 18, 2013).

Evidence hidden in an uncovered boat on adjacent property was not on defendant’s curtilage. n.2: “Mr. Scott misses the mark in relying on state trespass law. The question we ask is not whether agents violated state law but rather whether they violated the Fourth Amendment. U.S. v. Walker, 960 F.2d 409, 415 (5th Cir. 1992) (stating that the Fourth Amendment does not exist to ‘discourage ... violations of state law’); see also U.S. v. Eastland, 989 F.2d 760, 765-67 (5th Cir. 1993) (refusing to exclude evidence on the basis that agents were trespassing under state law).” United States v. Scott, 544 Fed. Appx. 303 (5th Cir. 2013).*

Permalink 06:30:13 am, by fourth, 201 words, 576 views   English (US)
Categories: General

N.D.Ga.: Defendant who didn't own phone couldn't challenge limited cell site location warrant

Historical cell site location data limited to 20 days in an attempt to link defendant to a home invasion robbery was reasonable. (Also, defendant who was not the subscriber of a cell phone had no standing to challenge obtaining historical cell site location data.) United States v. Wilson, 2013 U.S. Dist. LEXIS 37783 (N.D. Ga. February 20, 2013), adopted 2013 U.S. Dist. LEXIS 37320 (N.D. Ga. Mar. 19, 2013):

=> Read more!

03/20/13

Permalink 10:03:35 am, by fourth, 195 words, 537 views   English (US)
Categories: General

GA: Small hard object in pocket, like candy, felt during patdown didn't justify going into pocket

Defendant was subjected to a patdown that revealed a hard round object that was the size of a piece of candy. There was no reasonable basis for concluding it was a weapon, so going into his pockets to retrieve it was unreasonable. Kelley v. State, 320 Ga. App. 462, 740 S.E.2d 201 (2013).

The officer had reasonable suspicion for a patdown because the passenger fled the scene, defendant looked like he was considering it himself (whatever that means), he seemed under the influence of meth, and he was known to associate with a known meth dealer. United States v. Fry, 2013 U.S. Dist. LEXIS 36645 (D. Ore. March 12, 2013).*

Officers confronted with probable cause to believe an offense has been committed have qualified immunity to act to arrest. “‘Once probable cause to arrest someone is established ... a law enforcement officer is not required by the Constitution to investigate independently’ a suspect’s asserted defenses. Broam v. Bogan, 320 F.3d 1023, 1032 (9th Cir. 2003) (internal quotation marks and citation omitted). Because the officers reasonably believed they had probable cause to arrest Knotts for possessing an illegal weapon, they are entitled to qualified immunity.” Knotts v. Carreira, 511 Fed. Appx. 665 (9th Cir. 2013).*

Back to blog

Permalink 09:33:40 am, by fourth, 218 words, 1492 views   English (US)
Categories: General

CA11: PC for window tint violation enough for stop; immaterial the police usually ignore it

The fact the Sheriff’s Office “did not ordinarily issue citations for window tint violations is immaterial” if there was, in fact, probable cause to believe there was a window tint violation. United States v. Parker, 512 Fed. Appx. 991 (11th Cir. 2013)*:

=> Read more!

Permalink 09:27:21 am, by fourth, 326 words, 628 views   English (US)
Categories: General

NJ: True articulable exigency required for welfare check of house

Just because the landlord’s tenant was missing for two weeks and hadn’t paid rent was not a true exigency justifying a police welfare check of his house that resulted in finding marijuana. Significantly, the landlord went in the house himself earlier finding nothing amiss, just that there was no sign of and no word from the tenant. State v. Vargas, 213 N.J. 301, 63 A.3d 175 (2013):

=> Read more!

Permalink 07:47:14 am, by fourth, 232 words, 328 views   English (US)
Categories: General

W.D.Tex.: One with a key to a grow house and who sometimes slept there had standing to challenge its search

Defendant had standing to challenge the search of a grow operation where he had a key and stayed there in a sleeping bag a few nights a week. Just because it was also a commercial enterprise doesn’t mean he can’t have standing. He was not, however, the subscriber for the utilities, so he had no standing to challenge that. United States v. Calzada, 2013 U.S. Dist. LEXIS 36590 (W.D. Tex. March 18, 2013).

Defense counsel was not ineffective for not making an esoteric challenge to whether the PV warrant was lawfully issued that resulted in finding drugs in plain view. Defense counsel is not required to file every conceivable motion. This would be a “difficult facial challenge” to the state statute that likely would have failed, so no IAC. Scott v. United States, 2013 U.S. Dist. LEXIS 36982 (D. Mass. March 18, 2013).*

Border Patrol received an anonymous tip about a vehicle “full of aliens” in a Chevy Lumina near Nogales. Officers had a hard time finding a matching vehicle. They stopped a similarly colored Dodge Neon that was riding low. Nothing in the tip was specific or predictive and there was no reasonable suspicion as to this vehicle. Also, the road has both legitimate and illegitimate travelers. There was no reasonable suspicion here. United States v. Maldonado, 2013 U.S. Dist. LEXIS 37048 (D. Ariz. March 18, 2013),* R&R 2013 U.S. Dist. LEXIS 37082 (D. Ariz. January 30, 2013).*

03/19/13

Permalink 06:35:18 pm, by fourth, 72 words, 376 views   English (US)
Categories: General

NYTimes.com: A Focus on 3 Encounters in a Stop-and-Frisk Trial

NYTimes.com: A Focus on 3 Encounters in a Stop-and-Frisk Trial by Joseph Goldstein:

The first time the police stopped and then frisked him on his block in the Bronx, David Floyd remembered wanting only “to get home” and “be in my own space.” The second time it happened, Mr. Floyd testified, he was left with the impression that “I needed to stay in my place, and my place was in my home.”

Permalink 09:33:46 am, by fourth, 91 words, 408 views   English (US)
Categories: General

NYLJ: Challenge to Stop-and-Frisk Policy Begins Before Scheindlin

NYLJ: Challenge to Stop-and-Frisk Policy Begins Before Scheindlin by Mark Hamblett:

The courtroom fight officially began yesterday over whether New York City police violate the U.S. Constitution by stopping, questioning and frisking hundreds of thousands of minorities every year without reasonable suspicion of criminal activity.

Darius Charney of the Center for Constitutional Rights promised Southern District Judge Shira Scheindlin (See Profile) that the evidence at the bench trial will show that "the NYPD has laid siege to black and Latino neighborhoods" by the wholesale stopping and frisking of minority youths.

Permalink 05:44:15 am, by fourth, 156 words, 428 views   English (US)
Categories: General

Government looking for Jones GPS exceptions in 3d Cir. argument

In Wired.com's Feds: No Warrant Needed to Track Your Car With a GPS Device by David Kravetts, we find that the government is fishing in the Third Circuit in United States v. Katzin that Jones should have some exceptions, especially for terrorism cases. The oral argument is today.

This case, however, United States v. Katzin, Criminal 11-226 (E.D. Pa. May 9, 2012), involves three guys accused of robbing a pharmacy.

Wired, of course, is bent out of shape about the government making any argument for exceptions. We intuitively know, however, that the Solicitor General wrote the brief and put the AUSA's name on it. It's the advocate's job to make an argument for exceptions. Just like when I make arguments for exceptions to rules. It also makes a Davis good faith argument, which will probably win because most of them have.

Note: It looks and reads like an SG brief, so that case is going up.

03/18/13

Permalink 06:50:47 am, by fourth, 513 words, 721 views   English (US)
Categories: General

C.A.A.F.: Significant violation of SW expiration date for hard drive warranted suppression

Defendant’s computer was seized in a child pornography investigation, and the search warrant had an expiration date for searching the hard drive of 90 days. Fed. R. Crim. P. 41(e)(2)(B). It was searched a year later. There is no per se rule of exclusion for violating this provision, and trial judge was within her discretion to determine that the search was unreasonable for waiting a year. United States v. Cote, 72 M.J. 41 (C.A. A.F. 2013):

=> Read more!

Permalink 06:27:45 am, by fourth, 116 words, 402 views   English (US)
Categories: General

W.D.Wash.: Not reasonable for police to think hotel manager has apparent authority to consent

The government argued that the hotel manager could consent to an entry of a hotel room to get alleged unregistered guests staying with the registered guests out. It was not reasonable for the officers to think that the hotel management could consent to that or that he had apparent authority to consent even if that were lawful. United States v. Nghe, 925 F. Supp. 2d 1142 (W.D. Wash. 2013).*

The odor of marijuana to a trained drug dog is probable cause, relying on Florida v. Harris. Phippen v. State, 2013 WY 30, 297 P.3d 104 (2013).*

Suppression of evidence is not a remedy for a violation of Article 36 of the Vienna Convention on Consular Relations. State v. Ramos, 2013 OK CR 3, 297 P.3d 1251 (2013).

Permalink 06:14:04 am, by fourth, 100 words, 388 views   English (US)
Categories: General

FL5: No legal basis for the search being shown, reversed

Defendant’s car was stopped on a vague BOLO (“white sedan”) for drugs, and it was searched when stopped. After the search, the officers asked for consent. No legal basis for the stop and search being shown by the record, the motion to suppress should have been granted. Batchelor v. State, 108 So. 3d 1152 (Fla. 5th DCA 2013).*

A “routine check” of a probationer’s house isn’t proper under Louisiana law–reasonable suspicion is required. State v. Jones, 119 So. 3d 9 (La. App. 4 Cir. 2013).*

A traffic detainee is not entitled to a Miranda warning. Meriwether v. State, 984 N.E.2d 1259 (Ind. App. 2013).*

Permalink 06:05:42 am, by fourth, 187 words, 634 views   English (US)
Categories: General

D.Wyo.: Wyoming Commercial Vehicle Act satisfies Burger closely-regulated industries exception

A random commercial vehicle stop and inspection under the Wyoming Commercial Vehicle Act was reasonable because the Act satisfied the Burger closely-regulated industries exception. United States v. Swift, 2013 U.S. Dist. LEXIS 36268 (D. Wyo. January 9, 2013):

=> Read more!

03/17/13

Permalink 03:23:56 pm, by fourth, 209 words, 675 views   English (US)
Categories: General

Volokh Conspiracy: My View of How the Fourth Amendment Should Apply to Searching A Cell Phone Incident to Arrest

Permalink 09:07:47 am, by fourth, 122 words, 473 views   English (US)
Categories: General

DE: Not closely following sobriety checkpoint rule not a Fourth Amendment issue

State procedures for conducting sobriety checkpoints were not faithfully followed, but violation of a state rule does not make a Fourth Amendment violation. This roadblock was still constitutionally reasonable. State v. Cook, 2013 Del. Super. LEXIS 73 (February 13, 2013).

The search warrant had a [probable cut and paste] error, seeking marijuana instead of methamphetamine. That was a technical error that could be overlooked. Norton v. State, 2013 Ga. App. LEXIS 181 (March 13, 2013).

An officer saw a hand-to-hand drug transaction from an apartment at night. He approached the door and knocked, and in plain view just inside the door were drugs and drug paraphernalia. His entry into the apartment was for a felony in progress and was reasonable. State v. Goode, 2013 Ohio 958, 2013 Ohio App. LEXIS 835 (2d Dist. March 15, 2013).*

Permalink 08:59:24 am, by fourth, 129 words, 410 views   English (US)
Categories: General

IA: Two-year-old drug prior is only a hunch in the reasonable suspicion calculus

During a traffic stop, defendant refused consent when the paperwork was complete, and the officer refused to let him go, investigating further. The stop was unreasonable. Defendant’s 2009 drug conviction only provides a hunch of illegal conduct. State v. Scanlon, 829 N.W.2d 589 (Iowa App. 2013).

Pro se plaintiff lost in his bench trial for illegal detention, and the record supports the verdict. Bryant v. City of Philadelphia, 518 Fed. Appx. 89 (3d Cir. 2013).*

The encounter with defendant on the street was consensual, up to the time defendant was told he was going to be subjected to a patdown. Defendant, however, was in a high-crime area carrying a woman’s purse, and that was justification for the encounter. The encounter was reasonable. State v. Rappley, 2013 Ohio 964, 2013 Ohio App. LEXIS 837 (2d Dist. March 15, 2013).*

Permalink 08:27:08 am, by fourth, 186 words, 455 views   English (US)
Categories: General

D.N.M.: Avoiding an immigration checkpoint, without more, doesn't justify a stop

Avoidance of an immigration checkpoint by turning around was not illegal nor reasonable suspicion. Articulable facts for reasonable suspicion must also be present. Motion to suppress granted. United States v. Castro, 929 F. Supp. 2d 1140 (D. N.M. 2013).*

Officers saw defendant 2-3 steps outside his front door, and they approached to arrest him. They announced who they were and came through a wrought iron gate. They didn’t violate curtilage by entering the gate in the city, and defendant failed on that burden. They lacked, however, probable cause. But, defendant doesn’t win his suppression motion because he can’t show standing in the place the police entered. After a long discussion of what there was to show a reasonable expectation of privacy in the premises, the court concludes defendant fails on standing. United States v. Johnson, 2012 U.S. Dist. LEXIS 186865 (D. Nev. December 26, 2012).*

The consent officers sought was limited to a cursory review, and then they went way beyond that thinking they had complete consent. They didn’t, and the motion to suppress is granted. United States v. Canine, 2012 U.S. Dist. LEXIS 186867 (D. Ariz. July 2, 2012).*

Permalink 12:00:17 am, by fourth, 167 words, 449 views   English (US)
Categories: General

Law.com: Parties Gear Up for 8-Week Bench Trial Over Police Stops

Law.com: Parties Gear Up for 8-Week Bench Trial Over Police Stops by Mark Hamblett:

Lawyers for New York City will be waging an uphill battle starting March 18 as they try to convince a federal judge, who has seemed skeptical so far, that the Police Department's stop-and-frisk anti-crime policies comport with the Fourth Amendment.

Plaintiffs challenging the policies have the burden of proving by a preponderance of the evidence that the police target people for stops based on race, without the constitutionally mandated reasonable suspicion that the individual has committed, is committing or is about to commit a crime. Police must have reasonable suspicion a person is armed to frisk them.

The plaintiffs are not seeking money damages in Floyd v. City of New York, 08 civ. 01034. Instead, they are asking Southern District Judge Shira Scheindlin (See Profile), who will conduct a bench trial that could last eight weeks, to find the city liable and ultimately appoint a monitor to oversee the NYPD's compliance with any remedial order.

03/16/13

Permalink 11:13:16 am, by fourth, 171 words, 622 views   English (US)
Categories: General

N.D.Cal.: National Security Letters unconstitutional

The non-disclosure provision of National Security Letters violates the First Amendment as a prior restraint, and it is nonseverable from the rest of the statute. Therefore, the statute is unconstitutional and NSL’s may not be issued. The order is stayed for 90 days to give the Court of Appeals the opportunity to address it. In re National Security Letter, No. C 11-02173 SI (N.D. Cal. March 15, 2013):

For the reasons discussed below, the Court finds that the NSL nondisclosure and judicial review provisions suffer from significant constitutional infirmities. Further, these infirmities cannot be avoided by “conforming” the language of the statute to satisfy the Constitution’s demands, because the existing statutory language and the legislative history of the statutes block that result. As such, the Court finds section 2709(c) and 3511(b) unconstitutional, but stays the judgment in order for the Ninth Circuit to consider the weighty questions of national security and First Amendment rights presented in this case.

See eff.org: National Security Letters Are Unconstitutional, Federal Judge Rules; Wired.com.

Permalink 10:19:29 am, by fourth, 162 words, 599 views   English (US)
Categories: General

GA: Officer's entering front door unasked was unreasonable

Defendant’s garage was part of the home. She parked there and entered the house through its door. Therefore, the officer’s entry there violated the curtilage. Even if the officer had probable cause defendant had been driving recklessly, he lacked exigent circumstances to enter the apartment when the defendant answered the door. He stepped in only two feet, but that’s still an entry. Corey v. State, 2013 Ga. App. LEXIS 185 (March 13, 2013).

Defendant relied on United States v. Smith, 263 F.3d 571 (6th Cir. 2001), to have standing to challenge the search of the rental car he was driving; defendant had no standing here because he had no DL and his relation to the renter was tenuous and not a family relationship. United States v. Akinola, 2013 U.S. Dist. LEXIS 35952 (D. N.J. March 15, 2013).

Defendant’s consent is voluntary. While he speaks Spanish, the recording of his interview shows he understands English. United States v. Monarrez-Mendoza, 2013 U.S. Dist. LEXIS 35584 (N.D. Tex. March 6, 2013).*

Permalink 10:11:10 am, by fourth, 224 words, 400 views   English (US)
Categories: General

MS: Defendant's stop walking pit bulls was unreasonable; no possible violation of law

Police received a call about a man walking pit bulls, so they went looking for him and found him. The officer rolled down his window, and defendant kept walking talking to him. The officer told him to stop and produce his ID, and defendant refused. Things escalated from there to defendant being arrested for disorderly and refusing to obey an order of the officer. The entire stop should have been suppressed because the stop was unreasonable. There was no legal basis for stopping defendant. He was in violation of no law. Harrell v. State, 109 So. 3d 604 (Miss. App. 2013).

The consenter ultimately had no actual authority to consent, but there was clear apparent authority: “The lack of ambiguity from Orphan's statements to Barahona, and from his conduct at the scene and during questioning, underscores the reasonableness of the officers' belief that Orphan lived in the home at 1301 Pear Grove Lane. Specifically, it shows that it was objectively reasonable for the officers to believe his statements that he lived in the back room with his girlfriend, and that he had been living there for three or four months, and it was objectively reasonable for the officers to thus believe that Orphan had mutual use of the property and control over it for most purposes.” United States v. Chavez, 2013 U.S. Dist. LEXIS 35628 (D. N.M. March 6, 2013).

Permalink 09:32:01 am, by fourth, 938 words, 1308 views   English (US)
Categories: General

CO: References before jury to defendant refusing consent were plain error

Prosecutor’s repeated, yet unobjected to, references to defendant refusing consent to show consciousness of guilt was plain error. People v. Pollard, 2013 COA 31, 307 P.3d 1124 (2013):

=> Read more!

Permalink 09:29:26 am, by fourth, 135 words, 359 views   English (US)
Categories: General

D.Neb. & Guam: Paperwork complications justify extending stop

The stop continued for 10 minutes, but it was complicated by defendant’s paperwork, and it was only as long as required. After that, he was validly asked for consent. United States v. Aponte, 2013 U.S. Dist. LEXIS 34017 (D. Neb. March 12, 2013).*

Defendant was driving a truck of a friend with a loud muffler, and the noise attracted the officers’ attention, and they saw him speeding. When pulled over, defendant had no paperwork for the truck, and his story was changing. Extending the stop was reasonable under the circumstances. United States v. Bernal, 2013 U.S. Dist. LEXIS 34822 (D. Guam March 11, 2013).*

On the totality, with information from other officers, officers had probable cause that defendant was involved in a hit and run, and that justified his stop. United States v. Perkins, 2013 U.S. Dist. LEXIS 34861 (D. Minn. January 11, 2013).*

Permalink 09:06:39 am, by fourth, 118 words, 377 views   English (US)
Categories: General

CA5: Dog alert on car justifies search of any containers in it

A drug dog’s alert on defendant’s car justified a search of any containers in it, including her purse. United States v. Carter, 516 Fed. Appx. 344 (5th Cir. 2013).*

Officers’ entry into defendant’s curtilage was justified by seeing a gun in his waistband. United States v. Meidel, 2013 U.S. Dist. LEXIS 35227 (W.D. Mo. March 14, 2013).*

Police executed a search warrant at defendant’s house finding drugs. She was seen approaching in her car, and she was stopped. Because of the search, officers had probable cause to arrest her. When she was stopped, she admitted some drugs in her car. [Apparently she did not contest the lack of a Miranda warning.] State v. Dickey, 827 N.W.2d 792 (Minn. App. 2013).*

03/15/13

Permalink 11:58:06 pm, by fourth, 98 words, 405 views   English (US)
Categories: General

D.D.C.: Of course defendant was nervous: "lights and sirens at three o'clock in the morning could make a saint nervous”

Continuing defendant’s open container stop for a beer can because he was nervous was unreasonable. “[L]ights and sirens at three o'clock in the morning could make a saint nervous without shedding any light at all on whether there was alcohol in the can.” United States v. Hemingway, 930 F. Supp. 2d 11 (D. D.C. 2013).*

Defendant straddled the center line rather than pull over for a police car on the shoulder of the highway, and that justified the stop. The smell of marijuana justified extending it. United States v. Beard, 2010 U.S. Dist. LEXIS 145329 (E.D. Ark. October 26, 2010).*

03/14/13

Permalink 06:02:29 am, by fourth, 144 words, 419 views   English (US)
Categories: General

E.D.Pa.: Officer corroborated tip when they saw defendant with gun; hot pursuit into residence valid

Officers got a tip of a man with a gun wearing a leather jacket with a hoodie on the street. Responding, defendant matched the description. When he saw a gun in defendant’s waistband, the report, even if anonymous, was completely corroborated. When defendant ran into a building, that was hot pursuit under Warden v. Hayden. United States v. Mallory, 2013 U.S. Dist. LEXIS 33532 (E.D. Pa. March 11, 2013).

Where defendant’s own version of the events shows the search to be legal, a hearing isn’t required. United States v. Young, 2013 U.S. Dist. LEXIS 33496 (W.D. N.Y. January 16, 2013).*

The state conceded standing, but the appeals court disagreed because it was a rental car that defendant had never been in. Even assuming there was a Fourth Amendment violation, the state showed inevitable discovery. State v. Horsley, 2013 Ohio 901, 2013 Ohio App. LEXIS 793 (4th Dist. February 8, 2013).*

Permalink 05:41:35 am, by fourth, 450 words, 589 views   English (US)
Categories: General

CA2: Shooting dog during raid was a "seizure" and reasonable on the facts

Shooting of a dog during a raid was a seizure, but here it was reasonable because the jury could have concluded that no amount of training would have prevented shooting a dog coming at the police to attack them. Carroll v. County of Monroe, 712 F.3d 649 (2d Cir. 2013):

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03/13/13

Permalink 06:56:11 am, by fourth, 171 words, 435 views   English (US)
Categories: General

CA5: Probable cause for car search renders consent issue moot

Defendant’s car was searched with probable cause, so her consent issue on appeal is irrelevant. United States v. Carter, 2013 U.S. App. LEXIS 4908 (5th Cir. March 11, 2013).*

While the stop was long (31 minutes), there was no evidence that the officer did anything other than pursue the license and registration issues. While the officer testified that he extended the stop based on reasonable suspicion, his discussion with the driver never varied from the license and registration issues, so his own opinion isn’t determinative. Finally, the search of the car was by consent. United States v. Aponte, 2013 U.S. Dist. LEXIS 34017 (D. Neb. March 12, 2013).*

There was probable cause for defendant’s arrest for bank robbery because he was found looking for the getaway car in a residential neighborhood where the driver had been arrested with the key. He matched the description and there were other factors linking him. Because a suppression motion would be meritless, defense counsel cannot be ineffective. Emanuel v. United States, 2013 U.S. Dist. LEXIS 33014 (M.D. Fla. March 11, 2013).*

03/12/13

Permalink 08:42:18 am, by fourth, 175 words, 572 views   English (US)
Categories: General

OH11: No standing is apparent, even if not briefed by parties

While defendant has standing to challenge the stop of the vehicle, he doesn’t have standing as a passenger to object to the driver’s consent. Neither party briefed this issue, but it’s apparent. Also, defendant’s argument on appeal was something not even raised in the trial court. Plain error doesn’t work that way. State v. Mock, 2013 Ohio 874, 2013 Ohio App. LEXIS 768 (11th Dist. March 11, 2013).*

The trial court erred in finding no cause for defendant’s stop. She was driving on the wrong side of the road. State v. Zeth, 320 Ga. App. 140, 739 S.E.2d 443 (2013).*

Pre-Jones GPS use is valid under the Davis good faith exception. Also, defendant lacked standing to challenge putting GPS on a car long before he borrowed it. State v. Rich, 2013 Ohio 857, 2013 Ohio App. LEXIS 754 (12th March 11, 2013).*

Defendant argued he was too intoxicated to consent to a BAC for DWI or to confess. The court disagrees as to both. State v. Holden, 2013 Tenn. Crim. App. LEXIS 204 (March 8, 2013).* So, why isn't that harmless error, then, if he was that drunk?

Permalink 08:27:36 am, by fourth, 195 words, 324 views   English (US)
Categories: General

D.Minn.: Missing time for sexual assault didn't void warrant

The search warrant was for evidence of a photograph of sexual abuse of a known girl, therefore child pornography. While the time frame for the alleged sexual assault of the girl was not mentioned, and that troubles the court, the good faith exception saves the warrant on the totality. United States v. Cortes, 2013 U.S. Dist. LEXIS 32773 (D. Minn. March 6, 2013) R&R 2013 U.S. Dist. LEXIS 32767 (D. Minn. January 25, 2013).*

Report from a 13-year-old girl that defendant took pictures of her genitalia when she was 8 supported a search warrant despite the claims of staleness. “For these reasons, the Court rejects Mr. Carroll's staleness arguments because, as Seiver held, staleness arguments are ‘rarely relevant when it is a computer file [because c]omputers and computer equipment are not the type of evidence that rapidly dissipates or degrades.’ 692 F.3d at 777.” United States v. Carroll, 2013 U.S. Dist. LEXIS 32941 (S.D. Fla. March 11, 2013).*

Defense counsel was not ineffective for not raising that defendant’s stop violated Terry where the officer suspected defendant was involved in a robbery. This was a clearly unmeritorious Fourth Amendment claim. Emanuel v. United States, 2013 U.S. Dist. LEXIS 33014 (M.D. Fla. March 11, 2013).*

Permalink 08:03:44 am, by fourth, 372 words, 629 views   English (US)
Categories: General

E.D.Mich.: Noting conflict in circuits, co-tenant objecting to consent may leave without police shopping for consent with another

Noting a conflict in the circuits on the scope of Randolph, this court holds that a tenant’s refusal to consent is binding on the co-tenant, and he can leave voluntarily without having to stay there to insure the police don’t shop for consent with another. United States v. Phillips, 931 F. Supp. 2d 783 (E.D. Mich. 2013):

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Permalink 07:36:53 am, by fourth, 213 words, 1082 views   English (US)
Categories: General

Dallas News: Did Garland police officers violate a homeowners’ Fourth Amendment rights?

I ignored this story as just another "local cops do bad" until I saw it linked about ten times over the weekend, attesting to the power of having video:

Dallas News: Did Garland police officers violate a homeowners’ Fourth Amendment rights? by Tanya Eiserer

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Permalink 07:29:52 am, by fourth, 100 words, 670 views   English (US)
Categories: General

ProPublica: Everything We Know About What Data Brokers Know About You

03/11/13

Permalink 04:00:00 am, by fourth, 219 words, 496 views   English (US)
Categories: General

CA11: Search of car for “be[ing] up to no good” wasn’t good enough

The officers’ qualified immunity claim was properly denied by the district court. There was no arguable probable cause for plaintiff’s arrest for any of the misdemeanors they charged her with, and the search of her car because she didn’t produce her ID fast enough and she must “be up to no good” wasn’t good enough. No articulable basis for the search. Petithomme v. County of Miami-Dade, 511 Fed. Appx. 966 (11th Cir. 2013).*

Defendant was in a vehicle with others. None of them owned the vehicle, and standing was never mentioned. The driver could not be convicted of possession of a cocaine derivative in the car cupholder since there was nothing linking him to it (no fingerprints, no touching it). He was seen rummaging around in the area during the stop, but nothing about the cupholder. Rangel v. State, 110 So. 3d 41 (Fla. 2d DCA 2013).*

Defendant’s stop was justified for signaling a turn and then not turning. United States v. Azpeitia, 2013 U.S. Dist. LEXIS 32682 (D. Utah March 6, 2013).*

Defendant was stopped for a traffic offense, and, as he pulled to a stop, he put something in the center console. At the window, the officer could smell marijuana coming out of the car, and that was probable cause for the automobile exception. State v. Pruitt, 2013 Tenn. Crim. App. LEXIS 202 (March 6, 2013).*

Permalink 02:55:41 am, by fourth, 232 words, 569 views   English (US)
Categories: General

GA: Tipster talking to police on street not just "anonymous tipster"

A woman who flagged down the police to tell them of a potential crime is not an anonymous tipster. The officer saw her and could assess credibility. Therefore, she was considered more reliable. Durden v. State, 320 Ga. App. 218, 739 S.E.2d 676 (2013):

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03/10/13

Permalink 12:20:11 pm, by fourth, 158 words, 676 views   English (US)
Categories: General

Grits: Bypassing the telecoms: 'Stingrays' allow direct government phone surveillance with little oversight

Grits for Breakfast: "Bypassing the telecoms: 'Stingrays' allow direct government phone surveillance with little oversight" (link below):

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Permalink 12:59:06 am, by fourth, 141 words, 507 views   English (US)
Categories: General

OH8: Hiding a backpack in a store storage room when trying to elude police is abandonment

Defendant entered a convenience store when he saw the police, left his backpack in the storage room, and then left the store. That was an abandonment. State v. Milan-Wade, 2013 Ohio 817, 2013 Ohio App. LEXIS 720 (8th Dist. March 7, 2013).*

Defendant’s patdown was justified because, once stopped, the officer recognized him as somebody involved with narcotics and all the factors of the stop coalesced into reasonable suspicion. State v. Montague, 2013 Ohio 811, 2013 Ohio App. LEXIS 705 (2d Dist. March 8, 2013).*

The record supported the trial court’s conclusion defendant consented to the blood draw in this OVI case. State v. Sheppeard, 2013 Ohio 812, 2013 Ohio App. LEXIS 713 (2d Dist. March 8, 2013).*

A report of two men in a particular car dealing drugs in a high crime area that was corroborated before the stop, plus their suspicious actions, justified a frisk. State v. Taylor, 2013 Ohio 814, 2013 Ohio App. LEXIS 709 (2d Dist. March 8, 2013).*

03/09/13

Permalink 10:59:19 am, by fourth, 1171 words, 1123 views   English (US)
Categories: General

CA9 (en banc): A forensic search of a computer on crossing the border is unreasonable

An intensive search of defendant's hard drive seized at the border was not reasonable under the border search doctrine. United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc).

The introduction:

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Permalink 09:55:20 am, by fourth, 139 words, 439 views   English (US)
Categories: General

CA9: California parolees are subject to suspicionless searches

Defendant accepted a California suspicionless search condition for parole, and he was bound by it. The suspicionless search of his place was valid. Samson v. California, 547 U.S. 843, 850 (2006) ("parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment."). United States v. King, 711 F.3d 986 (9th Cir. 2013).*

The officer wasn’t reckless under the Franks doctrine; the search was also by consent; two defendants lack standing to contest the search of a vehicle; the search of the vehicle was by consent. United States v. Sexton, 2013 U.S. Dist. LEXIS 32389 (W.D. Wash. March 7, 2013).*

On remand from United States v. Beals, 698 F.3d 248 (6th Cir. 2012), the court finds the search was by consent and limited in scope “once again.” United States v. Ambrose, 2013 U.S. Dist. LEXIS 31885 (E.D. Tenn. January 23, 2013).

Permalink 09:16:14 am, by fourth, 51 words, 444 views   English (US)
Categories: General

NYTImes: The Cellphone Records, Officer? You May Soon Need a Warrant in Texas

NYTImes: The Cellphone Records, Officer? You May Soon Need a Warrant by Maurice Chammah:

Seeking to regulate the use of cellphone records in investigations by law enforcement, Texas lawmakers are considering a bill that would require police officers and prosecutors to have a warrant before obtaining such records.

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Permalink 09:11:38 am, by fourth, 164 words, 385 views   English (US)
Categories: General

D.Ore.: Driver's consent to wait for drug dog didn't extend to passengers

The officer’s version of Oregon law on what is an obscured LPN was a mistake of law and can’t support the stop. During the stop, one passenger got out and stared intently at the officer. That wasn’t reasonable suspicion. The driver’s consent to wait for a drug dog did not extend to his passengers, necessarily stopped with him. United States v. Pina-Lopez, 2013 U.S. Dist. LEXIS 32353 (D. Ore. March 8, 2013).

Class action status denied to all persons strip searched under an “all persons present” clause in all city police search warrants. Plaintiff prevailed in his case in the NY Court of Appeals, but can’t represent all others subjected to it whenever. Mothersell v. City of Syracuse, 2013 U.S. Dist. LEXIS 32085 (N.D. N.Y. March 8, 2013).*

Considering all the testimony on consent, the court finds the testimony of the officers more credible and the consent valid. United States v. Abney, 2013 U.S. Dist. LEXIS 31336 (D. N.J. March 6, 2013).*

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Permalink 08:38:26 am, by fourth, 192 words, 367 views   English (US)
Categories: General

E.D.N.Y.: Apparent authority for consent sufficient; if actual authority was lacking, it had to be shown

Defendant contended that the room in the apartment searched by the police by his roommate’s consent was his. The facts presented to the police at the time, however, showed that the apartment was the roommate’s and she had complete control over it. Therefore, the police were objectively reasonable relying on her apparent authority, even though she may not have had actual authority. Actual authority was not shown at the hearing, so the government wins on apparent authority. United States v. Dantzler, 2013 U.S. Dist. LEXIS 31493 (E.D. N.Y. February 7, 2013).*

Defendant’s roommate called the police to tell them that he had child pornography on his computer left behind at her house. The FBI was already investigating him for child pornography. She let the police in to seize the computer. A search warrant was obtained for the computer, and defendant resisted complaining of a Franks violation of false information in the affidavit. The trial court found it negligent at best, but even removing the information did not undermine the probable cause for the warrant, so the search was good. Lamarre v. State, 2013 Tex. App. LEXIS 2198 (Tex. App. – San Antonio March 1, 2013).*

03/08/13

Permalink 08:00:00 am, by fourth, 249 words, 490 views   English (US)
Categories: General

CA2: Opened ended consent permitted officer to read letter in car trunk during search

The nature of plaintiff’s consent to search her car was open ended. The officer asked about “guns and bombs” and she said no and he could look. The officer pulled a letter out of an open envelope from a court to her husband, put it back, and let her go because nothing of interest was found. The officer had qualified immunity because of the open-ended consent search. Winfield v. Trottier, 710 F.3d 49 (2d Cir. 2013).*

Defense counsel can’t be ineffective for not making a motion to suppress that would have lost, here about a plain view during defendant’s arrest and protective sweep that led to 404(b) evidence at this trial of cocaine on the floor. Davis v. United States, 2013 U.S. Dist. LEXIS 30924 (E.D. Tenn. March 6, 2013).*

It appeared to the officers that defendant and his girlfriend shared the bedroom, so that gave her common authority to consent to a search of it. United States v. Dantzler, 2013 U.S. Dist. LEXIS 31492 (E.D. N.Y. March 6, 2013).*

The court credits the officers that one of them saw a gun pulled by the defendant in a high crime area, and that led to his stop. United States v. Abney, 2013 U.S. Dist. LEXIS 31336 (D. N.J. March 6, 2013).*

The officer stopped defendant for wandering on the road, and the court believes the officer. The video of the driving encounter doesn’t contradict the officer or help the defendant. United States v. Coleman, 2013 U.S. Dist. LEXIS 30429 (S.D. Ill. March 6, 2013).*

Permalink 07:34:36 am, by fourth, 400 words, 601 views   English (US)
Categories: General

M.D.Fla.: Good faith exception sustains search of new cell phone for 2005 child pornography

The natural tendency of child pornography collectors to keep it justified, at least under the good faith exception, a search of a nearly new smartphone for old evidence of child porn. Here, defendant admitted, in a conversation police were listening to, that he sexually abused a young man in 2005. When he was arrested, officers seized his phone and applied for a search warrant for, not only the recent call log, but the photographs on it. Child porn was found, and the warrant was sustained because there was a “fair probability” it could be there as a trophy. "The six-year period here stretches the permissible temporal boundaries," but it's still valid. United States v. Mathis, 2013 U.S. Dist. LEXIS 31393 (M.D. Fla. February 19, 2013):

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Permalink 07:04:15 am, by fourth, 237 words, 676 views   English (US)
Categories: General

CA6: False suppression hearing testimony earns defendant obstruction enhancement under § 3C1.1

Defendant’s false testimony about his consent to search being at the point of a gun led to an obstruction of justice enhancement under USSG § 3C1.1 even though the court relied on the automobile exception to sustain the search. United States v. Payton, 516 Fed. Appx. 553 (6th Cir. 2013):

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03/07/13

Permalink 10:14:15 am, by fourth, 329 words, 1048 views   English (US)
Categories: General

Fox News: FBI 'secretly spying' on Google users, company reveals

Permalink 07:43:53 am, by fourth, 75 words, 425 views   English (US)
Categories: General

Only two new cases from Lexis today

Looking in a toilet bowl during a protective sweep was not excessive. Couldn't miss it. Davis v. United States, 2013 U.S. Dist. LEXIS 30672 (E.D. Tenn. March 6, 2013).*

Defendant’s stop was justified by his LPN being partially blocked by a trailer hitch ball and a video camera on the windshield blocking his vision. United States v. Coleman, 2013 U.S. Dist. LEXIS 30429 (S.D. Ill. March 6, 2013).*

And couple of civil cases that deal with qualified immunity...

03/06/13

Permalink 10:26:29 am, by fourth, 40 words, 560 views   English (US)
Categories: General

Another drug test law: Medicaid caregiver drug test in Arkansas; HB1384

A Medicaid caregiver drug test in Arkansas; HB1384 to add "20-77-125. IndependentChoices caregiver drug tests and criminal background checks."

Refusal to submit to a drug test or a positive test results in being barred from work for six months.

Permalink 08:45:06 am, by fourth, 282 words, 667 views   English (US)
Categories: General

GA: Knock-and-talk led to plain smell and detaining owner who just came home; consent valid

Officers came to defendant’s house to do a knock-and-talk and found the unmistakable smell of a meth lab but nobody home. One stayed and the others left to get a search warrant. Defendant and her brother came home, and they were stopped from entering, which was lawful. After 25 minutes, she consented to a search of her house, and it was voluntary on the totality. Durham v. State, 320 Ga. App. 81, 739 S.E.2d 389 (2013).*

Defendants were stopped for driving too close when suspected of driving in tandem on I-40 in Texas. The defense offered two expert witnesses (an accident reconstructionist and police instructor) that the cars were not too close based on the video. The USMJ determined that the video was not conclusive and credited the officer’s testimony, and that was sufficient for appeal. After the computer checks came back clean, the officer handed back the paperwork, and defendant consented to a search. The officer didn’t find anything but noticed that the car appeared to have been altered by various toolmarks. Defendant consented to a further consent search at the local DPS office, and cocaine was found. The consents were valid. United States v. Wallstrum, 515 Fed. Appx. 343 (5th Cir. 2013).*

Defendant’s stop was based on his failing to signal a lane change that could have affected other traffic nearby. What does affected other traffic mean? After analyzing the facts and law, “Officer Valdez's vague testimony fails to satisfy the Government's burden of proving that the officer had an objectively reasonable suspicion that Defendant violated the turn signal law when he switched from the right lane to the left lane.” United States v. Burciaga, 2011 U.S. Dist. LEXIS 157005 (D. N.M. May 2, 2011).*

Permalink 07:56:36 am, by fourth, 760 words, 882 views   English (US)
Categories: General

S.D.Ind.: Court allows full protective sweep of house on serving arrest and search warrant for the person in own house

The police here had a search warrant for defendant’s person, not his house, so they waited for him to get inside his house to execute it [how convenient for a protective sweep of the house]. They also knew of comings and goings from the house. The court refused to suppress the protective sweep of the whole house on his arrest. The SWAT team came for the search warrant of the person because of the house and fear defendant was armed. United States v. Schmitt, 2013 U.S. Dist. LEXIS 29463 (S.D. Ind. March 5, 2013):

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03/05/13

Permalink 08:37:22 pm, by fourth, 209 words, 831 views   English (US)
Categories: General

Sponsor of bill to test all welfare recipients for drugs supports RSC "constitutionality pledge"

Yesterday I posted this: Raw Story: Congressional bill requires welfare recipients to sign waiver of their Fourth Amendment rights. The bill’s author is Rep. Stephen Fincher of Tennessee. I Googled him and in the first page of articles was this:

Roll Call: RSC Takes Measure of Constitutionality Pledge / Neither Party Excels at Completing GOP’s Constitutionality Form by Daniel Newhauser (April 9, 2012):

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Permalink 06:11:43 pm, by fourth, 320 words, 892 views   English (US)
Categories: General

Grits for Breakfast: Cell phone location tracking by government: How it's done:

Grits for Breakfast: Cell phone location tracking by government: How it's done:

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Permalink 05:28:43 pm, by fourth, 292 words, 1127 views   English (US)
Categories: General

BLT: Antoine Jones of GPS case fame gets 6-6 hung jury; no GPS used against him

Permalink 08:02:31 am, by fourth, 414 words, 1211 views   English (US)
Categories: General

CA8: Drug dog scan of belongings left in school room not Fourth Amendment violation

Requiring students to leave their belongings in a room for a drug dog to scan them did not violate the student’s Fourth Amendment rights under T.L.O. and Acton. The court distinguishes Doe v. Little Rock Sch. Dist., 380 F.3d 349 (8th Cir. 2004), holding physical searches of belongings left in a room violated Fourth Amendment. Burlison v. Springfield Pub. Schs, 708 F.3d 1034 (8th Cir. 2013):

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Permalink 07:51:13 am, by fourth, 645 words, 561 views   English (US)
Categories: General

ID: Search of the cell phone in the pocket of a rape suspect was fairly within the terms of the search warrant for his place

A woman was raped, and her assailant took a picture or video of her before he left with his cell phone. Officers quickly focused on defendant who had a rape history, and they got a search warrant for his place. When executing a search warrant, he was near, and he was stopped and frisked. He conceded his detention was valid under Summers, but he argued his frisk was not because officers lacked reasonable suspicion. Because of defendant’s sexually violent past history, officers were justified in the frisk. Because cell phones are closely allied with persons and their premises, finding defendant at his house justified seizure of the cell phone found in the frisk and searching it. Search of the cell phone was fairly within the terms of the search warrant. State v. Russo, 2013 Ida. App. LEXIS 25 (March 4, 2013):

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Permalink 07:39:50 am, by fourth, 169 words, 383 views   English (US)
Categories: General

W.D.Mo.: Reasonable suspicion and knife clipped in pocket justified frisk for weapons

A knife in defendant’s pocket, once reasonable suspicion developed, justified a frisk. United States v. Brown, 2013 U.S. Dist. LEXIS 28752 (W.D. Mo. January 28, 2013).*

There was probable cause to arrest defendant and another for bank robbery. The bank robbers fled into woods, and the two were seen coming out of the other side of the woods stuffing stuff into bags. When they saw the police they ran. The fact there might have been homeless people living in the woods did not mean the officer should discount that. United States v. Burston, 2013 U.S. Dist. LEXIS 29018 (N.D. Ga. January 4, 2013).*

A police officer’s visual estimate of speed can be reasonable suspicion to warrant a traffic stop. State v. Dunham, 2013 VT 15, 193 Vt. 378, 67 A.3d 275 (2012).*

Defendant’s stop was justified by either too dark window tint or obscured license plate. As to the LPN, it didn’t matter that the officer could read it right next to it. United States v. Bates, 2013 U.S. Dist. LEXIS 28844 (E.D. La. March 4, 2013).*

Permalink 07:33:48 am, by fourth, 328 words, 775 views   English (US)
Categories: General

OH9: Granting motion to suppress on a ground not litigated is error

Trial court erred in granting motion to suppress on an issue not even raised by defendant that the state did not get to address. State v. Duke, 2013 Ohio 743, 2013 Ohio App. LEXIS 655 (9th Dist. March 4, 2013):

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Permalink 07:28:03 am, by fourth, 130 words, 338 views   English (US)
Categories: General

Pre-Jones GPS and standing in the vehicle of another

Defendant had no standing to contest the stop based on pre-Jones GPS on a vehicle he wasn’t driving at the time. He had possession when it was installed, but it wasn’t his car and he wasn’t driving when it was stopped. Following United States v. Gibson, 708 F.3d 1256 (11th Cir. 2013). Therefore, Davis good faith does not have to be reached. United States v. Kabba, 2013 U.S. Dist. LEXIS 28870 (D. Mass. March 4, 2013).*

Defendant had standing to challenge the pre-Jones use of a GPS on a vehicle he was driving at the time, even if he didn’t own it. He loses, however, under the Davis good faith exception, that the law permitted it at the time. United States v. Batista, 2013 U.S. Dist. LEXIS 28710 (W.D. Va. February 27, 2013).*

03/04/13

Permalink 08:45:33 pm, by fourth, 218 words, 1895 views   English (US)
Categories: General

Raw Story: Congressional bill requires welfare recipients to sign waiver of their Fourth Amendment rights

Raw Story: Bill requires welfare recipients to sign waiver of their Fourth Amendment rights by Eric W. Dolan. Now somebody in Congress wants to get into the act too:

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Permalink 08:21:36 am, by fourth, 182 words, 514 views   English (US)
Categories: General

OH4: 911 “possible suicide” call justified police entry and defendant's arrest

Officers responding to a 911 “possible suicide” call entered defendant’s house and found him unconscious. When awakened, it was obvious he couldn’t take care of himself. The entry was legal. “‘[T]he business of policemen and firemen is to act, not to speculate or mediate on whether the report is correct. People could well die in emergencies if police tried to act with calm deliberation of the judicial process.’” Defendant could be arrested for disorderly conduct under Ohio law in his own house. State v. Miller, 2013 Ohio 691, 2013 Ohio App. LEXIS 610 (4th Dist. February 7, 2013).*

The factual issue this 2255 petitioner complained defense counsel didn’t present in the suppression motion had no bearing on the outcome, so it could not be ineffective assistance. United States v. Ibeh, 2013 U.S. Dist. LEXIS 27136 (E.D. Pa. January 8, 2013).*

Defense counsel was not ineffective for not arguing the search issue on appeal where defendant clearly lacked standing to contest it. It’s defense counsel’s duty to winnow out the weak arguments, not make them. Mickens v. United States, 2012 U.S. Dist. LEXIS 186497 (N.D. Ga. October 24, 2012).*

Permalink 08:18:50 am, by fourth, 125 words, 401 views   English (US)
Categories: General

CA4: Pre-Jones GPS surveillance in wiretap application didn't affect outcome

When defendant said that he had a lot of money in the car, the officer was justified in inventorying it for self-protection [Ha! Isn’t the dashcam protection enough? Not that it matters because it would have been found anyway:] The car also smelled of marijuana and defendant admitted he was carrying. That was probable cause. There was also a wiretap with information from pre-Jones GPS surveillance. Striking those references still left probable cause for the wiretaps, even assuming that Davis doesn’t carry the day for the government. United States v. Sellers, 512 Fed. Appx. 319 (4th Cir. 2013).*

Defendant’s nervous and erratic behavior while officers were ticketing him was reasonable suspicion to detain him longer. State v. Houston, 2013 Ohio 686, 2013 Ohio App. LEXIS 606 (4th Dist. February 7, 2013).*

Permalink 07:58:07 am, by fourth, 188 words, 433 views   English (US)
Categories: General

CA1: A party can't concede an issue in the papers and then argue against it on appeal

Defense counsel can’t concede a Fourth Amendment issue in the papers and then argue against it on appeal. United States v. Gates, 709 F.3d 58 (1st Cir. 2013):

In his motion to suppress, the defendant explicitly "concede[d] that based upon his speed Officer Hall had a reasonable articulable suspicion to effect a traffic stop of his vehicle." This concession corresponds to the officer's account and no more is exigible to render the stop legitimate. See Whren v. United States, 517 U.S. 806, 812-13 (1996) (holding that the appropriate Fourth Amendment test is one of objective reasonableness); Ruidíaz, 529 F.3d at 29 (same). That ends this aspect of the matter: a party cannot concede an issue in the district court and later, on appeal, attempt to repudiate that concession and resurrect the issue. To hold otherwise would be to allow a litigant to lead a trial court down a primrose path and later, on appeal, profit from the invited error. We will not sanction such tactics. Cf. Merchant v. Ruhle, 740 F.2d 86, 92 (1st Cir. 1984) (warning against permitting the use of "agreeable acquiescence to perceivable error as a weapon of appellate advocacy").

Permalink 07:33:42 am, by fourth, 881 words, 814 views   English (US)
Categories: General

AL: Mandamus can lie to force issuance of search warrant where probable cause not in dispute

The Alabama Supreme Court faces an issue that is a first timer for me: Whether a writ of mandamus may compel a local judge to issue a search warrant if probable cause exists. Here, there was a dispute among law enforcement whether probable cause existed that the subject of the search warrant were illegal gambling machines. The Sheriff said no, the AG’s investigators said yes. The local judge sided with the sheriff, and the Circuit Judge wouldn’t intervene. The state sought mandamus in the Supreme Court arguing that the existence of probable cause created a duty for the local judge to issue the search warrant. Starting with Ex Parte United States, 287 U.S. 241 (1932), holding that a U.S. District Judge had a duty to issue an arrest warrant on an indictment, the court concludes that mandamus is a proper remedy given that probable cause is a low threshold and judges should not frustrate law enforcement efforts. Here, the local court’s refusal to issue the warrant were all arguments extrinsic to the probable cause and were legal error. Ex parte State, 2013 Ala. LEXIS 16 (March 1, 2013) (no free link to case; state's website goes to Lexis.com):

=> Read more!

03/03/13

Permalink 08:10:53 am, by fourth, 598 words, 742 views   English (US)
Categories: General

Cal.4: Exclusionary rule does not apply in sexually violent predator proceedings

The exclusionary rule does not apply in SVP proceedings. Here, the DA acquired boxes of information about the defendant years after the conviction and even proceeded in court for authority to open the boxes and whether defendant had a reasonable expectation of privacy. This is not a criminal proceeding, and the need to deter is gone. People v. Landau, 214 Cal. App. 4th 1, 154 Cal. Rptr. 3d 1 (4th Dist. 2013):

=> Read more!

Permalink 02:00:06 am, by fourth, 151 words, 563 views   English (US)
Categories: General

D.Ariz.: Same rental car with drugs twice before seen again; reasonable suspicion based on route driven

Defendant was in a rental 4Runner that the police had found large quantities of marijuana in before, rented from a rental agency that seemed to cater to drug traffickers. The movements of the vehicle when being followed was reasonable suspicion that it had picked up drugs for delivery. United States v. Brown, 2013 U.S. Dist. LEXIS 28459 (D. Ariz. January 4, 2013).* [How often can the exact same vehicle be found with drugs in it? At what point does the presence of the vehicle itself provide reasonable suspicion? Ever? Never?]

Seeing somebody reach in defendant’s car was consistent here with a hand-to-hand drug transaction, particularly since the officer saw one in the same spot three weeks earlier. State v. Twinam, 2013 Ohio 720, 2013 Ohio App. LEXIS 639 (2d Dist. March 1, 2013).*

Similarly, reasonable suspicion supported the stop of a car going to a regular drug house for a pickup. State v. Roth, 829 N.W.2d 193 (Iowa App. 2013).*

Permalink 01:00:00 am, by fourth, 215 words, 734 views   English (US)
Categories: General

FL2: Consent to "look around" a fire pit was not consent to search a pill bottle found there

Officers heard defendant was manufacturing meth at his house. When they arrived, they found him tending a fire pit and he walked to meet them. “ One of the deputies asked Mr. Oldham if he could ‘look around’ the fire pit area to verify that he was burning copper wire, not manufacturing methamphetamine. Mr. Oldham agreed.” At the fire pit, one of the officers saw a pill bottle which he opened. That exceeded the scope of defendant’s consent, and the suppression motion should have been granted. Oldham v. State, 113 So. 3d 963 (Fla. 2d DCA 2013):

=> Read more!

Permalink 12:00:13 am, by fourth, 135 words, 419 views   English (US)
Categories: General

E.D.Pa.: Furtive movement to the center console justified a protective weapons search

Defendant’s furtive movement to the center console justified a protective weapons search there. United States v. Rivera, 2013 U.S. Dist. LEXIS 28045 (E.D. Pa. February 27, 2013).*

Defendant’s consent to the officer entering was apparent, and defendant contended he revoked consent after the officer was inside. However, defendant was belligerent with the officer, and that didn’t nullify the offense of assaulting an officer. State v. Rowlett, 2013 Tenn. Crim. App. LEXIS 163 (February 26, 2013).*

When everybody exited the car through one door, and the driver jumped over the front seat back into the backseat to get out, that qualified as a furtive movement. Cocaine was found by plain feel in the patdown for weapons. United States v. Jackson, 2013 U.S. Dist. LEXIS 28421 (M.D. Fla. March 1, 2013),* R&R 2013 U.S. Dist. LEXIS 28424 (M.D. Fla. January 31, 2013).*

03/02/13

Permalink 02:05:58 pm, by fourth, 368 words, 1058 views   English (US)
Categories: General

PA constitution prohibits warrantless taping inside a suspect’s home with a video camera planted on an informant

The state constitution prohibits warrantless taping inside a suspect’s home with a video camera planted on an informant. Commonwealth v. Dunnavant, 2013 PA Super 38, 63 A.3d 1252 (2013):

=> Read more!

Permalink 10:28:26 am, by fourth, 200 words, 859 views   English (US)
Categories: General

TX3: 911 call is not a waiver of one's reasonable expectation of privacy in the home

Frequent overnight guest and babysitter had standing to challenge a search of the premises while she was there. The state’s argument she had no expectation of privacy in the baby’s room when she made the 911 call was waived because it wasn’t raised in the trial court. A 911 call is not a waiver of a reasonable expectation of privacy in the home. State v. Elrod, 395 S.W.3d 869 (Tex. App. – Austin 2013):

=> Read more!

Permalink 10:16:12 am, by fourth, 210 words, 668 views   English (US)
Categories: General

ID finds no reasonable expectation of privacy in a public restroom with locked door

Defendant was seen driving, and the officer knew her license was suspended. She was seen going into a convenience store. She didn’t come right out, so the officer went in, and she was in the bathroom. He knocked, but she stalled. The officer got the key and entered the bathroom and searched her coat finding drug paraphernalia. The entry was valid because it was a commercial establishment. Also, the store clerk consented[! Apparently no reasonable expectation of privacy in a public restroom with a locked door]. State v. Dycus, 154 Idaho 456, 299 P.3d 263 (App. 2013).*

Plaintiff’s illegal entry and excessive force claim fails. Police were called to a domestic violence situation, and his wife gave police the key to go in. He had a chain on the door which they broke to get in. He was inside with a kitchen knife to his neck saying he wasn’t going back to jail, so they Tasered him. Brown v. Calicchio, 510 Fed. Appx. 822 (11th Cir. 2013).*

On the totality, “Can you call my attorney?,” was an unambiguous invocation of his right to counsel where defendant was handcuffed to a hospital gurney and wanted to think about whether to talk to the police after being Mirandized. United States v. Hunter, 708 F.3d 938 (7th Cir. 2013).*

Permalink 09:55:09 am, by fourth, 271 words, 740 views   English (US)
Categories: General

VT: "Special needs" justified parole search of sex offender's computer

The special needs of parole of a sex offender outweighed defendant’s privacy interest in his computer while on parole. The parole search of his computer was not a violation of the Fourth Amendment. State v. Bogert, 2013 VT 13, 2013 Vt. LEXIS 11 (February 22, 2013)

=> Read more!

Permalink 09:43:54 am, by fourth, 90 words, 507 views   English (US)
Categories: General

CA2: Being asked for consent after lawyering up was not a Fourth Amendment violation

Plaintiff’s being asked for consent after he lawyered up was not a Fourth Amendment violation. Flynn v. James, 513 Fed. Appx. 37 (1st Cir. 2013).*

Officers had an objective basis for defendant’s probation search under California law, and his subjective intent claim fails. Defense counsel was thus not ineffective for not challenging the search. Quevedo v. Kramer, 510 Fed. Appx. 616 (9th Cir. 2013).*

Defendant pulled up and approached officers nearby a house where a DV call had been made. Alcohol on his breath justified detention. Durrance v. State, 319 Ga. App. 866, 738 S.E.2d 692 (2013).*

Permalink 09:32:36 am, by fourth, 164 words, 406 views   English (US)
Categories: General

S.D.N.Y.: Time frame for particularity could have been better stated, but good faith still applies

A time frame in the search warrant to limit the breadth of the search would have been better, but the circuit law on that isn’t clear that it’s required, and that thus triggers the good faith exception. United States v. Levy, 2013 U.S. Dist. LEXIS 25508 (S.D. N.Y. February 25, 2013):

Undoubtedly, it would have been preferable if the Government had included a more specific time frame in the Search Warrant. However, "[t]he Second Circuit has not yet addressed the impact of the absence of a time frame to the particularity of a search warrant." Hernandez, 2010 U.S. Dist. LEXIS 719, 2010 WL 26544, at *11. The Court need not resolve whether the lack of a time limit renders the Search Warrant unconstitutional because the continuing uncertainty in this Circuit regarding this issue triggers the good-faith exception to the exclusionary rule. See 2010 U.S. Dist. LEXIS 719, [WL] at *12; Cohan, 628 F. Supp. 2d at 367.

Thus, "close" only applies in horseshoes, nuclear war, and the good faith exception.

03/01/13

Permalink 02:35:15 pm, by fourth, 105 words, 538 views   English (US)
Categories: General

TX via GFB: Bill filed to require warrant for GPS tracking of cell phones

Grits for Breakfast: Bill filed to require warrant for GPS tracking of cell phones:

Woo Hoo! Many thanks to state Rep. Bryan Hughes (R-Mineola) for filing HB 1608, which would require police to obtain a warrant to access location tracking data from your cell phone or other wireless communications device. Rep. Hughes sits on the House Criminal Jurisprudence Committee which would likely hear the legislation. Thanks also to the volunteers who've been helping promote the idea at the Lege, along with EFF-Austin, ACLU of Texas and Texans for Accountable Government, who have now formed a coalition to support the bill.

http://gritsforbreakfast.blogspot.com/2013/02/bill-filed-to-require-warrant-for-gps.html

Permalink 08:40:59 am, by fourth, 175 words, 646 views   English (US)
Categories: General

GA: Testimony of searching officer gave defendant standing to contest search

Testimony of the officer gave defendant standing to contest the search of the house, and that was sufficient for appellate review. [Regrettably, the defense argument of state waiver was countered with “the trial court implicitly addressed the issue of standing by addressing the merits of Rogers's motion” which makes absolutely no sense if the state didn't object to standing; it's not the trial court's job to raise standing.] State v. Rogers, 319 Ga. App. 834, 738 S.E.2d 667 (2013).

Stop for LPN violation led to furtive movement by defendant under seat. That gave the officer cause to search under the seat for a weapon or drugs. State v. Morlock, 2013 Ohio 641, 2013 Ohio App. LEXIS 571 (3d Dist. February 25, 2013).*

Defendant’s stop for riding a bicycle at night without a headlight was valid. He consented to a search of his person which found nothing. He refused to consent to a search of the bag on the handlebars, and he stuffed something further in when asked. A flashlight revealed marijuana which was validly seized. Bolen v. State, 320 Ga. App. 3, 739 S.E.2d 11 (2013).*

Permalink 08:25:16 am, by fourth, 60 words, 456 views   English (US)
Categories: General

WaPo: Sotomayor, Kagan ready for battles

WaPo: Sotomayor, Kagan ready for battles by Dana Milbank:

For a quarter-century, Antonin Scalia has been the reigning bully of the Supreme Court, but finally a couple of justices are willing to face him down.

As it happens, the two manning up to take on Nino the Terrible are women: the court’s newest members, Sonia Sotomayor and Elena Kagan.

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by John Wesley Hall
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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."
—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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