Archives for: March 2013, 04

03/04/13

Permalink 08:45:33 pm, by fourth, 218 words, 1901 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, 515 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, 402 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, 434 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):

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)


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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
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    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

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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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