Archives for: March 2013, 17


Permalink 03:23:56 pm, by fourth, 209 words, 682 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, 478 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, 411 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, 459 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, 450 views   English (US)
Categories: General Parties Gear Up for 8-Week Bench Trial Over Police Stops 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.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting

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citations, and links

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Most recent SCOTUS cases:
2009 to date:

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

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

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

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

2009-10 Term:

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

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

Research Links:
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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (pdf)

  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't."

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)


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