Archives for: March 2013, 22


Permalink 02:31:31 pm, by fourth, 109 words, 447 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, 460 views   English (US)
Categories: General Suit Challenges Warrantless Cell Phone Searches 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, 621 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, 734 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, 461 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, 578 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).*

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

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Most recent SCOTUS cases:
2009 to date:

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

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

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

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

2009-10 Term:

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

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

Research Links:
  Supreme Court:
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  F.R.Crim.P. 41

  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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