Archives for: April 2013, 13

04/13/13

Permalink 08:11:43 pm, by fourth, 248 words, 562 views   English (US)
Categories: General

D.Ore.: 16 year old prostitute turning tricks in a motel room is exigency

Officers entered a motel room with probable cause and exigent circumstances that a 16 year old girl was inside working as a prostitute for defendant. It was the ongoing crime of sexual abuse and prostitution of a child. Defendant, her alleged pimp, wasn’t there. Closed bags were found. The entry was legal, but the contents of the bags were not in plain view. Also, the fact it took 25 minutes for them to leave with the girl didn’t make it unreasonable. The motion to suppress is denied as to the entry and observations, but granted as to the closed bags defendant left in the room. “Defendant has not cited and the Court has not found any case requiring officers to make an instantaneous retreat from premises they entered based on exigent circumstances. Here the Court concludes the officers were still legally present in the room when they observed the bags in plain view during the period in which they were still dealing with N.B.” United States v. Wilmer, 2013 U.S. Dist. LEXIS 52350 (D. Ore. April 11, 2013).*

Note: A really interesting question not discussed at all is standing. Defendant rented the room for the girl to work as a prostitute, and he wasn’t there when the search went down. The court assumed defendant had standing as the renter of the room, and the government apparently never raised it. All may believe that defendant’s bags in the room was standing enough. Some courts would not be so solicitous.

Permalink 03:07:06 pm, by fourth, 154 words, 296 views   English (US)
Categories: General

M.D.Ala.: Officer's smell of MJ apparent to defendant in house made exigent circumstance

The smell of marijuana was an exigent circumstance for an entry coupled with the defendant’s knowledge the officers smelled it. United States v. Staley, 2013 U.S. Dist. LEXIS 50901 (M.D. Ala. March 15, 2013).*

Reasonable suspicion was present to extend the stop to get a drug dog to the scene. Defendant’s refusal to consent (albeit vague and ambiguous and sometimes a partial consent), is not considered at all, and the police couldn’t. United States v. Williams, 2013 U.S. Dist. LEXIS 50782 (M.D. N.C. April 9, 2013).*

Any failure to properly announce before entry is not a ground to suppress under Michigan v. Hudson. The search of defendant’s trash at the curb was reasonable. Any failure to comply with the inventory requirement (something not really proved) would not be a constitutional error without prejudice to the accused, and there can’t be any. United States v. Barker, 2013 U.S. Dist. LEXIS 50376 (D. Minn. March 25, 2013).*

Permalink 03:03:25 pm, by fourth, 479 words, 488 views   English (US)
Categories: General

E.D.Ky.: Protective sweep justified as a virtual “health and welfare argument”

Protective sweep justified as a virtual “health and welfare argument.” There was a prior home invasion, and people were unaccounted for. United States v. Shephard, 2013 U.S. Dist. LEXIS 51427 (E.D. Ky. March 15, 2013):

=> Read more!

Permalink 02:40:34 pm, by fourth, 147 words, 309 views   English (US)
Categories: General

W.D.Mo.: Defendant has standing to challenge other's consent to record call with him

Defendant has standing as “an aggrieved person” to challenge the initial consent of one recording a conversation with him. United States v. Hawkins, 2013 U.S. Dist. LEXIS 50952 (W.D. Mo. April 9, 2013).

Officers interrupted a burglary in progress and had reasonable suspicion that a nearby car was involved to be able to stop it. Waldron v. State, 321 Ga. App. 246, 741 S.E.2d 301 (2013).*

Petitioner’s search issue should have been raised on direct appeal, so it can’t be raised in post-conviction. State v. Allen, 2013 Ohio 1409, 2013 Ohio App. LEXIS 1314 (5th Dist. March 25, 2013).*

Defendant rousted from bed by officers in his house with a search warrant, patted down, taken outside to a police car barefooted, and questioned in a patrol car front seat with an officer next to him and behind him was “in custody” for Miranda purposes. United States v. Lee, 2013 U.S. Dist. LEXIS 51657 (M.D. Fla. April 10, 2013).*

Permalink 01:59:06 pm, by fourth, 127 words, 285 views   English (US)
Categories: General

ProPublica: No Warrant, No Problem: How The Government Can Still Get Your Digital Data

ProPublica: No Warrant, No Problem: How The Government Can Still Get Your Digital Data by Theodoric Meyer and Peter Maass:

The U.S. government isn’t allowed to wiretap American citizens without a warrant from a judge. But there are plenty of legal ways for law enforcement, from the local sheriff to the FBI to the Internal Revenue Service, to snoop on the digital trails you create every day. Authorities can often obtain your emails and texts by going to Google or AT&T with a simple subpoena. Usually you won’t even be notified.

Two senators introduced legislation last month to update privacy protection for emails, but the bill remains in committee. Meantime, here’s how law enforcement can track you without a warrant now: ...

FourthAmendment.com

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
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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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    Electronic Communications Privacy Act (2012)
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    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (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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