Archives for: April 2013, 15

04/15/13

Permalink 10:39:58 pm, by fourth, 274 words, 597 views   English (US)
Categories: General

CT argument tomorrow: "The guilt by association exception to the Fourth Amendment"

Permalink 10:10:31 pm, by fourth, 192 words, 483 views   English (US)
Categories: General

PA: Furtive movement and nervousness justifies frisk of car for weapon

Defendant was stopped at night, and he made a furtive movement below his seat. He was nervous when talked to. The officer got him out and frisked him finding nothing. The officer then searched the area defendant was sitting in, and a gun was found. Furtive movements alone are not reasonable suspicion. Add nervousness, and it is. The trial court’s order suppressing the gun was reversed. Commonwealth v. Buchert, 2013 PA Super 81, 68 A.3d 911 (2013).

Officers properly conducted a protective sweep when responding to a shooting call. A later search warrant for the premises was not based on stale information about the gun just because a picture had been seen with defendant holding the gun from two years earlier. “Again, appellant's argument is patently meritless. The July 18, 2008 affidavit was more than sufficient for a search warrant to issue regardless of the allegation concerning the October 2006 photograph. Police did not recover the murder weapon and they had new information that it may be stashed under the floor boards in the attic. The trial court did not err in denying appellant's motion to suppress physical evidence.” Commonwealth v. Harrell, 2013 PA Super 82, 2013 Pa. Super. LEXIS 222 (April 12, 2013).*

Permalink 10:39:14 am, by fourth, 175 words, 270 views   English (US)
Categories: General

CA6: Finding defendant said police "could search his house all [they] want[ed]" alone was consent

“Frost’s statement to the police that they ‘could search his house all [they] want[ed]’ indicated unqualified and unequivocal consent that was not undermined by his refusal to sign a written consent form.” United States v. Frost, 521 Fed. Appx. 484 (6th Cir. 2013).*

The search of plaintiff’s home was arguably overbroad in his allegation that stuff was taken, but plaintiff can pinpoint (1) nothing that was seized from the house (2) by any person to impose liability. Alford v. Vernier, 524 Fed. Appx. 157 (6th Cir. 2013).*

Police came to a church because of a noise complaint, and they entered and took information. During the course of the litigation, the individual plaintiffs dropped out. The church has no remaining Fourth Amendment standing. “Faith Baptist Church does not assert that any violations of its Fourth Amendment rights occurred. All plaintiffs entitled to assert the Fourth Amendment rights at issue, and all of their claims, were dismissed without prejudice pursuant to the Stipulation and Order entered by the district court on March 25, 2009.” Faith Baptist Church v. Waterford Twp., 522 Fed. Appx. 322 (6th Cir. 2013).*

Permalink 03:00:07 am, by fourth, 141 words, 317 views   English (US)
Categories: General

E.D.Tex.: Business's receiver could consent to seizure of records by FBI

An oil and gas investment business went under, and the SEC moved in and got a receiver appointed. The receiver turned over evidence to the FBI. A similar case is United States v. Setser, 568 F.3d 482 (5th Cir. 2009), which favors the government. A TRO for the receiver is not a search warrant. United States v. Coughlin, 2013 U.S. Dist. LEXIS 52576 (E.D. Tex. February 4, 2013).

Admission of historical cell site location data was harmless error here, even if unconstitutional, because defendant’s co-defendant in the bank robbery testified they did it together and because of the eyewitnesses who put him there. United States v. Johnson, 2013 U.S. App. LEXIS 7406 (11th Cir. April 12, 2013).*

Defense counsel had no duty to file a meritless motion to suppress, so he couldn’t be ineffective for not filing it. State v. Khouanmany, 832 N.W.2d 385 (Iowa App. 2013).*

Permalink 02:00:32 am, by fourth, 298 words, 599 views   English (US)
Categories: General

E.D.Mo.: No exigency for entry after knock-and-talk

There was no justification for a warrantless entry into defendant’s house after a knock-and-talk. While the officers were found credible on the question of whether a document entitled “consent to search” was signed, they omitted the critical facts of alleged exigency from their reports, and that was important. They needed a warrant and elected to proceed without one. United States v. Whisenton, 2013 U.S. Dist. LEXIS 52667 (E.D. Mo. March 8, 2013)*:

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Permalink 01:00:58 am, by fourth, 148 words, 325 views   English (US)
Categories: General

CA10: It doesn't violate curtilage to go to back door when that's the door always used

Going to the back door to do a knock-and-talk was reasonable where it appeared that the front gate had not been opened in a long time, and the normal route of going in and out was the back door. United States v. Shuck, 713 F.3d 563 (10th Cir. 2013).

While the warrant was issued without probable cause, the USMJ recommended the good faith exception sustain the warrant. On de novo review, the court finds that only the good faith exception issue need be addressed, and it agrees that the officers were objectively reasonable in relying on it. United States v. Davis, 2013 U.S. Dist. LEXIS 52635 (E.D. N.C. April 12, 2013).*

“[A]ppellant failed to include in the appellate record a transcript of the hearing on the motion to suppress.” Based on what little the court has, the motion to suppress is affirmed. State v. Grasty, 2013 Tenn. Crim. App. LEXIS 320 (April 10, 2013).*

Permalink 12:00:35 am, by fourth, 216 words, 483 views   English (US)
Categories: General

OH8: Inventory policy didn't address closed containers, so they couldn't be opened to be inventoried

A general inventory policy that the contents of vehicles be inventoried but that does not specify that closed containers be inventoried does not permit specifically opening the closed containers. One officer testified to “inventorying thousands of vehicles” and always interpreting it that way. State v. Hullum, 2013 Ohio 1448, 2013 Ohio App. LEXIS 1360 (8th Dist. April 11, 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
www.johnwesleyhall.com

© 2003-14, online since Feb. 24, 2003

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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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  F.R.Crim.P. 41
  www.fd.org

  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."
—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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