Archives for: April 2013, 20

04/20/13

Permalink 10:07:37 am, by fourth, 127 words, 357 views   English (US)
Categories: General

TX: Defendant had standing in aunt's back yard where he kept his dogs

Defendant had standing to challenge the police entry into his aunt’s backyard. He used to live with her, but he moved out, and she let him keep his dogs in her back yard, and he came everyday with her permission to water and feed the dogs. The yard was fenced by a two wire fence on three sides and a neighbor’s privacy fence on the fourth. It was in her back yard. State v. Betts, 397 S.W.3d 198 (Tex. Crim. App. 2013).

Alaska requires a warrant for a two-party recording, not one party consent. A warrant that was shown to anticipate a drug deal was not overbroad because the police also learned about felon in possession of a firearm. Bearden v. State, 2013 Alas. App. LEXIS 44 (April 10, 2013).*

Permalink 10:05:06 am, by fourth, 323 words, 696 views   English (US)
Categories: General

D.Mass.: 72 hour psych ward hold didn't show defendant couldn't consent

The mere fact defendant was in a psychiatric ward on a 72 hour hold did not show that he couldn’t consent. Based on the totality of the circumstances, the court credits the FBI agent that defendant knew what he was talking about and wasn’t psychotic at the time. United States v. Greer, 2013 U.S. Dist. LEXIS 54009 (D. Mass. March 26, 2013):

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Permalink 09:44:03 am, by fourth, 236 words, 538 views   English (US)
Categories: General

Law.com: Judge, Counsel Tempers Flare at Stop-and-Frisk Trial

Law.com: Judge, Counsel Tempers Flare at Stop-and-Frisk Trial by Mark Hamblett, New York Law Journal:

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Permalink 09:14:22 am, by fourth, 338 words, 526 views   English (US)
Categories: General

S.D.Fla.: 2255 so bad maybe USAO should consider perjury charges

Defendant would lose the search issue in his IAC claim on the merits of the search, as he should on all issues in it. As to the 2255 petition as a whole, it is rife with false statements, omissions, and documents of questionable origin, a recurring theme. “At the outset, the undersigned notes that the movant, a proactive litigant, has filed numerous pleadings and exhibits, some of questionable origin and authenticity, making allegations and representations that, when viewed in light of the entire evidence of record, are fraught with misrepresentations and/or omissions. The undersigned, however, takes no position on whether the information that has come to light in this proceeding should be subject to further investigation by the United States Attorney's Office, or whether the district court would recommend referral for further perjury and/or fraud proceedings.” Oh, and attorney-client privilege is waived. Garcon v. United States, 2012 U.S. Dist. LEXIS 187686 (S.D. Fla. April 26, 2012):

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Permalink 08:25:14 am, by fourth, 135 words, 278 views   English (US)
Categories: General

W.D.N.Y.: Questioning about drugs beyond the traffic infraction “d[id] not measurably extend the stop's duration”

Questioning about drugs beyond the traffic infraction “d[id] not measurably extend the stop's duration” under Arizona v. Johnson. United States v. Wiggins, 2013 U.S. Dist. LEXIS 55151 (W.D. N.Y. April 16, 2013).*

Stop was justified by alleged speeding, despite the subjective reason of drug investigation. Reasonable suspicion developed. United States v. Garreau, 2013 U.S. Dist. LEXIS 55395 (D. S.D. April 18, 2013).*

Broken taillight justified defendant’s stop. Reasonable suspicion developed. United States v. Poole, 2013 U.S. Dist. LEXIS 55554 (N.D. Ill. April 18, 2013).*

Defense counsel can’t be ineffective for not filing a motion to suppress that would lose. State v. Massey, 2013 Ohio 1521, 2013 Ohio App. LEXIS 1412 (10th Dist. April 16, 2013).*

“[F]ailure to file a frivolous motion to suppress can never constitute ineffective assistance of counsel.” Aguirre v. United States, 2013 U.S. Dist. LEXIS 55652 (D. S.D. April 18, 2013).*

Permalink 08:04:29 am, by fourth, 543 words, 876 views   English (US)
Categories: General

House-to-House Searches and the Fourth Amendment

Volokh Conspiracy: House-to-House Searches and the Fourth Amendment by Orin Kerr:

Current events in Boston raise the question of whether the Fourth Amendment allows the government to conduct house-to-house searches for an armed and dangerous suspect on the loose. Assume the police enter a home without consent searching for Dzhokhar Tsarnaev; does the entry violate the Fourth Amendment? The answer depends on whether such home entries are “reasonable” under the Fourth Amendment, which requires a case-by-case balancing of the government’s interest in making the searches and the scope of the privacy invasion. The constitutional question would seem to depend on whether the searches are reasonably limited in scope (such as limited to a specific geographic area), the dangerousness of the suspect (here, very high), and the strength of the government’s case that the suspect may be in the area and cannot be caught another way. Fortunately there aren’t a lot of cases on anything like we’re seeing in Boston, at least as far as I could find. ...

Kerr notes that the suspect wouldn't have standing to contest the entry and arrest because of wrongful presence, and any civil case against the government by a homeowner would be lost on qualified immunity.

I thought the same thing watching it on TV yesterday. Add this: What would the founders have thought about a house to house search for a wanted terrorist? I don't think it would bother them at all on "reasonableness" because it's something that might happen once in a lifetime. Balancing need against scope of intrusion (akin to a protective sweep and then quickly gone to the next house), it would be reasonable. If they happened on a little dope in their house to house sweep would the police even care? No; they certainly don't have time to seize it and write a report. The homeowner gets a pass.

Kerr doesn't mention this memorable phrase from Justice Jackson in 1949 from Brinegar v. United States, 338 U.S. 160, 182-83, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949) (Jackson, J., dissenting), which pretty much sums it up:

With this prologue I come to the case of Brinegar. His automobile was one of his "effects" and hence within the express protection of the Fourth Amendment. Undoubtedly the automobile presents peculiar problems for enforcement agencies, is frequently a facility for the perpetration of crime and an aid in the escape of criminals. But if we are to make judicial exceptions to the Fourth Amendment for these reasons, it seems to me they should depend somewhat upon the gravity of the offense. If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
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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"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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