Archives for: April 2013, 22


Permalink 08:49:53 pm, by fourth, 51 words, 466 views   English (US)
Categories: General

Google Scholar home page makes it more versatile

Google Scholar's home page changed today. Click on "Legal Documents" and a button comes up for "Federal Cases" and your state cases or select court. One can do a significant amount of research on Google Scholar, still not as good as Westlaw or Lexis, but it will now be more focused.

Permalink 01:04:04 pm, by fourth, 292 words, 363 views   English (US)
Categories: General

CA8: Inevitable discovery saves search that was likely bad search incident but good inventory; good facts for police

Four guys came from Florida to Arkansas to pass counterfeit checks. Three got arrested fleeing from the police when called by a bank, and one had a hotel receipt on him. Police went to the hotel looking for confederates. The police saw defendant dispose of a bag with counterfeit checks in the parking lot, and he had luggage on a hotel cart about to flee. The checks matched those from the arrested three. The police went to prepare a search warrant for the hotel room he was in, but the clerk called to say he was checking out. They came back and arrested the defendant and searched the luggage finding blank check stock and a computer. On top of the luggage was a printer. The police claimed search incident or inventory because the luggage would have been left on the baggage cart, so they took it. The arrest was clearly with probable cause. The search of the luggage was justified either as inventory or inevitable discovery. “Since the evidence showed that all the items on the luggage cart would have inevitably been discovered and the officers were pursuing an alternative line of investigation, Nix, 467 U.S. at 433, the district court did not err in denying Allen’s motion to suppress.” United States v. Allen, 713 F.3d 382 (8th Cir. 2013). [Note: I was CJA appointed to one of the guys arrested passing the checks. They drove off from a bank when the police showed up, and were arrested at gunpoint. The "from Florida" in the first line was my own knowledge of the case; they all admitted to coming to Arkansas to pass counterfeit checks and then run back to Florida before anybody knew, they hoped. My guy wouldn't have standing in that luggage.]

Permalink 09:14:52 am, by fourth, 522 words, 1520 views   English (US)
Categories: General

CAAF: NCOs could enter off-base housing airman appeared to have abandoned

Defendant was an airman who was believed by his landlord to have skipped out on rent and abandoned the premises. He wasn’t around and couldn’t be found. The landlord entered and found it needed a lot of repairs and appeared abandoned. He called defendant’s NCOs who came to the apartment as Air Force representatives to the community to see what was going on. The landlord unquestionably had a right of entry under the lease, and this extended to making the NCOs his “representative.” They did not enter for any regulatory or law enforcement function. In the apartment, they found a piece of a B-1 bomber that was missing from the air base. The entry was valid. United States v. Irizarry, 72 M.J. 100 (C.A. A.F. 2013):

=> Read more!

Permalink 08:57:19 am, by fourth, 356 words, 876 views   English (US)
Categories: General

IA: Parole search provision not true consent based under state constitution

Iowa concludes that a parole agreement with a consent provision is not true consent under the state constitution. The case has a complete analysis of consent of probationers v. parolees and concludes there is no bargaining power for the parolee. [Not that anybody truly has that much bargaining power.] State v. Baldon, 829 N.W.2d 785 (Iowa 2013):

=> Read more!

Permalink 08:42:13 am, by fourth, 334 words, 382 views   English (US)
Categories: General

CA2: Heck bar doesn't necessarily apply if plaintiff released from custody

The Heck bar to § 1983 relief doesn’t apply if the plaintiff loses his habeas remedy because of release without a decision on the merits. Here, he pled to a lesser, but that may not bar the claim. Poventud v. City of New York, 715 F.3d 57 (2d Cir. 2013):

Since Jenkins and Leather, we have repeatedly affirmed that Heck's favorable-termination requirement applies only to plaintiffs who are in custody, and that all other claimants—those who have no remedy in habeas—may pursue their claims under § 1983. See McKithen v. Brown, 481 F.3d 89, 101 (2d Cir. 2007) ("Over time, [Heck's] implicit exception [to § 1983's otherwise broad coverage] has been carefully circumscribed."); Huang ex rel. Yu v. Johnson, 251 F.3d 65, 75 (2d Cir. 2001) ("In light of our holding in Leather, and in light of ... the fact that the Spencer concurrences and dissent 'revealed that five justices hold the view that, where federal habeas corpus is not available to address constitutional wrongs, § 1983 must be,' we conclude that Huang's Section 1983 claim must be allowed to proceed.") (quoting Jenkins, 179 F.3d at 26); Green v. Montgomery, 219 F.3d 52, 60 n.3 (2d Cir. 2000) ("We have held ... that Heck acts only to bar § 1983 suits when the plaintiff has a habeas corpus remedy available to him (i.e., when he is in state custody). Because it does not appear that Green is presently in state custody, his § 1983 action is not barred by Heck." (internal citations omitted)).

The facts in this case differ somewhat from the facts in the cases just cited, but not in a way that is material to the issue before us. After Poventud's original conviction was vacated, but before that vacatur was affirmed on appeal, Poventud pled guilty to a lesser, related offense.2 This fact, however, does not alter the underlying principle that a claimant who cannot seek relief under habeas must be able to seek it under § 1983. Poventud's guilty plea may (or may not) supply defendants with a defense that no § 1983 violation occurred. But it does not entitle them to summary judgment under Heck.

Permalink 08:34:46 am, by fourth, 126 words, 317 views   English (US)
Categories: General

NJ: Answering door smoking a joint in a knock-and-talk justifies entry

Answering door at a knock-and-talk smoking a joint creates cause for entry. State v. Walker, 2013 N.J. LEXIS 355 (April 10, 2013).

A cursory visual search through the windows of a car does not dissipate probable cause. A judge issuing a search warrant doesn’t need to know that already happened, and failure to put it in the affidavit is not a Franks violation. United States v. Johnson, 2013 U.S. Dist. LEXIS 55907 (W.D. Pa. April 15, 2013).*

After the hearing on the motions to suppress, the court asked for briefing, and the defendants didn’t file any. That means the motions are withdrawn. “In addition to be subject to denial for having been withdrawn, the motions lack merit.” United States v. Gutierrez-Martinez, 2013 U.S. Dist. LEXIS 55323 (N.D. Ga. March 22, 2013).*

Permalink 08:28:18 am, by fourth, 274 words, 386 views   English (US)
Categories: General

D.Utah: When dog failed to alert, defendant should have been let go; consent even coerced

Defendant was stopped for a traffic violation and the officer was going to give a warning. After the computer checks came back clean and a drug dog who had been immediately called for went around the vehicle and did not alert, the officers were stymied and conversed about how to get consent. The stop was unreasonably long [and only by two minutes] because the officers didn’t let him go. Instead, they sought consent which was coerced “to make sure there were no drugs in the van.” United States v. Rodriguez, 2013 U.S. Dist. LEXIS 56456 (D. Utah April 15, 2013):

After telling Defendants he wanted to make sure there were no drugs or weapons in the van and asking Defendants to exit the van, Nazer asked for consent to search. At that time, Defendants were moved away from the van and each placed with one of the other officers. There were three officers total and a canine at the scene. It was the middle of the night on a dark and secluded street. The officers were all in uniform, armed, and providing the only real light at the scene by holding flashlights. The officer gave no indication that Defendants could refuse consent and, in fact, had prefaced his request by stating that he wanted to make sure Herrada had given a truthful response. Under the circumstances, the court finds that no reasonable person would have felt free to refuse the officer's request to search. Therefore, the court concludes that Herrada's consent to the search was not freely given and the search violated Defendants' Fourth Amendment rights. Accordingly, the court suppresses all evidence seized in the search.

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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)

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"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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