Archives for: April 2013, 25


Permalink 08:02:16 am, by fourth, 177 words, 674 views   English (US)
Categories: General

PA: Exigent circumstances of gun in house with children justified entry to obtain murder weapon

Protective sweep (over)broadly held to include looking for a murder weapon. Commonwealth v. Harrell, 2013 PA Super 82, 65 A.3d 420 (2013):

Here, officers arrested appellant on the front porch of his residence. (Trial court opinion, 7/13/11 at 29.) However, they did not recover the weapon used to kill the two victims. (Id.) A female, described as frantic, exited the residence and informed officers that there were children inside. (Id.) Officers did not know at that time if there was anyone else involved in the shooting, if the murder weapon was inside the house, or if the children were in danger. (Id.) Under these circumstances, the officers were justified in performing a protective sweep of the residence.

Buie protective sweep is limited to looking for other people. Here, the court's conclusion should have been "the gun probably was in the house and children were in the house so exigency (or public safety, see New York v. Quarles) justified locating the gun under exigent circumstances. As to the other person, a protective sweep was permissible, although protective sweep only justifies a plain view."

Permalink 07:48:07 am, by fourth, 231 words, 348 views   English (US)
Categories: General

IN: Violation of state privacy law in getting DNA here was harmless

Indiana requires a warrant to seize evidence from property in safekeeping when a defendant is awaiting trial. Seizure of DNA from defendant’s shoe when he was in custody in violation of the Indiana Constitution was harmless error where the state put on four witnesses that defendant admitted murder by a baseball bat. Guilmette v. State, 986 N.E.2d 335 (Ind. App. 2013).*

State officers had reasonable suspicion to detain defendant for violation of an order of protection based on statements from the protectees. That supported the finding of the red dye stained money on his person that linked him to a bank robbery. United States v. Douglas, 522 Fed. Appx. 125 (3d Cir. 2013).*

Defendant’s stepson had authority to consent to a search of a shed for weapons where he kept his own there and had a key. The consent was not coerced because he was told he did not have to talk to the police. United States v. Ervin, 517 Fed. Appx. 734, 2013-1 U.S. Tax Cas. (CCH) P50,288, 111 A.F.T.R.2d (RIA) 1717 (11th Cir. 2013).*

In a case of destruction of a building without notice, the Fourth Amendment reasonableness claim parallels the Fourteenth Amendment claim. The jury instructions were erroneous because they allowed the jury to find a Fourth Amendment violation only if an emergency justified tearing down the building. RBIII, L.P. v. City of San Antonio, 713 F.3d 840 (5th Cir. 2013).*

Permalink 07:09:47 am, by fourth, 487 words, 539 views   English (US)
Categories: General

N.D.Tex.: To be effective, abandonment has to occur before search, not after

There was a robbery of a cab driver outside a hotel, and the suspect fled into the hotel. Hotel security could see him go to the fifth floor and followed. On the fifth floor, he wasn’t seen, but two men were talking loudly in a room and hotel security knocked. Nobody came to the door and it got quiet. The security person returned to the lobby. When police arrived, he took them to the room. The police entry into the room, while a close question, was with exigent circumstances because of the possibility that he holed up in a room of somebody else and had them hostage. He wasn’t the renter of the room. Finally, to be an abandonment, disclaiming ownership of property seized by the government has to occur before the search not after. United States v. Ojonugwa, 2013 U.S. Dist. LEXIS 57777 (N.D. Tex. April 23, 2013):

=> Read more!

Permalink 06:58:21 am, by fourth, 187 words, 330 views   English (US)
Categories: General

W.D.Mo.: One recorded by another for the government has standing to challenge the other's consent

One defendant subjected to a government recording of his call with a consenting person has standing to challenge the voluntariness of consent of the other person. United States v. Hawkins, 2012 U.S. Dist. LEXIS 187767 (W.D. Mo. October 18, 2012):

While the Corona-Chavez case does not address the issues of standing or the voluntariness of a consent, numerous other cases have found that defendants, such as defendant Hawkins, do have standing to challenge the voluntariness of another's consent to the recording of a phone conversation with them. In United States v. Hodge, 539 F.2d 898, 900 (6th Cir. 1976), cert. denied, 429 U.S. 1091, 97 S. Ct. 1100, 51 L. Ed. 2d 536 (1977), a government informant (Mondaine) consented to the recording of telephone conversations between himself and defendant Hodge. Defendant Hodge argued that admission of the conversations into evidence violated the Fourth and Fifth Amendments of the United States Constitution and 18 U.S.C. § 2511. Id. The court found: [¶] ... A person may challenge government evidence on the ground that it was seized by electronic surveillance violative of his Fourth Amendment right to be free of unreasonable searches and seizures if the person was a party to the conversation ....

Permalink 06:43:11 am, by fourth, 640 words, 975 views   English (US)
Categories: General

CA8: Video recording bathroom stalls of civilly committed sex offenders violates Fourth Amendment

Putting video camera over bathroom stalls of the Iowa Civil Commitment Unit for Sex Offenders violated the inmates' reasonable expectation of privacy. The recordings were not monitored in real time. Arnzen v. Palmer, 713 F.3d 369 (8th Cir. 2013):

=> Read more!

Permalink 06:34:55 am, by fourth, 182 words, 516 views   English (US)
Categories: General

D.S.D.: Cell phone properly seized incident to juvenile prostitution arrest

While the Eighth Circuit hasn’t ruled, the significant weight of authority says that a search incident of a cell phone is permissible in a search incident (citing lots of cases), particularly where the phone is directly linked to the offense. Here, it was soliciting a 15 year old prostitute and the meeting was arranged by text message and calls to and from cell phones. United States v. Nyuon, 2013 U.S. Dist. LEXIS 56916 (D. S.D. March 7, 2013).*

A notebook was seized from defendant’s vehicle in a credit card fraud case, and there was probable cause to believe it contained evidence of the crime. United States v. Harris, 2013 U.S. Dist. LEXIS 56130 (N.D. Ind. April 18, 2013).*

Defendant is accused of campaign finance violations in a Senate race in Nevada. His company fired him, and 81 boxes of information was turned over to its lawyers. The lawyers searched the boxes and found sufficient evidence to turn over to the FBI. This was a private search because there was no prior or contemporaneous government involvement. United States v. Whittemore, 2013 U.S. Dist. LEXIS 57198 (D. Nev. April 18, 2013).*

Permalink 06:18:43 am, by fourth, 158 words, 354 views   English (US)
Categories: General

W.D.Tex.: Saying "ok" to police statement CPS needs to come in not shown to be consent

When a police officer told defendant that child protective services needed to come in and talk to him, his saying “okay” was not a consent to enter; it is mere acknowledgment of the request. The lack of consent is bolstered by the fact defendant did not move and tried to shut the door on the officer. United States v. Aguirre, 2013 U.S. Dist. LEXIS 57352 (W.D. Tex. April 19, 2013).*

Arrest of defendant at his door was not a Payton violation. When he asked to get his shoes and tell his daughter he was going, the police had to follow under Chrisman, and that was reasonable. He was told they’d follow if he went in. United States v. Allen, 2013 U.S. Dist. LEXIS 57010 (D. Vt. April 22, 2013).*

The district court’s finding that exigent circumstances for the entry was based on presence of accomplices was supported by the record. United States v. Eikelboom, 2013 U.S. App. LEXIS 8088 (5th Cir. April 22, 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:
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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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