Archives for: April 2013, 27


Permalink 10:52:28 am, by fourth, 689 words, 759 views   English (US)
Categories: General

CA7: MHSR demand of miners' medical records was reasonable under Fourth Amendment

The Mine Safety & Health Review Commission sought personnel and medical records of mine workers. Mines are clearly regulated industries. The record demands were within the power of the agency granted by Congress. Viewing them as administrative subpoenas, the court finds the subpoenas reasonable under the Fourth Amendment as to the miners’ privacy and the companies. Big Ridge, Inc. v. Fed. Mine Safety & Health Review Comm'n, 715 F.3d 631 (7th Cir. 2013):

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Permalink 10:36:05 am, by fourth, 207 words, 471 views   English (US)
Categories: General

GA: License plate reader alert justifies stop

An alert from Atlanta’s automatic license plate recognition (LPR) system that the owner of a car had an arrest warrant justifies a stop. Defendant was found to have consented thereafter. Rodriguez v. State, 321 Ga. App. 619, 746 S.E.2d 366 (2013).

Officers had an anonymous complaint that people were smoking marijuana in an apartment, so they [apparently having nothing better do to with their time] decided to do a knock-and-talk. When the door was opened, a cloud of marijuana smoke came out. The police entered and found marijuana on the coffee table. The trial court suppressed because it clearly didn’t like knock-and-talks, but the procedure is clearly constitutional. State v. Able, 321 Ga. App. 632, 742 S.E.2d 149 (2013).*

The adult half-sister of a mute and autistic girl who was suspected of being sexually abused by her grandfather had vicarious and implied authority to plant a video recorder in the bedroom to record the girl’s interaction with others. Defendant clearly had a reasonable expectation of privacy in the bedroom he was using for Fourth Amendment purposes [not that this is anything but a private search; for REP is important for the eavesdropping statute] but vicarious consent is recognized under the eavesdropping statute. Commonwealth v. F.W., 465 Mass. 1, 986 N.E.2d 868 (2013).

Permalink 10:06:41 am, by fourth, 338 words, 596 views   English (US)
Categories: General

D.S.D.: UA at jail on drug arrest valid as search incident; there was PC

Defendant was arrested for drug offenses, and a jailer told him “he needed ‘to submit to a UA.’ As Jennings was getting the cup for the urine sample out, and without any Miranda advisement, Brown said, ‘My piss is going to melt right through that cup.’ ... Brown provided a sample and it tested positive for methamphetamine, amphetamine and cannabinoids.” The UA was valid as a search incident. United States v. Brown, 2013 U.S. Dist. LEXIS 58791 (D. S.D. February 15, 2013):

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Permalink 09:58:35 am, by fourth, 526 words, 612 views   English (US)
Categories: General

WI: Railroad crossing changes within highly regulated industry exception

A railroad and the City of Fond de Lac were engaged in negotiations to replace a crossing with an overpass. The Wisconsin DOT wanted a soil sample off the right of way as part of its due diligence to construct the overpass. Relocating crossings and railroad right of way is subject to state law, always has been, and it’s clearly highly regulated. The court even cites the railroad drug testing case of Skinner. [Not even mentioned is implied consent from agreeing to a study and open fields because how does a railroad have a right of privacy on a railroad track?] Wisconsin Central Ltd v. Gottlieb, 2013 WI App 61, 348 Wis. 2d 141, 832 N.W.2d 359 (2013):

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Permalink 09:40:00 am, by fourth, 177 words, 301 views   English (US)
Categories: General

S.D.Ohio: Broad added search request for supervised release denied where no gov't interest

The court rejects a broad search term on defendant’s supervised release because of his multiple arrests for driving on a suspended license. The search term doesn’t serve any governmental interest. United States v. Postell, 917 F. Supp. 2d 687 (S.D. Ohio 2012).*

The color of the vehicle the officers were looking for was close enough to the one stopped when they had reasonable suspicion; teal or green? Under the circumstances, they “would be remiss” if they didn’t stop it. United States v. Stile, 2013 U.S. Dist. LEXIS 58266 (D. Me. January 2, 2013)*:

In criminal investigations parlance, reasonable suspicion lies between "inarticulate hunches," Terry, 392 U.S. at 22, which cannot justify investigatory stops, and probable cause, which can justify searches and arrests. Delaware v. Prouse, 440 U.S. 648, 661-63 (1979); Arvizu, 534 U.S. at 273-74. "Reasonable suspicion, then, is an intermediate standard—and one that defies precise definition." Jones, 700 F.3d at 621 (quoting United States v. Chhien, 266 F.3d 1, 6 (1st Cir. 2001)). Much like the color teal, reasonable suspicion is best understood in reference to the more easily recognized standards it rests between.

Permalink 09:22:11 am, by fourth, 182 words, 302 views   English (US)
Categories: General

CA9: Defendant not seized when he tossed his gun

Defendant ignored police commands and was walking away from them when he was told to put his hands up. Instead, he reached into his waistband and tossed the gun he had. Even if the prior search of his backpack was illegal, that was an intervening act and he wasn’t seized when he threw the gun. United States v. McClendon, 713 F.3d 1211 (9th Cir. 2013).*

The stop was based in part on information from a CI, traveling in tandem and following too close, and that was reasonable suspicion which led to a plain view of heroin. United States v. Espino-Urvan, 2013 U.S. Dist. LEXIS 58470 (S.D. N.Y. April 23, 2013).*

The claim that plaintiff’s children were not allowed to attend his federal criminal trial except with state DHS workers is not a constitutional claim, including a Fourth Amendment claim. Santos v. Sec'y of D.H.S., 532 Fed. Appx. 29 (3d Cir. 2013).*

Defendant’s search at CBP at ATL was a border search, and the cocaine found in his suitcase was lawfully seized. United States v. Wallace, 2013 U.S. Dist. LEXIS 58319 (N.D. Ga. March 21, 2013).*

Permalink 08:58:17 am, by fourth, 476 words, 900 views   English (US)
Categories: General

NJ: Use of flash-bang in no-knock not objectively unreasonable

Officers had a no-knock warrant based on defendant’s firearms in the house. The use of a flash-bang device indoors was not objectively unreasonable on these facts. State v. Rockford, 213 N.J. 424, 64 A.3d 514 (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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Fourth Amendment cases,
citations, and links

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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:
  Supreme Court:
  S. Ct. Docket
  Solicitor General's site
  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
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  General (many free):
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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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