Archives for: May 2013, 20


Permalink 05:15:38 pm, by fourth, 92 words, 598 views   English (US)
Categories: General

Michigan Lawyers Weekly: Class action certified for tax debtors’ Fourth Amendment claims against state treasury

Michigan Lawyers Weekly: Class action certified for tax debtors’ Fourth Amendment claims against state treasury by Ed Wesoloski

A restaurateur who was trying to work out his tax problems with the Michigan Department of Treasury is the lead plaintiff in a class action suit that alleges treasury agents routinely searched premises and seized assets without judicially authorized warrants.

. . .

Miri alleges that from Dec. 1, 2008 to Dec. 1, 2011, the treasury department violated the Fourth Amendment in 162 instances where agents made nonconsensual searches and seizures under the authority of warrants issued and executed without judicial authority.

Permalink 10:41:23 am, by fourth, 57 words, 399 views   English (US)
Categories: General

NYTimes Editorial: Eavesdropping on Internet Communications

NYTimes Editorial: Eavesdropping on Internet Communications:

The Federal Bureau of Investigation has a new plan to intercept Internet messages, calls and video chats. Instead of requiring companies like Skype and Google to build surveillance capabilities into their services as it suggested in 2010, the F.B.I. now proposes fining companies that fail to comply with court-ordered wiretaps.

Permalink 08:07:33 am, by fourth, 137 words, 349 views   English (US)
Categories: General

NE: Search of student's truck across the street and off school grounds was unreasonable

The juvenile left the school grounds and went to his truck across the street and came back to the school. He was searched when he came back on the school grounds, and nothing was found. School officials then searched his truck across the street. That search exceeded their authority, and drug paraphernalia was found. The student’s 19 day suspension was reversed (already served) and ordered purged from his record. J.P. v. Mlllard Pub. Schs, 285 Neb. 890, 830 N.W.2d 453 (2013).

Defendant’s stop was not prolonged to get consent, particularly because defendant consented within about four minutes of the stop. Powell v. State, 2013 Ark. App. 322, 2013 Ark. App. LEXIS 335 (May 15, 2013).*

The district court disbelieved that defendant effectively withdrew his consent to search his computer for child pornography. The evidence supports that. United States v. Schaefer, 519 Fed. Appx. 71 (2d Cir. 2013).*

Permalink 01:00:22 am, by fourth, 194 words, 373 views   English (US)
Categories: General

TN: Erroneous dispatch report on LPN did not nullify consent during the stop

Defendant was stopped in his blue Buick because dispatch reported the license plate belonged to a red pickup truck. That was legal cause for the stop. During the stop, the officer always had defendants’ DL in hand, and defendant consented to a search of the car. After the search, the officer learned that dispatch was mistaken, and the vehicle was lawfully registered. The consent search was still valid because the stop was valid, and the stop was not too long. State v. Elkins, 2013 Tenn. Crim. App. LEXIS 406 (May 16, 2013).

Defendant’s non-conditional plea was a waiver of the denial of the motion to suppress. United States v. Jackson, 524 Fed. Appx. 44 (4th Cir. 2013).*

There was reasonable suspicion to stop the defendant after a detailed call from a CI. When following him, he pulled over like he was trying to lose his tail. He took off again and went to an address known for drug dealing. State v. Harrison, 2013 Iowa App. LEXIS 524 (May 15, 2013).*

Defendant was stopped in front of his house, and he was roaming around freely until the officers asked him for a frisk, which he objectively agreed to. State v. Pierce, 2013 Iowa App. LEXIS 541 (May 15, 2013).*

Permalink 12:30:50 am, by fourth, 371 words, 343 views   English (US)
Categories: General

Four from OH4 5/17

Defendant’s car was parked “oddly” and an officer stopped to probably issue a parking ticket. When he got up to the car, he found people in it. Talking to two girls, he found they were out in violation of curfew, and he ordered them out of the car. A gun was revealed and defendant was charged with it. The situation escalated to probable cause. State v. Choice, 2013 Ohio 2013, 2013 Ohio App. LEXIS 1915 (2d Dist. May 17, 2013).*

A report of occupants of a car asleep on the median of I-75 brought a police officer. Just before he got there, the car was reported to have moved on, so he went looking for them to see if they were under the influence of something, considering the unusual place they were stopped. When they found the car stopped again, one of the occupants was reaching down, and they feared a gun. A passenger was concealing his hands, too. “Once the officers drew their weapons and ordered Cook to show his hands, an investigative stop had occurred.” Defendant was handcuffed and put in the backseat of the police car. There, his feet wouldn’t stop moving. The officer got him out and searched his feet finding drugs in his sock. The search of the sock was valid. State v. Cook, 2013 Ohio 2014, 2013 Ohio App. LEXIS 1913 (2d Dist. May 17, 2013).*

Police were called to an assault, and they were told that an orange Avalanche truck had left the seen with the assailant. An officer on the way saw an orange Avalanche truck coming from that direction. What are the odds of two such trucks at that hour? Also he couldn’t be sure the truck stopped at an intersection. There was reasonable suspicion for the stop. State v. Johnson, 2013 Ohio 2017, 2013 Ohio App. LEXIS 1918 (2d Dist. May 17, 2013).*

During his stop, defendant first reached for his waistband and refused to put his hands on the wheel and he was ordered out of the car. Once out, he stiffened up and turned sideways. The officer feared a weapon and frisked him feeling gelcaps, which he “100% believed” contained heroin, so it was “immediately apparent” to him for plain feel purposes defendant had drugs. State v. Price, 2013 Ohio 2020, 2013 Ohio App. LEXIS 1920 (2d Dist. May 17, 2013).*

Permalink 12:00:41 am, by fourth, 386 words, 560 views   English (US)
Categories: General

CA10: Def's subjective belief of officers' tribal authority irrelevant to objective facts of consent

Defendant was an American Indian, and he thought that the tribal governor had authorized the police to investigate his killing of eagles. His subjective belief as to the officers’ actions was not relevant to the Fourth Amendment inquiry as to what the officers believed from the objective facts. [So, boiled down to its essence: this is an example of a good faith warrantless search.] United States v. Aguilar, 527 Fed. Appx. 808 (10th Cir. 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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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:
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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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