Archives for: June 2013, 05


Permalink 05:51:31 am, by fourth, 114 words, 329 views   English (US)
Categories: General

IL: No right to know name of CI in on the drug deals leading to SW

Defendant was not entitled to disclosure of the name of the informant doing drug deals at his house that was the basis for the search warrant. Defendant was not charged with selling but with possession when the search warrant was executed. People v. Hannah, 2013 IL App (1st) 111660, 991 N.E.2d 412 (2013).

In a violation of supervised release case, the stop of defendant’s car was for a traffic offense, and a gun was seeing sticking out from under the passenger seat. United States v. Mosquera, 2013 U.S. Dist. LEXIS 77247 (E.D. N.Y. May 31, 2013).*

Third party consent was credited as voluntary for the search. United States v. Ortiz, 943 F. Supp. 2d 447 (S.D. N.Y. 2013).*

Permalink 05:40:17 am, by fourth, 152 words, 320 views   English (US)
Categories: General

AL: Where SI was permissible, officer's claim of patdown was irrelevant

The search of defendant was permissible as a search incident with probable cause of drug possession. The fact the officer articulated that he wanted to do a Terry patdown is irrelevant since the objective record supports the search. Tolbert v. State, 111 So. 3d 747 (Ala. Crim. App. 2011):

Although the record appears to indicate that Officer Foster intended to perform a Terry search limited to a search of Tolbert for weapons in order to protect his and other officers' safety, Officer Foster's subjective intentions are irrelevant. As noted above, Officer Foster was objectively-authorized to search Tolbert incident to a lawful arrest, and therefore the discovery and seizure of a controlled substance from Tolbert's pants pocket was legally permissible. See State v. Gargus, 855 So. 2d 587, 590 n.2 (Ala. Crim. App. 2003).

Defendant’s patdown was unreasonable because the officer failed to provide justification that he believed defendant was armed. State v. Edwards, 112 So. 3d 53 (Ala. Crim. App. 2012).*

Permalink 05:37:27 am, by fourth, 190 words, 374 views   English (US)
Categories: General

NY: State officers' secondary inspection at immigration roadblock was without RS

Defendant was driving on US11 in New York and was stopped at an immigration checkpoint manned by 4-5 Border Patrol agents and state officers. He was driving from a Mohawk reservation to a smoke shop and had cigarettes in a U-Haul trailer. It was apparent both occupants were U.S. citizens, but defendant was referred for a secondary stop. “The basis for detaining and questioning defendant further ended when Jock told Hotz at secondary inspection that he had cigarettes in the trailer and that he was going from the Akwesasne Reserve to the Seneca Smoke Shop. This information gave rise to no reasonable inference of criminality in the possession or transportation of the [untaxed] cigarettes.” People v Jock, 2013 NY Slip Op 23176, 40 Misc. 3d 457, 967 N.Y.S.2d 818 (St. Lawrence Co. 2013).*

According to the SW affidavit, defendant sent an instant message to a known collector of child pornography expressing his interest in child pornography and requesting such an image from the collector. That shows a reasonable basis concluding that defendant, like the collector, used computer equipment to obtain pornographic images of children over the Internet. State v. Shields, 308 Conn. 678, 69 A.3d 293 (2013).*

Permalink 12:59:27 am, by fourth, 209 words, 514 views   English (US)
Categories: General

Cal.4: The oath or affirmation requirement of the Fourth Amendment does not apply to a probation arrest warrant

The oath or affirmation requirement of the Fourth Amendment does not apply to a probation arrest warrant. A warrant is not required for a probation search; it is illogical to require one for retaking a probationer for violation of the terms of release. People v. Woodall, 216 Cal. App. 4th 1221, 157 Cal. Rptr. 3d 220 (4th Dist. 2013):

=> Read more!

Permalink 12:00:21 am, by fourth, 208 words, 270 views   English (US)
Categories: General

N.D.W.Va.: Odor of meth cook and hiding or destroying materials and covered windows was PC

“[T]he detection of the odor of a methamphetamine cook by officers trained or experienced with the odor, coupled with the activity of the occupant in actively hiding or destroying materials and the fact that most of the windows of the trailer were covered, all of which was observed before the entry, would provide sufficient probable cause for the search warrant. See United States v. Shuck, 713 F.3d 563 (10th Cir. 2013), a case with remarkably similar facts.” United States v. Richardson, 2013 U.S. Dist. LEXIS 75946 (N.D. W.Va. May 30, 2013).*

Defendant’s IAC claim on failure to object to a probation search of his car failed because the “record also suggests the search was premised upon Strother's consent.” State v. Strother, 2013 Iowa App. LEXIS 561 (May 30, 2013).*

Defendant’s Franks challenge to the officer’s claim in the search warrant about the agent using his cell phone during the surveillance fails. The evidence at the hearing shows that defendant failed in his burden of proof. Even if he used the cell phone during surveillance, so what? The same is the outcome of the other objections: Even if the defendant’s allegations could be proved, they aren’t material to the outcome. United States v. Morales-Castro, 947 F. Supp. 2d 166 (D. P.R. 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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