Archives for: June 2013, 11


Permalink 01:59:44 am, by fourth, 406 words, 622 views   English (US)
Categories: General

Bankr.D.Mont.: By declaring bankruptcy, one has a reduced expectation of privacy in his assets, even undisclosed ones

A bankruptcy trustee is not acting as a government agent for Fourth Amendment purposes [a proposition I completely reject because they are agents of the government: the one bankruptcy hearing day I watched, the Bankruptcy Judge referred to them as “my trustees”; and see Taunt v. Barman (In re Barman), 252 B.R. 403, 412-13 (Bankr. E.D. Mich.2000)]. At any rate, the defendant was obligated as a person filing bankruptcy to list his assets under oath, and that was essentially a waiver of his expectation of privacy. He had a significantly reduced expectation of privacy in a cache of gold and silver which he failed to disclose on the bankruptcy that the trustee learned about, and the trustee could go looking for it. The court also notes that the bankrupt was a member of the "sovereign" movement. In re Bodeker, 2013 Bankr. LEXIS 2336 (Bankr. D. Mont. June 7, 2013):

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Permalink 01:00:37 am, by fourth, 165 words, 335 views   English (US)
Categories: General

E.D.La.: Expert on drug dog handler cues rejected; officer best witness to what he did or didn't do

Under Florida v. Harris, the K-9 officer was the best person to testify whether he improperly cued the dog to alert. Viewing the video, he said he didn’t. The opinion of the expert who said he did cue the dog is rejected since it is based on the same two minute video because the expert didn’t have enough information to go on. United States v. Guyton, 2013 U.S. Dist. LEXIS 79694 (E.D. La. April 16, 2013).*

Defendant lawyered up during his interrogation, but the police asked him questions about his watch and what hotel he was staying at. They got a search warrant for the hotel room. He doesn’t argue that the search should be suppressed because he identified where he was staying, and the police had a warrant. Therefore, the search was valid. United States v. Balde, 2013 U.S. Dist. LEXIS 78336 (E.D. N.C. June 4, 2013).*

A DUI arrest supports a search incident of the vehicle. State v. Ewertz, 2013 Kan. App. LEXIS 51 (June 7, 2013).

Permalink 12:30:02 am, by fourth, 244 words, 415 views   English (US)
Categories: General

MD: Police reasonably relied on landlord's belief tenant had vanished

Defendant’s landlord reasonably believed that he had moved out of his apartment when he left the country for six weeks. Defendant had changed the lock, and the landlord had no communication with him. He found the place trashed with “lots of pot” laying around. The police reasonably relied on the landlord’s representations and apparent authority. Frobouck v. State, 212 Md. App. 262, 67 A.3d 572 (2013).

The Florida one-party consent to recording statute, FSA ch. 934, has not been much discussed in the case, but this court finds that it does not apply to recordings a child sex abuse victim made with her abuser. He had no reasonable expectation of privacy that she would not record him soliciting sex from her in their home. McDade v. State, 112 So. 3d 551 (Fla. 2d DCA June 7, 2013):

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Permalink 12:00:27 am, by fourth, 186 words, 348 views   English (US)
Categories: General

MS: Undercarriage of car considered murder weapon properly searched under automobile exception

In this death penalty case, defendant’s car was suspected of running down and over his victim. When the car was seized, the undercarriage of the car had tissue from the victim. The car was seized for a search warrant, but immediate seizure of the tissue sample was clearly reasonable under the automobile exception even before the warrant. Galloway v. State, 122 So. 3d 614 (Miss. 2013).

Jamaican wiretaps were done by local law enforcement, and Jamaican authorities were not acting as surrogates for U.S. law enforcement. The product of the wiretap could thus be used in a U.S. court. Also, the government could not be made to turn over the wiretap applications because they were not in its possession. United States v. Lee, 723 F.3d 134 (2d Cir. 2013).

Defendant was in a group of men “socializing” when an officer cut him from the pack and escorted him to a car while holding his waistband. He was asked for consent and did. The stop was without reasonable suspicion, and suppression should have been granted. People v. Noah, 2013 NY Slip Op 04144, 2013 N.Y. App. Div. LEXIS 4052 (4th Dept. June 7, 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:
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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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