Archives for: June 2013, 15


Permalink 10:30:36 am, by fourth, 124 words, 409 views   English (US)
Categories: General

TX1: Drug dog on the curtilage is a "search"

Officers used a drug dog to sniff the front door of defendant’s house and he moved to suppress. The trial court denied the motion, and he was convicted. While on appeal, Jardines was decided, and it controls. While normally a dog sniff is not a search, it is when the curtilage is involved. Removing that unconstitutionally obtained information from the affidavit for search warrant leaves no probable cause. McClintock v. State, 405 S.W.3d 277 (Tex. App. – Houston (1st Dist.) 2013).

The merits of the search issue was decided on defendant’s direct appeal. On his 2255 he argues it a slightly different way, but he clearly could not prevail so the certificate of appealability (COA) is denied. United States v. Hunter, 527 Fed. Appx. 796 (10th Cir. 2013).*

Permalink 10:13:36 am, by fourth, 121 words, 344 views   English (US)
Categories: General

Global Grind: The public already knew what NSA was doing; NPR: FISC order may be released

Global Grind: Infringe On The Fourth, But Hands Off The Second: Constitutional Hypocrisy by Danielle DeAbreu

NPR: Source: Obama Considering Releasing NSA Court Order by Carrie Johnson

NPR has learned that the Obama administration, under pressure to lift a cloak of secrecy, is considering whether to declassify a court order that gives the National Security Agency the power to gather phone call record information on millions of Americans.

The document, known as a "primary order," complements a shorter Foreign Intelligence Surveillance Court document leaked to The Guardian newspaper earlier this month. That document revealed the U.S. government had been asking Verizon Business Network Services Inc. to turn over, on a daily basis, phone call records for its subscribers, for 90 days.

Permalink 10:07:39 am, by fourth, 227 words, 282 views   English (US)
Categories: General

GA: Defendant knew subject of search was drugs before he consented

Defendant’s offer to let the officer “check” for anything illegal was countered with “drugs or guns” was the subject of this search, and defendant agreed. That was a consent to a complete search. Betancourt v. State, 2013 Ga. App. LEXIS 479 (June 12, 2013).*

The product of an allegedly invalid protective sweep did not affect the decision to grant a search warrant. What omissions there were were immaterial to the probable cause determation. United States v. Munteanu, 2013 U.S. Dist. LEXIS 83346 (E.D. N.Y. June 12, 2013).*

In Oregon, reasonable suspicion is required to run wants or warrants. State v. Dierks, 257 Ore. App. 88, 306 P.3d 653 (2013)*:

In sum, we conclude that, given the totality of the circumstances that existed when Barrett returned to his patrol car after obtaining the passenger's driver's license and a name from defendant, a reasonable person in defendant's circumstances would have believed that Barrett was running a warrants check on the name she had given him and that, given his other inquiries, she was the subject of a criminal investigation and was not free to walk or drive away. The state does not contend either that Barrett had reasonable suspicion of criminal activity before he checked LEDS or that the evidence that defendant sought to suppress was not discovered as a result of the unjustified stop. Accordingly, the trial court erred when it denied defendant's motion to suppress.

Permalink 12:26:01 am, by fourth, 240 words, 395 views   English (US)
Categories: General

TN: Officer stopping car out of place for neighborhood was with reasonable suspicion

Officers were on the lookout for a serial rapist who struck homes in wooded areas on rainy nights. On this rainy night, in a wooded neighborhood, the police encountered defendant on a report of somebody peeping in cars. Defendant was driving a Jeep that the officer had seen parked in the area an hour earlier with a warm hood. The officer got his name and license number but let him go. Later, defendant was identified as a suspect. The stop was with reasonable suspicion some crime was afoot when defendant was stopped. State v. Burdick, 2013 Tenn. Crim. App. LEXIS 494 (June 11, 2013).* (Another of defendant’s cases from June 13, 2012 in a different county is here.)

The officer stopped defendant for a traffic violation and recognized him from having stopped him before and finding a gun. Defendant was looking straight ahead, wouldn’t make eye contact, was sweating and breathing heavy, and was rubbing his hands on his thighs. The officer was concerned he was armed and got him out of the car for a patdown, which defendant ducked and tried to avoid. There was a take down and a gun slid out. This was all reasonable. United States v. Bong, 2013 U.S. Dist. LEXIS 82438 (D. Kan. June 12, 2013).*

Court grants the government a hearing to overcome the USMJ’s recommendation a Franks motion to suppress be granted so the record can be supplemented. United States v. Guzman-Batista, 948 F. Supp. 2d 194 (D. P.R. 2013).*

Permalink 12:10:19 am, by fourth, 644 words, 571 views   English (US)
Categories: General

E.D.Va.: Following straw purchaser of AK-47 who ignored police justified warrantless entry

Defendant made a straw purchase of an AK-47, and they followed her where she was delivering it. Agents came to the door close on her heels, and they heard it locked. The warrantless entry was based on exigent circumstances. This was not an unreasonable police created exigency. United States v. Jackson, 2013 U.S. Dist. LEXIS 82352 (E.D. Va. June 11, 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:
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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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