Archives for: July 2013, 21


Permalink 11:10:30 am, by fourth, 201 words, 573 views   English (US)
Categories: General

W.D.Va.: Not raising searching deputy's later firing not shown to be IAC

2255 petitioner’s claim that defense counsel didn’t raise the question of the searching deputy being later fired didn’t even attempt to show how it would change the outcome, so it’s denied. United States v. Elkins, 2013 U.S. Dist. LEXIS 101058 (W.D. Va. July 19, 2013).*

Consent was found valid. United States v. Slone, 2013 U.S. Dist. LEXIS 101198 (E.D. Ky. July 19, 2013) (R&R 2013 U.S. Dist. LEXIS 102042 (E.D.Ky. June 14, 2013))*:

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Permalink 10:15:53 am, by fourth, 403 words, 723 views   English (US)
Categories: General

SC: These 14 factors of nervousness for reasonable suspicion still did not add up to reasonable suspicion.

The state’s 14 factors of nervousness and reasonable suspicion still did not add up to reasonable suspicion. Suppression should have been granted. State v. Moore, 404 S.C. 634, 746 S.E.2d 352 (2013):

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Permalink 09:54:32 am, by fourth, 42 words, 301 views   English (US)
Categories: General

NYT: Judge Challenges White House Claims on Authority in Drone Killings

NYT: Judge Challenges White House Claims on Authority in Drone Killings by Scott Shane:

WASHINGTON — A federal judge on Friday sharply and repeatedly challenged the Obama administration’s claim that courts have no power over targeted drone killings of American citizens overseas.

Permalink 09:33:24 am, by fourth, 501 words, 694 views   English (US)
Categories: General

E.D.Pa.: Pornography industry qualifies as “closely regulated business” under Burger

The record keeping requirement of the pornography production statutes do not violate the First and Fourth Amendment. As to the Fourth, the government satisfied the “closely regulated business” rationale of Burger for the records, except for records inspections in the producers’ homes. Free Speech Coalition v. Holder, 957 F. Supp. 2d 564 (E.D. Pa. 2013):

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Permalink 09:22:55 am, by fourth, 228 words, 300 views   English (US)
Categories: General

OH9: Active smelly meth cook in motel exigency to kick in door

An officer was called to a motel because there was alleged to be an active methamphetamine cook going on in a room giving off a strong odor everybody could smell. When the occupants wouldn’t open the door, he kicked it in. An active meth cook is exigency. State v. Armbruster, 2013 Ohio 3119, 2013 Ohio App. LEXIS 3168 (9th Dist. July 17, 2013).

During prison visitation, defendant was seen likely removing something white from his child’s pants while the child was sitting on his lap and putting it in his mouth. The guards reviewed the video and couldn’t be sure. Nevertheless, they terminated the visitation. “Carlton was placed in a ‘dry cell’ and it was later determined that his feces contained fragments of white latex rubber as well as marijuana. Latex rubber balloons containing marijuana were found discarded in the lobby of the prison and in the interview room where Anderson had been interviewed.” The motion to suppress the stuff found in the lobby he hardly could object to. The search of his feces was reasonable. United States v. Carlton, 2013 U.S. Dist. LEXIS 99299 (W.D. La. March 6, 2013).

Defendant’s consent was valid. He signed four, not just one, consent forms, and he’d previously spontaneously said “That’s me” when shown an ATM photo of the suspected fraudster. United States v. Bazile, 2013 U.S. Dist. LEXIS 99780 (S.D. Fla. June 28, 2013).*

Permalink 08:54:33 am, by fourth, 205 words, 762 views   English (US)
Categories: General

CA1 recognizes "Fourth Amendment malicious prosecution" claim

Plaintiff alleged in his 1983 case he was held for three months without probable cause. He stated a claim for "Fourth Amendment malicious prosecution." Here, plaintiff didn't even match the description of the person the police were looking for. Hernandez-Cuevas v. Taylor, 723 F.3d 91 (1st Cir. 2013):

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Permalink 08:41:25 am, by fourth, 122 words, 316 views   English (US)
Categories: General

M.D.La.: One has to be somewhere on the rental agreement of a rented car to have standing

Defendant was not on the rental agreement for a rented car as an authorized driver. His mother rented the car. Her prior arrangements with him to let him drive the car she rented does not confer standing. When he saw the police he fled the car. United States v. Barlow, 2013 U.S. Dist. LEXIS 98967 (M.D. La. July 16, 2013).*

Window tint violation properly led to admission of possession of MJ and search incident. State v. Price, 322 Ga. App. 778, 746 S.E.2d 258 (2013).*

Defense counsel was not ineffective for not challenging defendant’s stop because the officers knew he was driving on a suspended DL and there was a warrant for his arrest. United States v. Moore, 2013 U.S. Dist. LEXIS 99594 (E.D. Pa. July 16, 2013).*

Permalink 02:00:00 am, by fourth, 303 words, 711 views   English (US)
Categories: General

GA: Court ordered GPS installed without any PC suppressed

State officials got a court ordered GPS installed on defendant’s car, and the court finds that it was installed utterly without probable cause. Motion to suppress should have been granted. Hamlett v. State, 323 Ga. App. 221, 746 S.E.2d 843 (2013):

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Permalink 12:13:30 am, by fourth, 310 words, 521 views   English (US)
Categories: General

GA: Stop was prolonged unnecessarily and became unreasonable

The officer did not act promptly after he claimed he developed reasonable suspicion to call the dogs out. He made small talk, didn’t ask for consent, and then decided to call for the drug dog, so the stop was unreasonably extended. Nash v. State, 323 Ga. App. 438, 746 S.E.2d 918 (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)
  Oyez Project (NWU)
  "On the Docket"–Medill
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  General (many free):
  Google Scholar | Google
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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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