Archives for: July 2013, 24


Permalink 05:04:24 pm, by fourth, 97 words, 364 views   English (US)
Categories: General

Freedom Works: House to Vote on Fourth Amendment Today; Outcome in Doubt

Freedom Works: House to Vote on Fourth Amendment Today; Outcome in Doubt by Dean Clancy:

The House is expected to vote today on the Fourth Amendment. The outcome is in doubt. How far we've drifted from the letter of the Constitution and the spirit of liberty!

Could it be that the Republican majority in the House has a one-item agenda: Repealing Obamacare? You should see the inane emails from my Congressman about it. I can't believe he gets a salary. I write him about the Fourth Amendment issues, and he ignores me. Privacy he doesn't care about.

Permalink 08:49:31 am, by fourth, 133 words, 309 views   English (US)
Categories: General

CA5: Defendant consented to strip search at Customs despite being intoxicated and incoherent

The evidence supported the district court’s conclusion defendant consented to a body cavity search at the Eagle Pass checkpoint, despite her being intoxicated and incoherent. She was cooperative throughout. She claimed she had a tampon in, and pulled down her pants and showed the string to the officer, but the officer concluded it connected to something else. Defendant then conceded it was a condom with heroin. Defendant was known to Customs generally because of prior involvement with a body cavity smuggling ring. United States v. Martinez, 537 Fed. Appx. 340 (5th Cir. 2013).

Officers had probable cause based on a CI’s corroborated and detailed information that a van would show up for a meth deal. Defendant was a passenger and lacked standing. United States v. Verduzco-Morett, 2013 U.S. Dist. LEXIS 102654 (W.D. Mo. January 17, 2013).*

Permalink 08:39:42 am, by fourth, 180 words, 255 views   English (US)
Categories: General

M.D.Fla.: Motion to reconsider denial of suppression granted because gov't didn't argue that ground and defendant didn't get to respond

Motions to reconsider denied motions to suppress are granted only for extraordinary circumstances and then sparingly. Here, the court’s conclusion on independent source was not argued by the government, and defendant did not get to address it. Therefore, the motion to reconsider is granted. “The Court agrees with the Defendant in that the Government has presented no evidence that the decision to seek the search warrant in this case was not prompted by what they had seen during the initial entry, as in Chaves. Id. Thus, the motion to reconsider on this issue is granted.” United States v. Srisanthia, 2013 U.S. Dist. LEXIS 102775 (M.D. Fla. July 23, 2013).

Police officers arrived at the scene of a home invasion, and found a two people shot, one of whom was the defendant. The door was open, and there was blood visible on the floor. The entry was justified by the obvious emergency of the shooting, blood, and more potential victims. Observations from that lawfully made it into a search warrant. United States v. Johnson, 2013 U.S. Dist. LEXIS 102936 (N.D. Ga. June 12, 2013).*

Permalink 08:24:28 am, by fourth, 179 words, 291 views   English (US)
Categories: General

E.D.N.Y.: GFE did not save search of wrong apartment in CP case

Officers searched two apartments in a warrant for one, and the good faith exception could not be applied. All factors pointed to upstairs Apt. 2, the purported residence of the defendant by all accounts. After officers got there, it turned out defendant was really living in downstairs Apt. 1. Clearly, the USMJ only authorized a search of Apt. 2. On a cost-benefits analysis of the benefits of suppression v. social costs, the balance favors suppression of the child pornography. United States v. Bershchansky, 958 F. Supp. 2d 354 (E.D. N.Y. 2013).

The owner of an iPhone who loaned it to the defendant had apparent authority to consent to its search after it was taken off defendant. United States v. Mitchell, 2013 U.S. Dist. LEXIS 102092 (M.D. Fla. July 22, 2013), prior opinion 2012 U.S. Dist. LEXIS 188717 (M.D. Fla. August 21, 2012).

Consent was voluntary on totality: “Most significant, however, is Salcedo's admission that he allowed the agents to search his apartment because he thought that if they failed to find the evidence, then he ‘would be home free.’” United States v. Salcedo, 533 Fed. Appx. 796 (9th Cir. 2013).

Permalink 07:51:06 am, by fourth, 236 words, 248 views   English (US)
Categories: General

M.D.Tenn.: Not unreasonable for officer to ask "locomotion-related inquiries not strictly directed to the motorist's conduct at the time of the stop"

During a traffic stop, it is not unreasonable for an officer to ask "locomotion-related inquiries not strictly directed to the motorist's conduct at the time of the stop, such as '[the] motorist's travel history and travel plans' and 'the driver's authority to operate the vehicle .'" The officer had a drug dog, and it was not unreasonable to use the dog. “While Defendant may curse his bad luck to get stopped by a police officer who has a drug dog and who knows the constitutional limits of his authority, nothing about this stop was unreasonable.” United States v. Pratt, 2013 U.S. Dist. LEXIS 101906 (M.D. Tenn. July 22, 2013).

Defendant’s appearing to be under the influence of drugs when he was stopped was reasonable suspicion to call for a drug dog. United States v. Poole, 2013 U.S. Dist. LEXIS 101661 (N.D. Iowa July 22, 2013).

There was a federal warrant for defendant’s arrest, and ICE agents found him at a county courthouse, there for a civil case with his lawyer. When he was arrested, he was asked about whether his lawyer would take his briefcase or it would come with him. He said the agents could take it. A search for weapons was reasonable. This was not a search incident per se but an inventory because defendant said the officers could take possession of the briefcase. United States v. Camick, 2013 U.S. Dist. LEXIS 101623 (D. Kan. July 22, 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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