Archives for: August 2013, 02


Permalink 04:52:52 pm, by fourth, 41 words, 425 views   English (US)
Categories: General

NYTimes: More Complaints Than Proposed Solutions at Trial Over Police Searches

NYTimes: More Complaints Than Proposed Solutions at Trial Over Police Searches by Joseph Goldstein:

The judge overseeing the trial examining the constitutionality of the New York Police Department's stop-and-frisk practices had a novel idea for how to reduce illegal police stops.

Permalink 08:49:31 am, by fourth, 398 words, 803 views   English (US)
Categories: General

CA6: Social workers governed by 4A; SW needed to remove children without exigent circumstances

Social workers were not entitled to absolute immunity in a 1983 case because when they removed children from their home, they were acting in a police capacity rather than as legal advocates. They were not entitled to qualified immunity because incidents that occurred weeks before the children were removed could not establish exigent circumstances. The law was clearly established that Fourth Amendment warrant requirements applied to the removal of children from their home by social workers, and no reasonable social worker could have concluded that the law permitted her to remove a child without notice or a pre-deprivation hearing where there was no emergency. Kovacic v. Cuyahoga County Dep't of Children & Family Servs., 724 F.3d 687 (6th Cir. 2013):

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Permalink 08:34:33 am, by fourth, 186 words, 323 views   English (US)
Categories: General

D.Neb.: Entry to allow the defendant to get dressed to go to the stationhouse is valid

Entry to allow the defendant to get dressed to go to the stationhouse is valid. Plain view sustained. United States v. Avalos, 2013 U.S. Dist. LEXIS 107467 (D. Neb. July 31, 2013), R&R 2013 U.S. Dist. LEXIS 107462 (D. Neb. June 26, 2013).

“McCune knocked on the trailer door and said, ‘Terry, it's the Sheriff's Department. Open the door.’ Sabo opened the door and stood in the doorway, physically blocking McCune's entry. McCune asked, ‘Terry, do you mind if I step inside and talk with you?’ Sabo said nothing. Instead, he stepped back and to the side and let the door open.” This was nonverbal consent. United States v. Sabo, 724 F.3d 891 (7th Cir. 2013).*

A “routine traffic checkpoint” [whatever that is] led to the officer smelling alcohol in defendant’s car and he wasn’t wearing a seatbelt. One thing led to another and drugs and cash were found, and it was supported by the automobile exception. A second search warrant for the car was valid, too. United States v. Stapleton, 2013 U.S. Dist. LEXIS 106667 (E.D. Ky. July 30, 2013), R&R 2013 U.S. Dist. LEXIS 107498 (E.D. Ky. May 8, 2013).*

Permalink 08:17:27 am, by fourth, 144 words, 249 views   English (US)
Categories: General

CA4: Admission of possession of a firearm was reason for frisk; RS also present

Defendant’s stop was based on following too close, and reasonable suspicion developed. “As the district court correctly observed, ‘reluctantly-given consent is not necessarily involuntarily-given consent.’ Indeed, pausing to think about whether to give consent suggests thoughtfulness, not coercion.” United States v. Brown, 536 Fed. Appx. 376 (4th Cir. 2013).

There was reasonable suspicion that defendant was armed for a frisk. Aside from reasonable suspicion, he admitted it. The frisk was reasonable United States v. Pagan, 2013 U.S. Dist. LEXIS 107092 (D. Conn. July 31, 2013).*

Search warrants for two email accounts were issued, and the court finds there were false statements in support and the officer “not to be a credible witness” who “was the most ill-prepared, unprofessional law enforcement witness this court has encountered.” However, excising the information still left probable cause, and the warrant is sustained. United States v. Barthelman, 2013 U.S. Dist. LEXIS 107123 (D. Kan. July 31, 2013).*

Permalink 07:54:55 am, by fourth, 200 words, 260 views   English (US)
Categories: General

OH5: “Yeah, why don't you get it out” of your pocket is a search

An officer was responding to a noise complaint approaching a party in a garage. As he approached a woman shouted out about the defendant getting a “fat joint” out of his pocket so they could smoke it. When the officer got to defendant he said “Yeah, why don't you get it out.” “We find Officer Garrison's statement is tantamount to an order or command; therefore, constitutes a Fourth Amendment search. We do not find this to be a consensual search under the totality of the circumstances. We further find there was insufficient probable cause to justify a search.” The approach was valid because it was the common way to the garage, so there was no violation of curtilage. State v. Mechling, 2013 Ohio 3327, 2013 Ohio App. LEXIS 3395 (5th Dist. July 29, 2013).

Using a leg sweep to take down a fighting man high on cocaine during his arrest was not excessive force. He was peppersprayed and three sets of handcuffs were required just on his hands. He broke flex ties when kicking. When he stopped breathing, paramedics were called. He died from a cocaine intoxication. Summary judgment was properly granted the officers in this 1983 case. Gunter v. Twp. of Lumberton, 535 Fed. Appx. 144 (3d Cir. 2013).*

Permalink 07:18:18 am, by fourth, 97 words, 244 views   English (US)
Categories: General

CA8: Mere error in SW date did not defeat PC or void search

Incorrect date on the search warrant was mere technicality that did not defeat probable cause or void search. It was actually issued before the search. United States v. Smith, 12-2948 (8th Cir. August 1, 2013).

Defendant denied ownership of a duffle bag that police picked up, so he abandoned it. United States v. Hammond, 2013 U.S. Dist. LEXIS 106201 (E.D. Tenn. June 19, 2013).*

Defendant’s “wife had actual and/or apparent authority to consent to a search of the laptop computer” because it was a joint purchase and they both used it. State v. Newman, 21 Neb. App. 29, 838 N.W.2d 317 (2013).*

Permalink 06:57:50 am, by fourth, 670 words, 496 views   English (US)
Categories: General

S.D.Ala.: Defendant closed door on arresting officers, got dressed, and surrendered; protective sweep unjustified

USMS showed up at defendant’s house to arrest him. He came to the door in his underwear, and there was a locked security door between him and the officers. He said he’d unlock the door, and he closed the inside door. They heard sounds inside. The officers essentially panicked that he was arming himself, and they were preparing to pry the security door off when he opened it, unlocked it, and came out and surrendered. The protective sweep under Buie was unjustified because there was no reasonable belief anybody else was inside. Otherwise, Buie would justify an entry in every case. United States v. Simmons, 2013 U.S. Dist. LEXIS 106328 (S.D. Ala. July 30, 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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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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  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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