Archives for: August 2013, 19


Permalink 09:24:37 pm, by fourth, 147 words, 748 views   English (US)
Categories: General

Gov't seeks cert in warrantless cell phone searches; cert grant coming

Permalink 11:41:32 am, by fourth, 96 words, 264 views   English (US)
Categories: General

WaPo: ’Stop and frisk’ is not racial profiling by Michael R. Bloomberg, NYC Mayor

WaPo: ’Stop and frisk’ is not racial profiling\ by Michael R. Bloomberg, NYC Mayor:

New York is the safest big city in the nation, and our crime reductions have been steeper than any other big city’s. For instance, if New York City had the murder rate of Washington, D.C., 761 more New Yorkers would have been killed last year. If our murder rate had mirrored the District’s over the course of my time as mayor, 21,651 more people would have been killed. That’s more than Georgetown University’s student body, faculty and administrative staff.

Permalink 07:08:53 am, by fourth, 147 words, 294 views   English (US)
Categories: General

D.Utah: When LPN check reveals owner has revoked license, PC exists for stop without proof owner driving

When a LPN check reveals that the owner of a vehicle has a revoked driver’s license, the officer does not have to ascertain that the owner is driving before making a stop. It is still probable cause. United States v. Wissiup, 2013 U.S. Dist. LEXIS 116581 (D. Utah August 16, 2013).*

Defendant was stopped for illegal tint while driving excessively slow in a high-crime area. He consented to a patdown of his person, but then resisted a second patdown, and his spinning around gave the officer reasonable cause to believe that he was armed. United States v. Taylor, 2013 U.S. Dist. LEXIS 116481 (D. Md. August 16, 2013).*

Defendant’s arrest and seizure of a blunt from his mouth was unreasonable, but he fought with the officers, and the court’s not suppressing the evidence of the fight because it’s a separate crime. State v. Owens, 992 N.E.2d 939 (Ind. App. 2013).*

Permalink 06:50:03 am, by fourth, 174 words, 623 views   English (US)
Categories: General

CA6: Heck does not bar Ohio false arrest case

A 1983 case over the legality of plaintiff’s arrest does not implicate the validity of his conviction because an illegal arrest does not prevent a trial in Ohio [and almost everywhere else]. Therefore, the case is not barred by Heck v. Humphrey. Graves v. Mahoning County, 534 Fed. Appx. 399 (6th Cir. 2013)*:

=> Read more!

Permalink 06:42:16 am, by fourth, 122 words, 251 views   English (US)
Categories: General

E.D.Cal.: A court order doesn't have to call itself a “warrant” to be one

A “warrant” doesn’t have to use the word to be one. Officers obtained an order on probable cause to install a GPS tracker. Also, officers installing it while his car was parked in his driveway didn’t violate the Fourth Amendment. United States v. Calvert, 2013 U.S. Dist. LEXIS 115768 (E.D. Cal. August 14, 2013).

After 50+ pages of discussion, a controlled buy is probable cause. United States v. Aranda-Daiz, 2013 U.S. Dist. LEXIS 116031 (D. N.M. July 15, 2013).*

911 call brought police to defendant’s home, and his wife answered the door, distraught and crying and with disheveled clothes. Defendant ran into a bedroom and shut the door. The entry was reasonably based on exigent circumstances. Commonwealth v. Potts, 2013 PA Super 236, 2013 Pa. Super. LEXIS 2635 (August 16, 2013).*

Permalink 12:59:16 am, by fourth, 184 words, 532 views   English (US)
Categories: General

Cal.1st: DUI blood draws were performed reasonably

In seven consolidated cases, the court concluded that the blood draw in each case was reasonable under the Fourth Amendment. All the defendants chose to have a blood test. In each case, a police officer witnessed blood draws performed by a person the officer believed to be a trained phlebotomist or blood technician. None of the defendants exhibited any signs of pain or discomfort during the blood draw procedure; indeed, the testimony reflected these were routine blood draws consistent either with the officer's own experience of having blood drawn or with the officer's observation of other arrestee blood draws. Moreover, the testimony reflected the blood draws were conducted in a cooperative manner, utilizing needles from sealed packages and ensuring the blood extraction area was cleaned prior to inserting the needle and cleaned and bandaged after the blood was drawn. Under the totality of the circumstances presented, in each case the officer's un-rebutted testimony showed the blood draw did not expose the defendant to an unjustified element of personal risk of infection or pain. People v. Cuevas, 218 Cal. App. 4th 1278, 160 Cal. Rptr. 3d 773 (1st Dist. 2013).

Permalink 12:26:17 am, by fourth, 80 words, 428 views   English (US)
Categories: General

Sun Sentinel: Shooting video of police could land you in jail — but should it?

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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:
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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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