Archives for: August 2013, 24

08/24/13

Permalink 05:00:37 pm, by fourth, 554 words, 853 views   English (US)
Categories: General

CA9: The warrant defines the scope of search, not the affidavit

In a partially sealed opinion, the Ninth Circuit holds that the search warrant defines the scope of search, not the affidavit. [Could have said "tail wagging the dog" but didn't.] United States v. Sedaghaty, 2012 U.S. App. LEXIS 27006 (9th Cir. August 23, 2013):

=> Read more!

Permalink 04:45:18 pm, by fourth, 161 words, 201 views   English (US)
Categories: General

S.D.Ind.: A pre-Jardines dog sniff of the front door of a house in Indiana saved by Davis GFE

A pre-Jardines dog sniff of the front door of a house in Indiana, while now known to be a Fourth Amendment violation, wasn’t at the time it happened, so under Davis, the good faith exception applies. United States v. Cota, 2013 U.S. Dist. LEXIS 120008 (S.D. Ind. August 23, 2013).

Officers observed defendant parked in the driveway of a house in a high-crime area known for drugs. They had followed him from a known drug house to that spot. They walked up to him and tapped on the window saying they wanted a word with him “real quick.” He rolled down the window, and they asked for his DL which they ran and found suspended. In the arrest for driving on a suspended license, the officer asked if defendant had anything “illegal” on him, and defendant said he had a gun, which they relieved him of. He was a felon. The stop was consensual. United States v. Hinojosa, 534 Fed. Appx. 468 (6th Cir. 2013).*

Permalink 03:57:57 pm, by fourth, 77 words, 460 views   English (US)
Categories: General

NYT: N.S.A. Said to Have Paid E-Mail Providers Millions to Cover Costs From Court Ruling

Permalink 10:59:59 am, by fourth, 206 words, 226 views   English (US)
Categories: General

E.D.Tex.: Defendant made no attempt to show standing in his mother's house where he allegedly stayed

Defendant’s mother’s house was searched where he claimed he’d been staying, but he didn’t attempt to show standing. “The Court finds that Defendant does not have standing to challenge the search that occurred on June 2, 2009. Defendant failed to meet his burden of showing that he had a legitimate expectation of privacy in the residence searched. Defendant presented no evidence that the residence was his residence, that established any right to occupy the residence, and no one from Defendant's family testified that Defendant resided at this location. The residence in question belonged to File Shkambi, Defendant's mother.” United States v. Shkambi, 2013 U.S. Dist. LEXIS 120158 (E.D. Tex. July 31, 2013).*

The private search of a cell phone resulted in it being turned over to OSI and prosecution resulted. The government’s search of the cell phone’s text messages were equal to the private search and did not violate the Fourth Amendment. United States v. Wicks, 2013 CCA LEXIS 621 (A.F. Ct. Crim. App. June 24, 2013).*

The continuation of defendant’s stop was with reasonable suspicion because the officer could not confirm defendant’s right to be driving the vehicle. It had not been reported stolen at the time. State v. Vanderweide, 2013 Iowa App. LEXIS 932 (August 21, 2013).*

Permalink 10:41:11 am, by fourth, 138 words, 211 views   English (US)
Categories: General

GA: Tracking/drug dog following man alerted on defendant's house; curtilage violated

Police let a dual purpose tracking and drug dog loose to track a man, and the dog and the police entered defendant’s curtilage and the dog alerted on the house. The curtilage was violated [and Jardines isn’t even cited]. Mitchell v. State, 323 Ga.
App. 739, 747 S.E.2d 900 (2013) (date of the search isn’t shown, but it had to be pre-Jardines).

Failure to object to the search and seizure until after the evidence was admitted was waiver of the search and seizure claim. Trung The Luu v. State, (Tex. App. – Houston (14th Dist.) 2013).*

The officer had reasonable suspicion defendant was under the influence. Police were called to a Whataburger because the driver of a vehicle was passed out in the drive-through lane. The stop was valid. Lundgren v. State, 410 S.W.3d 464 (Tex. App. – Ft. Worth August 22, 2013).*

Permalink 10:18:28 am, by fourth, 155 words, 608 views   English (US)
Categories: General

GA: State’s argument that defendant consented to a stop and was free to ignore blue lights to stop him “strains credulity”

State’s argument that defendant consented to a stop and was free to ignore blue lights to stop him strains credulity. Of course he was stopped, and it was without any legal justification at all. Dryer v. State, 323 Ga. App. 734, 747 S.E.2d 895 (2013):

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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www.johnwesleyhall.com

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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)


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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"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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