Archives for: September 2013, 01


Permalink 06:52:08 am, by fourth, 111 words, 313 views   English (US)
Categories: General

KY: Nervousness, questioning why officers asked about passengers, and refusal to consent doesn't justify frisk

Defendant was stopped for littering and not using a turn signal. When he was stopped, he was nervous and his hands were shaking. One officer asked who was in the car with him, and he asked “Does it matter?” The other officer described defendant as “verbally belligerent” when ordered out of the car, but didn’t hear what was said. He refused consent. A patdown for weapons was unjustified, and the marijuana in defendant’s pocket was suppressed. Frazier v. Commonwealth, 406 S.W.3d 448 (Ky. 2013).

Defendant had no standing in the place searched. While his DL showed that address, he conceded he lived elsewhere. Mackey v. Commonwealth, 407 S.W.3d 554 (Ky. 2013).*

Permalink 06:49:06 am, by fourth, 379 words, 613 views   English (US)
Categories: General

MO: Asking for consent while warrant check was still pending was unreasonable

Defendant was stopped for a dirty license plate, and she was asked for consent while the warrant check was being run. This was unreasonable because she was not free to go. (And, for what it's worth, the state is responsible for the "thin record.") State v. Stoebe, 406 S.W.2d 509 (Mo. App. 2013):

=> Read more!

Permalink 06:14:12 am, by fourth, 216 words, 328 views   English (US)
Categories: General

N.D.Iowa: Being high on meth alone doesn't make consent invalid

Defendant was known to the police to be a methamphetamine user and dealer, and they talked to him outside his hotel, ID’g themselves and police. He said he knew they were police. They asked him if they could “look around” his room for drugs. He consented and took them to the room, he used his key card to unlock it, and they searched. The consent was voluntary, despite his claim he was high on methamphetamine at the time, and the officers did not exceed the scope of the consent, which was to look for drugs. United States v. Barragan, 2013 U.S. Dist. LEXIS 123340 (N.D. Iowa August 27, 2013), adopted 2013 U.S. Dist. LEXIS 130424 (N.D. Iowa September 12, 2013).

The Fourth Amendment wasn’t violated by a police officer stopping without using his lights or siren and getting out and inquiring of defendant in a parked car whether he had permission to be on a housing complex parking lot. Defendant consented to a patdown. When asked, he got out of the car. People v. Woods, 2013 IL App (4th) 120372, 2013 Ill. App. LEXIS 578 (August 28, 2013).*

HGN test for suspicion of DWI was probable cause for arrest. The fact it’s not admissible at trial doesn’t mean the officer could not arrest on it. Commonwealth v. Weaver, 2013 PA Super 245, 76 A.3d 562 (2013).*

Permalink 05:51:54 am, by fourth, 170 words, 296 views   English (US)
Categories: General

Cal.6: Threat to shoot a HS football coach after game was RS for a stop and frisk

A high school football coach who said he’d been threatened by defendant who was carrying a gun at the school stadium to shoot the coach after the game was credible enough for a stop. Defendant was frisked and found with a gun and charged with possession in a school zone. The stop was valid. People v. Turner, 219 Cal. App. 4th 151, 161 Cal. Rptr. 3d 567 (6th Dist. 2013).*

Defendant’s stop was justified because the vehicle matched a BOLO, but the LP was missing, and a paper license was there instead. The BOLO included “armed and dangerous.” Defendant was exceedingly nervous during the stop, and he consented to a search of the car. The smell of marijuana would have justified it. United States v. Johns, 2013 U.S. Dist. LEXIS 123332 (W.D. La. August 7, 2013).*

After an in camera review of the proceedings before the state judge issuing the search warrant, the court concludes there was probable cause for its issuance. United States v. Jones, 2012 U.S. Dist. LEXIS 189001 (W.D. N.Y. January 17, 2012).*

Permalink 05:43:06 am, by fourth, 364 words, 724 views   English (US)
Categories: General

E.D.Tenn.: Merely putting up a “no trespassing” sign and the officer ignoring it is not a Fourth Amendment violation

Defendant put six “no trespassing” signs at his gate and on the road to his house which is not visible from the road. An officer came to the door to do a knock-and-talk. No meter readers come to his house, but the mailman [and presumably FedEx and UPS] could come from the road to the house with a letter or package that needed to be signed for. Merely putting up a “no trespassing” sign and the officer ignoring it is not a Fourth Amendment violation, and Jardines lends no support. United States v. Denim, 2013 U.S. Dist. LEXIS 123269 (E.D. Tenn. August 26, 2013):

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Permalink 05:30:33 am, by fourth, 142 words, 434 views   English (US)
Categories: General

NYT: A Data Broker Offers a Peek Behind the Curtain

Permalink 12:03:52 am, by fourth, 173 words, 133 views   English (US)
Categories: General

MA: Officer was mistaken that defendant had nunchuck next to him in car, but defendant made furtive movement too

Officer’s observation during traffic stop that defendant possessed a nunchuck was justification for the officer opening the door and removing defendant from the car. It turned out to be a bullwhip, but the officer’s safety concerns were exacerbated by defendant reaching for his right hip. Commonwealth v. Rosado, 2013 Mass. App. LEXIS 140 (August 30, 2013).*

Questions about the driving picking up a passenger from the bus station were reasonable, as was the fifteen minutes the stop took until consent was granted. The passenger said he came in from Toledo and threw away the ticket at the restaurant, and another officer retrieved the ticket at the restaurant saying he came from Detroit “piquing the officer's interest” and justifying extending the stop. United States v. Locklear, 2013 U.S. Dist. LEXIS 124234 (E.D. Ky. August 30, 2013).*

Post-conviction claim that officer lied during suppression hearing was barred because it was resolved in the direct appeal. Jackson v. State, 2013 Ala. Crim. App. LEXIS 69 (August 30, 2013).* (Alabama is still the only court North America that charges for it's opinions. Why is that?)

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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:
  Supreme Court:
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  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
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  General (many free):
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  Crimelynx $ (criminal law/ 4th Amd) $ (4th Amd) $
  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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