Archives for: September 2013, 16

09/16/13

Permalink 01:18:33 pm, by fourth, 86 words, 451 views   English (US)
Categories: General

Politico: Privacy advocates look to California

Permalink 12:57:40 pm, by fourth, 142 words, 498 views   English (US)
Categories: General

NYT: Senator Asks Cellphone Carriers: What Exactly Do You Share With Government?

Permalink 08:16:29 am, by fourth, 206 words, 357 views   English (US)
Categories: General

D.Utah: 10 min. wait for drug dog did not unduly prolong the stop

The officer, while writing a citation, called for a drug dog. Then he ordered defendant out of the vehicle for the sniff. It took ten minutes, and it did not unduly prolong the stop. United States v. Starr, 2013 U.S. Dist. LEXIS 131480 (D. Utah September 12, 2013).*

A citizen informant gave specific information that led to defendant’s stop for being an impaired driver, and it was with reasonable suspicion. Russell v. State, 993 N.E.2d 1176 (Ind. App. 2013).*

When defendant saw the officers, he approached them, and they started talking. They asked for ID and he had none. He gave a name which didn’t come back on a computer check. He was not seized. State v. Matthews, 2013 La. App. LEXIS 1846 (La. App. 4 Cir. September 12, 2013).*

Defendant’s state law required “certified question” concerned only his stop and not the statement that came from the stop, so he didn’t preserve the issue for appeal. State v. Hasaflook, 2013 Tenn. Crim. App. LEXIS 772 (September 12, 2013).*

Defendant’s handcuffing did not transform the detention into an arrest. In addition, his father consented to a search, and then came his admission, so the admission was not based on his arrest but a co-tenant’s consent. State v. Barabin, 124 So. 3d 1121 (La. App. 4 Cir. 2013).*

Permalink 08:14:50 am, by fourth, 184 words, 223 views   English (US)
Categories: General

OH10: When looking for a man with a gun, and they see him and he touches the gun, there is RS

Officers had a report of a man with a gun walking toward a certain intersection, and they went looking for him. They found a man matching the description with the bulge of a gun under his clothing. When he saw the police car, he reached for it to check on it. The stop was with reasonable suspicion. State v. Michael, 2013 Ohio 3889, 2013 Ohio App. LEXIS 4063 (10th Dist. September 10, 2013).*

In a 2255 post-conviction case, defense counsel was not ineffective for not challenging his state arrest that led to a later federal indictment because the state arrest warrant did not comply with federal law. His federal arrest was based on an indictment. He could not prevail on this issue. United States v. Parada, 2013 U.S. Dist. LEXIS 130793 (D. Kan. September 12, 2013).*

In a synthetic marijuana case, “[t]he search warrants described the items to be searched and seized with sufficient particularity and, therefore, were not a ‘general warrant.’” United States v. Carlson, 2013 U.S. Dist. LEXIS 130893 (D. Minn. July 25, 2013).*

The warrants here were issued with probable cause. United States v. Milliner, 2013 U.S. Dist. LEXIS 130217 (E.D. Mo. September 12, 2013).*

Permalink 07:50:49 am, by fourth, 380 words, 544 views   English (US)
Categories: General

IL: Officers approaching a car from both sides didn't per se make it a seizure

When two officers approach a parked car from both sides to talk to the driver, they don’t make a seizure where there was no evidence that the officers drew their guns, used a commanding tone of voice, or used their vehicle or bodies to block the vehicle from exiting. People v. Lopez, 2013 IL App (1st) 111819, 996 N.E.2d 212 (2013):

=> Read more!

Permalink 07:28:32 am, by fourth, 175 words, 192 views   English (US)
Categories: General

TX6: No reasonable expectation of privacy smoking meth behind a business at 3 am

Defendant had no expectation of privacy in commercial property behind a building. Police had been checking the gate to the back of the business because of burglaries there. On this occasion, the gate was open, and the officers could hear talking and singing behind the business. They went to investigate and defendant and his friend were back there smoking methamphetamine. They took no precautions to protect their privacy, and the police acted reasonably in checking the back of the business. The defendants also didn’t show any standing in the back on the commercial property. Myrick v. State, 412 S.W.3d 60 (Tex. App. – Texarkana 2013).*

During a traffic stop it was reasonable to order the occupants out of the car. Seeing an ammunition clip protruding from under the seat, a search of the car for the gun was proper. Zanders v. United States, 75 A.3d 244 (D.C. 2013).*

Minnesota dealt with a choice-of-law question on admissibility of evidence under privilege, but it discusses choice-of-law in search and seizure cases, too. State v. Castillo-Alvarez, 836 N.W.2d 527 (Minn. 2013).*

Permalink 07:09:57 am, by fourth, 57 words, 359 views   English (US)
Categories: General

BLT: FISA Court Orders Declassification Review of Select Rulings:

Permalink 06:49:49 am, by fourth, 441 words, 492 views   English (US)
Categories: General

TX: Def's “standing on his rights” was not reasonable suspicion

There was nothing but a hunch here, and defendant’s “standing on his rights” and refusing to cooperate with the officers’ questions was not reasonable suspicion of anything. Wade v. State, 2013 Tex. Crim. App. LEXIS 1314 (September 11, 2013):

=> Read more!

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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
www.johnwesleyhall.com

© 2003-14, online since Feb. 24, 2003

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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
  www.fd.org

  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."
—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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