Archives for: November 2013, 05

11/05/13

Permalink 06:43:49 pm, by fourth, 133 words, 319 views   English (US)
Categories: General

TX14 follows CA5 holding cell site location data is a third party record with no REP

Texas’s 14th Appellate District follows In re Application of the United States. 724 F.3d 600 (5th Cir. 2013), that cell site location data is information held by a third person in which there is no reasonable expectation of privacy. Barfield v. State, 416 S.W.3d 743 (Tex. App. — Houston (14th Dist.) 2013).

A “motion to suppress illegally obtained evidence” does not preserve for review a claim that a breath test is not admissible under scientific Rule 702 as expert testimony. State v. Esparza, 413 S.W.3d 81 (Tex. Crim. App. 2013).*

Defendant was in a car that matched the description of one involved in an attempted burglary. As an officer in an unmarked car closed in on it, a gun was tossed. The gun was reasonable suspicion for a stop. Commonwealth v. Gorman, 84 Mass. App. Ct. 482, 998 N.E.2d 344 (2013).*

Permalink 06:23:53 pm, by fourth, 257 words, 311 views   English (US)
Categories: General

TX9: SVP in civil confinement and on probation in Texas has no reasonable expectation of privacy in his stuff

A sexually violent predator in civil confinement and on probation in Texas has no reasonable expectation of privacy in his stuff while confined there. Goodwin v. State, 416 S.W.3d 90 (Tex. App. – Beaumont 2013):

=> Read more!

Permalink 09:22:31 am, by fourth, 167 words, 197 views   English (US)
Categories: General

CA10: Possession of a device to fake a UA was RS where defendant was on way to PO for drug test

Defendant was stopped for a traffic violation and said he was on his way to his PO for a drug test on supervised release. In the car in plain view was a bladder for falsifying the UA. That was reasonable suspicion to detain longer, and the PO was called. At the scene they saw a gun, too, and defendant was arrested. A search of the car found methamphetamine. The detention and search were reasonable. United States v. Cash, 733 F.3d 1264 (10th Cir. 2013).

An officer does not have to “know” that a bill is counterfeit to make an arrest on PC for defendant passing it. United States v. Jones, 2013 U.S. App. LEXIS 22381 (5th Cir. November 4, 2013).*

Wallace v. Kato changed the limitations period for certain § 1983 cases in Utah, and this plaintiff is entitled to equitable tolling where Wallace came after his claim accrued and then ostensibly cut it off. Garza v. Burnett, 2013 UT 66, 2013 Utah LEXIS 160 (November 1, 2013) (on certification from the Tenth Circuit for an opinion on state law).*

Permalink 09:02:52 am, by fourth, 93 words, 215 views   English (US)
Categories: General

CA7: False arrest § 1983 case accrues when a judicial officer determines PC exists

False arrest § 1983 case accrues when a judicial officer determines PC exists. Serino v. Hensley, 2013 U.S. App. LEXIS 22382 (7th Cir. November 4, 2013).*

Plaintiff did not state a claim against an officer that accidentally shot him during a mental health episode, but he did against the department for a lack of training in dealing with mentally ill persons. Estate of Bleck v. City of Alamosa, 540 Fed. Appx. 866 (10th Cir. 2013).*

There is no tolling of limitations in Wisconsin for false arrest while you’re in jail. Segues v. Springob, 2013 U.S. App. LEXIS 22333 (7th Cir. November 4, 2013).*

Permalink 08:41:56 am, by fourth, 317 words, 383 views   English (US)
Categories: General

CA6: After evidence suppressed, new indictment for high mandatory minimum shown to be retaliatory

After defendant succeeded in suppressing a child pornography search, the government indicted him for conspiring to receive child pornography with a higher mandatory minimum. The district court held that the defendant made a case of government retaliation for winning the suppression motion, which he had a right to file. After considering all the countervailing arguments, the district court’s opinion is affirmed and was not an abuse of discretion. United States v. Ladeau, 2013 U.S. App. LEXIS 22313, 2013 FED App. 0320P (6th Cir. November 4, 2013):

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Permalink 08:00:56 am, by fourth, 962 words, 496 views   English (US)
Categories: General

SCOTUS: QI goes to officer making entry that was not clearly unconstitutional

The Ninth Circuit below in finding no qualified immunity for an entry in misdemeanor pursuit necessarily included that the officers were “plainly incompetent.” In light of the split in the case law, that court was wrong. Maybe the entry was constitutional, maybe it wasn’t, but they weren’t “plainly incompetent” in making the entry. “Stanton may have been mistaken in believing his actions were justified, but he was not ‘plainly incompetent.’” Stanton v. Sims, 2013 U.S. LEXIS 7773 (November 4, 2013) (per curiam):

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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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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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  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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