Archives for: November 2013, 08

11/08/13

Permalink 03:02:49 pm, by fourth, 117 words, 310 views   English (US)
Categories: General

MD: DNA taken on arrest for a nolle prossed case could be used for cold case hit without violating 4A

Defendant was arrested for a violent crime and had DNA taken from him. Those charges were nolle prossed, but the DNA made it to CODIS and matched him to another crime. Use of that evidence in the new case did not violate the Fourth Amendment. Browne v. State, 215 Md. App. 51, 79 A.3d 410 (2013).

Plaintiff’s prison strip search after a cell shake down was reasonable. Moton v. Walker, 2013 U.S. App. LEXIS 22654 (11th Cir. November 5, 2013).

Plaintiff previously litigated the probable cause for her arrest to Eighth Circuit and lost (Veatch v. Bartels Lutheran Home, 627 F.3d 1254 (8th Cir. 2010)), so that precludes her from litigating it again in state court. Veatch v. City of Waverly, 2013 Iowa App. LEXIS 1169 (November 6, 2013).*

Permalink 02:32:56 pm, by fourth, 290 words, 309 views   English (US)
Categories: General

IA: Officer's inability to read a temporary LPN led to a stop without RS

An officer’s inability to read a temporary license plate that was otherwise in order led to a stop that was without reasonable suspicion. Defendant did nothing wrong. State v. Carmody, 2013 Iowa App. LEXIS 1145 (November 6, 2013):

=> Read more!

Permalink 01:52:42 pm, by fourth, 431 words, 416 views   English (US)
Categories: General

CA2: Two anonymous calls proved no better than one; no RS

Two anonymous calls that were recorded provided no indicia of reliability. The police tried to call back and got no answer. United States v. Freeman, 2013 U.S. App. LEXIS 22594 (2d Cir. November 7, 2013)*:

=> Read more!

Permalink 01:10:01 pm, by fourth, 61 words, 294 views   English (US)
Categories: General

NYLJ: City Vows to Push for Quick Reversal of Stop and Frisk

Permalink 10:44:57 am, by fourth, 93 words, 296 views   English (US)
Categories: General

CA8: Arrest for possession of a weapon in the face of a complete “journey” defense was w/o PC, so no QI

Officer who arrested 1983 plaintiff for possession of a semi-automatic weapon who was clearly on a “journey,” a complete defense at the time [since strengthened by new state law], had no qualified immunity. Because of the complete defense, there was no probable cause for the arrest. Stoner v. Watlingten, 2013 U.S. App. LEXIS 22586 (8th Cir. November 7, 2013).

The product of wiretaps was attested to by four officers on the search warrant affidavit. Defendant was talking about packaging and distributing drugs. That was probable cause. United States v. Dowdell, 2013 U.S. App. LEXIS 22619 (4th Cir. November 7, 2013).*

Permalink 09:04:36 am, by fourth, 365 words, 435 views   English (US)
Categories: General

CA4: Shooting unarmed man who posed no threat denied qualified immunity

Officers were called to a domestic disturbance, and they approached plaintiff’s house in the dark without sirens and saw him come out with a shotgun pointing down. They shot him without warning. They were not entitled to qualified immunity in a 1983 case. Cooper v. Sheehan, 2013 U.S. App. LEXIS 22616 (4th Cir. November 7, 2013)*:

=> Read more!

Permalink 08:36:03 am, by fourth, 132 words, 166 views   English (US)
Categories: General

OH9: Nexus shown from defendant leaving to do drug deals

PC was shown for a search of defendant’s house based on the fact he left the house after phone calls to make drug transactions. State v. Russell, 2013-Ohio-4895, 2013 Ohio App. LEXIS 5086 (9th Dist. November 6, 2013).

Two warrants were issued on defendant 30 days apart and the second warrant had the information from the first one plus new information. The new information made the second warrant not stale. Given that the lapse could make the prior information stale, the new information with the old information was probable cause. State v. Winningham, 2013-Ohio-4872, 1 N.E.3d 501 (1st Dist. 2013).

Defendant made no effort to preserve his search issue for appeal via a conditional plea. Therefore, the result of the suppression hearing was considered a part of the plea. Bland v. State, 2013 Tex. Crim. App. LEXIS 1651 (November 6, 2013).

Permalink 08:10:14 am, by fourth, 113 words, 222 views   English (US)
Categories: General

FL2: Drivers get to challenge the legal basis of their stop in DL suspension hearing

Under Florida statute, suspension of a DL for DUI requires a valid stop. Therefore, the driver gets to challenge the stop in the DMV suspension proceedings. Carrizosa v. Dep't of Highway Safety & Motor Vehicles, 2013 Fla. App. LEXIS 17597 (Fla. 2d DCA November 6, 2013).

The officer had PC to take defendant in for a breath test. Trial court reversed. State v. Gilbert, 997 N.E.2d 414 (Ind. App. 2013).*

Defendant’s traffic stop was valid. Even if it wasn’t, his crime of evasion was still not subject to suppression. Williams v. State, 2013 Miss. App. LEXIS 749 (November 5, 2013)* [The Mississippi court website is so bad I’m not even going to try and find this. See for yourself.]

Permalink 07:54:44 am, by fourth, 150 words, 189 views   English (US)
Categories: General

D.R.I.: CI’s story was corroborated by his making a controlled buy

CI’s story was corroborated by his making a controlled buy from the defendant, and the controlled buy was PC for the search warrant. United States v. Mitchner, 2013 U.S. Dist. LEXIS 158520 (D. R.I. November 5, 2013).*

An FBI agent’s car was broken into and a duffle bag with his gun, ID, and wallet was stolen. His CC was shortly used and the police keyed on defendant’s car. When it was found, there was PC to search it for evidence of the break-in and theft. A search of a common storage area at defendant’s apartment was valid because he had no standing. United States v. Rucker, 2013 U.S. App. LEXIS 22491 (8th Cir. November 6, 2013).*

FedEx in Tulsa began opening a suspicious package before the police even got there. It was about opened when they arrived. Private search. United States v. Storey, 2013 U.S. Dist. LEXIS 158017 (N.D. Okla. November 5, 2013).*

Permalink 07:47:30 am, by fourth, 676 words, 673 views   English (US)
Categories: General

D.Mass.: AOL's system IDs emailed CP and reports IP addresses involved

AOL’s computers scan attachments looking for known child pornography hash values, and the information is all reported to NCMEC with the IP addresses. It can lead to opening an investigation. United States v. Keith, 2013 U.S. Dist. LEXIS 158282 (D. Mass. November 5, 2013):

=> Read more!

Permalink 07:02:09 am, by fourth, 149 words, 365 views   English (US)
Categories: General

CA4: Cell phone search incident valid

Defendant’s arrest was with PC, and thus the search incident of the cell phone was valid. “See United States v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009) (holding that officers may seize cell phones incident to an arrest and retrieve text messages and other information without a search warrant).” United States v. Graves, 2013 U.S. App. LEXIS 22523 (4th Cir. November 6, 2013).*

The city sent plaintiff notice stuff growing in her yard was a nuisance, and she never appealed it. They later came around and seized. Her due process rights were satisfied under a 2004 case in the same circuit, and that’s enough to find the entry reasonable under the Fourth Amendment. Morrison v. Cox, 2013 U.S. App. LEXIS 22508 (10th Cir. November 6, 2013).*

There was probable cause to arrest the defendant. The after-acquired information was not considered by the USMJ. United States v. Uriel, 2013 U.S. Dist. LEXIS 158939 (W.D. N.C. November 6, 2013).*

Permalink 06:57:19 am, by fourth, 817 words, 743 views   English (US)
Categories: General

D.Vt.: Warrantless cell phone search violated Fourth Amendment, but valid under GFE

A First Circuit warrantless cell phone search pre-Wurie (United States v. Wurie, 728 F.3d 1, 13 (1st Cir. 2013)) violated the Fourth Amendment. “Thus, it is simply inappropriate to analogize cell phones to cigarette packs, purses, and address books; the more apt comparison is to computers.” The Davis good faith exception, however, applies. United States v. Mayo, 2013 U.S. Dist. LEXIS 158866 (D. Vt. November 6, 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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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)


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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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