04/12/14

Permalink 01:00:02 am, by fourth, 83 words, 120 views   English (US)
Categories: General

CA11: 13 month old information of possession of a firearm is not stale

13 month old information of possession of a firearm is not stale. “Unlawful possession of a firearm is an ongoing crime, so ‘old’ information is relevant to the question of present probable cause. Additionally, unlike narcotics, firearms are not consumable items; it would be reasonable to believe that Piloto continued to possess his gun in his home for at least 13 months.” There otherwise was probable cause to believe that evidence would be found. United States v. Piloto, 2014 U.S. App. LEXIS 6589 (11th Cir. April 10, 2014).

04/11/14

Permalink 02:53:38 pm, by fourth, 106 words, 182 views   English (US)
Categories: General

WaPo: N.Y. search warrant case shows why we need the Exclusionary Rule

Permalink 10:30:49 am, by fourth, 149 words, 108 views   English (US)
Categories: General

NY3: Warrant requirement in rental inspection ordinance made it constitutional

The rental unit inspection ordinance is not unconstitutional. It provides a warrant procedure if the owner refuses consent. “As the inclusion of the warrant requirement is sufficient to safeguard plaintiff's constitutional rights, his challenge to the facial validity of the [ordinance] must fail ...” Wisoff v. City of Schenectady, 2014 NY Slip Op 2479, 2014 N.Y. App. Div. LEXIS 2421 (3d Dept. April 10, 2014).

22 months between viewing and the search warrant in a child pornography case isn’t stale. United States v. Gray, 2013 U.S. Dist. LEXIS 186916 (D. Minn. December 17, 2013).*

Defendant’s stop at the border checkpoint at MM 58, 20 miles from the Mexican border was valid. It has been in full time operation for 2½ years at the time of the stop. The duffle bag in the backseat looked to the officer to contain bricks of drugs based on the irregular bumps in it. United States v. Garcia, 2014 U.S. Dist. LEXIS 49750 (D. Ariz. March 20, 2014).*

Permalink 09:25:13 am, by fourth, 127 words, 83 views   English (US)
Categories: General

WY: Affidavit for SW for blood draw in felony DUI was conclusory that defendant was even the driver

The affidavit for defendant’s BAC in this felony DUI case was order suppressed on appeal because it offered bare conclusions that defendant was the driver of the car. On what was presented to the issuing magistrate, it was completely lacking. Snell v. State, 2014 WY 46, 2014 Wyo. LEXIS 49 (April 9, 2014).

Defendant was stopped for texting while driving because he wandered out of his lane. The officer found him under the influence and arrested him. A valid inventory produced a pipe and marijuana. United States v. Wingle, 2014 U.S. App. LEXIS 6596 (4th Cir. April 10, 2014).*

2255 petitioner’s conclusory allegation that the Fourth Amendment was violated by the police was insufficient to show that his plea should be set aside. United States v. Mulder, 2014 U.S. Dist. LEXIS 49552 (S.D. Tex. April 10, 2014).*

Permalink 09:11:05 am, by fourth, 110 words, 83 views   English (US)
Categories: General

LA5: Controlled buy from house is PC for SW

A CI called police and said that he could by crack from a man with tattoos on his face. They set up a controlled buy out of defendant’s house. That was probable cause for a search warrant. State v. Young, 2014 La. App. LEXIS 966 (La. App. 5 Cir. April 9, 2014).*

Defendant’s obvious hand-to-hand drug transaction supported his stop. State v. Whye, 2014 Del. Super. LEXIS 185 (April 9, 2014).*

Defendant’s cotenant consented to a search that revealed a sledgehammer used to break into a building. His reliance on Randolph is off the mark because he didn’t veto consent; Fernandez holds consent still valid. State v. Percy, 2014 La. App. LEXIS 987 (La.App. 2 Cir. April 9, 2014).*

Permalink 09:09:26 am, by fourth, 94 words, 84 views   English (US)
Categories: General

CA10: Sweatshorts with gun in pocket held abandoned

Defendant was found to have abandoned his sweatshorts which had a gun in the pocket. United States v. Mosley, 2014 U.S. App. LEXIS 6500 (10th Cir. April 9, 2014).*

Officers told defendant they wanted to search his cell phone for sexually explicit photographs, and he was found to have consented. United States v. Rounds, 2014 U.S. App. LEXIS 6545 (5th Cir. April 9, 2014).*

Pro se 2255 petitioner’s claim that state officers conducting a search can’t have that case prosecuted in federal court is utterly without merit. United States v. Jackson, 2014 U.S. Dist. LEXIS 49100 (W.D. Ark. January 30, 2014).*

Permalink 08:24:21 am, by fourth, 142 words, 101 views   English (US)
Categories: General

CA5: Prison inmate stated claim for harassing strip searches

Plaintiff prison inmate filed a “§ 1983 complaint in which he contended that he was forced to undergo strip and visual body cavity searches without reasonable justification.” He stated a Fourth Amendment claim so reversed and remanded. Scheidel v. Sec'y of Pub. Safety & Corr., 2014 U.S. App. LEXIS 6534 (5th Cir. April 9, 2014).

Officers approached a vehicle illegally parked in front of a drug house, and they could lawfully order the occupants out of the car. The search of the passenger compartment was justified either by probable cause under the automobile exception and fear of a weapon. United States v. Neria, 2014 U.S. Dist. LEXIS 48832 (N.D. Tex. April 9, 2014).*

Information in the SW affidavit that defendant was bringing drugs to a sale point from his house was nexus for a search warrant for the house. United States, 2014 U.S. Dist. LEXIS 48843 (W.D. Pa. April 9, 2014).*

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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)


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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
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  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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