Keyword(s): caselaw

12/28/08

Permalink 09:00:13 am, by fourth, 308 words, 1094 views   English (US)
Categories: General

CA2: Dog sniff in yard violated no REP

Dog sniff outside the home on the curtilage did not violate the Fourth Amendment. All it revealed was a bag outside the house. United States v. Hayes, 551 F.3d 138 (2d Cir. December 24, 2008), aff'g United States v. Hayes, 2006 U.S. Dist. LEXIS 98101 (D. Vt. May 5, 2006) (posted on Lexis 1/1/09):

We reject Hayes's arguments and his reliance on Thomas and hold that the police canine's act of sniffing for narcotics here did not violate Hayes's "legitimate expectation that information about perfectly lawful activity will remain private." Caballes, 543 U.S. at 410. Thomas is clearly distinguishable from the facts of this case. The contents of the black bag that Kilo [the dog] smelled were not located inside Hayes's dwelling or residence but in brush outside the house, approximately 65 feet from the back door of the residence and bordering an adjoining property. A critical consideration in Thomas, one not present here, was that the canine there smelled the presence of narcotics located inside the defendant's home.

. . .

The sanctuary of the home simply does not extend to the front yard of Hayes's property, where the initial sniff occurred. See United States v. Titemore, 437 F.3d 251, 259 (2d Cir. 2006) (holding that a homeowner has no reasonable expectation of privacy in a patch of front lawn visible from the road and leading up to the front porch); see also United States v. Oliver, 466 U.S. 170, 179 (1984) ("[O]pen fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance .... Moreover, as a practical matter these lands usually are accessible to the public and the police in ways that a home, an office, or commercial structure would not be."); accord Esmont v. City of New York, 371 F. Supp. 2d 202, 212 (E.D.N.Y. 2005) ("Unobstructed, open areas in front of a residence are not entitled to Fourth Amendment protection.").

Permalink 08:25:04 am, by fourth, 212 words, 434 views   English (US)
Categories: General

OH6: SW issued without PC, but GFE saved it

Informant's information was lacking corroboration, and the police here corroborated only neutral details. The affidavit was not so lacking in PC, however, that the good faith exception did not save it. State v. Nunez, 2008 Ohio 6806, 180 Ohio App. 3d 189 (6th Dist. December 19, 2008).*

Informant here satisfied Tennessee's Aguilar/Spinelli. State v. Currie, 2008 Tenn. Crim. App. LEXIS 986 (December 18, 2008).*

Defendant's new crime barred the exclusionary rule from applying in his case under Wong Sun. State v. Iduarte, 268 S.W.3d 544 (Tex. Crim. App. October 29, 2008), aff'g State v. Iduarte, 232 S.W.3d 133 (Tex. App.--Fort Worth 2007) (posted here):

The exclusionary rule was designed to protect individuals from the use at trial of evidence that was obtained in an unlawful manner. See Wong Sun, 371 U.S. at 486. It does not, however, provide limitless protection to one who chooses to react illegally to an unlawful act by a state agent. Id. If that were allowed, the genuine protection that the exclusionary rule provides would be undermined. Here, evidence of the charged offense did not exist before the officer's challenged actions because the charged offense had not yet occurred; the evidence showed a subsequent independent criminal act that was not causally connected to any unlawful entry by a state agent. Therefore, the exclusionary rule does not apply to this case.

12/27/08

Permalink 02:14:00 pm, by fourth, 133 words, 473 views   English (US)
Categories: General

OH11: Police entry after firemen was for criminal investigation and search was suppressed

Fireman had the authority to use an ax to open a locked door while putting out a fire, and he saw growing supplies. The following entry by a police officer was to investigate the crime and had nothing to do with the fire, and the search was properly suppressed under Clifford and Tyler. State v. Sutcliffe, 2008 Ohio 6782, 2008 Ohio App. LEXIS 5668 (11th Dist. December 19, 2008).*

Defendant kept putting his hands in his pockets and was extremely fidgety. The officer patted him down but did not remove anything. He asked [directed?] the defendant to empty his pockets, and this was within the scope of the patdown. State v. Riter, 2008 Ohio 6752, 2008 Ohio App. LEXIS 5647 (3d Dist. December 22, 2008).*

Defendant's traffic stop was based on at least reasonable suspicion. State v. Lewis, 2008 Ohio 6691, 2008 Ohio App. LEXIS 5597 (4th Dist. December 15, 2008).*

Permalink 01:38:47 pm, by fourth, 91 words, 353 views   English (US)
Categories: General

CA2: Franks not violated where officers on SW did not know of fact not disclosed which turned out not to be material

Officers did not violate Franks where they did not know of the CI's firearms arrest until after the search warrant was applied for. And, it did not make a difference. United States v. McCoy, 303 Fed. Appx. 45 (2d Cir. 2008)* (unpublished).

Near reasonable suspicion existed when officer approached the defendant to ask him questions before he fled, and that was enough. United States v. Davenport, 303 Fed. Appx. 42 (2d Cir. 2008)* (unpublished).

Bivens and FTCA action was barred by Heck because it attacked the underlying conviction. Trupei v. United States, 304 Fed. Appx. 776 (11th Cir. 2008)* (unpublished).

12/26/08

Permalink 11:05:19 am, by fourth, 368 words, 945 views   English (US)
Categories: General

CA6: Hanging air freshener statute in Michigan unconstitutional, but stop valid under DeFillippo and Krull (withdrawn)

The Michigan statute that would criminalize air fresheners hanging from rear view mirrors was unconstitutionally vague. A stop on that statute was still valid, and the court does not suppress under DeFillippo and Krull. United States v. Davis, 2008 U.S. App. LEXIS 25757 (6th Cir. December 19, 2008):

While we have held the Michigan statute unconstitutional, that does not end the matter of whether Davis's motion to suppress was improperly denied. The usual remedy when evidence is obtained through an unconstitutional search is exclusion; however, the good faith exception to the Exclusionary Rule applies to searches conducted in good faith reliance on a presumptively valid statute. Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987); Michigan v. De Fillippo, 443 U.S. 31, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979). In Michigan v. DeFillippo, the Supreme Court held that the Exclusionary Rule did not apply to a seizure performed pursuant to a Detroit statute that was later declared to be void for vagueness. In doing so, it explained that the Exclusionary Rule was a remedy designed to deter unlawful police conduct, and that exclusion of evidence obtained through a good faith search based upon a presumptively valid statute would have no deterrent effect. 443 U.S. at 38 n.3.

This logic applies equally here. United States v. Cardenas-Alatorre, 485 F.3d 1111, 1116 (10th Cir. 2007) (holding that DeFillippo "compel[s]" admission of evidence even though the statute at issue was arguably vague). As explained above, MICH. COMP. LAWS § 257.709(1)(c) is unconstitutionally vague. But, as the Supreme Court explained in DeFillippo, absent unusual circumstances, Westland police are not expected to know this. Indeed, police are under a duty to enforce all laws that are not obviously unconstitutional. 443 U. S. at 38. The statute at issue here is not so obviously vague that officers could reasonably be charged with knowledge of its unconstitutionality. And, given the breadth of the language of this enactment, it is difficult to say their reliance upon it was not "objectively reasonable." Krull, 480 U.S. at 349-50; cf. Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) ("As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.").

Opinion ordered withdrawn December 31, 2008.

12/25/08

Permalink 08:16:47 am, by fourth, 370 words, 408 views   English (US)
Categories: General

CA7: Defense counsel not filing a more elaborate motion to suppress hardly IAC where defendant could not win

How to tell that the government is going to win: The first line of the opinion starts out "On June 7, 2006, Detective Jason Cebuhar, a 12-year veteran of the Rockford, Illinois, police department, received information ...." Defense counsel's not filing a more "elaborate" motion to suppress would not have changed the outcome. The consent question turned on credibility. The officers, of course, had no motive to lie. United States v. Dean, 550 F.3d 626 (7th Cir. 2008) (this opinion was hardly worth publishing).*

Assuming that the police violated the Fourth Amendment by holding for 48 days defendant's computer seized from the computer repair guys after the shop found child pornography, defendant's admissions when he was called in to talk about it and his consent to search his house for another hard drive was an independent source. This was merely "but for" causation without exploitation of an illegality. United States v. Budd, 549 F.3d 1140 (7th Cir. 2008).* Also, defendant's claim that he would have destroyed the evidence had he gotten access to it but for the illegal seizure was speculative and violated the principle that he had no constitutional right to destroy evidence, citing Segura v. United States, 468 U.S. 796, 815-16 & n.10 (1984)):

In this case, Budd demonstrated nothing more than but for causation. There is no evidence that the government exploited the illegal seizure of the computer; the government did nothing more than place the unsearched computer into an evidence room and leave it there. It was Budd who called the police, volunteered that he had "pretty graphic" files on his computer, and agreed to come down for questioning at the police station. It was Budd who called Detective Teshak the day after Budd's first interview to clarify some of his previous statements. Budd chose to make this second phone call, not because of police exploitation of the illegal seizure, but, as he told Detective Teshak, because he felt that in order to start the "healing" process, he needed to be truthful about the files on his computer. The illegal seizure indirectly prompted Budd's first phone call to the Moline Police Department; however, the seizure was not exploited, nor did it compel Budd to incriminate himself. Budd's statements to the police were not derivative of the seizure.

12/24/08

Permalink 12:46:28 pm, by fourth, 567 words, 2164 views   English (US)
Categories: General

S.D. Fla.: Search incident of cellphone not justified

A search incident of a cellphone is not justified. United States v. Wall, 2008 U.S. Dist. LEXIS 103058 (S.D. Fla. December 22, 2008):

The Seventh Circuit has permitted the admission of phone numbers found on a pager during a warrantless search at the time of the arrest. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996). The court reasoned that pagers have a finite memory, and new incoming pages can potentially destroy previously stored numbers. Id. Thus, the court there found it necessary for law enforcement to immediately search pagers to prevent the destruction of evidence. Id. The Fifth Circuit has extended the holding of Ortiz to searches of cell phones. United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007). However, the Finley court did not explain why cell phones should be treated the same as pagers for purposes of the Fourth Amendment.

After the Finley opinion was entered, a court in the Northern District of California distinguished cell phones from pagers and suppressed the information retrieved from the cell phones. United States v. Park, 2007 WL 1521573 (N.D. Cal. 2007). In Park, the court found that cell phones can store a great quantity of information, and the government made no showing that the search was necessary to prevent the destruction of evidence. Id. at *9. The court further found that the search of the cell phones could not be considered an inventory search, because such searches are used to document possessions of a person in custody, not as a "ruse for a general rummaging in order to discover incriminating evidence." Id. at *10 (quoting Florida v. Wells, 495 U.S. 1, 4 (1990)).

To determine if the search was valid, the Court has considered whether a search incident to an arrest, an inventory search, or exigent circumstances provide an exception to the warrant requirement in this case. Further, the Court has taken into account the testimony Agent Mitchell gave at the evidentiary hearing regarding his reasons for searching the cell phones for text messages: 1) he regularly performs searches as an investigative measure because it is common to find evidence of a crime in text messages; 2) it is a standard practice of the DEA and is authorized by the DEA Legal Department so long as the search is performed during the booking process; 3) he was concerned that the text messages might expire after a certain amount of time; and 4) the cell phone battery may die.

The Court declines to adopt the reasoning of Finley and extend law to provide an exception to the warrant requirement for searches of cell phones. The search of the cell phone cannot be justified as a search incident to lawful arrest. First, Agent Mitchell accessed the text messages when Wall was being booked at the stationhouse. Thus, it was not contemporaneous with the arrest. Kucynda, 321 F.3d at 1082. Also, the justification for this exception to the warrant requirement is the need for officer safety and to preserve evidence. Agnello v. United States, 269 U.S. 20, 30 (1925) (recognizing the long-held right of law enforcement "to find and seize things connected with the crime ... as well as weapons and other things to effect an escape from custody"). The content of a text message on a cell phone presents no danger of physical harm to the arresting officers or others. Further, searching through information stored on a cell phone is analogous to a search of a sealed letter, which requires a warrant. See United States v. Jacobsen, 466 U.S. 109, 114 (1984).

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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

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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)
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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)

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  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
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"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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