A prisoner lawsuit was dismissed on filing as frivolous. Plaintiff attempted suicide by overdose in hoarding lithium pills. He claimed that his suicidal intentions were laughed off by the guards. He sued alleging various constitutional violations, including a Fourth Amendment claim that he should have been searched more often. Anderson v. Pollard, 2006 U.S. Dist. LEXIS 81960 (E.D. Wis. November 7, 2006)*:<\/p>\n
In this case, the plaintiff does not contend that his cell was illegally searched. Rather, he claims that it was not searched frequently enough (on a twice weekly basis). Based on the foregoing, the plaintiff has failed to state a claim under the Fourth Amendment.<\/p><\/blockquote>\n
Comment:<\/em> I cannot even fathom how a reverse Fourth Amendment claim would even exist. Maybe as a due process violation or a reckless disregard of a known risk, but that is about it. The “right to be free from unreasonable searches and seizures” cannot really include a right to be continually subjected to searches and seizures. It just does not follow. This isn’t even a remotely creative argument–it is just typical jail house lawyer thinking.<\/p>\n
A similarly strange prisoner case was a claim rejected in the District of Nevada in an internet child solicitation case that the e-mail sent to the plaintiff’s computer was an unlawful entry. Cherer v. Flaherty, 2006 U.S. Dist. LEXIS 81920 (D. Nev. November 1, 2006)*:<\/p>\n
Entry into a person’s home to obtain evidence is a search that should bring into play all the protections of the Fourth Amendment. Osborne v. U.S., <\/em>385 U.S. 323, 345 (1966). However, the submission of an email to an individual’s personal computer, which may or may not be opened and read, does not constitute entry. Plaintiff admits that he could have ignored the email or “deleted it as junk mail.” Complaint, p. 5. In fact, he states that is what he did, although the complaint is inconsistent on this point. Thus, either no actual entry was made or the entry requested by the email was granted. In either case, no invasion of his right to privacy occurred.<\/p><\/blockquote>\n
The defendant did not have to be told he was free to leave to make a stop consensual. United States v. Chavira, 467 F.3d 1286 (10th Cir. November 9, 2006):<\/p>\n
Considering the totality of the circumstances, the district court’s factual findings do not suggest a coercive show of authority. It is true that more than one officer was present and that Mr. Chavira was not told that he was free to leave. However, the other officer stayed in his patrol car until after the trooper obtained consent to search and the other officer’s presence alone would not indicate to a reasonable person that he was not free to leave. Advising a defendant that he is free to leave is not an essential prerequisite for a consensual encounter, let alone a voluntary consent to search. See, e.g., Ohio v. Robinette, <\/em>519 U.S. 33, 39-40, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996); United States v. Bradford,<\/em> 423 F.3d 1149, 1158 (10th Cir. 2005); United States v. Elliott,<\/em> 107 F.3d 810, 814 (10th Cir. 1997). Significantly, from the time the trooper resumed questioning Mr. Chavira about his travel plans until the time he obtained consent to search, Mr. Chavira’s path to his vehicle was unobstructed and the trooper was separated from him by the open patrol car door. On this record, we must hold that Mr. Chavira had no objectively reasonable belief that he was not free to leave, and thus his subsequent consent to search was not the product of an unlawful detention.<\/p><\/blockquote>\n
Comment:<\/em> Two police cars have the defendant pulled over and he is objectively “free to leave”? This is intellectual dishonesty of the worst sort. What person in his right mind would think he actually was free to leave? None. Perhaps if federal appellate judges spent a while detained on the side of the highway, they might come to appreciate that this argument is pure fiction.<\/p>\n","protected":false},"excerpt":{"rendered":"
b2evGMco.b2evALnk.b2WPAutP.b2evSmil Continue reading