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Petitions to watch | Conference of April 27, 2012:

Virginia v. Banks
Docket: 11-1071
Issue(s): Whether the Fourth Amendment requires suppression of a pistol in a coat belonging to a suspect properly arrested for a felony, when the officers took control of the coat solely for the purpose of giving it to the suspect to protect him from the elements, and when the trial court expressly found that the officers acted in good faith, and that the search of the coat was conducted for the officers’ safety and not for the purpose of obtaining evidence of criminal activity.

Have a dozen issue appellate argument this afternoon in a murder case.

The legislature did not clearly overrule the common law that a homeowner may resist an unlawful entry into his home. Defendant was charged with obstruction after struggling with police officers who entered his house. The state carries the burden of showing that the officers entered legally. People v. Moreno, 2012 Mich. LEXIS 463 (April 20, 2012):

In this case, we review whether defendant was properly charged with resisting and obstructing a police officer under MCL 750.81d after defendant struggled with officers who had entered his home unlawfully. To resolve this issue, we must address whether MCL 750.81d abrogates the common-law right to resist illegal police conduct, including unlawful arrests and unlawful entries into constitutionally protected areas. We conclude that the statute did not abrogate this right.

While the Legislature has the authority to modify the common law, it must do so by speaking in "no uncertain terms." Neither the language of MCL 750.81d nor the legislative history of this statute indicates with certainty that the Legislature intended to abrogate the common-law right to resist unlawful arrests or other invasions of private rights. We cannot presume that the Legislature intended to abrogate this right. Therefore, we overrule People v Ventura, 262 Mich App 370, 686 NW2d 748 (2004), to the extent that it held that the Legislature affirmatively chose to modify the traditional common-law rule that a person may resist an unlawful arrest. Because the Court of Appeals in this case relied on Ventura and extended its holding to the context of illegal entries of the home, we reverse the judgment of the Court of Appeals and remand this matter to the trial court. On remand, we instruct the trial court to grant defendant's motion to quash the charges on the basis of its ruling that the officers' conduct was unlawful.

. . .

In this case, the Court of Appeals held that "[t]he fact that defendant refused entry to the officers unless they obtained a search warrant is indicative of defendant's knowledge of their status as police officers and that they were engaged in the performance of their official duties." There is no question that defendant knew that the men at his door were police officers. However, the officers wanted to enter defendant's home without a warrant, and one of the officers physically prevented defendant from closing the door to his home. Accordingly, defendant's refusal to allow the officers into his home is not conclusive of whether defendant had reasonable cause to know that the officers were "engaged in the performance of their official duties." Consistently with the common-law rule, we conclude that the prosecution must establish that the officers' actions were lawful.

. . .

IV. CONCLUSION

While the Legislature has the authority to modify the common law, it must do so by speaking in "no uncertain terms." Neither the language of MCL 750.81d nor the legislative history of this statute indicates with certainty that the Legislature intended to abrogate the common-law right to resist unlawful arrests or other unlawful invasions of private rights. We cannot presume that the Legislature intended to abrogate this right. Therefore, we overrule Ventura to the extent that it held that the Legislature affirmatively chose to modify the traditional common-law rule that a person may resist an unlawful arrest.

There is a lot to be said for making the police think twice before a spurious entry into somebody's house, and that's what the common law does.

A suppression motion that says that defendant was subjected to a warrantless search is not enough to get a suppression hearing. What are the disputed facts? The motion is denied on the papers. United States v. Brissey, 2012 U.S. Dist. LEXIS 55739 (S.D. Ind. April 20, 2012).

Officers had reasonable suspicion to believe defendant was in possession of a weapon when they arrived at a shots fired call and heard shots from behind defendant’s house and then saw defendant there. United States v. Huebner, 2012 U.S. Dist. LEXIS 55821 (E.D. Tenn. February 13, 2012).*

Defendant was stopped by the police after they saw him in a high-crime area with his compatriots flagging down cars for drug deals, and, when he saw the police, he dropped something. That was reasonable suspicion. United States v. Johnson, 2011 U.S. Dist. LEXIS 154810 (E.D. Mo. December 15, 2011), adopted 2012 U.S. Dist. LEXIS 55837 (E.D. Mo. April 20, 2012).*

Following the Eighth Circuit, avoiding a DUI checkpoint alone is not enough to make reasonable suspicion. Here, however, there was more. State v. Rademaker, 2012 SD 28, 2012 S.D. LEXIS 28 (April 18, 2012).

2255 inventory claim fails on the merits. “I find no evidence in the record that the impoundment was unlawful or that officers conducted the inventory search before deciding to impound the vehicle.” Brunick v. United States, 2012 U.S. Dist. LEXIS 55096 (D. Or. April 19, 2012).*

A young man brought defendant’s laptop to the police claiming there was teen gay pornography on the screen from websites defendant visited. The officer touched the mousepad and the screen came on showing what he said. The officer’s viewing of the computer went no further than the private search. Then a state search warrant was sought. United States v. Goodale, 2012 U.S. Dist. LEXIS 55554 (N.D. Ga. April 19, 2012).*

Defendant’s arguments in the trial court were not the same ones made on appeal, so his appeal is governed by the plain error standard, and he doesn’t succeed for lack of a record supporting his argument. He was shot during what was found to be a Terry stop with guns drawn. Under Graham v. Connor, it appeared, on this record, it was justified enough to support the district court's conclusion. United States v. Hill, 2012 U.S. App. LEXIS 8072 (4th Cir. April 19, 2012)*:

Hill argues that when we weigh the three factors enumerated in Graham — the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect was actively resisting arrest or attempting to evade arrest by flight — it is apparent the officers "did not have an objectively reasonable ground to shoot Hill." Appellant's Br. at 25. As to the severity of the crime, he argues it weighs in his favor because at no point did the officers suspect Hill of having committed a crime; other than knowing that Bennett had written "help" on the receipt and herself carried a gun, all their information came from their observations of Hill inside the car. As to the third factor, he argues, Hill was not actively resisting arrest or attempting to flee.

The reasonableness of the officers' actions thus comes down to whether Hill's movements inside the car rendered reasonable the officers' belief that Hill posed an imminent threat to them, justifying the use of deadly force. The government argues the officers were justified in interpreting Hill's movements as evidence that he was reaching for a gun. Hill argues that belief was unreasonable because "the movement of a suspect's hands, without more, while he is under arrest is insufficient to give rise to an objectively reasonable basis for the police to use deadly force." Appellant's Br. at 26. Only if "the police had seen him with a gun, or had reliable and specific information that he was known to be armed," might this have been a "significant factor," he argues. Id. He also points out that the officers' descriptions of Hill's precise movements were inconsistent, and that it was Bennett, not Hill, whom the officers knew was armed.

Here again, our problem is the absence of adequate information to find that it was "obvious" that Hill did not pose an imminent threat of serious physical harm to the officers. Had Hill raised these issues in the district court, the risk of non-persuasion on these issues would have been cast upon the government to justify a warrantless seizure. See, e.g., United States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000); United States v. Burke, 605 F. Supp. 2d 688, 693-94 (D. Md. 2009). But under the plain error standard we apply here, Hill must shoulder the burden to prove the contrary. Without findings by the district court on these and related issues, and particularly inasmuch as the surveillance video does not show Hill's movements in the car, we may not plausibly notice plain error on this record and we decline to do so.

HuffPo: The Supreme Court's Decision on Strip Searches Will Make Jails More Dangerous by Lovisa Stannow, Executive Director, Just Detention International:

The practice of strip searching all jail inmates, just because they are detainees, is a violation of basic human rights and unnecessary. It is also a recipe for sexual abuse. Sadly, earlier this month, five U.S. Supreme Court justices, a bare majority, found that policies that require strip searches of all inmates upon entry at a jail to be constitutional. In so doing, the Court has helped pave the way for more -- not less -- dangerous jails.

In Florence v. Burlington County, Albert Florence challenged the constitutionality of two strip searches he was forced to undergo in 2005 after he was wrongly arrested due to a records error. "After that all happened, I cried, and I hadn't cried since I was a child. I just had so much emotion from being scared, humiliated," Mr. Florence said at a press conference.

Here's what we know about the link between strip searches and sexual abuse. Just Detention International (JDI) receives thousands of letters every year from survivors of sexual violence behind bars. They describe horrific abuse, often at the hands of staff. In countless cases, the abuse began during a search. Their stories are borne out by Department of Justice data. According to the government's own studies, more than 40 percent of survivors of sexual abuse in detention were abused during a strip or pat down search. Many victims of staff abuse, including a shocking 30 percent of men, were abused within the first 24 hours of entering jail -- precisely the timeframe under consideration in Mr. Florence's case.

Defendant’s identity is is not suppressible as the product of an unconstitutional arrest. United States v. Medina-Meraz, 2012 U.S. Dist. LEXIS 55030 (E.D. Mich. April 19, 2012).

Because the vehicle was stolen, officers had probable cause to search it under the automobile exception. United States v. Smith, 2012 U.S. Dist. LEXIS 55476 (M.D. Ala. April 2, 2012).*

Officers did not violate any expectation of privacy by conducting surveillance of a marijuana patch from open fields on defendant’s own property under Oliver and Dunn. United States v. Hardin, 2012 U.S. Dist. LEXIS 55364 (S.D. Ga. March 26, 2012).*

Patdown of passenger was without reasonable suspicion to believe he was armed. Search suppressed. Westmoreland v. State, 2012 Ind. App. LEXIS 180 (April 17, 2012).

A minor delay in the length of the stop did not make it unreasonable. The conversation while waiting did not extend it. United States v. Ghoston, 2012 U.S. Dist. LEXIS 55526 (W.D. Tenn. April 20, 2012)*:

So long as the questions do not extend the time of the stop, "an officer may ask unrelated questions to his heart's content, provided he does so during the supposedly dead time while he or another officer is completing a task related to the traffic violation." Everett, 601 F.3d at 492. Agent James asked questions while Trooper Fuller verified the licenses and conducted background checks. This was reasonable under Everett.

Any illegality in the initial traffic detention was attenuated by defendant's probation search condition. Although the patdown search and discovery of the gun occurred shortly after the traffic detention, they did not occur until after the officer had recognized defendant as a person subject to a search condition. The search condition supplied legal authorization to search that was completely independent of the circumstances leading to the traffic stop. Nor was there any flagrancy or purposefulness to the alleged unlawful conduct by the officer. While the trial court found that the stop was made without reasonable suspicion, it specifically found the officer did not act in an arbitrary, capricious, or harassing manner. The officer was aware of defendant's probation condition before the search, and the existence of that probation condition dissipated any taint that might flow from the detention. People v. Durant, 2012 Cal. App. LEXIS 442 (1st Dist. April 19, 2012).

Defendant was a corrections officer, and that helps show he voluntarily consented. United States v. Francis, 2012 U.S. Dist. LEXIS 54244 (W.D. Ark. March 29, 2012).

The stop should have ended when the officer gave a warning ticket, and he was made to stand in the rain while the office continued on his investigative mission. United States v. Culp, 2012 U.S. Dist. LEXIS 55494 (W.D. Mo. April 20, 2012)*:

Here, the unfolding of the circumstances makes the detention much more akin to a prolonged investigatory expedition with the singular mission of searching Defendant's vehicle than a permissible course of action reasonably directed toward the proper ends of the stop. The parties agree that the purpose of the traffic stop was concluded, at the latest, once Gillespie made the decision to only give Defendant a warning and not issue him a ticket, and so informed Defendant, returning his belongings, and asked Defendant if he had any questions. It was only after that point, that Gillespie embarked on an extensive course of investigation and questions aimed at conducting a search. ...

Although Gillespie testified that he had already decided not to issue Defendant a ticket for "following too closely" and only give him a warning, he nonetheless returned to the driver's side of Defendant's vehicle, directed Defendant to get out of the car and had him move to the back of the vehicle, where he was further detained while Gillespie pursued a mission entirely separate from the underlying traffic violation. It is clear from the video recording that Defendant remained there, standing in the rain, at Gillespie's behest, and would not have thought he was free to leave. Certainly, had Defendant believed that this was a mere consensual encounter at this point, he would not have remained in the pouring rain, in his shirt sleeves, while Gillespie ambled on with questions.

As the Sixth Circuit noted in Everett, "the touchstone of any Fourth Amendment analysis is reasonableness." 601 F.3d at 494. The Court "must conduct a fact-bound, context-dependent inquiry in each case." Id. Having fully considered the circumstances as they unfolded during the stop, as viewed on the video recordings, in conjunction with Gillespie's testimony, the Court finds no acceptable purpose for Gillespie's extended detention and prolonged questioning of Defendant, pat-down, and persistent requests to search the vehicle, all after the purpose of the traffic stop had undisputedly ended.

The officer had reasonable grounds to detain defendant. Tasering him was a seizure because the barbs in the Taser connected them. United States v. Davis, 2012 U.S. Dist. LEXIS 54346 (E.D. Tenn. March 29, 2012).* [Remember, Taser® is a trademark.]

Defendant’s 2255 argument that defense counsel was ineffective for not arguing invalid inventory rather than search incident wouldn’t work because there was justification for an inventory, too. Brunick v. United States, 2012 U.S. Dist. LEXIS 55096 (D. Ore. April 19, 2012).*

Even if defendant’s car was blocked on a parking lot, it didn’t rise to a seizure. But, the USPS Postal Inspectors had reasonable suspicion that defendant was involved in the theft of mail from their observations. United States v. Hampton, 2012 U.S. Dist. LEXIS 54421 (N.D. Ga. March 5, 2012).*

Searching a vehicle to “secure” it absent exigent circumstances was unreasonable. State v. Cleveland, 2012 Tex. App. LEXIS 3070 (Tex. App. – Houston (14th Dist.) April 19, 2012):

Likewise, here, the plain-view exception does not apply because, as in Keehn, the officers had no lawful right to access the object in appellee's truck absent exigent circumstances. See id. Our review of the record reveals no exigent circumstance capable of supporting Jones's seizure of the pills. Jones stated that at the time he entered the vehicle to seize the pills, "everyone was secured" and in police custody. Thus, there was no opportunity for any of the people at the scene to drive the vehicle away or dispose of any evidence while the officers were securing a search warrant. The State asserts that the "exigent circumstance" present here was the automobile exception. But as discussed above, this ground was not raised in the trial court. Thus, we may not consider it for the first time on appeal as a basis to reverse the trial court's orders. See Martinez, 91 S.W.3d 331. Under these circumstances, we overrule the State's sole issue on appeal.

Officers were questioning two others about bring money to Puero Rico to allegedly by drugs. Defendant interjected himself into that conversation and raised reasonable suspicion as to himself. United States v. Hammonds, 2012 U.S. Dist. LEXIS 54466 (M.D. Pa. April 18, 2012).*

Officers had probable cause for defendant’s vehicle stop, so whether there was a traffic stop was irrelevant. United States v. Sierra-Rodriguez, 2012 U.S. Dist. LEXIS 54069 (E.D. Mich. April 17, 2012).*

There was a serial rapist working the town, and the police were on the look out because he may have been spotted. Defendant’s car was the only car in the area late at night. State v. Burdick, 2012 Tenn. Crim. App. LEXIS 229 (April 18, 2012).*

Daily Sentinel: Juror: Fourth Amendment played minor role in Lawyer case: Trooper's actions reasonable under the circumstances, he says by Paul Shockley:

Two jurors who sat in judgment of Colorado State Patrol Trooper Ivan “Gene” Lawyer said Fourth Amendment principles had either too much emphasis by the prosecution, or little bearing on the main issues at play in the trooper’s trial.

Lawyer was acquitted Thursday on four counts, including criminally negligent homicide and first-degree criminal trespass. Two other counts, including second-degree assault with recklessness, were left undecided by a deadlocked jury.

by Greg Palast - Exclusive for EcoWatch.org
Friday, 20. April, 2012

Evidence now implicates top BP executives as well as its partners Chevron and Exxon and the Bush Administration in the deadly cover-up –– which included falsifying a report to the Securities Exchange Commission.

Yesterday, Ecowatch.org revealed that, in September 2008, nearly two years before the Deepwater Horizon explosion in the Gulf of Mexico, another BP rig had blown out in the Caspian Sea––which BP concealed from U.S. regulators and Congress.

Had BP, Chevron, Exxon or the Bush State Department revealed the facts of the earlier blow-out, it is likely that the Deepwater Horizon disaster would have been prevented.

Days after the Deepwater Horizon blow-out, a message came in to our offices in New York from an industry insider floating on a ship in the Caspian Sea. He stated there had been a blow-out, just like the one in the Gulf, and BP had covered it up.

To confirm this shocking accusation, I flew with my team to the Islamic republic of Azerbaijan.  Outside the capital, Baku, near the giant BP terminal, we found workers, though too frightened to give their names, who did confirm that they were evacuated from the BP offshore platform as it filled with explosive methane gas.

Before we could get them on camera, my crew and I were arrested and the witnesses disappeared.

Expelled from Azerbaijan, we still obtained the ultimate corroboration: a secret cable from the U.S. Embassy to the State Department in Washington laying out the whole story of the 2008 Caspian blow-out.

The source of the cable, classified "SECRET," was a disaffected US soldier, Private Bradley Manning who, through WikiLeaks provided hot smoking guns to The Guardian. The information found in the U.S. embassy cables is a block-buster.

The cables confirmed what BP will not admit to this day: there was a serious blow-out and its cause was the same as in the Gulf disaster two years later: the cement ("mud") used to cap the well had failed. Bill Schrader, President of BP-Azerbaijan, revealed the truth to our embassy about the Caspian disaster:

“Schrader said that the September 17th shutdown of the Central Azeri (CA) platform… was the largest such emergency evacuation in BP’s history. Given the explosive potential, BP was quite fortunate to have been able to evacuate everyone safely and to prevent any gas ignition. … Due to the blowout of a gas-injection well there was ‘a lot of mud’ on the platform.”

From other sources, we discovered the cement which failed  had been mixed with nitrogen as a way to speed up drying, a risky process that was repeated on the Deepwater Horizon.

Robert F. Kennedy Jr., president Waterkeeper Alliance and senior attorney for Natural Resources Defense Council, calls the concealment of this information, "criminal. We have laws that make it illegal to hide this."

The cables also reveal that BP's oil-company partners knew about the blow-out but they too concealed the information from Congress, regulators and the Securities Exchange Commission.

BP's major US partners in the Caspian Sea drilling operation were Chevron and Exxon. The State Department got involved in the matter because BP’s U.S. partners and the Azerbaijani government were losing over $50 million per day due to the platform’s shutdown.  The Embassy cabled Washington:

“BP’s ACG partners are similarly upset with BP’s performance in this episode, as they claim BP has sought to limit information flow about this event even to its ACG partners.”

Kennedy is concerned about the silent collusion of Chevron, Exxon and the Azerbaijani government.  “The only reason the public doesn’t know about it is because the Azerbaijani government conspired with them to disappear the people who saw it happen and then to act in concert, in collusion, in cahoots with BP, with Exxon, with Chevron to conceal this event from the American public.” – To read the full story go to EcoWatch.org – Check out the Youtube video

______

Re-prints permitted with credit to EcoWatch.org and the author.

Greg Palast is the author of Vultures’ Picnic (Penguin 2011), which centers on his investigation of BP, bribery and corruption in the oil industry. Palast, whose reports are seen on BBC-TV and Britain’s Channel 4, will be providing investigative reports for EcoWatch.org.

You can read Vultures' Picnic, "Chapter 1: Goldfinger," or download it, at no charge: click here.

Subscribe to Palast's Newsletter and podcasts.

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Defendant worked for a business as a bookkeeper and he kept records on his work computer and one the company provided at this house. While he was on a trip, the company received mail that suggested that defendant was embezzling from it. They checked the work computer and did not find records for a whole year. They went to his house and asked for the work computer which his wife provided. Back and work they looked through the computer using the company password and found the evidence of embezzlement, which they gave to the government. This was all a private search not governed by the Fourth Amendment. United States v. Brown, 2012 U.S. Dist. LEXIS 54382 (S.D. Ind. April 18, 2012).*

It was reasonable to impound a vehicle that would have had to be left in a high crime area and was at risk of being broken into. There was not need to give the car to a present potential driver when there was no showing of insurance to drive it and the registration was expired. United States v. McKinnon, 2012 U.S. App. LEXIS 7806 (5th Cir. April 18, 2012)* [Note: The court almost lost me with the insurance comment because that would be shifting the burden. They should have left that out.]

There was reasonable suspicion for defendant’s stop and frisk because it was a high crime area, defendant was walking funny like he had a gun on him, and when he “bladed” the officer could see the outline of a gun. United States v. Carson, 2012 U.S. Dist. LEXIS 54372 (D. N.J. April 18, 2012).*