VoteKansas.org

Apparently there has been a little glitch recently and all comments were getting marked as spam. Fortunately someone emailed me and I found the problem. Those comments are now unspammed and hopefully the problem is fixed. Sorry about that!

“Even if an individual is found to have validly consented, he can still challenge a search on the basis that it exceeded the scope of his consent. See United States v. Canipe, 569 F.3d 597, 604 (6th Cir. 2009).” Quoting United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004), also on consent in general: “‘Fundamentally, Carter asks us to hold as a matter of law that consent must be given verbally, perhaps by some ‘magic words’ formula. This we decline to do. Although a man’s home is his castle, trumpets need not herald an invitation. The police may be kept out or invited in as informally as any other guest. Carter invited the police in and cannot undo his act in court.’ Id. at 589.” Defendant was actually showing the police he wanted to cooperate, so the consent was voluntary. Since the object of the search was a stolen firearm, the search could be anywhere the gun might be found. United States v. Murphy, 2012 U.S. Dist. LEXIS 52246 (E.D. Tenn. March 26, 2012), R&R 2012 U.S. Dist. LEXIS 52245 (E.D. Tenn. January 10, 2012).*

The officer applying for the telephonic search warrant was not the officer with the most information, but that did not make his hearsay application void. The Franks issue fails: “None of the claimed omissions, if included in the affidavit, would have negated the probable cause determination.” Some of the claimed omissions were actually incriminating. United States v. Salisbury, 2012 U.S. Dist. LEXIS 51998 (D. Nev. February 3, 2012).*

A frantic woman was worried about her children locked in the house with defendant. The district court’s finding of consent to enter was supported by the evidence. Moreover, there was sufficient evidence of exigency and the entry was not made to arrest or investigate a crime. State v. Morin, 2012 ND 75, 2012 N.D. LEXIS 80 (April 10, 2012).*

On staleness, “evidence of the manufacture of methamphetamine is closer to a regenerating conspiracy than a chance encounter in the night. On the continuum of long-versus short-term criminal operations, the manufacture of methamphetamine lies somewhere between growing marijuana and selling or consuming drugs.” It was at a residence, “the alleged criminals were entrenched rather than nomadic.” United States v. Redmond, 2012 U.S. App. LEXIS 7504, 2012 FED App. 0405N (6th Cir. April 13, 2012).*

An illegal search of video enabled the state to find other witnesses. While the search was bad, the witness was not barred under Ceccolini. State v. Bailey, 2012 ME 55, 2012 Me. LEXIS 55 (April 12, 2012):

[*P20] In Ceccolini the Supreme Court addressed the factors that dictate whether the exclusionary rule should apply to live-witness testimony. The factors are (1) the amount of free will exercised by the witness; (2) whether the initial illegality that led to the discovery of the witness was used to compel the witness to testify, or if the witness testifies as a product of "detached reflection and a desire to be cooperative"; (3) whether the testimony is related to the purpose of the original illegal search, keeping in mind that the exclusion would forever prevent the witness from testifying; (4) the amount of time that elapsed between the initial illegality and the initial contact with the witness, and between the initial contact with the witness and the testimony at trial; (5) whether the witness was known to the police officers prior to the illegal conduct; and (6) whether applying the exclusionary rule would have a future deterrent effect on police conduct. Ceccolini, 435 U.S. at 276-80.

[*P21] Although the Court in Ceccolini declined to adopt a per se rule that live-witness testimony should never be excluded, it acknowledged that witness testimony must be evaluated differently from physical evidence. Id. at 274-76 ("Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet."). The Court instructed that the decision "cannot be decided on the basis of causation in the logical sense alone." Id. at 274. Instead, the Court indicated that a closer link between the illegality and the witness's testimony is required to exclude the testimony than with nontestimonial evidence because "the cost of excluding live-witness testimony often will be greater." Id. at 278.

[*P22] In a case factually similar to this one, the police received information about the sexual abuse of minors at a school. United States v. Wipf, 397 F.3d 677, 680 (8th Cir. 2005). The police obtained a search warrant and seized videotapes, among other evidence, from Wipf's home and used the videotapes to identify a previously unknown victim. Id. at 681. The victim's parents and a psychologist persuaded him to talk about the past abuse, partially by revealing the existence of the videotapes. Id. at 681, 684. The trial court granted Wipf's motion to suppress the evidence seized from his house, but allowed the victim to testify. Id. at 681-83. The Eighth Circuit Court of Appeals upheld the admission of the victim's testimony after applying the Ceccolini factors, specifically finding that the victim testified willingly; the illegally-seized videotapes were used indirectly to convince the victim to talk; the police never confronted the victim with the existence of the videotapes; the videotapes were never shown to the victim; about nine days elapsed between the illegal search and the first contact with the victim, and nine months elapsed before the victim testified at trial; and the purpose of the search was not to identify additional victims, but rather to corroborate the information originally received. Id. at 684-85.

[*P23] As the trial court found, application of the Ceccolini factors to this case weigh in favor of admitting the live-witness testimony. In its decision, the court found that the witnesses testified of their own free will, that there was a possibility that the witnesses could come forward in the future, and that the purpose of Detective Beaulieu's search was not to identify the then unknown victims. These findings support the court's decision to deny the motion to suppress the live-witness testimony. Additionally, the facts that the testimony was not directly related to the purpose of the original search, that the victims testified in court over two years after they were first identified, and that the victims would otherwise be forever prevented from testifying against Bailey also weigh in favor of admitting the testimony.

There aren't many cases dealing with the Ceccolini rule, so every one of them is important.

Defendant’s actions amounting to reasonable suspicion based on driving and actions after the stop. United States v. Ervin, 2012 U.S. App. LEXIS 7515 (5th Cir. April 12, 2012)*:

At the suppression hearing, Officer Vallet first set forth his experience in highway interdiction, including a year and a half working interdiction and 200 hours of training in interdiction. Officer Vallet then articulated several facts that led him to suspect that Ervin may have been involved in criminal activity before Officer Vallet decided to prolong the detention. From the outset, Officer Vallet found it suspicious that Ervin, while approaching the sheriff's vehicle, dropped speed, changed lanes, and took a close position behind another vehicle. Officer Vallet testified that in his training and experience, such activity was an attempt "to blend in with other traffic, not stand out." Officer Vallet then found it suspicious that twice when Ervin exited his vehicle, he "stopped just prior to the back of his vehicle, as if to stay close to the vehicle." Based on Officer Vallet's training and experience, people acting in such a manner indicate that "they have something that is of value or there's something connected to that car that they don't want to get too far from." During his interaction with Ervin, Officer Vallet noticed that Ervin "seemed overly nervous for a minor traffic violator" as evidenced by Ervin's avoidance of eye contact. Officer Vallet also did not find out of all suspicion the sequence in which Ervin expressed his travel plans. Ervin initially stated that the purpose of his trip was to visit a family member and later added that the purpose of the trip was to start a new business. The fact that Ervin was unable to produce a rental agreement raised Officer Vallet's suspicions because "[s]ometimes that is a way to distance yourself from the vehicle, or you don't want anybody to see who rented it or if it was rented in a false name." Further, Officer Vallet found it suspicious that Ervin failed to disclose fully the details of his criminal history.

There was reasonable suspicion to stop a car stopped in the middle of an intersection with its lights out when the officer came on the scene of a shots fired call. Defendant had no standing to challenge the search of the car because he could not show any connection to it why he was driving somebody else’s car. United States v. Mitchell, 2012 U.S. Dist. LEXIS 51080 (W.D. Mo. March 1, 2012).*

UnMirandized defendant consented on the totality of circumstances. United States v. Lewis, 2012 U.S. Dist. LEXIS 51752 (W.D. Va. April 13, 2012).*

Defendant’s PO was at his house for a “field visit” and saw a notebook on top of the TV. He opened the book, and saw directions about hooking up a computer to the TV, and saw names of files from the computer suggestive of child pornography. He was handcuffed and taken outside. He started the conversation and admitted to looking at “porn.,” and that was voluntary. United States v. Gardner, 2012 U.S. Dist. LEXIS 51924 (D. Utah April 12, 2012).*

The government argued exigency justified the initial entry into the hotel room, and the later issued search warrant was valid. The court finds that it does not even need to decide exigency because the warrant was clearly valid. Also, several defendants had no standing in the hotel room. United States v. Johnson, 2012 U.S. Dist. LEXIS 51482 (E.D. Mich. April 12, 2012):

The Government argues that exigent circumstances—specifically, concern that individuals inside the hotel room would destroy evidence of criminality—justified the fast and warrantless entry into the room. To launch an inquiry designed to definitively determine the constitutionality of such an entry is to invite a journey into discrete factual findings and a weighing and balancing of societal and law enforcement interests. In some cases that journey will be mandatory, or at least advisable. Here, it is neither. The court may avoid determining whether the initial entry into the hotel room was justified by exigent circumstances and simply assume that it was not, because suppression of the evidence discovered during the execution of the search warrant is not required where the warrant was valid and supported by probable cause.

Defendant had no standing to contest seizure of his girlfriend’s cell phone records. State v. Young, 2012 Ohio 1669, 2012 Ohio App. LEXIS 1456 (6th Dist. April 13, 2012).*

The USMJ concluded that the computer search was excessive, but the Sixth Circuit spoke in a case on point right after that, so the R&R is adopted as modified. United States v. Labuda, 2012 U.S. Dist. LEXIS 51084 (W.D. Tenn. April 11, 2012)*:

The Government objects to the Magistrate Judge's conclusion that Campbell's search exceeded the boundaries of the Search Warrant. (Gov.'s Objection 4.) The Government argues that United States v. Richards, 659 F.3d 527 (6th Cir. 2011), which was decided two weeks after the Magistrate Judge's Report, established clearer parameters for electronic database and file searches. (Gov.'s Objections 2.) The Government contends that "the Richards court determined that seizure of images of child pornography other than those specifically sought in the warrant was not a violation of the Fourth Amendment, even though the server was set up with neatly compartmentalized segments and files." (Id.)

A search warrant for a house does not have to include the name of the owners or occupants; a particular description is required with probable cause to believe evidence will be found, and the officers had it here. State v. Lenard, 2012 Ohio 1636, 2012 Ohio App. LEXIS 1433 (8th Dist. April 12, 2012).

Defense counsel was not ineffective for not investigating whether the window tint of his car was legal or not when that was the basis for a stop in a bank robbery case. He didn’t even claim that his windows were overtinted. United States v. Coleman, 2012 U.S. Dist. LEXIS 51481 (E.D. Pa. April 11, 2012)*:

Petitioner cannot show the existence of a colorable Fourth Amendment claim. Notably, Petitioner does not claim that his windows were not darkly tinted. He does not argue that Hartman should have been able to see inside the vehicle. Although he faults counsel for failing to investigate the level of tint, he does not claim that the windows were not in violation of Pennsylvania's Motor Vehicle Code. [¶] It is undisputed that the windows on Petitioner's vehicle were tinted. It is also undisputed that Trooper Hartman detained the vehicle because of the tinted windows. The suggestion that Counsel was ineffective because he did not investigate the extent of the tint is without merit. Sanders, 165 F.2d at 253. Petitioner's sixth claim lacks merit and is denied.

The search here was conducted by a school resource police officer, and the court finds it was not a police search but a school search. State v. Alaniz, 2012 ND 76, 2012 N.D. LEXIS 74 (April 10, 2012). The standard:

[*P10] Other courts have addressed this issue and have held there are three categories of school searches based on the amount of police involvement: (1) when school officials initiate the search or police involvement is minimal, the reasonableness standard applies; (2) when the search involves school resource officers acting on their own initiative or at the direction of other school officials to further educationally related goals, the reasonableness standard applies; and (3) when "outside" police officers initiate the search, warrant and probable cause requirements apply. See, e.g., T.S. v. State, 863 N.E.2d 362, 367-68 (Ind. Ct. App. 2007); Myers v. State, 839 N.E.2d 1154, 1160 (Ind. 2005); State v. Burdette, 225 P.3d 736, 740 (Kan. Ct. App. 2010); In re D.L.D., 694 S.E.2d 395, 400 (N.C. Ct. App. 2010); State v. J.M., 255 P.3d 828, 832 (Wash. Ct. App. 2011).

[*P11] In determining how much police involvement occurred and which standard applies, courts have considered various factors, including whether the officer was in uniform, whether the officer has an office on the school campus, how much time the officer is at the school each day, whether the officer is employed by the school system or an independent law enforcement agency, what the officer's duties are at the school, who initiated the investigation, who conducted the search, whether other school officials were involved, and the officer's purpose in conducting the search. See T.S., at 369-71; Burdette, at 740; R.D.S. v. State, 245 S.W.3d 356, 368 (Tenn. 2008). We agree with the rationale used by these courts to determine which standard should apply to school searches.

Alabama follows Diaz and others and rejects Smith in holding that a cell phone’s text messages are subject to a search incident. Gracie v. State, 2011 Ala. Crim. App. LEXIS 123 (December 16, 2011)* [Note: It’s always easier to let some other court do your thinking for you. Alabama has a subscription only website for state opinions that I won’t pay for since its opinions are so shallow.]

Defendant was stopped for driving too slow in the left lane and impeding traffic. The video showed trucks slowing and passing on the right. Shell v. State, 2012 Ga. App. LEXIS 391 (April 12, 2012).*

911 caller said that the police stopped the wrong man, so officers looked at the two men nearest. Finding a gun on one did not dissipate the reasonable suspicion as to the other because the officer did not have to consider the stop over. United States v. Woods, 2012 U.S. Dist. LEXIS 51607 (W.D. Mo. April 6, 2012).*

Defendant was stopped and volunteered he had drugs in the car, and handed them to the police. He was arrested and his car was locked up. When the police came back to the car to impound it, a gun was seen sticking out from under the seat. The automobile exception permitted the search despite the delay. [Not to mention plain view.] People v Thomas, 2012 N.Y. App. Div. LEXIS 2717, 2012 NY Slip Op 2714 (2d Dept. April 10, 2012).

Defendant’s stop for driving too slow was justified where his car impeded other vehicles. Marijuana in plain view justified a search under the automobile exception. Shell v. State, 2012 Ga. App. LEXIS 391 (April 12, 2012).*

A 16 year old runaway was riding with defendant and she told the police that she had oral sex with defendant which he recorded on his telephone. A search warrant for the phone was obtained, but the officer exceeded the scope of the warrant by looking for picture files and not just the video. Significantly, the court also held that the government’s preferred justification for obtaining 404(b) evidence was rejected under the terms of this warrant. United States v. Labuda, 2011 U.S. Dist. LEXIS 154700 (W.D. Tenn. October 13, 2011):

Finally, while the United States argues that the scope may have been justified to locate material "evidence of intent, plan, motive or common scheme" in accordance with Rule 404(b) of the Federal Rules of Evidence, the fact remains that the scope of the authority to search Defendant's cellular phone was based upon the authority granted in the Search Warrant. The Affidavit recited the victim's account that the alleged sexual assault occurred during a brief time period and did not indicate that there was any lengthy span of time during which investigators believed that Defendant corresponded, schemed, or planned the sexual assault. It was the substance of the Affidavit that the issuing judge relied upon to grant the authority to execute the search. Thus, the Court finds that any attempt of investigators to search for evidence not reasonably related to the time frame provided by the victim, no matter whether it may or may not be admissible under the Federal Rules of Evidence, was beyond the scope of the Search Warrant.

Ultimately, although Detective Campbell did prudently narrow his search in ways that were not required by the warrant, specifically by not viewing any files other than videos, that does not negate the fact that he also improperly broadened his search to include dates and times that the record reflects he had no reasonable basis to believe that Defendant may have been engaged in or recording sexual offenses relating to the sixteen-year-old victim about whom the Search Warrant was issued. Accordingly, the Court finds that Detective Campbell exceeded the scope of the Search Warrant in his seizure of evidence that had no temporal proximity to the sexual assault of the sixteen-year-old victim.

Perhaps you’ve heard about this sort of thing. The government, for your own good, is going to require you to buy certain things. No, I’m not talking about the Health Care Mandate. In Wisconsin they have a NAIS Mandate. Mandatory premiss registration, animal ID, etc. But, they are so generous. They’ll allow you to write off 25% of the forced costs from your tax burden.

Gee… So it still is going to cost you 75%. Since it is a government mandate it will be over priced because the vendors have a lock on the market. You know how these things go. Using some rough numbers, what should have cost $10 per animal is going to cost $20 but you’ll be able to deduct $5 making it so you’re only paying 50% more than you would have not spent had you been willing to spend it if it wasn’t a mandate. Confused?

But it is a mandate and you wouldn’t be paying it at all except that it is a mandate. So now you’re out $15 per animals. Oh, and did you know, surely you did as a farmer, that you’re only making or losing $5 a head? So now, with the government mandate, for your own good, you stand to lose $20 per animal instead of losing $5 per head.

Oh, one last detail, if you don’t get any profit then you don’t get to deduct that 25% of the cost of the mandated program which means you’re losing another $5 per animal for a total of $25 each. Oh, well, I guess you’ll just have to make it up in volume.

Remember: government is here to help you.

Among the bills [Wisconsin Governor Scott Walker] will be signing is SB396, which authorizes the Wisconsin Department of Agriculture to hire an independent agent to administer the livestock premises registration program and create an income and franchise tax credit for producers to cover their costs of radio frequency identification tags.

Under the bill, an income and franchise tax credit for 25 percent of the amount that a taxpayer paid in the taxable year for radio frequency identification tags for the taxpayer’s livestock located in this state and 25 percent of the amount that a taxpayer paid in the taxable year for equipment used in this state to read radio frequency identification tags on livestock. If the amount of the credit exceeds a taxpayer’s tax liability, the taxpayer does not receive a refund, but, instead, may carry forward the amount of any unused credit to subsequent taxable years.
-Wisconsin Ag Connection

Defendant’s post-conviction claim that defense counsel was ineffective for not pursuing a motion to suppress was fatally defective for not alleging prejudice. Would she have gone to trial and not pled? Zanchez v. State, 2012 Fla. App. LEXIS 5557 (Fla. 2d DCA April 11, 2012).*

But upon further examination of her motion, we note that Ms. Zanchez has failed to allege that there is a reasonable probability that but for counsel's errors, she would not have pleaded guilty but would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985); Nelson, 996 So. 2d at 952. Thus Ms. Zanchez's motion completely omits an allegation of prejudice flowing from her attorney's alleged deficient performance.

The juvenile was detained pending “investigation” for loitering, and there was no reasonable suspicion for a patdown. The officer "testified that she routinely searches suspects prior to placing them in her vehicle as a safety precaution." D.S. v. State, 2012 Fla. App. LEXIS 5461 (Fla. 3d DCA April 11, 2012).*

A gap in the record on whether the independent source doctrine would support the search in question required remand. The case arose from a grow operation that the police visited without warrants. Outbuildings were searched off the curtilage and in open fields, but the court can’t decide the question. United States v. Noriega, 2012 U.S. App. LEXIS 7309 (11th Cir. April 11, 2012).*

A forced blood draw in a DUI case was barred by statute. The state’s reliance on State v. Krause, 484 N.W.2d 347 (Wis. Ct. App. 1992) (permitting blood draw from hogtied suspect) and Schmerber is inapposite. People v. Farris, 2012 Ill. App. LEXIS 265, 2012 IL App (3d) 100199 (April 10, 2012):

[**P21] In addition to Krause and Schmerber, the State cites to several cases which stand for the proposition that forced blood draws are objectively reasonable and can pass constitutional muster under the fourth amendment. See State v. Clary, 2 P.3d 1255, 1256 (Ariz. App. Ct. 2000); Carleton v. Superior Court, 216 Cal. Rptr. 890 (Cal. Ct. App. 1985); State v. Worthington, 65 P.3d 211 (Idaho Ct. App. 2002); State v. Lanier, 452 N.W.2d 144 (S.D. 1990). However, we find each of these cases to be irrelevant to the question before us, which is whether the trial court correctly held that a forced blood draw was not permitted under the Vehicle Code. The trial court, relying upon our supreme court's holding in Jones, held that force is not permitted under the statute. Specifically, the trial court relied upon the Jones court's "clarification" that it was "not suggest[ing] that a DUI arrestee's lack of a right to refuse chemical testing under section 11-501.2(c)(2) permits law enforcement officers to use physical force in obtaining blood, urine, and breath samples." Jones, 214 Ill. 2d at 201.

Defendant was accused of twice getting out of his car and battering his girlfriend. When police arrived, they had a reliable report that defendant might be armed because the threatened to shoot a bystander witness, and that justified a search of his car under the automobile exception. Commonwealth v. Gouse, 2012 Mass. LEXIS 255 (April 10, 2012).*

Defendant’s driving back and forth three times in five minutes in front of a construction site at 1a.m. where anhydrous ammonia was stored was reasonable suspicion. “No one was supposed to be at the construction site at that hour. Officers can consider the lateness of the hour in determining whether criminal activity was afoot.” State v. Morgan, 2012 Mo. App. LEXIS 478 (April 10, 2012).*

Defendant jumped out a hotel room window in flight from the police, and this was an abandonment of the room. He also abandoned a pair of socks on the roof the hotel. State v. Jackson, 2012 Conn. LEXIS 128 (April 1, 2012):

The defendant had no reasonable expectation of privacy in the hotel room or in the personal effects that he left there after he jumped out of the hotel window, and even if he had not manifested a subjective intent to abandon the hotel room, the New York City police officers' initial entry into the hotel room was justified under the emergency exception to the warrant requirement because they reasonably could have believed that there might be other persons in the hotel room who were injured or who needed assistance and, therefore, they were not required to obtain a search warrant before seizing the defendant's clothes for safekeeping pursuant to their community caretaking function; furthermore, the mere transfer of the items from the New York City police to the New Haven police did not violate the defendant's fourth amendment rights, the transfer having involved no additional intrusion into the defendant's privacy and the subsequent forensic testing of the defendant's pants and belt having been performed pursuant to a search warrant.

Positive alerts by "sophisticated" dogs that can discriminate currency from drugs have more value that "unsophisticated" dogs. United States v. Approximately $77,000.00 in United States Currency, 2012 U.S. Dist. LEXIS 50404 (E.D. Cal. April 10, 2012):

The Ninth Circuit has given probative weight to positive alerts by "sophisticated" dogs - dogs that react only to ephemeral by-product of narcotics and not to commonly circulated currency - to show that currency is substantially connected to illegal drug activity. See United States v. $42,500 in U.S. Currency, 283 F.3d [977,] at 982; United States v. $22,474 in U.S. Currency, 246 F.3d at 1216.

More specifically, the Ninth Circuit has explained its jurisprudence on unsophisticated versus sophisticated dog alerts to currency:

In addition, Sutter alerted to the money found in Hysell's luggage. Sutter's handler submitted a declaration stating that Sutter does not alert to cocaine residue found on currency in general circulation. Rather, Sutter alerts to a by-product of cocaine which does not linger on currency. We recently held that a sophisticated dog alert, where the dog reacts only to ephemeral by-products of narcotics and not to commonly circulated currency, is an important factor in determining probable cause. See United States v. $22,474 in U.S. Currency, 246 F.3d 1212, 1216 (9th Cir. 2001) (explaining that because of more sophisticated training a narcotics canine would not alert to money unless it had recently been in the proximity of cocaine). The evidence of Sutter's sophisticated training is undisputed, and therefore, Sutter's alert is relevant in determining probable cause. ...

United States v. $42,500 in U.S. Currency, 283 F.3d at 982-983. Here, Claimant relies on the two cases relied upon by claimant Hysell in the aforementioned excerpt. As explained above however, where a canine is trained not to alert to currency in general circulation, but instead the canine alerts only to the by product of illegal narcotics, that evidence is to be afforded greater weight in a determination of this kind.

It thus appears that Cody's training lends itself to a finding that Cody is in fact a "sophisticated" dog. Therefore, Cody's alert to the presence of illegal drugs on the currency found in Claimant's vehicle is strong evidence going to the determination of whether the Government had met its burden.

EFF: Radical Library/Publisher and Prison Support Group Settle Lawsuit with FBI and UC-Berkeley Police over Improper Raid
:

Berkeley, CA - Two radical groups have settled their lawsuits over an armed, over-broad police raid after the law enforcement agencies agreed to delete improperly seized computer data and pay $100,000 in damages and attorney's fees. Moreover, the University of California-Berkeley Police Department (UCBPD) acknowledged that at the time of the raid one of the groups qualified for federal protections designed to protect journalists, publishers, and other distributors of information from police searches, despite the police's persistent denial of that status throughout the lawsuit.