VoteKansas.org

The person answering the door at a motel room said he’d been staying there two days. That was apparent authority for consent to the police to enter. Even if the actual fact was he stayed there one day, the officer still would have seen apparent authority, and that was not IAC for not developing that fact. United States v. Livingston, 2012 U.S. Dist. LEXIS 25558 (W.D. Okla. February 28, 2012).

Defendant concedes that the marijuana patch in this case was in open fields, but he contends the police entered his curtilage to get a photograph of it. Even if true, that would not have tainted the warrant here when it was excised from the lawfully obtained information. United States v. Simmons, 2012 U.S. Dist. LEXIS 25615 (D. Me. February 28, 2012).*

Regardless of whether the officer violated Miranda in defendant’s equivocal statement about marijuana in his car in a national park, the officer already had probable cause for a search of the car. United States v. Lehman, 2012 U.S. Dist. LEXIS 25754 (E.D. Cal. February 28, 2012).*

Defense counsel did, in fact, challenge the search so no IAC for failing to do so. United States v. Davis, 2012 U.S. Dist. LEXIS 24939 (D. Kan. February 28, 2012).*

The principals in a business subjected to a search warrant had “standing” (which the court notes was a word rejected by SCOTUS). Storing records there is still an expectation of privacy. A second place was a residence owned by the corporation that they kept business stuff in, and they came and went at will. They had “standing” there, too. United States v. Ferguson, 2012 U.S. Dist. LEXIS 24929 (E.D. Mich. February 27, 2012):

The government argues that the Ferguson defendants' bare assertion that they were permitted to store personal belongings at the 500 Griswold offices is insufficient to support a reasonable expectation of privacy. However, as discussed below, the rule in United States v. Jeffers, 342 U.S. 48, 52 (1951), indicates that if defendant Ferguson Enterprises were permitted to store business records in the search locations, they should be permitted to challenge the government's seizure of those records. In addition, in United States v. Waller, 426 F.3d 838 (6th Cir. 2005), the Sixth Circuit held that the owner of an apartment did not have authority to consent to a search of the defendant's luggage that was stored in the apartment because there was an understanding between the owner and the defendant that the luggage was private. Id. at 845-46. This holding implies that a defendant has a reasonable expectation of privacy in goods stored by permission at a third party's residence.

The Bible-Belt is Unbuckled 11-10-11

Mass immigration and amnesty will not save Social Security 11-10-11

The American Redoubt 3-31-11

Dead Men Walking, 3-01-12

Why are we still in Afghanistan? 3-1-12

The Fed and America's Financial Reckoning Day 7-21-11

The officer said he was going to patdown the defendant for a weapon after defendant said he had a gun on him which was a violation of Illinois law. It was valid as a search incident, not a patdown. United States v. Lyons, 2012 U.S. Dist. LEXIS 25408 (C.D. Ill. February 28, 2012).*

Plaintiff’s case was not attempting to invalidate a conviction in another state case, so there was no Heck bar. Plaintiff also barely satisfies a substantive due process claim. Plaintiff’s Fourth Amendment claim doesn’t survive. Andrews v. Bureau of Codes Admin. Office, 2012 U.S. Dist. LEXIS 23835 (M.D. Pa. February 24, 2012).*

Pro se motion to suppress that states no grounds is denied. United States v. Goodrich, 2012 U.S. Dist. LEXIS 25337 (W.D. Mo. February 10, 2012).*

2255 petitioner’s claim that defense counsel was ineffective for not moving to suppress his stop is wrong; defense counsel did. United States v. Davis, 2012 U.S. Dist. LEXIS 25314 (D. Kan. February 28, 2012).*

Use the comments of this post during this month if you have things you would like to bring to people’s attention and are not sure where else to post them. I’ll make a new Bulletin Board each month for free posting.

Have at it, communicate and keep up the good fight!

Cheers,

-WalterJ

Remembering The Alamo, 3-1-12

The King's Chapel, And The King's Court 11-10-11

Forget Congress - States Must Boot Federal Dept. of Education, 12-8-10

The Power Elite and the Secret Nazi Plan, Part 17, 8-9-10

The Power Elite and the Secret Nazi Plan, Part 13, 4-19-10

You Want THEM To Control Healthcare? 8-17-10

They're stealing it again.

In 2000, my team uncovered how Katherine Harris illegally purged thousands of African-Americans from Florida's voter rolls.

In 2004, for BBC, we uncovered the Karl Rove GOP "caging scheme" that swiped that election.

In 2008, we uncovered, for Rolling Stone and BBC, with co-investigator Bobby Kennedy, the GOP attack on voters who lost their homes to foreclosure.

This year, there's a new danger: Behind the election games are billionaires Super-PAC-ing the ballot box.

But we have something they fear: deep file cabinets filled with confidential information on the billionaires behind Restore Our Future and other PAC-rats.

(We broadcast the first investigative report of the Koch Brothers in 1996. And they're not the worst. We MUST get this information out and soon.)

Now, our team is prepared to dig in again, to write about and to film the scams against our civil rights -- and this time, we have TV networks and major print outlets ready to take our reports.

BUT, they can't finance the basic detective work that gives our reports their powerful weight of undeniable facts.

For that, we count on you.

Please, right now, make a tax-deductible donation to the Palast Investigative Fund for our Billionaires and Ballots investigation.
If you join up with us to help fund the completion of our investigation, for your tax-deductible donation, we'll be happy to send you, in thanks:

- $150 - The Billionaires & Ballots Pack: includes a signed copy of Palast's latest, highly acclaimed book, Vultures' Picnic, the Election Files DVD and 5 copies of the Steal Back Your Vote comic plus the new Elections Games film when released. - $75 - Get two DVDs: Election Files and Palast Investigates: from 8-Mile to the Amazon (which includes the 2008 election shenanigans), both signed by Palast - $25 - Get 5 print copies of Steal Back Your Vote: The Graphic Election Guide (one SIGNED by Greg Palast).

Would you consider becoming an Associate Producer (minimum donation $500) or an Executive Producer (minimum donation $1000) of our film on the election games of 2012?

Producers will get a film credit, a dozen signed copies of the new Election Games: Billionaires and Ballots DVD and companion book when released in July. And copies of the book, film, and comic book election guides to the activist or civil rights group of your choice (we have suggestions).

We have lots of film from all over the USA already in the can. We have the files on the billionaire boys club. What we need are the funds to complete the work to get it on the air, into the hands of policy-makers, voters, the voting rights movement and waiting media outlets.

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Greg Palast is the author of Vultures' Picnic: In Pursuit of Petroleum Pigs, Power Pirates and High-Finance Carnivores, released in the US and Canada by Penguin.

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

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OFAC violated due process and the Fourth Amendment in its seizure of an Islamic foundation’s assets under an Executive Order without a warrant claiming the special needs exception, held not to apply. Al Haramain Islamic Found. v. United States Dep't of the Treasury, 2012 U.S. App. LEXIS 4025 (9th Cir. February 27, 2012):

AHIF-Oregon argues that OFAC's failure to obtain a warrant supported by probable cause violated its Fourth Amendment right to be free of unreasonable seizures. "In the ordinary case, the [Supreme] Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized." United States v. Place, 462 U.S. 696, 701 (1983). In most circumstances, searches and seizures conducted without a warrant are "per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). Here, OFAC argues that its seizure falls within one of those well-delineated exceptions to the warrant requirement: the "special needs" exception.

. . .

In any event, OFAC has not given us any reason why it could not have obtained a warrant here. We hold that the "special needs" exception does not apply to the seizure of AHIF-Oregon's assets by OFAC under EO 13,224. See Kind-Hearts II, 647 F. Supp. 2d at 879-82 (holding that the "special needs" exception did not apply to very similar facts).

. . .

Most of our reasoning above, concerning the special needs exception, applies equally here. The cases in which the Court has found warrantless searches to be reasonable all involve very special circumstances and greatly diminished privacy interests—a point repeatedly emphasized by the Court. For instance, in Flores-Montano, 541 U.S. at 154, the Court held that a person's privacy interest in the interior of an automobile's gas tank is not sufficient to overcome the government's interest in preventing drug smuggling at the border. Similarly, in Samson and Knights, the Court explained at length that probationers and parolees, who are subject to a clearly disclosed search condition of parole or probation, have greatly diminished expectations of privacy such that warrantless searches survived Fourth Amendment scrutiny. Samson, 547 U.S. at 850-52; Knights, 534 U.S. at 119-21. Here, however, as we have explained, the reach of OFAC's authority extends to all persons and entities, without limitation. Nothing diminishes the privacy expectation of persons and entities potentially subject to seizure by OFAC because that class includes everyone.

We reiterate that OFAC's interest in preventing terrorism is extremely high. But we cannot accept OFAC's contention that its blocking orders are per se reasonable in all circumstances, solely by virtue of that vital mission. As we noted above, an exception to the warrant requirement would permit OFAC to seize assets without obtaining a warrant in some situations. But, because there is no diminished expectation of privacy and because nothing prevents OFAC from obtaining a warrant in the normal course, we reject OFAC's argument that its blocking orders are per se reasonable under the "general reasonableness" approach.

In summary, no exception applies to OFAC's warrantless seizure of AHIF-Oregon's assets and the seizure is not justified under a "general reasonableness" test. We therefore hold that OFAC violated AHIF-Oregon's Fourth Amendment right to be free of unreasonable seizures. Because the district court did not reach the issue of remedy and because the parties did not brief that issue before us, we remand to the district court to determine, in the first instance, what remedy, if any, is available.

When the state relies on the fellow officer rule, the fellow officer has to testify to establish the cause for a stop or probable cause. State v. Bowers, 2012 Fla. LEXIS 429 (February 23, 2012), aff'g Bowers v. State, 23 So. 3d 767 (Fla. App. 2d Dist. 2009), disapproving Ferrer v. State, 785 So. 2d 709 (Fla. 4th DCA 2001):

As this Court stressed in Peterson, another "unknowing" officer cannot rely on the fellow officer rule simply because the officer finds out relevant information possessed by another officer "after the fact." Peterson, 739 So. 2d at 568. Here, Officer Tracy learned of the information after he became involved in the investigation, which occurred subsequent to the challenged stop. Thus, Officer Tracy cannot testify as to information that Officer Suskovich told him as a basis for determining the validity of the initial stop.

Our ruling is consistent with our precedent and the purpose of the fellow officer rule. The fellow officer rule has been applied by this Court only to instances where the officer is testifying as to the details of a search or seizure in which the officer was a direct participant. If an officer relies on a chain of evidence to formulate his or her belief as to the existence of probable cause for a search or seizure, the rule excuses the officer from possessing personal knowledge of each link in the chain of evidence if the collective knowledge of all the officers involved supports a finding of probable cause. In short, the rule allows an officer to testify with regard to a previous link in the chain for the purpose of justifying his or her own conduct.

This Court has never applied the fellow officer rule, as the Fourth District did in Ferrer, to allow an officer who had no firsthand knowledge of the reasons for the stop and was not yet involved in the investigation to testify regarding what the initial officer told him in order to establish the validity of the initial stop. To do so would be inconsistent with the rationale and holding articulated in Peterson. Moreover, we reject the State's argument that Lara v. State, 464 So. 2d 1173, 1177 (Fla. 1985), set forth a broad rule that hearsay is always admissible in a motion to suppress hearing.

Defendant in his § 2255 failed to adequately support his claim that his defense lawyer failed to properly advise him of the quality of his Fourth Amendment claim that was waived in his guilty plea. United States v. Ferguson, 2012 U.S. App. LEXIS 3880, 2012 FED App. 0055P (6th Cir. February 27, 2012):

Ferguson argues that the failure of his trial counsel to advise him about the viability of his Fourth Amendment claim when pleading guilty and to preserve the right to appeal the denial of the suppression motion constitutes obviously deficient performance that is apparent on the record. Ferguson bases this argument on his assertion that his suppression challenge is meritorious and dispositive. In short, he argues that the failure of his trial counsel to appreciate the strength of Ferguson's position on the suppression issue, to preserve it for appeal, and to advise Ferguson of the possibility of entering a conditional plea, constitutes clearly deficient performance resulting in prejudice because in the absence of such alleged errors there is a reasonable probability that Ferguson would not have entered an unconditional guilty plea.

We find the record insufficiently developed to support Ferguson's claim of ineffective assistance of counsel. The record is devoid of information regarding the discussions Ferguson had with his counsel regarding the plea agreement. There is also scant information in the record to illuminate whether it might have been sound strategy for defense counsel to allow Ferguson to enter an unconditional plea. What the record does indicate is that defense counsel and the government negotiated a plea agreement that significantly reduced Ferguson's potential sentencing exposure. The maximum sentence for violating 18 U.S.C. § 2252A(a)(5)(B) is ten years' imprisonment with a possible lifetime term of supervised release. Pursuant to the plea agreement, the Sentencing Guidelines range recommended to the district court based on the stipulated Guideline computations for an adjusted offense level of 17 and criminal history category of I was 24 to 30 months. This range was substantially lower than the recommended Guideline range calculated in the Presentence Investigation Report ("PSR"), which would have exposed Ferguson to a potential sentence of 46 to 57 months. Whether this favorable plea agreement would not have been offered to Ferguson if he had entered a conditional plea is unknown. In light of the limited record on direct appeal, we have "no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive or was taken because the counsel's alternatives were even worse." Massaro, 538 U.S. at 505. Nor can we "ascertain whether the alleged error was prejudicial" without further factual development. Id. Thus, in light of the limited record regarding "the preparation of [Ferguson's] trial counsel or his communications with [Ferguson] about this ... issue," it is more appropriately raised in the first instance in post-conviction proceedings. See United States v. Bradley, 400 F.3d 459, 461-62 (6th Cir. 2005).