VoteKansas.org

Defendant was charged with internet stalking and identity theft for using a false name, and he raised a host of issues over the search warrants, all of which failed. The government did not violate curtilage by pulling into defendant’s driveway to view his house. The defendant lacks standing for the government’s viewing his neighbor’s wifi signal that defendant was accused of hacking. Defendant’s Franks issues are each an overstatement of the situation, and, even so, excluding what he complains of still leaves probable cause. “Most of the issues raised by the defendant are legitimate jury issues for the jury to consider in assessing whether or not the offender is guilty of the crime charged, but they do not meet the Franks standard for an evidentiary hearing on this warrant application.” None of the Franks challenges were material to the finding of probable cause. United States v. Sayer, 2012 U.S. Dist. LEXIS 82729 (D. Me. June 13, 2012).*

Moral here: Taking the court at face value, none of these Franks challenges were even close. Do you have the time to make a massive Franks challenge that's likely going to fail? Just because the client can pay enough fee to pursue it doesn't mean that you should. Put that time and energy into defending at trial. After all these years, my view of Franks has evolved into a rule of reason: Unless it just screams lie or negligent omission, you lose, so use it to attack the officer's credibility at trial, which is just what this court suggests, reading between the lines. But, even if it doesn't undermine the officer as an exaggeration, does it create a reasonable doubt?

Remember my Rule 1 of the Fourth Amendment: “There are no technicalities.” There used to be, but not anymore. Not in the last 20+ years.

The defense failed to show guest standing at the hearing, and the court is left with speculation on critical facts. United States v. Wix, 2012 U.S. Dist. LEXIS 81871 (W.D. Ky. June 13, 2012)*:

In the context of guests in a residence, the Sixth Circuit has broadly interpreted the Fourth Amendment's protections. Overnight guests staying in a residence's common area have standing to challenge a police intrusion and search. See United States v. Pollard, 215 F.3d 643, 647 (6th Cir. 2000) (privacy interest existed for occasional overnight guest who was allowed to stay in residence alone and kept personal belongs in closet). Non-overnight guests have also been permitted to challenge the search of personal items kept in a third-party's residence. United States v. Washington, 573 F.3d 279, 283 (6th Cir. 2009) (citing United States v. Waller, 426 F.3d 838, 844 (6th Cir. 2005)). Suffice it to say, the appeals court has "generously" interpreted the reach of the Fourth Amendment as it pertains to temporary residents of a dwelling. See id.

Nevertheless, this generosity does not arise without some measure of proof by a defendant. Whether an informal sleeping arrangement creates a reasonable expectation of privacy naturally begets a fact-dominated inquiry for a court. Criminal defendants hoping to establish Fourth Amendment standing offer a variety of evidence to show a reasonable expectation of privacy. Factors that courts have considered include how often the defendant stayed in the dwelling, e.g., United States v. Love, 70 F.3d 116, at *4 [published in full-text format at 1995 U.S. App. LEXIS 35493] (6th Cir. 1995) (table) (defendant did not have expectation of privacy in mother's house as he was not an overnight guest and had moved out six months before the search), whether the defendant maintained personal belongings in the residence, e.g., United States v. Robertson, 297 F. App'x 722, 726 (10th Cir. 2008) (defendant had no reasonable expectation of privacy when hotel room was not registered in his name and "no personal items indicating an overnight stay were present"), whether the defendant provided any sort of remuneration for the privilege of staying there, e.g., United States v. McRae, 156 F.3d 708, 711 (6th Cir. 1998) (no expectation of privacy where defendant was squatting in building and did not pay rent to the owners of the structure), or whether the defendant could come and go freely, e.g., United States v. Davis, 932 F.2d 752, 756-57 (9th Cir. 1991) (where defendant had key to apartment, could come and go freely, and stored items in an apartment, he had a reasonable expectation of privacy).

Too many questions exist to accurately measure Defendants' legitimate expectation of privacy in the mobile home. How often did Defendants spend the night in the mobile home and on the Property? The Court cannot possibly measure with any accuracy the subjective statement of Dozier that Wix and she stayed there "a lot." When was the last time Dozier and Wix were guests in the mobile home? Dozier admitted during her testimony that she did not spend the previous night in the trailer and the Court does not have additional information on the subject. Did Defendants have permission to stay there from the owner, Clifford Wix? It may be safe to assume so, but no direct evidence on this point was presented during either hearing. Were there any personal belongings of Defendants in the mobile home? Dozier did not offer any proof on this matter and Wix's silence is impossible to measure. Were Defendants providing Clifford Wix some sort of compensation to stay in the mobile home? Again, there is a deficiency in the record on this issue. Did Defendants have a key to mobile home and could they come and go without first obtaining permission from Clifford Wix? No relevant information was offered in this regard. The only verifiable information about which the Court can be sure is Defendants did not own the mobile home and they did not stay there the night before the police raided the Property. 1 HR, DN 41 p. 9-10.

Defendants undoubtedly possessed some connection to the mobile home. However, "the act of staying overnight at a third party residence does not automatically entitle a defendant to the protections of the Fourth Amendment." United States v. Hunt, No. 2:07-CR-284-WKW, 2008 U.S. Dist. LEXIS 111768, 2008 WL 4080770, at *3 (M.D. Ala. Sept. 3, 2008). The evidence Defendants submitted to the Court falls short of establishing an expectation of privacy in the mobile home. For the Court to find otherwise would be to apply guesswork and conjecture to the present record. Accordingly, Defendants' motion to suppress is improper.

Standing is the defense burden, and they simply failed to adequately pursue it, maybe believing labeling the defendants as "guests" was enough to carry them through the hearing, but it's not.

In a mail fraud for violations of the Clean Air Act, the search warrant for the business’s records was issued with probable cause: “Hailey's inconsistent statements and inability to identify or locate records of the sources of his vegetable oil donors, or the buyer of his equipment, and his provision of a photograph of another facility, ECF No. 62-1, showed that Hailey had probably issued RINs without producing bio-diesel, and fraudulently caused wire transfers. There was ‘a fair probability that contraband or evidence of a crime [would] be found’ in Hailey’s business records and in his home, office, and production facility.” United States v. Hailey, 2012 U.S. Dist. LEXIS 82053 (D. Md. June 13, 2012).* [If lack of probable cause is your only issue, you’re almost certainly going to lose. The threshold is just not that high, and a judicial finding of PC is almost unassailable.]

Defense counsel was hardly ineffective for not challenge the search and seizure in this case. The place searched was in “open fields,” a ditch near a road where drugs were hidden across the street. Besides, it’s almost a certainty he lacked standing to challenge the search at all. Nunn v. United States, 2012 U.S. Dist. LEXIS 81955 (M.D. Ala. May 29, 2012).*

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The District of Kansas puts the burden on the defendant to prove that the inventory of his car was unlawful, when it was allegedly only parked, after his stop, more than 12" from the curb. No mention that the officer could not have pulled it over closer and left it. United States v. Calvin, 2012 U.S. Dist. LEXIS 83037 (D. Kan. June 15, 2012).* Shifting the burden:

The burden is on defendant to prove that the challenged search was illegal under the Fourth Amendment. United States v. Cooper, 654 F.3d 1104, 1124 (10th Cir. 2011). ...

... Further, defendant conceded that department towing policy required Officer Eckel to complete a full inventory search of the vehicle, including the glove compartment. Defendant has not provided any basis to suppress the evidence that resulted from the inventory search of his vehicle.

Maybe the defendant should have lost on the merits, but he at least could have had the correct burden of proof applied. If the court dealt with the merits appropriately, the analysis would be completely different. Really lame.

This was decided by a USDJ, not a Magistrate Judge, and it's just completely wrong in its approach.

The NY Times complains about Title IX: She added: “There’s a whole host of African-American women who have benefited greatly from Title IX. We’ve gotten college scholarships and college degrees; we’ve made Olympic teams. Track and field is an area where a large number of African-American women receive college scholarships. “But in the grand scheme of things, Caucasian girls have benefited Rogerhttp://www.blogger.com/profile/03474078324293158376noreply@blogger.com0

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