VoteKansas.org

SPEARFISH CANYON, S.D. | Joe Shark's American Indian heritage taught him to be leery of the timber industry on the South Dakota reservation where he grows apples and gooseberries, but a threat from an enemy no larger than a fingernail impelled him to grab a saw and join the loggers.

...

ANALYSIS/OPINION:

Thales of Miletus, considered one of the first philosophers in history, said, perhaps jokingly, that hope is the most abundant thing in the world, because even when you have absolutely nothing, hey, at least you still have hope.

We're not seeing a whole lot of hope coming out of ...

In "Uncontrolled," Jim Manzi asks whether the principles and methods used in scientific experiments be applied to business and social policy. Trevor Butterworth reviews.

Infowars.com | Alex Jones will cover this chilling issue during the Sunday show.

INDIANAPOLIS (AP) — A 14-year-old girl found covered in blood faces a preliminary murder charge in her 4-year-old cousin's stabbing death, Indianapolis police said Sunday.

Police spokesman Kendale Adams said the girl was arrested after being questioned by officers. She was being held on a preliminary murder charge at the ...

Kurt Nimmo | Corporate media attempts to portray New Democracy and other parties as nationalist and racist.

Baltimore Sun editorial: DNA testing: Why not just trash the Fourth Amendment?

I found Dan Rodricks' commentary regarding DNA testing and the recent Maryland Court of Appeals ruling ("DNA: Why wait for an arrest?" May 3) to be quite interesting. He states at the end that he can't think of a good argument against his position that we should all give DNA samples to the authorities whether we have been accused of a crime or not. Well, Dan, I've also thought about how useful having a large repository of DNA can be. Unsolved crime and a city mayor on your back? No problem! We'll just take some DNA from our bank, plant it at the scene, and say that it was left there.

DNA evidence would surely trump any factual alibi, so no problem, case closed, someone (whether guilty or not) now behind bars, and the mayor's happy. Don't believe it could happen? Think again. Planting "evidence" is not unheard of.

. . .

Of course, we could simply scrap the whole Fourth Amendment and allow the government to enter our homes and search them whenever they felt like it, all in the name of proving our innocence. If we have nothing to hide, why should we not give them free reign and not require things like probable cause and warrants?

LOUISVILLE, Ky. (AP) — The discovery of a man's body Sunday in the stable area of Churchill Downs was being investigated as a homicide, but there is no connection to the racetrack or the Kentucky Derby, police said.

"At this point we don't have anything pointing to the fact that ...

Becky Akers | And there’s also Rand Paul’s petition to sign for “End[ing] the TSA.”

Andrew Steele | Obama claims he is ending the war in Afghanistan and not trying to start new ones in Syria, Iran, and Africa.

HARDEMAN COUNTY, Tenn. (AP) — Authorities are working to identify two people found dead at a home associated with a man suspected in the abduction of a woman and her three young daughters.

The bodies were found in Mississippi, though FBI spokesman Joel Siskovic would not say if they were ...

Officer following a DUI suspect home watched defendant pull into his garage. As the garage door was closing, she stuck her foot in to stop the door from closing. This was an unreasonable entry of the home without a warrant or exigent circumstances. The police had probable cause, but all the state's claimed exigent circumstances were considered and rejected. State v. Dugan, 2012 Kan. App. LEXIS 49 (May 4, 2012):

he United States Constitution draws a line at the threshold of a person's home over which law enforcement officers may not step without a warrant from a judge or exigent circumstances so compelling as to override that fundamental right. The Fourth Amendment's prohibition against unreasonable searches of dwellings or seizures of their occupants reflects a tenet the founders considered essential to the ordered liberty they fought a war to achieve and then cherished as this nation matured. That prohibition is no less significant nearly two and a half centuries into this country's maturation. The comparatively mundane facts of this case belie the magnitude of the constitutional right and the significance of the constitutional issue—when government agents may claim exigency to override Fourth Amendment protections of citizens in their own homes.

I. Factual and Procedural History

The Douglas County District Court denied a motion to suppress evidence a Lawrence police officer obtained after she stuck her foot in a garage door to keep it from closing and then entered a private home to search and seize Defendant Troy E. Dugan based on a reported misdemeanor traffic offense. The district court found the officer's actions did not offend the Fourth Amendment to the United States Constitution. Although the question might be closer than some, we do not share the district court's tolerance for the governmental breach of a private residence and, therefore, reverse that ruling with directions the motion be granted.

. . .

The courts have generally recognized four types of exigent circumstances that may obviate the warrant requirement: (1) preventing harm to law enforcement officers or others by capturing a dangerous suspect, see Warden v. Hayden, 387 U.S. 294, 298-99, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967); (2) securing evidence in the face of its imminent loss, see King, 131 S. Ct. at 1853-54; (3) hot pursuit of a fleeing suspect, see United States v. Santana, 427 U.S. 38, 42-43, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976) ; and (4) thwarting escape of a suspect, see Welsh, 466 U.S. at 754. Minnesota v. Olson, 495 U.S. 91, 100, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990) (noting those exigent circumstances); United States v. Struckman, 603 F.3d 731, 743 (9th Cir. 2010) (cataloging exigent circumstances). Those categories of exigency are not exclusive, and the facts of a given case might support some different imperative rendering a search or seizure constitutionally reasonable under the Fourth Amendment without a warrant. Struckman, 603 F.3d 743 ("no immutable list of exigent circumstances"); United States v. Plavcak, 411 F.3d 655, 663 (6th Cir. 2005). Likewise, the factual scenario in a given case might implicate multiple exigencies, suggesting a greater likelihood of reasonableness. See Santana, 427 U.S. at 43 (While hot pursuit "was sufficient to justify the warrantless entry into Santana's house," the narcotics officers also had "a realistic expectation" that Santana would try to dispose of illegal drugs on the premises.).

The courts have recognized an allied exception when a warrantless entry reasonably appears necessary to assist persons who are seriously injured or face imminent injury. Brigham City, 547 U.S. at 403 (recognizing emergency assistance doctrine as warrant exception); State v. Geraghty, 38 Kan. App. 2d 114, 123-24, 163 P.3d 350 (2007). The emergency assistance exception to the warrant requirement stands on a somewhat different legal footing than the "exigent circumstances." The exigent circumstances all entail conventional law enforcement functions related to taking individuals into custody or securing evidence. As stated, they require the officers have probable cause. The emergency assistance exception neither implicates that kind of law enforcement action nor requires probable cause. Brigham City, 547 U.S. at 403; Geraghty, 38 Kan. App. 2d at 122. The emergency assistance exception applies when a government agent enters a dwelling or other private place for the purpose of rendering emergency aid to a person in serious peril. The agent must have a reasonable factual basis to believe an emergency threatening life or property is imminent or ongoing and to believe the place entered is associated with that threat. The agent may not use the emergency as a subterfuge to effect a search for evidence or a seizure of a criminal suspect. 38 Kan. App. 2d at 123-24. This case does not implicate the emergency assistance doctrine.

III. State's Claimed Exigencies Insufficient

In this case, the State argues hot pursuit and preservation of evidence justified entering Dugan's home without first getting a warrant. We consider each of those bases in turn and find insufficient grounds to support a constitutional entry, a seizure of Dugan, or a search of him or the premises without a warrant. The United States Supreme Court has noted "the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries." Welch, 466 U.S. at 750.

The state did not prove the standardized policy for an inventory, so it fails in this case. The state does not have to rely on a statute, and policy is good enough. Although case law has not indicated the policy needs to be admitted into evidence, others have said that it is relevant. Berry v. State, 2012 Ind. App. LEXIS 216 (May 3, 2012). The court almost, but doesn’t quite, hold that the policy must be admitted. Considering the outcome, that is a logical conclusion:

Despite characterizing Officer Sherrell's testimony as describing the "primary operating procedure prior to towing a vehicle," the record lacks any evidence of Indianapolis Metropolitan Police Department policy on impoundment. (Appellee's Br. p. 4). Thus, we cannot say whether Officer Sherrell's discretion to impound Berry's vehicle was in keeping with such policy. Furthermore, although the State argues that Berry has cited no case law for the proposition that a written law enforcement policy must be introduced into evidence to justify impoundment, we note that other cases have found formal policies relevant in justifying impoundment. See Peete v. State, 678 N.E.2d 415, 420 (Ind. Ct. App. 1997), trans. denied (Indianapolis Police Department policy on impoundment). Consequently, we conclude that the State failed to prove that an exception to the warrant requirement existed at the time of the inventory search of Berry's car.

The smell of raw marijuana coming from defendant’s person, his admission that he smoked earlier, and the small amount in the car not accounting for the smell, a search of the passenger compartment and trunk was justified. State v. Fogel, 2012 Ohio 1960, 2012 Ohio App. LEXIS 1726 (5th Dist. April 19, 2012).*

Defendant was arrested walking out of a building where there was a marijuana grow on the second floor, for which the officers had a search warrant. He lived on the first floor. He said he signed a consent as acquiescence to the officer’s claim of authority. He is entitled to a hearing on the motion because the only document tendered was the criminal complaint generated post-arrest. United States v. Morillo, 2012 U.S. Dist. LEXIS 62590 (S.D. N.Y. May 2, 2012).*

There was probable cause to arrest the defendant for soliciting sex, so the search incident to arrest that produced a syringe was valid. State v. Cavalier, 2012 Ohio 1976, 2012 Ohio App. LEXIS 1738 (2d Dist. May 4, 2012).*

Defendant consented to a search of his computer for evidence of voyeurism. His cell phone was discovered to be an instrumentality of the crime for some of the photographs, so it was properly seized. State v. Dennison, 2012 Ohio 1988, 2012 Ohio App. LEXIS 1744 (6th Dist. May 4, 2012).*

In a search warrant for drugs and “any and all other items related to the purchase, manufacture or sale of illegal drugs,” the police were permitted to seize, in addition to drugs: “(1) 2 flat screen TVs, (2) a camera, (3) a snow blower, (4) a stereo, (5) a dvd player, (6) a refrigerator, (7) an electric range, (8) a washer and dryer, (9) a receiver, (10) a stun gun, and (11) a bicycle.” Considering defendant’s comparatively lavish lifestyle while on unemployment and the seizure of $42,000 in cash from his house, there was justification for the seizure based on the officer’s reasonable belief it was all bought with drug proceeds. State v. Kreuz, 2012 Ohio 1990, 2012 Ohio App. LEXIS 1747 (6th Dist. May 4, 2012):

Detective Jones acknowledged that none of the above items were listed in the search warrant. He testified, however, that based on what he knew of appellant's financial situation, the above high end items could only have been purchased from proceeds appellant received through drug trafficking. Detective Jones cited appellant's properly subpoenaed bank and tax records which showed that appellant was unemployed and receiving weekly unemployment benefits in the approximate amount of $250 a week. This appeared to be appellant's only income. However, a large amount of cash, $42,799, was found in the home. Appellant was also making a mortgage payment of approximately $1,000 a month. Receipts found for some of the items listed above showed that appellant paid for those items with either cash or gift cards. After relaying his impressions to the Wood County prosecutor, he was advised to seize the above listed items.

SAN FRANCISCO (AP) — Two Americans detained and accused of spying after hiking near the Iraq-Iran border three years ago will marry Saturday in the San Francisco Bay area.

A private wedding ceremony for Shane Bauer and Sarah Shourd was set for 4 p.m. at an undisclosed location, said San ...

President Barack Obama used the first official rally of his re-election bid to highlight the accomplishments made during his three and a half years in the White House, and to make a case for a second term in office.

Greg Palast at Chicago GreenFestival this Sunday - Invitation Greg wants to thank you for your support with a special gift. He will be the featured speaker this Sunday and would love to meet you in person and say hi. We have arranged for 20 free guest spots for our supporters. If you would like one or two complimentary tickets you must reply to this note before Sunday. Additional tickets can be purchased at the door. Greg would love to meet with you at the book signing station after his presentation. The presentation will be: Billionaire Ballot Bandits: The Theft of 2012 Greg tells weird, hilarious and sick stories of the billionaires who are bankrolling the GOP; with hot new info on the Koch Brothers as well as the filthy rich you've never heard of ––from his new "kick ass" [Nomi Prins] book Vultures' Picnic. When and Where: Sunday, May 6, 2012 1 pm Main Stage Navy Pier (Hall A) located at 600 East Grand Avenue Chicago Click here for more info about the Chicago GreenFestival Here's what Greg has been up to recently: - BP Cover-up 'They Knew.' - Part 1 - BP Cover-up: Bribery, George Bush and WikiLeaks - Part 2 Best wishes, The Palast Team

If you're in Chicago this weekend - please stop by at the Main Stage at the Navy Pier for Greenfest

I'll be the featured speaker this Sunday and would love to meet you in person and say hi.

I've arranged for 10 free guest spots for our supporters (first come first serve).

If you would like one or two complimentary tickets please send an e-mail to palastreport[at]gmail.com before Sunday 10.

Additional tickets can be purchased at the door or online for $10.

I'd love to meet with you at the book signing station after my speech.

The presentation will be:

Billionaire Ballot Bandits: The Theft of 2012

Weird, hilarious and sick stories of the billionaires who are bankrolling the GOP; with hot new info on the Koch Brothers as well as the filthy rich you've never heard of ––from my new "kick ass" [Nomi Prins] book Vultures' Picnic.

When and Where:

Sunday, May 6, 2012

1 pm

Main Stage

Navy Pier (Hall A)

located at 600 East Grand Avenue

Chicago

Click here for more info about the Chicago GreenFestival

If you haven't seen this already... here's what I've been up to recently:

- BP Cover-up 'They Knew.' - Part 1

- BP Cover-up: Bribery, George Bush and WikiLeaks - Part 2

ShareThis

Defendant can’t relitigate his motion to suppress in a 2255 which was decided on the merits on appeal without an IAC claim. United States v. Reed, 2012 U.S. Dist. LEXIS 61806 (N.D. Fla. March 8, 2012).*

The intrusion by detention was minimal here and led to consent, and defense counsel was not ineffective for not pursuing that ground because it would lose on the merits. Woodson v. State, 2012 Ind. App. LEXIS 214 (May 2, 2012).*

Officers who entered after no answer to knocking at a door of the location of a disturbance call were entitled to qualified immunity. This was a reasonable response to a perceived need. They were inside two minutes. Burke v. Sullivan, 2012 U.S. App. LEXIS 9042 (8th Cir. May 3, 2012).*

It isn’t required that the affiant actually viewed child pornography to get a search warrant, at least as long as somebody did and reported it to the affiant. It is not required to attach the photographs to the search warrant application. Even if some were computer generated images, there was still probable cause. United States v. Ranke, 2012 U.S. App. LEXIS 9118, 2012 FED App. 0471N (6th Cir. May 3, 2012)*:

Next, Defendant argues that the affidavit was insufficiently detailed. He points out that the affidavit does not indicate how Detective Pitts determined that the images were of a minor and that Detective Pitts' description of a boy "apparently masturbating" suggests that he never actually viewed the images personally. Defendant claims these deficiencies were compounded when Detective Pitts failed to attach the images to the affidavit for the state court judge's independent review.

The implication, to the extent one exists, that Detective Pitts never viewed the images personally, as well as his failure to attach the photographs to the search warrant affidavit, are both factors that should have played into the state court judge's probable cause analysis. However, neither precluded the judge from issuing the search warrant. First, an officer is entitled to rely on information supplied by other officers or agencies for the purposes of a search warrant affidavit, provided that the information and its sources are accurately described for the reviewing judge's independent evaluation. See United States v. Yusuf, 461 F.3d 374, 385, 48 V.I. 980 (3d Cir. 2006); United States v. Jenkins, 525 F.2d 819, 823 (6th Cir. 1975) (per curiam). Detective Pitts fulfilled that requirement when he provided an accurate description of the circumstances under which he "received information from federal authorities" regarding the greeting card, the accompanying photographs, and the incriminating evidence discovered in Brown's cell. Likewise, Detective Pitts' failure to attach the photographs themselves did not prevent the search warrant from being issued. A magistrate judge need not view all the evidence personally to make its decision, and the probable cause stage only requires an affidavit to show the "'probability or substantial chance of' possession of images of actual children; 'an actual showing' that the images depicted real children" is not required. Lapsins, 570 F.3d at 765 (citing Gates, 462 U.S. at 243 n.13).