VoteKansas.org aggregator

FourthAmendment.com - News: WV: Stop for no passenger side mirror without legal basis

Tue, 19 Jun 2012 08:42:18 -0600

West Virginia law does not require two side mirrors, so the fact defendant’s car was missing the passenger side mirror was not cause for a stop, and it didn’t render the vehicle unsafe. Similar is State v. Reid, 722 S.E.2d 364 (Ga. App. 2012), where the vehicle had no side mirrors but Georgia law didn’t require them. State v. Dunbar, 2012 W. Va. LEXIS 307 (June 13, 2012).*

The USMJ erred in concluding that a U.S. MLAT request of the Netherlands to locate the defendant for an arrest led to a joint venture. On his own, the Netherlands police officer requested a wiretap warrant to locate defendant’s telephone. The U.S. had nothing to do with the wiretap request, so the product of that was not a joint venture. The fact the U.S. requested copies of tapes and transcripts that weren’t forwarded until after he was wasn’t important. United States v. Omar, 2012 U.S. Dist. LEXIS 83665 (D. Minn. June 18, 2012).

FourthAmendment.com - News: E.D.Pa.: Search warrant's use of “including but not limited to” not per se a general search; it has to be read in context

Tue, 19 Jun 2012 08:13:54 -0600

Motion to suppress filed twelve days before trial and a month after the motions cutoff was clearly untimely and there is no good cause tendered for the delay. Nevertheless, the court will go to the merits [meaning: the court can rule against the defense anyway, so why leave this 2255 issue looming?]. “[I]ncluding but not limited to” in a search warrant with a specific list is not an authorization for a general search because it has to be read in context of what it connects to. Even so, the good faith exception applies. United States v. Staton, 2012 U.S. Dist. LEXIS 83933 (E.D. Pa. June 15, 2012):

FourthAmendment.com - News: Racism.org: "Racial Profiling as a Means of Thwarting the Alleged Latino Security Threat"

Mon, 18 Jun 2012 12:28:58 -0600

Racism.org: Racial Profiling as a Means of Thwarting the Alleged Latino Security Threat - III. Fourth Amendment Constitutional Foundations for Racial Profiling by Lupe S. Salinas & Fernando Colon-Navarro:

III. Fourth Amendment Constitutional Foundations for Racial Profiling

A. Search and Seizure Jurisprudence

Unfortunately and surprisingly, the bases for America's racial and ethnic profiling problems can be traced to rulings issued by our Supreme Court. These rulings essentially and collectively state that an officer has a right to make a temporary detention based on reasonable suspicion or a traffic stop even if that stop was primarily for the basis of checking out possible criminal behavior for which the officer lacked reasonable suspicion or probable cause.

We begin first, however, with Terry v. Ohio, the landmark opinion, which created the reasonable suspicion exception to the probable cause standard of the Fourth Amendment. ...
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FourthAmendment.com - News: D.Minn.: Matching description of bank robber, wrapped money sticking out of pocket, GPS locator on him was RS

Mon, 18 Jun 2012 06:19:33 -0600

Matching the description of a bank robber just given by the tellers, wrapped and loose cash sticking out of pockets, and GPS transmitter located in the money locating him was reasonable suspicion. United States v. Johnson, 2012 U.S. Dist. LEXIS 83417 (D. Minn. May 23, 2012).* [Come on. If that's not, what is? In fact, this looks like probable cause to me.]

Defense counsel was not ineffective for conceding defendant had no standing in the house of another that he was briefly at before the search. There was nothing that supported his standing as a guest. State v. Brown, 2012 Ohio 2672, 2012 Ohio App. LEXIS 2355 (5th Dist. June 13, 2012).*

FourthAmendment.com - News: W.D.Tex.: Fingerprint evidence as a result of an illegal seizure in an illegal re-entry case not suppressed

Mon, 18 Jun 2012 05:50:38 -0600

Fingerprint evidence as a result of an illegal seizure in an illegal re-entry case would not be suppressed. United States v. Lopez, 2012 U.S. Dist. LEXIS 83426 (W.D. Tex. June 15, 2012):

No such bright line exists in published case law explicitly preventing the suppression of fingerprint evidence gathered as part of an illegal seizure and arrest in the illegal re-entry context. However, in Roque-Villanueva, the Fifth Circuit held that, "[e]ven if the [d]efendant was illegally stopped, neither his identity nor his INS file [is] suppressible." 175 F.3d 345, 346 (5th Cir. 1999) (emphasis added); Scroggins, 599 F.3d at 450 (quoting the holding in Roque-Villanueva). In a number of unpublished Fifth Circuit opinions, panels have acknowledged that "identity" includes fingerprint evidence by, for example, concluding that "even if there was a Fourth Amendment violation, this [circuit] has held that evidence of identity, such as one's fingerprints and A-file, is not suppressible." United States v. Cervantes-Malagon, 2012 WL 13769, at *1 (5th Cir. Jan. 4, 2012) ...
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FourthAmendment.com - News: TN: Stop of a vehicle after a report of a suspicious man while serial rapist was operating was with RS

Sun, 17 Jun 2012 22:20:12 -0600

Police were investigating a serial rapist who struck on rainy nights. An officer saw a Jeep parked in a likely neighborhood because of a report of a man in a ski mask, and he felt the hood which was warm. He noted the license number finding it didn't stay in the neighborhood, looked through the windows, and drove off. An hour later he saw the vehicle moving and stopped it, asking the driver about what he was doing in the neighborhood, and he noted the answer. He asked for consent which was denied, and he let the driver go. The next day, after a rape was reported, officers followed up on the story obtained from the stop and found it false. The stop was with reasonable suspicion. State v. Burdick, 2012 Tenn. Crim. App. LEXIS 396 (June 13, 2012):

FourthAmendment.com - News: Cal.1: Stop of vehicle and occupants matching description of burglars was with RS

Sun, 17 Jun 2012 22:11:53 -0600

Defendants and their vehicle matched the description of people alleged to have stolen from open houses. They were found within 30 minutes of the initial dispatch in the same city in a distinctive vehicle. The stop was with reasonable suspicion, and they admitted then to having been at the open house in question. People v. Rangel, 2012 Cal. App. LEXIS 694 (1st Dist. June 14, 2012);* People v. Little, 2012 Cal. App. LEXIS 705 (4th Dist. June 15, 2012).*

Claimant’s money was seized after a valid consent, and his testimony was found incredible on the consent issue. He was flagged by an Amtrak drug courier profile: one-way ticket bought just before departure for a sleeper car on somebody else’s credit card. United States v. Funds in the Amount of $239,400, 2012 U.S. Dist. LEXIS 82682 (N.D. Ill. June 5, 2012).*

FourthAmendment.com - News: FL5 follows state precedent permitting SI of cell phone without cause

Sun, 17 Jun 2012 22:03:06 -0600

Following state precedent, the search incident of a cell phone without any reason to believe it contains evidence of a crime is sustained. The issue is certified to the Florida Supreme Court. State v. Glasco, 2012 Fla. App. LEXIS 9717 (Fla. 5th DCA June 15, 2012):

Pursuant to Fawdry [v. State, 70 So. 3d 626 (Fla. 1st DCA 2011)] and Smallwood [v. State, 61 So. 3d 448 (Fla. 1st DCA), review granted, 68 So. 3d 235 (Fla. 2011)], we reverse the order granting the motion to suppress and remand this case to the trial court for further proceedings. We certify to the Florida Supreme Court a question of great public importance similar to the questions certified in Fawdry and Smallwood:
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FourthAmendment.com - News: Reason.com: "Unwarranted Intrusion"

Sun, 17 Jun 2012 09:40:49 -0600

Reason.com: Unwarranted Intrusion / When it comes to wiretaps, the federal government's official policy is: "Trust us!" by J.D. Tuccille:

On June 11, Sen. Ron Wyden (D-Ore.) temporarily blocked the renewal of legislation that allows the U.S. government to listen in, without a warrant, on Americans' conversations, so long as they're chatting with overseas chums who are the official targets of the eavesdropping. In doing so, Wyden not only stood against a bipartisan cabal of snoopy legislative colleagues, but also against the White House, which wants the extension passed and is vigorously battling against constitutional challenges to such electronic eavesdropping. That may come as a bit of a surprise to anybody who remembers then-presidential candidate Barack Obama promising to end the use of warrantless wiretaps that were so popular under the George W. Bush administration.
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FourthAmendment.com - News: UT: Defendant was let go after a stop in a store, and his Catch-22 that if he went to his car he be arrested is not the government's problem

Sun, 17 Jun 2012 08:04:44 -0600

Defendant and a companion were suspected of shoplifting in a Target store, and defendant was a suspected lookout for the other. Both had come and gone from the store repeatedly. When defendant was confronted in the store, there was reasonable suspicion, but he was frisked and told he was free to leave. The loss prevention people, however, were looking for the vehicle to see if shoplifted stuff was in it. Defendant was clearly free to leave, and his companion was already let go. “We acknowledge that this left Little in an unfortunate catch-22—if he stayed, the officers would ultimately discover the car; if he attempted to leave in the car, he would lead the officers to it; and if he left on foot, the officers would eventually find the car and arrest him later. However, this situation resulted from information the officers legally obtained in the course of the lawful investigatory detention, and the officers were not required to cease all investigation simply because they determined they could no longer legally detain Little.” So, there was a second encounter when he went to the car, and that didn't make the stop unreasonable. State v. Little, 2012 Utah App. LEXIS 175 (June 14, 2012).*

FourthAmendment.com - News: E.D.Tenn.: CI's falsity is not the affiant's under Franks

Sun, 17 Jun 2012 07:45:01 -0600

The informant’s false statement, comparing grand jury testimony with the affidavit for the search warrant, is not chargeable to the officer under Franks, so the motion is denied. United States v. Neal, 2012 U.S. Dist. LEXIS 81849 (E.D. Tenn. April 13, 2012).

A game warden received a call about unlawfully taking a deer by three people in a “whitish old Subaru car,” and that justified the stop when it was seen. United States v. Wilks, 2012 U.S. Dist. LEXIS 82165 (D. Mont. June 12, 2012).*

The USMJ’s findings of voluntary consent is adopted by the USDJ. There is no testimony except that the consent was voluntary. United States v. Talamante-Rodriguez, 2012 U.S. Dist. LEXIS 82009 (D. Ariz. June 12, 2012).*

FourthAmendment.com - News: D.Me.: Multifaceted Franks challenge failed because none undermined PC; they could be questions for trial

Sun, 17 Jun 2012 07:27:16 -0600

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).*

FourthAmendment.com - News: W.D.Ky. provides good example of a defense failure of proof on guest standing

Sun, 17 Jun 2012 06:42:46 -0600

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.
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FourthAmendment.com - News: D.Md.: PC was shown for violations of Clean Water Act

Sun, 17 Jun 2012 06:15:53 -0600

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.]

FourthAmendment.com - News: D.Kan. erroneously shifts burden of proof to defendant to prove inventory unreasonable

Sat, 16 Jun 2012 12:18:21 -0600

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.
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FourthAmendment.com - News: D.Mass.: All records warrant was not overbroad in eBay reselling fraud case

Sat, 16 Jun 2012 08:37:47 -0600

Defendant was suspected of running a reselling fraud on eBay, and a search warrant was obtained for all his records pertaining to interstate transportation of stolen property. The search warrant was sufficiently particular and not overbroad. United States v. Kuc, 2012 U.S. Dist. LEXIS 82398 (D. Mass. June 14, 2012):

1. The First Prong: Evidence of Other Contraband

The degree to which evidence of contraband is believed to be on the premises is largely connected to the pervasiveness of the illegal activity being investigated. ...

Pervasiveness for purposes of the first prong is not limited to large organizations or entities. United States v. Falon, 959 F.2d 1143, 1148 (1st Cir. 1992). Thus, in United States v. Morris, the First Circuit found that two illegal drug transactions at the same residential address gave the magistrate judge "sufficient evidence to believe that a large collection of similar contraband would be present in the premises that were to be searched pursuant to the warrant." 977 F.2d at 681.
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FourthAmendment.com - News: OH2: Search for crack not justified by plain feel

Sat, 16 Jun 2012 08:21:48 -0600

Defendant was stopped for jaywalking and he admitted having marijuaua which was produced. The officer conducted a patdown and felt something that was indiscernible, but was clearly not a weapon. A search produced crack, and the search was unjustified. The defendant had been stopped the day before by the same officer and apparently endured the same search. State v. Byrd, 2012 Ohio 2659, 2012 Ohio App. LEXIS 2336 (2d Dist. June 15, 2012).*

Defendant lost suppression motion apparently because she thought the state had to justify the seizure of every item in the search warrant. It was seizure under a warrant, and the defense had the burden. State v. Crumpler, 2012 Ohio 2601, 2012 Ohio App. LEXIS 2288 (9th Dist. June 13, 2012).*

FourthAmendment.com - News: CA6: “Good to go” but followed by questions led to effective consent

Sat, 16 Jun 2012 08:06:16 -0600

“Good to go” of a stopped motorist but followed by questions led to effective consent. United States v. Rodriguez, 2012 U.S. App. LEXIS 12009, 2012 FED App. 0601N (6th Cir. June 12, 2012):

At the end of the discussion, Diggs told Rodriguez that he was "good to go." Immediately after making that statement, however, Diggs said, "Let me ask you something," and proceeded to ask Rodriguez additional questions about his travel plans, as well as questions about his arrest history and whether there was anything illegal in his van. After approximately four minutes of questioning, Diggs asked Rodriguez for permission to search his van, and Rodriguez consented. Ultimately, law enforcement officers recovered two kilograms of heroin and ten kilograms of cocaine from a hidden compartment in the van.
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FourthAmendment.com - News: TN: Entry into backyard and deck violated curtilage

Sat, 16 Jun 2012 06:31:42 -0600

Officers responding to an anonymous shots fired call entered defendant’s backyard and found him on his deck. The search of his bag violated the Fourth Amendment and Tennessee Constitution because the officers entered the curtilage without exigent circumstances. State v. Anderson, 2012 Tenn. Crim. App. LEXIS 385 (June 12, 2012):

Anderson's deck was plainly within the curtilage of his home for the purposes of both the Fourth Amendment and article I, section 7. Considering the Fourth Amendment test, the deck was immediately attached to the house, and a back door opened to it. Although the area was not included within an enclosure, it was largely surrounded by trees. A grill was on the deck, indicating that Anderson used the area for cooking. The many toys indicate that young children used the area to play. Roberson's testimony indicates that Anderson used the area to relax and entertain guests. Additionally, the area was behind the house and not visible to passers-by on the road. All these factors support the conclusion that the deck was intimately tied to the home, and the deck, therefore, is protected under the Fourth Amendment. Cf. Hardesty v. Hamburg Twp., 461 F.3d 646, 652 (6th Cir. 2006) (finding rear deck to be protected curtilage under similar facts). Furthermore, this same evidence, particularly the nature of the activities that occurred on the deck, demonstrates that the deck was an area to which the activity of home life extended. Consequently, Anderson also enjoyed the protection of article I, section 7 of the Tennessee Constitution while on his deck. Because the deputies intruded on this constitutionally protected area without a warrant, they violated the mandates of the United States and Tennessee Constitutions.
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FourthAmendment.com - News: WI: Identified CI with corroborated info could be relied upon for stop

Sat, 16 Jun 2012 05:44:28 -0600

This investigation started with an anonymous informant, but the police then received information from an identified informant who gave predictive information that panned out. The police could rely on that information and it gave cause for a stop when defendant was leaving a supposed drug deal. State v. Miller, 2012 WI 61, 2012 Wisc. LEXIS 357 (June 12, 2012).*

Plaintiff pled to DUI and he was awaiting placement in an alcohol program. Despite the court order, officers went to his house and arrested him and held him for a month without a valid court order. The district court failed to conduct a proper qualified immunity analysis, so the judgment is vacated and remanded. Handt v. Lynch, 2012 U.S. App. LEXIS 12044 (8th Cir. June 14, 2012).*