January 11, 2010

A CURTILAGE JUST ISN'T WHAT IT USED TO BE (SIGH!)

A curtilage just isn't what it used to be. Ah, we long for the good old days. Here, the defendant was being investigated on drug charges. Agents placed a mobile tracking device on his Jeep while in his driveway. The driveway had no special features that raised an expectation of privacy necessary for curtilage protection under the 4th Amendment. There were no barriers or fences, or enclosures, or a lack of visibility. There were no "No Trespassing" signs or warnings. (hint, hint) The driveway was open to the public, and was used to approach the house. The attaching of the device in the early morning -- between 4 and 5 am -- did not raise the expectation of privacy to the driveway's physical nature. The 9th Circuit Court of Appeal followed precedent (McIver) in holding that the undercarriage of the car was the exterior; and that parking the car on the public street was outside the curtilage. Finally, the mobile tracking device is permitted by the Supremes. Bummer.

U.S. v. Pineda-Moreno, No. 08-30385 (1-11-10).

October 21, 2009

UNITED STATES SUPREME COURT DECLINES TO HEAR "ONE SWERVE" ANONYMOUS TIPSTER DUI CASE

United States Supreme Court Chief Justice Samuel Alito lobbied hard to gain enough colleagues to vote to hear a DUI case out of Virginia where the cop pulled over a driver based solely on the tip from an anonymous tipster that he saw the driver "swerve once." The cop, however, saw no bad driving himself.

That's not a good enough case to make a majority of the U.S. Supremes take it on. In fact, it is a major win for the Constitution. That a cop should be able to suspend the Fourth Amendment rights of a citizen based on an anonymous tipster is ludicrous. So implied the remainder of the justices that declined Alito's push to hear this ridiculous case.

CLick HERE for the news story on the case.

April 21, 2009

BIG WIN IN THE SUPREMES: COPS NEED WARRANT TO SEARCH PASSENGER AREAS OF CARS WHEN SUSPECT IS LOCKED UP

WASHINGTON ­ The Supreme Court ruled Tuesday that police need a warrant to
search the vehicle of someone they have arrested if the person is locked up
in a patrol cruiser and poses no safety threat to officers.

The court's 5-4 decision puts new limits on the ability of police to search
a vehicle immediately after the arrest of a suspect.

Justice John Paul Stevens said in the majority opinion that warrantless
searches still may be conducted if a car's passenger compartment is within
reach of a suspect who has been removed from the vehicle or there is reason
to believe evidence of a crime will be found.

"When these justifications are absent, a search of an arrestee's vehicle
will be unreasonable unless police obtain a warrant," Stevens said.

Justice Samuel Alito , in dissent, complained that the decision upsets
police practice that has developed since the court first authorized
warrantless searches immediately following an arrest.

"There are cases in which it is unclear whether an arrestee could retrieve a
weapon or evidence," Alito said.

Even more confusing, he said, is asking police to determine whether the
vehicle contains evidence of a crime. "What this rule permits in a variety
of situations is entirely unclear," Alito said.

The decision backs an Arizona high court ruling in favor of Rodney Joseph
Gant, who was handcuffed, seated in the back of a patrol car and under
police supervision when Tucson, Ariz., police officers searched his car.
They found cocaine and drug paraphernalia.

The trial court said the evidence could be used against Gant, but Arizona
appeals courts overturned the convictions because the officers already had
secured the scene and thus faced no threat to their safety or concern about
evidence being preserved.

The state and the Bush administration complained that ruling would impose a
"dangerous and unworkable test" that would complicate the daily lives of law
enforcement officers .

The justices divided in an unusual fashion. Justices Ruth Bader Ginsburg,
Antonin Scalia, David Souter and Clarence Thomas joined the majority
opinion. Chief Justice John Roberts and Justices Stephen Breyer and Anthony
Kennedy were in dissent along with Alito.

February 16, 2009

CALIFORNIA CRIMINAL DEFENSE: IS THE SUPREME COURT ABOUT TO KILL OFF THE EXCLUSIONARY RULE?

Is the Supreme Court About to Kill Off the Exclusionary Rule?
Published: February 15, 2009. Click HERE for New York Times article.

In 1957, the Cleveland police showed up at Dollree Mapp’s home looking for a bombing suspect. Ms. Mapp would not let them in without a search warrant, but they entered anyway. The police did not find the bomber, but they came across a trunk containing “lewd and lascivious” books and pictures.

Ms. Mapp was convicted of possessing obscene materials, even though the evidence was taken without a warrant. She was tried in state court, like the overwhelming majority of criminal defendants. So it did her no good that federal courts had applied the so-called “exclusionary rule” since 1914 to bar the use of illegally seized evidence.

In 1961, in Mapp v. Ohio, the Supreme Court reversed Ms. Mapp’s conviction and adopted the exclusionary rule as a national standard. The court acknowledged that the rule might let some criminals go free, but it underscored that it was more important to compel the nation’s police forces to obey the law.

The court carved out exceptions over the years, but the basic rule laid down in Mapp has endured for nearly five decades. Now, Chief Justice John Roberts’s conservative majority on the Supreme Court is working to undo the exclusionary rule in a more fundamental way. It’s been a longstanding interest of Mr. Roberts’s. As a young Reagan administration lawyer, he worked on what he described in a memo as a “campaign to amend or abolish” the rule.

[COMMENTARY: Doesn't this warrant his recusal from any case addressing this issue?]

The Mapp decision has had both effects that were predicted when it came down. Some criminals had convictions thrown out, or avoided being charged, because evidence was obtained illegally or found by relying on illegally obtained information. But Mapp also changed the incentives for the police. It gave them less reason to enter a home or tap a phone without a warrant.

The exclusionary rule has always had critics. Long before Mapp, Judge Benjamin Cardozo said it allowed the criminal to go free “because the constable has blundered.” In recent years, it has become Exhibit A for those who argue that defendants get off on technicalities.

In 2006, in Hudson v. Michigan, Chief Justice Roberts assigned the majority opinion to Justice Antonin Scalia, who wrote a sweeping assault on the rationale for excluding illegally obtained evidence. Justice Scalia argued that “the increasing professionalism of police forces,” the increased availability of civil rights lawsuits, and other checks on police wrongdoing have sharply reduced the need for such measures.

Last month, the court eroded the rule still further in Herring v. United States. Writing for the majority, Chief Justice Roberts declared that evidence need not necessarily be disqualified if it was illegally obtained because of errors in police databases. Isolated mistakes of this sort, he insisted, are not among the exclusionary rule’s “core concerns.”

Justice Ruth Ginsburg, in dissent, was right to point out that in the modern age database errors can lead to many people’s rights being denied. The harm to a citizen who is arrested and searched on the street because a bureaucrat has made a computer error, she noted, is just the sort of invasion the founders worried about when they drafted the Fourth Amendment.

After Hudson and Herring, critics of the exclusionary rule have high hopes that the Roberts court will take the ultimate step of overruling Mapp v. Ohio. That would be a great setback for the rule of law.

Despite Justice Scalia’s claims, police misconduct is rampant. In the last few years, the Atlanta and Oakland police departments have had major scandals over officers’ lying to obtain search warrants. In this same period, of course, the federal government engaged in an illegal domestic wiretapping program, the extent of which is still unknown.

The exclusionary rule does more than simply put a check on police misconduct. It protects the integrity of the judicial system. If courts put people like Ms. Mapp in prison based on the actions of lawless, marauding police officers, respect for the law suffers.

There is no denying that the exclusionary rule allows a small number of criminals to go free because the police have blundered — which is certainly no minor matter. But the more faithfully the rule is applied, the more likely the police are to collect evidence lawfully.

As important as it is to convict criminals, the Supreme Court in Mapp rightly insisted that the Constitution must not be trampled in the process. “Nothing can destroy a government more quickly,” the court noted, “than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”

February 2, 2009

U.S. SUPREME COURT: MIGHT THE EXCLUSIONARY RULE BE ELIMINATED?

I'm scared. I'm very, very scared. While I have always championed personal financial sanctions on police officers who violate the Fourth Amendment rather than exclusion of evidence (seems a stronger deterrent to me), the courts have historically thought otherwise. Now, if a cop violates your Fourth Amendment rights, the evidence he subsequently learns of as a result of the illegal search or seizure is suppressed and cannot beused in court against you.

Will our chief justice, who championed such causes in the past, lead the Supremes to total expungement of Fourth Amendment remedies?

Take a look at the URL below. Maybe so.

http://www.nytimes.com/2009/01/31/washington/31scotus.html?_r=1


August 19, 2008

NINTH CIRCUIT UPHOLDS REASONABLENESS OF COP'S STOP AND SEARCH

Reasonable suspicion was evident for defendant's stop by police where the vehicle was already stopped at a rest area within one mile of the Mexican border and the desert off-road vehicles were off-loaded from the defendant's vehicle.

United States v. Macias-Encinas, 2008 U.S. App. LEXIS 18353 (9th Cir. August 19, 2008) (unpublished).*

Continue reading "NINTH CIRCUIT UPHOLDS REASONABLENESS OF COP'S STOP AND SEARCH" »

August 2, 2008

DEPARTMENT OF HOMELAND SECURITY WILL SEARCH LAPTOPS AT THE BORDER

The Department of Homeland Security has now made it clear that they will search laptops at the border. See the Washington Post article published today: Travelers' Laptops May Be Detained At Border / No Suspicion Required Under DHS Policies:

Federal agents may take a traveler's laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.

Also, officials may share copies of the laptop's contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

"The policies ... are truly alarming," said Sen. Russell Feingold (D-Wis.), who is probing the government's border search practices. He said he intends to introduce legislation soon that would require reasonable suspicion for border searches, as well as prohibit profiling on race, religion or national origin.

DHS officials said the newly disclosed policies -- which apply to anyone entering the country, including U.S. citizens -- are reasonable and necessary to prevent terrorism. Officials said such procedures have long been in place but were disclosed last month because of public interest in the matter.

April 21, 2008

CUSTOMS OFFICERS AT INTERNATIONAL AIRPORT CAN SEARCH YOUR LAPTOP

SEARCH & SEIZURE - SUSPICIONLESS SEARCH OF AIRLINE PASSENGER'S LAPTOP

Customs officers at international airports may examine the electronic contents of a passenger's laptop computer without reasonable suspicion. The search here did not damage the computer and was not conducted in a "particularly offensive manner."

United States v. Arnold (9th Cir. 4/21/08) 06-50581) 08 C.D.O.S. 4533


Continue reading "CUSTOMS OFFICERS AT INTERNATIONAL AIRPORT CAN SEARCH YOUR LAPTOP" »

March 27, 2008

CALIFORNIA CIVIL RIGHTS NEWS: CALIFORNIA FEDERAL COURT SETS STANDARDS FOR STRIP SEARCHES IN THE FIELD

The United States District Court for the Northern District of California has set the standards for strip searches occuring in the field, away from a jail or police station. Foster v. City of Oakland, 2008 U.S. Dist. LEXIS 24610 (N.D. Cal. March 27, 2008):

What is not clear is the extent to which a strip search may be conducted in the field. There is no case law suggesting that such a search may be performed in the absence of an arrest. All of the cases are premised on there being an arrest, not merely a detention or a stop for questioning.

An arrest must be based on probable cause and may thus justify some type of search depending on the circumstances. However, detentions and stops that are short of an actual arrest will not support a strip search or, indeed, any kind of search except for a Terry search when the standards of Terry v. Ohio, 392 U.S. 1 (1968), justify a Terry stop.

Given the limits on strip searches even in a jail setting, certainly the limitations are greater when the search is in the field pursuant to a valid arrest.

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It is clear that the "full search" authorized by Robinson is ordinarily conducted for the officers' safety. A "full search" incident to arrest, however, does not permit a strip search or bodily intrusion. Like the searches in Fuller, the searches in the instant case are unrelated to prison security.

Field strip searches by definition occur before a suspect has arrived at a detention facility. And even after the arrestee has arrived at the facility, security concerns may not be great enough to justify invasive searches upon reasonable suspicion if the detainee is not to be admitted to the general jail population or the search is merely for evidence. Fuller, 950 F.2d at 1448. Only after an arrestee has arrived at a detention facility does institutional security become a factor, thereby permitting searches for weapons or contraband based upon reasonable suspicion. Prior to his arrival at the facility, an arrestee poses no threat to prison security, and officers in the field are adequately protected by their ability to perform security searches incident to arrest.

Therefore, the court concludes that officers in the field are generally limited to a search incident to arrest as described in Robinson and that strip and more invasive searches in the field may only be performed under exigent circumstances and with probable cause which may, consistent with the above, require a warrant.

In sum, the court concludes that the Fourth Amendment requirements for the three types of strip searches performed in the field--strip search, visual body cavity search and physical body cavity search--are as follows:

1) there must be exigent circumstances;

2) the search may only be performed on persons who have been lawfully arrested on probable cause and may not be performed on anyone for whom there is no probable cause to arrest;

3) the search requires probable cause that is independent of the probable cause found for the arrest;

4) the search may only be performed when there is probable cause to believe that the arrestee is in possession of weapons, drugs or dangerous contraband; and

5) additionally, physical body cavity searches require a warrant authorizing the search and must be administered by an authorized medical professional.


Continue reading "CALIFORNIA CIVIL RIGHTS NEWS: CALIFORNIA FEDERAL COURT SETS STANDARDS FOR STRIP SEARCHES IN THE FIELD" »

February 20, 2008

COPS CAN'T SEARCH CONTAINERS WITH CO-HABITANT'S CONSENT ONLY

The 9th Circuit (Reinhardt joined by Goodwin and Smith) considers a search of storage units where a defendant was living. The police followed suspects of meth production back to a storage unit where they knew the defendant was living. The unit was rented by another suspect.

The police knocked on the door, and the defendant greeted them with a metal pipe in hand. The police ordered him to drop the pipe, which he did, and the police supposedly saw a meth lab. The police then conducted a sweep.

The police then waited a couple hours, and did another search, supposedly with the consent of the renter of the storage unit (the other suspect). The 9th upheld the first search under the protective sweep exception, because the police did not know if the other suspect was hiding in the unit. Plain view, however, still requires a warrant, or other exception.

The 9th Circuit held that the search two hours later was not proper because the defendant was living at the unit, and had an interest that he shared with the renter. Under Randolph, the consent of the non-resident co-owner could not trump the objection of the resident /defendant. The 9th Circuit also stressed that there is no hierarchical standing recognized here. An owner, as opposed to resident, is not the same as a parent/child or military. This is an important vindication of Randolph.

U.S. v. Murphy, No. 06-30582 (2-20-08).

Continue reading "COPS CAN'T SEARCH CONTAINERS WITH CO-HABITANT'S CONSENT ONLY" »

February 12, 2008

KILLING A DOG IS A "SEIZURE"

Killing of plaintiff's dog was a "seizure" for Fourth Amendment purposes, but it was reasonable under the circumstances. After having fatally shot the dog, the officers put it out of its misery.

Viilo v. City of Milwaukee, 2008 U.S. Dist. LEXIS 10900 (E.D. Wis. February 12, 2008).

Comment: So, cops kill your dog, and after they fatally injure you dog - which is a seizure - they get to finish the job off? That's sick.

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February 10, 2008

CALIFORNIA CRIMINAL LAWYER NEWS: SEARCH OF A BLACKBERRY REQUIRES MORE BRIEFING

The defendant came in to be arrested and brought a backpack, and inside was a Blackberry, which the officers searched and seized the "contacts" list. The court required further briefing of the issue of access to the Blackberry. The USMJ denied the motion to suppress the contents of the Blackberry, but the USDJ wants further briefing. United States v. Carroll, 2008 U.S. Dist. LEXIS 7485 (February 1, 2008):

As Carroll and the Government identify, this and other courts have reached varying conclusions on whether searches of an arrestee's mobile phone is a lawful search incident to arrest, and if so, how far that lawful search may extend. Among the questions courts have considered are whether a mobile phone fits within the category of property intimately associated with an arrestee's person, United States v. Park, No. CR 05-375 SI, 2007 U.S. Dist. LEXIS 40596, 2007 WL 1521573, at *7-8 (N.D. Cal. May 23, 2007), how contemporaneous the search must be relative to the arrest, United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1277 (D. Kan. 2007), and whether the search is limited to a phone's dynamic memory. United States v. Zamora, No. 1:05-CR-250-WSD, 2006 U.S. Dist. LEXIS 8196, 2006 WL 418390, at *4-5 (N.D. Ga. Feb. 21, 2006).

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The Court notes also that in this case, Carroll voluntarily surrendered himself for arrest and voluntarily brought his backpack, containing the Blackberry, to law enforcement offices at the time of his surrender. Unlike the situations considered in Zamora, Ortiz, and Park, Carroll had the opportunity to make a conscious choice about which of his effects were available to law enforcement at the time of his arrest. Neither Carroll nor the Government has developed this issue factually, nor has the issue been briefed. The Court will defer ruling on the motion to suppress the information resident in the Blackberry until an evidentiary hearing is conducted and the parties further brief this issue.

Comment: See the post here on search incident of an iPhone.

February 3, 2008

THE iPHONE MEETS THE FOURTH AMENDMENT

To date, fewer than a dozen courts across the country have addressed searches of cell phones incident to arrest.

The Fifth Circuit’s recent 2007 in United States v. Finley is representative. Police arrested Finley after a staged drug sale. The police then searched Finley incident to arrest and found a cell phone in his pocket. One of the investigating officers searched through the phone’s records and found text messages that appeared to relate to drug trafficking. One incoming text message said “So u wanna get some frozen agua,” a common term for methamphetamine. Another text message said “Call Mark I need a 50,” a likely reference to asking for $50 worth of narcotics. Finley was convicted of aiding and abetting drug possession with intent to distribute.
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In United States v. Park et al. , the United States District Court for Northern District of California reviewed a case where several subjects, including Edward Park, were arrested as San Francisco officers were about to execute a search warrant. Several individuals, including Park showed up at the location of the warrant. These subjects were detained while the warrant was executed and arrested after the police found significant amounts of marijuana growing at the location.

When the subjects were brought to the station there cellular telephones were seized. After one to one and a half hours the phones were searched. During a search of each phone, evidence was found in the address book which implicated the subjects in the illicit operation. The government sought to use this information in the prosecution of these subjects while the defense sought to suppress the evidence from the phones.

In reviewing the search of the phones the trial court noted: “Neither the Supreme Court nor the Ninth Circuit has addressed whether officers may search the contents of a cellular phone as a search incident to arrest, and the Court is aware of only one circuit court case on the issue, United States v. Finley, 477 F.3d 250 (5th Cir. 2007).” The court then distinguished this case from Edwards on the grounds that the cellular telephones were possessions within the arrestees control rather than that which is on their person.

In doing so, the court cited the United States Supreme Court decision in U.S. v. Chadwick in which a footlocker seized from an auto was searched without a warrant. The Supreme Court ruled in Chadwick that a warrant should have been obtained once the item was in police custody. The Supreme Court subsequently overturned the Chadwick rule in California v. Acevedo. In a footnote the court in this case attempted to distinguish Acevedo due to the fact that the footlocker was taken from a vehicle and the search was based in probable cause rather than incident to arrest.

The court in this case concluded that the investigators should have obtained a warrant before searching the contents of the phone back at the station. The court left open whether the officers could have searched the phone at the time of the arrest. Some other courts have not agreed with this Federal trial court.

Now, a college professor has authored an article disputing the Park line of cases and suggesting that courts and legislatures adopt stronger protections against searches of iPhones. See below.

The iPhone Meets the Fourth Amendment

ADAM M. GERSHOWITZ
South Texas College of Law
--------------------------------------------------------------------------------
January 15, 2008

Abstract:
Imagine that police arrest an individual for a simple traffic infraction, such as running a stop sign. Under the search incident to arrest doctrine, officers are entitled to search the body of the person they are arresting to ensure that he does not have any weapons or will not destroy any evidence. The search incident to an arrest is automatic and allows officers to open containers on the person, even if there is no probable cause to believe there is anything illegal inside of those containers. What happens, however, when the arrestee is carrying an iPhone in his pocket? May the police search the iPhone's call history, cell phone contacts, emails, pictures, movies, calendar entries and, perhaps most significantly, the browsing history from recent internet use? Under longstanding Supreme Court precedent decided well before handheld technology was even contemplated, the answer appears to be yes. This article demonstrates how the full contents and multiple applications of iPhones can be searched without a warrant or probable cause under existing Supreme Court precedent. The article also offers approaches courts and legislatures might adopt to ensure greater protection for the soon-to-be pervasive iPhone devices.

Click HERE to get article.


Continue reading "THE iPHONE MEETS THE FOURTH AMENDMENT" »

February 1, 2008

RICHARD HATCH OF "SURVIVOR" FAME LOSES TAX EVASION APPEAL

The convictions and sentence for filing false tax returns imposed on Richard Hatch, the first winner of the CBS reality TV show "Survivor," are affirmed over claims that: 1) the district court violated his Sixth Amendment rights by curtailing his explanation of why he believed the show's producers had paid the taxes on his "Survivor" winnings; 2) in a variety of ways, the court improperly limited the defense's right to cross-examine; 3) the court wrongly allowed the government to use what defendant called "unqualified experts" while excluding some of the testimony of his own expert; and 4) his sentence was unreasonably harsh.

Guess he didn't know how to play the game so well, after all.

US v. Hatch, No. 06-1902

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Continue reading "RICHARD HATCH OF "SURVIVOR" FAME LOSES TAX EVASION APPEAL" »

January 21, 2008

MOTION TO SUPPRESS GRANTED WHEN SUSPECT FLEES

The defendant's flight was precipitated by unlawful attempted arrest by law enforcement officers. As a result,seizure of defendant's abandoned property was properly suppressed
The defendant's flight from an unreasonable stop led to him abandoning drugs in flight. Oops. Here, the flight was not attenuated from the unlawful activity and the motion to suppress is granted.

The Court said:

"For the same reasons, I decline to adopt the government's argument that Defendant's flight was an intervening event that dissipated the taint of the initial unlawful search and seizure. It may well be that flight or resisting arrest constitutes an intervening cause in other circumstances but not under the facts of this case where there was never a break in the causal chain following the unlawful search and detention."

United States v. Harris, 2008 U.S. Dist. LEXIS 3846 (D. Colo. January 3, 2008):

Continue reading "MOTION TO SUPPRESS GRANTED WHEN SUSPECT FLEES" »

January 13, 2008

WASHINGTON STATE WANTS TO STOP YOU IN YOUR CAR FOR NO REASON

WASHINGTON TRIES TO JUSTIFY SECURITY CHECKPOINTS

When Washington Governor Chris Gregoire was explaining on Monday her rationale behind her new security checkpoint program, she pointed out that we already have security stops and checks at courthouses and airports. In many of those places, we do; and the proposed expansion of governmental stops and checks of citizens who are minding their own business and violating no law is one of the exact reasons we disapprove of them so much.

Where will the quest for “safety” and “security” lead us next?

How much more thoroughly will the Fourth Amendment be eviscerated in the name of keeping people safe?

Read the full article from Randy Stapilis by clicking on Ridenbaugh Press.

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January 11, 2008

CALIFORNIA FEDERAL COURT NEWS: DETENTION DURING EXECUTION OF BAD WARRANT IS BAD

A police detention during the execution of a valid warrant is permissible under Summers and Muehler, but detention during execution of an invalid warrant may not be, so summary judgment is denied.

Olson v. Oreck, 2008 U.S. Dist. LEXIS 2786 (E.D. Cal. January 11, 2008).

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Continue reading "CALIFORNIA FEDERAL COURT NEWS: DETENTION DURING EXECUTION OF BAD WARRANT IS BAD" »

January 11, 2008

LAWYER'S SARCASTIC COMMENT AT AIRPORT SECURITY ABOUT A BOMB IN A SUITCASE WAS PROBABLE CAUSE TO ARREST

The Plaintiff's arrest was justified when she made a sarcastic comment about a bomb in her bag after she was bumped from a flight because of her late check-in when she was trying to retrieve her bags.

(Apparently plaintiff, a lawyer, did not respond well to stress. "The parties submitted expert psychiatric testimony explaining that plaintiff becomes sarcastic under stress.") She was strip searched at the jail when booked in.

Levin v. United Airlines, 2008 Cal. App. LEXIS 33 (2d Dist. January 10, 2008).*

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Continue reading "LAWYER'S SARCASTIC COMMENT AT AIRPORT SECURITY ABOUT A BOMB IN A SUITCASE WAS PROBABLE CAUSE TO ARREST" »

January 10, 2008

FEDERAL CRIMINAL DEFENSE LAWYER NEWS: PHONE COMPANIES CUT OFF FBI WITETAPS BECAUSE OF UNPAID BILLS

Thursday, January 10, 2008 12:26 PM WASHINGTON (AP) -- Telephone companies cut off FBI wiretaps used to eavesdrop on suspected criminals because of the bureau's repeated failures to pay phone bills on time, according to a Justice Department audit released Thursday.

The faulty bookkeeping is part of what the audit, by the Justice Department's inspector general, described as the FBI's lax oversight of money used in undercover investigations.

Poor supervision of the program also allowed one agent to steal $25,000, the audit said.

More than half of 990 bills to pay for telecommunication surveillance in five unidentified FBI field offices were not paid on time, the report shows. In one office alone, unpaid costs for wiretaps from one phone company totaled $66,000. And at least once, a wiretap used in a Foreign Intelligence Surveillance Act investigation - the highly secretive and sensitive cases that allow eavesdropping on suspected terrorists or spies - "was halted due to untimely payment."

"We also found that resulted in telecommunicationscarriers actually disconnecting phone lines established to deliver surveillance results to the FBI, resulting in lost evidence," according to the audit by Inspector General Glenn A. Fine.

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Continue reading "FEDERAL CRIMINAL DEFENSE LAWYER NEWS: PHONE COMPANIES CUT OFF FBI WITETAPS BECAUSE OF UNPAID BILLS" »

January 8, 2008

EXIGENCY CEASES TO EXIST WHEN HE IS ARRESTED AND REFUSES CONSENT

The exigency ceased to exist on defendant's arrest, despite the fact it was initiated by a 911 call. He also expressly refused consent.

United States v. Davis, 2008 U.S. Dist. LEXIS 1224 (N.D. Ill. January 8, 2008):

In this case, any emergency created by Cupito's 911 call ended when the deputies arrived on the scene to find her safely outside Davis's house. According to their testimony, the deputies made the decision to arrest Davis before they requested his identification.

If there was an exigency that Davis would harm the officers, retrieve a weapon, flee, or destroy evidence, it was created when the officers requested and consented to Davis reentering his home to retrieve his identification. This police manufactured exigency did not justify entry into the home.

Furthermore, even if there was an exigency that was not created by the deputies, the exigency would have ended after they handcuffed Davis and would not justify the deputies remaining in his home. See Tierney v. Davidson, 133 F.3d 189, 197-98 (2d Cir. 1998) ("As to what may be done by the police or other public authorities once they are inside the premises, this must be assessed upon a case-by-case basis, taking into account the type of emergency which appeared to be present ... The officer's post-entry conduct must be carefully limited to achieving the objective which justified the entry-the officer may do no more than is reasonably necessary to ascertain whether someone is in need of assistance and to provide that assistance.").

Because there was no exigency, the only other way the Government may justify the deputies' entry is by consent.