Category Archives: DUI
NTSB .05 BAC DUI proposal is asinine and would make Ben Franklin MADD
Recently, the NTSB proposed lowering the DUI BAC threshold to .05 from the current .08 number. See Mike M. Ahlers, Tougher drunk-driving threshold proposed to reduce traffic deaths, CNN on-line, May 13, 2013. It claims that this lower number will reduce deaths. No doubt. So will making guns “illegal.” So will banning swimming pools. So will banning tobacco products. So will outlawing all gas power cars and replacing them with horse-drawn carriages. The fact is that life is risk. There are many things we do that seem stupid and even life threatening to ourselves and others (consider NY Mayor Bloomberg’s attempt to ban all sugary drinks more than 16 ounces), but few of those activities are as demonized as alcohol.
Consider a few statistics…
“Not only did the number of people killed in drunk driving crashes in 2011 (9,878) drop by 2.5 percent from the number killed in 2010 (10,136), but this decline outpaced the 1.9 percent decrease in overall highway deaths.” MADD, Drunk Driving Deaths Fall Below 10,000, Dec. 10, 2012.
“From 2005-2009, there were an average of 3,533 fatal unintentional drownings (non-boating related) annually in the United States — about ten deaths per day. An additional 347 people died each year from drowning in boating-related incidents.” CDC info page on drowning deaths.
“In the United States in 2009, 205,974 people were diagnosed with lung cancer, and 158,081 people died from it. CDC has a number of programs for preventing and controlling lung cancer.” CDC Lung Cancer Deaths info page.
Only 1/3 of all traffic fatalities were caused by drunk drivers. Impaired Driving: Get the Facts, CDC.
Hence, if we really wanted to stop death we’d stop another 20,000 by banning all driving, or perhaps lower the speed limit to 20 MPH. Swimming pools are death pits, so lets save 3500 lives a year by outlawing them, too. Ban tobacco and save 200,000 lives a year. I’d dip my toe in the gun control debate, but the Second Amendment makes it clear that this issue was settled over 200 years ago. I’m willing to sacrifice lives to maintain our other freedoms.
What’s my point? Simple. From a practical standpoint, it takes approximately 3 beers consumed within 2 hours to get to the current limit of .08 BAC. See Clemson Redfern Health Center BAC info page. Hence, only 1.5 will get someone to .05. I already advise my clients who have been arrested for DUI to also not drink AT ALL if they are driving. Officers profile prior offenders, so you’ve got a target on your back once that first DUI hits you. This new proposal compels me to give the same advice to those who have never faced the nightmare of a DUI arrest and prosecution.
1.5 drinks. That’s it. It’s not a question of whether you’re impaired. You could be sober as a rock and still get a DUI if you’ve only had 1.5 drinks. This is a simple matter of Big Brother legislating alcohol out of society. Forget social drinking. Forget drinking wine at the restaurant. It’s too risky. 1.5 drinks. Forget bars staying in business. Sure, some who read this may be okay with the above outcomes, but it seems to me that our finite resources should be spent on things that are more important. Sure, 10,000 deaths is tragic, but how many more heinous crimes will go uncontested with police chasing down sober .05 BAC drivers? Shouldn’t the money to be spent on enforcing such laws be spent on eradicating cancer?
In Kansas and many other states we are facing major budget shortfalls. Here, the legislature has refused to impose prison time for repeat felony DUIs. They serve 12 months in county jails not prison. The reason is simple. If such offenders were sent to prison there would be no space left for rapists, murderers, drug dealers, etc. My informal survey of judges and prosecutors tells me that the .05 threshold would multiply the local jail problem tenfold. The state budgets for treatment and housing DUI offenders would be overwhelmed. To be frank, I think part of their objection is that they drive at the .05 level, and they know that if they aren’t drunk after consuming 1.5 drinks then neither are the people they’d be forced to prosecute and convict.
The good news is that most state legislators aren’t married to MADD like they once were. Thus, it is likely they will consider all the above points as well as a few of their own and not implement this ridiculous standard.
As Ben Franklin put it, “Those willing to sacrifice freedom for security deserve neither.” He was probably drinking a large mug of beer and smoking a pipe full of tobacco when he said it.
Some thoughts for DUI clients…
Proverbs 23:29-35
Who has woe? Who has sorrow?
Who has strife? Who has complaining?
Who has wounds without cause?
Who has redness of eyes?
Those who tarry long over wine;
those who go to try mixed wine.
Do not look at wine when it is red,
when it sparkles in the cup
and goes down smoothly.
In the end it bites like a serpent
and stings like an adder.
Your eyes will see strange things,
and your heart utter perverse things.
You will be like one who lies down in the midst of the sea,
like one who lies on the top of a mast.
“They struck me,” you will say, “but I was not hurt;
they beat me, but I did not feel it.
When shall I awake?
I must have another drink.”
Legal updates 1-10-2013
The Weston Board of Selectmen is currently pursuing an extremely restrictive ordinance that would severely infringe on your Second Amendment rights, subject Weston residents to egregious fines for possessing lawful items under state law, and inhibit your inherent right to self-defense.
NRA ‘disappointed’ after Biden meeting
Vice President Joe Biden said Thursday that he will deliver his recommendations on reducing gun violence to President Barack Obama by Tuesday, perhaps including universal background checks for purchases and forbidding certain types of high-capacity magazines.
NRA accuses White House of ‘attack’ on 2nd Amendment rights
The National Rifle Association said Thursday it was “disappointed” by its meeting Thursday with Vice President Biden, accusing the Obama administration of using the time to “attack the Second Amendment.”
Statement From the National Rifle Association of America Regarding Today’s White House Task Force Meeting
Fairfax, Va. – The National Rifle Association of America is made up of over 4 million moms and dads, daughters and sons, who are involved in the national conversation about how to prevent a tragedy like Newtown from ever happening again. We attended today’s White House meeting to discuss how to kee
Biden says Obama could use executive orders to restrict guns
Vice President Joe Biden said on Wednesday the White House plans to act quickly to curb gun violence and will explore all avenues – including executive orders that would not require the approval of Congress.
Prosecutor to look into TV incident
The decision on whether anyone should be prosecuted after “Meet the Press” host David Gregory appeared to hold a high capacity ammunition magazine on national television now belongs to the District’s Office of the Attorney General, authorities said Tuesday.
New York: More gun control sought by Gov. Cuomo
Mr. Cuomo is a possible 2016 presidential contender who is seeking to elevate his stature among Democrats base nationally, after a much praised victory on same sex marriage in his first year in office. His push for enhanced gun control even drew praise from Cardinal Timothy M. Dolan of New York, in
New Jersey: Bill would require psych tests for all applicants for firearm permits
Individuals seeking a permit to buy firearms in New Jersey would have to submit results of a psychological evaluation before they could buy a gun, under a bill introduced yesterday in the Legislature by West New York Assemblywoman Angelica Jimenez.
NYT Editorial: “Sneaky Apps That Track Cellphones”
NYT Editorial: Sneaky Apps That Track Cellphones: A perversion of smartphone technology called “stalking apps” — precise, secretive trackings of the movements of cellphone users — is increasingly a matter of national concern, particularly for domestic abuse victims. No less threatening is the routi
Sen. Feinstein suggests national “buyback” of guns
CA6 is troubled by 3 weeks of constant video surveillance of backyard under Jones but finds it harmless
The Sixth Circuit is troubled by three weeks of constant video surveillance of defendant’s backyard by a pole camera in light of Jones and its trespass holdings. “We are inclined to agree with the Fifth Circuit that ‘[t]his type of surveillance provokes an immediate negative visceral reaction.’” Nev
TN: DNA profile in John Doe arrest warrant was particular for Fourth Amendment and tolled SOL
A woman lawyer was the target of a home invasion at aggravated attempted rape in 1994 in Nashville. She struggled with the assailant who beat her head, and she bit off a piece of skin on his finger, spitting it under the bed. He left. In 2000, a DNA profile was run on the piece of the finger, and th
E.D.Pa.: Even disregarding a misleading paragraph in the SW application there was still PC
Officers conducted a protective sweep and saw ammunition in plain view. They also had enough to seek a search warrant, and they did, including the reference to the ammunition. There was a misleading paragraph in the affidavit. Excising it and the reference to the ammunition, there was still probable
E.D.Pa.: Car subject to search for PC could be moved before the search for safety purposes
The search of defendant’s car was justified by the automobile exception with probable caues or the search incident doctrine although the car was moved before the search to the police station. Defendant was stopped on a street, and a crowd had begun to form. It was within the officers’ discretion to
Asa Hutchinson on CNN’s State of the Union
Asa Hutchinson on CNN’s State of the Union - December 23, 2012
CA6: Fourth Amendment does not require question about DL before asking about drugs
There is no constitutional requirement that the officer ask for DL before asking about drugs. Defendant here was found to have consented to a search of his vehicle. United States v. Cochrane, 2012 U.S. App. LEXIS 25980, 2012 FED App. 0416P (6th Cir. December 20, 2012)*: To the extent that Defendant
OR: State can’t rely on standing on appeal if it doesn’t raise it at suppression hearing
The state could not rely on lack of standing to support admission of the product of the search where it did not raise it at the suppressing hearing. State v. Jepson, 2012 Ore. App. LEXIS 1525 (December 19, 2012).* Defendant was on probation and in custody, and his consent was not coerced even thoug
N.D.Ala.: Defendant volunteered consent before he was asked
In the dashcam video, defendant consented to a search of his vehicle without even being asked, and it was voluntary. United States v. McGowan, 2012 U.S. Dist. LEXIS 177630 (N.D. Ala. October 30, 2012).* The stop of the vehicle was with probable cause, and the officer developed reasonable suspicion
D.S.C.: Under Randolph the police can wait for defendant to leave and ask a joint occupant for consent
Defendant was not prejudiced by defense counsel’s failure to move to suppress his girlfriend’s written consent. He was removed from the premises on arrest, and the police had no duty under Randolph to seek consent from him. United States v. Swain, 2012 U.S. Dist. LEXIS 177193 (D. S.C. December 14, 2
D.D.C.: Jones on remand: no suppression of GPS because good faith exception applies
Antoine Jones won his landmark case holding GPS tracking requires a warrant, but he loses on remand to the good faith exception. United States v. Jones, 2012 U.S. Dist. LEXIS 177294 (D. D.C. December 14, 2012): Defendant, with the support of an amici curiae brief filed by Electronic Frontier Founda
D.Kan.: Uncorroborated tip for school strip search doesn’t overcome qualified immunity; it’s plaintiff’s burden
An uncorroborated tip led to a strip search of a female student in school. Nothing was found, and the student was threatened with trouble if she talked about it. The question is close, but the court finds that plaintiff did not show sufficient precedent that an uncorroborated tip is not enough for a
IL: Officer’s own testimony didn’t support that defendant was evading
There was no indication from the officer’s testimony that defendant saw the police car and continued to drive, was attempting to evade the police, or otherwise acted in a furtive manner. Therefore, the motion to suppress should have been granted. People v. Petty, 2012 Ill. App. LEXIS 1004, 2012 IL A
D.Neb.: Search of defendant’s car for officer safety was too intense, a de facto search incident, and unreasonble
The search of defendant’s car was not based on officer safety; it was a de facto search incident without probable cause under the guise of officer safety, and the motion to suppress is granted. A search of a closed container was unreasonable. United States v. Morgan, 2012 U.S. Dist. LEXIS 175192 (D.
OH9: Acquittal on basis for stop doesn’t mean motion to suppress stop would have been granted
Defendant was acquitted of a weaving offense, but convicted of DUI for driving on the wrong side of the road. Defense counsel was not ineffective for not moving to suppress the stop because the acquittal of the weaving charge doesn’t mean anything on the DUI and the basis for the stop. State v. Arno
Matt Taibbi: Too Big To Prosecute? “Outrageous HSBC Settlement Proves the Drug War is a Joke”
Rolling Stone: Outrageous HSBC Settlement Proves the Drug War is a Joke by Matt Taibbi: If you’ve ever been arrested on a drug charge, if you’ve ever spent even a day in jail for having a stem of marijuana in your pocket or “drug paraphernalia” in your gym bag, Assistant Attorney General and longti
PA: Defendant’s front driveway not protected curtilage where his damaged car was parked and anyone could walk up
The police did not violate curtilage by walking up to defendant’s car parked in his front driveway that had been damaged in a hit-and-run, was missing a bumper, and had its airbags deployed. Commonwealth v. Simmen, 2012 PA Super 268, 2012 Pa. Super. LEXIS 4084 (December 11, 2012). Defendant had no
N.D.Ala.: Police entry 22 minutes before SW issued was reasonable because of exigent circumstances
A warrant was being sought, and the officers waiting for the warrant reasonably figured that their cover had been blown and it was time to secure the premises before the warrant arrived. The seizure of the house and protective sweep 22 minutes before the warrant arrived wasn’t unreasonable. United S
E.D.Tenn.: Defendant fails to show part of affidavit false; even it if was, it was immaterial
The USMJ granted a Franks hearing and concluded that the statements were not materially false and removing them still left probable cause. Therefore, no suppression. United States v. Houston, 2012 U.S. Dist. LEXIS 175955 (E.D. Tenn. November 21, 2012)*, R&R 2012 U.S. Dist. LEXIS 176812 (E.D. Ten
IL: No exigency for warrantless entry after controlled delivery
Police were delivering marijuana to defendant’s house. They planned it for 11 hours, and they had no exigent circumstances. Worse, they never even argued exigent circumstances. People v. Krinitsky, 2012 Ill. App. LEXIS 998, 2012 IL App (1st) 120016 (December 11, 2012)*: [**P30] In this case, the
CA3: Anders brief rejected; the Fourth Amendment claim here is at least arguable and must be discussed more fully
Anders brief rejected; the Fourth Amendment claim here is at least arguable and must be discussed more fully. The court won’t reject it out of hand. United States v. Telfair, 2012 U.S. App. LEXIS 25376 (3d Cir. December 12, 2012)*: In addition, the importance of the evidence seized from 185 Parker
D.Minn.: Nexus for a suspect’s home is based on “common sense” appeal of the inference evidence may be found there
Nexus for a suspect’s home is based on “common sense” appeal of the inference evidence may be found there after a crime elsewhere. United States v. Morris, 2012 U.S. Dist. LEXIS 175977 (D. Minn. December 12, 2012): Morris argues that there was insufficient evidence of a nexus between Morris’s home
CA11: The way cash is packaged can add to probable cause
Probable cause existed for seizure of money from a car by the way it was bundled and packaged, among other things. Legitimate businesses do not transport their cash in cardboard boxes. United States v. Julian, 2012 U.S. App. LEXIS 25356 (11th Cir. December 12, 2012)*: In determining whether probabl
OH: An individual subject to an arrest warrant does not forfeit all expectations of privacy from illegal arrest
An individual subject to an arrest warrant does not forfeit all expectations of privacy from illegal arrest. State v. Gardner, 2012 Ohio 5683, 2012 Ohio LEXIS 3089 (December 6, 2012): [*P1] In this appeal, we consider whether an individual who is the subject of an outstanding arrest warrant forfei
CA4: Where there’s PC, officers telling the defendant they believed he had child pornography on his computer was exigency to seize it
Telling a person that he’s the target of a child pornography investigation creates exigency to seize his work computer so he won’t destroy what’s on it. Here, the officers told defendant they had probable cause against him. United States v. Brown, 2012 U.S. App. LEXIS 25012 (4th Cir. December 6, 201
DE: Criminal impersonation arrest during traffic stop supports SI
Defendant was arrested for criminal impersonation for giving false name, address, and DOB to officer during a traffic stop, and that supported his search incident. Stafford v. State, 2012 Del. LEXIS 622 (December 4, 2012). Validity of consent issue is not one normally appealable by the state in Ark
MI: Defendant’s revocation of his consent did not make the officers’ presence unlawful
Defendant’s revocation of his consent did not make the officers’ presence unlawful for purposes of his resisting arrest prosecution. People v. Kodlowski, 2012 Mich. App. LEXIS 2440 (December 4, 2012).* There was [apparently] probable cause for plaintiff’s arrest and the impoundment of his car, so h
E.D.N.C.: Defendant staying at friend’s house on house arrest had no REP in their storage room
Defendant was staying at a house on house arrest, and he did not have a reasonable expectation of privacy as to its storage room to which he had a key. He did not have exclusive access to it, and others came and went. United States v. Gardner, 2012 U.S. Dist. LEXIS 171927 (E.D. N.C. August 9, 2012).
D.S.D.: Wrong house number on SW was a correctable error where right house was searched
The wrong number for the address of defendant’s place (“34” not “32”) was not a constitutional error. The correct color was shown, and the officers made certain that they entered the correct house when they got there by rechecking with other sources. United States v. Running Shield, 2012 U.S. Dist.
Kansas: Topeka City Council Repeals Ban on Loaded Handguns in Vehicles
On Tuesday, the Topeka City Council voted unanimously to overturn its outdated prohibition against carrying loaded handguns in your vehicle. In a 10-0 vote, Mayor Bill Bunten and nine city council members furthered Kansas’ strong tradition of Second Amendment support by bringing the Topeka in line
BATFE Taking Comments on “Sporting Purposes” Exemption to “Armor Piercing Ammunition” Law Until Dec. 31
The Bureau of Alcohol, Tobacco, Firearms and Explosives is taking public comments on its website until December 31, with regard to how it should determine what types of projectiles meet the “sporting purposes” exception to the federal “armor piercing ammunition” law. At this time, the question cente
Anti-Hunters Want You Labeled as a Domestic Terrorist
Being an integral part of America’s remarkable wildlife restoration success story is, at times, a thankless job, but having some animal “rights” fanatics petition the White House to label us as “domestic terrorists” for our efforts is something new altogether. These anti-hunting zealots state that
Outrage of the Week: Sports Columnist Likens NRA to KKK
Sportscaster Bob Costas’ misplaced anti-gun rant during the halftime of NBC’s broadcast ofSunday Night Football has received considerable media coverage and has been roundly criticized for interjecting politics into a what should be an entertainment program (please see related story above). Much le
Bob Costas Uses Half-Time “Commentary” to Bash American Gun Owners
As most of you know, NBC sportscaster Bob Costas has deservedly come under fire for his latest “sports commentary,” offered up to unsuspecting viewers on this week’s “Sunday Night Football” half-time segment. Blaming the tragic murder-suicide committed by Kansas City Chiefs linebacker Jovan Belch
SSRN: “To Be Secure: The Forgotten Words of the Fourth Amendment”
SSRN: To Be Secure: The Forgotten Words of the Fourth Amendment by Luke M. Milligan: The Fourth Amendment of the U.S. Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..
N.D.Iowa: Dog sniff at apartment door validly supported search warrant
A drug dog alerted at defendant’s apartment door, and this supported a search warrant. The court declines to follow Jardines v. Florida, 73 So.3d 34 (Fla. 2011), cert. granted, 132 S. Ct. 995 (2012), despite the fact it was argued a month earlier [and would thus come down any day now], instead follo
CA6: Clearly erroneous explained again
Crediting the officers’ testimony that defendant consented to a patdown that produced a sawed-off shotgun was not clearly erroneous. United States v. Oldham, 2012 U.S. App. LEXIS 24686, 2012 FED App. 01227N (6th Cir. November 28, 2012). Clearly erroneous explained: The district court did not commit
FL2: Search of school bookbag without reasonable suspicion of anything
The juvenile had an early meeting with her school counselor, and, after the meeting, she had to leave her bookbag because of a school rule against bookbags in the hallway. Four times during the day she came and asked for access to the bookbag which was denied. Based on that, the counselor decided to
Ohio Plain Dealer: “Keep DNA evidence private”
Ohio Plain Dealer: Keep DNA evidence private by Jonathan Witmer-Rich and Brendan Heil: On Nov. 1, the Ohio Supreme Court issued a startling — and unnecessary — opinion eroding DNA privacy for Ohio citizens. The court held that the Fourth Amendment does not protect an individual’s personal DNA pro
CA9: Govt failed to prove exigency for warrantless entry
The box delivered to defendant had a beeper inside that was supposed to emit a continuous tone when it was opened. It malfunctioned and continued to emit a continuous tone before it left police custody. There were no exigent circumstances justifying a warrantless entry into defendant’s dwelling to s
CA7: Govt failed to prove exigency; its theory was speculative
Government failed to prove its theory of protective sweep. It’s argument essentially put the burden on the defendant to prove that the protective sweep was unjustified, and that’s wrong. Also, the government’s waiver of an opportunity to put on additional proof of exigency before the Magistrate Judg
MD: Suppression judges act like appellate judges and shouldn’t second guess PC
A suppression hearing judge sits like an appellate judge in determining the adequacy of the showing of probable cause. The suppression judge improperly second guessed the probable cause here, and the suppression order is reversed. State v. Johnson, 2012 Md. App. LEXIS 146 (November 30, 2012) (Moylan
GA: Arrest for obstruction didn’t support SI under Gant
Defendant was arrested for obstruction, and the search of his truck after he was handcuffed was invalid under Gant. Hargis v. State, 2012 Ga. App. LEXIS 1028 (November 29, 2012). The court credits the officers’ testimony that defendant spontaneously admitted to having a gun on him after a brief enc
D.D.C.: SW for robbery proceeds not stale just because a wily robber might dispose of the proceeds
Defendant’s claim that the AUSA’s signature on warrant papers is constitutionally meaningless even if it was true. Similarly, the fact the affidavit was signed on one day before one judge and the warrant issued on another day before another judge does mean anything. The information about a robbery i
CA2: Motorcycle checkpoint shown justified by special needs
A motorcycle checkpoint program in New York State was shown to be justified by special needs. Wagner v. Sprague, 2012 U.S. App. LEXIS 24542 (2d Cir. November 29, 2012) [but this is a memorandum opinion with no facts]. The government justified a protective sweep of defendant’s house by showing his h
OR: Automobile exception only applies to vehicles, not the occupants
The automobile exception applies to vehicles, not their occupants, and the state confesses error based on United States v. Di Re, 332 U.S. 581, 586-87 (1948). State v. Freeman, 2012 Ore. App. LEXIS 1356 (November 7, 2012). Defendant was seized by being ordered by loudspeaker to come out of the hous
MD: Violation of state SCA not subject to exclusion for lack of standing in provider information
The state violated the Maryland Stored Communications Act, similar to the federal Stored Communications Act, in obtaining cell phone provider created information about his account by a state subpoena served out of state. He has no reasonable expectation of privacy in that information, so the evidenc
W.D.Wash.: Franks reckless disregard shown
Franks “reckless disregard” was shown in a wiretapping case. Here, the issue was the government’s claim they could not use additional GPS devices in exhausting other investigative techniques, and then actually did after that. United States v. Hamilton, 2012 U.S. Dist. LEXIS 169290 (W.D. Wash. Novemb
D.Ariz.: Use of a pole camera for surveillance from off property not a violation of REP
Surveillance of comings and goings to defendant’s apartment with a pole camera does not constitute a “trespass” under Jones. United States v. Brooks, 2012 U.S. Dist. LEXIS 168738 (D. Ariz. November 28, 2012): Additionally, as argued by the Government, despite a block wall that could potentially act
Gun Owners Enter the Fight of Our Lives
The NRA has been saying all along that Barack Obama would unleash an assault on our Second Amendment freedoms if he won a second term. It sure didn’t take long for him to prove us right.
Illinois: Federal Court Upholds Right to Keep and Bear Arms and Awards the NRA $125,000 in Attorney’s Fees
On September 26, 2012 the United States District Court in the Northern District of Illinois awarded the National Rifle Association (NRA) $125,000 to reimburse it for attorney’s fees spent winning a lawsuit against the City of Chicago over a Chicago firearm ordinance on behalf of NRA member Shawn Gow
M.D.Ala.: Way cash was packaged supported reasonable cause it was possessed for acquiring drugs
Claimant admitted smoking marijuana two hours before his traffic stop as an explanation for the smell of marijuana in the car. He admitting having cash, but when it was found there was more than he admitted and it was packaged strangely. That was reasonable suspicion of use of the money for drug acq
OH2: Not being on the rental car paperwork and not knowing renter was RS
The officer had reasonable suspicion to continue the stop where defendant and his passenger were in a brand new rental car, neither was on the paperwork, and they didn’t know the name of the renter. State v. Jalloh, 2012 Ohio 5314, 2012 Ohio App. LEXIS 4636 (2d Dist. November 16, 2012). Because dig
NY: Defense needs to seek the inventory policy rather than just complain testimony was vague
The officer did not produce the inventory policy and testified vaguely to it. Since the defense did not ask for it, the court can’t say the inventory was unconstitutional. The inventory itself will not be micro-managed by the courts. “The inventory here, while not a model, was sufficient to meet the
Washington: “No Shooting” Ordinance to be Considered in Island County Tomorrow
Tomorrow,November 21, at 2:15 p.m., the Island County Board of Commissioners will hold awork session at which they will discuss an unnecessary “no shooting” ordinance. Commissioner Angie Homola, who lost her bid for re-election, is pushing this measure that would facilitate the imposition of shootin
Virginia: Page County Board of Supervisors to Defy State Law and Consider Restrictive Noise Ordinance
Today, November 20 at 7:00 pm., the Page County Board of Supervisors will hold a public hearing to consider a proposed noise ordinance which would amend the current law, Chapter 81, Noise, in its entirety. The proposed prohibitions contain an exemption for formal or informal sport shooting, but woul
D.S.C.: Getting out of vehicle and pushing bag under car was considered abandonment
Defendant got out of a vehicle with a bag and set it down on the ground. He pushed it under the vehicle, but not far. The court concludes that the bag was abandoned by this action. United States v. Davis, 2012 U.S. Dist. LEXIS 162396 (D. S.C. November 14, 2012): Two possible inferences can be drawn
Why The Glass-Steagall Myth Persists [Forbes.com]
The definitive history of the financial crisis remains to be written. But one thing is for sure: it shouldn’t be written by those who have a quasi-religious conviction that the freedom to pursue profits is the cause of all the world’s problems, and that government regulation is the unfailing el
Ohio: Comprehensive Pro-Gun Reform Legislation Remains Stalled
Election season has concluded and Ohioans are fortunate to have elected and re-elected numerous pro-gun candidates who will lead the state in protecting our Second Amendment rights during the 2013-2014 legislative session. However, our legislative agenda for this year is not complete. House Bill 49
OH2: Smell of burning marijuana and seeing some during knock and talk justified entry
Officer doing a knock and talk smelled burning marijuana coming from the house, and he could see marijuana on the coffee table. His entry to preserve the evidence was reasonable since the defendant knew that the officers knew it was there. State v. Miller, 2012 Ohio 5206, 2012 Ohio App. LEXIS 4558 (
OH2: Validity of judge’s appointment can’t be challenged by attacking search warrant
The alleged defective appointment of a judge to replace one who died cannot be attacked in a criminal proceeding challenging a search warrant the judge issued. The general rule is that the legality of the judge’s appointment must be tested in quo warranto and not by collateral attack in a criminal p
WA: Gant applies to all pending cases
Gant is retroactive under the Washington Constitution and applies to all nonfinal cases. State v. Louthan, 2012 Wash. LEXIS 745 (October 25, 2012). Defendant’s postconviction claim of unsworn affidavits for search warrant is shown to be false. Johnson v. State, 2012 Fla. LEXIS 2276 (November 8, 201
D.Neb.: Merely talking to a parked motorist was not a seizure
Officers talking to a motorist parked in a Lexus in a high crime area to watch out was not a seizure. The officer walked around the car and saw the butt of a gun, but it turned out to be a BB gun. United States v. Mahr, 2012 U.S. Dist. LEXIS 161000 (D. Neb. October 22, 2012): Taking the “position t
GA: Cell provider’s voluntarily relinquishing records in a recent double homicide was no ground to suppress
Georgia law limits access to cell phone records, and a double murderer was at large and the police were tying desperately to locate him. There is a statutory suppression remedy, but the telephone company turned them over voluntarily when asked by the police, in good faith. This obviated the suppress
D.Mont.: Defendant had standing in a mailed package even though the return address wasn’t his
Defendant had standing to challenge the search of a mailed package even though the return address was not his name. United States v. Gardenier, 2012 U.S. Dist. LEXIS 160030 (D. Mont. November 7, 2012): The parties do not dispute that Gardenier sent the package, even though the return label read “Je
Illinois: Cook County Commission Changed Date of Budget Hearing and Today Approved a Punitive Tax on your Second Amendment Rights
Today, the Cook County Board of Commissioners held a Special Board Meeting and approved the misguided and onerous tax on firearms purchased in Cook County (previously reported on here). This procedural move put the vote a week earlier than scheduled, as it was supposed to take place next week on N
SCOTUS grants cert in Maryland DNA case
The Supreme Court granted cert in Maryland v. King today. Chief Justice Roberts had previously granted Maryland a stay pending decision on cert. Issue: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.
Grassroots Alert: Vol. 19, No. 45 11/09/2012
Obama Administration Endorses New U.N. Arms Trade Treaty Negotiations
Just as NRA warned would happen, following the election, the Obama administration has moved forward with its plans to support a United Nations Arms Trade Treaty. On Wednesday November 7, the U.S. Mission to the U.N. made clear its support for renewed ATT negotiations, casting a vote in favor of reso
Contact Your U.S. Senators and Urge Their Support of S. 3525, the “Sportsmen’s Act of 2012″
When Congress reconvenes on November 13, one of the first items the U.S. Senate could vote on is S. 3525, “The Sportsmen’s Act of 2012.” S. 3525 is an essential piece of legislation focused on the expansion and enhancement of hunting, recreational fishing and shooting on federal public land.
No Longer Camouflaging Their Agenda, Anti-Gunners Start Gun Ban Plans
Any attempt by the anti-gun elite to hide their agenda has officially gone by the wayside. Recent electoral history had taught the gun control crowd to camouflage their intentions during the campaign season, and then wait for an opportune time to act. That tactic now appears to have run its course
A Special Debt of Gratitude
In this week’s alert, we observe two important days in our nation. Election Day always reinforces how lucky we are to live in a country where “we the people” can choose our elected leaders and have a voice in how we are governed.
2012 Election Recap
The dust is still settling from Tuesday’s voting, but one thing is clear: NRA-ILA’s 2012 election effort was one of the most sophisticated and targeted endeavors in our history. Though President Obama was able to secure a second term, pro-gun voters did turn out to the polls in significant numbers
NJ: While cell phone records were inproperly obtained, that did not lead to the discovery of the victim’s body, so it should not have been suppressed
Defendant’s cell phone records were improperly obtained by a flawed process, but the inevitable discovery doctrine supported the finding of the victim’s body after the finding of the murder weapon, so the body would not be suppressed. State v. Smith, 2012 N.J. LEXIS 1065 (October 25, 2012): We turn
GA: Officer’s discovery seatbelt was buckled did not constitutionally mandate ending stop
Defendant was stopped for a seatbelt violation, but the officer found that the seatbelt was tucked under the arm and was legal. The stop being initially lawful, the officer was not obligated to end the stop and let the defendant go immediately. Davis v. State, 2012 Ga. App. LEXIS 872 (October 23, 20
CO: A pat down solely for officer safety was unreasonable
A pat down solely for officer safety was unreasonable. People v. Berdahl, 2012 COA 179, 2012 Colo. App. LEXIS 1734 (October 25, 2012): [*P27] Nevertheless, the trial court appears to have applied a bright-line rule that an officer can conduct a pat-down search whenever he or she has an obligation
New book: The Supreme Court and the Fourth Amendment’s Exclusionary Rule by Tracey Maclin
Boston U. press release: “A celebration of the publication of The Supreme Court and the Fourth Amendment’s Exclusionary Rule by Tracey Maclin, Professor of Law,” Monday, October 29, 2012: Boston University School of Law is delighted to celebrate the publication of The Supreme Court and the Fourth A
Grits for Breakfast: “Houston hearing honed in on use of drones by law enforcement”
Grits for Breakfast: Houston hearing honed in on use of drones by law enforcement: Grits wishes I could have attended yesterday’s hearing in Houston of the US House Judiciary Committee’s Subcommittee on Crime on domestic use of unmanned drones by law enforcement, but James Pinkerton at the Houston
Grassroots Alert: Vol. 19, No. 43 10/26/2012
The NRA is deeply disappointed in Thursday’s ruling by the Fifth Circuit U.S. Court of Appeals, which upheld the federal law that bans dealer sales of handguns to law-abiding adults between the ages of 18 and 20.
With “Supporters” Like This, What Amendment Needs Enemies?
Yesterday, in a New York Daily News commentary, Rep. Carolyn McCarthy (D-N.Y.) paraphrased President Obama’s most insincere campaign talking point with a direct quote from Brady Campaign propaganda, saying “You can support the Second Amendment” by imposing “common sense” gun control laws. In particu
Whistleblower Sues Time, Inc. Over “Fast and Furious”
We reported recently that a key “Fast and Furious” whistleblower, John Dodson had called on Fortune Magazine to retract a story on the scandal that the Department of Justice Inspector General’s report showed to be full of inaccuracies.
With Just 11 Days Until Election Day, Make Sure You’re “All In!”
In 11 days we will go to the polls in what will almost surely be the most important election of our lifetimes. We all know that a second term for President Barack Obama would threaten the rights of gun owners in numerous, far-reaching ways. In last Tuesday’s presidential debate, President Obama sa
With Election Day Looming, Gun Controllers State Their “Case”
There are only 11 days remaining before this year’s elections and gun control supporters haven’t had a novel idea since we can’t remember when, so longtime gun control advocates Dan Webster, Jon Vernick and Steve Teret of the (New York City Mayor Michael) Bloomberg School of Public Health at Johns H
CA7: Strip search of jail employee was reasonable when search of his person and car came up empty and they had reason to believe he would smuggle drugs into the jail
A jailer was reasonable subjected to a strip search at work based on credible reports he would be bringing cannabis into the jail. His car was stopped and it and his person would be searched. Since drugs weren’t found in those searches, reasonable suspicion thus existed for an employee strip search.
N.D.W.Va.: Defendant did not consent to what officer was doing without asking by defendant merely not speaking
Defendant neither did nor said anything that qualified as consent. Implied consent from his failure to object when the officer was doing something anyway was not consent. United States v. Harvey, 2012 U.S. Dist. LEXIS 153511 (N.D. W.Va. October 25, 2012), R&R 2012 U.S. Dist. LEXIS 153474 (N.D. W
SeattlePI.com: “Irate crowd greets Seattle Police drone plan”
SeattlePI.com: Irate crowd greets Seattle Police drone plan / Aircraft with cameras get harsh reaction in Central District by Casey McNerthney: Seattle police may use remote control drones during future investigations, and a crowd that gathered Thursday night in the Central District was furious abo
CA2: Violation of state jurisdictional law not Fourth Amendment issue
Violation of state jurisdictional law and federal policy re customs officers and state law was irrelevant under the Fourth Amendment. United States v. Wilson, 2012 U.S. App. LEXIS 22212 (2d Cir. October 25, 2012): The district court concluded that the vehicle stop violated the Fourth Amendment bec
Volokh.com: “Magistrate Judge Denies Court Order Application for Cell Tower Dumps”
Volokh.com: Magistrate Judge Denies Court Order Application for Cell Tower Dumps by Orin Kerr: The decision is In re U.S. ex rel. Order Pursuant to 18 U.S.C. Section 2703(d), 2012 WL 4717778 (S.D. Tex. September 26, 2012) (Owlsey, M.J),, and it rejects an application under the Stored Communications
OH12: Informant communicating with cop during drug transaction with defendant was RS
Reliable informant who was communicating with defendant about drugs provided reasonable suspicion. State v. Dennis, 2012 Ohio 4877, 2012 Ohio App. LEXIS 4278 (12th Dist. October 22, 2012).* Driving too slow and not staying in one’s lane justified a stop. State v. Roetzel, 2012 Ohio 4898, 2012 Ohio
computerworld.com: “Fighting unconstitutional stingray phone surveillance that tracks innocent people”
computerworld.com: Fighting unconstitutional stingray phone surveillance that tracks innocent people by Darlene Storm: Let’s say you have your cell phone with you, even if you are not talking or texting, otherwise minding your own business, innocent of being suspected of any crime … but hey your
Law Offices of Kevin M. Smith, P.A.
Here’s an article with some good DUI tips for New Years
Click here for link…
Legal updates for 12-24-2012
NYT Editorial: “Sneaky Apps That Track Cellphones”
NYT Editorial: Sneaky Apps That Track Cellphones: A perversion of smartphone technology called “stalking apps” — precise, secretive trackings of the movements of cellphone users — is increasingly a matter of national concern, particularly for domestic abuse victims. No less threatening is the routi
Sen. Feinstein suggests national “buyback” of guns
CA6 is troubled by 3 weeks of constant video surveillance of backyard under Jones but finds it harmless
The Sixth Circuit is troubled by three weeks of constant video surveillance of defendant’s backyard by a pole camera in light of Jones and its trespass holdings. “We are inclined to agree with the Fifth Circuit that ‘[t]his type of surveillance provokes an immediate negative visceral reaction.’” Nev
TN: DNA profile in John Doe arrest warrant was particular for Fourth Amendment and tolled SOL
A woman lawyer was the target of a home invasion at aggravated attempted rape in 1994 in Nashville. She struggled with the assailant who beat her head, and she bit off a piece of skin on his finger, spitting it under the bed. He left. In 2000, a DNA profile was run on the piece of the finger, and th
E.D.Pa.: Even disregarding a misleading paragraph in the SW application there was still PC
Officers conducted a protective sweep and saw ammunition in plain view. They also had enough to seek a search warrant, and they did, including the reference to the ammunition. There was a misleading paragraph in the affidavit. Excising it and the reference to the ammunition, there was still probable
E.D.Pa.: Car subject to search for PC could be moved before the search for safety purposes
The search of defendant’s car was justified by the automobile exception with probable caues or the search incident doctrine although the car was moved before the search to the police station. Defendant was stopped on a street, and a crowd had begun to form. It was within the officers’ discretion to
Asa Hutchinson on CNN’s State of the Union
Asa Hutchinson on CNN’s State of the Union - December 23, 2012
CA6: Fourth Amendment does not require question about DL before asking about drugs
There is no constitutional requirement that the officer ask for DL before asking about drugs. Defendant here was found to have consented to a search of his vehicle. United States v. Cochrane, 2012 U.S. App. LEXIS 25980, 2012 FED App. 0416P (6th Cir. December 20, 2012)*: To the extent that Defendant
OR: State can’t rely on standing on appeal if it doesn’t raise it at suppression hearing
The state could not rely on lack of standing to support admission of the product of the search where it did not raise it at the suppressing hearing. State v. Jepson, 2012 Ore. App. LEXIS 1525 (December 19, 2012).* Defendant was on probation and in custody, and his consent was not coerced even thoug
N.D.Ala.: Defendant volunteered consent before he was asked
In the dashcam video, defendant consented to a search of his vehicle without even being asked, and it was voluntary. United States v. McGowan, 2012 U.S. Dist. LEXIS 177630 (N.D. Ala. October 30, 2012).* The stop of the vehicle was with probable cause, and the officer developed reasonable suspicion
D.S.C.: Under Randolph the police can wait for defendant to leave and ask a joint occupant for consent
Defendant was not prejudiced by defense counsel’s failure to move to suppress his girlfriend’s written consent. He was removed from the premises on arrest, and the police had no duty under Randolph to seek consent from him. United States v. Swain, 2012 U.S. Dist. LEXIS 177193 (D. S.C. December 14, 2
D.D.C.: Jones on remand: no suppression of GPS because good faith exception applies
Antoine Jones won his landmark case holding GPS tracking requires a warrant, but he loses on remand to the good faith exception. United States v. Jones, 2012 U.S. Dist. LEXIS 177294 (D. D.C. December 14, 2012): Defendant, with the support of an amici curiae brief filed by Electronic Frontier Founda
D.Kan.: Uncorroborated tip for school strip search doesn’t overcome qualified immunity; it’s plaintiff’s burden
An uncorroborated tip led to a strip search of a female student in school. Nothing was found, and the student was threatened with trouble if she talked about it. The question is close, but the court finds that plaintiff did not show sufficient precedent that an uncorroborated tip is not enough for a
IL: Officer’s own testimony didn’t support that defendant was evading
There was no indication from the officer’s testimony that defendant saw the police car and continued to drive, was attempting to evade the police, or otherwise acted in a furtive manner. Therefore, the motion to suppress should have been granted. People v. Petty, 2012 Ill. App. LEXIS 1004, 2012 IL A
D.Neb.: Search of defendant’s car for officer safety was too intense, a de facto search incident, and unreasonble
The search of defendant’s car was not based on officer safety; it was a de facto search incident without probable cause under the guise of officer safety, and the motion to suppress is granted. A search of a closed container was unreasonable. United States v. Morgan, 2012 U.S. Dist. LEXIS 175192 (D.
OH9: Acquittal on basis for stop doesn’t mean motion to suppress stop would have been granted
Defendant was acquitted of a weaving offense, but convicted of DUI for driving on the wrong side of the road. Defense counsel was not ineffective for not moving to suppress the stop because the acquittal of the weaving charge doesn’t mean anything on the DUI and the basis for the stop. State v. Arno
Matt Taibbi: Too Big To Prosecute? “Outrageous HSBC Settlement Proves the Drug War is a Joke”
Rolling Stone: Outrageous HSBC Settlement Proves the Drug War is a Joke by Matt Taibbi: If you’ve ever been arrested on a drug charge, if you’ve ever spent even a day in jail for having a stem of marijuana in your pocket or “drug paraphernalia” in your gym bag, Assistant Attorney General and longti
PA: Defendant’s front driveway not protected curtilage where his damaged car was parked and anyone could walk up
The police did not violate curtilage by walking up to defendant’s car parked in his front driveway that had been damaged in a hit-and-run, was missing a bumper, and had its airbags deployed. Commonwealth v. Simmen, 2012 PA Super 268, 2012 Pa. Super. LEXIS 4084 (December 11, 2012). Defendant had no
N.D.Ala.: Police entry 22 minutes before SW issued was reasonable because of exigent circumstances
A warrant was being sought, and the officers waiting for the warrant reasonably figured that their cover had been blown and it was time to secure the premises before the warrant arrived. The seizure of the house and protective sweep 22 minutes before the warrant arrived wasn’t unreasonable. United S
E.D.Tenn.: Defendant fails to show part of affidavit false; even it if was, it was immaterial
The USMJ granted a Franks hearing and concluded that the statements were not materially false and removing them still left probable cause. Therefore, no suppression. United States v. Houston, 2012 U.S. Dist. LEXIS 175955 (E.D. Tenn. November 21, 2012)*, R&R 2012 U.S. Dist. LEXIS 176812 (E.D. Ten
IL: No exigency for warrantless entry after controlled delivery
Police were delivering marijuana to defendant’s house. They planned it for 11 hours, and they had no exigent circumstances. Worse, they never even argued exigent circumstances. People v. Krinitsky, 2012 Ill. App. LEXIS 998, 2012 IL App (1st) 120016 (December 11, 2012)*: [**P30] In this case, the
CA3: Anders brief rejected; the Fourth Amendment claim here is at least arguable and must be discussed more fully
Anders brief rejected; the Fourth Amendment claim here is at least arguable and must be discussed more fully. The court won’t reject it out of hand. United States v. Telfair, 2012 U.S. App. LEXIS 25376 (3d Cir. December 12, 2012)*: In addition, the importance of the evidence seized from 185 Parker
D.Minn.: Nexus for a suspect’s home is based on “common sense” appeal of the inference evidence may be found there
Nexus for a suspect’s home is based on “common sense” appeal of the inference evidence may be found there after a crime elsewhere. United States v. Morris, 2012 U.S. Dist. LEXIS 175977 (D. Minn. December 12, 2012): Morris argues that there was insufficient evidence of a nexus between Morris’s home
CA11: The way cash is packaged can add to probable cause
Probable cause existed for seizure of money from a car by the way it was bundled and packaged, among other things. Legitimate businesses do not transport their cash in cardboard boxes. United States v. Julian, 2012 U.S. App. LEXIS 25356 (11th Cir. December 12, 2012)*: In determining whether probabl
OH: An individual subject to an arrest warrant does not forfeit all expectations of privacy from illegal arrest
An individual subject to an arrest warrant does not forfeit all expectations of privacy from illegal arrest. State v. Gardner, 2012 Ohio 5683, 2012 Ohio LEXIS 3089 (December 6, 2012): [*P1] In this appeal, we consider whether an individual who is the subject of an outstanding arrest warrant forfei
CA4: Where there’s PC, officers telling the defendant they believed he had child pornography on his computer was exigency to seize it
Telling a person that he’s the target of a child pornography investigation creates exigency to seize his work computer so he won’t destroy what’s on it. Here, the officers told defendant they had probable cause against him. United States v. Brown, 2012 U.S. App. LEXIS 25012 (4th Cir. December 6, 201
DE: Criminal impersonation arrest during traffic stop supports SI
Defendant was arrested for criminal impersonation for giving false name, address, and DOB to officer during a traffic stop, and that supported his search incident. Stafford v. State, 2012 Del. LEXIS 622 (December 4, 2012). Validity of consent issue is not one normally appealable by the state in Ark
MI: Defendant’s revocation of his consent did not make the officers’ presence unlawful
Defendant’s revocation of his consent did not make the officers’ presence unlawful for purposes of his resisting arrest prosecution. People v. Kodlowski, 2012 Mich. App. LEXIS 2440 (December 4, 2012).* There was [apparently] probable cause for plaintiff’s arrest and the impoundment of his
Legal news 12-17-2012
N.D.Ala.: Defendant volunteered consent before he was asked
In the dashcam video, defendant consented to a search of his vehicle without even being asked, and it was voluntary. United States v. McGowan, 2012 U.S. Dist. LEXIS 177630 (N.D. Ala. October 30, 2012).* The stop of the vehicle was with probable cause, and the officer developed reasonable suspicion
In the dashcam video, defendant consented to a search of his vehicle without even being asked, and it was voluntary. United States v. McGowan, 2012 U.S. Dist. LEXIS 177630 (N.D. Ala. October 30, 2012).* The stop of the vehicle was with probable cause, and the officer developed reasonable suspicion
D.S.C.: Under Randolph the police can wait for defendant to leave and ask a joint occupant for consent
Defendant was not prejudiced by defense counsel’s failure to move to suppress his girlfriend’s written consent. He was removed from the premises on arrest, and the police had no duty under Randolph to seek consent from him. United States v. Swain, 2012 U.S. Dist. LEXIS 177193 (D. S.C. December 14, 2
D.D.C.: Jones on remand: no suppression of GPS because good faith exception applies
Antoine Jones won his landmark case holding GPS tracking requires a warrant, but he loses on remand to the good faith exception. United States v. Jones, 2012 U.S. Dist. LEXIS 177294 (D. D.C. December 14, 2012): Defendant, with the support of an amici curiae brief filed by Electronic Frontier Founda
D.Kan.: Uncorroborated tip for school strip search doesn’t overcome qualified immunity; it’s plaintiff’s burden
An uncorroborated tip led to a strip search of a female student in school. Nothing was found, and the student was threatened with trouble if she talked about it. The question is close, but the court finds that plaintiff did not show sufficient precedent that an uncorroborated tip is not enough for a
IL: Officer’s own testimony didn’t support that defendant was evading
There was no indication from the officer’s testimony that defendant saw the police car and continued to drive, was attempting to evade the police, or otherwise acted in a furtive manner. Therefore, the motion to suppress should have been granted. People v. Petty, 2012 Ill. App. LEXIS 1004, 2012 IL A
D.Neb.: Search of defendant’s car for officer safety was too intense, a de facto search incident, and unreasonble
The search of defendant’s car was not based on officer safety; it was a de facto search incident without probable cause under the guise of officer safety, and the motion to suppress is granted. A search of a closed container was unreasonable. United States v. Morgan, 2012 U.S. Dist. LEXIS 175192 (D.
OH9: Acquittal on basis for stop doesn’t mean motion to suppress stop would have been granted
Defendant was acquitted of a weaving offense, but convicted of DUI for driving on the wrong side of the road. Defense counsel was not ineffective for not moving to suppress the stop because the acquittal of the weaving charge doesn’t mean anything on the DUI and the basis for the stop. State v. Arno
Matt Taibbi: Too Big To Prosecute? “Outrageous HSBC Settlement Proves the Drug War is a Joke”
Rolling Stone: Outrageous HSBC Settlement Proves the Drug War is a Joke by Matt Taibbi: If you’ve ever been arrested on a drug charge, if you’ve ever spent even a day in jail for having a stem of marijuana in your pocket or “drug paraphernalia” in your gym bag, Assistant Attorney General and longti
PA: Defendant’s front driveway not protected curtilage where his damaged car was parked and anyone could walk up
The police did not violate curtilage by walking up to defendant’s car parked in his front driveway that had been damaged in a hit-and-run, was missing a bumper, and had its airbags deployed. Commonwealth v. Simmen, 2012 PA Super 268, 2012 Pa. Super. LEXIS 4084 (December 11, 2012). Defendant had no
N.D.Ala.: Police entry 22 minutes before SW issued was reasonable because of exigent circumstances
A warrant was being sought, and the officers waiting for the warrant reasonably figured that their cover had been blown and it was time to secure the premises before the warrant arrived. The seizure of the house and protective sweep 22 minutes before the warrant arrived wasn’t unreasonable. United S
E.D.Tenn.: Defendant fails to show part of affidavit false; even it if was, it was immaterial
The USMJ granted a Franks hearing and concluded that the statements were not materially false and removing them still left probable cause. Therefore, no suppression. United States v. Houston, 2012 U.S. Dist. LEXIS 175955 (E.D. Tenn. November 21, 2012)*, R&R 2012 U.S. Dist. LEXIS 176812 (E.D. Ten
IL: No exigency for warrantless entry after controlled delivery
Police were delivering marijuana to defendant’s house. They planned it for 11 hours, and they had no exigent circumstances. Worse, they never even argued exigent circumstances. People v. Krinitsky, 2012 Ill. App. LEXIS 998, 2012 IL App (1st) 120016 (December 11, 2012)*: [**P30] In this case, the
CA3: Anders brief rejected; the Fourth Amendment claim here is at least arguable and must be discussed more fully
Anders brief rejected; the Fourth Amendment claim here is at least arguable and must be discussed more fully. The court won’t reject it out of hand. United States v. Telfair, 2012 U.S. App. LEXIS 25376 (3d Cir. December 12, 2012)*: In addition, the importance of the evidence seized from 185 Parker
D.Minn.: Nexus for a suspect’s home is based on “common sense” appeal of the inference evidence may be found there
Nexus for a suspect’s home is based on “common sense” appeal of the inference evidence may be found there after a crime elsewhere. United States v. Morris, 2012 U.S. Dist. LEXIS 175977 (D. Minn. December 12, 2012): Morris argues that there was insufficient evidence of a nexus between Morris’s home
CA11: The way cash is packaged can add to probable cause
Probable cause existed for seizure of money from a car by the way it was bundled and packaged, among other things. Legitimate businesses do not transport their cash in cardboard boxes. United States v. Julian, 2012 U.S. App. LEXIS 25356 (11th Cir. December 12, 2012)*: In determining whether probabl
OH: An individual subject to an arrest warrant does not forfeit all expectations of privacy from illegal arrest
An individual subject to an arrest warrant does not forfeit all expectations of privacy from illegal arrest. State v. Gardner, 2012 Ohio 5683, 2012 Ohio LEXIS 3089 (December 6, 2012): [*P1] In this appeal, we consider whether an individual who is the subject of an outstanding arrest warrant forfei
CA4: Where there’s PC, officers telling the defendant they believed he had child pornography on his computer was exigency to seize it
Telling a person that he’s the target of a child pornography investigation creates exigency to seize his work computer so he won’t destroy what’s on it. Here, the officers told defendant they had probable cause against him. United States v. Brown, 2012 U.S. App. LEXIS 25012 (4th Cir. December 6, 201
DE: Criminal impersonation arrest during traffic stop supports SI
Defendant was arrested for criminal impersonation for giving false name, address, and DOB to officer during a traffic stop, and that supported his search incident. Stafford v. State, 2012 Del. LEXIS 622 (December 4, 2012). Validity of consent issue is not one normally appealable by the state in Ark
MI: Defendant’s revocation of his consent did not make the officers’ presence unlawful
Defendant’s revocation of his consent did not make the officers’ presence unlawful for purposes of his resisting arrest prosecution. People v. Kodlowski, 2012 Mich. App. LEXIS 2440 (December 4, 2012).* There was [apparently] probable cause for plaintiff’s arrest and the impoundment of his car, so h
E.D.N.C.: Defendant staying at friend’s house on house arrest had no REP in their storage room
Defendant was staying at a house on house arrest, and he did not have a reasonable expectation of privacy as to its storage room to which he had a key. He did not have exclusive access to it, and others came and went. United States v. Gardner, 2012 U.S. Dist. LEXIS 171927 (E.D. N.C. August 9, 2012).
D.S.D.: Wrong house number on SW was a correctable error where right house was searched
The wrong number for the address of defendant’s place (“34” not “32”) was not a constitutional error. The correct color was shown, and the officers made certain that they entered the correct house when they got there by rechecking with other sources. United States v. Running Shield, 2012 U.S. Dist.
Kansas: Topeka City Council Repeals Ban on Loaded Handguns in Vehicles
On Tuesday, the Topeka City Council voted unanimously to overturn its outdated prohibition against carrying loaded handguns in your vehicle. In a 10-0 vote, Mayor Bill Bunten and nine city council members furthered Kansas’ strong tradition of Second Amendment support by bringing the Topeka in line
BATFE Taking Comments on “Sporting Purposes” Exemption to “Armor Piercing Ammunition” Law Until Dec. 31
The Bureau of Alcohol, Tobacco, Firearms and Explosives is taking public comments on its website until December 31, with regard to how it should determine what types of projectiles meet the “sporting purposes” exception to the federal “armor piercing ammunition” law. At this time, the question cente
Anti-Hunters Want You Labeled as a Domestic Terrorist
Being an integral part of America’s remarkable wildlife restoration success story is, at times, a thankless job, but having some animal “rights” fanatics petition the White House to label us as “domestic terrorists” for our efforts is something new altogether. These anti-hunting zealots state that
Outrage of the Week: Sports Columnist Likens NRA to KKK
Sportscaster Bob Costas’ misplaced anti-gun rant during the halftime of NBC’s broadcast ofSunday Night Football has received considerable media coverage and has been roundly criticized for interjecting politics into a what should be an entertainment program (please see related story above). Much le
Bob Costas Uses Half-Time “Commentary” to Bash American Gun Owners
As most of you know, NBC sportscaster Bob Costas has deservedly come under fire for his latest “sports commentary,” offered up to unsuspecting viewers on this week’s “Sunday Night Football” half-time segment. Blaming the tragic murder-suicide committed by Kansas City Chiefs linebacker Jovan Belch
SSRN: “To Be Secure: The Forgotten Words of the Fourth Amendment”
SSRN: To Be Secure: The Forgotten Words of the Fourth Amendment by Luke M. Milligan: The Fourth Amendment of the U.S. Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..
N.D.Iowa: Dog sniff at apartment door validly supported search warrant
A drug dog alerted at defendant’s apartment door, and this supported a search warrant. The court declines to follow Jardines v. Florida, 73 So.3d 34 (Fla. 2011), cert. granted, 132 S. Ct. 995 (2012), despite the fact it was argued a month earlier [and would thus come down any day now], instead follo
CA6: Clearly erroneous explained again
Crediting the officers’ testimony that defendant consented to a patdown that produced a sawed-off shotgun was not clearly erroneous. United States v. Oldham, 2012 U.S. App. LEXIS 24686, 2012 FED App. 01227N (6th Cir. November 28, 2012). Clearly erroneous explained: The district court did not commit
FL2: Search of school bookbag without reasonable suspicion of anything
The juvenile had an early meeting with her school counselor, and, after the meeting, she had to leave her bookbag because of a school rule against bookbags in the hallway. Four times during the day she came and asked for access to the bookbag which was denied. Based on that, the counselor decided to
Ohio Plain Dealer: “Keep DNA evidence private”
Ohio Plain Dealer: Keep DNA evidence private by Jonathan Witmer-Rich and Brendan Heil: On Nov. 1, the Ohio Supreme Court issued a startling — and unnecessary — opinion eroding DNA privacy for Ohio citizens. The court held that the Fourth Amendment does not protect an individual’s personal DNA pro
CA9: Govt failed to prove exigency for warrantless entry
The box delivered to defendant had a beeper inside that was supposed to emit a continuous tone when it was opened. It malfunctioned and continued to emit a continuous tone before it left police custody. There were no exigent circumstances justifying a warrantless entry into defendant’s dwelling to s
CA7: Govt failed to prove exigency; its theory was speculative
Government failed to prove its theory of protective sweep. It’s argument essentially put the burden on the defendant to prove that the protective sweep was unjustified, and that’s wrong. Also, the government’s waiver of an opportunity to put on additional proof of exigency before the Magistrate Judg
MD: Suppression judges act like appellate judges and shouldn’t second guess PC
A suppression hearing judge sits like an appellate judge in determining the adequacy of the showing of probable cause. The suppression judge improperly second guessed the probable cause here, and the suppression order is reversed. State v. Johnson, 2012 Md. App. LEXIS 146 (November 30, 2012) (Moylan
GA: Arrest for obstruction didn’t support SI under Gant
Defendant was arrested for obstruction, and the search of his truck after he was handcuffed was invalid under Gant. Hargis v. State, 2012 Ga. App. LEXIS 1028 (November 29, 2012). The court credits the officers’ testimony that defendant spontaneously admitted to having a gun on him after a brief enc
D.D.C.: SW for robbery proceeds not stale just because a wily robber might dispose of the proceeds
Defendant’s claim that the AUSA’s signature on warrant papers is constitutionally meaningless even if it was true. Similarly, the fact the affidavit was signed on one day before one judge and the warrant issued on another day before another judge does mean anything. The information about a robbery i
CA2: Motorcycle checkpoint shown justified by special needs
A motorcycle checkpoint program in New York State was shown to be justified by special needs. Wagner v. Sprague, 2012 U.S. App. LEXIS 24542 (2d Cir. November 29, 2012) [but this is a memorandum opinion with no facts]. The government justified a protective sweep of defendant’s house by showing his h
OR: Automobile exception only applies to vehicles, not the occupants
The automobile exception applies to vehicles, not their occupants, and the state confesses error based on United States v. Di Re, 332 U.S. 581, 586-87 (1948). State v. Freeman, 2012 Ore. App. LEXIS 1356 (November 7, 2012). Defendant was seized by being ordered by loudspeaker to come out of the hous
MD: Violation of state SCA not subject to exclusion for lack of standing in provider information
The state violated the Maryland Stored Communications Act, similar to the federal Stored Communications Act, in obtaining cell phone provider created information about his account by a state subpoena served out of state. He has no reasonable expectation of privacy in that information, so the evidenc
W.D.Wash.: Franks reckless disregard shown
Franks “reckless disregard” was shown in a wiretapping case. Here, the issue was the government’s claim they could not use additional GPS devices in exhausting other investigative techniques, and then actually did after that. United States v. Hamilton, 2012 U.S. Dist. LEXIS 169290 (W.D. Wash. Novemb
D.Ariz.: Use of a pole camera for surveillance from off property not a violation of REP
Surveillance of comings and goings to defendant’s apartment with a pole camera does not constitute a “trespass” under Jones. United States v. Brooks, 2012 U.S. Dist. LEXIS 168738 (D. Ariz. November 28, 2012): Additionally, as argued by the Government, despite a block wall that could potentially act
Gun Owners Enter the Fight of Our Lives
The NRA has been saying all along that Barack Obama would unleash an assault on our Second Amendment freedoms if he won a second term. It sure didn’t take long for him to prove us right.
Illinois: Federal Court Upholds Right to Keep and Bear Arms and Awards the NRA $125,000 in Attorney’s Fees
On September 26, 2012 the United States District Court in the Northern District of Illinois awarded the National Rifle Association (NRA) $125,000 to reimburse it for attorney’s fees spent winning a lawsuit against the City of Chicago over a Chicago firearm ordinance on behalf of NRA member Shawn Gow
M.D.Ala.: Way cash was packaged supported reasonable cause it was possessed for acquiring drugs
Claimant admitted smoking marijuana two hours before his traffic stop as an explanation for the smell of marijuana in the car. He admitting having cash, but when it was found there was more than he admitted and it was packaged strangely. That was reasonable suspicion of use of the money for drug acq
OH2: Not being on the rental car paperwork and not knowing renter was RS
The officer had reasonable suspicion to continue the stop where defendant and his passenger were in a brand new rental car, neither was on the paperwork, and they didn’t know the name of the renter. State v. Jalloh, 2012 Ohio 5314, 2012 Ohio App. LEXIS 4636 (2d Dist. November 16, 2012). Because dig
NY: Defense needs to seek the inventory policy rather than just complain testimony was vague
The officer did not produce the inventory policy and testified vaguely to it. Since the defense did not ask for it, the court can’t say the inventory was unconstitutional. The inventory itself will not be micro-managed by the courts. “The inventory here, while not a model, was sufficient to meet the
Washington: “No Shooting” Ordinance to be Considered in Island County Tomorrow
Tomorrow,November 21, at 2:15 p.m., the Island County Board of Commissioners will hold awork session at which they will discuss an unnecessary “no shooting” ordinance. Commissioner Angie Homola, who lost her bid for re-election, is pushing this measure that would facilitate the imposition of shootin
Virginia: Page County Board of Supervisors to Defy State Law and Consider Restrictive Noise Ordinance
Today, November 20 at 7:00 pm., the Page County Board of Supervisors will hold a public hearing to consider a proposed noise ordinance which would amend the current law, Chapter 81, Noise, in its entirety. The proposed prohibitions contain an exemption for formal or informal sport shooting, but woul
D.S.C.: Getting out of vehicle and pushing bag under car was considered abandonment
Defendant got out of a vehicle with a bag and set it down on the ground. He pushed it under the vehicle, but not far. The court concludes that the bag was abandoned by this action. United States v. Davis, 2012 U.S. Dist. LEXIS 162396 (D. S.C. November 14, 2012): Two possible inferences can be drawn
Why The Glass-Steagall Myth Persists [Forbes.com]
The definitive history of the financial crisis remains to be written. But one thing is for sure: it shouldn’t be written by those who have a quasi-religious conviction that the freedom to pursue profits is the cause of all the world’s problems, and that government regulation is the unfailing el
Ohio: Comprehensive Pro-Gun Reform Legislation Remains Stalled
Election season has concluded and Ohioans are fortunate to have elected and re-elected numerous pro-gun candidates who will lead the state in protecting our Second Amendment rights during the 2013-2014 legislative session. However, our legislative agenda for this year is not complete. House Bill 49
OH2: Smell of burning marijuana and seeing some during knock and talk justified entry
Officer doing a knock and talk smelled burning marijuana coming from the house, and he could see marijuana on the coffee table. His entry to preserve the evidence was reasonable since the defendant knew that the officers knew it was there. State v. Miller, 2012 Ohio 5206, 2012 Ohio App. LEXIS 4558 (
OH2: Validity of judge’s appointment can’t be challenged by attacking search warrant
The alleged defective appointment of a judge to replace one who died cannot be attacked in a criminal proceeding challenging a search warrant the judge issued. The general rule is that the legality of the judge’s appointment must be tested in quo warranto and not by collateral attack in a criminal p
WA: Gant applies to all pending cases
Gant is retroactive under the Washington Constitution and applies to all nonfinal cases. State v. Louthan, 2012 Wash. LEXIS 745 (October 25, 2012). Defendant’s postconviction claim of unsworn affidavits for search warrant is shown to be false. Johnson v. State, 2012 Fla. LEXIS 2276 (November 8, 201
D.Neb.: Merely talking to a parked motorist was not a seizure
Officers talking to a motorist parked in a Lexus in a high crime area to watch out was not a seizure. The officer walked around the car and saw the butt of a gun, but it turned out to be a BB gun. United States v. Mahr, 2012 U.S. Dist. LEXIS 161000 (D. Neb. October 22, 2012): Taking the “position t
GA: Cell provider’s voluntarily relinquishing records in a recent double homicide was no ground to suppress
Georgia law limits access to cell phone records, and a double murderer was at large and the police were tying desperately to locate him. There is a statutory suppression remedy, but the telephone company turned them over voluntarily when asked by the police, in good faith. This obviated the suppress
D.Mont.: Defendant had standing in a mailed package even though the return address wasn’t his
Defendant had standing to challenge the search of a mailed package even though the return address was not his name. United States v. Gardenier, 2012 U.S. Dist. LEXIS 160030 (D. Mont. November 7, 2012): The parties do not dispute that Gardenier sent the package, even though the return label read “Je
Illinois: Cook County Commission Changed Date of Budget Hearing and Today Approved a Punitive Tax on your Second Amendment Rights
Today, the Cook County Board of Commissioners held a Special Board Meeting and approved the misguided and onerous tax on firearms purchased in Cook County (previously reported on here). This procedural move put the vote a week earlier than scheduled, as it was supposed to take place next week on N
SCOTUS grants cert in Maryland DNA case
The Supreme Court granted cert in Maryland v. King today. Chief Justice Roberts had previously granted Maryland a stay pending decision on cert. Issue: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.
Grassroots Alert: Vol. 19, No. 45 11/09/2012
Obama Administration Endorses New U.N. Arms Trade Treaty Negotiations
Just as NRA warned would happen, following the election, the Obama administration has moved forward with its plans to support a United Nations Arms Trade Treaty. On Wednesday November 7, the U.S. Mission to the U.N. made clear its support for renewed ATT negotiations, casting a vote in favor of reso
Contact Your U.S. Senators and Urge Their Support of S. 3525, the “Sportsmen’s Act of 2012″
When Congress reconvenes on November 13, one of the first items the U.S. Senate could vote on is S. 3525, “The Sportsmen’s Act of 2012.” S. 3525 is an essential piece of legislation focused on the expansion and enhancement of hunting, recreational fishing and shooting on federal public land.
No Longer Camouflaging Their Agenda, Anti-Gunners Start Gun Ban Plans
Any attempt by the anti-gun elite to hide their agenda has officially gone by the wayside. Recent electoral history had taught the gun control crowd to camouflage their intentions during the campaign season, and then wait for an opportune time to act. That tactic now appears to have run its course
A Special Debt of Gratitude
In this week’s alert, we observe two important days in our nation. Election Day always reinforces how lucky we are to live in a country where “we the people” can choose our elected leaders and have a voice in how we are governed.
2012 Election Recap
The dust is still settling from Tuesday’s voting, but one thing is clear: NRA-ILA’s 2012 election effort was one of the most sophisticated and targeted endeavors in our history. Though President Obama was able to secure a second term, pro-gun voters did turn out to the polls in significant numbers
NJ: While cell phone records were inproperly obtained, that did not lead to the discovery of the victim’s body, so it should not have been suppressed
Defendant’s cell phone records were improperly obtained by a flawed process, but the inevitable discovery doctrine supported the finding of the victim’s body after the finding of the murder weapon, so the body would not be suppressed. State v. Smith, 2012 N.J. LEXIS 1065 (October 25, 2012): We turn
GA: Officer’s discovery seatbelt was buckled did not constitutionally mandate ending stop
Defendant was stopped for a seatbelt violation, but the officer found that the seatbelt was tucked under the arm and was legal. The stop being initially lawful, the officer was not obligated to end the stop and let the defendant go immediately. Davis v. State, 2012 Ga. App. LEXIS 872 (October 23, 20
CO: A pat down solely for officer safety was unreasonable
A pat down solely for officer safety was unreasonable. People v. Berdahl, 2012 COA 179, 2012 Colo. App. LEXIS 1734 (October 25, 2012): [*P27] Nevertheless, the trial court appears to have applied a bright-line rule that an officer can conduct a pat-down search whenever he or she has an obligation
New book: The Supreme Court and the Fourth Amendment’s Exclusionary Rule by Tracey Maclin
Boston U. press release: “A celebration of the publication of The Supreme Court and the Fourth Amendment’s Exclusionary Rule by Tracey Maclin, Professor of Law,” Monday, October 29, 2012: Boston University School of Law is delighted to celebrate the publication of The Supreme Court and the Fourth A
Grits for Breakfast: “Houston hearing honed in on use of drones by law enforcement”
Grits for Breakfast: Houston hearing honed in on use of drones by law enforcement: Grits wishes I could have attended yesterday’s hearing in Houston of the US House Judiciary Committee’s Subcommittee on Crime on domestic use of unmanned drones by law enforcement, but James Pinkerton at the Houston
Grassroots Alert: Vol. 19, No. 43 10/26/2012
The NRA is deeply disappointed in Thursday’s ruling by the Fifth Circuit U.S. Court of Appeals, which upheld the federal law that bans dealer sales of handguns to law-abiding adults between the ages of 18 and 20.
With “Supporters” Like This, What Amendment Needs Enemies?
Yesterday, in a New York Daily News commentary, Rep. Carolyn McCarthy (D-N.Y.) paraphrased President Obama’s most insincere campaign talking point with a direct quote from Brady Campaign propaganda, saying “You can support the Second Amendment” by imposing “common sense” gun control laws. In particu
Whistleblower Sues Time, Inc. Over “Fast and Furious”
We reported recently that a key “Fast and Furious” whistleblower, John Dodson had called on Fortune Magazine to retract a story on the scandal that the Department of Justice Inspector General’s report showed to be full of inaccuracies.
With Just 11 Days Until Election Day, Make Sure You’re “All In!”
In 11 days we will go to the polls in what will almost surely be the most important election of our lifetimes. We all know that a second term for President Barack Obama would threaten the rights of gun owners in numerous, far-reaching ways. In last Tuesday’s presidential debate, President Obama sa
With Election Day Looming, Gun Controllers State Their “Case”
There are only 11 days remaining before this year’s elections and gun control supporters haven’t had a novel idea since we can’t remember when, so longtime gun control advocates Dan Webster, Jon Vernick and Steve Teret of the (New York City Mayor Michael) Bloomberg School of Public Health at Johns H
CA7: Strip search of jail employee was reasonable when search of his person and car came up empty and they had reason to believe he would smuggle drugs into the jail
A jailer was reasonable subjected to a strip search at work based on credible reports he would be bringing cannabis into the jail. His car was stopped and it and his person would be searched. Since drugs weren’t found in those searches, reasonable suspicion thus existed for an employee strip search.
N.D.W.Va.: Defendant did not consent to what officer was doing without asking by defendant merely not speaking
Defendant neither did nor said anything that qualified as consent. Implied consent from his failure to object when the officer was doing something anyway was not consent. United States v. Harvey, 2012 U.S. Dist. LEXIS 153511 (N.D. W.Va. October 25, 2012), R&R 2012 U.S. Dist. LEXIS 153474 (N.D. W
SeattlePI.com: “Irate crowd greets Seattle Police drone plan”
SeattlePI.com: Irate crowd greets Seattle Police drone plan / Aircraft with cameras get harsh reaction in Central District by Casey McNerthney: Seattle police may use remote control drones during future investigations, and a crowd that gathered Thursday night in the Central District was furious abo
CA2: Violation of state jurisdictional law not Fourth Amendment issue
Violation of state jurisdictional law and federal policy re customs officers and state law was irrelevant under the Fourth Amendment. United States v. Wilson, 2012 U.S. App. LEXIS 22212 (2d Cir. October 25, 2012): The district court concluded that the vehicle stop violated the Fourth Amendment bec
Volokh.com: “Magistrate Judge Denies Court Order Application for Cell Tower Dumps”
Volokh.com: Magistrate Judge Denies Court Order Application for Cell Tower Dumps by Orin Kerr: The decision is In re U.S. ex rel. Order Pursuant to 18 U.S.C. Section 2703(d), 2012 WL 4717778 (S.D. Tex. September 26, 2012) (Owlsey, M.J),, and it rejects an application under the Stored Communications
OH12: Informant communicating with cop during drug transaction with defendant was RS
Reliable informant who was communicating with defendant about drugs provided reasonable suspicion. State v. Dennis, 2012 Ohio 4877, 2012 Ohio App. LEXIS 4278 (12th Dist. October 22, 2012).* Driving too slow and not staying in one’s lane justified a stop. State v. Roetzel, 2012 Ohio 4898, 2012 Ohio
computerworld.com: “Fighting unconstitutional stingray phone surveillance that tracks innocent people”
computerworld.com: Fighting unconstitutional stingray phone surveillance that tracks innocent people by Darlene Storm: Let’s say you have your cell phone with you, even if you are not talking or texting, otherwise minding your own business, innocent of being suspected of any crime … but hey your
NJ.com: “N.J. Supreme Court wrestles with privacy issues in cellphone, GPS case”
NJ.com: N.J. Supreme Court wrestles with privacy issues in cellphone, GPS case by Anthony Campisi: Justices of the state Supreme Court wrestled Monday with drawing new privacy protections in a world where police can engage in the sophisticated tracking of suspects using the most ubiquitous of devic
NACDL at the National Press Club for the Florida dog sniff cases is on C-SPAN
From NACDL: NACDL’s October 23 Program (this morning) at the National Press Club — Entrusting the Fourth Amendment to the Dogs: Canine Evidence and the Constitution (Introductory Remarks, NACDL President Steven D. Benjamin; Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute; Mar
12-year-old girl defends herself from home invader, The Oklahoman, Oklahoma City, Okla. 10/19/12
12-year-old Kendra St. Clair was at home alone in Durant, Okla. when a man began banging on the front door. Frightened, Kendra called her mother at work, who told her to retrieve a .40-caliber pistol and to hide in the bathroom closet. Kendra complied, and after calling 911, heard the criminal break
NRA vs. Bloomberg
The National Rifle Association (NRA) has been saying for the past two years that President Obama would ban guns if given a second term. Mr. Obama had been careful to pretend otherwise until last week’s debate, when he let slip his intention to ban certain types of firearms. That has sparked a renewe
Lawmakers demand update on ‘Fast And Furious’ personnel
Two Republican lawmakers investigating the botched gun trafficking operation known as Fast and Furious say they aren’t finished yet.In a letter obtained by NPR, Sen. Charles Grassley, R Iowa, and Rep. Darrell Issa, R Calif., are demanding an update on personnel actions taken by the Bureau of Alc
Canada: National gun owner database lives on despite registry repeal, angering some
Seven months after the federal long gun registry was repealed in every province but Quebec, a small but vocal faction of gun owners is feeling deeply betrayed by the Conservative government.A registry of gun owners — if not their specific weapons — remains in force under federal licensing provisio
Private arms in Vietnam
With robbers increasingly resorting to violence, city residents with no confidence in the police are arming themselves in self defense.
CA11: Handcuffing on the ground at gunpoint not necessarily an arrest
Taking defendant from his car at gunpoint and handcuffing him on the ground was reasonable under the circumstances, and it did not rise to the level of an arrest. United States v. Salas-Garcia, 2012 U.S. App. LEXIS 21995 (10th Cir. October 22, 2012): By contrast, the officers in this case acted rea
GA: Evading DUI roadblock with abrupt movement RS
Defendant’s dodging a DUI roadblock with an abrupt furtive movement was reasonable suspicion for a stop. Stinson v. State, 2012 Ga. App. LEXIS 856 (October 18, 2012).* Defendant’s father gave his name to the FBI as possibly radicalized in Yemen, and what the FBI learned about him through that inves
E.D.Mo.: Pre-Jones GPS was not suppressed because of the officers’ good faith
Pre-Jones GPS was not suppressed because of the officers’ good faith. United States v. Robinson, 2012 U.S. Dist. LEXIS 151257 (E.D. Mo. May 24, 2012): In light of the Supreme Court’s opinions in Knotts and Karo, as interpreted and applied by the Ninth Circuit in Pineda-Moreno, the Seventh Circuit i
Reason.com: “Little-Known Device Raises Big Fourth Amendment Implications”
Reason.com: Little-Known Device Raises Big Fourth Amendment Implications: On Friday, EFF and the ACLU submitted an amicus brief in United States v. Rigmaiden, a closely-followed case that has enormous consequences for individuals’ Fourth Amendment rights in their home and on their cell phone. As t
IN: Leaving turn signal on alone not evidence of impairment
Accidentally leaving one’s turn signal on is not evidence of impairment, without more. Killebrew v. State, 2012 Ind. App. LEXIS 528 (October 19, 2012).* Failure to argue to the trial court that the lineup was based on unlawful detention waived the argument for appeal. State v. Rucker, 2012 Ohio 486
Time to Read Ayn Rand? [PJMedia.com]
If you want to understand the ideas of one of today’s most important thinkers—and enjoy a moving literary experience—there’s no better time to read Atlas Shrugged than right now. This essay was published at PJMedia.com. Read it here.
Amendment 2 will strengthen the Louisiana Constitution to ensure that such abuses never recur. It states: “The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny.” The courts say the existing guaran
Oklahoma gun owners looking forward to new carry rules
Senate Bill 1733, signed by Gov. Mary Fallinon May 15, amends the Oklahoma Self Defense Act to allow the open carrying of a firearm with a license and a few restrictions. After the bill goes into effect on Nov. 1, the more than 140,000 Oklahomans with a handgun license will no longer be required to
Philadelphia: City published personal information of some gun owners
Lawrence isn’t a violent felon or a stickup artist with a lengthy rap sheet. He’s not a drug dealer holding down the corner with a Glock tucked in his waistband, or a straw purchaser selling guns to street thugs.He’s a Philadelphia church pastor and a robbery victim who routinely carries large sums
Cal.6: Defendant’s detention was unreasonable; his only matching characteristic of the assailant was being the same race and in same public place a week later
Defendant was stopped at the San Jose light rail station around midnight for allegedly resembling one of two Black males who were suspected of committing a sexual battery a week earlier at noon. After he provided a false ID, he was arrested and cocaine base was found. The court finds that the descr
Law Offices of Kevin M. Smith, P.A.
Legal updates for 12-3-2012
N.D.Iowa: Dog sniff at apartment door validly supported search warrant
A drug dog alerted at defendant’s apartment door, and this supported a search warrant. The court declines to follow Jardines v. Florida, 73 So.3d 34 (Fla. 2011), cert. granted, 132 S. Ct. 995 (2012), despite the fact it was argued a month earlier [and would thus come down any day now], instead follo
A drug dog alerted at defendant’s apartment door, and this supported a search warrant. The court declines to follow Jardines v. Florida, 73 So.3d 34 (Fla. 2011), cert. granted, 132 S. Ct. 995 (2012), despite the fact it was argued a month earlier [and would thus come down any day now], instead follo
CA6: Clearly erroneous explained again
Crediting the officers’ testimony that defendant consented to a patdown that produced a sawed-off shotgun was not clearly erroneous. United States v. Oldham, 2012 U.S. App. LEXIS 24686, 2012 FED App. 01227N (6th Cir. November 28, 2012). Clearly erroneous explained: The district court did not commit
FL2: Search of school bookbag without reasonable suspicion of anything
The juvenile had an early meeting with her school counselor, and, after the meeting, she had to leave her bookbag because of a school rule against bookbags in the hallway. Four times during the day she came and asked for access to the bookbag which was denied. Based on that, the counselor decided to
Ohio Plain Dealer: “Keep DNA evidence private”
Ohio Plain Dealer: Keep DNA evidence private by Jonathan Witmer-Rich and Brendan Heil: On Nov. 1, the Ohio Supreme Court issued a startling — and unnecessary — opinion eroding DNA privacy for Ohio citizens. The court held that the Fourth Amendment does not protect an individual’s personal DNA pro
CA9: Govt failed to prove exigency for warrantless entry
The box delivered to defendant had a beeper inside that was supposed to emit a continuous tone when it was opened. It malfunctioned and continued to emit a continuous tone before it left police custody. There were no exigent circumstances justifying a warrantless entry into defendant’s dwelling to s
CA7: Govt failed to prove exigency; its theory was speculative
Government failed to prove its theory of protective sweep. It’s argument essentially put the burden on the defendant to prove that the protective sweep was unjustified, and that’s wrong. Also, the government’s waiver of an opportunity to put on additional proof of exigency before the Magistrate Judg
MD: Suppression judges act like appellate judges and shouldn’t second guess PC
A suppression hearing judge sits like an appellate judge in determining the adequacy of the showing of probable cause. The suppression judge improperly second guessed the probable cause here, and the suppression order is reversed. State v. Johnson, 2012 Md. App. LEXIS 146 (November 30, 2012) (Moylan
GA: Arrest for obstruction didn’t support SI under Gant
Defendant was arrested for obstruction, and the search of his truck after he was handcuffed was invalid under Gant. Hargis v. State, 2012 Ga. App. LEXIS 1028 (November 29, 2012). The court credits the officers’ testimony that defendant spontaneously admitted to having a gun on him after a brief enc
D.D.C.: SW for robbery proceeds not stale just because a wily robber might dispose of the proceeds
Defendant’s claim that the AUSA’s signature on warrant papers is constitutionally meaningless even if it was true. Similarly, the fact the affidavit was signed on one day before one judge and the warrant issued on another day before another judge does mean anything. The information about a robbery i
CA2: Motorcycle checkpoint shown justified by special needs
A motorcycle checkpoint program in New York State was shown to be justified by special needs. Wagner v. Sprague, 2012 U.S. App. LEXIS 24542 (2d Cir. November 29, 2012) [but this is a memorandum opinion with no facts]. The government justified a protective sweep of defendant’s house by showing his h
OR: Automobile exception only applies to vehicles, not the occupants
The automobile exception applies to vehicles, not their occupants, and the state confesses error based on United States v. Di Re, 332 U.S. 581, 586-87 (1948). State v. Freeman, 2012 Ore. App. LEXIS 1356 (November 7, 2012). Defendant was seized by being ordered by loudspeaker to come out of the hous
MD: Violation of state SCA not subject to exclusion for lack of standing in provider information
The state violated the Maryland Stored Communications Act, similar to the federal Stored Communications Act, in obtaining cell phone provider created information about his account by a state subpoena served out of state. He has no reasonable expectation of privacy in that information, so the evidenc
W.D.Wash.: Franks reckless disregard shown
Franks “reckless disregard” was shown in a wiretapping case. Here, the issue was the government’s claim they could not use additional GPS devices in exhausting other investigative techniques, and then actually did after that. United States v. Hamilton, 2012 U.S. Dist. LEXIS 169290 (W.D. Wash. Novemb
D.Ariz.: Use of a pole camera for surveillance from off property not a violation of REP
Surveillance of comings and goings to defendant’s apartment with a pole camera does not constitute a “trespass” under Jones. United States v. Brooks, 2012 U.S. Dist. LEXIS 168738 (D. Ariz. November 28, 2012): Additionally, as argued by the Government, despite a block wall that could potentially act
Gun Owners Enter the Fight of Our Lives
The NRA has been saying all along that Barack Obama would unleash an assault on our Second Amendment freedoms if he won a second term. It sure didn’t take long for him to prove us right.
Illinois: Federal Court Upholds Right to Keep and Bear Arms and Awards the NRA $125,000 in Attorney’s Fees
On September 26, 2012 the United States District Court in the Northern District of Illinois awarded the National Rifle Association (NRA) $125,000 to reimburse it for attorney’s fees spent winning a lawsuit against the City of Chicago over a Chicago firearm ordinance on behalf of NRA member Shawn Gow
M.D.Ala.: Way cash was packaged supported reasonable cause it was possessed for acquiring drugs
Claimant admitted smoking marijuana two hours before his traffic stop as an explanation for the smell of marijuana in the car. He admitting having cash, but when it was found there was more than he admitted and it was packaged strangely. That was reasonable suspicion of use of the money for drug acq
OH2: Not being on the rental car paperwork and not knowing renter was RS
The officer had reasonable suspicion to continue the stop where defendant and his passenger were in a brand new rental car, neither was on the paperwork, and they didn’t know the name of the renter. State v. Jalloh, 2012 Ohio 5314, 2012 Ohio App. LEXIS 4636 (2d Dist. November 16, 2012). Because dig
NY: Defense needs to seek the inventory policy rather than just complain testimony was vague
The officer did not produce the inventory policy and testified vaguely to it. Since the defense did not ask for it, the court can’t say the inventory was unconstitutional. The inventory itself will not be micro-managed by the courts. “The inventory here, while not a model, was sufficient to meet the
Washington: “No Shooting” Ordinance to be Considered in Island County Tomorrow
Tomorrow,November 21, at 2:15 p.m., the Island County Board of Commissioners will hold awork session at which they will discuss an unnecessary “no shooting” ordinance. Commissioner Angie Homola, who lost her bid for re-election, is pushing this measure that would facilitate the imposition of shootin
Virginia: Page County Board of Supervisors to Defy State Law and Consider Restrictive Noise Ordinance
Today, November 20 at 7:00 pm., the Page County Board of Supervisors will hold a public hearing to consider a proposed noise ordinance which would amend the current law, Chapter 81, Noise, in its entirety. The proposed prohibitions contain an exemption for formal or informal sport shooting, but woul
D.S.C.: Getting out of vehicle and pushing bag under car was considered abandonment
Defendant got out of a vehicle with a bag and set it down on the ground. He pushed it under the vehicle, but not far. The court concludes that the bag was abandoned by this action. United States v. Davis, 2012 U.S. Dist. LEXIS 162396 (D. S.C. November 14, 2012): Two possible inferences can be drawn
Why The Glass-Steagall Myth Persists [Forbes.com]
The definitive history of the financial crisis remains to be written. But one thing is for sure: it shouldn’t be written by those who have a quasi-religious conviction that the freedom to pursue profits is the cause of all the world’s problems, and that government regulation is the unfailing el
Ohio: Comprehensive Pro-Gun Reform Legislation Remains Stalled
Election season has concluded and Ohioans are fortunate to have elected and re-elected numerous pro-gun candidates who will lead the state in protecting our Second Amendment rights during the 2013-2014 legislative session. However, our legislative agenda for this year is not complete. House Bill 49
OH2: Smell of burning marijuana and seeing some during knock and talk justified entry
Officer doing a knock and talk smelled burning marijuana coming from the house, and he could see marijuana on the coffee table. His entry to preserve the evidence was reasonable since the defendant knew that the officers knew it was there. State v. Miller, 2012 Ohio 5206, 2012 Ohio App. LEXIS 4558 (
OH2: Validity of judge’s appointment can’t be challenged by attacking search warrant
The alleged defective appointment of a judge to replace one who died cannot be attacked in a criminal proceeding challenging a search warrant the judge issued. The general rule is that the legality of the judge’s appointment must be tested in quo warranto and not by collateral attack in a criminal p
WA: Gant applies to all pending cases
Gant is retroactive under the Washington Constitution and applies to all nonfinal cases. State v. Louthan, 2012 Wash. LEXIS 745 (October 25, 2012). Defendant’s postconviction claim of unsworn affidavits for search warrant is shown to be false. Johnson v. State, 2012 Fla. LEXIS 2276 (November 8, 201
D.Neb.: Merely talking to a parked motorist was not a seizure
Officers talking to a motorist parked in a Lexus in a high crime area to watch out was not a seizure. The officer walked around the car and saw the butt of a gun, but it turned out to be a BB gun. United States v. Mahr, 2012 U.S. Dist. LEXIS 161000 (D. Neb. October 22, 2012): Taking the “position t
GA: Cell provider’s voluntarily relinquishing records in a recent double homicide was no ground to suppress
Georgia law limits access to cell phone records, and a double murderer was at large and the police were tying desperately to locate him. There is a statutory suppression remedy, but the telephone company turned them over voluntarily when asked by the police, in good faith. This obviated the suppress
D.Mont.: Defendant had standing in a mailed package even though the return address wasn’t his
Defendant had standing to challenge the search of a mailed package even though the return address was not his name. United States v. Gardenier, 2012 U.S. Dist. LEXIS 160030 (D. Mont. November 7, 2012): The parties do not dispute that Gardenier sent the package, even though the return label read “Je
Illinois: Cook County Commission Changed Date of Budget Hearing and Today Approved a Punitive Tax on your Second Amendment Rights
Today, the Cook County Board of Commissioners held a Special Board Meeting and approved the misguided and onerous tax on firearms purchased in Cook County (previously reported on here). This procedural move put the vote a week earlier than scheduled, as it was supposed to take place next week on N
SCOTUS grants cert in Maryland DNA case
The Supreme Court granted cert in Maryland v. King today. Chief Justice Roberts had previously granted Maryland a stay pending decision on cert. Issue: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.
Grassroots Alert: Vol. 19, No. 45 11/09/2012
Obama Administration Endorses New U.N. Arms Trade Treaty Negotiations
Just as NRA warned would happen, following the election, the Obama administration has moved forward with its plans to support a United Nations Arms Trade Treaty. On Wednesday November 7, the U.S. Mission to the U.N. made clear its support for renewed ATT negotiations, casting a vote in favor of reso
Contact Your U.S. Senators and Urge Their Support of S. 3525, the “Sportsmen’s Act of 2012″
When Congress reconvenes on November 13, one of the first items the U.S. Senate could vote on is S. 3525, “The Sportsmen’s Act of 2012.” S. 3525 is an essential piece of legislation focused on the expansion and enhancement of hunting, recreational fishing and shooting on federal public land.
No Longer Camouflaging Their Agenda, Anti-Gunners Start Gun Ban Plans
Any attempt by the anti-gun elite to hide their agenda has officially gone by the wayside. Recent electoral history had taught the gun control crowd to camouflage their intentions during the campaign season, and then wait for an opportune time to act. That tactic now appears to have run its course
A Special Debt of Gratitude
In this week’s alert, we observe two important days in our nation. Election Day always reinforces how lucky we are to live in a country where “we the people” can choose our elected leaders and have a voice in how we are governed.
2012 Election Recap
The dust is still settling from Tuesday’s voting, but one thing is clear: NRA-ILA’s 2012 election effort was one of the most sophisticated and targeted endeavors in our history. Though President Obama was able to secure a second term, pro-gun voters did turn out to the polls in significant numbers
NJ: While cell phone records were inproperly obtained, that did not lead to the discovery of the victim’s body, so it should not have been suppressed
Defendant’s cell phone records were improperly obtained by a flawed process, but the inevitable discovery doctrine supported the finding of the victim’s body after the finding of the murder weapon, so the body would not be suppressed. State v. Smith, 2012 N.J. LEXIS 1065 (October 25, 2012): We turn
GA: Officer’s discovery seatbelt was buckled did not constitutionally mandate ending stop
Defendant was stopped for a seatbelt violation, but the officer found that the seatbelt was tucked under the arm and was legal. The stop being initially lawful, the officer was not obligated to end the stop and let the defendant go immediately. Davis v. State, 2012 Ga. App. LEXIS 872 (October 23, 20
CO: A pat down solely for officer safety was unreasonable
A pat down solely for officer safety was unreasonable. People v. Berdahl, 2012 COA 179, 2012 Colo. App. LEXIS 1734 (October 25, 2012): [*P27] Nevertheless, the trial court appears to have applied a bright-line rule that an officer can conduct a pat-down search whenever he or she has an obligation
New book: The Supreme Court and the Fourth Amendment’s Exclusionary Rule by Tracey Maclin
Boston U. press release: “A celebration of the publication of The Supreme Court and the Fourth Amendment’s Exclusionary Rule by Tracey Maclin, Professor of Law,” Monday, October 29, 2012: Boston University School of Law is delighted to celebrate the publication of The Supreme Court and the Fourth A
Grits for Breakfast: “Houston hearing honed in on use of drones by law enforcement”
Grits for Breakfast: Houston hearing honed in on use of drones by law enforcement: Grits wishes I could have attended yesterday’s hearing in Houston of the US House Judiciary Committee’s Subcommittee on Crime on domestic use of unmanned drones by law enforcement, but James Pinkerton at the Houston
Grassroots Alert: Vol. 19, No. 43 10/26/2012
With “Supporters” Like This, What Amendment Needs Enemies?
Yesterday, in a New York Daily News commentary, Rep. Carolyn McCarthy (D-N.Y.) paraphrased President Obama’s most insincere campaign talking point with a direct quote from Brady Campaign propaganda, saying “You can support the Second Amendment” by imposing “common sense” gun control laws. In particu
Whistleblower Sues Time, Inc. Over “Fast and Furious”
We reported recently that a key “Fast and Furious” whistleblower, John Dodson had called on Fortune Magazine to retract a story on the scandal that the Department of Justice Inspector General’s report showed to be full of inaccuracies.
With Just 11 Days Until Election Day, Make Sure You’re “All In!”
In 11 days we will go to the polls in what will almost surely be the most important election of our lifetimes. We all know that a second term for President Barack Obama would threaten the rights of gun owners in numerous, far-reaching ways. In last Tuesday’s presidential debate, President Obama sa
With Election Day Looming, Gun Controllers State Their “Case”
There are only 11 days remaining before this year’s elections and gun control supporters haven’t had a novel idea since we can’t remember when, so longtime gun control advocates Dan Webster, Jon Vernick and Steve Teret of the (New York City Mayor Michael) Bloomberg School of Public Health at Johns H
CA7: Strip search of jail employee was reasonable when search of his person and car came up empty and they had reason to believe he would smuggle drugs into the jail
A jailer was reasonable subjected to a strip search at work based on credible reports he would be bringing cannabis into the jail. His car was stopped and it and his person would be searched. Since drugs weren’t found in those searches, reasonable suspicion thus existed for an employee strip search.
N.D.W.Va.: Defendant did not consent to what officer was doing without asking by defendant merely not speaking
Defendant neither did nor said anything that qualified as consent. Implied consent from his failure to object when the officer was doing something anyway was not consent. United States v. Harvey, 2012 U.S. Dist. LEXIS 153511 (N.D. W.Va. October 25, 2012), R&R 2012 U.S. Dist. LEXIS 153474 (N.D. W
SeattlePI.com: “Irate crowd greets Seattle Police drone plan”
SeattlePI.com: Irate crowd greets Seattle Police drone plan / Aircraft with cameras get harsh reaction in Central District by Casey McNerthney: Seattle police may use remote control drones during future investigations, and a crowd that gathered Thursday night in the Central District was furious abo
CA2: Violation of state jurisdictional law not Fourth Amendment issue
Violation of state jurisdictional law and federal policy re customs officers and state law was irrelevant under the Fourth Amendment. United States v. Wilson, 2012 U.S. App. LEXIS 22212 (2d Cir. October 25, 2012): The district court concluded that the vehicle stop violated the Fourth Amendment bec
Volokh.com: “Magistrate Judge Denies Court Order Application for Cell Tower Dumps”
Volokh.com: Magistrate Judge Denies Court Order Application for Cell Tower Dumps by Orin Kerr: The decision is In re U.S. ex rel. Order Pursuant to 18 U.S.C. Section 2703(d), 2012 WL 4717778 (S.D. Tex. September 26, 2012) (Owlsey, M.J),, and it rejects an application under the Stored Communications
OH12: Informant communicating with cop during drug transaction with defendant was RS
Reliable informant who was communicating with defendant about drugs provided reasonable suspicion. State v. Dennis, 2012 Ohio 4877, 2012 Ohio App. LEXIS 4278 (12th Dist. October 22, 2012).* Driving too slow and not staying in one’s lane justified a stop. State v. Roetzel, 2012 Ohio 4898, 2012 Ohio
computerworld.com: “Fighting unconstitutional stingray phone surveillance that tracks innocent people”
computerworld.com: Fighting unconstitutional stingray phone surveillance that tracks innocent people by Darlene Storm: Let’s say you have your cell phone with you, even if you are not talking or texting, otherwise minding your own business, innocent of being suspected of any crime … but hey your
NJ.com: “N.J. Supreme Court wrestles with privacy issues in cellphone, GPS case”
NJ.com: N.J. Supreme Court wrestles with privacy issues in cellphone, GPS case by Anthony Campisi: Justices of the state Supreme Court wrestled Monday with drawing new privacy protections in a world where police can engage in the sophisticated tracking of suspects using the most ubiquitous of devic
NACDL at the National Press Club for the Florida dog sniff cases is on C-SPAN
From NACDL: NACDL’s October 23 Program (this morning) at the National Press Club — Entrusting the Fourth Amendment to the Dogs: Canine Evidence and the Constitution (Introductory Remarks, NACDL President Steven D. Benjamin; Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute; Mar
12-year-old girl defends herself from home invader, The Oklahoman, Oklahoma City, Okla. 10/19/12
12-year-old Kendra St. Clair was at home alone in Durant, Okla. when a man began banging on the front door. Frightened, Kendra called her mother at work, who told her to retrieve a .40-caliber pistol and to hide in the bathroom closet. Kendra complied, and after calling 911, heard the criminal break
NRA vs. Bloomberg
The National Rifle Association (NRA) has been saying for the past two years that President Obama would ban guns if given a second term. Mr. Obama had been careful to pretend otherwise until last week’s debate, when he let slip his intention to ban certain types of firearms. That has sparked a renewe
Lawmakers demand update on ‘Fast And Furious’ personnel
Two Republican lawmakers investigating the botched gun trafficking operation known as Fast and Furious say they aren’t finished yet.In a letter obtained by NPR, Sen. Charles Grassley, R Iowa, and Rep. Darrell Issa, R Calif., are demanding an update on personnel actions taken by the Bureau of Alc
Canada: National gun owner database lives on despite registry repeal, angering some
Seven months after the federal long gun registry was repealed in every province but Quebec, a small but vocal faction of gun owners is feeling deeply betrayed by the Conservative government.A registry of gun owners — if not their specific weapons — remains in force under federal licensing provisio
Private arms in Vietnam
With robbers increasingly resorting to violence, city residents with no confidence in the police are arming themselves in self defense.
CA11: Handcuffing on the ground at gunpoint not necessarily an arrest
Taking defendant from his car at gunpoint and handcuffing him on the ground was reasonable under the circumstances, and it did not rise to the level of an arrest. United States v. Salas-Garcia, 2012 U.S. App. LEXIS 21995 (10th Cir. October 22, 2012): By contrast, the officers in this case acted rea
GA: Evading DUI roadblock with abrupt movement RS
Defendant’s dodging a DUI roadblock with an abrupt furtive movement was reasonable suspicion for a stop. Stinson v. State, 2012 Ga. App. LEXIS 856 (October 18, 2012).* Defendant’s father gave his name to the FBI as possibly radicalized in Yemen, and what the FBI learned about him through that inves
E.D.Mo.: Pre-Jones GPS was not suppressed because of the officers’ good faith
Pre-Jones GPS was not suppressed because of the officers’ good faith. United States v. Robinson, 2012 U.S. Dist. LEXIS 151257 (E.D. Mo. May 24, 2012): In light of the Supreme Court’s opinions in Knotts and Karo, as interpreted and applied by the Ninth Circuit in Pineda-Moreno, the Seventh Circuit i
Reason.com: “Little-Known Device Raises Big Fourth Amendment Implications”
Reason.com: Little-Known Device Raises Big Fourth Amendment Implications: On Friday, EFF and the ACLU submitted an amicus brief in United States v. Rigmaiden, a closely-followed case that has enormous consequences for individuals’ Fourth Amendment rights in their home and on their cell phone. As t
IN: Leaving turn signal on alone not evidence of impairment
Accidentally leaving one’s turn signal on is not evidence of impairment, without more. Killebrew v. State, 2012 Ind. App. LEXIS 528 (October 19, 2012).* Failure to argue to the trial court that the lineup was based on unlawful detention waived the argument for appeal. State v. Rucker, 2012 Ohio 486
Time to Read Ayn Rand? [PJMedia.com]
If you want to understand the ideas of one of today’s most important thinkers—and enjoy a moving literary experience—there’s no better time to read Atlas Shrugged than right now. This essay was published at PJMedia.com. Read it here.
Oklahoma gun owners looking forward to new carry rules
Senate Bill 1733, signed by Gov. Mary Fallin on May 15, amends the Oklahoma Self Defense Act to allow the open carrying of a firearm with a license and a few restrictions. After the bill goes into effect on Nov. 1, the more than 140,000 Oklahomans with a handgun license will no longer be required to
Philadelphia: City published personal information of some gun owners
Lawrence isn’t a violent felon or a stickup artist with a lengthy rap sheet. He’s not a drug dealer holding down the corner with a Glock tucked in his waistband, or a straw purchaser selling guns to street thugs.He’s a Philadelphia church pastor and a robbery victim who routinely carries large sums
Cal.6: Defendant’s detention was unreasonable; his only matching characteristic of the assailant was being the same race and in same public place a week later
Defendant was stopped at the San Jose light rail station around midnight for allegedly resembling one of two Black males who were suspected of committing a sexual battery a week earlier at noon. After he provided a false ID, he was arrested and cocaine base was found. The court finds that the descr
NC: No answer at front door knock and talk doesn’t justify going to back door
Officers conducting a knock and talk got no answer at the front door, and they went around to the back where there was no path. There was no justification for going to the back door, and the view of marijuana plants in the back is suppressed. State v. Pasour, 2012 N.C. App. LEXIS 1201 (October 16, 2
VI: Unlawful arrest doesn’t deprive court of jurisdiction to try the case
Defendant’s stop was valid but arrest for a misdemeanor that didn’t happen in the presence of the officer was invalid, but that does not require suppression of the observations he was under the influence nor prevent the prosecution. People v. Norton, 2012 V.I. LEXIS 49 (Super. Ct. October 15, 2012).
E.D.Pa.: PC as to car overcomes Gant
Probable cause for defendant’s arrest for drugs justified a search of the car under the automobile exception, an exception to Gant. United States v. Davidson, 2012 U.S. Dist. LEXIS 150513 (E.D. Pa. October 19, 2012).* Substantially corroborated information from a citizen informant provided probable
CA11: No standing in another person’s drug house
Defendant’s asserted standing in the house searched was because he had drug money in the safe. It was somebody else’s place used for cocaine production. This was governed by Carter. United States v. Rivera-Pabon, 2012 U.S. App. LEXIS 21725 (11th Cir. October 18, 2012).* Defendant was stopped for a
NE: Defendant’s succeeds in showing IAC on failure to move to suppress
Defendant succeeds in showing that the justification for the traffic stop, a cracked windshield, did not support it. A mere cracked windshield is not a traffic offense because the driver’s view is not obstructed. Also, it did not indicate that the vehicle had been involved in an accident. Therefore,
LATimes: Manson follower lawyer-client recordings from 1969 subject of search warrant or court order now stayed
LATimes.com: Manson follower’s tape recordings off limits to LAPD for now (posted 10/18): A federal judge in Texas has blocked a request by the Los Angeles Police Department to review recordings of a key Charles Manson follower and an attorney made decades ago. The tapes are of Manson follower Ch
CA4: Officers had reasonable cause to believe defendant at home for entry under Payton
Officers had reasonable cause under Payton to believe that defendant was hiding in his own house. The SWAT team showed up for a misdemeanor arrest because of defendant’s 100 prior arrests and numerous convictions for violent crime. After a lot of looking, he was found hiding in a return air duct und
D.S.D.: No reasonable expectation of privacy in the cell phone of another in the defendant’s possession
There is no reasonable expectation of privacy in the cell phone of another in the defendant’s possession. United States v. Clinton, 2012 U.S. Dist. LEXIS 150171 (D. S.D. October 4, 2012): Clinton’s mere possession of the cell phone, without more, is insufficient to establish a Fourth Amendment rig
E.D.Mo.: Gang officers can conduct a traffic stop; pretext argument fails
The fact the Chicago police officers were gang officers and not working traffic did not mean that they were constitutionally prohibited from conducting a traffic stop. Therefore, the pretext argument fails on that ground. United States v. Elkins, 2012 U.S. Dist. LEXIS 148668 (E.D. Mo. September 25,
S.D.Fla.: Lesson about specificity motions to suppress; inspecific motion held against defendant’s credibility on the search
The court finds the defendant consented after an illegal search of his luggage. (Why is important, and this is an important lesson.) United States v. Jimenez, 2012 U.S. Dist. LEXIS 148699 (S.D. N.Y. October 10, 2012) (Judge Swain): Jimenez admitted at the hearing that he assented to Veloz’s request
S.D.Ill.: Threat to get a warrant was not spurious, so consent valid
Defendant’s consent to entry after repeated efforts to get consent during a knock-and-talk at a hotel room was still valid. They had probable cause, and the threat to get a search warrant was not spurious. United States v. Taylor, 2012 U.S. Dist. LEXIS 148244 (S.D. Ill. October 16, 2012).* Courts s
CA2: Rare federal habeas win on Fourth Amendment
The state court’s upholding a lineup as not a product of a Fourth Amendment violation was found to be an unreasonable application of Supreme Court precedent justifying habeas relief. The case cites and credits a wealth of material about the vagaries of eyewitness identification. Young v. Conway, 201
Grassroots Alert: Vol. 19, No. 42 10/19/2012
Louisiana Governor Bobby Jindal Endorses “Yes on 2″!
Louisiana Governor Bobby Jindal stands with the National Rifle Association and expresses his support for Amendment 2 to the Louisiana Constitution to protect the gun rights of Louisiana citizens. Read his reasons for strengthening protections to your fundamental Right to Keep and Bear Arms in this
Outrage of the Week: UK Retailer Caves to Anti-Hunting Extremists
In late August, the radical UK-based animal rights group, Animal Aid, launched a campaign to force British bookstores and newsstands to relegate hunting and shooting publications to the top shelf of magazine racks and prohibit their sale to anyone under the age of 18. In a press release, Animal Aid
2012 Firearms Law Symposium a Great Success
The 2012 “Firearms Law & The Second Amendment Symposium” was held on Saturday, October 13, 2012, in Philadelphia, PA. Sponsored by The NRA Foundation, the annual symposium focused on recent developments in our nation’s courts regarding the Second Amendment, as well as topics that c
Pennsylvania: Legislature Fails to Act on Important Firearms Preemption Legislation
Despite the fact that nearly fifty local governments have enacted illegal gun control ordinances in violation of the current state firearms preemption law, the Pennsylvania Legislature failed to act on important reform legislation that would have addressed this problem.
Wisconsin: Join NRA and other pro-freedom groups for food and fellowship in Green Bay
Join NRA and other pro-freedom groups for food and fellowship in Green Bay, as we make calls and organize our efforts to support pro-gun candidates.
The Biggest Threat in an Obama Second Term
There are many ways a second term for President Barack Obama threatens the rights of gun owners. He wants to bring back the 1994 semi-auto ban; his administration has already imposed an illegal registration scheme on certain rifle sales; and there is no way to know how far he would go to use his ex
Obama Calls for Gun Bans, But “Nanny B” Wants More
In Tuesday’s presidential debate, President Obama said that he supported a ban on “assault weapons” and implied that he supports restrictions on “cheap handguns” too. No surprises there. As detailed on www.GunBanObama.com and www.GunBanFacts.com, Obama supported banning both types of firearms and m
22-year-old woman defends herself against armed home invaders, NBC DFW, Dallas, Texas 10/18/12
A 22-year-old woman was at home alone in Dallas, Texas when a pair of home invaders, at least one of whom was armed, kicked in the front door. After retrieving a gun, the woman spotted the criminals as they were headed to the second floor of the house. The woman opened fire on the home invaders, str
NRA’s new offensive against Obama
Chris Cox on CNN discussing the danger Barack Obama poses to Second Amendment rights.
Louisiana: Gov. Jindal on gun rights
This November, I am proud to join the National Rifle Association in support of Amendment 2 to the Louisiana Constitution to protect the gun rights of law abiding citizens, let me tell you why.
New Mexico parks consider respecting Right-to-Carry
The state is considering allowing people who have a license to carry concealed guns to bring their weapons into New Mexico state parks.
Right-to-Carry permit holders speak out at CU-Boulder gun forum
A University of Colorado discussion about guns on campus changed course Wednesday as at least a half dozen people in the audience identified themselves as students with concealed weapon permits and defended their right to bring firearms to school.
Alabama: Legislators file bills to allow employees firearms in vehicles
Legislation has been pre filed in the Alabama House and Senate that would prevent employers and property owners from establishing policies that would prevent workers from transporting and storing firearms and ammunition in their vehicles.
Chicago’s Cook County wants tax on bullets to pay for healthcare
If approved by the Cook county commission, the nation’s third most populous county could be the first major metropolitan area in the nation to impose a tax as a form of gun control.
Law Offices of Kevin M. Smith, P.A.
Surly doesn’t win trials!
I’ve known some very nice people. I’ve also known some rather surly characters. Some of the nice ones were (and are) successful. Some not so successful. The same thing can be said about the surly types. Donald Trump seems really nice, and he’s also really rich. Steve Jobs, sadly, appears to have been pretty surly when he didn’t like someone’s ideas. He was also really rich. So, if wealth is what you want, you can get it being nice or surly.
But I’ve discovered something over my years as a prosecutor and defense attorney. Jurors don’t like surly. They adore nice.
This week I am in the midst of another jury-trial heavy phase of my law practice. I’ve had 10 jury trials in the last twelve months. That’s more than you’d imagine. Most lawyers are lucky (or cursed, depending on their attitudes…surly?) to be in jury trial once every three months, so this has been a remarkably litigious year for my clients and me. I had a trial two weeks ago…NOT GUILTY! And another this week…NOT GUILTY! (Both were DUI trials, by the way.) I have another coming up the middle of December (I’m prosecuting for a municipality then, so will be going for a guilty verdict!). These last two trials taught me something very valuable. As I said above, Jurors don’t like surly.
Here’s what happened. In the first trial the deputy was surly from the get go (the incident was recorded on video). I can’t share details due to attorney-client privilege, but let’s just say that nature called and the deputy put the call on hold, even though there were clear extenuating circumstances that should have compelled him to be nice and allow the defendant to avoid embarrassment. In fact, shoot forward two weeks, and that’s exactly what the nice deputy did for the other defendant. After that first trial’s NOT GUILTY verdict, the prosecutor and I talked to the jurors. They unanimously did not appreciate the attitude (meanness/surliness) of the deputy. Fortunately for the defendant, not only was he mean in the field, but he had a really cocky, know-it-all attitude on the witness stand. The defendant, on the other hand, took the stand and was very humble and nice, and talked and walked as well then as the night of his arrest. Still, it was clear that had the deputy been nicer the outcome might have been different.
I’m happy he was surly.
Now for this week’s trial. That deputy was courteous and nice to the defendant on the night of her arrest (it was recorded on video, too). There were other circumstances there that I believe compelled the jury to find her NOT GUILTY (e.g., the video showed ok though not perfect driving through a construction zone, and she wore 5-inch high heels and didn’t have coordination issues when not performing “unnatural human acts”), but the comments from the jurors were night and day compared to the previous trial. They had nothing negative to say about the latter deputy’s attitude. They did think that what he saw on the video was different than what they saw (credibility?), but didn’t focus on him being a jerk like the other trial.
They thought the first deputy was a jerk. The second was “just doing his job.”
As my grandmother put it, “you can catch more flies with honey than vinegar.” So true. Officers who are courteous and polite with defendants and jurors tend to be more persuasive during jury deliberations even though they never enter the jury room.
By the way, I’ve adopted a combative attitude with witnesses in the past. This accomplishes two things. One, it puts the witness on the defense and he will likely weasel his way around the question. Two, it makes jurors hate me, which is not good for the client. Nice is a much better examination style. Nice attorneys get more helpful answers and endear themselves to juries (or at least don’t tick them off!). Hence, “what’s good for the goose (witness) is good for the gander (attorney).” If I’d been perceived as a jerk in these trials it would have likely cancelled out the officers’ surliness and the clients might have lost.
So there it is. Average, everyday people (including engineers, teachers, counselors, salesmen) prefer nice. If they prefer nice, so should we. So let’s be nice. It’s a really good time of year to adopt such an attitude.
If you find yourself in need of representation in a domestic, criminal, traffic, estate planning, or business matter, call me at 316-262-2331. Two NOT GUILTY verdicts in a row! I’m on a roll and would love to help you, too.
Copyright © 2012 Kevin Mark Smith
Know your Fifth Amendment Rights!
Click here for latest chapter of “The Bill of Rights: What every Patriotic American needs to know.” It’s a very thorough analysis of the Fifth Amendment and what you should know about your unalienable rights cited therein. Enjoy!