Tuesday, October 13, 2009

Search & Seizure Update

For many years, our office has produced a search and seizure outline designed to cheer up those Eeyores of the criminal defense bar who believe the Fourth Amendment is a dead letter. While acknowledging the hits privacy rights have taken, the outline provides counterpoints demonstrating that judges have stood up for the Fourth Amendment even though “the safeguards of liberty have frequently been forged in controversies involving not very nice people” (Judge Boochever quoting Justice Frankfurter in Munoz, 701 F.2d at 1301). Pretrial motion practice in criminal cases protects our clients’ individual rights while providing the primary defense for privacy rights of all Americans.

So after two years, we have updated the outline. Among the many new cases, the big news from the Supreme Court is the decision in Gant overruling prior decisions that had divorced the scope of vehicle searches incident to arrest from the rationale of officer safety. The Ninth Circuit provided important guidance on computer searches in the en banc decision in Comprehensive Drug Testing. Two district court cases from last summer provide a reminder of the practical importance of motion practice for our clients: Judge Jones and Judge Haggerty granted motions to suppress in Freeman and Izguerra-Robles, litigated by AFPDs Ellen Pitcher and Nancy Bergeson, respectively.

The format for the outline has changed as the document increased in length. The outline is available here with an attached Table of Cases. Although the basic structure is provided by the Table of Contents, you can now search for an individual case name or a subject, like “computer” , to hit specific cases or types of searches and seizures at different parts of the outline. As always, the outline is only intended as a starting place for creative approaches to theories and research that ultimately will depend on the unique facts of individual cases.

If you have a favorite Fourth Amendment case that is missing, please feel free to email me your candidate for inclusion in the document’s next incarnation. Thanks to Caroline Livett and the other Lewis and Clark Law School clerks in our office who worked on this project.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon


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