NYT: Prosecutors Are Reading Emails From Inmates to Lawyers by Stephanie Clifford:
The extortion case against Thomas DiFiore, a reputed boss in the Bonanno crime family, encompassed thousands of pages of evidence, including surveillance photographs, cellphone and property records, and hundreds of hours of audio recordings.
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I’ve analogized a frisk of a car authorized under Long as a ‘protective sweep.’ which is usually of a dwelling. Here, a court does too: Officers responded to a use of force report that had been not completely defused. When they approached the house, they had reason to check defendant for weapons because they would have their back on him and he seemed to pose a danger. “The court concludes that the officers were justified in contacting Mr. Johnston to conduct a Terry stop if, for no other reason, than to ensure that he did not have a weapon or pose a danger to the officers as they approached the Vickerman residence with their backs turned to Mr. Johnston. Thus, the Terry stop in this case was much more akin to the doctrine of a ‘protective sweep.’” United States v. Johnston, 2014 U.S. Dist. LEXIS 98801 (D. S.D. May 29, 2014).
Plaintiff’s stop wasn’t over like he argues, so the officers could order him out of the car under Mimms. Wilson v. Los Lunas, 2014 U.S. App. LEXIS 13906 (10th Cir. July 22, 2014) .*
Defendant was observed buying a gun at a gun show, and he was a suspected felon. A traffic stop for following too close was made, and the gun was seen and inquired about. Defendant’s stop was valid. United States v. Law, 2014 U.S. App. LEXIS 13909 (10th Cir. July 22, 2014).*
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Two men sitting at a vacant building in the daytime, but in an area known for burglaries, could be asked for identification and it written down. It was a mere encounter and not a detention. One defendant’s continued furtive conduct finally caused escalation of the encounter. Commonwealth v. Lyles, 2014 Pa. LEXIS 1806 (July 21, 2014):
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“‘Reliance on vague, conclusory allegations is insufficient’” to get a hearing on a motion to suppress. “Defendant correctly notes that the government bears the burden of justifying a warrantless search, but this does not relieve him of his burden of justifying a hearing.” United States v. Witzlib, 2014 U.S. Dist. LEXIS 98578 (E.D. Wis. July 21, 2014).
Entry into the backyard was justified by hot pursuit where the police were chasing three men who all bailed out of a still moving car and ran. United States v. Fuller, 2014 U.S. App. LEXIS 13810 (11th Cir. July 21, 2014).*
Defendant’s testimony that he doesn’t recall giving consent to search his cell phone doesn’t overcome the credible testimony of the officers that he did. United States v. Walia, 2014 U.S. Dist. LEXIS 98339 (E.D. N.Y. July 18, 2014).*
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The officer wrote a traffic ticket and then decided to run a computer check, and that unnecessarily prolonged the stop, making it unreasonable. State v. Allen, 2014 Ga. App. LEXIS 538 (July 16, 2014).
Monitoring a controlled buy with the CI corroborated his information. United States v. Cesario, 2014 U.S. Dist. LEXIS 97970 (D.Minn. June 30, 2014).*
There is no reasonable expectation of privacy in the common areas of the property of a storage building.
State v. Michel, 264 Ore. App. __, 2014 Ore. App. LEXIS 963 (July 16, 2014).*
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USA Today: Investigation: ATF drug stings targeted minorities by Brad Heath:
The nation’s top gun-enforcement agency overwhelmingly targeted racial and ethnic minorities as it expanded its use of controversial drug sting operations, a USA TODAY investigation shows.
The Bureau of Alcohol, Tobacco, Firearms and Explosives has more than quadrupled its use of those stings during the past decade, quietly making them a central part of its attempts to combat gun crime. The operations are designed to produce long prison sentences for suspects enticed by the promise of pocketing as much as $100,000 for robbing a drug stash house that does not actually exist.
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The Atlantic: New Surveillance Whistleblower: The NSA Violates the Constitution by Conor Friedersdorf:
A former Obama administration official calls attention to unaccountable mass surveillance conducted under a 1981 executive order.
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NYTimes: Racy Photos Were Often Shared at N.S.A., Snowden Says by Michael S. Schmidt:
WASHINGTON — The former National Security Agency contractor Edward J. Snowden said in a wide-ranging interview published on Sunday that the oversight of surveillance programs was so weak that members of the United States military working at the spy agency sometimes shared sexually explicit photos they intercepted.
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The judge issuing the search warrant here had, over six years earlier, as an ADA prosecuted one of the eight defendants in this case. He didn’t remember the case. When it was brought to his attention, he recused from the entire case. All the defendants moved to suppress and dismiss based on the “bright line” rule in State v. McCann, 391 N.J. Super. 542, 919 A.2d 136 (2007), a violation of judicial ethics can lead to that result. The defendants waited a year to raise the issue for strategic reasons, and there was no dispute that there was probable cause and, more notably, there was no allegation of actual bias by the judge because everybody agreed he didn’t remember the defendant. Noting “[t]he ‘overarching objective of the Code of Judicial Conduct is to maintain public confidence in the integrity of the judiciary,’” judicial conflicts of interest harm the public perception of the judiciary, the conflict here didn’t warrant suppression because of no memory of the one defendant. Under these facts, the “neutral and detached magistrate requirement” of the Fourth Amendment wasn’t violated, and the McCann “bright line” rule doesn’t govern this type of case. Also, no interests of the exclusionary rule would be served by suppression here. State v. Presley, 2014 N.J. Super. LEXIS 101 (July 17, 2014).
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The officer stopped defendant because he swerved, and defendant claimed it was because he was avoiding a pedestrian. The government isn’t required to prove that it was true or not; the question is reasonable suspicion of bad driving, and it was. Then the odor of marijuana was detected. People v. Turnbull, 2014 V.I. LEXIS 46 (Super.Ct. June 23, 2014).*
Defendant’s blood was taken by search warrant and not by the implied consent law, so its taking was valid. Whitaker v. State, 2014 Miss. LEXIS 321 (July 17, 2014).*
The officer was justified in stopping the defendant’s car because of a cracked windshield. Then he was really nervous and he consented to a search of the car. State v. Herron, 2014-Ohio-3166, 2014 Ohio App. LEXIS 3083 (2d Dist. July 18, 2014).*
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Disagreeing with a USMJ for the District Court for District of Columbia, a USMJ in the Southern District of New York held that an entire email account can be the subject of a search warrant, not just itemized files. The court finds it analogous to the seizure of an entire hard drive for later search, which Rule 41 specifically permits. In re A Warrant for All Content & Other Info. Associated with the Email Account xxxxxxx@gmail Maintained at Premises Controlled by Google, Inc., 2014 U.S. Dist. LEXIS 98008 (S.D. N.Y. July 18, 2014):
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On state constitutional grounds, Iowa refuses to follow SCOTUS on probation and parole searches. A search warrant is required without consent. “For the above reasons, we think Cullison remains good law. We decline to overrule it. The United States Supreme Court in Griffin, Knights, and Samson has engaged in innovations that significantly reduce the protections of the Warrant Clause of the Fourth Amendment. We decline to join the retreat under the Iowa Constitution. We hold that under article I, section 8, the warrant requirement has full applicability to home searches of both probationers and parolees by law enforcement. As a result, because evidence seized in this case was obtained unlawfully, the motion to suppress should have been granted. We again note that we do not address the legality of home visits or other types of supervision by probation officers pursuant to their ordinary functions, nor do we address the question of whether a probationer may validly consent to warrantless home searches.” State v. Short, 2014 Iowa Sup. LEXIS 86 (July 18, 2014). The court wrote many pages on why they were departing. Just part 4 here on the states being the primary protectors of privacy rights:
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Officers came to defendant’s house looking for somebody else as a suspect because of a significant number of home burglaries in the area. They found a gate, a 120′ driveway, and opened the gate. About 15′ in they noticed that the door to the house was open, and they called out for whoever was inside to come out. Getting no answer, they sent in a dog. Nobody was home. Then they entered for a protective sweep and found a rifle leaning against the wall. They left and came back with a search warrant a week later, and defendant was arrested for the gun because he was a felon and meth they found. The entry into the house was valid under exigency because it was still possible somebody was inside committing a burglary and just hid. State v. Jacot, 2014 Ariz. App. LEXIS 120 (July 17, 2014).
The officer parked behind defendant, but he didn’t stop the car to begin with. When the officer approached to talk to defendant he could smell marijuana. That was not the product of an illegal stop or defendant’s acquiescence in a stop. State v. Gonzalez, 2014 Ariz. App. LEXIS 119 (July 15, 2014).*
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by John Wesley Hall
Criminal Defense Lawyer and
Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
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@JohnWesleyHall
online since Feb. 24, 2003
URL hits since 2010
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Section 1983 Blog
"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
—Malcolm Forbes
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)
