WaPo: Battling the modern American administrative state by George Will:
As the administrative state distorts the United States’ constitutional architecture, Clarence Thomas becomes America’s indispensable constitutionalist. Now in his 25th year on the Supreme Court, he is urging the judicial branch to limit the legislative branch’s practice of delegating its power to the executive branch.
In four opinions in 112 days between March 9 and June 29, Thomas indicted the increasing incoherence of the court’s separation of powers jurisprudence. This subject is central to today’s argument between constitutionalists and progressives. The former favor and the latter oppose holding Congress to its responsibilities and restricting executive discretion.
On the Media:
Surveillance Beyond the Patriot Act
We all know the Patriot Act, but lesser-known programs like Executive Order 12333 account for the bulk of government surveillance–and receive even less oversight.
The Patriot Act’s Unintended Consequences
Ultimately, our assumption that the Patriot Act is at the center of our nation’s struggle between privacy and security…may not be true.
WaPo: NSA’s bulk collection of Americans’ phone records to end by Ellen Nakashima:
The National Security Agency on Sunday will end its mass collection of data about Americans’ phone calls under the Patriot Act, 2½ years after a leak by former NSA contractor Edward Snowden forced the government to confirm its existence. The halt was ordered by Congress, which in June passed the USA Freedom Act to ban the controversial collection of information known as metadata. That data includes the dates and durations of phone calls and logs of call times, but not content. Under the new law, the NSA must obtain a court order to receive records about phone numbers suspected of belonging to terrorist suspects.
A dog sniff of defendant’s apartment window was a violation of Jardines. While the sniff was pre-Jardines, there was no clear binding authority that the government could rely on for Davis good faith to apply. United States v. Burston, 2015 U.S. App. LEXIS 20266 (8th Cir. Nov. 23, 2015).
The § 2255 waiver provision precludes an IAC challenge to a search and seizure issue that was actually litigated. On the merits, defense counsel made the best argument he could over a two day suppression hearing and lost. Petitioner’s complaints about the representation wouldn’t change the outcome. Taylor v. United States, 2015 U.S. Dist. LEXIS 159387 (S.D.Ill. Nov. 25, 2015).*
In establishing probable cause, the best evidence rule under Rule 1002 & 1004(a) did not apply to a still photograph of a truck that was taken from a security videotape that was erased and then taped over by a camera security system, as per the security company’s routine practice, before the police requested a copy. In addition, an employee of the security company was able to authenticate the photograph pursuant to Rule 901(b)(1) at the suppression hearing. Commonwealth v. Loughnane, 2015 Pa. Super. LEXIS 766 (Nov. 23, 2015).
Defendant’s Franks challenge is summarized in detail and it’s lacking. “[D]efendant’s challenges to the affidavits do not sufficiently attack the core allegations that established the probable cause findings made below: that defendant was under investigation for possessing firearms, drugs and other prohibited devices.” United States v. Hagler, 2015 U.S. Dist. LEXIS 157805 (E.D.Mo. Sept. 22, 2015).*
Throwing a cigarette butt out a car window is littering, and an officer can make a stop even thought it’s a civil forfeiture offense. State v. Iverson, 2015 WI 101, 2015 Wisc. LEXIS 709 (Nov. 25, 2015).
An abrupt turn gave reason for a traffic stop. Brice v. State, 2015 Md. App. LEXIS 163 (Nov. 25, 2015).*
The legal authority to enter to do a knock-and-talk under Jardines does not permit the police to shine flashlights in the windows when nobody answers. In addition, the government’s reliance on a Davis-type good faith exception for this conduct during a knock-and-talk doesn’t fly because Jardines was decided before this happened and was already binding authority. United States v. Alicea, 2015 U.S. Dist. LEXIS 159496 (N.D.Iowa Nov. 24, 2015):
The stop of defendant’s vehicle was extended for a dog sniff. The defense argued that it was unreasonable, and the trial court found it was de minimus. Rodriguez was then decided, and it applies. The dog sniff occurred after defendant should have been released. Watts v. State, 2015 Ga. App. LEXIS 727 (Nov. 20, 2015).
Even though the Supreme Court has counseled against using “standing” instead of “reasonable expectation of privacy” or “interest,” “the two formulas come to the same thing, and cases continue to discuss Fourth Amendment ‘standing.’” Defendant was in a rental car that he didn’t rent and wasn’t an authorized driver, yet he conceivably still could have had standing. No matter, however, because reasonable suspicion developed to continue the stop for a drug dog to arrive at the scene, and it wasn’t unreasonable under Rodriguez. United States v. Sanford, 2015 U.S. App. LEXIS 20503 (7th Cir. Nov. 25, 2015).
When the magistrate read the search warrant for a blood draw, the magistrate was authorized to conclude that 11:59 am should have been pm instead, so the warrant was not stale. Somoza v. State, 2015 Tex. App. LEXIS 12037 (Tex. App. – Houston (1st Dist.) Nov. 24, 2015).
USDJ did not have to recuse from hearing defendant’s suppression motion because of the coincidence that she previously encountered the defendant when a state court judge. United States v. Coleman, 2015 U.S. Dist. LEXIS 157682 (S.D. Ind. Nov. 23, 2015).
Defendant had no standing over government search of a corporation’s website without showing that he had a reasonable expectation of privacy in the place searched. [If it’s on the Internet and open to the world, how is there conceivably any privacy interest in it. This isn’t even close.] United States v. Waddell, 2015 U.S. Dist. LEXIS 157187 (S.D.Ga. Nov. 20, 2015).
A zoning official took photographs of plaintiff’s backyard from a neighbor’s yard. This was not an illegal trespass on plaintiff’s property, aside from the fact it was not raised timely. Looney v. Zoning Bd. of Appeals, 2015 Conn. Super. LEXIS 2699 (New London Oct. 23, 2015).*
Because the product of a computer search was used in trial and it was found nonprejudicial for IAC purposes, it wasn’t necessary to decide whether defense counsel was ineffective for not moving to suppress in the first place. United States v. Hock, 2015 CCA LEXIS 529 (N.-M. Ct. Crim. App. Nov. 24, 2015).
The Hill: Spy court appoints new advisers under NSA reform law by Julian Hattem:
The selections earned some early praise from privacy advocates.
The search warrant authorized seizure of “other media that show standing for an address, vehicle, the location of narcotics proceeds, or a connection between people, addresses and vehicles or that a crime has been committed” and that permitted seizure of a cell phone. United States v. Oliver, 2015 U.S. Dist. LEXIS 157787 (D.Minn. Nov. 23, 2015):
Defendant was convicted of felon in possession charges, and he kept records of his firearms. This authorized a computer search condition on supervised release where the predicate findings were made by the district court. (Dissenter says that there was no nexus between computers and the offense, so the condition is overbroad.) United States v. Bare, 2015 U.S. App. LEXIS 20396 (9th Cir. Nov. 24, 2015) (2-1):
The Fifth Amendment “public safety exception” for statements about firearms can also create exigent circumstances for a protective sweep for the gun. Defendant had a second degree murder warrant issued for him in 2015 for a 2008 murder in Buffalo. He was traced to Birmingham, and the U.S. Marshal’s Fugitive Task Force located him there. As an accused murderer, he admitted to possessing a gun, and that created exigency to retrieve it. United States v. Donaldson, 2015 U.S. Dist. LEXIS 157122 (N.D.Ala. Oct. 22, 2015).
Police responded to a domestic call, and when they got to the house, defendant was on the porch and said it was his girlfriend who called about a dispute over car keys, but she had left. They got permission for one to do a walk through to see if she was there, and she wasn’t. The officer saw a meth pipe and he reported this to the other officer who conducted a patdown for fear that defendant was under the influence and potentially dangerous. Meth was found in his pocket by plain feel, and the frisk was reasonable. May v. State, 2015 Ga. App. LEXIS 729 (Nov. 20, 2015) (4-2).*