WaPo: Battling the modern American administrative state

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.

Posted in Administrative search, Subpoenas / Nat'l Security Letters | Comments Off

On the Media and the PATRIOT Act

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.

Posted in National security | Comments Off

WaPo: NSA’s bulk collection of Americans’ phone records to end

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.

Posted in National security | Comments Off

IL: Where statute on which seizure was based was later held unconstitutional, it is void ab initio; Krull and Davis not followed

In People v. Aguilar, 2013 IL 112116, 377 Ill. Dec. 405, 2 N.E.3d 321 (2013), the Illinois Supreme Court held facially unconstitutional under the Second Amendment the state flat prohibition on possession of firearms outside the home. This defendant’s arrest under that statute before Aguilar was suppressed and good faith would not save it because the statute was void ab initio. Krull and Davis are not followed. People v. Holmes, 2015 IL App (1st) 141256, 2015 Ill. App. LEXIS 879 (Nov. 25, 2015).

“You do what you gotta do” was consent. Randolph didn’t apply because defendant didn’t object. United States v. Broadnax, 2015 U.S. App. LEXIS 20331 (9th Cir. Nov. 23, 2015).

Posted in Consent, Good faith exception | Comments Off

CA8: Pre-Jardines dog sniff at defendant’s window was governed by Jardines

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).*

Posted in Curtilage, Ineffective assistance | Comments Off

PA: The best evidence rule does not apply to establishing probable cause

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).*

Posted in Franks doctrine, Probable cause | Comments Off

WA: Def not entitled to suppression hearing where only disputed fact wasn’t material to any Fourth Amendment question

There was no right to a suppression hearing where the only disputed fact was irrelevant to any Fourth Amendment question. State v. Houston-Sconiers, 2015 Wash. App. LEXIS 2915 (Nov. 24, 2015).

Defendant was stopped because the officer knew from a contact two days earlier that defendant’s DL was suspended. Defendant’s passengers also didn’t have DLs, and the officer didn’t keep them telling them they could walk off. The officer could have impounded defendant’s car, and he asked for consent, got it, and called for a drug dog. Defendant admitted he had a meth pipe, and that was all that was found. The officer testified he decided not to impound the car because of defendant’s cooperation. The record supports that the consent was valid, and the trial court didn’t believe that defendant was told to consent or his car would be impounded. State v. Cherry, 2015 Wash. App. LEXIS 2914 (Nov. 24, 2015).*

Posted in Consent | Comments Off

WI: Discarded cigarette butt is PC for a stop

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).*

Posted in Probable cause | Comments Off

WaPo: Improper techniques, increased risks / Deaths have raised questions about the risk of excessive or improper deployment of Tasers

WaPo: Improper techniques, increased risks / Deaths have raised questions about the risk of excessive or improper deployment of Tasers by Cheryl W. Thompson & Mark Berman:
Continue reading

Posted in Excessive force | Comments Off

N.D.Iowa: When no one answers a knock-and-talk, Jardines prohibits shining a flashlight in the window

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):
Continue reading

Posted in Curtilage, Trespass | Comments Off

Two on Rodriguez and extended stops

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).

Posted in Reasonableness, Standing | Comments Off

TX1: Issuing magistrate could conclude 11:59 am really meant 11:59 pm

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).

Posted in Burden of proof | Comments Off

S.D.Ga.: Corp. officer had no standing in search of company website; aside from the fact it’s on the Internet

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).

Posted in Ineffective assistance, Reasonable expectation of privacy, Trespass | Comments Off

The Hill: Spy court appoints new advisers under NSA reform law

The Hill: Spy court appoints new advisers under NSA reform law by Julian Hattem:

The selections earned some early praise from privacy advocates.

Posted in National security | Comments Off

D.Minn.: “other media” showing “address, vehicle, and location of narcotics proceeds” permitted seizure of cell phone

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):
Continue reading

Posted in Cell phones, Particularity | Comments Off

CA9: Where findings were made by district court, a computer search condition is valid (dissent by Kozinski)

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):
Continue reading

Posted in Probation / Parole search | Comments Off

N.D.Ala.: Fifth Amendment “public safety exception” creates exigency for protective sweep for weapon in hands of felon

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).*

Posted in Emergency / exigency, Protective sweep, Stop and frisk | Comments Off