PoliticoPro: Boston frames surveillance debate by Steve Friess and Jessica Meyers:
Americans hate Big Brother — until moments like this.
Police state paranoia has long stoked angst and outrage, until an incident like the Boston Marathon bombings takes place and the nation heaves a sigh of relief that security cameras gazed unblinkingly upon Beantown’s streets and sidewalks.
CantonRep.com: Fourth Amendment: No unreasonable searches by Tim Botos:
How much do I track thee? Let me count the ways.
With a GPS-equipped smart phone in your pocket, you drive to work in downtown Canton; click. You zip by a traffic camera along I-77; click. You exit the highway, and pass a city crime control camera; click. You fill up at a gas station, where a security camera catches you paying with a credit card at the pump; click and click. Then, a quick stop at the ATM; click. You arrive in the office parking lot, where a security camera records you; click. You swipe a key card to enter the building; click.
Finally, out of the public eye.
Until that is, you log on to your computer.
. . .
Hall, the defense lawyer, and a former president of the National Association of Criminal Defense Lawyers, said it’s long overdue.
“All those old farts on the Supreme Court don’t even understand how a cellphone works,” he said, referring to the 2010 Ontario v. Quon case. “When you read [the oral argument], it’s clear that (Justice) Roberts didn’t understand that cellphones don’t talk directly to each other … they go to towers first.”
Defendant’s Franks motion requires there be a specific showing of what the misrepresentation is, and that means including the affidavit and how it’s a misrepresentation. It’s easy to make an allegation; the court requires more. United States v. Gutierrez, 2013 U.S. Dist. LEXIS 55323 (N.D. Ga. March 22, 2013) (“Defendant’s Motion makes allegations, but the record does not include the warrant application or any investigative memoranda, testimony or other evidence showing a discrepancy.”)
Defendant’s stop was reasonably extended because defendant didn’t remember her address, she admitted travel that likely violated parole, and she didn’t have the paperwork on the car allegedly just rented. United States v. Cornelius, 2013 U.S. Dist. LEXIS 54693 (D. Ore. April 11, 2013).*
Defendant had standing to challenge the stop but loses because the stop was justified for a seat belt violation, despite the alleged ulterior motive. He doesn’t have standing to contest the search of the car. United States v. Davis, 2013 U.S. Dist. LEXIS 54513 (N.D. Ill. April 15, 2013).*
The mere fact defendant was in a psychiatric ward on a 72 hour hold did not show that he couldn’t consent. Based on the totality of the circumstances, the court credits the FBI agent that defendant knew what he was talking about and wasn’t psychotic at the time. United States v. Greer, 2013 U.S. Dist. LEXIS 54009 (D. Mass. March 26, 2013):
Defendant would lose the search issue in his IAC claim on the merits of the search, as he should on all issues in it. As to the 2255 petition as a whole, it is rife with false statements, omissions, and documents of questionable origin, a recurring theme. “At the outset, the undersigned notes that the movant, a proactive litigant, has filed numerous pleadings and exhibits, some of questionable origin and authenticity, making allegations and representations that, when viewed in light of the entire evidence of record, are fraught with misrepresentations and/or omissions. The undersigned, however, takes no position on whether the information that has come to light in this proceeding should be subject to further investigation by the United States Attorney’s Office, or whether the district court would recommend referral for further perjury and/or fraud proceedings.” Oh, and attorney-client privilege is waived. Garcon v. United States, 2012 U.S. Dist. LEXIS 187686 (S.D. Fla. April 26, 2012):
Law.com: Judge, Counsel Tempers Flare at Stop-and-Frisk Trial by Mark Hamblett, New York Law Journal:
Questioning about drugs beyond the traffic infraction “d[id] not measurably extend the stop’s duration” under Arizona v. Johnson. United States v. Wiggins, 2013 U.S. Dist. LEXIS 55151 (W.D. N.Y. April 16, 2013).*
Stop was justified by alleged speeding, despite the subjective reason of drug investigation. Reasonable suspicion developed. United States v. Garreau, 2013 U.S. Dist. LEXIS 55395 (D. S.D. April 18, 2013).*
Broken taillight justified defendant’s stop. Reasonable suspicion developed. United States v. Poole, 2013 U.S. Dist. LEXIS 55554 (N.D. Ill. April 18, 2013).*
Defense counsel can’t be ineffective for not filing a motion to suppress that would lose. State v. Massey, 2013 Ohio 1521, 2013 Ohio App. LEXIS 1412 (10th Dist. April 16, 2013).*
“[F]ailure to file a frivolous motion to suppress can never constitute ineffective assistance of counsel.” Aguirre v. United States, 2013 U.S. Dist. LEXIS 55652 (D. S.D. April 18, 2013).*
Volokh Conspiracy: House-to-House Searches and the Fourth Amendment by Orin Kerr:
Current events in Boston raise the question of whether the Fourth Amendment allows the government to conduct house-to-house searches for an armed and dangerous suspect on the loose. Assume the police enter a home without consent searching for Dzhokhar Tsarnaev; does the entry violate the Fourth Amendment? The answer depends on whether such home entries are “reasonable” under the Fourth Amendment, which requires a case-by-case balancing of the government’s interest in making the searches and the scope of the privacy invasion. The constitutional question would seem to depend on whether the searches are reasonably limited in scope (such as limited to a specific geographic area), the dangerousness of the suspect (here, very high), and the strength of the government’s case that the suspect may be in the area and cannot be caught another way. Fortunately there aren’t a lot of cases on anything like we’re seeing in Boston, at least as far as I could find. …
Kerr notes that the suspect wouldn’t have standing to contest the entry and arrest because of wrongful presence, and any civil case against the government by a homeowner would be lost on qualified immunity.
I thought the same thing watching it on TV yesterday. Add this: What would the founders have thought about a house to house search for a wanted terrorist? I don’t think it would bother them at all on “reasonableness” because it’s something that might happen once in a lifetime. Balancing need against scope of intrusion (akin to a protective sweep and then quickly gone to the next house), it would be reasonable. If they happened on a little dope in their house to house sweep would the police even care? No; they certainly don’t have time to seize it and write a report. The homeowner gets a pass.
Kerr doesn’t mention this memorable phrase from Justice Jackson in 1949 from Brinegar v. United States, 338 U.S. 160, 182-83, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949) (Jackson, J., dissenting), which pretty much sums it up:
With this prologue I come to the case of Brinegar. His automobile was one of his “effects” and hence within the express protection of the Fourth Amendment. Undoubtedly the automobile presents peculiar problems for enforcement agencies, is frequently a facility for the perpetration of crime and an aid in the escape of criminals. But if we are to make judicial exceptions to the Fourth Amendment for these reasons, it seems to me they should depend somewhat upon the gravity of the offense. If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger.
ZDNet: CISPA passes U.S. House: Death of the Fourth Amendment? by Zack Whittaker for Zero Day:
The controversial Cyber Intelligence Sharing and Protection Act (CISPA) just passed the U.S. House, and will now head to the upper Senate chamber for further deliberation.
Rinse and repeat. This isn’t the first time that this has happened, but it still poses a major threat to Fourth Amendment rights, according to civil liberties campaigners.
The dog sniff at defendant’s apartment door was valid under Eighth Circuit precedent, so, despite Jardines, Davis good faith validates this sniff. United States v. Davis, 2013 U.S. Dist. LEXIS 54130 (N.D. Iowa April 16, 2013):
Eyewitness’s anonymous 911 call about a fight he was watching in a parking lot was entitled to credibility because it was based on first hand knowledge of what was being observed as the call was made, not inside knowledge as from a snitch. United States v. Madrid, 2013 U.S. App. LEXIS 7755 (10th Cir. April 17, 2013):
Katz on a Hot Tin Roof – Saving the Fourth Amendment from Commercial Conditioning by Reviving Voluntariness in Disclosures to Third Parties by Mary Leary. Abstract on SSRN:
Objection in the trial court to the stop of the car didn’t include lack of probable cause for issuance of the search warrant for the car, so that issue is waived on appeal. Thomas v. State, 292 Ga. 429, 738 S.E.2d 571 (2013).*
LPN reader alert provides probable cause for a stop. Rodriguez v. State, 2013 Ga. App. LEXIS 72 (February 19, 2013).
2255 petitioner’s search and seizure arguments were barred from collateral review. United States v. Larsen, 2013 U.S. Dist. LEXIS 20977 (E.D. Wis. February 14, 2013).*
Should resisting a school resource officer be a crime? What about the Fourth Amendment implications of what a school resource officer does under T.L.O.? Tough questions that the legislature is invited to answer. K.W. v. State, 984 N.E.2d 610 (Ind. 2013)*:
Defendant was arrested in his own house for aggravated DWI on a warrantless entry. Defendant made a prima facie case of IAC getting a hearing on defense counsel’s failure to move to suppress. State v. Crocco, 2013 NMCA 033, 296 P.3d 1224 (2012), Certiorari Granted, March 1, 2013, No. 33,938*:
[*1] Following a warrantless police entry into a private residence, Defendant Gregg Crocco was arrested and charged with aggravated driving while intoxicated, contrary to NMSA 1978, Section 66-8-102(D)(1) (2008) (amended 2010). His trial counsel did not move to suppress evidence that resulted from the warrantless entry. Defendant was convicted and he appeals, arguing, among other things, that the police made an unconstitutional warrantless entry into the residence and that his counsel was ineffective for failing to move to suppress the evidence obtained as a result. We hold that Defendant has made a prima facie showing of ineffective assistance of counsel based on his counsel’s failure to move to suppress evidence gained from the warrantless entry. We reverse Defendant’s conviction and remand for a new trial.
The officer allegedly extended the stop and defense counsel at trial didn’t move to suppress. Because the facts aren’t clear that the motion probably would have been granted, defense counsel wasn’t ineffective. State v. Walker, 824 N.W.2d 561 (Iowa App. 2012).*
OrlandoSentinel.com: Florida to be among first states to regulate drones by Jennifer Curington:
A bill to limit law enforcement’s use of drone aircraft is headed to Gov. Rick Scott, who has said he will sign it. When he does, Florida will be among the first states to regulate the unmanned aircraft.
On Wednesday, the House unanimously passed SB 92, which would allow law-enforcement to launch camera-carrying surveillance drones only if they first obtain a warrant from a judge or if a person’s life or property is believed to be in imminent danger, or if the Department of Homeland Security has declared a terrorist threat.
A Public Defender: In CT: Argument Recap: Guilt by association because we’re all criminals:
It didn’t occur to me until earlier today, but there is a pattern here. The State has been trying for years to get great police powers at the expense of individual rights. But two things that happened in the last two days have really crystallized the extent to which they’re willing to go: 1. The absurd and frightening position staked out by the State of Connecticut at oral arguments yesterday, and; 2. Their repeated requests for vast investigative subpoena powers. I will take them up in turn.
The State of Connecticut thinks that everyone on the street is a suspect and the police should be able to detain anyone they feel like.
I wrote two days ago about the stunning argument the State is making in State v. Jeremy Kelly, where they are seeking to justify the detention of Kelly where he was only known to police officers as the guy standing next to someone they were looking for. Briefly, the police were looking for Gomez. They saw Burgos and Kelly. They thought Burgos was Gomez. They had no idea who Kelly was and were not interested in him. They ordered both men to stop. Both questioned that authority. The police repeated their commands. They both did not acquiesce and ran off. Kelly was eventually apprehended and charged with possession of cocaine.
Constitution Daily: CISPA, the Fourth Amendment, and you by Scott Bomboy
Overshadowed by congressional action on guns and immigration is an Internet privacy bill that could affect most Americans, without them knowing it, on a daily basis.
Cyber Intelligence Sharing and Protection Act (or CISPA) is making its way through Congress, and it’s passed a House vote on Thursday.
apublicdefender.com: The guilt by association exception to the Fourth Amendment:
Missouri v. McNeely, No. 11–1425. Argued January 9, 2013, Decided April 17, 2013. ScotusBlog here. Syllabus:
