A search warrant for child pornography on the premises permitted a search of a digital camera found there. State v. Gurule, 2013 N.M. LEXIS 180 (June 13, 2013), revg State v. Gurule, 150 N.M. 49, 256 P.3d 992 (2011), posted here.
Defendant was clearly in custody for Fourth Amendment purposes, arrested on outstanding warrants, when he was interrogated without Mirandizing him. United States v. Andrade, 2013 U.S. Dist. LEXIS 84728 (D. Nev. May 3, 2013).*
Officers surveilling a drug house watched a car leave, and they pulled it over when traffic offenses were committed. The officer could immediately smell methamphetamine when the window was rolled down. That was probable cause to search the vehicle. Instead, the officer called a drug dog which took 50 minutes to get there. Because there was probable cause, the delay was not unreasonable. Westmoreland v. State, 2013 Ga. App. LEXIS 497 (June 17, 2013).*
Defendant, a Thai national here since 2009 on a permanent resident visa worked the counter at a 7-Eleven in Ft. Myers. A woman saw child pornography on his computer and reported him to the police. They came to his work to talk to him, and he consented to a search of his computer. The only contention was that he didn’t understand enough English to validly consent. Testimony at the suppression hearing was conflicting, but the court credited that defendant understood the conversation with the officers and consented to the search of his apartment and computer. Even if the consent was tainted and excluded, the police had probable cause for the search warrant excising that information. United States v. Srisanthia, 2013 U.S. Dist. LEXIS 84761 (M.D. Fla. June 17, 2013).*
Consent was recorded, and was requested and not demanded. It was voluntary. The fact he “was not feeling well” does not undermine consent. State v. Davis, 2013 N.M. LEXIS 182 (June 13, 2013).*
arstechnica: Texas becomes first state to require warrant for e-mail snooping / Gov. Rick Perry signed HB 2268 on June 14, and it takes effect immediately by Cyrus Farivar:
Salon.com: NSA spying kills my faith in America / I thought privacy and the Fourth Amendment meant something. What do I tell my kids now? by Cary Tennis:
USA Today: Google challenges U.S. gag order in NSA flap by Byron Acohido and Jon Swartz:
Defendant was behaving bizarrely in jail, so he was examined in the mental health section of the jail. He had a much diminished expectation of privacy in those records. When he filed a NGBRI defense, he waived it all. There was no Fourth Amendment violation by getting the records. Armstead v. State, 2013 Ga. LEXIS 544 (June 17, 2013).
The officers had reasonable suspicion the defendant was patronizing a prostitute when they approached his car and talked to him. He was still free to leave when he was talking to them. Holmes v. State, 2013 Ga. LEXIS 557 (June 17, 2013).*
Defendant’s stop was based on a concededly valid window tint violation, so his subjective intent to find drugs was irrelevant. The trial court’s findings the stop was not stalled were supported by the record. Walker v. State, 2013 Ga. App. LEXIS 478 (June 12, 2013).*
The traffic stop here was valid, and consent was obtained during the normal time of the stop. Defense counsel was not ineffective because any other ground of a motion to suppress would have been futile. Betancourt v. State, 2013 Ga. App. LEXIS 479 (June 12, 2013).*
Officers responded to a 911 call about an argument in the lobby of a motel. They entered a room. There was no justification shown for entry into the room under the Fourth Amendment, and the district court’s entry of summary judgment on qualified immunity is reversed. Smart v. Borough of Bellmawr, 2013 U.S. App. LEXIS 12154 (3d Cir. June 17, 2013).*
The officers had reasonable suspicion to approach a group of men across the street from a hang up 911 call and there was nothing going on there. On the totality, there was reasonable suspicion as to defendant for a police encounter. United States v. Hightower, 2013 U.S. App. LEXIS 12141 (8th Cir. June 17, 2013).*
Defendant’s written consent to search his apartment included seizure of papers that supported that he was here illegally. United States v. Nyaga, 2013 U.S. Dist. LEXIS 84372 (E.D. Mo. June 17, 2013).*
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by John Wesley Hall
Criminal Defense Lawyer
Little Rock, Arkansas
Contact / About
www.johnwesleyhall.com
www.LawofCriminalDefense.com
@JohnWesleyHall
Online since Feb. 24, 2003
~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and links
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Most recent SCOTUS cases:
2013-14 Term:
Fernandez v. California, granted May 20 (ScotusBlog)
2012-13 Term: 2010-11 Term: General (many free): Congressional Research Service: "If it was easy, everybody would be doing it. It isn't, and they don't." "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." "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." Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment. "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." "The great end, for which men entered into society, was to secure their
property." "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." "The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth." "A search is a search, even if it happens to disclose nothing but the
bottom of a turntable." "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." “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.” “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.” "You can't always get what you want /
But if you try sometimes / You just might find / You get what you need." "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." “You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
"There is never enough time, unless you are serving it."
Maryland
v. King, 2013 U.S. LEXIS 4165, 2013 WL 2371466 (June 3, 2013) (ScotusBlog)
Missouri
v. McNeeley, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (Apr. 17, 2013) (ScotusBlog)
Bailey
v. United States, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (Feb. 19, 2013) (ScotusBlog)
Florida
v. Harris, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (Feb. 19, 2013) (ScotusBlog)
Florida
v. Jardines, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (Mar. 26, 2013) (ScotusBlog)
2011-12 Term:
Ryburn
v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other
blog)
Florence
v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
United
States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
Messerschmidt
v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)
Kentucky
v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
Camreta
v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
Ashcroft
v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
Davis
v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)
2009-10 Term:
Michigan
v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam)
(ScotusBlog)
City
of Ontario v. Quon, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)
2008-09 Term:
Herring
v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
Pearson
v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
Arizona
v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
Arizona
v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
Safford
Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174
L.Ed.2d 354 (2009) (ScotusBlog)
Research Links:
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SCOTUSBlog
S. Ct.
Docket
Solicitor General's
site
SCOTUSreport
Briefs
online (but no amicus briefs)
Curiae (Yale
Law)
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"On the Docket"–Medill
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Monitor: Law.com
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LexisWeb
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LexisOne
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Lexis.com
(criminal law/ 4th Amd) $
Findlaw.com
Findlaw.com (4th
Amd)
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F.R.Crim.P.
41
www.fd.org
FBI
Domestic Investigations and Operations Guide (2008) (pdf)
DEA
Agents Manual (2002) (download)
DOJ
Computer Search Manual (2009) (pdf)
Electronic
Communications Privacy Act (2012)
Overview
of the Electronic Communications Privacy Act (2012)
Outline
of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
Federal
Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
Federal
Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
ACLU on privacy
Privacy
Foundation
Electronic Privacy
Information Center
Criminal
Appeal (post-conviction) (9th Cir.)
Section 1983 Blog
—Me
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
—Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
—Katz
v. United States, 389 U.S. 347, 351 (1967)
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
—Mick Jagger & Keith Richards
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
—Pepé Le Pew
—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)