05/17/13
KS: Taking a DL to run wants and warrants was unreasonable; RS needed
Holding a motorist's DL longer than necessary "to know who they're dealing with" and then running warrants for curiosity was unreasonable because it extended the stop. State v. Moralez, 102342 (Kan. May 17, 2013):
Sen. Paul, please quit bitching and do something
One can always count on the Washington Times to get the Constitution wrong. This reports on Sen. Rand Paul, and he's wrong, too. See PAUL: A staggering abuse of power / Obama acts as though we no longer have a Constitution by Rand Paul:
From the cover-up in Benghazi to letting the Internal Revenue Service (IRS) target the Tea Party to First and Fourth Amendment violations in obtaining records from the press, Mr. Obama has shown disregard for the Bill of Rights and his responsibilities as commander in chief.
Sen. Paul: It is NOT a violation of the Fourth Amendment to subpoena records like this. Smith v. Maryland, ECPA which is at least 20 years out of date. There is no federal press shield law.
You are a U.S. Senator, for God's sake. Spare us your faux BS moral indignation and do something to create a third party privacy interest by legislation. Strike while the iron is hot, as it were.
I know, that didn't work for new gun legislation, but hey, everybody knows the only section of the Bill of Rights that Republicans care about is the Second Amendment. The rest are ancient history. Prove me wrong.
D.C.Cir.: Rule 41(g) can't be used for strategic gain for possible trial
A Rule 41(g) motion for return of property that was really sought to disclose what the grand jury might be looking at. "The question is more fundamental than whether the movant seeks only to suppress evidence. The question is whether a Rule 41(g) motion is being used for strategic gain at a future hearing or trial." Here it was. Movant's preoccupation with disclosure v. return was evident. In re Sealed Case, 2013 U.S. App. LEXIS 9787 (D.C. Cir. March 5, 2013), reissued May 16, 2013):
GA: Stopping on own and police pulling in behind is not a "stop"
Defendant pulled into a hotel parking lot behind the defendant and defendant was already stopped when the officer got out to encounter him. Defendant had all the usual signs of being under the influence. Daniels v. State, 2013 Ga. App. LEXIS 401 (May 14, 2013).*
Officers did a knock-and-talk on an apartment, and defendant let the officers in. He was acting nervous and kept putting his hands in his pockets. The officers told him to empty his pockets and he did, including drugs. This was all voluntary. State v. Reyes, 2013 La. App. LEXIS 919 (La. App. 2 Cir. May 15, 2013).*
Pro se argument on appeal that the state failed to produce a consent form when that issue wasn’t addressed in the suppression motion was waived by lack of objection at the hearing. State v. Bailey, 2013 La. App. LEXIS 933 (La. App. 2 Cir. May 15, 2013).*
The informant in this case was not a CI but was a citizen informant reporting a crime, naming himself, and being willing to be accountable for the report. That was entitled to more credence. State v. T.S., 2013 Fla. App. LEXIS 7813 (Fla. 3d DCA May 15, 2013).*
RT USA: Cell phone users ‘have no legitimate expectation of privacy’ – judge
05/16/13
N.D.Ga.: Midnight knock-and-talk troublesome but not involuntary on totality
The nighttime (11:45pm) knock-and-talk is troublesome, but the defendants were up and the rest of the encounter shows that it was voluntary. United States v. Bearden, 2013 U.S. Dist. LEXIS 67975 (N.D. Ga. April 17, 2013):
D.Ariz.: Defendant's refusal to tell his name or admit any link to the car he was in meant no standing
Defendant was stopped and his vehicle had the back seat removed and there was burlap fibers and marijuana stems and leaves where the seat was. He was handcuffed and refused to identify himself. He had no proof of ownership or control of the car. Bundles of marijuana were found nearby in the desert. Defendant did not show standing in the car; he put nothing on to attempt to show any link to the car. United States v. Buchanan, 2013 U.S. Dist. LEXIS 69107 (D. Ariz. May 15, 2013), R&R 2013 U.S. Dist. LEXIS 69108 (D. Ariz. March 7, 2013).
Defendant house was searched, and a gun was found and unloaded. It was reasonable for the police to control the gun to prevent its use. When defendant’s immigration status was learned, it was a felony for him to possess the firearm, and the seizure was lawful. United States v. Menjivar, 2013 U.S. Dist. LEXIS 68661 (N.D. Ga. May 14, 2013).*
Defendant pled guilty and his PSR was prepared. Five days later he filed a motion to suppress. After his guilty plea was not timely. United States v. Montes, 2013 U.S. Dist. LEXIS 68497 (E.D. Tex. April 23, 2013).
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by John Wesley Hall
Criminal Defense Lawyer
Little Rock, Arkansas
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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, granted Nov. 9, argued Feb. 26
(ScotusBlog)
Missouri
v. McNeeley, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (Apr. 17) (ScotusBlog)
Bailey
v. United States, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (Feb. 19) (ScotusBlog)
Florida
v. Harris, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (Feb.
19) (ScotusBlog)
Florida
v. Jardines, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (Mar. 26) (ScotusBlog)
2011-12 Term:
Ryburn
v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (Jan. 23,
2012) (other
blog)
Florence
v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (April 2,
2012) (ScotusBlog)
United
States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (Jan. 23, 2012) (ScotusBlog)
Messerschmidt
v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (Feb. 22, 2012) (ScotusBlog)
Kentucky
v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (May 16, 2011) (ScotusBlog)
Camreta
v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (May 26, 2011) (ScotusBlog)
Ashcroft
v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (May 31, 2011) (ScotusBlog)
Davis
v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (June 16, 2011) (ScotusBlog)
2009-10 Term:
Michigan
v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (Dec. 7, 2009) (per
curiam) (ScotusBlog)
City
of Ontario v. Quon, 130 S.Ct. 2619, 177 L.Ed.2d 216 (June 17, 2010) (ScotusBlog)
2008-09 Term:
Herring
v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (Jan. 13,
2009) (ScotusBlog)
Pearson
v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (Jan. 21, 2009)
(ScotusBlog)
Arizona
v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (Jan. 26, 2009)
(ScotusBlog)
Arizona
v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (April 21, 2009)
(ScotusBlog)
Safford
Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174
L.Ed.2d 354 (June 25, 2009) (ScotusBlog)
Research Links:
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F.R.Crim.P.
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www.fd.org
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DEA
Agents Manual (2002) (download)
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Electronic
Communications Privacy Act (2012)
Overview
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Federal
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Federal
Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
ACLU on privacy
Privacy
Foundation
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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)
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