Archives for: March 2007, 28


Permalink 12:01:56 pm, by fourth, 235 words, 692 views   English (US)
Categories: General

Internet browser history and e-mails are evidence in NJ murder case

A search of a defendant's internet browser history and e-mails are evidence in a murder trial in New Jersey, as shown on Court TV's website, On nurse's computer, an Internet how-to for murder:

Jurors in the trial of a fertility nurse accused of killing her husband heard Tuesday about suspicious Internet research performed on the couple's home computer before the slaying, including one Google query for "how to commit murder."

The approximately 40 searches detailed by a forensic computer examiner called by the prosecution occurred on three occasions in the weeks leading up to William McGuire's disappearance. The topics searched related to poisons, guns and death. Among them were "instant undetectable poison," "toxic insulin levels," "how to commit suicide tips" and "how to purchase guns illegally," the expert said.

Prosecutors maintain Melanie McGuire, 34, used the Internet to plot her husband's 2004 slaying. A defense attorney told jurors in his opening statement last week that the 39-year-old victim, a computer analyst, was the primary user of the Hewlett-Packard and had conducted the searches in question.

Jennifer Seymour, a former analyst for the state police's digital technology unit, told jurors there was no way technologically to tell whether the defendant, the victim or someone else in their home had performed the searches.

But under questioning by a prosecutor, she noted that her examination of the same computer uncovered romantic e-mails between Melanie McGuire and her boss, a married physician.

Permalink 10:24:27 am, by fourth, 535 words, 587 views   English (US)
Categories: General

Social worker's entry was based on consent and exigent circumstances and view of drugs paraphernalia was valid

Foster care and social workers sought consent to enter defendant's premises to determine if the children were being properly cared for. The entry was based on consent. In that entry, defendant was found to have marijuana and drug paraphernalia in her bedroom and a valid warrant was obtained to search and seize it. Hallum v. Commonwealth, 219 S.W.3d 216 (Ky. App. 2007):

[I]n the present case, when Ms. Finnerty entered the closed bedroom to investigate the referral she had received, it was not unreasonable for the detective to enter the room because the visit was not criminal in nature. Thus, the detective did not need to receive Appellant's consent to enter the bedroom. Moreover, once Ms. Finnerty told Appellant that she was required to look in the bedroom, Appellant told her to go ahead and do so. He did not tell the detective that he could not go into the room with her.

Regardless, even if we were to assume, arguendo, that it was unreasonable for the detective to enter the bedroom and that he did so without Appellant's consent, exigent circumstances were present, so the entry was nevertheless proper. When exigent circumstances are present, such as the threat of imminent injury or the imminent destruction of evidence, police are permitted to enter a home without a search warrant.

A civil claim against a search implied the invalidity of plaintiff's conviction and was barred by Heck. Crawley v. Sirois, 2007 U.S. Dist. LEXIS 21195 (D. Conn. March 22, 2007):

A judgment in favor of the plaintiff as to the claims against defendant Amato would imply the invalidity of his conviction for possession of narcotics with intent to sell because plaintiff's racial profiling claim alleges that he was pulled over, he was searched, drugs were seized and he was arrested without probable cause. See Gibson v. Superintendent of N.J. Dep't of Law, 411 F.3d 427, 451-52 (3d Cir.2005) (stop based solely on pattern and practice of racial profiling, without any reasonable suspicion, is unlawful and evidence is excludable, and thus implies conviction was improper triggering Heck bar); Allen v. LaPorte, No. 02-CV-71361-DT, 2002 WL 1009563, at *1 (E.D. Mich. April 16, 2002) (holding Heck barred plaintiff's "racial profiling and Terry stop claims, inasmuch as those claims addresses the validity of his arrest and related state criminal proceedings."). The court concludes that the Bivens claims against defendant Amato are barred by Heck. The motion to dismiss is granted as to Bivens claims against defendant Amato in his individual capacity.

Defendant's responding to his name being called out was probable cause to detain him because of an arrest warrant for him. Search incident was valid. United States v. Thomas, 480 F.3d 878 (8th Cir. 2007).*

Plaintiffs' Franks claims were meager challenges to isolated facts that did nothing to undermine probable cause. Officers did not use excessive force in handcuffing plaintiffs. "Finally, and for all the reasons stated above, the court finds the use of handcuffs in this case to be the minimal force necessary to effectuate the safety of the officers and the occupants during the search. The use of force, in the form of handcuffs was reasonable in view of the governmental interests at stake." Bradley v. West, 2007 U.S. Dist. LEXIS 21009 (M.D. Ala. March 22, 2007).*

Permalink 07:23:52 am, by fourth, 293 words, 692 views   English (US)
Categories: General

Arbitrary penis swabbing for STDs at Cook County jail states a claim

The plaintiff alleged that the Cook County jail conducted arbitrary penis swabbings for STDs with sloppy record keeping that did not even allow them to determine who was tested. Neither side was entitled to summary judgment, but plaintiff will get a chance to prove his case. Jackson v. Sheriff of Cook County, 2007 U.S. Dist. LEXIS 21141 (N.D. Ill. March 23, 2007).

Evidence that defendant was told that she "had a lot to lose" as to her children if she did not consent was not coercion. The officer was civil toward her until he determined she was lying about harboring a fugitive. Not all references to children are coercive, although they can be, when, for example, the officer says that the defendant will never see her kids again unless she consents. United States v. Yates, 479 F. Supp. 2d 1212 (D. Kan. 2007).*

Issuing plaintiff a criminal citation and threatening jail if he declined to sign the citation is not a seizure under the Fourth Amendment. Martinez v. Carr, 2007 U.S. App. LEXIS 7074 (10th Cir. March 27, 2007).*

Officers had more than an inchoate and unparticularized suspicion that criminal activity occurred. Officers were investigating bank robberies. By the time they stopped defendant's vehicle, it had ripened into probable cause to search the vehicle, and a warrant was not required. United States v. Lindsey, 482 F.3d 1285 (11th Cir. 2007).*

The search warrant was issued on probable cause. "Defendant's criminal history includes a conviction and an arrest for possession of a controlled substance within the previous four years. This history, coupled with a high volume of short-term traffic at the residence to be searched, corroborated the informant's first-hand observation of defendant at that residence and in possession of drugs and a firearm." United States v. Collins, 2007 U.S. Dist. LEXIS 21021 (D. Minn. March 23, 2007).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (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)

2010-11 Term:
  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, 560 U.S. 746, 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)

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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  Congressional Research Service:
    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
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  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't."

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"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."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"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."
Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"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."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"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."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"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."
Katz v. United States, 389 U.S. 347, 351 (1967)

“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.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“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.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"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."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
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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