Archives for: June 2007, 14


Permalink 05:18:12 pm, by fourth, 250 words, 499 views   English (US)
Categories: General

News: FBI audit shows it violated NSL law more than 1,000 times

The Washington Post today has posted this article: FBI Finds It Frequently Overstepped in Collecting Data:

An internal FBI audit has found that the bureau potentially violated the law or agency rules more than 1,000 times while collecting data about domestic phone calls, e-mails and financial transactions in recent years, far more than was documented in a Justice Department report in March that ignited bipartisan congressional criticism.

The new audit covers just 10 percent of the bureau's national security investigations since 2002, and so the mistakes in the FBI's domestic surveillance efforts probably number several thousand, bureau officials said in interviews. The earlier report found 22 violations in a much smaller sampling.

The vast majority of the new violations were instances in which telephone companies and Internet providers gave agents phone and e-mail records the agents did not request and were not authorized to collect. The agents retained the information anyway in their files, which mostly concerned suspected terrorist or espionage activities.

But two dozen of the newly-discovered violations involved agents' requests for information that U.S. law did not allow them to have, according to the audit results provided to The Washington Post. Only two such examples were identified earlier in the smaller sample.

Your USA Patriot Act at work. The government got its wish list for domestic surveillance then treated, and still does, the Constitution like it no longer matters. Who polices the FBI?

Where do we go to get our rights back? Not Congress. Maybe the courts? Too little, too late.

Permalink 07:47:07 am, by fourth, 479 words, 460 views   English (US)
Categories: General

Suspect with 62 IQ could consent to search; Miranda waiver standard applied

Defendant with a 62 IQ could still consent to a search, and the same analysis was applied for waiving Miranda rights. United States v. Jennings, 2007 U.S. Dist. LEXIS 42344 (M.D. Ala. March 2, 2007):

As the standard that a consent to searches be made voluntarily, knowingly and intelligently, is the same as for the waiver of defendant's Fifth Amendment right regarding self-incrimination under Miranda, see Barbour, 70 F.3d at 585 and Colorado v Connelly, 479 U.S. 157, 169-70, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); and similar forms, essentially, were used with some modification as to place or item to be searched; the analysis of defendant's behavior, intellect and understanding of the consequences of his actions as to the searches is the same. The forms used n18 for the consent to search were simplistic and concrete; they were not lengthy; they were read by the detective to defendant; defendant was asked if he understood them, and after indicating his verbal understanding, signed the three forms. Neither Dr. Dana or Dr. Boyer review these particular forms with defendant. Thus, it is our finding that given the testimony presented as to defendant's capabilities, his understanding of simple concepts and verbal explanations as indicated by the experts, the government met its burden of showing that defendant consented to the search of his personal bag and it contents.

Defendant has no standing to challenge the finding of his cellphone number in another person's cellphone call history. United States v. Redd, 2007 U.S. Dist. LEXIS 42330 (N.D. Ill. June 11, 2007).*

Franks challenge failed where defendant could only show that he disagreed with the affidavit. United States v. King, 2007 U.S. Dist. LEXIS 42496 (S.D. Fla. June 1, 2007):

Here, Cameron alleges falsities in the affidavit with respect to the reliability of the confidential informants referred to in the affidavit; information obtained (or not obtained) from the informants (i.e., no statement by the informant that he purchased cocaine from Cameron); and the source of money used to purchase the cocaine (i.e., no "Official Miami-Dade County Funds" were used to purchase the cocaine). However, Cameron offers no proof of these alleged misrepresentations in the affidavit other than his own reading of the affidavit and records he apparently obtained from the Miami-Dade Police Department with respect to two earlier sales of narcotics by Cameron to different informants being used by other police officers at the subject residence. Thus, Cameron fails to make a "substantial showing" of falsehood in the search warrant affidavit or reckless disregard for the truth which would warrant a Franks hearing under the circumstances of this case.

Plaintiff's apparently swallowing a handcuff key while in jail justified x-rays and a forced enema when he refused to voluntarily produce the key. He had an escape attempt history, and that justifiably concerned the jailers. Faircloth v. Lee, 2006 U.S. Dist. LEXIS 96328 (E.D. N.C. November 20, 2006).*

(And this is all the cases for today.)

Permalink 07:21:02 am, by fourth, 666 words, 667 views   English (US)
Categories: General

Government's examination of international wire transfers throught the SWIFT system is not unconstitutional, but overproduction under "legal process" may be; motion to dismiss denied

International (and some domestic) wire transfers go throught the S.W.I.F.T. system, and the government accessed the system by subpoena to look for terrorist movement of money, but SWIFT overproduced what was sought. When this was revealed in an article in the N.Y. Times, suit was filed for permitting the government access without valid legal process. On the Fourth Amendment claim, the case survives summary judgment: Miller shows there is no reasonable expectation of privacy in the records, but it was alleged that SWIFT provided more than the subpoenas sought, and that stated a claim. Walker v. S.W.I.F.T., 491 F. Supp. 2d 781 (N.D. Ill. 2007):

SWIFT is an international cooperative consortium based in Brussels, with its principal American place of business in northern Virginia. (Dkt. No. 16 at 1). SWIFT's services include "supplying secure, standardized messaging services and interface software to 7,800 financial institutions in more than 200 countries." (2d Am. Compl. P 3). SWIFT routes more than 11 million financial transactions each day, and "virtually every major commercial bank, as well as brokerage houses, fund managers and stock exchanges, uses its services." (2d Am. Compl. P 14). At issue in this case is SWIFT's response to subpoenas issued by the Treasury Department under the International Emergency Economic Powers Act, 50 U.S.C. § 1701, et seq, through a program that eventually became known as the "Terrorist Finance Tracking Program." (2d Am. Compl. PP 2, 13; Article at 8). Plaintiffs allege that SWIFT's initial response to the government's requests for information was overbroad, in that SWIFT turned over to government officials "the entire SWIFT database." (2d Am. Compl. P 14; Article at 8).

. . .

In Count II of their Second Amended Complaint, Plaintiffs argue that SWIFT "violated [their] reasonable expectations of privacy and denied ... their right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the Constitution of the United States." (Compl. P 47). In United States v. Miller, the Supreme Court held that individuals have no legitimate expectation of privacy regarding financial information "voluntarily conveyed to ... banks and exposed to their employees in the ordinary course of business." United States v. Miller, 425 U.S. 435, 442-43 (1976). The Court concluded that "[s]ince no Fourth Amendment interests of the depositor are implicated ..., this case is governed by the general rule that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of [the depositor.]" Miller, 425 U.S. at 444. It thus is clear that private citizens have no Fourth Amendment rights in financial records created and shared in the ordinary course of business.

However, it is also apparent that there may be limitations to the scope of Miller's holding. In both Miller and its predecessor case, California Bankers Ass'n. v. Shultz, 416 U.S. 21 (1974), the Supreme Court implied in dicta that unfettered government access to the bank records of private citizens could be considered constitutionally problematic.

. . .

Furthermore, Plaintiffs have alleged that SWIFT disclosed more information than was requested by the government subpoenas, as discussed in detail below. This, too, brings the case outside the bounds of "existing legal process." The majority in Miller specifically distinguished that case from the case of Burrows v. Superior Court, 529 P.2d 590 (Cal. 1974), on the grounds that "the bank records of respondent's accounts were furnished in response to 'compulsion by legal process' in the form of subpoenas Duces tecum" unlike Burrows, where "the bank ... provided the statements to the police in response to an informal oral request for information." Miller, 425 U.S. at 445 n.7. This distinction is included in the Supreme Court's analysis of whether the subpoena in Miller should have been subject to "more stringent Fourth Amendment requirements than is the ordinary subpoena." Id.

Based on the foregoing analysis, the court finds SWIFT's argument that Miller necessarily precludes Plaintiffs' Fourth Amendment claims to be unpersuasive. On its face, Miller does not preclude Plaintiffs' Fourth Amendment claims as set forth in the Second Amended Complaint. SWIFT's motion to dismiss Count II on these grounds is therefore denied.

Permalink 06:52:53 am, by fourth, 845 words, 468 views   English (US)
Categories: General

Impoundment policy on any custodial arrest was invalid where vehicle could have been left

The defendant was arrested, and his vehicle was impounded under a city police policy for impoundment on any custodial arrest. The policy is invalid because it allows impoundment with complete discretion of the officer. [The fact the policy was written does not end the inquiry; it starts there.] United States v. Osborne, 489 F. Supp. 2d 860 (C.D. Ill. 2007):

The Government argues that since the Police Department has adopted a set of written, standard guidelines and because those guidelines were followed when the officers impounded and searched Osborne's vehicle, the impoundment and search were valid. The Court disagrees.

The facts of the instant case do not meet any of the conditions that would trigger a valid tow under the "General Guidelines" subsection of the Police Department's tow policy or under the officers' "community care-taking" functions. Therefore, the instant case is distinguished from U.S. v. Cherry. In Cherry, the court found that the vehicle did present a safety hazard because it was located on the side of an interstate highway, and the [*9] court's analysis did not proceed beyond that point. 436 F.3d 769, 773-774 (7th Cir. 2006). Osborne's vehicle was not left on the street and did not present any sort of safety hazard; it was parked on the private property of an autobody shop and did not present any hazards to the public.

Therefore, this situation must fall under the "Custodial Arrest" subsection. While the provisions of the "Custodial Arrest" subsection technically constitute a policy, for all practical purposes, it is no policy at all. The subsection sets forth no criteria by which the decision to impound is to be made. Essentially, it provides for unfettered police discretion in making impoundment decisions. A police department tow policy cannot delegate enforcement of the Fourth Amendment to the discretion of police officers.

Defendant filed a motion to suppress a warrantless entry, which the government first opposed and then assented to. The arrest inside, however, was lawful. Later, defendant disputed money found in his pants at booking, pants he put on when arrested after the entry the government conceded was unlawful. The court applied the general rule that book-in searches were valid, unless manipulated, and here it was not. United States v. St. Pierre, 488 F.3d 76 (1st Cir. 2007):

Therefore, the circumstances by which the pants came to be on St. Pierre are important. If it were the case that the police, knowing that the evidence found in the apartment search was likely to be suppressed, conspired to stash the $380 in the pocket of a pair of pants and then coerce St. Pierre into wearing them, this would be a very different case. Here, however, St. Pierre has not alleged any bad faith by the agents, nor is there any evidence of such. Furthermore, having the consent of the girlfriend to search the apartment, the agents had no reason to believe that the evidence they discovered would be suppressed. Finally, given St. Pierre's condition, it was entirely reasonable for all parties, himself included, to want him to be given pants, and there is no evidence that he protested or asked for a different pair of pants. Thus, under these somewhat unusual circumstances, a search of St. Pierre's pants at booking was proper, and we see no error in the denial of the motion to suppress the $380.

Dog bite on arrest is not always excessive force. Balancing the three Graham factors on excessive force, the court concludes that the force used in this case was reasonable under the totality of the circumstances. Here, the plaintiff's injuries were exacerbated by his efforts to flee the dog and extricate himself from the first bite. Pace v. City of Palmetto, 489 F. Supp. 2d 1325 (M.D. Fla. 2007):

While Pace's injuries were severe, the undisputed material facts demonstrate that the use of K-9 force and the severity of Pace's injuries were the direct result of Pace's decision to flee and hide in the dark, densely vegetated mangrove swamp to avoid apprehension. Brix attempted to apprehend Pace in the manner in which he had be trained, namely, the bite and hold method. (Ahler Depo I, p. 207). Under this method, a dog is trained to subdue a suspect by biting his arm or leg, but if a leg or arm is unavailable, the dog is trained to apprehend the suspect by biting any area of his body exposed. If the suspect breaks free, the dog is trained to reestablish the bite. As a result, suspects often suffer serious injury from multiple bites received during the course of an apprehension. Kerr v. City of West Palm Beach, 875 F.2d 1546, 1550 (11th Cir. 1989). The bite and hold training method is not unconstitutional. Nor is it objectionable unreasonable. See Kerr, 875 F.2d at 1550 (recognizing the constitutionality of using police dogs trained in the bite and hold method when an officer is placed in a threatening situation); see also Kuha v. City of Minnetonka, 365 F.3d 590, 599-600 (8th Cir. 2004) ("mere use of a police dog trained to bite and hold does not rise to the level of a constitutional violation" and does not constitute deadly force).

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting

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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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"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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