Archives for: February 2010, 02

02/02/10

Permalink 05:47:37 am, by fourth, 615 words, 369 views   English (US)
Categories: General

OH12: Getting text messages by court order without hearing violated Stored Commuunications Act, but no suppression required

Defendant was suspected of paying juveniles to engage in sex with each other and him and photographing it, and other juveniles with knowledge were citizen informants. This apparently was common knowledge among a group of young people, and the police found out. The police were told that defendant used text messages on his cell phone to communicate with them. Using a court order rather than a warrant, officers obtained his text messages from Sprint, confirmed the text messages, and then got a search warrant for his house, finding the pictures. The use of a court order rather than a warrant violated the Stored Communications Act, but suppression was not the remedy. As for the search of defendant’s house, there was probable cause even without the text messages based on the detailed reports of the citizen informants. State v. Rivera, 2010 Ohio 323, 2010 Ohio App. LEXIS 256 (12th Dist. February 1, 2010):

[*P24] According to the record in this case, Detective Woodall obtained appellant's text message records that were less than 180 days old by using a court order rather than a warrant as required by Section 2703(a), Title 18, U.S.Code. Further, Detective Woodall did not provide notice to appellant as required by Section 2703(b)(1)(B)(ii), Title 18, U.S.Code. We find these to be violations of the Act. However, as we indicated above, Congress included several remedies for violations of the Act but did not include exclusion of as a remedy. Further, despite having the opportunity to do so, several courts have declined to hold that exclusion is a remedy for a violation of the Act. Accordingly, this court does not find it appropriate to permit exclusion as a remedy for violations of the Act. Moreover, we find it was objectively reasonable for Detective Woodall to rely on the Act being constitutional, as the Act has not been found to be unconstitutional, and Detective Woodall obtained the court order from a neutral and detached magistrate. Therefore, we find that the exclusionary rule is inapplicable to the evidence obtained in violation of the Act.

[*P25] To benefit from the protection provided by the Fourth Amendment, appellant must demonstrate that he suffered a violation of a constitutional right. At best, appellant has demonstrated that he suffered a violation of a statutory right. Because appellant has not demonstrated any valid privacy interest that invokes Fourth Amendment protection and the remedy he seeks for a nonconstitutional violation is impermissible, we need not determine whether the Act is facially unconstitutional. See Cray.

[Note: If the citizen informant's information was of sufficient quality to get a search warrant for the home, and by all accounts it certainly was, if that same information was used to get the court order for the text messages, would not the court order be a de facto warrant for the text messages, and not just be called a "search warrant"? If so, defendant's Fourth Amendment rights were adhered to, and the statutory violation was not sufficiently egregious to warrant suppression.]

Reasonable suspicion for defendant’s stop was shown by the fact that the defendant’s apparent confederate was doing hand-to-hand drug deals and coming back to defendant’s car, giving the appearance of getting more or splitting the proceeds. “While Robinson's arguments may support a juror's reasonable doubt, the Court finds that the agents have demonstrated that a prudent person would have concluded that there was a reasonable probability that Robinson was involved in illegal activity. Considering the totality of the facts and circumstances, the Court finds that the agents had probable cause to believe Robinson was involved in Glenn's selling of crack cocaine to the CI.” United States v. Robinson, 2010 U.S. Dist. LEXIS 7392 (W.D. Ky. January 28, 2010).*

PermalinkPermalink

FourthAmendment.com

Notes on Use

February 2010
Sun Mon Tue Wed Thu Fri Sat
<< < Current > 
  1 2 3 4 5 6
7 8 9 10 11 12 13
14 15 16 17 18 19 20
21 22 23 24 25 26 27
28            

Search




© 2003-10
Online since Feb. 24, 2003

To search Search and Seizure on Lexis.com $
Contact / About

 www.johnwesleyhall.com
 www.LawofCriminalDefense.com

Fourth Amendment cases,
citations, and links [New]

Latest Slip Opinions:
U.S. Supreme Court (Home)
Federal Appellate Courts
  First Circuit
  Second Circuit
  Third Circuit
  Fourth Circuit
  Fifth Circuit
  Sixth Circuit
  Seventh Circuit
  Eighth Circuit
  Ninth Circuit
  Tenth Circuit
  Eleventh Circuit
  D.C. Circuit
  Military Courts: C.A.A.F., Army, AF, N-M, CG
State courts

Google Scholar
Advanced Google Scholar
Google search tips
LexisWeb
LII State Appellate Courts
LexisONE free caselaw
Findlaw Free Opinions

Most recent SCOTUS cases:
2010-11 Term:
  None yet

2009-10 Term:
  Michigan v. Fisher, 130 S. Ct. 546, 175 L. Ed. 2d 410, decided Dec. 7 (per curiam) (ScotusWiki)
  City of Ontario v. Quon, 130 S.Ct. 2619, 177 L. Ed. 2d 216, decided June 17 (ScotusWiki)

2008-09 Term:
  Herring v. United States, 129 S. Ct. 695, 172 L.Ed.2d 496, decided Jan. 13 (ScotusWiki)
  Pearson v. Callahan, 129 S. Ct. 808, 172 L. Ed. 2d 565, decided Jan. 21 (ScotusWiki)
  Arizona v. Johnson, 129 S. Ct. 781, 172 L. Ed. 2d 694, decided Jan. 26 (ScotusWiki)
  Arizona v. Gant, 129 S. Ct. 1710, 173 L. Ed. 2d 485, decided April 21 (ScotusWiki)
  Safford Unified School District #1 v. Redding, 129 S. Ct. 2633, 174 L. Ed. 2d 354, decided June 25 (ScotusWiki)

Research Links:
  Supreme Court:
  SCOTUSBlog
  SCOTUSWiki
  S. Ct. Docket
  Solicitor General's site
  SCOTUSreport
  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
  Oyez Project (NWU)
  "On the Docket"–Medill
  S.Ct. Monitor: Law.com
  S.Ct. Com't'ry: Law.com

  General (many free):
  LexisWeb
  Google Scholar | Google
  LexisOne Legal Website Directory
  Crimelynx
  Lexis.com $
  Lexis.com (criminal law/ 4th Amd) $
  Findlaw.com
  Findlaw.com (4th Amd)
  Westlaw.com $
  F.R.Crim.P. 41
  www.fd.org
  DOJ Computer Search Manual
  USSS computer search website


  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"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).

"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 LePew

"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)

Archives

Misc

XML Feeds

What is RSS?

Who's Online?

  • Guest Users: 16

powered by
b2evolution