Archives for: June 2011, 30


Permalink 02:28:11 pm, by fourth, 136 words, 2928 views   English (US)
Categories: General

D.Kan.: Disclaiming ownership in an airplane is a waiver of any REP; same rule as applies to cars applies here

Defendant’s disclaiming ownership of an airplane that DHS was questioning the pilot named Pinto about that Pinto claimed was his airplane was a waiver of a reasonable expectation of privacy in the airplane. The same rules of standing that apply to cars apply to airplanes. United States v. Ambriz-Valenzuela, 2011 U.S. Dist. LEXIS 68706 (D. Kan. June 28, 2011).*

The court credits the Marshals’ testimony about defendant’s consent. Defendant has no criminal history, but she is a sophisticated person with a doctoral degree in nursing and knew what she was doing. United States v. Snellgrove, 2011 U.S. Dist. LEXIS 68837 (S.D. Tex. June 27, 2011).*

There was probable cause for the search warrant in this case based on CI information that was independently corroborated by the police. United States v. Underwood, 2011 U.S. Dist. LEXIS 68632 (W.D. Mo. June 7, 2011).*

Permalink 11:24:03 am, by fourth, 176 words, 2859 views   English (US)
Categories: General

TX: Collateral estoppel: Acquittal midtrial after suppression was not a bar to subsequent trial with different charge because state could not appeal prior holding

Defendant was tried on the merits of a failure to identify himself case with the suppression motion included in the trial. The trial judge suppressed because the officer did not give a good basis for the stop, and then granted a directed verdict because there was no evidence. This acquittal was not collateral estoppel to a trial on subsequent charges for possession of methamphetamine because, inter alia, the first acquittal was not appealable by the state. This is an interesting and complex opinion on double jeopardy, Ashe v. Swanson, and collateral estoppel. York v. State, 342 S.W.3d 528 (Tex. Crim. App. 2011):

In light of our discussion, we reaffirm the bottom-line result in Murphy as controlling where a defendant seeks to bar the relitigation of suppression issues on the basis of double jeopardy. That is, the State is not barred by the Double Jeopardy Clause from relitigating a suppression issue that was not an ultimate fact in the first prosecution and was not an ultimate fact in the second prosecution. We overrule appellant's second ground for review.

Permalink 10:49:30 am, by fourth, 188 words, 2956 views   English (US)
Categories: General

N.D.Iowa: Warrant used to place GPS device on vehicle

How hard is it to get a warrant to place a GPS device on a vehicle and then later to search a cell phone? Not too. United States v. Macias-Perez, 2011 U.S. Dist. LEXIS 68305 (N.D. Iowa June 24, 2011).*

Officers conducted a controlled delivery of a FedEx package with drugs. At the house, the person signing for the package said that he was not the recipient, but he’d sign for it. To the officers, then, that meant that the intended recipient was still there. They conducted a protective sweep for the other person, finding no one. They asked for consent, and it was refused. They secured the premises for a search warrant. The protective sweep that revealed a gun that was not seized until after the warrant arrived was valid. United States v. Wolfe, 2011 U.S. Dist. LEXIS 68235 (E.D. Tenn. June 2, 2011).*

The audio of defendant’s traffic stop was hard to hear, and it did not show that defendant consented or not consented. Thus, the court credits the officer’s testimony that the defendant consented. United States v. Griffin, 2010 U.S. Dist. LEXIS 143280 (N.D. Ga. September 7, 2010).*

Permalink 10:34:38 am, by fourth, 185 words, 2991 views   English (US)
Categories: General

D.Mass.: Officers with knowledge defendant purchased from CP website had PC for SW

Officers talked with defendant about child pornography, and he denied accessing child porn sites, and he consented to them taking a computer. Analysis of the computer showed that it had stopped being used before purchases were made from child porn websites. Although the officers could not show that child pornography was actually downloaded on those purchases, something was and it probably was child porn. Therefore, the search warrant for other computers in the house was issued with probable cause. United States v. Rosenbeck, 2011 U.S. Dist. LEXIS 68070 (D. Mass. June 24, 2011).*

Defendant’s wife had apparent authority to consent to a search of a computer at home that she looked at and found nude pictures surreptitiously made of her daughter. United States v. Rowe, 2011 U.S. Dist. LEXIS 67852 (D. Mont. June 24, 2011).*

Defendant had no reasonable expectation of privacy in somebody else’s cell phone to complain of a wiretap. United States v. Degaule, 797 F. Supp. 2d 1332 (N.D. Ga. 2011),* R&R 797 F. Supp. 2d 1332 (N.D. Ga. 2011), Approved by, Adopted by, Motion denied by, 797 F. Supp. 2d 1332, 2011 U.S. Dist. LEXIS 67983 (N.D. Ga., June 24, 2011).*

Permalink 09:50:09 am, by fourth, 420 words, 2929 views   English (US)
Categories: General

S.D.N.Y.: USMJ concludes he has the authority to dismiss a complaint for lack of probable cause after having issued it; but not in this case

A USMJ has the legal authority to dismiss a criminal complaint for lack of probable cause after having signed off on it in the first place. Here, however, there was probable cause as defendant was arrested in a grow house in the Bronx. United States v. Coiscou, 793 F. Supp. 2d 680 (S.D. N.Y. 2011):

I find the Tejada court’s reasoning more persuasive and conclude that a magistrate judge has the authority to dismiss a complaint for lack of probable cause at or after an initial appearance. I see little difference between dismissing a complaint for lack of probable cause at a preliminary hearing—as a magistrate judge must under Rule 5.1(f)—and dismissing the complaint at some point during or after an initial appearance but before a probable cause determination at such a hearing has been made. Someone being denied his liberty on an insufficient complaint should not have to wait to be released, even for the relatively short period of time until a preliminary hearing takes place. As Coiscou correctly notes, “[a] complaint that does not establish probable cause is ‘invalid.’” Def.’s Letter at 2 (quoting Hollingsworth v. United States, 321 F.2d 342, 348 (10th Cir. 1963)).

Further, the fact that a magistrate judge—here, the undersigned—may have taken the agent’s oath and signed the complaint as required by Rule 3 and thus made an initial determination that probable cause exists as required by Rule 4 does not mean that the same or another magistrate judge may not later reach a different conclusion as to probable cause as legal arguments are presented in the adversarial process. Indeed, that is exactly what is contemplated by Rule 5.1(f). This is particularly so because, when the complaint is filed, “[t]he criminal process is still in the investigative stage, and ‘the adverse positions of government and defendant’ have yet to solidify.” United States v. Alvarado, 440 F.3d 191, 200 (4th Cir. 2006) (quoting United States v. Gouveia, 467 U.S. 180, 189, 104 S. Ct. 2292, 81 L. Ed. 2d 146 (1984)). Thus, the filing of a complaint “can no more be characterized as ‘the initiation of adversary judicial proceedings against the defendant,’ than can the filing of an affidavit in support of a search warrant.” Id. (quoting Gouveia, 467 U.S. at 187); see also United States v. Stein, 541 F.3d 130, 152 (2d Cir. 2008) (“The Supreme Court has ‘pegged commencement of a prosecution to the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’” (alterations omitted) (quoting Rothgery v. Gillespie County, 554 U.S. 191, 198, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008)).

Permalink 09:07:05 am, by fourth, 206 words, 2840 views   English (US)
Categories: General

AlterNet: Has the FBI become a domestic spy agency?

Domestic Spy Agency? 5 Outrageous Examples of FBI Intimidation and Entrapment // In the 10 years since the Sept. 11th attacks, the FBI has expanded its powers, transforming into a massive domestic spying agency by Kevin Gosztola:

In 2010, the FISA court approved all 1,506 requests by the FBI to electronically monitor suspects. They were also generous with granting “national security letters," which allow the FBI to force credit card companies, financial institutions, and internet service providers to give confidential records about customers’ subscriber information, phone number, email addresses and the websites they’ve visited. The FBI got permission to spy on 14,000 people in this way.

Do they really think there are 14,000 terrorists living in the US?

That's just the beginning.

Now, the FBI is claiming the authority to exercise more surveillance powers, which include undocumented database searches, lie detector tests, trash searches, surveillance squads, investigations of public officials, scholars and journalists and rules that would provide more freedom for agents and informants to not disclose participation in organizations that are targets of FBI surveillance.

Apparently the difference between the KGB and the FBI is that the FBI has to go through a judicial rubberstamp and the KGB didn't have to bother with the extra paperwork of the national security letters.

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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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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)

Research Links:
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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  DOJ Computer Search Manual (2009) (pdf)

  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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