Archives for: September 2011, 22


Permalink 05:39:21 pm, by fourth, 220 words, 3034 views   English (US)
Categories: General

CA9: Probation search condition appealable without search having yet occurred

Defendant can appeal his probation search condition even though he has not yet been subjected to a search. But, the condition is valid. On misdemeanor probation, he is not subject to a DNA collection condition. United States v. Baker, 658 F.3d 1050 (9th Cir. 2011).*

A 20 hour delay after an illegal arrest was sufficient here to attenuate the illegal arrest from the statement. Cox v. State, 421 Md. 630, 28 A.3d 687 (2011)*:

In this case, Petitioner and Mr. Johnson’s statements were made approximately 20 hours after Petitioner’s illegal arrest. Although certainly not dispositive, we agree with the State and the Court of Special Appeals that this amount of time provides sufficient separation between the illegal activity and the challenged statements to weigh in favor of a finding of attenuation. We stress, however, that, “[b]ecause a lengthy detention can be used to exploit an illegal arrest at least as easily as a brief detention, the temporal proximity factor has been labeled ‘ambiguous,’ and ‘relatively unimportant,’” and therefore our attenuation analysis does not end here. Ferguson v. State, 301 Md. at 550, 483 A.2d at 1259 (citations omitted).

Multiple traffic violations justified the stop, and the smell of fresh marijuana and PCP gave probable cause to search. United States v. Sheffield, 799 F. Supp. 2d 22 (D. D.C. 2011), Motion granted by, 2011 U.S. Dist. LEXIS 127178 (D.D.C., Nov. 3, 2011).*

Permalink 02:51:51 pm, by fourth, 267 words, 3010 views   English (US)
Categories: General

TN: Police can't order driver from car without RS after stop was over

Ordering the defendant out of the car after the stop was effectively completed was unreasonable. There is no carte blanche to order a driver out of the car at any time without reason. Here, the officer did not consider the driver a safety threat. State v. Donaldson, 2011 Tenn. Crim. App. LEXIS 717 (September 15, 2011).*

The search warrant was for a tan building at 506 Christie Street. When the police arrived, they searched a blue building at that address. It turned out that the blue building was on the street and the tan building was behind it with the same address. The warrant failed the particularity requirement. State v. Spivey, 2011 Tenn. Crim. App. LEXIS 720 (September 19, 2011)*:

Based on the above authority and analysis, we agree with the trial court, and conclude that the search warrant was unconstitutional because it failed to adequately specify the property to be searched. The search warrant described the residence as a single story, single family dwelling with tan siding located at 506 Christie Street on the northeast corner of Christie Street and Brigance Avenue. It failed, however, to distinguish the subject building from a second building on the property, the only one that was actually tan. This is fatal to the search warrant because it authorized law enforcement to search the tan building, which was occupied by a resident unrelated to the investigation.

The exclusionary rule does not apply to probation revocation searches unless they were conducted in bad faith. Jones v. State, 2011 Ark. App. 543 (September 21, 2011).*

The exclusionary rule does not apply to probation searches, and this one was valid. Miller v. State, 2011 Ark. App. 554, 386 S.W.3d 65 (2011).*

Permalink 02:23:04 pm, by fourth, 218 words, 2892 views   English (US)
Categories: General "Dennis G. Jacobs: Case study in judicial pathology" Dennis G. Jacobs: Case study in judicial pathology by Glenn Greenwald:

The last decade has spawned a massive expansion of the domestic Surveillance State. Worse, the U.S. Government has vested itself with the virtually unchallenged ability to operate this surveillance regime in full secrecy and even beyond the reach of judicial review, which is another way of saying: above and beyond the rule of law.

Each time U.S. citizens in the post-9/11 era have accused government officials in federal court of violating the Constitution or otherwise acting illegally with how they spy on Americans, the Justice Department employs one of two secrecy weapons to convince courts they must not even rule on the legality of the domestic spying: (1) they insist the spying program is too secret to allow courts even to examine it (the Bush/Obama rendition of the "state secrets" privilege); and/or (2) because the spying is conducted in complete secrecy, nobody can say for certain that they have been subjected to it, and the DOJ thus argues that the particular individuals suing the Government -- and, for that matter, everyone else in the country -- lacks "standing" to challenge the legality of the spying (because nobody knows on whom we're spying, nobody has the right to sue us for breaking the law).

Permalink 08:13:19 am, by fourth, 155 words, 2952 views   English (US)
Categories: General

Warrants for entire servers?

In this interesting article, albeit not about the Fourth Amendment, USA Today writes about server centers: Buildings house secret servers that keep Net humming by Judy Keen. There's this tidbit near the end:

As more data centers are built, he says there will be more debate about legal issues: What happens if law enforcement has a warrant for a server that also contains data owned by other companies?

As storage goes off-site (the "cloud"), one can imagine search warrants for entire servers where only a tiny part contains the information used by the search warrant's true target. What then? The Comprehensive Drug Testing search protocol debate will be revived. What ham-handed law enforcement officer isn't going to seek seizure of the entire server because it's easier than segregating information really needed in the search warrant papers?

Update: See F.B.I. Seizes Web Servers, Knocking Sites Offline and FBI Seizes Servers at Dallas Data Center.

Permalink 07:46:08 am, by fourth, 320 words, 3292 views   English (US)
Categories: General

WSJ: "'Stingray' Phone Tracker Fuels Constitutional Clash"

WSJ: 'Stingray' Phone Tracker Fuels Constitutional Clash by Jennifer Valentino-Devries:

For more than a year, federal authorities pursued a man they called simply "the Hacker." Only after using a little known cellphone-tracking device—a stingray—were they able to zero in on a California home and make the arrest.

Stingrays are designed to locate a mobile phone even when it's not being used to make a call. The Federal Bureau of Investigation considers the devices to be so critical that it has a policy of deleting the data gathered in their use, mainly to keep suspects in the dark about their capabilities, an FBI official told The Wall Street Journal in response to inquiries.

A stingray's role in nabbing the alleged "Hacker"—Daniel David Rigmaiden—is shaping up as a possible test of the legal standards for using these devices in investigations. The FBI says it obtains appropriate court approval to use the device.

Stingrays are one of several new technologies used by law enforcement to track people's locations, often without a search warrant. ...

Also: How ‘Stingray’ Devices Work by the same author:

Law enforcement and the military are using devices called “stingrays” to track cellphones, as described in a story in today’s Wall Street Journal. The government considers the devices sensitive information, and not much is known publicly about how they are used. But it’s possible to get a good idea of how they work based on public documents and interviews with technology experts.

The systems involve an antenna, a computer with mapping software, and a special device. The device mimics a cellphone tower and gets the phone to connect to it. It can then collect hardware numbers associated with the phone and can ping the cellphone even if the owner isn’t making a call. This can be done through walls — something that is useful in finding suspects as well as victims of crimes or accidents.

Permalink 07:38:59 am, by fourth, 186 words, 3030 views   English (US)
Categories: General

WSJ Blog: "How Technology Is Testing the Fourth Amendment"

WSJ Blog: How Technology Is Testing the Fourth Amendment by Jennifer Valentino-DeVries:

The Fourth Amendment of the U.S. Constitution protects against “unreasonable searches and seizures” – but what does that mean when it comes to techniques that use technology rather than a physical search that is easy to see?

In many ways, it remains unclear. But there a few key issues that courts have been considering lately when it comes to this question.

First up: whether the activity being observed by the technology is outside or inside a person’s house. Courts have consistently ruled, for example, that the use of a GPS device to track people outside their home is not a “search” under the Fourth Amendment. The idea here is that if people are doing things in public, they don’t have much expectation of privacy. A similar argument could extend to the use of cellular signals to track people via their phones outside their home.

Inside a home, though, things are different. The first part of the Fourth Amendment gives people the right “to be secure in their persons, houses, papers and effects.”

Permalink 12:13:52 am, by fourth, 229 words, 2931 views   English (US)
Categories: General

Landline: "Court enjoins Minnesota State Patrol from violating truckers’ rights" in "fatigue enforcement program"

From Landline Magazine: Court enjoins Minnesota State Patrol from violating truckers’ rights by Jami Jones and Sandi Soendker:

Truckers’ Constitutional rights came out the big winner in the judge’s final order in the OOIDA lawsuit against the Minnesota State Patrol and its so-called fatigue enforcement program.

U.S. District Court Judge Donovan W. Frank issued his final order for declaratory relief, injunction and entry of judgment in favor of the Owner-Operator Independent Drivers Association and its member plaintiff Stephen K. House on Wednesday, Sept. 21.

OOIDA and its member plaintiff Stephen K. House filed the lawsuit against the Minnesota State Patrol and individual officers on May 13, 2009, on behalf of truck drivers placed out of service after members of the patrol consulted a checklist and arrived at the conclusion the drivers were “fatigued.”

Judge Frank ruled on Jan. 28 in favor of truckers’ Fourth Amendment Rights and ruled that the OOIDA and House were entitled to declaratory and injunctive relief.

That meant the plaintiffs were entitled to an order of the court instructing the defendants how they must change their practices in the future in order to not repeat their violations of the U.S. Constitution. But instead of immediately issuing such an injunction, the court ordered the parties to enter mediation to try to agree upon the appropriate injunction.

Owner-Operator Indep. Driver Ass'n v. Dunaski, 812 F. Supp. 2d 994 (D. Minn. 2011).

Permalink 12:03:57 am, by fourth, 169 words, 2919 views   English (US)
Categories: General

OH5: Abandoned car at car wreck scene led officers to defendant's house where blood was on doorknob; entry was reasonable

Officers investigated a bad car wreck, and the driver was not there. There was blood in the car. Officers went to his house and saw blood on the doorknob and a key in the lock. Their entry to check on the defendant whom they found in bed bleeding was reasonable to see if the accident victim needed medical care. State v. Wilson, 2011 Ohio 4651, 2011 Ohio App. LEXIS 3833 (5th Dist. September 13, 2011).

CI’s tip here was adequately corroborated to show probable cause. State v. McClain, 2011 Ohio 4690, 2011 Ohio App. LEXIS 3883 (6th Dist. September 16, 2011).*

The officer stopped the car for no headlights, and there were five people in the car. One had a warrant. The officer was justified in asking for a patdown, and defendant consented to it in any event. State v. Covert, 2011 Ohio 4713, 2011 Ohio App. LEXIS 3905 (3d Dist. September 19, 2011).*

The officer was working overtime at an apartment complex and he encountered defendant, and defendant consented to a patdown which revealed drugs. State v. Springer, 2011 Ohio 4724, 2011 Ohio App. LEXIS 3913 (2d Dist. September 16, 2011).*

Permalink 12:00:10 am, by fourth, 14 words, 2913 views   English (US)
Categories: General

6,000 posts since this website went to this format in Feb. 2006.

6,000 posts since this website went to this format in Feb. 2006, so probably 9,000 posts total.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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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)

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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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