Archives for: October 2011, 04

10/04/11

Permalink 06:01:53 pm, by fourth, 122 words, 2982 views   English (US)
Categories: General

Cato@Liberty: "Will GPS Tracking Render the Fourth Amendment Quaint?"

Cato@Liberty: Will GPS Tracking Render the Fourth Amendment Quaint? posted by Jim Harper:

If the government put a GPS monitor on your car and used it to track every vehicular movement of yours for four weeks, do you think that would violate your Fourth Amendment rights? The government would like to be able to do that kind of thing without getting a warrant, and the Supreme Court will soon decide whether it can.

On November 8th, the Court will hear oral argument in U.S. v. Jones. Yours truly was the lead author of Cato’s amicus brief in the case, which may have a significant effect on how Fourth Amendment law intersects with new information technologies for decades to come.

Permalink 03:39:45 pm, by fourth, 164 words, 2942 views   English (US)
Categories: General

Wired.com: “GPS Inventor Urges Supreme Court to Reject ‘Automated,’ Warrantless Surveillance”

Wired.com: GPS Inventor Urges Supreme Court to Reject ‘Automated,’ Warrantless Surveillance by David Kravets:

The principal inventor of the Global Positioning System is asking the U.S. Supreme Court to renounce the Obama administration’s position that it may affix GPS devices to vehicles and track their every move without a court warrant.

Roger L. Easton, awarded the National Medal of Technology in 2006, joined the Center for Democracy & Technology, the Electronic Frontier Foundation and other academics in a friend-of-the-court brief lodged Monday in one of the biggest Fourth Amendment cases in a decade — one weighing the collision of privacy, technology and the Constitution. The justices are scheduled to argue the case Nov. 9.

Easton, now 90 and the principal inventor and developer of the Timation Satellite Navigation System at the Naval Research Laboratory more than five decades ago, and the others are telling the high court that its precedent on the topic is outdated, and the government’s reliance on it should be rejected.

Permalink 09:15:31 am, by fourth, 225 words, 2868 views   English (US)
Categories: General

OH5: One judge's refusal to grant a search warrant does not bar the police asking for consent

A Municipal Judge’s denial of a search warrant is not res judicata barring the police for asking for consent. Res judicata is a final judgment on the merits. The basis for denial of the warrant is not revealed by the record. “Moreover, Appellant presents no law that indicates that the denial of a search warrant is a final appealable order which would lead to the invocation of the doctrine of res judicata in subsequent proceedings. [¶] There is simply no indication as to why the search warrant was denied or what parties were involved in the request for the warrant or indication that an actual hearing took place.” Moreover, his consent was an independent act. State v. Mackenzie, 2011 Ohio 4966, 2011 Ohio App. LEXIS 4091 (5th Dist. September 28, 2011).

Defendant was driving a car with permission of the owner, and he succeeded in showing that the stop lacked reasonable suspicion or probable cause, so the search is suppressed. The sole basis for the stop was that the color of the car did not match the DMV registration. United States v. Uribe, 2011 U.S. Dist. LEXIS 112001 (S.D. Ind. September 28, 2011).*

Defendant’s contention that the officer stalled the stop to get more time for the drug dog to arrive was rejected because of the overall time limit involved from beginning to end: 13½ minutes. Dickey v. State, 2011 WY 136, 261 P.3d 739 (Wyo. 2011).*

Permalink 09:07:33 am, by fourth, 282 words, 3164 views   English (US)
Categories: General

TX: Consent to search a business for a wanted man did not include bringing in a drug dog

Defendant gave consent for the police to enter his welding shop to look for a wanted man. While inside, they called for a drug dog to sniff his van parked inside, and the dog alerted. The consent did not include bringing in a drug dog and the trial court was correct in suppressing and the court of appeals in affirming. State v. Weaver, 349 S.W.3d 521 (Tex. Crim. App. 2011) (with dissent here and here):

The scope of a search is usually defined by its expressed object. A person is free to limit the scope of the consent that he gives. If police rely on consent as the basis for a warrantless search, “they have no more authority than they have apparently been given by the consent.” It is therefore “important to take account of any express or implied limitations or qualifications attending that consent which establish the permissible scope of the search in terms of such matters as time, duration, area, or intensity.” On the other hand, a person's silence in the face of an officer's further actions may imply consent to that further action. The “standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Therefore, a court reviewing the totality of the circumstances of a particular police-citizen interaction does so without regard for the subjective thoughts or intents of either the officer or the citizen. Still, in Texas, the “clear and convincing” burden “requires the prosecution to show the consent given was positive and unequivocal and there must not be duress or coercion, actual or implied.”

Permalink 08:56:33 am, by fourth, 145 words, 3065 views   English (US)
Categories: General

OH5: Warrantless GPS tracking violates the Fourth Amendment, not waiting for Jones

Warrantless GPS tracking violates the Fourth Amendment, deciding the case despite the fact the state and U.S. Supreme Court have the issue before them. State v. Sullivan, 2011 Ohio 4967, 2011 Ohio App. LEXIS 4096 (5th Dist. September 23, 2011):

We note that these issues are presently before the Ohio Supreme Court in the case of State v. Johnson, 190 Ohio App.3d 750, 944 N.E.2d 270, 2010 Ohio 5808, appeal allowed 128 Ohio St.3d 1425, 943 N.E.2d 572, 2011 Ohio 1049 (Table). We further note that the United States Supreme Court has granted certiorari to review the Fourth Amendment implications in the attachment and monitoring of a GPS tracking device. See, U.S. v. Maynard (D.C.Cir.2010), 615 F.3d 544, 392 U.S. App. D.C. 291, cert granted U.S. v. Jones, 131 S. Ct. 3064, 2011 WL 1456728, 79 USLW 3610, 79 USLW 3718, 79 USLW 3727 (U.S. Jun 27, 2011) (10A760).

Maybe, just maybe, this court wants SCOTUS to know what it thinks on this issue.

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  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)
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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)
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  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)
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  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"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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