Archives for: October 2011, 12


Permalink 02:05:57 pm, by fourth, 217 words, 2987 views   English (US)
Categories: General

Grits: "Whether SCOTUS says GPS tracking is constitutional, markets may decide if it's viable"

Grits for Breakfast: Whether SCOTUS says GPS tracking is constitutional, markets may decide if it's viable [link not working now]:

Fourth Amendment fans and foes alike are awaiting oral arguments this fall in United States v. Jones, which will determine whether police require a warrant to surreptitiously put a GPS tracking device on your car.

Obviously, Grits thinks a warrant should be required, but frankly a warrant requirement isn't that great a barrier and the case made me wonder about technology to identify such devices. It turns out for $500 bucks you can purchase a device that will locate GPS trackers as well as wiretaps, wireless taps, and even hidden cameras. Ironically, with SCOTUS focused on the use of GPS trackers by the government, the manufacturer is promoting the device to protect against thieves:

Don't Give Thieves Access To Your Personal Information Or Possessions

Being spied on can be more than just embarrassing. Oftentimes, thieves use eavesdropping equipment or "bugs" such as sound amplifying devices for audio surveillance or hidden cameras for video surveillance to find out valuable information about your personal finances and possessions. Your private conversations can give thieves all the information they need to steal your identity, break into your home, or even abduct your children. Protect yourself with the Frequency Finder Bug Detector Pro.

Permalink 10:10:06 am, by fourth, 305 words, 3189 views   English (US)
Categories: General

VI: Arrest for possession of firearm without knowing legality of possession was unreasonable

Defendant’s stop was justified, but merely possessing a gun was not probable cause to believe that those in the car were committing a crime. The arrest for the gun before determining whether it was lawfully or unlawfully possessed was unreasonable. People v. Matthew, 55 V.I. 380 (2011)*:

In conclusion, this Court holds, consistent with the Third Circuit's decision in U.S. v. Ubiles, and Title 23 Section 488 of the Virgin Islands Code, that the warrantless arrest of defendants—without probable cause that the weapons were unlawfully possessed or without any other evidence to support probable cause that other criminal activity was afoot—was unreasonable under the totality of the circumstances and that the weapons and ammunition and all other evidence uncovered subsequent to the unlawful arrest are hereby suppressed.

Defendant’s son called the police to tell them that defendant was a convicted felon with firearms, was off his medication, and had be acting erratically and assaulted someone. He said he lived at the house with his father. He consented to a search, and the consent was with objective reliance on apparent authority. Defendant credibly argued, the court’s view, that he had kicked his son out of the house before that, and he had obtained an order of protection to keep his son away. He argued that the order of protection was served on the Sheriff’s Office and that was “collective knowledge” imputed to all the Sheriff’s Department that the son had no actual authority. While the argument had some limited force, the USMJ cannot find as a matter of fact that the document was actually served on Sheriff’s Department before the consent to search to give it any strength. United States v. Cribbs, 2011 U.S. Dist. LEXIS 116742 (W.D. Tenn. February 11, 2011)*, adopted in part 2011 U.S. Dist. LEXIS 112559 (W.D. Tenn. September 29, 2011).*

Permalink 09:19:37 am, by fourth, 297 words, 2824 views   English (US)
Categories: General

D.Neb.: Considering defendant's voice inflection, too, he consented to a dog sniff

Defendant refused to consent to a search of his car, but, on the video, he did consent to a dog sniff when separately asked about that. He argued that his consent was just going along with the officer, but the court finds from the video that defendant’s voice inflection was true consent. The first question was less than “ideal” but the officer followed up with further questions that were unequivocal. United States v. Grant, 2011 U.S. Dist. LEXIS 116699 (D. Neb. October 5, 2011)*:

... Upon review of the traffic stop video, the court can hear the inflection in Grant's voice when he responded with an unequivocal "sure," affirming his consent to allow Sergeant Wilcynski to call a canine officer. In addition to this verbal consent, Grant was an adult who understood English, was not under the influence of drugs, and had prior arrest experience. The encounter had lasted only a few minutes up to that point. Sergeant Wilcynski made no threats, promises, or misrepresentations, and Grant was not under arrest. Grant later engaged Sergeant Wilcynski in cordial conversation while they waited for the canine officer and even expressed his ease with waiting while a storm passed over his intended route. Under these circumstances, the court finds Grant voluntarily consented to the twenty-two minute post-stop encounter. For this reason, the court finds the detention and search were constitutionally reasonable.

Defendants were indicted for seditious conspiracy in a militia group known as the Hutaree planning action against the government that would include setting up an ambush of police officers. The government infiltrated the group by informant and passed a wealth of information that formed the basis of seven search warrants which were found to have issued with probable cause. United States v. Stone, 2011 U.S. Dist. LEXIS 116800 (E.D. Mich. August 3, 2011).*

Permalink 12:02:07 am, by fourth, 577 words, 3049 views   English (US)
Categories: General

SCOTUSBlog: My commentary on Florence

My SCOTUSBlog commentary on Florence v. Board of Chosen Freeholders of the County of Burlington strip search case argued today, October 12th:

At issue in Florence is “reasonableness” of a jail strip search of a man brought in because of a computer error on whether he had paid a past traffic fine. In Bell v. Wolfish the Court held that pretrial detainees in the Manhattan MCC could be strip searched during their confinement because it was reasonable on a balancing of interests.

Those detainees, however, were either held on a criminal complaint or indicted. How does that relate to an accidental arrestee, a person brought to jail because of an erroneous traffic warrant that arose after the person was stopped on the street by chance, and a warrant comes up when his driver’s license number is run?

Reasonableness has always been stated by the Court to be the “fundamental inquiry” (see, e.g., United States v. Chadwick) or “touchstone” in Fourth Amendment cases. (see, e.g., Robinette v. Ohio; Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls). Was it reasonable to strip search Mr. Florence when there was virtually no chance he would be introducing a weapon or contraband into the jail? Does the Fourth Amendment “reasonableness” and balancing inquiry permit the Court to find this strip search invalid in light of what some members of the Court will undoubtedly see as the weighty interest in jail security automatically tipping the balance for the government?

And what about “lesser-intrusive means”? An accidental detainee like Mr. Florence should not be subjected to the indignity of his strip search. Even so, how does one apply such a rule (a “bright-line rule”?) so jailers will understand it? That didn’t stop the Court in holding that a detainee couldn’t be detained more than 48 hours without seeing a judicial officer for a probable cause finding in County of Riverside v. McLaughlin, but that case did not involve jail security. But, Earls refused to even going in the “lesser-intrusive measures” for drug testing students. Indeed, such a standard has always been scrupulously avoided by the Court. (See, e.g., United States v. Martinez-Fuerte and Colorado v. Bertine).

An irony lost on the parties [only one respondent mentions it in passing for something else] is Herring v. United States holding that the exclusionary rule would not be applied to persons arrested and then searched on accidental warrants because there was only mere negligence in not purging the warrant. Now, that mere negligence leads to the gross indignity of a strip search of a man with papers in his car showing that the warrant for him is bogus.

If Mr. Florence loses, then we have a fait accompli. “Reasonableness” has been forever subordinated to “jail security,” and mere incantation of the words makes the Fourth Amendment evaporate in any jail setting. No exclusionary rule under Herring; no civil action under Florence; the government can’t lose; perfect. Is that where we are headed? Gail Atwater’s driving without a seat belt would then have caused her to risk being strip searched because her arrest was valid under the Fourth Amendment even though the offense was “fine only.” And what about retaliatory arrests for “contempt of cop”? Can officers then arrest people to purposely add to their indignity knowing that a strip search will occur, too? That already happens with automobile searches, so why not for any arrest?

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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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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  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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