Archives for: October 2011, 14

10/14/11

Permalink 10:53:36 am, by fourth, 100 words, 2877 views   English (US)
Categories: General

BLT: "Judge: No Warrant Needed For Cell Phone Location Data "

BLT: Judge: No Warrant Needed For Cell Phone Location Data:

Prosecutors do not need a warrant to compel a cellular phone service provider to turn over data about call location, a federal judge in Washington said in a ruling unsealed Wednesday.

The ruling (PDF) examines the government’s attempt to get data from the undisclosed service provider amid a U.S. Attorney’s Office investigation of an armed robbery of an armored truck.

In the Matter of Application of the United States of America for an Order Authorizing Disclosure of Historical Cell Phone Location Date, 11-449 (D.D.C. October 3, 2011).

Permalink 07:26:21 am, by fourth, 113 words, 2877 views   English (US)
Categories: General

TX11: Judge issuing SW is presumed to act with legal authority

In a motion to suppress, without proof, there is a presumption that the judge acted within his authority. The warrant here was also sufficiently particular and with probable cause for evidence of sexual assault. Proctor v. State, 356 S.W.3d 681 (Tex. App. — Eastland 2011).*

The search warrant was sufficiently particular for evidence of clothing worn during a bank robbery. United States v. Anderson, 2011 U.S. Dist. LEXIS 117159 (E.D. Tenn. October 11, 2011)*; R&R 2011 U.S. Dist. LEXIS 120094 (E.D. Tenn. June 23, 2011).*

During a consent and probation search, the officer did not act unreasonably in reopening a bedroom door closed in front of him for officer safety. State v. Enriquez, 2011 Iowa App. LEXIS 1030 (April 27, 2011).*

Permalink 07:18:38 am, by fourth, 503 words, 3300 views   English (US)
Categories: General

CA3: Video invasion of privacy of a police officer in the nude at work stated a Fourteenth Amendment claim (but not a Fourth Amendment claim)

In a fascinating case, plaintiff female police officer who, with another, was contaminated with fleas on the job who was sent to the county’s emergency services decontamination area and had a voyeur male officer videotaped her nudity stated a claim for relief against the county for a violation of privacy under the due process clause of the Fourteenth Amendment. She did not, however, state a Fourth Amendment claim because the offending male officer was acting on his own, not for state purposes, despite the county’s spurious claim that the video was for training purposes of how to decontaminate [which was completely undermined by how it was shared]. The court also finds that ease of electronic sharing of the video factored into the invasion of privacy. Doe v. Luzerne County, 660 F.3d 169 (3d Cir. 2011):

Although the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit, other circuits — including the Second, Sixth and Ninth Circuits — have held that such a right exists. See, e.g., Poe v. Leonard, 282 F.3d 123, 136-39 (2d Cir. 2002) (finding that plaintiff, a female civilian who was participating in a police training video, alleged sufficient facts to raise a triable issue of whether her constitutional right to privacy was violated where the male police officer surreptitiously filmed her in the dressing room while topless and without a bra); York v. Story, 324 F.2d 450, 454-56 (9th Cir. 1963) (finding that the plaintiff properly stated a claim for a violation of her constitutional right to privacy where she alleged that, while reporting a sexual assault, a male police officer deceived her into permitting him to photograph her genitals and exposed breasts under the pretext of an investigation), cert. denied, 376 U.S. 939 (1964); Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 497-98 (6th Cir. 2008) (finding a privacy violation where a middle school's surveillance cameras recorded the plaintiff students in their undergarments while in the school locker room).

Privacy claims under the Fourteenth Amendment necessarily require fact-intensive and context-specific analyses, and unfortunately, bright lines generally cannot be drawn. The difficulty in drawing a bright line is evident as we are not aware of any court of appeals that has adopted either a requirement that certain anatomical areas of one's body, such as genitalia, must have been exposed for that person to maintain a privacy claim under the Fourteenth Amendment or a rule that a nonconsensual exposure of certain anatomical areas constitutes a per se violation. See, e.g., Poe, 282 F.3d at 136-39 (conducting a context-specific analysis); York, 324 F.2d at 454-56 (same); Brannum, 516 F.3d at 493-500 (same but in the Fourth Amendment context). We likewise refuse to draw bright lines based on anatomical parts or regions. Accordingly, we must analyze the specific circumstances under which the alleged violation occurred.

We conclude that Doe had a reasonable expectation of privacy while in the Decontamination Area, particularly while in the presence of members of the opposite sex. ...

Permalink 06:13:15 am, by fourth, 479 words, 3022 views   English (US)
Categories: General

AL: Lost affidavit and warrant sufficiently proved

The lost affidavit and warrant here was sufficiently supported by testimony to establish the search was lawful. C.B.D. v. State, 2011 Ala. Crim. App. LEXIS 81 (September 30, 2011):

Although Sgt. Rafferty could not remember verbatim the contents of the affidavit and warrant, such word-for-word recitation of the contents of a lost document is generally not required. See, e.g., Laster v. Blackwell, 128 Ala. 143, 30 So. 663, 664 (1901) (“Though a witness may be unable to recall the [exact] language of a lost paper, he may be allowed to state its substance, if remembered.”); Barranco v. Kostens, 189 Md. 94, 97-98, 54 A.2d 326, 328 (1947) (“It is not necessary that the testimony of a witness who has read a lost instrument should be able to give its exact language, but it is sufficient if it proves its substance as far as it relates to the matter in controversy.”); Walker v. Drogmund, 101 Colo. 521, 525, 74 P.2d 1235, 1236 (1937) (“Ordinarily, it is not necessary that witnesses should be able to tell the contents of the [lost] instrument with absolute verbal accuracy, it being sufficient if they are able to state it in substance.”); and Posten v. Rassette, 5 Cal. 467, 469 (1855) (“In the case of lost instruments, where no copy has been preserved, it is not to be expected that witnesses can recite its contents, word for word; -- it is sufficient if intelligent witnesses, who have read the paper, understood its object and can state it with precision.”).

Rather, evidence substantially establishing the contents of the document is all that is necessary. See, e.g., Commonwealth v. Ocasio, 434 Mass. 1, 5, 746 N.E.2d 469, 473 (2001) (“If all the terms of the warrant can be reliably established through secondary means ... then the defendant will not be deprived of any opportunity to mount a challenge against the warrant.”); and Boyd v. State, 164 Miss. 610, 145 So. 618, 619 (1933) (when an affidavit and search warrant are lost, the State must only prove “substantially their contents”).

Opinion withdrawn and same result researched on rehearing. C.B.D. v. State, 2011 Ala. Crim. App. LEXIS 116 (December 16, 2011). Defendant did not preserve the issue, and, even if he did, his argument is meritless:

Although Sgt. Rafferty could not remember verbatim the contents of the affidavit and warrant, such word-for-word recitation of the contents of a lost document is generally not required. See, e.g., Laster v. Blackwell, 128 Ala. 143, 30 So. 663, 664 (1901) (“Though a witness may be unable to recall the [exact] language of a lost paper, he may be allowed to state its substance, if remembered.”); ...

Rather, evidence substantially establishing the contents of the document is all that is necessary. See, e.g., Commonwealth v. Ocasio, 434 Mass. 1, 5, 746 N.E.2d 469, 473 (2001) (“If all the terms of the warrant can be reliably established through secondary means ... then the defendant will not be deprived of any opportunity to mount a challenge against the warrant.”); and Boyd v. State, 164 Miss. 610, 145 So. 618, 619 (1933) (when an affidavit and search warrant are lost, the State must only prove “substantially their contents”).

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