Archives for: October 2011, 15


Permalink 05:57:12 pm, by fourth, 140 words, 3042 views   English (US)
Categories: General

HuffPo: "Airport Security Checkpoint Of The Future Unveiled"

HuffPo: Airport Security Checkpoint Of The Future Unveiled:

A mock-up "checkpoint of the future" could spare air travelers the hassle of TSA liquid checks, shoe removal and pat-downs, while speeding up security for almost all fliers.

Those wishing to see the system, first introduced in June, can now catch a glimpse at an aviation security conference in Amsterdam. The hi-tech set up retains the familiar lane set-up -- but the similarities end there reports the Daily Mail.

The new system has passengers walking through one of three 20-foot tunnels, marked "enhanced," "normal" or "known traveler," a reference to programs in which fliers submit personal data before flying in exchange for lighter scrutiny at checkpoints. Equipment in each tunnel would scan passengers as they walk through -- meaning no more x-ray machines, emptying of pockets or removing of shoes and jackets.

Permalink 12:24:57 pm, by fourth, 156 words, 2907 views   English (US)
Categories: General

FL2: Again, pharmacy records search did not violate HIPAA or state law

Search of pharmacy records to show that defendant was obtaining the same controlled substance from two doctors at the same time was not a violation of HIPAA or state law. State v. Thompson, 72 So. 3d 246 (Fla. 2d DCA 2011), following State v. Tamulonis, 39 So. 3d 524, 527 (Fla. 2d DCA 2010).

A police pursuit into an adjoining town would not lead to suppression under inevitable discovery because an officer from that town arrived at the scene as the pursuing officer was making the arrest. Commonwealth v. Lahey, 80 Mass. App. Ct. 606, 954 N.E.2d 1131 (2011).*

An officer responded to a shots fired call and found only one vehicle which he attempted to stop and the driver took thirty seconds to stop without apparent justification. The officer could reasonably believe there was a gun in the car, and, once stopped, he smell marijuana coming from the car. Then there was probable cause. United States v. King, 2011 U.S. Dist. LEXIS 117609 (D. Utah October 11, 2011).*

Permalink 12:06:51 pm, by fourth, 260 words, 2915 views   English (US)
Categories: General

D.Minn.: No standing in GPS placed in CI’s car that defendant got in

Defendant had no standing to contest the installation of a GPS device on the CI’s car that he got in, even if the court followed Maynard. United States v. Okafor, 2011 U.S. Dist. LEXIS 117030 (D. Minn. August 18, 2011), adopted 2011 U.S. Dist. LEXIS 114563 (D. Minn. October 4, 2011):

Here, there is no indication that Defendant treated his business lot as private. The entire lot can be viewed and used by the public. And the GPS tracking of the CI’s vehicle into the fenced lot adjacent to Defendant’s business did not invade Defendant’s reasonable expectation of privacy either. Entrance to both the business parking lot and the adjacent lot across the street is gained from a public street and both lots were visible by officers with their naked eyes from public areas. Although the adjacent lot was surrounded by a chain-linked fence with a locked gate, Defendant himself unlocked the gate to allow the CI access and there was no other indication that the adjacent lot was “private.” In fact, Defendant testified that he used the adjacent property to store customer vehicles for his automotive business because there was not enough room to store them on his business lot. In other words, if there would have been room across the street, presumably he would have stored the vehicles there in the open business lot. Therefore, this Court concludes—similar to the court in Reed—that the adjacent lot was a “semi-private area” but was not an area in which Defendant had a reasonable expectation of privacy. Reed, 733 F.2d at 501.

Permalink 11:52:31 am, by fourth, 521 words, 2963 views   English (US)
Categories: General

CA1: Overwhelming “shock-and-awe” entry would not lead to exclusion of the evidence

Officers executed a no-knock warrant to search defendant’s residence. The entry was accomplished with an armored vehicle, a large complement of officers, noise-flash accompaniment, and a formidable show of force. Even this “shock-and-awe” entry would not lead to exclusion of the evidence under Hudson and Herring. United States v. Garcia-Hernandez, 659 F.3d 108 (1st Cir. 2011):

For one thing, the circumstances to which the defendant adverts do nothing to satisfy the requirement of but-for causation. Even if the officers had knocked, announced, and politely entered the defendant’s dwelling, the incriminating evidence would have been found when they conducted the search. The exclusionary remedy is unavailable when, as in this case, there is no causal link between the constitutional violation alleged and the evidence discovered during the ensuing search. See Hudson, 547 U.S. at 592.

For another thing, we do not accept the defendant’s claim that an aggressive manner of entry materially alters the decisional calculus employed in Hudson. The defendant insists that there are compelling reasons to discourage officers executing search warrants from engaging in "military assault" tactics and that those reasons outweigh the social costs incident to employing the exclusionary rule. But this is nothing more than an ipse dixit, and we fail to see how the level of force used tips the Hudson balance. After all, the Court recognized that the chief benefit of applying the exclusionary rule to knock-and-announce violations would be its deterrent effect on police misconduct. See id. at 596. The Court nevertheless concluded that the social costs of imposing exclusion outweighed that benefit. Id. In cases alleging a failure to knock and announce, the Court reasoned, police misconduct could be effectively deterred through civil suits, thus negating the need to invoke the extreme remedy of exclusion. Id. at 596-99. That the officers in this case used shock-and-awe tactics does not undermine this reasoning.

In an effort to change the trajectory of the debate, the defendant notes the Hudson Court’s discussion of the important interests safeguarded by the knock-and-announce rule: “protection of human life and limb,” “protection of property,” and “protect[ion] ... of privacy and dignity.” Id. at 594. He speculates that the threat to those interests is greater in this case than in the mine-run of cases due to the overly aggressive manner of the officers’ entry.

Whether or not this is so, it is beside the point. The knock-and-announce rule does not implicate the interest in “shielding ... evidence from the government’s eyes.” Id. at 593. That interest is suspended (in limited scope) once a valid warrant has issued. Id. A defendant claiming harm to that interest (say, harm from a warrantless search) may be entitled to exclusion as a remedy. But where, as here, a defendant asserts injury from a no-knock entry antecedent to an otherwise valid search, the remedies afforded in civil suits can adequately redress the harm to the interests that are affected. See id. at 596-99.

A civil case? Really? Like a convicted drug dealer would get any sympathy from a jury? The innocent will have an excellent civil case; the guilty are virtually screwed and the court has to know it.

Permalink 09:33:55 am, by fourth, 243 words, 2865 views   English (US)
Categories: General

The Atlantic: "Do Police Need a Warrant to Search Your Phone?"

The Atlantic: Do Police Need a Warrant to Search Your Phone?

As the Occupy demonstrations have grown, videos and photographs taken by protesters have begun to circulate on Twitter, YouTube, Facebook, and elsewhere online. Many, like the one below or those highlighted by James Fallows and Alexis Madrigal, show police using physical force or pepper spray against the assembled protesters.

If you're at Occupy Wall Street or one of its spin-off incarnations, you may find yourself in a situation in which a member of the police asks for you to hand over your cell phone or your camera. In particular, if you're there as a citizen-journalist, hoping to document and publish the action, you may find your work -- sources, interviews, video footage -- at risk. Can you refuse to turn over your devices? Do the police have a right to search your photos and video footage? Do they need a warrant to do so?

There's no simple answer -- the laws are varied state to state and, to make matters more complicated, constantly in flux. The basic principle is that police need a warrant to both seize and search your cell phone, but that principle is not absolute. There are two major reasons that police may not need a warrant to either search or seize your phone: if you are arrested, or, if they believe that you have footage of a crime taking place and that you plan to destroy the footage.

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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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"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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