Archives for: November 2011

11/30/11

Permalink 09:27:59 pm, by fourth, 163 words, 3021 views   English (US)
Categories: General

Some Indiana legislators want to drug test welfare recipients, too; how dumb can they be?

From theRepublic.com: Ind. GOP lawmakers want welfare recipients tested for drugs, face constitutional hurdle by Tom LoBianco, Associated Press:

Two Indiana Republicans want welfare recipients to pass drug tests before they can receive benefits.

Sen. Jean Leising, R-Oldenburg, and Rep. Heath VanNatter, R-Kokomo, said they have asked statehouse staff to draft bills that they plan to submit when lawmakers return for their 2012 session on Jan. 4.

"I can tell you there are an awful lot of people out there that want this thing done," Leising said Wednesday.

Other states including Missouri and Florida have pushed for the testing, but measures have run up against Fourth Amendment protections against unreasonable search and seizure. At least one federal judge has placed a testing law on hold.

How obtuse can these guys be? They want drug testing but how about the Fourth Amendment? Doesn't that matter anymore to the party of "small government"? Apparently not to some Republicans in Indiana. And I have kin in Indiana.

Permalink 10:55:08 am, by fourth, 303 words, 2972 views   English (US)
Categories: General

IN: Neighbors' reports of high traffic, defendant's prior drug arrest in same house, and opening hood before driving off was cause for stop

Neighbors complained that defendant had unusual traffic to his house after 9 pm every night, and it was like it was before the last time the SWAT team raided his house finding drugs. One neighbor reported that defendant’s trash was removed by a particular pickup truck and not the regular pickup for the neighborhood [remember that Indiana recognizes a REP in trash]. Surveilling defendant, officers saw him come out of his house and open his hood before driving off. When they stopped him, he gave consent to search the car after having been advised of his right to refuse. Under the hood they found drugs. That provided probable cause and nexus to search his house by search warrant. Daugherty v. State, 957 N.E.2d 676 (Ind. App. 2011).

When the officer tried to pull over the defendant for suspicion of DUI, she didn’t stop until a driveway, even though there was a shoulder. When she stopped, another car stopped. She had alcohol on her breath and did not respond to commands as directed, and her detention was reasonable for officer safety because the officer felt at risk because of two people out of their cars at the same time. State v. Drury, 358 S.W.3d 158 (Mo. App. 2011).*

Having previously found that the defendant’s free will and the slight misconduct of the police who turned him over to the FBI attenuated his statement from the illegal arrest. He essentially knew the jig was up, and he was the target of a bigger investigation since the locals gave him to the FBI. His cell phone was seized by the local police on his arrest and it was given to the FBI with him. He freely consented to a search of the cell phone. United States v. Blount, 2011 U.S. Dist. LEXIS 136042 (E.D. Mich. November 28, 2011).*

Permalink 10:22:46 am, by fourth, 378 words, 3102 views   English (US)
Categories: General

D.Colo.: Overuse of restraint chair at school for child with seizures stated Fourth Amendment claim; without a case in point

Strapping plaintiff 5 year old developmentally disabled child into a restraint chair for most of the day at school [apparently just to not deal with the child] was a “trial-worthy issue” for which qualified immunity did not apply. Significantly, there was no exact case in point, but the law was clearly established that the Fourth Amendment applies, albeit relaxed, in schools under T.L.O. A.B. v. Adams-Arapahoe 28J Sch. Dist., 831 F. Supp. 2d 1226 (D. Colo. 2011):

Having reviewed the Fourth Amendment case law at the time of the disputed events, the Court finds that A.B.’s right to be free from unreasonable seizure was clearly established. Since at least 1985, it has been clear that students retain limited Fourth Amendment protections inside the school building. See T.L.O., 469 U.S. at 338. In 2005, the Tenth Circuit held that the seizure of a student is constitutionally permissible if it is “justified at its inception” and “reasonably related in scope to the circumstances which justified the interference in the first place.” Jones, 410 F.3d at 1228. The Court finds that under this standard, a reasonable person in Michaels’s position would have understood that her actions violated A.B.’s constitutional rights.

Because Plaintiffs have shown a trial-worthy issue as to whether Michaels violated a clearly established constitutional right, Michaels is not entitled to qualified immunity against Plaintiffs’ Fourth Amendment claim. Michaels’s Motion for Summary Judgment is therefore denied in so far as it pertains to Plaintiffs’ Fourth Amendment claim.

This case is significant because the District Court did not even mention that there did not have to be a case in point to find a Fourth Amendment claim was stated. Defendants in § 1983 qualified immunity issues always assert that there is no case in point so qualified immunity should apply. The law doesn't remotely require that because, if it did, the Fourth Amendment would stop developing and gray areas would forever remain gray.

This will most certainly be appealed before the trial ever occurs. [Note: I normally don't write about civil cases at the trial court level because I don't have time, but I report all § 1983 Fourth Amendment appeals. I look for some by title or key words in the case to report on, but 95+% do not get reported here.]

Permalink 04:33:29 am, by fourth, 238 words, 3030 views   English (US)
Categories: General

Am.Crim.L.Rev. blog: “Predictive Policing” and the Fourth Amendment

“Predictive Policing” and the Fourth Amendment by Andrew Guthrie Ferguson on the blog of the American Criminal Law Review:

The future of policing just arrived on a computer screen in downtown Los Angeles. As reported by National Public Radio, this month the Los Angeles Police Department’s (LAPD) Real Time Analysis and Critical Response Division has embraced a new computer program offers the holy grail of smart policing: the ability to predict where crime will happen and direct police resources to that location.

Predictive policing is based on the theory that by analyzing past crime patterns and crime data, police analysts can identify future hot spots of crime. Using this predictive modeling, police officers are directed to patrol areas of expected crime for additional police attention. These small hot spots of heightened police presence—in Los Angeles, a 500 foot by 500 foot area (one square block)—are poised to become the centerpiece of a new smart policing strategy in which law enforcement resources are directed to targeted locations before the crime occurs. The initial results are strikingly successful. As reported by the LAPD to NPR, for example, the first week of “predictive policing” reduced crime in certain areas by 50%.

Predicting the impact on constitutional rights in those targeted hotspots may be a bit more complicated. One of the unintended consequences of predictive policing technology may be the erosion of Fourth Amendment protections for individuals in those high crime areas.

Permalink 12:11:56 am, by fourth, 452 words, 3669 views   English (US)
Categories: General

De novo standard of appellate review applies to voluntariness of consent and actual or apparent authority to consent

The standard of appellate review as to voluntariness reflects independent judicial review, often following Miller v. Fenton (review of voluntariness of confession) and Ornelas v. United States (review of probable cause and reasonable suspicion) is de novo. See, e.g.:

United States v. Stewart, 93 F.3d 189, 192 (5th Cir.1996)

United States v. Moon, 513 F.3d 527, 536 (6th Cir. 2008)

United States v. Starr, 533 F.3d 985, 995 (8th Cir. 2008)

United States v. Fiorillo, 186 F.3d 1136, 1143 (9th Cir. 1999); United States v. Garcia, 997 F.2d 1273, 1281 (9th Cir. 1993) (“if we are determining whether specific types of actions are sufficient to give rise to an inference of consent, the standard of review is de novo.”)

Phuagnong v. State, 714 So.2d 527, 529–30 (Fla. 1st DCA 1998) (relying on Miller and Ornelas to hold that “[t]he same reasoning supports independent appellate review where the validity of a search has been found to rest ... on consent”)

Luna–Martinez v. State, 984 So.2d 592, 597 (Fla. 2d DCA 2008), review denied, 11 So.3d 942 (Fla. 2009)

State v. Nadeau, 2010 ME 71, ¶ 18, 1 A.3d 445, 454-55 (2010) (holding that voluntariness of consent to search presents an “analogous” issue to voluntariness of a confession and thus, as in Miller, presents a “legal question that we will review de novo”)

Turner v. State, 133 Md.App. 192, 754 A.2d 1074, 1080 (2000) (relying on Ornelas to hold that consent to search implicates a “constitutionally protected right” requiring independent review (quotation omitted))

State v. Stevens, 311 Or. 119, 806 P.2d 92, 103 (1991) (a reviewing court has a “duty to interpret constitutional standards and require conformance thereto” and concluding that, as to voluntariness of consent to search, reviewing court must “assess anew whether the facts suffice to meet constitutional standards”)

State v. Shelton, 990 A.2d 191, 199 (R.I. 2010) (relying on Ornelas to hold that “the voluntariness of an individual’s consent to search is reviewed by this Court de novo”)

Hubert v. State, 312 S.W.3d 554, 559-60 & n. 14 (Tex. Crim. App. 2010)

State v. Weisler, 2011 VT 96, 190 Vt. 344, 35 A.3d 970, ¶ 20 (2011)

State v. Stokes, 332 Wis.2d 315, 797 N.W.2d 934 (table), 2011 WL 292144, 2011 WI App 44 (2011) (unpublished)

Actual or apparent authority to consent should also be subject to the same de novo standard of review. See, e.g.:

United States v. Gevedon, 214 F.3d 807, 810 (7th Cir. 2000); United States v. Ladell, 127 F.3d 622, 624 (7th Cir. 1997)

Smith v. Heimer, 35 Fed.Appx. 293, 294 (8th Cir. 2002) (§ 1983 case)

United States v. Mullen, 329 Fed.Appx. 61, 64 (9th Cir. 2009); United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir. 2007) (en banc); United States v. Ruiz, 428 F.3d 877, 880 (9th Cir. 2005); United States v. Fiorillo, 186 F.3d 1136, 1144 (9th Cir. 1999)

United States v. Trotter, 483 F.3d 694, 698 (10th Cir. 2007)

State v. Thompson, 578 N.W.2d 734, 740-41 (Minn. 1998)

Limon v. State, 340 S.W.3d 753, 757 (Tex. Crim. App. 2011); Hubert v. State, 312 S.W.3d 554, 559-60 (Tex. Crim. App. 2010)

This will be § 11.12 of the Fourth Edition, when I can finish it.

Permalink 12:01:19 am, by fourth, 275 words, 3032 views   English (US)
Categories: General

Center for Democracy and Technology: "Prominent Republicans Endorse ECPA Reform"

Center for Democracy and Technology: Prominent Republicans Endorse ECPA Reform by Mark Stanley:

The right to be protected against unreasonable government intrusions is enshrined in the Constitution’s Fourth Amendment, but Congress needs to act because the courts have lagged in extending privacy protections to new technology. And Congress can adopt reasonable and necessary limits on government power without hindering legitimate law enforcement investigations. Those were key messages of prominent Republicans at a Capitol Hill briefing hosted by The Constitution Project (see video below) last month.

The briefing was called to mark the 25th anniversary of the Electronic Communications Privacy Act (ECPA), the federal statute setting standards for government surveillance of our digital communications. Communications technology has changed dramatically since 1986, and ECPA no longer provides adequate privacy protection. For example, under the statute, the government claims it does not need a judicial warrant to read our stored email or track our movements using our mobile phones.

Given the importance of protecting communications and data stored in the cloud, leading conservative, libertarian and free market advocates have joined in a “strange bedfellows” coalition with liberal groups and major corporations to call on Congress to update the quarter-century-old ECPA. Senator Patrick Leahy (D-VT), Chairman of the Judiciary Committee and one of the original authors of ECPA, himself agrees that ECPA is outdated and has introduced a bill, the ECPA Amendments Act (S.1011), to require a warrant for intrusive surveillance.

Under the Leahy bill, the government would be required to obtain a warrant before accessing the content of our private digital communications. It would also be required to get a warrant before tracking someone’s location in real-time.

11/29/11

Permalink 08:15:27 am, by fourth, 381 words, 2984 views   English (US)
Categories: General

TX2: SW showed PC for different address than one searched, so search lacked PC and violated SW

The probable cause in the affidavit for search warrant was for 401 Baker St., so the search warrant showed no probable cause for 422 Cowan St., the place actually searched. Bonds v. State, 355 S.W.3d 902 (Tex. App.—Ft. Worth 2011):

Looking at the totality of the circumstances set forth in the supporting affidavit that was reviewed by the magistrate and recognizing that the magistrate may interpret the affidavit in a non-technical, common-sense manner and draw reasonable inferences from it, Officer Ashburn’s affidavit nonetheless does not provide a substantial basis to conclude that a fair probability exists that contraband or evidence of a crime would be found at the residence actually searched—the residence that now bears an address placard for 422 Cowan. The information in Officer Ashburn’s affidavit connects the items to be seized with 401 Barker Street via the informant’s nine-month-old tip that he had seen drugs in Bonds’s home--which Officer Ashburn identified as 401 Barker Street when he transported the informant to the location to point out Bonds’s home—and via garbage searches of refuse left for collection at 401 Barker Street (the object-place nexus). The affidavit articulates criminal activity by Bonds—the offenses of possession of methamphetamine and cocaine, possession of drug paraphernalia, and the sale of methamphetamine to the confidential informant—and connects Bonds, via his driver’s license address, a credit card application, and garbage searches, to 401 Barker Street (the criminal activity-place nexus). See Serrano, 123 S.W.3d at 61 (explaining that in determining whether a search warrant is supported by probable cause, the crucial element is not whether the person targeted by the search is suspected of a crime but whether it is reasonable to believe that the items to be seized will be found in the place to be searched). But virtually no facts exist in Officer Ashburn’s probable cause affidavit expressing any cause, much less probable cause, to search any residence other than 401 Barker Street. The probable cause facts stated in the affidavit (all linked to 401 Barker Street) do not “match up” with the location that was actually searched (the home next door now displaying an address placard for 422 Cowan). Accord Long, 132 S.W.3d at 447 (recognizing constitutional objective that probable cause must in fact be established for the place described in the warrant).

Permalink 08:09:14 am, by fourth, 137 words, 2981 views   English (US)
Categories: General

OH2: Search of probationer's house was without RS and invalid

The trial court erred in finding reasonable suspicion that defendant probationer was involved in criminal activity to justify the search of his room where he lived with his parents. The facts were as consistent with innocent activity as criminal activity, and it was no more than a hunch. State v. Karns, 2011 Ohio 6109, 196 Ohio App. 3d 731, 965 N.E.2d 352 (5th Dist. 2011).*

During a traffic stop, the “overwhelming odor of air freshener” and shaking hands was reasonable suspicion of drug trafficking. United States v. Gandy, 2011 U.S. Dist. LEXIS 135938 (E.D. Tex. October 27, 2011).*

Defendant was a passenger in a vehicle and lacked standing to challenge its search, but not its stop. The car matched the description of a car involved in a carjacking, and that was reasonable suspicion for a stop. State v. Davis, 2010 Tenn. Crim. App. LEXIS 1105 (April 19, 2010).*

Permalink 12:02:44 am, by fourth, 111 words, 2997 views   English (US)
Categories: General

OH3: Search of car not justified by “officer safety” where defendant was handcuffed and in the back of a police car

The search of defendant’s car for “officer safety” was unjustified where defendant was handcuffed and in the back of a police car at the time. State v. Sheridan, 2011 Ohio 6011, 2011 Ohio App. LEXIS 4922 (3d Dist. November 21, 2011).*

Observing defendant running his truck into a ditch was reasonable suspicion for a stop for driving under the influence. Bondegard v. State, 81 So. 3d 1181 (Miss. App. 2011).*

In defendant’s stop for running a red light, IDs with Hispanic surnames were found on his person. Considering the area was known for robberies of Hispanics, there was probable cause to search the car under the automobile exception. United States v. Woodruff, 830 F. Supp. 2d 390 (W.D. Tenn. 2010).*

11/28/11

Permalink 07:27:30 am, by fourth, 339 words, 3196 views   English (US)
Categories: General

ID: Tobacco on breath at school justifies car search for possession of tobacco on school grounds under T.L.O.

Assistant principal’s smelling tobacco on defendant’s breath justified a search of his car on school grounds for violation of school rules of any possession of tobacco on school grounds, including in cars. Reasonable suspicion of violation of a school rule is all that is required, not a violation of the criminal law; and, here, defendant was over 18 and legally able to otherwise possess. A marijuana pipe was found. State v. Voss, 152 Idaho 148, 267 P.3d 735 (App. 2011):

In examining the authority in [T.L.O. and Redding], we hold that the search of Voss’s vehicle was justified at its inception. Both T.L.O. and Redding indicate that the reason for the schoolyard search exception to the warrant and probable cause requirements is precisely for the swift enforcement of school policies that maintain the order and safety of the educational atmosphere. As such, the assistant principal could justify the search of Voss’s vehicle on school grounds based solely on reasonable suspicion that Voss was in possession of tobacco in violation of school policy—even if it would not otherwise constitute a crime.

In holding that a search may be justified at its inception because of reasonable suspicion the student is violating only a school rule that may or may not also constitute a crime, we find language in T.L.O. particularly persuasive. There, the Supreme Court stated that a search of a student by a school official “will be ‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” T.L.O., 469 U.S. at 341-42 (emphasis added). Additionally, when the Supreme Court dispensed with the warrant requirement, it noted that having to obtain a warrant “before searching a child suspected of an infraction of school rules (or of the criminal law) would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools.” Id. at 340. ...

Permalink 12:33:19 am, by fourth, 260 words, 2982 views   English (US)
Categories: General

KY: RS existed for stop of group where some were dealing drugs on street

Despite Ybarra, the police had reasonable suspicion for a stop and frisk of defendant who was with a group where some were openly dealing drugs in front of a house. Williams v. Commonwealth, 364 S.W.3d 65 (Ky. 2011):

Police had reasonable, articulable suspicion of criminal activity to justify the Terry stop of Williams. He was part of a distinct group of nine people loitering in front of a vacant house. Police observed two or more members of the group smoking marijuana, and one person adulated to police that he possessed a bag of marijuana. When police approached, they quickly discovered two handguns on two different people. So the officers had reasonable, articulable suspicion of drug use and the potentially dangerous presence of concealed deadly weapons justifying an investigatory stop of all the persons in this group. Once the officer made the constitutional investigatory stop, he had reason to believe that Williams was armed and dangerous because the officer saw the bulge created by the handgun concealed in Williams's clothing in the center of Williams's back. So we find that this seizure of Williams was a constitutional Terry stop.

While defendant originally refused to consent saying that the apartment he was staying in belonged to his friend, he still had a reasonable expectation of privacy in the apartment. He ultimately consented to an entry to look at a rifle that he said had been left there by another for hunting when it was not yet hunting season. He was then a felon in possession. United States v. Rogers, 661 F.3d 991 (8th Cir. 2011).*

Permalink 12:23:59 am, by fourth, 547 words, 3032 views   English (US)
Categories: General

CA8: Cars in driveway and no answer permitted knock-and-talk at back door

When nobody answered at the front door and there were two operable cars in the driveway, it was reasonable for the police to go to the back door for a knock-and-talk. In the backyard under a tarp, but partially visible, was a 30-ton hydraulic press used for pressing cocaine into bricks. The court mentioned that no fences had to be crossed to get to the back door. United States v. Gonzalez, 441 Fed. Appx. 404 (8th Cir. 2011) (unpublished):

This Circuit has found invasions into an area where a person holds a reasonable expectation of privacy to be lawful so long as the intrusion was justified by “some legitimate reason for being present unconnected with a search directed against the accused.” United States v. Anderson, 552 F.2d 1296, 1299-1300 (8th Cir. 1977) (internal quotation marks and citation omitted). Furthermore, an entry is considered justified when officers have a “legitimate law enforcement objective.” United States v. Weston, 443 F.3d 661, 667 (8th Cir. 2006). And, we have held that general investigatory procedures, such as when agents visit a residence with the intention of questioning a suspect, qualify as a legitimate law enforcement objective. Anderson, 552 F.2d at 1298, 1300. Finally, where officers acting on such a legitimate law enforcement objective have a reasonable belief someone is home, our Circuit and others have found proceeding to an alternative entrance a reasonable invasion of the occupant’s privacy. See United States v. Raines, 243 F.3d 419, 420-21 (8th Cir. 2001) (holding officer reasonably proceeded to the rear of a house to serve civil process after no one answered the front door, there were several cars parked in the driveway, and the officer suspected the residents did not hear him knock, and the officer was following County procedure); Anderson, 552 F.2d at 1298, 1300 (holding agents did not violate occupant’s Fourth Amendment rights when no one answered the front door knock-and-announce, agents suspected someone was home because a light was visible in the house, and agents heard a dog barking); see also Hardesty v. Hamburg Tp., 461 F.3d 646, 653-54 (6th Cir. 2006) (stating “[o]fficers’ decision to proceed around the house to seek out a back door was within the scope of the knock and talk investigative technique” where “circumstances indicate that someone is home”: those circumstances existed when multiple cars were in the driveway and an interior light had been extinguished as officers approached); Alverez v. Montgomery Cnty., 147 F.3d 354, 356 (4th Cir. 1998) (“The Fourth Amendment does not prohibit police, attempting to speak with a homeowner, from entering the backyard when circumstances indicate they might find him there[.]”); United States v. James, 40 F.3d 850, 862 (7th Cir. 1994) (rev’d in part on other grounds, 516 U.S. 1022 (1995)) (“[W]here the back door of a residence is readily accessible to the general public, the Fourth Amendment is not implicated when police officers approach [*7] that door in a reasonable belief that it is a principal means of access to the dwelling.”); United States v. Bradshaw, 490 F.2d 1097, 1100-1101 (4th Cir. 1974) (“[The agent was] clearly entitled to go onto defendant’s premises in order to question him concerning the abandoned vehicle near his property. Furthermore, we cannot say that [the agent] exceeded the scope of his legitimate purpose for being there by walking around to the back door when he was unable to get an answer at the front door.”).

Permalink 12:13:24 am, by fourth, 567 words, 2962 views   English (US)
Categories: General

D.Kan.: While stop was invalid, passenger did not show nexus to finding drugs and his stop

Defendant’s request to certify interpretation of the state following too close statute to the state supreme court is denied; the federal courts have already well interpreted it. Based on the officer’s testimony, following too close did not justify the stop here. However, defendant did not show standing to challenge the search of the car, as opposed to the stop, or a factual nexus to his stop and the finding of the drugs. United States v. Ibarra, 2011 U.S. Dist. LEXIS 135514 (D. Kan. November 23, 2011)*:

The only way defendant may challenge the search, therefore, is to use a derivative evidence theory—to argue that but for his unlawful detention, the officer would not have found the drugs. United States v. DeLuca, 269 F.3d 1128, 1135 (10th Cir. 2001). In the Tenth Circuit, there must be a “causal link between the violation and the contraband.” Id. at 1134-35. If the evidence ultimately found in the vehicle is the fruit of the defendant's illegal detention, then the defendant will have standing to seek suppression. United States v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000). To prevail under this theory, however, the defendant bears a two-pronged burden. He must not only show that his original detention violated the Fourth Amendment, but also that there was a “factual nexus between the illegality and the challenged evidence.” Id. at 1131. If the defendant can show that the evidence would not have been found but for his—and only his—detention, then the burden shifts to the government to show that the evidence is not the fruit of the poisonous tree. DeLuca, 269 F.3d at 1133. Although this framework has been criticized, see, e.g., United States v. Mosley, 454 F.3d 249 (3d Cir. 2006), the Tenth Circuit has recognized that courts are bound by precedent to follow it, see United States v. Ladeaux, 454 F.3d 1107, 1111 n.4 (10th Cir. 2006).

Under prevailing Tenth Circuit law, defendant has not met his burden and demonstrated the factual nexus required for suppressing the drugs found in the car. Defendant has provided no evidence of a factual nexus between the violation of his rights and the challenged evidence. As previously mentioned, defendant must show that the evidence would not have been found but for his own unlawful detention. This can be done by showing that had defendant departed the scene, he would have been allowed to leave in the vehicle. See Nava-Ramirez, 210 F.3d at 1131 (“At the suppression hearing, Nava-Ramirez put on no evidence to demonstrate that had he, at some point after the passenger compartment search was completed but before the trunk search began, requested permission or otherwise attempted to depart the scene, he would have been able to leave in Wald's car. In the absence of some supportive proof, this court cannot simply speculate that Wald would have given Nava—Ramirez permission to take his car.”). Defendant presented no such evidence. There is no evidence before the court that he had possessory control over the vehicle or that he would have otherwise been allowed to leave the scene in the vehicle. And there is no evidence that the drugs were found as a result of defendant's detention. The drugs were found because Ms. Rendon-DeMartinez—the person with the owner's permission to possess the vehicle—consented to a search of the vehicle. Defendant has not established a factual nexus between his detention and the discovery of the drugs, and the court denies his motion to suppress.

Permalink 12:01:30 am, by fourth, 309 words, 2952 views   English (US)
Categories: General

W.D.Ky.: SW for chat logs and transmitted pictures to police decoy properly led to child porn

In an internet traveler case without travel involving Perverted Justice, a search warrant was issued for defendant’s computer for chat logs and pictures sent to the decoy officer. In the picture folder, the forensic search found child pornography in “plain view” under an otherwise valid warrant. United States v. Wilmes, 2011 U.S. Dist. LEXIS 134757 (W.D. Ky. November 14, 2011)*:

In the instant case, the valid portion of the warrant authorized a search for “chat logs, emails, data files, and any other electronic information stored on the electronic media that may support the allegation of contact between Wilmes and the ‘child.’” Investigator Baker searched for images of Wilmes that may have been transferred to the decoy by navigating directly to the Yahoo! Photo Sharing folder, the folder in which any such images would have been stored. It was reasonable for Investigator Baker to open the Yahoo! Photo Sharing folder to determine if it contained evidence of child enticement. In that folder Investigator Baker encountered images that appeared to involve child pornography along with images of the Defendant. After verifying the nature of the illegal images, Investigator Baker then promptly secured a search warrant to conduct a search specifically looking for additional images of child pornography.

In summary, Investigator Baker discovered what immediately appeared to be evidence of child pornography in plain view during his search and had lawful right of access to those photographs as they were accessed automatically during a search for evidence of child enticement. Accordingly, the child pornography evidence would have been inevitably discovered during the properly authorized forensic search of Wilmes’s computer for evidence of child enticement. As a result, the evidence is admissible and the motion to suppress is DENIED. Accord id.; United States v. Underwood, 2010 U.S. Dist. LEXIS 134092, 2010 WL 5313766 (W.D. Ky. Dec. 20, 2010); United States v. Williams, 592 F.3d 511, 521-22 (4th Cir. 2010).

11/27/11

Permalink 06:59:36 am, by fourth, 205 words, 3043 views   English (US)
Categories: General

M.D.N.C.: Wave to defendant to come over was not a seizure

A wave to defendant to come over to talk was not a seizure. Although there were three officers there, nobody ordered defendant to do it, and it was by consent and not a seizure. United States v. Robertson, 2011 U.S. Dist. LEXIS 135526 (M.D. N.C. November 22, 2011),* relying on United States v. Laboy, 979 F.2d 795, 799 (10th Cir. 1992), State v. Hall, 339 Ore. 7, 115 P.3d 908 (2005), State v. Nelson, 134 Idaho 675, 8 P.3d 670 (2000).

The officer acted with reasonable suspicion. The stop was for overtinted windows. Once the car was stopped, the officer recognized the defendant as having been involved in numerous past weapons offenses. Then there was a furtive movement in the car. United States v. Johnson, 452 Fed. Appx. 219 (3d Cir. 2011) (unpublished).*

There was probable cause to search defendant’s property for evidence of a bank robbery. The information the police gathered was from a CI that defendant was bragging about having committed the robbery, a “contributor of information” with information, and the defendant’s landlord. The landlord’s information was exculpatory on one hand but connected defendant and another and that aided probable cause on the totality. In any event, the good faith exception would apply. United States v. Lopez, 2011 U.S. Dist. LEXIS 134616 (W.D. Pa. November 22, 2011).*

Permalink 06:15:56 am, by fourth, 171 words, 3247 views   English (US)
Categories: General

Wired.com: "9 Reasons Wired Readers Should Wear Tinfoil Hats"

Wired.com: 9 Reasons Wired Readers Should Wear Tinfoil Hats by David Kravets on the assault on privacy:

There’s plenty of reason to be concerned Big Brother is watching.

We’re paranoid not because we have grandiose notions of our self-importance, but because the facts speak for themselves.

Here’s our short list of nine reasons that Wired readers ought to wear tinfoil hats, or at least, fight for their rights and consider ways to protect themselves with encryption and defensive digital technologies.

We know the list is incomplete, so if you have better reasons that we list here, put them in the comments and we’ll make a list based off them.

Until then, remember: Don’t suspect a friend; report him.

A thought provoking piece. They are:

• Warrantless Wiretapping
• Warrantless GPS Tracking
• Tracking Devices in Your Pocket
• Fake Cell Phone Towers
• The Border Exception
• The “6 Months and It’s the Government’s” Rule under ECPA
• The Patriot Act
• Government Malware
• Known Unknowns

How long the cell carriers keep stuff:


Permalink 12:13:14 am, by fourth, 292 words, 2995 views   English (US)
Categories: General

IA: Lesser intrusive measure not required to impoundment

Impoundment of defendant’s car was reasonable under the standardized procedures of the police department. They were not required to take the initiative to leave the car where it was, which might not have been practical anyway. State v. Cowan, 2011 Iowa App. LEXIS 1415 (November 23, 2011)*:

On appeal, Cowan makes much of the officers' failure to check with the property owner to see if Cowan had permission to park his car at that location. Significantly, Cowan did not tell the officers he had permission to park there and did not object to his car being towed. Moreover, the officers could reasonably infer Cowan did not have permission to leave his car there, given the remote venue and the late-night timing of his mission to steal anhydrous ammonia from the Fowler elevator. Finally, it is not a constitutional requirement that police pursue a less intrusive alternative to impoundment. Huisman, 544 N.W.2d at 439.

While the officer was talking to the defendant, he could see the corner of a baggy of marijuana sticking out. He asked about drugs, and the defendant denied possession of any drugs. That justified pulling out the bag. State v. Klimstra, 2011 Iowa App. LEXIS 1362 (November 23, 2011).*

Defendant was in a motel room and management called the police that they got complaints of him smoking marijuana in the room. The police did a knock-and-talk on the room, and defendant let them in to look around, and marijuana was found. The motion to suppress was denied without findings. While the officers’ trial testimony differed slightly from the suppression motion, defendant did not ask to revisit the suppression motion, so the trial testimony would not be relied upon on appeal. The record showed the defendant consented to the entry. State v. Klaich, 2011 Iowa App. LEXIS 1356 (November 23, 2011).

Permalink 12:02:33 am, by fourth, 316 words, 3071 views   English (US)
Categories: General

M.D.La.: Defendant was arrested, handcuffed, and questioned without being Mirandized; confession in car suppressed

Defendant’s stop was objectively reasonable for turning too wide. When the officer approached, there were furtive movements in the car. After defendant was handcuffed and arrested he was questioned without being Mirandized, and his confession is suppressed. United States v. Duheart, 2011 U.S. Dist. LEXIS 134082 (M.D. La. November 21, 2011)*:

The Court first concludes that Defendant’s detention was, indeed, custodial. Defendant was handcuffed, placed in the backseat of a patrol car, and had his shoes removed, and a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of a degree which the law associates with formal arrest. See Courtney, 463 F.3d at 337. As such, the officers were required to advise Defendant of his Miranda rights. Defendant began “confessing” a few minutes before 3:00 a.m., Defendant was not advised of his Miranda rights until approximately 3:06 a.m. ... Defendant also confessed subsequent to the advisement of his rights. As the Court finds that Defendant was in custody, his confession of being “convicted of cocaine” between 2:58:19 and 2:59:06, must be suppressed. ... Furthermore, pursuant to guidance provided by the Supreme Court in Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643—where the Supreme Court held that Miranda warnings given mid-interrogation after the defendant gave an unwarned confession were ineffective, and thus a confession repeated after warnings were given was inadmissible at trial—the Court must also suppress any other confessions or statements Defendant made during his colloquy with officers Morse and Lea after he was advised of his rights.

Defendant doctor was convicted of tax evasion, and he claimed that defense counsel was ineffective for not appealing his motion to suppress which was denied. The motion was correctly denied, so defense counsel couldn’t be ineffective for not appealing what would be a meritless issue. United States v. Miller, 2011 U.S. Dist. LEXIS 134399 (W.D. La. November 21, 2011).*

11/26/11

Permalink 09:32:59 am, by fourth, 238 words, 2999 views   English (US)
Categories: General

E.D.Ky.: Man fleeing wrecked stolen car ran into house and police could enter in hot pursuit

Defendant was in a stolen car and ran on foot from the scene of an accident and was tailed to his home. The entry into the home was “hot pursuit” and justified by exigent circumstances. United States v. Franklin, 2011 U.S. Dist. LEXIS 135759 (E.D. Ky. August 31, 2011):

Pursuant to the preventing-escape exception to the warrant requirement, and considering the factors enumerated in Rohrig, 98 F.3d at 1518, the Court finds the officers did not violate Franklin's Fourth Amendment rights. The officers were pursuing a suspected felon who had stolen a car and run from the scene of an accident. It was reasonable immediately to set up a perimeter around the residence to which the suspect had apparently run to prevent further flight and potential escape. The Government's interest in preventing the suspected felon's escape was sufficient to justify the measured entry here, which was into the curtilage, as opposed to the interior, of Franklin's home. Balancing the officers' important interest against Franklin's privacy interest in his side/backyard, the Court finds by a preponderance of the evidence that the officers were lawfully present at the rear corner of Defendant's home.

Officers had plenty of reasonable suspicion when he was seen again on a remote road near the border after having crossed over four days earlier in a different truck. Older trucks with new Mexican license plates are common. United States v. Gomez, 2011 U.S. Dist. LEXIS 135637 (D. Ariz. October 11, 2011).*

Permalink 12:24:00 am, by fourth, 312 words, 3020 views   English (US)
Categories: General

CA10: If trial testimony affects the denied suppression motion, defendant must seek to reopen in trial

If trial testimony would potentially alter the outcome of a pretrial motion to suppress that was denied, the defendant has the burden to seek to reopen the suppression issue. Without it, the trial evidence cannot be considered. The issue in this case was apparent authority to consent, and the court did not have to decide actual authority if apparent authority exists. United States v. Bass, 661 F.3d 1299 (10th Cir. 2011):

Although Defendant raises some arguments based on evidence elicited at trial, we will consider only the evidence before the district court at the suppression hearing. Because “the district court should have the first opportunity to correct its mistake,” we ordinarily “will not consider trial evidence which undermines a district court decision rendered at a pretrial suppression hearing.” United States v. Parra, 2 F.3d 1058, 1065 (10th Cir. 1993). The district court may consider trial testimony if the defendant renews the suppression motion at trial, see id., but the court ordinarily need not do so if counsel fails to alert the court to how the evidence has been altered or supplemented at trial and why the change would affect the ruling. Absent exceptional circumstances that would justify relief for plain error, the court has no responsibility on its own to compare trial evidence with the evidence at the hearing and then analyze whether its prior ruling should stand. See id.; United States v. Humphrey, 208 F.3d 1190, 1204 (10th Cir. 2000) (if trial testimony would support a different legal justification for suppressing evidence, the defendant must inform the trial court of that new justification in renewing suppression motion at trial); cf. United States v. Burke, 633 F.3d 984, 987-88 (10th Cir. 2011) (failure to include a particular argument in a pretrial suppression motion waives the argument on appeal); Sorensen v. City of Aurora, 984 F.2d 349, 355 (10th Cir. 1993) (failure to raise specific objection to district court's exclusion of evidence precluded review on appeal).

Permalink 12:12:48 am, by fourth, 511 words, 3071 views   English (US)
Categories: General

Air Force: Military personnel lose any reasonable expectation of privacy in a urine sample given for testing

Military personnel have a lesser expectation of privacy when they give a urine sample for testing. Here, defendant consented but attempted to withdraw his consent before the testing actually occurred. Once in government control, a member of the military loses any reasonable expectation of privacy in it. United States v. Dease, 2011 CCA LEXIS 317 (A.F. Ct. Crim. App. September 29, 2011):

... Just as the lapse in exigent circumstances does not revive an expectation of privacy in a blood sample taken by the government, a revocation of consent to seize a urine specimen does not revive an expectation of privacy in a urine sample surrendered to the government.

In finding that a reasonable expectation of privacy in a urine sample continues after it has been provided to the government for testing, the military judge states that one who provides a urine specimen has “a reasonable expectation that the government will properly secure his sample and prevent unauthorized access, tampering, or testing of that sample.” In support of this conclusion the military judge analogizes the privacy interest in a bottle of urine to that in a computer. But we find the analogy incorrect. Unlike a computer hard drive in which one might reasonably retain some possessory and privacy interest after voluntarily providing it to the government for analysis, urine is by definition a waste product which will ultimately be destroyed and in which no continuing reasonable expectation of privacy exists. See Venner, 367 A.2d at 956 (The accused could “not have had an ‘expectation ... that society [would be] prepared to recognize as ‘reasonable’ a property right in human excreta for the simple reason that human experience is to abandon it immediately.”).

While society recognizes a reasonable expectation of privacy in the act of urination and the urine excreted under normal circumstances, we find that this reasonable expectation does not survive voluntary surrender of urine waste to government control for analysis. We agree with the military judge that at the time he provided the sample the appellee could reasonably expect his urine sample to be secured against unauthorized access. But this alone is insufficient to maintain a reasonable expectation of privacy subject to Fourth Amendment protection: the appellee should also have reasonably expected the sample to be tested at any time, to be incrementally destroyed during testing, and to be ultimately discarded.

Under the circumstances of this case, we find no continuing reasonable expectation of privacy in the sample and, therefore, no continuing Fourth Amendment protection which the appellee’s revocation of consent could reclaim. As stated above, a threshold requirement for Fourth Amendment protection against unreasonable searches is a subjective expectation of privacy in the item or area to be searched that society recognizes as objectively reasonable. In the case of waste urine provided to the government for testing, we find that this threshold requirement is not met. Like delivering garbage to the curb, the appellee voluntarily abandoned any reasonable expectation of privacy in his waste urine when he delivered it to the government for analysis. See Greenwood, 486 U.S. at 39-40; Venner, 367 A.2d at 956.

Permalink 12:02:19 am, by fourth, 162 words, 3030 views   English (US)
Categories: General

D.Ariz.: Driving less than the speed limit in the left lane was RS for stop

Defendant’s stop for driving less than the posted speed limit in a truck on I-10 trough Tucson was valid. As the officer approached, passengers were ducking which strongly suggested they were illegals in the U.S. hiding from the police. United States v. Morales, 2011 U.S. Dist. LEXIS 135125 (D. Ariz. October 4, 2011).*

“In this case, the detectives had reasonable suspicion that criminal activity was afoot after they stopped the car and smelled burnt marijuana. After Brooks denied having anything in the car, he voluntarily got out, raised his arms over his head and consented to a pat down. Then he fled and resisted arrest. At this point, and once the firearm was discovered, the detectives had ample authority to arrest.” United States v. Brooks, 448 Fed. Appx. 27 (11th Cir. 2011).*

Defendant’s stop was justified as a parole search because officers knew he was on parole at the time of the stop. United States v. Woodson, 2011 U.S. Dist. LEXIS 135271 (N.D. Cal. November 23, 2011).*

11/25/11

Permalink 12:10:13 pm, by fourth, 553 words, 3301 views   English (US)
Categories: General

CA1: Frisk was fruit of unlawful stop without RS

Defendant was stopped and detained near a street “rumble” involving the Latin Kings, but there was nothing that justified the inference that he was a member of the Latin Kings or even involved in the brawl. “Tapping” defendant’s waist with an open palm was a frisk, and it violated the Fourth Amendment because it was the fruit of the unlawful stop under Wong Sun. United States v. Camacho, 661 F.3d 718 (1st Cir. 2011):

Under these facts, we need not address the legality of the frisk itself. We conclude that regardless of the legality of the frisk, the discovery of the gun was so tainted by the illegal stop that it should have been suppressed as “fruit of the poisonous tree.” See Werra, 638 F.3d at 341 (noting that the reasonableness of a protective frisk does not determine the suppression issue generated by an earlier Fourth Amendment violation).

Evidence obtained during a search may be tainted by the illegality of an earlier Fourth Amendment violation, so as to render such evidence inadmissable as “fruit of the poisonous tree.” See United States v. D’Andrea, 648 F.3d 1, 6 (2011) (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)) (internal quotation marks omitted); see also Werra, 638 F.3d at 341. “[T]he exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or ‘fruit of the poisonous tree.’” Segura v. United States, 468 U.S. 796, 804, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984) (citation omitted) (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 84 L. Ed. 307 (1939)). This rule equally extends to both the direct and the indirect products of unlawful searches and seizures. See Wong Sun, 371 U.S. at 484. “[T]he indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality.” New York v. Harris, 495 U.S. 14, 19, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990). Suppression is not appropriate, however, if “the connection between the illegal police conduct and the discovery and seizure of the evidence is ‘so attenuated as to dissipate the taint.’” Segura, 468 U.S. at 805 (quoting Nardone, 308 U.S. at 341).

Determining the consequences of unlawful police conduct for seized evidence requires looking at both causation and attenuation. The Supreme Court has declined to adopt a simple “but for” test that would mandate suppression of any evidence that “came to light through a chain of causation that began with an illegal arrest” or another Fourth Amendment violation. United States v. Leon, 468 U.S. 897, 910-11, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); see also Hudson v. Michigan, 547 U.S. 586, 592, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006) (“[B]ut-for causality is only a necessary, not a sufficient, condition for suppression.”). A strict but-for rule would prove nearly limitless. “Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’” Wong Sun, 371 U.S. at 488 (quoting J. Maguire, Evidence of Guilt 221 (1959). When determining attenuation, “temporal proximity [], the presence of intervening circumstances, and, particularly the purpose and flagrancy of the official misconduct are all relevant.” Brown, 422 U.S. at 603-604.

Permalink 11:59:15 am, by fourth, 258 words, 2919 views   English (US)
Categories: General

CA1: Driving car of other and having access to garage was enough to enter with a warrant under Steagald

In a Bivens action against the DEA in Puerto Rico for entering a house of another looking for a person named in a warrant, knowledge that the person named in the warrant drove the car of the other person and had access to his garage inferred access to the house, and that was enough to enter under Steagald. Solis-Alarcón v. United States, 662 F.3d 577 (1st Cir. 2011):

In a nutshell, the DEA agents had evidence that Díaz-Suazo was twice seen using a vehicle registered to Solis-Alarcón and parked at the latter's house; that Díaz-Suazo had access to the garage and presumably the house; and that Díaz-Suazo did not live at the address set out in his driver's license. Perhaps, too, they could place weight on the judgment of the local officers that Díaz-Suazo lived at #17 Alondra St. And, if he did live there, it would be reasonable to believe him in residence early in the morning.

The judgment that he did live there would perhaps be a close call if the issue before us were whether evidence seized in the search should be suppressed. In many like search cases, the police had more potent evidence of residence, such as statements of the subject himself, extensive records linking the person to the address, or a combination of a reliable tip, a recent police report, and a contemporaneous witness identification. See also Werra, 638 F.3d at 337 (“doubt[ing]” that an informant’s tip could support a reasonable belief that suspect lived in a rooming house).

Permalink 11:31:02 am, by fourth, 402 words, 3114 views   English (US)
Categories: General

M.D.Fla.: Defendant's damaged gate justified an entry into his house [!]

Defendant’s neighbor called the police to report that defendant’s property’s gate was damaged by what looked like a vehicle rammed it. Police responded, came on the property, and found a door to the house unlocked. The entry was justified by exigent circumstances. United States v. Garcia, 809 F. Supp. 2d 1165 (M.D. Fla. August 3, 2011)*:

Upon knocking at the front door, he received no answer. When he checked the windows and doors, he realized one door was unlocked. Though he found no signs of forced entry, his discovery that a door was unlocked objectively could have suggested someone was inside. Cf. Tibolt, 72 F.3d at 967, 970. Deputy Roe called for backup, and when the backup deputy arrived, the two decided to enter the residence. Before they did so, they shouted “Sheriff’s Office. Come out and make yourself known.” There was no response. Combined with the other factors, which viewed objectively suggested someone could have been inside, the lack of response to their command lends further support for the conclusion that it was reasonable to believe someone could be inside and unable to respond, thus in need of immediate aid. Cf. id. at 970. Just as in Tibolt, without going inside, the officers could not have known whether “an intruder had managed to get into the residence, and even injured or captured a resident, then fled; or had been caught off guard by the police and remained in the residence with a forcibly detained resident.” Id. at 970.

Viewing the totality of the circumstances, the undersigned concludes that it was objectively reasonable for officers to believe someone was in need of immediate aid, and therefore they were permitted to enter the home without a warrant for the purpose of looking for that individual. See McGough, 412 F.3d at 1237 (citation omitted). That Deputy Roe smelled marihuana when he opened the door, and that he admitted the smell was “another factor but not the deciding factor” contributing to his decision to enter the residence, are of no consequence because the subjective intent of law enforcement officers and the seriousness of any possible crime they are investigating are irrelevant. See Fisher, 130 S. Ct. at 548 (quotation and citation omitted).

I’m not buying it. The damage was to the gate, there were no cars on the property, there was absolutely no reason to believe that an entry into the house was justified under any stretch of the imagination.

Permalink 11:14:04 am, by fourth, 200 words, 2943 views   English (US)
Categories: General

CA1: Drug sale led to knock-and-talk and plain view of buy money

A drug sale occurred out of defendant’s house where a marked $20 bill was passed outside, the defendant went into the house and returned with drugs. Officers then did a knock-and-talk and saw the $20 bill in plain view. Its seizure was proper. United States v. Paneto, 661 F.3d 709 (1st Cir. 2011).*

Officers had reasonable suspicion for stopping defendant’s vehicle ½ mile from the Canadian border when it was driving in a “looping pattern” on a cold and rainy day (which is their smuggling prime time). Two other vehicles had been stopped that night for driving the same without anybody getting ticketed or further detained, although defendant was suspected of driving both vehicles (which he later admitted) which smelled of damp marijuana but had none inside. United States v. Mayhew, 2011 U.S. Dist. LEXIS 134395 (D. Vt. November 21, 2011).*

The testimony of the NYPD officer that he stopped the defendant’s car because of a partially obscured license plate is belied by a photograph. His fellow officer in the car was found not credible because he refused to answer questions appropriately about allegations of his ticket fixing going to his credibility. United States v. Williams, 2011 U.S. Dist. LEXIS 134352 (S.D. N.Y. November 21, 2011).*

11/24/11

Permalink 11:50:48 am, by fourth, 321 words, 2913 views   English (US)
Categories: General

S.D.Fla.: Even with PC, police can seek consent rather than a search warrant

Just because the police have probable cause to get a search warrant does not mean they have to—they can still attempt to get consent. United States v. Hall, 2011 U.S. Dist. LEXIS 133522 (S.D. Fla. November 16, 2011)*:

First, the Court agrees that the police’s failure to obtain a warrant in this case even though they could have done so does not violate the Fourth Amendment. As the Supreme Court stated in King, “[f]aulting the police for failing to apply for a search warrant at the earliest possible time after obtaining probable cause imposes a duty that is nowhere to be found in the Constitution.” 131 S.Ct at 1861. The King Court also stated that requiring a search warrant whenever the police have probable cause “unjustifiably interferes with legitimate law enforcement strategies” because “ [t]here are many entirely proper reasons why police may not seek a warrant but instead knock on the door and seek either to speak with an occupant or to obtain consent to search.” Id. One of the reasons the court lists is that “the police may want to ask an occupant of the premises for consent to search because doing so is simpler, faster, and less burdensome than applying for a warrant.” Id. This is analogous to this situation where the police believed it was simpler, faster and less burdensome to go to Defendant’s home and ask him to come down to the station with them.

Pro se plaintiff’s cryptic complaint stated a claim for excessive force under § 1983 that the defendant officer entered his property and shot him without provocation. Hall v. Burney, 454 Fed. Appx. 149 (4th Cir. 2011) (unpublished).*

Defendant saw police officers and reached for his pocket. They asked him what was in his pocket, and he said “a gun,” and that justified his patdown. He was not stopped or detained when he gave himself up. United States v. Allen, 447 Fed. Appx. 118 (11th Cir. 2011) (unpublished).*

Permalink 11:29:33 am, by fourth, 628 words, 3120 views   English (US)
Categories: General

E.D.Pa.: Seizure of computer and detailed search required by the PC did not make warrant overbroad

Search warrant for seizure of defendant’s computer and search for child pornography images was not overbroad. The computer was an instrumentality of the crime. A list was attached showing what was subject to seizure. United States v. Winther, 2011 U.S. Dist. LEXIS 133799 (E.D. Pa. November 18, 2011)*:

To determine whether the warrant was overbroad, this Court “must compare the search and seizure authorized by the warrant with the ambit of probable cause established by the supporting affidavit.” In re Impounded Case, 840 F.2d 196, 200 (3d Cir. 1988) (citing Christine, 687 F.2d at 753). Under the Fourth Amendment, “’[a]n otherwise unobjectionable description of the objects to be seized is defective if it is broader than can be justified by the probable cause upon which the warrant is based.’” Christine, 687 F.2d at 753 (quoting 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.6, at 97 (1978)). “The fact that the warrant authorize[s] a search for a large amount of documents and records does not necessarily render the search invalid so long as there exists a sufficient nexus between the evidence to be seized and the alleged offenses.” United States v. Am. Inv. of Pittsburgh, 879 F.2d 1087, 1105-06 (3d Cir. 1989). An overly broad warrant can be cured by redaction, that is, by “striking from a warrant those severable phrases and clauses that are invalid for lack of probable cause or generality and preserving those severable phrases and clauses that satisfy the Fourth Amendment.” Christine, 687 F.2d at 754.

. . .

Defendant’s argument that separate warrants are required to search defendant’s house and his computer ignores the fact that defendant’s computer use is the essence of the crimes with which he is charged: using the computer to access the Internet to entice interstate travel for illegal sexual activity, to entice a minor to engage in illegal sexual activity, and to attempt to transfer obscenity to a minor. “[F]ederal courts have not required a second warrant to search a properly seized computer where the evidence obtained in the search did not exceed the probable cause articulated in the original warrant.” Richards, ___ F.3d ___, 2011 U.S. App. LEXIS 21465, [WL] at *15. The computer and its contents were the focal point of the search warrant, not afterthoughts. The affidavit of probable cause established a sufficient nexus between defendant’s alleged inappropriate Internet activities and the house in which the computer was located. See Voicenet Commc’ns, Inc. v. Corbett, No. 04-1318, 2010 U.S. Dist. LEXIS 95619, 2010 WL 3657840, at *12-13 (E.D. Pa. Sept. 13, 2010) (rejecting overbreadth challenge in child pornography case where “the affidavit of probable cause specifically establishe[d], in detail, how the plaintiffs’ computer system would be of evidentiary value in the search for evidence of child pornography”).

This case bears a strong resemblance to United States v. Christie, in which the defendant was charged with advertising child pornography on the Internet and “[t]he entirety of the FBI’s investigation of him focused on his use of a computer to receive, distribute, and advertise child pornography.” 570 F. Supp. 2d 657, 683-84 (D.N.J. 2008). The Christie court emphasized that Internet usage was at the core of defendant’s alleged crimes and rejected an overbreadth challenge to a warrant that authorized a search for a list of items very similar to the Item List in this case: ...

As in Christie, the scope of the search authorized in this case was no broader than was supported by the affidavit of probable cause. Contrary to defendant’s claim, the warrant did not authorize the search and seizure “of all the files within [defendant's] computer.” (Mot. Supp. Phys. Evid. 8.) The warrant instead repeatedly limited the search’s scope to the offenses charged. (See, e.g., Item List ¶ 11 (restricting search of computer-related items to “items listed above” and “items specifically noted”).).

Permalink 07:45:12 am, by fourth, 70 words, 3003 views   English (US)
Categories: General

Computerworld.com: "Surrounded by surveillance: Is everything spying on you?"

Computerworld.com: Surrounded by surveillance: Is everything spying on you? by Darlene Storm:

Depending upon who you listen to, GPS tracking shouldn't be your only concern when you are out and about on the streets. The ACLU hammered license plate scanners as 'logging our every move,' a different investigative report concluded your car is spying on you, and some even claim the street lights are out to get you.

Permalink 07:08:14 am, by fourth, 161 words, 2967 views   English (US)
Categories: General

ABAJ.com: "Big Brother May Not Be Watching You, But Some Shopping Malls Know Where You Are at All Times"

ABAJ.com: Big Brother May Not Be Watching You, But Some Shopping Malls Know Where You Are at All Times by Martha Neil:

In an example of how cutting-edge technology apparently may be far ahead of lawmakers, PC Magazine is reporting that at least two U.S. shopping malls, in California and Virginia, will be tracking customers through their cellphones this holiday season.

The Footpath system, which tracks shoppers anonymously, according to those who promote it, is intended to help merchants maximize their real estate by identifying which areas of their stores are drawing the most customers.

The situation isn't yet a real-life equivalent of the sci-fi scene in Minority Report, in which Tom Cruise enters a shopping center and is immediately identified and bombarded with advertisements. However, the article points out that shoppers may not be aware they are being tracked by the system.

. . .

You can see a brief video demonstration of how the technology works on the company's site.")

Permalink 07:00:02 am, by fourth, 123 words, 2986 views   English (US)
Categories: General

CNET.com: "Police procedures leaked for getting into Facebook, other accounts"

CNET.com: Police procedures leaked for getting into Facebook, other accounts by Declan McCullagh:

Confidential guidelines telling police how to access Facebook, Microsoft, Blizzard, and AOL user accounts have appeared online this week.

The files, known colloquially as law enforcement guidelines, typically tell police what types of user data are stored, how long they're retained, and what procedures to use to gain access to them.

A few types of requests--for e-mail less than 180 days old, for instance--tend to require search warrants. In general, basic subscriber information can be disclosed with a subpoena, and a court order is required for more extensive information (whether that's sufficient is the subject of ongoing litigation in the Twitter-WikiLeaks case).

Here are some highlights from each company's policies: ...

11/23/11

Permalink 11:12:19 am, by fourth, 133 words, 2951 views   English (US)
Categories: General

The Hill: "Turkey Day provides TSA a chance to test new security procedures"

The Hill: Turkey Day provides TSA a chance to test new security procedures by Keith Laing:

The Transportation Security Administration says passengers will likely notice fewer pat-downs of children and other changes at airports over this long weekend, the busiest travel days of the year.

The changes are part of TSA’s move toward a “risk-based” security approach. Most of them have been in place since earlier in the fall, but they will be new to an estimated 3.4 million people who are expected to fly for the holidays.

“When traveling this holiday travel season, passengers may notice new procedures in place at airports, including modified screening for passengers 12 and under and additional privacy protections on more than half of our imaging technology units,” the agency said in a statement provided to The Hill.

Permalink 08:13:05 am, by fourth, 338 words, 3011 views   English (US)
Categories: General

CA3: Following blood trail upstairs in empty house was not with exigent circumstances

Officers responded to a call that defendant was shot in the hand. When officers arrived, he was the only person there, and he was taken to the hospital. One officer followed the blood trail upstairs and found drugs in plain view. The district court’s finding that this search was not justified by exigent circumstances was supported by the record. United States v. Wolfe, 452 Fed. Appx. 180 (3d Cir. 2011) (unpublished):

This last point bears strong emphasis. We should not be understood as holding that police officers cannot address ambiguous and evolving circumstances as their well-informed professional judgment dictates. In this case, however, Evans began his search after the two responding officers had already resolved the only exigency there was cause to believe existed. It is true that “[officers do not need ironclad proof of a likely serious, life-threatening injury to invoke the emergency aid exception,” Fisher, 130 S. Ct. at 549 (internal quotation marks omitted), but here, after hearing the evidence, the District Court determined that Evans had no indication that additional victims or threats were inside the home after Wolfe’s departure. Though the government disagrees with that interpretation of the evidence, the finding is sufficiently supported to withstand review for clear error.

Defendant rear-ended an off-duty officer outside his jurisdiction. The officer’s actions in telling defendant to step out of the car, removing and retaining his keys from the ignition, and telling him to sit and wait in his car fell short of an “arrest” sufficient to trigger the citizen’s arrest rule. Instead, this was more akin to an investigatory stop, short of an arrest. Under the circumstances, where defendant rear ended the officer’s personal vehicle and appeared intoxicated, it was reasonable for the officer – as it would any private citizen – to prolong the stop until the local police arrived, in order to ensure the safety of the public and of defendant himself. Defendant was not under arrest until the local police officer arrived and placed him under arrest. Commonwealth v. Limone, 460 Mass. 834, 957 N.E.2d 225 (2011).*

Permalink 07:47:22 am, by fourth, 633 words, 3028 views   English (US)
Categories: General

NY4: Second search of computer before return to owner was valid under original warrant

Defendant’s computer was searched, and he pled guilty to possession of a single photograph of child pornography. After his plea, he requested his computer back, and it was searched again before return finding more child pornography overlooked before. He could be prosecuted separately for possession of the other photographs, and the subsequent second search of the computer was valid under the original warrant from seven months earlier. People v Deprospero, 2011 NY Slip Op 8421, 91 A.D.3d 39, 932 N.Y.S.2d 789 (4th Dept. 2011):

Turning to the novel issue on appeal, we conclude that the court properly refused to suppress evidence uncovered in the January 2010 search of property seized pursuant to the May 2009 warrant. While it is indeed the case that the examination at issue of defendant’s property occurred after sentencing on another charge and followed defendant’s request for the return of such property, we conclude that the police conduct in this case did not violate defendant’s Fourth Amendment rights for a number of reasons. First, defendant provides no support for his contention that the authority to search his property pursuant to the May 2009 warrant terminated at the conclusion of the 2009 prosecution, and we reject that contention. The search warrant directed the police to seize, inter alia, defendant’s computers, external drives, storage media, and cameras, and “authorize[d] the police agency to retain said property for the purpose of further analysis and examination.” There was no deadline in the warrant for completion of the forensic examination and analysis, “nor [does] the Fourth Amendment provide[] for a specific time limit in which a computer may undergo a government forensic examination after it has been seized pursuant to a search warrant” (United States v Hernandez, 183 F Supp 2d 468, 480; see United States v Syphers, 426 F3d 461, 469, cert denied 547 U.S. 1158, 126 S. Ct. 2312, 164 L. Ed. 2d 831; United States v Gorrell, 360 F Supp 2d 48, 55 n 5 [“The warrant did not limit the amount of time in which the government was required to complete its off-site forensic analysis of the seized items and the courts have not imposed such a prophylactic constraint on law enforcement”]; United States v Triumph Capital Group, Inc., 211 FRD 31, 66 [the Fourth Amendment does not “impose any time limitation on the government’s forensic examination of the evidence seized”]). Indeed, “[t]he Fourth Amendment itself contains no requirements about when the search or seizure is to occur or the duration’” (Syphers, 426 F3d at 469, quoting United States v Gerber, 994 F2d 1556, 1559-1560). Rather, “[t]he Fourth Amendment only requires that the subsequent search of the computer be made within a reasonable time” (United States v Mutschelknaus, 564 F Supp 2d 1072, 1076, affd 592 F3d 826).

Finally, we reject defendant’s further contention that the police were required to obtain a new search warrant before searching the property seized pursuant to the May 2009 warrant. “Once a person or his [or her] effects have been reduced to custodial control in the law enforcement system his [or her] privacy has been intruded upon” (People v Perel, 34 NY2d 462, 465, 315 N.E.2d 452, 358 N.Y.S.2d 383). The subsequent search of the property lawfully seized “is then but a lesser-related intrusion incident to the [seizure] already effected” (People v Greenwald, 90 AD2d 668, 668, 455 N.Y.S.2d 865; see Perel, 34 NY2d at 465; People v Payne, 233 AD2d 787, 787, 650 N.Y.S.2d 833 [“Once a person has been placed in custody, his [or her] privacy has been compromised and the subsequent examination and testing of items seized at the time of arrest is permissible as a lesser-related intrusion incident to the arrest already effected”]). Once defendant’s property had been lawfully seized pursuant to the May 2009 warrant, he lacked a legitimate expectation of privacy in that property, notwithstanding the passage of time (see People v Natal, 75 NY2d 379, 384, 553 N.E.2d 239, 553 N.Y.S.2d 650, ...).

11/22/11

Permalink 08:53:47 am, by fourth, 231 words, 2976 views   English (US)
Categories: General

N.D.Ind.: “[i]n the case of drug dealers evidence is likely to be found where the dealers live.”

There was probable cause to believe that defendant was a drug dealer, and it is reasonable for an issuing magistrate to conclude that evidence of drug dealing would be found where he lives. United States v. Sewell, 2011 U.S. Dist. LEXIS 133424 (N.D. Ind. November 17, 2011):

The Magistrate Judge, however, reasonably relied on evidence that Castaneda drove to the Residence soon after he had returned from a trip to California taken for the purpose of acquiring cocaine and on a day during which he had been on the phone discussing drug trafficking, to find probable cause. Additionally, “[i]n the case of drug dealers evidence is likely to be found where the dealers live.” United States v. Reddrick, 90 F.3d 1276, 1281 (7th Cir. 1996) (citing United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir. 1991)). While some information in the Affidavit, now corrected in the record, was not accurate, the Affidavit contained sufficient accurate information to permit the reasonable inference that the Defendant lived at or was associated with the Residence.

Defendant was stopped and arrested for driving on a suspended license. Because he was taken into custody, his vehicle was lawfully impounded and subjected to an inventory. United States v. Dill, 2011 U.S. Dist. LEXIS 133492 (S.D. Ind. November 18, 2011).*

The search of defendant’s car was supported by probable cause, so the automobile exception applied. United States v. Woodruff, 830 F. Supp. 2d 390 (W.D. Tenn. 2011).*

Permalink 08:32:36 am, by fourth, 395 words, 3062 views   English (US)
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M.D.Pa.: Search warrant for computer intrusion justified seizure and search of all computer media for evidence

Defendant was fired from his job, and the company found by a stumbled-upon email he was still remotely accessing the company computer to take information from them. They traced his accesses to a particular IP address and reported it to the police. A search warrant was obtained for all his computer equipment for evidence of computer trespass, and that was the scope of search. In the course of the search, two potential pictures of child pornography were stumbled upon. The search stopped and another warrant was sought for child pornography. The warrant was valid for seizure of the computers for evidence of computer trespass at his house via the IP address in use by him at the time of the intrusion, and then the search. The warrant was not overbroad. United States v. Getgen, 2011 U.S. Dist. LEXIS 133239 (M.D. Pa. November 18, 2011):

Getgen argues that SW-61-09 should only have permitted the executing officers to search for evidence relating to Getgen’s use of his computer to access the internet, and, therefore, it was unnecessary to search any of his computer files on either his computer or other electronic media. (Doc. 28, at 13). As Getgen noted, however, remotely accessing another computer without authorization does not constitute computer trespass under § 7615. Instead, the key evidence of computer trespass related to the intercepted and forwarded email, which would likely leave evidence in the form of a file or other type of data in the computer of the intruder. Furthermore, the search could not be limited to certain dates or file extensions because computer files can be easily disguised. See, e.g., United States v. Highbarger, 380 Fed. App’x 127, 130 (3d Cir. 2010); United States v. Crespo-Rios, 645 F.3d 37, 43 (1st Cir. 2011) (citing cases); United States v. Hill, 322 F. Supp. 2d 1081, 1091 (C.D. Cal. 2004) aff’d, 459 F.3d 966 (“Criminals will do all they can to conceal contraband, including the simple expedient of changing the names and extensions of files to disguise their content from the casual observer .... There is no way to know what is in a file without examining its contents, just as there is no sure way of separating talcum from cocaine except by testing it.”). The risk of disguised files was especially cogent in the instant case when Getgen worked with computers professionally. (See Gov’t Ex. A). Accordingly, the court rejects Getgen’s argument that SW-61-09 was overbroad.

11/21/11

Permalink 06:46:42 am, by fourth, 141 words, 3136 views   English (US)
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D.Neb.: Arrest of illegal alien at work did not permit search of her purse in work locker

Defendant was legally detained as an alleged illegal alien, but the search of her purse in her work locker was unreasonable. It was not abandoned and the employer could not consent. United States v. Chavez, 2011 U.S. Dist. LEXIS 132960 (D. Neb. October 3, 2011).

Informant’s reliability was sufficiently shown to justify the stop of the taxicab defendant was riding in. State v. Palmer, 2011 Tenn. Crim. App. LEXIS 834 (November 14, 2011).* (The court finds the driver consented to a search of the cab, but how can the cab driver consent to a search of the belongings of the defendant in the car?)

The district court erred in dismissing plaintiff’s complaint for false arrest under Heck because he had not yet been convicted, but that was harmless when he was later convicted and the Heck bar was triggered. Taylor v. Freeman, 447 Fed. Appx. 78 (11th Cir. 2011).*

Permalink 06:24:13 am, by fourth, 201 words, 2998 views   English (US)
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CA8: Controlled buy on a wire inside a house justified entry on exigent circumstances

In three related cases, entry into defendant’s home after a controlled buy heard on a wire was with exigent circumstances. As to the latter case, a cell phone is so ubiquitous that it is not a “criminal tool.” State v. Freeman, 2011 Ohio 5651, 2011 Ohio App. LEXIS 4637 (8th Dist. November 3, 2011); State v. Atkinson, 2011 Ohio 5918, 2011 Ohio App. LEXIS 4848 (November 17, 2011); State v. Creighton, 2011 Ohio 5919, 2011 Ohio App. LEXIS 4842 (8th Dist. November 17, 2011).

Officers were at an apartment complex responding to a man with a gun call, and they were ultimately directed to a Buick in the parking lot which they looked in with a flashlight and saw drugs. The search of the car thereafter was valid. Even though the driver was not right there, it was still inherently mobile. State v. Miller, 2011 Ohio 5860, 2011 Ohio App. LEXIS 4798 (11th Dist. November 14, 2011).*

Police got a call about a suspicious man in a purple car. Defendant was seen in the car and observed going up to the side of a house then to the porch and back to the car. The officer had probable cause to believe that defendant was there to break into houses, and his stop was justified. State v. Williams, 2011 Ohio 5909, 2011 Ohio App. LEXIS 4825 (6th Dist. November 10, 2011).*

11/20/11

Permalink 01:00:33 pm, by fourth, 236 words, 3020 views   English (US)
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S.D.Fla.: First SW with wrong address was cured by going back to issuing magistrate for reissue

The initial SW had an incorrect address, right number, wrong street. When the officer found out, he went back to the magistrate to get it reissued. The warrant was with probable cause, and the good faith exception applies. United States v. Woods, 2011 U.S. Dist. LEXIS 132437 (S.D. Fla. November 3, 2011), adopted 2011 U.S. Dist. LEXIS 132443 (S.D. Fla. November 16, 2011)* (If anything, the good faith exception should apply. What more can one ask for than to have the officer go back to the issuing judge and get it reissued for the correct address? What more could he do? To me, this isn't even a close case.)

Defendant’s patdown was with reasonable suspicion. He was in a high crime area, and it certainly appeared to the officer that a hand-to-hand transaction just occurred. Tolbert v. State, 2011 Ala. Crim. App. LEXIS 98 (August 26, 2011).*

Defendant’s detention in the backseat of a locked squad car—where arrested individuals were detained—and the presence of twice as many law-enforcement officers as detainees at the scene created a “police-dominated atmosphere” suggesting custody and reinforced to defendant that she was targeted by the investigation. By the time defendant confessed, her detention could no longer be fairly characterized as an ordinary traffic stop. Defendant was questioned while in custody without receiving Miranda warnings and waiving her right against self-incrimination and her right to counsel. People v. Jordan, 2011 Ill. App. LEXIS 1174, 2011 IL App (4th) 100629 (November 14, 2011).

Permalink 12:30:23 pm, by fourth, 90 words, 2986 views   English (US)
Categories: General

NC: Weaving in own lane not RS

Weaving within one’s own lane at 11 pm is not reasonable suspicion. State v. Otto, 2011 N.C. App. LEXIS 2353 (November 15, 2011).*

The affidavit for the search warrant of one defendant’s cell phone showed probable cause to believe that there was evidence on it. United States v. Barret, 824 F. Supp. 2d 419 (E.D. N.Y. 2011).*

The legality of defendant’s arrest bearing on the voluntariness of his statement was not argued to the trial court, so it cannot be argued on appeal. State v. Adams, 78 So. 3d 222 (La. App. 5th Cir. 2011).*

Permalink 12:01:54 pm, by fourth, 245 words, 3053 views   English (US)
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Low-tech GPS: WaPo.com: "License plate readers: A useful tool for police comes with privacy concerns"

WaPo.com: License plate readers: A useful tool for police comes with privacy concerns by Allison Klein and Josh White:

An armed robber burst into a Northeast Washington market, scuffled with the cashier, and then shot him and the clerk’s father, who also owned the store. The killer sped off in a silver Pontiac, but a witness was able to write down the license plate number.

Police figured out the name of the suspect very quickly. But locating and arresting him took a little-known investigative tool: a vast system that tracks the comings and goings of anyone driving around the District.

Scores of cameras across the city capture 1,800 images a minute and download the information into a rapidly expanding archive that can pinpoint people’s movements all over town.

Police entered the suspect’s license plate number into that database and learned that the Pontiac was on a street in Southeast. Police soon arrested Christian Taylor, who had been staying at a friend’s home, and charged him with two counts of first-degree murder. His trial is set for January.

More than 250 cameras in the District and its suburbs scan license plates in real time, helping police pinpoint stolen cars and fleeing killers. But the program quietly has expanded beyond what anyone had imagined even a few years ago.

With virtually no public debate, police agencies have begun storing the information from the cameras, building databases that document the travels of millions of vehicles.

11/19/11

Permalink 10:21:43 am, by fourth, 223 words, 3121 views   English (US)
Categories: General

D.Neb.: Detaining motorist 20 minutes for drug dog after warning ticket handed over was not by consent

Defendant’s stop was over when the officer handed the warning ticket back. Making the driver wait 20 minutes for the drug dog to show up was not by consent, and it was unreasonable. United States v. Grant, 2011 U.S. Dist. LEXIS 132608 (D. Neb. November 15, 2011)*:

The statement by the Sergeant Wilcynski that he would release the defendant if nothing happened is bothersome to the court. Sergeant Wilcynski told the defendant that if the dog did not indicate, “then we’ll get you going.” Id. That language sounds more like a coerced consent and resulting detention than it does a consensual arrangement. It is hard to imagine that the defendant really felt free to leave after that statement. If a reasonable person does not believe he is free to leave, a seizure occurs. Garcia, 613 F.3d at 753, citing United States v. Jones, 269 F.3d 919, 925 (8th Cir. 2001).

The burden is on the government to show consent. Law enforcement officers must ask good questions. These questions must be clear and the responses must be clear and not the result of coercion or coercive language. Further, there is always the option of obtaining a written consent which was not done in this case. The question/statement by Sergeant Wilcynski telling the defendant that if the dog did not indicate, “then we’ll get you going” was clearly coercive. ...

Permalink 09:44:41 am, by fourth, 260 words, 2952 views   English (US)
Categories: General

LA5: Off-duty narc stopped car for weaving and was valid

Defendant was stopped for DUI by an off-duty narc. He conducted a search of the car finding MDMA. The stop and search were valid as a private search. In addition, if an on-duty LEO had stopped the car, that officer could have searched the passenger compartment incident to the arrest for the cause of the DUI. State v. Common, 78 So. 3d 237 (La. App. 5th Cir. 2011).*

An anonymous CI provided sufficient predictive detail to justify the stop of defendant’s car with reasonable suspicion when defendant showed up in the car described at the time given. State v. Leonard, 80 So. 3d 535 (La. App. 5th Cir. 2011)*:

Further, the source correctly predicted the specific place and time, within ten minutes, that the suspect would arrive with contraband. The source was able to describe the vehicle defendant would be driving – a black, four-door vehicle. As the detectives surveyed the situation, they corroborated the source's information when they observed a man, fitting the description of the suspect, drive up to the expected location in a vehicle that matched the description of the suspect's vehicle within the specified time frame. As such, we find that the trial judge did not err in implicitly finding that the detectives possessed reasonable suspicion to justify the investigatory stop.

Officers were in the house of another to conduct a parole arrest, and they encountered the defendant who was there. He was handcuffed for safety reasons and told that and that he was not under arrest. Then defendant admitted to possessing contraband. State v. Jones, 78 So. 3d 274 (La. App. 5th Cir. 2011).*

Permalink 09:23:53 am, by fourth, 164 words, 3003 views   English (US)
Categories: General

E.D.Cal.: Defendant ranch worker had no REP in the curtilage of the house

Defendant worked on a ranch, and he did not show that he had a reasonable expectation of privacy in the curtilage to the house on the property. As commercial property as to him, there was a lesser expectation of privacy in it. United States v. Quesada-Garcia, 2011 U.S. Dist. LEXIS 131544 (E.D. Cal. November 14, 2011).*

Officer responding to shots fired call found defendant matching the description. Considering the totality, the officer encountered defendant and defendant did not comply with commands to show his hands and put them up. That all added up to reasonable suspicion. United States v. McCullough, 2011 U.S. Dist. LEXIS 132108 (M.D. Pa. November 16, 2011).*

While a social guest in a motel room may have a reasonable expectation of privacy, vis-a-vis an overnight guest, the defendant still carries the burden on that, and he failed to establish it here. About all he showed here was that he was there for commercial purposes. United States v. Sherrill, 2011 U.S. Dist. LEXIS 132547 (D. Kan. November 16, 2011).*

Permalink 01:40:49 am, by fourth, 134 words, 2936 views   English (US)
Categories: General

HuffPo: "TSA: 10 Years Old & None The Wiser"

Huffington Post: TSA: 10 Years Old & None The Wiser:

In the 10 years that the TSA has existed, there have been countless public blunders by the agency that just can't seem to get it right.

From John "Don't Touch My Junk" Tyner to the TSA's "Get Your Freak On Girl" note the American public seems to simply not be able to get enough of the Transportation Security Administration, for better or worse.

The TSA is a "cumbersome organization", Kate Hanni, Executive Director of FlyersRights.org (a non-profit organization with 50,000 members dedicated to bettering the conversation between travelers, the airlines and the Government), and blogger for The Huffington Post, said in a phone conversation, "There are some 67,000 employees at the TSA. It's security theater," she added.

I referred to TSA as "security theater" here in July 2007.

Permalink 01:18:51 am, by fourth, 340 words, 2989 views   English (US)
Categories: General

NY2: Statute for child sex abuse victim to submit to photographing of doubtful utility violated her rights against unreasonable search and seizure

Ordering a child who gave birth to submit to intimate photographing years after the sexual abuse served no reasonable government interest and violated the Fourth Amendment and state constitutional rights of the child in her bodily integrity. In the Matter of Shernise C., 2011 NY Slip Op 08355, 91 A.D.3d 26, 934 N.Y.S.2d 171 (2d Dept. 2011):

“There is no more worthy object of the public’s concern” than the welfare of children (Wyman v James, 400 US 309, 318). However, in our societal zeal to protect them, our most vulnerable and most valuable asset, we must be careful not to trample upon their constitutional rights. An innocent child should certainly have as much right to be free from an unreasonable search and seizure as someone suspected of committing a crime. Thus, while harmonizing the state’s extraordinary interest in protecting a child’s welfare from the potential for the invasion of a child’s constitutional rights may be at times difficult, a proper balance must be struck since even the most heinous crime of child sexual abuse does not automatically provide cause to ignore the rights of the victim.

. . .

Where a bodily intrusion is concerned, the court must give careful consideration to “not only the probable worth of the evidence to the investigation, but the nature of alternative means, if any, for obtaining the evidence” (Matter of Abe A., 56 NY2d 288, 298; see Winston v Lee, 470 US 753). When making our Fourth Amendment inquiry, we must consider whether there is a “ clear indication’ that the intrusion will supply substantial probative evidence” (Matter of Abe A., 56 NY2d at 297, quoting Schmerber v California, 384 US 757, 770; see Cupp v Murphy, 412 US 291, 295).

In the instant matter, given the conclusive evidence of abuse provided by the DNA test results, the State’s need to subject Shernise to a highly intrusive physical examination is so diminished as to render the search unreasonable under the Fourth Amendment. Thus, the mandated application of Family Court Act § 1027(g) to Shernise under the particular facts of this case is unreasonable and violates her Fourth Amendment rights.

11/18/11

Permalink 02:42:52 pm, by fourth, 181 words, 3025 views   English (US)
Categories: General

CA8: 9 months not too stale in child abuse and child porn case

Officers had a search warrant for evidence of child sexual abuse and possible child pornography involving defendant’s father. During the search, officers saw things that revealed another possible child porn crime, and they got a second search warrant for digital media they found. In searching that, they found evidence of defendant’s making child pornography. The warrant was based on nine month old information, and it was not stale since it was likely that the items sought would still be there because of their enduring value to the possessor. Seizure of items in plain view was also justified since the warrant made them lawfully on the premises. United States v. Darr, 661 F.3d 375 (8th Cir. 2011).*

“Reasonable and prudent” is not unconstitutionally vague in the Kansas following too close statute. Viewing the video of the stop, it was apparent that the officer, too, was impatient with the length of time it was taking to get information back, so he did not lengthen the stop. The video also confirmed that the consent was voluntary. United States v. Hunter, 663 F.3d 1136 (10th Cir. 2011).*

Permalink 01:33:53 pm, by fourth, 116 words, 2967 views   English (US)
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S.D.Tex.: Historical cell site location data requires warrant and probable cause

Historical cell site data requires probable cause and a search warrant. In re Application of the United States for Historic Cell Site Data, No. H-11-221 (S.D. Tex. November 11, 2011). Virtually the entire order:

When the government requests records from cellular services, data disclosing the location of the telephone at the time of particular calls may be acquired only by a warrant issued on probable cause. U.S. Const., amend. 4. The records would show the date, time, called number, and location of the telephone when the call was made. These data are constitutionally protected from this intrusion. The standard under the Stored Communications Act, 18 U.S.C. § 2703(d), is below the standard required by the Constitution.

11/17/11

Permalink 09:29:12 am, by fourth, 236 words, 3132 views   English (US)
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W.D.Ky.: Warrant for long existing chop shop/drug distribution point was not stale

The defendant ran a “chop shop” that also was a drug distribution point that apparently had been ongoing for eight years. Three week old information about a trailer load of marijuana having come in was not stale under the circumstances. United States v. Cruz-Lopez, 2011 U.S. Dist. LEXIS 131267 (W.D. Ky. July 28, 2011):

The task of determining whether information contained in a search warrant affidavit has become stale requires the Court to do more than merely conduct an “arbitrary accounting [of] days on a calendar....” Spikes, 158 F.3d at 923-24. Rather, the Court must take into account factors such as: (1) the character of the crime (chance encounter or regenerating conspiracy); (2) the nature of the criminal (nomadic or entrenched); (3) the items to be seized (perishable or readily transferrable or enduring); and (4) the place to be searched (a secure operational base or a mere forum of convenience). ...

A child abuse victim’s report that defendant had child pornography on his computer that he made the child look at was probable cause for a search warrant for the computer and the house. State v. Roggenbuck, 2011 Mo. App. LEXIS 1520 (November 15, 2011).*

Defendant’s claim that a jail monitoring telephone calls violated the state wiretapping statute was not raised until appeal and is waived, but defendant would lose on the merits anyway because he consented to speaking on the phone knowing that calls were recorded. State v. Smith, 2011 Tenn. Crim. App. LEXIS 830 (November 14, 2011).*

Permalink 08:55:25 am, by fourth, 417 words, 3012 views   English (US)
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MO: While search was unreasonable, defendant's testimony at trial he possessed items to be suppressed was waiver

Pulling up one’s pants from behind is not indicative of pulling up the pants because a gun is weighing them down, and the officer failed to articulate reasonable suspicion for defendant’s stop. Also, Missouri is a concealed carry state which might make it legal anyway. But, testifying to possession was a waiver. State v. Norfolk, 2011 Mo. App. LEXIS 1526 (November 15, 2011):

While we believe the trial court clearly erred in denying Norfolk’s motion to suppress, we find this error was harmless beyond a reasonable doubt because the evidence sought to be suppressed would have been cumulative to Norfolk's trial testimony. Norfolk voluntarily stated under oath at trial that he possessed the gun and the drugs found after the search. This confession prevents us from providing Norfolk any claim of relief on his point of error. “It would be trifling with the administration of the criminal law to award [a defendant] a new trial because of a particular error committed by the trial court, when in effect he [or she] has stated under oath that he [or she] was guilty of the charge preferred against him [or her].” Pate, 859 S.W.2d at 870 (quoting Motes v. United States, 178 U.S. 458, 20 S. Ct. 993, 44 L.Ed. 1150 (1900)). See also, State v. Nunn, 646 S.W.2d 55, 57 (Mo. banc 1983) (no reversible error even if motion to suppress statements should have been granted because defendant testified under oath at trial confirming the truth of the incriminating statements); State v. Patino, 12 S.W.3d 733, 741 (Mo. App. S.D. 1999) (even if drugs should have been suppressed because of an illegal traffic stop, admission into evidence was harmless error because defendant’s voluntary testimony amounted to a confession which made the admission of the drugs cumulative); State v. Davalos, 128 S.W.3d 143, 148 (Mo. App. S.D. 2004) (although troubled by defendant being forced to testify in the face of possibly illegally obtained evidence, defendant's voluntary incriminating statements rendered the admission of the evidence cumulative and harmless beyond a reasonable doubt).

Obvious practice pointer: As a part of the decision to testify, one has to consider the likelihood of an admission to possession of the contraband being a waiver of the search issue. The defense here argued that there was no waiver, but the court disagreed. Most states would likely follow this rationale. It depends on the case, of course, but is one better off not testifying at all to preserve the search issue, or is there some larger goal to be achieved that justifies testifying and waiver?

Permalink 12:01:00 am, by fourth, 224 words, 2997 views   English (US)
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Ohio grants review in Friedman permitting random dog sniffs on the street

A previous post:

OH9: Campus police led drug dog down the street to sniff cars and validly searched car when dog alerted

Campus police leading a drug dog down the street saw the dog alert on a parked car. They tried to contact the owner, but couldn’t so they used a lockout device to enter the car and conduct a warrantless search. The entry was valid because the car was still “inherently mobile,” and the drug dog alert was valid. State v. Friedman, 2011 Ohio 2989, 194 Ohio App. 3d 677, 957 N.E.2d 815 (9th Dist. 2011):

Her whereabouts were unknown, despite the officers attempting to contact her at her residence, on her cell phone, and at the school’s activity center. Further, there was testimony that there were not enough officers on duty to post an officer with the vehicle. The fact that Friedman was not present when the officers developed probable cause does not detract from the inherent mobility of her vehicle or render inapposite the application of the automobile exception to the warrant requirement. See Carney, 471 U.S. at 390; Chambers, 399 U.S. at 48; Carroll, 267 U.S. at 153.

The Ohio Supreme Court granted discretionary review today.

h/t to a reader. This is a case to watch. Hopefully the grant of review is at least a sign four justices think the 9th Dist. decision is wrong.

11/16/11

Permalink 10:05:16 am, by fourth, 154 words, 3064 views   English (US)
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Turley: "We don’t care, it seems, if Big Brother is watching"

The Cap Times: Turley: We don’t care, it seems, if Big Brother is watching:

In December 1967, the Supreme Court issued what many consider to be one of its greatest and most eloquent decisions, in Katz v. United States. That case, which is celebrated as saving privacy, articulated the principle that “the Fourth Amendment protects people, not places.” The decision reversed a long erosion of privacy protection and required greater use of warrants by the government.

This past week, a different high court sat to hear a new privacy challenge in Jones v. United States. The issue this time is whether privacy protections are dying in the United States — and whether Katz may be to blame.

The Jones case involves a Global Positioning System device. Antoine Jones was convicted in the District of Columbia in 2008 on drug charges after police followed him for 28 days with a secretly installed GPS device that monitored his location.

Permalink 08:50:02 am, by fourth, 531 words, 3068 views   English (US)
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AZ: DNA may not be taken from an arrestee without a judicial finding of probable cause

In a juvenile action over the taking of DNA on arrest, only those with a finding of probable cause by a judicial officer that an offense occurred may have DNA taken. Mario W. v. Kaipio, 265 P.3d 389 (Ariz. App. 2011):

P18 Using a buccal swab to procure a DNA sample, like blood drawn for the same purpose, constitutes a search under the Fourth Amendment. Maricopa County Juvenile Action Nos. JV-512600 and JV-512797, 187 Ariz. 419, 423, 930 P.2d 496, 500 (App. 1997) (recognizing that “a compelled intrusion[] into the body for blood” is deemed a Fourth Amendment search (quoting Schmerber v. State of California, 384 U.S. 757, 767-68, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966)) ); see also State v. Garcia-Salgado, 170 Wn.2d 176, 240 P.3d 153, 157 (Wash. 2010) (finding that a cheek swab, taken for the purposes of collecting DNA, constitutes a search under the Fourth Amendment). In general, a search is considered unreasonable unless it is accompanied by a judicial warrant issued following a finding of probable cause. JV-512600 and JV-512797, 187 Ariz. at 423, 930 P.2d at 500.

P19 The totality of the circumstances test is used to balance the juveniles’s individual rights against the State’s interest in conducting the DNA search. See United States v. Mitchell, 652 F.3d 387, 390, 399, 403-04 (3d Cir. 2011) (applying the totality of the circumstances test to balance the government’s rights to conduct a DNA search of an arrestee and pretrial detainee under the federal DNA Act, 42 U.S.C. § 14135a(a) (2006)); United States v. Conley, 453 F.3d 674, 680 (6th Cir. 2006) (utilizing a totality of circumstances analysis and finding the taking of a DNA sample from a convicted felon to be constitutional due to the convicted felon’s “sharply reduced expectation of privacy, and the minimal intrusion required in taking a blood sample for DNA analysis for identification purposes only”); see also Samson v. California, 547 U.S. 843, 846, 848, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006) (applying the totality of circumstances test and finding a state law that required parolees to agree to be subject to a search or seizure by a parole officer at any time, with or without cause, to be constitutional); United States v. Knights, 534 U.S. 112, 118, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001) (finding a warrantless search of a probationer’s apartment to be constitutional under the Fourth Amendment after examining the totality of circumstances). My colleagues on this panel agree that the totality of the circumstances test is applicable.

P20 We analyze various factors to evaluate the balance of the juveniles’s rights against the governmental interest in this case. Such factors include: whether there was a judicial finding of probable cause that the juvenile committed the charged offense, the level of intrusion in relation to other pre-adjudicative procedures, the degree and nature of physical intrusion required by the test, statutes restricting use of test results, and any evidence in the record regarding improper uses of the results.

. . .

P22 A judicial finding of probable cause serves as a “watershed event” that distinguishes such a defendant from the general public and permits application of the totality of circumstances exception to the warrant requirement of the Fourth Amendment. In this regard, I agree with the reasoning of the United States Magistrate Judge in United States v. Pool, 645 F. Supp. 2d 903 (E.D. Cal. 2009): ...

Permalink 08:12:48 am, by fourth, 700 words, 3082 views   English (US)
Categories: General

CA10: REP shown in unfinished commercial building; but defendants get qualified immunity

Plaintiffs barely showed a “reasonable expectation of privacy in a building under construction, but the defendants get qualified immunity because the law was unsettled. Klen v. City of Loveland, 661 F.3d 498 (10th Cir. 2011). The entirety of the Fourth Amendment issue:

Plaintiffs complain that defendants George, Hawkinson and Duval violated the Fourth Amendment by ordering Hoskinson to conduct an unauthorized “special inspection” of the Anasazi Phase 2 premises to determine whether unauthorized construction was going on. The district court concluded that “[t]o the extent that the plaintiffs contend that Hoskinson’s entry onto the property was an illegal search in violation of the Fourth Amendment, the facts do not support the claimed violation even if it is shown that Hawkinson directed the inspection.” Aplt. App., Vol. 1D at 1477. The district court did not describe the facts on which it relied, however, or why they did not support the claimed Fourth Amendment violation.

Defendants argue that summary judgment should be affirmed because “a trespass to property, negligent or intentional, is a common law tort; it does not infringe the federal constitution.” Wise v. Bravo, 666 F.2d 1328, 1335 (10th Cir. 1981). In Wise, the plaintiff evoked only the common-law tort of trespass as the basis for his § 1983 suit and there is no indication he sought to advance a Fourth Amendment claim. Wise certainly should not be read to stand for the proposition that a trespass cannot give rise to a claim under the Fourth Amendment. See, e.g., Reeves v. Churchich, 484 F.3d 1244, 1258 (10th Cir. 2007) (“Of course, a police officer’s mere entry or trespass into a home without consent is enough to constitute a search, often referred to in the case law as an ‘unlawful entry.’”).

While not every common-law trespass (into an open field, for example) violates the Fourth Amendment, a Fourth Amendment violation may be shown if the alleged trespass violated the plaintiff’s “constitutionally protected reasonable expectation of privacy.” United States v. Hatfield, 333 F.3d 1189, 1195 (10th Cir. 2003) (quotation omitted). The threshold issue is thus whether plaintiffs had such a reasonable expectation of privacy in the premises of Anasazi Phase 2 searched by Hoskinson.

The defendants characterize the premises invaded as “the ‘core and shell’ of an unfinished commercial building,” Aplee. Br. at 28, implying that plaintiffs had no reasonable expectation of privacy in the premises searched. Plaintiffs, while not denying the unfinished nature of the structure, stress the fact that “the Klens used the premises to store their wallets, briefcases and other personal belongings, and had installed doors and windows in order to secure the premises,” Aplt. Opening Br. at 44-45. Plaintiffs do not argue that defendants knew they used Anasazi Phase 2 for storage purposes before dispatching Hoskinson to conduct the inspection.

Although plaintiffs correctly argue that “[t]he Fourth Amendment protects an individual’s reasonable expectation of privacy in commercial premises,” United States v. Bute, 43 F.3d 531, 536 (10th Cir. 1994), it is also true that “there is a lesser expectation of privacy in commercial as contrasted with residential buildings,” id. An unfinished commercial building, such as the premises in question here, arguably affords even less of a reasonable expectation of privacy than the typical commercial premises.

That said, plaintiffs appear to have shown enough evidence of a Fourth Amendment violation to survive summary judgment on the question of whether defendants violated the constitution. But the individual defendants also argue that they are entitled to qualified immunity as to this claim, and we agree. Plaintiffs have failed to show at the time defendants ordered Hoskinson to conduct an inspection of Anasazi Phase 2 that it was clearly established that this type of impromptu inspection of an unfinished commercial building, still under construction, violated their Fourth Amendment rights. The individual defendants are therefore entitled to qualified immunity and we thus affirm the entry of summary judgment in their favor on this claim.

Under the law of most states, an unwanted entry into an unfinished commercial building would still be a commercial burglary or a breaking and entering or a trespass because of the potential for theft of building materials. If it would be a crime for an unauthorized person to enter, then the plaintiffs certainly would have a reasonable expectation of privacy as to the government.

Permalink 07:59:12 am, by fourth, 217 words, 3007 views   English (US)
Categories: General

W.D.Mo.: One in possession of a car and its keys had apparent authority to consent

The person in possession of a car with the keys who was a regular user of the car had apparent authority to consent to search. United States v. Scott, 2011 U.S. Dist. LEXIS 131244 (W.D. Mo. October 3, 2011)*:

In this case, the record supports a finding that Ms. Starnes had actual authority to consent to a search of the Jaguar. Defendant let Ms. Starnes use the car when she needed it and it was not unusual for her to do so. Ms. Starnes sometimes even drove when she and Defendant were together. When Ms. Starnes used the car, she could use it as she wished without restriction. Ms. Starnes was using the Jaguar on September 2, 2008 and, accordingly, had possession of the sole set of keys.

The record supports the finding of consent to enter. Defendant first gave a false name to the police and then permitted them to enter to talk about it. United States v. Hynson, 451 Fed. Appx. 91 (3d Cir. 2011).*

The officer smelled marijuana when he stopped the defendant’s car. The record supports the conclusion that defendant consented to a search of the car. There was no claim of intimidation or coercion. United States v. Johnson, 2011 U.S. Dist. LEXIS 131483 (E.D. Mo. October 14, 2011);* United States v. Flymn, 2011 U.S. Dist. LEXIS 131494 (E.D. Mo. October 14, 2011).*

Permalink 07:23:46 am, by fourth, 563 words, 3321 views   English (US)
Categories: General

D.D.C. summarizes law of administrative subpoenas v. administrative warrants

A federal contractor consented to record of employees of alleged discrimination by responding to a subpoena without challenging it. United Space Alliance, LLC v. Solis, 2011 U.S. Dist. LEXIS 130938 (D. D.C. November 14, 2011):

United Space next argues that the OFCCP request for additional data violated the Fourth Amendment prohibition against unreasonable searches and seizures. This constitutional protection applies to administrative inspections as well as criminal investigations. Camara v. Municipal Court, 387 U.S. 523, 534, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). It extends to places of business as well as private homes. See v. City of Seattle, 387 U.S. 541, 545, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967). Administrative warrants and subpoenas must both comport with the Fourth Amendment, although different standards apply to each. For an administrative warrant to issue, the government must have either “specific evidence of an existing violation” or the ability to show that “reasonable legislative or administrative standards” such as “a general administrative plan ... derived from neutral sources” justify the warrant. Marshall v. Barlow’s, Inc., 436 U.S. 307, 320, 321, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978) (internal quotation marks omitted). Such a showing satisfies the constitutional requirement that “no Warrants shall issue, but upon probable cause,” U.S. CONST. amend. IV, however “[p]robable cause in the criminal law sense is not required” to justify an administrative warrant. Barlow’s, 436 U.S. at 320. The standard set out in Barlow’s applies whenever “government inspectors [attempt] to make nonconsensual entries into areas not open to the public,” Donovan v. Lone Steer, Inc., 464 U.S. 408, 414, 104 S. Ct. 769, 78 L. Ed. 2d 567 (1984), and ensures that “the decision to enter and inspect will not be the product of the unreviewed discretion of the enforcement officer in the field.” See, 387 U.S. at 545.

“[T]he enforceability of [an] administrative subpoena,” on the other hand, “is governed, not by [the Court’s] decision in Barlow’s ... but rather by [its] decision in Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S. Ct. 494, 90 L. Ed. 614 (1946).” Lone Steer, 464 U.S. at 414. Under Oklahoma Press and its progeny, “when an administrative agency subpoenas corporate books or records, the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.” Id. at 415 (quoting See, 387 U.S. at 544). This line of cases holds administrative subpoenas to a considerably lower standard than administrative warrants—a standard that notably focuses on the breadth of the subpoena rather than the motivation for its issuance. See United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S. Ct. 357, 94 L. Ed. 401 (1950) (“Even if one were to regard the request for information ... as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest.”). “The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable.” Id. at 652-53 (1950) (quoting Oklahoma Press, 327 U.S. at 208); see also Lone Steer, 464 U.S. at 415. This line of cases “in no way leaves an employer defenseless against an unreasonably burdensome administrative subpoena requiring the production of documents.” Lone Steer, 464 U.S. at 415. Rather, it “provide[s] protection for a subpoenaed employer by allowing him to question the reasonableness of the subpoena, before suffering any penalties for refusing to comply with it, by raising objections in an action in district court.” Id.

11/15/11

Permalink 12:12:45 am, by fourth, 211 words, 3035 views   English (US)
Categories: General

NetworkWorld: "Do you give up a reasonable expectation of privacy by carrying a cell phone?"

NetworkWorld: Do you give up a reasonable expectation of privacy by carrying a cell phone? by Ms. Smith:

Tracking via mobile devices continues to be a popular, yet extremely invasive means of electronic location surveillance with law enforcement. We looked at secret sessions that teach government and law enforcement how to hack and conduct surveillance on the masses. At that same ISS World Americas conference, there were several teaching sessions devoted to mobile devices and vendors promoting surveillance tech and cell phone capturing equipment. TeleStrategies taught a session that included, "Transforming cell records and location data into actionable intelligence, Smart Phone intercept and wireless provider business model, Apple iPhone, Google Android and LTE Challenges."

Utimaco LIMS presented "SMS, the forgotten source of intelligence!" VASTech, whose tech was used by Gadhafi’s security agents to record "between 30 and 40 million minutes per month from both landline and mobile phone conversations," demonstrated "Satellite Signal Analyzer" Discover de Sky. And Berkeley Varitronics Systems, which puts out technology like the Squid as seen on the right, taught Handheld Tools for Cell Phone Direction Finding and Location. Septier, which offers solutions like in the video below, taught Mobile Location Tracking that is based on a Integration of an in network GMLC and Tactical Cellular Location Direction Finders.

Permalink 12:02:49 am, by fourth, 377 words, 3002 views   English (US)
Categories: General

Cato: "Internet Belatedly Notices How Much Spying Government Can Do Without a Warrant"

Cato: Internet Belatedly Notices How Much Spying Government Can Do Without a Warrant by Julian Sanchez:

I’m seeing a lot of technology news sites reporting, in tones of shock and horror, on a recent court ruling holding that people generally waive their Fourth Amendment “expectation of privacy” in data collected on them by Internet sites, at least when the sites give some kind of notice (however buried in legalese) that they do collect that data. That means, in this instance, that the government can obtain detailed connection records from Twitter about users associated with Wikileaks without a full-blown Fourth Amendment warrant based on probable cause: A subpoena or a court order based on a far weaker claim of “relevance” to an investigation will suffice.

But this isn’t some shocking new precedent. It’s been the status quo since 1986, when our increasingly outdated electronic privacy laws were written, and arguably for longer than that.

There are plenty of problems with this most recent decision, to be sure. For one, as security researcher Chris Soghoian notes, the court based its opinion on the current Twitter privacy policy, even though the policy in effect at the time the targets of the investigation signed up for the site was significantly more protective. In a way, though, this seems unnecessary: Under the misguided Supreme Court decisions that established our modern “third party doctrine,” contractual promises of privacy don’t matter.

In other words, users are held to “assume the risk” that any third party might turn their information over to the government, effectively waiving their Fourth Amendment rights over that data, even if the third party explicitly promises not to do this. The one reason the privacy policy might be relevant here is that the “third party doctrine” covers information knowingly conveyed to third parties, and while it’s obvious that you “convey” a dialed phone number to the phone company when you make a call (for instance), it might not be as obvious that Web sites you visit are logging your Internet Protocol address. (other hyperlinks in original; but second added)

If "Eternal vigilance is the price of liberty," said Thomas Jefferson in 1809 [and a bunch of others], who pays attention while you were sleeping? I do, for one.

11/14/11

Permalink 11:41:59 am, by fourth, 186 words, 2947 views   English (US)
Categories: General

Impact Labs: "How your car could be a star witness against you in court"

Impact Labs: How your car could be a star witness against you in court:

If you are in a serious car accident and are unfortunate enough to land in court afterwards, the star witness against you may not be an eyewitness or even a human being, it could be your car.

Today’s high-tech automobiles increasingly rely on computers to maximize performance and monitor operating systems. But while the under-the-hood computers are doing that, they may also be recording data about your driving.

. . .

Even now, however, such information could be cross-checked with information from devices like cellphones and GPS units to build what could be an air-tight court case.

“Now you’re in a situation where, if someone has the time and expertise, they can say you drove from here to there at this speed, you parked at Whole Foods, here’s what you bought, then you got back in your car and drove here and made a call to this number,” said Dean Gonsowski, eDiscovery counsel with Clearwell, which is part of the security firm Symantec. “… It’s staggering how much information can be collected.”

Permalink 08:24:49 am, by fourth, 83 words, 3024 views   English (US)
Categories: General

AK: Spinning tires not RS

Unnecessarily spinning one’s tires does not justify a stop. Here, the state did not rely on the community caretaking function for the stop, so there was no factual support for it in the trial court. Burnett v. State, 264 P.3d 607 (Alas. App. 2011)* (court explains in dicta that community caretaking function might have arguably applied if the facts were developed).

Driving with a dealer plate at night is not reasonable suspicion of wrongdoing. State v. Williams, 2011 Ohio 5807, 2011 Ohio App. LEXIS 4765 (2d Dist. November 10, 2011).*

Permalink 08:21:12 am, by fourth, 275 words, 2987 views   English (US)
Categories: General

OH10: Hearsay for basis for arrest admissible; confrontation clause inapplicable

Hearsay is admissible to show the basis for an arrest at a suppression hearing. The confrontation clause does not apply to suppression hearings. State v. McKenzie, 2011 Ohio 5851, 2011 Ohio App. LEXIS 4776 (10th Dist. November 10, 2011):

[*P8] Appellant also argues under this assignment of error that the trial court erred when it did not allow him to confront Worthington and Porter at the suppression hearing regarding what prompted their suspicion of illegal activity that promoted the stop of appellant, in violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution, which states that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.” We disagree with appellant’s contention. The United States Supreme Court has repeatedly distinguished between the scope of a defendant’s right to confrontation in trial and pretrial proceedings. See Pennsylvania v. Ritchie (1987), 480 U.S. 39, 54, 107 S.Ct. 989, 999, 94 L. Ed. 2d 40; State v. Williams (1994), 97 Ohio App.3d 289, 291, 646 N.E.2d 836. The right to confrontation, which includes the right to physically face and cross-examine witnesses, is not a constitutionally compelled rule of pretrial proceedings. See Ritchie at 52-53, 107 S.Ct. at 998-99; see also Raddatz at 679, 100 S.Ct. at 2414; Williams at 291; State v. Saunders, 2d Dist. No. 22621, 2009 Ohio 1273, ¶13 (no denial of right to confrontation at suppression hearing when police officer testified as to the statement of a witness). Thus, appellant’s right to confrontation was not violated when Worthington and Porter did not testify at the suppression hearing. For the foregoing reasons, the trial court did not err when it denied appellant’s motion to suppress, and appellant’s assignment of error is overruled.

Permalink 08:08:07 am, by fourth, 347 words, 2927 views   English (US)
Categories: General

D.Neb.: Blanket objection to USMJ R&R fails

A blanket objection to a USMJ R&R in a search claim is unavailing; the objecting party has to be specific as to the objections. United States v. Soderholm, 2011 U.S. Dist. LEXIS 130727 (D. Neb. November 9, 2011):

The Eighth Circuit has held that “even when a magistrate judge is hearing a matter pursuant to his or her limited authority to make a ‘recommended disposition,’ ‘a claimant must present all his claims squarely to the magistrate judge, that is, the first adversarial forum, to preserve them for review.’” ... See also Roberts, 222 F.3d at 470 (“[The] purpose of referring cases to a magistrate for recommended disposition would be contravened if parties were allowed to present only selected issues to the magistrate, reserving their full panoply of contentions for the trial court.” ... Other courts have found, however, that because 28 U.S.C. § 636(b)(1) allows the district court to “receive further evidence” after a party objects to the magistrate judge’s recommendation, district courts may consider new arguments raised for the first time in an objection. ... The Fourth Circuit has gone further, holding that “as part of its obligation to determine de novo any issue to which proper objection is made, a district court is required to consider all arguments directed to that issue, regardless of whether they were raised before the magistrate [judge].” United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992). See also id. at 1118 n.6 (noting that the district court’s obligation to hear all arguments is reinforced when motions to suppress are concerned because such motions are “not one of the pretrial matters that may be reviewed by the district court merely for clear error or plain error”).

Given the law in this circuit, the government's argument that I should not consider the defendant's new arguments is well-taken–though it should be noted that the government cites no cases that apply the Eighth Circuit's rule to new arguments offered in support of a motion to suppress. I shall bypass this issue, however, because I find that I can readily dispose of the defendant's new arguments on their merits.

Permalink 08:02:32 am, by fourth, 456 words, 3214 views   English (US)
Categories: General

Redux: CA9: Franks violation in CP investigation where no CP found leads to civil liability; SW targets actually innocent

The Ninth Circuit denied rehearing en banc in Chism v. Washington State, 10-35085 (9th Cir. August 25, 2011), rehearing denied, op. amended November 7, 2011. The plaintiffs' credit card information had been stolen and used to acquire child porn. A Franks violation was alleged leading to search warrant for child pornography on their computers, and none was found. They sued under § 1983, and it leads to civil rights liability for the investigators:

This civil rights action under 42 U.S.C. § 1983 arises from an internet child pornography investigation by Washington State Police (WSP) Officers Rachel Gardner and John Sager (“the officers”). As a result of information the officers acquired, Todd Chism became the focus of their investigation. Gardner prepared an affidavit in support of a search warrant application, which Sager reviewed. On the basis of that affidavit, a magistrate judge issued a broad search warrant to search Todd Chism’s home and business office. Relying on the same information contained in Gardner’s affidavit, Deputy Prosecuting Attorney Christian Peters obtained from the same magistrate judge a warrant to arrest Todd for violating Washington’s child pornography laws. A few days later, several WSP officers executed the search and arrest warrants. A WSP detective eventually conducted forensic examinations of the Chisms’ home computer and computers from the Spokane Fire Department, where Todd Chism worked as a firefighter. The investigation did not reveal any evidence of child pornography, and charges were never filed against Todd Chism.

Several months later, Todd and his wife, Nicole Chism, filed this § 1983 action against the State of Washington, the WSP, Detective Gardner, and Sergeant Sager, alleging—among other things not relevant to this appeal—that the officers violated their Fourth and Fourteenth Amendment rights by securing the search and arrest warrants with an affidavit that deliberately or recklessly contained material omissions and false statements. The Chisms and the officers filed cross motions for summary judgment on the issue of qualified immunity as to the constitutional claim. The district court granted the officers’ motion, concluding that the officers’ conduct did not violate a clearly established constitutional right of which a reasonable officer would have known. The Chisms timely appealed.

We reverse the district court’s judgment and remand this case for trial. Viewing the evidence in the light most favorable to the Chisms, we conclude that the Chisms have made a substantial showing of the officers’ deliberate falsehood or reckless disregard for the truth and have established that, but for the dishonesty, the searches and arrest would not have occurred. We also conclude that the officers are not entitled to qualified immunity because the Chisms’ right to not be searched and arrested as a result of judicial deception was clearly established at the time Gardner prepared and submitted her affidavit.

11/13/11

Permalink 12:45:15 am, by fourth, 763 words, 3200 views   English (US)
Categories: General

CA4 explains Terry's “must diligently pursue the investigation of the justification for the stop” when ICE was called

A stop led to ICE being called, and that slowed “investigation of the justification for the stop.” However, the officer's “calling ICE to inquire into the validity of the Gaitan ID is analogous in many ways to how an officer routinely runs a driver's license and registration to check their validity,” and here it was not unreasonable. United States v. Guijon-Ortiz, 660 F.3d 757 (4th Cir. 2011):

Strictly speaking, the scope and duration inquiries under Terry’s second prong are distinct. They become intertwined, however, in cases where, as here, the actions a defendant argues exceeded the scope of the stop necessarily also extended its duration. This raises the following question: Under what circumstances, if ever, may an officer prolong a traffic stop to investigate matters unrelated to the justification for the stop and without reasonable suspicion, whether through questioning or other means?

. . .

As we explained in Digiovanni, for a traffic stop to satisfy Terry’s second prong, the police officer “must diligently pursue the investigation of the justification for the stop.” Id. (citing Sharpe, 470 U.S. at 686). Although we have held that “where a delay can be characterized as de minimis under the totality of the circumstances, it will not be recognized as a Fourth Amendment violation,” id. (citing Mason, 628 F.3d at 132), the principal inquiry, as articulated by the Sixth Circuit, is “the officer’s diligence—i.e., his persevering or devoted application to accomplish the undertaking of ascertaining whether the suspected traffic violation occurred, and, if necessary, issuing a ticket.” United States v. Everett, 601 F.3d 484, 494 (6th Cir. 2010) (internal quotation marks and alterations omitted). If “the totality of the circumstances, viewed objectively, establishes that the officer, without reasonable suspicion, definitively abandoned the prosecution of the traffic stop and embarked on another sustained course of investigation, this would surely bespeak a lack of diligence.” Id. at 495.

This standard incorporates both the duration and scope components of Terry’s second prong. Some courts and commentators have questioned whether the scope component survives Johnson. See United States v. Stewart, 473 F.3d 1265, 1269 (10th Cir. 2007) (“The correct Fourth Amendment inquiry (assuming the detention is legitimate) is whether an officer’s traffic stop questions ‘extended the time’ that a driver was detained, regardless of the questions’ content.”); Reid M. Bolton, Comment, The Legality of Prolonged Traffic Stops After Herring: Brief Delays as Isolated Negligence, 76 U. Chi. L. Rev. 1781, 1786-87 (2009). We disagree, because, as we have explained: “[T]he scope of a police officer’s actions during a traffic stop still is relevant to the reasonableness analysis under the Fourth Amendment ... because, during a stop, a police officer must act reasonably, that is, he must diligently pursue the investigation of the justification for the stop.” Digiovanni, 650 F.3d at 509. Johnson holds only that unrelated questioning that does not prolong a traffic stop does not render the stop unlawful. In cases where, as here, the questioning does extend the seizure, the scope of an officer’s unrelated investigation could be relevant to whether the officer “definitively abandoned the prosecution of the traffic stop and embarked on another sustained course of investigation.” Everett, 601 F.3d at 495.

We acknowledge that in Digiovanni the issue was whether police questioning caused the traffic stop to exceed its permissible scope and duration. Here, in contrast, the action Guijon-Ortiz argues prolonged the stop was the call to ICE, which Flowers made from the patrol car while the three men waited in the pickup truck. We believe the “diligently pursue” standard applies nonetheless, because either questioning a person directly or pursuing other means of investigation may, in the context of a particular traffic stop, be relevant to whether an officer diligently pursued the investigation of the justification for the stop.

Our approach is in accord with not only that of the Sixth Circuit in Everett but also that of at least the Eighth and Ninth Circuits. See United States v. Turvin, 517 F.3d 1097, 1101 (9th Cir. 2008) (holding that “whether questioning unrelated to the purpose of the traffic stop and separate from the ticket-writing process that prolongs the duration of the stop may nonetheless be reasonable” is determined by “examin[ing] the ‘totality of the circumstances’ surrounding the stop”); United States v. Olivera-Mendez, 484 F.3d 505, 510 (8th Cir. 2007) (“Whether a particular detention is reasonable in length is a fact-intensive question, and there is no per se time limit on all traffic stops. When there are complications in carrying out the traffic-related purposes of the stop, for example, police may reasonably detain a driver for a longer duration than when a stop is strictly routine.”) (citing Sharpe, 470 U.S. at 685-87).

Permalink 12:20:13 am, by fourth, 335 words, 2981 views   English (US)
Categories: General

TN: Impoundment of car on arrest of driver was reasonable rather than leave it at gas pumps

Defendant was arrested for driving without a license, and it was not unreasonable to impound the car. The alternative was to leave it blocking gas pumps at a gas station, which cannot be expected. The officer was not obliged to see if there was somebody who could come and get the car. State v. Hubbard, 2011 Tenn. Crim. App. LEXIS 828 (November 9, 2011):

While the officer acknowledged that he did not ask Appellant if there was anyone else who could come and get the vehicle, this Court has held that it is appropriate to impound a vehicle despite the failure of an officer to ask Appellant about an alternative solution when there is no reasonable or plausible alternative such as a passenger at the scene to take possession of the car immediately.

Since the defendant did not send up the video of the stop with the appellate record, the court has to presume that it supported the testimony about it. State v. Carrasco, 2011 Tenn. Crim. App. LEXIS 829 (November 10, 2011)*:

As we have noted, the trial court reviewed the video recording of the stop. The agents testified about the recording, although it has not been transmitted as part of the appellate record. As the appellants, the Defendants were required to prepare a record that conveys a fair, accurate, and complete account of what transpired with respect to those issues that are the bases of the appeal. T.R.A.P. 24(b); State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). “In the absence of an adequate record on appeal, this court must presume that the trial court’s rulings were supported by sufficient evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991); see also State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). In the present case, we must presume that the video recording supported the trial court’s ruling, and the Defendants are not entitled to relief. In this regard, nothing in the record refutes the trial court’s findings that the weaving justified Agent Long’s stopping the truck.

Permalink 12:07:47 am, by fourth, 196 words, 2865 views   English (US)
Categories: General

CA3: Flight of apparent shooter into house with gun exigency

Flight of apparent shooter into a house with a shotgun was reasonable, particularly in light of the apparent lie about who was in the house. United States v. Parrott, 450 Fed. Appx. 228 (3d Cir. 2011):

Here, the officers had probable cause and an objectively reasonable basis for believing that exigent circumstances existed at the time that they searched the house. The officers' belief was based on a number of facts, including: the missing shotgun that had been taken into the house; the report of shots being fired and the reasonable inference that the person who ran into the house with a gun was the shooter; Mrs. Parrott's false statements regarding the number of people in the house; and the officers' reasonable belief that if somebody remained inside the house, that person might attempt to hide, destroy or remove the shotgun, or use it against the officers.

Officers listening to a wire on the CI realized that the CI’s target did not have the sought-after drugs on him, but when a vehicle showed up, and the target went to the car, that was probable cause to search the car. Jones v. State, 2011 Ark. App. 683, 2011 Ark. App. LEXIS 724 (November 9, 2011).*

11/12/11

Permalink 01:06:50 pm, by fourth, 122 words, 3094 views   English (US)
Categories: General

Turley: " Supreme Court’s GPS case asks: How much privacy do we expect?"

WaPo Op-Ed: Supreme Court’s GPS case asks: How much privacy do we expect? by Jonathan Turley:

In December 1967, the Supreme Court issued what many consider to be one of its greatest and most eloquent decisions, in Katz v. United States. That case, which is celebrated as saving privacy in the United States, articulated the principle that “the Fourth Amendment protects people, not places.” The decision reversed a long erosion of privacy protection and required greater use of warrants by the government.

This past week, a different high court sat to hear a new privacy challenge in Jones v. United States. The issue this time is whether privacy protections are dying in the United States — and whether Katz may be to blame.

Permalink 11:22:15 am, by fourth, 248 words, 2976 views   English (US)
Categories: General

NY4: Common authority does not extend to personal duffle bag

Defendant’s girlfriend’s mother lacked apparent authority to consent to the search of the defendant’s duffle bag in her house when he was staying there. People v Holmes, 2011 NY Slip Op 8075, 89 A.D.3d 1491, 932 N.Y.S.2d 270 (4th Dept. 2011):

Upon remittitur, we agree with defendant that the weapon and his statements to the police must be suppressed. The mother of defendant's girlfriend did not have actual or apparent authority to consent to the search of the duffel bag (see generally People v Gonzalez, 88 NY2d 289, 293). The People presented no evidence that the mother "shared common authority' over defendant's duffel bag, based upon mutual use or joint access and control" (id. at 294). The warrantless seizure of the weapon therefore was improper (see People v Coston, 271 AD2d 694, lv denied 95 NY2d 833, 962; cf. People v Kelly, 58 AD3d 868, lv denied 12 NY3d 818). We further agree with defendant that his statements to the police must be suppressed as fruit of the poisonous tree (see People v Christianson, 57 AD3d 1385, 1388; People v James, 27 AD3d 1089, 1090-1091, lv denied 6 NY3d 895).

Officers had information from a CI that defendant was in the bathroom doing drugs. When she came out, she seemed under the influence. She left her backpack on the trunk of a car when talking to the officer and then was arrested. There was probable cause to believe evidence was in the backpack, so it was more than just a search incident. Agee v. Commonwealth, 2011 Ky. App. LEXIS 224 (November 10, 2011).*

Permalink 09:06:08 am, by fourth, 95 words, 2951 views   English (US)
Categories: General

OH9: Cell phone search by consent distinguished Ohio's Smith

Defendant was shown to have consented to a search of the data on his cell phone, so State v. Smith did not apply. State v. Underwood, 2011 Ohio 5703, 2011 Ohio App. LEXIS 4676 (9th Dist. November 7, 2011).*

The officer had probable cause to search the passenger compartment from the smell of burnt marijuana and defendant’s nervousness. State v. Harris, 79 So. 3d 1037 (La. App. 1st Cir. 2011).*

Defendant consented to a school official’s direction to empty her pockets. In her testimony she admitted that she felt like she could refuse. In re M. W. H., 2011 Ore. App. LEXIS 1504 (November 9, 2011).*

Permalink 08:43:20 am, by fourth, 528 words, 3027 views   English (US)
Categories: General

LA: The “inherent social pressure to cooperate with police” does not make questioning inherently under a seizure

The “inherent social pressure to cooperate with police” does not make questioning inherently under a seizure. Here, the officer had the defendant’s ID, but the record did not show that he was not free to leave [which makes no sense; possession of the ID is not free to leave]. State v. Martin, 79 So. 3d 951 (La. 2011), revg State v. Martin, 54 So. 3d 111 (La.App. 3d Cir. 2010):

We note “police-citizen encounters do not become ‘seizures’ simply because citizens may feel an inherent social pressure to cooperate with police.” Daniel, 12 S.W.3d at 425, citing People v. Paynter, 955 P.2d 68, 72 (Colo. 1998). Yet, “[w]hile most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.” Delgado, 466 U.S. at 216, 104 S.Ct. at 1762. Courts must pay attention to the facts of each encounter, while keeping in mind the realities of every day life and the importance of an individual’s identification. As noted by the Florida Supreme Court,

[c]ertainly, the dangers posed by crimes such as identity theft and the ever-present threats to our national security makes the act of identifying oneself through presentation of valid, government-issued identification a necessary part of a panoply of human endeavors, from cashing a check to boarding an airplane.

Golphin v. State, 945 So.2d 1174, 1189-1190 (Fla. 2006), cert. denied, 552 U.S. 810, 128 S.Ct. 40, 169 L.Ed.2d 11 (2007). In examining the totality of the circumstances, a court must look to “numerous factors, including the time, place and purpose of the encounter, the words used by the officer, the officer’s tone of voice and general demeanor, the officer’s statements to others present during the encounter, the threatening presence of several officers, the potential display of a weapon by an officer, and the physical touching by the police of the citizen.” United States v. Weaver, 282 F.3d 302, 310 (4th Cir. 2002), cert. denied, 537 U.S. 847, 123 S.Ct. 186, [Pg 11] 154 L.Ed.2d 75 (2002).

. . .

Here, there was no abuse of the district court's discretion in its denial of the defendant's motion to suppress. The record fails to support a finding that there was an unmistakable show of official authority in the police/citizen encounter at issue which would have indicated to a reasonable person that he was not free to leave. We find, as did the dissenting appellate judge, that Martin voluntarily complied with the officer’s request for identification and voluntarily offered a response to the officer's potentially incriminating question. Under the totality of the circumstances, we find the officer’s brief retention of Martin’s identification under these facts did not change the nature of this essentially consensual encounter and the officer lawfully retrieved the Soma pills from the defendant's pocket.

[If any can find this on the Louisiana Supreme Court’s website, good luck. It is the worst court website I’ve seen: Everything but the cases.]

Update: A reader, an ADA in another state, no less, was able to find the opinion link for me. Thank you so much. I spent about 10 minutes looking for the link and gave up. I don't have all day....

11/11/11

Permalink 01:16:03 pm, by fourth, 824 words, 3192 views   English (US)
Categories: General

E.D.Va.: No REP in IP information held by Twitter; the Wikileaks case

There is no Fourth Amendment privacy interest in IP information created by Twitter. Smith and Miller govern. In re Application of the United States of America for an Order Pursuant to 18 U.S.C. § 2703(d), 830 F. Supp. 2d 114 (E.D. Va. 2011):

Petitioners and amici argue that the possibility of using IP address information to “pinpoint” a person’s physical location extends to “locations in, and movements between, particular private spaces over a period of time.” Doc. 45 at 20. As the government points out, however, investigators have long been able to use other forms of information to place a caller in a particular place, such as a private home, at a particular time. The Fourth Circuit has explicitly approved the collection of non-IP subscriber information for this very purpose. See Bynum, 604 F.3d at 164 n.2. The granularity of the “pinpoint” accuracy of IP address location finding, as described in Petitioners’ brief, is hardly a function of examining IP addresses by themselves. Rather, as in the case of the commercial enterprises described by the Bellovin Brief, the granularity of the “pinpoint” information results from aggregation and correlation of IP address information with other records. Bellovin Br. at 7-8. “Pinpointing” a person’s location is even more difficult if the government must distinguish between users of “static” or “dynamic” IP addresses because “dynamic” IP addresses are not consistently used by the same computer. The Court finds nothing in Karo or other cases indicating that combining records of IP address information with other information would infringe a locational privacy interest protected by the Fourth Amendment.

. . .

Even if Petitioners had a reasonable expectation of privacy in IP address information collected by Twitter, Petitioners voluntarily relinquished any reasonable expectation of privacy under the third-party doctrine. To access Twitter, Petitioners had to disclose their IP addresses to third parties. This voluntary disclosure—built directly into the architecture of the Internet—has significant Fourth Amendment consequences under the third-party doctrine, as articulated in United States v. Miller and Smith v. Maryland.

. . .

Two consequences follow from the Court’s conclusion that Petitioners voluntarily relinquished any expectation of privacy in their IP addressing information when they chose to use the Internet to communicate with the Twitter service. First, because the Twitter Order did not invade Petitioners’ reasonable expectations of privacy, it cannot constitute a search in violation of the Fourth Amendment. See Florida v. Riley, 488 U.S. 445, 449-50 (1989); California v. Ciraolo, 476 U.S. 207, 211 (1986) (“The touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’”) (quoting Katz, 389 U.S. at 360 (Harlan, J., concurring)). Therefore their Fourth Amendment challenge to the Twitter Order fails.

Second, Petitioners do not have Fourth Amendment standing to object to the Twitter Order. They have not alleged a personal injury cognizable by the Fourth Amendment, nor have they been charged with any substantive offense based on information obtained as a result of the Twitter Order. No personal injury fairly traceable to the allegedly unlawful conduct has therefore been shown. See Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991); cf. Karo, 468 U.S. at 721 (“Because locating the ether in the warehouse was not an illegal search—and because the ether was seen being loaded into Horton’s truck, which then traveled the public highways—it is evident that under Knotts there was no violation of the Fourth Amendment as to anyone with or without standing to complain about monitoring the beeper while it was located in Horton’s truck.”); Rawlings v. Kentucky, 448 U.S. 98, 104-05 (1980); Rakas v. Illinois, 439 U.S. 128, 148-50 (1978). Without a reasonable expectation of privacy in the subject information, therefore, Petitioners are not entitled to challenge the Twitter Order on Fourth Amendment grounds. Cf. Rakas, 439 U.S. at 149-50; Rawlings, 448 U.S. at 105-06.

. . .

The peculiar nature of electronic data is a further consideration. Electronic evidence poses an even greater danger of destruction or concealment than does traditional physical evidence. As the courts are discovering, electronic evidence can be overwritten, transferred, or expunged with little to no human effort, and if performed by a competent expert, may leave little trace that it ever existed. See, e.g., Zubulake v. UBS Warburg LLC (Zubulake IV), 220 F.R.D. 212, 214, 214 n.2 (S.D.N.Y. 2003). Surprise in the execution of a § 2703 order may therefore be even more important than speed. What the Supreme Court has said about search warrants is especially true of § 2703 orders: “The danger is all too obvious that a criminal will destroy or hide evidence or fruits of his crime if given any prior notice.” Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679 n.14 (1974) (affirming post-seizure notice and hearing in civil forfeiture action). In this respect, § 2703 orders are more like search warrants than grand jury subpoenas. Cf. In re Subpoena Duces Tecum, 228 F.3d 341, 348 (4th Cir. 2000) (discussing practical distinctions between search warrant and grand jury subpoena).

H/T to eff.org for the link to the opinion. See Privacy Loses in Twitter/Wikileaks Records Battle.

Permalink 12:58:54 pm, by fourth, 372 words, 3067 views   English (US)
Categories: General

TN: Blue lighting a car was a stop, here without RS

Blue lights to stop a car is a seizure, here on a mere hunch and not with reasonable suspicion, and the stop is suppressed. State v. Moats, 2011 Tenn. Crim. App. LEXIS 817 (November 8, 2011):

Under the authority of [State v. Williams, 185 S.W.3d 311 (Tenn. 2006)], it is clear that Sergeant Bige seized the defendant the moment she activated her emergency lights because the use of the lights was a show of authority and a reasonable citizen would not have felt free to leave. See id. at 317. She was not performing a community caretaking function because, as she testified, there was no indication that the defendant needed assistance nor was there any other evidence that she needed to activate the lights for safety reasons. Additionally, Sergeant Bige had no reasonable suspicion of illegal activity. She testified that she thought it was strange that a truck was parked in the grocery store parking lot near 2:00 a.m. with its lights on. Essentially, she had an “inchoate and unparticularized suspicion or hunch,” which does not rise to the level of reasonable suspicion. Terry, 392 U.S. at 27. Without reasonable suspicion, her seizure of the defendant violated the constitutional prohibition against unreasonable seizures. Therefore, we conclude that the evidence does not support the trial court's findings and reverse the trial court's determination that the officer did not seize the defendant without reasonable suspicion when she activated her emergency lights.

Defendant’s car was stopped for a traffic offense, and, because of excessive tinting, the officer could not see into the back seat. A gun was in plain view sticking out from under the seat, and defendant admitted there was another gun in the car. The entry into the car was valid for officer safety. “The Court believes this course of action to be reasonable under the totality of the circumstances. Whether a search is reasonable ‘is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” United States v. Knights, 534 U.S. 112, at 118-19, 122 S. Ct. 587, 151 L. Ed. 2d 497 (internal quotation marks omitted).” United States v. Vicente-Lucas, 826 F. Supp. 2d 422 (D. P.R. 2011).*

Permalink 12:34:41 pm, by fourth, 219 words, 2876 views   English (US)
Categories: General

D.Del.: RS based in part on another man's flight

Officers had reasonable suspicion from defendant being in a high crime area and not complying with officers’ directions and another man fled. United States v. Smullen, 2011 U.S. Dist. LEXIS 130143 (D. Del. November 9, 2011)*:

Considering this authority against the totality of the circumstances of record, the court finds that Smith's stop of defendant was supported by reasonable suspicion. In so doing, the court credits Smith's testimony and concludes it was reasonable to infer that defendant was engaged in criminal activity and posed a danger to officer safety based on: (1) defendant's evasive actions after learning that O[peration] S[afe] S[treets] officers requested entry to the residence; (2) defendant's noncompliance with OSS' request; (3) defendant's immediate exit from the back of the residence via the fire escape staircase instead of the front door; (4) defendant's stuttering and shaking when confronted on the fire escape staircase by Smith; (5) Smith was alone in the dimly lit backyard in an area fraught with crime; (6) Smith did not recognize defendant; and (7) defendant (an unidentified male to Smith) was fleeing the residence and descending steps leading to Smith.

The testimony supports the USMJ’s conclusion that the officer was credible on defendant consenting. United States v. Starling, 2011 U.S. Dist. LEXIS 130121 (N.D. W.Va. November 9, 2011), R&R 2011 U.S. Dist. LEXIS 130119 (N.D. W.Va. October 14, 2011).*

Permalink 12:22:14 pm, by fourth, 668 words, 2999 views   English (US)
Categories: General

W.D.Wash.: SW based on German report from activity 20 months earlier was a general warrant

A search warrant of defendant’s computer 20 months after a single instance of alleged downloading of child pornography based on a report from German authorities resulted in a general search in violation of the Fourth Amendment. ICE elected to use a state search warrant here to avoid Comprehensive Drug Testing. United States v. Schesso, 842 F. Supp. 2d 1292 (W.D. Wash. 2011):

Review of this search warrant is further guided by United States v. Tamura, 694 F.2d 591 (9th Cir. 1982) and U.S. v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th 2010)(CDT III). In CDT III the Court stated that “[t]he point of the Tamura procedures is to maintain the privacy of materials that are intermingled with seizable materials, and to avoid turning a limited search for particular information into a general search of office file systems and computer databases. If the government can’t be sure whether data may be concealed, compressed, erased or booby-trapped without carefully examining the contents of every file—and we have no cavil with this general proposition—then everything the government chooses to seize will, under this theory, automatically come into plain view.” CDT III, at 1170-71. “This would make a mockery of Tamura and render the carefully crafted safeguards in the Central District warrant a nullity.”Id., at 1171. In concluding remarks the Court in CDT III stated: ...

With these principles in mind, a review of the application for the search warrant demonstrates that it did not support probable cause for the issuance of a general warrant for the search and seizure of any electronic storage devices for evidence of child pornography crimes. The generalized statements regarding cybercrime and pornography collector profiles do not demonstrate that Schesso had some proclivity or likelihood of committing crimes other than the particular crime(s) described in the single incident of file sharing that occurred on October 20, 2008, particularly when the warrant was not sought for some 20 months after the date of the alleged crimes. The application for the search warrant does not support a warrant for the search and seizure of any and all electronic storage devices found at Schesso’s residence in order to comb through these devices to determine what other crimes may have been committed. The application did not justify a generalized search in this case. The affidavit simply does not support the warrant. The warrant is facially deficient. To rule to the contrary would be to say that if any person ever had a child pornography file or made such a file available to download on a peer-to-peer network, that person is subject to a general search of all of that person’s computer-related equipment without reference to the particular crime or crimes that are known to law enforcement. That is not a reasonable search under the Fourth Amendment, as that amendment has been interpreted and applied by the courts, and in particular interpreted and applied most recently by the Ninth Circuit in CDT III. See also Dkt. 88 pp. 54-59.

The constitution forecloses unlimited computer searches based on this type of seize-it-all-and-sort-it-out-later warrant that was obtained in this case. This was a general warrant, not justified or supported by the affidavit, and was facially deficient.

The good faith exception did not apply:

The good faith exception is inapplicable in the context of this action where the overbroad warrant is so facially deficient that reliance on it is not reasonable. See United States v. Kow, 58 F.3d 423, 428-29 (9th Cir. 1995); U.S. v. Spilotro, 800 F.2d 959, 968 (9th Cir. 1986); United States v. Washington, 782 F.2d 807, 819 (9th Cir. 1986); U.S. v. Crozier, 777 F.2d 1376, 1381-82 (9th Cir. 1985). This is particularly true where the agents knowingly opted to seek a forum that might accept a less particular and specific warrant than a federal magistrate would require (see Dkt. 74 at 5).

The warrant in this case is so broad and deviates so far from well-established Fourth Amendment standards that the searches based on that warrant cannot be defended on the basis of good faith. Exclusion of the evidence is appropriate.

Permalink 12:02:12 pm, by fourth, 198 words, 2981 views   English (US)
Categories: General

CA2: Entry into house here for child protection was based on necessity and exigency

The warrantless entry here did not violate plaintiff’s Fourth Amendment rights because the objective circumstances at the time could cause a reasonable officer to believe that there were exigent circumstances requiring prompt entry. Prior to entering the house, officers were told that plaintiff was armed and dangerous and a convicted felon wanted for weapons and drug violations, there was a documented history of substantiated DCF involvement with plaintiff’s seven-year-old step-daughter, that an earlier search resulted in the seizure of guns and drugs accessible to children, and that DCF wanted to remove the child due to concerns about her health, welfare, and safety. Thus, it was objectively reasonable to believe that plaintiff may have been at the residence and that he posed a threat to the child as well as the DCF worker conducting the welfare check, so entry was justified by exigent circumstances and the officers were entitled to qualified immunity. Montanez v. Sharoh, 444 Fed. Appx. 484 (2d Cir. 2011).*

Officer entered plaintiff’s property on a “civil standby” where he didn’t read the order and the order did not permit an entry. The entry thus violated the Fourth Amendment. Osborne v. Seymour, 164 Wn. App. 820, 265 P.3d 917 (2011).*

Permalink 11:46:12 am, by fourth, 372 words, 3092 views   English (US)
Categories: General

CA4: Entry onto property from side to look in window on a domestic disturbance call was not unreasonable

An officer did not violate the Fourth Amendment by coming up to property the subject of a 911 domestic disturbance call from the side and looking in a broken window seeing a gun. United States v. Moore, 453 Fed. Appx. 401 (4th Cir. 2011) (unpublished):

Here, Ayers was responding to a 911 call indicating that there was a domestic disturbance ongoing at Moore’s residence. Although another police officer had already responded to and resolved the incident, the officer had not alerted police dispatchers, and Ayers arrived on the scene, believing himself to be the first officer to respond. At the suppression hearing, Ayers testified that he approached the residence from the side, rather than proceeding to the front door, for his own safety, and decided to investigate further after seeing a broken window and hearing voices from inside. We conclude that Ayers’s action in proceeding to the side of the home and looking inside was not “so incompatible with the scope of [his] original purpose that any evidence inadvertently seen by [him] must be excluded as the fruit of an illegal search.” United States v. Anderson, 552 F.2d 1296, 1300 (8th Cir. 1977) (citing United States v. Bradshaw, 490 F.2d 1097, 1100 (4th Cir. 1974)).

“It is a hallmark of Fourth Amendment jurisprudence that the possibility of a threat to the safety of law enforcement officers may constitute exigent circumstances justifying a warrantless search or seizure.” United States v. Legg, 18 F.3d 240, 244 (4th Cir. 1994); see also Bellotte v. Edwards, 629 F.3d 415, 422-23 (4th Cir. 2011) (listing cases addressing the justification for no-knock entries that speak primarily in terms of threats or danger to officer safety). “For police officers successfully to assert the exigent circumstances doctrine, they need only possess a reasonable suspicion that such circumstances exist at the time of the search or seizure in question.” Figg v. Schroeder, 312 F.3d 625, 639 (4th Cir. 2002) (internal quotation marks omitted). Courts should not “engage in unreasonable second-guessing of the officers’ assessment of the circumstances that they faced.” Id. (internal quotation marks omitted). We have reviewed the record and conclude that the officers were justified in entering the home when Ayers observed one of Moore’s companions pointing a firearm at the front door where other deputies stood. Indeed, they acted entirely reasonably under the circumstances.

Permalink 08:37:42 am, by fourth, 145 words, 2941 views   English (US)
Categories: General

ChiTrib: "Lawmakers define protections from police entry"

Chicago Tribune: Lawmakers define protections from police entry by Tom LoBianco:

INDIANAPOLIS — Richard Barnes may have started a constitutional furor in 2007 when he shoved a police officer against the wall of his apartment. But he would not have benefitted from a new set of rules Indiana lawmakers are drafting in response to the incident.

A legislative study committee voted Thursday to advance new guidelines on police entry to the full General Assembly when it reconvenes in January. Indiana residents would be able to use force to prevent police from entering their homes in a handful of instances if the Legislature approves the recommendations.

The Indiana Supreme Court sparked an uproar when it ruled in May that homeowners cannot violently resist police officer's entry into their homes. The justices later clarified their ruling does not abridge Fourth Amendment rights.

See prior posts on Barnes starting here.

Permalink 03:58:10 am, by fourth, 73 words, 3155 views   English (US)
Categories: General

DOJ Computer Search Manual updated

I've updated the link to Searching & Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations on the DOJ website.

This "new" publication has been out for two years, but I haven't been to it for a while. The prior edition was from 2002, and it was quite helpful. The case law really exploded between 2002 and 2009, so the update should be quite useful. This is an excellent resource for both sides of the table.

11/10/11

Permalink 09:38:42 am, by fourth, 134 words, 3053 views   English (US)
Categories: General

Politico.com: "Claire McCaskill: TSA pat-downs 'get ugly'"

Politico.com: Claire McCaskill: TSA pat-downs 'get ugly':

Now that she’s sold her private jet, Sen. Claire McCaskill is airing her grievances about flying commercial.

The Missouri Democrat told Transportation Security Administration chief John Pistole on Wednesday that she is an “expert” on commercial air travel, and that with her artificial knee, she tries her hardest to avoid what she calls “unbelievably invasive” pat-downs in favor of the Advanced Imaging Technology scanning machines.

McCaskill keeps an eye out for one TSA agent in particular. “When I see her, I tense up. Because I know it’s going to get ugly,” the senator said at a Commerce Committee hearing, noting she often arrives at checkpoints to see the machines unstaffed. Rather than wait, she submits to pat-downs, of which she’s not a fan.

Permalink 09:22:06 am, by fourth, 231 words, 3152 views   English (US)
Categories: General

A “taser” is an improper use of “Taser”; to “Tase” probably is now a word

Taser is a proper noun. www.Taser.com. To “tase” or to use a “taser” requires that Taser be capitalized. I’ll give that Tase is now a word, as in “don't Tase me, bro.”

Three uses of little-T taser as a noun in the last nine days:

“After removing the other occupants from the home, the officers used a taser in an attempt to subdue Sandberg, which proved tragically ineffective.” Sandberg v. City of Torrance, 456 Fed. Appx. 711 (9th Cir. 2011) (unpublished)

“Evans was tased and removed from the car.” People v. Evans, 200 Cal. App. 4th 735, 133 Cal. Rptr. 3d 323 (2d Dist. 2011)

“Deputy Chavarria also testified he removed and displayed his taser gun while entering the apartment ‘because at that point, I wanted compliance.’” Turrubiate v. State, 2011 Tex. App. LEXIS 8895 (Tex. App. — San Antonio November 9, 2011)

No case this month has used Taser properly.

It’s like “Kleenex”; a proper noun. I heard in law school that “aspirin” was once, and “Xerox” fought to protect its trademarked name. Taser may not care, and would it prefer become generic so everybody will buy theirs?

On a side note, in the local legal newspaper, our version of “big law” does a weekly article on an Eighth Circuit case which is probably longer than the original opinion. They mentioned “taser” but their spell checker made it “taster,” probably because “taser” isn’t in “big law’s” vocabulary.

Permalink 08:43:52 am, by fourth, 290 words, 2916 views   English (US)
Categories: General

TX4: Taser pointed at face and officer pushing way in was not consent

The state failed to show consent for entry where the officer pointed a Taser in her face and pushed his way in. Turrubiate v. State, 2011 Tex. App. LEXIS 8895 (Tex. App. — San Antonio November 9, 2011) (dissent)*:

In this case, the record as it existed at the time of the suppression hearing is particularly scant. In fact, the record before this court indicates that all the trial court had before it at the time of the hearing was appellant’s motion to suppress, appellant’s testimony, and the arresting officer’s police report. Appellant testified that on February 11, 2010, Christopher Lopez, an investigator for Child Protective Services, knocked on appellant’s front door while Deputy Santos Chavarria, a sheriff’s officer with the Bexar County Sheriff’s Office, “hid[] from out of sight ... of the peephole.” Appellant testified that when he “barely cracked open the door[],” Deputy Chavarria “pushed his way in with his hand, pointing his taser gun in my face, saying to turn around and put my hands behind my back. ... And he put me in handcuffs and sat me down.” At that point, appellant testified he gave Deputy Chavarria consent to search in a blue backpack nearby. Deputy Chavarria found a bag of marijuana inside the backpack and placed appellant under arrest.

The State, which had the burden of proving a lawful entry and search, did not call Deputy Chavarria to testify during the hearing, but rather produced only his report, which contained the following handwritten statement: ....

A car was stop after a suspected hand-to-hand buy, and they gave up defendant. That was probable cause for a warrant. Even if their stop was unconstitutional, defendant cannot claim an injury from that. State v. Dingess, 2011 Ohio 5659, 2011 Ohio App. LEXIS 4648 (10th Dist. November 3, 2011).*

Permalink 08:06:02 am, by fourth, 157 words, 2946 views   English (US)
Categories: General

CA6: Qualified immunity for overseizure of stolen property under SW

Defendant officer had qualified immunity for probable cause for a search warrant that described stuff from two burglaries, but actually described nineteen. “The fact that officers can seize items not listed in a warrant also makes Wirth’s reliance on the allegedly defective warrant in this case reasonable. We have held that ‘even evidence “not described in a search warrant may be seized if it is reasonably related to the offense which formed the basis for the search warrant.”’” Wheeler v. City of Lansing, 660 F.3d 931 (6th Cir. 2011).

The driver of the car with the keys who asserted control over the car had common authority to consent to a search of the car. United States v. Scott, 2011 U.S. Dist. LEXIS 128664 (W.D. Mo. November 7, 2011).*

An officer investigating hunting with a firearm during archery season had reasonable suspicion when he encountered defendant with a gun. United States v. Weatherford, 2011 U.S. Dist. LEXIS 129349 (N.D. Ind. November 8, 2011).*

Permalink 07:48:18 am, by fourth, 310 words, 2953 views   English (US)
Categories: General

CA6: “Consent once removed” applies only to entries, not reentries; animal control entries stated a claim

“Consent once removed” applies only to entries, not reentries. Plaintiff also stated a due process claim for animal control officers entering the property to take animals, plant microchips in them, and then require plaintiff to pay $1,000 to get the dogs back. A Fourth Amendment claim for the reentry. O’Neill v. Louisville/Jefferson County Metro Gov’t, 662 F.3d 723 (6th Cir. 2011):

Akinsanya and Diaz, however, do not stand for the general proposition that achieving “one consensual entry” permits “law enforcement agents [to] thereafter enter and exit a home at will.” Diaz, 814 F.2d at 459. Both were drug cases in which the purpose of the undercover agent’s or informant’s exit was to immediately summon officers to help effectuate an arrest. See Akinsanya, 53 F.3d at 855-56; Diaz, 814 F.2d at 459. Those circumstances distinguish Akinsanya and Diaz from this case, where the backup LMAS officers did not—after the undercover officers exited—rush in to help effectuate an arrest. They instead knocked on the O’Neills’ door to request proof of a “breeder’s license,” carried on a discussion with the O’Neills about the need for such a license, and entered only after the O’Neills specifically objected to their coming into the residence.

. . .

Applying the consent-once-removed doctrine to the LMAS officers’ second entry, where no arrest was intended, would go well beyond the confines of this limited doctrine, which has yet to be adopted by the Supreme Court. See Pearson v. Callahan, 555 U.S. 223, 243-44, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009) (declining to rule on whether the consent-once-removed doctrine is constitutional by instead resolving the issue of qualified immunity on the basis that no clearly established law was violated). We therefore conclude that the O’Neills have sufficiently pleaded a Fourth Amendment violation based on the second warrantless entry.

Law.com: Dog owners have their day at 6th Circuit.

11/09/11

Permalink 01:32:49 pm, by fourth, 144 words, 3276 views   English (US)
Categories: General

Good lawyering exposes police perjury in a pot search case

Philly.com: Video of pot bust spotlights lapses by police by Nathan Gorenstein:

It looked like an open-and-shut case. A cop pulls over a car, walks up to the driver's door, and sees a plastic baggy of marijuana. He brings in a drug-sniffing dog to prove probable cause for a search, gets a warrant, and finds a kilo of weed in the trunk.

That's what Officer Steven Lupo put in his report and testified to in Philadelphia Municipal Court.

Then defense attorney Michael Diamondstein produced the video.

Turned out reality was different.

The video taken from nearby surveillance cameras contradicted key facts in Lupo's report and sworn testimony. Most crucially, Lupo and an unidentified supervisor are seen rummaging through the trunk hours before a warrant was issued. On the witness stand just moments before the video was played, Lupo emphatically denied that had occurred.

Permalink 12:12:28 pm, by fourth, 210 words, 2984 views   English (US)
Categories: General

ABAJ.com: "Prosecutor Served Search Warrant on Defense Lawyer During Trial to Get His Documents"

ABAJ.com: Prosecutor Served Search Warrant on Defense Lawyer During Trial to Get His Documents by Martha Neil:

In a San Antonio courtroom packed with lawyers attending as spectators, a Texas prosecutor testified today that she had a search warrant served on opposing counsel and his client during a trial in an embezzlement case early this year. The reason why was because she feared he was withholding stolen documents from the government.

Defense lawyer Tony Reyes was representing Kathleen Kavooras Pierce, a hair salon worker who was accused of embezzling from her former employers. Pierce was convicted and is now, represented by another attorney, seeking a new trial due to the mid-trial execution of the search warrant, reports the San Antonio Express-News.

I testified in that case two weeks ago as an expert on legal ethics and the law of search and seizure that everybody screwed this up: the trial judge, the defense lawyer, and the District Attorney. The warrant could have waited because they knew defense counsel had been coming and going with the records, they could have executed it at the end of the day, if not the end of the trial, the trial judge should have monitored this better, defense counsel finished the trial without even objecting.

Permalink 11:56:13 am, by fourth, 157 words, 2930 views   English (US)
Categories: General

Networld: "4th Amendment vs Virtual Force by Feds, Trojan Horse Warrants for Remote Searches?"

4th Amendment vs Virtual Force by Feds, Trojan Horse Warrants for Remote Searches? by Ms. Smith

If you missed part one, Fourth Amendment's Future if Gov't Uses Virtual Force and Trojan Horse Warrants, then please go catch up with the rest of us. This time we'll look at Remote Access Trojans (RAT) which are nothing new, yet assume that this government-injected malware/spyware was not detected by antivirus. Also in this case, we are not assuming the target is a SE (social engineering) victim who opens an email or clicks on a link that installs the backdoor into their digital life. This isn't about if I agree or if I think that sort of privacy invasion is right (if you are wondering, then you've never read this blog huh?); this is about an interesting paper that discussed if the government/law enforcement can legally get around your Fourth Amendment rights and secretly install software for remote searches.

Permalink 08:46:34 am, by fourth, 132 words, 2915 views   English (US)
Categories: General

Volokh: Kerr on Jones

Volokh Conspiracy: Reflections on the Oral Argument in United States v. Jones, the GPS Fourth Amendment Case by Orin Kerr:

I was at the Supreme Court this morning for the oral argument in United States v. Jones, the GPS case. In this post, I want to blog my reactions to the argument: I’m going to update the post as I go, so general readers can get the important stuff first at the top and then general readers can get the rest down the page.

1) My basic reaction was that the outcome was too close to call. The Justices gave both sides a very hard time, and few Justices tipped their hand. ...

Most commentators say the argument favored the citizen not the government. Go with this one because he's been there before.

11/08/11

Permalink 10:55:23 am, by fourth, 114 words, 2943 views   English (US)
Categories: General

WSJ: "Conservatives, Liberals Share Kumbaya Moment in GPS Case"

WSJ: Conservatives, Liberals Share Kumbaya Moment in GPS Case by Jess Bravin:

Today the case of whether the government can put a GPS tracker on someone’s car without a warrant comes before the Supreme Court. (Click here for our preview of the case.) One interesting aspect of the case is the way it scrambles the usual ideological lines, and lawyers battling the government have a two-track argument designed to appeal to different sides of the bench.

The lawyers for accused drug trafficker Antoine Jones, who had a GPS device put on his Jeep, say that the device violates Jones’s Fourth Amendment right against unreasonable searches and that his property rights were violated.

Permalink 07:43:50 am, by fourth, 164 words, 3022 views   English (US)
Categories: General

Doom and gloom of Jones; "Fear and Loathing" in SCOTUS

I woke up this morning with the ominous feeling: today is oral argument in the Jones case. If this case comes out for the government, it could be the technological death of the Fourth Amendment. If the government can track our cars by GPS and no warrant, then the next step logically would be to track any of us through our cell phones, with the limited exception maybe of inside the house.

Justice Scalia always looks to what the founding fathers would think, and I can’t help but think that they are rolling over in their graves at the possibility that the government can track us in real time as easily as planting device that transmits our whereabouts to a satellite then to a computer through the Internet.

Scalia “hop[es] the living Constitution will die,” and, with technology destroying so much of our privacy, that scares the hell out of me. I have no confidence in this Court where corporations > government > individuals.

Permalink 07:36:37 am, by fourth, 176 words, 2891 views   English (US)
Categories: General

TX2: State failed to show objective reasonable suspicion for detention

Based on the officer’s testimony alone, the court finds that the stop was without objective reasonable suspicion, and the motion to suppress as a result of his detention should have been granted. State v. Kerwick, 353 S.W.3d 911 (Tex. App.–Ft. Worth 2011).*

Defense counsel fully litigated the motion to suppress and appealed it, so there was no IAC. United States v. Clay, 2011 U.S. Dist. LEXIS 128305 (E.D. Ark. November 4, 2011).*

Testimony was submitted to a state trial judge for issuance of a search warrant, and the transcript of that application was submitted to the federal court in opposition to the motion to suppress. The court agrees that there was ample probable cause. United States v. Scott, 2011 U.S. Dist. LEXIS 128328 (D. N.D. November 4, 2011).*

Officer’s observations of a juvenile during a DWI arrest were not suppressible as “testimonial.” State v. Randy J., 150 N.M. 683, 2011 NMCA 105, 265 P.3d 734 (2011), Certiorari Denied, 269 P.3d 903 (N.M. 2011).*

Officer's smell of marijuana during a stop with other factors was reasonable suspicion. State v. Morris, 2011 S.C. App. LEXIS 320 (August 17, 2011).*

Permalink 07:23:46 am, by fourth, 356 words, 2977 views   English (US)
Categories: General

GA: Briefcase left in another house was not a waiver of the owner's expectation of privacy

Defendant’s briefcase was left at somebody else’s house, and defendant did not abandon it and he still had a reasonable expectation of privacy in it. The search of the briefcase was not based on an independent source. Wilder v. State, 290 Ga. 13, 717 S.E.2d 457 (2011):

1. Before examining the merits of the Fourth Amendment issue, we first address the argument that Wilder lacks standing to challenge the seizure of his briefcase because it was obtained from the home of a third party. Stated simply, “the assertion that [Wilder] is without standing to object to the seizure of his personal belongings is plainly wrong. [Cit.]” Mooney v. State, 243 Ga. 373, 374-375 (1) (254 SE2d 337) (1979) (appellant had standing to challenge seizure of his luggage from third party’s automobile), abrogated on other grounds by Horton v. California, 496 U.S. 128 (110 SC 2301, 110 LE2d 112) (1990). Though lacking standing to challenge a search of Malin’s premises, see, e.g., Brown v. State, 240 Ga. App. 321, 322, n.2 (1) (523 SE2d 333) (1999) (search of premises owned by third party does not implicate defendant’s Fourth Amendment rights), appellant does have standing to contest the seizure of his own personal property from the premises of another. Mooney v. State, supra at 374-375. Compare English v. State, 288 Ga. App. 436 (3) (654 SE2d 150) (2007) (no standing to challenge search of third party’s premises and seizure of stolen vehicle stored there by defendant).

. . .

This case presents a different scenario, in that it involves a single search, preceded only by an unlawful seizure, which yielded custody of the item ultimately searched rather than information giving rise to the eventual lawful search. Here, while the information on which the search warrant was based derived from a source wholly independent of the initial unlawful seizure, the search itself cannot be said to have been conducted independent of the seizure, as it was the seizure that in fact made possible the search that actually occurred. Accordingly, we simply cannot find that the evidence here was “discovered by means wholly independent of any constitutional violation.” Teal, supra, 282 Ga. at 323 (2). The Court of Appeals thus erred in affirming the trial court in its application of the independent source doctrine.

Permalink 07:10:27 am, by fourth, 316 words, 3032 views   English (US)
Categories: General

N.D.Ga.: Consent to search does not necessarily include consent to seize

Consent to search does not necessarily include consent to seize. United States v. Chappell, 2011 U.S. Dist. LEXIS 128113 (N.D. Ga. May 24, 2011):

Upon consideration, the undersigned finds [United States v. Tatman, 615 F.Supp.2d 644, 690 (S.D.Ohio. 2008)] persuasive and holds that the waiver of privacy rights under the Fourth Amendment through a consent to search does not act as a separate waiver of possessory rights under the Fourth Amendment. Therefore, a mere consent to search, without more, does not amount to a consent to seize. Horton, 496 U.S. at 133.

. . .

The government contends that the consent authorized the agents to seize all of the items because they were "of potential evidentiary value as to the charges against the Defendant, i.e., the sex trafficking of a child." [Doc. 36, at 8]. However, to preserve the distinction between possessory and privacy rights, the consent to seize inferred from a consent to search must be no more than what is "inherently necessary to effect that search." Andracek, 2007 WL 1575355 at *6 (emphasis added) (consent to seize a computer inferred from consent to search the computer does not extend to the removal of the computer from the Defendant's premises, finding that the off-premises search was not necessary to the search of the hard drive). Applying the Andracek limitation to the Strickland inquiry, the undersigned concludes that the scope of a consent to seize which reasonably may be inferred from a general consent to search is the minimum level of seizure which an objective person would have believed to be necessary to effectuate such a search. Andracek, 2007 WL 1575355 at *6; see Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct. 1801 (1991) (scope of consent determined by "objective reasonableness" under the circumstances). Otherwise, to hold that a consent to search would authorize the seizure of property beyond what is reasonably necessary to effectuate the search would obliterate the distinction between the privacy and possessory interests protected under the Fourth Amendment.

Permalink 06:19:22 am, by fourth, 571 words, 2950 views   English (US)
Categories: General

OH2: Unlawful stop means search incident to warrant found has to be suppressed

An unlawful stop makes unconstitutional an arrest on a warrant found during the stop. If the law were otherwise, police would have motive to unconstitutionally stop people just to run warrants on them. State v. Gardner, 2011 Ohio 5692, 2011 Ohio App. LEXIS 4668 (2d Dist. November 4, 2011):

[*P27] “To hold otherwise would result in a rule that creates a new form of police investigation, whereby an officer patrolling a high crime area may, without consequence, illegally stop a group of residents where he has a ‘police hunch’ that the residents may: 1) have outstanding warrants; or 2) be engaged in some activity that does not rise to a level of reasonable suspicion. Despite a lack of reasonable suspicion, a well-established constitutional requirement, the officer may then seize those individuals, ask for their identifying information (which the individuals will feel coerced into giving as they will have been seized and will not feel free to leave or end the encounter), run their names through a warrant database, and then proceed to arrest and search those individuals for whom a warrant appears. Under this scenario, an officer need no longer have reasonable suspicion on probable cause, the very crux of our Fourth Amendment jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); [United States v.] Williams [2010], 615 F.3d [657] at 670, n. 6 (‘[Allowing information obtained from a suspect about an outstanding warrant to purge the taint of an unconstitutional search or seizure would have deleterious effects. It would encourage officers to seize individuals without reasonable suspicion-not merely engage them in consensual encounters-and ask them about outstanding warrants.’); see, also, Kimberly, Discovering Arrest Warrants: Intervening Police Conduct and Foreseeability, 118 Yale L.J. 177 (2008) (commenting that a rule where the discovery of an outstanding warrant constitutes an intervening circumstance has the perverse effect of encouraging law enforcement officials to engage in illegal stops where they have an inarticulable hunch regarding a person on the street or in a car).” Gross, [United States v. Gross, 624 F.3d 309 (6th Cir. 2010)] supra, at 321-22.

. . .

[*P37] Whether viewed as lack of proximate cause or as attenuation, there is a point, albeit perhaps ultimately subjective, at which the discovery of a warrant, and a search incident to arrest under the warrant, is so removed, unrelated, unforseen, and independent from the unlawful stop and seizure that the exclusionary rule is not applicable. In the case before us, the warrant was discovered as a direct, proximate and non-attenuated result of Gardner’s seizure.

[*P38] In summary, Gardner had a reasonable expectation of privacy at the time of the stop despite there being a warrant for his arrest. Once the warrant was discovered, the law enforcement officers had the right to infringe upon that expectation, arrest him, and conduct a search incident to that arrest. However, if the warrant was discovered as a result of an unlawful stop or seizure (unless its discovery was unconnected to and attenuated from the illegality), then any evidence seized in the search incident to the arrest must be suppressed.

[*P39] We cannot tell from the record exactly when and how the officers discovered Gardner’s name or that there was a warrant; whether the court found facts justifying — or not justifying — a Terry patdown; or whether, if such a patdown were justified, whether the seizure of the drugs was within the plain feel exception. We will reverse the judgment and remand the case to the trial court for further proceedings consistent with this opinion.

11/07/11

Permalink 08:51:52 am, by fourth, 152 words, 3047 views   English (US)
Categories: General

OH2: State failed to prove exigency to dispense with BAC level in DUI case

The trial court’s finding that state failed to show exigent circumstances to dispense with a warrant for blood is supported by the record. The officer was at the scene within a minute of the occurrence and had three hours to get the blood by statute. State v. Rawnsley, 2011 Ohio 5696, 2011 Ohio App. LEXIS 4662 (2d Dist. November 4, 2011).*

Defendant contended that the person granting consent was deaf and mentally retarded, but the trial court as finder of fact disagreed finding that she could hear without hearing aids and she was not retarded at all because she “demonstrated ample mental sophistication on the witness stand. Therefore, this [c]ourt determined that Ms. Cape was mentally and physically capable of giving legal consent to search.” Commonwealth v. Reese, 2011 PA Super 235, 31 A.3d 708 (2011).*

Because the officer had reasonable suspicion for the PBT it was reasonable and separate consent was not required. State v. Therrien, 2011 VT 120, 38 A.3d 1129 (2011).*

Permalink 08:37:30 am, by fourth, 181 words, 2966 views   English (US)
Categories: General

KY clarifies “inadvertent discovery” requirement of the plain view doctrine is not a requirement

The Kentucky constitution is not applied differently than the Fourth Amendment, so the “inadvertent discovery” requirement of the plain view doctrine is not a requirement. When a computer was the object of the search, a computer bag was plain view. Chavies v. Commonwealth, 354 S.W.3d 103 (Ky. 2011):

The laptop and lights were in plain view. Chavies argues the computer and lights themselves were not visible because the computer was in a laptop bag, and the lights were in a box. We disagree. Hurley said Chavies took lights packaged in a box and a computer. Police saw in Chavies’s car the original packaging for the lights, as Hurley described, and a laptop bag. It is sufficient that the police saw a laptop bag in the car. Police did not have to see the laptop itself as long as they had probable cause to believe the laptop bag was stolen or contained a stolen computer.

The incriminating nature of the evidence was immediately apparent. Where the nature of the evidence is not inherently criminal, probable cause of its incriminating nature is necessary. ...

Permalink 08:35:19 am, by fourth, 197 words, 2916 views   English (US)
Categories: General

IN: Search warrant for “any and all vehicles involved with the property” was general as applied to a vehicle leaving

Search warrant authorized a search for “any and all vehicles involved with the property.” Defendant got into a car parked outside and left and was stopped by officers. The warrant was a general warrant as to vehicles for not requiring nexus to the property. Lee v. State, 956 N.E.2d 758 (Ind. App. 2011):

In this case, neither the warrant nor the affidavit in support thereof described the vehicles to be searched; detailed the vehicles’ connection to any criminal activity; or indicated the specific locations of the vehicles with any specificity to be searched. Given the vague language of the warrant, which clearly gave officers discretion in determining which vehicles to search, we find the portion of the warrant allowing for the search of vehicles to be invalid. Accordingly, all evidence seized pursuant to the invalid language, but only pursuant to the invalid language, must be suppressed. See Warren v. State, 760 N.E.2d 608, 610 (Ind. 2002) (holding that “catchall language does not doom the entire warrant, ... but rather only requires the suppression of the evidence seized pursuant to that part of the warrant but not the suppression of the evidence obtained pursuant to the valid specific portions of the warrant”).

Permalink 08:16:00 am, by fourth, 261 words, 3031 views   English (US)
Categories: General

M.D.Tenn.: Gant not retroactive to forfeiture action either

Gant was not retroactive for a forfeiture action, either. United States v. $164,705.00 United States Currency, 2011 U.S. Dist. LEXIS 127687 (M.D. Tenn. November 3, 2011).*

Under Washington law, however, a defendant who did not challenge his search incident under Gant because the hearing was before Gant was decided could still raise it on appeal. Remanded. State v. Johnson, 164 Wn. App. 486, 273 P.3d 446 (2011).*

Summary judgment was properly granted the police officers for the Terry search of defendant’s person for a gun. They had articulable reasonable suspicion defendant was armed. Spears v. Leporace, 449 Fed. Appx. 187 (3d Cir. 2011) (unpublished).*

The defendant relied on the police reports to show that the officers did not believe that they had probable cause at the time of the stop, but the court finds probable cause despite the fact one officer said “detained” and another said “arrested.” United States v. Vazquez-Silva, 2011 U.S. Dist. LEXIS 127939 (D. Idaho November 4, 2011)*:

The defense also argues that the distinction between the officers' reports as to whether Mr. Vazquez was detained or arrested is critical. The defense contends the officers' behaviors at the time of the traffic stop suggest they had not yet determined whether or not he had any involvement in the drug transaction yet and were trying to figure out if there was any evidence they could use, even from the house, to link him to the case. The point being that at the time of his arrest there wasn't sufficient probable cause for him to have been arrested, asked incriminating questions, and his property, including the Jetta, searched. The Court finds otherwise.

Permalink 07:44:24 am, by fourth, 352 words, 3218 views   English (US)
Categories: General

CA4: Welsh does not prohibit warrantless entries to arrest for DUI; it is based on penalty for offense

Welsh did not categorically hold that a warrantless entry for DUI was unreasonable, and the circuits have split on the issue, so the officer gets qualified immunity. Cilman v. Reeves, 452 Fed. Appx. 263 (4th Cir. 2011) (unpublished):

Contrary to the district court’s contention, Welsh does not establish a categorical rule that police may never make a warrantless entry into a home to effect an arrest for driving under the influence. The Welsh Court held only that, because Wisconsin treated a DUI as a civil non-jailable offense for which the maximum penalty was a fine of $200, no exigent circumstances justified the warrantless entry at issue there. Welsh, 466 U.S. at 753-54. The Court emphasized that “the penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State’s interest in arresting individuals suspected of committing that offense.” Welsh, 466 U.S. at 754 n.14; see also id. at 754 (“[The penalty] is the best indication of the State’s interest in precipitating an arrest.”).

Although the Supreme Court later observed that “Welsh drew a distinction between jailable and nonjailable offenses, not between felony and misdemeanor offenses,” Illinois v. McArthur, 531 U.S. 326, 335-36 (2001), in Welsh itself, the Court left open the possibility that the Fourth Amendment could impose a wholesale ban on warrantless home arrests for minor offenses. Welsh, 466 U.S. at 749 n.11 (“Because we conclude that, in the circumstances presented by this case, there were no exigent circumstances sufficient to justify a warrantless home entry, we have no occasion to consider whether the Fourth Amendment may impose an absolute ban on warrantless home arrests for certain minor offenses.”). We need not here determine the exact parameters of the rule set forth in Welsh because even if Officer Reeves did violate Cilman’s Fourth Amendment rights, those rights were not “clearly established.”

No controlling Supreme Court or Fourth Circuit precedent speaks to a person’s right to be free from a warrantless entry into his home in circumstances like those in the case at hand. Numerous out-of-circuit cases do address this issue, but courts have divided on this question. ...

Permalink 06:54:01 am, by fourth, 97 words, 3009 views   English (US)
Categories: General

Volokh: "Panel on United States v. Jones, the Fourth Amendment GPS Case"

Volokh Conspiracy: Panel on United States v. Jones, the Fourth Amendment GPS Case by Orin Kerr:

A few weeks ago, I participated on a panel about United States v. Jones, the GPS case, at William & Mary Law School. The panel featured Steve Leckar, who will be arguing the case for Jones; Melanie Wilson, a criminal procedure professor at the University of Kansas (visiting at W&M); and Paul Marcus of W&M. The video has just been posted, and it’s here for those interested. The oral argument in Jones will be on Tuesday.

11/06/11

Permalink 08:50:36 am, by fourth, 206 words, 2964 views   English (US)
Categories: General

KY: No constitutional tort against hospital for stripping and removal of body fluids at request of police

Kentucky refuses to recognize a new constitutional tort against a hospital and its employees conducting a strip search and removal of bodily fluids at the request of the police. St. Luke Hosp. v. Straub, 354 S.W.3d 529 (Ky. 2011)*:

We granted discretionary review to consider whether an individual may bring a civil action for money damages under Kentucky Revised Statutes (KRS) 446.070 on the basis of an alleged violation of a provision of the Kentucky Constitution. In addition to traditional common law tort claims, Shannon Straub made a claim for money damages based upon the alleged violation of her substantive due process interests under the Kentucky Constitution. Straub alleges that St. Luke Hospital, some of its nurses and security guards, and the emergency room physician acted under the direction of a city police officer to violate her due process interests by forcibly restraining her, stripping and gowning her, and extracting blood and urine samples from her without her consent, the consent of a parent, or a court order.

We hold that an action for money damages under KRS 446.070 is not available for alleged constitutional violations, and we decline Straub's invitation to create judicially a new constitutional tort in Kentucky because adequate remedial alternatives exist in the common law.

Permalink 08:37:40 am, by fourth, 162 words, 2890 views   English (US)
Categories: General

D.N.M.: Gov't showed enough to get a deposition of child victim because of risk of nonappearance; suppression hearing reopened

While the court has granted the government’s motion to reopen the suppression hearing, the government has moved for a deposition of the alleged child victim in this case who is residing in a “secure educational institution” who has a substantial risk of nonappearance at the trial. Granting depositions are not done lightly in the federal system, and defendant will be able to participate and cross-examine and it will be taken in the courthouse. The testimony is for trial. United States v. Christy, 2011 U.S. Dist. LEXIS 127235 (D. N.M. September 21, 2011).*

The officer had reasonable suspicion but didn’t need it during a traffic stop to ask for consent to search. Defendant also did not have a right to Miranda warnings before being asked for consent. State v. Lara, 78 So. 3d 159 (La. App. 2d Cir. 2011).*

Defendant was stopped for a traffic offense, and the smell of marijuana was sufficient to continue the detention. Williams v. State, 356 S.W.3d 508 (Tex. App.—Texarkana 2011).*

Permalink 08:06:57 am, by fourth, 123 words, 2881 views   English (US)
Categories: General

AR: Challenging only one of two grounds for search relied on by trial court won't get reversal

Challenging a search on appeal on only one ground where two were relied on by the trial court can’t result in reversal because the other ground was waived and becomes sufficient. Thomas v. State, 2011 Ark. App. 637, 386 S.W.3d 536 (2011).*

Officers had a search warrant for defendant’s car and discovery of photographs useful in a health care fraud case were found in the car, and their evidentiary value was immediately apparent to one officer. United States v. Tadevosyan, 2011 U.S. Dist. LEXIS 126934 (S.D. W.Va. November 2, 2011).*

There were eight search warrants in this case, and defendant only showed standing as to the two search warrants for his house and business. United States v. Hopkins, 2011 U.S. Dist. LEXIS 127071 (D. Minn. October 5, 2011).*

Permalink 07:47:44 am, by fourth, 181 words, 2926 views   English (US)
Categories: General

E.D.Ky.: First entry was illegal, but they all went outside; then defendant consented to re-entry

Officers illegally entered defendant’s house, but they all went outside where defendant argued with them, and then invited them inside to “talk about it.” Once inside, he revoked his consent. The second entry was by consent. United States v. McCormick, 2011 U.S. Dist. LEXIS 126808 (E.D. Ky. November 1, 2011).*

Tasering a suicidal man repeatedly who was clutching a knife on his family and the situation was rapidly deteriorating was objectively reasonable supporting the district court’s grant of judgment as a matter of law. Sandberg v. City of Torrance, 456 Fed. Appx. 711 (9th Cir. 2011) (unpublished).*

After a traffic stop, National Park Rangers finding a 57 year old defendant traveling with a minor he picked up in another state, who shared hotel rooms with her, bought a sex toy, and photographed her, was enough to show probable cause for a search of the computer in his car for child pornography, distinguishing other recent cases saying that sexual abuse of a minor does not automatically lead to the conclusion child porn was made. United States v. Miller, 2011 U.S. Dist. LEXIS 126772 (W.D. Va. November 2, 2011).*

11/05/11

Permalink 08:34:05 am, by fourth, 880 words, 3256 views   English (US)
Categories: General

Cal.2d: Explaining the two “prongs” of Gant, and obstruction not an offense justifying search incident

Obstruction by not getting out of the car, such as resisting arrest, was not an offense from which one would expect to find evidence in the defendant’s car, and it did not justify a search incident under Gant. Defendant was “tased” and held on the ground handcuffed when the search incident occurred. Explaining the two “prongs” of Gant is People v. Evans, 200 Cal. App. 4th 735, 133 Cal. Rptr. 3d 323 (2d Dist. 2011):

The court adopted a "new, two-part rule under which an automobile search incident to a recent occupant's arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains 'evidence relevant to the crime of arrest.' [Citation.]" (Davis, supra, 131 S.Ct. at p. 2425; Gant, supra, 129 S.Ct. at p. 1719.) Gant noted that the second prong of the test flowed not from Chimel, but from Justice Scalia‘s concurrence in Thornton v. United States (2004) 541 U.S. 615, 632, and was justified by "circumstances unique to the vehicle context." (Gant, supra, at pp. 1714, 1719; see also People v. Osborne, supra, 175 Cal.App.4th at p. 1064.) Where neither justification is present, "a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies." (Gant, supra, at pp. 1723-1724.)

Here, the searches did not fall within the first prong of the Gant test. When the initial search of the vehicle was completed, Evans had been tased and detained, and was lying face down on the ground outside the vehicle, with officers on top of him. Plainly, he did not have access to the car's interior. The second search was conducted at the impound yard, while Gant was presumably in the hospital, or at least nowhere near the vehicle.

Nor was it reasonable for officers to believe evidence relevant to Evans‘s crime of arrest––interfering with a police investigation in violation of Penal Code section 148––might be found in his automobile. In Gant, the defendant was arrested for driving with a suspended license. (Gant, supra, 129 S.Ct. at p. 1714.) The high court found it unreasonable to believe that evidence of this crime might be found in his car. (Id. at p. 1719.) The court explained: "In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence." (Ibid.) By way of example, the court cited Atwater v. Lago Vista (2001) 532 U.S. 318, in which the petitioner was arrested for a misdemeanor seatbelt violation, and Knowles v. Iowa (1998) 525 U.S. 113, in which the petitioner was stopped for speeding. (Gant, supra, at p. 1719.) ...

Accordingly, we agree with Chamberlain that while the "nature of the offense of arrest is clearly intended to have significance, and in some cases it may virtually preclude the existence of real or documentary evidence, ... a broad rule automatically authorizing searches incident to arrest for all other offenses cannot be reconciled with the actual holding of Gant. ... Some reasonable expectation beyond a mere possibility, whether arising solely from the nature of the crime or from the particular circumstances surrounding the arrest, is therefore clearly contemplated by the Court." (Chamberlain, supra, 229 P.3d at p. 1057.) We conclude a reasonable belief to search for evidence of the offense of arrest exists when the nature of the offense, considered in conjunction with the particular facts of the case, gives rise to a degree of suspicion commensurate with that sufficient for limited intrusions such as investigatory stops. (Ibid.) Reasonable suspicion, not probable cause, is required. (Chamberlain, at p. 1057; U.S. v. Vinton, supra, 594 F.3d at p. 25; ...) As a practical matter, for crimes such as driving under the influence, absent unusual circumstances the requisite reasonable belief may be readily inferable from the nature of the offense, with little or nothing more. In most cases, however, the facts known to the officer, considered with the nature of the offense, will be determinative.

Here, neither the nature of the offense nor any facts specific to the crime would have provided the officers with a reasonable belief that evidence related to the offense of arrest would be found in Evans‘s automobile. Evans's offense of arrest was interfering with a police investigation in violation of Penal Code section 148, due to his refusal to exit the car. In pertinent part, Penal Code section 148, subdivision (a)(1) prohibits willfully resisting, delaying, or obstructing a peace officer in the discharge of his or her duties. ... The officers could not have reasonably believed evidence of obstructing a peace officer could be found inside defendant's vehicle. (Id. at p. 558; see also U.S. v. Chavez (E.D.Cal. 2009) 2009 U.S. Dist. Lexis 116924 [resisting arrest is akin to a traffic-related offense, and an officer could not reasonably expect to find evidence of the crime inside a car].) The same is true here. Impeding an officer’s investigation is unlikely to leave evidentiary traces, such as the fruits or instrumentalities of the crime, in a vehicle. The only conduct underlying the offense was Evans’s refusal to exit the car when Currie ordered him to do so. It is unreasonable to believe evidence of that conduct would remain in the vehicle after Evans was no longer inside.

Permalink 08:21:05 am, by fourth, 304 words, 3280 views   English (US)
Categories: General

N.D.Ga.: Illegal search followed by unMirandized statement followed by Mirandized statement were all suppressed

Defendant was illegally arrested and searched, and then an unMirandized statement was taken from him, and then he was Mirandized for a second, official, statement where the product of the illegal search and his dissembling during the first statement were used in the second statement, and that required the second statement be suppressed. United States v. Cordova, 829 F. Supp. 2d 1342 (N.D. Ga. 2011):

There is a fundamental difference, however, between an illegal arrest and an illegal search and seizure of evidence. An arrest is not evidence of a crime; illegally seized evidence of a crime, on the other hand, can be (and in this case, was) used to convince a defendant that the government can convict him without a statement and to lead to a common-sense belief that confessing and cooperating are the only option. Were this Court to hold otherwise it would be left with the anomalous result that evidence obtained during an illegal search would be suppressed but then the existence and discovery of the evidence would be introduced by the statements of the Defendant obtained only as a result of the illegal search and seizure.

Defendant was “asked” to come into a store with the officer saying “we need to talk.” Two officers talked to him and several others were in the store investigating a crime. The evidence supports the district court’s conclusion that his consent was voluntary. United States v. Guevara, 448 Fed. Appx. 453 (5th Cir. 2011) (unpublished).*

Defendant consented to a search of his hotel room for anything illegal, and officers seized two computers, thumb drives, and other storage electronic devices for a later search believing them connected to a crime, and this was not unreasonable. A search of the electronic devices on the premises was not possible. United States v. Chappell, 2011 U.S. Dist. LEXIS 127588 (N.D. Ga. November 3, 2011).*

Permalink 08:01:25 am, by fourth, 160 words, 2831 views   English (US)
Categories: General

SC: PC shown for court order for DNA draw

The state showed probable cause for a court order for a draw of defendant’s DNA in a sex assault case. State v. Chisholm, 395 S.C. 259, 717 S.E.2d 614 (2011).*

An altercation between plaintiff and a police officer was covered by qualified immunity. The officer had a court order about picking up an elderly lady for safeguarding her. It was not clearly established at the time that the plaintiff did not have to answer questions from the officer, particularly where the officer had reason to believe she had information about where the lady was. Koch v. City of Del City, 660 F.3d 1228 (10th Cir. 2011).*

Probable cause was shown for a search warrant for documentary evidence that included an insurance policy. United States v. Young, 2011 U.S. Dist. LEXIS 126380 (E.D. Mo. March 24, 2011).*

The CI in this case had a track record and was corroborated, and that was sufficient for probable cause. State v. Beauford, 2011 Ohio 5628, 2011 Ohio App. LEXIS 4616 (9th Dist. November 2, 2011).*

11/04/11

Permalink 04:47:34 pm, by fourth, 15 words, 2824 views   English (US)
Categories: General

ABAJ.com: "Keeping Up with the Joneses—How Far Does the ‘Reasonable Expectation of Privacy’ Go?"

Permalink 08:36:42 am, by fourth, 147 words, 2883 views   English (US)
Categories: General

TN: State's failure to raise lack of standing in trial court was waiver for appeal; defendant's oral amendment of motion in trial court was sufficient

State’s failure to raise lack of standing in the trial court meant it couldn’t raise it on appeal. Defendant raised the issue that the state exceeded the scope of consent orally in the trial court, albeit not in the motion, but that was notice enough for the state because the issue was tried. State v. Martinez, 372 S.W.3d 598 (Tenn. Crim. App. 2011).

The search incident of defendant’s vehicle was proper under Gant because there was reason to believe that evidence of the crime he was stopped for would be in the car. Gant, 129 S. Ct. at 1714. State v. Clark, 2011 Tenn. Crim. App. LEXIS 808 (October 24, 2011).*

Defense counsel was hardly ineffective for not challenging admission of jail calls against the defendant that showed intent because it was frivolous; he was on notice of recording. Al-Salibi v. United States, 2011 U.S. Dist. LEXIS 125306 (D. N.J. October 31, 2011).*

Permalink 08:00:14 am, by fourth, 501 words, 2872 views   English (US)
Categories: General

M.D.Pa.: Reliance on govt's case not enough to show standing here

Defendant relied on the government's evidence to show standing, but it didn't. He had to do something to show standing. [It doesn't require the defendant testify, but sometimes it does, but so what? The evidence of standing can't be used by the government in its case in chief unless the defendant takes the stand and contradicts the prior testimony.] United States v. Valdez, 2011 U.S. Dist. LEXIS 125371 (M.D. Pa. October 31, 2011)*:

Defendant's motion itself and his initial brief do nothing to establish his standing, that is to say, his reasonable expectation of privacy. Additionally, he presented no witnesses or exhibits at the suppression hearing on this matter. Rather, defendant asserts that he met his burden as follows: “it is the government’s own investigation that corroborates the his [sic] residency and expectation of privacy at the Strawberry Hill Road property.” (Doc. 61, Def. Br. at 2). In other words, to establish standing, the defendant relies upon the affidavit of probable cause that the government drafted in order to obtain a search warrant on October 15, 2010, the day after the search at issue. This affidavit indicates that on the day of his arrest, police observed defendant at the residence throwing several garbage bags into a dumpster. (Doc. 50-5, Affidavit of Probable Cause at 3-4). Further, the affidavit indicates that defendant told the police that he had moved into the residence with his cousin two months previously. (Id. at 4). At the suppression hearing the DEA Agent in charge of the search, James Farano, indicated that it appeared that defendant had been living in the residence. (N.T. at 16).

Defendant’s position is that these facts establish that he had a privacy interest in the area where the DEA found the drugs and other material. The court disagrees. These assertions might support some sort of privacy interest in the residence itself. The police, however, did not find the evidence at issue in the residence. As noted above, the police found the evidence under a tub next to a commercial garage.

The defendant presented no evidence to establish that he had a privacy interest in the area located under the tub next to the commercial garage, where the police found the drugs. At best, the evidence indicates that a man, who may have been defendant's cousin, leased the property, perhaps even the area at issue. The defendant indicated to the police that he lived with his cousin for several months. This familial relationship and sharing the residence with the lessee does not create an expectation of privacy in the area where the agents found the evidence. This case is similar to United States v. Mankani, 738 F.2d 538, 545 (2d Cir. 1984). In Mankani, the defendants occupied rooms in a farmhouse and made periodic visits to a barn located on the property. The Second Circuit Court of Appeals concluded that those contacts did not give rise to a reasonable expectation of privacy in the barn, and thus the defendants lacked standing to challenge the seizure of evidence from the barn. Id.

Permalink 07:51:22 am, by fourth, 227 words, 2871 views   English (US)
Categories: General

M.D.Ga.: Standing a predicate in forfeiture cases

Standing is a predicate in forfeiture cases. “In a forfeiture case, standing ‘must be decided before any motion by the claimant to dismiss the action.’ Suppl. R. G(8)(c) (ii)(A).” United States v. $162,576.00 in United States Funds, 2011 U.S. Dist. LEXIS 125858 (M.D. Ga. November 1, 2011). (Compare this post from two days ago that standing is not a predicate in a criminal case; the court can go to the merits first.)

A van was stopped for being in a “high crime area” which was just a residential area that had past burglaries. The driver did nothing wrong in the time it was followed, and the officer suspicioned that the vehicle was scouting houses to break into. The motion to suppress should have been granted. State v. Studley, 2011 Ohio 5563, 2011 Ohio App. LEXIS 4551 (2d Dist. October 28, 2011).*

The officer reached in the car in an attempt to keep the defendant from driving off, and he had reasonable suspicion. Nothing was seized except the defendant himself. There was nothing to suppress. State v. Craver, 2011 Ohio 5542, 2011 Ohio App. LEXIS 4537 (2d Dist. October 28, 2011).*

Two vehicles stopping on a residential street where one person got of a car and went to the other car for a second, got something, and went back to his car was reasonable suspicion that a hand-to-hand drug transaction occurred. State v. Keller, 2011 Ohio 5546, 2011 Ohio App. LEXIS 4535 (2d Dist. October 28, 2011).*

Permalink 12:01:39 am, by fourth, 243 words, 3076 views   English (US)
Categories: General

Wired.com: "Feds’ Use of Fake Cell Tower: Did it Constitute a Search?"

Wired.com: Threat Level: Feds’ Use of Fake Cell Tower: Did it Constitute a Search? by Kim Zetter:

Federal authorities used a fake Verizon cellphone tower to zero in on a suspect’s wireless card, and say they were perfectly within their rights to do so, even without a warrant.

But the feds don’t seem to want that legal logic challenged in court by the alleged identity thief they nabbed using the spoofing device, known generically as a stingray. So the government is telling a court for the first time that spoofing a legitimate wireless tower in order to conduct surveillance could be considered a search under the Fourth Amendment in this particular case, and that its use was legal, thanks to a court order and warrant that investigators used to get similar location data from Verizon’s own towers.

The government is likely using the argument to avoid a court showdown that might reveal how stingrays work and open debate into the tool’s legality.

Stingrays spoof a legitimate cellphone tower in order to trick nearby cellphones and other wireless communication devices into connecting to the tower, as they would to a real cellphone tower. When devices connect, stingrays can see and record their unique ID numbers and traffic data, as well as information that points to a device’s location. To prevent detection by suspects, the stingray sends the data to a real tower so that traffic continues to flow.

11/03/11

Permalink 08:36:38 am, by fourth, 264 words, 2880 views   English (US)
Categories: General

NYT: "Dismal Tale of Arrest for Tiniest of Crimes"

NYT: Dismal Tale of Arrest for Tiniest of Crimes by Jim Dwyer. Apparently one always needs his or her driver's license on a visit to New York City, like getting on an airplane:

The arresting officer came by the cell, Samantha Zucker said, to make snide remarks about finding her with a friend in Riverside Park after its 1 a.m. closing.

For instance:

“He was telling me that I needed to get a new boyfriend, that I should get a guy who takes me out to dinner,” Ms. Zucker said. “He mocked me for being from Westchester.”

Early in the morning on Oct. 22, a Saturday, Ms. Zucker, 21, and her friend Alex Fischer, also 21, were stopped by the police in Riverside Park and given tickets for trespassing. Mr. Fischer was permitted to leave after he produced his driver’s license. But Ms. Zucker, on a visit to New York City with a group of Carnegie Mellon University seniors looking for jobs in design industries, had left her wallet in a hotel two blocks away.

She was handcuffed. For the next 36 hours, she was moved from a cell in the 26th Precinct station house on West 126th Street to central booking in Lower Manhattan and then — because one of the officers was ending his shift before Ms. Zucker could be photographed for her court appearance, and you didn’t think he was going to take the subway uptown while his partner stayed with her at booking, did you? — she was brought back to Harlem.

Reminds me of this for trying to pass through the Krakow ghetto:

Permalink 08:30:39 am, by fourth, 524 words, 3227 views   English (US)
Categories: General

E.D.Wis.: Delay in entry belied exigent circumstances claim

The officers' delay in their entry belied the suppression hearing claim of exigent circumstances for the entry into defendant's building, and the motion to suppress had to be granted. United States v. Edwards, 2011 U.S. Dist. LEXIS 126059 (E.D. Wis. October 31, 2011) rejecting R&R 2011 U.S. Dist. LEXIS 126065 (E.D. Wis. September 15, 2011):

The magistrate found that exigent circumstances existed here because he concluded that it was reasonable for the officers to conclude that a burglary was in progress. (Mag. Rec. 6).

The Court disagrees, and finds that the warrantless entry in this case was not justified by exigent circumstances. First, the Court finds that exigent circumstances simply did not exist. In Patino, the Seventh Circuit held that exigent circumstances did not exist where an officer waited thirty minutes for backup to arrive. 830 F.2d at 1416. In particular, the Patino court was concerned with the officer's failure to telephonically seek a warrant during that thirty minute wait. Id. Additionally, the Patino court noted that the officers could have secured the exits to prevent escape while awaiting a warrant. Id.

Here, similar to the important facts in Patino, Officer Dorn substantially delayed entry of the building without seeking a search warrant—demonstrating a lack of exigent circumstances. He twice called for backup and also arranged to contact the keyholders of the building prior to entering the building. Though the precise amount of time this took is unclear, nonetheless it is clear that there was ample time for Dorn to seek a search warrant, which he never did. The officers could have secured the exits to prevent escape if they were truly concerned with a burglary, but they did not do so. Therefore, this Court finds that the facts amply demonstrate that there were not exigent circumstances prior to the officers' initial entry.

Second, even if there were exigent circumstances, the Court finds that the officers could not reasonably have believed that a burglary was in progress. It is true that Edwards was a suspect in a string of burglaries and was seen by Dorn exiting and re-entering the building, but this Court finds that other circumstances should have reasonably put the officers on notice that a burglary was not in progress. In fact, less than two days prior to the events in question, the police department had held a briefing at which they discussed Edwards as a suspect. During that briefing, the police noted that Edwards was at least a "possible" renter of the building at 211 North Main Street. Of course, it was that very building that the police now claim they suspected Edwards of burglarizing.

This Court finds it highly suspect, and certainly unreasonable, that Dorn and Zywicki both failed to remember that Edwards was a renter of the building. Additionally, it is unreasonable that none of the officers sought to examine the briefing materials and discover that fact when Dorn noted that he suspected Edwards to be in the building. Finally, it is unreasonable that the officers would have arranged to call the keyholders of the building, but failed to identify Edwards as one of those keyholders and make an attempt to contact him.

Permalink 06:49:55 am, by fourth, 890 words, 2956 views   English (US)
Categories: General

Cal.1st: Putting key into a lock was reasonable under the circumstances

Saying it was a close question, putting a key found in an abandoned car into a lock to see if defendant had access to the property was reasonable without a warrant. People v. Robinson, 200 Cal. App. 4th 552, 133 Cal. Rptr. 3d 307 (1st Dist. 2011):

On that issue, defendant contends that testing the key in the lock was a search that could only be performed pursuant to a warrant. It is a close question whether inserting and turning the key constituted a search. “A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” (United States v. Jacobsen (1984) 466 U.S. 109, 113, fn. omitted.) The court in U.S. v. Concepcion (7th Cir. 1991) 942 F.2d 1170, 1172 (Concepcion), concluded that testing a key in an apartment door lock was a search, reasoning: “A keyhole contains information—information about who has access to the space beyond. As the [F]ourth [A]mendment protects private information rather than formal definitions of property, [citations], the lock is a potentially protected zone. And as the tumbler of a lock is not accessible to strangers …, the use of an instrument to examine its workings (that is, a key) looks a lot like a search. ... [¶] Because the agents obtain information from the inside of the lock, which is both used frequently by the owner and not open to public view, it seems irresistible that inserting and turning the key is a ‘search’.” (See also Arizona v. Hicks (1987) 480 U.S. 321, 324-325 [officer’s act of turning over a turntable to read its serial number constituted a search]; Portillo-Reyes, supra, 529 F.2d at p. 848.)

On the other hand, other courts have concluded that defendants had no reasonable expectation of privacy in external, publicly-accessible locks and/or that insertions of keys into such locks were not searches. The court in U.S. v. Salgado (6th Cir. 2001) 250 F.3d 438, 456 (Salgado), held that “the mere insertion of a key into a lock, by an officer who lawfully possesses the key and is in a location where he has a right to be, to determine whether the key operates the lock, is not a search.” The court emphasized that the defendant’s apartment door was accessible to anyone passing through a hallway open to the public, and the function of the apartment door lock was to protect and keep private the contents of the apartment itself. (Id. at pp. 456-457; see also U.S. v. Hawkins (1st Cir. 1998) 139 F.3d 29, 33, fn. 1 [“insertion of a key into the lock of a storage compartment for the purpose of identifying ownership does not constitute a search”]; United States v. Lyons (1st Cir.1990) 898 F.2d 210, 212-213 (Lyons) [insertion of key into padlock of storage unit for purpose of identifying ownership did not infringe on any reasonable expectation of privacy]; United States v. DeBardeleben (6th Cir. 1984) 740 F.2d 440, 444 (DeBardeleben) [the defendant had no “reasonable expectation of privacy in the identity of his vehicle”]; Mathis v. State (Alaska 1989) 778 P.2d 1161, 1165 [“Insertion of the key did not constitute a search of the locker, but merely an identification of it as belonging to the [defendants].”]; People v. Carroll (1973) 12 Ill.App.3d 869 [299 N.E.2d 134, 139] [insertion and turning of key not a search].)

Ultimately, we need not determine whether testing the key in the lock was a search, because, even assuming it was a search, the search was not unreasonable. “As a general rule, the question of whether a particular practice is unreasonable, and thus violates the Fourth Amendment, ‘“is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”’ (Skinner v. Railway Labor Executives’ Assn. [(1989) 489 U.S. 602, 619], quoting from Delaware v. Prouse (1979) 440 U.S. 648, 654, and United States v. Martinez-Fuerte (1976) 428 U.S. 543.) ‘Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.’ (Bell v. Wolfish (1979) 441 U.S. 520, 559.)” (People v. King (2000) 82 Cal.App.4th 1363, 1371; see also Concepcion, supra, 942 F.2d at pp. 1172-1173.) Thus, “even if the challenged action triggers the protections of the Fourth Amendment, a ‘minimally intrusive’ action ‘may be reasonable in view of the government interests it serves.’” (U.S. v. $109,179 in U.S. Currency (9th Cir. 2000) 228 F.3d 1080, 1087, fn. omitted.)

. . .

The other critical consideration is the justification for the intrusion. In the present case, testing the key in the lock “served the discrete investigative purpose of confirming that” defendant had access to 321 Sanford. (Moses, supra, 540 F.3d at p. 272; see also Lyons, supra, 898 F.2d at p. 213 [“the insertion of the key into the padlock was merely a means of identifying a storage unit to which [the defendant] had access”]; DeBardeleben, supra, 740 F.2d at p. 443 [“There was therefore a legitimate reason to insert the keys ... to see whether they fit in order to identify that automobile as belonging to [the] defendant for purposes of obtaining a search warrant.” (Fn. omitted.)].) Moreover, regardless of whether the police had probable cause to believe that there was evidence inside the residence without trying the key in the lock, the police certainly reasonably suspected the residence was connected to the crime under investigation. ...

How can they not take Scalia more seriously? "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).

Permalink 05:02:15 am, by fourth, 141 words, 2839 views   English (US)
Categories: General

WSJ.com: "Feds Shift Tracking Defense"

WSJ.com: Feds Shift Tracking Defense / Prosecutors in Arizona Case Drop Position That 'Stingray' Use Didn't Require Warrant by Jennifer Valentino-Devries:

The U.S. Department of Justice now says its use of a cellphone-tracking device in a controversial Arizona case could be considered a "search" under the Fourth Amendment, a tactical move legal experts say is designed to protect the secrecy of the gadgets known as "stingrays."

For more than a year, federal prosecutors have argued in U.S. District Court that the use of the stingray device—which can locate a mobile phone even when it's not being used to make a call—wasn't a search, in part because the user had no reasonable expectation of privacy while using Verizon Wireless cellphone service. Under that argument, authorities wouldn't need to obtain a search warrant before using one of the devices.

11/02/11

Permalink 10:31:20 am, by fourth, 32 words, 2874 views   English (US)
Categories: General

NPR's Diane Rehm Show Today: "The Constitution Today: Fourth Amendment"

NPR's Diane Rehm Show at 11 am ET: The Constitution Today: Fourth Amendment

The Constitution Today: The 4th Amendment protects Americans against unreasonable searches and seizures. How modern technology is testing its boundaries.

Permalink 08:28:08 am, by fourth, 122 words, 2862 views   English (US)
Categories: General

IL: 55 min. delay of a package in transit was not a Fourth Amendment issue

A 55 minute delay of a package in transit for a search under a warrant was not unreasonable. Delivery at a certain time is not a Fourth Amendment interest, even for “Next-Day-Air, Early-A.M.” delivery. People v. Tyus, 2011 IL App (4th) 100168, 960 N.E.2d 624 (2011).

Defendant’s motion to reconsider the search issue is just a rehash of what has already been denied, so the court’s not going into it again. United States v. Pitts, 2011 U.S. Dist. LEXIS 125354 (E.D. Pa. October 28, 2011).*

Seizure under a search warrant of medical marijuana by the police did not trigger the theft provision in plaintiff’s homeowner’s property insurance policy. Barnett v. State Farm General Ins. Co., 200 Cal. App. 4th 536, 132 Cal. Rptr. 3d 742 (4th Dist. 2011).*

Permalink 07:28:00 am, by fourth, 233 words, 3018 views   English (US)
Categories: General

E.D.Pa.: “Standing” is not a threshold issue that needs to be decided, and the court can decide the merits first

“Standing,” such that it is, is not a threshold issue that always needs to be decided, and the court can decide the merits first. A passenger has “standing” to challenge the stop, and thus the search if the stop is invalid. So, the merits have to be decided. United States v. Blackshear, 2011 U.S. Dist. LEXIS 125357 fn. 7 (E.D. Pa. October 28, 2011):

The Third Circuit recently clarified that although the right to challenge a search on Fourth Amendment grounds is often referred to as “standing,” that right “is more properly placed within the purview of the substantive Fourth Amendment law than within that of standing.” United States v. Kennedy, 638 F.3d 159, 163 (3d Cir. 2011) (quoting Rakas v. Illinois, 439 U.S. 128, 140, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978)). Thus, “standing to challenge a search is not a threshold issue that must be decided before reaching the question of whether a search was or was not constitutional.” Id.; see also United States v. Varlack Ventures, Inc., 149 F.3d 212, 215-16 (3d Cir. 1998) (assuming, without deciding, standing to challenge search).

Failure to brief a search issue was a waiver. United States v. Conard, 2011 U.S. Dist. LEXIS 125737 (N.D. Ga. October 5, 2011).*

Claimant first claimed a reasonable expectation of privacy in the trailer of a tractor-trailer but disclaimed it in his brief on the forfeiture, and that was a waiver. United States v. Rodriguez, 2011 U.S. Dist. LEXIS 125747 (N.D. Ga. September 23, 2011).*

Permalink 07:18:55 am, by fourth, 204 words, 2841 views   English (US)
Categories: General

Privacy Law: “‘Mosaic Theory’ and Megan’s Laws”

Privacy Law: ‘Mosaic Theory’ and Megan’s Laws by Wayne A. Logan, Florida State University College of Law in Cardozo Law Review de novo, p. 95 (2011)

Abstract:

This essay urges reexamination of the privacy implications of registration and community notification (RCN) laws, commonly known as Megan’s Laws. Applying the analytic construct recently employed by the D.C. Circuit in United States v. Maynard to conclude that extended use of a GPS tracking device constitutes a search for Fourth Amendment purposes, the essay argues that the collection and aggregation of registrant data entailed in RCN implicates a protectable Fourteenth Amendment privacy interest. In both contexts, the government collects nominally public data – in Maynard, car travel, with RCN, registrants’ home/work/school addresses, physical traits, etc. – and creates an informational “mosaic” of personal life that would not otherwise practically exist.

With the Supreme Court’s recent grant of certiorari in Maynard (docketed sub nom. United States v. Jones), mosaic theory will soon be the subject of considerable debate. The essay seeks to contribute to this debate, pushing the applicable bounds of the theory and allowing for a more robust examination of RCN, as well as similar data-based social control strategies likely to emerge in coming years.

Permalink 07:08:48 am, by fourth, 113 words, 2844 views   English (US)
Categories: General

SSRN: "Fourth Amendment Future: Remote Computer Searches and the Use of Virtual Force"

SSRN: Fourth Amendment Future: Remote Computer Searches and the Use of Virtual Force by Susan W. Brenner, University of Dayton School of Law, in 81 Miss. L. J. No. 1 (2011)

Abstract:

This article examines the Fourth Amendment implications of two tactics that may become part of law enforcement’s efforts to investigate and otherwise control criminal activity. The first is the use of certain types of software, most notably Trojan horse programs, to conduct surreptitious, remote searches of computers and computer media. The other tactic is the use of “virtual force,” e.g., using Distributed Denial of Service and other attacks to shut down or otherwise disable websites that host offending content and/or activities.

11/01/11

Permalink 05:53:15 am, by fourth, 289 words, 2892 views   English (US)
Categories: General

MD: No REP in the laundry unit of a multi-unit apartment building

There was no reasonable expectation of privacy in the laundry room of a multi-unit apartment building. While a CI was in the apartment, the defendant came down to the laundry area and entered a padlocked room to get what apparently was heroin he gave to the CI back in the room. The police were hiding in the laundry room and watched him enter the room. They got a search warrant for the locked room. Grymes v. State, 202 Md. App. 70, 30 A.3d 1032 (2011).

Based on information developed, the defendant’s PO had reasonable suspicion to believe that defendant was living where he wasn’t supposed to be: his car was outside and he was seen coming and going. The PO went to the home and found him inside. He also had reasonable suspicion to believe defendant’s car had drugs inside, and that justified its search. Commonwealth v. Colon, 2011 PA Super 228, 2011 Pa. Super. LEXIS 3248 (October 28, 2011).*

Defendant’s detention was not so long that it became unreasonable. After the officer found out that defendant was a “known drug violator,” he just asked for consent and got it. State v. McLean, 2011 Tenn. Crim. App. LEXIS 802 (October 28, 2011)*:

In this case, Agent Bales testified that based upon the defendant’s demeanor and after running the records checks, he “just asked” for consent to search. The defendant told Agent Bales to “[g]o ahead.” The video recording reveals no duress or coercion. The video recording, in fact, reflects the defendant’s voluntary cooperation. See Schneckloth, 412 U.S. at 243. Having already deemed the initial stop legal and the subsequent detention reasonable in duration and scope, we further conclude that the defendant consented freely and voluntarily to the search. The trial court correctly denied the motion to suppress.

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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
www.johnwesleyhall.com

© 2003-14, online since Feb. 24, 2003

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URL hits since 2010

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Fourth Amendment cases,
citations, and links

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Most recent SCOTUS cases:
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)


Research Links:
  Supreme Court:
  SCOTUSBlog
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  Solicitor General's site
  SCOTUSreport
  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
  Oyez Project (NWU)
  "On the Docket"–Medill
  S.Ct. Monitor: Law.com
  S.Ct. Com't'ry: Law.com

  General (many free):
  LexisWeb
  Google Scholar | Google
  LexisOne Legal Website Directory
  Crimelynx
  Lexis.com $
  Lexis.com (criminal law/ 4th Amd) $
  Findlaw.com
  Findlaw.com (4th Amd)
  Westlaw.com $
  F.R.Crim.P. 41
  www.fd.org

  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (pdf)

  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
  Privacy Foundation
  Electronic Privacy Information Center
  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."
—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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