Archives for: November 2011, 02

11/02/11

Permalink 10:31:20 am, by fourth, 32 words, 2865 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, 2852 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, 3008 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, 2831 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, 2834 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.

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Little Rock, Arkansas
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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)


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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  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)
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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)


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