Archives for: November 2011, 22

11/22/11

Permalink 08:53:47 am, by fourth, 231 words, 1775 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).*

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Permalink 08:32:36 am, by fourth, 395 words, 1853 views   English (US)
Categories: General

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.

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  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (Jan. 23, 2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (April 2, 2012) (ScotusBlog)
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2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (May 16, 2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (May 26, 2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (May 31, 2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (June 16, 2011) (ScotusBlog)

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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"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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