Archives for: January 2012, 09


Permalink 09:00:46 am, by fourth, 481 words, 641 views   English (US)
Categories: General

D.Ariz.: Discovery for suppression limited to that which already in existence and heading off GFE not part of it

Defendant sought a ton of information about the investigative techniques used against him to potentially challenge the searches, and the court decides that Rule 16(a)(1)(E)(i) does not require the government to create information not already in existence. Also, some information sought was “sensitive” information that is not discoverable and would enable criminals to evade detection. United States v. Rigmaiden, 844 F. Supp. 2d 982 (D. Ariz. 2012)*:

As an initial matter, the Court concludes that Defendant has not shown his right to this information under Rule 16(a)(1)(E)(i). That rule requires the government to disclose documents or other tangible objects within its possession, custody, or control. The rule does not require the government to create documents that may provide information a defendant desires to obtain, nor does it require the government to present agents or witnesses for interviews or in-court examination. United States v. Mahon, No. CR09-0712-PHX-DGC, 2011 WL 5006737 at *3 (D. Ariz., Oct. 20, 2011) (citing cases). The rule “triggers the government’s disclosure obligation only with respect to documents within the federal government’s actual possession, custody or control.” United States v. Gatto, 763 F.2d 1040, 1048 (9th Cir. 1985).

In addition, the Court finds on the basis of Agent Morrison’s testimony at the ex parte hearing that the identities of individuals involved in locating the aircard is law enforcement sensitive information. Agent Morrison testified credibly that revealing the identities of these individuals could compromise their safety during future law enforcement missions. He also testified credibly that if the identities of these individuals were disclosed, they no longer could safely participate in such missions, a fact that would seriously limit the government’s law enforcement capabilities given the unique training and skill set of individuals involved in the operation. The Court finds that the identities of individuals involved in locating the aircard are subject to a Roviaro privilege. For reasons that follow, the Court also finds that Defendant has not made the showing required to overcome the privilege.

. . .

Questioning agents in order to challenge the government’s reliance on a good faith exception to the warrant requirement would not be helpful or relevant to the defense because such a good faith exception depends on the objective reasonableness of the law enforcement officers’ actions. See United States v. Leon, 468 U.S. 897, 919 n. 20 (1984) (“We emphasize that the standard of reasonableness we adopt is an objective one. Many objections to a good-faith exception assume that the exception will turn on the subjective good faith of individual officers. Grounding the modification in objective reasonableness, however, retains the value of the exclusionary rule as an incentive for the law enforcement profession as a whole to conduct themselves in accord with the Fourth Amendment.”) (quotation marks and citations omitted).

Finally, the Court cannot conclude that Defendant’s desire to show the bad faith destruction of potentially exculpatory evidence justifies disclosure of the identities of agents who located the aircard. ...

Permalink 08:12:13 am, by fourth, 218 words, 798 views   English (US)
Categories: General

E.D.Tex.: No minimum number of trash pulls to show PC

There is no minimum number of trash pulls that are required to establish probable cause. Here, there were two, and the second produced marijuana residue. Probable cause did not require a third pull. United States v. Medrano, 2012 U.S. Dist. LEXIS 1545 (E.D. Tex. January 6, 2012):

Next, the Court turns to Defendant's argument that the marijuana discovered during a single trash run was not enough to form probable cause. There is no magic number of "trash runs" to be conducted prior to the issuance of a search warrant. See U.S. v. Hopkins, 2000 WL 20986, 3 (N.D. Tex. 2000). Noting that there is no per se requirement that there be multiple searches of trash to establish probable cause, Judge Fitzwater of the Northern District of Texas noted:

In some cases the paucity of evidence found in one trash seizure may in fact require more than that single garbage pickup before a warrant may be issued. In the present case, however, the contents of the trash were themselves a treasure trove and, coupled with the other grounds set out in the affidavit, amply established probable cause.

Id. (finding there was a sufficient basis for the state judge to find probable cause to issue the search and arrest warrant based on totality of circumstances, even though only a single trash run was conducted).

Permalink 07:37:13 am, by fourth, 348 words, 474 views   English (US)
Categories: General

S.D.Ohio: Asking about marijuana converted consent to a stop, but it was with RS

The officer did not have reasonable suspicion to approach and talk to defendant in a parking lot known for drug sales. The conversation was by consent. “A seizure began when Officer Burkey stood at the passenger’s side of Parker's vehicle (while Officer Sampson stood on the other side), after smelling marijuana, and asked Parker if he was smoking marijuana. A reasonable person would not feel as though he or she could leave when two police officers were standing on either side of his or her vehicle inquiring as to whether any illegal activity was occurring.” By then the officer had reasonable suspicion. United States v. Parker, 2012 U.S. Dist. LEXIS 1385 (S.D. Ohio January 5, 2012).*

Defendant’s turning around and coming back when officer called for him was consent. A second request did not escalate it to an order. United States v. Brown, 447 Fed. Appx. 706 (6th Cir. 2012)*:

We may reasonably infer from Brown’s decision to turn his car around and drive toward Officer Pesa that Brown consented to stopping to oblige an officer’s request. See Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 216 (1984) (“While 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.”). Although Officer Pesa followed up his request to “come here” with a request to stop, nothing in the record suggests that Brown stopped because of Officer Pesa’s later instruction. Rather, Officer Pesa's request came after Brown already turned his car around, evincing an intent to stop. Officer Pesa’s second request is best interpreted as a continuation or renewal of the initial request, rather than as an escalating, coercive order. See Florida v. Rodriguez, 469 U.S. 1, 4 (1984) (holding that consensual interaction occurred when officer first asked defendant to talk with him, defendant consented, and officer then asked defendant to step fifteen feet aside to talk). Brown's behavior in advance of Officer Pesa's request to stop suggests that Brown stopped and engaged in a conversation with Officer Pesa voluntarily.

Permalink 12:02:25 am, by fourth, 103 words, 543 views   English (US)
Categories: General

Boston Globe: "Laptop seizures at customs cause thorny legal dispute"

Boston Globe: Laptop seizures at customs cause thorny legal dispute by Katie Johnston:

David House took his laptop to Mexico a little over a year ago, hoping to squeeze in some work between sightseeing, fishing, and laying on the beach. All went well, vacation- and work-wise, until the former MIT researcher landed in Chicago, where federal agents seized his laptop, kept it for nearly two months, and may have shared information on his hard drive with several government agencies.

They didn’t have a search warrant. They didn’t charge him with a crime. And there was nothing House could do about it.

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by John Wesley Hall
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  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)
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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)

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  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
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  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)
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"If it was easy, everybody would be doing it. It isn't, and they don't."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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