Archives for: January 2012, 25


Permalink 10:01:19 am, by fourth, 719 words, 901 views   English (US)
Categories: General

MO: REP in cell phone provider records protects them from overbroad investigative subpoena

Overbroad investigative subpoena for defendant’s text messages violated his reasonable expectation of privacy. (The court includes stout support for a reasonable expectation of privacy in the product of a cell phone (omitted here, but read the opinion); just because government can get to something like the provider records doesn't mean there is no reasonable expectation of privacy.) State v. Clampitt, 364 S.W.3d 605 (Mo. App. 2011):

The rationale used by the Warshak court in establishing individuals' reasonable expectation of privacy in the contents of their email is equally applicable to cell phone users' expectation of privacy in the contents of their text messages. Cell phone providers have the ability to access their subscribers' text messages; however, the providers' ability to access those messages does not diminish subscribers' expectation of privacy in their text message communications. Rather, subscribers assume that the contents of their text messages will remain private despite the necessity of a third party to complete the correspondence. Callers have long enjoyed Fourth Amendment protection of the information they communicate over the phone. We see no reason why the same information communicated textually from that same device should receive any less protection under the Fourth Amendment.

Furthermore, society's continued expectation of privacy in communications made by letter or phone call demonstrates its willingness to recognize a legitimate expectation of privacy in the contents of text messages. What individuals once communicated through phone calls and letters can now be sent in a text message. Thus, as text messaging becomes an ever-increasing substitute for the more traditional forms of communication, it follows that society expects the contents of text messages to receive the same Fourth Amendment protections afforded to letters and phone calls. We therefore find that the trial court did not err in concluding that Clampitt had a reasonable expectation of privacy in the contents of his text messages.

. . .

The investigative subpoenas issued in this case were not sufficiently limited in scope or relevant in purpose. The trial court found that the State obtained copies of all text messages sent to and received by Clampitt for a thirty-two day period, which included the date of the accident and the following thirty-one days. The subpoenas did not request text messages Clampitt sent to or received from specific numbers; rather, the State obtained copies of all incoming and outgoing text messages, regardless of the recipient or sender. Furthermore, the Special Prosecutor testified that "[t]he period of time [specified in the subpoenas was] extended until such time as the defendant admitted that he was the driver of the vehicle." In other words, the State issued each consecutive subpoena because Clampitt made no admission within the time specified in the previous subpoena. If no evidence with which to charge Clampitt had come about, presumably the State would still be issuing subpoenas periodically in the hope of securing something it could use against him. The trial court found that the subpoenas were nothing but a fishing expedition, a finding amply supported by the record, and a practice uniformly recognized by the courts to be improper. Thus, even though the State contends the subpoenas were limited in scope because each subpoena requested text messages sent and received within specified dates, the only significance of those specified dates was that Clampitt had yet to admit he was the driver of the vehicle at the time of the accident. Therefore, by requesting all of Clampitt's incoming and outgoing text messages up until the time he came forward as the driver of the vehicle, the State failed to sufficiently limit the scope of information it requested in the investigative subpoenas.

. . .

Furthermore, the State had no relevant purpose for requesting Clampitt's incoming and outgoing text messages beyond the time of the accident. The trial court found that "the state was eavesdropping to see if the defendant would make an admission." By the Special Prosecutor's own testimony, the State sought the contents of Clampitt's text messages for the sole purpose of obtaining an admission from Clampitt as to who was driving the vehicle at the time of the accident. ...

Also, the good faith exception applies to police conduct, not overbroad prosecutor’s investigative subpoenas. And, Herring provides no recourse either.

One could almost say this is channeling the [hopeful] prospects of Jones, the day after and without citing it.

Permalink 09:46:55 am, by fourth, 142 words, 541 views   English (US)
Categories: General

Unconditional guilty plea waives search issue

The motion to suppress was heard and denied, and defendant’s guilty plea without a reservation of a conditional plea waived that. United States v. Lebron, 2012 U.S. Dist. LEXIS 6633 (D. R.I. January 20, 2012).*

“Movant's assertion that counsel was ineffective for failing to file pretrial motions in no way implicates the voluntariness of his plea of guilty. As a result, movant's plea of guilty prevents consideration of the third ground for review in this proceeding.” Swift v. United States, 2011 U.S. Dist. LEXIS 152097 (E.D. Tex. December 29, 2011).*

Defendant’s § 2255 claim that the prosecution, police, and defense counsel conspired to delete defendant’s girlfriend’s consent from the DVD of the stop did not show prejudice because the valid stop showed probable cause of drug possession that led to the search. Thomas v. United States, 2012 U.S. Dist. LEXIS 7091 (M.D. Tenn. January 20, 2012).*

Permalink 06:40:54 am, by fourth, 278 words, 549 views   English (US)
Categories: General

IL: Affidavit for drugs in blood was based on speculation and without PC; no GFE either

The affidavit for the search warrant for defendant’s blood for evidence of drug use in a DUI case was completely deficient and speculative. Accordingly, the good faith exception would not apply either. People v. Miranda, 2012 IL App (2d) 100769, 964 N.E.2d 1241 (2012):

[**11] Although this test is highly deferential, we must conclude that McLean's affidavit did not provide a substantial basis to find probable cause that testing defendant's urine would reveal the presence of any controlled substance. McLean's affidavit said next to nothing about controlled substances, and what scant mention it did make was unsupported by facts. McLean referred to finding physical evidence of alcohol consumption (the open Heineken bottles), but not to finding any physical evidence of drug use. He stated that he smelled alcohol on defendant's breath, observed standard indicia of alcohol intoxication, learned from defendant that he had consumed alcohol, and administered field sobriety tests that defendant failed. As a result of all of the foregoing, McLean "believed that [defendant] was under the influence of alcohol" (emphasis added) and arrested him for DUI. Conspicuously absent from McLean's detailed factual recitation was any reference to controlled substances or any evidence that defendant had used them. McLean did not state that any of these facts made him suspect that defendant had used controlled substances.

The evidence showed that the defendant only used the shed on a friend’s property when he was there visiting during the day, and then only to leave the bicycle he rode there, the backpack he wore, and his coat. Otherwise, nothing was kept there. That was not enough to create “standing” in the premises. People v. Nichols, 2012 IL App (2d) 100028, 964 N.E.2d 1190 (2012).*

Permalink 12:01:39 am, by fourth, 712 words, 781 views   English (US)
Categories: General

SCOTUS reverses CA9 denial of qualified immunity on exigent circumstances entry; and exigency gets another lift

Ryburn v. Huff, 2012 U.S. LEXIS 1063 (U.S. January 23, 2012) (per curiam), reversing in part Huff v. City of Burbank, 632 F. 3d 539 (9th Cir. January 11, 2011):

Judge Rawlinson dissented. She explained that “the discrete incident that precipitated the entry in this case was Mrs. Huff’s response to the question regarding whether there were guns in the house.” Id., at 31. She faulted the majority for “recit[ing] a sanitized account of this event” that differed markedly from the District Court’s findings of fact, which the majority had conceded must be credited. Judge Rawlinson looked to “cases that specifically address the scenario where officer safety concerns prompted the entry” and concluded that, under the rationale articulated in those cases, “a police officer could have reasonably believed that he was justified in making a warrantless entry to ensure that no one inside the house had a gun after Mrs. Huff ran into the house without answering the question of whether anyone had a weapon.” Id., at 31, 33, 37.

Judge Rawlinson’s analysis of the qualified immunity issue was correct. No decision of this Court has found a Fourth Amendment violation on facts even roughly comparable to those present in this case. On the contrary, some of our opinions may be read as pointing in the opposition direction.

In Brigham City v. Stuart, 547 U. S. 398, 400 (2006), we held that officers may enter a residence without a warrant when they have “an objectively reasonable basis for believing that an occupant is ... imminently threatened with [serious injury].” We explained that “‘[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’” Id., at 403 (quoting Mincey v. Arizona, 437 U. S. 385, 392 (1978)). In addition, in Georgia v. Randolph, 547 U. S. 103, 118 (2006), the Court stated that “it would be silly to suggest that the police would commit a tort by entering [a residence] ... to determine whether violence ... is about to (or soon will) occur.”

A reasonable police officer could read these decisions to mean that the Fourth Amendment permits an officer to enter a residence if the officer has a reasonable basis for concluding that there is an imminent threat of violence. In this case, the District Court concluded that petitioners had such an objectively reasonable basis for reaching such a conclusion.

The Ninth Circuit's panel was a little too ivory tower for SCOTUS. A hang-up when the police called inside did not have to be blown off as the people inside just exercising their right not to talk to the police because it could have meant more:

The panel majority—far removed from the scene and with the opportunity to dissect the elements of the situation—confidently concluded that the officers really had no reason to fear for their safety or that of anyone else. As the panel majority saw things, it was irrelevant that the Huffs did not respond when the officers knocked on the door and announced their presence and when they called the home phone because the Huffs had no legal obligation to respond to a knock on the door or to answer the phone. The majority attributed no significance to the fact that, when the officers finally reached Mrs. Huff on her cell phone, she abruptly hung up in the middle of their conversation. And, according to the majority, the officers should not have been concerned by Mrs. Huff’s reaction when they asked her if there were any guns in the house because Mrs. Huff “merely asserted her right to end her conversation with the officers and returned to her home.”

See School Law Blog.

But see Kentucky v. King, 131 S.Ct. 1849 (2011): “Others may appreciate the opportunity to make an informed decision about whether to answer the door to the police.”

Exigent circumstances in SCOTUS gets another lift, almost to the point that purported exigency is looking to outweigh search warrants. The court is nibbling around the “sanctity of the home” everywhere it can. See Silverman v. United States, 365 U.S. 505, 511 (1961) (“At [the Fourth Amendment’s] very core stands the right of a man to retreat to his own home and there be free from unreasonable governmental intrusion.” Silverman was cited with approval the same day as Ryburn in United States v. Jones, 10–1259 (U.S. January 23, 2012).

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting

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2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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