Archives for: February 2012, 05


Permalink 05:31:12 pm, by fourth, 158 words, 386 views   English (US)
Categories: General

WaPo: "Beware of privacy policies: Time to clean up your digital footprint"

WaPo: Beware of privacy policies: Time to clean up your digital footprint by Melissa Bell:

Last week, Google tracked the Web sites I visited and, like most technology companies, tried to guess who I was based on the places I visited. Its goal: to target advertising to me. The result? The search engine thought I was a 70-year-old man based in Atlanta.

I am not a man, not 70 and haven’t had the privilege of visiting the Peach State. Google’s guessing game might improve, though, thanks to a change in its privacy policies launched Wednesday. Now all the company’s products are governed by one policy, which lets the company track what I write on Gmail and compare it to what I watch on YouTube — all to better direct ads to me.

Why is facebook worth $75B? The information it has collected on 875M people.

When will the government start datamining to target people? It already can.

Permalink 09:15:38 am, by fourth, 355 words, 364 views   English (US)
Categories: General

FL2: Permitting officers through a gate was not consent to roam the curtilage

Officers asked defendant whether they could come through his gate to talk to him, and he agreed. That did not amount to consent to roam the curtilage or search the house. Ferrer v. State, 2012 Fla. App. LEXIS 1406 (Fla. App. 2d DCA February 3, 2012):

We reject the State's contention that once Ferrer open the locked gate, general "knock-and-talk" principles authorized the deputies to proceed to the front door area. See, e.g., State v. Navarro, 19 So. 3d 370, 372-73 (Fla. 2d DCA 2009). The State argues that because the officers were free to proceed to the front door of the house to knock and talk, the evidence of marijuana was legally obtained under the "plain smell" doctrine. However, the facts of this case do not demonstrate the implied general consent to enter the curtilage of the house that provides the basis for entry to conduct a knock-and-talk investigation. Rather than leaving his property open for any member of the public to enter, Ferrer had taken steps to keep out uninvited visitors by fencing it and erecting an electric gate across his driveway, thereby demonstrating an expectation of privacy. Cf. Nieminski v. State, 60 So. 3d 521, 525-27 (Fla. 2d DCA 2011) (finding no violation of privacy where officers entered fenced property through a closed, but unlocked, gate). Thus, while officers were free to approach the gate to conduct a knock and talk—which they did—the area inside the fence fell under the same constitutional protections as the residence itself, and the officers were not at liberty, absent consent, to approach the residence. Compare Fernandez v. State, 63 So. 3d 881, 883-84 (Fla. 3d DCA 2011) (holding that the defendant had a reasonable expectation of privacy in the fenced yard adjacent to his residence and that the momentary opening of the gate to allow the defendant to leave was not an invitation for police to enter); with State v. Triana, 979 So. 2d 1039, 1045 (Fla. 3d DCA 2008) (finding no constitutional violation where the police had a consensual encounter with the defendant outside of the locked gate to the defendant's property and the defendant agreed to a search and opened the gate to allow the police to enter).

Permalink 09:02:14 am, by fourth, 136 words, 366 views   English (US)
Categories: General

N.D.Ohio: Gov't showed established inventory policy to justify it

Because the government showed that the inventory was under an established policy, the inventory was valid. United States v. $677,660.00 in United States Currency, 2012 U.S. Dist. LEXIS 12948 (N.D. Ohio February 2, 2012).*

Defendant’s driving 80 miles an hour on the wrong side of the road, trying to elude police, and then crashing the car and fleeing was probable cause to search the car. United States v. Christian, 2012 U.S. Dist. LEXIS 12147 (N.D. Ga. January 5, 2012).*

Defendant got out of the vehicle searched, but he never alleged any facts that suggested that he had standing in the first place. United States v. Harris, 2012 U.S. Dist. LEXIS 12976 (W.D. Ky. February 2, 2012).*

The CI’s tale here was similar to Draper, and that provided probable cause. United States v. Sanchez-Manzanarez, 2012 U.S. Dist. LEXIS 12757 (S.D. N.Y. February 2, 2012).*

Permalink 08:47:02 am, by fourth, 306 words, 607 views   English (US)
Categories: General

CA6: "Full and fair" opportunity to litigate search in state court bars its habeas review

I ignore 99% habeas cases because of Stone v. Powell coupled with AEDPA making them largely redundant since based on a pro se habeas petition, but occasionally one shows up worth reporting; but always a federal appeal:

2254 habeas petitioner had a “full and fair” opportunity to litigate his search and seizure claim in state court, and the habeas court could not second guess it's decision and will not permit litigation of a defaulted claim. Fulcher v. Logan County Circuit Court, 2012 U.S. App. LEXIS 1908, 2012 FED App. 0112N (6th Cir. January 31, 2012) (unpublished):

Upon review, we hold that Fulcher had a full and fair opportunity to litigate his Fourth Amendment claims in state court. As his primary argument, Fulcher asserts that the Kentucky State Police acted in bad faith in obtaining the August 3 search warrant, which he contends was not supported by probable cause. This precise issue, however, was addressed at trial and reviewed by the Kentucky Supreme Court. Fulcher II, 2007 Ky. Unpub. LEXIS 45, 2007 WL 1536854, at *3-*4. Moreover, there is no evidence indicating that Fulcher's presentation of his claim was somehow frustrated. Accordingly, Fulcher's arguments before this court, which go to the "correctness" of the Kentucky Supreme Court's analysis, will not be considered. Riley, 674 F.2d at 526.

With regard to the July 24 search, Fulcher again asserts that the warrant was not supported by probable cause. This claim, like the first, is not cognizable on habeas review as Fulcher had a "full and fair" opportunity to litigate this claim in state court. Id. What's more, this claim is procedurally defaulted, as Fulcher failed to challenge the July 24 search on direct appeal and he may no longer assert the claim in state-court proceedings. Fulcher II, 2007 Ky. Unpub. LEXIS 45, 2007 WL 1536854, at *3 n.1. Accordingly, the claim is barred.

Remember, the only exception to "full and fair" is ineffective assistance under Kimmelman v. Morrison.

Permalink 12:06:35 am, by fourth, 183 words, 403 views   English (US)
Categories: General

WV: Cell phone seized with SW could be searched under that warrant

Where a cell phone was seized under a search warrant, a separate search warrant was not required to search it under Ross. State v. White, 2011 W. Va. LEXIS 761 (February 10, 2011) [yes, a year ago]:

Accordingly, we now expressly hold that, when searching a vehicle pursuant to a valid search warrant, no additional search warrant is required to examine the contents of items that are properly seized in the execution of the warrant, including, but not limited to, cellular telephones. Applying this holding to the case at hand, we find the contents of the Motorola cellular telephone seized from Mr. Mahrous's yellow truck were properly examined by law enforcement officials. Therefore, the trial court did not err in denying Mr. White's motion to suppress evidence that was obtained as a result of that examination.

Defendant and the passengers were all out of the car and frisked after defendant was stopped. The officers articulated no reason to search the car. However, defendant consented to a dog search of the car, and that gave probable cause. United States v. Campbell, 2011 U.S. Dist. LEXIS 152725 (D. Me. December 6, 2011).*

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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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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:
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  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
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  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."

"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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