Archives for: February 2012, 07

02/07/12

Permalink 10:45:33 am, by fourth, 59 words, 457 views   English (US)
Categories: General

NYTimes: "‘We the People’ Loses Appeal With People Around the World"

NYTimes: ‘We the People’ Loses Appeal With People Around the World by Adam Liptak:

The Constitution has seen better days.

Sure, it is the nation’s founding document and sacred text. And it is the oldest written national constitution still in force anywhere in the world. But its influence is waning.

Same with the Fourth Amendment and personal privacy.

Permalink 09:05:52 am, by fourth, 384 words, 422 views   English (US)
Categories: General

PA: Using somebody else's email account doesn't give standing to challenge SW for email

This child pornography investigation involved search warrants for AOL emails, a subpoena for subscriber information, then a search warrant for the offending computer as it is supposed to be done. The only issue was whether the first search warrant for the emails was stale where the information was six months old. As an aside, the court notes that defendant probably did not have standing because the account was not in his name, and the issue is saved for another day. Commonwealth v. Hoppert, 2012 PA Super 21, 39 A.3d 358 (2012), n.3:

We further note that while neither party nor the trial court raised the issue, we question whether Appellant had an expectation of privacy in the AOL records that were the subject of the first search warrant. “[A]s a preliminary matter, [a defendant] must show that he had a privacy interest in the area searched.” Commonwealth v. Jones, 874 A.2d 108, 117 (Pa. Super. 2005). Here, the AOL account was registered to Sallie Hoppert, not Appellant.

Although it does not appear that Pennsylvania courts have addressed the expectation of privacy in computer user accounts, we note that another panel of this Court recently examined the issue in relation to cellular phone records in Commonwealth v. Benson, 10 A.3d 1268 (Pa. Super. 2010). In Benson, the defendant sought to suppress records related to a cellular phone owned by his then-girlfriend, on a cell phone primarily used by him. We ultimately concluded:

[W]hile Appellant had use of the telephone, the bills in question were not his telephone bills. ...Appellant had no legal right to request or control access to the information from the telephone company because he was not the owner of the telephone. He had no legitimate expectation of privacy in them.

Id. at 1273-1274 (emphasis in original). Moreover, our decision in Benson relied upon a 2008 Washington Court of Appeals case wherein that court held that “a defendant did not have a legitimate expectation of privacy in telephone bills in the name of defendant’s wife.” Id. at 1273 (emphasis added).

However, because the precise issue was not squarely before the trial court, we do not reach a decision as to whether Appellant had an expectation of privacy in the AOL records held in his wife’s name. We merely note this threshold requirement for future guidance for both bench and bar.

Permalink 08:47:04 am, by fourth, 210 words, 388 views   English (US)
Categories: General

ID: This motorist was free to ignore the officer's tapping on his window; he consented to a stop

Defendant was convicted of felony DUI. An officer came up to defendant’s parked car and tapped on the window. Defendant was free to ignore it. State v. Randle, 2012 Ida. App. LEXIS 11 (February 6, 2012). [I still don’t buy this utter fiction. People who ignore police “commands” or even suggestions do it at their peril, and most of them know it. Only the truly street smart would walk away. Probably what’s more laughable is watching the DA and the LEO argue to the court that he was free to ignore it all to justify the stop. In my jurisdiction, and most of them, you'd be arrested for driving off. I’m representing a guy Tasered in the back three times for not responding fast enough to what was supposedly a “consensual encounter.”]

Defendant was stopped for DUI3 based on his making a wide right turn in violation of statute. Because the officer’s interpretation of the statute was reasonable, the stop was based on reasonable suspicion. State v. Dahl, 2012 SD 8, 809 N.W.2d 844 (2012).*

While proximity to a possible crime is not enough to search, the officers here knew more, and that justified the stop of defendant’s vehicle. United States v. Landeros-Sandovar, 2011 U.S. Dist. LEXIS 152784 (W.D. Ky. October 28, 2011).*

Permalink 08:07:08 am, by fourth, 436 words, 1023 views   English (US)
Categories: General

NJ declines to limit Pena-Flores on the automobile exception

NJ refuses to overrule State v. Pena-Flores without a full statistical record. The one proffered by the state was too limited. State v. Shannon, 210 N.J. 225, 43 A.3d 1146 (2012)*:

In these companion cases, the State asks the Court to revisit its recent decision in State v. Pena-Flores, 198 N.J. 6, 965 A.2d 114 (2009), which addressed the proper standard for warrantless searches of motor vehicles. The State contends that the decision's impact on police practices and New Jersey motorists provides special justification to overturn Pena-Flores. As support, the State relies in part on certain data taken only from New Jersey State Police motor vehicle stops. That data represents a fraction of statewide encounters with motorists and covers the limited period of time since Pena-Flores went into effect.

We do not find sufficient support in the current record to establish the "special justification" needed to depart from precedent. State v. Brown, 190 N.J. 144, 157, 919 A.2d 107 (2007) (quoting Dickerson v. United States, 530 U.S. 428, 443, 120 S. Ct. 2326, 2336, 147 L. Ed. 2d 405, 419 (2000)). We rely on the Attorney General, the Public Defender, the American Civil Liberties Union, appearing in this matter as amicus curiae, and other interested non-parties to amass and develop a more thorough, statistical record over time relating to motor vehicle stops by the State Police and local authorities.

To the extent that it is impractical to collect data from local law enforcement throughout the entire State, data from representative urban, suburban, and rural areas may suffice. That information should include, where possible, (a) the total number of motor vehicle stops, (b) the number of warrantless probable cause searches conducted, consent searches requested, consent searches conducted, and vehicles impounded -- both before and after Pena-Flores -- and (c) other relevant information.

The first paragraph of Pena-Flores:

At issue in these appeals, which we have consolidated for the purpose of this opinion, is the automobile exception to the warrant requirement. Today, we reaffirm our longstanding precedent that permits an automobile search without a warrant only in cases in which the police have both probable cause to believe that the vehicle contains evidence and exigent circumstances that would justify dispensing with the warrant requirement. The question of whether exigent circumstances exist is to be determined, as it has always been, on a case-by-case basis with the focus on police safety and preservation of evidence.

Don't be concerned about the court relying on the ACLU--New Jersey has been sued repeatedly over the last two decades for racial profiling and other abuses, and most have been proved. See, e.g., State v. Carty, 170 N.J. 632, 790 A.2d 903 (2002), discussing the statistic proof of driving while black and intimidation once stopped.

Permalink 07:39:43 am, by fourth, 232 words, 365 views   English (US)
Categories: General

CA6: Ongoing traffic offense does not create right to an immediate stop

The officer waited four hours observing defendant’s vehicle license was expired to stop defendant, ostensibly because the officer was investigating another more serious crime. Neither the delay nor ulterior motive made the stop invalid because of the ongoing nature of the traffic violation, which is distinguished from discrete traffic offenses. United States v. Anderson, 458 Fed. Appx. 440, 2012 FED App. 0108N (6th Cir. 2012) (unpublished). [Opinion has numerous citations.]

To get a suppression hearing on a search warrant, the defendant has to make a showing that contested facts exist. Here, the record is devoid of anything showing who owned the van, and that was a lack of standing. Even if there was standing, there was probable cause. United States v. Harris, 2012 U.S. Dist. LEXIS 12976 (W.D. Ky. February 2, 2012):

While the defendant seeks to probe various statements in the affidavit, he has, in fact, not shown that any contested facts exist. Harris is not entitled to an evidentiary hearing in the absence of such a showing. "An evidentiary hearing is required 'only if the motion is sufficiently definite, specific, detailed, and non-conjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.' United States v. Downs, No. 96-3862, 1999 WL 130786, at *3 (6th Cir. Jan. 19, 1999) (citing United States v. Unimex, Inc., 991 F.2d 546, 551 (9th Cir.1993)) (emphasis supplied)." US v. Abboud, 438 F.3d 554, 557 (6th Cir. 2006).

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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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