JURIST: FISA and the Battle Between National Security and Privacy by Jimmy Gurulé:

Defendant Mohanad Shareef Hammadi, an Iraqi citizen who was granted refugee status under the Refugee Admissions Program and resided in Bowling Green, Kentucky, was arrested and charged with 10 terrorism-related offenses. The indictment alleged that Hammadi and a co-defendant attempted to provide material support and resources to members of al Qaeda in Iraq, a designated foreign terrorist organization, including rocket-propelled grenade launchers, hand grenades, machine guns, cases of C4 plastic explosives, sniper rifles and money, to be used in the preparation for and killing of Americans located outside the US. Hammadi and his co-defendant were also charged with attempting to provide two Stinger surface-to-air missile launcher systems to al Qaeda in Iraq for the purpose of killing Americans abroad.

Prior to trial, Hammadi filed a motion to disclose and suppress evidence obtained pursuant to electronic surveillance and a physical search authorized under the Foreign Intelligence Surveillance Act (FISA). Hammadi alleged that the evidence should be suppressed on the grounds that it was illegally obtained or not collected in conformity with the order of the Foreign Intelligence Surveillance Court.

Smell of marijuana in a car also implicates the dangerous use of the car. Here, the officer observed three traffic violations in short order, and, on stopping the car, he smelled marijuana coming from the car. Commonwealth v. Cruz, 459 Mass. 459 (2011) [posted here] distinguished. Commonwealth v. Daniel, 81 Mass. App. Ct. 306, 962 N.E.2d 213 (2012):

Our analysis begins with the reasoning and holding of Cruz [decriminalization of marijuana and search], but does not end there because the criminality afoot in this case does not depend solely on the amount of marijuana present in the vehicle. Rather, it derives from the presence of a noticeable odor of freshly burnt marijuana inside a vehicle that was being operated in a dangerous manner on a public way by an operator who had marijuana on her person, together with a passenger who made movements in the vicinity of the glove box upon the approach of the officer. Put differently, what rendered the activities of Tayetto and Daniel criminal was not the amount of marijuana possessed, but their consumption of marijuana in a vehicle that was operating on the ways of the Commonwealth in a manner that put the public at considerable risk. See G. L. c. 90, §§ 24(1)(a)(1) (operating under the influence of marijuana), & 24(2)(a) (operating negligently so as to endanger the lives and safety of the public).

Here there was far more to establish criminality than the faint odor of marijuana emanating from an illegally parked vehicle. First was the manner of Tayetto's operation: she operated the vehicle at night without a driver's—side headlight; made a left intersection turn in front of DeLeo's cruiser without signaling; and in response to the cruiser's blue lights, applied the brakes immediately, stopping in the middle of the travel lane. Second was the likelihood that Daniel's movements signified his hiding of contraband. As DeLeo approached, Daniel was leaning over, and rocking his shoulders back and forth with his head down. Third was the noticeable odor of freshly burnt marijuana, which suggested an immediate explanation for Tayetto's erratic operation, followed by an explanation for the odor that DeLeo was free to reject as implausible given his observations, and Tayetto's quick surrender of two baggies of marijuana from her person. Viewed objectively and reasonably, and without parsing each individual component, these facts provided DeLeo with probable cause to believe that Tayetto and Daniel were engaged in the consumption of marijuana in a moving vehicle, that Tayetto's capacity to operate was impaired thereby, that Tayetto's negligent operation endangered the lives and safety of the public, and that additional marijuana and evidence of recent marijuana usage could be found inside the passenger compartment, including the glove box. See Commonwealth v. Garden, 451 Mass. at 50 ("any contraband hidden on the passengers' person easily could have been transferred to a location in the passenger compartment"). See also Commonwealth v. Correia, 66 Mass. App. Ct. 174, 177 (2006) (odor of burnt marijuana emanating from vehicle gave probable cause to search vehicle's occupants as well as vehicle for evidence of marijuana use and possession whether or not police had probable cause to arrest any particular occupant).

While it might have been preferable for DeLeo first to have made detailed observations of Tayetto's eyes or conducted field tests for additional evidence that she was operating under the influence of marijuana, his failure to do so is not fatal to the determination of probable cause. Having observed Tayetto commit three moving violations in the span of only a short distance, readily detected the odor of freshly burnt marijuana emanating from the passenger compartment, and recovered two baggies of marijuana from her person, DeLeo did not require more to establish probable cause. ...

NYTimes.com: Drones Set Sights on U.S. Skies by Nick Wingfield and Somini Sengupta:

WOODLAND HILLS, Calif. — Daniel Gárate’s career came crashing to earth a few weeks ago. That’s when the Los Angeles Police Department warned local real estate agents not to hire photographers like Mr. Gárate, who was helping sell luxury property by using a drone to shoot sumptuous aerial movies. Flying drones for commercial purposes, the police said, violated federal aviation rules.

“I was paying the bills with this,” said Mr. Gárate, who recently gave an unpaid demonstration of his drone in this Southern California suburb.

His career will soon get back on track. A new federal law, signed by the president on Tuesday, compels the Federal Aviation Administration to allow drones to be used for all sorts of commercial endeavors — from selling real estate and dusting crops, to monitoring oil spills and wildlife, even shooting Hollywood films. Local police and emergency services will also be freer to send up their own drones.

Officers had a search warrant for guns, and they searched defendant’s bedroom and found bag of marijuana behind a dresser, defendant's I.D. on the dresser, and a marijuana pipe and bong on a shelf in the closet. Those items were found in places the officers would have legally searched while looking for guns and ammunition pursuant to the warrant. State v. Shank, 2012 Iowa App. LEXIS 114 (February 15, 2012).*

The record here was insufficient to decide whether the defendant was not prejudiced by lack of evidence that defense counsel did not introduce. Moreover, “[g]iven the deficiencies in the factual record, we cannot uphold the court's denial of appellant's § 23-110 motion on the alternative ground urged by the government (i.e., that the motion to suppress that his trial counsel failed to file would not have resulted in the exclusion of evidence).” Remanded; the court does not think that the government abandoned its position on developing the record. Porter v. United States, 37 A.3d 251 (D.C. 2012).*

Defendant was not seized when he dropped a gun while fleeing, so defense counsel was not ineffective for not raising it. People v. Henderson, 2012 Ill. App. LEXIS 102, 2012 IL App (1st) 101494 (February 15, 2012).*

Defense counsel was not ineffective for not playing the video of defendant’s stop at the suppression hearing since it was merely cumulative to the officer’s testimony and contradicted nothing. United States v. Franklin, 2011 U.S. Dist. LEXIS 153257 (W.D. Ark. November 16, 2011).*

The search of defendant’s vehicle was with probable cause and involved the automobile exception and not Gant search incident. United States v. Winarske, 2012 U.S. Dist. LEXIS 19334 (D. N.D. February 16, 2012).*

The information provided in the affidavit showed probable cause [it clearly did], and, even if it didn’t, it’s not bare bones, and the good faith exception would apply. United States v. Escamilla, 2012 U.S. Dist. LEXIS 19079 (D. Md. February 15, 2012).*