Archives for: February 2012, 18

02/18/12

Permalink 02:56:19 pm, by fourth, 190 words, 421 views   English (US)
Categories: General

JURIST: "FISA and the Battle Between National Security and Privacy"

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.

Permalink 01:50:43 pm, by fourth, 607 words, 642 views   English (US)
Categories: General

MA: Because of traffic offenses, smell of marijuana from car warranted search despite decriminalization

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. ...

Permalink 12:44:26 pm, by fourth, 171 words, 373 views   English (US)
Categories: General

NYTimes.com: "Drones Set Sights on U.S. Skies"

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.

Permalink 12:14:28 am, by fourth, 196 words, 367 views   English (US)
Categories: General

DC: SW for guns authorized search behind dresser

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).*

Permalink 12:02:17 am, by fourth, 116 words, 362 views   English (US)
Categories: General

W.D.Ark.: Defense counsel not ineffective for not playing video of stop that didn't contradict any witness

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).*

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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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