Archives for: February 2012, 20

02/20/12

Permalink 03:55:40 pm, by fourth, 182 words, 534 views   English (US)
Categories: General

IT World: "SOPA replacement uses child porn as excuse to spy on 99.7 percent of Americans"

IT World.com: SOPA replacement uses child porn as excuse to spy on 99.7 percent of Americans / SOPA author Lamar Smith pushing bill to make web sites track every user's every move by Kevin Fogarty:

The SOPA and PIPA bills that went down in flames earlier this year for their unbearable intrusiveness, used content piracy as an excuse to give the government powerful tools with which to censor Internet content.

For 2012 the primary author of those bills has switched to a fallback tactic: using child porn as an excuse to create a vast surveillance network from which the government can demand data on every email sent, site visited or link clicked on by all but a fraction of one percent of the U.S. population.

Internet anti-censorship advocates including Anonymous are calling for the ouster of Texas Congressman Lamar Smith, who is following his co-sponsorship of the failed Stop Online Piracy Act (SOPA) with a bill critics call "Big Brother" disguised as an effort to curb child porn and sexual abuse.

The link I can't imbed: http://www.itworld.com/security/251584/sopa-replacement-uses-child-porn-excuse-spy-997-percent-americans

Permalink 12:24:27 am, by fourth, 330 words, 427 views   English (US)
Categories: General

FL1: Wife had no apparent or actual authority to consent to search of safe in shared bedroom where she had no key and nothing in it

Defendant’s wife had no apparent or actual authority to consent to a search of a safe in their bedroom where she had nothing in the safe and did not have a key to it. King v. State, 79 So. 3d 236 (Fla. 1st DCA 2012):

At the motion hearing, the wife testified that (1) the safe was given to her husband by his mother; (2) she did not have a key to the safe; (3) the safe housed her husband's personal belongings; and (4) she did not have any of her personal belongings inside. As such, the wife did not have the actual authority to consent because she did not mutually use the safe. Marganet, 927 So. 2d at 57-58.

Second, the State argues the officers had apparent authority to search the safe because it was found amidst the belongings of both spouses in their jointly owned bedroom and closet. However, "[l]aw enforcement may only rely on a person's apparent authority to give consent if such consent is reasonable given the totality of the circumstances." Brock v. State, 24 So. 3d 703, 704 (Fla. 1st DCA 2009) (citing State v. Young, 974 So. 2d 601, 609 (Fla. 1st DCA 2008)). If the basis for the asserted authority is not clear, the officer must conduct further inquiry before relying on the third party's representations. Id. Here, prior to prying open the safe, the officer knew the wife did not have a key and that the safe contained appellant's personal property. As such, it was incumbent upon him to conduct a further inquiry into the possession of the safe prior to forcing it open. For these reasons, we reverse the motion to suppress and remand for further proceedings consistent with this opinion.

We also reject the argument that exigent circumstances justified the warrantless search. Once the officers had secured the safe, there was no reasonable probability that evidence would be destroyed or that the failure to conduct an immediate search would endanger persons or property.

[Having to pry open the safe might have been a clue.]

Permalink 12:14:24 am, by fourth, 184 words, 411 views   English (US)
Categories: General

OH12: Counsel talking with client within earshot of courtroom security was not privileged communication; they waived REP

Overhearing a conversation between attorney and client in the courtroom in front of a courtroom security officer was not a violation of the Fourth or Sixth Amendment because they chose to talk within earshot of him. “Had Lawson and his counsel wished to protect the right to private consultation, they could have chosen to discuss matters in the jail where Lawson had the right to hold discussions with counsel without security personnel in the room. Such was Lawson's right. His choice not to do so, however, is not a violation of his constitutional right to counsel.” This is not a situation of an overheard private conversation where there was an expectation of privacy. State v. Lawson, 2012 Ohio 548, 2012 Ohio App. LEXIS 481 (12th Dist. February 13, 2012).

“Fruits of the crime” from state Rule 41 in the search warrant was an adequate description where it was not possible for officers to specify what the proceeds would be. The police validly seized the goods, but it wasn’t good enough to convict for possession of proceeds because it was speculation. State v. Conway, 2012 Ohio 590, 2012 Ohio App. LEXIS 514 (8th Dist. February 16, 2012).

Permalink 12:01:40 am, by fourth, 261 words, 495 views   English (US)
Categories: General

LA2: Error of other references of name of person to be searched in SW was correctable at suppression hearing

The search warrant for blood was based on a template that had the name of another person in the warrant too. This was a mere typographical error that was correctable by the court [citing no case law at all]. State v. Green, 91 So. 3d 315 (La. App. 2 Cir. 2012):

The blood sample taken from the defendant was withdrawn pursuant to a warrant issued based on a probable cause affidavit. The affidavit submitted in support of the warrant application inadvertently contained in several places the name of an individual not associated with the case. The attesting officer utilized a template to generate the affidavit and failed to change the name of the accused to the defendant's name in several places. The affidavit, however, also contained the name, date of birth and address of the defendant, sufficiently describing the defendant as the person from whom evidence was being sought. In addition, the search warrant contained only the name of the defendant. Since it is apparent from the four corners of the affidavit that the defendant was the individual from whom the evidence was to be seized, the mistaken references to the other individual are not fatal to the affidavit.

Defendant’s tractor trailer logbooks made little sense and also showed that defendant came from California heading to Miami, but he’d gone through Montana. Defendant couldn’t account for his downtime, and the officer brought the defendant between the vehicles to talk to him. He asked for consent to use a drug dog which defendant consented to. Freeman v. State, 2012 Ark. App. 144, 391 S.W.3d 682 (2012).*

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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  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)

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  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
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  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."
—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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