Archives for: April 2012, 26


Permalink 02:22:49 pm, by fourth, 913 words, 2847 views   English (US)
Categories: General

FL drug testing law unconstitutional [Updated with link]

Update: American Federation of State County and Municipal Employees, Council 79 v. Scott, 857 F. Supp. 2d 1322 (S.D. Fla. 2012):

To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing. Chandler, 520 U.S. at 313. To warrant an exception from the main rule, the government must show that it has a “special need, beyond the normal need for law enforcement.” Id. When, as here, the government alleges such a need, “courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties.” Id. at 314. The permissibility of a drug-testing program "is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Skinner, 489 U.S. at 619-620 (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979)).

. . .

Moving to the Georgia statute [in Chandler] in question, the Court held that merely aspirational goals, such as promoting public confidence and trust in elected officials and demonstrating the government’s commitment to the struggle against drug abuse, which are not tied to any real, concrete danger, do not constitute a “special need” sufficient to exempt a state from its normal Fourth Amendment requirements. According to the Court, Georgia had failed to present any evidence of a “concrete danger” that would demonstrate that the hazards the state sought to avoid were “real and not simply hypothetical.” Id. at 319-20. In particular, the state had asserted “no evidence of a drug problem among the State's elected officials,” nor did the covered individuals “typically ... perform high-risk, safety sensitive tasks.” Id. “Symbolic” public concerns, the Chandler Court concluded, warrant no special departure from the Fourth Amendment. Id. at 322.

. . .

In other words, the Governor’s safety rationale for the EO essentially relies on the Governor's common sense belief that because illegal drug use exists in the general population, it must also exist among state employees. And, the Governor predicts these drug-impaired employees will be less reliable and more accident-prone; thus, a public benefit will be attained by ensuring that all state employees under the Governor's purview are drug-free. The Governor may be right, but unlike the programs in Skinner, Nat’l Treasury, and Vernonia, which were moored to concrete dangers, the Governor’s program is detached from any readily-apparent or demonstrated risk. Rather, the Governor’s broadly-defined objectives more closely resemble the state of Georgia’s argument, rejected in Chandler, that the testing of state officials was justified because “the use of illegal drugs draws into question an official's judgment and integrity; jeopardizes the discharge of public functions, including antidrug law enforcement efforts; and undermines public confidence and trust in elected officials.” 520 U.S. at 318. And in Chandler, the Supreme Court held that without evidence of a drug problem among the state’s elected officials (who typically do not perform high-risk, safety-sensitive tasks), this justification was “symbolic, not ‘special,’” as required by the relevant precedents. Id. at 322.

The Union here asks for a permanent injunction, which requires three elements: (1) there was a legal violation; (2) there is a serious risk of continuing irreparable injury if an injunction is not granted; and (3) there are no adequate remedies at law. Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000). Here, the Court finds that the EO, as applied to current employees at the covered agencies, is violative of the Fourth Amendment, and that these employees will suffer irreparable harm if subjected to it. See Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992) (holding that Fourth Amendment violation is enough to show irreparable harm); see also Am. Fed'n of Teachers-West Va., AFL-CIO v. Kanawha Cnty. Bd. of Educ., 592 F. Supp. 2d 883 (S.D.W. Va. 2009); Bannister v. Bd. of Cnty. Comm'rs of Leavenworth Cnty., Kan., 829 F. Supp. 1249 (D. Kan. 1993); Marchwinski v. Howard, 113 F. Supp. 2d 1134 (E.D. Mich. 2000), but see 309 F.3d 330 (6th Cir. 2002) (holding that district court erred in granting preliminary injunction) vacated by 319 F.3d 258 (6th Cir. 2003). The Court also concludes that there is no adequate remedy at law in light of the immeasurable nature of the harm that will flow from the EO’s implementation; were the EO to be implemented, the current employees at the covered agencies would suffer a Fourth Amendment violation that cannot be remedied in monetary terms. “Indeed, one reason for issuing an injunction may be that damages, being immeasurable, will not provide a remedy at law.” Treasure Valley Potato Bargaining Asso. v. Ore-Ida Foods, Inc., 497 F.2d 203, 218 (9th Cir. 1974), cert. denied 419 U.S. 999 (1974).

The Court is mindful, however, that injunctive relief should be limited in scope to the extent necessary to protect the interests of the parties. See Gibson v. Firestone, 741 F.2d 1268, 1273 (11th Cir. 1984). Because the Union did not contend that the EO is unconstitutional as applied to “prospective new hires,” meaning individuals who are not currently employed at covered agencies, the Court does not reach the issues of whether such prospective employees can be subjected to preemployment testing and subsequent random drug testing pursuant to the EO. However, the relief encompasses both Union and non-Union employees because the EO is unconstitutional as applied to them for precisely the same reasons. Accordingly, the Court grants permanent injunctive relief to all individuals currently employed at covered agencies. Judge Rejects Florida State Employee Drug Testing by Phillip Smith Rick Scott's state worker drug tests ruled unconstitutional by Mike Marino

HuffPo: Rick Scott Drug Testing Executive Order Ruled Unconstitutional By Federal Judge by Arthur Delaney Judge: Fla. worker drug testing unconstitutional

Permalink 05:36:08 am, by fourth, 194 words, 2349 views   English (US)
Categories: General

D.Kan.: Consent to a "quick look" in the car did not prohibit use of a density meter

“[T]he court does not find that Deputy Schneider's use of the density meter was unauthorized by the defendant’s consent to ‘take a quick look in the car.’” The search took six minutes and qualified. United States v. Long Tien Dang, 2012 U.S. Dist. LEXIS 56875 (D. Kan. April 24, 2012).*

A general objection to a USMJ’s R&R only requires plain error review. United States v. Sanchez-Tamayo, 2012 U.S. Dist. LEXIS 57126 (N.D. Ga. April 23, 2012) (USMJ 2011 U.S. Dist. LEXIS 154851 (N.D. Ga. November 28, 2011)*:

Defendants make no attempt to specify why they disagree with the magistrate judge's conclusions. "In order to trigger de novo review of an R&R, the objection must be 'specific.'" United States v. Diaz, No. 1:09-CR-0037-WBH, 2011 WL 344093, at *1 (Jan. 31, 2011) (quoting Fed. R. Civ. P. 59(b)(2)). "General objections which reassert arguments by reference to prior pleadings do not suffice." Id. (citing Nettles v. Wainwright, 677 F.2d 404, 410 n. 8 (5th Cir. 1982). In the absence of objections filed in accordance with Rule 59(b)(2), this court need only perform plain error review. Id.

Running a stop sign was reason enough for a stop. State v. Edmonds, 2012 Tenn. Crim. App. LEXIS 241 (April 23, 2012).*

Permalink 05:22:08 am, by fourth, 137 words, 2319 views   English (US)
Categories: General

CA11: Not much seems to be required for an alien smuggling stop

How much does it take to be suspected of smuggling aliens? Not much. United States v. Castillo-Gamez, 466 Fed. Appx. 859 (11th Cir. 2012)*:

Here, the district court properly concluded that Barrientos had a reasonable suspicion that the minivan carried illegal aliens. As Barrientos testified, the minivan had out-of-state license plates, tinted windows, and appeared to be weighted down. Barrientos knew that smugglers often used I-95 to avoid the cameras and tolls on the Florida Turnpike. And when he pulled along side the minivan, Barrientos noticed that Castillo-Gamez appeared stiff and did not make eye contact. Considering these facts together, Barrientos had a reasonable suspicion that the minivan contained illegal aliens. See Bautista-Silva, 567 F.3d at 1272-74.

Defendant couldn’t appeal the search issue in his guilty plea without a conditional plea. United States v. Dorsey, 467 Fed. Appx. 304 (5th Cir. 2012).*

Permalink 04:55:45 am, by fourth, 150 words, 2288 views   English (US)
Categories: General

W.D.Va.: Franks claim that was speculative has to be rejected

Defendant’s Franks claim was based on speculation and is unsupported by the tenor of the affidavit. If the officers had looked at his laptop and seen the child pornography, that would have only strengthened the probable cause, and it didn’t. United States v. Miller, 2012 U.S. Dist. LEXIS 56878 (W.D. Va. April 24, 2012).*

Defendant’s evasive behavior in replacing the license plate on his car to avoid detection when he was being investigated for a grow operation was reasonable suspicion. When officers stopped him, he was cooperative and admitted what he was doing. United States v. Valerio, 869 F. Supp. 2d 1366 (S.D. Fla. 2012).*

Defense counsel was not ineffective for not challenging the delay during a stop where it took time for the owner of the car to arrive or in challenging a stop based on a clear speeding violation. Owens v. United States, 869 F. Supp. 2d 653 (M.D. Pa. 2012).*

Permalink 04:37:24 am, by fourth, 160 words, 2521 views   English (US)
Categories: General "Security Experts Send Congress Letter on Fourth Amendment Busting CISPA" Security Experts Send Congress Letter on Fourth Amendment Busting CISPA by Kurt Nimmo:

On Monday, a group of prominent engineers, professionals and academics posted an open letter to Congress stating their opposition to CISPA, the Cyber Intelligence Sharing and Protection Act that trashes the Fourth Amendment and privacy of internet users.

Later this week, CISPA will go to the House floor for a vote. On Monday, Rep. Ron Paul said CISPA represents the “latest assault on Internet freedom” and “is Big Brother writ large.”

Rep. Rogers’ Cyber Intelligence Sharing and Protection Act of 2011 (H.R. 3523) and Sen. McCain’s SECURE IT Act (S. 2151) “nullify current legal protections against wiretapping and similar civil liberties violations for that kind of broad data sharing,” the letter states. “By encouraging the transfer of users’ private communications to US Federal agencies, and lacking good public accountability or transparency, these ‘cybersecurity’ bills unnecessarily trade our civil liberties for the promise of improved network security.”

Permalink 04:26:04 am, by fourth, 119 words, 2343 views   English (US)
Categories: General

CA11: Wife who left house after an argument could still consent to search

Defendant’s wife left the house after an argument and went to her father’s to spend the night. She validly consented to a search of the house even though temporarily out. She was a co-owner, had her stuff there, and still lived there with equal control over the premises. United States v. Mooney, 470 Fed. Appx. 778 (11th Cir. 2012).

Stop was justified by following too close, and defendant was properly put into the patrol car for lying about possessing weapons. State v. Demcovitz, 2012 Tenn. Crim. App. LEXIS 239 (April 20, 2012).*

Traffic stop led to inconsistent answers and reasonable suspicion which led to valid consent and a hidden compartment with drugs. United States v. Soto, 2012 U.S. Dist. LEXIS 56304 (E.D. Ark. April 3, 2012).*

Permalink 04:19:16 am, by fourth, 185 words, 2414 views   English (US)
Categories: General

HuffPo: "TSA Defends Pat-Down Of Crying 4-Year-Old Girl At Kansas Airport"

HuffPo: TSA Defends Pat-Down Of Crying 4-Year-Old Girl At Kansas Airport by Roxana Hegeman:

WICHITA, Kan. -- The grandmother of a 4-year-old girl who became hysterical during a security screening at a Kansas airport said Wednesday that the child was forced to undergo a pat-down after hugging her, with security agents yelling and calling the crying girl an uncooperative suspect.

The incident has been garnering increasing media and online attention since the child's mother, Michelle Brademeyer of Montana, detailed the ordeal in a public Facebook post last week. The Transportation Security Administration is defending its agents, despite new procedures aimed at reducing pat-downs of children.

The child's grandmother, Lori Croft, told The Associated Press that Brademeyer and her daughter, Isabella, initially passed through security at the Wichita airport without incident. The girl then ran over to briefly hug Croft, who was awaiting a pat-down after tripping the alarm, and that's when TSA agents insisted the girl undergo a physical pat-down.

Isabella had just learned about "stranger danger" at school, her grandmother said, adding that the girl was afraid and unsure about what was going on.

Permalink 03:46:46 am, by fourth, 240 words, 398 views   English (US)
Categories: General

New Law Review article: "A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases"

New Law Review article: A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases by David H. Kaye on SSRN. Abstract:

Routine DNA sampling following a custodial arrest process is now the norm in many jurisdictions, but is it consistent with the Fourth Amendment? The few courts that have addressed the question have disagreed on the answer, but all of them seem to agree on two points: (1) the reasonableness of the practice turns on a direct form of balancing of individual and governmental interests; and (2) individuals who are convicted — and even those who are merely arrested — have a greatly diminished expectation of privacy in their identities. This Article disputes these propositions and offers an improved framework for analyzing the constitutionality of databases of biometric data. It demonstrates that the opinions on DNA collection before conviction have lost sight of the foundations of balancing tests in Fourth Amendment analysis. It argues that balancing is acceptable only for “special needs” or “administrative search” cases, or for defining new exceptions to the warrant requirement of the Fourth Amendment. The Article examines how DNA collection before conviction might be brought under the traditional special-needs doctrine and how it might fit within a new, but coherent exception for certain forms of biometric data. This framework permits the courts to analyze DNA databases without diluting the protections guaranteed by the Fourth Amendment, and it provides a sound rationale for the current law on arrestee fingerprinting.

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by John Wesley Hall
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2013-14 Term:
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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)

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  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)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (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)
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"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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