Archives for: May 2012, 08


Permalink 06:41:52 pm, by fourth, 124 words, 419 views   English (US)
Categories: General

PCWorld: "DOJ Says Requiring Warrant for Cell Phone Tracking Would 'Cripple' Law Enforcement"

PCWorld: DOJ Says Requiring Warrant for Cell Phone Tracking Would 'Cripple' Law Enforcement by Darlene Storm:

If your mobile phone is on then it is constantly pinging cell phone network towers, leaving you no choice about revealing your location. The ACLU warned the "threat to personal privacy presented by this technology is breathtaking," especially since the "government is routinely violating American's privacy rights through warrantless cell phone tracking." Apparently any mobile phone privacy is too much privacy in the early stages of an investigation, before law enforcement actually has any proof that a person has done anything illegal. An Obama administration official told a congressional panel that requiring a search warrant to obtain cell phone location tracking information would "cripple" law enforcement and prosecutors.

Permalink 09:17:38 am, by fourth, 236 words, 406 views   English (US)
Categories: General

N.D.Ala.: Crossing center line repeatedly justified stop

The video showed defendant crossing the centerline repeatedly. There was probable cause for his stop, despite his contention that state law was not violated. “Additionally, as noted by the officer and demonstrated by the video, the defendant's driving pattern indicated that he might be impaired, also warranting an investigatory stop.” United States v. Benitez, 2012 U.S. Dist. LEXIS 62913 (N.D. Ala. April 4, 2012).*

Defendant probationer consented to a search of his cell phone and pictures of him holding guns were revealed, and that justified a probation search of where he lived. United States v. Peila, 2012 U.S. Dist. LEXIS 63036 (D. Nev. April 3, 2012).*

Defendant filed a general motion to suppress which was heard before trial, but only statements made at the time of arrest were discussed. A gun was also seized in Tennessee, and it was never mentioned. At trial, the gun was not objected to. On appeal, the issue of the seizure of the gun was waived. Rockholt v. State, 291 Ga. 85, 727 S.E.2d 492 (2012).*

Drug officers stopped defendants based on a request to stop him so used the fact that one of three taillights was out. But, Arizona law just says that “a stop light” needs to work, and this is a mistake of law because defendants otherwise were committing no traffic violation. The subsequent consent derived from the illegal stop, and it’s all suppressed. United States v. Manzo, 2012 U.S. Dist. LEXIS 63058 (D. Ariz. May 3, 2012).*

Permalink 08:53:44 am, by fourth, 124 words, 411 views   English (US)
Categories: General

LA Times editorial: "The secret life of your cellphone"

LA Times editorial: The secret life of your cellphone; In a threat to the 4th Amendment, law enforcement is using location data as a crime-fighting tool:

Concerned that mobile phone networks are becoming surveillance tools, the American Civil Liberties Union recently asked hundreds of local law enforcement agencies whether they've tracked people's movements through their cellphones. Most of those that responded said they had, usually obtaining the information from mobile phone companies without a warrant. The practice has become so routine, the ACLU found, that phone companies are sending out catalogs of monitoring services with detailed price lists to police agencies. The alarming findings should persuade Congress to clarify that the government can't follow someone electronically without showing probable cause and obtaining a warrant.

Permalink 08:49:56 am, by fourth, 554 words, 641 views   English (US)
Categories: General

N.D.Ind.: Excessive force in arrest didn't justify suppression of search with no causal connection

Allegations of excessive force used during defendant’s arrest did not justify suppression of the search where there was no causal connection. United States v. Collins, 2012 U.S. Dist. LEXIS 63214 (N.D. Ind. May 4, 2012):

The Defendant's primary objection to the admission of the evidence against him is his claim that Officers Ealing and Johnson used unreasonable force to effectuate his arrest. The Defendant cites a Ninth Circuit case, United States v. Ankeny, for the proposition that a Fourth Amendment excessive force violation requires suppression of the evidence seized. 502 F.3d at 836. However, the Defendant also cites to United States v. Watson, where the Seventh Circuit disagreed with the Ankeny court. Specifically, the Seventh Circuit declined to apply the Ankeny court's reasoning, holding: "We thus disagree with the dictum in United States v. Ankeny ... that the use of excessive force in the course of a search can require suppression of the evidence seized." 558 F.3d at 705. Rather, if a defendant proves excessive force, "his remedy would be a suit for damages under 42 U.S.C. § 1983 (or state law) rather than the exclusion from his criminal trial of evidence that had been seized in an otherwise lawful search." Id. at 704. Therefore, under a plain reading of Watson, suppression would not be appropriate even if the Defendant could establish that Officers Ealing and Johnson used excessive force against him. Rather, the Defendant's appropriate remedy would be a § 1983 civil suit against the Officers for use of excessive force.

The Court notes that even under Ankeny, suppression would not be appropriate in this case. The Ankeny court held that it did not need to determine whether unreasonable force had been used because there was no "causal nexus" between the allegedly unreasonable force and discovery of the evidence. Ankeny, 502 F.3d at 837; see also Watson, 558 F.3d at 702 ("There was no causal connection ... between the alleged police misconduct and the obtaining of the evidence."). The bag containing cocaine was obtained not because of any allegedly unreasonable force used by the Officers, but because the Defendant threw it away from his person before Officer Ealing used any force. As the Government urges, "[a]n arrest does not occur until a police officer lays hands on a subject or the subject voluntarily submits to a show of authority." United States v. Britton, 335 Fed. Appx. 571, 575 (6th Cir. 2009); California v. Hodari D., 499 U.S. 621, 626 (1991) ("An arrest requires either physical force ... or, where that is absent, submission to the assertion of authority."). The exclusionary rule is only triggered where evidence is obtained "following an unlawful arrest." United States v. Howard, 621 F.3d 433, 451 (6th Cir. 2010). Because the facts indicate that the Defendant threw the bag away from his person before Officer Ealing touched him, the bag was not obtained "following" an arrest at all, and so there can be no nexus between the alleged unreasonable force and finding the bag. For that matter, it appears that the Defendant placed the bag in a publicly exposed place, suggesting that the Government's retrieval of the bag did not constitute a search at all within the meaning of the Fourth Amendment. See United States v. Eubanks, 876 F.2d 1514, 1516 (11th Cir. 1989) ("[U]nder the fourth amendment no governmental 'search' occurs if the place or object examined is publicly exposed such that no person can reasonably have an expectation of privacy.").

Permalink 08:13:24 am, by fourth, 377 words, 342 views   English (US)
Categories: General

IL: Defendant's stop on a SW for another's apartment was unreasonable

Defendant was stopped based on a search warrant for the apartment of another. In the search, officers found no drugs, but they found keys. It turned out that a key fit the apartment door. At the time of the search of his person, the officers did not have probable cause to detain him because there was no known connection to the keys and the apartment. Defendant was taken from the place of his seizure to the apartment. People v. Hill, 2012 Ill. App. LEXIS 332, 2012 IL App (1st) 102028 (May 4, 2012):

[**P22] We note that the finding of probable cause to support the search warrant does not permit us to assume that there was probable cause or reasonable suspicion to justify the continued detention and transportation of defendant. These are related, but different, inquiries, and "[e]ach requires a showing of probabilities as to somewhat different facts and circumstances." 2 Wayne R. LaFave, Search and Seizure § 3.1(b), at 8-9 (4th ed. 2004). "In the case of arrest, the conclusion concerns the guilt of the arrestee, whereas in the case of search warrants, the conclusions go to the connection of the items sought with crime and to their present location." Id. at 10. The same holds true for the State's Terry argument: the search warrant does not, by its mere existence, give rise to reasonable suspicion that justifies the continued detention and transportation of defendant. While this information supporting the search warrant is now part of the record, the State has never argued—in the motion to supplement the record, in its brief, or at oral argument—that the specific facts in the complaint for the search warrant support an independent finding of probable cause or reasonable suspicion that would justify the seizure. Instead, the State simply argues that because police had a reason to believe there were drugs in the Flournoy apartment (i.e., they had probable cause for the search warrant), they also had probable cause, or at least reasonable suspicion, that allowed for defendant's continued detention and transportation. Where the search of defendant revealed no narcotics and police had not yet found any narcotics or contraband at the apartment, the mere expectation that police would find drugs in the apartment, without more, cannot justify defendant's continued detention and transportation to the apartment.

Permalink 07:34:57 am, by fourth, 52 words, 348 views   English (US)
Categories: General

Volokh Conspiracy: "The Fourth Amendment and Video Recording in Bathrooms, in Civil Commitment Units for Sex Offenders"

Volokh Conspiracy: The Fourth Amendment and Video Recording in Bathrooms, in Civil Commitment Units for Sex Offenders by Eugene Volokh:

Arnzen v. Palmer (N.D. Iowa Apr. 12, 2012) deals with an interesting and unusual questions: To what extent, if any, does the Fourth Amendment restrict searches in civil commitment units for sex offenders?

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  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)

2009-10 Term:

  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)

2008-09 Term:
  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."

"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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