Archives for: May 2012, 10


Permalink 09:16:07 am, by fourth, 323 words, 551 views   English (US)
Categories: General

New Yorker: "Here’s Looking at You; Should we worry about the rise of the drone?"

New Yorker: Here’s Looking at You; Should we worry about the rise of the drone? by Nick Paumgarten:

ABSTRACT: THE WORLD OF SURVEILLANCE about drones. The prospect of unmanned flight has been around—depending on your definition—since Archytas of Tarentum reputedly designed a steam-powered mechanical pigeon, in the fourth century B.C., or since Nikola Tesla, in 1898, demonstrated a radio-controlled motorboat at an exposition in Madison Square Garden. By the sixties the Air Force was deploying unmanned reconnaissance jets over Southeast Asia. Still, it was the advent, in the mid-nineties, of the Global Positioning System, along with advances in microcomputing, that ushered in the possibility of automated unmanned flight. The Department of Defense, meanwhile, developed a keen interest. With the wars in Iraq and Afghanistan, and manhunts in places like Yemen, the military applications, and the corporations devoted to serving them (Lockheed Martin, Northrop Grumman), came to dominate the skyscape. Many of these manufacturers had one client: the Department of Defense. In 2001, the military had just a few Unmanned Aerial Vehicles (U.A.V.s). Now it has more than ten thousand. Later this month, the F.A.A. will present a regulatory regimen enabling law-enforcement departments to fly small drones, and the military contractors will suddenly have some eighteen thousand potential new customers. As of now, only a tiny percentage of municipal and state police departments have any air presence, because most can’t afford helicopters or planes. Small camera-loaded U.A.V.s are much cheaper. The public proposition, at this point, anyway, is not that drones will subjugate or assassinate unwitting citizens but that they will conduct search-and-rescue operations, fight fires, catch bad guys, inspect pipelines, spray crops, count nesting cranes and migrating caribou, and measure weather data and algae growth. For these and other tasks, they are useful and well suited. Of course, they are especially well suited, and heretofore have been most frequently deployed, for surveillance.

Permalink 08:35:38 am, by fourth, 134 words, 378 views   English (US)
Categories: General

MN: A parole search needs only reasonable suspicion

“No more than reasonable suspicion is required to search a parolee's home when the search is conducted pursuant to a valid parole condition.” State v. Heaton, 812 N.W.2d 904 (Minn. App. 2012).*

Defendant was stopped for a turn lane violation. Defendant’s detention was based on the fact that he would not make direct eye contact, his eyes were red and glassy, he was looking around the vehicle, and he acted somewhat suspicious. This led the officer to believe that he might be engaged in criminal activity. State v. Aguirre, 2012 Ohio 2014, 2012 Ohio App. LEXIS 1765 (3d Dist. May 7, 2012).*

Defendant has the burden of showing that the search warrant was issued without probable cause. Evaluating all the information, there was a substantial basis for concluding there was probable cause. State v. Fruge, 95 So. 3d 1112 (La.App. 5 Cir. 2012).*

Permalink 08:00:11 am, by fourth, 150 words, 551 views   English (US)
Categories: General

D.S.D.: Davis good faith exception requires a change in the law; it doesn't apply to wrong interpretations

To apply a Davis good faith exception to an officer’s interpretation of the statute, it has to be correct and in accord with existing case law that thereafter changed. If the officer is wrong on application of the statute, that’s a mistake of law and any good faith exception would not apply. United States v. Gore, 2012 U.S. Dist. LEXIS 64784 (D. S.C. May 9, 2012).*

Officers approached defendant outside a store and got her ID to run a “local check” finding no warrants. They let her go but watched her walk and then decided to encounter her again, having her back against a wall and officers to both sides. A reasonable person would not have felt free to leave, and this was a Terry stop without justification. Defendant had the burden of showing that this was a seizure, and she satisfied it. State v. Young, 167 Wn. App. 922, 275 P.3d 1150 (2012).*

Permalink 07:39:42 am, by fourth, 271 words, 411 views   English (US)
Categories: General

CA10: State court's erroneous decision on search claim not subject to habeas

COA (2253(c)) in a 2254 denied on petitioner’s Fourth Amendment claim. The contention that the free standing Fourth Amendment claim was decided wrongly by state courts is barred under Stone v. Powell and AEDPA. McIntyre v. McKune, 480 Fed. Appx. 486 (10th Cir. 2012):

Unlike the situation in Gamble, however, there is no indication that the Kansas courts refused to recognize or apply the correct legal standards in this case. McIntyre's belief that the state courts decided the claim wrongly does not mean that he was denied a full and fair opportunity to litigate. See Matthews v. Workman, 577 F.3d 1175, 1194 (10th Cir. 2009). He was able to brief his arguments, and the trial court held a hearing on whether to hold a Franks hearing. At that hearing, in addition to concluding that a Franks hearing was not warranted, the trial court held that the omissions were not material. McIntyre's counsel declined to raise suppression in his direct criminal appeal, but the Kansas Court of Appeals allowed McIntyre to file a pro se supplemental brief challenging the denial of suppression. After the Kansas Court of Appeals specifically acknowledged the pro se brief and stated that the arguments were meritless, McIntyre again on direct appeal was able to file a pro se petition for review to place the issue before the Kansas Supreme Court. No reasonable jurist would find it debatable whether McIntyre had a full and fair opportunity to litigate his Fourth Amendment claim in the Kansas courts.2 See Miranda v. Cooper, 967 F.2d 392, 401 (10th Cir. 1992) (concluding that defendant had a full and fair opportunity to litigate, even though he did not receive a Franks hearing).

Permalink 07:28:50 am, by fourth, 178 words, 362 views   English (US)
Categories: General

S.D.Ind.: The fact there was an innocent explanation does not undermine PC for SW

The fact there were innocent explanations for what was described in the application for the search warrant does not undermine probable cause. The showing as to one of the searches was not supported and was thus waived. United States v. Durham, 2012 U.S. Dist. LEXIS 65126 (S.D. Ind. May 9, 2012):

Mr. Durham's motion also purports to challenge the fruits of a search warrant issued in Ohio. [See dkt. 153 at 1.] He has not provided the Court with a copy of that warrant, its application, or with any argument specifically addressing the legal and factual circumstances for that warrant (including, for example, an explanation of the extent of his reasonable expectation of privacy there). Those failures constitute a waiver of any argument that he may have had, for lack of cogent development. E.g., Kawasaki Heavy Indus. v. Bombardier Rec. Prods., 660 F.3d 988, 994 n.3 (7th Cir. 2011) (citation omitted).

Inmate telephone calls out of a federal prison are recorded, and recording and listening to one is not an illegal search. United States v. Bassett, 2012 U.S. Dist. LEXIS 65068 (E.D. Mo. April 13, 2012).*

Permalink 12:01:18 am, by fourth, 213 words, 452 views   English (US)
Categories: General

LA: Bystanders to two SW being executed at motel could be stopped for safety purposes

Narcotics officers executing two search warrants at a motel were justified in detaining those around the scene for officer safety. “The record in this case fully supports the determination that the initial detention of Thompson was a valid investigatory stop. The officers were engaged in executing narcotics search warrants, "... the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence." Summers, 452 U.S. at 702, 101 S.Ct. at 2594. Moreover, Agent Parker's testimony that guns are frequently used in narcotic trafficking is a factor which increases the possibility of danger to the officers.” State v. Thompson, 93 So. 3d 553 (La. 2012), revg 58 So.3d 994 (La. App. 2 Cir. 2011).

An officer at a sobriety checkpoint observed a vehicle abruptly pull into a parking lot of closed businesses. He went to investigate, and defendant’s vehicle pulled in, too. The police car blocked the exit. This was a stop without reasonable suspicion of wrongdoing, and it was not consensual. Jones v. State, 291 Ga. 35, 727 S.E.2d 456, 729 S.E.2d 428 (2012).*

The search warrant for defendant’s cell phone was based on probable cause, and the nine months between transactions did not make it stale here. The good faith exception also applies. United States v. Sinclair, 2012 U.S. Dist. LEXIS 63864 (N.D. Cal. May 3, 2012).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting

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Most recent SCOTUS cases:
2009 to date:

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)

Research Links:
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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
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  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"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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