Archives for: May 2012, 15

05/15/12

Permalink 03:18:41 pm, by fourth, 207 words, 400 views   English (US)
Categories: General

D.Nev.: Pre-Jones GPS surveillance still not excluded under Davis "exception" to exclusionary rule

GPS surveillance in the Ninth Circuit was under binding precedent before Jones, so Davis applies. United States v. Fata, 2012 U.S. Dist. LEXIS 66759 (D. Nev. March 15, 2012):

Consequently, even assuming non-compliance with ATF regulations, the Court finds that use of the GPS device in this case was lawful under Pineda-Moreno at the time it was installed and monitored.

Further, consistent with the Supreme Court's decision in Davis v. United States, 131 S. Ct. 2419 (2011), the Court finds that the purpose of the exclusionary rule would not be served in this instance by suppression based solely on placement of the GPS device because placement of the GPS device and the subsequent monitoring was done in reasonable reliance on then binding appellate precedent as announced in Pineda-Moreno.

As a result of the Court's finding and the decision in Davis, even though the installation and use of the GPS device to assist agents in initiating their surveillance on May 14, 2011 through May 15, 2011 did violate Defendants' Fourth Amendment rights, none of the information obtained as a result thereof is subject to suppression. In particular, the surveillance evidence obtained by agents on May 15, 2011, when they observed and overheard conversations during the purchases of firearms at the Gun Store and the gun show will not be suppressed.

Permalink 03:01:14 pm, by fourth, 182 words, 362 views   English (US)
Categories: General

S.D.Ohio: Overturned vehicle was subject to inventory and contents were in plain view

Officers responded to a one vehicle accident and found an Escalade on its side in the road. The vehicle had to be towed, so the inventory was lawful. Besides that, the officer saw a gun in the car and one of the occupants dropped a baggy of drugs when the police showed up. United States v. Brown, 2012 U.S. Dist. LEXIS 66880 (S.D. Ohio May 14, 2012).*

The affidavit for the search warrant here was “bare-boned” and “slim” but barely sufficient to show probable cause and have the benefit of the good faith exception. United States v. McIrby, 2012 U.S. Dist. LEXIS 66946 (S.D. Ala. May 14, 2012)*:

Analyzing the affidavit under the totality of the circumstances, the court finds that the information contained in the warrant, although slim, is sufficient to establish probable cause. The affidavit does not offer evidence of the informant's history of reliability. However, while such information is relevant to a probable cause determination, it is not required to be set forth in the affidavit if there is other evidence under the totality of the circumstances to support a probable cause finding.

Permalink 02:40:10 pm, by fourth, 400 words, 423 views   English (US)
Categories: General

M.D.Fla.: Monitoring a package with beeper and GPS pre-Jones but only when it was briefly in a public place was reasonable

A UPS package from Mexico to Florida was inspected at the UPS de facto border checkpoint at its Louisville hub, and it was found to have cocaine. A controlled delivery was arranged for the Florida address with an anticipatory search warrant. The package was equipped with a beeper to alert to when it was opened and a GPS. First, the defendant’s name was nowhere on the package as shipper or recipient, so he lacked “standing.” Second, the package was lawfully opened under the border exception. Third, the monitoring of the packages with the beeper and GPS occurred while the vehicle was in a public place. Finally, the officers had probable cause to stop and search the car. United States v. Arrendondo, 2012 U.S. Dist. LEXIS 66919 (M.D. Fla. May 14, 2012):

The facts of this case are more closely aligned with Karo and United States v. Knotts, 460 U.S. 276 (1983) than with Jones. In Karo, the government came into physical contact with the container before it belonged to the defendant. "The transfer of the container with the unmonitored beeper inside did not convey any information and thus did not invade Karo's privacy." Jones, 132 S. Ct. at 952 (citing Karo, 468 U.S. at 712). Jones found that the conclusion was "perfectly consistent with the one we reach here. Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper's presence, even though it was used to monitor the container's location." Jones, 132 S. Ct. at 952. Unlike Jones, no law enforcement officer trespassed on defendant's vehicle to install a tracking device. Indeed, law enforcement officers did nothing to place the package in the vehicle. The package was simply delivered to the mobile home according to the instructions given by defendant or a conspirator to UPS, and the conduct of the conspirators was allowed to take its natural course.

Karo did hold, however, that some monitoring of the tracking device required a warrant under the Fourth Amendment. The Court held that the monitoring of a beeper in a location not open to visual surveillance (there a residence) violated the Fourth Amendment rights of those who had a justifiable interest of privacy in the location. Karo, 468 U.S. at 714-18. Here, the beepers were monitored only while the Toyota was moving in public places subject to lawful visual surveillance. Therefore, the monitoring did not violate the Fourth Amendment.

Permalink 02:24:35 pm, by fourth, 170 words, 360 views   English (US)
Categories: General

W.D.Mo.: Unlocated gun in domestic dispute justified entry

Officers responded to a domestic dispute where the defendant felon was alleged to have used a gun in an assault on the other in the house. He came to the door to talk to the officers, but the gun was in the couch. That was exigency enough to enter where the officers feared he might break for the gun. United States v. Ward, 2012 U.S. Dist. LEXIS 66824 (W.D. Mo. April 16, 2012).*

Probable cause and exigent circumstances supported the entry into the defendant’s apartment. While the police were outside, they heard voices of the people they knew were in there. Defendant was wanted but not yet found. United States v. Ashbourne, 2012 U.S. Dist. LEXIS 66985 (E.D. Mich. May 14, 2012).*

The USMJ found the traffic stop and detention was justified by reasonable suspicion. On review, the USDJ finds that the officers did not create exigent circumstances–their investigation was appropriate. United States v. Dunn, 2012 U.S. Dist. LEXIS 66427 (W.D. Tenn. May 13, 2012), adopting 2012 U.S. Dist. LEXIS 66977 (W.D. Tenn. March 27, 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
www.johnwesleyhall.com

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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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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
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    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)

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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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