Archives for: May 2012, 17


Permalink 11:32:55 am, by fourth, 179 words, 452 views   English (US)
Categories: General

Plunderbund: "Ohio Republicans AGAIN Try to Pass Unconstitutional Laws. This Time: Welfare Drug Testing"

More from the political party of small government: Ohio Republicans AGAIN Try to Pass Unconstitutional Laws. This Time: Welfare Drug Testing:

Ohio Senate Republicans have proposed a three-county, two-year program where welfare applicants who are suspected of having a drug problem would have to submit to and pay for drug tests before receiving benefits. The Dispatch notes that Ohio is not unique: the “move appears to be part of a renewed national GOP movement to require drug testing for welfare recipients. ... revised laws have been introduced this session in about 30 states, and lawmakers in Georgia, Utah, Oklahoma, Tennessee and Louisiana have moved legislation in recent weeks.”

. ..

The proposal to drug test welfare recipients is just the latest effort of Republican legislators to import ideological ideas from other states. But at least by bringing in ideas in from other states, we don’t have to guess that the proposals are unconstitutional. We know. We know because judges have already ruled that these efforts in other states are unconstitutional.

Trying to make money for civil rights lawyers when budgets are tight?

Permalink 09:03:44 am, by fourth, 346 words, 419 views   English (US)
Categories: General

D.Mass.: Discovery of GPS related information premature until motion to suppress filed

The government disclosed GPS surveillance occurred, and the tracking information was not kept. On defendant’s motion for discovery of GPS information to frame a motion to suppress the tracking, it is granted in part and denied in part. As to application of the good faith exception under Davis, the request is premature and denied without prejudice. United States v. Rose, 2012 U.S. Dist. LEXIS 68095 (D. Mass. May 16, 2012):

Upon consideration of Andrews' stated need for the information, the Court finds that Andrews has met his burden of proof to the extent that some of the requested information may help him to delineate the scope of a possible Fourth Amendment violation. However, given the government's interest in protecting the confidentiality of its surveillance techniques, the Court will not order the information produced in the form requested by Andrews. Rather, the government shall produce an affidavit by an agent knowledgeable about the use of GPS tracking in the investigation. The affidavit should include information regarding: (1) the tracking radius of the GPS devices; and (2) how the devices were used in conjunction with surveillance in this investigation. Andrews' remaining requests are denied.

Delay in seeking a search warrant for a computer was not unreasonable where the delay was caused by the government thinking that defendant was going to cooperate. United States v. Armstrong, 2012 U.S. Dist. LEXIS 68429 (M.D. Pa. May 15, 2012)*:

The fact that an earlier application was presented to a Magistrate Judge is not dispositive, particularly because the Magistrate Judge was concerned about the timing of the warrant in light of the imminent trial. Although the timing of the request for authorization, almost one year after the initial seizure of the laptops, is of concern, I am willing to accept the Government's representation that it did not immediately request an authorization to search the computers because it believed Armstrong intended to cooperate with the Government and plead guilty.

Where body language allegedly belied the defendant’s denial he had drugs in the car, a frisk was reasonable. United States v. Acosta, 2012 U.S. Dist. LEXIS 67551 (W.D. Mo. April 27, 2012).*

Permalink 08:44:12 am, by fourth, 461 words, 1318 views   English (US)
Categories: General

D.N.M.: Does Brady apply to suppression hearings?

If Brady likely applies to suppression motions, there was no showing that the evidence was sufficiently impeaching to change the outcome. United States v. Harmon, 871 F. Supp. 2d 1125 (D. N.M. 2012).*

Circuit courts have split on the issue whether Brady v. Maryland's restrictions apply to suppression hearings, although it is not likely that a prosecutor must disclose impeachment evidence before a suppression hearing in light of the Supreme Court's conclusion in United States v. Ruiz that a prosecutor does not have to disclose impeachment evidence before the entry of a guilty plea. In an unpublished opinion, the Tenth Circuit, without discussing whether Brady v. Maryland applies to a suppression hearing, rejected a defendant's argument that the prosecution violated Brady v. Maryland by failing to disclose impeachment evidence before a suppression hearing on the basis that the evidence was not impeachment evidence and not material. See United States v. Johnson, 117 F.3d 1429, 1997 WL 381926 at *3 (10th Cir. 1997) (unpublished table decision). ...

The United States Court of Appeals for the District of Columbia has recognized that "it is hardly clear that the Brady line of Supreme Court cases applies to suppression hearings," because "[s]uppression hearings do not determine a defendant's guilt or punishment, yet Brady rests on the idea that due process is violated when the withheld evidence is 'material either to guilt or to punishment.'" United States v. Bowie, 198 F.3d 905, 912 (D.C. Cir. 1999). Without deciding the issue and in an unpublished opinion, the United States Court of Appeals for the Sixth Circuit quoted with approval this language from United States v. Bowie. See United States v. Bullock, 130 F.App'x 706, 723 (6th Cir. 2005) (unpublished) ("Whether the suppression hearing might have come out the other way, however, is of questionable relevance to the Brady issues at stake here."). The Fifth Circuit and the United States Court of Appeals for the Ninth Circuit held, before the Supreme Court issued its United States v. Ruiz decision, that Brady v. Maryland restrictions apply to suppression hearings. See United States v. Barton, 995 F.2d 931, 935 (9th Cir. 1993) ("[W]e hold that the due process principles announced in Brady and its progeny must be applied to a suppression hearing involving a challenge to the truthfulness of allegations in an affidavit for a search warrant."); Smith v. Black, 904 F.2d 950, 965-66 (5th Cir. 1990) ("Timing is critical to proper Brady disclosure, and objections may be made under Brady to the state's failure to disclose material evidence prior to a suppression hearing."), vacated on other grounds, 503 U.S. 930 (1992)). The United States Court of Appeals for the Seventh Circuit held that, under its precedent and the law from other circuits, it was not "obvious" for clear-error purposes that "Brady disclosures are required prior to suppression hearings." United States v. Scott, 245 F.3d 890, 902 (7th Cir. 2001).

Permalink 08:23:55 am, by fourth, 211 words, 328 views   English (US)
Categories: General

OH9: Common computer in house was subject to apparent authority of any of them to consent

After defendant was arrested for touching her children, the woman of the house delivered two laptops used by the entire family to the police to look for evidence on the computers. She had apparent authority to consent to a search of the computers because all that the police knew was that the computers were used by everybody in the house. State v. Rice, 2012 Ohio 2174, 2012 Ohio App. LEXIS 1909 (9th Dist. May 16, 2012).*

The car had no trunk, and a dog alert to the interior was to the whole interior. The state proved that the dog was a well trained dog. State v. Duran, 2012 Ohio 2114, 2012 Ohio App. LEXIS 1857 (9th Dist. May 14, 2012).*

Defendant was stopped with reasonable suspicion based on a detailed call from a citizen informant who called to report an erratic driver in front of him. He gave his first name and stayed on the phone until police caught up. State v. Bunn, 2012 Ohio 2151, 2012 Ohio App. LEXIS 1868 (12th Dist. May 14, 2012).*

The vehicle defendant was a passenger in was stopped for a lane change violation, and the driver said that he had drugs. On the floor in front of him was paraphernalia in plain view. Coupled with his furtive movements, a search was reasonable. State v. Jackson, 2012 Ohio 2123, 2012 Ohio App. LEXIS 1861 (11th Dist. May 14, 2012).*

Permalink 07:55:55 am, by fourth, 159 words, 375 views   English (US)
Categories: General

NYTimes Editorial: "Reform Stop-and-Frisk"

NYTimes Editorial: Reform Stop-and-Frisk:

Judge Shira Scheindlin of Federal District Court spoke up for the constitutional rights of blacks and Hispanics on Wednesday by granting class-action status to a lawsuit that accuses the New York Police Department of using race as the basis for stopping and frisking hundreds of thousands of citizens a year.

The decision opens the door to potential claims by an enormous number of people who may have been illegally stopped, and any remedy would be applied citywide. In a fierce defense of the Fourth Amendment, which guarantees freedom from unreasonable search and seizure, Judge Scheindlin was profoundly critical of the police program. The city’s arguments, she wrote, “do not withstand the overwhelming evidence that there, in fact, exists a centralized stop-and-frisk program that has led to thousands of unlawful stops.” She allowed the class-action status because “the vast majority of New Yorkers who are unlawfully stopped will never bring suit to vindicate their rights.”

Permalink 07:51:59 am, by fourth, 161 words, 412 views   English (US)
Categories: General "Judge Napolitano: Shoot down a drone, become an American hero"

Judge Napolitano: Shoot down a drone, become an American hero:

Fox News commentator Judge Andrew Napolitano has found a novel approach to handling the whole drone surveillance dilemma that has Americans worried that the government will soon watch their every move from the sky.

Speaking out against the future of aerial eavesdropping in America, Judge Napolitano said on Fox on Tuesday, “The first American patriot that shoots down one of these drones that comes too close to his children in his backyard will be an American hero.”

[He's not a judge. He resigned to make more money as a Fox flack. Kenneth Starr insisted that his minions continually refer to him as Judge, like it was a title of nobility, as he did with Webb Hubbell, who was a judge for all of four months by appointment. You resign, judge goes away with the job. And, isn't shooting a gun into the air from one's backyard kind of a bad idea?]

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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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  DOJ Computer Search Manual (2009) (pdf)

  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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