Archives for: May 2012, 22


Permalink 05:25:07 pm, by fourth, 189 words, 437 views   English (US)
Categories: General

CA5: State's attempt to remove a house now on a beach because of Hurricane Rita was an unreasonable seizure under the Fourth Amendment

The State of Texas claimed a beach easement on plaintiff’s beachfront property following Hurricane Rita which moved the vegetation line back and put the house on the beach. The State's effort to remove the house was a Fourth Amendment violation. Severance v. Patterson, 07-20409 (5th Cir. May 21, 2012) (per curiam):

The Texas Supreme Court answered our certified questions in this case, see Severance v. Patterson, 566 F.3d 490, 503-04 (5th Cir. 2009), by declaring that Texas law does not recognize a “rolling easement” created by avulsive events affecting the dry beach of Galveston’s West Beach. Severance v. Patterson, No. 09-0387, Tex S.Ct. April 19, 2012, op. on reh. For the panel majority, this answer reifies the claim of appellant Severance to an “unreasonable” seizure violative of the Fourth Amendment in the State’s assertion of an easement (and related regulatory violations) on her beachfront property following Hurricane Rita. (Judge Wiener continues to dissent on this portion of the prior and present dispositions.)

Because the potential existence of this constitutional claim is now confirmed, the district court’s judgment against Severance predicated on Fed. R. Civ. P. 12(b)(1) and (6) must be reversed.

Permalink 02:07:13 pm, by fourth, 313 words, 740 views   English (US)
Categories: General

New law review article: "Is the Exclusionary Rule Dead?"

Craig M. Bradley, Is the Exclusionary Rule Dead? 103 J. Crim. L & Criminology 1 (2012):

In three recent decisions, Hudson v. Michigan, Herring v. United States, and last Term’s Davis v. United States, the Supreme Court has indicated a desire to severely restrict the Fourth Amendment exclusionary rule. A majority of the Justices wants to limit its application to cases where the police have violated the Fourth Amendment purposely, knowingly, or recklessly, but not where they have engaged in “simple, isolated negligence” or where negligence is “attenuated” from the discovery of the evidence. They have further suggested that evidence should not be excluded where the police have behaved as reasonable policemen, using the approach from United States v. Leon.

The Court’s new approach, based on the culpability of the police, is subjective, yet the Court insists that it does not probe the police’s mind. The new approach seems to reject negligence as the basis of exclusion, yet Leon is a negligence-based approach. The new approach assumes that “reckless” behavior can be deterred more readily than negligent behavior, but that is not obvious.

This Article reviews Hudson, Herring, and Davis, as well as the court of appeals cases that have applied Herring. It suggests that the Supreme Court has not eliminated the exclusionary rule and argues that the rule should still be applied in cases of “substantial” as opposed to “simple isolated” negligence—that is, when negligence has substantially interfered with a suspect’s privacy rights, such as through an illegal arrest or an illegal search of his car or house. It notes that none of the three cases decided by the Court involved such a substantial intrusion. It concludes, through a careful reading of the three cases, as well as examination of successful defense appeals in the courts of appeals, that the exclusionary rule, though limited, is neither dead nor unacceptably constrained.

Permalink 08:31:12 am, by fourth, 159 words, 402 views   English (US)
Categories: General

S.D.N.Y.: Defendant must contest facts in police reports to get a suppression hearing

Where the arrest reports show defendant consented to a search, the defendant must file an affidavit in opposition to get a hearing to show a disputed fact. United States v. Rosario, 2012 U.S. Dist. LEXIS 69240 (S.D. N.Y. May 11, 2012).*

An AT&T technician visiting defendant’s house and working on his internet connection accessed the computer to see if it would connect to the internet and saw child pornography. This was not a government search. United States v. Jurek, 2012 U.S. Dist. LEXIS 70242 (N.D. Ohio May 21, 2012).*

Defendant was stopped on a motorcycle on the closed Quantico Marine base by a U.S. Marines police officer. The officer first thought he might be lost, but his demeanor suggested criminal activity of some sort, and the frisk of his back pack after he admitted there was a knife in there and had no DL was reasonable. United States v. Cooper, 2012 U.S. Dist. LEXIS 70001 (E.D. Va. May 18, 2012).*

Permalink 07:47:32 am, by fourth, 508 words, 598 views   English (US)
Categories: General

D.N.J.: Computer SW was limited to 2007 records, but search went way back; search violated the warrant when FBI failed to limit the keyword search

The search warrant sought computer records for 2007, but the government’s computer search intentionally wasn’t limited and found incriminating records from 2003 and 2004. The government’s failure to limit the search violated the terms of the search warrant. Also, one defendant who had a desk and a computer in a common area had an expectation of privacy in both because nobody else used them. Moreover, the computer was password protected. United States v. Reeves, 2012 U.S. Dist. LEXIS 68962 (D. N.J. May 17, 2012):

In particular, Special Agent Cassin testified that he had the ability to limit his search to the calendar year 2007 and search for documents that were created and modified in 2007. He also had the ability to search for the year "2007" or "/07," etc., in the body of the documents using a keyword search. Special Agent Cassin, however, testified that he did nothing to so limit his search and instead searched all the files on the Harbor House computers without regard to their date. Specifically, Special Agent Cassin disregarded the scope of the warrant by engaging in broad keyword searches of all the electronic files on the computers.

This is unreasonable and violates the Fourth Amendment. It is evident that Special Agent Cassin took no efforts to comply with the temporal scope of the warrant and disregarded the express date limitation contained therein. Special Agent Cassin did not conduct his search in a manner that minimized unwarranted intrusions upon privacy and his broad keyword search was more akin to "'general, exploratory rummaging" in Harbor House's computer files rather than a particular search in accordance with the express limitations of the search warrant. Andresen v. Maryland, 427 U.S. at 481. If the government felt they had enough probable cause to justify a search of Harbor House computers for all documents related to oysters and the Reeves Brothers, which is essentially what the government did, then the government needed to re-apply for a new warrant or put forth sufficient probable cause for such a broad search in their initial application. The government did neither in this case and thus their search is unreasonable as to the pre-2007 documents.

The government's reliance on United States v. Stabile, 633 F.3d 219, 241-42 (3d Cir. 2011) is misplaced. In Stabile, the government inadvertently found child pornography files on the defendant's computer while searching the computer for evidence of financial fraud. The discovery of the child pornography was inadvertent and immediately apparent due to the lurid names of the electronic files. Such files containing child pornography were in plain view of the searching agents and could thus be seized as evidence of crime.

The instant action is clearly distinguishable. There was no inadvertence by the government in finding the 2003 and 2004 incriminating documents at issue here. These documents would not have been retrieved if the search was limited pursuant to the terms of the search warrant which only authorized the government to search for documents created or modified from January 1, 2007 to December 31, 2007. The discovery of these two 2003 and 2004 documents was the result of the government's overly broad keyword search. ...

Permalink 07:38:45 am, by fourth, 321 words, 446 views   English (US)
Categories: General

D.Mass.: Civily committed NGBRI subject to DNA Act

Plaintiff is civilly committed to the BOP having been found not guilty by reason of insanity in 2003 for an attempted airplane hijacking. The court concludes the DNA Act applies to him. Commey v. United States, 2012 U.S. Dist. LEXIS 70425 (D. Mass. May 21, 2012):

No court has addressed the constitutionality of the DNA Act as applied to individuals civilly committed to BOP custody after being found not guilty by reason of insanity. In Weikert, the First Circuit applied the general Fourth Amendment totality of the circumstances analysis, balancing Weikert's expectation of privacy against the government's interest in taking his DNA. 504 F.3d at 11. Applying this analysis to Commey, civilly committed persons have a diminished expectation of privacy. Both the Supreme Court and First Circuit have compared the liberty interests of civilly committed persons to those of pretrial detainees. See Youngberg v. Romeo, 457 U.S. 307, 320 (1982); Davis v. Rennie, 264 F.3d 86, 102, 108 (1st Cir. 2001) (applying to civilly committed persons the legal standard for Fourth Amendment seizure claims brought by pretrial detainees). The Eighth Circuit has explicitly held that, when considering whether a particular search violates the Fourth Amendment, civilly committed persons have the same expectation of privacy as pretrial detainees. See Serna v. Goodno, 567 F.3d 944, 948-49 (8th Cir. 2009). In Mitchell, the Third Circuit balanced pretrial detainees' expectation of privacy against the government's interest in taking their DNA, and held that the DNA Act does not violate pretrial detainees' Fourth Amendment rights. 652 F.3d at 416.

Based on this caselaw, the court concludes that the government's important interests in monitoring and rehabilitating civilly committed persons, solving crimes, and exonerating innocent individuals outweigh Commey's privacy interests, given his status as a civilly committed person, "the relatively minimal inconvenience occasioned by a blood draw, and the coding of genetic information that, by statute, may be used only for purposes of identification." Weikert, 504 F.3d at 14.

Therefore, the DNA Act as applied to Commey does not violate the Fourth Amendment.

Permalink 07:02:02 am, by fourth, 157 words, 441 views   English (US)
Categories: General

N.D.Cal.: Counterfeiting arrest justified search incident of backpack

Defendant’s arrest for counterfeiting, for which there was clearly probable cause, justified a search incident of his backpack. There was also concern for officer safety. United States v. Pittman-Wright, 2012 U.S. Dist. LEXIS 69347 (N.D. Cal. May 17, 2012).*

Consent search and false arrest claims fail on the merits for valid consent and an arrest warrant. Southerland v. Garcia, 2012 U.S. App. LEXIS 10020 (2d Cir. May 18, 2012).*

There was probable cause for issuance of this search warrant in a bank robbery case based on the video of the robbery, an anonymous caller, and surveillance of the defendant’s house. Defendant’s assertion that the color of the house was slightly off and other houses in the neighborhood could have been described as well wasn’t sufficient to overcome the warrant. The suspect vehicle was parked in the driveway. United States v. Allen, 2012 U.S. Dist. LEXIS 68902 (W.D. Mo. April 24, 2012),* adopted 2012 U.S. Dist. LEXIS 68901 (W.D. Mo. May 17, 2012).*

Permalink 12:25:04 am, by fourth, 169 words, 431 views   English (US)
Categories: General

NYTimes Editorial: "The Right to Record"

NYTimes Editorial: The Right to Record:

The Civil Rights Division of the Justice Department took an important stand last week, declaring that citizens have a First Amendment right to videotape the actions of police officers in public places and that seizure or destruction of such recordings violates constitutional rights.

The Justice Department made the statement in a federal lawsuit brought against the Baltimore Police Department by Christopher Sharp, who used his cellphone to take video of the police arresting and beating a friend at Pimlico on the day of the 2010 Preakness. The officers took Mr. Sharp’s cellphone while he was recording and wiped the phone clean of all videos before returning it to him.

The Courts of Appeals for the First and Seventh Circuits have wisely found that the Constitution protects the right to videotape police officers while they perform official duties. The video taken by another witness of the beating at Pimlico shows that the right to record is crucial to holding police accountable for their actions.

Permalink 12:18:06 am, by fourth, 250 words, 425 views   English (US)
Categories: General

Business Insider: "I Spy An Occupy: Obama’s DHS Surveils Legit Protesters"

Business Insider: I Spy An Occupy: Obama’s DHS Surveils Legit Protesters:

Remember the Occupy Movement? Since last November, when the NYPD closed the Zuccotti Park encampment in downtown Manhattan-–the Movement’s birthplace and symbolic nexus—-Occupy’s relevance has seriously dwindled, at least as measured by coverage in the mainstream media. We’re told that this erosion is due to Occupy’s own shortcomings—-an inevitable outcome of its disjointed message and decentralized leadership.

While that may be the media’s take, the U.S. Government seems to have a different view.

If recent documents obtained by the Partnership for Civil Justice Fund (PCJF) are any indication, the Occupy Movement continues to be monitored and curtailed in a nationwide, federally-orchestrated campaign, spearheaded by the Department of Homeland Security (DHS).

. . .

The right to public assembly is a central component of the First Amendment. The Fourth Amendment is supposed to protect Americans from warrantless searches—with the definition of “search” expanded in 1967 to include electronic surveillance, following the Supreme Court’s ruling in Katz v. United States. Assuming the Occupy protesters refrain from violence—and the vast majority do, in accord with a stated tenet of the Occupy movement—the movement’s existence is constitutionally protected, or should be.

The DHS’s monitoring, documenting, and undermining of protesters may in fact violate the First Amendment. In a recent piece for Dissent Magazine, sociologist James B. Rule explains the fundamental importance of a movement like Occupy in the American political landscape.

Permalink 12:03:11 am, by fourth, 125 words, 512 views   English (US)
Categories: General

Fierce GovernmentIT: "Surveillance through GPS is not the same as using cellular tower data, say law enforcement officials"

Fierce GovernmentIT: Surveillance through GPS is not the same as using cellular tower data, say law enforcement officials by Molly Bernhart Walker:

The boundaries of surveillance are being called into question as the law enforcement community seeks continued warrantless access to electronically-generated location data while privacy advocates say a January 2012 Supreme Court case means all geolocation data is protected by the Fourth Amendment.

In the wake of the case (.pdf), United States v. Antoine Jones, two congressmen--Rep. Jason Chaffetz (R-Utah) and Bob Goodlatte (R-Va.)--have proposed a bill (H.R. 2168 [.pdf]) that would require law enforcement obtain a warrant before accessing any geolocation data. The Jones case ruled that the FBI could not attach a Global Positioning System device to a car without a warrant.

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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)

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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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