Archives for: May 2012, 24


Permalink 05:54:06 pm, by fourth, 114 words, 458 views   English (US)
Categories: General

HuffPo: "FBI Web Surveillance: Bureau Creates Unit To Eavesdrop On Internet Communications"

HuffPo: FBI Web Surveillance: Bureau Creates Unit To Eavesdrop On Internet Communications by Sara Gates:

With the Federal Bureau of Investigation's recent push for web wiretaps and increased Internet surveillance, the U.S. seems to be edging closer to the fictional state described in George Orwell's "1984."

As CNET reported earlier this week, the FBI recently created a secret web-surveillance unit, the Domestic Communications Assistance Center, aimed at creating tech that would allow the authorities to more easily eavesdrop on Internet and wireless communications. The DCAC will act as hub for all web surveillance, but will not be directly involved in executing Internet wiretapping court orders or operating investigations if proposed legislation passes as planned.

Permalink 03:34:42 pm, by fourth, 119 words, 531 views   English (US)
Categories: General

S.D.Ill.: IAC claim has to show search issue would have prevailed and changed outcome of case

When an IAC search claim is filed, the petitioner has to show what the search was and that he would prevail and the verdict would be different. Fuller v. United States, 2012 U.S. Dist. LEXIS 70813 (S.D. Ill. May 22, 2012) (citing Johnson v. Thurmer, 624 F.3d 786, 792-93 (7th Cir. 2010) (citing Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986))).

Stopping car in the middle of the street was reasonable suspicion for a stop. State v. Foster, 2012 Tenn. Crim. App. LEXIS 323 (May 17, 2012).*

The anticipatory warrant in this case was valid, despite a typographical error in the tracking number because of the otherwise specific description of the package and the place to be searched. State v. Davidson, 2012 Tenn. App. LEXIS 323 (May 17, 2012).*

Permalink 03:03:32 pm, by fourth, 260 words, 448 views   English (US)
Categories: General

N.D.Ga.: Merely blocking a car doesn't per se constitute a seizure

Under Miller v. Harget, 458 F.3d 1251 (11th Cir. 2006), a police car pulling behind defendant’s car did not per se effect a seizure without more, such as lights and officers’ aggressive actions. United States v. Flores-Uriostegui, 2012 U.S. Dist. LEXIS 71162 (N.D. Ga. May 22, 2012):

Based on these facts, the Eleventh Circuit held that "[c]onsidering the fact that the first contact between [the suspect] and [the officer] did not occur until [the suspect] lowered the window, the fact that [the officer] pulled up behind [the suspect] and turned on his 'window lights' does not demonstrate that [the suspect] was coercively detained." Id. at 1258.

The facts here are similar to the relevant circumstances in Miller. In both instances, the officers pulled their marked patrol car behind a suspect's vehicle in such a way that the suspect could not leave. Unlike the officer in the Miller case, however, Officers Gray and Turman did not turn on their "window lights" or otherwise alert defendants to their presence. Thus, their approach was less intrusive than was the Miller officer's approach. There is also nothing in the record to suggest that the delay here between the parking of the patrol car and the approach of defendants' vehicle was anything other than "extremely brief." Perhaps most important to the Miller court's analysis was the absence of any display of authority prior to approaching the vehicle. Like the law enforcement official in Miller, Officers Gray and Turman did not draw their guns, give any directions to defendants, or activate their patrol car lights before approaching the vehicle.

Permalink 11:47:06 am, by fourth, 80 words, 466 views   English (US)
Categories: General

CBSDC: "Groups Concerned Over Arming Of Domestic Drones"

CBSDC: Groups Concerned Over Arming Of Domestic Drones:

With the use of domestic drones increasing, concern has not just come up over privacy issues, but also over the potential use of lethal force by the unmanned aircraft.

Drones have been used overseas to target and kill high-level terror leaders and are also being used along the U.S.-Mexico border in the battle against illegal immigration. But now, these drones are starting to be used domestically at an increasing rate.

Permalink 11:31:32 am, by fourth, 757 words, 915 views   English (US)
Categories: General

E.D.Ky.: Warrantless pre-Jones GPS surveillance was subject to the exclusionary rule and no GFE because of no binding circuit precedent

Warrantless GPS tracking before Jones was a fishing expedition, and, “[i]n this case, the DEA agents had their fishing poles out to catch Lee.” The exclusionary rule had to apply, and the good faith exception would not be applied for lack of binding precedent in the circuit. United States v. Lee, 2012 U.S. Dist. LEXIS 71204 (E.D. Ky. May 22, 2012):

Finally, the "purpose and flagrancy of the official misconduct" weighs against attenuation. Brown, 422 U.S. at 604. This last factor is often the "most important," United States v. Shaw, 464 F.3d 615, 630 (6th Cir. 2006), because "[t]he primary focus of attenuation analysis is whether or not the deterrent purpose of the exclusionary rule is served by suppression," United States v. Gray, 491 F.3d 138, 155 (4th Cir. 2007) (Wilkinson, J.). Although the DEA agents' misconduct was not flagrant, the Sixth Circuit has explained that police officers act with an unlawful purpose when they perform an "investigatory" search, that is, "when officers unlawfully seize a defendant "in the hope that something might turn up.'" United States v. Williams, 615 F.3d 657, 670 (6th Cir. 2010) (quoting Brown, 422 U.S. at 605); see also Shaw, 464 F.3d at 631 (noting that "Brown made it clear that the requisite "quality of purposefulness' can be demonstrated when the [misconduct], in design and execution, is investigatory in nature"). The Seventh Circuit agrees that an illegal search has an unlawful purpose when it is "undertaken in an effort to advance the investigation or to embark on a fishing expedition." United States v. Reed, 349 F.3d 457, 465 (7th Cir. 2003).

In this case, the DEA agents had their fishing poles out to catch Lee. Admittedly, the agents did not intend to break the law. But they installed a GPS device on Lee's car without a warrant "in the hope that something might turn up." Williams, 615 F.3d at 670. (quoting Brown, 422 U.S. at 605). When suspicious behavior did, in fact, turn up, they alerted the Kentucky State Police. By doing so, they set in motion a chain of events that ended with Lee's arrest. Their unlawful purpose means that the third attenuation factor also weighs in favor of suppression.

Moreover, the Gross panel pointed out that allowing "post-hoc rationalization" by police would create the "perverse" incentive for police officers to detain any individual going about their daily routines in the hope of turning up an outstanding warrant. Gross, 662 F.3d at 405. The same perverse incentive is present here: if Lee's seatbelt violation were an intervening circumstance, police could install tracking devices with impunity so long as they waited until the subject of their surveillance commits a minor traffic violation. Accord Maryland v. Wilson, 519 U.S. 408, 423 (1997) (Kennedy, J., dissenting) (describing the "almost countless circumstances" that allow the police to stop a vehicle). At that point, the police could stop them and search for evidence of illegal activity. Thus, the Court agrees with Judge Ingram that the police misconduct was guided by an impermissible purpose. See R. 33 at 16. Because none of the three factors favor attenuation, the Court must suppress all evidence that derived from Metzger's illegal search, including the traffic stop, the search of Lee's car, and his subsequent confession.

. . .

This Court is also not the first district court to confront the question of whether to apply the good-faith exception after Jones. In the Ninth Circuit, where binding circuit precedent authorized warrantless GPS monitoring, three district courts have applied the good-faith exception to defeat the defendant's motion to suppress. United States v. Aquilar, No. 4:11-cr-298-BLW, 2012 WL 1600276, at *2 (D. Idaho May 7, 2012); United States v. Leon, No. CR 09-00452, 2012 WL 1081962, at *3 (D. Haw. Mar. 28, 2012); United States v. Nwobi, No. CR 10-952(C)GHK-7, 2012 WL 769746, at *3 (C.D. Cal. Mar. 7, 2012). A district court in the Eighth Circuit did the same, also holding that the officer's reliance on binding circuit precedent triggered the good-faith exception. United States v. Amaya, No. CR-11-4065-MWB, 2012 WL 1188456, at *7-8 (N.D. Iowa Apr. 10, 2012). But in the Third Circuit, where there was no appellate ruling on warrantless GPS tracking, one district court refused to extend the good-faith exception. United States v. Katzin, No. 11-226, 2012 WL 1646894, at *9-10 (E.D. Pa. May 9, 2012). Applying the good-faith exception in the absence of binding appellate precedent would, in that court's eyes, "effectively eviscerate the exclusionary rule." Id. at *9. If law enforcement could "rely on non-binding authority, particularly in the face of other, contrary non-binding authority," officers would "beg forgiveness rather than ask permission in ambiguous situations involving ... basic civil rights." Id.

See Pot Prosecution Goes Up in Smoke Due to Warrantless GPS Tracking by Kim Zetter.

Permalink 11:05:33 am, by fourth, 204 words, 695 views   English (US)
Categories: General

FL1: DA's opening statement mentioning def's refusal to consent to search of car was reversible error

Prosecutor’s opening statement reference to defendant’s refusal to consent to a search was reversible error in a possession case where the defendant denied knowledge a gun was in the car. Rose v. State, 2012 Fla. App. LEXIS 8026 (Fla. 1st DCA May 22, 2012):

We hold that the trial court erred by overruling Appellant's objection and that this error was not harmless here. See Bravo v. State, 65 So. 3d 621 (Fla. 1st DCA 2011) (reversing conviction where trial court allowed impermissible testimony regarding defendant's refusal to consent to search of home without a warrant); Gomez v. State, 572 So. 2d 952, 953 (Fla. 5th DCA 1990) (holding "[c]omment on a defendant's denial of permission to search a vehicle, although not exactly the same thing as comment on a defendant's right to remain silent, since the Fourth Amendment is involved rather than the Fifth, constitutes constitutional error of the same magnitude.") (footnote omitted); see also Ramet v. State, 209 P.3d 268 (Nev. 2009) (holding that state may not introduce evidence that defendant refused to consent to warrantless search, as "defendant's invocation of his Fourth Amendment right cannot be used as evidence of a crime or consciousness of guilt," and citing Gomez and other federal and state decisions, but recognizing that error may be harmless).

Permalink 10:47:02 am, by fourth, 230 words, 490 views   English (US)
Categories: General

E.D.Mich: Terry stop for waving gun permitted handcuffing without becoming an arrest

Where waving a weapon was reported to 911, handcuffs during a Terry stop and frisk was reasonable and not an arrest. United States v. Moore, 2012 U.S. Dist. LEXIS 71023 (E.D. Mich. May 22, 2012):

Defendant argues his seizure ripened into an arrest the moment he was handcuffed and thus required probable cause. (Def.'s Mot. at 6.) This Court disagrees. The Sixth Circuit considered a similar argument in Houston v. Clark County Sheriff Deputy John Does 1-5, 174 F.3d 809, 814 (6th Cir. 1999). In Houston, the court observed that "the use of handcuffs [does not] exceed the bounds of a Terry stop, so long as the circumstances warrant that precaution." Id. at 815 (citing cases). It concluded that, because the defendant officers reasonably believed that the individuals stopped had been involved in a shooting, "their use of handcuffs and their detention of the men in the [police] cruisers were both reasonably necessary to protect the officers' safety during the investigation ... [and] were therefore 'reasonably related' to the investigation that warranted the initial stop." Id. The same is true here. Based upon the facts provided to them from the in-person interview with the 911 caller, the officers that initially stopped Defendant had a reasonable belief that he was intoxicated, armed, and dangerous. Thus, their use of handcuffs before conducting a pat-down for weapons was reasonably necessary to protect their safety during the investigation that warranted the initial stop.

Permalink 12:03:13 am, by fourth, 45 words, 463 views   English (US)
Categories: General

New law review articles on Facebook

Junichi P Semitsu, Arresting Development: Facebook Searches and the Information Super Highway Patrol, 65 Ark. L. Rev. 99 (2012)

Caren Myers Morrison, Passwords, Profiles, and the Privilege Against Self-Incrimination: Facebook and the Fifth Amendment, 65 Ark. L. Rev. 133 (2012)

These aren't available for free on the law review's website yet.

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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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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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    Electronic Communications Privacy Act (2012)
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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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