Archives for: June 2012, 01

06/01/12

Permalink 02:20:26 pm, by fourth, 145 words, 263 views   English (US)
Categories: General

Slate.com: "Safe Data: Amending the Constitution to protect informational privacy"

Slate.com: Safe Data: Amending the Constitution to protect informational privacy by Adam Cohen:

When the National Security Agency spying scandal broke in 2005, it revealed that the government was engaged in a sweeping program of surveillance of its own citizens. As technology advances, the ability of the government to spy on ordinary Americans is growing rapidly. The government has sophisticated methods of intercepting phone calls and Internet traffic. And the FBI has just told Congress it wants to expand its ability to monitor Web-based communications, including Facebook and Twitter, in part by requiring these services to build special "back doors" for the government to use for monitoring. We are also being observed every day by spy cameras, throughout major cities and suburban shopping malls. The public has no way of knowing how much information the government is collecting and what it is being used for.

Permalink 12:21:47 pm, by fourth, 111 words, 267 views   English (US)
Categories: General

LATimes: "Who's got your back online?"

LATimes: Who's got your back online? by Michelle Maltais:

Twitter may be full of a bunch of followers, but the social networking site has proved itself a leader when it comes to protecting its users' privacy.

In an annual survey of who's got your back, the Electronic Frontier Foundation gave Twitter three and a half gold stars out of four. New to the list this year, Sonic.net was the only four-star company.

EFF examined the policies of 18 major Internet companies to assess whether they publicly commit to standing with users when the government seeks access to user data. The companies included email providers, ISPs, cloud-storage providers, and social networking sites.

Permalink 11:26:52 am, by fourth, 66 words, 255 views   English (US)
Categories: General

Cell phone location data

Speaking of the "mosaic theory":

Most cell phone providers keep location data for a year. AT&T has it going back to 2008.
--Jim Harper, Director of Information Policy Studies, The Cato Institute (June 1, 2012)

As cells get smaller, the tracking data gets more accurate.
--Greg Najeim, Senior Counsel, Center for Democracy & Technology (June 1, 2012)

[I just added it up: There were 1572 posts to this website 6/1/11-5/31/12]

Permalink 10:40:07 am, by fourth, 168 words, 262 views   English (US)
Categories: General

N.D.Ohio: Health inspectors could inspect a liquor licensee for violations of Ohio's Smoke Free Workplace Act

The Amvest Post, a private club, had an Ohio liquor license, and health inspectors showed up to investigate complaints of violation of the Ohio's Smoke Free Workplace Act, and they went into areas not open to the public. The entry and inspection did not violate the Fourth Amendment because the club was closely regulated under New York v. Burger. Amvets Post #711 v. Rutter, 2012 U.S. Dist. LEXIS 74743 (N.D. Ohio May 30, 2012):

Ohio's Smoke Free Act authorizes warrantless administrative searches to protect its citizens against the well-documented dangers of and harms from secondhand smoke. The regulation complies with the requirements the Supreme Court set out in Burger. The Act, therefore, does not violate plaintiff's Fourth Amendment rights. Because defendants have not violated plaintiff's constitutional rights, they are entitled to dismissal of plaintiff's complaint.

[Note: The court does not differentiate between the liquor licensing authorities and the health department. The point of Burger is the expectation of privacy vis-a-vis one's license. What about inspections unrelated to the license, like here?]

Permalink 10:26:44 am, by fourth, 264 words, 318 views   English (US)
Categories: General

CA5: Reasonableness for due process purposes can equal reasonableness for Fourth Amendment purposes

Reasonableness for due process purposes can equal reasonableness for Fourth Amendment purposes. Kinnison v. City of San Antonio, 480 Fed. Appx. 271 (5th Cir. 2012):

"As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a government search is 'reasonableness.'" Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995). "[A] 'reasonableness' determination[] involves a balancing of all relevant factors," Whren v. United States, 517 U.S. 806, 817 (1996), and for Fourth Amendment purposes generally "requires no more of government officials than that of due process of law. Both constitutional provisions recognize an exigency exception, and, thus, lead to no practical distinction in" the summary action context. Flatford v. City of Monroe, 17 F.3d 162, 170 (6th Cir. 1994) (citing United States v. James Daniel Good Real Prop., 510 U.S. 43 (1993)); see also Freeman, 242 F.3d at 652 (noting that Supreme Court precedent "forecasts, even if it does not compel, that a balancing of the public and private interests at stake will favor the public interest in nuisance abatement after the conclusion of adequate administrative proceedings" (citing GM Leasing Corp. v. United States, 429 U.S. 338 (1977))).

We see no reason to depart from the general practice of tethering the outcome of the Fourth Amendment inquiry to whether the property deprivation offended due process. In light of the procedural due process analysis above, we conclude that the district court should not have granted summary judgment on Kinnison's Fourth Amendment claim. Cf. Samuels v. Meriwether, 94 F.3d 1163, 1168 (8th Cir. 1996) ("[A]n abatement carried out in accordance with procedural due process is reasonable in the absence of any factors that outweigh governmental interests.") (citations omitted).

Permalink 10:16:09 am, by fourth, 279 words, 289 views   English (US)
Categories: General

MA: Host could not consent to search of guest's bag in bedroom

Defendant was the suspect in a string of burglaries and thefts to support a drug habit, and the police went where he was staying to get consent. A guest’s backpack and shopping bag in a house could not be the subject of consent by the host. Commonwealth v. Magri, 462 Mass. 360, 968 N.E.2d 876 (2012):

Thus, the crucial question is whether the defendant had a reasonable expectation of privacy in his bags that were in Barnes's bedroom. It is well settled that an overnight guest maintains an expectation of privacy in luggage stored in a host's dwelling. See, e.g., United States v. Davis, 332 F.3d 1163, 1167-1168 (9th Cir. 2003); United States v. Salinas-Cano, 959 F.2d 861, 864-865 (10th Cir. 1992); United States v. Wilson, 536 F.2d 883, 884-885 (9th Cir.), cert. denied, 429 U.S. 982 (1976). See also 4 W.R. LaFave, Search and Seizure § 8.5(d), at 231-232 & n.104 (4th ed. 2004) ("Among the articles which it would seem would most commonly be deserving of the 'high expectation of privacy' label in the host-guest context would be the overnight bag or suitcase or similar object brought to the premises by the guest").

Although the bags in this case were not traditional luggage, there is no reasoned basis to draw a legal distinction between a guest's containers based on the materials from which they are made, their shape, or the mechanism by which they are closed. Cf. Commonwealth v. Linton, 456 Mass. 534, 557 (2010) (defendant held expectation of privacy in backpack he brought to his brother's house for extended visit). The Commonwealth makes no claim that the bags were not closed. We conclude that the defendant maintained a reasonable expectation of privacy in both his backpack and the shopping bag.

Permalink 09:42:54 am, by fourth, 125 words, 292 views   English (US)
Categories: General

D.Minn.: Words and gestures showed consent

“It light of Kellerman’s ‘words and gestures,’ the officers reasonably believed that Kellerman had consented to their entry into the basement. See Almeida-Perez, 549 F.3d at 1171 (‘Our circuit precedent ... has been more liberal about allowing police to form their impressions from context.’).” United States v. Derden, 2012 U.S. Dist. LEXIS 74684 (D. Minn. April 16, 2012), adopted 2012 U.S. Dist. LEXIS 74218 (D. Minn. May 30, 2012).*

Defendant consented to the entry of her home by the police: “No, no, come in and look. No one is home.” She was arrested for resisting. United States v. Hernandez, 2012 U.S. Dist. LEXIS 74499 (W.D. N.C. April 16, 2012).*

A pre-Gant search in reliance on it was not subject to the exclusionary rule under Davis. Hinkle v. State, 86 So. 3d 441 (Ala. Crim. App. 2011).*

FourthAmendment.com

Notes on Use

June 2012
Sun Mon Tue Wed Thu Fri Sat
<< < Current > >>
          1 2
3 4 5 6 7 8 9
10 11 12 13 14 15 16
17 18 19 20 21 22 23
24 25 26 27 28 29 30

Search

by John Wesley Hall
Criminal Defense Lawyer
Little Rock, Arkansas
Contact / About
www.johnwesleyhall.com
www.LawofCriminalDefense.com

© 2003-13
Online since Feb. 24, 2003

~~~~~~~~~~~~~~~~~~~~~~~~~~

Fourth Amendment cases,
citations, and links

Latest Slip Opinions:
U.S. Supreme Court
(Home)
Federal Appellate Courts Opinions
  First Circuit
  Second Circuit
  Third Circuit
  Fourth Circuit
  Fifth Circuit
  Sixth Circuit
  Seventh Circuit
  Eighth Circuit
  Ninth Circuit
  Tenth Circuit
  Eleventh Circuit
  D.C. Circuit
  Military Courts: C.A.A.F., Army, AF, N-M, CG
State courts

Google Scholar
Advanced Google Scholar
Google search tips
LexisWeb
LII State Appellate Courts
LexisONE free caselaw
Findlaw Free Opinions
To search Search and Seizure on Lexis.com $

Most recent SCOTUS cases:

2013-14 Term:
   Fernandez v. California, granted May 20 (ScotusBlog)

2012-13 Term:
  Maryland v. King, granted Nov. 9, argued Feb. 26 (ScotusBlog)
  Missouri v. McNeeley, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (Apr. 17) (ScotusBlog)
  Bailey v. United States, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (Feb. 19) (ScotusBlog)
  Florida v. Harris, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (Feb. 19) (ScotusBlog)
  Florida v. Jardines, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (Mar. 26) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (Jan. 23, 2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (April 2, 2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (Jan. 23, 2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (Feb. 22, 2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (May 16, 2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (May 26, 2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (May 31, 2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (June 16, 2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (Dec. 7, 2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 130 S.Ct. 2619, 177 L.Ed.2d 216 (June 17, 2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (Jan. 13, 2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (Jan. 21, 2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (Jan. 26, 2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (April 21, 2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (June 25, 2009) (ScotusBlog)


Research Links:
  Supreme Court:
  SCOTUSBlog
  S. Ct. Docket
  Solicitor General's site
  SCOTUSreport
  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
  Oyez Project (NWU)
  "On the Docket"–Medill
  S.Ct. Monitor: Law.com
  S.Ct. Com't'ry: Law.com

  General (many free):
  LexisWeb
  Google Scholar | Google
  LexisOne Legal Website Directory
  Crimelynx
  Lexis.com $
  Lexis.com (criminal law/ 4th Amd) $
  Findlaw.com
  Findlaw.com (4th Amd)
  Westlaw.com $
  F.R.Crim.P. 41
  www.fd.org

  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  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
  Privacy Foundation
  Electronic Privacy Information Center
  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."
—Me

"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)

XML Feeds

What is RSS?

Who's Online?

  • kvvkthomoifb Email
  • Guest Users: 105

powered by
b2evolution