Archives for: September 2012, 10
09/10/12
engadget.com: "FBI to roll out $1 billion public facial recognition system in 2014, will be on to your evildoing everywhere"
engadget.com: FBI to roll out $1 billion public facial recognition system in 2014, will be on to your evildoing everywhere by Jason Hidalgo:
They're watching you -- or at least will be in a couple of years. That's when the FBI is gearing up for a nationwide launch of a $1 billion project designed to identify people of interest, according to the New Scientist. Dubbed the Next Generation Identification (NGI) program, the high-tech endeavor uses biometric data such as DNA analysis, iris scans and voice identification to track down folks with a criminal history. The FBI also plans to take NGI on the road literally by using public cameras to pick faces from the crowd and cross check them with its national repository of images.
TN: Defendant couldn't overcome officer's testimony he was going faster than the officer and speeding
The trial court did not err in accepting the officer’s testimony that the defendant was going faster than he was, so he stopped him. Defendant’s argument that he was actually going slower than the officer projected was based on a land surveyor’s opinion from the video, but the land surveyor wasn’t called as a witness. State v. White, 2012 Tenn. Crim. App. LEXIS 690 (August 31, 2012).* [If you’re challenging the officer’s testimony that the defendant wasn’t committing a traffic violation, you can only win if the officer’s testimony is really, really vague or just plain incredible to the point it would be error to accept it (I’ve seen only one here). On the clearly erroneous standard, if there’s anything for the trial court to attach to, the defendant loses on appeal. This is not a trade secret–the police already know it. That’s why they can testify so vaguely as “he said, she said” and the factfinding is virtually unchallengable.]
Where a motion to suppress would not have been granted had it been made, defense counsel could not be ineffective for not making it. People v. Brock, 2012 IL App (4th) 100945, 2012 Ill. App. LEXIS 737 (September 7, 2012).*
In a dissent from a denial of certiorari, the dissenter opines there was no probable cause shown in the thin attempt to support the CI and a failure from the affidavit itself in Alabama is a failure of the good faith exception. (The decision cert was sought from is not reported.) Lane v. State, 2012 Ala. LEXIS 113 (September 7, 2012) (Malone, J., dissenting).*
IL: Defendant was "stopped" for approaching a checkpoint too fast, and it was valid
Defendant likely would not have been stopped at a safety checkpoint, but he was approaching at an unsafe speed, and an officer shouted at him to slow down, and he stopped. Three to five minutes later, the officer approached the car after processing another, and he smelled alcohol on defendant’s breath. The further detention was valid, and the trial court erred in suppressing. People v. Clements, 2012 Ill. App. LEXIS 734, 2012 IL App (3d) 110213 (September 5, 2012).*
“Officer McCoy, using an application on his smartphone, read the defendant the Miranda warnings.” United States v. Jones, 2012 U.S. Dist. LEXIS 127268 (N.D. Ohio September 7, 2012). [Not a Fourth Amendment case; I just hadn’t heard of that yet. Sensing some importance here, I memorized the Miranda warning in law school, five years after it was decided. Every person in America with a television has heard it hundreds of times, thanks to pop culture. Cf. Dickerson v. United States, 530 U.S. 428 (2000). I imagine the only people who don't know it after 46 years are the unarrested without television.]*
CA11: USDJ can adopt argument on R&R not presented to USMJ; no waiver
When a USDJ reviews a USMJ’s R&R, the court does not abuse its discretion in accepting an argument not presented to the USMJ to sustain the search. Waiver doesn't work that way. United States v. Franklin, 694 F.3d 1 (11th Cir. 2012):
A district court does not abuse its discretion by accepting an argument not raised before the magistrate judge. Id. at 1176-77. In Tolbert, this Court held that "[w]e reject the notion that, in its review of the report and recommendation, the district court performed an appellate function and was barred, outside of exceptional circumstances, from considering an argument not raised before the magistrate judge." Id. The district court did not abuse its discretion in allowing the Government to argue in its objection to the magistrate judge's report and recommendation that the entry and seizure of the firearms did not violate the Fourth Amendment because the record demonstrated that probable cause and exigent circumstances justified the officer's conduct.
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by John Wesley Hall
Criminal Defense Lawyer
Little Rock, Arkansas
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Online since Feb. 24, 2003
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2012-13 Term: 2010-11 Term: General (many free): Congressional Research Service: "If it was easy, everybody would be doing it. It isn't, and they don't." "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." "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." Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment. "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." "The great end, for which men entered into society, was to secure their
property." "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." "The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth." "A search is a search, even if it happens to disclose nothing but the
bottom of a turntable." "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." “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.” “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.” "You can't always get what you want /
But if you try sometimes / You just might find / You get what you need." "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." “You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
"There is never enough time, unless you are serving it."
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)
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)
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Section 1983 Blog
—Me
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
—Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
—Katz
v. United States, 389 U.S. 347, 351 (1967)
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
—Mick Jagger & Keith Richards
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
—Pepé Le Pew
—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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