Archives for: September 2012, 19

09/19/12

Permalink 08:01:00 am, by fourth, 85 words, 299 views   English (US)
Categories: General

NYTimes Editorial: "California and the Fourth Amendment"

NYTimes Editorial: California and the Fourth Amendment:

On Wednesday, the United States Court of Appeals for the Ninth Circuit is scheduled to reconsider whether California violates the Fourth Amendment’s prohibition against searches and seizures by requiring police to take DNA samples from people arrested but not yet convicted of felonies. California’s law is ostensibly aimed at accurately identifying those arrested, solving crimes and exonerating the innocent. It is also, unfortunately, unconstitutional.

The Ninth Circuit has a link on its homepage for this case.

Permalink 07:57:37 am, by fourth, 121 words, 214 views   English (US)
Categories: General

Lawyers.com: "Cops Can Use Your Friends on Facebook – for Now"

Lawyers.com: Cops Can Use Your Friends on Facebook – for Now by Michele Bowman:

Law enforcement pulled another surprising move recently in the case of Melvin Colon, an alleged gangster from the Bronx, when cops convinced one of his Facebook friends to let them have access to Colon’s page. As a result, cops secured photos and posts that helped to indict him for gang-related racketeering, murder, and drug charges.

Colon fought the indictment, brandishing his Fourth Amendment right to privacy and arguing that he had a legitimate expectation that his friends would keep his posts about rival gang members and threats of violence to themselves.

Wrong, said U.S. District Judge William H. Pauley III in an order dated August 10. ...

Permalink 07:45:16 am, by fourth, 166 words, 207 views   English (US)
Categories: General

E.D.Tenn.: Presence of another person likely with firearms justified protective sweep

Information to the arresting officers that there were likely guns and another person on the premises justified a protective sweep along with the arrest. United States v. Cody, 2012 U.S. Dist. LEXIS 132914 (E.D. Tenn. August 9, 2012).

Defendant waived his argument regarding the admissibility of his cell phone records because he failed to file a pretrial motion to suppress the evidence, Rule 12(b)(3)(c). Also, he never asked the district court or the court of appeals to relieve him from the waiver, and he had not provided any explanation for why he failed to file a motion to suppress the evidence from his cell phone. The court declined to consider his ineffective assistance challenge on direct appeal, and he was relegated to a 2255 for that. United States v. Saucedo, 489 Fed. Appx. 3902 (11th Cir. 2012).*

In a search warrant for harboring illegal aliens for purposes of commercial sex, the government showed probable cause for the search warrant. United States v. Delarosa, 2012 U.S. Dist. LEXIS 132470 (N.D. Ga. August 27, 2012).*

Permalink 07:29:54 am, by fourth, 170 words, 218 views   English (US)
Categories: General

D.Mass.: GPS cases went both ways, so GFE applies to pre-Jones GPS use

The law of GPS was developing before Jones, and it can’t be said that officers were reckless pre-Jones to justify the exclusionary rule. Therefore, no exclusion. United States v. Rose, 2012 U.S. Dist. LEXIS 131957 (D. Mass. September 14, 2012)*:

Under that standard [Davis], the last resort of suppression is not warranted here because the agents did not "exhibit deliberate, reckless, or grossly negligent disregard" for the constitutional rights of the defendants. At the time agents installed three of the four GPS devices, circuit courts were unanimous in holding that GPS tracking did not so much as implicate, never mind violate, the Fourth Amendment. They installed the fourth GPS device in November 2010, one week after another Session of this Court rejected Maynard as contrary to precedent and unappealing as a matter of principle. Sparks, 750 F. Supp. 2d at 393-96. In relying on the consensus of lower courts and a common-sense reading of Supreme Court doctrine, the agents here acted in good faith and, as a result, the exclusionary rule does not apply.

Permalink 07:26:37 am, by fourth, 71 words, 236 views   English (US)
Categories: General

NYLJ: "Wiretaps and Fourth Amendment: Lessons From the Galleon Prosecutions"

NYLJ: Wiretaps and Fourth Amendment: Lessons From the Galleon Prosecutions by Robert C. Gottlieb and Derrelle M. Janey

Robert C. Gottlieb, a founding member of Gottlieb & Gordon, and Derrelle M. Janey, an associate with the firm, write that law enforcement seems committed to employing electronic surveillance to develop evidence within the hedge fund and hedge fund-related community; therefore, there are several key points for the criminal defense bar to consider.

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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)


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"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)

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