Archives for: November 2012

11/30/12

Permalink 10:18:47 am, by fourth, 299 words, 907 views   English (US)
Categories: General

MD: Repeated noise complaints in one night justified police entry

Police officers acted reasonably in entering defendant’s apartment after repeated rebuffed requests to turn down the music which was bothering the neighbors. Even though nighttime entries require higher justification, defendant’s own actions “‘undermined’ his right to privacy.” The police entered, and he allegedly resisted. Olson v. State, 208 Md. App. 309, 56 A.3d 576 (2012):

Although his Fourth Amendment rights would ordinarily be at their zenith when he is home at night, appellant "undermined" his right to privacy "by projecting loud noises into the neighborhood in the wee hours of the morning, thereby significantly disrupting his neighbors' peace." United States v. Rohrig, 98 F.3d 1506, 1521 (6th Cir. 1996). See also State v. Kaltner, 420 N.J. Super. 524, 534 (2011) ("under certain circumstances, a defendant who knowingly exposes one's home to the public has a 'lessened expectation of privacy'") (quoting State v. Henry, 133 N.J. 104, 117 (1993)); Commonwealth v. Orlando, 371 Mass. 732, 735 (1977) ("[A]busive language [which] in some circumstances may constitute protected speech ... may be constitutionally proscribed when loudly uttered late at night in a residential neighborhood so that people in the privacy of their homes are unable to avoid the noise."). Through his own actions, appellant made it impossible to protect his privacy interests "without diminishing his neighbors' interests in maintaining the privacy of their homes." Rohrig, 98 F.3d at 1522. Here, "preserving a peaceful community is all the more compelling when balanced against [appellant's] substantially weakened interest in maintaining the privacy of his home." Id.

To be sure, it would have been appropriate, and perhaps feasible, for the police to have obtained a warrant soon after they first arrived on the scene in light of appellant's behavioral history and his expressed intent to continue projecting his music through the night. But appellant should not be rewarded — and the neighborhood penalized — for the extended period of police patience and restraint.

Permalink 09:26:35 am, by fourth, 147 words, 384 views   English (US)
Categories: General

D.Ariz.: Pre-Jones GPS placement saved by Davis

Placing a GPS on a car in April 2011 was not unlawful because of the Davis good faith exception. When it was placed, the car was parked in an apartment complex parking lot, and it could not be considered curtilage. United States v. Brooks, 2012 U.S. Dist. LEXIS 168737 (D. Ariz. November 28, 2012).*

Defendant argued that the search warrant for defendant’s warehouse didn’t authorize a search of the entire warehouse because it said the part “under control” of the defendant. The court found that the good faith exception justified the search, and the government justified the good faith exception. United States v. Sakuma, 2012 U.S. Dist. LEXIS 168877 (D. Haw. November 27, 2012).*

Plaintiff’s termination proceeding as a law enforcement officer ligated his search issue but it wasn’t appealed. It could have been appealed but wasn’t, and it’s res judicata. Jacobs v. Arizona, 491 Fed. Appx. 837 (9th Cir. 2012).*

Permalink 08:15:36 am, by fourth, 598 words, 667 views   English (US)
Categories: General

D.Ore.: Entry onto front yard to attempt to electronically read wireless usage was trespass on curtilage under Jones; ambiguous information didn't show PC

The use of a “Shadow” radio device to find wireless signals in an area associated with suspect IP address subscribers was not a Fourth Amendment search, and defendant had no reasonable expectation of privacy in a radio signal emitting from his house. Going on to defendant’s lawn, however, invaded the curtilage. Then, an ambiguous usage spike didn’t provide probable cause to believe that child pornography was being obtained. United States v. Broadhurst, 2012 U.S. Dist. LEXIS 168893 (D. Ore. November 28, 2012):

Defendant contends Detective Link's actions fall squarely within the definition of a search under Jones. Detective Link trespassed on defendant's front lawn to obtain data with the Shadow regarding the location of the suspect station device. The government does not dispute that Detective Link trespassed on defendant's front lawn and offers no exigent circumstance for Detective Link's actions. (Resp. [42] at 15). I agree with defendant that Detective Link engaged in a warrantless search in violation of the Fourth Amendment when he physically trespassed on defendant's protected private property for the purpose of obtaining information.

Four non-exhaustive factors are examined to determine whether an area is part of a home's curtilage: "the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by." United States v. Dunn, 480 U.S. 294, 307 (1987); see Perea-Rey, 680 F.3d at 1184 (applying Dunn factors). "These factors do not yield a definite answer; rather they guide courts in determining whether the area is so intimately connected to the home that it should fall under the umbrella of the Fourth Amendment's protections." United States v. Johnson, 256 F.3d 895, 911 (9th Cir. 2001) (en banc) (Kozinski, J., concurring). Here, all four factors are met. The front lawn is next to the home and is included in the mixed enclosure of trees, shrubbery, and fence surrounding the home. The lawn appears well-kept with trimmed grass and trees, a garden, and a dog house. In addition to the enclosures, the lawn had at least two "Private Property/No Trespassing" signs. Because all four factors are satisfied, the front lawn is curtilage. Therefore, defendant's front lawn is afforded the same Fourth Amendment protection as the home, see Duenas, 691 F.3d at 1081, and Detective Link's trespass constituted an unlawful search under the Fourth Amendment, see Perea-Rey, 680 F.3d at 1186.

. . .

Perhaps some of this missing information in the warrant affidavit could be attributed to the fact that this investigation was the first time the Clackamas County Sheriff's Office used the Shadow. Nonetheless, an officer must provide the issuing judge with sufficient information to understand the technology at issue. And although the suppression hearing more fully explained the Shadow technology, this information cannot be used retrospectively to evaluate the legality of the warrant affidavit. See Stanert, 762 F.2d at 778.

Consequently, an ambiguous spike coupled with a limited description of the Shadow technology did not establish a "fair probability" that evidence of child pornography crimes would be found in defendant's residence.

The GUID confirmation also failed to support a finding of probable cause to search defendant's residence. While the consistent GUID confirmed Deputy Sheriff Schweitzer's belief that one peer with one computer was accessing multiple Internet connections, none of the IP addresses associated with this GUID was subscribed to defendant's residence. Therefore, the GUID confirmation actually suggested that defendant's residence might not have been the location of the suspect station device. This, too, undermined a finding of probable cause.

Permalink 07:52:31 am, by fourth, 185 words, 441 views   English (US)
Categories: General

CA9: Generalized suspicion of drugs doesn't justify frisk; more is required

A dog alert on a car alone was no justification for a frisk because it could have been drugs, money, or people the dog was alerting on. “The Supreme Court has not allowed a general suspicion of drug activity to provide blanket authorization for frisking anyone in the vicinity. See Ybarra v. Illinois, 444 U.S. 85, 90-91 (1979).” United States v. I.E.V., 705 F.3d 430 (9th Cir. 2012):

Moreover, in this case, both officers testified that the Defendant acted in a non-threatening and compliant manner. This is similar to the compliant suspect who was unconstitutionally frisked in Ybarra, and unlike the suspect in Jacobs who was charging police officers in his vehicle. Moreover, the Defendant was a young teenager surrounded by three police officers, rather than a man confronting a solitary officer in a confined space, as in U.S. Currency. Therefore, the officers' general suspicion of drugs did not justify the frisk of Defendant.

Officer failed to show reasonable suspicion for his continued questioning of the plaintiff, so there is no qualified immunity. Sutton v. Metro. Gov't of Nashville & Davidson County, 700 F.3d 865 (6th Cir. 2012).*

Permalink 07:22:25 am, by fourth, 193 words, 370 views   English (US)
Categories: General

MA: Nexus is probable cause, a substantial basis for concluding, not certainty

Nexus was shown to defendant’s house by witnesses saying defendant had a gun and fired it, and the car in front of his house was hit by a bullet. “The nexus between the items to be seized and the place to be search need not establish to a certainty that the items to be seized will be found in the location specified in the warrant, nor exclude any and all possibility that the items might be found elsewhere. Rather, the test is probable cause, not certainty. ‘The affidavit need not convince the magistrate beyond a reasonable doubt, but must provide a substantial basis for concluding that evidence connected to the crime will be found on the specified premises.’ Commonwealth v. Donahue, supra.” Commonwealth v. Thevenin, 82 Mass. App. Ct. 822, 978 N.E.2d 1215 (2012).*

The probable cause for defendant’s apartment was not stale because the affidavit in support referred to ongoing drug sales, and there was good faith. In the search a safe was seized, and information received at the time of the search separately supported the search warrant for the safe. United States v. Gibbs, 2012 U.S. Dist. LEXIS 168586 (W.D. Pa. November 28, 2012).*

Permalink 07:15:59 am, by fourth, 121 words, 417 views   English (US)
Categories: General

CA5: Unnecessarily inflicting pain during arrest violates Fourth Amendment for criminal prosecution of officer

Physical pain is enough injury for a Fourth Amendment violation of a suspect's rights to support a conviction under 18 U.S.C. § 242 for abusing an arrestee. The defendant was a Border Patrol officer. United States v. Diaz, 498 Fed. Appx. 407 (5th Cir. 2012):

Because determining whether a Fourth Amendment injury is more than de minimis depends on the context in which the injury arose, see id., we cannot categorically say that the district court may never charge the jury that "bodily injury" may include "physical pain." Moreover, Diaz's argument that including "physical pain" in the definition of "bodily injury" means including injuries that this circuit has held to be de minimis is foreclosed by Brugman. [United States v. Brugman, 364 F.3d 613 (5th Cir. 2004)]

Permalink 07:05:21 am, by fourth, 233 words, 314 views   English (US)
Categories: General

Mich.L.Rev.: "The Mosaic Theory of the Fourth Amendment"

Mich.L.Rev.: The Mosaic Theory of the Fourth Amendment by Orin S. Kerr:

In the Supreme Court's recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a "mosaic theory" of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search.

This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that a mosaic theory would raise, and it analyzes the merits of the proposed new method of Fourth Amendment analysis. The Article makes three major points. First, the mosaic theory represents a dramatic departure from the basic building block of existing Fourth Amendment doctrine. Second, adopting the mosaic theory would require courts to answer a long list of novel and challenging questions. Third, courts should reject the theory and retain the traditional sequential approach to Fourth Amendment analysis. The mosaic approach reflects legitimate concerns, but implementing it would be exceedingly difficult in light of rapid technological change. Courts can better respond to the concerns animating the mosaic theory within the traditional parameters of the sequential approach to Fourth Amendment analysis.

11/29/12

Permalink 08:42:41 am, by fourth, 661 words, 508 views   English (US)
Categories: General

CA9: Policy alone cannot justify an inventory--there must be facts

Policy alone does not justify an inventory; the facts must justify it, too. United States v. Cervantes, 703 F.3d 1135 (10th Cir. 2012):

Neither Sanchez nor Colley provided any testimony that Cervantes's vehicle was parked illegally, posed a safety hazard, or was vulnerable to vandalism or theft. To the contrary, Officer Colley testified that Cervantes appropriately pulled over to the curb when he was stopped in a residential neighborhood. While it is true that Cervantes's vehicle was not in close proximity to his home at the time it was impounded, cf. Caseres, 533 F.3d at 1075 (noting that defendant's vehicle was two houses away from his home), the government presented no evidence that the vehicle would be vulnerable to vandalism or theft if it were left in its residential location, or that it posed a safety hazard, and thus failed to meet its burden to show that the community caretaking exception applied. Id.; Hallstrom v. City of Garden City, 991 F.2d 1473, 1477 n.4 (9th Cir. 1993) (upholding the towing of a car from a public parking lot, not a residential street, under the community caretaking exception).

Nor can the government justify the impoundment by simply citing to sections of the California Vehicle Code and the LAPD's policy on impoundments and inventory searches. The fact that an impoundment complies with a state statute or police policy, by itself, is insufficient to justify an impoundment under the community caretaking exception. See Miranda, 429 F.3d at 864 ("We begin with the premise, apparently not recognized by the Defendants, that the decision to impound pursuant to the authority of a city ordinance and state statute does not, in and of itself, determine the reasonableness of the seizure under the Fourth Amendment ...."). "[T]he decision to impound a vehicle Moreover, it is not clear that Officers Colley and Sanchez even complied with the California Vehicle Code when they impounded Cervantes's vehicle. According to California Vehicle Code § 22651(h)(1), an officer may impound and remove a vehicle "[w]hen an officer arrests a person driving or in control of a vehicle for an alleged offense and the officer is, by this code or other law, required or permitted to take, and does take, the person into custody." Cal. Vehicle Code § 22651(h)(1) (emphases added). Pursuant to California Vehicle Code § 14602.6(a)(1), "[w]henever a peace officer determines that a person was driving a vehicle while his or her driving privilege was suspended or revoked ... the peace officer may either immediately arrest that person and cause the removal and seizure of that vehicle or, if the vehicle is involved in a traffic collision, cause the removal and seizure of the vehicle without the necessity of arresting the person ...." Cal. Vehicle Code § 14602.6(a)(1) (emphases added). While the purported reason for the impoundment of Cervantes's car was his alleged driving without a license, in violation of California Vehicle Code § 12500(a), according to both officers, Cervantes was arrested and taken into custody only after the vehicle was impounded and the inventory search had already resulted in the discovery of narcotics.

In sum, on this record, the impoundment of Cervantes's vehicle was not justified by the community caretaking exception to the Fourth Amendment's warrant requirement. The district court's contrary holding was error.

I suspect this case may go up. Courts always grant deference to the police to impound a vehicle, almost on a whim, or at least bending over backwards to twist facts to support the police, as the dissent seemed to do here. Such deference has always rubbed me the wrong way, but I'm not an appellate judge, either. Here, Cervantes's vehicle was stopped in an ordinary residential area, not a "high crime area," so the risk of theft was reduced. But, if Cervantes was going to be in custody for a while, what about leaving it for weeks or months parked in front of a house? I'm making the government's argument now, I guess. But, so what? What about inevitable discovery when the vehicle is someday towed? Too speculative?

Permalink 08:06:46 am, by fourth, 410 words, 602 views   English (US)
Categories: General

NY: Non-existent court on SW and illegible signature of judge voids warrant

In this child pornography case, the officer here accidentally typed the name of a nonexistent town criminal court at the top of the warrant. “The Village Justice [of the Peace] signed the warrant without correcting the mistake. His signature was affixed on a line marked ‘Signature of Judge or Justice,’ but it is illegible, and the court is not named.” The warrant is void because it can’t be ascertained who issued it, and that violates the neutral and detached magistrate requirement. People v Gavazzi, 2012 NY Slip Op 8054, 20 N.Y.3d 907, 957 N.Y.S.2d 660, 981 N.E.2d 256 (2012):

=> Read more!

Permalink 07:45:18 am, by fourth, 110 words, 383 views   English (US)
Categories: General

GA: Officer's deliberate delay in running wants and warrants unconstitutionally extended the stop

The officer did not ask dispatch to run warrants on defendant until eight minutes into the stop and after the warning ticket was written. Then the officer ignored dispatch’s response to continue the stop. The stop was too long and invalid. Weems v. State, 318 Ga. App. 749, 734 S.E.2d 749 (2012).*

“Prior to requesting consent to search, Sergeant Mathews asked Berry if there was ‘anything in the vehicle [he] should be concerned with.’” Hearing that, defendant’s general consent included the entire vehicle. Berry v. State, 318 Ga. App. 706, 734 S.E.2d 527 (2012).*

The Davis good faith exception applies to GPS installed on a vehicle in 2010. Kelly v. State, 208 Md. App. 218, 56 A.3d 523 (2012).

11/28/12

Permalink 04:56:51 pm, by fourth, 164 words, 492 views   English (US)
Categories: General

NACDL Press Release: "Former Prosecutors and Judges Join Nation’s Criminal Defense Bar to Support a Warrant Requirement for Law Enforcement Access to Email"

NACDL Press Release: Former Prosecutors and Judges Join Nation’s Criminal Defense Bar to Support a Warrant Requirement for Law Enforcement Access to Email:

Washington, DC (November 27, 2012) – In a letter to Senators Patrick Leahy and Charles Grassley, the Chair and Ranking Member respectively of the United States Senate Judiciary Committee, 30 former prosecutors and judges weighed in on November 21 in support of Senator Leahy’s amendment to H.R. 2471. As explained in the letter, this amendment “would provide for a much needed judicial check on when the government can access our private digital information.” Currently, and shockingly to many Americans, there is no warrant requirement for the government to access electronic communications stored by a third-party provider so long as the communication is more than 180 days old. This amendment simply puts electronic communications on the same constitutional footing as private communications sent via the U.S. Postal Service, for example.

See HuffPo: The Government Can Read Your Emails, But a New Law Might Stop Them.

Permalink 02:00:31 pm, by fourth, 173 words, 378 views   English (US)
Categories: General

HuffPo: "A Fourth Amendment for the 21st Century"

HuffPo: A Fourth Amendment for the 21st Century by Julian Sanchez:

The resignation of CIA Director David Petraeus has thrown a spotlight on the FBI's sweeping power to sift through the most intimate details of our digital lives -- often with little or no judicial supervision. On Thursday, the Senate Judiciary Committee will consider legislation that would modestly improve the outdated law governing police access to our emails and other electronic records -- yet even this first step toward meaningful online privacy reform is encountering strong resistance.

Most Americans know that the Fourth Amendment protects us against "unreasonable searches and seizures" -- requiring a judge to issue a specific warrant based on "probable cause" before government agents can search our homes, open our mail or wiretap our phones. Most probably assume that the same protection applies to their email conversations and other sensitive information stored in "the cloud," such as documents, photos, chat logs and records of their Web browsing habits. Unfortunately, under the misnamed Electronic Communications Privacy Act of 1986, that's not true.

Permalink 10:52:39 am, by fourth, 154 words, 410 views   English (US)
Categories: General

D.Kan.: Have to show standing somehow; if the driver doesn't testify, get it from the passenger somehow

Defendant was the driver but not the registered owner of the car. He didn’t testify at the suppression hearing, so he had to rely on the codefendant’s testimony to give him standing, and that fell way short. United States v. Flores, 2012 U.S. Dist. LEXIS 167589 (D. Kan. November 27, 2012)*:

In considering a vehicle where a defendant is the driver but not the registered owner, "mere possession of the car and its keys does not suffice to establish a legitimate possessory interest." Id. (citing United States v. Martinez, 983 F.2d 968, 973 (10th Cir. 1992)). Flores bears the burden of establishing that a person with authority over the vehicle granted him possession. Id. (citing United States v. Arango, 912 F.2d 441, 445 (10th Cir. 1990)). There is no evidence whatsoever to establish that Flores received permission from Ochoa prior to driving the Nissan. Moreover, there is no evidence that the Nissan transferred ownership at any point between September 2011 and February 2012.

Permalink 08:01:15 am, by fourth, 177 words, 381 views   English (US)
Categories: General

W.D.Mo.: SW for hotel room necessarily included room's safe

Search warrant for hotel room included the locked safe in the closet without having to specifically mention it. United States v. Tapia, 2012 U.S. Dist. LEXIS 168118 (W.D. Mo. November 2, 2012).

Defendant can’t win his 2255 for failing to file a suppression motion where he can’t show that he’d have won it. Ables v. United States, 2012 U.S. Dist. LEXIS 167211 (S.D. Ohio November 26, 2012).*

The frisk of defendant’s car was justified by defendant’s furtive movement that appeared to the officer to remove a gun from his waistband and put it under the car seat. Officers approached the car because of the way it was parked, and the furtive movement apparently was in response to that. The gun was seen in plain view through the window. United States v. Brown, 2012 U.S. Dist. LEXIS 167017 (W.D. Pa. November 26, 2012)* (All in all a confusing opinion. The court ends up calling it a “search incident” after describing facts that made the search incident doctrine inapplicable. There was plenty to support the search here without calling it that.)

Permalink 07:46:24 am, by fourth, 167 words, 350 views   English (US)
Categories: General

FL1: Defendant's refusal to keep hands out of pockets during talk with officer coupled with nervousness justified patdown

Defendant was riding a bicycle, and the officer stopped his car without lights and got off. Defendant stopped and talked to the officer. Defendant exhibited nervousness and was fidgety and putting his hands in his pockets. The officer told him to keep his hands out, but he didn’t. That justified a patdown, and cocaine was subject to plain feel. June v. State, 131 So. 3d 2 (Fla. 1st DCA 2012).*

At the guilty plea, it appeared that the search of defendant was valid, and he clearly knew that he was waiving a motion to suppress by pleading guilty. “The record demonstrates that Williams chose to proceed as he did because the search appeared lawful, and he concluded it would be in his best interest not to challenge it.” It also didn’t help that he said he pled guilty not knowing that he’d probably be deported when the guilty plea transcript shows that was clearly discussed. Williams v. United States, 2012 U.S. Dist. LEXIS 167668 (W.D. Ky. November 27, 2012).*

11/27/12

Permalink 08:05:26 am, by fourth, 174 words, 1366 views   English (US)
Categories: General

Houston Chronicle: "Email not in the Fourth Amendment"

Houston Chronicle: Email not in the Fourth Amendment | Outdated privacy regulations let law enforcement spy via Internet companies and social networks by Caleb Garling:

Outdated digital privacy regulations are increasingly allowing law enforcement agencies to use Internet companies and popular social networks to do their spying.

The Fourth Amendment protects against unreasonable search and seizure of private citizens and their "persons, houses, papers, and effects" - but obviously makes no mention of email in a remote server. In 1986, Congress passed a law regulating how law enforcement can access information stored and communicated electronically. That was years before the Internet became a household term and before email was commonplace.

The law, known as the Electronic Communications Privacy Act, updated the 1968 Federal Wiretap Act. Now, as the Senate considers amending the privacy act to make law enforcement more accountable to the courts, Internet providers and service companies find themselves as awkward middlemen between the government and Web users.

How is email not an "effect"? It is, but there are too many other Fourth Amendment problems lurking.

Permalink 08:01:44 am, by fourth, 588 words, 516 views   English (US)
Categories: General

CA9: Govt didn't waive argument by not filing written response to motion to suppress where it came up at the suppression hearing

Defendant filed a motion to suppress and the government didn’t respond in writing, but it did respond at the suppression hearing. The government did not waive its automobile exception argument, and it was squarely before the district court by defendant’s own submission and the arguments of the parties before the USMJ. The district court erred in finding the automobile exception did not apply. United States v. Scott, 705 F.3d 410 (9th Cir. 2012):

=> Read more!

Permalink 07:19:31 am, by fourth, 140 words, 1226 views   English (US)
Categories: General

W.D.Pa.: Stop in high crime area was valid and led to plain view of gun in car

Defendant was subjected to an “incredibly brief” Terry stop to determine if he was armed in a high crime area known for guns. At the time defendant was arrested, the gun was visible inside the car with the doors closed, which made it not subject to search incident. It was, however, subject to plain view. United States v. Brown, 2012 U.S. Dist. LEXIS 167017 (W.D. Pa. November 26, 2012).*

Police had a warrant to search a residence, and they didn’t need a separate search warrant to search one room of it. Defense counsel thus can’t be ineffective. Ables v. United States, 2012 U.S. Dist. LEXIS 167211 (S.D. Ohio November 26, 2012).*

Plaintiff’s Bivens claim against FCI Fort Dix had to go through PLRA exhaustion, which is explained in detail. Brown v. United States, 2012 U.S. Dist. LEXIS 167085 (D. N.J. November 15, 2012).*

11/26/12

Permalink 04:52:20 pm, by fourth, 124 words, 1258 views   English (US)
Categories: General

NYTimes: "Courts Divided Over Searches of Cellphones"

NYTimes: Courts Divided Over Searches of Cellphones by Somini Sengupta:

Judges and lawmakers across the country are wrangling over whether and when law enforcement authorities can peer into suspects’ cellphones, and the cornucopia of evidence they provide.

A Rhode Island judge threw out cellphone evidence that led to a man being charged with the murder of a 6-year-old boy, saying the police needed a search warrant. A court in Washington compared text messages to voice mail messages that can be overheard by anyone in a room and are therefore not protected by state privacy laws.

In Louisiana, a federal appeals court is weighing whether location records stored in smartphones deserve privacy protection, or whether they are “business records” that belong to the phone companies.

Permalink 09:03:56 am, by fourth, 500 words, 541 views   English (US)
Categories: General

PA: Nighttime warrantless entry for FTA on doubtful tip was unconstitutional

One Lecroy was wanted for an FTA after a traffic accident. Based on a tip of unknown reliability he’d been staying there, they went to defendant’s home at night to find him. Shining flashlights through the window, they found people asleep inside. “Trooper Havens determined that an enquiry of the home's occupants was ‘[a]bsolutely’ appropriate and instructed Trooper Gangloff to knock. In a process that lasted ‘maybe two seconds, three seconds[,]’ Gangloff banged on the door, pushing it open, allowing the smell of burned marijuana to drift outside, and Trooper Havens entered.” After they were in, they told the occupants they weren’t under arrest, but they weren’t free to leave either because the officers were getting a search warrant. The search under the warrant was unconstitutional under the Fourth Amendment, not even deciding the state constitution. The court discussed the weighty privacy concerns of nighttime searches and the state implications of inevitable discovery and concluded the search was just indefensible. Commonwealth v. Berkheimer, 2012 PA Super 253, 57 A.3d 171 (2012) (en banc):

In Mason, law enforcement had sought a warrant prior to entering the defendant's home and obtained the warrant based on information gleaned without resort to illegal entry, thus allowing at least the possibility that the Commonwealth could comport with Fourth Amendment jurisprudence delineating the independent source rule. In response, the Court identified Article I, Section 8 as a source of additional rights and protections that could not be met under the aggravated circumstances in that case. By contrast, while the circumstances in this case exceed those in Mason when measured by the injury they inflicted to the defendants' right to privacy, they also fall substantially short of demonstrating an independent source as required by Murray. Although the search is thus doubly infirm, we need only rely on Fourth Amendment jurisprudence to strike it down. Quite simply, the record in this case identifies no source whatsoever unsullied by the taint of illegality. Therefore, the inevitable discovery exception is not satisfied and the evidence on which the Commonwealth relies was obtained unlawfully.

For the foregoing reasons, we conclude that the trial court erred in denying the defendants' joint motion for suppression. As Mr. Justice Brandeis observed almost a century ago: "If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy." Edmunds, 586 A.2d at 906 (quoting Olmstead v. United States, 277 U.S. 438, 485, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Brandeis, J., dissenting)). "Although the exclusionary rule may place a duty of thoroughness and care upon police officers and district justices in this Commonwealth, in order to safeguard the rights of citizens under [the Fourth Amendment and] Article I, Section 8, that is a small price to pay, we believe, for a democracy." Id. In the absence of the Commonwealth's proffered evidence, obtained by palpably unlawful government action, there is no evidence that these defendants engaged in any act that was itself unlawful. Consequently, they are entitled to a full discharge.

Permalink 12:14:12 am, by fourth, 118 words, 1305 views   English (US)
Categories: General

CA6: Defendant impliedly consented to search of a cooler when he said had “more weed” in it, and pushed it in the direction of the officers

Defendant who was sitting at his desk and told police that a cooler at his feet had “more weed” in it, and pushed it in the direction of the officers impliedly consented to its search. United States v. Bowser, 505 Fed. Appx. 522 (6th Cir. 2012).*

Defendant’s consent came during the unlawful stop, not after, so reconsideration of the prior opinion is granted and the judgment reversed. State v. Canfield, 251 Ore. App. 442, 283 P3d 438 (2012), reversed. State v. Canfield, 253 Ore. App. 574, 291 P.3d 775 (2012).*

The district court did not plainly err in finding the police had both probable cause and exigent circumstances for their entry, without telling us what it is. United States v. McKoy, 2012 U.S. App. LEXIS 24122 (4th Cir. November 20, 2012).*

Permalink 12:03:13 am, by fourth, 199 words, 371 views   English (US)
Categories: General

MA: While search would not have happened for simple possession of MJ, finding warrant justified full search

While Massachusetts decriminalized possession of small amounts of marijuana for a search of the car, the finding of a warrant on defendant justified his arrest and search because it would have inevitably have happened at the police station anyway. Commonwealth v. Lobo, 82 Mass. App. Ct. 803, 978 N.E.2d 807 (2012).*

Defendant and others were suspected, from looking at hours of casino video surveillance, of conspiring to rob winning casino patrons, following them from Lawrenceburg, Indiana back to Cincinnati and robbing them at their homes. Officers developed probable cause for defendant, and the inventory search of her vehicle when she was arrested followed SOP and was done in good faith and not as a pretext for criminal investigation. State v. Erkins, 2012 Ohio 5372, 2012 Ohio App. LEXIS 4712 (1st Dist November 21, 2012).*

Defendant drifted over the fog line, and he was stopped. The officer wrote him a warning, and told him he was free to leave. Then he asked if he could ask more questions, defendant agreed, and he asked about whether there was anything illegal in the car. Defendant’s heart rate obviously jumped. Defendant validly consented to a search of the car. United States v. Salas, 2012 U.S. Dist. LEXIS 165008 (E.D. Okla. November 1, 2012).*

11/25/12

Permalink 07:26:20 pm, by fourth, 616 words, 1083 views   English (US)
Categories: General

PA: This knock and talk led to police created exigency

Officers lacked exigent circumstances for a warrantless entry. They created the exigency by this knock and talk. Defendant’s failure to come to the door timely did not support exigency. Commonwealth v. Waddell, 2012 PA Super 252, 61 A.3d 196 (2012):

=> Read more!

Permalink 04:43:20 pm, by fourth, 219 words, 398 views   English (US)
Categories: General

Houston Chronicle: "Drone makers push Congress to open skies to surveillance"

Houston Chronicle: Drone makers push Congress to open skies to surveillance by Gary Martin:

WASHINGTON - Are unmanned aircraft, known to have difficulty avoiding collisions, safe to use in America's crowded airspace? And would their widespread use for surveillance result in unconstitutional invasions of privacy?

Experts say neither question has been answered satisfactorily. Yet the federal government is rushing to open America's skies to tens of thousands of the drones - pushed to do so by a law championed by manufacturers of the unmanned aircraft.

The 60-member House of Representatives' "drone caucus" - officially, the House Unmanned Systems Caucus - has helped push that agenda. And over the last four years, caucus members have drawn nearly $8 million in drone-related campaign contributions, an investigation by Hearst Newspapers and the Center for Responsive Politics shows.

. . .

Privacy concerns

Some lawmakers remain skeptical. Along with civil rights advocates, they worry over government eavesdropping, surveillance photography and other potential privacy violations.

"The drones are coming," shouted Rep. Ted Poe, R-Humble, earlier this year from the House floor, as he warned of encroachment by government into the rights of citizens.

A North Dakota court upheld the arrest of a Lakota, N.D., farmer by a police SWAT team using information from a Customs and Border Protection Predator drone over the northern U.S.-Canadian border.

Permalink 12:05:43 am, by fourth, 225 words, 803 views   English (US)
Categories: General

CA7: Defendant's admission of child porn on home computer during FBI job interview supported SW

Defendant had an interview for a job with the FBI and he failed the polygraph on child pornography. He admitted that he had child pornography on his home computer as a part of research on international child pornography. Based on his admissions from the interview process, FBI agents procured a search warrant for his computer. His admissions were not custodial and were freely made. United States v. Pelletier, 700 F.3d 1109 (7th Cir. 2012)*:

Federal investigative agents will tell you that some cases are hard to solve. Some cases require years of effort—chasing down false leads and reigning in flighty witnesses. Others require painstaking scientific analysis, or weeks of poring over financial records for a hidden clue. And some cases are never solved at all—the right witness never comes forward, the right lead never pans out, or the right clue never turns up.

This is not one of those cases. The defendant, Dominick Pelletier, admitted during a job interview with the FBI that he had pornographic pictures of children on his home computer. Instead of joining the FBI's vaunted ranks, Pelletier was indicted for one count of possession of child pornography. After the district court denied two of his motions to suppress, Pelletier entered a conditional guilty plea and reserved the right to appeal the denial of the suppression motions. Finding no error, we affirm.

11/24/12

Permalink 07:34:42 am, by fourth, 348 words, 464 views   English (US)
Categories: General

FEE: The Fourth Amendment and Faulty Originalism

Foundation Economic Education: The Fourth Amendment and Faulty Originalism by Joseph R. Stromberg:

“All arrests are at the peril of the party making them.”
—Alexander H. Stephens, August 27, 1863


These days the Fourth Amendment to the Constitution means next to nothing. Consider, for example, the choice offered a few years ago: surveillance under routine, easy “warrants” from the drive-through FISA Court or warrantless surveillance at the whim of George W. Bush and his allegedly boundless reserve of unitary-executive authority. A January 2006 Justice Department memo (“Legal Authorities Supporting the Activities of the National Security Agency ...”) explained the executive’s claims in mind-numbing and unconvincing detail. But the memo at least suggested how far below any practical service to Americans’ liberty the Fourth Amendment has fallen, and did so by heaping up available (and rather bad) search-and-seizure precedents, many of which arose from the terminally futile war on drugs (pages 37–38). The result is something like “your Constitution on drugs”—with the searchers and seizers on steroids.

Turning to the Fourth Amendment itself, we read: ...

This sounds pretty good, doesn’t it? And solid, like it might actually mean something. Alas, no such utopian state of affairs actually obtains. It is possible of course that my elementary school teachers just plain lied to us when they spun golden tales about American freedoms.

Yet surely there is more to it. But if so, what doom befell the Fourth Amendment? We might try looking at various eventful periods when governments—state and federal—felt unusually strong needs to arrest, search, and seize, such as the Civil War, Reconstruction, World War I, Prohibition (see Lacey, in works consulted below), World War II, the Cold War, and (naturally) the war on drugs. It seems, however, that long-running negligence, evasion, and misinterpretation have done more harm to the Fourth Amendment than have various short-run authoritarian panics. Central to this slow but continuous process was the rise of modern policing in the nineteenth century, creating a new institution not foreseen in American constitutions (state or federal) and therefore largely incompatible with them and unaddressed by them (see Roots).

Permalink 12:32:38 am, by fourth, 132 words, 486 views   English (US)
Categories: General

Cal.2: Objection to hearsay at suppression hearing has to be made to preserve for appeal

Defendant failed to preserve in the trial court the argument that hearsay was improperly admitted and credited by the trial court, so it is forfeited for appeal. People v. Hawkins, 211 Cal. App. 4th 194, 149 Cal. Rptr. 3d 469 (2d Dist. 2012).

Officers received reports that gunshots came from defendant’s vehicle. When they stopped it, a bag of marijuana was in plain view. There was probable cause for the search. United States v. Brown, 498 Fed. Appx. 940 (11th Cir. 2012).*

Officers drove by defendant’s double parked car and smelled marijuana. They got out and asked him why they could smell it, and he said it was because he “just smoked.” That was probable cause, and a gun found in the car was admissible. United States v. Evans, 2012 U.S. Dist. LEXIS 165895 (S.D. N.Y. November 19, 2012).*

Permalink 12:25:52 am, by fourth, 394 words, 1551 views   English (US)
Categories: General

D.N.M.I.: No standing in a school computer appropriated to view child porn

An FBI agent stationed in Saipan installed spyware on a computer given his child by his school so he could monitor the computer. When he learned he was being stationed to the mainland and the computer was going back to the school, he had the computer wiped clean by a service tech, but the spyware survived. A while after the computer was returned to the school, he again received emails about the use of the computer visiting child pornography websites, and he turned this information over to the FBI in Saipan. The court discusses at length whether a search occurred and whether it was a government search, but it ultimately decides the defendant had no reasonable expectation of privacy in a school computer that was for the use of students. [Really interesting analysis.] United States v. Weindl, 2012 U.S. Dist. LEXIS 166733 (D. N.M.I. November 20, 2012) (not yet on court's website):

Even if Weindl had a subjective (albeit unrealistic) expectation of privacy in the PSS laptop, it was not an expectation that society is prepared to endorse. An expectation of privacy does not become objectively reasonable just because a person hides someone else's property away in his office desk and does not let anyone else use it. A person cannot have a reasonable expectation of privacy in a computer he stole or obtained by fraud. See United States v. Wong, 334 F.3d 831, 839 (9th Cir. 2003) (stolen laptop); United States v. Caymen, 404 F.3d 1196, 1201 (9th Cir. 2005) (fraudulently obtained laptop). In Caymen, police got a warrant to seize from the defendant a laptop suspected to have been obtained through credit card fraud. Caymen, 404 F.3d at 1197. After the seizure, they discovered that the defendant had a prior conviction for possession of child pornography. Id. at 1198. They then conducted a warrantless search of the laptop's hard drive, ostensibly looking for evidence of credit card fraud, and instead found sexually explicit images of children. Id. The defendant moved to suppress the images, and the motion was denied on grounds that the defendant lacked Fourth Amendment standing. Id. On appeal, the Ninth Circuit affirmed. It found that "one who takes property by theft or fraud cannot reasonably expect to retain possession and exclude others from it once he is caught. Whatever expectation of privacy he might assert is not a legitimate expectation that society is prepared to honor." Id. at 1201.

Permalink 12:11:24 am, by fourth, 338 words, 941 views   English (US)
Categories: General

IL: Witness with knowledge of PC must testify to basis for arrest at suppression hearing

Defendant was stopped for alleged violation of a protective order. He objected that there was no showing of probable cause by the state for the underlying order, and he’s right. The state’s failure to prove probable cause for the protective order was fatal to the arrest. No witness with knowledge of it testified at the suppression hearing. People v. Hyland, 2012 IL App (1st) 110966, 981 N.E.2d 414 (2012):

=> Read more!

Permalink 12:03:59 am, by fourth, 140 words, 403 views   English (US)
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WV: Sound of running inside from a knock and announce supported immediate entry

Officers knocked and announced and heard running inside. They knew that he was armed, and they testified they feared for their safety because they didn’t know whether he was coming to the door to shoot anybody coming in or was securing a safe location to ambush somebody coming in. State v. Farley, 230 W. Va. 193, 737 S.E.2d 90 (2012).

Defendant’s giving his computer to the police to seize it was implied consent to search it. State v. Jonathan B., 230 W. Va. 229, 737 S.E.2d 257 (2012).*

Defendant failed to show plain error in the trial court’s finding that the probable cause was based on a false statement. [Also, arresting the defense suppression hearing witness for aggravated perjury did not deprive him of a defense or due process and thus was not prosecutorial misconduct.] State v. Clark, 2012 Tenn. Crim. App. LEXIS 942 (November 19, 2012).

11/23/12

Permalink 08:29:29 am, by fourth, 240 words, 389 views   English (US)
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TX1: 15-minute delay for DWI Task Force officer to arrive to do FSTs was reasonable

Defendant was stopped for drifting from lane to lane without signaling. The officer suspected DWI, and defendant did not challenge the initial stop. He did challenge the delay in waiting for a DWI Task Force officer to arrive to do the FSTs. The court found the delay reasonable under the circumstances. Bullock v. State, 2012 Tex. App. LEXIS 9625 (Tex. App. – Houston (1st Dist.) November 21, 2012) (not yet on court's website):

When a traffic stop detention is prolonged by a reasonable delay to comply with legitimate police policy, no Fourth Amendment violation has occurred. See Belcher, 244 S.W.3d at 539; Hartman, 144 S.W.3d at 573. 4 But the duration of the delay must be reasonable in light of the law enforcement purposes served. Texas courts of appeals that have reviewed delays for the same law enforcement purposes at issue here—increased experience and expediency in conducting DWI investigations and the need to have officers available to respond to emergency calls—have found delays of twenty minutes or more were reasonable with respect to the public policies served. See Belcher, 244 S.W.3d at 541-42 (holding twenty-seven minute delay while waiting for DWI officer did not violate Fourth Amendment). The delay here was approximately fifteen minutes—shorter than the delays in these cases. Like the delay in Belcher, the delay here was reasonable in light of the public policies served by the role of the DWI task force. See Belcher, 244 S.W.3d at 541-42.

Permalink 08:18:38 am, by fourth, 145 words, 351 views   English (US)
Categories: General

DE: 1" wad of cash and talk of selling something was RS under T.L.O.

The juvenile had an 1" thick wad of cash on him visible to a teacher, and he was talking to other students about selling something. While having a large amount of cash doesn’t violate school policy, it does create potential problems. That was reasonable suspicion for a search. Marijuana was found. The search was valid under T.L.O. State v. M.W., 2012 Del. Fam. Ct. LEXIS 70 (October 9, 2012).*

The search of defendant’s place was with valid third party consent. Motion to reconsider denied. United States v. Utley, 2012 U.S. Dist. LEXIS 166248 (E.D. Mich. November 21, 2012).*

Defendant was indicted in a RICO murder case, and the FBI went to arrest. They had a forfeiture warrant for her car, and they seized and searched it using inventory as a justification. The inventory was valid. United States v. Savage, 2012 U.S. Dist. LEXIS 166010 (E.D. Pa. November 20, 2012).*

Permalink 12:23:05 am, by fourth, 214 words, 404 views   English (US)
Categories: General

CA2: Knock and talk based on Colombian wiretaps and defendant's evasion justified warrantless entry

A Colombian wiretap gave highly specific information that a kilo of heroin was coming to a hotel room in Queens. Every detail gleaned from the wiretap proved to be accurate, and it played out as foretold. When the officers went to the motel room door, the evasive actions of defendant added to the probable cause. The warrantless entry was justified because the defendant was clearly aware the police were there for the heroin and it would be moved or destroyed if not seized right then. United States v. Moreno, 701 F.3d 64 (2d Cir. 2012).*

Defendant had a choice to consent between a blood draw by needle or a breath test. Since he said he was afraid of a needle, it is clear that he consented to a breath test. Fienen v. State, 2012 Tex. Crim. App. LEXIS 1597 (November 21, 2012).*

Defendant did not show that the searches were unlawful where defense counsel did not challenge them. As to an inventory, the record does not show that there was an inventory except for paperwork filled out saying it was from an inventory, and that at least shows an attempt at complying with standardized procedures. Defendant, at least, did not show the search to be invalid if his 2255 filing. Rosado v. United States, 2012 U.S. Dist. LEXIS 165609 (D. Mass. November 20, 2012).*

Permalink 12:12:44 am, by fourth, 401 words, 763 views   English (US)
Categories: General

TX: Officers' refusal to leave a disturbance call when it was obvious the homeowner was alone was unreasonable

Officers responded to a 12:30 am call of a disturbance at defendant’s apartment reported by neighbors hearing crashing sounds. When they arrived, they could see that she had trashed the place because she was upset that her boyfriend was cheating on her. She said she was alone, and officers had no reason to disbelieve her. She told them to leave four times. They waiting until “wants or warrants” came back clean in case there was a no contact order, which was found not to make sense. Their refusal to leave was unreasonable. Miller v. State, 393 S.W.3d 255 (Tex. Crim. App. 2012), dissents here and here:

The trial court's fact findings and conclusions of law state that the officers' presence in the apartment at the time they found the illegal substance was permissible as part of their investigation for domestic violence. But the record does not support this. Although it is undisputed that the officers' initial entry into the apartment was part of their investigation for domestic violence, it is also undisputed that they found no evidence of domestic abuse, appellant told them to leave four times, and the only reason that they did not leave was because they were waiting for a return on the warrant check on appellant. The officers' explanation for refusing to leave before they received the warrant check was, essentially, "But we always do it that way." This is insufficient justification for their continued presence, as is the state's argument that remaining in appellant's apartment was appropriate because the entire encounter was very short—under six minutes.

The state's brief suggests that the warrant check was part of the officers' domestic-violence investigation; they wanted to determine whether there was a protective order in place. No evidence, however, explains why a warrant check on the appellant would provide information about a protective order and, in their testimony, the officers never mentioned checking, or wanting to check, for a protective order.

The state's entire argument on appellant's second and third grounds is based on "the statutory obligations of law enforcement officers to investigate domestic violence and protect victims." Certainly, law-enforcement officers should investigate allegations of domestic violence and protect victims, but if such an investigation reveals that domestic violence was not involved and that there are no victims to protect, officers no longer have a sufficient legal basis for remaining in a residence over the objections of the resident.

Permalink 12:03:19 am, by fourth, 336 words, 448 views   English (US)
Categories: General

NC: Police look into backyard during attempted knock and talk violated curtilage

Officers were doing a knock and talk and got no answer. One of them decided to look into the backyard by going to the driveway to get a better view seeing potted plants he suspected were marijuana. They got a search warrant and came back. The appellate court rejects that this is a plain view. The state has been clear before that the backyard is curtilage. State v. Grice, 2012 N.C. App. LEXIS 1316 (November 20, 2012):

In this case, we decline to adopt the State's argument that the initiation of a valid "knock and talk" inquiry gave Detectives Guseman and Allen a lawful right of access to walk across Defendant's backyard in order to seize the plants. If we were to adopt such an approach, it would be difficult to articulate a limiting principle such that "knock and talk" investigations would not become a pretense to seize any property within the home's curtilage, so long as that property otherwise satisfied the remaining prerequisites for seizure under the plain view doctrine. As this Court has observed, "[t]he implication that police officers have the right to seize any item which comes into their plain view at a place they have a right to be is fraught with danger and would sanction the very intrusions into the lives of private citizens against which the Fourth Amendment was intended to protect." State v. Bembery, 33 N.C. App. 31, 33, 234 S.E.2d 33, 35, disc. review denied, 293 N.C. 160, 236 S.E.2d 704 (1977). Accordingly, we hold the trial court erred in its conclusion that no Fourth Amendment violation resulted from the seizure in light of the fact "Detective Allen visually observed what he believed to be marijuana plants in plain view."

In the alternative, the State argues that since the trial court found the detectives' seizure of the plants "was to prevent their destruction," that the seizure was valid under the "exigent circumstances" exception to the warrant requirement. We disagree, because no evidence was presented at trial to support the trial court's finding to that effect.

11/22/12

Permalink 11:34:23 am, by fourth, 158 words, 393 views   English (US)
Categories: General

OH7: Use of a ruse to get defendant out of a hotel room for a warrantless arrest is not unconstitutional

Defendant was in a hotel room, and the police used a ruse to draw him out for a warrantless arrest. That was not unconstitutional. Defendant’s consent was voluntary because he was experienced with the criminal justice system, and he knew that cooperation could get him leniency. State v. Fornore, 2012 Ohio 5339, 2012 Ohio App. LEXIS 4653 (7th Dist. November 19, 2012).

Defendant defaulted his search issues by not raising them in his direct appeal. On the merits anyway he would lose because of probable cause and plain view when he dropped the gun. Rosado v. United States, 2012 U.S. Dist. LEXIS 165609 (D. Mass. November 20, 2012).*

Defendant was subjected to a patdown and the officer felt something in a pocket of his cargo pants. The officer knew it was not a weapon, but he didn’t know what it was. He asked [told] defendant to pull out the bag and then open it. This exceeded Terry. Williams v. State, 318 Ga. App. 715, 734 S.E.2d 535 (2012).

Permalink 11:27:04 am, by fourth, 189 words, 1204 views   English (US)
Categories: General

D.Nev.: Car was inventoried before police elected to let owner come and get it; not shown to be pretextual search

Defendant whose girlfriend’s father bought car for her had standing to challenge the search of it when he was driving it. Under the LVMPD policy, there was a question for the police whether defendant was driving with permission of the owner, and that made the inventory reasonable. The car was stopped in a parking lot of a 24 hour bar. Here, though, the police had already inventoried the car, and then made the decision to call off the tow and impound because the owner was found, and he said he’d come and get the car. The impoundment was not pretextual and was reasonable under LVMPD policy. United States v. Poblete, 2012 U.S. Dist. LEXIS 165527 (D. Nev. October 31, 2012).*

A CI called probation to report that defendant was in possession of drugs. Police corroborated that, and a police officer and probation officer went to defendant’s house to conduct a search. When they arrived, defendant fled into the house, and that was reasonable suspicion for the officers’ entry into the house. A protective sweep was then possible [but hardly necessary at that point]. Evans v. State, 2012 Ga. App. LEXIS 979 (November 20, 2012).*

Permalink 07:54:34 am, by fourth, 32 words, 652 views   English (US)
Categories: General

Harv.L.Rev. on Fourth Amendment cases

11/21/12

Permalink 07:07:23 am, by fourth, 240 words, 434 views   English (US)
Categories: General

M.D.Ala.: Way cash was packaged supported reasonable cause it was possessed for acquiring drugs

Claimant admitted smoking marijuana two hours before his traffic stop as an explanation for the smell of marijuana in the car. He admitting having cash, but when it was found there was more than he admitted and it was packaged strangely. That was reasonable suspicion of use of the money for drug acquisition for seizure for forfeiture. United States v. Nineteen Thousand Eight Hundred Fifty Five ($19,855.00) Dollars in United States Currency, 2012 U.S. Dist. LEXIS 164737 (M.D. Ala. November 19, 2012)*:

Though there is nothing criminal about carrying large sums of money, even in unconventional ways, the characteristics of the res and its packaging offer the best support for the reasonable belief that a substantial connection existed between the res and illegal activity. First, Claimant carried approximately twice the amount of cash he first told officers he was carrying; his bag contained almost $20,000 rather than the $8,000 to $10,000 he first indicated. Second, the money was divided into stacks, secured with rubber bands, and stashed inside a microwave popcorn box carried in his backpack. "A common sense reality of everyday life is that legitimate businesses do not transport large quantities of cash rubber-banded into bundles and stuffed into packages in a backpack." United States v. $242,484, 389 F.3d 1149, 1161 (11th Cir. 2004). The facts sufficiently and plausibly support a reasonable belief that the res was furnished or intended to be furnished in exchange for illegal drugs, or that it was otherwise traceable to the illegal drug trade.

Permalink 06:52:55 am, by fourth, 123 words, 443 views   English (US)
Categories: General

OH2: Not being on the rental car paperwork and not knowing renter was RS

The officer had reasonable suspicion to continue the stop where defendant and his passenger were in a brand new rental car, neither was on the paperwork, and they didn’t know the name of the renter. State v. Jalloh, 2012 Ohio 5314, 2012 Ohio App. LEXIS 4636 (2d Dist. November 16, 2012).

Because digital camera can record videos, a digital camera is seizable under a search warrant for “video recording devices.” United States v. Carson, 2012 U.S. Dist. LEXIS 165041 (C.D. Ill. November 19, 2012),* R&R 2012 U.S. Dist. LEXIS 168149 (C.D. Ill. October 25, 2012).

Defendant’s consent to DUI test was valid where he signed two consent forms that said it was voluntary, and he was not in custody when he signed. State v. Doyle, 139 Conn. App. 367, 55 A.3d 805 (2012).*

Permalink 06:20:29 am, by fourth, 556 words, 398 views   English (US)
Categories: General

NY: Defense needs to seek the inventory policy rather than just complain testimony was vague

The officer did not produce the inventory policy and testified vaguely to it. Since the defense did not ask for it, the court can’t say the inventory was unconstitutional. The inventory itself will not be micro-managed by the courts. “The inventory here, while not a model, was sufficient to meet the constitutional minimum.” Also, policy was to impound a vehicle if the driver had no valid DL and the owner was not present. Since neither the driver nor passenger mentioned a word about the owner, the officer wasn’t constitutionally obligated to inquire. People v. Walker, 2012 NY Slip Op 7851, 20 N.Y.3d 122, 957 N.Y.S.2d 272, 980 N.E.2d 937 (2012):

Neither defendant nor his girlfriend asked the trooper if the girlfriend could drive the car, or told him that she had a driver's license and the owner's permission to drive it. The trooper was not required, as a matter of constitutional law, to raise the question, or to initiate a phone call to the owner. To impose such a requirement on police in such situations would not only create an administrative burden, but would involve them in making (and the courts in reviewing) difficult decisions in borderline cases. If a person present claims to have the owner's permission to drive, must the police take her word for it? If the owner is called and does not answer immediately, must police wait for a call back? It is reasonable for the police to institute clear and easy-to-follow procedures that avoid such questions.

. . .

Defendant's argument focuses on several alleged deficiencies in the proof relating to the inventory search: the written policy that governed the search was never produced; the state trooper's description of the policy was very vague; and the descriptions of the returned property on the inventory form — "misc. items" and "paperwork" — would be of limited usefulness in the event the car's owner claimed that some of her property was missing. These criticisms are not without force. Certainly, it would be better for a prosecutor seeking to prove the existence of a written policy to put a copy of the policy into evidence. On the other hand, defense counsel could have demanded that the policy be produced to help her cross-examine the trooper. She did not do so.

When a car has been lawfully impounded, the reasonable expectation of the person who was driving it that its contents will remain private is significantly diminished. In such a case, the driver presumably expects the police to find whatever is in the car. Galak, Johnson and Gomez establish that this does not give the police carte blanche to conduct any search they want and call it an "inventory search." The police must follow a reasonable procedure, and must prepare a "meaningful inventory list" (Johnson, 1 NY3d at 256). But it would serve little purpose for courts to micro-manage the procedures used to search properly impounded cars. The United States Supreme Court implicitly recognized as much in Bertine, by upholding as constitutionally valid a search producing what a trial court had found to be a "somewhat slipshod" inventory (479 U.S. at 369; see id. at 383 [Brennan, J., dissenting] [describing the inventory's deficiencies]). The inventory here, while not a model, was sufficient to meet the constitutional minimum.

Compare State v. Williams, 382 S.W.3d 232 (Mo. App. 2012), posted 11/1 with a different view of inventory.

11/20/12

Permalink 12:50:18 pm, by fourth, 368 words, 1421 views   English (US)
Categories: General

CNET: "Senate bill rewrite lets feds read your e-mail without warrants"

CNET: Senate bill rewrite lets feds read your e-mail without warrants by Declan McCullagh:

Proposed law scheduled for a vote next week originally increased Americans' e-mail privacy. Then law enforcement complained. Now it increases government access to e-mail and other digital files.

A Senate proposal touted as protecting Americans' e-mail privacy has been quietly rewritten, giving government agencies more surveillance power than they possess under current law.

CNET has learned that Patrick Leahy, the influential Democratic chairman of the Senate Judiciary committee, has dramatically reshaped his legislation in response to law enforcement concerns. A vote on his bill, which now authorizes warrantless access to Americans' e-mail, is scheduled for next week.

Leahy's rewritten bill would allow more than 22 agencies -- including the Securities and Exchange Commission and the Federal Communications Commission -- to access Americans' e-mail, Google Docs files, Facebook wall posts, and Twitter direct messages without a search warrant. It also would give the FBI and Homeland Security more authority, in some circumstances, to gain full access to Internet accounts without notifying either the owner or a judge.

It's an abrupt departure from Leahy's earlier approach, which required police to obtain a search warrant backed by probable cause before they could read the contents of e-mail or other communications. The Vermont Democrat boasted last year that his bill "provides enhanced privacy protections for American consumers by... requiring that the government obtain a search warrant."

Revised bill highlights

✭ Grants warrantless access to Americans' electronic correspondence to over 22 federal agencies. Only a subpoena is required, not a search warrant signed by a judge based on probable cause.

✭ Permits state and local law enforcement to warrantlessly access Americans' correspondence stored on systems not offered "to the public," including university networks.

✭ Authorizes any law enforcement agency to access accounts without a warrant -- or subsequent court review -- if they claim "emergency" situations exist.

✭ Says providers "shall notify" law enforcement in advance of any plans to tell their customers that they've been the target of a warrant, order, or subpoena.

✭ Delays notification of customers whose accounts have been accessed from 3 days to "10 business days." This notification can be postponed by up to 360 days.

UPDATE: Leahy scuttles his warrantless e-mail surveillance bill.

Permalink 12:35:15 pm, by fourth, 522 words, 1478 views   English (US)
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NYT: CO bank robbery roadblock "Case Pits Technology-Based Police Search Against Citizens’ Rights"

NYT: Case Pits Technology-Based Police Search Against Citizens’ Rights by Dan Frosch:

Document: Motion to Suppress Evidence and Responses

AURORA, Colo. — On the afternoon of June 2, the authorities say, a former music teacher named Christian Paetsch walked into a Wells Fargo bank waving a gun and ordered everyone to lie down.

About 15 minutes later, a phalanx of police cars descended upon an intersection a few miles away, blockading dozens of shocked motorists — including Mr. Paetsch, whom the authorities had tracked with a GPS device buried in the $26,000 he was accused of stealing.

But with only the faintest physical description and unsure which vehicle the device was in, the police trained their weapons on all 20 cars at the intersection and ordered people to show their hands. For nearly two hours, the police ordered every driver and passenger to step out of their cars, even handcuffing some of them, before discovering the missing money and two loaded firearms in Mr. Paetsch’s S.U.V.

The case, now winding its way through the federal court system, is being watched by Fourth Amendment lawyers and law enforcement experts. While advanced technology now gives the police the power to shadow a suspect moments after a crime is committed, there are still legal questions over how wide a net the authorities can cast while in pursuit.

I predict the defendant will lose the motion to suppress. Was the police conduct unreasonable? Arguably, but what's his standing to challenge the seizure of others? And consider this dicta by Justice Jackson dissenting in Brinegar v. United States, 338 U.S. 160, 182-83 (1949), which inevitably will come back to life:

And we must remember that the authority which we concede to conduct searches and seizures without warrant may be exercised by the most unfit and ruthless officers as well as by the fit and responsible, and resorted to in case of petty misdemeanors as well as in the case of the gravest felonies.

With this prologue I come to the case of Brinegar. His automobile was one of his "effects" and hence within the express protection of the Fourth Amendment. Undoubtedly the automobile presents peculiar problems for enforcement agencies, is frequently a facility for the perpetration of crime and an aid in the escape of criminals. But if we are to make judicial exceptions to the Fourth Amendment for these reasons, it seems to me they should depend somewhat upon the gravity of the offense. If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger.

Permalink 08:18:59 am, by fourth, 435 words, 479 views   English (US)
Categories: General

TN: Administrative warrant required for production of records at grocery store which is not "pervasively regulated"

The Tennessee Department of Labor came to Publix Super Markets in Chattanooga for a random surprise inspection and demanded access to personnel files of minors. Access was required under state law. The employer store refused demanding an administrative warrant. The grocery store was not a pervasively regulated business, and the state could not demand production without consent or an administrative warrant. Assessment of penalty reversed. Publix Super Mkts. v. Tenn. Dep't of Labor & Workforce Dev., 2012 Tenn. App. LEXIS 799 (November 16, 2012):

... On appeal, the employer contends it maintained the records on site as required, thus it did not violate Subsection (1) of the statute. The employer also asserts that it has a Fourth Amendment right to object to a warrantless search by the Department and it may not be penalized for asserting its constitutional right. We have determined the Department's decision to assess penalties for violating Subsection (1) of Tennessee Code Annotated § 50-5-111 is not supported by substantial and material evidence and the inference drawn by the Department that the records were not maintained on site based upon a mere inference drawn from the fact they were not produced within one hour of demand is insufficient. Therefore, the assessments for allegedly failing to maintain personnel records of minor employees on site is reversed. As for the requirement under Subsection (4) of Tennessee Code Annotated § 50-5-111 that employers of minor employees furnish and allow inspection of the separate and independent file records for each minor employed upon request by the Department, the Act expressly provides that if the Department is denied permission to make an inspection, Tennessee Code Annotated § 50-4-101 provides that the Department employee or official may obtain an administrative inspection warrant in accordance with the procedures outlined in the statute; the Department did not seek to obtain a warrant in this case. As for refusing the Department's request to inspect the records without an administrative warrant, in order for a warrantless search or inspection to be constitutionally permissible under the Fourth Amendment, the Department must establish that the employer was part of a pervasively regulated industry or that the employer had weakened or reduced privacy expectations that are significantly overshadowed by the Department's interests in regulating the employer's industry. We have determined the Department failed to establish either; accordingly, the Department cannot assess a penalty against an employer for asserting its constitutional rights under the Fourth Amendment. Thus, the penalty assessed for allegedly violating Subsection (4) of the statute is reversed. Pursuant to the foregoing, we remand with instructions for the trial court to order the Department to vacate the citations and penalties against the employer.

Permalink 08:09:48 am, by fourth, 120 words, 432 views   English (US)
Categories: General

N.D.Ind.: Snitch giving “appreciation piece” from the crack to give to a drug runner is not a Fourth Amendment issue

That the snitch broke off an “appreciation piece” from the crack to give to a drug runner when the drugs changed hands is not a Fourth Amendment issue. It isn’t even government action. United States v. Lewis, 2012 U.S. Dist. LEXIS 164723 (N.D. Ind. November 19, 2012).*

Defendant fled from where he was sitting when he saw a police officer, and he ran leaving things behind including a cell phone and marijuana. This was an abandonment. People v. Crooke, 2012 V.I. LEXIS 60 (Super.Ct. November 14, 2012).*

Defendant was stopped for crossing the fog line, and he blamed it on the police officer following him, which the court doesn’t believe. United States v. Salas, 2012 U.S. Dist. LEXIS 165008 (E.D. Cal. November 1, 2012).*

Permalink 08:01:27 am, by fourth, 161 words, 376 views   English (US)
Categories: General

D.S.D.: Year old information in sexual assault case was not stale where it was forensically possible to still find evidence

Defendant argued that a search warrant for defendant’s car for forensic evidence in a sexual assault case was stale and “speculation.” The officer testified at the suppression hearing that a forensic expert told him that evidence could still be found, so he got the search warrant, and that was enough to show it was not stale. United States v. Brown Thunder, 2012 U.S. Dist. LEXIS 164934 (D. S.D. November 19, 2012):

Agent Lakey's factual allegations that A.C. placed H.C. in Brown Thunder's car shortly before A.C. saw Brown Thunder drive away, that H.C. then suffered a serious injury by a penetration of her vaginal wall, and that Lakey checked with FBI forensic specialists who told her that forensic evidence could be discoverable a year after a sexual assault created a "fair probability that evidence of a crime will be found" in Brown Thunder's vehicle at the time the warrant issued. Accordingly, this Court adopts the Report and Recommendation.

11/19/12

Permalink 04:52:44 pm, by fourth, 136 words, 447 views   English (US)
Categories: General

Citizen Media Law Center: "Another Go-Round with Recording the Police in Massachusetts"

Citizen Media Law Center: Another Go-Round with Recording the Police in Massachusetts by Jeffrey P. Hermes:

Last Thursday, according to the Shrewsbury Daily Voice, Irving Espinosa-Rodrigue was arraigned in Westborough District Court for making a recording of a police officer in violation of Massachusetts' wiretap law, M.G.L. c. 272, § 99. The audio/video recording was allegedly made secretly during a traffic stop by a female passenger in Espinosa-Rodrigue's car at his direction, and later uploaded to YouTube.

But wait a minute -- didn't we already deal with this issue in Massachusetts? Didn't the U.S. Court of Appeals for the First Circuit, the federal appeals court with jurisdiction over Massachusetts, pretty clearly state in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), that there's a First Amendment right to record the activities of the police in public?

Permalink 07:05:14 am, by fourth, 156 words, 607 views   English (US)
Categories: General

Welfare drug testing in Texas, too?

McClatchy: Commentary: Welfare drug testing and the Fourth Amendment by Linda P. Campbell | The Fort Worth Star-Telegram:

Texas Gov. Rick Perry and Lt. Gov. David Dewhurst probably wouldn't admit it, but they want to engage in social engineering. They want people not to waste money on drugs, liquor, smokes or lottery tickets. Not everybody, mind you, but poor people.

That's because poor people can get taxpayer dollars to help feed their kids or tide their families over when they lose a job -- and we can't have them spending that money on things the rest of us disapprove of. ...

But the method of choice put forward by Perry, Dewhurst, Sen. Jane Nelson of Flower Mound and other Republicans is to drug-test people applying for public benefits such as Temporary Assistance for Needy Families and unemployment assistance. As though drug use is the main reason people with kids are poor or have been thrown out of work.

Permalink 12:23:38 am, by fourth, 367 words, 947 views   English (US)
Categories: General

IN: Search of a pen cap after removing it from pocket during stop and frisk was unreasonable; it was obvious it wasn't a weapon

Defendant was subjected to a stop and frisk. A pen cap was removed from his person, and it was obvious that it was not a weapon. The officer’s further search of the pen cap was unreasonable. Officer working off-duty security at an apartment complex was acting as a police officer and the Fourth Amendment governed the search. Clanton v. State, 2012 Ind. App. LEXIS 565 (November 15, 2012):

In our view, the dispositive fact is not whether a container is open or closed, but whether the illicit nature of an item was immediately apparent to the officer or apparent only through further manipulation. See Dickerson, 508 U.S. at 379 (analogizing the plain-feel doctrine to the plain-view doctrine as limited by Arizona v. Hicks, 480 U.S. 321 (1987), which held that the moving of stereo equipment to check serial numbers was an impermissible search under the Fourth Amendment absent probable cause to suspect the equipment was stolen when "the incriminating character of the stereo equipment was not immediately apparent").

Here, once Officer Price discovered that the sharp item in Clanton's pocket was a pen cap, he had dispelled his suspicion that the item was a weapon. Indeed, Officer Price testified that he kept the pen cap, searched it, and seized its contents because, "upon further investigation and looking at it," he saw a baggie hanging from the pen cap, and based on previous experiences of finding narcotics in baggies in pen caps, he suspected that this baggie contained narcotics. Tr. p. 11, 18, 47-48, 51. Officer Price also admitted numerous times that he could not tell what was inside the baggie when he first observed it hanging out of the pen cap. Id. at 18, 48. In fact, Officer Price realized that the baggie contained cocaine only upon closer examination. Id. at 11. Thus, like in Harris and Jackson where the illicit nature of the pill bottles was not immediately apparent to the investigating officers, here the contraband nature of the contents of the pen cap was not immediately apparent to Officer Price. As a result, the discovery of the cocaine violated Clanton's right to be free from unreasonable searches under the Fourth Amendment, and the trial court erred in admitting the cocaine into evidence. Thus, Clanton's conviction cannot stand.

Permalink 12:13:19 am, by fourth, 175 words, 387 views   English (US)
Categories: General

NY4: Placing defendant unhandcuffed in a police car who left a house as SW arrived was not an arrest

“We conclude that defendant's detention at the scene of the traffic stop was lawful and did not constitute a de facto arrest. Defendant was placed in the back seat of a patrol vehicle without handcuffs after the police observed him leaving a residence subject to a search warrant, and they observed his furtive movements and those of the driver.” People v. Binion, 2012 NY Slip Op 7801, 100 A.D.3d 1514, 954 N.Y.S.2d 369 (4th Dept. 2012).

Defendant was handcuffed when he was stopped for five minutes until he attempted to flee. That was not an arrest and the time was not unreasonable. United States v. Lesane, 498 Fed. Appx. 363 (4th Cir. 2012).

Defendant drove down a street with police cars not lit up because they just arrived to an unknown problem. His car wouldn’t fit through the cars already there and the officer yelled at him to stop. The officer tapped on the window, and defendant rolled it down, and the officer could smell alcohol. That justified the stop. Ward v. State, 2012 Ark. App. 649, 2012 Ark. App. LEXIS 768 (November 14, 2012).*

Permalink 12:02:52 am, by fourth, 326 words, 386 views   English (US)
Categories: General

LA: Pushing door open after no answer at door was likely unreasonable

Trial court erred in not applying the totality of circumstances standard to the conduct of the police during the search. Officers knocked at the door and got no answer, so they pushed the door open and saw a lit candle, so they entered to blow it out, seeing contraband. Remanded per curiam. State v. Washington, 2012 La. LEXIS 3083 (November 16, 2012)*:

The Louisiana and Federal constitutions prohibit unreasonable searches and seizures. State v. Lee, 05-2098, p. 14 (La. 1/16/08), 976 So.2d 109, 122; see U.S. Const. amend. IV and La. Const. art. I, § 5. Therefore, the pivotal question in this case is whether the police officers acted reasonably in the following series of events: 1) entering the front yard of a residence with an open front door and standing at the door; 2) announcing their presence and asking if anyone was inside; 3) hearing no response to their announcement, further pushing the door open; 4) viewing lit candles inside; 5) then entering the residence to extinguish the candles to prevent a fire; and 6) seizing contraband the officers viewed while extinguishing the candles. Given only these facts, we might well have found the third action by police of further pushing the door open unreasonable. See Lee, 05-2098 at 14-15, 976 So.2d at 122 ("Warrants ... are generally required to search an individual's home or person, 'unless "the exigencies of the situation" make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.'"). However, as found by the district court, these were not the only facts and circumstances prompting the officers to push the door open further. The district court erred in not considering the totality of the circumstances when ruling on the defendant's motion to suppress drug evidence seized from the residence at the end of the above-described series of events. See State v. Bush, 12-0720, p. 1 (La. 6/1/12), 90 So.3d 395, 396 (describing the standard on motion to suppress for admissibility of evidence seized without a warrant as a "totality of the circumstances" test).

11/18/12

Permalink 11:11:13 am, by fourth, 118 words, 621 views   English (US)
Categories: General

Reason Science Correspondent Ronald Bailey Talks DNA Testing Without Warrants

Reason Science Correspondent Ronald Bailey Talks DNA Testing Without Warrants on HuffPost Live

Reason Science Correspondent Ronald Bailey appeared on HuffPost Live to talk about the Supreme Court's recent decision to hear a case dealing with the Fourth Amendment implications of taking a DNA sample from an arrestee prior to conviction. Is it just like fingerprints or a violation of civil liberty guarantees of privacy?

Here's the link to the segment, where Bailey favored privacy over prosecution in a debate with other participants including Brian Neman, CEO of the biotech company Sanguine BioSciences, Karen Morrison, former prosecutor and law professor at Georgia State University, and Evan Michael Hess, professor of law at the Southern California Institute of Law.

Permalink 09:19:19 am, by fourth, 134 words, 406 views   English (US)
Categories: General

CA10: Several factors + flight = RS

There were several factors of reasonable suspicion, individually none might be enough but collectively they were. “In this case, several factors—the most important of which was Mr. Guardado's own evasive behavior—converged to create an objectively reasonable suspicion that criminal activity was afoot. Therefore, we hold that the seizure did not violate the Fourth Amendment.” United States v. Guardado, 699 F.3d 1220 (10th Cir. 2012).*

The state’s comment that defendant hesitated before signing the consent to search the car was not important because defendant consented. It was merely mentioned in recounting the facts of finding evidence. Braddy v. State, 111 So. 3d 810 (Fla. 2012).*

The evidence clearly supports the conclusion that the search of the house occurred with probable cause after marijuana was seen after a consent entry. Jones v. State, 318 Ga. App. 614, 734 S.E.2d 450 (2012).*

Permalink 09:03:58 am, by fourth, 108 words, 375 views   English (US)
Categories: General

CA1: Yahoo!'s search of photos in storage with it was a private search

Yahoo! searched defendant’s photo files in its storage, and this was a private search. They received a tip it contained child pornography. United States v. Cameron, 699 F.3d 621 (1st Cir. 2012).*

At the post-trial conference, based on trial testimony, the district court changed its finding from consent to probable cause for the search. This was supported by the record. United States v. Pascual, 502 Fed. Appx. 75 (3d Cir. 2012).*

An officer grabbed defendant’s arm and asked where he was going, and defendant ran. He was not seized by the grabbing for his arm. He was not seized until he was subdued. Henson v. United States, 55 A.3d 859 (D.C. 2012).*

Permalink 08:35:07 am, by fourth, 168 words, 381 views   English (US)
Categories: General

CA3 adopts no REP for "wrongful presence" in stolen car

Defendant was driving a stolen car, and the officer who stopped him was alerted by a license plate reader. He’d robbed a post office and convenience stores of blank money orders. “Although we have not reached the question before, it is hardly surprising that several other courts have held that the possessor of a stolen vehicle lacks standing to challenge a search of the vehicle.” United States v. White, 504 Fed. Appx. 168 (3d Cir. 2012).

Based on wiretaps, officers learned of an impending break-in to steal money from a drug dealer. They came to the scene, and two were running from the house. They had probable cause for the stop and arrest, and the search of the car was valid either as search incident, automobile exception, or the inevitable inventory. United States v. Martinez, 2012 U.S. Dist. LEXIS 163990 (D. Mass. November 16, 2012).*

Probable cause developed and that justified the search of defendant’s automobile under the automobile exception. United States v. Boyd, 2012 U.S. Dist. LEXIS 163187 (W.D. Pa. November 15, 2012).*

Permalink 07:38:59 am, by fourth, 344 words, 558 views   English (US)
Categories: General

The blogosphere finally notices the assault on email privacy via the Patraeus affair and email searches

The Stored Communications Act is a legal dinosaur. Technology has left our privacy rights in the "dust," as it were. The blogsphere is finally outraged about the ease of government access to email. Maybe this will get Congress off its lazy ass to do something.

Just a few I've seen:

WSJ: Affair Highlights Uncertainty of Email-Privacy Laws by Ashby Jones and Joe Palazzolo posted yesterday.

Likely the Best One from EFF, of course: When Will our Email Betray Us? An Email Privacy Primer in Light of the Petraeus Saga by Hanni Fakhoury and Kurt Opsahl and Rainey Reitman:

The unfolding scandal that led to the resignation of Gen. David Petraeus, the Director of the Central Intelligence Agency, started with some purportedly harassing emails sent from pseudonymous email accounts to Jill Kelley. After the FBI kicked its investigation into high gear, it identified the sender as Paula Broadwell and, ultimately, read massive amounts of private email messages that uncovered an affair between Broadwell and Petraeus (and now, the investigation has expanded to include Gen. John Allen's emails with Kelley). We've received a lot of questions about how this works—what legal process the FBI needs to conduct its email investigation. The short answer? It's complicated.

CNET: Petraeus e-mail affair highlights U.S. privacy law loopholes | Because of the wording of an obscure 1986 federal law, the former CIA director -- and the rest of Americans -- receive less privacy protection than we would for love letters stored under a mattress by Declan McCullagh

WaPo: FBI investigation of Broadwell reveals bureau’s comprehensive access to electronic communications

San Francisco Chronicle: Petraeus scandal reveals threat to privacy

Politico: David Petraeus affair scandal highlights email privacy issues

Reuters: Collateral damage of our surveillance state by Julian Sanchez:

As the surreal sex scandal that forced CIA Director David Petraeus’ resignation reveals another prominent general’s “flirtatious” emails, the serious scandal here may well be the breadth of the FBI’s power to launch fishing expeditions through Americans’ most intimate communications.

onthemedia.org: Will the Patraeus scandal be good for privacy?

11/17/12

Permalink 11:23:15 am, by fourth, 175 words, 316 views   English (US)
Categories: General

W.D.N.Y.: Count in indictment of maintaining drug premises does not automatically confer standing; affidavit still needed

Defendant was named in the indictment with using and maintaining drug premises, but this alone was not enough to give him standing to get a hearing on a motion to suppress. He still had to file an affidavit showing his connection to the property to give him standing. “However, ‘[a] defendant's unsworn assertion of the Government's representations does not meet [his] burden’ to establish standing to contest the search.” United States v. Marshall, 2012 U.S. Dist. LEXIS 163606 (W.D. N.Y. November 9, 2012).

The CI’s support of reliability was thin, but just barely gets over the hurdle for reasonable suspicion to justify the stop of the vehicle defendant was riding in. United States v. Osorieo-Torres, 2012 U.S. Dist. LEXIS 163901 (D. Kan. November 13, 2012).*

Defendant normally can’t raise an IAC claim on direct appeal. Here, even if he could, he’d lose on the merits. Two issues: (a) typo in a date wasn’t prejudicial; (b) items not listed in the SW were listed in the attached affidavit. United States v. Scott, 504 Fed. Appx. 157 (3d Cir. 2012).*

Permalink 10:40:44 am, by fourth, 173 words, 385 views   English (US)
Categories: General

MA: Nexus was shown for SW for house by defendant going to place of meet right from house

Nexus for a search warrant for defendant’s house was shown by the fact she left her house to go the place for the meet for a prearranged drug deal minutes after the call from the buyer. In other deliveries, she went from the place of the delivery back home. Commonwealth v. Tapia, 463 Mass. 721, 978 N.E.2d 534 (2012).

Once a drug dog alerted, the more intensive search of the car was valid. [Also, this case involved letting the officer testify that defendant’s multiple cell phones, empty pill bottles, and car rental agreements were indicative of drug dealing.] State v. Brooks, 2012 Ohio 5235, 2012 Ohio App. LEXIS 4580 (3d Dist. November 13, 2012).*

Defendant conceded that he was speeding, and that justified his stop. The stop was not overlong and was continued on reasonable suspicion. “Within minutes of the initial traffic stop, Norton provided Agent Campbell with a travel itinerary that seemed improbable; shortly thereafter, Comegys provided a different improbable itinerary and appeared nervous while searching for the car rental agreement.” United States v. Comegys, 504 Fed. Appx. 137 (3d Cir. 2012).*

Permalink 10:34:11 am, by fourth, 217 words, 355 views   English (US)
Categories: General

FL4: Defendant had not abandoned a sweatshirt he was handing to another

Defendant was confronted by the police walking in a park with a companion. As the officer got close, he handed the sweatshirt in his hand to his companion and the officer grabbed it. Defendant’s hand was still on it, so that was not an abandonment, and he still had control over it. The seizure was invalid. B.L. v. State, 127 So. 3d 552 (Fla. 4th DCA 2012).*

Officers had information from a good source that defendant was at a particular address, and they had an arrest warrant. They knocked at the door, and nobody answered. They went to the back and found a man who said that Stoekel was the tenant. They went back to the front door, and Stoekel finally answered the door. He would not consent to an entry to search for defendant but he let the officers into the living room. Once in the living room, a discussion of the crime of harboring got Stoekel to point upstairs. That was consent to go upstairs, and defendant was found asleep with a gun next to him. That was valid consent. United States v. Collins, 699 F.3d 1039 (8th Cir. 2012).*

Defendant “indicated” during his valid stop that he was attempting to flee, and that supported an arrest and search incident. State v. Durham, 107 So. 3d 755 (La. App. 2 Cir. 2012).*

Permalink 09:34:17 am, by fourth, 84 words, 377 views   English (US)
Categories: General

WSJ: "Affair Highlights Uncertainty of Email-Privacy Laws"

WSJ: Affair Highlights Uncertainty of Email-Privacy Laws by Ashby Jones and Joe Palazzolo:

The adultery scandal that short-circuited David Petraeus's career also shined a light on the peculiar legal standards governing the privacy of email.

According to U.S. officials, the Federal Bureau of Investigation obtained search warrants after developing probable cause that Mr. Petraeus's biographer, Paula Broadwell, may have sent harassing emails to Jill Kelley, who planned social events for military personnel in Tampa, Fla.

Probable cause for what? What's the federal crime?

Permalink 09:30:50 am, by fourth, 109 words, 335 views   English (US)
Categories: General

E.D.Tenn.: Question to defendant whether gun was loaded was not a Miranda violation

Question to defendant whether gun was loaded was not a Miranda violation. United States v. Ashmore, 2012 U.S. Dist. LEXIS 161613 (E.D. Tenn. October 11, 2012).

A locked box in a car that was being towed was not subject to search at first, but it was as a part of the inevitable inventory, so it could have been searched then. The prior search was thus not illegal. United States v. Ashmore, 2012 U.S. Dist. LEXIS 161612 (E.D. Tenn. October 2, 2012).*

Probable cause for the search of defendant’s car was shown, so the search was valid under the automobile exception. United States v. Boyd, 2012 U.S. Dist. LEXIS 163187 (W.D. Pa. November 15, 2012).*

11/16/12

Permalink 10:14:13 am, by fourth, 70 words, 709 views   English (US)
Categories: General

Congressional Research Service on electronic privacy

Permalink 08:22:50 am, by fourth, 316 words, 365 views   English (US)
Categories: General

W.D.N.Y.: Moving motorist between cars is not an arrest

Requesting defendant get out of the vehicle and then moving him back between vehicles was not unreasonable or excessive. Handcuffing and lying down are reasonable; so’s this. United States v. Warrick, 2012 U.S. Dist. LEXIS 162985 (W.D. N.Y. April 13, 2012):

The fact that the defendant was requested by Officer Fuller to exit the vehicle and was "pulled towards the back of the vehicle" (T2, p. 102) before the weapon in question was observed, is of no legal consequence. Officer Fuller and his fellow officers had the right to direct all of the occupants of the vehicle to exit it while they conducted their investigation and such directive was not violative of the Fourth Amendment's proscription of unreasonable seizures. Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977); Maryland v. Wilson, 579 U.S. 408, 415 (1997); ... Dempsey v. Town of Brighton, 749 F. Supp. 1215 (W.D.N.Y. 1990) (officer's decision to stop vehicle containing individual who matched description of suspect in armed bank robbery and order occupants of the vehicle to crawl out of the vehicle and lay down on the grass, and to handcuff their wrists behind their back while conducting a pat down search, was reasonable), ... see also United States v. Laing, 889 F.2d 281, 285 (D.C. Cir. 1989) ("The amount of force used to carry out the stop and search must be reasonable, but may include using handcuffs or forcing the detainee to lie down to prevent flight or drawing guns where law officers reasonably believe they are necessary for their protection."), ...; United States v. Taylor, 716 F.2d 701, 709 (9th Cir. 1983) ("requiring the suspect to lie down while a frisk is performed, if reasonably necessary, does not transform a Terry stop into an arrest.").

The actions of Officer Fuller and the other police officers were reasonable in carrying out their investigation and protecting their safety and did not violate the defendant's Fourth Amendment "interest in remaining secure from intrusion." United States v. Hensley, 469 U.S. 221, 226 (1985).

Permalink 08:07:40 am, by fourth, 541 words, 531 views   English (US)
Categories: General

W.D.Pa.: By using neighbor's wireless router, defendant had no REP in his signal

Defendant used the Moocherhunter™ software to cause his computer to use another person’s wireless router. Following the rationale of the pen register case (Smith), the court finds that the defendant did not have a reasonable expectation of privacy in a wireless signal sent to a computer outside his own home to procure child pornography off the internet. United States v. Stanley, 2012 U.S. Dist. LEXIS 162317 (W.D. Pa. November 14, 2012):

5. Here, the issue is whether a search occurred when Erdely used Moocherhunter™ to follow the wireless signal being sent from and to the computer identified by the 95 MAC address in order to connect to Kozikowski's wireless router. More specifically, the court must determine whether Stanley had a legitimate expectation of privacy in the wireless signal he caused to emanate from the computer in his home to Kozikowski's wireless router and the wireless signal he received back from Kozikowski's wireless router in order to connect to the internet.

. . .

11. Based upon Smith's rationale, the court finds Stanley did not have a legitimate expectation of privacy in the wireless signal he caused to emanate from his computer to the Kozikowski wireless router or in the signal being sent from the router back to his computer, and therefore, Erdely's use of Moocherhunter™ did not constitute a search in violation of the Fourth Amendment. In Smith, the pen register was used to record the telephone numbers people voluntarily dialed and thus, conveyed, to the telephone company by monitoring electrical impulses caused when the dial on the telephone was released. Here, Moocherhunter™ monitored the strength of a signal that Stanley voluntarily caused to send from his computer to Kozikowski's wireless router and to receive a signal back from the wireless router in order to gain unauthorized access to Kozikowski's internet connection. In both cases, the party seeking suppression of evidence assumed the risk that information disclosed to a third party may be turned over to the police. Notably, Moocherhunter™, like the pen register, did not reveal the contents of the communications; it only revealed that communications were taking place.

12. The court finds that Stanley did not have a reasonable expectation of privacy in the wireless signal he caused to emanate from his computer to Kozikowski's wireless router or the wireless signal he received from Kozikowski's wireless router in order to connect to the internet. The information logged on that wireless router was accessible to Kozikowski and through his consent, to Erdely. This information showed the private IP address of Stanley's computer. Stanley, therefore, could have no reasonable expectation of privacy in the signal he was sending to or receiving from Kozikowski's wireless router in order to connect to the internet. An internet subscriber does not have a reasonable expectation of privacy in his IP address or the information he provides to his Internet Service Provider, such as Comcast, in order to legally establish an internet connection, and likewise, a person connecting to another person's wireless router does not have an expectation of privacy in that connection, i.e. the private IP address, when it is available to that third person and anyone with whom that person shares the information.

See Who's Stealing Your Wireless Signal by Derek Gerry on Life123.com.

Update: See Volokh by Orin Kerr.

11/15/12

Permalink 06:26:34 pm, by fourth, 393 words, 466 views   English (US)
Categories: General

D.S.C.: Getting out of vehicle and pushing bag under car was considered abandonment

Defendant got out of a vehicle with a bag and set it down on the ground. He pushed it under the vehicle, but not far. The court concludes that the bag was abandoned by this action. United States v. Davis, 2012 U.S. Dist. LEXIS 162396 (D. S.C. November 14, 2012):

Two possible inferences can be drawn from Davis's placing the bag on the ground underneath the vehicle. The first is, as Davis argues, that he was hiding the bag—unquestionably in an attempt to prevent Officer Cox from discovering its illegal contents—and that he never intended to relinquish his Fourth Amendment rights in the bag but instead intended to retrieve it later, maintaining an expectation of privacy in the bag and its contents. The second possible inference is that Davis intended to abandon and get rid of the bag, separating it from the vehicle and hoping Officer Cox would not connect it to him. Davis argues that no evidence was introduced to support the second inference, except the mere and insufficient fact that the bag was on the side of the road. However, Davis's subjective expectation, by itself, is not dispositive of this issue. Rather, his expectation of privacy, for Fourth Amendment purposes, must be objectively reasonable.

. . .
Here, although Davis did not attempt to flee, the core facts are the same. After Officer Cox ordered the driver from the vehicle, Davis made his decision to remove the bag from the vehicle. Why he made that decision and whether he expected to later retrieve the bag are not determinative of the analysis so long as Davis's expectations were objectively unreasonable. Much like the defendant in Jones, Davis's ability to recover the bag depended entirely on fate—specifically the possibility that either Officer Cox or Deputy Smith would not observe him retrieving the bag in the event he was freed to leave. In light of the risk Davis faced in placing the bag under the vehicle on the side of a public highway where anyone could pick it up, any expectation of privacy Davis had, by society's standards, was objectively unreasonable.

Therefore, the Court finds that Davis abandoned the bag and waived any Fourth Amendment rights he had in it and its contents. Because the bag was abandoned, Officer Cox and Deputy Smith did nothing unlawful in seizing and searching the bag after it was discovered. ...

Permalink 12:05:42 am, by fourth, 137 words, 478 views   English (US)
Categories: General

AR: Officers lacked reasonable belief defendant was in third party's home to enter on arrest warrant

The officer had no reasonable belief that defendant was in a third party’s residence to enter to arrest defendant: His car was not outside and he was only seen there the day before. Essentially, the officer admitted they didn’t want to wait around all day for him to show up. Gutierrez v. State, 2012 Ark. App. 628, 2012 Ark. App. LEXIS 740 (November 7, 2012).

The trial court’s conclusion that defendant consented to a general search of her home rather than a photographing was supported by the record. State v. Saunders, 55 A.3d 1014 (N.H. 2012).*

The district where the evidence was seized by the police was the logical place for the forfeiture to be tried. The claimant’s motion for a change of venue is denied. United States v. $1,074,900.00 in United States Currency, 2012 U.S. Dist. LEXIS 161943 (D. Neb. November 13, 2012).*

11/14/12

Permalink 07:41:03 am, by fourth, 321 words, 401 views   English (US)
Categories: General

E.D.Pa.: SW for a whole computer was not a general search

The search warrant here for a computer in a child pornography case was not a general warrant, although it permitted a search of the entire computer. United States v. Morgan, 2012 U.S. Dist. LEXIS 161771 (E.D. Pa. November 13, 2012):

In this case, the search warrant for the Hatfield residence authorized the government to seize the computer hardware and software located in the residence as part of the search for evidence of criminal conduct. Such seizures were justified under the warrant because electronic evidence is the heart of this case.

The search warrant application provided extensive detail on the computer activity of Wook_inky101@yahoo.com from September through December 2011. This Yahoo account was used to engage in sexually explicit conversations, send sexually graphic images, and transmit child pornography to a person believed to be a thirteen-year-old girl in Texas. Federal agents traced this activity to Defendant's residence. The search warrant application noted the importance of computer technology in creating, exchanging, and storing child pornography, and also explained how agents would conduct their electronic searches of any evidence seized from the residence. The application made clear that evidence of child pornography rarely, if ever, completely disappears from any computer that once housed it.

In sum, the warrant authorized the FBI to seize a wide array of electronic equipment and data to search for evidence of criminal activity that was thoroughly supported by the general characteristics of those involved in child pornography, and by the actual facts in this case. The Court therefore concludes that the search warrant for the Hatfield residence was not a general warrant and properly complied with Fourth Amendment requirements.

Still, it reads like a general warrant. It seems that the court considers the entire object to be the subject of the search without specifying the target materials. Today, that's easy to do with computer programs seeking all image or video files by what they are, not by the name.

Permalink 07:34:21 am, by fourth, 208 words, 415 views   English (US)
Categories: General

E.D.Tenn.: Father could give consent for search of adult daughter's room for evidence of boyfriend's drugs

Defendant lived with a woman named Price at her dad’s house. The police tailed him there, arrested him for drugs, and then got permission of the dad to search the room. They asked the dad if he ever needed permission to enter the room, and he said no, so they asked him for consent. [No analysis of the relationships.] United States v. Page, 2012 U.S. Dist. LEXIS 161531 (E.D. Tenn. October 22, 2012):

To be sure, if the search of the bedroom was an incident to defendant's arrest, it may have gone too far. But it was not an incident to defendant's arrest. Drug Task Force Director McQueen asked permission of the owner, Mr. Price, to search the house. Additionally, he asked Price if he (Price) had to obtain permission of his daughter or defendant to enter the daughter's bedroom. Price stated that he never asked permission, and he freely entered the bedroom when and as he wished, never asking permission of his daughter or defendant to do so. Mr. Price gave his consent to search. Based upon the representations Mr. Price made about his perceived authority over all areas of that house and Price's consent, the officers searched Nikea Price's bedroom, finding considerable evidence of drug trafficking therein.

Permalink 07:23:32 am, by fourth, 172 words, 455 views   English (US)
Categories: General

D.Utah: Officer’s cut and paste error from one affidavit to another was enough for a Franks hearing

Officer’s cut and paste error from one affidavit to another was enough for a Franks hearing. United States v. Rodriguez-Ramirez, 2012 U.S. Dist. LEXIS 161211 (D. Utah November 7, 2012):

The court is not convinced by the United States' argument. The erroneous statements concerning the affiant's surveillance of the house in Magna are sufficiently material to justify an evidentiary hearing on the validity of the warrant. While the threshold for holding a Franks hearing is a high one, the court finds that the affiant's failure to remove this key information could constitute a reckless disregard for the truthfulness of the affidavit. The Defendants may also be able to establish that the affiant omitted information about the CS, the meeting with Chalmes, or the results of the license plate check, and that this omission was committed either deliberately or recklessly. Taken together, this evidence may establish that the search warrant was not supported by probable cause and that the search of the house in Magna was conducted in violation of the Defendants' Fourth Amendment rights.

Permalink 07:15:18 am, by fourth, 236 words, 394 views   English (US)
Categories: General

HuffPo: "Should Republicans Blame The TSA For Their Loss? (VIDEO)"

HuffPo: Should Republicans Blame The TSA For Their Loss? (VIDEO) by Christopher Eliott:

When Susan Verbeeck attended a rally for Republican presidential candidate Mitt Romney with her two daughters and a friend at the Virginia State Fairgrounds in Doswell, Va., earlier this month, she didn't expect to be greeted by TSA agents.

But that's exactly what she found blocking the entrance to the fair: a row of metal-detectors staffed by uniformed TSA agents.

"We're accustomed to the TSA at airports when we travel," she says. "But now it seems they are ubiquitous. I understand that the presidential candidates need security, but wasn't the TSA originally formed for airport security?"

Well, that was the idea. But a look at TSA's mission statement, which isn't limited to air travel, means the agency could try to "protect" you anytime you set foot outside your home.

...

What would you do if you were assigned to screen supporters of a party that you knew presented a threat to your job security? If you answered: harass them, fail to properly screen them and indirectly allow the candidate to be heckled, then congratulations -- here's your tin foil hat and your very own copy of "The X-Files: The Complete Collector's Edition."

Did the TSA cost the Republicans the presidency? In such a close presidential election, anything could have swayed the electorate. But I think it's safe to say the agency didn't exactly help.

Permalink 06:46:50 am, by fourth, 116 words, 373 views   English (US)
Categories: General

Jonathan Turley: "Poll: One-Third of Americans Would Accept Cavity Searches By TSA"

Jonathan Turley: Poll: One-Third of Americans Would Accept Cavity Searches By TSA:

In past columns, I have lamented how our government has not only stripped away core civil liberties from citizens, but that citizens have become increasing passive and accepting of the loss of such freedoms. A new poll conducted by Harris Interactive offers a particularly chilling measure of just how passive and accepting citizens have become to the new realities of our internal security system. The poll found almost one third of American adults would accept a “TSA body cavity search” in order to fly. Moreover a majority believes that it is reasonable to criminalize the act of disobeying any TSA agent.

The boiling frog.

11/13/12

Permalink 06:54:30 pm, by fourth, 193 words, 453 views   English (US)
Categories: General

Tenth Amendment Center: "Will Texas Nullify Both NDAA and TSA?"

Tenth Amendment Center: Will Texas Nullify Both NDAA and TSA?

The Texas legislature will take up two bills designed to protect basic civil liberties in the Lone Star State during the 2013 legislative session.

On Monday morning, Rep. David Simpson (R-Longwood) prefiled The Texas Travel Freedom Act (House Bill 80). If passed, the law would make it a criminal act to intentionally touch “the anus, breast, buttocks, or sexual organ of the other person, including touching through clothing,” without probable cause in the process of determining whether to grant someone access to a public venue or means of public transportation.

...

The Texas legislature will also consider a bill that would block any attempt to indefinitely detain people in Texas under sections of the National Defense Authorization Act. Rep. Lyle Larson (R-San Antonio) prefiled House Bill 149, which declares:

It is the policy of this state to refuse to provide material support for or to participate in any way with the implementation within this state of Sections 1021 and 1022 of the National Defense Authorization Act for Fiscal Year 2012 (Pub. L. No. 112-81). Any act to enforce or attempt to enforce those laws is in violation of this subchapter.

11/12/12

Permalink 08:26:22 am, by fourth, 104 words, 991 views   English (US)
Categories: General

OH2: Smell of burning marijuana and seeing some during knock and talk justified entry

Officer doing a knock and talk smelled burning marijuana coming from the house, and he could see marijuana on the coffee table. His entry to preserve the evidence was reasonable since the defendant knew that the officers knew it was there. State v. Miller, 2012 Ohio 5206, 982 N.E.2d 739 (2d Dist. 2012).*

Beer bottles seen in a vehicle during a DUI stop were in plain view and subject to seizure. Commonwealth v. Miller, 2012 PA Super 244, 56 A.3d 424 (2012).*

Following the few cases that have decided the issue, parole officers have qualified, not absolute, immunity for ordering arrests of their charges. Draine v. Leavy, 504 Fed. Appx. 494 (6th Cir. 2012).*

Permalink 12:02:56 am, by fourth, 265 words, 465 views   English (US)
Categories: General

OH2: Validity of judge's appointment can't be challenged by attacking search warrant

The alleged defective appointment of a judge to replace one who died cannot be attacked in a criminal proceeding challenging a search warrant the judge issued. The general rule is that the legality of the judge's appointment must be tested in quo warranto and not by collateral attack in a criminal proceeding. State v. Hill, 2012 Ohio 5210, 2012 Ohio App. LEXIS 4556 (2d Dist. November 9, 2012):

[*P21] Defendant relies on State v. Williams, which held that a warrant is void ab initio if not signed by a judge prior to the search. In Williams, the warrant bore no signature at all. In the present case, the warrant bore the signature of a person purporting to be a judge. The warrant did not suffer from the facial defect in Williams, which rendered the warrant void and therefore precluded application of the "good faith" exception in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See State v. Spaw, 18 Ohio App.3d 77, 480 N.E.2d 1138 (1984).

[*P22] The power and authority of a judicial officer and the validity of her office cannot be collaterally attacked in a criminal proceeding. Those challenges must instead be made in an original action in quo warranto to determine whether the judge had a valid title to her office, in which proceeding the judge herself would be made a party defendant and have an opportunity to appear and make a defense thereto. Stiess v. State, 103 Ohio St. 33, 41 (1921). That challenge is not reviewable on appeal from an adverse judgment rendered in the criminal proceeding. State ex rel. Stowell v. Lovinger, 6 Ohio St.3d 21, 450 N.E.2d 1176 (1983).

11/11/12

Permalink 12:29:25 am, by fourth, 551 words, 442 views   English (US)
Categories: General

TX2: That the defendant was “going to” or “fixing to” manufacture meth is not exigent circumstances

The fact that the defendant was “going to” or “fixing to” manufacture meth is not exigent circumstances. Actual manufacturing required. Wehrenberg v. State, 385 S.W.3d 715 (Tex. App. – Ft. Worth 2012):

Thus, whether it was the odor of ether, ether running on the ground, or the observance of articles associated with the ongoing manufacture of methamphetamine, in each of the three preceding cases, officers observed facts that led them to believe that someone was actively manufacturing methamphetamine. This fact was significant to the exigent-circumstances inquiry because it sustained the officers' belief that the destruction or removal of evidence was imminent—a result that could have occurred due to the inherent volatility associated with the active manufacture of methamphetamine.

Here, unlike the officers in Rhiger, Walsh, and Wilson, Investigator Montanez did not testify that he observed anything that led him to believe that someone was actively manufacturing methamphetamine at the residence. Instead, the record demonstrates (1) that Investigator Montanez had information that the occupants of the residence were "going to" or "fixing to" manufacture methamphetamine, and (2) that officers arrived at the residence and entered without a warrant. Therefore, notwithstanding that a fire was alleged to have previously occurred at some point at the residence as a result of manufacturing methamphetamine, in the absence of any evidence that could have led the officers to believe that someone was actively manufacturing methamphetamine, officers could not have reasonably concluded that the destruction or removal of evidence was imminent due to either the inherently volatile nature of manufacturing methamphetamine or the inevitable "destruction" of various chemicals when combined to manufacture methamphetamine. See, e.g., State v. Meeks, 262 S.W.3d 710, 726-27 (Tenn. 2008) (holding that hazards posed by actively operating methamphetamine lab created exigent circumstances justifying warrantless search); Williams v. State, 995 So.2d 915, 921 (Ala. 2008) ("Based on the inherent dangers of an operating methamphetamine lab, we now hold that discovery of such a lab by law-enforcement officials constitutes an exigent circumstance justifying a warrantless search" (emphasis added)); State v. Bilynsky, 2007 ME 107, 932 A.2d 1169, 1176 (Me. 2007) (holding that exigent circumstances justified warrantless entry because officers observed facts demonstrating that manufacturing methamphetamine was "in progress"); Bishop v. Commonwealth, 237 S.W.3d 567, 570 (Ky. Ct. App. 2007) ("[T]he court did not clearly err by finding that a search was justified by the exigent circumstances created when an active methamphetamine lab was found in the trunk of a car ...." (emphasis added)). Although probable cause existed at the time of the warrantless entry, there is nothing in the record to indicate that the officers were confronted with a "now or never"-type situation, one in which they had to act before obtaining a warrant in order to head off the possible destruction or removal of evidence caused by the volatility inherently associated with the actual manufacture of methamphetamine. See Roaden, 413 U.S. at 505, 93 S. Ct. at 2802; State v. Moore, 2008 NMCA 56, 144 N.M. 14, 183 P.3d 158, 161 (N.M. Ct. App. 2008) (reasoning that "mere probable cause that a methamphetamine lab exists is not per se an exigent circumstance that will justify a warrantless entry into a home" (emphasis added)). Contrary to the State's argument, the first, second, and fifth McNairy criteria do not support a conclusion that exigent circumstances justified the warrantless entry. Accordingly, we may not affirm the trial court's denial of Wehrenberg's motion to suppress on this ground.

Permalink 12:21:40 am, by fourth, 397 words, 630 views   English (US)
Categories: General

KS follows majority rule that search incident includes text messages on a cell phone removed from the person

Search incident includes text messages on a cell phone removed from the person, following the majority. State v. James, 48 Kan. App. 2d 310, 288 P.3d 504 (2012):

=> Read more!

Permalink 12:14:12 am, by fourth, 164 words, 573 views   English (US)
Categories: General

KY: “[F]idgeting alone is insufficient to justify a Terry search for weapons”

“[W]e conclude that fidgeting alone is insufficient to justify a Terry search for weapons.” Reynolds v. Commonwealth, 393 S.W.3d 607 (Ky. App. 2012).

Defendant’s reckless driving and conduct in an effort to flee from the police was a separate crime, completely separate from the alleged illegality of the stop. People v. May, 2012 NY Slip Op 07472, 2012 N.Y. App. Div. LEXIS 7371 (4th Dept. November 9, 2012):

It is well established that "[a] person who is stopped or detained illegally is not immunized from prosecution for crimes committed during his [or her] detention period" (United States v Garcia-Jordan, 860 F2d 159, 160; see Rogers, 52 NY2d at 531-532). Here, inasmuch as defendant's response to the police approach was "unjustified and criminal in nature ... and unrelated to the initial [allegedly] unlawful action on the part of the police," suppression of the subsequently-acquired evidence was not required (People v Townes, 41 NY2d 97, 102; People v Ellis, 4 AD3d 877, 878, lv denied 3 NY3d 639, reconsideration denied 3 NY3d 673; cf. People v Felton, 78 NY2d 1063, 1065).

11/10/12

Permalink 11:15:48 am, by fourth, 80 words, 520 views   English (US)
Categories: General

WA: Gant applies to all pending cases

Gant is retroactive under the Washington Constitution and applies to all nonfinal cases. State v. Louthan, 175 Wn.2d 751, 287 P.3d 8 (2012).

Defendant’s postconviction claim of unsworn affidavits for search warrant is shown to be false. Johnson v. State, 2012 Fla. LEXIS 2276 (November 8, 2012),* connected case, Johnson v. State, 104 So. 3d 1010 (Fla. 2012).*

Defendant was found to have consented to an entry into his curtilage where the police waited and got permission to enter the yard. State v. Collins, 101 So. 3d 557 (La. App. 3 Cir. 2012).*

Permalink 10:45:58 am, by fourth, 210 words, 544 views   English (US)
Categories: General

D.Neb.: Merely talking to a parked motorist was not a seizure

Officers talking to a motorist parked in a Lexus in a high crime area to watch out was not a seizure. The officer walked around the car and saw the butt of a gun, but it turned out to be a BB gun. United States v. Mahr, 2012 U.S. Dist. LEXIS 161000 (D. Neb. October 22, 2012):

Taking the "position that a person is 'seized' for Fourth Amendment purposes whenever an officer interrupts what that person was otherwise doing is absurd." United States v. Tarantola, 332 F.3d 498, 499 (8th Cir. 2003). Merely attempting to attract a person's attention to further investigate suspected criminal behavior "does not implicate any Fourth Amendment interest, does not amount to a seizure, and thus falls outside the ambit of the Fourth Amendment." Tarantola, 332 F.3d 499-500 (knocking on glass door of laundromat is not a seizure). More specifically, an officer's attempt to make contact with individuals occupying a vehicle parked in a public place does not constitute a seizure. See Mabery, 686 F.3d at 596-97(citing cases) (finding no seizure where officer shined a spotlight on vehicle from the street); see also United States v. Barry, 394 F.3d 1070 (8th Cir. 2005) (finding no seizure where officer knocked on vehicle's window as it was parked in vacant parking lot behind a mall).

Permalink 12:15:48 am, by fourth, 164 words, 554 views   English (US)
Categories: General

GA: Cell provider's voluntarily relinquishing records in a recent double homicide was no ground to suppress

Georgia law limits access to cell phone records, and a double murderer was at large and the police were trying desperately to locate him. There is a statutory suppression remedy, but the telephone company turned them over voluntarily when asked by the police, in good faith. This obviated the suppression remedy. Registe v. State, 292 Ga. 154, 734 S.E.2d 19 (2012).*

“In light of Grimes, Reyes, and Newton, as well as subsequent district court precedent, it is crystal clear that the stalking horse theory is not a valid defense to warrantless searches of probationers, parolees, or individuals on supervised release in this Circuit.” United States v. Washington, 2012 U.S. Dist. LEXIS 159863 (S.D. N.Y. November 7, 2012).*

Plaintiffs sued the government exactly one year after their house was searched and their son arrested. The government was moved to be substituted 18 months later. The two year Federal Tort Claims Act statute of limitations ran on the government. Farmer v. United States, 2012 U.S. Dist. LEXIS 160405 (E.D. La. November 8, 2012).*

Permalink 12:01:49 am, by fourth, 211 words, 466 views   English (US)
Categories: General

D.Mont.: Defendant had standing in a mailed package even though the return address wasn't his

Defendant had standing to challenge the search of a mailed package even though the return address was not his name. United States v. Gardenier, 2012 U.S. Dist. LEXIS 160030 (D. Mont. November 7, 2012):

The parties do not dispute that Gardenier sent the package, even though the return label read "Jenny Harbinger." As the sender of the package, Gardenier had a legitimate expectation of privacy in it. She thus has standing to challenge the warrantless seizure of the package from the UPS facility and the subsequent search of the package at the Task Force headquarters.

A store security guard reported to the police, apparently without any factual justification, that somebody in a car was doing drugs. A police car pulled up behind the car, without blue lights on, but non-flashing white lights on the light bar. That still conveyed “Stay put” and was a seizure. The seizure was without factual justification. United States v. Gray, 2012 U.S. Dist. LEXIS 159292 (D. Kan. November 7, 2012).*

The facts are not in dispute, so defendant is not entitled to a hearing on his motion to suppress a probation search. It was a valid probation search. United States v. Muhammad, 903 F. Supp. 2d 132 (E.D. N.Y. 2012)*; United States v. Washington, 2012 U.S. Dist. LEXIS 159863 (S.D. N.Y. November 7, 2012).*

11/09/12

Permalink 07:32:25 pm, by fourth, 44 words, 584 views   English (US)
Categories: General

SCOTUS grants cert in Maryland DNA case

The Supreme Court granted cert in Maryland v. King today. Chief Justice Roberts had previously granted Maryland a stay pending decision on cert.

Issue: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.

Permalink 08:24:47 am, by fourth, 366 words, 481 views   English (US)
Categories: General

N.D.Ga.: Time for motions to suppress in forfeiture cases explained

There is no time limit for motions to suppress in a forfeiture case under the forfeiture rules, so they must be governed by local rule. Here, the motion should have been filed far earlier after discovery started than it did, and there is no excuse not to because the essential facts were known. United States v. $33,330.00 in United States Currency & Ten Pieces of Jewelry Valued at $27,750.00, 2012 U.S. Dist. LEXIS 159081 (N.D. Ga. September 4, 2012)*:

Rule G(8) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions provides, in pertinent part, the following:

Motion to Suppress Use of the Property as Evidence. If the defendant property was seized, a party with standing to contest the lawfulness of the seizure may move to suppress use of the property as evidence. Suppression does not affect forfeiture of the property based on independently derived evidence.

Rule G(8)(a). As such, a motion to suppress is a specific motion allowed in civil forfeiture matters.

. . .

Assuming, without accepting, that practical considerations would have made it difficult for Claimant to depose the law enforcement officers he had identified at the beginning of the discovery period, there are still other actions Claimant could have taken to preserve the Fourth Amendment issue for review by the Court. As is often done in criminal proceedings, Claimant could have filed in a timely manner a preliminary motion to suppress and sought leave to perfect the motion upon Claimant's receipt of all of the evidence supporting the motion. At the very least, Claimant could have stated in the Joint Preliminary Report that he intended to file a motion to suppress after conducting sufficient discovery and could have sought permission from the Court to do the same. Claimant took none of these actions. Instead, Claimant agreed to the deadlines adopted in the Court 's Scheduling Order and then made no mention of the Fourth Amendment issue until he filed his Motion to Suppress on November 2, 2009.

In addition to neglecting the deadline for filing the Motion to Suppress, Claimant still did not act diligently in raising the Fourth Amendment issue once he learned the information that he maintains forms the basis for the Motion to Suppress. ...

Permalink 08:02:12 am, by fourth, 426 words, 668 views   English (US)
Categories: General

S.D.Tex.: A heavy-set woman wearing Maidenform body shaping clothing is not RS of drug smuggling

Defendant was on a Greyhound bus stopped at the permanent checkpoint south of Falfurrias, Texas, and she was suspected of having on a “body suit” carrying drugs. However, she was wearing Mandenform body shaping clothing. The stop became excessive and without reasonable suspicion. United States v. Diaz, 2012 U.S. Dist. LEXIS 159415 (S.D. Tex. November 7, 2012)*:

At the hearing on the motion to suppress, testimony and exhibits demonstrated that the beige piece of clothing that Defendant was wearing was not in fact a "body suit." What Agent Cavazos saw was actually one of two articles of clothing, each with brassiere-like straps attached to material covering the torso area. According to testimony, these two camisoles, one with an attached brief and built-in brassiere, are commonly used by women as body shapers. Evidence also showed that these common articles of clothes were made by Maidenform, a popular manufacturer of women's underwear. These styles of undergarment can be purchased at major retail stores, such as JCPenny and Walmart, and are advertised online.

. . .

Agent Cavazos relied heavily on Defendant's undergarment as an indicator that Defendant was a body carrier. Agent Cavazos, however, testified that only a small and commonly exposed portion of this undergarment was visible at the time of the immigration inspection. In fact, he was only able to see a strip of a beige article of clothing on Defendant's left shoulder that he believed to be made of spandex. Based on this evidence, the undergarment that Agent Cavazos saw peeking out from under Defendant's blouse could have been any type of women's undergarment, ranging from a brassiere to a full body suit. The commonality of such articles of clothing does not lend itself to creating individualized suspicion of wrongdoing merely by its use. And, though drugs may be stashed inside women's underwear, if the mere use of underwear was used to justify search or seizure of an individual, agents may have free rein over half the population passing through a checkpoint. See Portillo-Aguirre, 311 F.3d at 657 ("In short, neither the bag nor its location suggested that criminal activity was afoot. If such common circumstances qualified as reasonable suspicion, then most interstate travelers would be subject to prolonged detention, for virtually any item of luggage, from a handbag to a suitcase, is capable of housing illegal narcotics."). This undergarment, even when viewed with Defendant's northward travel as a single, heavy-set female, does not give rise to reasonable suspicion. Defendant was not nervous and Agent Cavazos did not articulate any other suspicious facts that may be used to build sufficient justification.

11/08/12

Permalink 11:46:41 am, by fourth, 416 words, 408 views   English (US)
Categories: General

CA1: While the area involved is not determinative, it is a factor in reasonable suspicion.

Here, officers were surveilling an area known for its drug trafficking, and they saw what was likely a drug deal going down. The fact that it could have also been a legitimate transaction had to be considered with the place. It turned out that this was a gun sale, not a drug deal, but that was of “no constitutional significance.” United States v. Rabbia, 699 F.3d 85 (1st Cir. 2012):

Although the behavior in question also could have been consistent with legitimate commercial activity, the circumstances "reasonably supported a more sinister explanation." Brake, 666 F.3d at 805; see also United States v. Stanley, 915 F.2d 54, 57 (1st Cir. 1990) ("Under Terry, the test is whether the circumstances give rise to a reasonable suspicion of criminal activity, not whether the defendant's actions are subject to no reasonable innocent explanation."); cf. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) ("Even in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation.").

Here, those circumstances included Rabbia's presence late at night in an area known to be a hotbed of drug activity. On its own, of course, the character of the location where a stop occurs "is insufficient to create reasonable suspicion," United States v. Am, 564 F.3d 25, 30 (1st Cir. 2009), and we do not suggest that residents of poorer urban neighborhoods, where crime typically is more prevalent than in nearby suburban communities, may be detained on suspicion of criminal activity simply because of where they live. See United States v. Brown, 334 F.3d 1161, 1165, 357 U.S. App. D.C. 339 (D.C. Cir. 2003) (stating that "an individual's presence in [a certain neighborhood], 'standing alone, is not enough to support reasonable, particularized suspicion that the person is committing a crime'" (quoting Wardlow, 528 U.S. at 124)). However, "officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation." Wardlow, 528 U.S. at 124. Accordingly, Rabbia's presence at 11:00 p.m. in a neighborhood with a high incidence of drug crimes is a relevant consideration supporting the reasonableness of the detectives' suspicion that he was involved in a drug deal. See id.; Am, 564 F.3d at 30 (noting that location "is clearly a consideration that a police officer may use to decide to make a Terry stop" (quoting United States v. Kimball, 25 F.3d 1, 7 (1st Cir. 1994) (internal quotation marks omitted)).

It is of no constitutional significance that, as it turned out, Rabbia was involved in an illicit gun sale, not a drug deal. ...

Permalink 11:40:27 am, by fourth, 174 words, 404 views   English (US)
Categories: General

CT: No REP in rooming house's common storage area in attic

Defendant lived in a rooming house, and he had no reasonable expectation of privacy in the attic storage shared with others. He could not deny others access to the area. State v. Pierre, 139 Conn. App. 116, 54 A.3d 1060 (2012).

Being asleep or passed out behind the wheel of a parked car on a motel parking lot with the motor running was reasonable suspicion of being under the influence. Defendant allegedly consented to a search of his car, and that included a locked safe box in the trunk. Either way, it would have been opened in an inventory. Two guns were found, and defendant was a convicted felon. An older state case said that closed containers could not be opened, but federal cases were contra, including Florida v. Wells. United States v. Ashmore, 2012 U.S. Dist. LEXIS 159577 (E.D. Tenn. November 7, 2012).*

Bricks of heroin found “as plain as day” in an open change purse in the defendant’s car. All the factors for a plain view were clearly present. United States v. Jones, 503 Fed. Appx. 174 (3d Cir. 2012).*

Permalink 06:42:17 am, by fourth, 58 words, 397 views   English (US)
Categories: General

ABAJ: Litigation News: "Eight Google Skills All Litigators Should Master"

ABAJ: Litigation News: Eight Google Skills All Litigators Should Master by Don MacLeod:

Hiding in plain sight are some tools that can quickly improve the quality of your Google search results, help you save time, and produce custom-tailored results that simple keyword searching can’t deliver on its own. These are the techniques no litigator should do without.

11/07/12

Permalink 09:54:22 am, by fourth, 324 words, 489 views   English (US)
Categories: General

CA5: Wearing a bandana over one's face on a transit train justified stop and frisk

DART transit operators called central control that two men got on a train wearing bandanas over their faces. Customers were fearful of a robbery. A transit police officer swept the train finding them, and they had reasonable suspicion for a frisk when the defendants were found. The call was not treated as an anonymous call, and the choice of wearing a bandana over one’s face justified the officer’s actions. The district court was not clearly wrong. While defendant claimed it was cold, video of the stop and frisk showed officers in short sleeves. United States v. Roberson, 496 Fed. Appx. 390 (5th Cir. 2012):

Third, Roberson argues that his attire--that is, the bandana covering his face--was not a legitimate basis for reasonable suspicion. He does not cite any case law holding that attire is an inherently inappropriate factor for a reasonable suspicion calculus. Roberson's principal contention regarding his attire is that there are reasons other than robbery that he might have been wearing a bandana, namely that it was cold. During the suppression hearing, Roberson presented evidence that a cold front had developed in Dallas that evening, and that at the time he boarded the DART train, the temperature was possibly 40 degrees Fahrenheit with wind chill, and that the inside temperature of the train was roughly similar. On the other hand, the train conductor and Officer Ibarra testified that it was not that cold on the train and that the train had a heater. The Government also presented video evidence that while some officers were wearing jackets on the scene, others were wearing short sleeves. This conflicting evidence does not clearly support Roberson's portrayal of the events, and thus we defer to the district court's resolution of the facts, since the court was uniquely situated to determine the credibility and reliability of the testimony. The district court did not clearly err in finding that Roberson was wearing the bandana for reasons unrelated to the weather.

Permalink 09:38:31 am, by fourth, 277 words, 426 views   English (US)
Categories: General

CA7: Entry into defendant's fenced backyard two hours after a shooting was still justified under exigency

Officers saw bullet holes in a car next to defendant’s fenced backyard and shell casings. While two hours had passed and there were 20 officers in the area, the entry was justified because of the risk of a wounded person, not a gunman. United States v. Schmidt, 700 F.3d 934 (7th Cir. 2012):

At the time of the search, gunshots had recently been heard in the neighborhood. Bullet holes were in a car that was adjacent to the backyard, bullet holes were in the 1424/1426 duplex itself, and there was a trail of about nine spent casings on the ground nearby, including five right next to the 1424/1426 duplex and one in the yard. These circumstances, taken together, made it reasonable for an officer to believe, at the time of the search, that people in the backyard area may have recently been shot and in need of immediate aid.

Schmidt principally argues that by the time of the search, two hours had already passed since the shots were fired and over 20 officers had blanketed the block. But the prime exigency in this case was the potential for wounded victims, not necessarily the threat of further shooting. If a victim had been shot in the yard, as a reasonable officer could have suspected, that victim would not have become any less wounded after two hours had passed; to the contrary, he would need immediate aid. It would not have made sense for an officer to wait for a warrant when a shooting victim could have been dying in the yard, and the officer also did not need to know that someone had actually been shot in order to go into the yard. ...

Permalink 09:22:25 am, by fourth, 265 words, 380 views   English (US)
Categories: General

E.D.Ark.: Mere opinion evidence would be found in a digital camera found in a car searched with a warrant was not probable cause

Officers got a valid warrant for defendant’s car for evidence linked to a shooting. In the car they found a digital camera, and they looked at pictures. Then they got a warrant for the camera, opining that there might be evidence on the camera. There was no showing of any reason to believe evidence would be found on the camera. The good faith exception was also inapplicable. United States v. Alkhaldi, 2012 U.S. Dist. LEXIS 158870 (E.D. Ark. September 18, 2012), adopted 2012 U.S. Dist. LEXIS 158874 (E.D. Ark. November 6, 2012):

In this instance, the LRPD detective's declaration in the affidavit that "[i]t is believed that this camera is now concealing possible evidence of a crime" could not have been made without his premature and undisclosed search of the camera. Without that initial unauthorized search of the camera, his truthful representation to the issuing judicial officer would have been consistent with his testimony at the suppression hearing, that being, he did not suspect that there would be evidence in the camera until he looked in it. Under the state of facts, as the detective knew them to be, his belief in the existence of probable cause was entirely unreasonable.

The motion to suppress the evidence obtained from the execution of the car warrant should be denied. See Document 25. The motion to suppress the evidence obtained from the execution of the camera warrant, though, should be granted. See Document 16. Alkhaldi's supplemental motion to suppress should be denied as moot. See Document 17.

[Disclaimer: My case. Government didn't object to R&R, which was adopted yesterday. JT Tuesday.]

Permalink 09:13:33 am, by fourth, 149 words, 424 views   English (US)
Categories: General

D.Ariz.: Arrest on a business parking lot justified tow and inventory of vehicle

Defendant was arrested on a fast food restaurant parking lot, and it was appropriate for the officers to tow and inventory the vehicle under Ninth Circuit precedent. Also, defendant’s sister was called about getting the car, but she wouldn’t come until the following day. United States v. Sequeira, 2012 U.S. Dist. LEXIS 158636 (D. Ariz. September 28, 2012).*

Defendant’s consent was voluntary; defendant told the officers where the firearms were and provided the key to get in. United States v. Yonts, 2012 U.S. Dist. LEXIS 158911 (E.D. Ky. November 6, 2012).*

The security sweep of defendant’s garage was proper. The officers properly looked behind things for persons, and there they found hidden marijuana. This was called a “second” sweep by one of the officers, but the court finds that it was a continuation of the initial sweep. United States v. Sinclair, 2012 U.S. Dist. LEXIS 158445 (W.D. N.Y. November 2, 2012).*

Permalink 08:39:59 am, by fourth, 250 words, 397 views   English (US)
Categories: General

D.Mont.: Defendant's attempt to delete files from computer justified its seizure without a warrant

Officers had information that child pornography had been received at defendant’s house via the Internet, so they did a knock-and-talk. Defendant was then attempting to delete files to the recycle bin, so the officers decided to take the computer without a warrant for safekeeping. While the files were not being permanently deleted from the computer, that wasn’t determinative. United States v. Ma, 2012 U.S. Dist. LEXIS 158775 (D. Mont. November 6, 2012):

The court finds that the agents' decision to take the computer with them did not violate the Fourth Amendment. Whether or not Ma's actions could have permanently destroyed the evidence of child pornography is not the question here. Ma's actions, taken immediately after he was informed that the agents were looking for evidence of possession of child pornography, made it reasonable for the agents to believe he was attempting to destroy evidence, regardless of the language in which the files were captioned. Ma points to no authority stating that agents in the field are required to have a sophisticated understanding of computer technology or absolute certainty about whether Ma's actions were reversible. Furthermore, the court notes that once the computer was seized by law enforcement, nothing was done to access its files until the search warrant was issued. This action adds to the reasonableness of the agents' actions, a critical inquiry under the Fourth Amendment. See Kentucky v. King, __ U.S. __, 131 S.Ct. 1849, 1856 (2011) ("The ultimate touchstone of the Fourth Amendment is 'reasonableness'") (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).

11/06/12

Permalink 12:01:42 pm, by fourth, 113 words, 444 views   English (US)
Categories: General

The New American: "Will Police Drones Destroy the Fourth Amendment?"

The New American: Will Police Drones Destroy the Fourth Amendment? by Joe Wolverton, II:

Although the president’s use of drones to execute the war on terror and those he assumes are associated with it has so far occurred only outside the United States, soon drones will slice through the domestic skies, as well. While the sight of drones over U.S. cities and towns is rare now, the Federal Aviation Administration (FAA) predicts that by 2020, 30,000 of these unmanned aerial vehicles (UAV) will be patrolling American airspace.

Scores of these UAVs will be deployed by state and local law enforcement, adding to the many that will be sent airborne by the federal government.

Permalink 08:44:34 am, by fourth, 175 words, 448 views   English (US)
Categories: General

D.Ariz.: Officers' reasonable belief somebody was shot was exigency for entry

Officers had objectively reasonable evidence that somebody had been shot to justify their entry under exigent circumstances. United States v. McCabe, 2012 U.S. Dist. LEXIS 158309 (D. Ariz. November 2, 2012).*

Defendant’s trash was searched, and he claimed officers entered the curtilage to conduct the search. Based on the evidence at the hearing, the court finds that the trash container searched was not on the curtilage at the time of the search; it was at the street. United States v. Knox, 2012 U.S. Dist. LEXIS 158129 (N.D. Tex. November 5, 2012).*

In a conspiracy to violate the Clean Water Act conviction, the defendant is denied bail pending appeal because none of the issues are sufficiently strong to suggest reversal on appeal, including the search question of open fields. “Because the Court does not believe either Fourth Amendment claim presents a ‘close question or one that could go either way,’ Pollard, 778 F.2d at 1182, the Court concludes the first ground for staying on bond pending appeal must fail.” United States v. Fillers, 2012 U.S. Dist. LEXIS 158269 (E.D. Tenn. November 5, 2012).*

Permalink 12:09:30 am, by fourth, 453 words, 550 views   English (US)
Categories: General

OH2: Lifting the flap of a suitcase on a warrantless entry when defendant was in the shower was unreasonable

Officers responded to a domestic abuse call and entered without a warrant and guns drawn when they got no answer. Defendant was in the shower with loud music playing and he did not respond to the officers’ knock or calling out. Instead of going to the bathroom, they lifted the flap of a suitcase laying open and found a gun. The search of the suitcase was without exigent circumstances. State v. Roberson, 2012 Ohio 5106, 2012 Ohio App. LEXIS 4468 (2d Dist. November 2, 2012)*:

[*P25] At the close of the suppression hearing, counsel for the State argued that the exigent circumstance was the weapon itself. Tr. 46. However, the mere presence of firearms does not create an exigent circumstance. United States v. Johnson, 22 F.3d 674, 680 (6th Cir.1994); State v. Sharpe, 174 Ohio App.3d 498, 2008 Ohio 267, 882 N.E.2d 960, at ¶ 50 (2d Dist.).

[*P26] Furthermore, we do not agree that the search of the suitcase necessarily would increase officer safety. The search of the suitcase would result in one of two scenarios. First, if a firearm was found in the suitcase, then the firearm had already been secured by the police and therefore the firearm posed no immediate risk to anyone, including the officers. Under this scenario, the search of the suitcase would do nothing to increase officer safety. We acknowledge that the discovery of the gun in the suitcase may have provided the police with additional comfort or relief as they ultimately approached the bathroom to get Roberson to exit. But the search of the suitcase itself in an apartment that had already been secured would not increase officer safety.

[*P27] On the other hand, discovery that the weapon was not in the suitcase would do nothing to secure the safety of the officers "as the whereabouts of the gun would still be unknown." State v. Simmons, 4th Dist. Highland No. 05CA4, 2006 Ohio 953, ¶ 43. While it is true that the discovery that the gun was not located in the suitcase may have put the officers on heightened alert that Roberson may have the gun on his person in the bathroom, the officers had already been made aware that this was a possibility. Indeed, beginning with their entry into the apartment, the officers had proceeded with their guns drawn, as if Roberson had the gun on his person. This is completely understandable given that police officers often have to proceed with the utmost caution, assuming the worst-case scenario, in order to ensure the protection of the public and themselves. This is especially true when a firearm is involved. While we do not minimize the need for officer safety, we do not agree that the search of the suitcase was necessary or helpful to ensure officer safety in the particular facts of this case.

Permalink 12:00:46 am, by fourth, 141 words, 437 views   English (US)
Categories: General

IA: Waiting longer for an answer in an empty house was pointless under Wilson

Officers came to defendant’s house to execute an arrest warrant for another matter, and they smelled burning marijuana. One stayed at the house and others went to get a search warrant. They knocked and announced and entered getting no answer from within. That was reasonable under Wilson v. Arkansas. State v. Eilander, 824 N.W.2d 561 (Iowa App. 2012).

The evidence at the trial court supports the finding that the consent was valid. Also, the consent form was explained to the defendant before it was signed. State v. Powell, 2012 Ohio 5104, 2012 Ohio App. LEXIS 4467 (2d Dist. November 2, 2012).*

The driver of a car who could not own it for “legal reasons” had the authority to consent to a search. At least the officer was reasonable in believing that he had the ability to consent. State v. Prater, 2012 Ohio 5105, 2012 Ohio App. LEXIS 4470 (2d Dist. November 2, 2012).*

11/05/12

Permalink 11:14:52 am, by fourth, 97 words, 361 views   English (US)
Categories: General

The Nation: "Checking Big Brother"

The Nation: Checking Big Brother by David Cole:

What if the government was tapping your phone unconstitutionally, and there was nothing you could do about it? That’s just life in the United States of America, at least according to the Justice Department. On Monday, October 29, Solicitor General Donald Verrilli Jr. argued in the Supreme Court that, for all practical purposes, the most expansive authority Congress has ever given the government to intercept Americans’ international phone calls and e-mails could not be challenged in court, even by the very people most likely to be harmed by it.

Permalink 07:49:27 am, by fourth, 210 words, 426 views   English (US)
Categories: General

Two IACs on the necessary showing

Defendant was arrested in his own house for aggravated DWI on a warrantless entry. Defendant made a prima facie case of IAC getting a hearing on defense counsel’s failure to move to suppress. State v. Crocco, 2013 NMCA 033, 296 P.3d 1224 (2012), Certiorari Granted, March 1, 2013, No. 33,938*:

[*1] Following a warrantless police entry into a private residence, Defendant Gregg Crocco was arrested and charged with aggravated driving while intoxicated, contrary to NMSA 1978, Section 66-8-102(D)(1) (2008) (amended 2010). His trial counsel did not move to suppress evidence that resulted from the warrantless entry. Defendant was convicted and he appeals, arguing, among other things, that the police made an unconstitutional warrantless entry into the residence and that his counsel was ineffective for failing to move to suppress the evidence obtained as a result. We hold that Defendant has made a prima facie showing of ineffective assistance of counsel based on his counsel's failure to move to suppress evidence gained from the warrantless entry. We reverse Defendant's conviction and remand for a new trial.

The officer allegedly extended the stop and defense counsel at trial didn’t move to suppress. Because the facts aren’t clear that the motion probably would have been granted, defense counsel wasn’t ineffective. State v. Walker, 824 N.W.2d 561 (Iowa App. 2012).*

Permalink 07:21:20 am, by fourth, 221 words, 361 views   English (US)
Categories: General

2 TN cases on their "certified question for appeal"

Knock-and-talk entries could still lead to an entry on exigent circumstances. The failure of the defense to mention exigency in the motions below means that the certified question for appeal might not be dispositive of the case. Therefore, appeal dismissed under state law. State v. Ward, 2012 Tenn. Crim. App. LEXIS 907 (November 2, 2012).*

The same for State v. Finney, 2012 Tenn. Crim. App. LEXIS 908 (October 29, 2012):

In the instant appeal, the defendant's certified question is overbroad and non-specific. The defendant challenges the validity of an alleged search and an ensuing seizure but does not state the reasons she relied upon in the trial court. From our review of the defendant's brief and relevant transcripts we discover that the defendant argued in the trial court that: (1) the State did not have the authority to search the defendant's vehicle simply because it had entered State property, and (2) the consent given by the defendant to the search of her purse was involuntary because no reasonable person [*9] would have felt free to leave or to decline such consent after having been ordered to exit the vehicle. These claims are not frivolous on their face.

However, the certified question reserved by the defendant in the trial court, as phrased, does not include the "reasons relied upon by defendant in the trial court at the suppression hearing" as required by Preston. ...

Permalink 07:11:36 am, by fourth, 141 words, 410 views   English (US)
Categories: General

D.Mont.: Authorized driver of a rental car has standing

The authorized driver of a rental car has standing. The stop was prolonged unreasonably because the officer for some reason refused to listen to the occupants that he was looking at the wrong rental agreement and questioning them about it. The consent thereafter was not voluntary. United States v. Ma, 2012 U.S. Dist. LEXIS 157247 (D. Mont. November 1, 2012).*

Plaintiff’s suit against the government is barred by his guilty plea which admits probable cause. Rankin v. United States, 2012 U.S. Dist. LEXIS 156034 (S.D. Miss. October 31, 2012).*

Plaintiff was on probation and had his person and car searched when he made a report. His § 1983 case was subject to Delaware’s two year SOL, and he filed outside the time. He knew that he was subjected to the search and what was taken, so it accrued then. Woodson v. Payton, 503 Fed. Appx. 110 (3d Cir. 2012).*

Permalink 06:42:52 am, by fourth, 508 words, 355 views   English (US)
Categories: General

TN: Ex parte DR court order excluding defendant from premises and changed locks meant no standing

Defendant was excluded from the house searched by an ex parte order of the domestic relations court and the locks had been changed. The fact he had a deed giving him an interest in the property was not determinative, and he had no standing to challenge the search of the house. State v. Cannon, 2012 Tenn. Crim. App. LEXIS 900 (October 30, 2012)

The defendant's first challenge to the trial court's conclusion that she had no standing to challenge the searches is that the pending divorce action between the parties, and the accompanying ex parte order granting the victim exclusive possession of their former marital residence, abated with his death. However, even assuming the defendant is correct in this assertion, the operation of civil law is not dispositive of the Fourth Amendment inquiry. As our Supreme Court has explained, "[i]n defining the scope of [Fourth Amendment protections], we adhere to the view expressed in [prior] cases that arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control." Rakas, 439 U.S. at 143. Rather, "'(n)o one circumstance is talismanic to the Rakas inquiry.'" Turnbill, 640 S.W.2d at 46 (quoting United States v. Haydel, 649 F.2d 1152, 1154-1155 (5th Cir. 1981)).

The defendant also directs our attention to the fact that the victim had surrendered his interest in the marital home to the defendant via a quit claim deed in 2005, and consequently, the defendant was the sole title holder of record of the home at the time of the searches. The defendant further directs our attention to evidence in the record that the defendant and the victim were engaged in an "on-again, off-again" relationship during the months preceding the murder, that they were attempting to reconcile at the time of the victim's death, and that the defendant stored some of her clothing at the house. While these facts standing alone might tend to favor the defendant, they are insufficient to establish a reasonable expectation of privacy in the residence when viewed in the context of the record as a whole. At most, they establish that the defendant had an ownership interest in the property searched and a subjective expectation of privacy. However, mere title "does not establish a privacy interest in property, State v. Smith, 656 S.W.2d 882, 887 (Tenn. Crim. App. 1983), and these two factors must be balanced against the remaining Turnbull and other relevant factors.

A person who does not live at a residence and who has no key to a residence usually has no reasonable expectation of privacy in that residence. See State v. Transou, 928 S.W.2d 949, 958 (Tenn. Crim. App. 1996). It is undisputed that the defendant lived in a separate location—an apartment located approximately one-half of a mile from the residence at issue. Moreover, the defendant has failed to direct our attention to any clear evidence in the record that supports her claim that she still had a key to the residence that functioned after (as record testimony reflects) the victim had the locks changed following her departure on May 5, 2008.

Permalink 12:39:04 am, by fourth, 226 words, 452 views   English (US)
Categories: General

Jonathan Turley: "The Watering Down of the Fourth Amendment"

Jonathan Turley: The Watering Down of the Fourth Amendment by Lawrence E. Rafferty (guest blogger):

We all know or should know the Fourth Amendment and how it protects all citizens from an illegal search and seizure of our property and person. “‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’" Cornell Law

Over the years, this valuable right has been watered down. Recently, the Roberts Court heard arguments in a case that did not get much media attention. That case involved a man who was arrested and detained after a traffic stop just because he had been in an apartment that the police had just exercised a search warrant. The name of the case is Bailey v. United States and oral arguments in front of the Supreme Court were heard on November 1st, 2012. Bailey v. United States. The narrow issue that the Supreme Court is deciding is whether an individual can be detained by the police merely because he recently left a residence before the police executed a search warrant at that location. Sounds like a no brainer, doesn’t it?

Permalink 12:26:03 am, by fourth, 167 words, 339 views   English (US)
Categories: General

W.D.La.: Threat to use of a Taser to get defendant to ground was not unreasonable

Police were investigating regular interstate shipment of drugs, and defendant was suspected of picking up one of the packages. Defendant fled from a traffic stop, and the officer was able to confront him with a Taser, ordering him to the ground. That was not unreasonable. United States v. Clement, 2012 U.S. Dist. LEXIS 157814 (W.D. La. October 11, 2012)*:

Using some force on a subject, pointing a weapon at a suspect and handcuffing a suspect, whether singly or in combination, does not automatically convert an investigatory detention into an arrest requiring probable cause. Campbell, 178 F.3d at 349 citing Sanders, 994 F.2d at 206. This is particularly the case when officers are investigating drug transactions where safety may be a concern, as drugs and firearms are commonly found in connection with each other. See United States v. Majors, 328 F.3d 791, 795 (5th Cir. 2003) ("[F]irearms are tools of the trade for those engaged in illegal drug activities." (internal citations and quotation marks omitted); United States v. Coleman, 969 F.2d 126, 132 fn. 20 (5th Cir. 1992).

Permalink 12:02:50 am, by fourth, 185 words, 402 views   English (US)
Categories: General

W.D.Wash.: Moving a prisoner from one unit to another is not a Fourth Amendment claim without unreasonable conduct

The fact the U.S. Marshals transferred plaintiff from one jail to another in pretrial detention did not state a Fourth Amendment claim for an unreasonable seizure without alleging a lot more not even present. Vega v. United States, 2012 U.S. Dist. LEXIS 157102 (W.D. Wash. November 1, 2012).*

Defense counsel was not ineffective for not moving to suppress the stop in this case because there was at least a technical violation of the traffic code, and that justified the stop. “In light of the holding of Mosley, the stop was lawful because a traffic infraction can be used as a pretext for investigation into the drug activity. Mosley, 454 F.3d at 252. ... ‘[C]ounsel cannot be deemed ineffective for failing to raise a meritless claim.’ ...” Ferguson v. United States, 2012 U.S. Dist. LEXIS 157341 (W.D. Pa. November 2, 2012).*

That defendant had pictures of a naked child not his own was PC for child pornography at least under Pennslyvania law. The fact a parent might have an innocent picture of his or her own child is different. United States v. Kofalt, 2012 U.S. Dist. LEXIS 157349 (W.D. Pa. November 2, 2012).*

11/04/12

Permalink 03:02:51 pm, by fourth, 161 words, 379 views   English (US)
Categories: General

W.D.Wis.: The fact there were two frisks because the second officer didn't know of the first didn't make it unlawful

Defendant was with four men, one of whom was wanted and in a high crime area. It was not unreasonable to order all four to the ground so the lone officer at the scene could control it. He was frisked quickly by the first officer there, and another showed up and subjected him to another frisk finding drugs. United States v. Howard, 2012 U.S. Dist. LEXIS 157691 (W.D. Wis. October 22, 2012),* adopted 2012 U.S. Dist. LEXIS 157691 (W.D. Wis. November 2, 2012).*

Reaching over the console during a stop for a seatbelt violation is not a furtive gesture warranting a patdown. Nothing else suggested criminal conduct. Grantham v. City of Tuscaloosa, 2012 Ala. Crim. App. LEXIS 89 (November 2, 2012).*

A citizen informant in a bar told the officer that the defendant was going to get in a particular truck and drive, and he was “wasted” drunk. The face-to-face meeting with predictors that all proved true was reasonable suspicion for a stop. Venegas v. State, 2012 WY 136, 287 P.3d 746 (2012).*

Permalink 02:53:00 pm, by fourth, 108 words, 375 views   English (US)
Categories: General

The Hill: "Police drones prompt privacy concerns"

The Hill: Police drones prompt privacy concerns by Brendan Sasso:

Drones are well-known for their ability to hunt down suspected terrorists abroad, but they have also increasingly become a popular tool of police departments around the country.

Drones are cheaper to build and fly than helicopters, making them a cost-effective option for police departments looking to gain a bird's eye view of a scene. But privacy groups are sounding alarm that there aren't enough legal safeguards in place to prevent drones from being used for mass surveillance.

The privacy groups are pushing Congress to pass a law that would set nationwide restrictions on how police can use drones.

Permalink 02:47:40 pm, by fourth, 84 words, 406 views   English (US)
Categories: General

WaPo: "Airport security checks are vulnerable to fake boarding passes, experts warn"

Security Theater: WaPo: Airport security checks are vulnerable to fake boarding passes, experts warn by Astrid Riecken:

More than 11 years after the Sept. 11 terrorist attacks, it remains possible to use fake boarding passes to get through airport security checks, according to new evidence from security researchers and official documents.

The security vulnerabilities could allow terrorists or others on “no-fly” lists to pass through airport checkpoints with fraudulent passes and proceed through expedited screening. They could even allow them to board planes, security analysts warn.

Permalink 08:59:43 am, by fourth, 242 words, 476 views   English (US)
Categories: General

OH8: Spousal testimonial privilege did not bar the defendant’s wife from being the CI

Spousal testimonial privilege did not bar the defendant’s wife from being the CI in a search warrant affidavit. State v. Fairfield, 2012 Ohio 5060, 2012 Ohio App. LEXIS 4428 (8th Dist. November 1, 2012):

[*P15] At all times in the affidavit, any reference to the CRI is to Fairfield's wife. Fairfield contends that his CRI-wife could not provide information in support of the warrant because it violated the spousal privilege in violation of R.C. 2945.42, concerning the competency of a witness, and R.C. 2317.02, regarding privileged communications. Both statutes state that a husband and CRI-wife "shall not testify" concerning communications made to each other or regarding an act done in the presence of the other, during coverture, unless the communication or act was done in the known presence of a third person.

[*P16] The court in State v. Jaschik, 85 Ohio App.3d 589, 620 N.E.2d 883 (11th Dist.1993), addressed an identical situation. In Jaschik, the CRI-wife told police that her husband abused drugs and had weapons at the home. Based on the information she provided, the police obtained a search warrant for the marital home where weapons were found. The court in Jaschik concluded that the prohibition against "testifying" against a spouse applied to trials and not search warrants because warrants are used to aid in the investigation process and are ancillary to the criminal proceedings. We agree. Although the CRI-wife would not be permitted to testify at trial, she could provide information in support of the investigation.

Permalink 08:46:27 am, by fourth, 274 words, 4020 views   English (US)
Categories: General

CA10: Witness's refusal to answer questions did not justify arrest, and there was no qualified immunity because state law settled

Plaintiff’s refusal to answer questions as a witness at the scene of a hit-and-run was not clearly an obstruction of an officer under Colorado law, so his arrest was without probable cause, and any reasonable officer should have known it. Kaufman v. Higgs, 11-1390 (10th Cir. October 23, 2012), revg Kaufman v. Higgs, 2011 U.S. Dist. LEXIS 83609 (D. Colo. July 29, 2011) (posted here):

... Refusal to answer questions during a consensual encounter, expressed by silence and assertion of “privilege,” is not an “obstacle” as the term is used in the statute.

. . .

An “obstacle” is “a thing that blocks one’s way or prevents or hinders progress.” Oxford New English Dictionary 1211 (3d ed.). Silence accompanied by an explanation of the basis for that silence does not obstruct anything. In fact, it is hardly “a thing” at all. It is a null action; it simply maintains the status quo. Mr. Kaufman’s silence here did nothing to the police’s investigative efforts; it allowed them to continue unimpeded. They were able to continue putting questions to Mr. Kaufman, they could have sought out other members of Mr. Kaufman’s family for questioning, and they could have even sought to compel Mr. Kaufman to answer their inquiries with a grand jury subpoena.

. . .

C. Was there “arguable probable cause” for the arrest?

No reasonable officer could have construed Colorado’s obstruction statute as criminalizing the choice to remain silent when faced with questions the answers to which might be incriminating. Even if the text of the obstruction statute were ambiguous (and it is not), the Colorado Supreme Court foreclosed the Defendants’ interpretation with its opinion in Dempsey.

h/t: a reader

Permalink 08:40:38 am, by fourth, 354 words, 358 views   English (US)
Categories: General

TX8: Defendant's refusal to consent to a search of his house while consenting to a search of his business showed voluntariness

Defendant was found to have voluntarily consented to a search of his business. Officers said that they did not have a search warrant, and he said “go ahead.” He refused consent to search his house, and that showed voluntariness. Uriel-Ramirez v. State, 385 S.W.3d 687 (Tex. App. – El Paso 2012).

Defendant was the subject of an encounter at the Baton Rogue Greyhound station over whether he was a U.S. citizen. The court finds the encounter was consensual because it was administrative and not criminal. It took a while, but it was determined that defendant’s British identity was likely false and, by his own admission, he’d overstayed the 90 day visa by several years. United States v. Doe, 2012 U.S. Dist. LEXIS 156186 (W.D. La. October 1, 2012).*

Defendant was found to have consented to a search of his two cell phones at the Niagara Falls border crossing after he had been handcuffed and detained at the border and MDMA had been found in the car. The court [wisely] declines to decide, at the urging of the government, that the cell phones could have been searched as a part of a border crossing. United States v. Ighodaro, 2012 U.S. Dist. LEXIS 156834 (W.D. N.Y. July 5, 2012).*

Defense counsel was not ineffective for the decision to allow defendant to cooperate by further interrogation and consenting to searches. When defendant turned himself in, counsel-less, he admitted the killing, said it was self-defense, and already admitted to hiding the body. Woods v. State, 291 Ga. 804, 733 S.E.2d 730 (2012).*

A storage unit operator called the police to complain that somebody was living in a storage unit contrary to the rental terms, thereby trespassing. That gave the officers reasonable suspicion when they found defendant living in one. His admission he had marijuana on him was only more. Clark v. State, 2012 Ind. App. LEXIS 547 (October 31, 2012).*

Officers on drug patrol were looking for people who had sold them drugs a few weeks prior. When they saw defendant, that was reasonable suspicion. State v. Gibson, 103 So. 3d 641 (La.App. 5 Cir. 2012).*

Crossing the centerline justified the stop. State v. Vinson, 400 S.C. 347, 734 S.E.2d 182 (App. 2012).*

Permalink 07:25:24 am, by fourth, 223 words, 420 views   English (US)
Categories: General

D.Colo.: Roadblock 15 minutes after bank robbery stopping 20 cars based on GPS location was reasonable

Officers gave chase to a bank robber who was carrying a GPS in a bait pack of money. When the package stopped moving, it was in one of 20 cars. Considering the gravity of the situation, stopping all 20 at a roadblock was reasonable. It was not constitutionally required for the officers to further attempt to narrow down the potential vehicles involved. United States v. Paetsch, 900 F. Supp. 2d 1202 (D. Colo. 2012):

Under the particular facts and circumstances of this case, the Court holds that the officers' initial stop of the twenty vehicles was reasonable, and therefore did not violate the Fourth Amendment. Applying the statement of law cited immediately above from Edmond, the roadblock here was, without a doubt, designed "to catch a dangerous criminal ...." Edmond, 531 U.S. at 44. At the time the 20 vehicles were detained, the Aurora Police Department was seeking an armed individual whom they knew had robbed a bank with the use of a visible handgun, clearly designed to instill fear in the individuals in the bank, and creating the potential for a fatal shooting at the bank. In the Court's view it was entirely reasonable for the officers to assume that the robber continued to be armed and dangerous, especially given the fact that the mass traffic stop was effected less than 15 minutes after the bank robbery itself had taken place.

Permalink 07:05:48 am, by fourth, 566 words, 433 views   English (US)
Categories: General

C.D.Ill.: In a computer search warrant for passport fraud, looking at video files violated the Fourth Amendment

Computer technology being what it is, it is well known now that searches can be confined to the scope of search provided for by the warrant. Here, the computer search warrant was for evidence of passport and identity theft, and there is no reason why video files had to be rummaged through. That violated the scope of the warrant and the Fourth Amendment. The motion to reconsider prior denial of the motion to suppress is granted, as is the motion to suppress. United States v. Schlingloff, 2012 U.S. Dist. LEXIS 157272 (C.D. Ill. October 23, 2012):

By opening the "Vicky" files flagged by the KFF alert, McNamee knew or should have known that those files would be outside the scope of the warrant to search for evidence of passport fraud or identity theft, particularly as the warrant did not specifically refer to evidence found in video files. In this respect, the facts of this case are distinguishable from either United States v. Burgess, 573 F.3d 1078, 1092 (10th Cir. 2009) or United States v. Wong, 334 F.3d 821 (9th Cir. 2003), both of which are cited favorably in Mann, where the files were opened inadvertently in the normal course of the search.

Additionally, in light of the admitted ability to confine the FTK search by not enabling the KFF filter for child pornography alerts, the Court finds that Agent McNamee took an affirmative additional step to enable the KFF alerts that would identify known child pornography files as part of his search for evidence of passport fraud or identity theft. In a case where the professed subject matter sought in the search bore no resemblance to child pornography, it is difficult to construe this as anything other than a deliberate expansion of the scope of the warrant, or at the very least, an affirmative step that effectively did so.

Given the ever increasing state of technology and consequently, technology related crimes, the Court finds that this issue is not going to go away, and in fact, will likely become more prevalent and finely contoured. Digital images or files can be located nearly anywhere on a computer and "may be manipulated to hide their true contents." 592 F.3d at 782-83, citing United States v. Hill, 459 F.3d 966, 978 (9th Cir. 2006). Accordingly, more comprehensive and systematic searches have been found to be reasonable. See United States v. Grimmett, 439 F.3d 1263, 1270 (10th Cir. 1006)(finding that a computer search may be as extensive as reasonably required to locate the items described in the warrant.) Nevertheless, it is also important to note that there is normally no fear of degradation or dissipation of evidence or a rapidly evolving situation requiring the need to "shoot from the hip" in examining seized computer files without a proper warrant. United States v. Seiver, 692 F.3d 774, 777 (7th Cir. 2012). In fact, Judge Posner recently noted that the doctrine of staleness has taken on new contours as a result of technological advancements and the importance of employing a "realistic understanding of modern computer technology" when evaluating Fourth Amendment challenges to computer searches. Id., at 778.

The promise of the Fourth Amendment to be free from unreasonable searches and seizures contemplates a warrant that sets forth with specificity the area to be searched and the subject matter of the search. So if a warrant authorizes an officer to look in all files on a computer, should the courts care how it is done? This Court believes so.

11/03/12

Permalink 03:04:06 pm, by fourth, 118 words, 395 views   English (US)
Categories: General

CA3: SOL for search § 1983 claim starts when plaintiff knows it occurred

Statute of limitations for plaintiff prison inmate’s § 1983 complaint for a wrongful search began when he knew the search occurred. Here, it was time barred when filed. Woodson v. Payton, 2012 U.S. App. LEXIS 22579 (3d Cir. November 2, 2012).*

Failure to intervene instruction from the plaintiff was wrong on the law, but he can’t complain on appeal. Sanchez v. City of Chicago, 700 F.3d 919 (7th Cir. November 2, 2012).*

A parent sued the defendant school board under the Fourth Amendment for giving the child an H1-N1 shot. Also, “Plaintiffs' Complaint did not come close to meeting these rigorous standards” of deliberate indifference or shocking the conscience. B.A.B. v. Bd. of Educ. of St. Louis, 698 F.3d 1037 (8th Cir. 2012).*

Permalink 02:35:23 pm, by fourth, 328 words, 377 views   English (US)
Categories: General

Reason.com: "Why a Sensitive Dog Is an Evidence-Impaired Cop's Best Friend"

Reason.com: Why a Sensitive Dog Is an Evidence-Impaired Cop's Best Friend by Jacob Sullum:

On Monday I noted the 2011 Chicago Tribune analysis of data from suburban police departments that found vehicle searches justified by a dog's alert failed to turn up drugs or drug paraphernalia 56 percent of the time. A 2006 study by the New South Wales Ombudsman in Australia looked at more than 10,000 searches triggered by dog alerts and discovered that 74 percent of them found no illegal drugs. In other words, as the National Association of Criminal Defense Lawyers (NACDL) and the American Civil Liberties Union (ACLU) note in their Harris brief, "any given alert was almost three times more likely to be a false alert than an accurate one." More-recent data from New South Wales indicate an even higher error rate: 80 percent.

The NACDL and the ACLU also describe a 1984 operation in which Florida state police stopped about 1,330 vehicles at roadblocks and walked dogs around them. If one dog alerted, another was brought in, and vehicles were searched only if both dogs indicated the presence of illegal drugs. That happened 28 times, but those searches yielded just one drug arrest. "Despite the requirement that two dogs alert before a search," the NACDL/ACLU brief notes, "police found illegal narcotics sufficient to justify an arrest in only 4% of cars searched," meaning "the likelihood of a false alert was approximately 96%." With impressive chutzpah, Florida's lawyers claim "this example at most shows a 'false' alert rate under 2%." You see what they did there? Twenty-seven false alerts divided by 1,330 cars equals 2 percent. But the relevant question is not the percentage of vehicle stops that resulted in a false alert; it is the percentage of alerts (in this case, double alerts) that turned out to be false. For purposes of probable cause, we want to know the likelihood that a search triggered by a dog's alert will find drugs. In this case it was 4 percent—not, as Florida's tricky calculation implies, 98 percent.

Permalink 02:20:50 pm, by fourth, 16 words, 378 views   English (US)
Categories: General

Coast Guard Boardings and Your Fourth Amendment Rights, Part 2-3

SailFeed.com: Coast Guard Boardings and Your Fourth Amendment Rights, Part 2 & Part 3 by Clark Beek

11/02/12

Permalink 05:29:37 pm, by fourth, 225 words, 592 views   English (US)
Categories: General

CA1: Illegal search for IMSI number on phone was harmless

The constitutionality of the government’s warrantless obtaining the International Mobile Subscriber Identity (IMSI) number from defendant’s cell phones was a question that did not have to be decided because it was harmless beyond a reasonable doubt. The calls on the phone were obtained on the phone after that. The government already had the phone of the co-defendant and had the calls from that to the defendant. “We cannot imagine that the jury would have rendered a different verdict in the absence of the one, relatively minor, piece of evidence derived exclusively from the retrieval of Green's IMSI number: namely, that the particular phone he was carrying on the day he was arrested was assigned telephone number (954) 245-2759. We therefore find beyond a reasonable doubt that any error here did not contribute to the verdict, see Chapman, 386 U.S. at 24, and we leave the Fourth Amendment question for another day.” United States v. Green, 698 F.3d 48 (1st Cir. 2012).*

Defendant had no standing to challenge the obtaining information from the cell phone at issue. It wasn’t his, and he previously sought to distance himself from the phone. On the motion to suppress, he was pressed about his possession of the phone and he wouldn’t go there. Therefore, he had no standing. United States v. Cannon, 2012 U.S. Dist. LEXIS 156668 (D. S.C. November 1, 2012).*

Permalink 12:20:55 pm, by fourth, 461 words, 509 views   English (US)
Categories: General

OH: It does not violate the Fourth Amendment for the State of Ohio to keep the DNA of a person acquitted and then use it later

It does not violate the Fourth Amendment for the State of Ohio to keep the DNA of a person acquitted and then use it later. State v. Emerson, 2012 Ohio 5047, 134 Ohio St. 3d 191, 2012 Ohio LEXIS 2630 (Ohio November 1, 2012):

{¶ 1} There are two issues presented in this case. First, when a sample of a person’s DNA is lawfully obtained by the state during the course of a criminal investigation but the person is acquitted of that crime, does that person have standing to object under the Fourth Amendment to the U.S. Constitution to the retention by the state of the DNA profile obtained from that sample or its use in a subsequent criminal investigation? Second, is the state authorized to retain and subsequently use a DNA profile when the DNA sample was lawfully taken from a person during a criminal investigation, but the person was acquitted?

{¶ 2} For the reasons that follow, we conclude that a person does not have standing to object to the retention of his or her DNA profile or the profile’s use in a subsequent criminal investigation, and the state is authorized to retain the DNA profile and to use it in a subsequent investigation even though the profile was obtained from a sample taken during the investigation of a crime of which the person was acquitted. We accordingly affirm the judgment of the court of appeals.

. . .

{¶ 30} There is no support in the CODIS Methods Manual for appellant’s position. The manual has no provision for the removal of a DNA profile of an individual acquitted at trial. Section 17.6 sets forth the basis for expunging a DNA profile—a conviction being overturned on appeal or a sample taken in error—and the procedures that need to be followed. However, section 17.6 is not self-executing. There is no mechanism set forth in the manual by which the state is automatically notified that a person’s conviction has been overturned, requiring the profile of the acquitted person to be removed. Instead, the requirement of going forward is on the exonerated individual to notify CODIS that the conviction has been overturned and to seek expungement of the DNA profile. Appellant failed to do this.

{¶ 31} There is no legislative requirement that DNA profiles obtained from lawfully obtained DNA samples be removed from CODIS on the state’s initiative when the subject of the profile is acquitted at trial, and we will not create such a requirement. “Exclusion of extremely valuable evidence in crimes that often leave little other trace is a major social cost” and “the potential for abuse in the future is not sufficiently clear to warrant adopting a rule excluding evidence from the database on the ground that it was obtained or retained beyond the authorized classifications.” Smith, 744 N.E.2d at 442.

11/01/12

Permalink 06:25:19 pm, by fourth, 130 words, 440 views   English (US)
Categories: General

N.D.Ohio: Search of defendant’s detached garage was permissible under a search warrant for the house

The court declines to view each paragraph of the affidavit separately because it has to consider the totality of the circumstances. On the totality, there is probable cause. A search of defendant’s detached garage was permissible under a search warrant for the house. United States v. Green, 2012 U.S. Dist. LEXIS 156068 (N.D. Ohio October 31, 2012).*

Four men went into a house when a police showed up in the neighborhood. They could see a gun in defendant’s waistband, and he was last in. That was a furtive movement first, and reaching for a gun was probable cause. The officer was acting reasonably giving pursuit and then stopping for the gun when it was discarded in flight through the house. State v. Gibson, 2012 La. App. LEXIS 1354 (La. App. 5 Cir. October 30, 2012).*

Permalink 06:09:45 pm, by fourth, 501 words, 582 views   English (US)
Categories: General

MO: Inventory was pretext: search too intense, officer wrote nothing down, video of search showed no effective inventory

Removing the gearshift boot from a car as a part of an inventory search showed it was really a criminal search. Also, when the officer was conducting the inventory, she had no pen and paper in hand suggesting that there was no inventory. The video of the inventory process also was relied upon. State v. Williams, 382 S.W.3d 232 (Mo. App. 2012):

Although we do not have the inventory report itself, from Officer Laffoon's cross-examination we know that she also failed to document all of the valuable property found within the vehicle. According to Officer Laffoon's testimony, and as depicted in the video recording, two cell phones found in the vehicle were returned to Williams. The Kansas City Police Department inventory policy provides that "[p]roperty other than evidence and contraband may be released at the scene by the officer to a responsible person. Release information on the reverse side of the Physical Evidence/Property Inventory Report, Form 236 P.D., will be completed prior to releasing the property." Despite the explicit requirement to document the release of property to third parties, Officer Laffoon admitted on cross-examination that "no, it doesn't look like [the cell phones] ended up being listed on there."

We also note that the dashboard video recording makes clear that Officer Laffoon "did not have a pen, [and] did not write anything down" as she conducted her search. United States v. Garcia-Medina, No. 2:11-CR-545-TC, 2012 U.S. Dist. LEXIS 80620, 2012 WL 23597765, at *4 (D. Utah Aug. 20, 2012). Although Officer Laffoon told Officer Henry that she should be the only person physically searching the vehicle's interior, she did not complete the inventory form. According to Officer Laffoon, Officer Henry completed the form, "[m]ore than likely" based on what she told him. The video recording reflects that Officer Henry did not ask Officer Laffoon whether she had Tow-In reports in her patrol car until fifteen minutes after the search had begun. The fact that Officer Laffoon had no device to actually document the property she was uncovering, and that fifteen minutes elapsed before Officer Henry began the process of documenting whatever he listed, are additional factors indicating that this was not a true inventory.

Officer Laffoon's failure to completely and accurately document the property found in Williams' vehicle as required by the Kansas City Police Department inventory policy, and the behavior indicating that her objective was not to prepare an exhaustive property listing, are highly significant in determining whether this was a bona fide inventory search. "The policy or practice governing inventory searches should be designed to produce an inventory.'" Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990) (emphasis added). The underlying purpose of an inventory search is (or at least should be) to produce a report documenting the nature, and condition, of property being impounded, to protect the police department from spurious claims of lost or damaged property. Investigating officers' failure to properly record the property they find is a significant consideration in determining the bona fides of the inventory.

Permalink 05:29:19 pm, by fourth, 122 words, 352 views   English (US)
Categories: General

E.D.Pa.: Consent while police unlawfully in the consenter's house not valid

The court concludes that the officers are not believable and the officers were searching defendant’s apartment without a warrant or exigent circumstances when they obtained his consent which could not be voluntary. United States v. Johnson, 2012 U.S. Dist. LEXIS 155710 (E.D. Pa. October 31, 2012).

Notice of forfeiture provides due process so there is no Bivens claim for such forfeitures. Rankin v. United States, 2012 U.S. Dist. LEXIS 156034 (S.D. Miss. October 31, 2012).*

The SW was based on IP access to child pornography, and it was in somebody else’s name. That, however, does not invalidate the search warrant, and the cases defendant cites in his 2255 don’t support his claim. Ables v. United States, 2012 U.S. Dist. LEXIS 155220 (S.D. Ohio October 30, 2012).*

Permalink 01:52:26 pm, by fourth, 218 words, 464 views   English (US)
Categories: General

E.D.Ky.: In a drug trafficking case, it is a reasonable inference for an issuing magistrate that drugs and guns will be kept in the trafficker’s home

In a drug trafficking case, it is a reasonable inference for an issuing magistrate that drugs and guns will be kept in the trafficker’s home. United States v. Johnson, 2012 U.S. Dist. LEXIS 155885 (E.D. Ky. October 31, 2012), quoting United States v. Williams, 544 F.3d 683, 686 (6th Cir. 2008):

In a recent line of cases, we have held that an issuing judge may infer that drug traffickers use their homes to store drugs and otherwise further their drug trafficking. See, e.g., United States v. Miggins, 302 F.3d 384, 393-94 (6th Cir. 2002); see also United States v. Gunter, 266 Fed.Appx. 415, 419 (6th Cir. 2008) (unpublished decision) (noting that our precedents establish that there is a nexus between a drug dealer's criminal activity and the dealer's residence when there is reliable evidence connecting the criminal activity to the residence); United States v. Newton, 389 F.3d 631, 636 (6th Cir. 2004), vacated in part on other grounds, 546 U.S. 803, 126 S.Ct. 280, 163 L.Ed.2d 35 (2005) (holding that in cases involving drug traffickers engaged in "continuing operations," the "lack of a direct known link between the criminal activity and the residence[ ] becomes minimal"); United States v. Caicedo, 85 F.3d 1184, 1192-93 (6th Cir. 1996) (holding that there was probable cause based on an affidavit that stated, in the affiant's experience, many drug traffickers use their residences to conduct their drug trafficking activities). ...

Permalink 12:31:04 pm, by fourth, 263 words, 391 views   English (US)
Categories: General

D.Kan.: A "general statistical inquiry into the background of individual canine units" is discouraged

“[A] general statistical inquiry into the background of individual canine units” should be avoided by the courts. United States v. King, 2012 U.S. Dist. LEXIS 155647 (D. Kan. October 31, 2012):

The [Tenth Circuit] further cautioned against a general statistical inquiry into the background of individual canine units:

[I]t surely goes without saying that a drug dog's alert establishes probable cause only if that dog is reliable. But none of this means we mount a full-scale statistical inquisition into each dog's history. Instead, courts typically rely on the dog's certification as proof of its reliability. After all, it is safe to assume that canine professionals are better equipped than judges to say whether an individual dog is up to snuff. And beyond this, a dog's credentials provide a bright-line rule for when officers may rely on the dog's alerts – a far improvement over requiring them to guess whether the dog's performance will survive judicial scrutiny after the fact. Of course, if a credentialing organization proved to be a sham, its certification would no longer serve as proof of reliability. But the judicial task, we hold, is so limited: to assessing the reliability of the credentialing organization, not individual dogs. And in this case there is no suggestion that the California Narcotic Canine Association, the organization that credentialed the drug dog in this case, is all smoke and mirrors.

[United States v. Ludwidg, 641 F.3d 1243, 1251 (10th Cir. 2011)]. (emphasis added, citations omitted).

OK, so there is no defense to the alleged "well trained" drug dog?

Cop talk adopted by the court: Not "dog"; it's now "canine unit."

Permalink 12:27:02 am, by fourth, 178 words, 375 views   English (US)
Categories: General

AR: Reference to drug statute in SW for semen on sheets was a mere scrivener's error that could be ignored

A reference to the drug crimes statute in a search warrant was a mere scrivener’s error where the search warrant clearly was looking for semen on sheets. Magness v. State, 2012 Ark. App. 609, 2012 Ark. App. LEXIS 721 (October 31, 2012):

Appellant filed a motion to suppress the evidence seized during the search of his cabin based on his allegation that the warrant’s reference to section 5-64-401 in the description of the property to be seized rendered it defective. Highly technical attacks on search warrants are not favored because the success of such attacks could discourage law-enforcement officers from utilizing search warrants. [Moss v. State, 2011 Ark. App. 14, ___ S.W.3d ___.] Moreover, to uphold the validity of an affidavit made in support of a search warrant, it is not necessary that the affidavit be completely without inaccuracy as long as the inaccuracies are relatively minor when viewed in the context of the totality of the circumstances, including the affidavit taken as a whole and the weight of the testimony of the participants who procured and executed the search warrant. Moss, supra.

Permalink 12:02:57 am, by fourth, 147 words, 357 views   English (US)
Categories: General

Thursday in SCOTUS: Bailey argument

Atlantic.com: What the 'Bailey' Case May Reveal About Supreme Court Ideology by Daniel Epps:

Imagine that the police have a warrant to search a house. Could they detain you -- in handcuffs -- just because you happen to be driving away from that house before the search?

That's the issue in Bailey v. United States, which the Supreme Court will hear Thursday. (The case was originally scheduled for Tuesday, but umpire-in-Chief John Roberts declared a rainout due to Hurricane Sandy.)

Though the situation in Bailey is relatively rare, the way the Court decides the case could reveal a lot about the future of Fourth Amendment jurisprudence.

The case arose, like so many Fourth Amendment cases do these days, out of a narcotics investigation. Police got a tip that someone nicknamed "Polo" was selling drugs out of the basement apartment of a house in Islip, New York.

FourthAmendment.com

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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"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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