Archives for: November 2012, 04

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, 475 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, 4007 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.

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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2013-14 Term:
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  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

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

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

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  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
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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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