Archives for: November 2012, 16

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, 532 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.

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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."
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"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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