Archives for: November 2012, 20

11/20/12

Permalink 12:50:18 pm, by fourth, 368 words, 1418 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, 1476 views   English (US)
Categories: General

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, 478 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, 431 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, 375 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.

FourthAmendment.com

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting
www.johnwesleyhall.com

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2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  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)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)


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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  DOJ Computer Search Manual (2009) (pdf)

  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

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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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