Archives for: November 2012, 26

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, 540 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).*

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by John Wesley Hall
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Little Rock, Arkansas
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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)
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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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  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (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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