Archives for: December 2012, 18


Permalink 12:47:02 pm, by fourth, 227 words, 1284 views   English (US)
Categories: General "Armed task force to patrol streets / Police chief says citizens could be subject to ID checks" Armed task force to patrol streets / Police chief says citizens could be subject to ID checks by Ryan Saylor:

In response to a recent increase in crime, Paragould Mayor Mike Gaskill and Police Chief Todd Stovall offered residents at a town hall meeting Thursday night at West View Baptist Church what could be considered an extreme solution — armed officers patrolling the streets on foot.

Stovall told the group of almost 40 residents that beginning in 2013, the department would deploy a new street crimes unit to high crime areas on foot to take back the streets.

"[Police are] going to be in SWAT gear and have AR-15s around their neck," Stovall said. "If you're out walking, we're going to stop you, ask why you're out walking, check for your ID."

Stovall said while some people may be offended by the actions of his department, they should not be.

"We're going to do it to everybody," he said. "Criminals don't like being talked to."

The police chief is a fool who is obviously so untrained in the Fourth Amendment he has no qualified immunity. See Malley v. Briggs, 475 U.S. 335, 341 (1986): "As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law."

See also ArkansasTimes Blog late Tuesday.

Update: Clarification from the Paragould P.D.

Permalink 07:01:38 am, by fourth, 583 words, 2302 views   English (US)
Categories: General

CA4: Police officers get qualified immunity in Duke lacrosse civil case

In the Duke lacrosse case, on the Fourth Amendment malicious prosecution issue, police officers who told the prosecutor that the case was weak and presented him what exculpatory evidence they had were entitled to qualified immunity. Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012):

=> Read more!

Permalink 06:46:15 am, by fourth, 313 words, 1363 views   English (US)
Categories: General

C.D.Cal.: Just because e-mail SW was overbroad doesn't mean whole search is suppressed

Search warrant for e-mail was overbroad because non-searchable information was subject to search, too. Nevertheless, it was done in good faith so there is no suppression. United States v. Roy, 2012 U.S. Dist. LEXIS 177674 (C.D. Cal. December 13, 2012):

Defendant also moves to suppress the e-mail search warrant in this case, arguing that the search and seizure was unreasonable because the warrant was a general warrant and overbroad in scope. Few cases in the Ninth Circuit or elsewhere have addressed the standard of particularity that should be applied with respect to an e-mail search warrant. The cases that have addressed the issue, however, have held that the burden remains on the government to prove how the warrant application will segregate information regarding third parties from information relating to the defendant.

In this case, the Court holds that the government has not met its burden of setting forth the items to be seized with particularity. The information sought by the warrant lacks protocol that would affirmatively segregate the target information from information outside the scope of the warrant. The warrant is therefore overbroad.

The inquiry does not end there, however. Where the police did not act in bad faith, and as such, suppression of the evidence would not deter police misconduct, the district court, may, in its discretion, admit the evidence over the objection of the defendant. Illinois v. Gates, 462 U.S. 213 (1983). In fact, exclusion of the evidence is a last resort. Hudson v. Michigan, 547 U.S. 586 (2006).

In this case, the court finds that exclusion of the evidence would not be warranted. The seizure was reasonably conducted, and the evidence of criminal activity was properly seized. In executing the warrant, the investigating agents aptly followed the contours of the warrant. Consequently, the underlying justification for the exclusionary rule would not be served by excluding the e-mails, and accordingly, the Court denies defendant's motion to suppress.

Permalink 06:37:08 am, by fourth, 330 words, 1206 views   English (US)
Categories: General

TN: State showed compelling interest for DL roadblock

Defendant was stopped at a driver’s license check roadblock which found him DWI, and he was indicted as an habitual DWI offender. The state proved a compelling state interest in setting up this DL roadblock because nearly 14% of all fatal crashes in the state involved drivers with no valid DL. State v. Monk, 2012 Tenn. Crim. App. LEXIS 1022 (December 12, 2012):

The Hicks Court held that the "presence of a sufficiently compelling interest is necessary under Article I, section 7 before an examination of the other aspects of a roadblock may proceed." Hicks, 55 S.W.3d at 527. As we earlier noted, the State may not merely rely on its general interest in maintaining highway safety. Id. at 530. It must produce "some proof of the need to curb a substantial and imminent threat to the safety of motorists on public roads distinctly resulting from the conduct of unlicensed drivers."

The State provided statistics indicating that 13.9% of all fatal crashes statewide in 2008 involved drivers with revoked licenses, suspended licenses, or no license. Additional statistics revealed that 25.8% of the drivers involved in accidents between 2005 and 2009 in Sullivan County were charged with driver's license related charges. The Defendant complains that the State did not break down the charges to categories indicating if the driver was cited for driving on a revoked license, driving on a suspended license, or, as is the case here, driving after being declared a Habitual Motor Vehicle Offender. We do not think this distinction undermines the proof that approximately one fourth of the accidents in Sullivan County involved unlicensed drivers. The State has provided statistics in support of its contention that the roadblock is related to maintaining highway safety. These statistics provide individualized suspicion and support the conclusion that unlicensed drivers are an imminent threat to the safety of motorists on the public roads in Tennessee and, specifically, in Sullivan County. We conclude that the record does not preponderate against the trial court's finding that the State demonstrated a sufficiently grave public concern.

Permalink 06:30:49 am, by fourth, 77 words, 1123 views   English (US)
Categories: General

NPR: "Teenager's Faith At Odds With Locator Tags In School IDs"

NPR: Teenager's Faith At Odds With Locator Tags In School IDs by Wade Goodwyn:

A federal court in Texas on Monday will take up the case of a high-school student who refuses to wear her location-tracking school ID.

The 15-year-old sophomore says the ID badge, which has an embedded radio frequency identification tag, is a violation of her rights. The student, Andrea Hernandez, believes the ID is "the mark of the beast" from the Book of Revelation.

Permalink 06:20:36 am, by fourth, 125 words, 1274 views   English (US)
Categories: General

ABAJ: "Kagan Sees Privacy as One of Most Important Future Issues for Court"

ABAJ: Kagan Sees Privacy as One of Most Important Future Issues for Court by Debra Cassens Weiss:

Justice Elena Kagan highlighted a future important issue for the U.S. Supreme Court and reflected on a past high-profile remark in a speech on Thursday evening.

Kagan said privacy in a changing world is a big issue likely to come before the court, Politico reports. She spoke in a question and answer session at a Washington, D.C., synagogue.

Kagan said former Justice Louis Brandeis was aware of the importance of the issue, according to the Politico account. He “understood how new technologies interfere with privacy, which I think will be one of the most important issues before the court in the decades to come,” Kagan said.

Permalink 06:06:56 am, by fourth, 226 words, 937 views   English (US)
Categories: General

LA4: Tugging at one's pants belies a gun and can justify a frisk

The juvenile was with three others three minutes before curfew walking in the middle of the street. The officer told them to come over toward the police car so he could tell them to walk on the sidewalk, and he was also curious about where they lived since curfew was in minutes. The juvenile tugged at his pants like a gun was weighing them down, in the officer’s experience. That justified a patdown for the weapon that was found. State in the Interest of T.H., 2012 La. App. LEXIS 1645 (La.App. 4 Cir. December 12, 2012).

“Here, the officers did no more than they were authorized to do by Terry. The approach of the defendant, on a public street, by officers who wore no uniforms and therefore identified themselves by displaying their badges, and who neither displayed any weapons nor engaged in hostile or aggressive actions towards the defendant, did not impinge upon any constitutionally protected interest of the defendant.” Commonwealth v. Damelio, 83 Mass. App. Ct. 32 (December 14, 2012).*

Defendant was stopped for a traffic offense, and the officer asked for his DL and papers. Sitting on the seat next to the driver was a crumpled brown paper bag. The officer asked for the bag, and in it was cocaine. The turning over the bag was by consent, not a response to a command. State v. Milton, 104 So. 3d 414 (La. 2012).*

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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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)

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

"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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