Archives for: December 2012, 20


Permalink 06:54:00 pm, by fourth, 435 words, 669 views   English (US)
Categories: General

EFF: "Newly Released Drone Records Reveal Extensive Military Flights in US"

EFF: Newly Released Drone Records Reveal Extensive Military Flights in US:

View EFF's new Map of Domestic Drone Authorizations in a larger window.

Today [12/5] EFF posted several thousand pages of new drone license records and a new map that tracks the location of drone flights across the United States.

These records, received as a result of EFF’s Freedom of Information Act (FOIA) lawsuit against the Federal Aviation Administration (FAA), come from state and local law enforcement agencies, universities and—for the first time—three branches of the U.S. military: the Air Force, Marine Corps, and DARPA (Defense Advanced Research Projects Agency).

For the one in Arkansas, I copied this:

Governmental Body/Entity: North Little Rock Police Dept

Type of Drone: Rotomotion SR30 UAS helicopter

Status: Active

General Location of Drone Activity: Little Rock, AR

Stated objective/purpose of COA: Operation of the Rotomotion SR30 UAS helicopter in the National Airspace System over unpopulated areas of Lonoke County, Arkansas. The objective is to gather data regarding operation of UAS helicopters in the National Airspace System for future UAS helicopter operations in support of local law enforcement. Operation of the Rotomotion SR30 UAS helicopter below 400' AGL. All flight operations will be conducted south of Interstate 40. This is an unpopulated area of a company owned park consisting of parking areas and recreational areas. The operation will launch/recover from a fenced recreational area. Operations will be conducted only when the recreational areas are not in use. Flights will be conducted during daylight hours during optimal weather conditions. Flights will be limited to line of sight distances. Flight durations will not exceed sixty minutes in length. Flight crews will demonstrate flight planning, flight plan execution, change in flight path upon command by the observer to avoid simulated aircraft traffic, and recovery of the aircraft to the planned landing point. Emergency proceedures including manual control of the aircraft, recovery to a pre-planned emergency recovery point, and loss link proceedures will also be demonstrated.

Effective Dates: May 17, 2011-May 16, 2012 (COAs from 2008-2012)

Comments: "The Rotomotion SR30 is a small, economical, short endurance UA. Utilizing a helicopter platform, the SR30 houses one or two cameras in a pan/tilt camera mount. The system is designed to track objects of interest even when the helicopter nose is pointed away from the object. The SR30 can carry day zoom cameras, infrared cameras, or both simultaneously. As purchased, the aircraft is equipped with both day and infrared cameras. The aircraft is capable of fully autonomous flight with auto-takeoff and landing. Manual control is provided by a 2.4 GHz safety controller." ("North-Little-Rock-PD-2011_AIRCRAFT_SYSTEM.DOC")

Permalink 08:49:59 am, by fourth, 130 words, 800 views   English (US)
Categories: General

NC: Claim that officer sensed nervousness in driver while driving next to him was rejected

Stop was without justification; how could officer tell occupants of a car were nervous along side of them? This is no more than an "unparticularized suspicion or hunch." State v. Canty, __ N.C. App. __, 736 S.E.2d 532 (2012).*

Based on the testimony at the suppression hearing, a handyman had been given apparent authority to consent to an entry so that the police could enter on a knock-and-talk. Defendant then consented to a search. Briggs v. State, 2012 Ark. App. 692, 2012 Ark. App. LEXIS 812 (December 12, 2012).*

The officer stopping defendant’s car saw marijuana seeds and stems and a cut open cigar. He asked if there was more and it was produced. This was probable cause for a more intensive search under the automobile exception. State v. Carmichael, 2012 Ohio 5923, 2012 Ohio App. LEXIS 5103 (9th Dist. December 17, 2012).*

Permalink 08:36:13 am, by fourth, 124 words, 668 views   English (US)
Categories: General

OH12: Factor in consent here was defendant was not a “newcomer to the law”

Defendant’s consent was found valid on the totality, and factor to consider is that the defendant is not a “newcomer to the law.” State v. Smith, 2012 Ohio 5962, 2012 Ohio App. LEXIS 5112 (12th Dist. December 17, 2012).*

Defendant’s stop for reckless driving was justified on the facts, so his identity as an illegal is not suppressed. United States v. Rosas-Herrera, 499 Fed. Appx. 249 (4th Cir. 2012).*

There was probable cause on the totality for the seizure of cash from the front seat of defendant’s car. He was on a known drug corridor driving a rental car he was not authorized to drive, with a prior drug conviction, going to a town where he had no address to meet somebody. United States v. Julian, 501 Fed. Appx. 869 (11th Cir. 2012).*

Permalink 08:18:08 am, by fourth, 673 words, 1137 views   English (US)
Categories: General

CA5: Burning a dead man's car to coverup murder was Fourth Amendment violation

Aside from other crimes, a NOPD officer’s burning a dead man’s car to cover up murder during the aftermath of Katrina was a civil rights violation, too. United States v. McRae, 702 F.3d 806 (5th Cir. 2012):

This case tells one of the nightmarish stories that arose from Hurricane Katrina in 2005—the physical devastation, human diaspora, and struggle of the City to maintain some semblance of law and order, and, in the chaos, a horrific failure of law enforcement. The case also demonstrates again the axiom that a cover-up, with its domino effect, begets more tragedy than the crime. It indeed presents a grim vignette within the larger Katrina story, told here in terms of legal consequences.

The three appellant former policemen were convicted in the same trial—conducted from November 8 to December 9, 2010—largely on separate facts but all arising from the death of one citizen, Henry Glover. Thus, this opinion will set out the facts and the issues raised on appeal in three separate parts.

. . .

Importantly, the second superseding indictment charged McRae with seizing Tanner's car by burning it. McRae contends that he cannot have seized the car by burning it because the car had already been seized at that point: the car had been moved twice on the school property, and driven away from the school before it was burned. He argues that Tanner's possessory interest in the car had therefore already suffered meaningful interference. The government responds that the burning was merely the culmination of a course of conduct, all of which constitutes an unreasonable seizure. [This is reviewed for plain error.]

Although McRae's position is eminently logical, we do not think that the district court, in entering judgment based on this conviction, committed any error that is beyond reasonable dispute. Assuming that it is error to regard the burning of the car as a seizure, the error is not plain because the law neither clearly nor obviously limits the meaning of seizure to the initial moment of dispossession.

McRae correctly observes that some circuits, with respect to the seizure of property, limit the meaning of seizure to initial dispossession. See Lee v. City of Chicago, 330 F.3d 456, 466 (7th Cir. 2003); Fox v. Van Oosterum, 176 F.3d 342, 351 (6th Cir. 1999); United States v. Jakobetz, 955 F.2d 786, 802 (2d Cir. 1992). But at least one other circuit defines the seizure of property more broadly, to include a course of conduct that interferes with possessory interests. See Presley v. City of Charlottesville, 464 F.3d 480, 487-89 (4th Cir. 2006). McRae does not point to any precedent in this circuit staking a position in this split, and we are not aware of any. "Because this circuit's law remains unsettled and the other federal circuits have reached divergent conclusions on this issue . . . [McRae] cannot satisfy the second prong of the plain error test—that the error be clear under existing law." United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007).

With respect to seizures of the person, rather than property, the law is equally unclear, and the lack of clarity further undermines a contention of plain error in this case. We know that seizures of the person do not end at the initial moment of seizure. See Graham v. Connor, 490 U.S. 386, 394-96, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). How long the seizure of the person goes on, however, is not defined with precision in our circuit, and it is a question that divides other circuits. See Brothers v. Klevenhagen, 28 F.3d 452, 455-57 (5th Cir. 1994); Valencia v. Wiggins, 981 F.2d 1440, 1443-44 (5th Cir. 1993). The imprecision in describing the temporal quality of seizure in the context of seizures of the person discredits any argument that it is clear or obvious that a seizure is over at the moment of initial dispossession in this context—that is, seizure of property.

[Because of plain error review:] We hold that it is neither clear nor obvious that McRae's burning of Tanner's car could not constitute an unreasonable seizure under the Fourth Amendment, and we therefore affirm his conviction under count four of the second superseding indictment.

Permalink 07:58:32 am, by fourth, 215 words, 964 views   English (US)
Categories: General

NC: Even a mistake of law can be reasonable without violating the Fourth Amendment

Even a mistake of law can be reasonable without violating the Fourth Amendment, following United States v. Martin, 411 F.3d 998 (8th Cir. 2005). State v. Heien, 366 N.C. 271, 737 S.E.2d 351 (2012):

=> Read more!

Permalink 07:34:27 am, by fourth, 273 words, 1340 views   English (US)
Categories: General

PoliceOne:com: "Video: Women file suit over 'painful' roadside cavity search"

PoliceOne:com: Video: Women file suit over 'painful' roadside cavity search | Officers stated the women were acting strange and suspected marijuana was involved by Eric Nicholson, The Dallas Observer

DALLAS, Texas — On July 13, Angel Dobbs was driving her boyfriend's car north down the George Bush Turnpike when they were pulled over by state troopers. The troopers said they had spotted Dobbs throw a cigarette butt out the window.

According to a lawsuit filed by the Dobbs yesterday in federal court, the traffic stop soon took a different turn. One of the troopers, David Ferrell, took Angel Dobbs to a roadside field, where he peppered her with questions that quickly transitioned from general queries about where the pair was headed and to more pointed questions about whether they were transporting marijuana. He did the same with Ashley Dobbs. Both denied having any weed.

. . .

According to the lawsuit, Hellson's gloved hands went inside Dobbs' sweatpants and probed both front and back. Dobbs suffers from a skin condition called hidradenitis suppurativa that made the whole thing particularly painful. Without changing her gloves, Hellson performed an identical search on Ashley Dobbs, the suit claims.

When Angel Dobbs told Farrell she felt violated by the search, which had happened on a public roadway in full view of passersby, he told her it was justified by the odor of marijuana, which made it clear that "someone is a daily smoker in that car," according to the suit.

I filed a suit like this about 20 years ago in Arkansas involving a male strip searched on the side of a U.S. highway. The answer was a reasonable offer of judgment.

Permalink 12:12:39 am, by fourth, 233 words, 1324 views   English (US)
Categories: General

NY: Police can't query for guns without RS there might be one

During a traffic or pedestrian stop, an officer in New York must have reasonable suspicion to ask about whether a weapon is possessed. Officers already have the power to order occupants out of a car. People v. Garcia, 2012 NY Slip Op 08670, 20 N.Y.3d 317, 983 N.E.2d 259, 959 N.Y.S.2d 464 (2012):

... Moreover, the rule of Mimms and Robinson already guards against the unique danger of a partially concealed automobile occupant by allowing the officer to order occupants out of a car and readily observe their movements. Indeed, Mimms and Robinson place automobile occupants in the same position as pedestrians vis-à-vis police officers; the People's proposed rule, on the other hand, would create disparate degrees of constitutional protections based on an individual's mode of transport. Finally, by sanctioning, in the interest of safety, a suspicionless inquiry into whether the ocupants of a stopped vehicle have a weapon, we may open the door to less precise inquiries with potential to raise significant privacy concerns. We decline to introduce uncertainty into this area of the law when it is not necessary to do so. Whether the individual questioned is a pedestrian or an occupant of a vehicle, a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot.

See Court Limits Questioning of Motorists by the Police in the NYT.

Permalink 12:02:17 am, by fourth, 172 words, 1180 views   English (US)
Categories: General

TN: Exigency for warrantless entry can't be based on speculation

The police made a warrantless entry based on speculation of exigency. Their knowledge of actions in the home showed nothing out of the ordinary, too. State v. Tate, 2012 Tenn. Crim. App. LEXIS 1035 (December 17, 2012).

“Upon consideration of all which, the undersigned finds that from a totality of the evidence presented to Magistrate Elbon, there was ‘a fair probability that contraband or evidence of a crime’ would be found in the residence and attached building.” Accordingly, the SW affidavit was not so lacking that the good faith exception did not apply. United States v. Collins, 2012 U.S. Dist. LEXIS 178068 (N.D. W.Va. December 17, 2012).*

The occupants were suspected of being involved in a robbery from information from a CI. Their stop was for a loud exhaust, and the occupants had differing explanations of where they were going, they were nervous, and one had a knife. One was a convicted felon, and that was probable cause to search the glove compartment for a weapon. United States v. Hendrickson, 2012 U.S. Dist. LEXIS 178167 (D. Vt. December 17, 2012).*

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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

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Most recent SCOTUS cases:
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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    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
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  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"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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