Archives for: December 2012, 28

12/28/12

Permalink 12:25:32 pm, by fourth, 361 words, 776 views   English (US)
Categories: General

Atlantic.com: "This Week's Senate Scandal: Scorn for the 4th Amendment"

Atlantic.com: This Week's Senate Scandal: Scorn for the 4th Amendment by Conor Friedersdor:

I haven't passed the bar, but I know a little bit about the 4th Amendment. Have you read it lately? "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," it states in plain English, "and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

That's all of it.

The landline in your house? The government needs a warrant to tap it. The letters in your mailbox? The government needs a warrant to read 'em. It's like the Framers said: probable cause is required.

Yet a text or an email, even one sent from your bed, is treated differently -- it's afforded much less protection from government snoops, even though we're increasingly going all digital in our communication.

Why?

Senator Rand Paul raised that question Thursday on the Senate floor. "We became lazy and haphazard in our vigilance," he told his colleagues during a debate about government surveillance. ....

Salon.com: Senate FISA vote inspiring display of bipartisan commitment to ignoring Fourth Amendment | Fiscal calamity? Who cares! Congress shows that they can still band together and vote for horrible things, by Alex Pareene:

Congressional dysfunction and extremism may yet plunge the nation into an entirely avoidable recession, but at least Americans will likely be able to sleep at night secure in the knowledge that our lawmakers at least sprang into action, at the last possible minute, to preserve the government’s right to constantly spy on everyone without telling anyone about it.

In all likelihood, the Senate will vote today to reauthorize the FISA Amendments Act for a few years, just before it was scheduled to expire. The House reauthorized it all the way back in September, but the world’s most deliberative body likes to take its time (plus Ron Wyden placed a hold on the bill until Senate leaders agreed to at least have a debate on proposed amendments to the Amendments).

Permalink 12:23:02 pm, by fourth, 59 words, 368 views   English (US)
Categories: General

TheHill.com: "Senate approves bill to reauthorize foreign surveillance programs"

TheHill.com: Senate approves bill to reauthorize foreign surveillance programs by Ramsey Cox :

The Senate on Friday approved a bill reauthorizing the Foreign Intelligence Surveillance Act (FISA) in a 73-23 vote.

The bill will extend for five years the ability of U.S. intelligence authorities to conduct surveillance of suspected terrorists overseas without first getting permission from a court.

Permalink 12:19:43 pm, by fourth, 91 words, 390 views   English (US)
Categories: General

Law.com: "Toyota settlement shines light on agency's proposed 'black box' rule"

Law.com: Toyota settlement shines light on agency's proposed 'black box' rule by Jenna Greene:

In the wake of Toyota Motor Corp.'s estimated $1.3 billion settlement involving claims of unintended acceleration, the National Highway Traffic Safety Administration continues to push for a rule that would require manufacturers to install "black boxes" in all new cars to record accident data.

The NHTSA points to its investigation of Toyota claims as one justification for the rule, which has triggered concerns about privacy, ownership of recorder data, and how the data will be used.

Permalink 12:17:40 am, by fourth, 165 words, 461 views   English (US)
Categories: General

IN: Second stop shortly after first was valid because of traffic offense

Defendant was stopped by an officer who was curious because defendant was towing a trailer, not the type normally towed by a large tractor trailer truck. Defendant didn’t have answers about all his travel. An EPIC query showed defendant was once involved in a large cash seizure in Michigan. The officer asked for consent, it was denied, and defendant was allowed to go. The officer radioed to other officers who followed defendant again and stopped him for two traffic offenses. Further reasonable suspicion developed, and a drug dog was called which alerted. Cocaine was found during the search, which was valid. The second stop was justified, and defendant doesn’t contest it. Austin v. State, 980 N.E.2d 429 (Ind. App. 2012).*

Stop based on the fact the high center brake light had one of two bulbs out was not illegal as a matter of law. During the stop, the officer could smell burnt marijuana in the car. Otey v. Commonwealth, 61 Va. App. 346, 735 S.E.2d 255 (2012).*

Permalink 12:11:21 am, by fourth, 506 words, 514 views   English (US)
Categories: General

FL1 disagrees with FL4: Color change of vehicle is not RS

In Florida, there is no way for an innocent owner to report a color change of a vehicle. The fact of a color change is innocent and alone cannot be reasonable suspicion. "We reverse the trial court's denial of appellant's motion to suppress and certify conflict with the Fourth District's opinion Aders v. State, 67 So. 3d 368 (Fla. 4th DCA 2011)." Van Teamer v. State, 108 So. 3d 664 (Fla. 1st DCA 2012):

=> Read more!

Permalink 12:03:31 am, by fourth, 144 words, 448 views   English (US)
Categories: General

IN: DUI supported search incident that produced beer bottles

Search incident of a car in a DUI case was justified by defendant’s furtive gesture as he was stopping, which turned out to be beer bottles. (Decided under Fourth Amendment and state constitution.) Smith v. State, 980 N.E.2d 346 (Ind. App. 2012).

“The Government has proved the taint of the illegal stop in January 2010 had dissipated before the confession in October 2010. While the agents did not apprise the Defendant of her Miranda rights between these events, the illegal stop is both temporally distant and causally distinct from the confession.” United States v. Ramos, 2012 U.S. Dist. LEXIS 181716 (D. Vt. December 26, 2012).*

Jones not retroactive for a 2254 habeas petitioner as a new rule of law, even if Fourth Amendment claims could be considered on habeas. Successor habeas denied. In re Kubacki, 2012 U.S. App. LEXIS 26319 (10th Cir. December 20, 2012). [Not on opinions page of Tenth Circuit's website.]

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