Archives for: January 2013, 05


Permalink 10:20:05 am, by fourth, 156 words, 856 views   English (US)
Categories: General

OH7: Odor of marijuana about the person is PC for a search for drugs

There was a strong odor of marijuana coming from defendant’s car when it was stopped, and the officer got him out, and the odor was still on defendant’s person. A search of defendant’s person for drugs was justified. This was not a Terry search for weapons. State v. Abu-Enjeela, 2012 Ohio 6275, 2012 Ohio App. LEXIS 5445 (7th Dist. December 18, 2012).*

Pre-Jones GPS surveillance is saved by the Davis good faith exception. (The court engages in a long discussion of the rationale for those interested.) United States v. Guyton, 2013 U.S. Dist. LEXIS 817 (E.D. La. January 3, 2013).*

Defendant was stopped for crossing the street in the middle in a high crime area and then turning away when he saw police. The stop was valid with reasonable suspicion for avoiding the police, and the ensuing finding a warrant and then frisk producing a gun was valid, too. United States v. Boyles, 2012 U.S. Dist. LEXIS 183383 (W.D. Mo. November 21, 2012).*

Permalink 08:46:47 am, by fourth, 459 words, 971 views   English (US)
Categories: General

NPR on privacy yesterday

NPR yesterday:

Our Privacy Delusions (On the Media, "We all claim to want privacy online, but that desire is rarely reflected in our online behavior. OTM producer Sarah Abdurrahman looks into the futile attempts we make to protect our digital identities.")

The NCTC: Obama's "Pre-Crime Squad"? (On the Media, "Last March, the National Counterterrorism Center (NCTC) was granted unprecedented power to collect data on ordinary U.S. citizens, data like flight records or lists of casino employees. Critics have likened the NCTC to the 'Pre-Crime Squad' in the movie 'Minority Report.' Wall Street Journal reporter Julia Angwin talks with Bob about this dramatic shift in the intelligence community's power over US citizens.")

"If You’ve Got Nothing to Hide, You’ve Got Nothing to Fear" (On the Media, "Here's a common refrain in privacy discussions: 'If you’ve got nothing to hide, you’ve got nothing to fear.' There's also Google’s then-CEO Eric Schmidt famously saying: 'If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place.' Brooke speaks with George Washington University law professor Daniel Solove who says those types of arguments misunderstand privacy entirely.")

National Security Letters and Gag Orders (On the Media, "The most serious kind of subpoena - called a 'National Security Letter' - used to have a lifetime gag-order automatically attached. That is until Nicholas Merrill appealed his and won the right to talk about it. Despite 50,000 national security letters a year, there are only three organizations that have ever won the right to say they got one. In a segment that originally aired in January of 2011, Nick Merrill tells Bob why he's the exception and the rule.")

License Plate Readers and Your Privacy (On the Media, "Police car mounted license plate readers collect date, time and location information and are used by law enforcement around the country to help catch criminals. But when Minneapolis Star Tribune reporter Eric Roper filed a Freedom of Information request for information on his own car, he got a lot more than he bargained for. In a segment that originally aired in August of 2012, Bob talks to Roper about how Minneapolis police and agencies across the country deal with this potentially sensitive location information.")

The Art of Self-Surveillance (On the Media, "In 2002, artist and professor Hasan Elahi spent six months being interrogated off and on by the FBI as a suspected terrorist. In response to this experience, he created Tracking Transience, a website that makes his every move available to the FBI - and everybody else. In a segment that originally aired in November of 2011, Brooke talks to Elahi about the project.")

h/t Ivan G. Dominguez, NACDL Director of Public Affairs and Communications

Permalink 08:39:06 am, by fourth, 256 words, 651 views   English (US)
Categories: General

E.D.Tenn.: SW for house doesn't need to limit the rooms for search

Where there is probable cause as to a house, there is no reason to limit the search as to parts of it. Here, it was argued a bedroom should have been excluded. United States v. Pule, 2012 U.S. Dist. LEXIS 183316 (E.D. Tenn. July 5, 2012):

As argued by the government, when there is reliable information that drug trafficking is being conducted at or from a residence, "there is no reason for the warrant not to authorize a search of the entire house." United States v. Elder, Nos. 91-5605, 91-5606, 1992 WL 42346, at *3 (6th Cir. Mar. 3, 1992). If, however, officers knew or should have known that a building contains multiple "separate dwelling units," the officers are obligated to exclude from the warrant any units for which they lack probable cause to conduct a search. Maryland v. Garrison, 480 U.S. 79, 84-85 (1987). Here, however, Defendant has made no argument that his bedroom should have been excluded from the warrant when it was issued, so I FIND the warrant was properly issued and will turn to the issue of execution of the warrant.

[Note: As a functional matter, the defendant's argument would be impossible to enforce short of saying "only [suspect's] bedroom and common areas can be searched under this warrant." How can the police be expected to know the layout of the house? They can't. Also, for what it's worth, I've had drug cases were the drugs were kept in guest and kid's bedroom closets and those bedrooms were occupied at the time of the search. It just can't work in practice.]

Permalink 08:32:27 am, by fourth, 236 words, 651 views   English (US)
Categories: General

M.D.Ala.: Affidavit and SW subject to judicial notice in same federal court; GFE applies without showing factual basis

Officers had a search warrant for the house, and it was not so objectively lacking in its basis that the good faith exception would not apply. The parties didn’t put the affidavit and warrant into evidence, so the court takes judicial notice of the warrant. n.10. United States v. Daniels, 2012 U.S. Dist. LEXIS 183305 (M.D. Ala. December 12, 2012) (R&R).* [Note: The court spends several paragraphs discussing the GFE, but nary a word about the factual basis to see if it is correct that it was not “bare bones.” This is what the good faith exception is getting to: we never know whether a warrant was issued with probable cause or not. “[A]nd no Warrants shall issue, but upon probable cause, ...” In my experience, there is probable cause about 98% of the time. So why not tell us instead of spending your time telling us that the affidavit isn’t bare bones but without one fact in support?]

Officers surveilling an SUV with drugs in it in NYC saw a man in a black coat get a duffle bag out of the SUV and get into a BMW. When the BMW was stopped, the driver consented to a search. The man in the black coat, the defendant, was the passenger. The defendant did not show standing to challenge the search of the BMW. United States v. Anthis, 2013 U.S. Dist. LEXIS 784 (D. Mass. January 3, 2013).*

Permalink 07:56:26 am, by fourth, 463 words, 993 views   English (US)
Categories: General

S.D.Ill.: Does the exclusionary rule apply in pure civil forfeiture? Not sure.

Does the exclusionary rule apply in pure civil forfeiture? Not sure. Let's assume it does. Here, defendant orally consented to the search of his tractor trailer. He wrote "under protest" on the consent form. United States v. $304,980 in United States Currency, 2013 U.S. Dist. LEXIS 650 (S.D. Ill. January 3, 2013):

One issue not briefed by the parties but bearing mention is the preliminary question of whether a Fourth Amendment-based suppression motion is proper in an in rem civil forfeiture proceeding like the case at bar. The federal courts have not answered this question uniformly. Some Courts of Appeal have held that since civil forfeiture proceedings are quasi-criminal in nature, the exclusionary rule applies, and suppression motions may be filed. See, e.g., U.S. v. $291,828.00 in U.S. Currency, 536 F.3d 1234, 1236-38 (11th Cir. 2008) ("The Fourth Amendment exclusionary rule applies to civil forfeiture actions."); U.S. v. $493,850.00 in U.S. Currency, 518 F.3d 1159, 1164 (9th Cir. 2008) ("The exclusionary rule applies in civil forfeiture cases.... It bars the admission of evidence obtained in violation of the U.S. Constitution, as well as 'fruits of the poisonous tree.'"). Other courts have voiced uncertainty about the use of suppression motions in civil forfeiture actions. A 2009 Seventh Circuit case furnishes an example.

In United States v. Marrocco, 578 F.3d 627, 631 n.5 (7th Cir. 2009), the Court of Appeals for the Seventh Circuit sidestepped the potential obstacle, because the Government had not argued that the remedy of suppression is unavailable in forfeiture proceedings under 21 U.S.C. 881. However, in his concurring opinion, Judge Easterbrook expressed concern with the assumption that suppression motions are appropriate in civil forfeitures:

All parties assume that the exclusionary rule applies to forfeiture, so that the res must be returned if it was improperly seized. Yet the Supreme Court has twice held that the exclusionary rule is not used in civil proceedings. See INS v. Lopez-Mendoza, 468 U.S. 1032 ... (1984) (deportation); United States v. Janis, 428 U.S. 433 ... (1976) (taxation). See also Pennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357 ... (1998) (rule inapplicable to probation revocation). Although One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965), suppressed evidence in a forfeiture, Janis stated that this was because that forfeiture was intended as a criminal punishment. 428 U.S. at 447 n. 17.... The forfeiture in our case is civil. It is farther from a criminal prosecution than is a probation-revocation proceeding.

Suppressing the res in a civil proceeding, even though the property is subject to forfeiture, would be like dismissing the indictment in a criminal proceeding whenever the defendant was arrested without probable cause. The Supreme Court has been unwilling to use the exclusionary rule to "suppress" the body of an improperly arrested defendant.... Why then would it be sensible to suppress the res?

Marrocco, 578 F.3d at 642 (emphasis added).

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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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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)

Research Links:
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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)

  ACLU on privacy
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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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