Archives for: January 2013, 06


Permalink 09:00:47 am, by fourth, 117 words, 628 views   English (US)
Categories: General

NYT Editorial: "Is the Driver Drunk?" McNeeley argument Wednesday

NYT Editorial: Is the Driver Drunk? by Lincoln Caplan:

The Fourth Amendment prohibits the police from searching individuals without a warrant, but the Supreme Court allows exceptions to that rule for “exigent circumstances” — when the police believe that the delay involved in getting a warrant would lead to destruction of evidence.

In Missouri v. McNeely, scheduled for argument at the court on Wednesday, the police forced a driver to take a blood test at a hospital without a warrant, after he refused to take a breath test with a portable machine when he was stopped for erratic driving. The blood test showed that his blood alcohol content was 0.154 percent, or almost twice the state’s legal limit.

Permalink 01:00:38 am, by fourth, 612 words, 711 views   English (US)
Categories: General

OH7: SW for computer surveillance video did not violate the Fourth Amendment where targets argued a privacy interest

Dancers working at the GoGo Girls Cabaret in Austintown, OH were arrested for prostitution with patrons in a back room. There was no written motion to suppress, but there was an oral motion from some of the dancers. That was sufficient when they were adopted by the others. On the merits, the police got a search warrant for the computers storing video from security cameras to prove the state’s case. There was no valid Fourth Amendment objection to seizure of the videos. The making the videos was a private search, and the police could attempt to take advantage of those videos if they prove anything. The cases were improperly dismissed. State v. Wallace, 2012 Ohio 6270, 986 N.E.2d 498 (7th Dist. 2012):

[*P31] Appellees also claim that the warrants were facially invalid because they allowed for the confiscation of security videos that were allegedly made in violation of privacy interests protected by the Fourth Amendment. Appellees' argument here also fails, because the security videos were recorded by a private entity, i.e., the Cabaret, and not by a state entity or agent of the state. A search or seizure conducted by a private citizen is not a "search or seizure" within the meaning of the Fourth Amendment. State v. Morris, 42 Ohio St.2d 307, 316, 329 N.E.2d 85 (1975), citing Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); ... For a search by a private person to trigger Fourth Amendment protection, the government must have known about the search in advance, and the private party must be acting in furtherance of law enforcement purposes. Morris at 316-317; see also, United States v. Pierce, 893 F.2d 669 (5th Cir.1990). There is certainly nothing in the search warrant or accompanying affidavit suggesting that the Cabaret was an agent of the police in producing the security videos. Because the Cabaret is a private entity, Appellees had no basis on which to raise a facial challenge of the search warrant centered on the actions of the Cabaret in creating security videos.

[*P32] Appellees further argue that the search warrant did not allow for the police to actually search through the files on the computer. Appellees submit that the search warrant only allowed the police to seize the computer itself, rather than the files on the computer. Appellees conclude that if the police sought to search the files in the computer, the search warrant failed to satisfy the Fourth Amendment requirement that a warrant "particularly" describe the things to be searched and seized. Pursuant to the Fourth Amendment, only warrants "particularly describing the place to be searched and the person or things to be seized" may issue. "The manifest purpose of this particularity requirement was to prevent general searches. * * * [T]he requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit." Maryland v. Garrison, 480 U.S. 79, 84, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987).

[*P33] Appellees' argument regarding the search of computer files is baseless. The warrant affidavits refer to the security cameras and the images included on the security camera videos. The warrants describe in detail the computers and the hard drives on the computers, and note that there would be security camera recordings on the computers. The evidence sought in the warrants is stated with sufficient particularity to satisfy the Fourth Amendment.

[*P34] In summary, even assuming Appellees had standing to make a Fourth Amendment challenge, they failed to demonstrate any facial errors in the warrant and they failed to submit any other evidence challenging the warrants or search. Therefore, there was no basis to grant the motion to suppress pursuant to the Fourth Amendment.

Permalink 12:13:07 am, by fourth, 181 words, 573 views   English (US)
Categories: General

N.D.Ohio: Affidavit as a whole showed fair probability drugs would be found; information that defendant was trying to obtain drugs wasn't a distinction

The affidavit for search warrant showed probable cause for a search and was not stale. The information included involved drug trafficking over a period of months from the house. That also shows nexus. Defendant’s argument that he was attempting to obtain drugs but did not have drugs fails. In any event, it all showed a fair probability drugs would be found in the house. United States v. Figueroa, 2013 U.S. Dist. LEXIS 1426 (N.D. Ohio January 4, 2013):

The Affidavit does illustrate cocaine discussions and/or narcotics transactions between Figueroa and CS-3 on July 12, 2012, July 31, 2012, August 9, 2012, and August 28, 2012. According to the Affidavit, Figueroa admits to possessing marijuana, and further admits his efforts to obtain cocaine for CS-3 from his suppliers at the significant price of $35,000.00 per kilogram. In light of these continuing conversations, up to the day before the execution of the Search Warrant, there is "a fair probability that contraband or evidence of a crime [would] be found in [that] particular place," i.e., 144 Hall Street, Akron, Ohio. United States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009) (quoting Gates, 462 U.S. at 236).

Permalink 12:02:46 am, by fourth, 167 words, 581 views   English (US)
Categories: General

D.Kan.: When officer saw a gun in car, he was justified in reaching in and removing keys

Defendant was stopped for a traffic offense, and a gun was in plain view in the back seat. The officer was justified in reaching in and securing the keys to the car. United States v. Huff, 2013 U.S. Dist. LEXIS 1331 (D. Kan. January 4, 2013).*

Defendant argued a “snapshot” of facts, but “[t]he probable cause calculation is made based on the totality of the circumstances, rather than just a limited set of facts as argued by defendant. When all the facts associated with this investigation are considered they ‘... are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed ... an offense.’ Michigan v. DeFillippo, 443 U.S. at 37.” United States v. Martin, 2012 U.S. Dist. LEXIS 183511 (E.D. Mich. November 9, 2012)* (R&R).

There was reasonable suspicion for the stop of this vehicle for either a drug deal or an expired license. United States v. Newman, 2012 U.S. Dist. LEXIS 183516 (W.D. Mo. June 5, 2012)* (R&R).

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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)

Research Links:
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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  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
  Privacy Foundation
  Electronic Privacy Information Center
  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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