Archives for: January 2013, 11


Permalink 10:00:55 am, by fourth, 182 words, 430 views   English (US)
Categories: General

SC: Tennis ball found during a patdown could be removed; officer couldn't tell what it was

A tennis ball in defendant’s pocket found during a patdown could be removed because the officer couldn’t tell what it was. When it was removed, a plastic bag could be seen though a cut in it. This is different than Dickerson. State v. Taylor, 401 S.C. 104, 736 S.E.2d 663 (2013).

Defendant was a police officer living in a rental house owned by his parents, and he had a computer in the commonly used basement. His mother had access to it and turned it on finding child pornography, which she reported. She had common authority to consent to a search of the basement. Extra hard drives in a box were in plain view, and the officers’ knowledge gave them reason to believe the incriminating nature was immediately apparent. The hard drives could be seized for a later search with a warrant. State v. Reinpold, 284 Neb. 950, 824 N.W.2d 713 (January 4, 2013).

The officer had reasonable suspicion for a continued stop based on excessive nervousness and inability to say where she had come from or was going. United States v. Fajardo-Guevara, 507 Fed. Appx. 365 (5th Cir. 2013).*

Permalink 08:10:13 am, by fourth, 209 words, 440 views   English (US)
Categories: General

CA2: Wife could consent to search of family computer she hardly used just because it was available to her

Defendant’s wife and daughter sparingly used the family computer, but that didn’t mean that the wife didn’t have actual authority to consent to a search of it. She found child pornography on the computer and called the police and consented to a search of the computer. It was password protected, but the password wasn't working at the time in question. United States v. Marandola, 489 Fed. Appx. 522 (2d Cir. 2013)*:

While Lisa Marandola admitted to using the Apple computer sparingly, she still had access to it, as did her daughter. The computer was located in a common area and was purchased using joint funds. Mrs. Marandola paid for internet out of her own personal account. Moreover, Mrs. Marandola testified that her husband never told her that she was prohibited from using the computer, and that password protection was not enabled on the day in question. These facts provide compelling evidence that Lisa Marandola had common authority over the area, a substantial interest in the area, and even tacit permission to gain access to the area.

The evidence in the record supports consent to search. Three witnesses testified that defendant did, and other evidence pointed to wasn’t conclusive of anything. United States v. Perry, 703 F.3d 906 (6th Cir. 2013).*

Permalink 12:14:34 am, by fourth, 155 words, 394 views   English (US)
Categories: General

Democracy Now: "Bronx Residents Accosted by NYPD Win Landmark Court Ruling Deeming "Stop and Frisk" Tactic Illegal"

Democracy Now: Bronx Residents Accosted by NYPD Win Landmark Court Ruling Deeming "Stop and Frisk" Tactic Illegal:

A federal judge has ruled that New York City police are not allowed to routinely stop pedestrians outside of private residential buildings in the Bronx. The stops are part of the so-called Clean Halls program, which has prompted allegations of police harassment by some residents who say they are being accosted outside of the buildings in which they live. Previous data on the New York Police Department’s "stop-and-frisk" policy has shown African-American and Latino men make up a hugely disproportionate share of those stopped. We’re joined by Molly Kovel, staff attorney with the Bronx Defenders and part of the legal team in the case, and by Abdullah Turner, a Bronx resident whose building is enrolled in the Clean Halls program and who says he was unfairly arrested while waiting for a friend inside. [includes rush transcript]

Permalink 12:07:26 am, by fourth, 286 words, 604 views   English (US)
Categories: General

WA: Arrest for DB justified SI of backpack of handcuffed, but not otherwise restrained, defendant

Police were called to a domestic disturbance and arrested the defendant in possession of a backpack. Even though he was handcuffed, he was not secured in the back seat of a police car, and a search incident of the backpack was reasonable because of the violent nature of the arrest. State v. Ellison, 172 Wn. App. 710, 291 P.3d 921 (2013):

=> Read more!

Permalink 12:01:07 am, by fourth, 472 words, 850 views   English (US)
Categories: General

LA1 follows LA3: Use of “Wyoming Tool Kit” during P2P computer search doesn't violate some separate reasonable expectation of privacy in CP hash values

A child pornography investigator’s use of the “Wyoming Tool Kit” that searches for and finds child porn on a computer connected peer-to-peer by locating hash (SHA) values of known child porn images does not violate some other expectation of privacy. State v. Dunham, 111 So. 3d 1095 (La. App. 1 Cir. 2012):

The issues presented in the defendant's brief were recently addressed by the Third Circuit in a factually similar case, State v. Daigle, 2011-1209 (La. App. 3d Cir. 5/2/12), 93 So.3d 657. In Daigle, Louisiana State Police detectives conducted an investigation using the Wyoming Tool Kit and discovered the defendant's IP address was seen with SHA values consistent with child pornography. At trial, the detectives explained that the Wyoming Tool Kit was designed by the Wyoming Department of Justice and ran on the Gnutella network. According to the detectives, software such as LimeWire and BearShare also ran on the Gnutella network. The Wyoming Tool Kit identified IP addresses that had SHA values matching images previously identified as child pornography. Daigle, 93 So.3d at 659-60. The detectives used GNU Watch in addition to the Wyoming Tool Kit, and testified that both programs only ran on the Gnutella network. Id. at 663. Citing several recent federal court decisions, the court found that in applying for a search warrant, the detective did not violate any reasonable expectation of privacy on defendant's part by using software available only to law enforcement to identify defendant's IP address as having SHA values that might be associated with images of child pornography. It explained:

Federal courts have examined the issues presented in Defendant's appeal and have determined that defendants have no Fourth Amendment privacy rights in computer files that they have shared on file sharing networks such as Gnutella regardless of whether the defendants have logged onto the Gnutella network through clients such as Lime[W]ire, Morpheus, BearShare, or Shareaza. .... This is equally true if the investigating law enforcement officer uses software specially modified to screen for child pornography, such as ShareazaLE or the Wyoming Tool Kit, provided that the software has no greater access to the defendants' computer files than that available to any other Gnutella client. Gabel, 2010 U.S. Dist. LEXIS 107131, 2010 WL 3927697; United States v. Borowy, 595 F.3d 1045 (9th Cir. 2010) [per curiam], ...

Daigle, 93 So.3d at 665.

We agree with third circuit's reasoning and find that Tpr. Sandifer did not violate the defendant's right to privacy by using GNU Watch to examine the SHA values for files the defendant had already elected to freely share with other LimeWire users. Moreover, the defendant offered no evidence at trial in support of his assertion that publicly available programs are unable to obtain the SHA values of files on LimeWire, and the record does not support that argument. Therefore, the defendant's arguments related to the alleged violation of his right of privacy are without merit.

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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)
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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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