Archives for: January 2013, 18


Permalink 11:39:14 am, by fourth, 164 words, 632 views   English (US)
Categories: General

NYT: Think a DNA sequence on the Internet isn't a privacy invasion? Think again.

NYTimes: Web Hunt for DNA Sequences Leaves Privacy Compromised by Gina Kolata:

The genetic data posted online seemed perfectly anonymous — strings of billions of DNA letters from more than 1,000 people. But all it took was some clever sleuthing on the Web for a genetics researcher to identify five people he randomly selected from the study group. Not only that, he found their entire families, even though the relatives had no part in the study — identifying nearly 50 people.

The researcher did not reveal the names of the people he found, but the exercise, published Thursday in the journal Science, illustrates the difficulty of protecting the privacy of volunteers involved in medical research when the genetic information they provide needs to be public so scientists can use it.

Other reports have identified people whose genetic data was online, but none had done so using such limited information: the long strings of DNA letters, an age and, because the study focused on only American subjects, a state.

Permalink 12:55:46 am, by fourth, 771 words, 883 views   English (US)
Categories: General

D.Colo.: Facebook search warrant investigating threats to kill police officers was not overbroad

Defendant posted threats to kill police to his Facebook page, and the government got a warrant for all his postings and other data about him ("likes," "friends," "pokes"). He claimed that the scope of the warrant exceeded the probable cause, but the court disagreed. The nature of the threat permitted breadth here. United States v. Wheeler, 2013 U.S. Dist. LEXIS 6497 (D. Colo. January 16, 2013):

As the Government points out, at the time the Warrant was issued, Agent Kavanaugh was investigating an ongoing threat to the safety of Grand Junction residents. He did not know whether there was an actual plan to bomb the daycare and kill police officers or whether the comments on Defendant's Facebook page were idle threats. The fact that Defendant was ultimately charged only with making threats does not dictate the limits of the scope of the Warrant at the time it was issued. United States v. Eisner, 297 F.2d 595, 597 (6th Cir. 1962). Instead, the Court must determine whether the Affidavit established probable cause to issue the warrant, considering the totality of the circumstances at the time the Warrant was issued.

. . .

Defendant contends that the Affidavit did not establish probable cause to search for the vast majority of the information that was permitted under the Warrant. (ECF No. 75 at 4.) For example, Defendant contends that there is no probable cause to search for his "Friends" list, what pages he "liked" or became a fan of, who he may have "poked", or what items he sold on Facebook's Marketplace. (Id. at 4-5.) In essence, Defendant is not arguing about whether there was probable cause to issue the Warrant at all; rather, Defendant is challenging the scope of the warrant and whether the Affidavit established probable cause for such a warrant.

The Court finds that the Warrant was not overbroad and that the Affidavit established probable cause to search for all of the aspects covered by the Warrant. The comments posted on Defendant's Facebook page repeatedly referred to Defendant's "religious operatives and followers" and instructed them to kill cops (generally and a particular list of officers) and to "commit a massacre in the stepping stones preschool and daycare, just walk in and kill everyone". (Aff. ¶ 7.) The comments also said that "nobody in america knows who i have been associating with outside america, we are ready, we are coming back, and we are doing this. and just like i told them, when the cuffs go on the bombs go off." (Id. ¶ 9.) Thus, the comments on Defendant's Facebook page plainly indicated that Wheeler was not acting alone, but it failed to provide any insight into with whom he may have been conspiring.

The Affidavit, in turn, states that the purpose of the Warrant is to seize "conspiratorial communications with others" regarding "[t]hreats and threatening communications, incitements to violence, [and] threats to use destructive devices", as well as obtaining "[r]ecords relating to who created, used, or communicated with the user ID, including records about their identities and whereabouts." (Id. att. B.) Given the comments on Defendant's Facebook page about the involvement of others in his plans, Agent Kavanaugh could have reasonably believed that information obtained from Facebook, such as who Defendant's "friends" were, what pages he "liked", and who he "poked", would provide insight into who these other actors were and where they may have been located. The identity and location of these other actors is evidence related to the crime for which Plaintiff was being investigated. Accordingly, Agent Kavanaugh's Affidavit established probable cause for the search of Defendant's Facebook account. Roach, 582 F.3d at 1200 (probable cause exists where the totality of the information establishes the fair probability that contraband or evidence of a crime will be found in a particular place).

"The touchstone of the Fourth Amendment analysis is reasonableness." United States v. Knights, 534 U.S. 112, 118, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001). Given the totality of the circumstances facing Agent Kavanaugh at the time he applied for the Warrant, the Court finds that the scope of the Warrant was reasonable. The Court further finds that the Affidavit upon which the Warrant was issued sufficiently established probable cause to believe that the search would lead to evidence of a crime. Accordingly, Defendant's Motion to Suppress Fruits of an Illegal Search is denied.

Note: The word "standing" never appears in the opinion. Apparently the court assumed defendant's standing to challenge a search of his Facebook account in Facebook's servers. Some courts wouldn't be so kind, I don't think, and would apply Smith v. Maryland to it. (I'm kind of surprised a First Amendment free association claim wasn't made because the warrant sought information about his friends.)

Permalink 12:00:30 am, by fourth, 235 words, 363 views   English (US)
Categories: General

N.D.Ga.: Officer simply testifying "he consented" isn't enough; court finds it unproved on this record

The court finds discrepancies in the officer’s version of how defendant allegedly consented to a search of his apartment. The AUSA simply asking “did he consent” doesn’t show voluntariness. What else happened? Nothing is explained, and the court refuses to find it voluntary. United States v. Franco-Felix, 2013 U.S. Dist. LEXIS 6489 (D. N.J. January 16, 2013)*:

Here, Officer Valentin has not testified about what was said by Mr. Franco-Felix beyond short responses to the questions of where he lived and was coming from and one-word assents to the critical question of consent to search the apartment. In particular, Officer Valentin testified that he asked Mr. Franco-Felix if they could search his apartment to see if he had any more throw pillows. He claims that Mr. Franco-Felix simply said yes to this request without asking a single question, despite the fact that he was on his way to work at the time and the apartment was several miles away, in the opposite direction of his place of employment. The Court finds this implausible and notes that Officer Valentin's testimony is directly contradicted by that of Mr. Franco-Felix. In any event, Mr. Franco-Felix is not college-educated and does not speak English and the Court is not convinced that he understood what he was being asked. Put another way, what Mr. Franco-Felix did and how he appeared do not square with that to which he purportedly consented.

Permalink 12:00:10 am, by fourth, 192 words, 359 views   English (US)
Categories: General

E.D.Mich.: Discarding gun into bushes before complying with police order to get down was abandonment

When seeing a coming confrontation by officers, reaching into pocket, removing a gun, and tossing it in the nearby bushes is a waiver of any expectation of privacy. [He’s lucky he didn’t get shot.] United States v. Davis, 2013 U.S. Dist. LEXIS 6420 (E.D. Mich. January 16, 2013):

Because the Court finds that Defendant possessed the handgun and discarded it before complying with Officer West's orders, Defendant was not seized prior to abandoning the handgun. Defendant's actions are similar to the defendants in Martin and Thomas, who did not comply with officers' orders, discarded firearms, and then were seized, in that order. Martin, 399 F.3d at 752; Thomas, 77 F. App'x at 863. Here, Officer West first ordered Defendant to stop. After Defendant did not comply and passed through the front gate, Officer West exited his vehicle and again ordered Defendant to stop when he saw that Defendant had reached for something on his person. Before compliance with Officer West's second order, Defendant abandoned his handgun. As the authorities cited above explain, the abandoned handgun was not the fruit of an illegal seizure because the seizure had not yet occurred. Hodari D., 499 U.S. at 629.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
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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"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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