Archives for: January 2013, 19

01/19/13

Permalink 01:19:20 pm, by fourth, 303 words, 653 views   English (US)
Categories: General

WI: On a OUI2, a condition of bail of alcohol testing and treatment was a reasonable and constitutional condition of bail

On a OUI2, a condition of bail of alcohol testing and treatment was a reasonable condition of bail and did not violate the Fourth Amendment under the special needs doctrine. State v. Wilcenski, 2013 WI App 21, 346 Wis. 2d 145, 827 N.W.2d 642 (2013):

=> Read more!

Permalink 11:29:32 am, by fourth, 114 words, 467 views   English (US)
Categories: General

Wired.com: "School Kicks Out Sophomore in RFID Student-ID Flap"

Wired.com: School Kicks Out Sophomore in RFID Student-ID Flap by David Kravets:

A Texas high school on Friday barred a girl from attending class as part of the fallout from a legal flap that began when the sophomore refused to wear around her neck an RFID-chip student ID she claims is the “Mark of the Beast,” lawyers connected to the brouhaha said.

The Northside Independent School District in San Antonio began issuing the RFID-laden student-body cards when the semester began in the fall. The ID badge has a bar code associated with a student’s Social Security number. The chip monitors pupils’ movements on campus, from when they arrive until when they leave.

Permalink 11:23:46 am, by fourth, 155 words, 412 views   English (US)
Categories: General

Reason.com: "Albuquerque's Solution for School Safety: Total Surveillance"

Reason.com: Albuquerque's Solution for School Safety: Total Surveillance by J.D. Tuccille:

Rare though they are, horrific events like the Newtown shooting inevitably provoke a variety of responses. The intent is to head off a recurrence of the sort of crime that, truth be told, very likely can't be completely prevented, if for no other reason than that so many of the perpetrators seemingly have little interest in surviving their deeds. But some of the responses, like encouraging people to take responsibility for defending themselves and those around them, offer the possibility of reducing the damage done by rampage killers. Some responses, like gun restrictions and video-game censorship, put widespread civil liberties at the mercy of opportunistic control freaks. And some responses seem designed to turn public schools into replica prisons. On that last point, I'm talking about Albuquerque's scheme for multi-school surveillance, centrally monitored at the Albuquerque Public Schools Police headquarters dispatch center.

Permalink 11:19:12 am, by fourth, 61 words, 443 views   English (US)
Categories: General

NYTimes: "Unpopular Full-Body Scanners to Be Removed From Airports"

NYTimes: Unpopular Full-Body Scanners to Be Removed From Airports by Ron Nixon:

After years of complaints by passengers and members of Congress, the Transportation Security Administration said Friday that it would begin removing the controversial full-body scanners that produce revealing images of airline travelers beginning this summer.

Now much did former DHS Chief Chertoff's scanner consulting company make of this deal?

Permalink 08:30:22 am, by fourth, 177 words, 455 views   English (US)
Categories: General

OR: LPN discrepancy didn't justify calling a drug dog to stop

The officer stopped defendant for a license plate issue, and the conflicting information he gave about the driver didn’t support calling a drug dog. The continued detention for that violated the state constitution. State v. Maciel, 254 Ore. App. 530, 295 P.3d 145 (2013).

Defendant’s girlfriend had apparent authority to consent to a search of his locked briefcase which he left with her. “That finding was supported by the evidence that, inter alia, Gonzales had been living at Duran's apartment for about a month, keeping clothes and receiving mail there; that he kept the briefcase in a shared bedroom; that he had given Duran the combination to the briefcase; and that he left the briefcase at the apartment when he spent time away.” United States v. Gonzales, 508 Fed. Appx. 288 (5th Cir. 2013).*

Defendant consented to a search of his house when confronted on the street for drug trafficking. The only show of force was the officer holding a gun in his hand behind him when first encountering defendant. United States v. Garcia, 2013 U.S. Dist. LEXIS 6946 (E.D. Tenn. January 10, 2013).*

Permalink 08:11:15 am, by fourth, 163 words, 494 views   English (US)
Categories: General

D.Ore.: Connecting to a wireless router is not a waiver of privacy in one's computer

The fact defendant had previously connected to Limewire did not show no reasonable expectation of privacy in defendant’s computer files. His connection to a wireless router was also not a waiver of his reasonable expectation of privacy in the files on his computer. The government engaged in a search in getting someone to enter defendant’s computer and open a file because it was not publicly accessible. Suppressing that image leaves the affidavit without probable cause. United States v. Ahrndt, 2013 U.S. Dist. LEXIS 7223 (D. Ore. January 17, 2013), on remand from United States v. Ahrndt, 475 Fed. Appx. 656, 657 (9th Cir. 2012), for additional fact finding.

There was probable cause to arrest defendants for a drug conspiracy. The CI was fully corroborated. United States v. Johnson, 2013 U.S. Dist. LEXIS 6026 (S.D. N.Y. January 10, 2013).*

Questions of the driver during the “unavoidable lull” of the wait for information back on the DL were permissible and not a “second stop.” State v. Wiener, 254 Ore. App. 582, 295 P.3d 152 (2013).

Permalink 06:52:17 am, by fourth, 225 words, 334 views   English (US)
Categories: General

S.D.Fla.: Inventory on impoundment of car doesn't require arrest for crime

Defendant in his rental car was stopped, and the car was overdue. The renter wanted it impounded, and the officer did and inventoried it, not for arresting defendant for a crime. “Defendant points to nothing that requires law enforcement to release an overdue vehicle to a rental customer who has no continuing legitimate claim to the car, has been overdue in returning the car for nine days, has had payment for extra days declined by her credit card, and has personalized the vehicle by adding tint to the windows, when the legitimate owner — the rental company — has requested that the car be impounded. [¶] And, once Detective Wagenmann agreed to impound the car for Advantage, he was subject to the City of Miami Gardens Police Department's inventory Policy. Nor does the fact that Detective Wagenmann did not impound the car in connection with a crime affect the analysis.” United States v. Handy, 2013 U.S. Dist. LEXIS 6517 (S.D. Fla. January 15, 2013).

The stop of the car defendant was in was valid because it had been involved in a controlled buy that day. The court finds the traffic stop also valid, arresting defendant for a cracked windshield was not improper, and the subsequent inventory was valid under department policy. The stop and search was also valid under the automobile exception. United States v. Baldenegro-Valdez, 703 F.3d 1117 (8th Cir. 2013).*

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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
www.johnwesleyhall.com

© 2003-14, online since Feb. 24, 2003

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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)


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  F.R.Crim.P. 41
  www.fd.org

  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
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  Section 1983 Blog

"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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