Archives for: January 2013, 22


Permalink 06:20:45 pm, by fourth, 99 words, 453 views   English (US)
Categories: General "Foil face-recognition cameras with Privacy Visor" Foil face-recognition cameras with Privacy Visor by Tim Hornyak:

These dorky goggles shine near-infrared light to confuse computer vision systems. Are they the shades of the future?

Worried about all those security cameras tracking your every move? Try rocking one of these visors and enjoy anonymity once again.

At least that's what Isao Echizen from Japan's National Institute of Informatics is trying to achieve with the Privacy Visor (PDF).

Developed with Seiichi Gohshi of Kogakuin University, the visor has a near-infrared light source that messes up cameras but doesn't affect the wearer's vision, according to the institute.

Permalink 08:06:24 am, by fourth, 402 words, 737 views   English (US)
Categories: General

NJ agrees to hear whether police can overcome refusal of consent by removing the accused and asking somebody else with authority

NJ grants a petition for certification on whether a suspect's objection to a search is still binding on state after they remove him so they can ask somebody else for consent. That is, can the state overcome Randolph by removing the objector? State v. Lamb, 213 N.J. 531, 65 A.3d 259 (2013):

It is ORDERED that the petition for certification is granted limited to the issue of whether consent by an occupant to search premises is constitutionally effective against a third party when an absent co-tenant has objected to the search.

The appellate court thought so: State v. Lamb, 2012 N.J. Super. Unpub. LEXIS 1521 (June 28, 2012) (unpublished):

Defendant also argues that even if Karen Marcus's consent were knowing and voluntary, it was ineffective because Steven Marcus had already denied police permission to enter. We disagree.

We recognize that a co-occupant's consent is ineffective when it is countered by the contemporaneous refusal of another co-occupant, who is physically present and is the target of the police investigation. Georgia v. Randolph, 547 U.S. 103, 120, 126 S. Ct. 1515, 1526, 164 L. Ed. 2d 208, 226 (2006). "We therefore hold that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident." Ibid. (emphasis added). However, the Supreme Court did not address the situation posed here — "the constitutionality of a search as to a third tenant [in this case, defendant Lamb] against whom the government wishes to use evidence seized after a search with consent of one co-tenant subject to the contemporaneous objection of another[.]" Id. at 120 n. 8, 126 S. Ct. at 1526, 164 L. Ed. 2d at 226.

Steven Marcus's objections also did not negate Karen Marcus's consent; he was no longer present, his refusal no longer contemporaneous, and there was no finding that he was removed for the sake of avoiding his objection. See Id. at 121, 126 S. Ct. at 1527, 164 L. Ed. 2d at 226-27 (consent of one co-occupant not ineffective "[s]o long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection"). See also United States v. Matlock, 415 U.S. 164, 170, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 249 (1974) ("[T]he consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.") (emphasis added).

Permalink 07:54:18 am, by fourth, 128 words, 450 views   English (US)
Categories: General

W.D.Mich. finds Davis good faith in pre-Jones GPS use

On remand from the Sixth Circuit, GPS usage was not a Fourth Amendment violation in the Sixth Circuit at the time it was used here. The Sixth Circuit beeper cases show that there would be no Fourth Amendment violation. Therefore, under Davis, the installation of the GPS on defendant’s car was subject to the good faith exception despite Jones. United States v. Fisher, 2012 U.S. Dist. LEXIS 184855 (W.D. Mich. December 12, 2012) (R&R).*

The government raised three alternatives to support the search: automobile exception with probable cause, search incident (although defendant was handcuffed and in a police car), and a protective weapons search under Long. There was probable cause, so the automobile exception applies. United States v. Towns, 2013 U.S. Dist. LEXIS 8069 (D. R.I. January 18, 2013).*

Permalink 07:07:49 am, by fourth, 246 words, 431 views   English (US)
Categories: General

OH4: Defendant's producing baggie of marijuana didn't obviate patdown for more; cocaine in buttocks not suppressed

During defendant’s traffic stop, the officer developed reasonable suspicion of drug possession. Crack cocaine was found on the passenger. When defendant driver produced marijuana, the officer was not obliged to end there–he could have believed it was a ploy to distract him from more. A patdown of defendant then produced crack in defendant’s buttocks. State v. Smith, 2013 Ohio 114, 2013 Ohio App. LEXIS 78 (4th Dist. January 11, 2013).*

Smell of burnt marijuana and presence of a large amount of cash in the driver’s pocket was grounds for a search of the trunk of the car under the automobile exception. State v. Price, 2013 Ohio 130, 986 N.E.2d 553 (6th Dist. 2013).*

Defendant was known to carry a gun. Here, he ran into a parked car in a driveway and allegedly hid the gun from the police before they arrived at the accident scene. Police previously received a report he had threatened people with a gun, but a consent search that day did not reveal the gun. A Terry frisk of defendant for a weapon was appropriate on these facts. The officer searched the area and found a gun case and a backpack, and defendant asserted an interest in them. He consented to a search of the gun case revealing an SKS. He did not consent to search of his backpack. A dog was called in and it alerted to the backpack. That was probable cause for a search. United States v. Morrison, 2013 U.S. Dist. LEXIS 7663 (D. Kan. January 18, 2013).*

Permalink 12:00:06 am, by fourth, 189 words, 489 views   English (US)
Categories: General

IN: Abandonment of gun in flight from arrest not a Fourth Amendment issue

Defendant abandoned a gun in flight from police where he crashed his moped, threw the gun so far it hit a house, then fled on foot. He claimed an illegal arrest was in the offing, but he can’t flee and claim his abandonment was caused by the police. Hines v. State, 2013 Ind. App. LEXIS 17 (January 18, 2013).*

Officers had reasonable suspicion to stop defendant at 3:00 am in New Orleans who was bleeding from his arm and carrying a toolbox with broken glass on it. The area was known for car burglaries. In his hand was a wallet, and he couldn’t say whose it was. He was put in a police car, unhandcuffed, and transported three blocks to the address in the wallet, and there was a pickup with a window knocked out. The stop and removing him to the address in the wallet in his hand was reasonable. State v. Foster, 2012 La. App. LEXIS 1749 (La.App. 4 Cir. January 16, 2012).*

Defendant was sitting in front of a convenience store and police pulled up to talk to him, and he spontaneously and voluntarily confessed. State v. King, 109 So. 3d 941 (La. App. 4 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

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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
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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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