Archives for: February 2013, 13


Permalink 11:16:29 am, by fourth, 71 words, 643 views   English (US)
Categories: General

NE: LPN clerical error led to stop; no exclusion because not law enforcement mistake

County Treasurers issue LPNs in Nebraska, and their error that led to defendant’s stop is not chargeable to law enforcement, and the exclusionary rule would not be applied. State v. Bromm, 285 Neb. 193, 826 N.W.2d 270 (2013).*

The Michigan Supreme Court denies review of a cell phone search incident case because of the apparent likelihood of the judgment being affirmed by harmless error. People v. Crowell, 493 Mich. 937, 825 N.W.2d 585 (2013)* (per curiam).

Permalink 11:12:02 am, by fourth, 291 words, 425 views   English (US)
Categories: General

W.D.Mo.: Particularity argument fails; no allegation of how it was not particular

If you are going to allege a failure to particularity, you should also say how and why. Without how and why, the court often has nothing to go on [which is true], and it often is easily remedied by the government, as here. United States v. White, 2012 U.S. Dist. LEXIS 185938 (W.D. Mo. November 30, 2012), adopted 2013 U.S. Dist. LEXIS 18006 (W.D. Mo. February 11, 2013):

Both defendants also contend that the search warrants were invalid because they did not describe the properties in question with sufficient particularity. They do not specifically allege, however, in what manner the descriptions of the places to be searched was deficient.

The test for determining the sufficiency of the description of the place to be searched is whether the place is described with sufficient particularity so as to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched. United States v. Gitcho, 601 F.2d 369, 371 (8th Cir.) (citations omitted), cert. denied, 444 U.S. 871 (1979). Thus, where a search warrant contained information that particularly identified the place to be searched, the court has found the description to be sufficient even though it listed the wrong address. United States v. McCain, 677 F.2d 657, 660-61 (8th Cir.1982). Moreover, where the same officer both applied for and executed the warrant, a mistaken search is unlikely. McCain, 677 F.2d at 661.

In this case, there was ample testimony from Officer Carpenter, the affiant, regarding his efforts to sufficiently identify each property in the affidavits in support of the search warrants. There was also considerable testimony from other officers that would establish the location and description of each property, which were located in a very rural and secluded area. ...

Permalink 10:27:19 am, by fourth, 144 words, 667 views   English (US)
Categories: General

N.D.Ala.: Two minute wait before entering after knock-and-announce was reasonable

Defendants argued a failure of knock-and-announce. The court finds the officers knocked for two minutes and got no answer, even though they could see food on the stove through the window, suggesting somebody was home and not responding. The entry was not unreasonable. United States v. Acton, 2013 U.S. Dist. LEXIS 18591 (N.D. Ala. January 23, 2013),* [clearly reasonable; not even close; SCOTUS has approved of 15 seconds], R&R 2013 U.S. Dist. LEXIS 18591 (N.D. Ala. January 23, 2013).*

Undercover officers invited in the house corroborated the CI’s information. United States v. Slaton, 2013 U.S. Dist. LEXIS 18662 (E.D. Ky. February 12, 2013).*

Defendant claimed that there was no probable cause for the search under the warrant, but the court concludes that there is and the affidavit is far more than “bare bones” in its detail. United States v. Greninger, 2013 U.S. Dist. LEXIS 17911 (E.D. Tex. January 17, 2013).*

Permalink 09:30:09 am, by fourth, 346 words, 440 views   English (US)
Categories: General

N.D.Ill.: Motion to suppress work computer requires showing personal privacy interest in it; no hearing without it

Defendant is a deputy U.S. Marshal, and he was indicted for abusing arrestees and covering it up. When he was arrested, his Blackberry and work laptop were seized. He did not provide an affidavit with the motion to suppress showing that he had a privacy interest in the hard drive that connected to the USM network. United States v. Linder, 2013 U.S. Dist. LEXIS 18346 (N.D. Ill. February 12, 2013):

The facts set forth in Linder's affidavit do not change this Court's conclusion that Linder cannot credibly claim to have had a subjective expectation of privacy in the data stored on his Blackberry device and network drives. Linder's affidavit does not set forth facts sufficient to establish a material dispute warranting an evidentiary hearing on the issue. While he explains his use of the devices, he does not present details necessary to show there is a dispute of material fact regarding his subjective beliefs about the use of those devices. For example, Linder does not assert that a supervisor at the U.S. Marshal Service informed him the files on his Blackberry and H drive were inaccessible to others, nor does he claim that a trainer at his Computer Security Awareness Training classes suggested to him that files stored on his devices would remain private. In fact, he does not point to a single individual in the U.S. Marshal Service whose statement or conduct could conceivably have brought him to believe he had a privacy interest in the files stored on his Blackberry and H drive. The Court finds that without these or similar representations, a suppression hearing would serve no purpose.

For example, had Linder presented evidence that a supervisor, trainer, or fellow Deputy U.S. Marshal communicated to him that files stored on his government-issued Blackberry and the corresponding network drives were private, an evidentiary hearing would give the Court an opportunity to make credibility determinations regarding the individuals who made those statements. ...

Later, the court dismissed the indictment for prosecutorial misconduct. United States v. Linder, 2013 U.S. Dist. LEXIS 29641 (N.D. Ill. March 5, 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)
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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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