Archives for: February 2013, 19

02/19/13

Permalink 06:25:42 pm, by fourth, 311 words, 895 views   English (US)
Categories: General

Cato: "Clever Hans vs. the Fourth Amendment"; a comment on Harris

Permalink 01:34:51 pm, by fourth, 59 words, 991 views   English (US)
Categories: General

Washington State SB 5737 sponsor claims assault weapon inspection a “mistake”

Washington State SB 5737 (posted here) sponsor claims assault weapon inspection a “mistake” that shouldn’t have been in there. See Dems Sponsor Bill To Violate Fourth Amendment Rights Of Gun Owners.

Mistake as in: Some scribe was supposed to have deleted that before it got submitted? Or, a slip of the keyboard that included it in the first place?

Permalink 10:57:00 am, by fourth, 1218 words, 1503 views   English (US)
Categories: General

SCOTUS: Bailey v. United States: Detentions permitted under Summers have to be in immediate vicinity

Bailey v. United States, 2013 U.S. LEXIS 1075 (Feb. 19, 2013) decided by SCOTUS: Detention of a person during execution of a search warrant has to be in the immediate vicinity of the place to be searched, and Bailey wasn't in the vicinity. If the government can justify it under Terry, they get a shot on remand. Syllabus:

=> Read more!

Permalink 10:50:55 am, by fourth, 802 words, 1062 views   English (US)
Categories: General

SCOTUS: Florida v. Harris: State proved dog was reliable; alert was PC

Florida v. Harris, 2013 U.S. LEXIS 1121 (Feb. 19, 2013), decided by SCOTUS. The state proved the drug dog reliable, so its alert is probable cause. Syllabus:

=> Read more!

Permalink 08:51:00 am, by fourth, 273 words, 546 views   English (US)
Categories: General

E.D.Tenn.: Search of NCIC database not a Fourth Amendment issue

There is no Fourth Amendment right to protection against searching information in NCIC. A warrant on defendant was basis for his stop. United States v. Cobb, 2012 U.S. Dist. LEXIS 186155 (E.D. Tenn. December 27, 2012):

Without providing any legal support for this argument, Defendant Campbell insists that a law enforcement officer must have reasonable suspicion to search the NCIC database for a person's information. Many courts have held that computer database searches are not subject to Fourth Amendment analysis. In fact, "[t]he obvious purpose of maintaining law enforcement databases is to make information, such as the existence of outstanding warrant, readily available to officers carrying out legitimate law enforcement duties." United States v. Ellison, 462 F.3d 557, 562 (6th Cir. 2006) (finding no expectation of privacy in an officer's search of the Law Enforcement Information Network, which revealed an outstanding warrant); see also Eagle v. Morgan, 88 F.3d 620, 628 (8th Cir. 1996) (finding that a NCIC search did not violate the plaintiff's federal constitutional rights); Cincerella v. Egg Harbor Township Police Dept., No. 06-1183 (RBK), 2009 WL 792489, at *3 (D. N.J. Mar. 23, 2009) (stating that "[b]ecause a person has no reasonable expectation of privacy in the information in the NCIC database, searching a person's record through the NCIC database does not violate the federal or state constitution"); United States v. Schmid, No. 3:06-CR-97, 2007 WL 540788, at *5 (E.D. Tenn. Feb. 15, 2007) (finding probable cause after the officer entered the vehicle's license plate number and received a NCIC reporting indicating that the vehicle was associated with the defendants, who had outstanding federal warrants). Therefore, the Court finds that Officer Mattina did not violate the Fourth Amendment when he conducted the computer searches.

Permalink 08:38:53 am, by fourth, 181 words, 527 views   English (US)
Categories: General

CA11: Borrower of vehicle can challenge GPS tracking of his use of vehicle

Following the analogous United States v. Hernandez, 647 F.3d 216, 219-20 (5th Cir. 2011), defendant has standing to challenge GPS tracking of a vehicle he legitimately borrowed when he was in control, but not otherwise. United States v. Gibson, 708 F.3d 1256 (11th Cir. 2013):

Contrary to the assertion of the dissent, we do not hold that only the person with legal ownership has a reasonable expectation of privacy at the time a tracking device is installed on a vehicle. If we had so held, we could not have concluded, as we do, that James Gibson has standing to challenge the installation of the tracking device on the Avalanche when it was in his possession and control. Instead, we conclude that James Gibson has not established that he had a reasonable expectation of privacy in the Avalanche only when it was searched on February 20, 2009, because he was not the legal owner of the Avalanche, he has not established that he had exclusive custody and control of the Avalanche, and he was neither a driver of, nor a passenger in, the Avalanche when it was searched.

Permalink 08:28:24 am, by fourth, 176 words, 493 views   English (US)
Categories: General

D.Ore.: FISA’s “significant purpose” requirement satisfies Fourth Amendment

FISA’s “significant purpose” requirement has been upheld by several circuits under the Fourth Amendment. The PATRIOT Act amendments have also been upheld. This court doesn’t disagree. United States v. Mohamud, 2012 U.S. Dist. LEXIS 186093 (D. Ore. May 7, 2012).*

A commercial building that was the subject of an arson was reasonably searched under Tyler and Clifford. The owner’s interest is less in a commercial property than in a home. No effort had been made to secure the property after the fire. United States v. Cromer, 2012 U.S. Dist. LEXIS 186153 (E.D. Mo. July 11, 2012).*

2255 petitioner “supplies a laundry list of criticisms relating to his counsel's pretrial investigation and management of a motion to suppress” that was litigated and lost, and then petitioner pled guilty. That was a waiver. Petitioner claims defense counsel didn’t address the Fourth Amendment in the motion to suppress, but he clearly and effectively did. “Counsel was not ineffective merely because the Court ruled against him on the motion.” Leggette v. United States, 2013 U.S. Dist. LEXIS 21569 (S.D. W.Va. January 7, 2013).*

Permalink 08:15:22 am, by fourth, 304 words, 657 views   English (US)
Categories: General

E.D.N.C.: Rifle case, a “single purpose container” that revealed its contents, could be searched without warrant

Defendant had a reasonable expectation of privacy in zipped and closed duffle bags stored by permission at a friend’s house. This was reasonable under our societal understandings. See United States v. Waller, 426 F.3d 828 (6th Cir. 2005). The closed and locked nature of the containers showed his expectation of privacy, and that was enough for him to prove it, even without testifying. A search of the rifle case was valid without a warrant because it was a “single purpose container” that revealed its contents. United States v. Gardner, 2013 U.S. Dist. LEXIS 20527 (E.D. N.C. January 30, 2013):

"[A]lthough the plain view doctrine may support the warrantless seizure of a container believed to contain contraband, any subsequent search of its concealed contents must either be accompanied by a search warrant or justified by one of the exceptions to the warrant requirement. United States v. Williams, 41 F.3d 192, 197 (4th Cir. 1994). One such exception is the so-called single-purpose container exception. This doctrine instructs that search of a container seized pursuant to the plain view doctrine is permissible when "the contents of the seized container are a foregone conclusion." Davis, 690 F.3d at 235. The Supreme Court has specifically held that a gun case is such a container. See Arkansas v. Sanders, 442 U.S. 753, 765 n.13 (1979) (specifically noting that the contents of a gun case "can be inferred from [it's] outward appearance" obviating the need for a warrant to search it), overruled on other grounds, California v. Acevedo, 500 U.S. 565 (1991).

In this case, the rifle case was found in plain view. As it was a gun case, it falls within the single-purpose container exception. Since the contents of the case were a foregone conclusion, no warrant was needed to search this case found in plain view. Accordingly, the court denies the motion to suppress as to the rifle case.

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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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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"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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