Archives for: March 2013, 02

03/02/13

Permalink 02:05:58 pm, by fourth, 368 words, 1064 views   English (US)
Categories: General

PA constitution prohibits warrantless taping inside a suspect’s home with a video camera planted on an informant

The state constitution prohibits warrantless taping inside a suspect’s home with a video camera planted on an informant. Commonwealth v. Dunnavant, 2013 PA Super 38, 63 A.3d 1252 (2013):

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Permalink 10:28:26 am, by fourth, 200 words, 865 views   English (US)
Categories: General

TX3: 911 call is not a waiver of one's reasonable expectation of privacy in the home

Frequent overnight guest and babysitter had standing to challenge a search of the premises while she was there. The state’s argument she had no expectation of privacy in the baby’s room when she made the 911 call was waived because it wasn’t raised in the trial court. A 911 call is not a waiver of a reasonable expectation of privacy in the home. State v. Elrod, 395 S.W.3d 869 (Tex. App. – Austin 2013):

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Permalink 10:16:12 am, by fourth, 210 words, 673 views   English (US)
Categories: General

ID finds no reasonable expectation of privacy in a public restroom with locked door

Defendant was seen driving, and the officer knew her license was suspended. She was seen going into a convenience store. She didn’t come right out, so the officer went in, and she was in the bathroom. He knocked, but she stalled. The officer got the key and entered the bathroom and searched her coat finding drug paraphernalia. The entry was valid because it was a commercial establishment. Also, the store clerk consented[! Apparently no reasonable expectation of privacy in a public restroom with a locked door]. State v. Dycus, 154 Idaho 456, 299 P.3d 263 (App. 2013).*

Plaintiff’s illegal entry and excessive force claim fails. Police were called to a domestic violence situation, and his wife gave police the key to go in. He had a chain on the door which they broke to get in. He was inside with a kitchen knife to his neck saying he wasn’t going back to jail, so they Tasered him. Brown v. Calicchio, 510 Fed. Appx. 822 (11th Cir. 2013).*

On the totality, “Can you call my attorney?,” was an unambiguous invocation of his right to counsel where defendant was handcuffed to a hospital gurney and wanted to think about whether to talk to the police after being Mirandized. United States v. Hunter, 708 F.3d 938 (7th Cir. 2013).*

Permalink 09:55:09 am, by fourth, 271 words, 745 views   English (US)
Categories: General

VT: "Special needs" justified parole search of sex offender's computer

The special needs of parole of a sex offender outweighed defendant’s privacy interest in his computer while on parole. The parole search of his computer was not a violation of the Fourth Amendment. State v. Bogert, 2013 VT 13, 2013 Vt. LEXIS 11 (February 22, 2013)

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Permalink 09:43:54 am, by fourth, 90 words, 510 views   English (US)
Categories: General

CA2: Being asked for consent after lawyering up was not a Fourth Amendment violation

Plaintiff’s being asked for consent after he lawyered up was not a Fourth Amendment violation. Flynn v. James, 513 Fed. Appx. 37 (1st Cir. 2013).*

Officers had an objective basis for defendant’s probation search under California law, and his subjective intent claim fails. Defense counsel was thus not ineffective for not challenging the search. Quevedo v. Kramer, 510 Fed. Appx. 616 (9th Cir. 2013).*

Defendant pulled up and approached officers nearby a house where a DV call had been made. Alcohol on his breath justified detention. Durrance v. State, 319 Ga. App. 866, 738 S.E.2d 692 (2013).*

Permalink 09:32:36 am, by fourth, 164 words, 407 views   English (US)
Categories: General

S.D.N.Y.: Time frame for particularity could have been better stated, but good faith still applies

A time frame in the search warrant to limit the breadth of the search would have been better, but the circuit law on that isn’t clear that it’s required, and that thus triggers the good faith exception. United States v. Levy, 2013 U.S. Dist. LEXIS 25508 (S.D. N.Y. February 25, 2013):

Undoubtedly, it would have been preferable if the Government had included a more specific time frame in the Search Warrant. However, "[t]he Second Circuit has not yet addressed the impact of the absence of a time frame to the particularity of a search warrant." Hernandez, 2010 U.S. Dist. LEXIS 719, 2010 WL 26544, at *11. The Court need not resolve whether the lack of a time limit renders the Search Warrant unconstitutional because the continuing uncertainty in this Circuit regarding this issue triggers the good-faith exception to the exclusionary rule. See 2010 U.S. Dist. LEXIS 719, [WL] at *12; Cohan, 628 F. Supp. 2d at 367.

Thus, "close" only applies in horseshoes, nuclear war, and the good faith exception.

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by John Wesley Hall
Criminal Defense Lawyer and
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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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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  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)

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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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