Archives for: March 2013, 09

03/09/13

Permalink 10:59:19 am, by fourth, 1171 words, 1126 views   English (US)
Categories: General

CA9 (en banc): A forensic search of a computer on crossing the border is unreasonable

An intensive search of defendant's hard drive seized at the border was not reasonable under the border search doctrine. United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc).

The introduction:

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Permalink 09:55:20 am, by fourth, 139 words, 440 views   English (US)
Categories: General

CA9: California parolees are subject to suspicionless searches

Defendant accepted a California suspicionless search condition for parole, and he was bound by it. The suspicionless search of his place was valid. Samson v. California, 547 U.S. 843, 850 (2006) ("parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment."). United States v. King, 711 F.3d 986 (9th Cir. 2013).*

The officer wasn’t reckless under the Franks doctrine; the search was also by consent; two defendants lack standing to contest the search of a vehicle; the search of the vehicle was by consent. United States v. Sexton, 2013 U.S. Dist. LEXIS 32389 (W.D. Wash. March 7, 2013).*

On remand from United States v. Beals, 698 F.3d 248 (6th Cir. 2012), the court finds the search was by consent and limited in scope “once again.” United States v. Ambrose, 2013 U.S. Dist. LEXIS 31885 (E.D. Tenn. January 23, 2013).

Permalink 09:16:14 am, by fourth, 51 words, 446 views   English (US)
Categories: General

NYTImes: The Cellphone Records, Officer? You May Soon Need a Warrant in Texas

NYTImes: The Cellphone Records, Officer? You May Soon Need a Warrant by Maurice Chammah:

Seeking to regulate the use of cellphone records in investigations by law enforcement, Texas lawmakers are considering a bill that would require police officers and prosecutors to have a warrant before obtaining such records.

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Permalink 09:11:38 am, by fourth, 164 words, 385 views   English (US)
Categories: General

D.Ore.: Driver's consent to wait for drug dog didn't extend to passengers

The officer’s version of Oregon law on what is an obscured LPN was a mistake of law and can’t support the stop. During the stop, one passenger got out and stared intently at the officer. That wasn’t reasonable suspicion. The driver’s consent to wait for a drug dog did not extend to his passengers, necessarily stopped with him. United States v. Pina-Lopez, 2013 U.S. Dist. LEXIS 32353 (D. Ore. March 8, 2013).

Class action status denied to all persons strip searched under an “all persons present” clause in all city police search warrants. Plaintiff prevailed in his case in the NY Court of Appeals, but can’t represent all others subjected to it whenever. Mothersell v. City of Syracuse, 2013 U.S. Dist. LEXIS 32085 (N.D. N.Y. March 8, 2013).*

Considering all the testimony on consent, the court finds the testimony of the officers more credible and the consent valid. United States v. Abney, 2013 U.S. Dist. LEXIS 31336 (D. N.J. March 6, 2013).*

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Permalink 08:38:26 am, by fourth, 192 words, 367 views   English (US)
Categories: General

E.D.N.Y.: Apparent authority for consent sufficient; if actual authority was lacking, it had to be shown

Defendant contended that the room in the apartment searched by the police by his roommate’s consent was his. The facts presented to the police at the time, however, showed that the apartment was the roommate’s and she had complete control over it. Therefore, the police were objectively reasonable relying on her apparent authority, even though she may not have had actual authority. Actual authority was not shown at the hearing, so the government wins on apparent authority. United States v. Dantzler, 2013 U.S. Dist. LEXIS 31493 (E.D. N.Y. February 7, 2013).*

Defendant’s roommate called the police to tell them that he had child pornography on his computer left behind at her house. The FBI was already investigating him for child pornography. She let the police in to seize the computer. A search warrant was obtained for the computer, and defendant resisted complaining of a Franks violation of false information in the affidavit. The trial court found it negligent at best, but even removing the information did not undermine the probable cause for the warrant, so the search was good. Lamarre v. State, 2013 Tex. App. LEXIS 2198 (Tex. App. – San Antonio March 1, 2013).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
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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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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    Electronic Communications Privacy Act (2012)
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    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (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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