arstechnica: ECPA reform: Finally, Feds say cops’ access to your e-mail shouldn’t be time-dependent | Policymakers and civil libertarians hope that ECPA reform comes soon by Cyrus Farivar:
HuffPo: Raid Of The Day: Cheryl Ann Stillwell, Killed In A Drug Raid Over Two OxyContin Pills by Radley Balko:
Inevitable discovery of briefcase seized in ongoing investigation that supposedly contained a videotape of sexual abuse of a child saved the search in this case. The investigation was ongoing. The officer had a civilian obtain the briefcase for them so they could hold it to get a search warrant. Even assuming the briefcase was seized unlawfully, it was inevitable it would have been lawfully found. Wilder v. State, 320 Ga. App. 497, 740 S.E.2d 241 (2013), on remand from Wilder v. State, 290 Ga. 13, 717 S.E.2d 457 (2011).
The police adequately inquired into the third party consenter’s control over the upstairs living area, and she affirmed that she had control. That was sufficient to obtain her consent. It turned out that defendant asked her to lie about it. “Moreover, the record demonstrates that Wheeler wanted police to believe that Bates had authority over the upper unit. It is undisputed that Wheeler instructed Bates to lie to police and claim that she lived in the upper unit. To argue now that police wrongly relied on Bates's authority, when Wheeler orchestrated the attempt to mislead police, is disingenuous.” State v. Wheeler, 2013 WI App 53, 830 N.W.2d 278 (2013).*
Franks challenge succeeds: The affidavit was only three pages long and had a paragraph about hand-to-hand deliveries from the property that admittedly didn’t belong in there and should have been removed when drafting the affidavit. Also, the affidavit went through three levels of review before submission to the issuing court. This was reckless disregard, but still sufficient for Franks. Second, there was an attempt to connect a car to the premises but the officer omitted knowing that the car wasn’t registered to that address, and that was something the issuing judge needed to know. Striking the first reference, and adding in the omitted information leaves tenuous inferences that don’t measure up to probable cause. Finally, the good faith exception does not apply when there is a successful Franks challenge. United States v. Rodriguez-Ramirez, 2013 U.S. Dist. LEXIS 37789 (D. Utah March 18, 2013).
Evidence hidden in an uncovered boat on adjacent property was not on defendant’s curtilage. n.2: “Mr. Scott misses the mark in relying on state trespass law. The question we ask is not whether agents violated state law but rather whether they violated the Fourth Amendment. U.S. v. Walker, 960 F.2d 409, 415 (5th Cir. 1992) (stating that the Fourth Amendment does not exist to ‘discourage ... violations of state law’); see also U.S. v. Eastland, 989 F.2d 760, 765-67 (5th Cir. 1993) (refusing to exclude evidence on the basis that agents were trespassing under state law).” United States v. Scott, 544 Fed. Appx. 303 (5th Cir. 2013).*
Historical cell site location data limited to 20 days in an attempt to link defendant to a home invasion robbery was reasonable. (Also, defendant who was not the subscriber of a cell phone had no standing to challenge obtaining historical cell site location data.) United States v. Wilson, 2013 U.S. Dist. LEXIS 37783 (N.D. Ga. February 20, 2013), adopted 2013 U.S. Dist. LEXIS 37320 (N.D. Ga. Mar. 19, 2013):
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"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
—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
—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."
"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)