Archives for: April 2013, 12


Permalink 09:14:22 am, by fourth, 44 words, 365 views   English (US)
Categories: General

The Hill: IRS: We can read emails without warrant

The Hill: IRS: We can read emails without warrant by Brendan Sasso.

The IRS believes that it can ignore United States v. Warshak outside the Sixth Circuit, even though every district court to consider the issue since Warshak has followed it.

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Permalink 09:01:44 am, by fourth, 191 words, 269 views   English (US)
Categories: General

S.D.Ala.: Thumb drive hanging around defendant's neck within SW for computer media

Defense counsel was not ineffective for not moving to suppress a thumb drive taken off his person during execution of the search warrant in this case for computer media in the house since he was in the house at the time. It was fairly within the warrant. United States v. Orr, 2013 U.S. Dist. LEXIS 51686 (S.D. Ala. January 23, 2013).*

Officers had reasonable suspicion to stop defendant’s vehicle for resembling one involved in a cluster of bank robberies in the area. When stopped, defendant consented to a search of the vehicle more than once. Search warrants for his house were based on probable cause. Defendant’s later confession he robbed banks sealed the deal. United States v. Wetsch, 2013 U.S. Dist. LEXIS 51682 (D. Minn. February 8, 2013).*

The search incident of defendant’s car in this forfeiture case was based on probable cause contraband was in the car [sounds more like automobile exception]. United States v. Cunningham, 520 Fed. Appx. 413 (6th Cir. 2013).*

Affidavit for the search warrant for a gang bandana in a house was issued with probable cause and wasn’t stale. United States v. Garcia, 2013 U.S. Dist. LEXIS 51339 (D. Kan. April 10, 2013).*

Permalink 08:23:32 am, by fourth, 176 words, 373 views   English (US)
Categories: General

CA1: Stop escalated without any reasonable suspicion defendant was a fugitive

Defendant’s stop escalated to full arrest without reasonable suspicion just because the officers couldn’t find him in a government database, wrongly concluding this made him a fugitive. On the totality, the government showed really nothing for the continued detention. The fact defendant did not show up in a database they expected him in proved nothing. “It simply cannot be that reasonable suspicion of a person being a wanted fugitive is created by the failure to find the name, given by a person, in a government database. Ironically, had Dapolito's name been found, the information would not have shown he was wanted on a warrant.” Under all the facts, it was clear he was not free to leave or avoid further police contact. United States v. Dapolito, 713 F.3d 141 (1st Cir. 2013).*

Defense counsel was not ineffective for not preserving defendant’s search issue for appeal because defendant had no standing. This was a motel room, and he wasn’t a registered guest or spending the night. Ex parte Moore, 395 S.W.3d 152 (Tex. Crim. App. 2013).*

Permalink 07:36:32 am, by fourth, 254 words, 382 views   English (US)
Categories: General

CA11: "The Dukes of Hazzard" makes it to the Eleventh Circuit

“This appeal presents the question whether three officials in a rural county of Georgia are entitled to a summary judgment against a complaint that they violated the civil rights of a father and son who had been involved in an aborted exchange of property between a previously engaged couple. When Dustin Myers and Kelley Bowman ended their engagement to be married, Dustin attempted to retrieve the diamond ring he had given Kelley and other personal property, but that attempt prompted allegations that Dustin had stolen Kelley's dog, followed by a police chase on rural roadways and a brief arrest of Dustin and his father, Rodney Myers. The end of the police chase, which resembles a scene from a rerun of the 1980s television show, The Dukes of Hazzard, fittingly was captured on a video camera on the dashboard of a police car. ... After our review of the videotape and other evidence, we agree with the district court that the Myers' effort to make a federal case out of these events fails: Murry and Evans did not subject the Myers to excessive force; Evans had probable cause to arrest the Myers; Murry did not act under color of law; and the Myers failed to present any evidence that Murry, Evans, and Hutchins conspired to commit a false arrest.” Also, as for the engagement ring: “Dustin agreed to return the dog in exchange for the engagement ring and some money that he said Kelley owed him.” Myers v. Bowman, 713 F.3d 1319 (11th Cir. 2013).*

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Permalink 07:25:04 am, by fourth, 201 words, 360 views   English (US)
Categories: General

CA7&8: State law issues irrelevant in Fourth Amendment analysis

A § 1983 case over a search cannot be based on a violation of state law alone. The claim that the judge did not read the search warrant affidavit is speculative without more, aside from the question of judicial immunity for signing a search warrant. Avery v. Kratz, 522 Fed. Appx. 361 (7th Cir. 2013).

Defendant was under investigation starting in October 2009 for obtaining child pornography via a peer to peer network. Months later, a state subpoena was used to get subscriber information, allegedly in violation of state law. Months after that, defendant was stopped and consented to a search for drugs. The officer involved in that stop knew nothing of the CP investigation. Defendant consented to a computer search for drug transaction evidence, and the officer stumbled on the CP, shut the computer down, and acquired a search warrant. The search of the computer is similar to and governed by United States v. Hudspeth, 459 F.3d 922 (8th Cir. 2006), rev'd in part on other grounds, 518 F.3d 954 (8th Cir. 2008) (en banc). The alleged violation of state law in the issuance of the subpoena does not govern the Fourth Amendment analysis, and it was done reasonably. United States v. Suing, 712 F.3d 1209 (8th Cir. 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)
  DEA Agents Manual (2002) (download)
  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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  Electronic Privacy Information Center
  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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