Archives for: April 2013, 14


Permalink 05:56:10 pm, by fourth, 111 words, 345 views   English (US)
Categories: General

ID adopts drone restrictions

New American: Idaho Supports Fourth Amendment, Enacts Drone Restrictions by Joe Wolverton, II:

Another state is stepping in and shielding its citizens from constant surveillance by the government or law enforcement.

On April 11, Idaho Governor C.L. “Butch” Otter signed into law the “Preserving Freedom From Unwanted Surveillance Act,” an act reinforcing the Fourth Amendment’s guarantee of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

The law amends the Idaho code, placing new restrictions on the use of drones by government or law enforcement, particularly when it comes to the gathering of evidence and surveillance of private property.

Permalink 06:00:01 am, by fourth, 309 words, 520 views   English (US)
Categories: General Secrets of FBI Smartphone Surveillance Tool Revealed in Court Fight

Permalink 05:00:13 am, by fourth, 762 words, 1332 views   English (US)
Categories: General

TX: Exigency of destruction of evidence no longer assumed from smell of MJ during knock-and-talk

Texas Court of Criminal Appeals refuses to assume exigency that the occupant will destroy marijuana just because an officer smelled it during a knock and talk. Turrubiate v. State, 399 S.W.3d 147 (Tex. Crim. App. 2013) (dissent here):

=> Read more!

Permalink 04:00:45 am, by fourth, 172 words, 276 views   English (US)
Categories: General

D.Minn.: Hospital's consent form was all that was shown; consent to blood draw voluntary

Defendant was charged with vehicle manslaughter under federal law. His blood and urine were tested at a hospital based on the hospital’s consent form. There’s nothing that indicates that the consent was not voluntary. United States v. Johnson, 2013 U.S. Dist. LEXIS 52078 (D. Minn. March 7, 2013).* (The blood and urine were sought by the police, so this is not a private search issue.)

“While it is a close call, considering the factors in combination, I FIND Officer Duggan had an articulable and reasonable suspicion that criminal activity was afoot to warrant a brief investigation by deploying the readily-available [drug dog] Red.” United States v. Winters, 2013 U.S. Dist. LEXIS 52374 (E.D. Tenn. January 22, 2013).*

The encounter was consensual, not requiring reasonable suspicion, and reasonable suspicion developed during the encounter. United States v. Senator, 2013 U.S. Dist. LEXIS 52689 (D. Ore. April 11, 2013).*

The driver’s nervousness and not inconsistent versions of travel plans was reasonable suspicion for getting the drug dog out. United States v. Winters, 2013 U.S. Dist. LEXIS 52374 (E.D. Tenn. January 22, 2013).*

Permalink 03:00:03 am, by fourth, 419 words, 512 views   English (US)
Categories: General

CA6: It is clearly established that gratuitous violence can't be used on arrestees; this one died

It was clearly established law that officers could not use gratuitous violence against a mentally unstable unarmed arrestee. Martin v. City of Broadview Heights, 2013 U.S. App. LEXIS 7094, 2013 FED App. 0101P (6th Cir. April 9, 2013):

=> Read more!

Permalink 02:00:23 am, by fourth, 287 words, 448 views   English (US)
Categories: General

CA7: Defendant not seized when he ignored officer rapping on window

Defendant was not seized when the officer rapped on the window to get defendant to roll it down and defendant ignored him and tried to dispose of evidence. United States v. Brissey, 520 Fed. Appx. 481 (7th Cir. 2013):

=> Read more!

Permalink 01:00:00 am, by fourth, 231 words, 319 views   English (US)
Categories: General

N.D.W.Va.: Smell of meth lab during a knock-and-talk justified entry

Three officers went to defendant’s mobile home for a knock-and-talk about his overpurchase of pseudoephedrine. Three went because they suspected a meth lab and they didn’t know what to expect. One officer went to the rear and called the others on the cell phone. When the knock and talk occurred, he could see scrambling inside hiding stuff in the kitchen. The unmistakable smell of the meth lab was exigency. [The court doesn’t mention the potential violation of curtilage, but it didn’t seem to matter anyway. They had exigency no matter what.] United States v. Richardson, 2013 U.S. Dist. LEXIS 52349 (N.D. W.Va. April 11, 2013), adopted 2013 U.S. Dist. LEXIS 75946 (N.D. W.Va. May 30, 2013).

Defendant was on supervised release, and he posted a naked picture of himself online portraying in a Santa hat. Five POs, local deputies, and a forensic examiner did a warrantless “parole search” (supervised release, actually) of his place and found pictures on his phone. The PO had reason to conduct the search, and it wasn’t arbitrary. United States v. Hilton, 2013 U.S. Dist. LEXIS 51777 (E.D. Mich. April 10, 2013).*

The consent to search here was limited to entering to retrieve a .410 shotgun. The officer also seized a 20 gauge shotgun, and that violated the terms of the consent and was not otherwise justified. United States v. Gillotti, 2013 U.S. Dist. LEXIS 52402 (D. Me. March 21, 2013).*

Permalink 12:00:19 am, by fourth, 958 words, 531 views   English (US)
Categories: General

M.D.Tenn.: Even the allegedly delusional can consent to a search

Defendant’s allegedly being delusional did not prevent him from being able to grant effective consent. He seemed perfectly fine when he was talking to the officers about his child pornography collection which he then consented to a search of. United States v. Smith, 2013 U.S. Dist. LEXIS 51841 (M.D. Tenn. April 10, 2013):

=> Read more!

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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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Fourth Amendment cases,
citations, and links

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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:
  Supreme Court:
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  General (many free):
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  F.R.Crim.P. 41

  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
  Privacy Foundation
  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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