Archives for: April 2013, 21

04/21/13

Permalink 08:04:25 pm, by fourth, 221 words, 334 views   English (US)
Categories: General

IL: Bullet in plain view triggers Long protective weapons search

Officers seeing a bullet in plain view triggers justification for a Long protective weapons search. It is enough for an officer to reasonably suspect the presence of a gun. People v. Colyar, 2012 IL 111835, 996 N.E.2d 575 (2013), rev'g People v. Colyar, 407 Ill. App. 3d 294, 346 Ill. Dec. 921, 941 N.E.2d 479 (2010) (posted here).

Defendant was driving a vehicle loaned to him, but it was stolen. He claimed he had no idea it was stolen. The government claimed no standing from “wrongful presence.” The court concluded that he showed no reasonable expectation based on all the facts, none of which helped him. United States v. Singletary, 2013 U.S. Dist. LEXIS 55940 (N.D. Cal. April 17, 2013)*:

Here, Singletary fails to demonstrate any factors to support a reasonable expectation of privacy in the vehicle. He does not allege that he had permission to drive the vehicle from the registered owner, Bherlyn Saballos. He does not allege that he had a key to the vehicle. In fact, the officer had to use a screwdriver to turn off the vehicle because the ignition was totally destroyed. Singletary does not even allege that he had permission from anyone to drive the vehicle. When asked to whom the vehicle belonged, his only reply was "Some wetback." Based on these facts, Singletary has failed to assert a legitimate privacy interest in the vehicle.

Permalink 06:50:47 pm, by fourth, 420 words, 687 views   English (US)
Categories: General

D.Mont.: A probation search of a computer permits moving it to a forensic lab

A probationer’s computer is subject to search on reasonable suspicion of wrongdoing. If necessary, it includes moving it elsewhere for forensic testing. United States v. Miller, 2013 U.S. Dist. LEXIS 55906 (D. Mont. April 17, 2013):

=> Read more!

Permalink 02:23:47 pm, by fourth, 57 words, 454 views   English (US)
Categories: General

PoliticoPro: "Americans hate Big Brother — until moments like this"

PoliticoPro: Boston frames surveillance debate by Steve Friess and Jessica Meyers:

Americans hate Big Brother — until moments like this.

Police state paranoia has long stoked angst and outrage, until an incident like the Boston Marathon bombings takes place and the nation heaves a sigh of relief that security cameras gazed unblinkingly upon Beantown’s streets and sidewalks.

Permalink 10:17:44 am, by fourth, 204 words, 390 views   English (US)
Categories: General

CantonRep.com: Fourth Amendment: No unreasonable searches

CantonRep.com: Fourth Amendment: No unreasonable searches by Tim Botos:

How much do I track thee? Let me count the ways.

With a GPS-equipped smart phone in your pocket, you drive to work in downtown Canton; click. You zip by a traffic camera along I-77; click. You exit the highway, and pass a city crime control camera; click. You fill up at a gas station, where a security camera catches you paying with a credit card at the pump; click and click. Then, a quick stop at the ATM; click. You arrive in the office parking lot, where a security camera records you; click. You swipe a key card to enter the building; click.

Finally, out of the public eye.

Until that is, you log on to your computer.

. . .

Hall, the defense lawyer, and a former president of the National Association of Criminal Defense Lawyers, said it’s long overdue.

“All those old farts on the Supreme Court don’t even understand how a cellphone works,” he said, referring to the 2010 Ontario v. Quon case. “When you read [the oral argument], it’s clear that (Justice) Roberts didn’t understand that cellphones don’t talk directly to each other ... they go to towers first.”

Permalink 09:07:13 am, by fourth, 170 words, 414 views   English (US)
Categories: General

NY2: NY recognizes limited right to counsel before consent to BAC test

Defendant was charged with manslaughter under the influence. His attorney showed up before the chemical test could be performed and the police failed to tell him. There is a limited right to counsel in this situation in New York, and it was constitutional error for the police to not tell the defendant the lawyer was there before the test. People v Washington, 2013 NY Slip Op 2600, 107 A.D.3d 4, 964 N.Y.S.2d 176 (2d Dept. 2013).*

The court first was inclined to grant the suppression motion based on a lack of probable cause, but thinking about it more, the court concludes the government adequately showed probable cause and preserved it, but it could have done a better job fleshing out the argument. United States v. Harris, 2013 U.S. Dist. LEXIS 56130 (N.D. Ind. April 18, 2013).*

The tip to the officer was completely corroborated. When defendant got out of his car to buy drugs, he left his child unattended and that gave reasonable suspicion to approach. State v. Guillot, 115 So. 3d 624 (La.App. 4 Cir. 2013).*

Permalink 08:55:07 am, by fourth, 166 words, 298 views   English (US)
Categories: General

N.D.Ga.: Franks motion requires an offer of proof

Defendant’s Franks motion requires there be a specific showing of what the misrepresentation is, and that means including the affidavit and how it’s a misrepresentation. It’s easy to make an allegation; the court requires more. United States v. Gutierrez, 2013 U.S. Dist. LEXIS 55323 (N.D. Ga. March 22, 2013) (“Defendant's Motion makes allegations, but the record does not include the warrant application or any investigative memoranda, testimony or other evidence showing a discrepancy.”)

Defendant’s stop was reasonably extended because defendant didn’t remember her address, she admitted travel that likely violated parole, and she didn’t have the paperwork on the car allegedly just rented. United States v. Cornelius, 2013 U.S. Dist. LEXIS 54693 (D. Ore. April 11, 2013).*

Defendant had standing to challenge the stop but loses because the stop was justified for a seat belt violation, despite the alleged ulterior motive. He doesn’t have standing to contest the search of the car. United States v. Davis, 2013 U.S. Dist. LEXIS 54513 (N.D. Ill. April 15, 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
www.johnwesleyhall.com

© 2003-14, online since Feb. 24, 2003

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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)
  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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"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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