Archives for: April 2013, 30

04/30/13

Permalink 12:16:14 pm, by fourth, 125 words, 455 views   English (US)
Categories: General

Google and information privacy: NYTimes Op-Ed: "Erasing History"

NYTimes Op-Ed Columnist: Erasing History by Bill Keller:

Lorraine Martin, a nurse in Greenwich, was arrested in 2010 with her two grown sons when police raided her home and found a small stash of marijuana, scales and plastic bags. The case against her was tossed out when she agreed to take some drug classes, and the official record was automatically purged. It was, the law seemed to assure her, as if it had never happened.

But Martin found that when she applied for jobs that should have been well within her reach, she got the cold shoulder. She Googled herself and discovered what any vigilant employer would have seen: stories still sitting in online news archives with headlines like “Mother and sons charged with drug offenses.”

Permalink 12:07:02 pm, by fourth, 258 words, 431 views   English (US)
Categories: General

NACDL opens its Domestic Drone Information Center

NACDL opens its Domestic Drone Information Center. From its press release (online later today):

Washington, DC (April 30, 2013) – NACDL is today excited to announce the launch of its online Domestic Drone Information Center (DDIC). While drones (or Unmanned Aerial Vehicles) are most commonly known for their use in U.S. counterterrorism strategy, their presence inside the U.S. has become an important and growing concern in recent months.

NACDL President Steven D. Benjamin said, “NACDL’s Domestic Drone Information Center will serve as a comprehensive source of cutting-edge information on the proliferation of drones.” Benjamin sees the DDIC as filling a critical public need: “At the moment, people’s concerns about how drones will be used domestically are increasing, but information online remains scattered. The Domestic Drone Information Center aims to put everything in one place.”

To that end, the Domestic Drone Information Center aggregates news from leading publications across the nation. It features a comprehensive listing of legislative developments – federally, in each of the 50 states, and in select municipalities. It contains sections devoted to relevant case law, scholarship, upcoming events, and data on drone usage. The DDIC also aggregates existing material, providing the public with a launching pad to additional information on domestic drones. For example, the DDIC features links to other leaders in this field, such as the Electronic Frontier Foundation and the documents it has compiled through an aggressive Freedom of Information Act lawsuit. As the status of domestic drones in America changes and new resources become available, the DDIC will continually offer the latest updates.

Permalink 07:33:04 am, by fourth, 178 words, 327 views   English (US)
Categories: General

D.Minn.: Bullet in pocket in patdown means gun likely in car

Defendant was stopped for driving on a cancelled DL. A patdown found a bullet in his pocket, a violation of 18 U.S.C. § 922(g). The bullet meant a gun was likely in the car, and that justified a search of the car. United States v. Rousseau, 2013 U.S. Dist. LEXIS 60821 (D. Minn. April 3, 2013).*

Tinted license plate that was clearly readable did not justify stop. State v. Tyler, 830 N.W.2d 288 (Iowa 2013).*

The officer developed reasonable suspicion that the occupants of an RV were engaged in some sort of criminal offense. He got consent. When he found a new cooler, it apparently had been tampered with, and he knew that drug couriers often used new coolers to hide drugs in the insulation. The more intensive search of the cooler was thus justified. United States v. Gaxiola, 2013 U.S. Dist. LEXIS 60350 (D. Kan. April 29, 2013).*

Officers were not obliged to take defendant on arrest right to jail. Taking him to the scene of another event in the case was permissible. United States v. Dixon, 2013 U.S. Dist. LEXIS 60627 (D. Mass. April 29, 2013).*

Permalink 07:22:06 am, by fourth, 148 words, 346 views   English (US)
Categories: General

CA5: Comment on refusal to consent harmless

Comment by government through witness that defendant refused to consent to a search would have been reversible error but for the other substantial evidence of guilt. Therefore, it was harmless error. United States v. Cooper, 714 F.3d 873 (5th Cir. 2013).*

Nexus here is shown by the CI’s statement that defendant admitted to him that there was child pornography in the home. United States v. Saffell, 526 Fed. Appx. 470 (6th Cir. 2013).*

All things considered, officers who encountered defendants ended up with reasonable suspicion then probable cause during the encounter. Finding a speedloader means that a revolver is nearby. The police reports referred to the patdown as a search incident but it wasn’t, and the USMJ dealt with that at the suppression hearing criticizing the officer’s use of words, and that supports the credibility determination. United States v. Royal, 2013 U.S. App. LEXIS 8581, 2013 FED App. 0421N (6th Cir. April 26, 2013).*

Permalink 06:58:06 am, by fourth, 144 words, 347 views   English (US)
Categories: General

OH2: Unpaid parking tickets can't justify a stop

Defendant owed parking tickets, and the PD issued an order to stop and arrest people with unpaid parking tickets. That does not justify a stop and detention under Ohio law, and “the protections guaranteed by the Fourth Amendment cannot be altered by means of an Executive Order issued to police department personnel.” Motion to suppress granted. State v. Dukes, 2013 Ohio 1691, 2013 Ohio App. LEXIS 1578 (2d Dist. April 26, 2013).

Defendant was arrested in Dayton by officers from an adjoining city, and his car was impounded. A search warrant was obtained for the car, and that cured any jurisdictional ills there might have been. State v. Walker, 2013 Ohio 1687, 2013 Ohio App. LEXIS 1580 (2d Dist. April 26, 2013)

The police had probable cause, and the search of his car was justified either by the automobile exception or the search incident doctrine. United States v. Rousseau, 2013 U.S. Dist. LEXIS 60176 (D. Minn. April 26, 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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  F.R.Crim.P. 41
  www.fd.org

  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
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  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."
—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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