Archives for: May 2013, 06

05/06/13

Permalink 02:01:44 pm, by fourth, 277 words, 711 views   English (US)
Categories: General

Atlantic: What the Framing of a Terror Suspect Says About GOP Attacks on Due Process

Atlantic: What the Framing of a Terror Suspect Says About GOP Attacks on Due Process by Conor Friedersdorf.

Paul Kevin Curtis was falsely accused in the ricin plot -- and the legal requirement to bring him before a judge helped set him free.

On the requirement that the government show its probable cause, which the GOP wants to end for terrorism suspects, apparently not accounting for the framed ones.

=> Read more!

Permalink 05:52:22 am, by fourth, 158 words, 291 views   English (US)
Categories: General

D.Mont.: Suspicionless searches on supervised release of convicted child porn possessor reasonable

Suspicionless searches of a convicted child pornography possessor while on supervised release is reasonable and related to the offense of conviction. The motion to modify the condition is denied. A search on supervised release is like a parole search, not a probation search. United States v. Tafelmeyer, 2013 U.S. Dist. LEXIS 63796 (D. Mont. May 3, 2013).

Defendant was seized by the officer’s partially blocking him in. The stop was based on reasonable suspicion, however, because the car was parked near others where the officer suspected vehicle break-ins. When the officer shined his flashlight in the car, he could see stereo equipment with loose wires. That was cause for a search. United States v. Williams, 525 Fed. Appx. 330 (6th Cir. 2013).*

Defendant’s consent to search a storage locker was a rational reasoned choice and was voluntary. United States v. Navarro-Gonzalez, 2013 U.S. Dist. LEXIS 63088 (W.D. N.Y. May 2, 2013), R&R 2013 U.S. Dist. LEXIS 63328 (W.D. N.Y. February 8, 2013).*

Permalink 05:40:16 am, by fourth, 176 words, 291 views   English (US)
Categories: General

M.D.Pa.: Parolee's threat on Facebook to kill a man justified parole search

Defendant parolee was suspected of threatening another man on Facebook for killing his brother, and parole officers heard that he was “next.” Parole officers went to conduct a parole search and found an assault rifle bullet on the TV stand. They applied for a search warrant. The officers had reasonable suspicion for the initial entry. United States v. Britton, 2013 U.S. Dist. LEXIS 62779 (M.D. Pa. May 2, 2013).*

Defendant was on a parking lot of an apartment complex with no trespassing signs, and officers approached to talk to him. Merely being there wasn’t shown to be a crime, but defendant fled and that gave cause to chase him. United States v. Chambers, 2012 U.S. Dist. LEXIS 187893 (D. Nev. November 21, 2012).*

The Arizona and California probation systems are legally similar, so the court applies federal cases involving California probation searches and finds this one reasonable. It was founded on reasonable suspicion, and it was not for harassment. United States v. Hankes, 2013 U.S. Dist. LEXIS 63631 (D. Ariz. May 3, 2013),* R&R 2013 U.S. Dist. LEXIS 66475 (D. Ariz. January 9, 2013).*

Permalink 05:24:25 am, by fourth, 163 words, 276 views   English (US)
Categories: General

OH10: DNA can't be taken by search incident, but inevitable discovery saves it

Defendant was arrested for gross sexual imposition for attempting sex with an infant girl. DNA was taken from him incident to his arrest. The search incident doctrine didn’t support the search, but inevitable discovery did because the police were well into the investigation and would have otherwise obtained a warrant if they didn’t already have it. State v. Cundiff, 2013 Ohio 1806, 2013 Ohio App. LEXIS 1683 (10th Dist. May 2, 2013).*

Officers were looking for a gold car suspected of being involved in a burglary where women’s purses were stolen. The car was seen parked in another motel parking lot and purses were in plain view. The plain view was valid and the police had the right to be on the parking lot. Myers v. State, 321 Ga. App. 676, 742 S.E.2d 494 (2013).*

A man staggering on the sidewalk with blood coming from his head was subject to stop either for investigative detention or rendering emergency aid. State v. Engle, 2013 Ohio 1818, 2013 Ohio App. LEXIS 1695 (2d Dist. May 3, 2013).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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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)
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  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)

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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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