Archives for: May 2013, 25


Permalink 04:25:01 pm, by fourth, 64 words, 368 views   English (US)
Categories: General

S.1037: "A bill to ensure adequate protection of the rights under the Fourth Amendment" is presently MIA (Updated with link)

Sen. Rand Paul's bill to ensure adequate protection of the rights under the Fourth Amendment to the Constitution of the United States is not available on the Library of Congress website, perhaps until Tuesday.

A lot of hype in the news and press releases. Too bad they're keeping it from us until they want us to see it.

UPDATE: has it here.

Permalink 01:43:33 pm, by fourth, 252 words, 279 views   English (US)
Categories: General

D.Utah: No Franks hearing where no specific falsities mentioned

“The Court finds that Defendant has not met his burden and is not entitled to a Franks hearing. As an initial matter, Defendant does not point to specific portions of the affidavit that he claims to be false. However, Defendant does take issue with certain statements in the affidavit, which the Court will discuss.” United States v. Pentz, 2013 U.S. Dist. LEXIS 72640 (D. Utah May 21, 2013).*

The officer here had plenty of reasonable suspicion that defendant was involved in drug dealing based on experience and a four-year snitch. He saw a hand labeled package at FedEx that strongly suggested to him based on experience that it contained drugs. United States v. Beverly, 2013 U.S. Dist. LEXIS 72634 (W.D. Ky. April 15, 2013).*

Defendant was taken down in an illegal arrest, and then the gun on him was found. This is not a situation where there is a new crime before the arrest. There was no reasonable suspicion for the initial patdown. United States v. Evans, 947 F. Supp. 2d 895 (E.D. Tenn. May 22, 2013).*

The court finds credible the testimony of the officers that defendant consented to an entry and search of his apartment. United States v. Paulino, 2013 U.S. Dist. LEXIS 71978 (S.D. N.Y. May 21, 2013).*

The body armor and gun in defendant’s car was lawfully seized because the stop was with probable cause defendant was speeding, driving on the wrong side of the road, running a red light, and evading an officer trying to stop him. United States v. Bogle, 717 F.3d 281 (2d Cir. 2013).*

Permalink 01:21:58 pm, by fourth, 85 words, 300 views   English (US)
Categories: General Report: Obama admin. fought to keep Rosen warrant secret Report: Obama admin. fought to keep Rosen warrant secret by Dylan Byers:

Yet another development today in the case of James Rosen, the Fox News reporter who was monitored by the Justice Dept. after receiving classified information from a State Department security adviser.

According to The New Yorker's Ryan Lizza, the Obama administration fought to keep the search warrant for Rosen’s private e-mail account secret on the grounds that they might need to monitor the account for a long period of time.

Permalink 10:43:20 am, by fourth, 223 words, 459 views   English (US)
Categories: General

W.D.Ark.: IP address led to SW that came up empty, so police did knock-and-talk with the neighbors

A child pornography investigation led officers to a house with the IP address, but the search came up empty. There was a wireless router there, so the police went to neighbor’s houses to do a knock-and-talk for child porn. One of the neighbors admitted that she and her husband used the wireless. They saw him driving nearby and stopped him, knowing there was a warrant for his arrest for something else. He consented to a search of the computer which was in his truck. United States v. Harper, 2013 U.S. Dist. LEXIS 71729 (W.D. Ark. April 4, 2013).*

Defendant was not entitled to withdraw her plea for ineffective assistance of counsel for defense counsel not filing a motion to suppress. First, it was in her interest for a better plea deal to not pursue a motion to suppress and she agreed to it. Second, the motion would fail on the merits. State v. Dorado, 2013 Tenn. Crim. App. LEXIS 419 (May 17, 2013).*

Defendant’s stop was lawful and not unreasonably extended. He had no DL on him, and the fact the officer was really investigating drugs was not material because it was otherwise reasonable. State v. Hughes-Mabry, 2013 Tenn. Crim. App. LEXIS 420 (May 16, 2013).*

Trial court’s finding of consent was supported by the evidence. Tucker v. State, 405 S.W.3d 182 (Tex. App. – San Antonio 2013)* (dissenting opinion filed May 29).

Permalink 10:36:10 am, by fourth, 29 words, 286 views   English (US)
Categories: General

WPIX: Cops claim cell phones recording them are deadly weapons to seize them

WPIX: Cops claim cell phones recording them are deadly weapons to seize them (video) (this video is from NJ, but it claims similar occurrences in FL, CA, and AR)

Permalink 10:30:57 am, by fourth, 138 words, 342 views   English (US)
Categories: General

HuffPo: Arizona Sheriff Joe Arpaio Racially Profiled Latinos, Federal Judge Rules

HuffPo: Arizona Sheriff Joe Arpaio Racially Profiled Latinos, Federal Judge Rules:

PHOENIX, May 24 (Reuters) - Arizona lawman Joe Arpaio violated the constitutional rights of Latino drivers in his crackdown on illegal immigration, a federal judge found on Friday, and ordered him to stop using race as a factor in law enforcement decisions.

The ruling against the Maricopa County sheriff came in response to a class-action lawsuit brought by Hispanic drivers that tested whether police can target illegal immigrants without racially profiling U.S. citizens and legal residents of Hispanic origin.

U.S. District Court Judge Murray Snow ruled that the sheriff's policies violated the drivers' constitutional rights and ordered Arpaio's office to cease using race or ancestry as a grounds to stop, detain or hold occupants of vehicles - some of them in crime sweeps dubbed "saturation patrols."

Permalink 10:22:38 am, by fourth, 287 words, 568 views   English (US)
Categories: General

D.Md.: Govt's generalized assertions for continued secrecy of SW affidavit not enough

A two-year-old order just released, the District of Maryland holds that the government’s generalized assertions of needs for secrecy of search warrant materials were insufficient. The investigation seemed over, and the target has a right to know why the government seized his stuff. The government has to provide a redacted affidavit now. In re 14416 Coral Gables Way, 946 F. Supp. 2d 414 (D.Md. 2011):

=> Read more!

Permalink 08:37:51 am, by fourth, 150 words, 247 views   English (US)
Categories: General

OH5: It was "immediately apparent" padded case was for drug paraphernalia for plain view

A padded case was immediately apparent to be a carrier for drug paraphernalia when it fell out of defendant’s glove compartment when he was retrieving his registration. State v. Furniss, 2013 Ohio 2064, 2013 Ohio App. LEXIS 1961 (5th Dist. May 13, 2013).

While the officer had information about defendant’s vehicle from earlier in the day, the apparently impaired driving was the basis for the stop. Hymes v. State, 2013 Miss. App. LEXIS 272 (May 21, 2013).*

Defendant passenger in a vehicle was not improperly seized by the officer’s asking the driver for consent, thereby allegedly extending the stop. State v. Ross, 256 Ore. App. 746, 304 P.3d 759 (2013).*

The police were in defendant’s apartment by consent to talk to him and get “his side of the story” about a domestic abuse involving assaulting and handcuffing his girlfriend when he admitted to having handcuffs. This admission was not during an illegal entry. State v. Harrison, 66 A.3d 432 (R.I. 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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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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  Briefs online (but no amicus briefs) 
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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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