Archives for: June 2013

06/30/13

Permalink 05:43:53 pm, by fourth, 153 words, 714 views   English (US)
Categories: General

Face the Nation: Former NSA, CIA director: "The United States does conduct espionage"

Permalink 01:35:21 pm, by fourth, 155 words, 311 views   English (US)
Categories: General

CA10: Tip woman screamed "it hurts" from house with sounds of a fight justified entry

A tipster called the police that there were sounds of a domestic fight and a woman screaming “it hurts.” That supported the officer’s warrantless entry. The defense did not raise a scope of search argument in the district court, so it’s waived. United States v. Stewart, 528 Fed. Appx. 879 (10th Cir. 2013).*

The trial court erred in finding no reasonable suspicion. Defendant’s car was parked at 1 a.m. in a high crime area known for guns and drugs [what other high crime areas are there?], his hood was up, he looked panicked when he saw the officer, he “walk[ed] nervously” toward his car, and the officer thought he put a weapon under the hood. State v. Jennings, 2013 Ohio 2736, 993 N.E.2d 868 (10th Dist. 2013).*

At the scene of an accident, the officer had reasonable suspicion that defendant was driving under the influence. City of Cleveland v. Harding, 2013 Ohio 2691, 2013 Ohio App. LEXIS 2675 (8th Dist. June 27, 2013).*

Permalink 01:20:26 pm, by fourth, 79 words, 340 views   English (US)
Categories: General

WaPo: Number of federal wiretaps rose 71 percent in 2012

WaPo: Number of federal wiretaps rose 71 percent in 2012 by Peter Finn:

The number of wiretaps secured in federal criminal investigations jumped 71 percent in 2012 over the previous year, according to newly released figures.

Federal courts authorized 1,354 interception orders for wire, oral and electronic communications, up from 792 the previous year, according to the figures, released Friday by the Administrative Office of the United States Courts. There was a 5 percent increase in state and local use of wiretaps in the same period.

Permalink 01:17:28 pm, by fourth, 153 words, 543 views   English (US)
Categories: General

Center for Investigative Reporting: Police License Plate Scanners Record Driver's Locations

Center for Investigative Reporting: Police License Plate Scanners Record Driver's Locations by Ali Winston:

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Permalink 10:34:29 am, by fourth, 558 words, 560 views   English (US)
Categories: General

IA: An anonymous phoned-in tip of a drunk driver is treated different than other anonymous tips

An anonymous phoned-in tip of a drunk driver is treated different than other anonymous tips because officers usually confirm facts before making a stop. State v. Kooima, 833 N.W.2d 202 (Iowa 2013):

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Permalink 10:16:12 am, by fourth, 96 words, 495 views   English (US)
Categories: General

NYT Opinion: Privacy and the Threat to the Self

NYT Opinion: Privacy and the Threat to the Self by Michael P. Lynch:

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06/29/13

Permalink 11:03:08 am, by fourth, 200 words, 638 views   English (US)
Categories: General

IA: Defense counsel ineffective for overlooking valid motion to suppress

Defense counsel overlooked a valid motion to suppress, and that’s prejudice. Conviction reversed and remanded. A motion was filed, but denied by the trial court as untimely. [Why couldn't the trial court see this coming?] State v. Hollie, 2013 Iowa App. LEXIS 707 (June 26, 2013).

Defense counsel did not file a motion to suppress that would have been meritless under the automobile exception, so there was no duty to file one. Caldwell v. State, 2013 Iowa App. LEXIS 669 (June 26, 2013).

As defendant was being pulled over for a taillight infraction, “McCoy made a furtive movement toward the center console as he stopped his car, a movement that was captured on a police recording of the incident.” When the officer looked in the car there were marijuana seeds scattered about. Defendant said they were left over from a previous drug arrest in the car. There was probable cause to search the car. State v. McCoy, 2013 Iowa App. LEXIS 674 (June 26, 2013).*

A CI (probably a citizen informant) reported likely hand-to-hand drug sales occurring out of a described car in front of a Radio Shack. The car was found and that was sufficient information for the officers to encounter the occupants. State v. Hill, 2013 Iowa App. LEXIS 698 (June 26, 2013).*

Permalink 10:54:41 am, by fourth, 125 words, 491 views   English (US)
Categories: General

IA: Extending stop that should have ended made it unreasonable

Defendant was pulled over as a possible “tired or impaired driver.” During the stop, however, it was apparent defendant was neither. Dragging out the stop to ask for consent made it unreasonable. State v. Mass, 2013 Iowa App. LEXIS 705 (June 26, 2013):

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Permalink 10:24:24 am, by fourth, 169 words, 283 views   English (US)
Categories: General

Drones in the news today

Denver Post editorial: Police drones and privacy concerns.

The Hill: New Jersey considers anti-drone legislation by Carlo Muñoz:

New Jersey lawmakers, on Friday, joined 42 other state legislatures in drafting laws to prevent the use of unmanned aerial drones. Members of the New Jersey state Senate unanimously approved a slate of restrictions on the use of aerial drones by local law enforcement and emergency services. The legislation, passed on a vote of 36 to 0, would not ban the use of unmanned aircraft outright, according to local news reports.

Gizmondo: Sky Fighter: Meet the Man Who Wants to Drone-Proof Your Home by Kelsey Campbell-Dollaghan:

FBI Director Robert Mueller finally admitted that the Bureau uses drones to carry out surveillance on Americans (say hi!). Meanwhile, the tweens next door are probably spying on you too, watching you pick your nose using a $300 drone they bought on Amazon. UAV use in America—and public anxiety over it—is exploding. And Domestic Drone Countermeasures, an anti-drone technology startup, is building a business around it.

Permalink 10:10:05 am, by fourth, 86 words, 436 views   English (US)
Categories: General

HuffPo: Restore The Fourth: Group Organizes Nationwide Anti-NSA Spying Protests On July 4

Permalink 09:58:36 am, by fourth, 47 words, 283 views   English (US)
Categories: General

WaPo: Don’t let DOMA fool you — the Supreme Court is restricting your rights

WaPo: Don’t let DOMA fool you — the Supreme Court is restricting your rights by David Cole, discussing, inter alia, Clapper and the denial of the right to sue over potential Fourth Amendment violations by the masses without proof any one plaintiff actually had his calls intercepted.

Permalink 09:54:01 am, by fourth, 119 words, 476 views   English (US)
Categories: General

NYT: Secret Court Declassifies Yahoo’s Role in Disclosure Fight

NYT: Secret Court Declassifies Yahoo’s Role in Disclosure Fight by Claire Cain Miller and Nicole Perlroth:

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Permalink 09:45:38 am, by fourth, 110 words, 275 views   English (US)
Categories: General

NYT: Bloomberg Says Math Backs Police Stops of Minorities

NYT: Bloomberg Says Math Backs Police Stops of Minorities by David W. Chen:

Ratcheting up the rhetoric over New York City’s stop-and-frisk police practices, Mayor Michael R. Bloomberg said on Friday that the Police Department stopped white people too frequently, and nonwhites not frequently enough, in investigating murder suspects.

Also, City Council Votes to Increase Oversight of New York Police by J. David Goodman:

Over the objections of the mayor and police commissioner, the New York City Council early Thursday morning approved by veto-proof majorities a pair of bills aimed at increasing oversight of the Police Department and expanding New Yorkers’ ability to sue over racial profiling by officers.

Permalink 06:13:55 am, by fourth, 213 words, 250 views   English (US)
Categories: General

D.Ariz.: Stop for felon in possession suppressed for lack of RS defendant obtained it himself

Defendant was arrested for being a felon in possession of ammunition because his wife consulted with him on what gun to buy from a store and obtaining ammunition for it. There was nothing suspicious about her purchase of the firearm and officers had no knowledge defendant was a felon before the stop. The stop is suppressed. United States v. Siqueiros, 2013 U.S. Dist. LEXIS 90532 (D. Ariz. May 17, 2013).*

Defendant claimed he was “sandbagged” by the state raising lack of standing at the close of the evidentiary hearing, but the defense made a conscious choice on standing, likely because it couldn’t prevail, and didn’t put any evidence or argument on. [Surely if the defense had something it could have gotten leave to reopen and put it on.] And, the officers had probable cause because defendant matched the description of a wanted man, dumped his bicycle and fled, and his companion, when asked his name, said “B,” the street name of the man they were looking for. Moulden v. State, 212 Md. App. 331, 69 A.3d 36 (2013).*

Defendant was validly arrested and then consented to a search of his vehicle because it was being towed after he volunteered he had a gun in the car. United States v. Williams, 2013 U.S. Dist. LEXIS 90500 (E.D. Mo. June 11, 2013).*

Permalink 05:54:48 am, by fourth, 243 words, 426 views   English (US)
Categories: General

E.D.Pa.: Defense counsel overlooked valid search issue, but no prejudice

2255 petitioner can show defense counsel clearly overlooked a meritorious search issue for the deficiency of the warrant in failing to show the things to be seized (Groh) and that the good faith exception would not have saved the warrant because it was clearly deficient and could not be relied up (Herring and Leon). While petitioner can succeed in showing a Strickland failure of performance, he can’t show prejudice because the item seized did not contribute much, if anything, to the verdict so the outcome wouldn’t be different. United States v. Graves, 951 F. Supp. 2d 758 (E.D. Pa. 2013):

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Permalink 05:15:16 am, by fourth, 130 words, 236 views   English (US)
Categories: General

NY3: Routine questioning on the roadside is not subject to Miranda

Routine questioning on the roadside is not subject to Miranda. People v Brown, 2013 NY Slip Op 4850, 107 A.D.3d 1305 (3d Dept. June 27, 2013).

Defendant was stopped for speeding and several other traffic violations on a non-street legal motorcycle, and he undertook to shout at the police he was not going to jail and knew his rights. He was wearing a “full face mask” and wouldn’t keep his hands out of his pockets, and that justified his handcuffing. State v. Lewis, 121 So. 3d 128 (La. App. 5 Cir. 2013).*

The CI’s information was detailed and reliable and provided probable cause. He’d done it before, and this one had great detail which was said to have derived from personal observation of defendant with the drugs. State v. Allen, 118 So. 3d 514 (La. App. 2 Cir. 2013).*

Permalink 12:04:59 am, by fourth, 299 words, 646 views   English (US)
Categories: General

DE: Detaining a student at school to shame him into confessing to something violated the Fourth Amendment

Detaining a student at school to shame him into confessing to something violated the Fourth Amendment, and it was well established in this state at the time this happened. Hunt v. State, 69 A.3d 360 (Del. 2013):

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06/28/13

Permalink 12:25:04 pm, by fourth, 19 words, 363 views   English (US)
Categories: General

NPR: NSA May Have Been Collecting Email Data Since Sept. 11

NPR: NSA May Have Been Collecting Email Data Since Sept. 11 by Larry Abramson and Robert Siegel ("All Things Considered").

Permalink 09:38:21 am, by fourth, 216 words, 915 views   English (US)
Categories: General

E.D.Mich.: Can't sue to enjoin a state prosecution

Petitioner had a tribal ID and no DL and said he was not subject to the jurisdiction of any nontribal officers (facts sound like he was claiming to be a sovereign American Indian citizen). His case in federal court essentially was an effort to block the state courts from deciding his criminal case over his arrest, and that violates the Rooker/Feldman doctrine. In re Hall, 2013 U.S. Dist. LEXIS 89375 (E.D. Mich. June 26, 2013).

Arguing consent only in the district court does not include attenuation of the consent. Here, police entry was justified because defendant’s co-conspirators were being arrested. They entered when somebody saw them and ran from the door. Even if there was a Fourth Amendment violation, there was consent and it was attenuated. This defendant, however, was arrested outside and brought in. United States v. Moreno-Ortega, 2013 U.S. App. LEXIS 13194 (11th Cir. 2013).*

Plaintiff teacher was arrested for sexual offenses involving students. A state grand jury didn’t indict him, and he sued everybody involved, including the students. The fact that some of the things alleged against him couldn’t be proved under state law, a given because of age, for instance, didn’t undermine the probable cause for arrest for something. Summary judgment properly granted. Gonzalez v. Butts County, 522 Fed. Appx. 742 (11th Cir. 2013).*

Permalink 09:14:51 am, by fourth, 352 words, 601 views   English (US)
Categories: General

IN: RIP mistake of law as no good faith

RIP mistake of law as no good faith. Indiana upholds a stop based on a reasonable but mistaken view of the window tint law purely on good faith. Sanders v. State, 2013 Ind. LEXIS 474 (June 25, 2013):

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Permalink 09:01:25 am, by fourth, 195 words, 759 views   English (US)
Categories: General

Opposing views: Women Win Lawsuit After Being Violated During Roadside Search of Body Cavities

Permalink 08:51:27 am, by fourth, 95 words, 1223 views   English (US)
Categories: General

NYT Op-Ed Contributors: The Criminal N.S.A.

NYT Op-Ed Contributors: The Criminal N.S.A. by Jennifer Stisa Granick and Christophe Jon Sprigman:

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Permalink 06:28:29 am, by fourth, 175 words, 475 views   English (US)
Categories: General

CT: Unreasonable search claim inconsistent with actual innocence post-conviction claim

Unreasonable search claims should not be decided in post-conviction actual innocence claims. Dickman v. Comm'r of Corr., 143 Conn. App. 780, 70 A.3d 1147 (2013).*

In a Davis GPS good faith case, the court engages in extensive discussion of whether the law was settled or not in the Third Circuit on the use of GPS before Jones, and there was nothing approaching binding precedent saying that it wasn’t permissible. Therefore, Davis applies. United States v. Lopez, 951 F. Supp. 2d 657 (D.Del. 2013).*

Defendant’s guilty plea waived his Fourth Amendment claim so it wasn’t cognizable in a 2255. United States v. Leus, 2013 U.S. Dist. LEXIS 89280 (C.D. Cal. June 25, 2013).*

Police entered reasonably under Payton v. New York when they had an arrest warrant for the defendant. A protective sweep inside was valid. “It is not significant that Barker was arrested prior to and outside of the rooms that were entered incident to the protective sweep.” United States v. Barker, 2013 U.S. Dist. LEXIS 89829 (N.D. W.Va. May 10, 2013),* adopted 2013 U.S. Dist. LEXIS 89827 (N.D. W.Va. June 26, 2013).*

Permalink 06:12:55 am, by fourth, 611 words, 480 views   English (US)
Categories: General

S.D.Ohio: Police violated curtilage by entering back yard to see getaway car, but it was objectively reasonable

Citizens followed a bank robbery suspect for 15 minutes and lost him. Police got a line on where to look, and an officer entered the backyard of defendant’s property, open off an alley, and saw the car. This was 30 minutes after the robbery, so it was not hot pursuit. The court and Sixth Circuit had previously found the entry into the back yard a Fourth Amendment violation of the curtilage, but it was objectively reasonable under all the circumstances, and the exclusionary rule would not be applied. United States v. Fugate, 2013 U.S. Dist. LEXIS 89182 (S.D. Ohio June 24, 2013):

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Permalink 06:02:27 am, by fourth, 662 words, 611 views   English (US)
Categories: General

D.Mont.: Gatekeeper program that acts as a pen register on computers and captures the “handshake” information not "search"

Gatekeeper program that acts as a pen register on computers and captures the “handshake” information about IP addresses and “payload” without capturing any content, including any keywords, is not a Fourth Amendment search. United States v. Saville, 2013 U.S. Dist. LEXIS 89281 (D. Mont. May 20, 2013):

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Permalink 12:00:47 am, by fourth, 135 words, 533 views   English (US)
Categories: General

NYT: Mayor’s Administration Moves to Undo Bill Aimed at Curbing Police Profiling

06/27/13

Permalink 09:19:37 pm, by fourth, 301 words, 700 views   English (US)
Categories: General

Cal.: A package seized in transit with PC can't be searched on exigent circumstances; DA forfeits plain smell by not raising it in trial court

Cal.: A package seized in transit with PC can't be searched on exigent circumstances without a warrant. Also, the state here forfeits its plain smell argument by not having raised it in the trial court. Robey v. Superior Court of Santa Barbara County, 56 Cal. 4th 1218, 158 Cal. Rptr. 3d 261 (2013):

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Permalink 04:19:57 pm, by fourth, 193 words, 529 views   English (US)
Categories: General

Arkansas Business: Truck Driver Hair Testing Moves Forward at J.B. Hunt

Arkansas Business: Truck Driver Hair Testing Moves Forward at J.B. Hunt by Chris Bahn. One of the nation's largest trucking companies drug tests the hair of its drivers. The government prefers UAs; trucking companies prefer hair testing.

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Permalink 03:58:04 pm, by fourth, 135 words, 525 views   English (US)
Categories: General

Politico: FOIA'ing the NSA

Politico: FOIA'ing the NSA by Dylan Byers:

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Permalink 03:36:15 pm, by fourth, 542 words, 539 views   English (US)
Categories: General

NY: GPS monitoring in the workplace for investigative purposes a "search" and unreasonable

GPS tracking of a state employee in his personal car was unreasonable. Based on O’Connor, a workplace search, which this was, didn’t require a warrant, but it was nonetheless unreasonable. Matter of Cunningham v. New York State Dept. of Labor, 2013 NY Slip Op 04838, 21 N.Y.3d 515, 974 N.Y.S.2d 896, 997 N.E.2d 468, 163 Lab. Cas. (CCH) P61,366 (2013):

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Permalink 07:10:39 am, by fourth, 217 words, 399 views   English (US)
Categories: General

MO: Hot pursuit into IL and search incident was valid by MO officers

Defendant was accused of stealing a laptop bag from a bait car in St. Louis MO, and he fled into East St. Louis, IL with officers in pursuit. He was stopped and searched there. Illinois and Missouri both apply the conflict of laws rule that the law of the place of the search applies, and here it is the same. The hot pursuit was valid, as was the search in Illinois when defendant was stopped. State v. Williams, 409 S.W.3d 428 (Mo. App. 2013).

A federally licensed firearms dealer was burglarized, and defendant sold one of the guns stolen during the burglary. ATF got a search warrant for his house for firearms, and located more. While they were there, it was apparent defendant was a suspect in home invasion robberies, so ATF applied for an additional search warrant for evidence of that. The supplemental search warrant showed probable cause and nexus and was validly issued. United States v. Scott, 531 Fed. Appx. 283 (4th Cir. 2013).*

Both defendants disavowed ownership of a cell phone found in a vehicle during a traffic stop, so the officer put it in his pocket. Later, a call came in and it was answered. The cell phone was abandoned property when it was searched. United States v. Gaona-Gomez, 2013 U.S. Dist. LEXIS 89517 (S.D. Tex. June 26, 2013).*

Permalink 06:50:54 am, by fourth, 138 words, 275 views   English (US)
Categories: General

VI: Routine patdown without reasonable suspicion violated Terry

One defendant’s patdown was unreasonable because it was done without reasonable suspicion as soon as he got out of the car. He was completely cooperative, but subject to a routine patdown. His codefendant doesn’t have standing to challenge the search of his person. People v. Lewis, 2013 V.I. LEXIS 42 (V.I. Super. Ct. June 18, 2013).*

The manager of a motel had authority to consent to search of a storage room where the key was kept at the font desk. United States v. Perez, 522 Fed. Appx. 674 (11th Cir. 2013).*

Defendant was not in custody for Miranda purposes. He was asked for permission to precede at every juncture. He was in a small room at his house, but that was the only private place, and there was no intimidation. United States v. Bohlen, 2013 U.S. Dist. LEXIS 88992 (D. Neb. June 25, 2013).*

Permalink 05:33:05 am, by fourth, 410 words, 546 views   English (US)
Categories: General

D.P.R.: Testimony of PO at a Franks hearing is deemed to incredible too be believed

Rarity: Testimony of PO at a Franks hearing is deemed too incredible to be believed. United States v. Guzman-Batista, 2013 U.S. Dist. LEXIS 88451 (D. P.R. April 11, 2013). The details are omitted:

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06/26/13

Permalink 01:10:35 pm, by fourth, 67 words, 390 views   English (US)
Categories: General

WaPo: NSA fact sheet on surveillance program pulled from Web after senators’ criticism

WaPo: NSA fact sheet on surveillance program pulled from Web after senators’ criticism by Greg Miller and Ellen Nakashima:

National Security Agency Director Gen. Keith B. Alexander acknowledged Tuesday that a fact sheet on the agency’s Web site inaccurately described the extent to which the communications of U.S. citizens are protected from the spy agency’s collection of e-mail and other material from technology companies.

Permalink 06:52:37 am, by fourth, 1049 words, 788 views   English (US)
Categories: General

CA2: Computer SW for “evidence of violations of ‘NYS Penal Law and or Federal Statutes’” fatally overbroad

Officers were investigating defendant for a failure to register as a sex offender, and they got a search warrant for his computer hard drive. The warrant violated the Fourth Amendment, first, because there was no probable cause to believe there was anything on it, and, second, because it sought “evidence of violations of ‘NYS Penal Law and or Federal Statutes.’” Remanded for a severability determination. United States v. Galpin, 720 F.3d 436 (2d Cir. 2013):

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Permalink 06:29:11 am, by fourth, 121 words, 302 views   English (US)
Categories: General

N.D.Iowa: Fact state law on GPS installation wasn't followed not a Fourth Amendment violation

Iowa law requires that only “state agents” can apply for and install GPS devices, and this wasn’t followed. This case, however, is in federal court, and the Fourth Amendment wasn’t violated. United States v. Hansen, 2013 U.S. Dist. LEXIS 87951 (N.D. Iowa June 19, 2013).

Defendant was subjected to a search incident in 2007 that was valid under Belton, but he preserved the argument it wasn’t. Gant was decided in 2009, and the court of appeals decided his case in July 2010. Three years later, on review, the Kansas Supreme Court holds that the Davis good faith exception saves the search for the state. (The case dragged on so long, the defendant died before it was decided.) State v. Karson, 297 Kan. 634, 304 P.3d 317 (2013).*

Permalink 05:49:10 am, by fourth, 536 words, 541 views   English (US)
Categories: General

OH11: Search warrant for victim's DNA in def's apartment was speculative and overbroad

Officers obtained a search warrant for the victim’s DNA in defendant’s apartment, even though there was no showing that the victim had ever been there. A search warrant for DNA in premises is overbroad. In addition, officers read a journal under the guise of looking for the victim's DNA in it. State v. Armstrong, 2013 Ohio 2618, 993 N.E.2d 836 (11th Dist. 2013):

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Permalink 05:36:50 am, by fourth, 161 words, 231 views   English (US)
Categories: General

D.Del.: Reasonable inquiry into whether premises has two living units doesn't always require calling utility providers

The officer made reasonable inquiry into the occupancy of the building that was the target of the search and concluded it was one unit with two doors. A reasonable inquiry doesn’t always require contacting the utility providers too, when there is one electric meter. Here, there was a brick wall visible only from the inside that divided the premises into two units. “Facts ‘that emerge after the warrant is issued have no bearing on whether or not a warrant was validly issued.’ Garrison, 480 U.S. at 85.” United States v. Figueroa, 2013 U.S. Dist. LEXIS 88034 (D. Del. June 24, 2013).

Crouching between cars on the parking lot of grocery store at night was suspicious enough for a stop and patdown, and a gun was found. United States v. Benavidez, 528 Fed. Appx. 829 (10th Cir. 2013).*

Officer’s calling a “multi-colored glass smoking device” as a “bong” in the affidavit for search warrant was not misleading for Franks purposes. State v. Holly, 2013 ND 94, 833 N.W.2d 15 (2013).*

Permalink 05:04:55 am, by fourth, 103 words, 486 views   English (US)
Categories: General

Cato: NSA Spying, NSA Lying, and Where the Fourth Amendment Is Going

Permalink 05:01:49 am, by fourth, 55 words, 478 views   English (US)
Categories: General

The Hill: NSA takes the Fourth

06/25/13

Permalink 06:37:13 am, by fourth, 279 words, 579 views   English (US)
Categories: General

New law review article: The Relational Nature of Privacy

Laurent Sacharoff, The Relational Nature of Privacy, 16 Lewis & Clark L. Rev. 1249 (2012).

Abstract:

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Permalink 06:09:41 am, by fourth, 201 words, 483 views   English (US)
Categories: General

OH5: Constructive arrest at ER for DUI supported warrantless blood draw as exigency

Defendant was constructively arrested at the hospital after wrecking his car and likely being under the influence. The blood draw at the hospital was reasonable and with exigent circumstances. The court credits that it would have taken “hours” to get a warrant. The court cites Schmerber but not McNeeley. State v. Hollis, 2013 Ohio 2586, 2013 Ohio App. LEXIS 2564 (5th Dist. June 17, 2013).

The CI said he was in defendant’s motel room and saw a lot of crack cocaine for distribution. “The court finds that the affidavit provides scant, but sufficient, basis to establish probable cause and that even if the affidavit was insufficient, the officers were justified in relying upon it in good faith.” United States v. Eldridge, 2013 U.S. Dist. LEXIS 86429 (S.D. Ala. June 14, 2013).*

Defendant was encountered walking on a road on BLM land in the desert 15 miles north of the border, and he was not dressed to be hiking or camping in the winter. The officer became suspicious when he and his companion had no Ids. Another officer arrived. The detention was not too long, when they admitted being in the country illegally. Defendant had been previously removed. United States v. Grande, 2013 U.S. Dist. LEXIS 87139 (S.D. Cal. June 20, 2013).*

Permalink 06:03:24 am, by fourth, 183 words, 270 views   English (US)
Categories: General

OH2: Syringe could be seized by plain feel during patdown

Defendant was encountered by an officer on the street who mentioned that the defendant matched the description of a guy wanted in a recent burglary. The discussion remained conversational and the officer asked for permission to do a patdown, which defendant agreed (acceded) to. A syringe was felt in his pocket and that was plain feel for more. State v. Ohlert, 2013 Ohio 2579, 2013 Ohio App. LEXIS 2547 (2d Dist. June 21, 2013).

Officers had detailed information that a red car was coming through Georgia with drugs in a hidden compartment. When the car was seen and stopped for a traffic offense, and also for reasonable suspicion of drug trafficking, the officers got consent and did not go directly to the hidden compartment to not burn their source. They found the opening mechanism hidden in the trunk. The stop was valid as was the consent. United States v. Diaz-Fonseca, 2013 U.S. Dist. LEXIS 87183 (S.D. Ga. May 14, 2013).*

In a state wiretapping case, the fact a federal wiretap application previously used was used in state court too doesn’t invalid it. State v. Harrell, 323 Ga. App. 56, 744 S.E.2d 867 (2013).*

Permalink 05:44:02 am, by fourth, 275 words, 520 views   English (US)
Categories: General

S.D.Ga.: Mumbling “Mmm mmm” to a request to search car interpreted by the officer and the court as consent

The officer did not prolong the stop. Defendant was stopped for following a tractor-trailer too close that she came up on at high speed right in front of the officer. When she was looking for her papers on the car, her gun fell out of the glove compartment. The check of the DL and firearm took 8 minutes, and both came up clean. Then the officer was writing a warning ticket and asked for consent. Her response “Mmm mmm” to a request to search her car was interpreted by the officer and the court as consent. That's how she answered most questions on the video. United States v. Ferguson, 2013 U.S. Dist. LEXIS 87192 (S.D. Ga. May 29, 2013):

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Permalink 05:13:08 am, by fourth, 256 words, 394 views   English (US)
Categories: General

S.D.Fla.: Target of the search doesn't get to be the first one asked for consent when he's arrested

Officers did not have to ask the target of the search for consent before getting it from somebody with apparent authority. He was arrested for a shooting, handcuffed, and put into a police car. This was standard protocol, and the court doesn’t find that it was being devious to avoid his potential denial when he wasn’t even asked. United States v. Perpall, 2013 U.S. Dist. LEXIS 87535 (S.D. Fla. June 12, 2013):

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Permalink 05:00:04 am, by fourth, 244 words, 536 views   English (US)
Categories: General

D.Mass.: Colombian wiretap didn't violate due process

Defendant was subject to a Colombian wiretap in Colombia on a DEA tip. The court declines to impress our Fourth Amendment standards into whether a due process violation occurred in Colombia. “Here, there is no evidence that the wiretapping of defendants’ phone calls undermines fundamental elements of fairness. Although the wiretap authorization procedures in Colombia are less rigorous than the requirements of Title III of the Omnibus Control and Safe Streets Act of 1968, 18 U.S.C. § 2510-2520 and would violate the Fourth Amendment, they are not ‘outrageous’ or ‘shocking.’” United States v. Clavijo, 950 F. Supp. 2d 324 (D. Mass. 2013):

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06/24/13

Permalink 06:07:04 pm, by fourth, 115 words, 601 views   English (US)
Categories: General

Bloomberg News: U.S. Surveillance Is Not Aimed at Terrorists

Bloomberg News: U.S. Surveillance Is Not Aimed at Terrorists by Leonid Bershidsky:

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Permalink 05:36:40 am, by fourth, 224 words, 306 views   English (US)
Categories: General

TN: Second entry after plain view during emergency entry was valid

The initial intrusion into the home in this case was based on exigent circumstances and dealing with an emergency. Officers saw weapons in plain view but dealt with the emergency. A second entry to seize the weapons was valid. State v. Rothwell, 2013 Tenn. Crim. App. LEXIS 528 (June 20, 2013).*

The defendants’ stop was for a traffic violation, and the officer wrote a warning ticket, which he testified takes “12, 16, 17” minutes anyway. It took a drug dog 17 minutes to arrive. The court credits the officer did not intentionally stall for the drug dog to arrive, but there was reasonable suspicion anyway. They were in a rental car and the renter wasn’t present, so standing was doubtful, but it was assumed anyway. United States v. McCoy, 2013 U.S. Dist. LEXIS 87644 (D. Utah June 20, 2013).*

An officer on foot patrol was encountered by a CI who gave really specific and richly detailed information about the defendant and methamphetamine dealing. The officer set up surveillance and saw appellant and made a traffic stop based on window tint. Defendant consented to a search of his person and car and meth and paraphernalia was found. Based on the CI, a search warrant was obtained for the house, and it was with probable cause, the detail of the CI being first corroborated by the stop. Kirby v. State, 2013 Ark. App. 393, 2013 Ark. App. LEXIS 416 (June 19, 2013).*

Permalink 12:55:37 am, by fourth, 466 words, 1158 views   English (US)
Categories: General

Cal.2: Merely asking for one’s ID, without demanding it, is not a seizure of the person

Defendant was already stopped and officers approached him because he resembled a robbery suspect from one that just occurred and nearby. Merely asking for one’s ID, without demanding it, is not a seizure of the person because there was no effort to ask for it back. [Probably because he thought it had been seized.] People v. Leath, 217 Cal. App. 4th 344, 158 Cal. Rptr. 3d 449 (2d Dist. 2013):

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Permalink 12:00:32 am, by fourth, 352 words, 602 views   English (US)
Categories: General

WA: Officers saw a bloody woman through a motel room door and could enter to render emergency aid without a warrant

Police officers went to a motel and scanned the guest registry [a practice later held violated the state constitution] finding a name there was an arrest warrant for. They went to the room and knocked with the intention of arresting. Inside they could see a bloodied woman, and they entered to render aid. Inside they found another girl who said she’d been raped by the defendant. The emergency aid doctrine justified the entry. State v. Smith, 177 Wn.2d 533, 303 P.3d 1047 (2013):

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06/23/13

Permalink 10:54:59 am, by fourth, 180 words, 653 views   English (US)
Categories: General

Sun Sentinel: Bank robbery suspect wants NSA phone records for his defense

Sun Sentinel: Bank robbery suspect wants NSA phone records for his defense by Terrance Brown. His own cell phone company didn't have his records that far back.

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Permalink 10:28:29 am, by fourth, 108 words, 608 views   English (US)
Categories: General

New Yorker: Annals of Surveillance: The Prism

New Yorker: Annals of Surveillance: The Prism by Jill Lepore:

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Permalink 10:11:12 am, by fourth, 225 words, 497 views   English (US)
Categories: General

New law review article on delay in computer searches as unreasonable

Permalink 09:08:07 am, by fourth, 242 words, 611 views   English (US)
Categories: General

WI: Person loaned laptop had apparent authority to consent to police search

Defendant lived with his parents and was dating a woman, and she came over to spend the weekend when his parents were gone. He specifically let her use his computer while he was at work, and she found child pornography, and she called the police. She had apparent authority to let them in the house and to search it. State v. Sobczak, 2013 WI 52, 347 Wis. 2d 724, 833 N.W.2d 59 (2013), affg State v. Sobczak, 2012 WI App 6, 338 Wis. 2d 410, 808 N.W.2d 730 (2011) (posted here):

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Permalink 08:58:22 am, by fourth, 277 words, 486 views   English (US)
Categories: General

E.D.Wis.: Consent based on personal fear for well being of family was not caused by police, so consent valid

Defendant consented because of a fear for her family’s well being if she didn’t but it was of her own making and the police did nothing to exacerbate it. Therefore, consent was valid. United States v. Lopez, 2013 U.S. Dist. LEXIS 86912 (E.D. Wis. April 5, 2013):

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Permalink 08:52:23 am, by fourth, 137 words, 253 views   English (US)
Categories: General

CA8 & KS apply Davis to pre-Gant search incident

Defendant was arrested and subjected to a search of his car (with probable cause). The search of the car was treated as a pre-Gant search incident and upheld under Davis good faith. [It appears it would have been good under the automobile exception which isn’t discussed.] United States v. Casteel, 717 F.3d 635 (8th Cir. 2013).

Pre-Gant search incident saved by good faith exception. State v. Carlton, 297 Kan. 642, 304 P.3d 323 (2013).

Defendant was validly stopped and his cash seized. There is no question, however, that the officer didn’t Mirandize him and was trying to elicit incriminating responses. The statements are suppressed. United States v. Hernandez, 2013 U.S. Dist. LEXIS 86319 (D. Neb. June 18, 2013).*

Defendant was subjected to a valid probation search days after going on probation, and a gun was found. State v. Fields, 120 So. 3d 309 (La.App. 4 Cir. 2013).*

Permalink 08:39:59 am, by fourth, 629 words, 526 views   English (US)
Categories: General

D.R.I.: Another staleness case; no time, no good faith

Another staleness case: No reference to time in a 2012 drug search warrant application except that defendant was driving a 2006 car. So, it had to be between 2006 and 2012. Even the continuing course of conduct that can usually overcome staleness doesn’t work here. Thus, the court finds it stale and not saved by the good faith exception. United States v. Santiago, 950 F. Supp. 2d 361 (D. R.I. 2013):

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Permalink 08:01:25 am, by fourth, 687 words, 503 views   English (US)
Categories: General

M.D.La.: Analyzing staleness with things of no enduring value

This is a stark issue of four year old staleness with things of no enduring value (unlike firearms or child porn) that I’ve never seen before that well demonstrates the issue. Few cases have this obvious a fact pattern, but it’s a good example to show how it works:

Defendant was a juvenile four years ago, and he was ratted out as a suspect in a car burglary. Having nothing else on him, the police obtain a search warrant for his house for the evidence of the theft, and the district court finds it stale. The question is: since this is “years,” what would logically be kept that long? None of this stuff. [The only surprising thing about this case is that the government indicted in the face of these facts.] United States v. Davis, 2013 U.S. Dist. LEXIS 86292 (M.D. La. June 19, 2013) (emphasis the court’s):

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Permalink 07:48:28 am, by fourth, 358 words, 374 views   English (US)
Categories: General

E.D.Pa.: After remand of suppression order, court denies suppression for lack of deterrence

The District Court originally suppressed and the government appealed because the court didn’t properly explain the application of the exclusionary rule to deter future violations. The Third Circuit reversed. United States v. Wright, 493 Fed. Appx. 265 (3d Cir. 2012). On remand, because the court had already found the level of culpability “low” and barely negligent, the motion to suppress is denied. United States v. Wright, 2013 U.S. Dist. LEXIS 86937 (E.D. Pa. June 20, 2013)*:

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06/22/13

Permalink 06:43:32 pm, by fourth, 140 words, 1035 views   English (US)
Categories: General

WaPo: After NSA leaks, secretive court gets rare scrutiny

WaPo: After NSA leaks, secretive court gets rare scrutiny by Peter Wallsten, Carol D. Leonnig, and Alice Crites:

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Permalink 01:07:22 pm, by fourth, 69 words, 258 views   English (US)
Categories: General

IN & KY: Sounds from other rooms during arrest justify protective sweep

Sound of movement within the house during defendant’s arrest justified a protective sweep. Weddle v. State, 2013 Ind. App. LEXIS 289 (June 19, 2013).

Noise from the bedroom during defendant’s arrest justified a protective sweep of the bedroom. Kerr v. Commonwealth, 400 S.W.3d 250 (Ky. 2013)

Consent was valid. Defendant wasn’t Mirandized, but he was told he had a right to refuse consent. Crocker v. State, 989 N.E.2d 812 (Ind. App. 2013).

Permalink 09:21:13 am, by fourth, 244 words, 1223 views   English (US)
Categories: General

CA10: Standing by entrapment by estoppel rejected

A GPS device was placed on the vehicle defendant was driving that he did not own. The police were tailing him, too. He took off in a highspeed chase and tossed a gun out the window which the neighborhood postman observed. He had no expectation of privacy, and entrapment by estoppel is rejected. United States v. Wilfong, 528 Fed. Appx. 814 (10th Cir. 2013):

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06/21/13

Permalink 04:48:09 pm, by fourth, 186 words, 625 views   English (US)
Categories: General

WaPo Opinion: NSA surveillance may be legal — but it’s unconstitutional

WaPo Opinion: NSA surveillance may be legal — but it’s unconstitutional by Laura K. Donohue of Georgetown Law:

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Permalink 02:12:15 pm, by fourth, 137 words, 410 views   English (US)
Categories: General

WaPo: New documents reveal parameters of NSA's secret surveillance programs

WaPo: New documents reveal parameters of NSA's secret surveillance programs By Ellen Nakashima, Barton Gellman, and Greg Miller:

The National Security Agency may keep the e-mails and telephone calls of citizens and legal residents if the communications contain 'significant foreign intelligence' or evidence of a crime, according to classified documents that lay out procedures for targeting foreigners and for guarding Americans' privacy. Newly disclosed documents describe a series of steps the world's largest spy agency is supposed to take to keep Americans from being caught in its massive surveillance net. They suggest that the NSA has latitude to keep and use citizens' communications under certain conditions.... And the rules show that the communications of lawyers and their clients may be retained if they contain foreign intelligence information, although dissemination must be approved by the NSA general counsel.

Permalink 11:33:40 am, by fourth, 420 words, 752 views   English (US)
Categories: General

CA11: A Terry stop has to happen when the observations of criminal activity likely being “afoot” are made, not a week later

A Terry stop has to happen when the observations of criminal activity likely being “afoot” are made, not a week later. Defendant’s stop suppressed. Terry is premised on “swift action.” United States v. Valerio, 718 F.3d 1321 (11th Cir. 2013):

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Permalink 12:02:58 am, by fourth, 126 words, 439 views   English (US)
Categories: General

AR: Nighttime search rule violation was harmless

The officer and issuing magistrate violated the nighttime search rule in issuing the warrant, but the officers were already in the house with exigent circumstances investigating a murder. The state countered with it not being a “substantial violation” of rights and inevitable discovery. The court finds it harmless error because of the substantial evidence of guilt otherwise in the record, even if the motion were granted, so it doesn’t have to be decided. (In Arkansas, a nighttime search violation is not even subject to the good faith exception but the state was trying.) Livingston v. State, 2013 Ark. 264, 2013 Ark. LEXIS 297 (June 20, 2013).

Officers lacked reasonable suspicion to stop and detain defendants for waving at a person who was also stopped. State v. Magana, 257 Ore. App. 251, 304 P.3d 780 (2013).*

06/20/13

Permalink 04:15:45 pm, by fourth, 184 words, 650 views   English (US)
Categories: General

MS: Knowledge of rights supported voluntariness of consent

Defendant at first insisted on a warrant to search his car. Later he confessed. This knowledge of his rights shows that his consent was voluntary. McDonald v. State, 130 So. 3d 102 (Miss. App. 2013):

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Permalink 03:46:55 pm, by fourth, 544 words, 530 views   English (US)
Categories: General

CA3: Orders to a police officer by his superiors conceivably could amount to a seizure, but not here

Orders to a police officer by his superiors conceivably could amount to a Fourth Amendment seizure, but not here. Gwynn v. City of Phila., 719 F.3d 295 (3d Cir. 2013):

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Permalink 03:38:26 pm, by fourth, 310 words, 498 views   English (US)
Categories: General

WA: No private cause of action to get SW for fluoride used in drinking water

There is no private cause of action for a search warrant for fluoride used in drinking water under state law. Protect the Peninsula's Future v. City of Port Angeles, 175 Wn. App. 201, 304 P.3d 914 (2013):

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Permalink 12:55:28 pm, by fourth, 85 words, 519 views   English (US)
Categories: General

PA Independent: PA DNA law resurfaces after U.S. Supreme Court decision

Permalink 12:01:15 am, by fourth, 122 words, 341 views   English (US)
Categories: General

MN: Forensic search of a computer seized under a search warrant is not a second search under the initial warrant

A forensic search of a computer seized under a search warrant is not a second search under the initial warrant. State v. Johnson, 831 N.W.2d 917 (Minn. App. 2013).

The closed container in defendant’s car was searched with probable cause he committed robbery, and it wasn’t a search incident. People v Dixon, 2013 NY Slip Op 4550, 107 A.D.3d 530, 967 N.Y.S.2d 71 (1st Dept. 2013).*

The OVI tip in this case came from the passenger in defendant’s car. State v. George, 2013 Ohio 2511, 2013 Ohio App. LEXIS 2468 (4th Dist. June 14, 2013).*

A search warrant for the premises in a child pornography case did not limit the search to only unoccupied buildings: any building could be searched. Jeffers v. Commonwealth, 62 Va. App. 151, 743 S.E.2d 289 (2013).*

06/19/13

Permalink 05:05:09 pm, by fourth, 109 words, 563 views   English (US)
Categories: General

HuffPo: FBI's Robert Mueller: Drones Are In Use In America

Permalink 10:38:11 am, by fourth, 231 words, 567 views   English (US)
Categories: General

TX5: Drug dog at the front door is a "search"

A drug dog alert at defendant's front door violated the curtilage. Jardines decided while on appeal. State v. Williamson, 2013 Tex. App. LEXIS 4845 (Tex. App. – Dallas April 17, 2013), Released for Publication May 27, 2013:

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Permalink 10:28:54 am, by fourth, 275 words, 504 views   English (US)
Categories: General

Reason.com: John Paul Stevens vs. Elena Kagan on DNA Seizures and the Fourth Amendment

Permalink 06:15:09 am, by fourth, 135 words, 378 views   English (US)
Categories: General

NM: SW for CP on the premises permitted a search of a digital camera

A search warrant for child pornography on the premises permitted a search of a digital camera found there. State v. Gurule, 2013-NMSC-025, 303 P.3d 838 (2013), revg State v. Gurule, 150 N.M. 49, 256 P.3d 992 (2011), posted here.

Defendant was clearly in custody for Fourth Amendment purposes, arrested on outstanding warrants, when he was interrogated without Mirandizing him. United States v. Andrade, 2013 U.S. Dist. LEXIS 84728 (D. Nev. May 3, 2013).*

Officers surveilling a drug house watched a car leave, and they pulled it over when traffic offenses were committed. The officer could immediately smell methamphetamine when the window was rolled down. That was probable cause to search the vehicle. Instead, the officer called a drug dog which took 50 minutes to get there. Because there was probable cause, the delay was not unreasonable. Westmoreland v. State, 322 Ga. App. 299, 744 S.E.2d 822 (2013).*

Permalink 06:00:17 am, by fourth, 156 words, 269 views   English (US)
Categories: General

M.D.Fla.: Thai national here 3 years understood enough English to consent

Defendant, a Thai national here since 2009 on a permanent resident visa worked the counter at a 7-Eleven in Ft. Myers. A woman saw child pornography on his computer and reported him to the police. They came to his work to talk to him, and he consented to a search of his computer. The only contention was that he didn’t understand enough English to validly consent. Testimony at the suppression hearing was conflicting, but the court credited that defendant understood the conversation with the officers and consented to the search of his apartment and computer. Even if the consent was tainted and excluded, the police had probable cause for the search warrant excising that information. United States v. Srisanthia, 2013 U.S. Dist. LEXIS 84761 (M.D. Fla. June 17, 2013).*

Consent was recorded, and was requested and not demanded. It was voluntary. The fact he “was not feeling well” does not undermine consent. State v. Davis, 2013 NMSC 028, 304 P.3d 10 (2013).*

Permalink 03:06:47 am, by fourth, 82 words, 546 views   English (US)
Categories: General

arstechnica: Texas becomes first state to require warrant for e-mail snooping

arstechnica: Texas becomes first state to require warrant for e-mail snooping / Gov. Rick Perry signed HB 2268 on June 14, and it takes effect immediately by Cyrus Farivar:

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Permalink 12:00:14 am, by fourth, 164 words, 453 views   English (US)
Categories: General

Salon.com: NSA spying kills my faith in America

Salon.com: NSA spying kills my faith in America / I thought privacy and the Fourth Amendment meant something. What do I tell my kids now? by Cary Tennis:

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Permalink 12:00:08 am, by fourth, 136 words, 443 views   English (US)
Categories: General

USA Today: Google challenges U.S. gag order in NSA flap

USA Today: Google challenges U.S. gag order in NSA flap by Byron Acohido and Jon Swartz:

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06/18/13

Permalink 12:54:58 pm, by fourth, 181 words, 383 views   English (US)
Categories: General

GA: No reasonable expectation of privacy in jail mental health records

Defendant was behaving bizarrely in jail, so he was examined in the mental health section of the jail. He had a much diminished expectation of privacy in those records. When he filed a NGBRI defense, he waived it all. There was no Fourth Amendment violation by getting the records. Armstead v. State, 293 Ga. 243, 744 S.E.2d 774 (2013).

The officers had reasonable suspicion the defendant was patronizing a prostitute when they approached his car and talked to him. He was still free to leave when he was talking to them. Holmes v. State, 293 Ga. 229, 744 S.E.2d 701 (2013).*

Defendant’s stop was based on a concededly valid window tint violation, so his subjective intent to find drugs was irrelevant. The trial court’s findings the stop was not stalled were supported by the record. Walker v. State, 2013 Ga. App. LEXIS 478 (June 12, 2013).*

The traffic stop here was valid, and consent was obtained during the normal time of the stop. Defense counsel was not ineffective because any other ground of a motion to suppress would have been futile. Betancourt v. State, 322 Ga. App. 201, 744 S.E.2d 419 (2013).*

Permalink 12:35:16 pm, by fourth, 134 words, 343 views   English (US)
Categories: General

CA3: 911 call about argument in motel lobby didn't support entering plaintiff's room

Officers responded to a 911 call about an argument in the lobby of a motel. They entered a room. There was no justification shown for entry into the room under the Fourth Amendment, and the district court’s entry of summary judgment on qualified immunity is reversed. Smart v. Borough of Bellmawr, 528 Fed. Appx. 163 (3d Cir. 2013).*

The officers had reasonable suspicion to approach a group of men across the street from a hang up 911 call and there was nothing going on there. On the totality, there was reasonable suspicion as to defendant for a police encounter. United States v. Hightower, 716 F.3d 1117 (8th Cir. 2013).*

Defendant’s written consent to search his apartment included seizure of papers that supported that he was here illegally. United States v. Nyaga, 2013 U.S. Dist. LEXIS 84372 (E.D. Mo. June 17, 2013).*

06/17/13

Permalink 10:52:07 am, by fourth, 223 words, 522 views   English (US)
Categories: General

New law review article: Constitutional Culpability: Questioning the New Exclusionary Rules

Andrew Ferguson, Constitutional Culpability: Questioning the New Exclusionary Rules (Florida Law Review forthcoming), Abstract:

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Permalink 10:37:15 am, by fourth, 16 words, 303 views   English (US)
Categories: General

Politico: DNI: Analysts can’t eavesdrop on domestic calls without ‘proper legal authorization’

Permalink 08:32:57 am, by fourth, 120 words, 325 views   English (US)
Categories: General

CA3: The search of defendant's car ditched on the highway after flight from a bank robbery didn't require a search warrant

Defendant fled from a bank robbery and ditched his vehicle on the side of the road. His argument that the police needed a search warrant to search it was found “to be without merit,” to put it mildly. He also abandoned it on the side of the road. United States v. Bentley, 528 Fed. Appx. 247 (3d Cir. 2013).* [Sounds like defense counsel ordered to appeal, and this isn't even close.]

Defendant’s post-conviction petition stated a colorable claim for IAC for defense counsel’s failure to preserve a search issue for appeal. Carter v. State, 2013 Tenn. Crim. App. LEXIS 502 (June 14, 2013).*

A claim there is a Fourth Amendment right in a prison cell is manifestly frivolous. Laurensau v. Romarowics, 528 Fed. Appx. 136 (3d Cir. 2013).*

Permalink 07:44:13 am, by fourth, 96 words, 446 views   English (US)
Categories: General

Warscapes: Cryptogams & the NSA: Emailing oneself "Finnegans Wake" brings the FBI

Warscapes: Cryptogams & the NSA by John Sifton of Human Rights Watch:

The first thing I did after I heard about the highly classified NSA PRISM program two years ago was set up a proxy server in Peshawar to email me passages from Joyce’s Finnegans Wake. A literary flight of fancy. I started sending back excerpts from Gerard Manley Hopkins poems.

The cantankerous Seymour Hersh was my inspiration. He had told me about the program in a clipped expletive-filled summary in the summer of 2011: “They’re scooping fucking everything, man! Phones, Internet, the whole works.”

Permalink 01:00:11 am, by fourth, 222 words, 692 views   English (US)
Categories: General

IL: Defendant’s buying a one-way train ticket with cash is not probable cause to search his luggage

Defendant’s buying a one-way train ticket with cash is not probable cause to search his luggage. Cash was suppressed and forfeiture denied, and it was affirmed on appeal. People v. $280,020 in United States Currency, 2013 IL App (1st) 111820, 372 Ill. Dec. 691, 992 N.E.2d 533 (2013). [Yes, there still are drug courier profile cases. Just not as many as before.]

Defendant who sold drugs out of an apartment lacked standing to challenge its search where he was not the renter and not on the utility bills. It was a “stash house.” “While Jones may have spent some nights in the apartment, his primary activity was selling drugs, an illicit commercial function that society doesn't value. Therefore, the court finds that Jones has not met his burden of proving he has standing to challenge the results of the Melville Street search.” Even if he had standing, he loses on the merits of probable cause for the warrant based on the sale from inside. United States v. Jones, 949 F. Supp. 2d 316 (D. Mass. 2013).*

“[T]he [implied] agreement between the PVPD and the LPD [for a drug buy operation in one city] constituted a ‘request for assistance’ under K.S.A. 2012 Supp. 22-2401a(2)(b) and, therefore, the PVPD's drug buy was a lawful exercise of its law enforcement authority.” State v. Vrabel, 49 Kan. App. 2d 61, 305 P.3d 35 (2013).*

Permalink 12:01:53 am, by fourth, 220 words, 403 views   English (US)
Categories: General

MA: No search incident for no DL

Defendant was arrested for no DL. The trial judge made a credibility determination that the gun in this case was not in plain view, and that’s binding. As to search incident, there was no reason to fear anybody would come back to the car for a weapon, and no DL is not an offense for which there likely would be evidence in the car. Commonwealth v. Perkins, 465 Mass. 600, 989 N.E.2d 854 (2013).

A CI bought crack from an apartment in New Orleans, and the officer believed the seller was “Dooley.” He staked out the apartment and followed a man leaving whom he believed to be Dooley. The officer called out to defendant to stop and he fled, popping a white bag the size of a ping-pong ball into his mouth which he began to “violently” chew. Officers got him to spit out what was left, and it tested positive for crack. The stop was with reasonable suspicion. State v. Wilson, 119 So. 3d 843 (La. App. 4 Cir. 2013).*

Drug officers watched defendant at gas station pumps doing what appeared to be two hand-to-hand transactions instead of buying gas. That supported a stop. He did not argue the stop was too long at the district court. A drug dog alerted. He was charged with a gun. United States v. Alexander, 528 Fed. Appx. 515 (6th Cir. 2013).*

Permalink 12:00:02 am, by fourth, 604 words, 740 views   English (US)
Categories: General

IA: Defendant read from an attorney’s card saying “I refuse to consent”; consent finally obtained was involuntary

When defendant was stopped, he read from an attorney’s card saying “I refuse to consent.” He was detained, and when he finally “consented,” it was involuntary. State v. Gogel, 2013 Iowa App. LEXIS 640 (June 12, 2013):

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06/16/13

Permalink 08:58:08 pm, by fourth, 45 words, 371 views   English (US)
Categories: General

NYT: Fears of National ID With Immigration Bill

NYT: Fears of National ID With Immigration Bill by Eric Lipton:

WASHINGTON — Driver’s license photographs and biographic information of most Americans would be accessible through an expanded Department of Homeland Security nationwide computer network if the immigration legislation pending before the Senate becomes law.

Permalink 07:14:30 pm, by fourth, 45 words, 414 views   English (US)
Categories: General

CNET: NSA spying flap extends to contents of U.S. phone calls

CNET: NSA spying flap extends to contents of U.S. phone calls by Declan McCullagh:

National Security Agency discloses in secret Capitol Hill briefing that thousands of analysts can listen to domestic phone calls. That authorization appears to extend to e-mail and text messages too.

Permalink 01:04:12 pm, by fourth, 259 words, 464 views   English (US)
Categories: General

OH9 grants rare reversal of grant of motion to suppress based on factfinding having no support in record

Trial court’s findings suppressing the evidence were not supported by the record. It held there was “not one shred of evidence” from which an officer could apply the emergency exception. That was incorrect, and the case is remanded to reweigh the evidence. State v. Hendrix, 2013 Ohio 2430, 2013 Ohio App. LEXIS 2367 (9th Dist. June 12, 2013):

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Permalink 09:10:30 am, by fourth, 114 words, 315 views   English (US)
Categories: General

CA5: Gun runner had no standing for search of transport house

The district court granted a motion to suppress for two defendants but found no standing as to this defendant. He was on the premises to smuggle guns across the border, “a purely commercial purpose,” and was not the type of overnight guest entitled to standing. United States v. Rios-Davila, 530 Fed. Appx. 344 (5th Cir. 2013).

There was probable cause to search defendant’s car for cocaine when he arrived at the scene where the government established the cocaine was and it was put into the car. [He gains reversal for a 404(b) issue.] United States v. Richards, 719 F.3d 746 (7th Cir. 2013).*

Reasonable suspicion defeats an unlawful seizure claim. S.S. v. Bolton, 522 Fed. Appx. 452 (11th Cir. 2013).*

06/15/13

Permalink 10:30:36 am, by fourth, 124 words, 406 views   English (US)
Categories: General

TX1: Drug dog on the curtilage is a "search"

Officers used a drug dog to sniff the front door of defendant’s house and he moved to suppress. The trial court denied the motion, and he was convicted. While on appeal, Jardines was decided, and it controls. While normally a dog sniff is not a search, it is when the curtilage is involved. Removing that unconstitutionally obtained information from the affidavit for search warrant leaves no probable cause. McClintock v. State, 405 S.W.3d 277 (Tex. App. – Houston (1st Dist.) 2013).

The merits of the search issue was decided on defendant’s direct appeal. On his 2255 he argues it a slightly different way, but he clearly could not prevail so the certificate of appealability (COA) is denied. United States v. Hunter, 527 Fed. Appx. 796 (10th Cir. 2013).*

Permalink 10:13:36 am, by fourth, 121 words, 340 views   English (US)
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Global Grind: The public already knew what NSA was doing; NPR: FISC order may be released

Global Grind: Infringe On The Fourth, But Hands Off The Second: Constitutional Hypocrisy by Danielle DeAbreu

NPR: Source: Obama Considering Releasing NSA Court Order by Carrie Johnson

NPR has learned that the Obama administration, under pressure to lift a cloak of secrecy, is considering whether to declassify a court order that gives the National Security Agency the power to gather phone call record information on millions of Americans.

The document, known as a "primary order," complements a shorter Foreign Intelligence Surveillance Court document leaked to The Guardian newspaper earlier this month. That document revealed the U.S. government had been asking Verizon Business Network Services Inc. to turn over, on a daily basis, phone call records for its subscribers, for 90 days.

Permalink 10:07:39 am, by fourth, 227 words, 276 views   English (US)
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GA: Defendant knew subject of search was drugs before he consented

Defendant’s offer to let the officer “check” for anything illegal was countered with “drugs or guns” was the subject of this search, and defendant agreed. That was a consent to a complete search. Betancourt v. State, 2013 Ga. App. LEXIS 479 (June 12, 2013).*

The product of an allegedly invalid protective sweep did not affect the decision to grant a search warrant. What omissions there were were immaterial to the probable cause determation. United States v. Munteanu, 2013 U.S. Dist. LEXIS 83346 (E.D. N.Y. June 12, 2013).*

In Oregon, reasonable suspicion is required to run wants or warrants. State v. Dierks, 257 Ore. App. 88, 306 P.3d 653 (2013)*:

In sum, we conclude that, given the totality of the circumstances that existed when Barrett returned to his patrol car after obtaining the passenger's driver's license and a name from defendant, a reasonable person in defendant's circumstances would have believed that Barrett was running a warrants check on the name she had given him and that, given his other inquiries, she was the subject of a criminal investigation and was not free to walk or drive away. The state does not contend either that Barrett had reasonable suspicion of criminal activity before he checked LEDS or that the evidence that defendant sought to suppress was not discovered as a result of the unjustified stop. Accordingly, the trial court erred when it denied defendant's motion to suppress.

Permalink 12:26:01 am, by fourth, 240 words, 388 views   English (US)
Categories: General

TN: Officer stopping car out of place for neighborhood was with reasonable suspicion

Officers were on the lookout for a serial rapist who struck homes in wooded areas on rainy nights. On this rainy night, in a wooded neighborhood, the police encountered defendant on a report of somebody peeping in cars. Defendant was driving a Jeep that the officer had seen parked in the area an hour earlier with a warm hood. The officer got his name and license number but let him go. Later, defendant was identified as a suspect. The stop was with reasonable suspicion some crime was afoot when defendant was stopped. State v. Burdick, 2013 Tenn. Crim. App. LEXIS 494 (June 11, 2013).* (Another of defendant’s cases from June 13, 2012 in a different county is here.)

The officer stopped defendant for a traffic violation and recognized him from having stopped him before and finding a gun. Defendant was looking straight ahead, wouldn’t make eye contact, was sweating and breathing heavy, and was rubbing his hands on his thighs. The officer was concerned he was armed and got him out of the car for a patdown, which defendant ducked and tried to avoid. There was a take down and a gun slid out. This was all reasonable. United States v. Bong, 2013 U.S. Dist. LEXIS 82438 (D. Kan. June 12, 2013).*

Court grants the government a hearing to overcome the USMJ’s recommendation a Franks motion to suppress be granted so the record can be supplemented. United States v. Guzman-Batista, 948 F. Supp. 2d 194 (D. P.R. 2013).*

Permalink 12:10:19 am, by fourth, 644 words, 563 views   English (US)
Categories: General

E.D.Va.: Following straw purchaser of AK-47 who ignored police justified warrantless entry

Defendant made a straw purchase of an AK-47, and they followed her where she was delivering it. Agents came to the door close on her heels, and they heard it locked. The warrantless entry was based on exigent circumstances. This was not an unreasonable police created exigency. United States v. Jackson, 2013 U.S. Dist. LEXIS 82352 (E.D. Va. June 11, 2013):

=> Read more!

06/14/13

Permalink 04:01:26 pm, by fourth, 147 words, 286 views   English (US)
Categories: General

CA4: Stop was because of lane change, then a dog sniff; GPS attenuated

Officers had a GPS on defendant’s car, and they were tailing him. His lane change violation led to a stop. The illegal GPS [not even discussing good faith] was attenuated by the traffic stop and a dog alert. United States v. Richard, 528 Fed. Appx. 323 (4th Cir. 2013)* [A long way to go when good faith would have been easier.]

The jury was instructed on the objective use of force to stop plaintiff from entering a house. The motion in limine on the officer’s subjective state of mind was erroneously granted, but harmless error because of the objective standard. Cavanaugh v. Woods Cross City, 718 F.3d 1244 (10th Cir. 2013).*

Officers did not stop defendant: he was broken down in the middle of the street when they came upon him and found him under the influence. United States v. Tate, 2013 U.S. Dist. LEXIS 82682 (E.D. N.C. June 5, 2013).*

Permalink 02:20:06 pm, by fourth, 347 words, 743 views   English (US)
Categories: General

Cal.1st: No reasonable expectation of privacy in not being GPS tracked by the phone you stole

Defendant stole a woman’s purse at gunpoint. In her purse was a smart cell phone with GPS. Tracking the GPS to locate the defendant violated no right of his. People v. Barnes, 216 Cal. App. 4th 1508, 157 Cal. Rptr. 3d 853 (1st Dist. 2013).* [Law.com article here from 6/27] This opinion is six times longer than it needed to be because the Jones tracking argument was completely irrelevant:

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Permalink 02:00:23 pm, by fourth, 189 words, 288 views   English (US)
Categories: General

TN: Defendant leaving his house to go to a drug sale was nexus for search of the house

“[W]e conclude that there existed such a nexus, which was created by law enforcement officers' personal observation of the Defendant exiting and freely reentering the residence before and after the drug sale.” State v. Boone, 2013 Tenn. Crim. App. LEXIS 489 (June 10, 2013)* (concurrence).

Defendant denied ownership or a privacy interest in 40 boxes in a truck that were found to contain marijuana. He was held to have no standing as a mere bailee of the boxes, and the issue wasn’t appealed. “Defendant has not shown how [defense counsel] could have argued the issue differently, or that if he had done so, the result would have been different. Likewise, defendant has not shown that [defense counsel’s] performance was deficient for failing to raise the issue on appeal or that if she had done so, the result of the proceeding would have been different.” United States v. Robles, 2013 U.S. Dist. LEXIS 81736 (D. Kan. June 11, 2013).*

Defendant was a suspect in a home invasion and he fled to his apartment. Police had probable cause to arrest, and the entry in hot pursuit was valid. Ahmed v. State, 322 Ga. App. 154, 744 S.E.2d 345 (2013).*

Permalink 10:13:22 am, by fourth, 199 words, 265 views   English (US)
Categories: General

CT: Whether CT court could issue SW for Gmail account in CA is undecided because it's harmless

A Connecticut state judge issued a search warrant for a Gmail account in Mountain View, California. It was briefed by the parties, but remains undecided. Even if it was error, it was harmless beyond a reasonable doubt. State v. Esarey, 308 Conn. 819, 67 A.3d 1001 (2013). See note 17:

We stay our hand with respect to determining whether a judge of the Superior Court has the authority to issue a search warrant for electronic information that is stored on an out-of-state server when the underlying investigation relates to crimes committed in this state. We note, however, that our prior jurisprudence does not suggest a rigid approach to our state courts' jurisdiction under § 51-1a (b), allowing us to act extraterritorially when a crime at issue has an "overwhelming factual nexus" to Connecticut and its "public welfare." ... [If Google does business in Connecticut, and it does, why can’t a search warrant be issued for evidence to a Connecticut crime? It might violate state law, but a territorial limitation on state law has no Fourth Amendment consequence.]

Defendant could not be stopped because he didn’t use a signal to go straight. Stop suppressed. State v. Paseka, 2013 Ohio 2363, 2013 Ohio App. LEXIS 2311 (6th Dist. June 7, 2013).*

Permalink 09:41:18 am, by fourth, 97 words, 256 views   English (US)
Categories: General

OH12: Refusal to stop bicycle supported search incident

Defendant was attempted to be stopped for riding a bicycle without a light at night. Instead of stopping, he pedaled faster. That netted him an obstruction charge. The obstruction charge supported a search incident. State v. Willis, 2013 Ohio 2391, 2013 Ohio App. LEXIS 2346 (12th Dist. June 10, 2013).*

“[T]he mere presence of women during the [prison] lockdown strip search on October 5, 2009 rendered the searches unconstitutional.” Small v. Wetzel, 528 Fed. Appx. 202 (3d Cir. 2013).*

Defendant’s furtive movement as car was stopped justified a search under the driver’s seat. United States v. Law, 2013 U.S. Dist. LEXIS 80691 (E.D. Cal. June 5, 2013).*

Permalink 08:42:40 am, by fourth, 197 words, 277 views   English (US)
Categories: General

OH9: Smell of MJ was PC for car interior; finding it there was PC for trunk

The trial court erred in granting a motion to suppress a search of the trunk of defendant’s car. When the officer smelled marijuana, he could search the passenger compartment. When he found it, he could search the trunk. State v. Jones, 2013 Ohio 2375, 2013 Ohio App. LEXIS 2326 (9th Dist. June 10, 2013).*

Consent here included the whole vehicle: “Sgt. Carson again clarified the scope of Capps's consent by asking ‘[s]o you're giving me consent to search your vehicle’? Capps repeated the same response, ‘go ahead and look.’ Accordingly, the district court did not err in concluding that an objectively reasonable person would have understood Capps to have consented to a search of the entire vehicle.” United States v. Capps, 716 F.3d 494 (8th Cir. 2013).

Defendant lured a girl off the street claiming her mother told him to pick her up. He took her to his house and showed her pornography and pulled his pants down, showing his underwear. She started crying, and he took her home. There was a computer with a camera on it in the room. That was probable cause to search his place for child pornography. Checo v. State, 402 S.W.3d 440 (Tex. App. – Houston (14th Dist.) 2013).*

06/13/13

Permalink 07:47:54 am, by fourth, 172 words, 325 views   English (US)
Categories: General

OH2: Man removed from car because of marijuana smell could be patted down.

After raw marijuana was smelled and defendant was removed from his car, it was reasonable to pat him down for weapons before putting him in the back of a police car. State v. Chase, 2013 Ohio 2347, 2013 Ohio App. LEXIS 2274 (2d Dist. June 7, 2013).*

Defendant was already stopped when the officer stopped his car and walked up to him. The conversation was consensual, and raw marijuana could be smelled and that led to a search. State v. Chase, 2013 Ohio 2346, 2013 Ohio App. LEXIS 2277 (2d Dist. June 7, 2013).*

Defendant’s wife had common authority over a cabinet that stored child pornography she found, so she could consent to a search. People v. Lyons, 2013 IL App (2d) 120392, 991 N.E.2d 506 (2013).*

There was probable cause to seize defendant’s car and search is based on the automobile exception. Defendant was on a wire talking and he was to be transporting drugs. When got into his car to go to a meeting, that was PC to believe drugs would be in the car. United States v. Dennis, 527 Fed. Appx. 221 (3d Cir. 2013).*

Permalink 07:30:30 am, by fourth, 154 words, 296 views   English (US)
Categories: General

D.Md.: Defendant gets discovery as to FBI knowledge re GPS good faith exception

Pre-Jones planting of a “slap on GPS device” is governed by the good faith exception. However, the defendant is granted discovery relating to the GPS decision in Maynard as it relates to the government’s good faith defense. “Therefore, the defense is entitled to directives or instructions, if any, issued to the federal agents involved in the investigation of Wilford, directing compliance in Maryland with Maynard during any period of the investigation.” United States v. Wilford, 961 F. Supp. 2d 740 (D. Md. 2013).*

A GPS was placed on defendant’s car while it was parked in his driveway. It was pre-Jones, and the Davis good faith exception saved the search. United States v. Dooley, 2013 U.S. Dist. LEXIS 80904 (N.D. Ga. June 7, 2013).*

The government failed to prove that the defendant’s alleged traffic violation in a national park actually was one, and the stop is suppressed. United States v. Cole, 948 F. Supp. 2d 1251 (W.D. Wash. 2013).*

06/12/13

Permalink 10:09:45 pm, by fourth, 137 words, 659 views   English (US)
Categories: General

HuffPo: Sean Hannity Displays Hypocrisy On NSA Surveillance (VIDEO)

Permalink 08:21:43 pm, by fourth, 271 words, 667 views   English (US)
Categories: General

Breaking: eff.org: FISA court rejects catch-22 secrecy argument in FOIA case

Permalink 07:55:37 pm, by fourth, 163 words, 555 views   English (US)
Categories: General

eff.org: The NSA’s Word Games Explained: How the Government Deceived Congress in the Debate over Surveillance Powers

Permalink 07:51:09 pm, by fourth, 139 words, 514 views   English (US)
Categories: General

NYT: Google Offers Some Detail About How It Transfers Data to the Government

Permalink 08:41:09 am, by fourth, 167 words, 592 views   English (US)
Categories: General

NM constitution permits telephone search warrants

State constitution’s search and seizure provision permits warrant applications and warrants by telephone. State v. Boyse, 2013-NMSC-024, 303 P.3d 830 (2013):

=> Read more!

Permalink 08:19:51 am, by fourth, 747 words, 482 views   English (US)
Categories: General

CA10: Delay in search of computer seized by consent was not unreasonable

Defendant was accused under the Assimilative Crimes Act of ignoring her infant child to death while her husband was deployed, spending 12-15 hours a day computer gaming, hardly stopping for anything. Her husband consented to a seizure of the computer, and it was finally searched months later. While a delay can be unreasonable, it wasn’t here and she never complained before the search. Her computer history was damning evidence against her. United States v. Christie, 717 F.3d 1156 (10th Cir. 2013):

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Permalink 08:03:02 am, by fourth, 161 words, 432 views   English (US)
Categories: General

MI reverses Jardines-like case

This case was held in abeyance pending Jardines because of its similarity: a dog sniff of a residence. It is reversed rather than rebriefed. People v. Holt, 494 Mich. 863, 831 N.W.2d 241 (2013):

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Permalink 07:52:10 am, by fourth, 306 words, 370 views   English (US)
Categories: General

CA11: Roadblock for bank robber was reasonable, one car stopped

A roadblock to stop a fleeing bank robber was reasonable: It stopped the one vehicle they had a description for, and it was placed based on reports from the beeper. United States v. Rodger, 521 Fed. Appx. 824 (11th Cir. 2013).

The trial court erred in holding that the police with an anonymous report of a methamphetamine lab should have gotten a search warrant. There wasn’t yet probable cause. They went to the house to corroborate it, and when the door was opened, they found an operating meth lab with a smoky haze in the room. That constituted an emergency to seize the apartment for an emergency search. State v. Lee, 2013 Ala. Crim. App. LEXIS 44 (June 7, 2013),* substituted opinion 2013 Ala. Crim. App. LEXIS 82 (October 4, 2013):

Conversely, the State has not demonstrated that the trial court erred in its finding that the January 7 search of the apartment lacked sufficient evidence of the existence of exigent circumstances. On January 7, Officers Taylor and Hall were unable to determine from which apartment the odor they were smelling was coming until Bailey opened the door to the apartment. Officer Taylor testified that he did not see any fire or smoke inside the apartment. In fact, Officer Taylor testified that the apartment appeared to be safe. Thus, based on Taylor's testimony that the apartment appeared to be safe and the testimony that the officers were unable to determine from which apartment the odor they were smelling was coming, the trial court did not abuse its discretion in finding there was a lack of testimony about the existence of exigent circumstances on January 7, and the State has not shown that the trial court improperly granted the motion to suppress with regard to the January 7 search.

Gant’s “reasonable to believe” language applies to DUI cases for a search incident. State v. Ewertz, 49 Kan. App. 2d 8, 305 P.3d 23 (2013).*

06/11/13

Permalink 01:59:44 am, by fourth, 406 words, 612 views   English (US)
Categories: General

Bankr.D.Mont.: By declaring bankruptcy, one has a reduced expectation of privacy in his assets, even undisclosed ones

A bankruptcy trustee is not acting as a government agent for Fourth Amendment purposes [a proposition I completely reject because they are agents of the government: the one bankruptcy hearing day I watched, the Bankruptcy Judge referred to them as “my trustees”; and see Taunt v. Barman (In re Barman), 252 B.R. 403, 412-13 (Bankr. E.D. Mich.2000)]. At any rate, the defendant was obligated as a person filing bankruptcy to list his assets under oath, and that was essentially a waiver of his expectation of privacy. He had a significantly reduced expectation of privacy in a cache of gold and silver which he failed to disclose on the bankruptcy that the trustee learned about, and the trustee could go looking for it. The court also notes that the bankrupt was a member of the "sovereign" movement. In re Bodeker, 2013 Bankr. LEXIS 2336 (Bankr. D. Mont. June 7, 2013):

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Permalink 01:00:37 am, by fourth, 165 words, 331 views   English (US)
Categories: General

E.D.La.: Expert on drug dog handler cues rejected; officer best witness to what he did or didn't do

Under Florida v. Harris, the K-9 officer was the best person to testify whether he improperly cued the dog to alert. Viewing the video, he said he didn’t. The opinion of the expert who said he did cue the dog is rejected since it is based on the same two minute video because the expert didn’t have enough information to go on. United States v. Guyton, 2013 U.S. Dist. LEXIS 79694 (E.D. La. April 16, 2013).*

Defendant lawyered up during his interrogation, but the police asked him questions about his watch and what hotel he was staying at. They got a search warrant for the hotel room. He doesn’t argue that the search should be suppressed because he identified where he was staying, and the police had a warrant. Therefore, the search was valid. United States v. Balde, 2013 U.S. Dist. LEXIS 78336 (E.D. N.C. June 4, 2013).*

A DUI arrest supports a search incident of the vehicle. State v. Ewertz, 2013 Kan. App. LEXIS 51 (June 7, 2013).

Permalink 12:30:02 am, by fourth, 244 words, 411 views   English (US)
Categories: General

MD: Police reasonably relied on landlord's belief tenant had vanished

Defendant’s landlord reasonably believed that he had moved out of his apartment when he left the country for six weeks. Defendant had changed the lock, and the landlord had no communication with him. He found the place trashed with “lots of pot” laying around. The police reasonably relied on the landlord’s representations and apparent authority. Frobouck v. State, 212 Md. App. 262, 67 A.3d 572 (2013).

The Florida one-party consent to recording statute, FSA ch. 934, has not been much discussed in the case, but this court finds that it does not apply to recordings a child sex abuse victim made with her abuser. He had no reasonable expectation of privacy that she would not record him soliciting sex from her in their home. McDade v. State, 112 So. 3d 551 (Fla. 2d DCA June 7, 2013):

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Permalink 12:00:27 am, by fourth, 186 words, 346 views   English (US)
Categories: General

MS: Undercarriage of car considered murder weapon properly searched under automobile exception

In this death penalty case, defendant’s car was suspected of running down and over his victim. When the car was seized, the undercarriage of the car had tissue from the victim. The car was seized for a search warrant, but immediate seizure of the tissue sample was clearly reasonable under the automobile exception even before the warrant. Galloway v. State, 122 So. 3d 614 (Miss. 2013).

Jamaican wiretaps were done by local law enforcement, and Jamaican authorities were not acting as surrogates for U.S. law enforcement. The product of the wiretap could thus be used in a U.S. court. Also, the government could not be made to turn over the wiretap applications because they were not in its possession. United States v. Lee, 723 F.3d 134 (2d Cir. 2013).

Defendant was in a group of men “socializing” when an officer cut him from the pack and escorted him to a car while holding his waistband. He was asked for consent and did. The stop was without reasonable suspicion, and suppression should have been granted. People v. Noah, 2013 NY Slip Op 04144, 2013 N.Y. App. Div. LEXIS 4052 (4th Dept. June 7, 2013).*

06/10/13

Permalink 03:02:02 pm, by fourth, 123 words, 568 views   English (US)
Categories: General

Buffalo News: Racial disparities found in marijuana charges in NYS

Permalink 07:21:14 am, by fourth, 406 words, 613 views   English (US)
Categories: General

CA8: Putting cell phones in airplane mode and then in a protective bag to prevent wiping was reasonable during inventory

There was probable cause to arrest defendant for bank fraud. Even assuming this bank fraud investigation was tainted because it relied on an alleged unadjudicated unconstitutional search in Los Angeles in a similar scheme, this was clearly attenuated. There was PC without it. At most, only his name was learned from Los Angeles. Officers knew that defendant was using a laptop from public access points to communicate with the bank he was attempting to defraud. When arrested, he had the bag on him. The bag was inventoried, and the cell phones were put into “airplane” mode and then in a protective “Faraday” bag so they could not be remotely wiped. This was reasonable. Also, the district court credited the officers on complying with the FBI’s inventory policy. United States v. Smith, 715 F.3d 1110 (8th Cir. 2013):

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Permalink 07:07:48 am, by fourth, 227 words, 289 views   English (US)
Categories: General

MS: Search in forfeiture case is challenged only by motion to suppress; not a merits issue

A Fourth Amendment claim to forfeiture is made pretrial by a motion to suppress. Lack of probable cause is not a defense to forfeiture. Twenty Thousand Eight Hundred Dollars $20,800.00 in United States Currency v. State ex rel. Miss. Bureau of Narcotics, 115 So. 3d 137 (Miss. App. 2013).*

On an interlocutory government appeal from suppression, the defendant cannot seek additional suppression of evidence because that must await final appeal. There was reasonable suspicion for detention of defendants, and a drug dog validly alerted on their tractor-trailer. “Therefore, defendants' detention did not cause the government's discovery of the challenged evidence. Put another way, the agents did not ‘exploit[]’ defendants' seizure to discover the evidence; it was discovered ‘by means sufficiently distinguishable’ from that seizure. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Defendants' case for suppression therefore fails on the requirement of causation: ‘The exclusionary rule forbids the government from using evidence caused by an illegal seizure, not evidence found around the time of a seizure.’ Clariot, 655 F.3d at 555. It does not apply here.” United States v. Figueredo-Diaz, 2013 U.S. App. LEXIS 11231, 2013 FED App. 0159P (6th Cir. June 5, 2013).

The finding of the gun in this case came from a valid plain view during a protective sweep of defendant’s place when he was arrested for armed robbery. Hutto v. State, 114 So. 3d 802 (Miss. App. 2013).*

Permalink 12:00:38 am, by fourth, 152 words, 282 views   English (US)
Categories: General

MA: Entry to seize apartment to get SW was unlawful, but PC still existed for SW

Officers unlawfully entered the apartment to seize it while getting a search warrant. Therefore, the observations made should not have been included in the search warrant application. Excluding those observations still left probable cause. “Because a valid search warrant would have issued regardless of the inclusion of the tainted information discovered during the initial entry into the apartment, there was an independent source for the challenged evidence.” Commonwealth v. Gray, 465 Mass. 330, 990 N.E.2d 528 (2013).

The strong odor of marijuana coming from the car when the window was rolled down implicated the driver and passenger and was probable cause. People v. Williams, 2013 IL App (4th) 110857, 990 N.E.2d 916 (2013).*

“In photographing defendant's shoes and clothing for criminal investigative purposes [six months after seizure] and in ultimately retaining those items as evidence, Doble exceeded the scope of a lawful inventory and effectuated an unlawful warrantless search and seizure.” State v. Lovaina-Burmudez, 257 Ore. App. 1, 303 P.3d 988 (2013).*

06/09/13

Permalink 03:28:41 pm, by fourth, 732 words, 2084 views   English (US)
Categories: General

Rep. Sensenbrenner: “I authored the Patriot Act” thereby permitting this abuse of the law

Guest post by G. Jack King:

In a column published in today’s Guardian (U.K.) titled “This abuse of the Patriot Act must end,” U.S. Congressman Jim Sensenbrenner writes, “The administration claims authority to sift through details of our private lives because the Patriot Act says that it can. I disagree. I authored the Patriot Act, and this is an abuse of that law.”

Nice sentiment, but it’s not just misleading -- it’s all false. Let me explain.

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Permalink 03:16:17 pm, by fourth, 227 words, 1020 views   English (US)
Categories: General

Guardian: Edward Snowden: the whistleblower behind revelations of NSA surveillance

Permalink 11:00:49 am, by fourth, 136 words, 502 views   English (US)
Categories: General

Guardian: Boundless Informant: the NSA's secret tool to track global surveillance data

Permalink 02:00:00 am, by fourth, 438 words, 493 views   English (US)
Categories: General

MA: Passenger in car can challenge GPS, too

Data from GPS devices do not fall within the language of the Massachusetts wiretap statute. Here, there was probable cause for installation of a court ordered GPS tracking device in the investigation of serial arsons. The Massachusetts court also determined that the passenger had standing to challenge the use of GPS too because his movements were also logged because he was in the car. Commonwealth v. Rousseau, 465 Mass. 372, 990 N.E.2d 543 (2013):

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Permalink 01:00:42 am, by fourth, 203 words, 428 views   English (US)
Categories: General

D.Minn.: A motion to suppress is not a motion to just check the issuing judge's work

It’s not the court’s job to review the warrant application to see if it’s up to par. Defendant’s motion to suppress was nothing more than a motion to check the state judge’s work. United States v. White, 2013 U.S. Dist. LEXIS 79104 (D. Minn. May 13, 2013):

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Permalink 12:31:34 am, by fourth, 245 words, 408 views   English (US)
Categories: General

ID: Hearing officer's findings of fact on DL suspension entitled to deference on appeal

The hearing officer’s determination of factual cause for the stop was entitled to deference, and the trial court erred in substituting its own judgment for that. In the Matter of Driver's License Suspension of Trottier v. State, Transportation Dept., 2013 Opinion No. 34, 304 P.3d 292 (2013).*

Email “meth check alert” came to the police from a Wal-Mart that somebody bought too much pseudoephedrine. “[T]he circuit court concluded that the e-mail generated by the National Precursor Law Enforcement Exchange Program and sent to [the officer] was analogous to an anonymous tip that did not provide a sufficient basis to conduct an investigatory stop on the vehicle in which Pollard was riding.” The trial court suppressed, and the state appealed. The state did not raise the question of the legality of defendant’s stop below, but the court gives the state a pass on that because the record has enough: Namely, the officer ran the LPN and came back with a warrant on the owner of the vehicle and that justified the stop. State v. Pollard, 2012 Ala. Crim. App. LEXIS 130 (December 14, 2012)* [Yes, this opinion is six months old and just on Lexis.]

Defendant was arrested for DUI after an officer got a report that someone was breaking in to cars in a high crime area. Defendant’s stop was not supported by any factual justification that he was doing anything wrong. No traffic offense; no suspicion; no hunch. State v. Hahn, 2013 Ohio 2308, 2013 Ohio App. LEXIS 2234 (5th Dist. June 3, 2013).*

Permalink 12:02:45 am, by fourth, 246 words, 293 views   English (US)
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M.D.Pa.: No constitutional right to not be seen peeing by female staffer at halfway house

Plaintiff in a halfway house had no constitutional right not to have female staff members see his genitals when he peed in a cup for a drug test. Zullinger v. York County CCC Halfway House, 2013 U.S. Dist. LEXIS 78404 (M.D. Pa. June 3, 2013).*

Defendant did not properly object to the search warrant in this case, so he waived the claim, also considering the presumption of validity of a search warrant. “Search warrants are presumed valid, and ‘where a presumption of the validity of a search warrant exists, the burden is upon the defendant to overturn that presumption.’ Jones v. State, 783 N.E.2d 1132, 1136 (Ind. 2003).’” Speer v. State, 2013 Ind. App. LEXIS 266 (May 31, 2013).*

Defendant’s stop was without reasonable suspicion, and everything that happened during the stop couldn’t be attenuated from that. Suppression granted. United States v. Lunas, 2013 U.S. Dist. LEXIS 78769 (W.D. Pa. June 5, 2013).*

The affidavit for search warrant fairly showed probable cause, and defendant’s quibbling over one detail did not undermine the PC. “Although this description does not contain a physical description of the size, shape, or color of the items to be seized it does provide more than a generic description.” It was clear. United States v. Beck, 2013 U.S. Dist. LEXIS 79055 (E.D. N.C. June 5, 2013).*

A window tint stop did not prohibit the officers from running wants or warrants on him and ordering him out of the car. United States v. Castle, 2013 U.S. Dist. LEXIS 78412 (W.D. Tenn. May 17, 2013).*

Permalink 12:00:42 am, by fourth, 210 words, 437 views   English (US)
Categories: General

CA10: Rule 41(g) motion for return of property cannot be used as a substitute for a motion to suppress

A motion for return of property under Rule 41(g) cannot be used as a substitute for a motion to suppress. And, nothing in the record suggests the search of his computer for child pornography was illegal. United States v. Penry, 515 Fed. Appx. 784 (10th Cir. 2013):

=> Read more!

06/08/13

Permalink 09:49:49 am, by fourth, 802 words, 1725 views   English (US)
Categories: General

Under law, all this is, quite regretfully, legal.

I’ve been watching the media run around with their hair on fire screaming that the Obama Administration has subverted the Fourth Amendment: First with the subpoenas to FoxNews and the NYTimes, and then with the revelation the NSA is sweeping up all the numbers dialed on Verizon. Hardly anybody writing about this has any sense of history or knowledge of the law. I’ve been saying this all along: This is perfectly legal under the Fourth Amendment. It is distasteful as hell, but it violates no law. (WaPo: Obama defends NSA’s sweeping surveillance: “President Obama says ‘nobody is listening to your telephone calls’ and that Congress has authorized the programs.”)

The Bush Administration had plans for all this to begin with, but then quickly came the opportunity for the USA PATRIOT Act. To paraphrase Justice Scalia during the Voting Rights Act argument, It’s against a Congressman’s interest because of a name like that? “Even the name of it is wonderful: The [Patriot] Act. Who is going to vote against that in the future?”.

The Patriot Act became law without any critical thought, and it made it carte blanche for government to gather information about us. Couple this with the information technology available over the last decade and the ability to store Brontobytes of data, and that we see now was inevitable. I’m not the slightest bit surprised. Nobody keeping up is surprised. (1984 was nearly 30 years ago.)

All this data collection is perfectly legal under pre-Patriot Act law and compounded by it. In 1976, the Supreme Court held in Miller v. United States that it did not violate the Fourth Amendment for the government to gather information from bank records of a depositor under investigation. In 1979, the Court held in Smith v. Maryland that it did not violate the Fourth Amendment for the government to put a pen register on a telephone to record only the numbers being dialed because the telephone call wasn’t recorded. That was, after all, all technology allowed at the time. Think of the NSA as one huge pen register.

Fast forward 34 years to today, and it has been widely known that the NSA has the ability to gather all the information off satellites without a warrant. (1998’s movie “Enemy of the State” was not off the mark.)

So, the subpoenas for phone records of journalists: perfectly legal. Congress has not seen fit to ever adopt a journalist shield law to help implement the First Amendment. They don’t have any standing to complain.

If you don’t like the privacy implications, Sen. Paul has proposed legislation to change it. First is the “Fourth Amendment Preservation and Protection Act of 2013,” S. 1037 that would legislatively overrule Smith and Miller. Second is “A bill to stop the National Security Agency from spying on citizens of the United States,” S. 1121.

Then there is the question of legislation to revamp the hopelessly outmoded Stored Communications Act. The “Email Privacy Act,” H.R. 1852 is a start but never good enough.

What is Congress doing? Essentially nothing. Proposing a law with great fanfare is meaningless if it goes nowhere. I wrote my Senators about email privacy, so I figure they don’t care since they never wrote back. So, I haven’t bothered to write to them about Sen. Paul’s bills. Congress is too mired in gamesmanship to do their damned jobs of actually legislating in the public interest.

“We the people” are the boiling frog, and the water has started to boil. We started giving up our liberties long before Bush and Ashcroft sold the Patriot Act, and that was just raw exploitation of fear over any sense of history. “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” Ben Franklin, 1759 (or 1775 depending on the source).

Today’s computers and software make unlimited information gathering possible, and the information is there, waiting to be mined. Under law, all this is, quite regretfully, legal. There is infinite personal information about each of us out there, just waiting to be gathered up. Smith and Miller have outlived their usefulness, and they need to be legislatively overruled because this is just the first real public disclosure of what’s been going on for at least a decade. We don’t have time for SCOTUS to get around to it. And what if it doesn’t?

Now, what are we going to do about it? Complain, but sit on or wring our hands and do nothing? (The “collective national shrug”?) Write to your Senators so Sen. Paul’s bill will get to committee for a discussion. The committee hearings, I’m sure, will be entertaining. And, to Sens. Pryor and Boozman: Do something. What are you there for? Stop just taking up space.

Permalink 09:45:38 am, by fourth, 52 words, 544 views   English (US)
Categories: General

TPM: Report: NSA Accidentally Collected Data From Innocent Americans

TPM: Report: NSA Accidentally Collected Data From Innocent Americans by Igor Bobic:

The National Security Agency inadvertently collected data from innocent Americans in 2009, including private email messages and phone conversations, prompting a review by Attorney General Eric Holder in the way the agency manages its domestic surveillance program, NBC News reported Friday: ...

Permalink 09:34:27 am, by fourth, 35 words, 454 views   English (US)
Categories: General

Mother Jones: Justice Department Fights Release of Secret Court Opinion Finding Unconstitutional Surveillance

Mother Jones: Justice Department Fights Release of Secret Court Opinion Finding Unconstitutional Surveillance by David Korn:

Government lawyers are trying to keep buried a classified court finding that a domestic spying program went too far.

Permalink 09:17:30 am, by fourth, 82 words, 671 views   English (US)
Categories: General

Politico: NSA memo pushed to 'rethink' 4th Amendment

Politico: NSA memo pushed to 'rethink' 4th Amendment by Philip Ewing (in 2001!):

=> Read more!

Permalink 08:21:41 am, by fourth, 219 words, 679 views   English (US)
Categories: General

WaPo: Wonkbook: These programs might well have been legal. That’s almost worse

Permalink 07:04:39 am, by fourth, 61 words, 396 views   English (US)
Categories: General

NYT: Report Says T.S.A. Screening Is Not Objective

NYT: Report Says T.S.A. Screening Is Not Objective by Michael S. Schmidt:

The Transportation Security Administration has little evidence that an airport passenger screening program, which some employees believe is a magnet for racial profiling and has cost taxpayers nearly one billion dollars, screens passengers objectively, according to a report by the inspector general for the Homeland Security Department.

06/07/13

Permalink 05:34:19 pm, by fourth, 153 words, 505 views   English (US)
Categories: General

W.D.Tenn.: Sagging pants and squatting was furtive movement

Defendant’s car was stopped because of excessive tinting, and he was gotten out of the car. He had on sagging pants, and he kept squatting when talking to the officers and they were sure he was hiding something, so they had him stand up and a gun slid out a pantleg. This was all reasonable. United States v. Castle, 2013 U.S. Dist. LEXIS 78412 (W.D. Tenn. May 17, 2013).*

Defendant’s van was already stopped on a parking lot known for drug dealing, and the police approached. One of the passengers ran off, and that heightened to reasonable suspicion what was going on in the vehicle. State v. Griffin, 2013 Ohio 2230, 2013 Ohio App. LEXIS 2155 (2d Dist. May 31, 2013).*

Defendant’s stop was not overlong or unreasonable. State v. Bartone, 2013 Ohio 2228, 2013 Ohio App. LEXIS 2154 (2d Dist. May 31, 2013).*

Defendant’s guilty plea waived his suppression motion. United States v. Cooper, 2013 CCA LEXIS 473 (N.M.C.C.A. May 30, 2013).*

Permalink 04:39:24 pm, by fourth, 157 words, 279 views   English (US)
Categories: General

LA4: Fist bump (“dap”) or hand-to-transaction?

The trial court did not err in concluding that a “dap” (first bump) was potentially really a hand-to-hand transaction for reasonable suspicion purposes for a stop. State v. Ulmer, 114 So. 3d 1274 (La. App. 4 Cir. 2013).

It was reasonable to remove defendant’s hands from his pockets. “Although both officers stated that they never actually observed a weapon or a bulge other than the Defendant's hands, Detective Martin testified that he suspected the Defendant was armed because of the manner in which his hands were tucked into his pockets and because of his continued refusal to remove his hands.” State v. Chaplain, 2013 La. App. LEXIS 1073 (La. App. 4 Cir. May 29, 2013).*

Furtive movements toward purse justified frisk. State v. Smith, 2013 Ohio 2208, 2013 Ohio App. LEXIS 2136 (1st Dist. May 31, 2013).*

Defendant claimed that his motel room was searched without a warrant, but there was a warrant, and it wasn’t challenged. United States v. Balde, 2013 U.S. Dist. LEXIS 78336 (E.D. N.C. June 4, 2013).*

Permalink 07:28:07 am, by fourth, 342 words, 562 views   English (US)
Categories: General

WaPo: Documents: U.S. mining data from 9 leading Internet firms; companies deny knowledge; PRISM

WaPo: Documents: U.S. mining data from 9 leading Internet firms; companies deny knowledge By Barton Gellman and Laura Poitras:

=> Read more!

Permalink 07:24:37 am, by fourth, 263 words, 405 views   English (US)
Categories: General

Who’s Your Cop? "the warrior cop phenomenon"

Who’s Your Cop?

One of the common threads about the rise of the warrior cop phenomenon is the frustration with a very serious erosion of Fourth Amendment and Fifth Amendment rights. It has always been a paramount part of our society that our police officers wear distinct uniforms, in large part so that you recognize them as officers of the state. When you see out of uniform officers on television at crime scenes, the officers always wear jackets with their id clearly marked in large letters, whether that designation is FBI, ATF or even just POLICE. It is a fundamental principle of our liberty that your words cannot be used against you if you are interrogated without knowing that jeopardy has attached, although the Maryland v. King decision has raised doubts even about that.

During the aftermath of the bombings on April 15, one of the striking things about the thugs stalking through the streets of Watertown is that they were unmarked, and it was virtually impossible to tell who those folks were. But of even greater concern is a phenomenon reported in some of the books coming out this summer about warrior cops–the notion that cops are never off duty, and that no miranda warnings are ever given when the issue is “public safety.” There are a growing number of cases of people who have been convicted of crimes for making statements to cops, who seemed to just be neighbors at a little league game, or people arrested after inviting a neighbor in for dinner–who happened to be a cop. ...

06/06/13

Permalink 12:00:12 pm, by fourth, 165 words, 851 views   English (US)
Categories: General

Salon.com: The Supreme Court Fails the Fourth Amendment Test

Permalink 11:31:01 am, by fourth, 28 words, 358 views   English (US)
Categories: General

Salon.com: Liberals find common ground with … Scalia?

Permalink 10:07:39 am, by fourth, 258 words, 588 views   English (US)
Categories: General

DHS report: Border Searches of Electronic Devices

Permalink 10:02:57 am, by fourth, 116 words, 420 views   English (US)
Categories: General

CA11 again rejects “global contamination theory” of money; maybe the only one left

To raise a “global contamination theory” of money leading to a dog alert, it is the defense’s duty to put on evidence in the Eleventh Circuit which doesn’t follow it. United States v. Currency, $21,175, 521 Fed. Appx. 734 (11th Cir. 2013). [Note, case law has recognized this “theory” as a fact for nearly 25 years.]

Defense counsel’s failure to object to seizure of GSR from defendant's hands was not IAC because any objection was meritless. Durden v. State, 2013 Ga. LEXIS 485 (June 3, 2013).*

Defendant’s stop and frisk was justified by his standing in the middle of the street, his hostile response to the officers, and the bulge in his pocket. United States v. Williams, 526 Fed. Appx. 29 (2d Cir. 2013).*

Permalink 08:02:30 am, by fourth, 152 words, 521 views   English (US)
Categories: General

NYTimes: U.S. Is Secretly Collecting Records of Verizon Calls

NYTimes: U.S. Is Secretly Collecting Records of Verizon Calls by Charlie Savage and Edward Wyatt:

=> Read more!

06/05/13

Permalink 05:51:31 am, by fourth, 114 words, 327 views   English (US)
Categories: General

IL: No right to know name of CI in on the drug deals leading to SW

Defendant was not entitled to disclosure of the name of the informant doing drug deals at his house that was the basis for the search warrant. Defendant was not charged with selling but with possession when the search warrant was executed. People v. Hannah, 2013 IL App (1st) 111660, 991 N.E.2d 412 (2013).

In a violation of supervised release case, the stop of defendant’s car was for a traffic offense, and a gun was seeing sticking out from under the passenger seat. United States v. Mosquera, 2013 U.S. Dist. LEXIS 77247 (E.D. N.Y. May 31, 2013).*

Third party consent was credited as voluntary for the search. United States v. Ortiz, 943 F. Supp. 2d 447 (S.D. N.Y. 2013).*

Permalink 05:40:17 am, by fourth, 152 words, 318 views   English (US)
Categories: General

AL: Where SI was permissible, officer's claim of patdown was irrelevant

The search of defendant was permissible as a search incident with probable cause of drug possession. The fact the officer articulated that he wanted to do a Terry patdown is irrelevant since the objective record supports the search. Tolbert v. State, 111 So. 3d 747 (Ala. Crim. App. 2011):

Although the record appears to indicate that Officer Foster intended to perform a Terry search limited to a search of Tolbert for weapons in order to protect his and other officers' safety, Officer Foster's subjective intentions are irrelevant. As noted above, Officer Foster was objectively-authorized to search Tolbert incident to a lawful arrest, and therefore the discovery and seizure of a controlled substance from Tolbert's pants pocket was legally permissible. See State v. Gargus, 855 So. 2d 587, 590 n.2 (Ala. Crim. App. 2003).

Defendant’s patdown was unreasonable because the officer failed to provide justification that he believed defendant was armed. State v. Edwards, 112 So. 3d 53 (Ala. Crim. App. 2012).*

Permalink 05:37:27 am, by fourth, 190 words, 371 views   English (US)
Categories: General

NY: State officers' secondary inspection at immigration roadblock was without RS

Defendant was driving on US11 in New York and was stopped at an immigration checkpoint manned by 4-5 Border Patrol agents and state officers. He was driving from a Mohawk reservation to a smoke shop and had cigarettes in a U-Haul trailer. It was apparent both occupants were U.S. citizens, but defendant was referred for a secondary stop. “The basis for detaining and questioning defendant further ended when Jock told Hotz at secondary inspection that he had cigarettes in the trailer and that he was going from the Akwesasne Reserve to the Seneca Smoke Shop. This information gave rise to no reasonable inference of criminality in the possession or transportation of the [untaxed] cigarettes.” People v Jock, 2013 NY Slip Op 23176, 40 Misc. 3d 457, 967 N.Y.S.2d 818 (St. Lawrence Co. 2013).*

According to the SW affidavit, defendant sent an instant message to a known collector of child pornography expressing his interest in child pornography and requesting such an image from the collector. That shows a reasonable basis concluding that defendant, like the collector, used computer equipment to obtain pornographic images of children over the Internet. State v. Shields, 308 Conn. 678, 69 A.3d 293 (2013).*

Permalink 12:59:27 am, by fourth, 209 words, 508 views   English (US)
Categories: General

Cal.4: The oath or affirmation requirement of the Fourth Amendment does not apply to a probation arrest warrant

The oath or affirmation requirement of the Fourth Amendment does not apply to a probation arrest warrant. A warrant is not required for a probation search; it is illogical to require one for retaking a probationer for violation of the terms of release. People v. Woodall, 216 Cal. App. 4th 1221, 157 Cal. Rptr. 3d 220 (4th Dist. 2013):

=> Read more!

Permalink 12:00:21 am, by fourth, 208 words, 266 views   English (US)
Categories: General

N.D.W.Va.: Odor of meth cook and hiding or destroying materials and covered windows was PC

“[T]he detection of the odor of a methamphetamine cook by officers trained or experienced with the odor, coupled with the activity of the occupant in actively hiding or destroying materials and the fact that most of the windows of the trailer were covered, all of which was observed before the entry, would provide sufficient probable cause for the search warrant. See United States v. Shuck, 713 F.3d 563 (10th Cir. 2013), a case with remarkably similar facts.” United States v. Richardson, 2013 U.S. Dist. LEXIS 75946 (N.D. W.Va. May 30, 2013).*

Defendant’s IAC claim on failure to object to a probation search of his car failed because the “record also suggests the search was premised upon Strother's consent.” State v. Strother, 2013 Iowa App. LEXIS 561 (May 30, 2013).*

Defendant’s Franks challenge to the officer’s claim in the search warrant about the agent using his cell phone during the surveillance fails. The evidence at the hearing shows that defendant failed in his burden of proof. Even if he used the cell phone during surveillance, so what? The same is the outcome of the other objections: Even if the defendant’s allegations could be proved, they aren’t material to the outcome. United States v. Morales-Castro, 947 F. Supp. 2d 166 (D. P.R. 2013).*

06/04/13

Permalink 10:10:28 pm, by fourth, 233 words, 626 views   English (US)
Categories: General

Yahoo! News: A damning dissent: Scalia’s dissent for the ages in the DNA case

Yahoo! News: A damning dissent: Scalia’s dissent for the ages in the DNA case by Jeffrey Rosen, National Constitution Center:

=> Read more!

Permalink 07:42:12 am, by fourth, 165 words, 358 views   English (US)
Categories: General

IA: Motion to suppress on legality of stop didn't include patdown, too, but it's valid

In the trial court, only the stop was challenged and not the patdown. On appeal, only the patdown was argued and not the stop. This is essentially waived, but what record the court has shows that the defendant was walking in the middle of the street and had a scuffle with the police and was arrested for it. The patdown was thus legal. State v. Beechum, 2013 Iowa App. LEXIS 592 (May 30, 2013).*

The record supports that defendant was speeding at night on a wet highway, and that’s probable cause for a stop. State v. Mackinnon, 2013 Tenn. Crim. App. LEXIS 458 (May 29, 2013).*

Defendant was not getting back his computer under Rule 41(g) where it had child pornography on it. United States v. Penry, 2013 U.S. App. LEXIS 11076 (10th Cir. June 3, 2013).*

Any possible error in defendant’s statement taken at a time his DNA was taken, and the DNA was incidentally suppressed by the trial court, was harmless beyond a reasonable doubt. State v. Zornes, 831 N.W.2d 609 (Minn. 2013).*

06/03/13

Permalink 09:50:49 pm, by fourth, 78 words, 422 views   English (US)
Categories: General

NYT: Blacks Are Singled Out for Marijuana Arrests, Federal Data Suggests

NYT: Blacks Are Singled Out for Marijuana Arrests, Federal Data Suggests by Ian Urbina:

WASHINGTON — Black Americans were nearly four times as likely than whites to be arrested on charges of marijuana possession in 2010, even though the two groups used the drug at similar rates, according to new federal data.

This disparity had grown steadily from a decade before, and in some states, including Iowa, Minnesota and Illinois, blacks were around eight times as likely to be arrested.

Permalink 11:05:01 am, by fourth, 1565 words, 786 views   English (US)
Categories: General

SCOTUS decides Maryland v. King: DNA testing on arrest with PC constitutional

SCOTUS decides Maryland v. King: DNA testing on arrest with PC constitutional (5-4, per Kennedy) (SCOTUSBlog). I'm not surprised at the outcome, but I'm surprised Scalia dissented and Breyer concurred. It would have been different if the skin had to be penetrated. Which begs the question: If technology makes this outcome, what about cell phone search incident? Please, also read Scalia's dissent. He, too, is becoming the conscience of the Fourth Amendment, and he shows that Kennedy's majority opinion doesn't hold water. Essentially, the government is given the power to conduct yet another warrantless search of the person without probable cause.

Syllabus:

=> Read more!

Permalink 01:00:00 am, by fourth, 971 words, 820 views   English (US)
Categories: General

CAAF: Inventory of injured soldier's computer content violated the Fourth Amendment

Defendant was injured by an IED while serving in the Army in Iraq, and he was medically evacuated from Iraq. His property was inventoried pursuant to Army regulation. His computer was subject to inventory for things “gore, inappropriate, or porn” and for classified material before the computer was returned to him, and child pornography was found. The Court of Appeals for the Armed Forces held that the inventory of the computer violated the Fourth Amendment and M.R.E. 313(c). United States v. Kelly, 72 M.J. 237 (C.A. A.F. 2013):

=> Read more!

Permalink 12:05:41 am, by fourth, 133 words, 314 views   English (US)
Categories: General

VA: Motion to reconsider suppression motion at least needs an offer of proof

A motion to reconsider a motion to suppress months later was properly denied in the discretion of the trial court. There was no offer of what the defendant wanted to relitigate. Thomas v. Commonwealth, 62 Va. App. 104, 742 S.E.2d 403 (2013).

Disclosure of plaintiff’s minor’s daughter’s sexual orientation to the parents and a “disciplinary confrontation in a locked locker room” with the minor are not remotely clearly established for Fourth or Fourteenth Amendment liability to attach. Wyatt v. Fletcher, 2013 U.S. App. LEXIS 11045 (5th Cir. May 31, 2013).*

Defendant called the police on her husband for a domestic assault, and the officers separated them and arrested him. The officer reasonably concluded that the defendant was in possession of drugs and consent to search her person was reasonably obtained. State v. Fair, 353 Ore. 588, 302 P.3d 417 (2013).*

06/02/13

Permalink 08:39:00 pm, by fourth, 194 words, 452 views   English (US)
Categories: General

MintPress: Justice Dept Pressured To Release Document Proving Fourth Amendment Rights Violations

Permalink 09:07:16 am, by fourth, 122 words, 344 views   English (US)
Categories: General

CA11: A warrant's “catch-all provision” that on its face makes a search warrant overbroad is severable

A warrant's “catch-all provision” that on its face makes a search warrant overbroad is severable from the warrant under Andresen. “Accordingly, the warrant was not so facially deficient that the executing officers could not have reasonably presumed it was valid.” Therefore, the good faith exception applies. United States v. Carson, 520 Fed. Appx. 874 (11th Cir. 2013).*

Walking away from an officer is not a submission to authority. There was reasonable suspicion for defendant’s stop. United States v. Jones, 2013 U.S. Dist. LEXIS 76505 (E.D. N.C. May 29, 2013).*

Review of the affidavit for search warrant on a motion to suppress is not de novo: is there a substantial basis for believing PC? United States v. Deprow, 2013 U.S. Dist. LEXIS 76811 (E.D. Mo. May 3, 2013).*

Permalink 02:00:16 am, by fourth, 201 words, 574 views   English (US)
Categories: General

OR: Saint Jesus Malverde medal on mirror is not reasonable suspicion alone; warning of right to refuse consent made it admissible here

Saint Jesus Malverde medal, the patron saint of drug dealers, hanging from the mirror of a car is not reasonable suspicion alone. There was no reasonable suspicion on the totality. Defendant was, however, told of his right to refuse consent before consenting and that broke the causal chain. State v. Meza-Garcia, 256 Ore. App. 798, 303 P.3d 975 (2013):

=> Read more!

Permalink 01:21:07 am, by fourth, 125 words, 262 views   English (US)
Categories: General

IL: Threat to arrest if no consent to search not invalid where there was PC to arrest

Threat to arrest if defendant didn’t consent to a search did not lead to involuntary consent where there was probable cause to arrest. People v. Walton, 2013 IL App (3d) 110630, 990 N.E.2d 861 (2013).

Officers observed what appeared to be a drug deal go down between the driver of a car had nothing more than the passenger’s presence in the car, which the court finds is not reason to search her under the state constitution. State v. Kingsmith, 256 Ore. App. 762, 302 P.3d 471 (2013).*

While a motion to suppress has to consider only the information before the magistrate on the “four corners” of the affidavit, that does not prohibit the magistrate from asking questions of the affiant before the warrant issues. Commonwealth v. James, 69 A.3d 180 (Pa. 2013).*

Permalink 01:00:00 am, by fourth, 212 words, 756 views   English (US)
Categories: General

AZ: Forced DUI test under implied consent law violated Fourth Amendment

A juvenile’s forced DUI testing under an implied consent law violated the Fourth Amendment. State v. Butler, 661 Ariz. Adv. Rep. 33, 302 P.3d 609 (2013):

=> Read more!

Permalink 12:00:10 am, by fourth, 235 words, 412 views   English (US)
Categories: General

WA: LEO's don't have to seek consent before an inventory search may proceed

When an inventory needs to occur because a car had to be impounded because there was no person there with a valid DL, “law enforcement officers do not have to obtain consent in order to conduct an inventory search of a lawfully impounded vehicle.” State v. Tyler, 177 Wn.2d 690, 302 P.3d 165 (2013):

=> Read more!

06/01/13

Permalink 08:59:16 am, by fourth, 115 words, 396 views   English (US)
Categories: General

theHill.com: Goodlatte questions whether Justice lied on Fox News warrant

theHill.com: Goodlatte questions whether Justice lied on Fox News warrant by Jordy Yager:

Rep. Bob Goodlatte (R-Va.) on Friday questioned whether the Justice Department lied on its warrant to secretly obtain a Fox News reporter’s email and phone records.

Goodlatte, the chairman of the House Judiciary Chairman, is investigating whether Attorney General Eric Holder perjured himself in testimony to Congress about the DOJ’s investigation of a leak of classified information to Fox reporter James Rosen.

It's really obvious that Rep. Goodlatte has no clue how the search warrant process works, how probable cause is calculated, and what is a "lie" and what is an inference based on facts known to that time.

Permalink 07:50:21 am, by fourth, 139 words, 272 views   English (US)
Categories: General

Bloomberg News: New York Cabbie Says GPS Tracking Used to Punish Drivers (1)

Bloomberg News: New York Cabbie Says GPS Tracking Used to Punish Drivers (1) by Patricia Hurtado:

New York City’s taxi commission was accused in a lawsuit of violating the constitutional rights of cabbies by using the global positioning system to track their movements.

The NYC Taxi and Limousine Commission uses GPS devices to gather information on cabbies in violation of their Fourth Amendment right against unlawful searches and to prosecute drivers for violations that can result in loss of cab licenses and the imposition of large fines, according to a complaint filed today in federal court in Manhattan. The case was brought against the commission’s chairman, David Yassky, by driver Hassan El-Nahal, who seeks to represent other cabbies in a class action, or group lawsuit.

For those who may not remember, GPS in NYC Taxis was upheld in 2007.

Permalink 12:14:19 am, by fourth, 158 words, 293 views   English (US)
Categories: General

D.Minn.: General consent to search a car was enough to go under the hood

Defendant failed to object at the time to the scope of the consent search of his car going under the hood. The general consent was enough to go under the hood. United States v. Fletcher, 2013 U.S. Dist. LEXIS 76057 (D. Minn. May 29, 2013),* R&R 2013 U.S. Dist. LEXIS 76178 (D. Minn. May 3, 2013).*

COA on a 2255 IAC claim from a failed suppression hearing is denied. The defendant didn’t show anything that added up to IAC: defendant was validly stopped and previously conceded it, the radio log wouldn’t show no consent, and failure to call alleged witnesses to the traffic stop wouldn’t prove anything from a failure of an offer of proof. United States v. Polly, 525 Fed. Appx. 862 (10th Cir. 2013).*

Based on the undisputed testimony of the lone police witness at the suppression hearing, the trial court erred in granting the motion to suppress defendant’s stop for DUI. State v. Wagster, 2013 Tenn. Crim. App. LEXIS 441 (April 30, 2013).*

Permalink 12:01:00 am, by fourth, 457 words, 725 views   English (US)
Categories: General

D.Ida.: Officers responding to 911 hang up call but "nothing ... signaled danger"

Officers responded to a 911 hang up call, and they succeeded in entering. “Here, the officers saw nothing at the residence that signaled danger.” “The smell of marijuana meant that someone was smoking pot, not that someone needed to be rescued.” The emergency justification failed, and the government carried the burden. United States v. Shook, 2013 U.S. Dist. LEXIS 76111 (D. Ida. May 29, 2013):

=> Read more!

Permalink 12:00:10 am, by fourth, 225 words, 391 views   English (US)
Categories: General

D.Minn.: Statement made during raid of home was not voluntary

When the police raid your house and handcuff you, a statement made when handcuffed and police in the house is inherently coercive. There was third party consent to his files in his company’s server. United States v. Williams, 2013 U.S. Dist. LEXIS 74547 (D.Minn. May 28, 2013), R&R 2013 U.S. Dist. LEXIS 75938 (D. Minn. March 27, 2013):

=> Read more!

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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:
  SCOTUSBlog
  S. Ct. Docket
  Solicitor General's site
  SCOTUSreport
  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
  Oyez Project (NWU)
  "On the Docket"–Medill
  S.Ct. Monitor: Law.com
  S.Ct. Com't'ry: Law.com

  General (many free):
  LexisWeb
  Google Scholar | Google
  LexisOne Legal Website Directory
  Crimelynx
  Lexis.com $
  Lexis.com (criminal law/ 4th Amd) $
  Findlaw.com
  Findlaw.com (4th Amd)
  Westlaw.com $
  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
  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."
—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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