Archives for: June 2013, 09

06/09/13

Permalink 03:28:41 pm, by fourth, 732 words, 2092 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.

=> Read more!

Permalink 03:16:17 pm, by fourth, 227 words, 1024 views   English (US)
Categories: General

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

Permalink 11:00:49 am, by fourth, 136 words, 507 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, 498 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):

=> Read more!

Permalink 01:00:42 am, by fourth, 203 words, 434 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):

=> Read more!

Permalink 12:31:34 am, by fourth, 245 words, 411 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, 296 views   English (US)
Categories: General

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, 440 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!

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting
www.johnwesleyhall.com

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Most recent SCOTUS cases:
2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)


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  F.R.Crim.P. 41
  www.fd.org

  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (pdf)

  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
  Privacy Foundation
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  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)


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