Archives for: June 2013, 17


Permalink 10:52:07 am, by fourth, 223 words, 531 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:

=> Read more!

Permalink 10:37:15 am, by fourth, 16 words, 307 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, 327 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, 449 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, 697 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, 405 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, 744 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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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting

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Fourth Amendment cases,
citations, and links

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Most recent SCOTUS cases:
2009 to date:

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

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

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

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

2009-10 Term:

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

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

Research Links:
  Supreme Court:
  S. Ct. Docket
  Solicitor General's site
  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
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  "On the Docket"–Medill
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  General (many free):
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  F.R.Crim.P. 41

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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