Archives for: June 2013, 23


Permalink 10:54:59 am, by fourth, 180 words, 667 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, 621 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, 511 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, 624 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, 496 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, 263 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, 542 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, 516 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, 383 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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Notes on Use

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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

© 2003-14, online since Feb. 24, 2003

URL hits since 2010


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)
  Oyez Project (NWU)
  "On the Docket"–Medill
  S.Ct. Monitor:
  S.Ct. Com't'ry:

  General (many free):
  Google Scholar | Google
  LexisOne Legal Website Directory
  Crimelynx $ (criminal law/ 4th Amd) $ (4th Amd) $
  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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