Archives for: June 2013, 25

06/25/13

Permalink 06:37:13 am, by fourth, 279 words, 586 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:

=> Read more!

Permalink 06:09:41 am, by fourth, 201 words, 490 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, 276 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, 526 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):

=> Read more!

Permalink 05:13:08 am, by fourth, 256 words, 399 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, 548 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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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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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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