Archives for: June 2013, 27

06/27/13

Permalink 09:19:37 pm, by fourth, 301 words, 699 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, 527 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, 538 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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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
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www.johnwesleyhall.com

© 2003-14, online since Feb. 24, 2003

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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
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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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