Archives for: June 2013, 28

06/28/13

Permalink 12:25:04 pm, by fourth, 19 words, 366 views   English (US)
Categories: General

NPR: NSA May Have Been Collecting Email Data Since Sept. 11

NPR: NSA May Have Been Collecting Email Data Since Sept. 11 by Larry Abramson and Robert Siegel ("All Things Considered").

Permalink 09:38:21 am, by fourth, 216 words, 917 views   English (US)
Categories: General

E.D.Mich.: Can't sue to enjoin a state prosecution

Petitioner had a tribal ID and no DL and said he was not subject to the jurisdiction of any nontribal officers (facts sound like he was claiming to be a sovereign American Indian citizen). His case in federal court essentially was an effort to block the state courts from deciding his criminal case over his arrest, and that violates the Rooker/Feldman doctrine. In re Hall, 2013 U.S. Dist. LEXIS 89375 (E.D. Mich. June 26, 2013).

Arguing consent only in the district court does not include attenuation of the consent. Here, police entry was justified because defendant’s co-conspirators were being arrested. They entered when somebody saw them and ran from the door. Even if there was a Fourth Amendment violation, there was consent and it was attenuated. This defendant, however, was arrested outside and brought in. United States v. Moreno-Ortega, 2013 U.S. App. LEXIS 13194 (11th Cir. 2013).*

Plaintiff teacher was arrested for sexual offenses involving students. A state grand jury didn’t indict him, and he sued everybody involved, including the students. The fact that some of the things alleged against him couldn’t be proved under state law, a given because of age, for instance, didn’t undermine the probable cause for arrest for something. Summary judgment properly granted. Gonzalez v. Butts County, 522 Fed. Appx. 742 (11th Cir. 2013).*

Permalink 09:14:51 am, by fourth, 352 words, 602 views   English (US)
Categories: General

IN: RIP mistake of law as no good faith

RIP mistake of law as no good faith. Indiana upholds a stop based on a reasonable but mistaken view of the window tint law purely on good faith. Sanders v. State, 2013 Ind. LEXIS 474 (June 25, 2013):

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Permalink 09:01:25 am, by fourth, 195 words, 763 views   English (US)
Categories: General

Opposing views: Women Win Lawsuit After Being Violated During Roadside Search of Body Cavities

Permalink 08:51:27 am, by fourth, 95 words, 1226 views   English (US)
Categories: General

NYT Op-Ed Contributors: The Criminal N.S.A.

NYT Op-Ed Contributors: The Criminal N.S.A. by Jennifer Stisa Granick and Christophe Jon Sprigman:

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Permalink 06:28:29 am, by fourth, 175 words, 477 views   English (US)
Categories: General

CT: Unreasonable search claim inconsistent with actual innocence post-conviction claim

Unreasonable search claims should not be decided in post-conviction actual innocence claims. Dickman v. Comm'r of Corr., 143 Conn. App. 780, 70 A.3d 1147 (2013).*

In a Davis GPS good faith case, the court engages in extensive discussion of whether the law was settled or not in the Third Circuit on the use of GPS before Jones, and there was nothing approaching binding precedent saying that it wasn’t permissible. Therefore, Davis applies. United States v. Lopez, 951 F. Supp. 2d 657 (D.Del. 2013).*

Defendant’s guilty plea waived his Fourth Amendment claim so it wasn’t cognizable in a 2255. United States v. Leus, 2013 U.S. Dist. LEXIS 89280 (C.D. Cal. June 25, 2013).*

Police entered reasonably under Payton v. New York when they had an arrest warrant for the defendant. A protective sweep inside was valid. “It is not significant that Barker was arrested prior to and outside of the rooms that were entered incident to the protective sweep.” United States v. Barker, 2013 U.S. Dist. LEXIS 89829 (N.D. W.Va. May 10, 2013),* adopted 2013 U.S. Dist. LEXIS 89827 (N.D. W.Va. June 26, 2013).*

Permalink 06:12:55 am, by fourth, 611 words, 482 views   English (US)
Categories: General

S.D.Ohio: Police violated curtilage by entering back yard to see getaway car, but it was objectively reasonable

Citizens followed a bank robbery suspect for 15 minutes and lost him. Police got a line on where to look, and an officer entered the backyard of defendant’s property, open off an alley, and saw the car. This was 30 minutes after the robbery, so it was not hot pursuit. The court and Sixth Circuit had previously found the entry into the back yard a Fourth Amendment violation of the curtilage, but it was objectively reasonable under all the circumstances, and the exclusionary rule would not be applied. United States v. Fugate, 2013 U.S. Dist. LEXIS 89182 (S.D. Ohio June 24, 2013):

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Permalink 06:02:27 am, by fourth, 662 words, 614 views   English (US)
Categories: General

D.Mont.: Gatekeeper program that acts as a pen register on computers and captures the “handshake” information not "search"

Gatekeeper program that acts as a pen register on computers and captures the “handshake” information about IP addresses and “payload” without capturing any content, including any keywords, is not a Fourth Amendment search. United States v. Saville, 2013 U.S. Dist. LEXIS 89281 (D. Mont. May 20, 2013):

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Permalink 12:00:47 am, by fourth, 135 words, 536 views   English (US)
Categories: General

NYT: Mayor’s Administration Moves to Undo Bill Aimed at Curbing Police Profiling

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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)


Research Links:
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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
  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."
—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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