Archives for: June 2013, 29

06/29/13

Permalink 11:03:08 am, by fourth, 200 words, 642 views   English (US)
Categories: General

IA: Defense counsel ineffective for overlooking valid motion to suppress

Defense counsel overlooked a valid motion to suppress, and that’s prejudice. Conviction reversed and remanded. A motion was filed, but denied by the trial court as untimely. [Why couldn't the trial court see this coming?] State v. Hollie, 2013 Iowa App. LEXIS 707 (June 26, 2013).

Defense counsel did not file a motion to suppress that would have been meritless under the automobile exception, so there was no duty to file one. Caldwell v. State, 2013 Iowa App. LEXIS 669 (June 26, 2013).

As defendant was being pulled over for a taillight infraction, “McCoy made a furtive movement toward the center console as he stopped his car, a movement that was captured on a police recording of the incident.” When the officer looked in the car there were marijuana seeds scattered about. Defendant said they were left over from a previous drug arrest in the car. There was probable cause to search the car. State v. McCoy, 2013 Iowa App. LEXIS 674 (June 26, 2013).*

A CI (probably a citizen informant) reported likely hand-to-hand drug sales occurring out of a described car in front of a Radio Shack. The car was found and that was sufficient information for the officers to encounter the occupants. State v. Hill, 2013 Iowa App. LEXIS 698 (June 26, 2013).*

Permalink 10:54:41 am, by fourth, 125 words, 496 views   English (US)
Categories: General

IA: Extending stop that should have ended made it unreasonable

Defendant was pulled over as a possible “tired or impaired driver.” During the stop, however, it was apparent defendant was neither. Dragging out the stop to ask for consent made it unreasonable. State v. Mass, 2013 Iowa App. LEXIS 705 (June 26, 2013):

=> Read more!

Permalink 10:24:24 am, by fourth, 169 words, 286 views   English (US)
Categories: General

Drones in the news today

Denver Post editorial: Police drones and privacy concerns.

The Hill: New Jersey considers anti-drone legislation by Carlo Muñoz:

New Jersey lawmakers, on Friday, joined 42 other state legislatures in drafting laws to prevent the use of unmanned aerial drones. Members of the New Jersey state Senate unanimously approved a slate of restrictions on the use of aerial drones by local law enforcement and emergency services. The legislation, passed on a vote of 36 to 0, would not ban the use of unmanned aircraft outright, according to local news reports.

Gizmondo: Sky Fighter: Meet the Man Who Wants to Drone-Proof Your Home by Kelsey Campbell-Dollaghan:

FBI Director Robert Mueller finally admitted that the Bureau uses drones to carry out surveillance on Americans (say hi!). Meanwhile, the tweens next door are probably spying on you too, watching you pick your nose using a $300 drone they bought on Amazon. UAV use in America—and public anxiety over it—is exploding. And Domestic Drone Countermeasures, an anti-drone technology startup, is building a business around it.

Permalink 10:10:05 am, by fourth, 86 words, 440 views   English (US)
Categories: General

HuffPo: Restore The Fourth: Group Organizes Nationwide Anti-NSA Spying Protests On July 4

Permalink 09:58:36 am, by fourth, 47 words, 288 views   English (US)
Categories: General

WaPo: Don’t let DOMA fool you — the Supreme Court is restricting your rights

WaPo: Don’t let DOMA fool you — the Supreme Court is restricting your rights by David Cole, discussing, inter alia, Clapper and the denial of the right to sue over potential Fourth Amendment violations by the masses without proof any one plaintiff actually had his calls intercepted.

Permalink 09:54:01 am, by fourth, 119 words, 483 views   English (US)
Categories: General

NYT: Secret Court Declassifies Yahoo’s Role in Disclosure Fight

NYT: Secret Court Declassifies Yahoo’s Role in Disclosure Fight by Claire Cain Miller and Nicole Perlroth:

=> Read more!

Permalink 09:45:38 am, by fourth, 110 words, 279 views   English (US)
Categories: General

NYT: Bloomberg Says Math Backs Police Stops of Minorities

NYT: Bloomberg Says Math Backs Police Stops of Minorities by David W. Chen:

Ratcheting up the rhetoric over New York City’s stop-and-frisk police practices, Mayor Michael R. Bloomberg said on Friday that the Police Department stopped white people too frequently, and nonwhites not frequently enough, in investigating murder suspects.

Also, City Council Votes to Increase Oversight of New York Police by J. David Goodman:

Over the objections of the mayor and police commissioner, the New York City Council early Thursday morning approved by veto-proof majorities a pair of bills aimed at increasing oversight of the Police Department and expanding New Yorkers’ ability to sue over racial profiling by officers.

Permalink 06:13:55 am, by fourth, 213 words, 253 views   English (US)
Categories: General

D.Ariz.: Stop for felon in possession suppressed for lack of RS defendant obtained it himself

Defendant was arrested for being a felon in possession of ammunition because his wife consulted with him on what gun to buy from a store and obtaining ammunition for it. There was nothing suspicious about her purchase of the firearm and officers had no knowledge defendant was a felon before the stop. The stop is suppressed. United States v. Siqueiros, 2013 U.S. Dist. LEXIS 90532 (D. Ariz. May 17, 2013).*

Defendant claimed he was “sandbagged” by the state raising lack of standing at the close of the evidentiary hearing, but the defense made a conscious choice on standing, likely because it couldn’t prevail, and didn’t put any evidence or argument on. [Surely if the defense had something it could have gotten leave to reopen and put it on.] And, the officers had probable cause because defendant matched the description of a wanted man, dumped his bicycle and fled, and his companion, when asked his name, said “B,” the street name of the man they were looking for. Moulden v. State, 212 Md. App. 331, 69 A.3d 36 (2013).*

Defendant was validly arrested and then consented to a search of his vehicle because it was being towed after he volunteered he had a gun in the car. United States v. Williams, 2013 U.S. Dist. LEXIS 90500 (E.D. Mo. June 11, 2013).*

Permalink 05:54:48 am, by fourth, 243 words, 431 views   English (US)
Categories: General

E.D.Pa.: Defense counsel overlooked valid search issue, but no prejudice

2255 petitioner can show defense counsel clearly overlooked a meritorious search issue for the deficiency of the warrant in failing to show the things to be seized (Groh) and that the good faith exception would not have saved the warrant because it was clearly deficient and could not be relied up (Herring and Leon). While petitioner can succeed in showing a Strickland failure of performance, he can’t show prejudice because the item seized did not contribute much, if anything, to the verdict so the outcome wouldn’t be different. United States v. Graves, 951 F. Supp. 2d 758 (E.D. Pa. 2013):

=> Read more!

Permalink 05:15:16 am, by fourth, 130 words, 239 views   English (US)
Categories: General

NY3: Routine questioning on the roadside is not subject to Miranda

Routine questioning on the roadside is not subject to Miranda. People v Brown, 2013 NY Slip Op 4850, 107 A.D.3d 1305 (3d Dept. June 27, 2013).

Defendant was stopped for speeding and several other traffic violations on a non-street legal motorcycle, and he undertook to shout at the police he was not going to jail and knew his rights. He was wearing a “full face mask” and wouldn’t keep his hands out of his pockets, and that justified his handcuffing. State v. Lewis, 121 So. 3d 128 (La. App. 5 Cir. 2013).*

The CI’s information was detailed and reliable and provided probable cause. He’d done it before, and this one had great detail which was said to have derived from personal observation of defendant with the drugs. State v. Allen, 118 So. 3d 514 (La. App. 2 Cir. 2013).*

Permalink 12:04:59 am, by fourth, 299 words, 651 views   English (US)
Categories: General

DE: Detaining a student at school to shame him into confessing to something violated the Fourth Amendment

Detaining a student at school to shame him into confessing to something violated the Fourth Amendment, and it was well established in this state at the time this happened. Hunt v. State, 69 A.3d 360 (Del. 2013):

=> Read more!

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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
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  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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"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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