Archives for: July 2013

07/31/13

Permalink 01:54:36 pm, by fourth, 72 words, 501 views   English (US)
Categories: General

NYT: U.S. Outlines N.S.A.’s Culling of Data for All Domestic Calls

Permalink 01:21:04 pm, by fourth, 49 words, 400 views   English (US)
Categories: General

Guardian UK: XKeyscore: NSA tool collects 'nearly everything a user does on the internet'

Guardian UK: XKeyscore: NSA tool collects 'nearly everything a user does on the internet' by Glenn Greenwald:

• XKeyscore gives 'widest-reaching' collection of online data
• NSA analysts require no prior authorization for searches
• Sweeps up emails, social media activity and browsing history
• NSA's XKeyscore program – read one of the presentations

Permalink 12:38:52 pm, by fourth, 91 words, 517 views   English (US)
Categories: General

WaPo: Government unveils secret order to Verizon

WaPo: Government unveils secret order to Verizon by Sari Horwitz and Ellen Nakashima:

=> Read more!

Permalink 09:49:41 am, by fourth, 142 words, 291 views   English (US)
Categories: General

CA9: Passenger only had standing as to his own bag in the trunk; but PC authorized its search

Consent to search a vehicle came from the driver, so the defendant passenger’s argument about inventory is moot. He also lacked standing as to anything except his own bag in the trunk, and, by the time the police found it, they had probable cause under the automobile exception. United States v. Blunt, 535 Fed. Appx. 542 (9th Cir. 2013).*

Citizen’s reports directly to officer of men with guns that included a description, color, and license number of the car was reasonable suspicion. United States v. Burton, 532 Fed. Appx. 171 (3d Cir. 2013).*

Defendant’s consent for the police to search and seize his cell phone was knowing and voluntary. They told him they’d hook it up to “a device” that would “analyze it.” United States v. Hutchinson, 2013 U.S. Dist. LEXIS 106443 (N.D. Ga. June 24, 2013),* adopted 2013 U.S. Dist. LEXIS 106054 (N.D. Ga. July 30, 2013).*

Permalink 12:00:02 am, by fourth, 995 words, 942 views   English (US)
Categories: General

CA5 finds historical cell site location data a mere business record unprotected by Fourth Amendment (2-1)

The Fifth Circuit (2-1) finds historical cell site location data a mere business record not protected by the Fourth Amendment. [Note the NJ Supreme Court disagreed 12 days earlier.] In Re: Application of the United States of America for Historical Cell Site Data, 724 F.3d 600, 58 Comm. Reg. (P & F) 1292 (5th Cir. 2013) [note: some news article links at end]:

=> Read more!

07/30/13

Permalink 11:34:28 pm, by fourth, 167 words, 464 views   English (US)
Categories: General

WaPo: Administration to reveal order on Americans’ phone records

Permalink 11:05:11 pm, by fourth, 98 words, 515 views   English (US)
Categories: General

BBC: US man 'abandoned' in US jail gets $4m in compensation

Permalink 02:05:05 pm, by fourth, 73 words, 339 views   English (US)
Categories: General

Washington Times: FBI says it doesn’t need warrant to use drones

Washington Times: FBI says it doesn’t need warrant to use drones by Stephen Dinan

The FBI has told Congress it does not need to get a warrant to conduct surveillance with drones, in a letter laying out some of the top federal law enforcement agency’s policies for how it uses unmanned aerial vehicles.

This isn't rocket surgery: They don't need a warrant unless Congress passes a statute that says they do.

Permalink 01:32:35 pm, by fourth, 95 words, 401 views   English (US)
Categories: General

The Hill: Judge: Patriot Act snooping was accepted by phone companies

Permalink 08:34:48 am, by fourth, 844 words, 430 views   English (US)
Categories: General

N.D.Ill.: No IAC for not filing motion under Jones where GFE would have applied

Defense counsel was not ineffective for not filing a motion to suppress under Jones which was decided eight days before defendant’s sentencing. Defense counsel correctly assessed that Jones didn’t apply to him and discussed it with the defendant before sentencing. Besides, Davis good faith would have made it valid. United States v. Williams, 2013 U.S. Dist. LEXIS 105353 (N.D. Ill. July 29, 2013):

=> Read more!

Permalink 08:19:02 am, by fourth, 229 words, 611 views   English (US)
Categories: General

New law review article: Florida v. Jardines: Why the Supreme Court Did Not Say 'Trespass,'

Bradley Polling, Florida v. Jardines: Why the Supreme Court Did Not Say 'Trespass,' 3 Wake Forest L. Rev. Online 19 (May 19, 2013). Abstract:

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Permalink 07:41:34 am, by fourth, 87 words, 336 views   English (US)
Categories: General

Kerr on Volokh: En Banc Review in Cell Phone Search Case, But Two Judges Ask Supreme Court To Step In

Kerr on Volokh: En Banc Review in Cell Phone Search Case, But Two Judges Ask Supreme Court To Step In

With Florida deciding in favor of the citizen, followed shortly by the First Circuit here, I noted a cert grant was likely here May 19th because of a circuit and state split. Kerr and I were on a program separately in NYC, conversing about its likelihood, and I mentioned it during my segment. I'd love to be arguing it, but the lawyers who won below deserve it.

Permalink 12:00:10 am, by fourth, 117 words, 424 views   English (US)
Categories: General

LA4: Furtive movements during stop justified opening car door to look for weapon

The stop was justified, and furtive movements inside the car during the delayed stop justified the officer opening the car door to look for weapons. State v. Lockett, 120 So. 3d 886 (La. App. 4 Cir. 2013).*

The extra two minute detention of defendant after he was stopped on probable cause of a traffic offense and reasonable suspicion developed was reasonable. United States v. Taylor, 2013 U.S. Dist. LEXIS 105249 (N.D. Ga. July 26, 2013).*

Illegally possessed animals were seized from defendant’s property and he was convicted of a city misdemeanor. Any alleged illegal seizure of the animals would not have changed the outcome because clearly the animals were there. City of Bedford v. Deal, 2013 Ohio 3240, 2013 Ohio App. LEXIS 3306 (8th Dist. July 25, 2013).*

07/29/13

Permalink 04:11:51 pm, by fourth, 70 words, 434 views   English (US)
Categories: General

WaPo Editorial: How to reform the NSA's metadata program

Permalink 04:10:07 pm, by fourth, 116 words, 366 views   English (US)
Categories: General

WaPo: GOP Hypocrisy on the NSA: The John Kerry Republicans

WaPo Op-Ed: GOP Hypocrisy on the NSA: The John Kerry Republicans by Marc A. Thiessen:

=> Read more!

Permalink 05:36:24 am, by fourth, 70 words, 1421 views   English (US)
Categories: General

NYTimes: Spy Agencies Under Heaviest Scrutiny Since Abuse Scandal of the ’70s

Permalink 05:31:49 am, by fourth, 188 words, 469 views   English (US)
Categories: General

NYTimes: Momentum Builds Against N.S.A. Surveillance

Permalink 05:28:03 am, by fourth, 135 words, 425 views   English (US)
Categories: General

Wired.com: Lawmakers Who Upheld NSA Phone Spying Received Double the Defense Industry Cash

Wired.com: Lawmakers Who Upheld NSA Phone Spying Received Double the Defense Industry Cash
by David Kravets:

=> Read more!

Permalink 12:20:38 am, by fourth, 529 words, 3663 views   English (US)
Categories: General

D.Alaska: Gov't couldn't enter to retrieve tracking device that did not alert

The package tracking order did not specify when the package and tracking device could be retrieved. Here, there was no alert that the package was opened, and the government could not enter to retrieve it without that. United States v. Nou Xiong, 2013 U.S. Dist. LEXIS 105063 (D. Alaska July 25, 2013),* As Revised August 29, 2013:

=> Read more!

Permalink 12:10:27 am, by fourth, 98 words, 234 views   English (US)
Categories: General

IA: Where lane change was not unsafe, stop unjustified

Defendant’s lane change was not a safety issue, and the police car video showed it. Therefore, the stop was without reasonable suspicion. State v. Thomas, 2013 Iowa App. LEXIS 803 (July 24, 2013).*

Defendant’s stop for operating a motorcycle under the influence by a Department of Natural Resources officer was based on reasonable suspicion from a dispatch report. State v. Moffit, 2013 Iowa App. LEXIS 806 (July 24, 2013).*

Defendant’s motion to suppress was based on scope of consent, but his appeal is based on voluntariness of consent. That’s changing the issues, and a waiver. State v. Johnson, 2013 Iowa App. LEXIS 808 (July 24, 2013).*

07/28/13

Permalink 01:18:10 am, by fourth, 420 words, 755 views   English (US)
Categories: General

FL5: Defendant answering knock-and-talk had a right to retreat back inside

Police came to defendant’s house to do a drug knock-and-talk because they got an anonymous tip he was selling drugs. One officer was at the front door and another was watching the side door. After some knocking, defendant opened the door, stepped out, said “oh, shit” and retreated into the house. The police beat on the side door until his mother answered, and the occupants were ordered out at gunpoint and the police did a protective sweep. He had a right to retreat into his own house and not be ordered out at gunpoint and arrested. Calloway v. State, 118 So. 3d 277 (Fla. 5th DCA 2013):

=> Read more!

Permalink 01:07:49 am, by fourth, 451 words, 605 views   English (US)
Categories: General

FL1: "to meet the Franks test, police conduct must rise to the level of hoodwinking or bilking, duping the ... judge ... into signing the warrant"

The trial court erred in granting suppression based on a Franks motion because the defendant did not properly support his motion by showing intentional omissions designed to mislead the issuing magistrate. Extraneous or marginal information doesn’t need to be in a search warrant application, and leaving it out is not misleading. State v. Petroni, 123 So. 3d 62 (Fla. 1st DCA 2013):

=> Read more!

Permalink 12:49:38 am, by fourth, 202 words, 249 views   English (US)
Categories: General

E.D.Tenn.: Lack of reference to time to serve a search warrant not prejudicial where served within hours

A search warrant that had no time limit to execution where Rule 41 says 14 days, was issued at 3:08 pm and was served the same day, is hardly prejudicial to the defendant. United States v. Manning, 2013 U.S. Dist. LEXIS 104018 (E.D. Tenn. July 16, 2013).

The state and the Colville Tribe had concurrent criminal jurisdiction over a theft offense on the Colville Indian Reservation. While statute did not explicitly state that the state could execute a search warrant there, it did not prohibit it. The search warrant and the prosecution did not interfere with tribal sovereignty. State v. Clark, 178 Wn.2d 19, 308 P.3d 590 (2013).

A criminal defense lawyer of 20 years was disbarred for obtaining a court file from the clerk and then altering the docket sheet to change findings to cover up that he did not ask for a motion to suppress. In re Kamb, No. 200,926-3 (Wash. July 18, 2013).* [What happens to police officers who alter reports or make up false reports about searches and seizures? Hardly ever anything. This guy deserved disbarment because falsifying papers about the need for the search, how it occurred, and what was done about it is a crime against the administration of justice. Such errant cops deserve the same thing.]

Permalink 12:00:45 am, by fourth, 126 words, 456 views   English (US)
Categories: General

AntiWar.com: The Fourth Amendment was Mortally Wounded by the Drug War Long Before National Security Tried to Kill It

Permalink 12:00:35 am, by fourth, 100 words, 238 views   English (US)
Categories: General

MO: Landlord's private search found a body; police officer was watching

Landlord’s entry was based on an effort to see if the defendant damaged the property, and a body was found. A police officer was nearby and watching the entry. It was still a private entry. State v. Marshall, 410 S.W.3d 663 (Mo. App. 2013).

Smell of intoxicants, admission of drinking, and blood shot eyes was enough for a FST. State v. Patel, 2013 Ohio 3300, 2013 Ohio App. LEXIS 3370 (5th Dist. July 15, 2013).*

Defendant’s admission he was driving and the car having signs of being involved in the reported hit and run was probable cause. State v. Moore, 2013 Tenn. Crim. App. LEXIS 633 (July 25, 2013).*

07/27/13

Permalink 03:31:55 pm, by fourth, 467 words, 829 views   English (US)
Categories: General

E.D.Pa.: “Computers” in a child porn SW included “cell phones”

Officers had a child pornography search warrant that included “computers.” Because cell phones are virtually computers, the search warrant included the cell phone. Yes, it could have been more specific, but this was still specific enough. United States v. Horton, 2013 U.S. Dist. LEXIS 104072 (E.D. Pa. July 25, 2013):

=> Read more!

Permalink 03:30:14 pm, by fourth, 186 words, 239 views   English (US)
Categories: General

D.Ariz.: Plea agreement waived IAC Fourth Amendment claim

Plea agreement waived any IAC claim, including defense counsel’s failure to file a suppression motion. United States v. Bowen, 2013 U.S. Dist. LEXIS 103564 (D. Ariz. May 15, 2013).*

Officers came to defendant’s house for a knock and talk about methamphetamine production and found her on the porch, and they quickly established reasonable suspicion and then probable cause. They told her that they were getting a search warrant, and she requested that she be allowed to retrieve shoes and a coat. The officers would not let her go back in without a police escort. She was not “seized” for Fourth Amendment purposes. “The fact that Detective Smith would not allow Sugg to enter the residence without an escort before the warrant could be obtained was not unreasonable. This conduct was a minimal intrusion upon Sugg's ordinary activities in light of the risk of destruction of evidence or obtaining a weapon.” Sugg v. State, 991 N.E.2d 601 (Ind. App. 2013).

The officer had reasonable suspicion something was up because of various factors including defendant’s strange and highly improbable travel plans. United States v. Hernandez-Lizardi, 530 Fed. Appx. 676 (10th Cir. 2013).*

Permalink 01:31:52 pm, by fourth, 405 words, 475 views   English (US)
Categories: General

S.D.Cal.: Cell site location data order issued without probable cause still subject to good faith exception

The majority rule is that cell site location data requires probable cause, but the warrant was not issued on that. Nevertheless, the good faith exception saves the tracking order information. United States v. Espudo, 954 F. Supp. 2d 1029 (S.D. Cal. 2013):

=> Read more!

Permalink 01:22:06 pm, by fourth, 378 words, 518 views   English (US)
Categories: General

NJ: Police entry after landlord's valid private search was reasonable

Defendant’s landlord entered with permission to repair a leak. He saw drugs on the nightstand, and he called the police and let them in to seize it. The police then got further consent from the defendant. The landlord’s private search was valid, and letting the police in was not unreasonable. State v. Wright, 431 N.J. Super. 558, 71 A.3d 212 (2013):

=> Read more!

Permalink 03:59:45 am, by fourth, 97 words, 447 views   English (US)
Categories: General

Sen. Frank Church in 1975 on NSA: “no American would have any privacy left”; “There would be no place to hide.”

The Agency That Could Be Big Brother by James Banford, NYTimes (Dec. 25, 2005), quoting Sen. Frank Church in 1975 of the capability of the NSA:

“That capability at any time could be turned around on the American people,” he said in 1975, “and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide.”

He added that if a dictator ever took over, the N.S.A. “could enable it to impose total tyranny, and there would be no way to fight back.”

Permalink 03:51:14 am, by fourth, 114 words, 408 views   English (US)
Categories: General

NYT: If You Can’t Hide From Big Brother, Adapt

Permalink 12:00:59 am, by fourth, 65 words, 413 views   English (US)
Categories: General

WaPo Blog: Christie v. Paul: Face-off on national security

WaPo Blog: Face-off on national security by Jennifer Rubin:

=> Read more!

Permalink 12:00:30 am, by fourth, 24 words, 234 views   English (US)
Categories: General

Atlantic: Could the Government Get a Search Warrant for Your Thoughts?

Atlantic: Could the Government Get a Search Warrant for Your Thoughts? / Why remain silent if they can just read your mind? by John Villasenor

07/26/13

Permalink 04:57:03 pm, by fourth, 150 words, 445 views   English (US)
Categories: General

CNet.com: Feds tell Web firms to turn over user account passwords

Permalink 04:54:07 pm, by fourth, 162 words, 479 views   English (US)
Categories: General

MotherJones: TSA Is Making Airport Valets Search Your Trunk

MotherJones: TSA Is Making Airport Valets Search Your Trunk / And legal experts say the searches may violate your Fourth Amendment rights by Dana Liebelson:

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Permalink 04:49:46 pm, by fourth, 167 words, 408 views   English (US)
Categories: General

Slate.com: NSA Can Reportedly Track Phones Even When They're Turned Off

Permalink 03:07:50 pm, by fourth, 90 words, 426 views   English (US)
Categories: General

Time: ‘Stop and Frisk’ Stirs Up, Rather than Deters, Youth Crime

Permalink 10:29:28 am, by fourth, 172 words, 243 views   English (US)
Categories: General

D.Vt.: Reasonable inference from facts not willfully "false" under Franks

The officer’s statement was not willfully or recklessly “false” for Franks purposes because it was a reasonable inference based on available information. The warrant was for drugs and it was sufficiently particular. In any event, the good faith exception would save it. United States v. Zuber, 2013 U.S. Dist. LEXIS 104031 (D. Vt. July 25, 2013).*

“The totality of circumstances shows that defendant voluntarily consented to let Rose search the car. Once defendant agreed to stay and answer questions, Rose asked about guns and drugs and, in short order, asked for permission to search the car. Defendant unequivocally gave permission, responding without hesitation (and rather enthusiastically) to Rose's request.” United States v. Aispuro, 2013 U.S. Dist. LEXIS 103379 (D. Kan. July 24, 2013).*

The officer had reasonable suspicion that the vehicle was involved in alien smuggling. There was also reasonable suspicion from the source of the rental cars being well known to the Border Patrol to be involved in alien smuggling, even though it was a subsidiary of Avis. United States v. Bautista-Villanueva, 524 Fed. Appx. 476 (11th Cir. 2013).*

Permalink 10:21:52 am, by fourth, 102 words, 236 views   English (US)
Categories: General

FL3: BOLO for seven males involved in a robbery didn't support stop of 13 yo girl

Police had a BOLO for seven males involved in a robbery. The stop of this 13 year old girl was unjustified, so her consent was invalid. W.G. v. State, 118 So. 3d 269 (Fla. 3d DCA 2013).*

Apparent hand to hand transactions in a high crime area from defendant’s vehicle was reasonable suspicion for a stop. United States v. Horton, 2013 U.S. Dist. LEXIS 103285 (D. Md. July 23, 2013).*

Small talk about destination and other matters during a stop was reasonable, and the officer observed that defendant was likely under the influence of drugs. United States v. Lindsay, 2013 U.S. Dist. LEXIS 103410 (W.D. Tex. July 23, 2013).*

Permalink 09:44:38 am, by fourth, 163 words, 530 views   English (US)
Categories: General

NYT: Roberts’s Picks Reshaping Secret Surveillance Court

07/25/13

Permalink 01:59:31 pm, by fourth, 603 words, 609 views   English (US)
Categories: General

S.D.Cal.: Willful violation of computer search protocols required suppression

Willful violation of the computer search protocols of searching within 120 days required suppression of the search of records from defendant’s house. Defendant was a Border Patrol Union rep, and was a retired Border Patrol agent. Also, the computer searchers chose to search outside the terms of the warrant to look at adult pornography on the computer. United States v. Bonner, 2013 U.S. Dist. LEXIS 103087 (S.D. Cal. July 23, 2013):

=> Read more!

Permalink 12:51:39 pm, by fourth, 390 words, 548 views   English (US)
Categories: General

TN: Defendant was a regular overnight guest in the home of his children and had standing

At the beginning of the suppression hearing, the state challenged standing. The officer’s testimony supported standing, and the defense put nothing on, the court noting that had it not found standing on the little record there was, he could have filed an IAC claim against defense counsel. Then the court found the CI was not adequately supported and the search was suppressed. State v. Woods, 2013 Tenn. Crim. App. LEXIS 624 (July 3, 2013). As to standing:

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Permalink 12:27:02 pm, by fourth, 166 words, 280 views   English (US)
Categories: General

W.D.Mo.: Even if cell phone SI wasn't valid, SW was inevitable discovery

Defendant was detained by a day care center’s security officer as a sex offender violating the distance restriction. His cell phone and backpack were searched incident to his arrest by the police. The cell phone is found [without any real discussion] to be subject to search incident, but a search warrant was issued for it afterward. Even striking all the information obtained by the search incident, should it later prove unlawful, the affidavit for the search warrant was valid and issued with probable cause. Inevitable discovery applied. United States v. Mann, 2012 U.S. Dist. LEXIS 188722 (W.D. Mo. November 2, 2012).*

Defense counsel was not ineffective for not challenging a search warrant issued by a judge who had previously ruled against defendant in a civil case. Defense counsel also was not ineffective for not challenging consent by a person living in an apartment defendant was no longer living in because he couldn’t conceivably show standing. Carpenter v. United States, 2013 U.S. Dist. LEXIS 103522 (D. Ore. July 23, 2013).*

Permalink 11:53:07 am, by fourth, 762 words, 603 views   English (US)
Categories: General

M.D.Fla.: No REP in recorded jail calls to attorney; crime fraud exception applies

Defendant’s calls from the jail were all recorded, and two calls to his attorney were also listened to. The calls from the attorney are not suppressed because there was no reasonable expectation of privacy based on the recorded warning. As to the attorney-client privilege, the government has established that the crime-fraud exception applies to the conversation. United States v. Mitchell, 2012 U.S. Dist. LEXIS 188717 (M.D. Fla. August 21, 2012):

=> Read more!

Permalink 07:34:43 am, by fourth, 182 words, 571 views   English (US)
Categories: General

NY Daily News: Blond beauty set to sue NYPD over sexy photos swiped from iPhone

And the government thinks a cell phone shouldn't have complete privacy as an "effect" under the Fourth Amendment? Consider this:

NY Daily News: Blond beauty set to sue NYPD over sexy photos swiped from iPhone by Rocco Parascandola & Bill Hutchinson [You have to excuse the tabloid's headlines.]

=> Read more!

07/24/13

Permalink 05:04:24 pm, by fourth, 97 words, 364 views   English (US)
Categories: General

Freedom Works: House to Vote on Fourth Amendment Today; Outcome in Doubt

Freedom Works: House to Vote on Fourth Amendment Today; Outcome in Doubt by Dean Clancy:

The House is expected to vote today on the Fourth Amendment. The outcome is in doubt. How far we've drifted from the letter of the Constitution and the spirit of liberty!

Could it be that the Republican majority in the House has a one-item agenda: Repealing Obamacare? You should see the inane emails from my Congressman about it. I can't believe he gets a salary. I write him about the Fourth Amendment issues, and he ignores me. Privacy he doesn't care about.

Permalink 08:49:31 am, by fourth, 133 words, 309 views   English (US)
Categories: General

CA5: Defendant consented to strip search at Customs despite being intoxicated and incoherent

The evidence supported the district court’s conclusion defendant consented to a body cavity search at the Eagle Pass checkpoint, despite her being intoxicated and incoherent. She was cooperative throughout. She claimed she had a tampon in, and pulled down her pants and showed the string to the officer, but the officer concluded it connected to something else. Defendant then conceded it was a condom with heroin. Defendant was known to Customs generally because of prior involvement with a body cavity smuggling ring. United States v. Martinez, 537 Fed. Appx. 340 (5th Cir. 2013).

Officers had probable cause based on a CI’s corroborated and detailed information that a van would show up for a meth deal. Defendant was a passenger and lacked standing. United States v. Verduzco-Morett, 2013 U.S. Dist. LEXIS 102654 (W.D. Mo. January 17, 2013).*

Permalink 08:39:42 am, by fourth, 180 words, 255 views   English (US)
Categories: General

M.D.Fla.: Motion to reconsider denial of suppression granted because gov't didn't argue that ground and defendant didn't get to respond

Motions to reconsider denied motions to suppress are granted only for extraordinary circumstances and then sparingly. Here, the court’s conclusion on independent source was not argued by the government, and defendant did not get to address it. Therefore, the motion to reconsider is granted. “The Court agrees with the Defendant in that the Government has presented no evidence that the decision to seek the search warrant in this case was not prompted by what they had seen during the initial entry, as in Chaves. Id. Thus, the motion to reconsider on this issue is granted.” United States v. Srisanthia, 2013 U.S. Dist. LEXIS 102775 (M.D. Fla. July 23, 2013).

Police officers arrived at the scene of a home invasion, and found a two people shot, one of whom was the defendant. The door was open, and there was blood visible on the floor. The entry was justified by the obvious emergency of the shooting, blood, and more potential victims. Observations from that lawfully made it into a search warrant. United States v. Johnson, 2013 U.S. Dist. LEXIS 102936 (N.D. Ga. June 12, 2013).*

Permalink 08:24:28 am, by fourth, 179 words, 291 views   English (US)
Categories: General

E.D.N.Y.: GFE did not save search of wrong apartment in CP case

Officers searched two apartments in a warrant for one, and the good faith exception could not be applied. All factors pointed to upstairs Apt. 2, the purported residence of the defendant by all accounts. After officers got there, it turned out defendant was really living in downstairs Apt. 1. Clearly, the USMJ only authorized a search of Apt. 2. On a cost-benefits analysis of the benefits of suppression v. social costs, the balance favors suppression of the child pornography. United States v. Bershchansky, 958 F. Supp. 2d 354 (E.D. N.Y. 2013).

The owner of an iPhone who loaned it to the defendant had apparent authority to consent to its search after it was taken off defendant. United States v. Mitchell, 2013 U.S. Dist. LEXIS 102092 (M.D. Fla. July 22, 2013), prior opinion 2012 U.S. Dist. LEXIS 188717 (M.D. Fla. August 21, 2012).

Consent was voluntary on totality: “Most significant, however, is Salcedo's admission that he allowed the agents to search his apartment because he thought that if they failed to find the evidence, then he ‘would be home free.’” United States v. Salcedo, 533 Fed. Appx. 796 (9th Cir. 2013).

Permalink 07:51:06 am, by fourth, 236 words, 248 views   English (US)
Categories: General

M.D.Tenn.: Not unreasonable for officer to ask "locomotion-related inquiries not strictly directed to the motorist's conduct at the time of the stop"

During a traffic stop, it is not unreasonable for an officer to ask "locomotion-related inquiries not strictly directed to the motorist's conduct at the time of the stop, such as '[the] motorist's travel history and travel plans' and 'the driver's authority to operate the vehicle .'" The officer had a drug dog, and it was not unreasonable to use the dog. “While Defendant may curse his bad luck to get stopped by a police officer who has a drug dog and who knows the constitutional limits of his authority, nothing about this stop was unreasonable.” United States v. Pratt, 2013 U.S. Dist. LEXIS 101906 (M.D. Tenn. July 22, 2013).

Defendant’s appearing to be under the influence of drugs when he was stopped was reasonable suspicion to call for a drug dog. United States v. Poole, 2013 U.S. Dist. LEXIS 101661 (N.D. Iowa July 22, 2013).

There was a federal warrant for defendant’s arrest, and ICE agents found him at a county courthouse, there for a civil case with his lawyer. When he was arrested, he was asked about whether his lawyer would take his briefcase or it would come with him. He said the agents could take it. A search for weapons was reasonable. This was not a search incident per se but an inventory because defendant said the officers could take possession of the briefcase. United States v. Camick, 2013 U.S. Dist. LEXIS 101623 (D. Kan. July 22, 2013).*

07/23/13

Permalink 06:16:14 pm, by fourth, 110 words, 574 views   English (US)
Categories: General

Wired.com: House to Vote on Repealing NSA Dragnet Phone Surveillance

Permalink 06:13:13 pm, by fourth, 83 words, 418 views   English (US)
Categories: General

SFGate: Maine proposal would increase wait time in jail before arraignment

Permalink 06:06:48 pm, by fourth, 223 words, 391 views   English (US)
Categories: General

Rutherford Institute Critiques Albemarle ‘Safety’ Checkpoints in Charlottesville, VA

Permalink 07:08:26 am, by fourth, 97 words, 331 views   English (US)
Categories: General

MA: Arrest warrant supported entry of 3d party's home to arrest with PC defendant was there

A reasonable belief the subject of an arrest warrant is in a third person’s house is required to enter on the warrant. When the subject disclaims connection to the house, he has no standing to contest the lack of a search warrant for him. Commonwealth v. Tatum, 466 Mass. 45, 992 N.E.2d 987 (2013).

Bivens actions in Pennsylvania are subject to the state’s two year limitation period. This was filed out of time. Francis v. Miligan, 530 Fed. Appx. 138 (3d Cir. 2013).*

This prison cell search claim fails as a matter of law. Hurst v. Snider, 530 Fed. Appx. 168 (3d Cir. 2013).*

Permalink 06:19:35 am, by fourth, 220 words, 483 views   English (US)
Categories: General

The Oklahoman: Oklahoma DA halts I-40 drug stops after criticism

Permalink 06:10:32 am, by fourth, 113 words, 412 views   English (US)
Categories: General

NYT: A Black Box for Car Crashes

Permalink 05:53:24 am, by fourth, 182 words, 519 views   English (US)
Categories: General

WaPo: NSA growth fueled by need to target terrorists

Permalink 05:38:07 am, by fourth, 195 words, 275 views   English (US)
Categories: General

D.Utah: Second “discovery” search of computer could not be considered part of the original search under SW

Defendant’s computer was subjected to a keyword search in a tax fraud case by two names and a phrase. That was clearly within the warrant. A second search effort, however, for “discovery” was outside the warrant and suppressed. It could not be legitimately characterized as a part of the initial warranted search. “However, the search warrant did not authorize a search of defendant Wardle’s hard drive for the purpose of obtaining documents related to a different individual in response to discovery obligations in a different case. Because the second search was clearly performed for a distinct purpose that was not authorized by the warrant, the court can not find that the search was proper.” United States v. Wardle, 2013 U.S. Dist. LEXIS 100091 (D. Utah July 16, 2013).

Two controlled buys brought defendant in his white car to the scene. That was probable cause for arrest and a search of the car. Herron v. State, 991 N.E.2d 165 (Ind. App. 2013).*

Seizure of money from defendant four months after his alleged use of an ATM card for about that same amount of money was without probable cause. State v. Noller, 2013 Ohio 3183, 2013 Ohio App. LEXIS 3243 (6th Dist. July 19, 2013).*

Permalink 05:20:44 am, by fourth, 287 words, 454 views   English (US)
Categories: General

eff.org: State Courts Join State Lawmakers in Demanding Warrants for Location Information

Permalink 12:56:12 am, by fourth, 162 words, 463 views   English (US)
Categories: General

C.D.Ill.: Reasonable for officers to pull guns on people found at a large open field marijuana grow

When officers are searching open fields for a large marijuana grow and they encounter people reasonably suspected to be involved with it, it is reasonable to draw their weapons and order those people to the ground for officer safety. It still was a Terry stop at that point. United States v. Gerardo, 2013 U.S. Dist. LEXIS 100953 (C.D. Ill. July 19, 2013).

The Secret Service had probable cause to believe that there was software on defendant’s computer for counterfeiting checks. They got a search warrant for the computer for the search for the software and stumbled upon child pornography. That search was stopped and another search warrant was obtained for child porn. The first valid warrant was an independent source for the second. United States v. Carter, 530 Fed. Appx. 199 (3d Cir. 2013).

The “encounter” with a vehicle under Oregon law has to be “in connection with a crime” for the automobile exception to apply. That happened here. State v. Finlay, 257 Ore. App. 581, 307 P.3d 518 (2013).*

Permalink 12:01:00 am, by fourth, 269 words, 848 views   English (US)
Categories: General

W.D.Mo.: Exigency was speculative; search suppressed

That an emergency “might” come into being is not enough to dispense with a warrant. There was probable cause, but no warrant and no exigency. United States v. Castro, 959 F. Supp. 2d 1205 (W.D. Mo. 2013)*:

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07/22/13

Permalink 05:53:55 am, by fourth, 161 words, 715 views   English (US)
Categories: General

N.D.Ill.: ADD here didn't make consent involuntary

The defendant was indicted for attempting to ship a military grade gyroscope overseas without an export license. When government agents met up with him to discuss the sale, and then revealed themselves as LEOs he ultimately consented to a search of his house. His claimed ADD did not show the consent was invalid. Credibility call goes to the government. United States v. Modir Trading, 2013 U.S. Dist. LEXIS 100304 (N.D. Ill. July 18, 2013):

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Permalink 01:55:18 am, by fourth, 713 words, 505 views   English (US)
Categories: General

CA1 remands a denial of a motion to suppress for lack of a record of validity of search

The FBI told defendant she might as well consent because New Hampshire Probation and Parole was going to order a search anyway (and did). Was this a reasonable mistake of fact that the good faith exception will overlook? Regretfully, an inadequate record was made on all of this, so the court orders a remand. United States v. Vázquez, 724 F.3d 15 (1st Cir. 2013):

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Permalink 12:54:33 am, by fourth, 140 words, 314 views   English (US)
Categories: General

TN: Small container on key fob could be searched during inventory

Defendant was stopped and ticketed for no proper tags on his vehicle, and it had to be towed because even a passenger, if there was one and there wasn’t, would be breaking the law to drive it away. The inventory properly included a pill container on the key fob where cocaine was found. State v. Seay, 2013 Tenn. Crim. App. LEXIS 601 (July 16, 2013).

A CI called 911 to report that they were outside Club Mayhem and defendant had retrieved a gun from his trunk and put it in his waistband. Police arrived while the caller was still on the line. The encounter with defendant and his frisk was reasonable. United States v. Armstrong, 2013 U.S. Dist. LEXIS 100218 (S.D. Ga. June 28, 2013).*

Tennessee still applies Aguilar-Spinelli, and the CI’s information complied with it here. State v. Baker, 2013 Tenn. Crim. App. LEXIS 600 (July 17, 2013).*

Permalink 12:00:09 am, by fourth, 115 words, 500 views   English (US)
Categories: General

SC: Opening the door of an occupied car is a search

Opening the door of an occupied car is a search. Here it was reasonable because it was based on officer safety. McHam v. State, 404 S.C. 465, 746 S.E.2d 41 (2013):

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07/21/13

Permalink 11:10:30 am, by fourth, 201 words, 573 views   English (US)
Categories: General

W.D.Va.: Not raising searching deputy's later firing not shown to be IAC

2255 petitioner’s claim that defense counsel didn’t raise the question of the searching deputy being later fired didn’t even attempt to show how it would change the outcome, so it’s denied. United States v. Elkins, 2013 U.S. Dist. LEXIS 101058 (W.D. Va. July 19, 2013).*

Consent was found valid. United States v. Slone, 2013 U.S. Dist. LEXIS 101198 (E.D. Ky. July 19, 2013) (R&R 2013 U.S. Dist. LEXIS 102042 (E.D.Ky. June 14, 2013))*:

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Permalink 10:15:53 am, by fourth, 403 words, 723 views   English (US)
Categories: General

SC: These 14 factors of nervousness for reasonable suspicion still did not add up to reasonable suspicion.

The state’s 14 factors of nervousness and reasonable suspicion still did not add up to reasonable suspicion. Suppression should have been granted. State v. Moore, 404 S.C. 634, 746 S.E.2d 352 (2013):

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Permalink 09:54:32 am, by fourth, 42 words, 302 views   English (US)
Categories: General

NYT: Judge Challenges White House Claims on Authority in Drone Killings

NYT: Judge Challenges White House Claims on Authority in Drone Killings by Scott Shane:

WASHINGTON — A federal judge on Friday sharply and repeatedly challenged the Obama administration’s claim that courts have no power over targeted drone killings of American citizens overseas.

Permalink 09:33:24 am, by fourth, 501 words, 694 views   English (US)
Categories: General

E.D.Pa.: Pornography industry qualifies as “closely regulated business” under Burger

The record keeping requirement of the pornography production statutes do not violate the First and Fourth Amendment. As to the Fourth, the government satisfied the “closely regulated business” rationale of Burger for the records, except for records inspections in the producers’ homes. Free Speech Coalition v. Holder, 957 F. Supp. 2d 564 (E.D. Pa. 2013):

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Permalink 09:22:55 am, by fourth, 228 words, 300 views   English (US)
Categories: General

OH9: Active smelly meth cook in motel exigency to kick in door

An officer was called to a motel because there was alleged to be an active methamphetamine cook going on in a room giving off a strong odor everybody could smell. When the occupants wouldn’t open the door, he kicked it in. An active meth cook is exigency. State v. Armbruster, 2013 Ohio 3119, 2013 Ohio App. LEXIS 3168 (9th Dist. July 17, 2013).

During prison visitation, defendant was seen likely removing something white from his child’s pants while the child was sitting on his lap and putting it in his mouth. The guards reviewed the video and couldn’t be sure. Nevertheless, they terminated the visitation. “Carlton was placed in a ‘dry cell’ and it was later determined that his feces contained fragments of white latex rubber as well as marijuana. Latex rubber balloons containing marijuana were found discarded in the lobby of the prison and in the interview room where Anderson had been interviewed.” The motion to suppress the stuff found in the lobby he hardly could object to. The search of his feces was reasonable. United States v. Carlton, 2013 U.S. Dist. LEXIS 99299 (W.D. La. March 6, 2013).

Defendant’s consent was valid. He signed four, not just one, consent forms, and he’d previously spontaneously said “That’s me” when shown an ATM photo of the suspected fraudster. United States v. Bazile, 2013 U.S. Dist. LEXIS 99780 (S.D. Fla. June 28, 2013).*

Permalink 08:54:33 am, by fourth, 205 words, 763 views   English (US)
Categories: General

CA1 recognizes "Fourth Amendment malicious prosecution" claim

Plaintiff alleged in his 1983 case he was held for three months without probable cause. He stated a claim for "Fourth Amendment malicious prosecution." Here, plaintiff didn't even match the description of the person the police were looking for. Hernandez-Cuevas v. Taylor, 723 F.3d 91 (1st Cir. 2013):

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Permalink 08:41:25 am, by fourth, 122 words, 316 views   English (US)
Categories: General

M.D.La.: One has to be somewhere on the rental agreement of a rented car to have standing

Defendant was not on the rental agreement for a rented car as an authorized driver. His mother rented the car. Her prior arrangements with him to let him drive the car she rented does not confer standing. When he saw the police he fled the car. United States v. Barlow, 2013 U.S. Dist. LEXIS 98967 (M.D. La. July 16, 2013).*

Window tint violation properly led to admission of possession of MJ and search incident. State v. Price, 322 Ga. App. 778, 746 S.E.2d 258 (2013).*

Defense counsel was not ineffective for not challenging defendant’s stop because the officers knew he was driving on a suspended DL and there was a warrant for his arrest. United States v. Moore, 2013 U.S. Dist. LEXIS 99594 (E.D. Pa. July 16, 2013).*

Permalink 02:00:00 am, by fourth, 303 words, 711 views   English (US)
Categories: General

GA: Court ordered GPS installed without any PC suppressed

State officials got a court ordered GPS installed on defendant’s car, and the court finds that it was installed utterly without probable cause. Motion to suppress should have been granted. Hamlett v. State, 323 Ga. App. 221, 746 S.E.2d 843 (2013):

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Permalink 12:13:30 am, by fourth, 310 words, 521 views   English (US)
Categories: General

GA: Stop was prolonged unnecessarily and became unreasonable

The officer did not act promptly after he claimed he developed reasonable suspicion to call the dogs out. He made small talk, didn’t ask for consent, and then decided to call for the drug dog, so the stop was unreasonably extended. Nash v. State, 323 Ga. App. 438, 746 S.E.2d 918 (2013):

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07/20/13

Permalink 03:05:15 pm, by fourth, 50 words, 378 views   English (US)
Categories: General

The Atlantic: The NSA Admits It Analyzes More People's Data Than Previously Revealed

The Atlantic: The NSA Admits It Analyzes More People's Data Than Previously Revealed by hilip Bump:

As an aside during testimony on Capitol Hill today, a National Security Agency representative rather casually indicated that the government looks at data from a universe of far, far more people than previously indicated.

Permalink 02:51:07 pm, by fourth, 115 words, 447 views   English (US)
Categories: General

NYT: Surveillance Court Renews Order for Phone Call Data

Permalink 02:36:04 pm, by fourth, 148 words, 539 views   English (US)
Categories: General

BLT: U.S. Tech Companies Request Data on NSA Surveillance

Permalink 11:28:14 am, by fourth, 402 words, 823 views   English (US)
Categories: General

CT: Refusal to open mouth for DNA swab supported conviction for interfering with search

Defendant who refused and resisted opening mouth for a mandated DNA swab was properly convicted of forcibly interfering with a search. State v. Gonzalez, 144 Conn. App. 353, 71 A.3d 681 (2013):

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Permalink 11:00:34 am, by fourth, 471 words, 599 views   English (US)
Categories: General

NE: The third-party doctrine makes pharmacy records open to process less than a SW; REP not absolute

The third-party doctrine makes pharmacy records open to process less than a search warrant. The expectation of privacy, while reasonable, is not absolute. State v. Wiedeman, 286 Neb. 193, 835 N.W.2d 698 (2013) [See Chapter 5 of the Fifth Edition of this Treatise due out in October for a criticism of the third-party doctrine and informational privacy.]:

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Permalink 10:43:19 am, by fourth, 208 words, 386 views   English (US)
Categories: General

W.D.Mo.: Def's arrest and consent was on "COPS," but the tape being erased was not a ground to suppress

Defendant’s alleged consent was recorded by "COPS" but later erased by the production company. He’s not entitled to suppression on that ground. The court credits the officer’s testimony on defendant’s consent and finds it voluntary. United States v. Brayfield, 2013 U.S. Dist. LEXIS 99046 (W.D. Mo. June 25, 2013), adopted 2013 U.S. Dist. LEXIS 98179 (W.D. Mo. July 15, 2013):

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Permalink 10:30:13 am, by fourth, 304 words, 396 views   English (US)
Categories: General

E.D.Mich.: Federal nighttime search sustained

Federal nighttime search sustained based on a reasonable belief the drugs were being moved “that evening” [although the search was at 1:15 am]. 21 U.S.C. § 879 prevails over Rule 41 on nighttime searches. United States v. Thompson, 2013 U.S. Dist. LEXIS 98895 (E.D. Mich. July 16, 2013):

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Permalink 10:22:07 am, by fourth, 1228 words, 776 views   English (US)
Categories: General

MA: Post-indictment SW for e-mails valid, but taint team required to protect A-C privilege

The defendant medical practice was indicted for alleged fraud. After the indictment, the state got a search warrant for the principals’ Gmail accounts, obtaining 80,000 emails for a four year period. The issuing magistrate was not told defendants were already indicted, which also meant that some of the emails may have been attorney-client privileged. The state argued that new potential offenses were under investigation, and the warrant was not being used to further investigate the original case. First, a search warrant can be used post-indictment. [And isn’t that more protection than a mere subpoena for records?] Second, a search warrant for e-mail of a defendant under indictment requires a taint team to protect attorney-client confidences. Preventive Med. Assocs. v. Commonwealth, 465 Mass. 810, 992 N.E.2d 257 (2013):

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Permalink 09:46:42 am, by fourth, 144 words, 212 views   English (US)
Categories: General

D.Minn.: Not checking out of hotel room when rent up was abandonment

Defendant’s hotel room rent expired on the 16th, and the hotel entered on the 17th and removed his stuff. The hotel was not acting as an agent of government in doing so, and he waived his reasonable expectation of privacy by leaving it behind. United States v. Jokhoo, 2013 U.S. Dist. LEXIS 97803 (D. Minn. May 20, 2013).*

Defendant was detained in his house for an hour, and this was reasonable. Officers responded to an “armed disturbance” and found yelling people. United States v. Davis, 2013 U.S. Dist. LEXIS 98326 (D. Neb. July 15, 2013),* R&R 2013 U.S. Dist. LEXIS 98322 (D. Neb. May 24, 2013).

The fact defendant’s attorney could have asked a few more questions on cross-examination at the suppression hearing doesn’t make him ineffective. What was missing certainly wouldn’t have changed the outcome. United States v. Landers, 2013 U.S. Dist. LEXIS 97672 (D. Alaska July 10, 2013).*

Permalink 09:37:17 am, by fourth, 482 words, 682 views   English (US)
Categories: General

E.D.Ky.: Wrong address on search warrant doesn’t void it because there was no “reasonable probability” the wrong place was searched

Wrong address on search warrant doesn’t void it because there was no “reasonable probability” the wrong place was searched. United States v. King, 2013 U.S. Dist. LEXIS 98047 (E.D. Ky. July 15, 2013)f (R&R 2013 U.S. Dist. LEXIS 101842 (E.D.Ky. May 30, 2013)):

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Permalink 07:00:04 am, by fourth, 201 words, 311 views   English (US)
Categories: General

OH5: GFE exception still applies even though court said 3 years earlier they couldn't do what they did

A probate judge is not a judge authorized to issue a search warrant in Ohio, but the good faith exception still applies to a 2012 warrant, even though a 2009 case says that it couldn’t be done. The court notes that no record was made on good faith. So it must apply. State v. Kithcart, 2013 Ohio 3022, 2013 Ohio App. LEXIS 3065 (5th Dist. July 10, 2013).* [Read this case and see if it makes any sense whatsoever. The state carries the burden on good faith and it failed. Obviously, we have here three judges utterly clueless about the Fourth Amendment and the good faith exception. Hopefully counsel will take this up or ask for rehearing and resist the urge to refer to them as "completely Fourth Amendment- impaired."]

Defendant’s stop was based on reasonable suspicion for a weight bench that was moving around as the vehicle was moving (unsecured load). It did not have to fall out of the truck to qualify. State v. Heard, 2013 Ohio 3037, 2013 Ohio App. LEXIS 3089 (2d Dist. July 12, 2013).*

Defendant and his car were linked to marijuana transportation, and the search of the car was valid under the automobile exception. Gant does not apply. Ross v. State, 323 Ga. App. 28, 747 S.E.2d 81 (2013).*

07/19/13

Permalink 06:12:08 pm, by fourth, 133 words, 473 views   English (US)
Categories: General

Wired: NSA Phone Snooping Cannot Be Challenged in Court, Feds Say

Permalink 02:29:42 pm, by fourth, 956 words, 837 views   English (US)
Categories: General

NJ: Warrantless cell phone tracking violated the state constitution; people have a REP in their whereabouts from the govt

People retain a reasonable expectation of privacy in their whereabouts and they do not buy a cell phone expecting to be tracked by the government. Warrantless cell phone tracking here violated the state constitution. State v. Earls, 214 N.J. 564, 70 A.3d 630 (2013):

=> Read more!

Permalink 02:23:55 pm, by fourth, 57 words, 393 views   English (US)
Categories: General

WaPo: NSA director suggests phone companies, not government, could store calling records

Permalink 02:04:45 pm, by fourth, 47 words, 428 views   English (US)
Categories: General

United Liberty: House committee approves email privacy reform

Permalink 09:24:52 am, by fourth, 138 words, 249 views   English (US)
Categories: General

OH2: Purse in passenger compartment not subject to search incident with defendant in back of police car

With the defendant in custody in the back of a police car, a search incident of a purse in the passenger compartment was unjustified as a search incident. There also was no safety justification for its search or consent. The motion to suppress was properly granted. State v. Caulfield, 2013 Ohio 3029, 2013 Ohio App. LEXIS 3085 (2d Dist. July 12, 2013).

In the suppression hearing, the officer did not explain his impoundment of defendant’s car and inventory. The motion was denied. At trial, the officer elaborated. The appellate court is free to use the trial testimony to fill in the blanks, and the motion to suppress was properly denied. Tyre v. State, 323 Ga. App. 37, 747 S.E.2d 106 (2013).

Reasonable belief defendant was making bombs in his garage justifies emergency entry into the garage. State v. Griffin, 2013 Ohio 3036, 2013 Ohio App. LEXIS 3087 (2d Dist. July 12, 2013).

Permalink 09:15:41 am, by fourth, 178 words, 515 views   English (US)
Categories: General

GA: Completely uncontrolled “controlled buy” is no PC

The CI’s “controlled buy” wasn’t controlled at all, and there was no way to credit what the CI said about the defendant. The police saw nothing corroborative. Chatham v. State, 323 Ga. App. 51, 746 S.E.2d 605 (2013):

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07/18/13

Permalink 01:19:38 pm, by fourth, 80 words, 595 views   English (US)
Categories: General

NPR: Hacking Google Glass to erode our privacy

Permalink 11:03:04 am, by fourth, 73 words, 566 views   English (US)
Categories: General

Ladybud.com: 5 GA Policemen Strap Down Young Woman After She Refuses Breathalyzer (VIDEO)

Permalink 10:09:18 am, by fourth, 133 words, 437 views   English (US)
Categories: General

ACLU.org: ACLU Challenges 67 Days of Warrantless Cell Phone Location Tracking

Permalink 03:49:53 am, by fourth, 157 words, 552 views   English (US)
Categories: General

Daily Kos: Why the Fourth Amendment Sucks (And Doesn't Prevent Mass Electronic Surveillance): A Factual History

Permalink 03:23:31 am, by fourth, 117 words, 409 views   English (US)
Categories: General

Volokh: Thoughts on Orin’s Thoughts on Existing Fourth Amendment Doctrine

07/17/13

Permalink 09:21:23 am, by fourth, 163 words, 335 views   English (US)
Categories: General

OH10: Protective weapons search of car valid when defendant in back of patrol car and not under arrest

Defendant’s erratic behavior when stopped justified a Long weapons search of the car even though defendant was in the back of a police car at the time. He would soon be released, and the officer didn’t want him arming himself if he could. State v. Cordell, 2013 Ohio 3009, 2013 Ohio App. LEXIS 3056 (10th Dist. July 11, 2013).*

During a valid stop the officer saw marijuana in plain view on the passenger floorboard, and that justified a search of the car under the automobile exception. When searching, a gun was also in plain view. The trial court erred in suppressing. State v. Bazrawi, 2013 Ohio 3015, 2012 Ohio App. LEXIS 5501 (10th Dist. July 11, 2012).*

The CI met face-to-face with the police and said he bought drugs from the defendant. That was an admission against penal interest, and it showed probable cause. Also, there were about 20 purchases between December and January 23, and the information was not stale on January 27 when the warrant was issued. State v. Flores, 144 Conn. App. 308, 72 A.3d 1202 (2013).*

Permalink 09:10:34 am, by fourth, 110 words, 250 views   English (US)
Categories: General

CA1: Nervousness and refusing to ID self or take hands from pockets was RS for patdown

Police were called to a domestic disturbance. Separating the two, one officer talked to the defendant who refused to provide his identity, was nervous, and refused to remove his hand from his pocket. That was enough to frisk, and defendant fled tossing a gun. United States v. Mouscardy, 722 F.3d 68 (1st Cir. 2013).*

There was probable cause for the warrant (all in one short paragraph). United States v. McDuffie, 533 Fed. Appx. 724 (9th Cir. 2013).*

Defendant didn’t challenge the district court’s finding of no standing in his opening brief on appeal, so he waived it. The consent finding was based on the evidence. United States v. Agli, 533 Fed. Appx. 733 (9th Cir. 2013).*

Permalink 08:33:51 am, by fourth, 149 words, 270 views   English (US)
Categories: General

OH2: Stop continued on a "hunch," and consent was invalid

Defendant’s stop was prolonged because it was based on a “hunch” and not reasonable suspicion. The consent granted after that was not voluntary. The state had the burden and it failed. State v. White, 2013 Ohio 3027, 2013 Ohio App. LEXIS 3083 (2d Dist. July 12, 2013).*

Defendant has no standing to challenge the alleged pretextual stop of a car he wasn’t even in and had no possessory interest. State v. Silvas, 2013-NMCA-093, 2013 N.M. App. LEXIS 61 (July 10, 2013), Certiorari Granted, September 20, 2013, No. 34,271.

Probable cause existed on the totality of circumstances. Defendant viewed all the factors only in isolation in his argument. State v. Wilson, 404 S.W.3d 917 (Mo. App. 2013).*

Defendant was stopped for almost hitting a police car, and reasonable suspicion of wrongdoing was evident to the officers [but not to me], and a patdown resulted in a plain feel of a bag of drugs. Nix v. State, 2013 Ala. Crim. App. LEXIS 57 (July 12, 2013).*

Permalink 08:09:07 am, by fourth, 199 words, 458 views   English (US)
Categories: General

HuffPo: Grasping for Dignity in the Era of the American Police State

HuffPo: Grasping for Dignity in the Era of the American Police State by John W. Whitehead, Attorney, President of The Rutherford Institute:

=> Read more!

07/16/13

Permalink 05:33:09 pm, by fourth, 83 words, 584 views   English (US)
Categories: General

TechDirt: 7 Months Of Warrantless 'Just Metadata' Paints A Clear Picture Of Your Personal Life

TechDirt: 7 Months Of Warrantless 'Just Metadata' Paints A Clear Picture Of Your Personal Life (brief attached):

from the anyone-still-believe-this-info-shouldn't-be-protected? dept

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Permalink 02:14:29 pm, by fourth, 171 words, 510 views   English (US)
Categories: General

Re Clapper v. Amnesty International: NYT: A Secret Surveillance Program Proves Challengeable in Theory Only

Permalink 08:34:18 am, by fourth, 135 words, 344 views   English (US)
Categories: General

PA: Seatbelt roadblock sustained

Seatbelt roadblock sustained: (1) The state provided sufficient evidence of substantial compliance with the checkpoint guidelines. (2) The checkpoint was a minimally invasive disruption to the motorists because it was set up to produce only a momentary stop, and it allowed officers to distribute literature on seatbelt use and a general overview of the vehicle for any obvious equipment violations. (3) Testimony showed the checkpoint had been administratively determined prior to it being set up and that the administrative determination was supported by local experience. (4) The checkpoint was part of a well-publicized, statewide effort to encourage motorists to use their seatbelts. Commonwealth v. Garibay, 2013 PA Super 186, 72 A.3d 623 (2013) [I still don't get it; how can seatbelt use justify a roadblock the same as a DUI roadblock? What's the threat to the safety of other motorists?]

Back to blog

Permalink 08:15:21 am, by fourth, 141 words, 250 views   English (US)
Categories: General

Defendant consented to view a contact in her cell phone; officer never touched phone

Defendant consented to view a contact in her cell phone. She showed the phone and the officer never touched it. United States v. Wright-Darrisaw, 2013 U.S. Dist. LEXIS 96421 (W.D. N.Y. May 2, 2013).*

Even assuming defense counsel filed a motion to suppress and it was granted, there was a wealth of other information at trial that convicted the defendant, and there’s no reasonable probability of a different outcome. United States v. Murphy, 2013 U.S. Dist. LEXIS 97149 (M.D. Pa. July 11, 2013).*

The officer here stopped defendant “late at night” on I-20 for a window tint violation, and could smell marijuana coming from the car after the stop. That led to defendant’s arrest, and the vehicle would have to be towed, so there was an inventory that produced more drugs. The inventory was valid. Beville v. State, 2013 Ga. App. LEXIS 583 (July 3, 2013).*

Permalink 08:13:48 am, by fourth, 115 words, 248 views   English (US)
Categories: General

KS: Drug dog was certified, and that’s enough for the state to make its burden at a suppression hearing under Harris

The drug dog was certified, and that’s enough for the state to make its burden at a suppression hearing under Florida v. Harris. Defendant was stopped for tint and an altered temporary tag, and a drug dog was used. State v. Brewer, 49 Kan. App. 2d 102, 305 P.3d 676 (2013).

This DUI roadblock was sufficiently obvious that it was constitutional. It was “well identified as a police checkpoint” as required by state law. There were ten officers in reflective vests and police cars with lights on. State v. Conner, 2013 Ga. App. LEXIS 577 (July 3, 2013).*

Defendant fled from the police discarding things from his pockets, and that’s abandonment (quoting Treatise). Walker v. State, 322 Ga. App. 821, 744 S.E.2d 385 (2013).*

Permalink 07:42:09 am, by fourth, 243 words, 448 views   English (US)
Categories: General

M.D.Ala.: Arrest of co-conspirator outside justified warrantless exigent entry

Arrest of a co-conspirator outside created exigency for warrantless police entry into the house for drugs, after nobody answered the door and the police knew there were people inside. United States v. Romero, 2013 U.S. Dist. LEXIS 97055 (M.D. Ala. June 18, 2013):

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Permalink 07:36:10 am, by fourth, 171 words, 387 views   English (US)
Categories: General

E.D.Wash.: It's reasonable to handcuff a man who just fled from the police

Defendant was confronted banging on the door of an apartment and fled. When he was captured, he was handcuffed. That was reasonable under the circumstances. United States v. Kinsey, 952 F. Supp. 2d 970 (E.D. Wash. 2013).*

The showing of probable cause for defendant’s car was thin, but, on review by the district court, it’s not de novo review, and the warrant should be upheld if there was some basis for it. United States v. McAleese, 2013 U.S. Dist. LEXIS 96563 (E.D. Pa. July 10, 2013)*:

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Permalink 07:22:28 am, by fourth, 172 words, 509 views   English (US)
Categories: General

S.D.Ohio: 13 months not too stale in CP case

Italian police discovered a child pornography website in Pennsylvania, and alerted police there. The provider of the website was searched, and links to defendant’s usage were found. The 13 month old information not stale. United States v. Kreitzer, 2013 U.S. Dist. LEXIS 96660 (S.D. Ohio July 10, 2013):

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Permalink 07:14:31 am, by fourth, 151 words, 450 views   English (US)
Categories: General

D.Mass.: Papers on suppression motion enough to decide without hearing

Defendant was arrested alone in a car, so it was going to be towed, and that means an inventory would be conducted. Hidden in an open container was false identity documents, and he’s charged with aggravated identity theft. He doesn’t even get an evidentiary hearing because the papers are sufficient. The parties filed the reports and the inventory policy. United States v. Exume, 953 F. Supp. 2d 319 (D. Mass. 2013).*

=> Read more!

07/15/13

Permalink 11:52:45 pm, by fourth, 156 words, 355 views   English (US)
Categories: General

D.Kan.: Constitutional for police officer to execute PV warrant

Once the Secretary of Corrections issues an arrest warrant for retaking a parole violator, any Kansas police officer may serve it. The court finds this constitutional in the same sense that Shadwick v. City of Tampa authorized court clerks to issue warrants when directed. Therefore, once PC is established to the satisfaction of the parole officials, it is constitutional for any officer to arrest. United States v. Eden, 2013 U.S. Dist. LEXIS 96639 (D. Kan. July 11, 2013).

The government argued defendants who were ordered from their car at gun point and ordered face down on the ground, search, and handcuffed were not arrested. “Under these circumstances, a reasonable person would not have believed he was free to leave.” This arrest also was without probable cause. United States v. Mayberry, 2013 U.S. Dist. LEXIS 96710 (D. Vt. July 11, 2013).*

[Posted 7/16. In case you're wondering, I've been finishing the manuscript to the Fifth Edition for publication in late December.]

Back to blog

07/14/13

Permalink 11:49:35 pm, by fourth, 121 words, 647 views   English (US)
Categories: General

WaPo: For NSA chief, terrorist threat drives passion to ‘collect it all,’ observers say

07/13/13

Permalink 08:35:16 am, by fourth, 404 words, 906 views   English (US)
Categories: General

CA10: Mistake of law on applicability of a traffic law is an objectively unreasonable stop.

Mistake of law on applicability of a traffic law is an objectively unreasonable stop. Three guns suppressed. United States v. Nicholson, 721 F.3d 1236 (10th Cir. 2013):

=> Read more!

Permalink 08:28:19 am, by fourth, 145 words, 334 views   English (US)
Categories: General

AZ: Plain smell applies to a backpack on the person

Defendant was stopped in a high crime area on a bicycle at night with no light. He was nervous and couldn’t account for his possession of the backpack he had. It was reasonable then to separate him from the backpack for safety reasons when the officers patted him down. The officers then had plain smell of marijuana from the backpack for its search. State v. Baggett, 664 Ariz. Adv. Rep.17, 306 P.3d 81 (2013).

Officers had a search warrant for a cell phone that was alleged to have images of child pornography on them. Defendant was questioned but not in custody when he admitted to having images of child pornography on his cell phone. United States v. Conder, 529 Fed. Appx. 618 (6th Cir. 2013).*

Defendant’s stop for potential traffic violations was without reasonable suspicion, and nothing specific can be identified. Suppressed. State v. Stanley, 2013 Iowa App. LEXIS 741 (July 10, 2013).*

Permalink 08:22:44 am, by fourth, 243 words, 595 views   English (US)
Categories: General

CA1: Backscatter technology no longer “generat[es] revealing images,” so case is moot.

Backscatter technology no longer “generat[es] revealing images,” so case is moot. Redfern v. Napolitano, 727 F.3d 77 (1st Cir. 2013):

=> Read more!

Permalink 08:17:11 am, by fourth, 302 words, 694 views   English (US)
Categories: General

IA: A shrug is not a “‘clear indication’ of consent to a search.”

A shrug is not a “‘clear indication’ of consent to a search.” State v. Leaton, 836 N.W.2d 673 (Iowa App. 2013):

=> Read more!

Permalink 08:05:49 am, by fourth, 422 words, 557 views   English (US)
Categories: General

MA: Apparent authority to consent is based on objective facts

The grandmother of a child sex victim called 911 and led police into the house to talk to the child. She had apparent authority to consent to a search and seizure of a couch cushion with semen on it. The facts presented to them were enough to conclude she could consent. Commonwealth v. Santos, 465 Mass. 689, 991 N.E.2d 1049 (2013):

=> Read more!

07/12/13

Permalink 01:55:15 pm, by fourth, 54 words, 563 views   English (US)
Categories: General

ScienceFriday: Protecting Your Online Privacy (audio)

ScienceFriday: Protecting Your Online Privacy Produced by Alexa Lim (audio):

=> Read more!

Permalink 01:50:46 pm, by fourth, 65 words, 458 views   English (US)
Categories: General

NYT: Judge Halts Groin Searches at Guantánamo, Calling Them Abhorrent to Muslims

Permalink 01:48:11 pm, by fourth, 36 words, 300 views   English (US)
Categories: General

Law.com: Newark Police Will Track and Publish Stop-and-Frisks Online

Law.com: Newark Police Will Track and Publish Stop-and-Frisks Online by David Gialanella

The Newark Police Department has agreed to require that its officers document every stop-and-frisk interaction and to report statistics monthly on the Web.

Permalink 07:08:39 am, by fourth, 191 words, 730 views   English (US)
Categories: General

D.N.M.: Suspicionless patdown of school prom attendees violated the Fourth Amendment, but qualified immunity applies

Suspicionless patdown of school prom attendees violated the Fourth Amendment, but school officials get qualified immunity. Herrera v. Santa Fe Pub. Schs, 2013 U.S. Dist. LEXIS 96171 (D. N.M. June 28, 2013):

=> Read more!

Permalink 07:03:54 am, by fourth, 496 words, 571 views   English (US)
Categories: General

MD: School teacher had no REP in his desk at work; it was: never locked, in a common area, used some by others

A paraeducator had no reasonable expectation of privacy in his desk at school because it was never locked and others could regularly have access to it. Walker v. State, 432 Md. 587, 69 A.3d 1066 (2013), affg Walker v. State, 206 Md. App. 13, 47 A.3d 590 (2012) (posted here):

=> Read more!

Permalink 06:30:50 am, by fourth, 361 words, 1183 views   English (US)
Categories: General

CA10: Smoking marijuana in the house not a "serious crime" for exigent circumstances

The officer received anonymous tips about drug dealing at the defendant’s home, and he staked it out seeing cars there but establishing not much of anything other than he could smell marijuana at the house. Granted there was [barely] probable cause, but not for a “serious crime.” Exigent circumstances were lacking because the occupant was a known felon with “prison tattoos”; no weapon, no nothing. United States v. Mongold, 528 Fed. Appx. 944 (10th Cir. 2013):

=> Read more!

Permalink 12:24:24 am, by fourth, 158 words, 327 views   English (US)
Categories: General

CA6: Defendant not seized when he fled on foot; only after he was tackled

Defendant dumped his bicycle and fled on foot, so he was not seized. He argued that the officers provoked his flight, but that was rejected and still wouldn’t make a seizure. He was not seized until he was tackled. His flight combined with holding his pants like he was holding a gun was reasonable suspicion. United States v. Jeter, 721 F.3d 746 (6th Cir. 2013).*

“[T]he Court is not aware of any case holding that a person's consent is involuntary simply because he knew that there was evidence of crime on the premises sought to be searched.” United States v. Henry, 939 F. Supp. 2d 1279 (N.D. Ga. 2013), R&R 2013 U.S. Dist. LEXIS 97076 (N.D. Ga. June 6, 2013).*

Where a reasonable person would have had to have believed he was free to leave and not answer questions, he was not in custody for Miranda purposes. United States v. Wright-Darrisaw, 2013 U.S. Dist. LEXIS 95615 (W.D. N.Y. July 9, 2013).*

07/11/13

Permalink 05:06:29 pm, by fourth, 102 words, 1255 views   English (US)
Categories: General

WSJ blog: Airport Settles With Fourth Amendment Flasher

Permalink 04:12:56 pm, by fourth, 58 words, 409 views   English (US)
Categories: General

Guardian: Revealed: how Microsoft handed the NSA access to encrypted messages

Guardian: Revealed: how Microsoft handed the NSA access to encrypted messages by Glenn Greenwald, Ewen MacAskill, Laura Poitras, Spencer Ackerman and Dominic Rushe:

• Secret files show scale of Silicon Valley co-operation on Prism
• Outlook.com encryption unlocked even before official launch
• Skype worked to enable Prism collection of video calls
• Company says it is legally compelled to comply

Permalink 06:19:34 am, by fourth, 167 words, 243 views   English (US)
Categories: General

PA: No REP in a shopping bag held by a professional pickpocket

Philadelphia officers on a pickpocket detail encountered defendant, who had been arrested by this officer for this same thing eight times before. After watching him, the officer talked to him in a mere “encounter.” Despite having been arrested by this officer before, defendant gave a false name. He had a shopping bag in hand, and the officer saw a credit card receipt inside on top which he pulled out, saw that the purchase was with a credit card, and he asked to see the credit card. Defendant said he had no credit card. Later he produced a credit card in somebody else’s name, and he was arrested. “This Court notes that considering the totality of the circumstances, supra, Appellant did not necessarily have a reasonable expectation of privacy in the shopping bag.” Commonwealth v. Williams, 2013 PA Super 172, 73 A.3d 609 (2013).*

Attempted murder victim found among six dead ID’d defendant as the assailant. That was probable cause for arrest. State v. Dotson, 2013 Tenn. Crim. App. LEXIS 584 (June 25, 2013).*

Permalink 05:57:42 am, by fourth, 155 words, 227 views   English (US)
Categories: General

GA: Stop justified, but patdown was not

Defendant’s stop was based on a call about a domestic disturbance, and that supported his stop to investigate further. The patdown, however, was unjustified because no articulable belief he was armed was shown. Felton v. State, 2013 Ga. App. LEXIS 575 (July 3, 2013).*

A subpoena to defendant’s ISP for subscriber information did not violate any reasonable expectation of privacy. Any violation of the state ECPA does not result in suppression because there is no suppression remedy in the statute. State v. Lemasters, 2013 Ohio 2969, 2013 Ohio App. LEXIS 3009 (12th Dist. July 8, 2013).*

Unnecessarily beating and pepper spraying an unresisting arrestee is “coercion” under state law separate from the false arrest. Verdict for plaintiff sustained. Defendants sought to keep out plaintiff’s acquittal in the criminal case as irrelevant, but it correctly came in on the question of damages here for plaintiff’s legal fees in that case. Bender v. County of L.A., 2013 Cal. App. LEXIS 536 (2d Dist. July 9, 2013).*

07/10/13

Permalink 12:15:48 pm, by fourth, 40 words, 549 views   English (US)
Categories: General

Atlantic: Thurgood Marshall's Prescient Warning: Don't Gut the 4th Amendment

Atlantic: Thurgood Marshall's Prescient Warning: Don't Gut the 4th Amendment by Conor Friedersdorf:

His dissent in a 1989 case [Skinner v. Railway Labor Executives' Association] stated that "today's decision will reduce the privacy all citizens may enjoy." And so it has.

Permalink 12:11:26 pm, by fourth, 43 words, 409 views   English (US)
Categories: General

NPR: Utah Internet Firm Defies State's Warrantless Subpoena Law

NPR: Utah Internet Firm Defies State's Warrantless Subpoena Law by Martin Kaste

Utah's oldest Internet service provider, XMission, has refused to give up customer information to law enforcement, reports The Salt Lake Tribune. Specifically, the company says it won't comply with administrative subpoenas.

Permalink 08:34:32 am, by fourth, 201 words, 307 views   English (US)
Categories: General

E.D.Pa. Furtive movements after a stop cannot be used to justify it

Furtive movements after a stop cannot be used to justify the stop. There was reasonable suspicion for the stop from observable factors, the CIs, and they were corroborated some. United States v. Serrano, 2013 U.S. Dist. LEXIS 95175 (E.D. Pa. July 8, 2013).*

Defendant was stopped on the Baltimore-Washington Parkway, based on information they had. When the officer talked to the driver he asked if the officer had “anything illegal” and he nodded. A patdown revealed it in the groin area, and the officer undid his belt to get it out of his underwear. This wasn’t classified as a strip search, but it was nearly one on a busy highway. Nevertheless, it wasn’t unreasonable. Also, a state officer is not barred under the Fourth Amendment from stopping somebody on a highway that’s in federal jurisdiction, but the feds were somewhat involved and condoned it. United States v. Madriz, 532 Fed. Appx. 353 (4th Cir. 2013).*

The motion to suppress is denied after oral argument but without a hearing. The defendants’ concessions about the case are enough for the police to have been justified in their actions in stopping and detaining defendants. United States v. Drabo, 2013 U.S. Dist. LEXIS 95036 (E.D. Mich. July 9, 2013).*

Permalink 08:12:04 am, by fourth, 121 words, 431 views   English (US)
Categories: General

N.D.Ill.: Consent granted after the search started invalid

The government’s motion to reconsider the grant of defendant’s motion to suppress is denied. The court still finds that the consent form to search his vehicle was signed after the search of the vehicle already started. United States v. Cisneros-Gonzales, 2013 U.S. Dist. LEXIS 94372 (N.D. Ill. July 8, 2013).

Defendant has the burden on a Franks issue, and mere speculation of a false statement does not get one a hearing. United States v. Wade, 956 F. Supp. 2d 638 (W.D. Pa. 2013).*

“Tackling a fleeing armed drug dealer does not an Eighth Amendment claim make ...” [But what about the Fourth? That was the claim? It would be denied, too.] 2255 denied. Smith v. United States, 2013 U.S. Dist. LEXIS 94455 (D. S.C. July 8, 2013).*

Permalink 07:31:46 am, by fourth, 236 words, 582 views   English (US)
Categories: General

CAAF: When a person invokes his right to counsel, a request for consent violates Edwards v. Arizona

When a person lawyers up and invokes his right to counsel, a request for consent violates Edwards v. Arizona. United States v. Hutchins, 72 M.J. 294 (C.A. A.F. June 26, 2013):

=> Read more!

Permalink 07:23:22 am, by fourth, 117 words, 361 views   English (US)
Categories: General

CA3: Man showed implied authority to consent to a woman's purse

Defendant showed implied authority to consent to a search of a purse when he told police his ID was in it. “There can be no doubt that Hull's actions at the time of his arrest could have been reasonably interpreted by the officers as communicating his consent to their search of the purse.” United States v. Walker, 529 Fed. Appx. 256 (3d Cir. 2013).

Officers had probable cause to arrest plaintiff, so his false arrest claim fails. He can get return of some property, however. Smith v. Tobon, 529 Fed. Appx. 36 (2d Cir. 2013).*

District Court improperly abstained from determining false arrest claim and dismissing the case while a criminal case was pending. Kanciper v. Suffolk County SPCA, 722 F.3d 88 (2d Cir. 2013).*

Permalink 12:00:23 am, by fourth, 398 words, 1187 views   English (US)
Categories: General

Top Ten Reasons Why You Should Not Talk to the Police

Top Ten Reasons Why You Should Not Talk to the Police by Kirk Piccione and Professor Dwayne at Regent University Law School:

=> Read more!

07/09/13

Permalink 01:47:19 pm, by fourth, 122 words, 466 views   English (US)
Categories: General

National Journal: How Justice Anthony Kennedy Helped Bring You the Surveillance State

National Journal: How Justice Anthony Kennedy Helped Bring You the Surveillance State / A decades-old, relatively obscure Supreme Court decision is now the basis for the NSA's collection of metadata by Matt Berman:

=> Read more!

Permalink 01:43:58 pm, by fourth, 180 words, 1014 views   English (US)
Categories: General

Reuters: Do surveillance court’s secret rulings violate U.S. Constitution?

Permalink 10:00:00 am, by fourth, 130 words, 437 views   English (US)
Categories: General

Reason: Court Secretly Loosens Surveillance Rules and Expands NSA Power

Permalink 08:15:03 am, by fourth, 23 words, 321 views   English (US)
Categories: General

TechCrunch: AT&T Considers Selling Your Browsing History, Location, And More To Advertisers. Here’s How To Opt Out

Permalink 05:03:31 am, by fourth, 149 words, 601 views   English (US)
Categories: General

Reason.com: The Surveillance State Isn't Coming—It's Already Here

Reason.com: The Surveillance State Isn't Coming—It's Already Here / The national Panopticon is a messy work in progress, but it's already in place by J.D. Tuccille:

=> Read more!

Permalink 04:59:37 am, by fourth, 164 words, 389 views   English (US)
Categories: General

Atlantic: The Problem With the 'Privacy Moderates'

Atlantic: The Problem With the 'Privacy Moderates' / Their lukewarm defense of civil liberties is more bewildering than outright rejection by Conor Friedersdorf:

=> Read more!

Permalink 04:56:09 am, by fourth, 51 words, 279 views   English (US)
Categories: General

The Hill: Five unanswered questions about the NSA’s surveillance programs

The Hill: Five unanswered questions about the NSA’s surveillance programs by Brendan Sasso:

1. What other data is being collected under the Patriot Act?

2. How broad are the programs?

3. What’s the legal rationale?

4. Is the NSA still collecting email records?

5. Are there other programs that we don’t know about?

07/08/13

Permalink 07:50:00 am, by fourth, 122 words, 321 views   English (US)
Categories: General

LA4: Handcuffing defendant on street did not create exigency to search house

Defendant was stopped with reasonable suspicion or more that he was engaged in drug dealing, and he was handcuffed on the street a few blocks from his house. His handcuffing and the speculative argument that a man who fled from the stop might have gone to his house to destroy drugs did not justify a warrantless entry on exigent circumstances of his house. State v. Howard, 120 So. 3d 831 (La. App. 4 Cir. 2013).*

Being ordered to produce travel documents at a juvenile arraignment was waived as a search and seizure issue, but it’s not even plain error. People in Interest of J.G., 59 V.I. 347 (2013).*

Crossing the fog line twice was reasonable suspicion for a stop. State v. Hett, 2013 SD 47, 834 N.W.2d 317 (2013).*

Permalink 07:48:31 am, by fourth, 368 words, 501 views   English (US)
Categories: General

FL1: Officers responding to a bloodied man from a fight could enter house over his objection

Officers responding to a 911 hang-up call where it could be heard there was a fight, found an “agitated, angry, and uncooperative” man “with blood on his hands.” He talked about the fight in his house, but he refused entry into the house. The officers could go in under the emergency exception. C.L.L. v. State, 115 So. 3d 1114 (Fla. 1st DCA 2013):

=> Read more!

Permalink 07:27:44 am, by fourth, 243 words, 639 views   English (US)
Categories: General

E.D.Tenn.: 14 days video surveillance of defendant’s back yard by a pole camera unreasonable, but GFE applies

Fourteen days video surveillance of defendant’s back yard by a pole camera, following Anderson-Bagshaw from the Sixth Circuit, was unreasonable, but not suppressed because of good faith. United States v. Houston, 965 F. Supp. 2d 855 (E.D. Tenn. 2013):

=> Read more!

Permalink 12:12:43 am, by fourth, 133 words, 492 views   English (US)
Categories: General

TN: Community caretaking function justified officer opening door to car to awaken a sleeping driver

Community caretaking function justified officer opening door to car to awaken a sleeping driver to see what was wrong. State v. Lowe, 2013 Tenn. Crim. App. LEXIS 581 (July 5, 2013):

=> Read more!

07/07/13

Permalink 03:40:07 pm, by fourth, 31 words, 749 views   English (US)
Categories: General

YouTube: 4th of July TN DUI Checkpoint: No DUI Check, Drug Dog Alerts, Nothing Found

YouTube: 4th of July TN DUI Checkpoint: No DUI Check, Drug Dog Alerts, Nothing Found (2.34m views in 2 days). The officer shows a remarkable lack of training in basic constitutional law.

Permalink 01:37:55 pm, by fourth, 267 words, 550 views   English (US)
Categories: General

Atlantic: If PRISM Is Good Policy, Why Stop With Terrorism?

Atlantic: If PRISM Is Good Policy, Why Stop With Terrorism? by Derek Khanna:

Defenders of the program say its effectiveness excuses it -- but they ignore the Fourth Amendment.

=> Read more!

Permalink 12:15:19 pm, by fourth, 205 words, 482 views   English (US)
Categories: General

NYT Bits: Using E-Mail Data to Connect the Dots of Your Life

NYT Bits: Using E-Mail Data to Connect the Dots of Your Life by Brian X. Chen, halfway in:

=> Read more!

Permalink 11:38:07 am, by fourth, 115 words, 471 views   English (US)
Categories: General

NYT: In Secret, Court Vastly Broadens Powers of N.S.A.

Permalink 02:14:15 am, by fourth, 159 words, 564 views   English (US)
Categories: General

Justice Douglas on electronic surveillance (1971)

United States v. White, 401 U.S. 745, 756, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971), Douglas, J., dissenting:

=> Read more!

Permalink 02:00:16 am, by fourth, 233 words, 592 views   English (US)
Categories: General

New law review article: "Real-Time and Historic Location Surveillance after United States v. Jones: An Administrable, Mildly Mosaic Approach"

Stephen E. Henderson, Real-Time and Historic Location Surveillance after United States v. Jones: An Administrable, Mildly Mosaic Approach, 103 J. Crim. L. & Criminology 103 (2013):

=> Read more!

Permalink 01:03:49 am, by fourth, 155 words, 303 views   English (US)
Categories: General

OH6: Crossing fog line justifies stop

Driving over the fog line was reason for a stop. The stop led to reasonable suspicion defendant was under the influence. State v. Devault, 2013 Ohio 2942, 2013 Ohio App. LEXIS 2984 (6th Dist. July 5, 2013).*

The officer noticed that defendant’s seat belt wasn’t fastened, so he ran the LPN before making a stop and saw the plate had been revoked. All that justified the stop. United States v. Hughes, 2013 U.S. Dist. LEXIS 93648 (W.D. N.C. May 29, 2013).*

Defendant’s guilty plea waived the search issues he presents in his 2255, none of which are jurisdictional or even remotely prejudicial enough to suppress the search: the officers allegedly seized guns from his house in a child pornography investigation and then didn’t list them in the inventory, one officer misdated a report, and the officers did not properly identify themselves at the beginning of the search. Reeves v. United States, 2013 U.S. Dist. LEXIS 93442 (E.D. Mo. July 3, 2013).*

Permalink 12:00:55 am, by fourth, 119 words, 267 views   English (US)
Categories: General

E.D.Wash.: Anonymous tip of a grow operation in open fields doesn't require corroboration to go look

Officers had an anonymous tip of a grow operation visible in open fields. They did not have to corroborate the informant before traveling to the scene. United States v. Barajas-Martinez, 2013 U.S. Dist. LEXIS 93803 (E.D. Wash. July 3, 2013).*

Defendant argues that the officers’ testimony has no extrinsic evidence to support it, so it therefore isn’t credible. That’s not an argument for appeal once the trial court makes a credibility determination with a basis in fact. United States v. Perry, 522 Fed. Appx. 821 (11th Cir. 2013).*

Defendant’s 2255 claim that defense counsel was “ill-prepared” to pursue the suppression motion is belied by the hearing on the motion. Barnes v. United States, 2013 U.S. Dist. LEXIS 94007 (S.D. N.Y. July 2, 2013).*

07/06/13

Permalink 01:28:43 pm, by fourth, 83 words, 508 views   English (US)
Categories: General

ABC News 2006 poll: 63% OK with NSA tracking all telephone calls

Permalink 07:26:32 am, by fourth, 187 words, 436 views   English (US)
Categories: General

OR: Just because an officer decides not to give a traffic ticket, the stop does not have to end

Just because an officer decides not to give a traffic ticket, the stop does not have to end. State v. Watson, 353 Ore. 768, 305 P.3d 94 (2013):

=> Read more!

Permalink 06:59:06 am, by fourth, 550 words, 518 views   English (US)
Categories: General

OH8: Writ of prohibition doesn't lie to block search warrant issued with jurisdiction

A writ of prohibition is not a proper remedy to object to a search warrant. Here, the police got a search warrant for medical records from a hospital 12 days after a shooting victim was treated. State ex rel. Parma Cmty. Gen. Hosp., 2013 Ohio 2923, 2013 Ohio App. LEXIS 2969 (8th Dist. July 1, 2013):

=> Read more!

07/05/13

Permalink 01:42:58 pm, by fourth, 61 words, 650 views   English (US)
Categories: General

Wired: Encryption Has Foiled Wiretaps for First Time Ever, Feds Say

Permalink 01:30:34 pm, by fourth, 15 words, 307 views   English (US)
Categories: General

NPR Morning Edition: NSA's Reach Leads To Calls For Updated Eavesdropping Laws

Permalink 01:18:19 pm, by fourth, 161 words, 509 views   English (US)
Categories: General

ABAJ.com: How did America’s police become a military force on the streets?

Permalink 08:27:07 am, by fourth, 785 words, 600 views   English (US)
Categories: General

D.Nev.: School officials accessing plaintiff's Twitter postings didn't violate the First or Fourth Amendments

School officials accessing plaintiff's Twitter postings didn't violate the First or Fourth Amendments. There is no reasonable expectation of privacy in Twitter postings. Roasio v. Clark County School District, 2013 U.S. Dist. LEXIS 93963 (D. Nev. July 3, 2013):

=> Read more!

Permalink 08:03:16 am, by fourth, 240 words, 524 views   English (US)
Categories: General

N.D.Okla.: "[I]nvestigative detention of defendant and the sweep of his home turned into a lengthy and warrantless occupation of defendant's house"

Officers had a 911 call that there was a domestic disturbance, and, at the scene, defendant came out of the house to talk with them and was calm and cooperative. Still, they had exigent circumstances for an emergency entry to check for injured persons. The “investigative detention of defendant and the sweep of his home turned into a lengthy and warrantless occupation of defendant's house.” Consent finally granted was tainted. United States v. Warthen, 2013 U.S. Dist. LEXIS 93274 (N.D. Okla. July 3, 2013):

=> Read more!

Permalink 08:00:07 am, by fourth, 129 words, 240 views   English (US)
Categories: General

CA10: Grabbing waistband in high crime area important on reasonable suspicion

High-crime area, change of direction and increased pace, grabbing at waistline, two men splitting paths, defendant’s backpedaling when talked to, flight of his companion. The district court didn’t put much weight in the grabbing at waistline, but this court does [as does almost every other court]. United States v. Briggs, 720 F.3d 1281 (10th Cir. 2013).*

Carrying two plastic bags to one’s car at night in a high crime area simply doesn’t add up to reasonable suspicion. Motion to suppress granted. United States v. Lunas, 2013 U.S. Dist. LEXIS 93207 (E.D. Pa. June 5, 2013).*

It was objectively reasonable for the officer to have concluded defendant’s seatbelt was not fastened, and that justified the stop. United States v. Hughes, 2013 U.S. Dist. LEXIS 93643 (W.D. N.C. July 3, 2013).*

Permalink 07:45:29 am, by fourth, 697 words, 1091 views   English (US)
Categories: General

TN: Good faith exception statute not retroactive -- it's ex post facto

Defendant was indicted for a marijuana grow operation in 2005. The search was not suppressed for a warrant time error, but it was reversed on appeal in 2009 because Tennessee finds that not a mere technical violation. In 2011 the legislature adopted “Exclusionary Rule Reform Act” to adopt the good faith exception, and defendant was reindicted. The state argued the statute was retroactive and validated the 2005 search, and the trial court did not agree. The state appealed, and the Court of Criminal Appeals found the statute not retroactive. State v. Hayes, 2013 Tenn. Crim. App. LEXIS 576 (July 1, 2013):

=> Read more!

07/04/13

Permalink 03:14:57 pm, by fourth, 98 words, 395 views   English (US)
Categories: General

BBC: France 'has vast data surveillance'

BBC: France 'has vast data surveillance':

France's foreign intelligence service intercepts computer and telephone data on a vast scale, like the controversial US Prism programme, according to the French daily Le Monde.

The data is stored on a supercomputer at the headquarters of the DGSE intelligence service, the paper says. The operation is "outside the law, and beyond any proper supervision", Le Monde says. Other French intelligence agencies allegedly access the data secretly.

. . .

The UK spy agency GCHQ is reported to run a similarly vast data collection operation, co-operating closely with the NSA.

Everybody is spying on everybody.

Permalink 08:53:31 am, by fourth, 126 words, 279 views   English (US)
Categories: General

E.D.Mo.: During traffic stop, defendant's nervousness and being on parole justified patdown

Defendant was stopped for weaving, and it was likely he was under the influence by his appearance and mannerisms and the smell of alcohol. His nervous behavior with his arms and finding out he was on parole justified the patdown. United States v. Chambers, 2013 U.S. Dist. LEXIS 92227 (E.D. Mo. June 3, 2013).*

On a motion to reconsider a Terry stop after a drug deal elsewhere under Bailey, the court decides that there were independent facts for the stop here that separates the case from Bailey. United States v. McGowan, 2013 U.S. Dist. LEXIS 92896 (N.D. Ala. May 29, 2013).*

Defendant’s furtive movement was hiding a ski mask under his leg, and that justified the officer asking for it. Commonwealth v. Letkowski, 83 Mass. App. Ct. 847, 991 N.E.2d 1106 (2013).*

Permalink 08:33:46 am, by fourth, 301 words, 498 views   English (US)
Categories: General

CA5: Defendant's consent was strictly limited and limit was ignored; suppressed

Defendant was stopped for a traffic offense, and the officer had a tip that he had drugs. When consent was sought, defendant said only his luggage, memorialized on video. The officer started searching and searched the whole car, finding a hidden panel in the door. The search far exceeded the consent, and the search should have been suppressed. United States v. Cotton, 722 F.3d 271 (5th Cir. 2013):

=> Read more!

07/03/13

Permalink 03:55:45 pm, by fourth, 96 words, 1138 views   English (US)
Categories: General

21st Century Mail Cover: NYT: U.S. Postal Service Logging All Mail for Law Enforcement

21st Century Mail Cover: NYT: U.S. Postal Service Logging All Mail for Law Enforcement by Ron Nixon:

=> Read more!

Permalink 11:43:53 am, by fourth, 87 words, 363 views   English (US)
Categories: General

Cato: Botched Paramilitary Police Raids (interactive map)

Cato: Botched Paramilitary Police Raids (interactive map)

"If a widespread pattern of [knock-and-announce] violations were shown . . . there would be reason for grave concern."
—Supreme Court Justice Anthony Kennedy, in Hudson v. Michigan, June 15, 2006.

An interactive map of botched SWAT and paramilitary police raids, released in conjunction with the Cato policy paper "Overkill: The Rise of Paramilitary Police Raids," by Radley Balko

[There is, Justice Kennedy, but your Court is too obtuse to realize it. McClesky v. Kemp and the Harris drug dog case prove that to me.]

Permalink 11:01:14 am, by fourth, 394 words, 482 views   English (US)
Categories: General

D.Nev.: No summary judgment for gov't on RS for detention in forfeiture case

Claimant gets past government's motion for summary judgment on reasonable suspicion for his detention. Officer asked for consent, and it was refused, so he called for a drug dog which took 20-30 minutes to arrive. United States v. $102,836.00 in United States Currency, 2013 U.S. Dist. LEXIS 92813 (D. Nev. June 25, 2013)*:

=> Read more!

Permalink 09:50:07 am, by fourth, 177 words, 266 views   English (US)
Categories: General

CA3: School bus driver reasonably subject to random drug testing under the special needs doctrine

A school bus driver was reasonably subject to random drug testing under the special needs doctrine. Freeman v. Middle Twp. Bd. of Educ., 529 Fed. Appx. 213 (3d Cir. 2013).

An order of protection was issued against the defendant, including an order to relinquish firearms, and state officers who came to serve it can collect his guns. They collected a short barreled shotgun. Officers came back to talk to him about it, and made clear that he was not being arrested and was not in custody. Defendant did not have to let the officers into his place to talk about the court order, but he did. The seizure of the gun was reasonable under the state court order. Alternatively, it was in plain view. United States v. Gamache, 2013 U.S. Dist. LEXIS 92125 (D. Me. May 23, 2013).

Defendant’s stop for a cracked taillight that emitted both red and white light was not a violation of Florida law. The stop was based on a mistake of law and was unreasonable. United States v. Harris, 2013 U.S. Dist. LEXIS 92858 (N.D. Fla. July 2, 2013).

Permalink 09:01:01 am, by fourth, 194 words, 297 views   English (US)
Categories: General

CA3: Man had apparent authority to consent to search of purse

One male defendant effectively consented to a search of a woman’s purse. When consent was asked for, he indicated the purse. He was asked again “this purse,” and he nodded. This amounted to apparent authority to consent. It seemed to be defendant’s. “We admit some question exists on this record as to the ownership of the bag/purse. But ultimately, that does not matter. Hull consistently refers to the bag as his in his brief and did not disclaim ownership of the bag in the District Court. The Government, in its brief, labels the purse as belonging to Hull's girlfriend, and later, confusingly claims the District Court determined the purse belonged to Hull's girlfriend.” United States v. Walker, 2013 U.S. App. LEXIS 13391 (3d Cir. June 26, 2013) (citing the Urban Dictionary on “murse”–a man’s purse).

Defendant’s mother could consent to a search of her adult son’s room when both were present, the police never asked him, and he objected to her, not them, saying “mommy, don’t do it.” United States v. DeAlba, 2013 U.S. Dist. LEXIS 91960 (D. Nev. July 1, 2013), R&R 2013 U.S. Dist. LEXIS 91958 (D. Nev. April 12, 2013).

Permalink 08:50:23 am, by fourth, 263 words, 402 views   English (US)
Categories: General

N.D.Ind.: Health care fraud search warrant for home office permitted search of bedroom closet

Defendant is a psychologist suspected of health care fraud, and Indiana law required him to keep seven years of records. Officers knew that he also had a home office, so it was reasonable for the search warrant to include his home for records. The period was 2005 to present for patient records, so it was not overbroad for that. The warrant didn’t include the bedroom or closets in the places to be searched, but officers looked there. United States v. Jones, 2013 U.S. Dist. LEXIS 91886 (S.D. Ind. July 1, 2013):

=> Read more!

07/02/13

Permalink 02:15:57 pm, by fourth, 100 words, 792 views   English (US)
Categories: General

FL1: Stepmother has authority to consent to search of stepchild's room

Co-occupants can consent, and “we also extend that principle and find that under the circumstances of this case, the stepmother had the authority to consent to a search of appellant's bedroom in her home and its contents.” Tallman v. State, 2013 Fla. App. LEXIS 10490 (Fla. 1st DCA July 1, 2013).

“We hold that officer safety concerns fall within the exigent circumstances exception when (1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable.” People v. Brunsting, 2013 CO 55, 307 P.3d 1073 (2013)

Permalink 01:50:34 pm, by fourth, 139 words, 481 views   English (US)
Categories: General

NYT: What the N.S.A. Knows About You

Permalink 01:14:21 pm, by fourth, 282 words, 505 views   English (US)
Categories: General

N.D.Ga.: SW for automobile permitted seizure of GPS inside by plain view to report car's movements

When there was a search warrant for an automobile, the police seized the GPS in the vehicle not named in the search warrant because it was logical that the GPS would be able to provide information about defendant’s movements. United States v. Anyanwu, 2013 U.S. Dist. LEXIS 92175 (N.D. Ga. May 15, 2013):

=> Read more!

Permalink 11:41:27 am, by fourth, 165 words, 424 views   English (US)
Categories: General

arstechnia.com: Cops shouldn’t have easy access to 220+ days of cell location data, lawyers say

Permalink 01:57:45 am, by fourth, 399 words, 502 views   English (US)
Categories: General

D.Utah: Defendant had no standing as to search of car, but had standing to search of luggage in trunk

Defendant was not the renter of a car and was not on the rental agreement as an authorized driver. He said it was rented by his sister, but he couldn’t name her. So, he had no standing in the car. He did, however, have standing in luggage and a box in the trunk when he asserted ownership of them and objected to their search. A dog sniff gave probable cause, and the automobile exception supports the search. United States v. McCoy, 2013 U.S. Dist. LEXIS 91454 (D. Utah June 27, 2013):

=> Read more!

Permalink 01:00:00 am, by fourth, 616 words, 530 views   English (US)
Categories: General

D.N.M. rejects that person living here 3 years without documentation has no standing in his own home

The government argued, and lost, that defendant being here illegally for three years meant he had no standing in his own abode. No, says the court; he does have standing. United States v. Aispuro-Haros, 2012 U.S. Dist. LEXIS 188526 (D. N.M. October 24, 2012):

=> Read more!

Permalink 12:00:15 am, by fourth, 245 words, 557 views   English (US)
Categories: General

TN: Possibility of destruction of evidence as exigency requires showing; it potentially always exists

Officers did not violate the curtilage by following the driveway to the apparent door of the home, which was in back, to conduct a nighttime knock-and-talk. Since defendant was not awakened, the court doesn’t consider it unreasonable as to time. Officers did, however, violate the Fourth Amendment by pulling defendant out and searching based on alleged exigent circumstances of their own making. It did not, however, mandate suppression of the evidence because the officers did succeed in showing an independent source for the information that went into the search warrant. State v. Whitaker, 2013 Tenn. Crim. App. LEXIS 570 (June 28, 2013):

=> Read more!

Permalink 12:00:04 am, by fourth, 94 words, 254 views   English (US)
Categories: General

GA: Mexican DL and lack of documentation of a border crossing is probable cause to arrest for no DL

Mexican DL and lack of passport or other documentation of a border crossing is probable cause to arrest for no DL. Garcia-Carillio v. State, 2013 Ga. App. LEXIS 541 (June 27, 2013).*

Defendant’s stop was justified by too much smoke coming from a too loud muffler. State v. Asanov, 2013 Ohio 2754, 2013 Ohio App. LEXIS 2797 (2d Dist. June 28, 2013).*

3:35 am 911 call of a drunk person in a car on a parking lot came from an identified source leaving name and address, and it was specific enough to support a stop. State v. Parson, 2013 Ohio 2763, 2013 Ohio App. LEXIS 2798 (2d Dist. June 28, 2013).*

07/01/13

Permalink 05:34:24 pm, by fourth, 158 words, 521 views   English (US)
Categories: General

ACLU.org: Fighting a Striking Case of Warrantless Cell Phone Tracking

Permalink 03:20:34 pm, by fourth, 154 words, 629 views   English (US)
Categories: General

Reason.com: Ohio Cops Use Fake Drug Checkpoint to Dodge Fourth Amendment

Reason.com: Ohio Cops Use Fake Drug Checkpoint to Dodge Fourth Amendment by Jacob Sullum:

=> Read more!

Permalink 01:17:11 pm, by fourth, 225 words, 413 views   English (US)
Categories: General

Arkansas Business: Dear Feds, Stop This Regulation

Arkansas Business: Dear Feds, Stop This Regulation (Editorial) about the JB Hunt drug testing program that exceeds federal regulation, posted here, urging that positive hair test results be shared; UAs can, but hair tests can't"

=> Read more!

Permalink 01:11:36 pm, by fourth, 194 words, 425 views   English (US)
Categories: General

The Gothamist: Bloomberg Thinks NYPD Stops-And-Frisks Too Many White People, Not Enough Minorities

Permalink 01:04:48 pm, by fourth, 112 words, 473 views   English (US)
Categories: General

NYT: Judge Says Police and U.S. Agents Misled Court in Manhattan Gun Possession Case

NYT: Judge Says Police and U.S. Agents Misled Court in Manhattan Gun Possession Case by Benjamin Weiser. The Franks hearing that never was, and it was revealed at trial:

=> Read more!

Permalink 07:20:07 am, by fourth, 1135 words, 799 views   English (US)
Categories: General

PA: Court order required for real time cell phone tracking

Real time tracking of defendant’s cell phone required a court order, and a search warrant was not required (what’s the difference if PC shown?). Here, defendant had just committed a triple murder and had indicated he was still going to kill, so there were exigent circumstances, too. The court order obtained was constitutionally and statutorily sufficient, even under the state’s higher privacy requirements. The court starts with the difference between historical cell site location data and present data. (The opinion also cites about 60 cases on historical location data.) Commonwealth v. Rushing, 2013 PA Super 162, 71 A.3d 939 (2013):

=> Read more!

Permalink 07:05:06 am, by fourth, 161 words, 310 views   English (US)
Categories: General

LA1: Blood draw without PC defendant was driver was suppressed

There were three occupants of a wrecked vehicle, two unconscious. Without determining who was the driver, the police ordered a blood draw. There was no probable cause as to the defendant being determined to be the driver before the blood draw, and that violated the state statute, Fourth Amendment, and the state constitution. State v. Weber, 120 So. 3d 328 (La. App. 1 Cir. 2013).

There was probable cause to arrest defendant for aggravated assault, and that justified a search of the car under the automobile exception. The trial court erred in finding otherwise. State v. McIntosh, 2013 Fla. App. LEXIS 10292 (Fla. 5th DCA June 28, 2013).*

Staying only periodically as an overnight guest with one’s girlfriend does not create standing. Here, he was last there overnight four days before the search which occurred after a shooting out front. Inside, the police found a gun and belongings of defendant, and he was convicted of felon in possession. State v. Brown, 2013 Ohio 2720, 2013 Ohio App. LEXIS 2781 (1st Dist. June 28, 2013).*

Permalink 06:46:51 am, by fourth, 232 words, 237 views   English (US)
Categories: General

CA11: Limited consent shows voluntariness

Police came in the house for an arrest, but they had to wait for an interpreter and left people handcuffed until then. The officer-interpreter Mirandized defendant, and he consented to a search of only the rooms he occupied. The limited nature of the consent suggests that defendant was not coerced. One defendant’s argument was limited: “Garfias-Garcia did not clearly articulate a tainted consent or attenuation argument below.” United States v. Moreno-Ortega, 522 Fed. Appx. 729 (11th Cir. 2013).

Defendant was sitting at a slot machine feeding in red dyed money, obviously from a bank robbery, and casino personnel saw him and reported him to security which also watched. When one of his bills jammed the machine, he sought assistance. Security arrested him and took him to an interview room. Defendant was admittedly laundering money and has a prior for bank robbery, so his version gets no credibility. Even if he did, there was clearly reasonable suspicion to detain him and then arrest him. The search of the backpack was incident to arrest. United States v. Hill, 2013 U.S. Dist. LEXIS 90972 (N.D. Ill. June 28, 2013).*

Defense counsel didn’t file a motion to suppress defendant’s search, but defendant on his 2255 can’t show that it would have prevailed. There clearly were exigent circumstances for the entry of his place for manufacturing methamphetamine. Noriega-Valenzuela v. United States, 2013 U.S. Dist. LEXIS 90718 (E.D. Pa. June 26, 2013).*

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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
www.johnwesleyhall.com

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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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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
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    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
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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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