Archives for: July 2013, 01


Permalink 05:34:24 pm, by fourth, 158 words, 517 views   English (US)
Categories: General Fighting a Striking Case of Warrantless Cell Phone Tracking

Permalink 03:20:34 pm, by fourth, 154 words, 624 views   English (US)
Categories: General Ohio Cops Use Fake Drug Checkpoint to Dodge Fourth Amendment Ohio Cops Use Fake Drug Checkpoint to Dodge Fourth Amendment by Jacob Sullum:

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Permalink 01:17:11 pm, by fourth, 225 words, 409 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"

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Permalink 01:11:36 pm, by fourth, 194 words, 422 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, 470 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:

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Permalink 07:20:07 am, by fourth, 1135 words, 795 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):

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Permalink 07:05:06 am, by fourth, 161 words, 308 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

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Fourth Amendment cases,
citations, and links

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Most recent SCOTUS cases:
2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)

Research Links:
  Supreme Court:
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  Briefs online (but no amicus briefs) 
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  General (many free):
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  F.R.Crim.P. 41

  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (pdf)

  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't."

"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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