Archives for: July 2013, 03

07/03/13

Permalink 03:55:45 pm, by fourth, 96 words, 1136 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:

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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, 481 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)*:

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Permalink 09:50:07 am, by fourth, 177 words, 264 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, 296 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, 400 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):

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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

© 2003-14, online since Feb. 24, 2003

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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:
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  F.R.Crim.P. 41
  www.fd.org

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

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

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

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

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)


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