Archives for: July 2013, 10

07/10/13

Permalink 12:15:48 pm, by fourth, 40 words, 548 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, 360 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, 1186 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!

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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Most recent SCOTUS cases:
2009 to date:

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

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

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

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

2009-10 Term:

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

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


Research Links:
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  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
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  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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