Archives for: July 2013, 23


Permalink 06:16:14 pm, by fourth, 110 words, 571 views   English (US)
Categories: General House to Vote on Repealing NSA Dragnet Phone Surveillance

Permalink 06:13:13 pm, by fourth, 83 words, 414 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, 386 views   English (US)
Categories: General

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

Permalink 07:08:26 am, by fourth, 97 words, 330 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, 482 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, 411 views   English (US)
Categories: General

NYT: A Black Box for Car Crashes

Permalink 05:53:24 am, by fourth, 182 words, 517 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, 453 views   English (US)
Categories: General 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, 847 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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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:
  S. Ct. Docket
  Solicitor General's site
  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
  Oyez Project (NWU)
  "On the Docket"–Medill
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  General (many free):
  Google Scholar | Google
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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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