Archives for: August 2013

08/31/13

Permalink 11:11:49 am, by fourth, 522 words, 628 views   English (US)
Categories: General

D.N.J.: Social workers' inspection entry governed by Fourth Amendment; Wyman distinguished

Social service workers’ entry for inspection into plaintiffs’ home was governed by the Fourth Amendment and could not be justified by Wyman v. James. Bostrom v. N.J. Div. of Youth & Family Servs., 2013 U.S. Dist. LEXIS 121445 (D. N.J. August 26, 2013):

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Permalink 11:02:13 am, by fourth, 69 words, 425 views   English (US)
Categories: General

The Hill: Google, Microsoft prepare for showdown over NSA spying

08/30/13

Permalink 01:55:49 pm, by fourth, 194 words, 710 views   English (US)
Categories: General

Reasonable expectation of privacy when having sex in a closed shed outside Home Depot?

HuffPo: Emily Craig, Shaun Bowden Allegedly Have Sex At Home Depot by Hilary Hanson, http://www.huffingtonpost.com/2013/08/29/emily-craig-shaun-bowden-home-depot-sex-_n_3837573.html (imbedded URL doesn't work):

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Permalink 11:07:52 am, by fourth, 86 words, 451 views   English (US)
Categories: General

The Atlantic: Every Stop and Frisk in NYC in 2012, in 2 Charts

The Atlantic: Every Stop and Frisk in NYC in 2012, in 2 Charts | What an unconstitutional police policy looks like on the ground by Garance Franke-Ruta:

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Permalink 08:08:25 am, by fourth, 689 words, 577 views   English (US)
Categories: General

D.Kan.: SW for email account denied because of overbreadth of request

Email accounts are protected by the Fourth Amendment under Warshuk. This warrant application fails the particularity requirement of the Fourth Amendment because of its lack of particularity and overbreadth. In re Search Warrants for Info. Associated with Target Email Accounts Skype Accounts, 2013 U.S. Dist. LEXIS 123129 (D. Kan. August 27, 2013):

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Permalink 07:58:30 am, by fourth, 223 words, 736 views   English (US)
Categories: General

CA6: Tasering handcuffed suspect on ground unreasonable

Qualified immunity improperly granted to police officer who Tasered a handcuffed suspect lying on the ground. Questions of fact remained in this 1983 case. If the jury believes plaintiff, it was unreasonable. Wells v. City of Dearborn Heights, 2013 U.S. App. LEXIS 17926, 2013 FED App. 0785N (6th Cir. August 26, 2013):

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Permalink 07:40:17 am, by fourth, 116 words, 214 views   English (US)
Categories: General

CA11: Apparent phone call from detained confederate to house was exigency

Police arrest of a confederate during a long surveillance of house was exigency [but not police created] for a warrantless entry into the house until they could get a search warrant. The confederate made a call, and defendant was on the phone. It was reasonable to conclude it was a warning. United States v. Lockett, 533 Fed. Appx. 957 (11th Cir. 2013).

The second search of defendant’s property two months after he was in custody was with consent of the co-tenant. United States v. Denton, 535 Fed. Appx. 832 (11th Cir. 2013).*

When defendant is a known meth manufacturer, possession of peroxide in the car is incriminating and in plain view. State v. Binkley, 2013 Ohio 3695, 2013 Ohio App. LEXIS 3817 (5th Dist. August 26, 2013).*

Permalink 06:52:49 am, by fourth, 111 words, 232 views   English (US)
Categories: General

MO: Dropping a backpack when confronted by the police and denying ownership is abandonment

Defendant was suspected of burglary of a house with two lookouts. When the police confronted him, he dropped a backpack, volunteering that it wasn’t his. That was an abandonment of the backpack. State v. Morgan, 406 S.W.3d 490 (Mo. App. 2013).*

A torn mud flap and too small DOT lettering were justification for a stop of a tractor trailer, and reasonable suspicion developed from that. Valentine v. State, 323 Ga. App. 761, 748 S.E.2d 122 (2013).*

In an illegal search civil case, the question of the break in causation was properly left to the jury. Plaintiff alleged the warrants were issued on false information. Chief Info. Officer v. Computers Plus Ctr., 310 Conn. 60, 74 A.3d 1242 (2013).*

08/29/13

Permalink 02:22:31 pm, by fourth, 33 words, 531 views   English (US)
Categories: General

WaPo: Secret budget reveals a U.S. intelligence-gathering giant

Permalink 01:26:51 pm, by fourth, 88 words, 460 views   English (US)
Categories: General

Politico: President Obama’s surveillance board packed with insiders

Permalink 08:55:45 am, by fourth, 141 words, 594 views   English (US)
Categories: General

CA2: Officers get qualified immunity for strip search at stationhouse for drugs in buttocks

Officers heard this 1983 plaintiff on a wire saying that he could provide drugs to an undercover buyer. Officers confronted him and searched him, finding nothing. He was taken to the police station and strip searched and a bag of crack was found hanging from his buttocks. The officers get qualified immunity. There was arguable probable cause for the arrest for attempt, possession, or distribution. Whether the strip search was valid is not settled, so they get qualified immunity for that too. Gonzalez v. City of Schenectady, 728 F.3d 149 (2d Cir. 2013):

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Permalink 08:29:50 am, by fourth, 137 words, 851 views   English (US)
Categories: General

D.Minn.: No confrontation right at suppression hearing

While hearsay at a suppression hearing is not the preferred method of the government presenting its case, the confrontation clause doesn’t apply. On a motion for new trial even, the missing witness from the suppression hearing testified at trial the same as represented at the suppression hearing, and he was cross-examined. United States v. Spencer, 2013 U.S. Dist. LEXIS 121945 (D. Minn. August 26, 2013).*

The trash pull at defendant’s apartment complex was not in a constitutionally protected area, citing Jardines, so there was no Fourth Amendment problem with it. United States v. Jackson, 728 F.3d 367 (4th Cir. 2013).*

The information derived from the unconstitutional placement of a GPS on defendant’s car was excised from the affidavit. There still was probable cause for the search under the independent source doctrine. United States v. Bush, 727 F.3d 1308 (11th Cir. 2013).

Permalink 08:01:00 am, by fourth, 544 words, 673 views   English (US)
Categories: General

S.D.Tex.: Pretrial GPS ankle monitor info may be given to police

Defendant was on a GPS ankle monitor by consent. Pretrial services may disclose the information derived from that to the police. United States v. Clay, 2013 U.S. Dist. LEXIS 121599 (S.D. Tex. May 6, 2013):

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Permalink 07:21:13 am, by fourth, 188 words, 391 views   English (US)
Categories: General

Baltimore Sun: A farewell to privacy

Baltimore Sun: A farewell to privacy by Alexander E. Hooke:

In the name of ever-increasing security, we are giving up an essential component of democracy

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Permalink 07:18:16 am, by fourth, 58 words, 366 views   English (US)
Categories: General

Houston Chronicle: Computer Science Professor Explains How Phone Call Metadata Can Be More Revealing Than Content

08/28/13

Permalink 04:47:06 pm, by fourth, 10 words, 221 views   English (US)
Categories: General

WaPo: Ruth Bader Ginsberg on the offensive

Permalink 09:30:09 am, by fourth, 175 words, 252 views   English (US)
Categories: General

E.D.Va.: PC existed for defendant's stop fleeing from a robbery scene and attempting to evade police

There was PC for stopping defendant as a robbery suspect: He generally fit the description, was running away from the scene, and tried to evade the officer when seen. United States v. Bell, 2013 U.S. Dist. LEXIS 121159 (E.D. Va. August 23, 2013).*

Odor of marijuana in the car coupled with defendant’s admission he had it was reason for a search. United States v. Smith, 2013 U.S. Dist. LEXIS 121721 (D. V.I. August 27, 2013).*

Based on observations and wiretaps, police were watching defendant and were concerned that a gunfight was about to erupt. That was certainly reasonable suspicion and likely probable cause for the stop, and reasonable suspicion was all that was required. United States v. Henderson, 2013 U.S. Dist. LEXIS 121791 (D. Mass. August 27, 2013).*

The USMJ’s findings of fact on the third party consent issue of defendant’s wife is supported by the record and adopted as to authority and voluntariness of consent. United States v. Sharp, 2013 U.S. Dist. LEXIS 121845 (E.D. Wis. August 27, 2013),* R&R 2013 U.S. Dist. LEXIS 121843 (E.D. Wis. July 9, 2013).*

Permalink 09:26:01 am, by fourth, 143 words, 219 views   English (US)
Categories: General

N.D.Cal.: Omission of information about the bias or credibility of an informant can be material for Franks, but wasn't here

Omission of information about the bias or credibility of an informant can be material for Franks purposes, but it wasn’t here because of corroboration. United States v. Liew, 2013 U.S. Dist. LEXIS 121397 (N.D. Cal. August 26, 2013):

In certain circumstances, evidence regarding the potential bias of a witness could be material to the question of whether probable cause exists. See, e.g., United States v. Meling, 47 F.3d 1546, 1554-55 (9th Cir. 1995) (but finding omissions about allegedly impure motives not material); United States v. Lefkowitz, 618 F.2d 1313, 1317 (9th Cir. 1980) (but finding that omission of identity of witness, defendant's estranged ex-wife, not material). Even if the information about Mr. Wong's allegedly impure motives had been included in the Affidavit, the Court finds it would not have undermined his credibility so completely that the Court would have to disregard the information he provided in its entirety.

Permalink 08:35:59 am, by fourth, 314 words, 564 views   English (US)
Categories: General

CA10 elaborates on Stone v. Powell bar to habeas on a Fourth Amendment claim

Mere disagreement with a state court’s Fourth Amendment conclusion does not amount to denial of a “full and fair opportunity to litigate” it. To overcome Stone v. Powell, there has to be an “unconscionable” breakdown of the state court process. Certificate of appealability denied. Stevenson v. Timme, 536 Fed. Appx. 789 (10th Cir. 2013):

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Permalink 08:26:13 am, by fourth, 136 words, 389 views   English (US)
Categories: General

CA9: On denial of rehearing, suspicionless probation search was valid

On rehearing, a panel of the Ninth Circuit reaffirms its decision on a probation search, but a dissent was added. United States v. King, 736 F.3d 805 (9th Cir. 2013), amended August 27, 2013. Summary by the court:

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Permalink 07:07:15 am, by fourth, 124 words, 358 views   English (US)
Categories: General

ABAJ.com: Predictive policing may help bag burglars—but it may also be a constitutional problem

08/27/13

Permalink 06:23:30 pm, by fourth, 90 words, 367 views   English (US)
Categories: General

The Hill: US requested data on at least 20,000 Facebook users

Permalink 06:18:05 pm, by fourth, 95 words, 368 views   English (US)
Categories: General

SFGate: S.F. cops will wear cameras to record searches

Permalink 06:16:20 pm, by fourth, 16 words, 204 views   English (US)
Categories: General

WaPo: Here's how phone metadata can reveal your affairs, abortions, and other secrets

Permalink 09:07:42 am, by fourth, 650 words, 2054 views   English (US)
Categories: General

CA6: Medically paralyzing suspect for rectal search "shocked the conscience"

Medically paralyzing a suspect, without a warrant or consent, to remove crack cocaine hidden in his rectum shocked the conscience of the court and was unreasonable under the Fourth Amendment. United States v. Booker, 728 F.3d 535 (6th Cir. 2013):

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Permalink 08:53:17 am, by fourth, 165 words, 205 views   English (US)
Categories: General

OH12: Can't undo a guilty plea to apply Jones to an unappealed case

Defendant’s case was final and he did not appeal his GPS ruling to the state supreme court before Jones was decided. Another defendant’s case was appealed and remanded after Jones. Therefore, he cannot withdraw his plea to make Jones apply retroactively to him. It is essentially defaulted. State v. Kelly, 2013 Ohio 3675, 997 N.E.2d 215 (12th Dist. 2013).*

The officer encountered defendant walking from a car stuck in a snowbank left in reverse. The defendant appeared to be under the influence, and simple questions received an evasive response. The officer had reasonable suspicion, and defendant actually blew .246. State v. Sullivan, 2013 VT 71, 2013 Vt. LEXIS 70 (August 23, 2013).*

Defendant was pulled over for a failure to signal violation. While the officer was in the patrol car running the DL, he observed defendant’s furtive movement to his leg. Then the officer found out about a prior for assault and resisting. These two factors together gave reason for a patdown. State v. Tritt, 2013 Ohio 3644, 2013 Ohio App. LEXIS 3773 (2d Dist. August 23, 2013).*

Permalink 08:22:25 am, by fourth, 138 words, 225 views   English (US)
Categories: General

N.D.Okla.: Being asleep at the wheel of a running car justifies a community caretaking function check

Being asleep at the wheel in a convenience store parking lot with the engine running justified a community caretaking function check of the driver. United States v. Peoples, 2013 U.S. Dist. LEXIS 120817 (N.D. Okla. August 26, 2013).*

Defendant’s waiver of Fourth Amendment rights was expressly put on the record at the time of his plea to probation, and he didn’t object or appeal. He can’t claim now that it was an unauthorized sentence [not that it would ever be anyway]. Wiggins v. State, 323 Ga. App. 754, 748 S.E.2d 120 (2013).*

Defendant moved to dismiss making various claims of outrageous governmental conduct, including alleged falsities in a search warrant affidavit. None measure up to the high standard, and there’s a Franks remedy for the alleged falsities. United States v. Marks, 2013 U.S. Dist. LEXIS 120908 (S.D. Fla. March 5, 2013).*

08/26/13

Permalink 03:36:24 pm, by fourth, 126 words, 465 views   English (US)
Categories: General

Raw Story: Ohio A.G.: State secretly uploaded all drivers license photos into police database

Permalink 07:16:40 am, by fourth, 57 words, 411 views   English (US)
Categories: General

NLJ: What They're Not Telling Us About Telephone Records Collections

Permalink 07:14:12 am, by fourth, 46 words, 391 views   English (US)
Categories: General

Law.com: The Broader Message of the Stop and Frisk Ruling

Permalink 06:40:45 am, by fourth, 66 words, 379 views   English (US)
Categories: General

NYT: Court Is ‘One of Most Activist,’ Ginsburg Says, Vowing to Stay

Permalink 06:31:36 am, by fourth, 101 words, 364 views   English (US)
Categories: General

NYT Editorial: Federal Courts in Crisis

Permalink 06:01:29 am, by fourth, 410 words, 407 views   English (US)
Categories: General

A.F.Ct.Crim.App.: Inevitable discovery saves DNA taken by consent later revoked in sex assault case

The defendant service member was accused of aggravated sexual assault, and he consented to a DNA draw. Four days later, before it would be tested, he revoked his consent, and the revocation was legally effective. Inevitable discovery, however, saves the use of the DNA at trial. The record could have been better made by everybody involved, but there is enough to conclude that the evidence would have been inevitably discovered and a warrant issued for the DNA if there was no consent. [It would have been better to have gotten a warrant after consent was revoked, but it still survives here.] United States v. Keller, 2013 CCA LEXIS 665 (A.F. Ct. Crim. App. July 15, 2013):

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08/25/13

Permalink 12:47:08 pm, by fourth, 96 words, 410 views   English (US)
Categories: General

WSJ Blog: NSA Officers Spy on Love Interests

WSJ Blog: NSA Officers Spy on Love Interests by Siobhan Gorman:

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Permalink 09:41:26 am, by fourth, 170 words, 287 views   English (US)
Categories: General

LA4: Juvenile tugging at pants belies a gun and justifies a frisk

Officers received reports of violence near certain Mardi Gras parades, and they were watching one. The juvenile’s actions were clearly indicative of moving and adjusting a firearm at his waistband. That was reasonable suspicion for a stop, and removal of the gun was proper. State in the Interest of D.F., 122 So. 3d 1193 (La. App. 4 Cir. 2013).*

Defendant was stopped because of a potential emissions sticker issue: was it valid or temporary? That couldn’t be determined without a stop, which is conceded as valid. Defendant was suspected of being under the influence during the stop. Reasonable suspicion had not been dispelled at that point, so the DUI arrest was valid. State v. Dalton, 165 N.H. 263, 75 A.3d 1140 (2013).*

Defendant was lawfully stopped because he was walking down the center of the street. He consented to a patdown, and an Advil bottle fell from his pocket when he removed his hands. He denied possession of the bottle, so it was treated as abandoned. State v. Williams, 119 So. 3d 544 (Fla. 1st DCA 2013).*

Permalink 09:26:53 am, by fourth, 241 words, 364 views   English (US)
Categories: General

D.Kan.: Commercial truck on private trip still subject to inspection

Defendant’s tractor trailer was subject to commercial vehicle inspection even though he claimed he was on a personal private trip and should be considered unregulated. United States v. Arlett, 2013 U.S. Dist. LEXIS 119768 (D. Kan. August 23, 2013):

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Permalink 08:53:39 am, by fourth, 1026 words, 619 views   English (US)
Categories: General

Fed.Int.Surv.Ct.Rev. presiding judge fully retiring

Arkansas Democrat-Gazette: A ‘regular ol’ tort case’ gives Arnold most joy by Linda Satter (pay wall; so a longer summary):

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08/24/13

Permalink 05:00:37 pm, by fourth, 554 words, 858 views   English (US)
Categories: General

CA9: The warrant defines the scope of search, not the affidavit

In a partially sealed opinion, the Ninth Circuit holds that the search warrant defines the scope of search, not the affidavit. [Could have said "tail wagging the dog" but didn't.] United States v. Sedaghaty, 2012 U.S. App. LEXIS 27006 (9th Cir. August 23, 2013):

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Permalink 04:45:18 pm, by fourth, 161 words, 203 views   English (US)
Categories: General

S.D.Ind.: A pre-Jardines dog sniff of the front door of a house in Indiana saved by Davis GFE

A pre-Jardines dog sniff of the front door of a house in Indiana, while now known to be a Fourth Amendment violation, wasn’t at the time it happened, so under Davis, the good faith exception applies. United States v. Cota, 2013 U.S. Dist. LEXIS 120008 (S.D. Ind. August 23, 2013).

Officers observed defendant parked in the driveway of a house in a high-crime area known for drugs. They had followed him from a known drug house to that spot. They walked up to him and tapped on the window saying they wanted a word with him “real quick.” He rolled down the window, and they asked for his DL which they ran and found suspended. In the arrest for driving on a suspended license, the officer asked if defendant had anything “illegal” on him, and defendant said he had a gun, which they relieved him of. He was a felon. The stop was consensual. United States v. Hinojosa, 534 Fed. Appx. 468 (6th Cir. 2013).*

Permalink 03:57:57 pm, by fourth, 77 words, 461 views   English (US)
Categories: General

NYT: N.S.A. Said to Have Paid E-Mail Providers Millions to Cover Costs From Court Ruling

Permalink 10:59:59 am, by fourth, 206 words, 227 views   English (US)
Categories: General

E.D.Tex.: Defendant made no attempt to show standing in his mother's house where he allegedly stayed

Defendant’s mother’s house was searched where he claimed he’d been staying, but he didn’t attempt to show standing. “The Court finds that Defendant does not have standing to challenge the search that occurred on June 2, 2009. Defendant failed to meet his burden of showing that he had a legitimate expectation of privacy in the residence searched. Defendant presented no evidence that the residence was his residence, that established any right to occupy the residence, and no one from Defendant's family testified that Defendant resided at this location. The residence in question belonged to File Shkambi, Defendant's mother.” United States v. Shkambi, 2013 U.S. Dist. LEXIS 120158 (E.D. Tex. July 31, 2013).*

The private search of a cell phone resulted in it being turned over to OSI and prosecution resulted. The government’s search of the cell phone’s text messages were equal to the private search and did not violate the Fourth Amendment. United States v. Wicks, 2013 CCA LEXIS 621 (A.F. Ct. Crim. App. June 24, 2013).*

The continuation of defendant’s stop was with reasonable suspicion because the officer could not confirm defendant’s right to be driving the vehicle. It had not been reported stolen at the time. State v. Vanderweide, 2013 Iowa App. LEXIS 932 (August 21, 2013).*

Permalink 10:41:11 am, by fourth, 138 words, 213 views   English (US)
Categories: General

GA: Tracking/drug dog following man alerted on defendant's house; curtilage violated

Police let a dual purpose tracking and drug dog loose to track a man, and the dog and the police entered defendant’s curtilage and the dog alerted on the house. The curtilage was violated [and Jardines isn’t even cited]. Mitchell v. State, 323 Ga.
App. 739, 747 S.E.2d 900 (2013) (date of the search isn’t shown, but it had to be pre-Jardines).

Failure to object to the search and seizure until after the evidence was admitted was waiver of the search and seizure claim. Trung The Luu v. State, (Tex. App. – Houston (14th Dist.) 2013).*

The officer had reasonable suspicion defendant was under the influence. Police were called to a Whataburger because the driver of a vehicle was passed out in the drive-through lane. The stop was valid. Lundgren v. State, 410 S.W.3d 464 (Tex. App. – Ft. Worth August 22, 2013).*

Permalink 10:18:28 am, by fourth, 155 words, 609 views   English (US)
Categories: General

GA: State’s argument that defendant consented to a stop and was free to ignore blue lights to stop him “strains credulity”

State’s argument that defendant consented to a stop and was free to ignore blue lights to stop him strains credulity. Of course he was stopped, and it was without any legal justification at all. Dryer v. State, 323 Ga. App. 734, 747 S.E.2d 895 (2013):

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08/23/13

Permalink 04:41:29 pm, by fourth, 50 words, 329 views   English (US)
Categories: General

WaPo: Former U.S. officials to be named to surveillance panel

WaPo: Former U.S. officials to be named to surveillance panel by Andrea Peterson and Scott Wilson:

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Permalink 09:37:49 am, by fourth, 211 words, 410 views   English (US)
Categories: General

IN: Yes, there's some subjectivity in window tint violations, but that doesn't make stops illegal

A window tint stop based on inability to see the occupants was reasonable and justified, despite the fact it turned out the window tinting was actually legal. Before learning the tint was legal, it was discovered defendant’s DL was expired which lead to a search incident to his custodial arrest. Johnson v. State, 992 N.E.2d 955 (Ind. App. 2013):

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Permalink 09:30:30 am, by fourth, 75 words, 226 views   English (US)
Categories: General

S.D.Ind.: Smell of MJ from car justified search of a box in the trunk

The smell of marijuana coming from defendant’s car and his excessive nervousness gave probable cause to search a Purex detergent box found in the car that had been opened and resealed. Heroin was inside. United States v. Glover, 2013 U.S. Dist. LEXIS 119254 (S.D. Ind. August 22, 2013).*

2255 petitioner had his full and fair opportunity to litigate his suppression motion before trial, and did. Winkler v. United States, 2013 U.S. Dist. LEXIS 117484 (E.D. Tenn. August 20, 2013).*

Permalink 09:25:21 am, by fourth, 142 words, 210 views   English (US)
Categories: General

S.D.N.Y.: Seeing butt of a gun in pants in the Bronx is reasonable suspicion

Defendant was walking in a high crime area of the Bronx and he saw a police car and avoided it. The officers watched him moving his hands like he was adjusting a gun, and when they got closer they could see the butt. The stop was justified. United States v. Williams, 2013 U.S. Dist. LEXIS 118890 (S.D. N.Y. August 14, 2013).*

2255 claim that affiant violated Franks fails because the person named wasn’t the affiant. United States v. Baez, 2013 U.S. Dist. LEXIS 118619 (D. R.I. August 21, 2013).*

“When Mr. Henderson entered the guilty plea, he reserved the right to appeal the denial of the motion to suppress but did not assert that the motion was dispositive, and the trial court made no such finding.” Therefore, he can’t appeal it under Florida law. Henderson v. State, 2013 Fla. App. LEXIS 13061 (Fla. 2d DCA August 21, 2013).*

Permalink 07:21:37 am, by fourth, 153 words, 521 views   English (US)
Categories: General

NLJ: One Foot Out The Door, Barkett Dissents In Stop And Frisk Case [from rehearing]

NLJ: One Foot Out The Door, Barkett Dissents In Stop And Frisk Case | 11th Circuit judge laments colleagues' refusal to hear case as full court, saying ruling could hurt poor and minorities by Alyson M. Palmer

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Permalink 07:18:28 am, by fourth, 255 words, 454 views   English (US)
Categories: General

NLJ: Sixth Circuit Sides With FBI Against Profiling Fears

Permalink 06:02:02 am, by fourth, 138 words, 397 views   English (US)
Categories: General

US News & World Report: Building the American Police State

US News & World Report: Building the American Police State by Brad Bannon:

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08/22/13

Permalink 10:50:34 am, by fourth, 82 words, 570 views   English (US)
Categories: General

NYT: In California, a Champion for Police Cameras

Permalink 10:43:06 am, by fourth, 139 words, 422 views   English (US)
Categories: General

BLT: Tech Groups Want Transparency in NSA Surveillance

Permalink 09:05:17 am, by fourth, 162 words, 222 views   English (US)
Categories: General

TX4: DUI stop on tip and observation of driving was without any reasonable suspicion

The police received a tip that a car matching defendant’s car’s description was operated by a drunk driver. The officer followed and observed no erratic driving or traffic offense. There was no reasonable suspicion at all for defendant’s stop, and the motion to suppress was properly granted. State v. Hneidy, 2013 Tex. App. LEXIS 7788 (Tex. App. – San Antonio June 26, 2013).*

The use of scanning software on a P2P network does not view the files on a computer. It looks for hash values of known child pornography, and there is no violation of any expectation of privacy when one uses P2P networking. United States v. Dodson, 960 F. Supp. 2d 689 (W.D. Tex. 2013).*

Certificate of appealability of a state habeas petition dismissed under Stone v. Powell is denied. There is no reasonable possibility jurists would disagree that petitioner had his opportunity to litigate the search issue in state court and did. Kaufman v. Miller, 2013 U.S. App. LEXIS 17491 (10th Cir. August 21, 2013).*

Permalink 08:47:57 am, by fourth, 869 words, 746 views   English (US)
Categories: General

D.Md.: Chats on website with a banner that information could be given the government was a waiver of REP

The government monitored Free6.com, a website headquartered in Sweden. Free6 was being used to exchange child pornography, and they actively tried to discourage and stop it. A DHS investigator emailed Sweden asking for help, and the company obliged and gave him administrative privileges to wander all around the website. At the officer’s request, Free6 even added to its banner that it might give the information to the government. Recognizing a reasonable expectation of privacy in email (Warshuk), defendant still had no reasonable expectation in the chats because he was warned there was no privacy. United States v. Bode, 2013 U.S. Dist. LEXIS 118627 (D. Md. August 21, 2013) (court has an opinions page; check back):

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Permalink 07:36:51 am, by fourth, 108 words, 474 views   English (US)
Categories: General

NYT: Imagining the Court [maybe no appeal in NYC stop and frisk case?]

NYT: Imagining the Court by Linda Greenhouse:

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Permalink 07:14:50 am, by fourth, 168 words, 547 views   English (US)
Categories: General

NLJ: Once-Secret FISA Court Opinion Reveals Unlawful Spying (opinion link)

Permalink 05:48:21 am, by fourth, 756 words, 611 views   English (US)
Categories: General

CA2: Deliberate constitutional violation presumptively requires exclusion; inevitable discovery argument rank speculation

The government agents here, with the complicity of an ADA, made a conscious tactical choice to violate the constitution to be able to arrest defendant and question him without his lawyer being around. Inevitable discovery is a mixed question of law and fact reviewed de novo, and the government fails in its burden of proof. Inevitable discovery here was completely speculative. United States v. Stokes, 733 F.3d 438 (2d Cir. 2013):

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08/21/13

Permalink 07:11:54 pm, by fourth, 168 words, 444 views   English (US)
Categories: General

NPR: NSA Culled Tens Of Thousands Of U.S. Emails Yearly, FISA Opinion Says

Permalink 09:56:06 am, by fourth, 325 words, 548 views   English (US)
Categories: General

New law review article: The Forgotten Right to Be Secure

New law review article: The Forgotten Right to Be Secure by Luke M. Milligan.

Abstract:

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Permalink 07:27:06 am, by fourth, 272 words, 443 views   English (US)
Categories: General

TN: Giving computer to a computer tech for virus removal was waiver of REP

Defendant took his computer to Staples for a computer tech to remove viruses and spyware, giving the tech the password to the computer. The computer tech found child pornography in a folder called "PVT," and he called the police who saw the files and seized the computer. The court finds that the defendant waived his reasonable expectation of privacy in the computer by his actions. State v. Dale, 2013 Tenn. Crim. App. LEXIS 704 (August 19, 2013):

=> Read more!

Permalink 07:16:27 am, by fourth, 72 words, 420 views   English (US)
Categories: General

CA10: Hearsay is admissible at suppression hearings, and the confrontation clause does not apply

Hearsay is admissible at suppression hearings, and the confrontation clause does not apply. United States v. Lopez-Carillo, 536 Fed. Appx. 762 (10th Cir. 2013).

2255 petitioner filed a motion to suppress, lost, and unconditionally pled guilty. He waived the Fourth Amendment issue by pleading. Winkler v. United States, 2013 U.S. Dist. LEXIS 117484 (E.D. Tenn. August 20, 2013).*

P2P file sharing is not a search. United States v. Dodson, 2013 U.S. Dist. LEXIS 118031 (W.D. Tex. August 13, 2013).*

Permalink 07:12:01 am, by fourth, 158 words, 289 views   English (US)
Categories: General

W.D.N.Y. SW for “photographs and video tapes ... undeveloped rolls of film and disposable cameras” permitted seizure of digital media

The search warrant “was specifically limited to ‘photographs and video tapes ... undeveloped rolls of film and disposable cameras’” and the court finds that this 20th Century description still applies to digital information that was found. United States v. Miller, 2013 U.S. Dist. LEXIS 117576 (W.D. N.Y. August 16, 2013).

One police officer was watching an intersection from a video control room because of a shooting there the day before. For over 20 minutes, she watched one man who was obviously armed. She reported that to officers on patrol who stopped the defendant. That qualified under the collective knowledge doctrine. United States v. Dupree, 2013 U.S. Dist. LEXIS 117539 (D. Md. August 20, 2013).*

The entry of the officers into defendant’s home was without consent or exigency, and it was suppressed. There was no need for the entry. United States v. Marchese, 2013 U.S. Dist. LEXIS 117339 (W.D. N.Y. August 19, 2013),* R&R 2012 U.S. Dist. LEXIS 188939 (W.D. N.Y. September 5, 2012).*

Permalink 06:31:24 am, by fourth, 121 words, 256 views   English (US)
Categories: General

W.D.N.Y.: USMJ's findings of fact on consent issue binding on USDJ

The USMJ found the officers’ testimony on defendant’s consent “inherently improbable” and that was binding on the district court on review. The motion to suppress is granted. United States v. Lawson, 961 F. Supp. 2d 496 (W.D. N.Y. 2013).*

Defendant was stopped for having red headlights, and the LPN came back as not matching the car. The stop was justified, as was the search. Thammasack v. State, 323 Ga. App. 715, 747 S.E.2d 877 (2013).*

The stop of defendant’s car was based on overtinting, and a gun was in plain view inside, and that was probable cause for a protective weapons search. United States v. Victor, 2013 U.S. Dist. LEXIS 117053 (S.D. Fla. August 19, 2013),* adopted 2013 U.S. Dist. LEXIS 127035 (S.D. Fla. September 5, 2013).*

Permalink 06:27:09 am, by fourth, 368 words, 705 views   English (US)
Categories: General

Cal: Fourth Amendment reasonableness is different than negligence

On a certification of a question of California law by the Ninth Circuit (Hayes v. County of San Diego, 658 F.3d 867 (9th Cir. 2011)), in police shooting case also implicating state negligence law, Fourth Amendment reasonableness is not the same as state negligence law. Hayes v. County of San Diego, 57 Cal. 4th 622, 160 Cal. Rptr. 3d 684, 305 P.3d 252 (2013):

=> Read more!

Permalink 06:17:21 am, by fourth, 223 words, 386 views   English (US)
Categories: General

GA: No knock provision justified by defendant's arrest record for firearms and violence, despite no convictions

The tip of defendant being a “man of violence” with guns in the house was sufficiently corroborated by defendant’s arrest (no convictions) record to support a no-knock provision in the warrant. Braun v. State, 324 Ga. App. 242, 747 S.E.2d 872 (2013):

=> Read more!

Permalink 05:47:13 am, by fourth, 431 words, 426 views   English (US)
Categories: General

Cal.2d: Exclusionary rule does not apply to state employee termination proceedings

The exclusionary rule does not apply to state termination proceedings, assuming a Fourth Amendment violation, which here there wasn’t. California Science Center v. State Personnel Bd., 218 Cal. App. 4th 1302, 160 Cal. Rptr. 3d 765 (2d Dist. 2013):

=> Read more!

Permalink 05:37:27 am, by fourth, 79 words, 478 views   English (US)
Categories: General

NPR: NSA Spying Prompts Calls For Review Of Supreme Court Case

08/20/13

Permalink 04:33:54 pm, by fourth, 69 words, 426 views   English (US)
Categories: General

WaPo: Positive steps on ‘stop and frisk,’ drug arrests

Permalink 04:01:10 pm, by fourth, 35 words, 477 views   English (US)
Categories: General

Volokh: Speaking of Fourth Amendment History…

08/19/13

Permalink 09:24:37 pm, by fourth, 147 words, 741 views   English (US)
Categories: General

Gov't seeks cert in warrantless cell phone searches; cert grant coming

Permalink 11:41:32 am, by fourth, 96 words, 260 views   English (US)
Categories: General

WaPo: ’Stop and frisk’ is not racial profiling by Michael R. Bloomberg, NYC Mayor

WaPo: ’Stop and frisk’ is not racial profiling\ by Michael R. Bloomberg, NYC Mayor:

New York is the safest big city in the nation, and our crime reductions have been steeper than any other big city’s. For instance, if New York City had the murder rate of Washington, D.C., 761 more New Yorkers would have been killed last year. If our murder rate had mirrored the District’s over the course of my time as mayor, 21,651 more people would have been killed. That’s more than Georgetown University’s student body, faculty and administrative staff.

Permalink 07:08:53 am, by fourth, 147 words, 290 views   English (US)
Categories: General

D.Utah: When LPN check reveals owner has revoked license, PC exists for stop without proof owner driving

When a LPN check reveals that the owner of a vehicle has a revoked driver’s license, the officer does not have to ascertain that the owner is driving before making a stop. It is still probable cause. United States v. Wissiup, 2013 U.S. Dist. LEXIS 116581 (D. Utah August 16, 2013).*

Defendant was stopped for illegal tint while driving excessively slow in a high-crime area. He consented to a patdown of his person, but then resisted a second patdown, and his spinning around gave the officer reasonable cause to believe that he was armed. United States v. Taylor, 2013 U.S. Dist. LEXIS 116481 (D. Md. August 16, 2013).*

Defendant’s arrest and seizure of a blunt from his mouth was unreasonable, but he fought with the officers, and the court’s not suppressing the evidence of the fight because it’s a separate crime. State v. Owens, 992 N.E.2d 939 (Ind. App. 2013).*

Permalink 06:50:03 am, by fourth, 174 words, 613 views   English (US)
Categories: General

CA6: Heck does not bar Ohio false arrest case

A 1983 case over the legality of plaintiff’s arrest does not implicate the validity of his conviction because an illegal arrest does not prevent a trial in Ohio [and almost everywhere else]. Therefore, the case is not barred by Heck v. Humphrey. Graves v. Mahoning County, 534 Fed. Appx. 399 (6th Cir. 2013)*:

=> Read more!

Permalink 06:42:16 am, by fourth, 122 words, 248 views   English (US)
Categories: General

E.D.Cal.: A court order doesn't have to call itself a “warrant” to be one

A “warrant” doesn’t have to use the word to be one. Officers obtained an order on probable cause to install a GPS tracker. Also, officers installing it while his car was parked in his driveway didn’t violate the Fourth Amendment. United States v. Calvert, 2013 U.S. Dist. LEXIS 115768 (E.D. Cal. August 14, 2013).

After 50+ pages of discussion, a controlled buy is probable cause. United States v. Aranda-Daiz, 2013 U.S. Dist. LEXIS 116031 (D. N.M. July 15, 2013).*

911 call brought police to defendant’s home, and his wife answered the door, distraught and crying and with disheveled clothes. Defendant ran into a bedroom and shut the door. The entry was reasonably based on exigent circumstances. Commonwealth v. Potts, 2013 PA Super 236, 2013 Pa. Super. LEXIS 2635 (August 16, 2013).*

Permalink 12:59:16 am, by fourth, 184 words, 525 views   English (US)
Categories: General

Cal.1st: DUI blood draws were performed reasonably

In seven consolidated cases, the court concluded that the blood draw in each case was reasonable under the Fourth Amendment. All the defendants chose to have a blood test. In each case, a police officer witnessed blood draws performed by a person the officer believed to be a trained phlebotomist or blood technician. None of the defendants exhibited any signs of pain or discomfort during the blood draw procedure; indeed, the testimony reflected these were routine blood draws consistent either with the officer's own experience of having blood drawn or with the officer's observation of other arrestee blood draws. Moreover, the testimony reflected the blood draws were conducted in a cooperative manner, utilizing needles from sealed packages and ensuring the blood extraction area was cleaned prior to inserting the needle and cleaned and bandaged after the blood was drawn. Under the totality of the circumstances presented, in each case the officer's un-rebutted testimony showed the blood draw did not expose the defendant to an unjustified element of personal risk of infection or pain. People v. Cuevas, 218 Cal. App. 4th 1278, 160 Cal. Rptr. 3d 773 (1st Dist. 2013).

Permalink 12:26:17 am, by fourth, 80 words, 423 views   English (US)
Categories: General

Sun Sentinel: Shooting video of police could land you in jail — but should it?

08/18/13

Permalink 01:24:24 pm, by fourth, 83 words, 513 views   English (US)
Categories: General

The Hill: NYPD chief Kelly: More people will die without stop-and-frisk policy

Permalink 01:22:50 pm, by fourth, 66 words, 772 views   English (US)
Categories: General

NPR: Cracking The Code: Just How Does Encrypted Email Work?

Permalink 09:39:52 am, by fourth, 355 words, 544 views   English (US)
Categories: General

E.D.Wis.: Dog handler’s belief that something might be found was not sufficient to invalidate the dog’s alert

Dog handler’s belief that something might be found was not sufficient to invalidate the dog’s alert. United States v. Guidry, 2013 U.S. Dist. LEXIS 116205 (E.D. Wis. July 1, 2013):

=> Read more!

Permalink 09:12:56 am, by fourth, 131 words, 376 views   English (US)
Categories: General

OH9: Defendant can't suppress his assault on officer during alleged illegal search

Defendant cannot suppress his assault on a police officer during an alleged illegal entry, even if it was an illegal entry. State v. Dickson, 2013 Ohio 3511, 2013 Ohio App. LEXIS 3616 (9th Dist. August 14, 2013).*

Defendant was on supervised release out of Las Vegas federal court. His RV was seized by a search warrant in Grand Rapids, Michigan. The Nevada court has no jurisdiction to entertain a motion for return of property under Rule 41(g). United States v. Myers, 2013 U.S. Dist. LEXIS 116339 (D. Nev. August 15, 2013).

Defendant was a passenger in a car that was lawfully searched as a protective weapons search under Long and then with a search warrant. Defendant put forth nothing to show standing, and his motion is denied. United States v. Doe, 2013 U.S. Dist. LEXIS 114766 (W.D. N.C. August 14, 2013).*

Permalink 09:01:53 am, by fourth, 210 words, 292 views   English (US)
Categories: General

SC: Length of stop "is a temporal inquiry, not a reasonableness inquiry.”

The court of appeals did not err in holding that the valid stop was not “measurably extended” by incidental questions. “We also note that the proper inquiry is not whether an officer ‘unreasonably’ extended the duration of the traffic stop with his off-topic questions but whether he ‘measurably’ extended it. See Johnson, supra. This is a temporal inquiry, not a reasonableness inquiry.” State v. Provet, 402 S.C. 101, 747 S.E.2d 453 (2013), affg State v. Provet, 391 S.C. 494, 706 S.E.2d 513 (App. 2011).

Defendant’s computer was operating peer-to-peer, and it was not an invasion of privacy for police to use the Round Up program to remotely check for child pornography on his computer. That led to a valid state search warrant for his computer. While he was not immediately given an inventory for the seizure, this is not a significant enough violation of Rule 41 to matter. [If it’s a state search warrant, Rule 41 doesn’t apply; just the Fourth Amendment, anyway.] United States v. Franklin, 2013 U.S. Dist. LEXIS 116258 (W.D. Ark. August 16, 2013).*

Defendant’s protective sweep was invalid, but the search warrant later issued was an independent source for everything found because it had an independent basis. United States v. Byam, 2013 U.S. Dist. LEXIS 116147 (E.D. N.Y. August 15, 2013).*

Permalink 08:51:22 am, by fourth, 447 words, 520 views   English (US)
Categories: General

E.D.N.Y. Officers' failure to mention gun when first allegedly seen makes them all unbelievable

Court finds three officers’ testimony incredible on seeing defendant having a gun and letting him get out of the car with it and never saying a word about the gun until after it’s seized. United States v. Mayo, 960 F. Supp. 2d 419 (E.D. N.Y. 2013):

=> Read more!

08/17/13

Permalink 12:40:41 pm, by fourth, 169 words, 655 views   English (US)
Categories: General

HuffPo: Texas Police Hit Organic Farm With Massive SWAT Raid, but no dope

Permalink 12:31:24 pm, by fourth, 95 words, 370 views   English (US)
Categories: General

NBC: Lavabit.com owner: 'I could be arrested' for resisting surveillance order

Permalink 12:28:24 pm, by fourth, 138 words, 415 views   English (US)
Categories: General

NPR: Switching To Gmail May Leave Reporters' Sources At Risk

Permalink 12:24:15 pm, by fourth, 101 words, 391 views   English (US)
Categories: General

WaPo: Lawmakers, privacy advocates call for reforms at NSA

Permalink 12:22:07 pm, by fourth, 88 words, 470 views   English (US)
Categories: General

NYT: How Laura Poitras Helped Snowden Spill His Secrets

Permalink 11:01:58 am, by fourth, 35 words, 256 views   English (US)
Categories: General

MintPress: Chicagoan Challenges City’s Drug Test Requirement For Public Housing

MintPress: Chicagoan Challenges City’s Drug Test Requirement For Public Housing by Katie Rucke:

Joseph Peery has teamed up with the ACLU to file a class action lawsuit against mandatory drug testing in public housing.

Permalink 08:48:25 am, by fourth, 340 words, 538 views   English (US)
Categories: General

CA5: Dog sniff of vehicles in front of house did not violate curtilage

A dog sniff of a pickup truck and horse trailer parked in front of defendant’s house off the street did not violate Dunn curtilage. United States v. Salinas, 2013 U.S. App. LEXIS 17115 (5th Cir. August 16, 2013):

=> Read more!

Permalink 08:31:12 am, by fourth, 67 words, 495 views   English (US)
Categories: General

NYT: N.S.A. Calls Violations of Privacy ‘Minuscule’

Permalink 08:26:59 am, by fourth, 80 words, 402 views   English (US)
Categories: General

NYT Editorial: GPS Tracking and Secret Policies

Permalink 08:16:38 am, by fourth, 157 words, 252 views   English (US)
Categories: General

CA3: No reason why feds can't search a computer seized under state SW

The search warrant was issued by a state judge, but the feds searched the computer. There’s no reason why, once it was lawfully seized, it couldn’t be searched by somebody other than state authorities. United States v. Lackner, 535 Fed. Appx. 175 (3d Cir. 2013).

Defendant was stopped and her purse was examined for weapons, and none were found. It was placed on the car. During the stop she reached for the purse more than once and she was handcuffed. The purse was searched in detail, and marijuana was found. The officers had no objective basis to believe there was a weapon in it because they’d already looked for weapons, and the motion to suppress should have been granted. People v. Walker, 2013 IL App (4th) 120118, 2013 Ill. App. LEXIS 548 (August 13, 2013).

“Attempted urination in public” is not disorderly conduct, and defendant’s arrest for that purported crime was without probable cause. Ramsey v. United States, 73 A.3d 138 (D.C. 2013).*

Permalink 07:56:31 am, by fourth, 249 words, 493 views   English (US)
Categories: General

DC: Subsequent crime after 4A violation not suppressed

After an illegal search produced evidence of suborning perjury, there was no reason for the exclusionary rule to apply because there was nothing to deter. Also, there was no objection at trial, so the plain error rule applies. Essentially, subsequent criminality after a Fourth Amendment violation won’t be suppressed because the deterrence rationale does not apply. (This is the D.C. court's first time to deal with the subsequent criminality issue.) Silver v. United States, 2013 D.C. App. LEXIS 500 (August 15, 2013):

=> Read more!

Permalink 07:46:31 am, by fourth, 127 words, 448 views   English (US)
Categories: General

OR: Second frisk was still supported by RS

Defendant was subjected to two frisks, and both were based on reasonable suspicion. After the first cursory frisk, the officer still believed defendant could have had a weapon, and defendant’s nervousness was excessive before the second frisk and he was less cooperative. State v. Faubion, 258 Ore. App. 184, 308 P.3d 337 (2013).*

A partially naked toddler was wandering around an apartment complex, and it wasn’t unreasonable for the officer to make an entry into the apartment the child wandered off from to see what was going on. McIlquham v. State, 992 N.E.2d 904 (Ind. App. 2013).

Touching the fog line briefly isn’t an offense in Indiana, but this was worse, and it was at least reasonable suspicion for a stop. Atkinson v. State, 992 N.E.2d 899 (Ind. App. 2013).*

08/16/13

Permalink 03:35:43 pm, by fourth, 55 words, 405 views   English (US)
Categories: General

Reason.com: Cop Records Police Chief Pushing Ticket Quotas, Boasting About Always Finding a Reason to Stop Someone

Permalink 03:29:56 pm, by fourth, 176 words, 510 views   English (US)
Categories: General

Slate: New Research Supports the Notion That There’s No Such Thing as a “Consensual” Police Encounter

Permalink 03:26:17 pm, by fourth, 119 words, 391 views   English (US)
Categories: General

Forbes: NSA, DEA, IRS Lie About Fact That Americans Are Routinely Spied On By Our Government: Time For A Special Prosecutor

Permalink 03:22:28 pm, by fourth, 59 words, 360 views   English (US)
Categories: General

NYT: N.S.A. Often Broke Rules on Privacy, Audit Shows

Permalink 11:32:26 am, by fourth, 203 words, 465 views   English (US)
Categories: General

WI: Dog sniff invalid because stop was unreasonably extended to conduct it

Dog sniff invalid because stop was unreasonably extended to conduct it. Defendant’s DL and paperwork had been returned. State v. House, 2012AP2414-CR (August 14, 2013):

=> Read more!

Permalink 10:35:04 am, by fourth, 144 words, 269 views   English (US)
Categories: General

CA1: Failure to show CI's basis of knowledge or corroborate anything was no PC

In a grow operation search warrant, merely calling the informant “reliable” adds nothing other than the affiant’s opinion. There was nothing that corroborated the informant or showed his basis of knowledge. The motion to suppress was properly granted. Also, the choice of a “comparator” house for electrical usage was essentially misleading to the magistrate. United States v. Gifford, 727 F.3d 92 (1st Cir. 2013).

Defendant never alleges a possessory or privacy interest in the car that was searched, so he has no standing. United States v. Doe, 2013 U.S. Dist. LEXIS 114766 (W.D. N.C. August 14, 2013),* R&R 2013 U.S. Dist. LEXIS 114762 (W.D. N.C. June 21, 2013).*

The officer had reasonable suspicion to stop defendant when he saw defendant’s hand move to his waist and saw what appeared to be the grip of a gun. United States v. Goss, 537 Fed. Appx. 276 (4th Cir. 2013).*

Permalink 10:26:21 am, by fourth, 161 words, 387 views   English (US)
Categories: General

D.Nev.: Unauthorized driver of rental car had no standing

Noting a conflict in the circuits, this court holds that an unauthorized driver of a rented car can’t show standing. United States v. O'Hara, 2013 U.S. Dist. LEXIS 114201 (D. Nev. May 20, 2013)*:

In this case, it is uncontroverted that Emily Samples, the renter of the vehicle, was not present during the stop. She was Sean Deaver's girlfriend. Deaver was one of the occupants of the vehicle when the officers responded to this call. Deaver was not given the keys and there is no testimony that he had permission to use the rental car from Samples. In fact, he was not aware, until police recovered the keys from the car, that they had been left in the vehicle. O'Hara has not established that he has standing to directly challenge the search of the rental car. However, the court finds O'Hara has standing to challenge his initial detention and subsequent arrest, and to seek suppression under the fruit of the poisonous tree doctrine.

Permalink 09:37:02 am, by fourth, 112 words, 235 views   English (US)
Categories: General

TN: Search incident for evading arrest invalid

The state concedes on appeal that a search incident for felony evading arrest was not lawful under Gant. State v. Davis, 2013 Tenn. Crim. App. LEXIS 689 (August 14, 2013).

Entry into defendant’s house was valid under exigency. Officers responded to a 911 DV call with injury. Defendant’s wife was whispering at the door and seemed afraid. Then they saw defendant coming down the stairs with a gun in hand. State v. Brooks, 2013 Ohio 3505, 2013 Ohio App. LEXIS 3608 (5th Dist. August 14, 2013).*

Officers had an uncorroborated tip on defendant’s car about metal thefts. Driving slow was not reasonable suspicion, and the motion to suppress should have been granted. Lewis v. State, 323 Ga. App. 709, 747 S.E.2d 867 (2013).*

Permalink 08:06:32 am, by fourth, 51 words, 312 views   English (US)
Categories: General

WSJ: Noonan: What We Lose if We Give Up Privacy

WSJ: Noonan: What We Lose if We Give Up Privacy | A civil libertarian reflects on the dangers of the surveillance state. By Peggy Noonan:

What is privacy? Why should we want to hold onto it? Why is it important, necessary, precious?

Is it just some prissy relic of the pretechnological past?

08/15/13

Permalink 11:59:41 am, by fourth, 48 words, 641 views   English (US)
Categories: General

NLJ: Defense Lawyer Challenges Subpoena of his Bank Records

Permalink 09:34:00 am, by fourth, 127 words, 229 views   English (US)
Categories: General

N.D.W.Va.: Whether to file a suppression motion can be a “tactical decision” for IAC purposes

“A decision regarding whether to file a motion to suppress is a tactical decision, for which greater deference is given to trial counsel's skill and experience.” A 2255 petitioner also has to show that the motion would be successful, and here he can’t. Brown v. United States, 2013 U.S. Dist. LEXIS 114825 (N.D. W.Va. May 30, 2013). [So true on tactics, as a general proposition. I’ve waived good motions to suppress because we were better off with the evidence coming in. It all depends on the case.]

A probationer has a reduced expectation of privacy, and it doesn’t matter that the police officers involved don’t know he’s a probationer at the time. United States v. Baker, 2013 U.S. Dist. LEXIS 114412 (M.D. Ga. August 14, 2013).

08/14/13

Permalink 03:50:20 pm, by fourth, 100 words, 510 views   English (US)
Categories: General

LA Weekly: Federal Judge Awards Lancaster Man $3.8 million for L.A. Sheriff's Deputies' Use of Excessive Force

Permalink 03:47:11 pm, by fourth, 101 words, 569 views   English (US)
Categories: General

Reason: How Government Violates the Fourth Amendment Rights of Renters

Permalink 01:43:47 pm, by fourth, 84 words, 431 views   English (US)
Categories: General

The Hill: Oracle CEO Ellison defends NSA spying as ‘great’ and ‘essential’; we got more

Permalink 11:15:33 am, by fourth, 109 words, 264 views   English (US)
Categories: General

E.D.Mich.: Considering merits of 4A claim in toto, defense counsel not ineffective

Evaluating counsel’s performance on failing to pursue search warrant questions, the court concludes that the warrants would have sustained, one at least for good faith, and just barely. The court analyzes in detail the merits of the search and seizure question to find no failure of performance. United States v. Santana, 962 F. Supp. 2d 906 (E.D. Mich. 2013).

There was probable cause and nexus for the search warrant for defendant’s house for drugs. United States v. Navarro, 2013 U.S. Dist. LEXIS 113180 (E.D. Tex. July 26, 2013).*

Informant’s tip corroborated by apparent hand-to-hand transactions was probable cause. United States v. Guzman, 2013 U.S. Dist. LEXIS 113836 (S.D. Tex. August 13, 2013).*

Permalink 09:56:24 am, by fourth, 513 words, 563 views   English (US)
Categories: General

CA7: Deliberate indifference for jail suicide stated claim

The estate of an Algerian national held in immigration detention who committed suicide stated a claim for deliberate indifference and Fourth Amendment unreasonableness in a 1983 case. Dismissal of 1983 case and dismissal of supplemental claims reversed. Belbachir v. County of McHenry, 726 F.3d 975 (7th Cir. 2013):

=> Read more!

Permalink 09:41:27 am, by fourth, 145 words, 258 views   English (US)
Categories: General

D.Kan.: One driving a borrowed car can show standing, but has to try

While a person with a borrowed car can show standing, defendant didn’t even attempt to meet his burden on it. United States v. Ewing, 2013 U.S. Dist. LEXIS 113951 (D. Kan. August 13, 2013).* See also United States v. O'Hara, 2013 U.S. Dist. LEXIS 114201 (D. Nev. May 20, 2013) (essentially the same).

Traffic stop by a police officer with his own drug dog led to an immediate and valid sniff. United States v. Aguirre, 2013 U.S. Dist. LEXIS 112738 (D. Idaho August 7, 2013).*

How Amtrak handles a Passenger Named Record ("PNR") in giving it to the DEA for the DEA to open an investigation into whether the passenger is a drug courier is not a Fourth Amendment issue. It’s Amtrak’s business record, and there is no reasonable expectation of privacy in it. United States v. Jackson, 381 F.3d 984, 989-90 (10th Cir. 2004). United States v. McKenzie, 532 Fed. Appx. 793 (10th Cir. 2013).*

08/13/13

Permalink 05:17:27 pm, by fourth, 28 words, 319 views   English (US)
Categories: General

WaPo op-ed: What NSA reforms?

WaPo op-ed: What NSA reforms? by Eugene Robinson:

President Obama’s message about the government’s massive electronic surveillance programs came through loud and clear: Get over it.

Permalink 10:19:32 am, by fourth, 89 words, 262 views   English (US)
Categories: General

CA9: Jones argument waived, and it can't be the basis of a motion for new trial

Even though Jones is retroactive to cases on direct review, defense counsel never filed a motion to suppress on that ground so it’s waived. "Jones may have bolstered Johnson's legal argument for suppression of the GPS evidence, but that cannot serve as a basis for a new trial." United States v. Johnson, 537 Fed. Appx. 717 (9th Cir. 2013).*

Only reasonable suspicion was needed for defendant’s stop, but it’s apparent there was probable cause. The stop was valid. United States v. Goss, 2013 U.S. App. LEXIS 16634 (4th Cir. August 12, 2013).*

Permalink 09:59:28 am, by fourth, 42 words, 467 views   English (US)
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AOL: Georgia Police Allegedly Caught On Video Threatening To 'Cane,' 'Tase,' And 'Kill'

AOL: Georgia Police Allegedly Caught On Video Threatening To 'Cane,' 'Tase,' And 'Kill' by Dan Fastenberg, all while serving a misdemeanor arrest warrant at 1:30 am. The homeowner recorded most of it.

Why say "alleged" unless you don't understand basic English?

Permalink 09:45:33 am, by fourth, 618 words, 961 views   English (US)
Categories: General

CA7: Waiver of collateral review plea agreement doesn't bar Fourth Amendment IAC

2255 petitioner’s IAC claim of ineffectiveness in a plea agreement with a collateral review provision premised on a failure to recognize a Fourth Amendment claim was sufficient. Hurlow v. United States, 726 F.3d 958 (7th Cir. 2013):

=> Read more!

Permalink 09:01:15 am, by fourth, 490 words, 416 views   English (US)
Categories: General

E.D.Cal.: No discovery granted for 2009 GPS placement; any suppression issue's a loser

Defendants get no discovery on the issue of 2009 placement of the GPS device on their car because they can’t win on the GPS issue anyway because of Davis. Despite their best efforts to conjure up an argument, it won't go anywhere. United States v. Arceo-Rangel, 2013 U.S. Dist. LEXIS 112785 (E.D. Cal. August 8, 2013):

=> Read more!

Permalink 07:38:09 am, by fourth, 114 words, 444 views   English (US)
Categories: General

Constitution Center: How NSA surveillance endangers the Fourth Amendment

Constitution Center: How NSA surveillance endangers the Fourth Amendment by Jonathan Hafetz:

=> Read more!

08/12/13

Permalink 04:14:56 pm, by fourth, 57 words, 465 views   English (US)
Categories: General

NYDN: NYC pays $363,500 to suspects beaten, falsely arrested by narcotics cops

Permalink 03:16:35 pm, by fourth, 32 words, 254 views   English (US)
Categories: General

BuzzFeed: This Is What It Looks Like When Your Phone Tracks Your Every Move

BuzzFeed: This Is What It Looks Like When Your Phone Tracks Your Every Move by Charlie Warzel:

Sure, we know we’re being tracked, but now we know what it looks like.

Permalink 11:43:42 am, by fourth, 90 words, 652 views   English (US)
Categories: General

S.D.N.Y.: NYC's stop and frisk policy held unconstitutional

NYC's stop and frisk policy held unconstitutional. Floyd v. City of New York, 959 F. Supp. 2d 540, 959 F. Supp. 2d 668 (S.D. N.Y. 2013) (Part I (Findings and Conclusion) here (198 pages); Part II (remedies) here (39 pages))

NYT: Stop-and-Frisk Practice Violated Rights, Judge Rules:

In a repudiation of a major element in the Bloomberg administration’s crime-fighting legacy, a federal judge has found that the stop-and-frisk tactics of the New York Police Department violated the constitutional rights of minorities in New York, and called for a federal monitor to oversee broad reforms.

Permalink 07:53:52 am, by fourth, 112 words, 356 views   English (US)
Categories: General

D.Idaho: Consent to search a house includes the garage

Consent to search a house includes the garage. United States v. Aguirre, 2013 U.S. Dist. LEXIS 112738 (D. Idaho August 7, 2013).

Defense counsel filed a motion to suppress cocaine which was heard but wasn’t ruled on. The cocaine came in at trial without objection. Defense counsel wasn’t ineffective because there was consent, and it would not have been suppressed. Blitch v. State, 323 Ga. App. 677, 747 S.E.2d 863 (2013).*

Defendant was on supervised release, and he was released from a halfway house to live in an apartment, and his apartment was searched under the release terms. It was reasonable. He had no reasonable expectation of privacy. United States v. Edelman, 726 F.3d 305 (2d Cir. 2013).

Permalink 07:46:56 am, by fourth, 580 words, 1522 views   English (US)
Categories: General

IA: Officer unreasonably stalled stop to give drug dog time to arrive

The officer here stalled the defendant with conversation that led to no reasonable suspicion in an effort to give the drug dog time to arrive: Suppressed. State v. Hanrahan, 2013 Iowa App. LEXIS 844 (August 7, 2013):

=> Read more!

Permalink 07:35:40 am, by fourth, 85 words, 425 views   English (US)
Categories: General

ABAJ: Innocent people face loss of their homes because of drug charges against family members

Permalink 07:30:51 am, by fourth, 1001 words, 538 views   English (US)
Categories: General

D.Vt.: Bona fide emergency pinging of defendant’s cell phone to find him was lawful

Bona fide emergency pinging of defendant’s cell phone to find him did not violate the Stored Communications Act or the Fourth Amendment. United States v. Caraballo, 963 F. Supp. 2d 341 (D. Vt. 2013):

=> Read more!

Permalink 06:59:46 am, by fourth, 175 words, 230 views   English (US)
Categories: General

E.D. Tenn.: A search warrant for files in a white collar case permitted a search of a desk

A search warrant for files in a white collar case permitted a search of a desk. United States v. Morgan, 2013 U.S. Dist. LEXIS 112480 (E.D. Tenn. August 9, 2013), R&R 2013 U.S. Dist. LEXIS 113402 (E.D. Tenn. June 24, 2013).

Defendant’s wife had standing to consent to a complete search of defendant’s vehicle and a duffle bag in the back seat. He was 100' away by his own volition, and the police weren’t circumventing him as a source of consent. United States v. Scott, 2013 U.S. Dist. LEXIS 111790 (E.D. Tenn. August 8, 2013), R&R 2013 U.S. Dist. LEXIS 112648 (E.D. Tenn. July 9, 2013).

A person driving a car with permission of the owner has standing to challenge its search. Officers were justified in a frisk in a high crime area where people were seen carrying guns in the past, and defendant’s conduct was such that was effectively resisting contact with officers and a frisk, heightening their fear he might be armed. United States v. Ray, 2013 U.S. Dist. LEXIS 111852 (D. Neb. July 15, 2013).*

08/11/13

Permalink 03:10:21 pm, by fourth, 44 words, 546 views   English (US)
Categories: General

CNET: FBI pressures Internet providers to install surveillance software

Permalink 03:06:37 pm, by fourth, 195 words, 441 views   English (US)
Categories: General

Salon.com: The NSA-DEA police state tango

Salon.com: The NSA-DEA police state tango | This week's DEA bombshell shows us how the drug war and the terror war have poisoned our justice system by Andrew O'Hehir:

=> Read more!

Permalink 02:17:43 pm, by fourth, 52 words, 304 views   English (US)
Categories: General

WaPo: In New York, stop, frisk and think

WaPo: In New York, stop, frisk and think by Editorial Board:

PERHAPS THE most puzzling aspect of New York Mayor Michael Bloomberg’s staunch opposition to any criticism of the New York Police Department’s (NYPD) controversial “stop and frisk” policy is the flippancy with which he dismisses concerns over racial profiling.

Permalink 07:37:45 am, by fourth, 162 words, 542 views   English (US)
Categories: General

WaPo: Lawmakers say obstacles limited oversight of NSA’s telephone surveillance program

08/10/13

Permalink 05:24:41 pm, by fourth, 33 words, 399 views   English (US)
Categories: General

New Yorker: Taken; a look at civil forfeiture

New Yorker: Taken by Sarah Stillman:

Under civil forfeiture, Americans who haven’t been charged with wrongdoing can be stripped of their cash, cars, and even homes. Is that all we’re losing?

Permalink 05:20:59 pm, by fourth, 208 words, 444 views   English (US)
Categories: General

New Yorker: SWAT-Team Nation

New Yorker: SWAT-Team Nation by Sarah Stillman:

=> Read more!

Permalink 09:27:47 am, by fourth, 213 words, 466 views   English (US)
Categories: General

E.D.Mich.: Govt's four grounds to sustain car search all rejected

Defendant was not under arrest, although handcuffed six feet behind his car, so a search incident was invalid under any theory. There was no PC for the automobile exception. There was no justification for a protective sweep for weapons. Opening the car door for the drug dog was an invalid search. United States v. Mitchell, 2013 U.S. Dist. LEXIS 111535 (E.D. Mich. August 8, 2013):

=> Read more!

Permalink 09:24:14 am, by fourth, 117 words, 445 views   English (US)
Categories: General

NC: Burglar alarm report is an exigent circumstance for a warrantless police entry

Burglar alarm report is an exigent circumstance for a warrantless police entry. State v. Miller, 2013 N.C. App. LEXIS 835 (August 6, 2013). [It still amazes me that people have dope in their house and a burglar alarm. What do they expect and want the alarm company to do with the report? I've represented two.]

Defendant had no standing to contest the stop [wrong!] and search of the vehicle he was a mere passenger in. He also did not have standing in the bags searched in the trunk because he never claimed them. Granted, if he did, he’d have an argument, but he never voiced any ownership or control over them. United States v. Shabazz, 533 Fed. Appx. 158 (3d Cir. 2013).*

Permalink 07:03:03 am, by fourth, 116 words, 633 views   English (US)
Categories: General

For What It's Worth Dept.: DEA agent admitted on stand in E.D. Ark. detention hearing getting NSA intel on defendant

In the For What It's Worth Dept., yesterday afternoon, a DEA agent admitted on stand in a detention hearing in the Eastern District of Arkansas getting NSA intel on the defendant for opening the investigation. He was asked for the information by defense counsel, and he refused, saying it was up to the AUSA. Whether the court was asked to order it, I don't know.

This is from defense counsel handling the hearing who told me. Coincidentally, on Friday I hand delivered to the Chief Judge of this district a letter requesting the standing discovery order covering NSA intel. No answer, of course.

So, when the Government tells us they're not spying on Americans, they're lying.

08/09/13

Permalink 04:49:44 pm, by fourth, 65 words, 548 views   English (US)
Categories: General

WaPo: Obama announces proposals to reform NSA surveillance

WaPo: Obama announces proposals to reform NSA surveillance by Scott Wilson and Zachary A. Goldfarb:

=> Read more!

Permalink 02:01:06 pm, by fourth, 62 words, 451 views   English (US)
Categories: General

MotherJones: Defense Attorneys Plan to Fight NSA Evidence in Drug Cases

Permalink 01:32:30 pm, by fourth, 56 words, 456 views   English (US)
Categories: General

NYDN: Texas state troopers caught on camera probing women's privates aren't isolated incidents

Permalink 08:27:40 am, by fourth, 455 words, 545 views   English (US)
Categories: General

CA5: 1983 claim police used plaintiff as sexual bait to arrest a police officer and failure to protect fails on qualified immunity

Plaintiff’s 1983 claim of the police using her as sexual bait to arrest a police officer and failure to protect fails on qualified immunity. Whitley v. Hanna, 726 F.3d 631 (5th Cir. 2013)*:

=> Read more!

Permalink 08:12:32 am, by fourth, 160 words, 261 views   English (US)
Categories: General

D.Neb.: A reasonable but even mistaken belief may still justify a frisk

Defendant who was loaned a car and had the keys in his pocket had standing to challenge its search. Officers were reasonable in perceiving him as a possible threat of having a weapon on him when they frisked him, despite protestations of others that he was not a threat, even if they were reasonably mistaken in that assessment. United States v. Ray, 2013 U.S. Dist. LEXIS 111852 (D. Neb. July 15, 2013).*

Defendant's stop was reasonable for touching the fog line and changing lanes without signaling, and claims of pretext fail. During the stop, the small talk led to reasonable suspicion for further detention and finally consent was granted. United States v. Santillian, 2013 U.S. Dist. LEXIS 111376 (S.D. N.Y. August 6, 2013).*

Defendant’s wife had apparent authority to consent to a search of a duffle bag in the back of their car. Nothing indicated that it was his or hers. United States v. Scott, 2013 U.S. Dist. LEXIS 111790 (E.D. Tenn. August 8, 2013).*

Permalink 07:59:46 am, by fourth, 258 words, 238 views   English (US)
Categories: General

M.D.Fla.: CP warrant that also included looking at papers in house was not overbroad

DHS officers trolling the internet for peer-to-peer file sharing discovered that a computer with a particular IP address had 418 likely child pornography files on it, and they narrowed it down and got a search warrant. The particularity clause of the warrant was limited strictly to looking for child pornography and it was not inappropriate to seize hardware, too. “The warrant was not unconstitutionally overbroad because non-contraband items contained within the computer (such as bank statements, professional records, personal photographs and music) were also subject to seizure. Again, federal courts have consistently recognized that computer searches pose unique challenges that may result in ‘some innocuous documents [being] examined, at least cursorily in order to determine whether they are, in fact, among those papers authorized to be seized.’ Andresen v. Maryland, 427 U.S. 463, 482 n.11, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976).” United States v. Conrad, 2013 U.S. Dist. LEXIS 111176 (M.D. Fla. May 14, 2013).

“With respect to his motion concerning the search warrant, defendant Young failed to support his motion with a personal affidavit setting forth facts and/or circumstances that would warrant the granting of the motion. Since the defendant has failed to ‘create a dispute over any material fact,’ there is no requirement that the Court hold a hearing on his motion to suppress. Furthermore, the government's uncontradicted response, refutes the defendant's claim for suppression of evidence. Therefore, it is recommended that defendant's motion to suppress be denied.” United States v. Young, 2013 U.S. Dist. LEXIS 110661 (W.D. N.Y. January 23, 2013),* adopted 2013 U.S. Dist. LEXIS 110357 (W.D.N.Y., Aug. 5, 2013).*

Permalink 07:24:44 am, by fourth, 139 words, 278 views   English (US)
Categories: General

D.Me.: RS defendant was using computer in violation of terms of release authorized its seizure

PO had reasonable suspicion that defendant was using a computer in violation of his terms of release. He was the only person in the place, and the computer was on and a lit cigarette was in an ashtray next to it. The seizure of the computer was reasonable under the terms of release. United States v. Majeroni, 2013 U.S. Dist. LEXIS 111338 (D. Me. May 31, 2013).*

Defendant had no valid DL, so the officer gave him the option of calling somebody to get the car or have it towed. He chose to call somebody, and that was the reason the stop was extended, and it was completely legitimate. United States v. Lyvers, 2013 U.S. Dist. LEXIS 111061 (E.D. Ky. August 7, 2013).*

The totality of information provided reasonable suspicion of alien smuggling. United States v. Gonzalez-Saucedo, 2013 U.S. Dist. LEXIS 111302 (D. Ariz. July 4, 2013).*

Permalink 06:52:39 am, by fourth, 229 words, 382 views   English (US)
Categories: General

M.D.Ga.: Address and GPS coordinates particular enough for SW

“The address and GPS coordinates alone would prevent another premise from being mistakenly searched. Moreover, the knowledge of the executing officer can be considered in determining the sufficiency of the description. See United States v. Sturmoski, 971 F.2d 452, 458 (10th Cir. 1992); see also United States v. Musson, 650 F.Supp. 525, 538 (D. Colo. 1986). As the affiant was also the executing officer, his knowledge of the property would have enabled the officers to locate the premises to be searched. Under these circumstances, the Court finds no descriptive defect in the search warrant.” The warrant was a state warrant, so it’s not subject to Rule 41. United States v. Fowler, 2013 U.S. Dist. LEXIS 110922 (M.D. Ga. August 7, 2013). [Seriously: GPS coordinates aren't good enough to find a particular place?]

Defendant was stopped for unsafe driving, and reasonable suspicion developed primarily because they were driving from Boston to Cincinnati and back without staying over and air freshener in the back of the van. That and the lengthy computer check justified a 24 minute detention for the drug dog to complete his trip around the vehicle. State v. Thomas, 2013 Ohio 3411, 2013 Ohio App. LEXIS 3501 (August 2, 2013).*

A closed bin with an ill fitting lid was found in a woman’s closet in the place defendant was staying it. She had apparent authority to consent to its search. United States v. Mujahid, 2013 U.S. Dist. LEXIS 110237 (N.D. Ill. August 6, 2013).*

Permalink 06:11:16 am, by fourth, 229 words, 409 views   English (US)
Categories: General

MA: No interlocutory appeal for defendant who said he'd resist taking DNA swab by force

Defendants were ordered to provide DNA by buccal swabs and sought interlocutory review. Defense counsel said that they would resist by force. The court said that it would deal with that issue if it arises, but an erroneous taking of DNA is remediable by appeal. Citing Maryland v. King, it’s not that great an intrusion. Commonwealth v. Bertini, 466 Mass. 131, 993 N.E.2d 654 (2013):

=> Read more!

08/08/13

Permalink 03:17:38 pm, by fourth, 106 words, 474 views   English (US)
Categories: General

NYLJ: NYPD Agrees to Purge Stop-Frisk Databank

Permalink 01:53:39 pm, by fourth, 12 words, 357 views   English (US)
Categories: General

ACLU: You are being tracked; a report on license plate readers

ACLU: You are being tracked; a report on license plate readers (pdf)

Permalink 11:41:29 am, by fourth, 191 words, 459 views   English (US)
Categories: General

Reuters: Exclusive: IRS manual detailed DEA's use of hidden intel evidence

Reuters: Exclusive: IRS manual detailed DEA's use of hidden intel evidence by John Shiffman and David Ingram (note: They are directed to omit the information from SW applications):

=> Read more!

Permalink 11:37:08 am, by fourth, 114 words, 456 views   English (US)
Categories: General

HuffPo: One In 25 Americans Was Arrested In 2011

Permalink 09:04:59 am, by fourth, 112 words, 507 views   English (US)
Categories: General

NYT: N.S.A. Searches Said to Include Broader Sifting of Americans’ Data

Permalink 07:06:45 am, by fourth, 167 words, 697 views   English (US)
Categories: General

CA4: Detention on a civil immigration warrant violated the Fourth Amendment, but qualified immunity applies

Detention on a civil immigration warrant violated the Fourth Amendment, but the defendants get 1983 qualified immunity. Santos v. Frederick County Bd. of Comm'rs, 725 F.3d 451 (4th Cir. 2013):

=> Read more!

Permalink 06:59:37 am, by fourth, 143 words, 459 views   English (US)
Categories: General

IN: Mistake of law on taillight function voids stop

A small hole in the taillight that doesn’t really emit much white light is not a violation of the taillight statute, so defendant’s stop was without legal authority. Kroft v. State, 992 N.E.2d 818 (Ind. App. 2013)*:

=> Read more!

Permalink 06:36:41 am, by fourth, 724 words, 434 views   English (US)
Categories: General

IL: Entry to make alleged arrest was without PC or exigency and suppressed

The officers were acting on the complaint of an alderman, and they had no probable cause that an offense occurred when they barged into defendant’s home with a person in tow who stayed there some. They didn’t ask for consent, and they were wearing masks and no markings on their clothing. The entry was without consent or probable cause, and is suppressed. At best, they were acting on some hunch, and they don’t even attempt to support the entry on appeal except by consent, which was rejected by the trial court. People v. Dawn, 2013 IL App (2d) 120025, 992 N.E.2d 1277 (2013):

=> Read more!

Permalink 06:16:29 am, by fourth, 221 words, 388 views   English (US)
Categories: General

N.D.Ind.: Failure to swear officer getting warrant doesn't matter where the affidavit says it's under oath

The issuing judicial officer did not put the affiant under oath when talking to him, but the affidavit presented to the magistrate said it was under oath, and that’s good enough for the “oath or affirmation requirement.” Besides, the GFE would suffice. United States v. Dedeaux, 2013 U.S. Dist. LEXIS 110307 (N.D. Ind. August 6, 2013):

=> Read more!

Permalink 06:10:23 am, by fourth, 334 words, 258 views   English (US)
Categories: General

N.D.Okla.: Defendant was free to go but he stayed to keep talking and consented

The stop of defendant’s tractor trailer was valid, and it ended with the officer saying “That’s it! Take care!” but he called out to the defendant and engaged him in conversation which turned into a valid consent for continued detention. On the video, defendant consents repeatedly. United States v. Fouse, 2013 U.S. Dist. LEXIS 110317 (N.D. Okla. August 6, 2013).* [I never could buy into this “consensual continued detention” stuff. When a cop is talking to you, you’re not free to leave because, at least in this state, you'd be arrested for either fleeing or failing to obey a lawful order of the police. The cops know it, and the judges know it, and they let the cops get away with it. Period. End of discussion. This is pure judicial cognitive dissonance legalizing fiction and total deference to the police as the purported guardians of our freedom on the highway.]

The record supports the USMJ conclusion of consent from the driver. United States v. Araiza-Carrillo, 2013 U.S. Dist. LEXIS 110552 (W.D. Ark. August 6, 2013),* R&R 2013 U.S. Dist. LEXIS 110561 (W.D. Ark. July 17, 2013).*

2255 petition already denied on Fourth Amendment claim, and petitioner’s attempt to recast them as an actual innocence claim fails. United States v. Martinez, 2013 U.S. Dist. LEXIS 109778 (D. Minn. August 5, 2013).*

2255 petition’s Fourth Amendment claim barred because it was raised on direct appeal. United States v. Opiyo, 2013 U.S. Dist. LEXIS 110026 (N.D. Tex. August 5, 2013).*

Officers lacked reasonable suspicion for defendant’s stop for (1) impeding traffic by opening his door when there was no traffic to impede, and (2) parking too close to a stop sign when the driver and passenger merely exchanged seats. The motion to suppress the stop is granted. United States v. Hutton, 2013 U.S. Dist. LEXIS 109779 (M.D. Tenn. August 2, 2013).*

Defendant’s admission he was a felon with a gun in the car was probable cause for a search of the car. United States v. Gardner, 2013 U.S. Dist. LEXIS 110467 (E.D. N.C. August 1, 2013).*

08/07/13

Permalink 01:04:31 pm, by fourth, 87 words, 429 views   English (US)
Categories: General

GisMag.com: FAA clears drones for civilian use

GisMag.com: FAA clears drones for civilian use by David Szondy:

=> Read more!

Permalink 12:58:54 pm, by fourth, 61 words, 407 views   English (US)
Categories: General

Reuters: U.S. to review DEA unit that hides use of intel in crime cases

Permalink 10:28:35 am, by fourth, 966 words, 528 views   English (US)
Categories: General

CA9: State search warrant after a federal SW was completely conclusory and no GFE

A state search warrant issued after a federal warrant was conclusory and failed to show probable cause. The federal warrant was supported by a 102 page affidavit. [The state warrant worked from the assumption they could show PC without having to, apparently.] It is so deficient, the good faith exception cannot be applied. United States v. Underwood, 725 F.3d 1076 (9th Cir. 2013):

=> Read more!

Permalink 09:12:08 am, by fourth, 175 words, 230 views   English (US)
Categories: General

VT: Smell of MJ outside house doesn't require police to assume occupant has an MMJ card

Following Massachusetts cases, the smell of marijuana outside a house can still be PC for a warrant because the police are not required to assume the occupant has an affirmative defense of a medical marijuana permit. State v. Senna, 2013 VT 67, 2013 Vt. LEXIS 62 (August 2, 2013).

Defendant was taken to the police barracks for a strip search, and it was not consensual. The basis for the detention was unverified and vague information from an informant that did not add up to probable cause. The officer told defendant to come or he’d be handcuffed and a warrant would be obtained, but there wasn’t enough for one to issue. State v. Betts, 2013 VT 53, 75 A.3d 629 (2013).

Three cell phones were seized incident to arrest. It took the government three months to get a search warrant for the phones. The District Court erred in granting suppression for lack of reasonableness in the delay, and the case is remanded for consideration of the circumstances per United States v. Laist, 702 F.3d 608 (11th Cir. 2012). United States v. Shaw, 531 Fed. Appx. 946 (11th Cir. 2013).*

08/06/13

Permalink 04:40:43 pm, by fourth, 140 words, 462 views   English (US)
Categories: General

TakePart.com: Wikipedia Vows to Protect Readers From Government Snooping

Permalink 12:19:45 pm, by fourth, 140 words, 535 views   English (US)
Categories: General

WaPo: The NSA is giving your phone records to the DEA. And the DEA is covering it up

Permalink 12:12:36 pm, by fourth, 97 words, 467 views   English (US)
Categories: General

NYT: T.S.A. Expands Duties Beyond Airport Security

Permalink 09:05:04 am, by fourth, 117 words, 238 views   English (US)
Categories: General

D.Mont.: Gant permits a SI for DUI

A BIA officer called for assistance from Wyoming State Police in stopping a truck that was driving erratically. Defendant was stopped for DUI and arrested. A search incident was valid for DUI under Gant. United States v. Ames, 2013 U.S. Dist. LEXIS 109425 (D. Mont. August 5, 2013).

Defense counsel was not ineffective for not arguing Gant before it was decided. The post-Gant search law makes the search valid. Johnson v. United States, 2013 U.S. Dist. LEXIS 109223 (D. Md. August 2, 2013).*

Defense counsel acted reasonably in concluding that defendant consented to the search of his car. While defendant couldn’t be heard on the video, the totality showed consent. Tobbie v. United States, 2013 U.S. Dist. LEXIS 109670 (M.D. Ga. April 29, 2013).*

Permalink 08:47:17 am, by fourth, 425 words, 490 views   English (US)
Categories: General

M.D.Ala.: Narcs' blown cover here justified warrantless entry

Officers has exigent circumstances for a warrantless entry into defendant’s trailer. He as a suspected methamphetamine dealer, and they’d been tailing him for hours. At this trailer, they reasonably feared, based on what people were doing, that their cover was blown. United States v. Cruz-Romero, 2013 U.S. Dist. LEXIS 109432 (M.D. Ala. August 5, 2013):

=> Read more!

Permalink 08:05:13 am, by fourth, 120 words, 504 views   English (US)
Categories: General

Infowars: Fourth Amendment Dead in Los Angeles

Remember the July 4 DUI checkpoint in Tennessee with the cops utterly ignorant of the Constitution?

Here's another from Infowars: Fourth Amendment Dead in Los Angeles by Kurt Nimmo:

=> Read more!

Permalink 07:38:43 am, by fourth, 221 words, 494 views   English (US)
Categories: General

New Yorker blog: Why Your Cell Phone’s Location Isn’t Protected by the Fourth Amendment

08/05/13

Permalink 03:54:11 pm, by fourth, 53 words, 419 views   English (US)
Categories: General

NPR: Senate Democrats Propose FISA Court Reform:

NPR: Senate Democrats Propose FISA Court Reform:

New legislation would reform the FISA court, the secret court that rules on whether the government can pursue certain surveillance activities — including the NSA spying programs that have caused recent controversy. Host Rachel Martin speaks with Senator Tom Udall of New Mexico, who co-sponsored the bill.

Permalink 08:58:21 am, by fourth, 59 words, 451 views   English (US)
Categories: General

Reuters: Exclusive: U.S. directs agents to cover up program used to investigate Americans

Permalink 06:59:39 am, by fourth, 858 words, 859 views   English (US)
Categories: General

CA7: Warrant clause of 4A has no extraterritorial application

The Fourth Amendment warrant clause has no extraterritorial application; reasonableness does. Defendant was a teacher in Miami-Dade, and he was charged with sex offenses against young male students. He somehow moved to Thailand within a month, and he resumed sexual conduct there as a teacher. Thai authorities became interested in him, too. They executed a search warrant and recovered 6000 images on his computer, yet he wasn’t arrested for another three years. Then, the U.S. sought to extradite him for interstate or international travel for sex with children, which took another year. The warrant clause of the Fourth Amendment did not apply to the search of the computers in Thailand. ICE, however, was involved, so the reasonableness requirement of the Fourth Amendment applies, and this search was reasonable. United States v. Stokes, 726 F.3d 880 (7th Cir. 2013):

=> Read more!

Permalink 06:44:07 am, by fourth, 178 words, 255 views   English (US)
Categories: General

OH2: Consent issue was proper for no-merit brief

Defense counsel properly filed an Anders no-merit brief on an appeal of a consent issue. State v. Curbow, 2013 Ohio 3378, 2013 Ohio App. LEXIS 3455 (2d Dist. August 2, 2013).*

An officer had a car pull up next to him and tell him about a woman doing hand-to-hand drug sales he regularly complained about but the person was gone when the police arrived, and she was selling right then. She was described, and the officer drove the 1½ block there and saw her. Her stop was with reasonable suspicion based on the detailed information that panned out. While the officer didn’t wait around to get contact information on his citizen informant, that person should have reasoned that the officer would recognize him later or got his license number if he was lying. State v. Hinton, 2013 Ohio 3381, 2013 Ohio App. LEXIS 3459 (2d Dist. August 2, 2013).*

“Certainly, the facts in the affidavit as to Heath Kellogg and this residence are not overwhelming,” but they do show probable cause to believe he was involved in counterfeiting. United States v. Heath, 2013 U.S. Dist. LEXIS 109190 (N.D. Ga. June 14, 2013).*

Permalink 06:38:37 am, by fourth, 300 words, 514 views   English (US)
Categories: General

KS: No PC for warrant so no good faith exception

The search warrant application was devoid of probable cause, and the officer applying for it had to know it. The motion to suppress should have been granted and the good faith exception has no application. State v. Althaus, 49 Kan. App. 2d 210, 305 P.3d 716 (2013):

=> Read more!

Permalink 06:22:23 am, by fourth, 165 words, 237 views   English (US)
Categories: General

D.Kan.: Wiretap provided RS for stop

Defendant’s stop was valid based on reasonable suspicion from a wiretap. The question to defendant during a patdown whether there was anything on him that the officer should know about was valid under Miranda’s public safety exception. He was asking about weapons, and defendant admitted to cocaine. United States v. Gilchrist, 2013 U.S. Dist. LEXIS 108409 (D. Kan. August 1, 2013).*

2255 petitioner’s Terry claim was barred by his not filing a motion to suppress and then appealing it. [It was not raised as an IAC claim.] Alvardo v. United States, 2013 U.S. Dist. LEXIS 108152 (M.D. Fla. August 1, 2013).*

The independent source rule supports this search because the warrant application was already done when the entry occurred, and the warrant would have been granted. United States v. Munteanu, 2013 U.S. Dist. LEXIS 108670 (E.D. N.Y. August 1, 2013).*

2255 petitioner’s Fourth Amendment argument, even if validly presented, would not have prevailed nor changed the outcome. United States v. Richardson, 2013 U.S. Dist. LEXIS 109101 (E.D. Va. August 2, 2013).*

Permalink 05:54:09 am, by fourth, 134 words, 268 views   English (US)
Categories: General

D.Kan.: One who denies ownership of cell phone can't complain it was tracked

Defendant who actively disclaimed possession or ownership of a cell phone could not complain about its tracking. United States v. Barron, 2013 U.S. Dist. LEXIS 108410 (D. Kan. August 1, 2013).

Defendant was not the subscriber of the cell phone he was using, so he had no reasonable expectation of privacy in the historical cell site data and call records. State v. Griffin, 834 N.W.2d 688 (Minn. 2013).

Plaintiff’s failure to object to the Magistrate’s R&R was waiver of his right to appeal SJ in his 1983 case. Battle v. Baalaer, 536 Fed. Appx. 725 (9th Cir. 2013).*

The search of this vehicle was justified by consent or the automobile exception, based on the fact a bag of cocaine was in plain view on the floor. United States v. Sanchez, 2013 U.S. Dist. LEXIS 108394 (W.D. Tex. August 2, 2013).*

08/04/13

Permalink 03:08:44 pm, by fourth, 532 words, 1679 views   English (US)
Categories: General

IN: Defendant ticketed for expired tag couldn't have backpack searched when he was released

Defendant was ticketed for an expired tag on his car. He’d been handcuffed and his backpack was in the police car. He was unhandcuffed and was free to go, but not until the backpack was searched for weapons for officer safety. The car was inventoried, but nothing criminal was found. The backpack had a little marijuana and paraphernalia in it. The officer smelled marijuana on the defendant. There was no indication of a weapon or cause for the search other than “procedure,” and that’s not enough. Miller v. State, 991 N.E.2d 1025 (Ind. App. 2013):

=> Read more!

Permalink 10:04:08 am, by fourth, 176 words, 286 views   English (US)
Categories: General

E.D.La.: No standing shown in neighbor’s backyard

Defendant showed no standing in his neighbor’s backyard. United States v. Casby, 2013 U.S. Dist. LEXIS 108266 (E.D. La. August 1, 2013).*

Defense counsel was not ineffective for not moving to dismiss his state indictment for lack of probable cause where there was probable cause. United States v. Waters, 2013 U.S. Dist. LEXIS 107771 (E.D. Pa. July 31, 2013).*

Defendant’s traffic stop for a defective headlight in daylight, a “gloomy day,” was valid under Michigan law. United States v. Dent, 2013 U.S. Dist. LEXIS 108379 (E.D. Mich. August 2, 2013).*

A night employee of Wal-Mart found a cell phone in a shopping cart, and she turned it on to try to ascertain the owner. Looking through pictures she found apparent child pornography. She took the phone to the police and showed them. They took the phone and got a search warrant based on what they were shown. It was all reasonable as coming from the private search. United States v. Johnson, 2013 U.S. Dist. LEXIS 108850 (M.D. Fla. August 2, 2013),* R&R 2013 U.S. Dist. LEXIS 108849 (M.D. Fla. February 8, 2013).

Permalink 08:51:21 am, by fourth, 153 words, 287 views   English (US)
Categories: General

S.D.Ohio: PO had PC defendant was staying elsewhere to enter without warrant

Parole officers had probable cause to believe that defendant was living at an unauthorized address after staking it out and seeing her there. They took her inside, and the entry was valid under the Fourth Amendment as a parole search. United States v. Payne, 2013 U.S. Dist. LEXIS 108256 (S.D. Ohio August 1, 2013).

“Luedtke and Goodwin originally moved to suppress any evidence seized pursuant to a search warrant or warrantless search. However, Luedtke and Goodwin never identified any seized evidence, search warrants, or warrantless searches, nor did Luedtke or Goodwin submit any legal argument for suppression. The Court therefore recommends that the motions to suppress evidence be denied as moot.” United States v. Luedtke, 2013 U.S. Dist. LEXIS 107499 (D. Minn. June 5, 2013).*

The smell of burning marijuana coming from defendant’s car made it reasonable to slightly extend the stop and then ask for consent to search. Rogers v. State, 323 Ga. App. 647, 747 S.E.2d 213 (2013).*

Permalink 08:08:27 am, by fourth, 56 words, 463 views   English (US)
Categories: General

NYT: Other Agencies Clamor for Data N.S.A. Compiles

NYT: Other Agencies Clamor for Data N.S.A. Compiles by Eric Lichtblau and Michael S. Schmidt:

=> Read more!

08/03/13

Permalink 08:22:34 pm, by fourth, 451 words, 903 views   English (US)
Categories: General

TX3: Nervousness, eccentric dress, and refusal to consent is not reasonable suspicion

Nervousness, eccentric dress, and refusal to consent is not reasonable suspicion. Thompson v. State, 2013 Tex. App. LEXIS 9412 (Tex. App. – Austin July 31, 2013):

=> Read more!

Permalink 08:13:01 pm, by fourth, 175 words, 2386 views   English (US)
Categories: General

NYT: A Cheap Spying Tool With a High Creepy Factor

Permalink 11:19:25 am, by fourth, 286 words, 450 views   English (US)
Categories: General

OR: "I need to talk to the person that just ran in" led to consent

An officer had a tip of a DUI driving on a resort parking lot, and he saw the driver go into a condo. He went to the door and said "I need to talk to the person that just ran in." The entry was by consent. State v. Briggs, 257 Ore. App. 738, 307 P.3d 564 (2013):

=> Read more!

Permalink 10:55:46 am, by fourth, 366 words, 544 views   English (US)
Categories: General

CA2: NYPD could run DLs during DL checkpoint

A driver’s license checkpoint in the Bronx was reasonably conducted, and the NYPD did not violate any Fourth Amendment right by running the DL information through computers to see if the license was valid. A warrant showed for defendant, and he was arrested. United States v. Bernacet, 724 F.3d 269 (2d Cir. 2013):

=> Read more!

Permalink 10:01:55 am, by fourth, 176 words, 281 views   English (US)
Categories: General

D.Minn.: “The knowing use of a file-sharing program defeats any claim of a reasonable expectation of privacy in the files shared on that network.”

“The knowing use of a file-sharing program defeats any claim of a reasonable expectation of privacy in the files shared on that network.” United States v. Hoffman, 2013 U.S. Dist. LEXIS 108076 (D. Minn. August 1, 2013),* R&R 2013 U.S. Dist. LEXIS 108900 (D. Minn. June 27, 2013).*

The seizure of defendant’s Express Mail package implicated the Fourth Amendment, but it was reasonable. [This case is unnecessarily long and goes on for ten pages when it could have been done in two: Dog sniff in transit is no interference with package; sniff is PC for warrant; slight delay for warrant is de minimus. (It's a rookie judge.)] United States v. Hoyt, 2013 U.S. Dist. LEXIS 108135 (E.D. Ark. August 1, 2013).*

Defendant’s racial profiling claim, if that’s what it is, isn’t cognizable on habeas. Alvardo v. United States, 2013 U.S. Dist. LEXIS 108152 (M.D. Pa. August 1, 2013).*

To win on a Fourth Amendment IAC claim, the habeas petitioner has to show that he’d have prevailed, and here he can’t. Ray v. United States, 721 F.3d 758 (6th Cir. 2013).*

08/02/13

Permalink 04:52:52 pm, by fourth, 41 words, 425 views   English (US)
Categories: General

NYTimes: More Complaints Than Proposed Solutions at Trial Over Police Searches

NYTimes: More Complaints Than Proposed Solutions at Trial Over Police Searches by Joseph Goldstein:

The judge overseeing the trial examining the constitutionality of the New York Police Department's stop-and-frisk practices had a novel idea for how to reduce illegal police stops.

Permalink 08:49:31 am, by fourth, 398 words, 801 views   English (US)
Categories: General

CA6: Social workers governed by 4A; SW needed to remove children without exigent circumstances

Social workers were not entitled to absolute immunity in a 1983 case because when they removed children from their home, they were acting in a police capacity rather than as legal advocates. They were not entitled to qualified immunity because incidents that occurred weeks before the children were removed could not establish exigent circumstances. The law was clearly established that Fourth Amendment warrant requirements applied to the removal of children from their home by social workers, and no reasonable social worker could have concluded that the law permitted her to remove a child without notice or a pre-deprivation hearing where there was no emergency. Kovacic v. Cuyahoga County Dep't of Children & Family Servs., 724 F.3d 687 (6th Cir. 2013):

=> Read more!

Permalink 08:34:33 am, by fourth, 186 words, 323 views   English (US)
Categories: General

D.Neb.: Entry to allow the defendant to get dressed to go to the stationhouse is valid

Entry to allow the defendant to get dressed to go to the stationhouse is valid. Plain view sustained. United States v. Avalos, 2013 U.S. Dist. LEXIS 107467 (D. Neb. July 31, 2013), R&R 2013 U.S. Dist. LEXIS 107462 (D. Neb. June 26, 2013).

“McCune knocked on the trailer door and said, ‘Terry, it's the Sheriff's Department. Open the door.’ Sabo opened the door and stood in the doorway, physically blocking McCune's entry. McCune asked, ‘Terry, do you mind if I step inside and talk with you?’ Sabo said nothing. Instead, he stepped back and to the side and let the door open.” This was nonverbal consent. United States v. Sabo, 724 F.3d 891 (7th Cir. 2013).*

A “routine traffic checkpoint” [whatever that is] led to the officer smelling alcohol in defendant’s car and he wasn’t wearing a seatbelt. One thing led to another and drugs and cash were found, and it was supported by the automobile exception. A second search warrant for the car was valid, too. United States v. Stapleton, 2013 U.S. Dist. LEXIS 106667 (E.D. Ky. July 30, 2013), R&R 2013 U.S. Dist. LEXIS 107498 (E.D. Ky. May 8, 2013).*

Permalink 08:17:27 am, by fourth, 144 words, 248 views   English (US)
Categories: General

CA4: Admission of possession of a firearm was reason for frisk; RS also present

Defendant’s stop was based on following too close, and reasonable suspicion developed. “As the district court correctly observed, ‘reluctantly-given consent is not necessarily involuntarily-given consent.’ Indeed, pausing to think about whether to give consent suggests thoughtfulness, not coercion.” United States v. Brown, 536 Fed. Appx. 376 (4th Cir. 2013).

There was reasonable suspicion that defendant was armed for a frisk. Aside from reasonable suspicion, he admitted it. The frisk was reasonable United States v. Pagan, 2013 U.S. Dist. LEXIS 107092 (D. Conn. July 31, 2013).*

Search warrants for two email accounts were issued, and the court finds there were false statements in support and the officer “not to be a credible witness” who “was the most ill-prepared, unprofessional law enforcement witness this court has encountered.” However, excising the information still left probable cause, and the warrant is sustained. United States v. Barthelman, 2013 U.S. Dist. LEXIS 107123 (D. Kan. July 31, 2013).*

Permalink 07:54:55 am, by fourth, 200 words, 260 views   English (US)
Categories: General

OH5: “Yeah, why don't you get it out” of your pocket is a search

An officer was responding to a noise complaint approaching a party in a garage. As he approached a woman shouted out about the defendant getting a “fat joint” out of his pocket so they could smoke it. When the officer got to defendant he said “Yeah, why don't you get it out.” “We find Officer Garrison's statement is tantamount to an order or command; therefore, constitutes a Fourth Amendment search. We do not find this to be a consensual search under the totality of the circumstances. We further find there was insufficient probable cause to justify a search.” The approach was valid because it was the common way to the garage, so there was no violation of curtilage. State v. Mechling, 2013 Ohio 3327, 2013 Ohio App. LEXIS 3395 (5th Dist. July 29, 2013).

Using a leg sweep to take down a fighting man high on cocaine during his arrest was not excessive force. He was peppersprayed and three sets of handcuffs were required just on his hands. He broke flex ties when kicking. When he stopped breathing, paramedics were called. He died from a cocaine intoxication. Summary judgment was properly granted the officers in this 1983 case. Gunter v. Twp. of Lumberton, 535 Fed. Appx. 144 (3d Cir. 2013).*

Permalink 07:18:18 am, by fourth, 97 words, 243 views   English (US)
Categories: General

CA8: Mere error in SW date did not defeat PC or void search

Incorrect date on the search warrant was mere technicality that did not defeat probable cause or void search. It was actually issued before the search. United States v. Smith, 12-2948 (8th Cir. August 1, 2013).

Defendant denied ownership of a duffle bag that police picked up, so he abandoned it. United States v. Hammond, 2013 U.S. Dist. LEXIS 106201 (E.D. Tenn. June 19, 2013).*

Defendant’s “wife had actual and/or apparent authority to consent to a search of the laptop computer” because it was a joint purchase and they both used it. State v. Newman, 21 Neb. App. 29, 838 N.W.2d 317 (2013).*

Permalink 06:57:50 am, by fourth, 670 words, 496 views   English (US)
Categories: General

S.D.Ala.: Defendant closed door on arresting officers, got dressed, and surrendered; protective sweep unjustified

USMS showed up at defendant’s house to arrest him. He came to the door in his underwear, and there was a locked security door between him and the officers. He said he’d unlock the door, and he closed the inside door. They heard sounds inside. The officers essentially panicked that he was arming himself, and they were preparing to pry the security door off when he opened it, unlocked it, and came out and surrendered. The protective sweep under Buie was unjustified because there was no reasonable belief anybody else was inside. Otherwise, Buie would justify an entry in every case. United States v. Simmons, 2013 U.S. Dist. LEXIS 106328 (S.D. Ala. July 30, 2013):

=> Read more!

08/01/13

Permalink 01:27:11 pm, by fourth, 64 words, 426 views   English (US)
Categories: General

The Hill: Obama, lawmakers to huddle on NSA spying

Permalink 01:19:14 pm, by fourth, 229 words, 491 views   English (US)
Categories: General

NYT: Senate Panel Presses N.S.A. on Phone Logs & Declassified N.S.A. Documents on Data Collection

NYT: Senate Panel Presses N.S.A. on Phone Logs by Charlie Savage and David E. Sanger:

=> Read more!

Permalink 11:42:00 am, by fourth, 536 words, 649 views   English (US)
Categories: General

CA2: Egregious Fourth Amendment violation shown for invoking exclusionary rule in deportation proceeding

The appellants in this deportation proceeding were non-citizens here allegedly illegally, and DHS made an early morning warrantless raid of their house in Riverhead, NY. They made a prima facie case of an egregious Fourth Amendment violation enough to invoke the exclusionary rule in a deportation case, and the government elected not to counter it, apparently thinking it didn’t matter. Remanded to the BIA for further proceedings. Cotzojay v. Holder, 725 F.3d 172 (2d Cir. 2013) [Admit it: how often has the non-citizen prevailed in these things? Haven't seen one before because courts always find them "not egregious enough."]:

=> Read more!

Permalink 11:03:51 am, by fourth, 279 words, 265 views   English (US)
Categories: General

D.Kan.: Court unconstitutionally shifts burden of proof to defendant to show no valid consent

A motion to suppress a warrantless search of a semi is denied with the court shifting the burden of proof to the defendant on consent. “On this record, defendant has not shown that the Court should suppress evidence seized as a result of the vehicle stop and search. See United States v. Moore, 22 F.3d 241, 243 (10th Cir. 1994) (proponent of motion to suppress bears burden of proof).” United States v. Vasquez, 2013 U.S. Dist. LEXIS 105615 (D. Kan. July 29, 2013).* [From Moore: “The proponent of a motion to suppress bears the burden of proof. Rakas v. Illinois, 439 U.S. 128, 130-31 n.1, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978); United States v. Carr, 939 F.2d 1442, 1446 (10th Cir. 1991).” Both of these cases say the defendant has the burden on standing, not the motion to suppress. This qualifies as the most obtuse decision of the summer. Burden of proof on motions to suppress are discussed in great detail in § 60.45 of the coming 5th ed. of the Treatise due out in mid-October. Also, FYI §§ 62.5-62.20 is a detailed look at standards of review for appeal.]

Officers had probable cause that defendant was involved in a series of armed robberies with others. When another one occurred with the same MO and description and the description of a car, the car was found a block from defendant’s house. Defendant’s actions and dress described by others were enough to arrest him for the robberies. United States v. Henderson, 2013 U.S. Dist. LEXIS 106390 (E.D. Wis. June 18, 2013).*

Summary judgment was properly granted in this 1983 case because the jailers’ use of force against the plaintiff was reasonable in response to his attacking the guard. Ellington v. Cortes, 532 Fed. Appx. 53 (3d Cir. 2013).*

Permalink 10:14:06 am, by fourth, 534 words, 2180 views   English (US)
Categories: General

AZ: How do the police distinguish between lawfully and unlawfully armed citizens?

Defendant was in a high crime and gang infested area, and the police encountered him. He was “polite and courteous” and doing nothing wrong. The officers noticed a bulge at his waistband, and they asked if he was armed. He admitted he was, and they told him to put his hands on his head, and he did. They relieved him of a gun in a holster. It turned out he was a felon. The search was reasonable under an Arizona statute that allowed officers to neutralize weapons for their own safety. State v. Serna, 666 Ariz. Adv. Rep. 17, 307 P.3d 82 (App. 2013):

=> Read more!

Permalink 10:01:49 am, by fourth, 445 words, 433 views   English (US)
Categories: General

D.Del.: "But for" knock-and-announce argument attempt to get around Hudson fails

Trying to get around Hudson v. Michigan, defendant argued a knock-and-announce violation was the “but for” cause of finding his gun in plain view, arguing that, if the police waited longer, he could have hidden it. The court didn’t buy it. [One has to credit counsel for trying. I thought of this argument, too, and I just knew it would never fly.] United States v. Davis, 2013 U.S. Dist. LEXIS 106295 (D. Del. July 30, 2013). Interesting opinion, but just a part of it:

=> Read more!

Permalink 08:57:46 am, by fourth, 787 words, 397 views   English (US)
Categories: General

CA3: Once validly arrested, your belongings are subject to search for officer safety

Defendant stopped because he was casing a check cashing store like he was going to rob it. He was separated from his backpack. Later in the backpack police found a gun and gloves. The search of the backpack could not be sustained under search incident because he couldn’t reach it. The government’s inventory rationale fails because the policy creates a “reverse-Catch 22” that it would be searched without probable cause but couldn’t be searched with probable cause. Instead, the court relies on the fact that police could search the backpack because he was in custody and going to the police station, and that was for officer safety. “In our view, when a valid arrest has been made in a public place, which requires that the arrested person be transported from the scene, police may search any luggage that the person has in his possession at the time of the arrest, and which must accompany him to the police station, prior to transporting it.” United States v. Matthews, 532 Fed. Appx. 211 (3d Cir. 2013):

=> Read more!

Permalink 08:02:45 am, by fourth, 132 words, 267 views   English (US)
Categories: General

N.D.Ala.: To have standing in search of a package, one must be sender or addressee

To have standing to challenge the search of a package, one must be either the sender or the addressee. Defendant was neither, so his lawyer was not ineffective for not challenging its search. Malone v. United States, 2013 U.S. Dist. LEXIS 106432 (N.D. Ala. July 12, 2013).

Consent was voluntary on the totality. “Given the lack of any coercive behavior on the part of the arresting agents and officers, the mere fact that the defendant was not informed of his right to refuse consent is insufficient to render his consent involuntary.” United States v. Hine, 2013 U.S. Dist. LEXIS 106056 (N.D. Ga. July 1, 2013).*

The information for the SW was not stale because there was an ongoing drug operation on defendant’s premises. United States v. Ross, 2013 U.S. Dist. LEXIS 105921 (S.D. Ohio July 29, 2013).*

Permalink 07:37:49 am, by fourth, 44 words, 246 views   English (US)
Categories: General

Reason.com: When Cops Don't Need a Warrant To Crash Through Your Door

Reason.com: When Cops Don't Need a Warrant To Crash Through Your Door by J.D. Tuccille

Exigent circumstances is a Rorschach test, too. "'Exigent circumstances' provide a multi-purpose end-run around the Fourth Amendment." Or, it can be whatever you want it to be.

FourthAmendment.com

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2013-14 Term:
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  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

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  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)

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  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)

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  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)

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  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
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  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
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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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