Archives for: August 2013, 01


Permalink 01:27:11 pm, by fourth, 64 words, 422 views   English (US)
Categories: General

The Hill: Obama, lawmakers to huddle on NSA spying

Permalink 01:19:14 pm, by fourth, 229 words, 487 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:

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Permalink 11:42:00 am, by fourth, 536 words, 646 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."]:

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Permalink 11:03:51 am, by fourth, 279 words, 262 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, 2176 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):

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Permalink 10:01:49 am, by fourth, 445 words, 429 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:

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Permalink 08:57:46 am, by fourth, 787 words, 393 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):

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Permalink 08:02:45 am, by fourth, 132 words, 266 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, 245 views   English (US)
Categories: General When Cops Don't Need a Warrant To Crash Through Your Door 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.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting

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Fourth Amendment cases,
citations, and links

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Most recent SCOTUS cases:
2009 to date:

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

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

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

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

2009-10 Term:

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

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

Research Links:
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  F.R.Crim.P. 41

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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