Archives for: August 2013, 05

08/05/13

Permalink 03:54:11 pm, by fourth, 53 words, 417 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, 449 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, 851 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, 251 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, 509 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, 232 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, 264 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).*

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

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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)


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  www.fd.org

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

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

  ACLU on privacy
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  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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