Archives for: August 2013, 08

08/08/13

Permalink 03:17:38 pm, by fourth, 106 words, 475 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, 461 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, 457 views   English (US)
Categories: General

HuffPo: One In 25 Americans Was Arrested In 2011

Permalink 09:04:59 am, by fourth, 112 words, 508 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, 698 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, 460 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, 435 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, 391 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, 259 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).*

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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

© 2003-14, online since Feb. 24, 2003

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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)


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  F.R.Crim.P. 41
  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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