Archives for: August 2013, 17

08/17/13

Permalink 12:40:41 pm, by fourth, 169 words, 654 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, 369 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, 469 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, 537 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, 494 views   English (US)
Categories: General

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

Permalink 08:26:59 am, by fourth, 80 words, 401 views   English (US)
Categories: General

NYT Editorial: GPS Tracking and Secret Policies

Permalink 08:16:38 am, by fourth, 157 words, 251 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, 491 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, 447 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).*

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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

HWC e
URL hits since 2010

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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)


Research Links:
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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
  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."
—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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