Archives for: August 2013, 21

08/21/13

Permalink 07:11:54 pm, by fourth, 168 words, 446 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, 550 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, 445 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):

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Permalink 07:16:27 am, by fourth, 72 words, 421 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, 291 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, 258 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, 707 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):

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Permalink 06:17:21 am, by fourth, 223 words, 389 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):

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Permalink 05:47:13 am, by fourth, 431 words, 428 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):

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Permalink 05:37:27 am, by fourth, 79 words, 480 views   English (US)
Categories: General

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

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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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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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  Findlaw.com
  Findlaw.com (4th Amd)
  Westlaw.com $
  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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