Archives for: September 2013, 29

09/29/13

Permalink 03:27:47 pm, by fourth, 130 words, 377 views   English (US)
Categories: General

NYT: Maureen Down: Creeping Cloud

NYT: Maureen Down: Creeping Cloud:

=> Read more!

Permalink 01:12:37 pm, by fourth, 141 words, 376 views   English (US)
Categories: General

Politico: Edward Snowden e-mail provider Lavabit faced 'pen register' order

Permalink 01:09:29 pm, by fourth, 54 words, 319 views   English (US)
Categories: General

WSJ: More DNA Samples, More Debate; Some Say Policy in Orange County, Calif., Is Coercive

Permalink 12:29:02 pm, by fourth, 117 words, 322 views   English (US)
Categories: General

NYT: N.S.A. Gathers Data on Social Connections of U.S. Citizens

Permalink 12:16:39 pm, by fourth, 98 words, 323 views   English (US)
Categories: General

eff.org: After NSA Court Hearing, Government Must Unseal Documents by December 20

Permalink 08:03:10 am, by fourth, 111 words, 241 views   English (US)
Categories: General

CA5: NOPD consent decree not set aside; insufficient changed circumstances

The district court did not abuse its discretion in not letting the City of New Orleans on behalf of the New Orleans Police Department out of a consent decree. One of the DOJ employees negotiating the consent decree was admittedly named in the opinion setting aside the convictions of the five NOPD officers involved in a Hurricane Katrina shooting for prosecutorial misconduct. The City can set aside the decree for changed circumstances, but the district court concluded there hadn’t been enough. United States v. City of New Orleans, 731 F.3d 434 (5th Cir. 2013).*

The opinion setting aside the convictions is far more interesting, if you have the time to read it.

Permalink 07:51:18 am, by fourth, 532 words, 435 views   English (US)
Categories: General

W.D.La.: Drug dog could be used on car stopped in owner's driveway

Defendant was stopped in his driveway and a drug dog was used. The driveway was not “curtilage” for the purposes of barring using a drug dog on the curtilage. United States v. Beene, 2013 U.S. Dist. LEXIS 139311 (W.D. La. September 24, 2013):

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Permalink 07:17:07 am, by fourth, 462 words, 454 views   English (US)
Categories: General

W.D.Tenn.: Cell phone couldn't be searched on a Terry stop

Defendant was stopped on reasonable suspicion he was running counter-surveillance for a drug deal. He was detained apparently solely so the contact list on his phone could be searched. A search of a cell phone cannot be based on reasonable suspicion. It would have been valid as a search incident if he’d been arrested on probable cuase. United States v. Stephens, 2013 U.S. Dist. LEXIS 138513 (W.D. Tenn. September 9, 2013):

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Permalink 07:09:10 am, by fourth, 296 words, 307 views   English (US)
Categories: General

M.D.La.: Non-citizen not shown to understand English enough to consent

Defendant didn’t understand enough English to consent to a search. The government carried the burden of consent and didn’t show it. The fact a non-citizen can operate in society doesn’t prove he understands the legal concept to consent to a search. United States v. Barry, 2013 U.S. Dist. LEXIS 137113 (M.D. La. September 25, 2013):

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Permalink 07:05:27 am, by fourth, 206 words, 172 views   English (US)
Categories: General

D.Nev.: No standing in items left in a carjacked SUV

Defendant had no standing or reasonable expectation of privacy in a stolen vehicle he took in a car jacking, and that includes a bag he carried to the car before the chase. United States v. Goldstein, 2012 U.S. Dist. LEXIS 189234 (D. Nev. October 26, 2012)*; United States v. Goldstein, 2013 U.S. Dist. LEXIS 137568 (D. Nev. September 25, 2013).*

The officer’s statement in support of the search warrant was false but not intentionally so. Even without it, there was probable cause for the search warrant so no suppression. United States v. Jimenez, 2013 U.S. Dist. LEXIS 136227 (D. Kan. September 24, 2013).*

Defendant’s vehicle had to be towed from the scene, and it was searched for inventory, validly finding a gun. United States v. Gibson, 2013 U.S. Dist. LEXIS 136692 (S.D. Ohio September 24, 2013).*

Defendant’s only argument on the search was asking the court to review whether there was PC for the warrant under the four corners of the affidavit. There was. United States v. Petruk, 2013 U.S. Dist. LEXIS 136622 (D. Minn. September 4, 2013).*

Defendant’s wife consented, and her revocation of consent came after firearms were found and seized, and revocation doesn’t stop seizure of that which was found. United States v. Assante, 2013 U.S. Dist. LEXIS 137357 (W.D. Ky. September 25, 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

~~~~~~~~~~~~~~~~~~~~~~~~~~

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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  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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