Archives for: October 2013

10/31/13

Permalink 08:53:52 pm, by fourth, 38 words, 406 views   English (US)
Categories: General

East Bay Express: Oakland Police Have Prioritized Drug Crimes Over Homicide

Permalink 08:52:27 pm, by fourth, 33 words, 236 views   English (US)
Categories: General

The Nation: The Scandal of Racist Marijuana Arrests-and What To Do About It

The Nation: The Scandal of Racist Marijuana Arrests-and What To Do About It:

The federal government has subsidized the criminalization of millions of young people simply for having a small amount of pot.

Permalink 08:48:51 pm, by fourth, 48 words, 354 views   English (US)
Categories: General

WaPo: ACLU says FBI program lacks safeguards for rights, privacy

Permalink 08:47:33 pm, by fourth, 55 words, 351 views   English (US)
Categories: General

NYT: N.S.A. Said to Tap Google and Yahoo Abroad

Permalink 08:45:27 pm, by fourth, 143 words, 285 views   English (US)
Categories: General

Grits for Breakfast: Are we on the verge of a Fourth Amendment revival?

Permalink 06:13:40 am, by fourth, 64 words, 387 views   English (US)
Categories: General

D.Minn.: Dog sniff in apartment building hallway valid

A dog sniff in a common hallway outside an apartment was valid, and it fully supported the search warrant. United States v. Mathews, 2013 U.S. Dist. LEXIS 154376 (D. Minn. September 10, 2013).

Officer safety justified telling defendant to get out of his truck. Officers had reasonable suspicion for the stop based on a CI’s information. State v. Durham, 2013-Ohio-4764, 2013 Ohio App. LEXIS 4969 (12th Dist. October 28, 2013).*

Permalink 06:11:38 am, by fourth, 312 words, 517 views   English (US)
Categories: General

WA: Inventory after DUI arrest of evidence of ID theft not true inventory and suppressed

Defendant was arrested for DUI from a pedestrian accident. A search of his car produced receipts used in an identity theft prosecution. Seizure of the receipts was not lawful either as inventory or through the independent source doctrine, which required pure speculation to be applied. State v. Green, 177 Wn. App. 332, 312 P.3d 669 (2013), prior appeal State v. Green, 162 Wn. App. 1069, 2011 Wash. App. LEXIS 1887 (2011):

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10/30/13

Permalink 06:51:07 pm, by fourth, 42 words, 206 views   English (US)
Categories: General

Site Scanned for Malware

I got an email about a week ago that some Federal Defenders encountered a "Malware" warning for this website. The company running the server ran virus software against it, and it should be clean. If you still get warnings, let me know.

Permalink 06:32:21 pm, by fourth, 67 words, 298 views   English (US)
Categories: General

NPR: Will GPS Cannon Spell The End Of High-Speed Chases?

Permalink 06:31:30 pm, by fourth, 48 words, 323 views   English (US)
Categories: General

NYT: New York Police Detective Is Accused of Perjury in drug testimony

Permalink 06:24:43 pm, by fourth, 95 words, 295 views   English (US)
Categories: General

BLT: On Capitol Hill, Intelligence Officials Defend Surveillance

Permalink 06:21:50 pm, by fourth, 129 words, 330 views   English (US)
Categories: General

NYLJ: Panel Challenges NYC on Delay in Seeking Stay in Stop/Frisk

Permalink 03:25:59 pm, by fourth, 315 words, 502 views   English (US)
Categories: General

D.Ariz.: Taking and publishing a mugshot after an arrest is reasonable under the Fourth Amendment

Taking and publishing a mugshot after an arrest is reasonable under the Fourth Amendment. Jamali v. Maricopa County, 2013 U.S. Dist. LEXIS 150956 (D. Ariz. October 21, 2013):

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Permalink 01:32:47 pm, by fourth, 480 words, 430 views   English (US)
Categories: General

D.P.R.: Search warrant for an entire building of 12 apartments was valid under good faith exception

Search warrant for an entire building of 12 apartments was valid under the good faith exception. There was probable cause for defendant’s apartment, but the police couldn’t be sure which it was. United States v. Montijo-Gonzalez, 2013 U.S. Dist. LEXIS 154603 (D. P.R. September 13, 2013):

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Permalink 01:27:26 pm, by fourth, 182 words, 515 views   English (US)
Categories: General

S.D.Tex.: GFE decided first because it may moot PC

Following the Fifth Circuit rule, good faith is determined before probable cause, and it may obviate deciding PC. United States v. Munoz, 2013 U.S. Dist. LEXIS 155011 (S.D. Tex. October 7, 2013)*:

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Permalink 10:28:16 am, by fourth, 79 words, 298 views   English (US)
Categories: General

CA10: Inventory can include the glove compartment

The car was being lawfully inventoried, so the glove compartment could be opened. United States v. Calvin, 543 Fed. Appx. 807 (10th Cir. 2013).*

Defendant was not in custody at an immigration checkpoint such that Miranda was required. Alternatively, it was harmless error. United States v. Salinas, 538 Fed. Appx. 574 (5th Cir. 2013).*

The protective sweep of defendant’s motel room was authorized by consent of a co-occupant and on the merits. United States v. Mobley, 2013 U.S. Dist. LEXIS 154602 (S.D. Ga. October 11, 2013).*

Permalink 10:23:49 am, by fourth, 483 words, 294 views   English (US)
Categories: General

S.D.Ind.: Jones applied to planting GPS on defendant's car before Jones; no Davis GFE because Circuit authority didn't fully authorize it

Because then-binding circuit authority did not broadly authorize planting GPS devices, defendant gets the benefit of Jones and the tracking is suppressed. No Davis good faith exception here. United States v. Taylor, 2013 U.S. Dist. LEXIS 155079 (S.D. Ind. October 29, 2013):

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Permalink 10:09:15 am, by fourth, 147 words, 368 views   English (US)
Categories: General

D.Nev.: Knock and talk at back door was unreasonable; observation of MJ suppressed

There were two entrances through defendant’s gate into his property: a front gate with a doorknob and a gate at the back with a latch on the inside at the top. It was not reasonable for the FBI Agent to enter the back gate for a knock and talk, and the observation of marijuana in the backyard was suppressed. United States v. Garretson, 2013 U.S. Dist. LEXIS 154247 (D. Nev. June 6, 2013):

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10/29/13

Permalink 11:13:27 pm, by fourth, 310 words, 556 views   English (US)
Categories: General

MD: Merely hanging out with a drug dealer is not reasonable suspicion for a stop, but here there was more

Merely hanging out with a drug dealer is not reasonable suspicion for a stop, but here there was more, and it indicated that defendant was a drug dealer too. Therefore, the stop was valid. Holt v. State, 435 Md. 443, 78 A.3d 415 (2013):

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Permalink 11:07:32 pm, by fourth, 177 words, 274 views   English (US)
Categories: General

S.D.W.Va.: Holding on to one's DL too long is not per se a "seizure"

Holding on to a driver’s license too long “while unsettling, did not convert the interaction between Defendant and the officer into a seizure. [It is a significant factor.] Under the totality of the circumstances, the interaction remained consensual,” and the motion to suppress is denied. United States v. Kincannon, 2013 U.S. Dist. LEXIS 154016 (S.D. W.Va. October 28, 2013).

“In relation to stops by border patrol, the totality of circumstances may include: (1) characteristics of the area; (2) proximity to the border; (3) usual patterns of traffic and time of day; (4) previous alien or drug smuggling in the area; (5) behavior of the driver, including obvious attempts to evade officers; (6) appearance or behavior of passengers; (7) model and appearance of the vehicle; and, (8) officer experience.” The totality showed reasonable suspicion.
United States v. Meinhardt, 2013 U.S. Dist. LEXIS 154251 (D. Ariz. September 13, 2013).*

The officer described the child pornography that the officers expected to find with sufficient particularity to satisfy the Dost standard (United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986)). United States v. Downsbrough, 2013 U.S. Dist. LEXIS 154331 (E.D. Tenn. September 12, 2013).*

Permalink 10:55:08 pm, by fourth, 143 words, 370 views   English (US)
Categories: General

S.D.N.Y.: Warrantless search of cell phone validated by SW issued after the search

Warrantless search of defendant’s cell phone was valid by inevitable discovery. While it was searched before officers got a search warrant, the fact they got a search warrant after the fact validates it. United States v. Borrero, 2013 U.S. Dist. LEXIS 154341 (S.D. N.Y. October 28, 2013):

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Permalink 06:11:49 pm, by fourth, 73 words, 318 views   English (US)
Categories: General

St. Louis Post-Dispatch: Jailed By Mistake: Wrongful arrests jail 100 people for over 2,000 days

St. Louis Post-Dispatch: Jailed By Mistake: Wrongful arrests jail 100 people for over 2,000 days:

The Post-Dispatch has identified 100 people arrested in error over the past seven years. Collectively, they spent more than 2,000 days in jail - an average of about three weeks each. One man alone was incarcerated 211 days. About a quarter were held repeatedly - one of them, five times - and 15 were locked up while the right suspect was already behind bars.

Permalink 06:10:09 pm, by fourth, 52 words, 186 views   English (US)
Categories: General

NPR: Who Has The Right To Know Where Your Phone Has Been?

NPR: Who Has The Right To Know Where Your Phone Has Been?

In many states, the use of that data has led to a movement to protect cellphone location information. One cellphone search, in particular, could serve as a test case for civil liberties groups challenging law enforcement's access to such information.

Permalink 06:08:48 pm, by fourth, 97 words, 247 views   English (US)
Categories: General

Grits for Breakfast: Strip searching in jail overkill for minor traffic violations

Grits for Breakfast: Strip searching in jail overkill for minor traffic violations:

Last year the US Supreme Court okayed jails strip searching defendants upon entry, even for minor offenses. CBS-11 out of Dallas reported last week on a case in Richland Hills where a driver was arrested by the city marshal for an unpaid ticket from August (rolling through a stop sign), during which she was forced to disrobe at the jail.

Imbedding GFB's link never works. It's http://gritsforbreakfast.blogspot.com/2013/10/strip-searching-in-jail-overkill-for.html?utm_source=feedblitz&utm_medium=FeedBlitzEmail&utm_content=79553&utm_campaign=0

Permalink 06:06:56 pm, by fourth, 122 words, 297 views   English (US)
Categories: General

Lawfare: Is the Supreme Court Likely to Rule on FISA Section 702?

10/28/13

Permalink 08:11:10 pm, by fourth, 152 words, 452 views   English (US)
Categories: General

HuffPo: An Occupy Activist's New Cause: Drug Raids And Police Abuse

HuffPo: An Occupy Activist's New Cause: Drug Raids And Police Abuse by Rodney Balko (part 4 of a 6 part series):

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Permalink 09:15:09 am, by fourth, 158 words, 292 views   English (US)
Categories: General

TN: 6 hr detention outside house to get SW not unreasonable

There was specific evidence for probable cause. Observations the police made driving onto defendant’s property were visible to anyone coming in, and they were not protected. Defendant’s detention outside the house for nearly six hours while the search warrant was prepared were reasonable under Summers. State v. Roberson, 2013 Tenn. Crim. App. LEXIS 927 (October 24, 2013).

There was probable cause to talk to defendant, so her consent was required, and her argument about revocation of consent is rejected. “[*P20] We agree that merely changing one's mind about talking to an officer, walking away, or acting in an ‘unusual’ fashion would not justify a Terry stop or patdown. However, under the circumstances presented, we agree with the trial court's conclusion that the officer was justified in detaining Johnson for further investigation, that Johnson's detention did not violate his Fourth Amendment rights, and that the evidence need not have been suppressed.” State v. Johnson, 2013-Ohio-4729, 2013 Ohio App. LEXIS 4940 (2d Dist. October 25, 2013).*

Permalink 09:04:14 am, by fourth, 229 words, 343 views   English (US)
Categories: General

OH6: Officers had RS defendant was armed; question about where gun was didn't warrant suppression

Officers arguably violated Miranda when they asked defendant where his gun was during his stop. Inevitable discovery applies, however, because the officers had reasonable suspicion under Long that he was armed. He was recently involved in a domestic dispute with a firearm. They’d searched for it and didn’t find it, so they asked. Second search not suppressed. State v. Jones-Bateman, 2013-Ohio-4739, 2013 Ohio App. LEXIS 4952 (6th Dist. October 25, 2013):

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Permalink 12:01:00 am, by fourth, 104 words, 396 views   English (US)
Categories: General

HuffPo: Meet The Activist Who's Bringing Conservatives On Board The Police Reform Movement

10/27/13

Permalink 03:30:31 pm, by fourth, 109 words, 391 views   English (US)
Categories: General

C-Span: Mapp v. Ohio: Fourth Amendment Rights

C-Span: Mapp v. Ohio: Fourth Amendment Rights, American History Series:

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Permalink 03:00:01 pm, by fourth, 126 words, 535 views   English (US)
Categories: General

HuffPo: As The Drug War Escalates, SWAT Teams Become 'Bullies With Badges And Guns'

Permalink 12:21:17 pm, by fourth, 995 words, 585 views   English (US)
Categories: General

D.Vt.: Defendant has Rochin due process standing to challenge removal of drugs from his wife’s vagina, but he didn’t have Fourth Amendment standing

Defendant has Rochin due process standing to challenge removal of drugs from his wife’s vagina, but he didn’t have Fourth Amendment standing. Using a Rochin due process analysis, the court concludes that Mrs. Anderson was handcuffed to a bench for hours after her nighttime arrest, and she couldn’t sleep because she was constantly uncomfortable. Then the officers decided to talk to her, and she admitted she had drugs hidden in her. She was ultimately told that a judge refused to issue a body cavity search warrant. Under the due process clause, because the court finds that this qualified under Rochin, Mr. Anderson gets standing. United States v. Anderson, 2013 U.S. Dist. LEXIS 153638 (D. Vt. October 24, 2013):

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Permalink 12:20:20 pm, by fourth, 30 words, 298 views   English (US)
Categories: General

Politico: 'Person of Interest' and real-life surveillance

Politico: 'Person of Interest' and real-life surveillance by Puja Murgai:

Somebody, somewhere is tracking our every move. And Americans’ reactions range from a mix of heightened interest to complete apathy.

Permalink 12:20:00 pm, by fourth, 53 words, 299 views   English (US)
Categories: General

NYT: Federal Prosecutors, in a Policy Shift, Cite Warrantless Wiretaps as Evidence

NYT: Federal Prosecutors, in a Policy Shift, Cite Warrantless Wiretaps as Evidence:

The Justice Department for the first time has notified a criminal defendant that evidence being used against him came from a warrantless wiretap, a move that is expected to set up a Supreme Court test of whether such eavesdropping is constitutional.

Permalink 11:58:37 am, by fourth, 307 words, 260 views   English (US)
Categories: General

N.D.Ga.: 48 rules doesn't apply to violations of supervised release

The 48 hour rule of (McLaughlin v. Riverside) and the presentment rule (Rule 5), aren’t violated by detention for a violation of supervised release issued on a summons requested by PO. Dismissal’s not the remedy for delay; suppression of evidence that is the fruit of that is. Here there wasn’t anything to be used against the accused. United States v. Serrano, 2013 U.S. Dist. LEXIS 153590 (N.D. Ga. September 11, 2013).*

The records checks took time, and the stop was reasonable in length compared to that. Also doing an EPIC records check doesn’t require reasonable suspicion. United States v. Maddox, 2013 U.S. Dist. LEXIS 153612 (E.D. Tenn. September 11, 2013).* [This was 2011, not 1971. Why does it take 10 minutes for any computer system to do anything, except calculate when the next asteroid comes close to Earth? It should take seconds. I still want an explanation for why anything takes so long and the street cops have no idea. I’ll bet some obfuscating supervisor could explain it, but it strains credulity that anything with a computer takes so long. I personally think that they delay it on purpose so they can have all that free time to talk with the motorist and develop reasonable suspicion.]

The officer did not time defendant’s arrest so he could inventory the car. The officer was unarmed and in an unmarked car, there was probable cause for the arrest, and he waited for backup. Defendant also consented to a search of the contents of the car after being Mirandized a second time. He was trying to help himself when he consented. Child pornography was found. Defendant was in the Coast Guard at Key West, and he was arrested because he was a Peeping Tom and caught with a camera with voyeuristic pictures. United States v. Witten, 2013 U.S. Dist. LEXIS 153208 (S.D. Fla. September 13, 2013).*

Permalink 10:32:37 am, by fourth, 108 words, 392 views   English (US)
Categories: General

The New American: Document Reveals NSA Monitored 125 Billion Phone Calls in One Month

10/26/13

Permalink 04:08:25 pm, by fourth, 168 words, 558 views   English (US)
Categories: General

The Hill: Patriot Act author pushes legislation to limit NSA surveillance

Permalink 04:05:30 pm, by fourth, 96 words, 335 views   English (US)
Categories: General

WaPo: Terror case will use evidence gathered through warrantless surveillance

Permalink 03:58:14 pm, by fourth, 115 words, 431 views   English (US)
Categories: General

The Crime Report: Caution: Your GPS Ankle Bracelet Is Listening

The Crime Report: Caution: Your GPS Ankle Bracelet Is Listening by Waldo D. Covas Quevedo

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Permalink 10:48:07 am, by fourth, 116 words, 374 views   English (US)
Categories: General

MN: Consent to a blood draw in DUI case was valid

Defendant consented to his blood draw for his DUI case, so a warrant was unnecessary. State v. Brooks, 838 N.W.2d 563 (Minn. 2013).*

Defendant consented to a search of his hotel room. He didn’t need to be warned because he twice refused, and once they were inside, he refused consent to search a backpack in the room and denied ownership in it. United States v. Hardy, 543 Fed. Appx. 721 (9th Cir. 2013).*

An anonymous tip for a stop is not enough, but here the totality showed it was a high crime area, late at night, and defendant ran when he saw police. That was enough. United States v. Hayes, 2013 U.S. Dist. LEXIS 153528 (E.D. N.C. October 23, 2013).*

Permalink 09:48:43 am, by fourth, 909 words, 643 views   English (US)
Categories: General

NJ civil eviction process led to reasonable entry for eviction

Defendant lived in New Jersey public housing with his mother, and she died. He was not a tenant on the lease. A couple of months later, the Housing Authority initiated eviction proceedings and served an eviction warrant by sliding it under the door, giving anybody inside four days to clear out or apply to a court for relief. After the four days, the Housing Authority entered and found drugs in an open shoebox on the bed. The entry was reasonable under the Fourth Amendment and the N.J. Constitution, and he lost his reasonable expectation of privacy in the premises by not moving to protect it when the court ordered eviction notice was served, and he failed to counter it. State v. Hinton, 216 N.J. 211, 78 A.3d 553 (2013). Syllabus:

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Permalink 09:30:42 am, by fourth, 92 words, 273 views   English (US)
Categories: General

W.D.Ky.: No standing in GPS placement on occasionally borrowed car

Defendant did not have standing to challenge placement of a GPS device on three cars that were not his that he occasionally drove during the conspiracy. United States v. Houseal, 2013 U.S. Dist. LEXIS 152974 (W.D. Ky. June 20, 2013).*

Seeing a gun partially concealed under a toolbox in a vehicle was probable cause to arrest for a concealed weapon. Vega v. Commonwealth, 2013 Ky. LEXIS 463 (October 24, 2013).*

Defense counsel’s failure to move to suppress would not be dealt with on direct appeal because the record is inadequate. Barber v. State, 2013 Miss. App. LEXIS 701 (October 22, 2013).*

Permalink 09:21:14 am, by fourth, 92 words, 292 views   English (US)
Categories: General

The Hill: Civil liberties groups back secure email service in surveillance case

10/25/13

Permalink 07:34:28 am, by fourth, 119 words, 331 views   English (US)
Categories: General

CA9: No REP in a dumpster in a parking lot

Defendant had no reasonable expectation of privacy in a commercial dumpster on a parking lot. There was probable cause for the multiple search warrants based on wiretaps and surveillance. The warrant authorized search of cell phones, albeit only the serial number of the phone came in. United States v. Nwobi, 543 Fed. Appx. 706 (9th Cir. 2013).*

The inventory of defendant’s car by the Key West PD was valid, looking at the policy and the facts of the case. United States v. Itten, 2013 U.S. Dist. LEXIS 152886 (S.D. Fla. October 24, 2013).*

Allegations in the search warrant affidavit that there was an ongoing drug operation overcame defendant’s staleness argument. United States v. Sandoval, 2013 U.S. Dist. LEXIS 151956 (N.D. Iowa October 23, 2013).*

Permalink 07:26:46 am, by fourth, 696 words, 345 views   English (US)
Categories: General

D.Vt.: Street address without town in SW might be curable, but not here; also no GFE

The search warrant listed “39 Twin Oaks” within the “Twin Oaks Terraces” without specifying a city or town within the county. It described a “second building” as being the place to be searched which was not searched. At the suppression hearing, the executing officers testified, not the affiant. “The government argues that the ‘39 Twin Oaks’ within the ‘Twin Oaks Terraces’ is a unique address and contends that Defendant has failed to identify any other address with which it could be confused. However, the government presented no evidence to support a conclusion that the address is, in fact, unique. Instead, it makes this unsupported allegation in its Opposition.” That’s not evidence. This is a close call because this could be curable, but then it turns out that the place to be searched was otherwise misidentified, too, so the motion to suppress is granted. The good faith exception did not apply. United States v. Battle, 2013 U.S. Dist. LEXIS 152689 (D. Vt. October 24, 2013):

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Permalink 07:06:51 am, by fourth, 130 words, 191 views   English (US)
Categories: General

D.Me.: Discovery under Florida v. Harris is of the dog, not the handler

Under Florida v. Harris, the defense gets discovery of the dog at issue, not other dogs handled by the same handler. United States v. White, 2013 U.S. Dist. LEXIS 152019 (D. Me. October 22, 2013).

A frisk was justified by a movement at the waist and the sound of something metal hitting the ground. United States v. Starkie, 2013 U.S. Dist. LEXIS 152319 (W.D. N.C. September 30, 2013).*

While defendant was in custody in the police car, the search of the car was justified by inventory or probable cause to believe evidence would be found. United States v. Swallows, 2013 U.S. Dist. LEXIS 152651 (E.D. Tenn. October 24, 2013).*

Girlfriend’s consent to search by her probation officer was complete and to the whole premises. Bivens action properly dismissed. Dunn v. Mattivi, 535 Fed. Appx. 535 (8th Cir. 2013).*

10/24/13

Permalink 09:55:35 am, by fourth, 107 words, 1126 views   English (US)
Categories: General

Motherboard: Why the DEA Stopped Testing Cash for Coke

Permalink 09:29:14 am, by fourth, 295 words, 434 views   English (US)
Categories: General

HuffPo: How A Drug Raid Gone Wrong Sparked A Call For Change In The Unlikeliest State In The Nation

HuffPo: How A Drug Raid Gone Wrong Sparked A Call For Change In The Unlikeliest State In The Nation by Radley Balko:

This article is the first in a six-part series about the drug war and police reform.

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Permalink 09:19:08 am, by fourth, 224 words, 277 views   English (US)
Categories: General

N.D.Iowa: Patdown of def. with assault prior found in car with meth paraphernalia was valid

Defendant was a passenger in a vehicle with an LPN that did not come back to it. When stopped, the officer could see muriatic acid and tubing in the front seat. He got the occupants out, and defendant’s jacket had a bulge. Because defendant had an assault with a weapon prior, the officer asked for permission to conduct a patdown, and defendant didn’t consent. The officer told him he was going to do the patdown and defendant would be arrested for obstruction if he resisted. Defendant removed a package of hypodermic needles from his pocket. He then admitted he had meth on him. The patdown and the finding of the meth was reasonable; his admissions are suppressed. United States v. Chartier, 2013 U.S. Dist. LEXIS 150778 (N.D. Iowa October 21, 2013),* R&R 2013 U.S. Dist. LEXIS 154443 (N.D. Iowa August 16, 2013).*

Defendant’s merely touching the white line was not an offense under Georgia law, but the court finds reasonable suspicion from other factors. “ Based on (1) these observations; (2) Spruiell's understanding that the hours between 9 p.m. and 5 a.m. are ‘typical alcohol serving hours for clubs’; and (3) his experience that drivers who are under the influence commonly fail to maintain their lanes, Trooper Spruiell suspected that Defendant was driving while intoxicated.” United States v. Bryson, 2013 U.S. Dist. LEXIS 151091 (N.D. Ga. October 21, 2013).*

Permalink 09:16:59 am, by fourth, 337 words, 361 views   English (US)
Categories: General

W.D.La.: Carport door for knock and talk was valid when others were seen using it

A CI apparently busted for marijuana took the police to defendant’s house as his source, and the officers did a knock and talk there, which was valid. Using the carport door was not unreasonable because officers saw people going to that door. United States v. Pryor, 2013 U.S. Dist. LEXIS 151796 (W.D. La. September 17, 2013):

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Permalink 08:44:42 am, by fourth, 295 words, 369 views   English (US)
Categories: General

D.Kan.: Def's emptying a blunt was not RS for a patdown for weapons

Defendant was allegedly illegally parked and confronted by the officer. About the only thing wrong was that he put his hands in his pockets and took them out when told. The officer saw defendant empty a cigar, which he took as removing the marijuana from it. Still, there was nothing to show that defendant was involved in drug distribution, and a patdown was unjustified. United States v. Turner, 2013 U.S. Dist. LEXIS 151380 (D. Kan. October 21, 2013):

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Permalink 07:28:54 am, by fourth, 583 words, 368 views   English (US)
Categories: General

N.Y.Co.: NYC taxicab industry is heavily regulated, including GPS on cabs

The taxicab industry in NYC is heavily regulated, and it is constitutionally permissible for the TLC to require GPS and fare data be continually transmitted when there is a fare in the cab. This has already been decided in federal cases in NYC, and they are followed. Also, there is no tracking when the cab is off-duty. Matter of Carniol v New York City Taxi & Limousine Comm’n., 2013 NY Slip Op 23358, 42 Misc. 3d 199, 975 N.Y.S.2d 842 (N.Y. Co. 2013):

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Permalink 07:03:16 am, by fourth, 365 words, 516 views   English (US)
Categories: General

D.Idaho: TRO granted to seize and search computer of self-proclaimed “hacker” in copyright infringement

In a civil software copyright infringement case, the U.S. District Court for Idaho issued a TRO authorized seizure of a computer of a self-identified “hacker” for a private search where he publicly proclaimed that he was going to release a knock-off infringing program. The burden to get a TRO is high, and the burden to authorize ex parte seizure of a computer is extraordinary, but the plaintiffs met the burden here. Battelle Energy Alliance, LLC v. Southfork Security, Inc., 4:13-cv-00442-BLW (D. Idaho October 15, 2013):

=> Read more!

10/23/13

Permalink 04:27:56 pm, by fourth, 92 words, 380 views   English (US)
Categories: General

The Hill: Report: TSA searching records of passengers before they reach airport

Permalink 03:20:22 pm, by fourth, 40 words, 225 views   English (US)
Categories: General

Fifth Edition added to Lexis

Search and Seizure (5th ed. 2013) is also searchable on Lexis.com as of a day or two ago.

Go to Sources ==> Area of Law ==> Criminal Law, and it is on the right column: Search and Seizure, the only book listed.

Permalink 03:11:47 pm, by fourth, 85 words, 399 views   English (US)
Categories: General

EFF: EFF Brief Argues Police Need Search Warrant to Read Text Messages

Permalink 01:03:26 pm, by fourth, 41 words, 209 views   English (US)
Categories: General

Atlantic: Ron Wyden: The Lonely Hero of the Battle Against the Surveillance State

Atlantic: Ron Wyden: The Lonely Hero of the Battle Against the Surveillance State by Garrett Epps:

The Oregon senator isn't as famous as Edward Snowden or Julian Assange, but his push for limits on the NSA could result in much-needed reforms.

Permalink 12:59:30 pm, by fourth, 84 words, 353 views   English (US)
Categories: General

BLT: Justices Asked to Review Businessman's Search Warrant Dispute

Permalink 12:58:07 pm, by fourth, 61 words, 215 views   English (US)
Categories: General

NJLJ: Court Probes Legality of Searches Consented to by Suspects' Families

NJLJ: Court Probes Legality of Searches Consented to by Suspects' Families by Michael Booth:

Two cases argued Tuesday at the New Jersey Supreme Court test the legality of warrantless searches of homes where the suspects did not consent but family members did.

Both defendants sought to withdraw their guilty pleas to weapons violations, alleging that the searches violated their constitutional rights.

Permalink 10:19:35 am, by fourth, 163 words, 329 views   English (US)
Categories: General

ID: Response to attempted suicide by cutting call justified search for shotgun defendant admitted firing

Officers responded to a call about an attempted suicide by slitting the writs, and they found a spent shotgun shell in the yard. They talked to defendant inside the house, they found she’d cut herself, but it was not life threatening. She said she fired the shotgun outside. It was reasonable for the officers to look for the shotgun for their own safety and that of the EMTs who were on standby outside the house. State v. Ward, 312 P.3d 323 (Ida. App. 2013).

State case law on pretext for continuing a stop (State v. Ochoa, 2009-NMCA-002, ¶¶ 38-40, 146 N.M. 32, 206 P.3d 143) doesn’t apply when the reason for the stop was an outstanding arrest warrant. State v. Peterson, 2013 N.M. App. LEXIS 109 (October 21, 2013).*

Defendant’s traffic offense, which the trial court credited, supported his stop. State v. Anderson, 2013-Ohio-4664, 2013 Ohio App. LEXIS 4878 (5th Dist. September 30, 2013).*
[Note: Lexis now reads the -Ohio- in Ohio cites, so that will be the default from now on.]

Permalink 10:03:52 am, by fourth, 41 words, 318 views   English (US)
Categories: General

Fifth Edition received yesterday, finally

I received my copies of the Fifth Edition of Search and Seizure yesterday by UPS. The Lexis bookstore has it here.

It's available as a book or in electronic format for your computer or iPad and even in a mobile version.

Permalink 09:58:23 am, by fourth, 135 words, 210 views   English (US)
Categories: General

CA3: “When an apartment is abandoned, authority to consent to a search reverts to the landlord.”

“When an apartment is abandoned, authority to consent to a search reverts to the landlord.” The landlord had evicted the defendant and was going to clean the place out, so it was reasonable for the officers to believe the landlord could consent. United States v. Paige, 543 Fed. Appx. 218 (3d Cir. 2013).

Defense counsel adequately argued the Fourth Amendment claim and lost on the merits. The new spin defendant put on it in a 2255 doesn’t make it a winner for IAC. COA denied. United States v. Robles, 2013 U.S. App. LEXIS 21374 (10th Cir. October 22, 2013).*

The initial traffic stop was lawful because Smith had reasonable suspicion of a vehicle equipment violation, and also because there was reasonable suspicion that it was returning from Seattle with drugs. United States v. Reidy, 2013 U.S. Dist. LEXIS 151493 (D. Mont. October 8, 2013).*

Permalink 09:48:49 am, by fourth, 301 words, 312 views   English (US)
Categories: General

CA8: Common authority is based on what the officers learn or know at the scene

Common authority is based on what the officers see at the time of the search. While defendant seeks to show that common authority was actually limited and the consenter only had permission to drive the car, the consenter described her control as complete, and that was enough for the officers to believe she had common authority. United States v. Scott, 732 F.3d 910 (8th Cir. 2013):

=> Read more!

Permalink 12:00:03 am, by fourth, 368 words, 651 views   English (US)
Categories: General

CA3: Planting a GPS device pre-Jones without a warrant or court order was unconstitutional and isn’t saved by good faith exception

Planting a GPS device in 2010 (pre-Jones) without a warrant or court order was unconstitutional, and it isn’t saved by good faith exception. United States v. Katzin, 732 F.3d 187 (3d Cir. 2013):

=> Read more!

10/22/13

Permalink 07:00:54 am, by fourth, 128 words, 322 views   English (US)
Categories: General

N.D.Iowa: Being involved in drug dealing is reasonable suspicion for a pat down for weapons

That a person is involved in drug dealing is reasonable suspicion for a pat down for weapons. United States v. Chartier, 2013 U.S. Dist. LEXIS 150778 (N.D. Iowa October 21, 2013).

Officers stopped a Town Car that picked somebody up at the bus station because of a LPN violation. As the car was being pulled over, there was a furtive movement. That justified a 25 minute detention while a drug dog was called, and other cases have upheld detentions that long for the dog. United States v. Parker, 2013 U.S. Dist. LEXIS 150603 (E.D. Ky. October 21, 2013).*

The state showed reasonable suspicion for a stop based on a poorly illuminated LPN, and that led to defendant’s being found under the influence. State v. Ferrell, 2013-Ohio-4651, 2013 Ohio App. LEXIS 4869 (5th Dist. October 21, 2013).*

10/21/13

Permalink 06:22:48 pm, by fourth, 369 words, 726 views   English (US)
Categories: General

GA: Supervisor didn't plan DUI roadblock, so it was unconstitutional

The roadblock in this case was set up for valid DUI interdiction purposes and not general crime control. However, there was no supervisory planning as to where it was placed and operated, and that made it unconstitutional. Brown v. State, 2013 Ga. LEXIS 862 (October 21, 2013), rev’g State v. Brown, 315 Ga. App. 154, 726 S.E.2d 654 (2012):

=> Read more!

Permalink 10:52:38 am, by fourth, 200 words, 445 views   English (US)
Categories: General

WaPo: High court to rule on warrantless wiretapping

Permalink 07:14:17 am, by fourth, 81 words, 364 views   English (US)
Categories: General

OH3: Defendant’s patdown was justified by marijuana falling out of his pocket

Defendant’s patdown was justified by marijuana falling out of his pocket. State v. Douglas, 2013 Ohio 4563, 2013 Ohio App. LEXIS 4781 (3d Dist. October 15, 2013).*

Reading the affidavit for search warrant in a common sense fashion, it shows probable cause to believe that drugs would be found inside defendant’s house. The CI was adequately supported, and he didn’t have to be a chemist or completely knowledgeable about what cocaine would look like. Anderson v. State, 2013 Tex. App. LEXIS 12822 (Tex. App. – Tyler October 16, 2013).*

Permalink 07:11:23 am, by fourth, 415 words, 851 views   English (US)
Categories: General

OH8: Being a disorderly hotel guest, without more, doesn’t sanction the hotel consenting to a search of one’s room

Being a disorderly hotel guest, without more, doesn’t sanction the hotel consenting to a search of one’s room, and the police sure couldn’t rely on that consent. State v. Wright, 2013 Ohio 4473, 2013 Ohio App. LEXIS 4703 (8th Dist. October 10, 2013):

=> Read more!

Permalink 06:50:58 am, by fourth, 302 words, 568 views   English (US)
Categories: General

TX12: DUI blood test suppressed under McNeely for no showing of exigency

The trial court suppressed holding that there was no showing of exigency for a DUI blood test under McNeely, and that is affirmed. The trial court was wrong about probable cause because there was. However, the trial court was right that the game warden was wrong about a blood test being mandatory because there was an accident. State v. Baker, 2013 Tex. App. LEXIS 12818 (Tex. App. – Tyler October 16, 2013):

=> Read more!

Permalink 06:41:41 am, by fourth, 129 words, 228 views   English (US)
Categories: General

TN: Nothing at house supported officer's exigency claim so entry unjustified

The officer knew that a car registered at the address he came to had been in a one car accident and airbags deployed. However, nothing at the house, no sounds, no indications, no nothing, that a person inside was in need of aid, so there was no justification for an entry. Defendant was found drunk inside. State v. Gibson, 2013 Tenn. Crim. App. LEXIS 900 (October 18, 2013).*

Defendant was entitled to a jury instruction on illegal search under Texas’s art. 38.23(a) so they could decide whether he abandoned the property or there was an illegal search. Gonzalez-Martinez v. State, 414 S.W.3d 906 (Tex. App. – Amarillo 2013).*

The fact defendant’s paper temporary plate number was not in the system was justification for a stop. Croom v. State, 996 N.E.2d 436 (Ind. App. 2013).*

10/20/13

Permalink 02:23:51 pm, by fourth, 161 words, 449 views   English (US)
Categories: General

ars technica: Contrary to public claims, Apple can read your iMessages

Permalink 01:56:57 pm, by fourth, 82 words, 449 views   English (US)
Categories: General

The Hill: ACLU sues government over use of NSA surveillance in criminal cases

Permalink 10:48:41 am, by fourth, 107 words, 300 views   English (US)
Categories: General

CA10: Video may not be conclusive on whether officer saw a traffic violation

The video is not conclusive that the parked highway patrol officer could not see defendant’s not signaling his lane change at a toll plaza. Therefore, the district court’s finding is not clearly erroneous. United States v. Turrentine, 542 Fed. Appx. 714 (10th Cir. 2013).*

Substantially similar is United States v. Brown, 2013 U.S. Dist. LEXIS 149779 (M.D. Ga. October 18, 2013), where the video seemed to contradict the officer on the lane change violation, but the court agreed with the officer’s testimony.

Remanded to the trial court to make findings on whether state mandated procedures on a DUI roadblock were complied with. Commonwealth v. Gray, 465 Mass. 330, 990 N.E.2d 528 (2013).*

Permalink 10:38:12 am, by fourth, 570 words, 702 views   English (US)
Categories: General

D.Minn.: Jones provides no relief from administrative subpoena for ISP info

Under Minnesota law, defendant’s cable internet provider had to provide subscriber information on an administrative subpoena, and U.S. v. Jones doesn’t provide any relief. United States v. Wheelock, 2013 U.S. Dist. LEXIS 150246 (D. Minn. September 13, 2013):

=> Read more!

Permalink 09:00:47 am, by fourth, 159 words, 272 views   English (US)
Categories: General

FL: Officer could see gun in pocket, and that was RS for frisk

The officer knew that defendant was armed because, on patrol, he could see the gun in defendant’s pocket. He stopped the car and approached without his own gun drawn because he could see defendant’s hands and didn’t feel threatened. In talking to defendant, defendant finally lied about being armed, and then the situation escalated into the frisk, and it was valid. Mackey v. State, 124 So. 3d 176 (Fla. 2013).

There was probable cause from defendant’s actions and denials of what the officers already knew. United States v. Cavazos, 542 Fed. Appx. 263 (4th Cir. 2013).*

Defendant filed his brief alleging the search was invalid, and the government responded claiming consent to the search. For the first time, then, he challenged the search as without consent in the reply brief. Getting to the merits anyway, the search was by consent. Once the officer discovered cocaine, the automobile exception applied. United States v. Correa, 2013 U.S. Dist. LEXIS 149366 (N.D. Ill. October 17, 2013).*

10/19/13

Permalink 06:07:31 pm, by fourth, 56 words, 499 views   English (US)
Categories: General

NYT: N.S.A. Plan to Log Calls Is Renewed by Court

Permalink 06:05:03 pm, by fourth, 54 words, 253 views   English (US)
Categories: General

Law.com: De Blasio Opposes Stay of Stop-and-Frisk Remedies

Law.com: De Blasio Opposes Stay of Stop-and-Frisk Remedies:

In an amicus brief filed ahead of Oct. 29 oral arguments on the stay, lawyers for Public Advocate Bill de Blasio said any impact of the remedies ordered by Judge Scheindlin, including her appointment of a monitor to oversee reforms of NYPD practices, is not imminent.

Permalink 01:00:00 am, by fourth, 428 words, 515 views   English (US)
Categories: General

MS: Officer approached defendant with RS, and he fled; pursuit into the house was valid

An anonymous tip on defendant’s being involved in drugs brought the police, and they’d already heard about him and knew about the area. When the officer approached defendant, he fled into a house and the officer validly pursued him. Tossing drugs inside supported the arrest. Cooper v. State, 2013 Miss. App. LEXIS 686 (October 15, 2013):

=> Read more!

Permalink 12:28:48 am, by fourth, 164 words, 397 views   English (US)
Categories: General

CA4: Totality supported frisk, particularly furtive movement of hand

The totality of the circumstances (six are given) supported a stop and frisk of defendant during a traffic stop in a high crime area at 3:30 am with four in the car. Most importantly was defendant’s hiding his hands. United States v. George, 732 F.3d 296 (4th Cir. 2013).

“If a protective sweep occurred, it was not [factually] justified, but the other searches, or entries into the home, were based on valid consent. The government flatly states that nothing was taken or will be introduced into evidence that was taken from Smith's home and Smith offered no evidence that any seizure occurred. The Motion to Suppress Evidence Because of Illegal Search and Seizure is denied because no illegal search was established and there is nothing to suppress.” United States v. Smith, 2013 U.S. Dist. LEXIS 148791 (D. Ariz. October 16, 2013).*

Defendant’s guilty plea waived his claim that defense counsel didn’t pursue a search claim. Dellere v. United States, 2013 U.S. Dist. LEXIS 148180 (N.D. Tex. July 3, 2013).*

Permalink 12:11:56 am, by fourth, 145 words, 226 views   English (US)
Categories: General

E.D.Va.: Frisk of known drug and gun user was reasonable

Defendant was subjected to a traffic stop, but the officers knew that defendant was a known user of drugs and guns and was wanted for that. The patdown was clearly justified. United States v. Mizzell, 2013 U.S. Dist. LEXIS 148401 (E.D. Va. October 15, 2013).*

“[C]ounsel's strategic decision to forego a dubious fact-bound motion to suppress does not fall below the objective standard of reasonableness for competent counsel.” Almost certainly the search was legal. Even if it wasn’t, there would be no prejudice because of the quality of the prosecution’s case. Georges v. United States, 2013 U.S. Dist. LEXIS 148957 (D. Me. June 11, 2013).*

The record does not support defendant’s contention that he was told he couldn’t leave unless he consented. The court finds that the officer made no promises before the consent. United States v. Stewart, 2013 U.S. Dist. LEXIS 148744 (D. Vt. October 16, 2013).*

Permalink 12:03:14 am, by fourth, 368 words, 497 views   English (US)
Categories: General

E.D.Ky.: The entirety of the stop clearly showed it was a seizure and defendant was not free to leave

Encountered by the police and ordered out of the car at night, this unquestionably became a seizure of the person. It was clearly communicated that he was not free to leave. United States v. Mundy, 2013 U.S. Dist. LEXIS 148952 (E.D. Ky. October 3, 2013):

=> Read more!

Permalink 12:00:09 am, by fourth, 225 words, 457 views   English (US)
Categories: General

E.D.Tenn.: Belief that there was a gun left in defendant’s car was a valid justification for its inventory

Belief that there was a gun left in defendant’s car was a valid justification for its inventory [remember Cady v. Dombrowski and the off-duty officer’s service revolver?]. United States v. Bah, 2013 U.S. Dist. LEXIS 148943 (E.D. Tenn. August 8, 2013):

=> Read more!

10/18/13

Permalink 11:14:15 pm, by fourth, 59 words, 495 views   English (US)
Categories: General

NYT: Door May Open for Challenge to Secret Wiretaps

Permalink 10:36:55 pm, by fourth, 125 words, 498 views   English (US)
Categories: General

NYT: N.S.A. Plan to Log Calls Is Renewed by Court

NYT: N.S.A. Plan to Log Calls Is Renewed by Court by Charlie Savage:

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Permalink 12:54:39 pm, by fourth, 140 words, 511 views   English (US)
Categories: General

MintPress: Lt. Gov: ‘Surprise’ Police Home-School Visits Violate 4th Amendment

MintPress: Lt. Gov: ‘Surprise’ Police Home-School Visits Violate 4th Amendment | State inspectors can visit a home school each year, but controversy has arisen over whether they can do so without pre-warning by Katie Rucke:

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Permalink 09:04:01 am, by fourth, 224 words, 503 views   English (US)
Categories: General

CA7: Cash claimant had standing by possession despite pleading Fifth in forfeiture

A claimant of cash had standing to challenge seizure for forfeiture even when he took the Fifth on possession. He clearly possessed, but he loses on consent. United States v. $304,980.00 in United States Currency, 732 F.3d 812 (7th Cir. 2013):

=> Read more!

10/17/13

Permalink 11:40:50 pm, by fourth, 88 words, 294 views   English (US)
Categories: General

TX9: When defendant saw officers when he opened door to a knock and talk and ran, officers could enter

Officers had information that defendant was selling marijuana, so they went to his trailer to do a knock and talk. They could smell marijuana outside. When defendant opened the door and saw the police he started running, and that was an exigency justifying police entry because he likely was going to attempt to flee or destroy evidence. Pache v. State, 413 S.W.3d 509 (Tex. App. – Beaumont 2013).

The district court’s finding of third party consent is supported by the evidence. United States v. Washington, 542 Fed. Appx. 234 (4th Cir. 2013).

10/16/13

Permalink 08:54:20 pm, by fourth, 96 words, 540 views   English (US)
Categories: General

NPR: Are We Moving To A World With More Online Surveillance?

Permalink 08:51:33 pm, by fourth, 55 words, 520 views   English (US)
Categories: General

WaPo: Criticized secret court says it is no rubber stamp

Permalink 08:46:19 pm, by fourth, 54 words, 429 views   English (US)
Categories: General

Law.com: Cal. Gov. Brown Vetoes EFF-Backed Privacy Measure

Permalink 07:18:53 am, by fourth, 126 words, 257 views   English (US)
Categories: General

TX14: Blood draw requires reasonable belief of an MVA injury

Defendant’s blood draw was reasonable based on the officer's belief that somebody had been injured in the accident. Douds v. State, 2013 Tex. App. LEXIS 12725 (Tex. App. – Houston (14th Dist. October 15, 2013).*

The officer did not prolong the stop to get the drug dog there because it arrived two minutes after the request while waiting for the computer check. Defendant was “nervous and paranoid” and the dog alerted. A gun was validly found in the glove compartment. State v. Greene, 2013 Ohio 4516, 2013 Ohio App. LEXIS 4756 (2d Dist. October 11, 2013).*

There was probable cause for defendant’s traffic stop, and reasonable suspicion developed he was under the influence when he was out of the car. That justified extending the stop. Vogt v. State ex rel. DOT, 2013 WY 123, 2013 Wyo. LEXIS 129 (October 9, 2013).*

Permalink 06:38:11 am, by fourth, 538 words, 632 views   English (US)
Categories: General

N.D.Ga.: Use of flashbang device for drugs and weapons search not unreasonable

Using flashbang devices during a search for weapons and drugs was not unreasonable. Even if it was, it doesn’t require suppression because it deals with the manner of entry, not whether it should have occurred. United States v. Honeycutt, 2013 U.S. Dist. LEXIS 147705 (N.D. Ga. March 29, 2013):

=> Read more!

Permalink 06:28:57 am, by fourth, 101 words, 530 views   English (US)
Categories: General

WaPo: NSA gathering contact lists from e-mails, chats

WaPo: NSA gathering contact lists from e-mails, chats by Barton Gellman and Ashkan Soltani:

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10/15/13

Permalink 07:55:13 am, by fourth, 183 words, 310 views   English (US)
Categories: General

IL: Officer's experience recounted in affidavit for SW doesn't alone constitute a “substantial basis” for it

The search warrant overall was not bare bones, but it was as to defendant’s address. There was minimal information about him, and the good faith exception would not be applied. An officer's general statements based on training and experience alone do not constitute “substantial basis” for the issuance of a warrant. People v. Rojas, 2013 IL App (1st) 113780, 998 N.E.2d 567 (2013).

Officers had probable cause from controlled buys occurring from defendant’s property. When he was arrested on his porch, and the door was ajar, it was not unreasonable to conduct a protective sweep to make sure there weren’t others there. United States v. Walenty, 2013 U.S. Dist. LEXIS 147474 (W.D. Mo. September 23, 2013).*

Defendant was recorded by an informant telling of plans to rob a bank. He was arrested leaving his house to go to a storage unit to retrieve a mask and gun for the robbery. The search warrant for the storage unit and his house was based on the recording, not the search incident to his arrest. United States v. Smith, 2013 U.S. Dist. LEXIS 147759 (S.D. N.Y. October 11, 2013).*

10/14/13

Permalink 11:12:15 am, by fourth, 45 words, 494 views   English (US)
Categories: General

NY Post: Cops ‘lied’ to reach arrest quotas

NY Post: Cops ‘lied’ to reach arrest quotas by Tara Palmeri and Kirstan Conley:

A former city prosecutor wants the Bronx district attorney to probe a team of narcotics cops he says lied on the stand and helped put away innocent people to meet quotas.

Permalink 11:09:41 am, by fourth, 126 words, 673 views   English (US)
Categories: General

NYT: Privacy Fears Grow as Cities Increase Surveillance

Permalink 07:58:13 am, by fourth, 131 words, 341 views   English (US)
Categories: General

CA6: SOL for search 1983 cases run from date of search

The statute of limitations for a 1983 case from an illegal search claim runs from the time of the search, not the date some court holds it was illegal. Wallace v. Kato on false arrest distinguished. Hornback v. Lexington-Fayette Urban County, 543 Fed. Appx. 499 (6th Cir. 2013).

After a domestic dispute with his mother for trashing her house, defendant left on foot. The police had been called and encountered defendant and talked to him. He agreed to go back to the house to get a friend’s phone number off his mother’s phone. He stayed in the police car while the officer went to retrieve it. Inside, he found drugs and drug paraphernalia. The search was reasonable and the entry was by consent of the mother. State v. Wynne, 258 Ore. App. 787, 311 P.3d 978 (2013).*

Permalink 07:43:15 am, by fourth, 236 words, 318 views   English (US)
Categories: General

AL: The exclusionary rule does not apply to a teacher discharge case

The exclusionary rule does not apply to a teacher discharge case. The teacher was a band teacher with 39 years on the job, and he left a gun in a locked classroom because he was leaving with students. He had had a concealed carry permit since he was 21 years old. A custodian found the gun and was told to bring it to the office. The rules were clear that a gun on campus could lead to termination. Even if there was a Fourth Amendment argument, the exclusionary rule did not apply. His Second Amendment argument is also rejected. Lambert v. Escambia County Bd. of Educ., 2013 Ala. Civ. App. LEXIS 229 (October 11, 2013).

GPS was install pre-Jones on defendant’s car in Arizona and it was tracked to Minnesota where defendant was arrested and indicted. The Davis good faith exception applies because the Ninth Circuit permitted it at the time it was installed. United States v. Maldonado, 2013 U.S. App. LEXIS 20690 (8th Cir. October 11, 2013).

Defendant sold crack on the street but went into his place to get it. That gave probable cause to believe he had it inside the house. When he was arrested outside and the door was left open, officers could do a protective sweep to be sure no others inside seeing the arrest could destroy drugs until they got a search warrant. Crack was lawfully seen in plain view. State v. Lewis, 126 So. 3d 652 (La.App. 4 Cir. 2013).

Permalink 07:22:33 am, by fourth, 114 words, 204 views   English (US)
Categories: General

D.Neb.: Arrest warrant allows entry to arrest, but there must be reason to believe defendant home

An arrest warrant carries with it the implicit authority to enter to arrest. The police have to have probable cause to believe defendant was home to make the entry, however, and here they had it. United States v. Jefferson, 2013 U.S. Dist. LEXIS 146102 (D. Neb. September 16, 2013).

Defense counsel wasn’t deficient during the suppression hearing for not calling defendant based on the strength of the government’s case. Lucas v. United States, 2013 U.S. Dist. LEXIS 147426 (W.D. N.C. October 10, 2013).*

Defendant’s jail calls were recorded, and they are not a fruit of his allegedly unlawful arrest, even if it was. United States v. Houston, 2013 U.S. Dist. LEXIS 147454 (E.D. Tenn. September 4, 2013).*

Permalink 06:46:48 am, by fourth, 339 words, 564 views   English (US)
Categories: General

D.Md.: McNeely retroactive to cases not final; no GFE

Defendant was stopped on the B-W Parkway in Maryland for suspicion of DWI and was taken to the hospital for an involuntary blood draw. McNeely was decided after it happened, and it is found retroactive to pending cases. This case is controlled by McNeely. Because no court applied Davis good faith to McNeely’s case, this court wouldn’t here. Motion to suppress the blood test is granted. United States v. Brown, 2013 U.S. Dist. LEXIS 147352 (D. Md. October 11, 2013):

=> Read more!

10/13/13

Permalink 12:49:16 pm, by fourth, 579 words, 787 views   English (US)
Categories: General

New Law Review Article: Binary Searches and the Central Meaning of the Fourth Amendment

New Law Review Article: Binary Searches and the Central Meaning of the Fourth Amendment by Lawrence Rosenthal in William & Mary Bill of Rights Journal, Forthcoming

Abstract:

=> Read more!

Permalink 12:33:29 pm, by fourth, 101 words, 327 views   English (US)
Categories: General

WaPo: Effort underway to declassify document that is legal foundation for NSA phone program

Permalink 12:31:19 pm, by fourth, 84 words, 802 views   English (US)
Categories: General

NYT: N.S.A. Director Firmly Defends Surveillance Efforts

NYT: N.S.A. Director Firmly Defends Surveillance Efforts by David E. Sanger and Thom Shanker:

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10/12/13

Permalink 08:02:08 am, by fourth, 166 words, 505 views   English (US)
Categories: General

WA: Purse in lap at time of arrest subject to SI

Defendant’s purse in her lap at the time of her arrest could be searched incident to her arrest in a car. It was clearly associated with her person. State v. Byrd, 178 Wn.2d 611, 310 P.3d 793 (2013), revg State v. Byrd, 162 Wn. App. 612, 258 P.3d 686 (2011) (posted here):

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Permalink 07:54:41 am, by fourth, 99 words, 227 views   English (US)
Categories: General

CA5: Where PC already exists, dog sniff at door doesn't require suppression under Jardines

There was a dog sniff at the door, but there was otherwise probable cause, and the search is not suppressed. Therefore, Jardines is not implicated because it depends completely on the sniff. United States v. Nagy, 2013 U.S. App. LEXIS 9308 (5th Cir. May 7, 2013); United States v. Evans, 2013 U.S. Dist. LEXIS 146330 (S.D. Tex. October 9, 2013). [Note: Nagy did not come in the daily download from Lexis back in May because the key words are not in the case.]

Plaintiff’s adult daughter with equal access consented to police entry; summary judgment affirmed. Barrera v. Kroskey, 535 Fed. Appx. 735 (10th Cir. 2013),*

Permalink 07:40:09 am, by fourth, 160 words, 340 views   English (US)
Categories: General

N.D.Ohio: Daubert doesn't apply to SW process

The government doesn’t have to comply with Daubert in an affidavit for search warrant to show that investigative procedures in a child pornography case were reliable. United States v. Pirosko, 2013 U.S. Dist. LEXIS 146754 (N.D. Ohio October 10, 2013):

=> Read more!

Permalink 07:27:27 am, by fourth, 273 words, 354 views   English (US)
Categories: General

N.D.Cal.: Gov't didn't satisfy burden not to disclose under 41(g) on IRS SW

Property lawfully seized by an IRS search warrant is subject to return under Rule 41(g). Defendant was indicted in W.D. Tex. and sued in W.D. Ky. The government did not satisfy its burden that the information qualified as “return information.” The government is ordered to produce in 14 days or show why it shouldn’t in 5 days. In re 1015 E. Cliff Drive (Gourmet Express, LLC v. United States), 2013 U.S. Dist. LEXIS 146343 (N.D. Cal. October 9, 2013):

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10/11/13

Permalink 03:01:23 pm, by fourth, 29 words, 341 views   English (US)
Categories: General

The Guardian: Demands on Lavabit violated Fourth Amendment, lawyers say

The Guardian: Demands on Lavabit violated Fourth Amendment, lawyers say by Dominic Rushe:

Edward Snowden's email provider argues government order to hand over encryption keys jeopardised clients' personal details

Permalink 02:54:56 pm, by fourth, 115 words, 360 views   English (US)
Categories: General

WaPo: Try as it might, anti-surveillance group can’t avoid Washington

Permalink 09:07:19 am, by fourth, 166 words, 200 views   English (US)
Categories: General

D.Mass.: Knowledge jail calls would be recorded is consent when a call is made

Defendant knew his jail calls would be recorded, so he consented when he made a call. United States v. Graham, 2013 U.S. Dist. LEXIS 146824 (D. Mass. October 8, 2013).

Riding the center line is not a reason for a stop. State v. Nguyen, 2013 Iowa App. LEXIS 1038 (October 2, 2013).*

Defendant was stopped for window tinting and a lane change violation. When the stop was over, the officer said he’d “seen a lot of crazy things” and wanted consent. Defendant refused consent, so the officer got his drug dog out and it alerted. The argument on appeal wasn’t the same as in the trial court: “Considering Defendant's written motion to suppress and his counsel's oral argument, we find that Defendant did not raise in the trial court the same argument he is now raising on appeal — that Officer Henderson failed to acquire ‘new’ reasonable suspicion after the alleged conclusion of the traffic stop by the issuance of the Notice of Violation.” State v. Arisme, 123 So. 3d 1259 (La.App. 3 Cir. 2013).*

Permalink 05:26:48 am, by fourth, 70 words, 343 views   English (US)
Categories: General

D.C. cabdrivers sue over GPS in cab requirement

Washington City Paper: Five Cab Drivers Sue D.C. Over New Modernization Rules by Perry Stein:

Five taxicab drivers filed a class action suit in U.S. District Court against Taxicab Commission Chair Ron Linton Wednesday, claiming the commission's cab modernization requirements are discriminatory and a violation of the drivers' constitutional rights.

The rule also require GPS on cabs. The Southern District of New York upheld this six years ago.

10/10/13

Permalink 05:49:47 pm, by fourth, 161 words, 232 views   English (US)
Categories: General

LA5: RS not required to approach a person to talk to him about drugs on him

Defendant was not detained when he was approached by officers and asked if he had “anything illegal on” him. He said “a bag of weed.” Reasonable suspicion not required. State v. Alberti, 128 So. 3d 351 (La. App. 5 Cir. 2013).*

Similarly, officers did not need reasonable suspicion to approach defendant’s car to talk to him and then they saw marijuana in plain view. State v. Williams, 128 So. 3d 359 (La. App. 5 Cir. 2013).*

“If a defendant asserts such an interaction is a seizure rather than an encounter, he bears the initial burden of establishing that the interaction was a seizure rather than an encounter. See Woodard, 341 S.W.3d at 413. [¶] The difference between a detention and encounter is that a detention implicates the Fourth Amendment's search and seizure restrictions and requires articulable suspicion to support a temporary seizure, while an encounter is not subject to those requirements or restrictions.” This was a mere encounter. Amaya v. State, 2013 Tex. App. LEXIS 12509 (Tex. App. – El Paso October 9, 2013).*

Permalink 09:17:47 am, by fourth, 156 words, 241 views   English (US)
Categories: General

S.D.Ill.: IRS summons for records not an attempted Fourth Amendment seizure

Attempting to seize documents by an IRS summons is not a Fourth Amendment seizure. United States v. Sanders, 2013 U.S. Dist. LEXIS 145711 (S.D. Ill. October 9, 2013).

“We conclude that the intervening circumstances, including the traffic infraction, the discovery of Jackson as the driver whom the police had probable cause to arrest, and the position of Jackson's pants, were sufficient to dissipate any taint caused by the illegal reliance on the GPS device.” Jackson v. State, 996 N.E.2d 378 (Ind. App. 2013).*

“Here, Holbert acknowledges that officers had reasonable suspicion to initiate a Terry stop [for burglary] but contends that that suspicion did not justify placing him in handcuffs. ... Holbert also asserts that the officers did not have proper justification to pat him down and that the officers could not have recognized the marijuana on his person through the plain feel doctrine. We cannot agree with any of these arguments.” Holbert v. State, 996 N.E.2d 396 (Ind. App. 2013).*

Permalink 08:53:07 am, by fourth, 434 words, 494 views   English (US)
Categories: General

D.Del.: Google’s capturing URLs during user searches is not “content” under the wiretapping act

Google’s capturing URLs during user searches is not “content” under the wiretapping act. In re Google Inc., Cookie Placement Consumer Privacy Litigation, 2013 U.S. Dist. LEXIS 145727 (D. Del. October 9, 2013):

=> Read more!

10/09/13

Permalink 07:55:50 pm, by fourth, 44 words, 375 views   English (US)
Categories: General

Murderers are a better class of people than corporate lawyers

I just spent 100 hours or so on responding to a motion to dismiss in my one civil case.

I've decided that murderers are a better class of people than corporate lawyers. Once they're arrested, they at least have some sense they did something wrong.

Permalink 06:11:35 pm, by fourth, 131 words, 262 views   English (US)
Categories: General

Cal.4th: Officer responding to a fight call from an apt. didn't have to take defendant's word all was fine

An officer was delayed in responding to a fight call at an apartment, and he got to defendant’s premises and the others involved in the fight weren’t around and not answering the door. Defendant was outside saying that everything was fine. Officers were free to disregard his statement and enter to check on persons who could have been injured in the fight. Alternatively, defendant’s parole condition would have permitted the search. People v. Lester, 2013 Cal. App. LEXIS 800 (4th Dist. October 7, 2013).

Defendant was not in custody during a consensual search so Miranda warnings were not required. State v. Rosas-Miranda, 176 Wn. App. 773, 309 P.3d 728 (2013).*

Merely touching or crossing the fog line is not weaving, and this stop was without reasonable suspicion. State v. Beck, 2013 Mo. App. LEXIS 1161 (Mo. App. October 7, 2013).*

Permalink 05:54:53 pm, by fourth, 132 words, 239 views   English (US)
Categories: General

OH6: Surveillance video showed police violated curtilage

Surveillance video showed that the police were unjustifiably on the curtilage when they made the observations at issue, and that made the entry unreasonable. State v. Stacey, 2013 Ohio 4422, 2013 Ohio App. LEXIS 4678 (6th Dist. September 27, 2013).*

While the statute doesn’t say it, it implies that an administrative inspection warrant may issue only on probable cause to believe the inspection is necessary. Therefore, the housing inspection warrant ordinance is valid. Kaim Props. v. City of Mentor, 2013 Ohio 4291, 2013 Ohio App. LEXIS 4695 (11th Dist. October 8, 2013).*

Even assuming the search of defendant’s trash was unlawful because of where it was and it was included in an alleged Franks violation, there was still probable cause on the remainder of what was submitted to the magistrate. United States v. Maguire, 2013 U.S. Dist. LEXIS 145175 (D. S.D. October 1, 2013).*

Permalink 05:43:35 pm, by fourth, 639 words, 354 views   English (US)
Categories: General

WY approves of telephonic or other remotely applied for SWs

Wyoming concludes that a telephonic or other remotely applied for search warrant [via Skype, for example?] is valid if there is a recording made that can be transcribed for preservation of the showing of probable cause. Smith v. State, 2013 WY 122, 2013 Wyo. LEXIS 127 (October 4, 2013):

=> Read more!

Permalink 03:29:00 pm, by fourth, 87 words, 362 views   English (US)
Categories: General

Atlantic: The Single Best Overview of What the Surveillance State Does With Our Private Data

10/08/13

Permalink 07:04:35 pm, by fourth, 148 words, 324 views   English (US)
Categories: General

D.Ariz.: Intoxication alone doesn’t make consent invalid

Intoxication alone doesn’t make consent invalid. United States v. Smith, 2013 U.S. Dist. LEXIS 144719 (D. Ariz. October 7, 2013).

In a rare case, the court finds the officer not credible on the question of whether defendant committed a lane violation, and it finds the stop was without reasonable suspicion. United States v. Garcia, 2013 U.S. Dist. LEXIS 144495 (N.D. Tex. October 7, 2013).*

Defendant validly knowingly and intelligently waived his search claim by pleading guilty. Condrey v. United States, 2013 U.S. Dist. LEXIS 144688 (N.D. W.Va. July 12, 2013).*

Defendant had evidence against him suppressed in New York state court. He was later indicted in federal court for something else, and, even if defense counsel had successfully moved to suppress the search in federal court, defendant can’t show that the outcome would be different, so he does not prevail. Garza v. United States, 2013 U.S. Dist. LEXIS 144823 (S.D. Ala. June 10, 2013).*

Permalink 05:34:09 pm, by fourth, 82 words, 385 views   English (US)
Categories: General

Politico: California driving Internet privacy policy

Permalink 05:22:37 pm, by fourth, 108 words, 386 views   English (US)
Categories: General

Michigan Capitol Confidential: State Tax Chief Encourages Inspectors To Enter Homes; Refusal Could Lead To Higher Assessment

Permalink 05:20:07 pm, by fourth, 89 words, 431 views   English (US)
Categories: General

Peoples world: Ellsberg warns of "surveillance state"

Peoples world: Ellsberg warns of "surveillance state" by A.B. Wilkinson:

=> Read more!

Permalink 11:52:13 am, by fourth, 288 words, 571 views   English (US)
Categories: General

E.D.Pa.: Court order for DNA on less than probable cause violates Fourth Amendment

Court order for DNA on less than probable cause violates Fourth Amendment. United States v. Martinez, 2013 U.S. Dist. LEXIS 144499 (E.D. Pa. October 7, 2013):

=> Read more!

10/07/13

Permalink 09:00:31 pm, by fourth, 130 words, 379 views   English (US)
Categories: General

Politico: Surveillance panel shut down

Politico: Surveillance panel shut down by Josh Gerstein and Mike Allen:

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Permalink 08:38:05 pm, by fourth, 92 words, 435 views   English (US)
Categories: General

NYT: Drug Testing in Schools Divides North Jersey District

Permalink 07:03:22 am, by fourth, 114 words, 291 views   English (US)
Categories: General

OH2: Defendant’s stop coming out of a drug house as a search warrant arrived was reasonable under Summers

Defendant’s stop coming out of a drug house as a search warrant arrived was reasonable under Summers and Bailey. State v. Burdette, 2013 Ohio 4395, 2013 Ohio App. LEXIS 4635 (2d Dist. October 4, 2013).*

Defendant characterized himself as an overnight guest in the place searched. He was asleep on the couch after a party and didn’t testify. “We find from this limited evidence appellant was not at the Blymyer residence as an "overnight guest" as contemplated by Olson.” State v. Grose, 2013 Ohio 4387, 2013 Ohio App. LEXIS 4625 (5th Dist. September 27, 2013).*

Reasonable suspicion existed from defendant’s recent purchase of more pseudoephedrine with an alert from a computer system of pseudo purchases. State v. Solis, 409 S.W.3d 584 (Mo. App. 2013).*

Permalink 06:52:24 am, by fourth, 126 words, 218 views   English (US)
Categories: General

E.D.Pa.: In document SW, all 6 hard drives in house could be searched

In a document search warrant, the government could seize and search six hard drives from defendant’s house and examine each to look for the sought after records. United States v. Brown, 2013 U.S. Dist. LEXIS 143689 (E.D. Pa. October 3, 2013).*

Two controlled buys corroborated the CI. The search warrant was issued more than a month after the second controlled buy and it wasn’t stale because this was an ongoing drug operation. United States v. Gragg, 2013 U.S. Dist. LEXIS 143411 (N.D. Iowa October 1, 2013).*

Officers had reasonable suspicion to stop the car because of being involved in a gang shooting with a shooting victim in the car and them looking for the shooters to retaliate. In the Interest of L. P., 324 Ga. App. 78, 749 S.E.2d 389 (2013).*

Permalink 06:12:53 am, by fourth, 192 words, 195 views   English (US)
Categories: General

N.D.Ga.: Use of flash bang in search not so excessive search should be suppressed

Use of a flash bang device as an excessive search requiring suppression of the search is rejected. “The primary case relied upon by Defendants is Boyd v. Benton Co., 374 F.3d 773 (9th Cir. 2004) which was a civil rights suit brought alleging excessive use of force by police officers. Though the Boyd court found that the use of the flash bang device was an excessive use of force, the question of admissibility of evidence in a criminal proceeding was not addressed.” United States v. Honeycutt, 2013 U.S. Dist. LEXIS 143512 (N.D. Ga. October 3, 2013).

Defendant’s generalized motion to suppress on numerous grounds is denied for lack of specificity. He didn’t have the warrant affidavit when making the motion. United States v. Carraway, 2013 U.S. Dist. LEXIS 143086 (S.D. Ill. October 3, 2013).*

Defendant was speeding 85 in a 55 and was stopped. He told the officer that there was an emergency at his home with his elderly mother, and the officer followed him there. There was exigent circumstances from the entry, and defendant never objected to the officer following him into the house. United States v. Ruppert, 2013 U.S. Dist. LEXIS 144054 (W.D. N.Y. June 14, 2013).*

Permalink 06:06:10 am, by fourth, 410 words, 552 views   English (US)
Categories: General

D.Utah: Miranda violation led to unreasonable search of bag

Defendant’s statements were involuntary under Miranda and suppressed. That led to an unreasonable seizure of evidence in his bag. United States v. Archuleta, 2013 U.S. Dist. LEXIS 143490 (D. Utah October 3, 2013):

=> Read more!

Permalink 06:00:41 am, by fourth, 419 words, 346 views   English (US)
Categories: General

D.Utah: Co-conspirator claiming duty to keep car secure still did not have standing

Co-conspirator told to drive somebody else’s car with drugs in it who had a duty to keep the car secure still did not have standing. United States v. Santos, 2013 U.S. Dist. LEXIS 143489 (D. Utah October 3, 2013):

=> Read more!

Permalink 05:48:48 am, by fourth, 205 words, 189 views   English (US)
Categories: General

AFCCA: Consent when told "if you've done nothing wrong," you're OK is valid

Defendant was brought in to talk about her husband’s arrest for drug activity off-base. She was not the focus of the investigation. “One of the AFOSI agents took the smoke break with the appellant. He testified, ‘I told her that it’s just a consent to search her house; we weren't looking at her we were looking at her husband, and she didn't have to sign it.’ He also told the appellant ‘if she hadn't done anything wrong that [sic] she had nothing to worry about.’” She consented, and it was valid. United States v. Olson, 2013 CCA LEXIS 822 (A.F. C.C.A. September 11, 2013).*

Officers were inside by consent, and they were looking for somebody involved in a shooting. They told defendant to stand up and a gun was under where he was lying. That was in plain view. United States v. Antone-Herron, 2013 U.S. Dist. LEXIS 142589 (N.D. Ala. September 20, 2013).*

Defense counsel was not ineffective for not challenging GPS on his car where Jones was decided two years after his conviction. It would have been overruled at the time and affirmed on appeal, and the good faith exception would have applied. Hutcherson v. United States, 2013 U.S. Dist. LEXIS 143249 (N.D. Tex. July 19, 2013).

Permalink 05:35:07 am, by fourth, 220 words, 512 views   English (US)
Categories: General

C.D.Cal.: No reasonable expectation of privacy in historical cell site location data

There is no reasonable expectation of privacy in historical cell site location data. In any event, the good faith exception would apply. United States v. Moreno-Nevarez, 2013 U.S. Dist. LEXIS 143900 (S.D. Cal. October 1, 2013):

=> Read more!

10/06/13

Permalink 09:42:24 am, by fourth, 350 words, 427 views   English (US)
Categories: General

TX13: Emergency entry is based on what’s supposedly happening in the home, not outside it

Emergency entry is based on what’s supposedly happening in the home, not outside it. State v. Bland, 2013 Tex. App. LEXIS 12427 (Tex. App. – Corpus Christi - Edinburg October 3, 2013):

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Permalink 09:21:42 am, by fourth, 193 words, 619 views   English (US)
Categories: General

IL: There is no such thing in Illinois as a "motion to quash arrest"

There is no such thing in Illinois as a "motion to quash arrest." People v. Ramirez, 2013 IL App (4th) 121153, 996 N.E.2d 1227 (2013):

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Permalink 09:05:53 am, by fourth, 360 words, 420 views   English (US)
Categories: General

CA7: Consent to seize "whatever documents or items of property whatsoever they deem pertinent to their investigation" is what defendant was told

A broad consent form authorized the police to seize "whatever documents or items of property whatsoever they deem pertinent to their investigation" has to be read in light of what the officers were investigating and the interactions between the suspect and the police. Police questioned defendant over his relationship with a 16 year old girl he’d been communicating with on the internet. It was limited enough in execution and did not lead to an overbroad seizure. United States v. Anderson, 533 Fed. Appx. 668 (7th Cir. 2013):

=> Read more!

10/05/13

Permalink 04:16:41 pm, by fourth, 77 words, 538 views   English (US)
Categories: General

NPR: When Should Police Use Deadly Force?

Permalink 02:49:42 pm, by fourth, 67 words, 450 views   English (US)
Categories: General

WaPo: Secret NSA documents show campaign against Tor encrypted network

WaPo: Secret NSA documents show campaign against Tor encrypted network by Barton Gellman, Craig Timberg, and Steven Rich:

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Permalink 09:50:37 am, by fourth, 606 words, 584 views   English (US)
Categories: General

CA8: Once PC develops to search a car for drugs because of a hidden compartment, the search may be destructive

Once probable cause develops to search a car for drugs because of a hidden compartment, the search may be destructive. United States v. Guevara, 731 F.3d 824 (8th Cir. 2013):

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Permalink 09:27:01 am, by fourth, 164 words, 234 views   English (US)
Categories: General

S.D.Ohio: Withdrawing motion to suppress “pursuant to calculated strategy” not IAC

Defense counsel “withdrew the motion to suppress pursuant to calculated strategy,” so there is no Strickland failure of performance. Lee v. United States, 2013 U.S. Dist. LEXIS 143372 (S.D. Ohio October 3, 2013). [Not every motion to suppress is worth pursuing, and many times the evidence illegally seized may even help the defense case. § 60.19 of the Fifth Edition.]

“The specificity, predictive value, and recency of Bracy’s tip are sufficiently strong to balance the flaws in Bracy’s personal credibility and reliability. A total evaluation of these factors shows that the informant tip was supported by sufficient ‘indicia of reliability’ to satisfy the reasonable suspicion requirements under Terry.” There ultimately was probable cause, and that moots the lack of consent claim. United States v. Powell, 732 F.3d 361 (5th Cir. 2013).*

Officers arrested suspects outside the house and then did a knock-and-talk which led to valid consent. It was then used as a valid protective sweep. United States v. Dangla-Sanchez, 2013 U.S. Dist. LEXIS 143025 (W.D. Mo. October 3, 2013).*

Permalink 09:17:50 am, by fourth, 456 words, 443 views   English (US)
Categories: General

DC: Arrest for future crime was without probable cause

The arrest of defendant for carrying a weapon, a police baton, was without probable cause to believe he was going to presently use it against another person. Also, search incident of his car for the future potential crime of impersonating an officer is without probable cause. Tuckson v. United States, 77 A.3d 357 (D.C. 2013):

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Permalink 09:09:22 am, by fourth, 341 words, 373 views   English (US)
Categories: General

D.Nev.: Franks violation proved, and search suppressed

Franks violation proved, and search suppressed: The officer had 11 days to prepare the search warrant and reckless or worse put in false facts, and the court decides that rehabilitation of the affidavit would be unwise and encourage Franks violations. Reevaluation with other inculpatory and omitted exculpatory evidence leaves it wanting. United States v. Gaines, 2013 U.S. Dist. LEXIS 143853 (D. Nev. October 4, 2013), R&R 2013 U.S. Dist. LEXIS 143849 (D. Nev. June 19, 2013):

=> Read more!

Permalink 08:38:34 am, by fourth, 153 words, 237 views   English (US)
Categories: General

CA3: Facts not in dispute show exigency; no clear error on remainder (moot anyway)

District court’s decision crediting one witness over another in a question of exigent circumstances to enter a house during a domestic call is not clearly erroneous. The facts not in dispute showed exigency. United States v. Wood, 542 Fed. Appx. 208 (3d Cir. 2013).*

Defense counsel was not ineffective for not challenging a consent search of the place he was arrested in on a federal warrant where consent was given by his girlfriend. Hutcherson v. United States, 2013 U.S. Dist. LEXIS 143249 (N.D. Tex. July 19, 2013).*

Officers had a search warrant for a computer, but not for child pornography. Defendant was suspected of expecting a 14 year old girl to show up at his house, and the computer search was for evidence related to that. On file “a bucket,” officers found child porn, and it was found in plain view during an otherwise valid search. United States v. Skow, 2013 U.S. Dist. LEXIS 143357 (N.D. Ga. June 27, 2013).*

10/04/13

Permalink 01:55:50 pm, by fourth, 93 words, 338 views   English (US)
Categories: General

Popular Mechanics: If a Drone Falls in Manhattan, Does Anyone Get in Trouble?

Permalink 01:35:41 pm, by fourth, 102 words, 334 views   English (US)
Categories: General

techdirt: EFF Lawsuit Uncovers Abuse Of Surveillance Drones; DHS Files Motion To Suppress Further Transparency

Permalink 09:38:30 am, by fourth, 159 words, 382 views   English (US)
Categories: General

D.Utah: Defendant driving a borrowed car showed standing without having to call the owner as a witness

Defendant driving a borrowed car had and showed standing without having to call the owner as a witness. United States v. Pettit, 2013 U.S. Dist. LEXIS 143353 (D. Utah October 2, 2013):

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Permalink 09:31:41 am, by fourth, 266 words, 363 views   English (US)
Categories: General

D.Minn.: Jardines doesn't apply to common area of apt. building

Jardines does not apply to an apartment building's common area. Alternatively, the landlord gave explicit license for them to be there. United States v. Penaloza-Romero, 2013 U.S. Dist. LEXIS 142810 (D. Minn. July 25, 2013):

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Permalink 12:00:42 am, by fourth, 91 words, 323 views   English (US)
Categories: General

OR rejects Florida v. Harris, and state must prove reliability of drug dog

Oregon rejects Florida v. Harris and requires the state show the reliability of the drug dog in its case, State case law already said that. State v. Farmer, 258 Ore. App. 693, 311 P.3d 888 (2013).

Seizure of an envelope from a car was without probable cause. Drugs were found in it, and it was suppressed. State v. Currin, 258 Ore. App. 715, 311 P.3d 903 (2013).*

Trial court’s failure to articulate reasons for court ordered drug test and lack of results in the record voided the contempt. State v. Stafford, 2013 Ohio 4356, 2013 Ohio App. LEXIS 4594 (7th Dist. September 26, 2013).*

Permalink 12:00:29 am, by fourth, 167 words, 184 views   English (US)
Categories: General

S.D.Ga.: Search of defendant's car was without PC; towing no excuse for inventory here

The search of defendant’s car was unreasonable and not supported by any exception. The inevitable discovery exception didn’t apply because it was going to be towed it could be inventoried because it was lawfully parked in a parking space in an apartment complex parking lot. It wasn’t on the roadway. United States v. Bennett, 2013 U.S. Dist. LEXIS 142513 (S.D. Ga. August 19, 2013).

Prior appellate decision that defendant was lawfully arrested before he made his statement incriminating himself binds this case since it was the same arrest. State v. Cox, 2013 Tenn. Crim. App. LEXIS 855 (September 30, 2013).*

Defendant was brought back to the scene of a hit and run accident as a passenger with her boyfriend. He at first said he was at fault, but the officer didn’t believe him, so he talked to her and she broke down and admitted it was her and he had too much to drink. This was a consensual encounter. Lewis v. State, 412 S.W.3d 794 (Tex. App. – Amarillo September 30, 2013).*

Permalink 12:00:14 am, by fourth, 87 words, 210 views   English (US)
Categories: General

UT: Stop was without RS and immediately turned to drugs; suppressed

Officers lacked reasonable suspicion for defendant’s detention, even to get his PO to do it, and the stop was unreasonably extended resulting in finding drugs. Officers abandoned the traffic stop and immediately turned to a drug investigation. Ordered suppressed. State v. Gurule, 2013 UT 58, 2013 Utah LEXIS 153 (October 1, 2013).

Defense counsel was not ineffective for not challenging the GPS placement on his car which was legal under Fifth Circuit precedent at the time it was put there. Hernandez v. United States, 2013 U.S. Dist. LEXIS 142638 (N.D. Tex. June 5, 2013).*

10/03/13

Permalink 07:33:54 am, by fourth, 134 words, 294 views   English (US)
Categories: General

CA11: Shoving officer during knock-and-talk justified pursuit into the premises

During a knock and talk, defendant consented to a search then shoved the officer in the chest, fleeing inside the house. The officers could pursue him inside because of the battery on the officer occurring in the doorway. United States v. Williams, 731 F.3d 1222 (11th Cir. 2013).*

There was a shooting at a convenience store, and the people fleeing in a car were described to the police. Officers went to the house the car was registered at and found it. When the door opened, they found the persons matching the description of the suspects. Consent to enter was given. They told defendant to stand up, and a gun was under him. The search by consent was valid as was seizure of the gun. United States v. Herron, 2013 U.S. Dist. LEXIS 142589 (N.D. Ala. September 20, 2013).*

Permalink 07:26:58 am, by fourth, 340 words, 388 views   English (US)
Categories: General

S.D.Miss.: Officer detained defendant without RS, consent invalid

Defendant was stopped on I-20 for following too close, and the officer suspected him of transporting persons illegally in the U.S. The stopped dragged on. “The relevant inquiry, however, is at what point the questioning and investigation should have concluded.” The video shows that the officer always had the intent to search the car, and the stop is suppressed because the officer extended the stop without justification. United States v. Alvarado, 2013 U.S. Dist. LEXIS 142611 (S.D. Miss. October 2, 2013):

=> Read more!

Permalink 07:13:10 am, by fourth, 128 words, 204 views   English (US)
Categories: General

D.Vt.: SW seeking "electronic/digital devices/media" permitted officers to seize cell phones

Search warrant seeking "electronic/digital devices/media" permitted officers to seize cell phones. United States v. Reed, 2013 U.S. Dist. LEXIS 142337 (D. Vt. October 2, 2013).*

Defendant’s furtive movements justified his search, so defense counsel was not ineffective for not challenging it. State v. Farrey, 2013 Ohio 4263, 2013 Ohio App. LEXIS 4483 (9th Dist. September 30, 2013).*

Defendant took his computer to CompUSA for repair in 2005, and the computer tech found child pornography on the computer and called the police. That was a valid private search. For some reason, the investigation started again in 2009, and the police when to defendant’s house and his wife with apparent or actual authority consented to a search of his computer and found more child pornography. The searches were valid. United States v. Tosti, 733 F.3d 816 (9th Cir. 2013).*

Permalink 07:07:27 am, by fourth, 252 words, 556 views   English (US)
Categories: General

S.D.Ind.: CI’s bringing video surveillance into defendant’s house was not Fourth Amendment violation

CI’s bringing video surveillance into defendant’s house was not Fourth Amendment violation. United States v. Phill, 2013 U.S. Dist. LEXIS 142286 (S.D. Ind. October 2, 2013):

=> Read more!

Permalink 06:13:43 am, by fourth, 105 words, 295 views   English (US)
Categories: General

HuffPo: NSA Phone Records Collection Can't Be Challenged By The Callers, Government Argues

10/02/13

Permalink 04:44:36 pm, by fourth, 65 words, 579 views   English (US)
Categories: General

NPR: Your Digital Trail: Does The Fourth Amendment Protect Us?

Permalink 01:12:03 pm, by fourth, 156 words, 319 views   English (US)
Categories: General

NYT: The House is divided over almost everything. But FISA Court reform might be able to unite it

Permalink 01:08:14 pm, by fourth, 64 words, 294 views   English (US)
Categories: General

NYT: Google Accused of Wiretapping in Gmail Scans

Permalink 01:02:32 pm, by fourth, 56 words, 301 views   English (US)
Categories: General

NYT: N.S.A. Experiment Traced U.S. Cellphone Locations

Permalink 12:00:04 pm, by fourth, 120 words, 177 views   English (US)
Categories: General

D.Ariz.: Consent is not revoked on the first finding of contraband

Open container found under defendant’s passenger seat in consent search was at least probable cause for his arrest under a tribal “community code.” Consent is not revoked on the first finding of contraband. Search of glove compartment after that was valid. United States v. Manuel, 2013 U.S. Dist. LEXIS 140845 (D. Ariz. September 30, 2013).

Defendant is not entitled to 2255 relief on a Gant search incident issue because Davis would foreclose relief. Craig v. United States, 2013 U.S. Dist. LEXIS 140518 (E.D. Tenn. September 30, 2013).*

Being slow to pull over and passenger’s furtive movements and smell of marijuana in the car justified a search of the car for weapons. Drugs were found. State v. Burgin, 2013 Ohio 4261, 2013 Ohio App. LEXIS 4484 (9th Dist. September 30, 2013).*

Permalink 11:49:34 am, by fourth, 161 words, 188 views   English (US)
Categories: General

N.D.Ga.: Off-duty officer could arrest for reckless driving then search incident

An off-duty Georgia officer had probable cause for a custodial arrest of defendant for reckless driving. “The fact that Officer Taddei was off-duty does not impact his authority to make the arrest for the traffic violations that he personally observed. See Griffis v. State, 295 Ga. App. 903, 904, 673 S.E.2d 348, 350 (2009).” [And it wouldn’t violate the Fourth Amendment anyway under Virginia v. Moore.] He opened defendant’s wallet and became suspicious and called detectives. This search incident of the wallet was valid. United States v. Corker, 2013 U.S. Dist. LEXIS 141923 (N.D. Ga. August 13, 2013).*

Defendant’s arrest for public intox, 11 miles from her home, was valid. She was underdressed for the snow and had to lean against the car to stay upright. The search incident revealing drugs was valid. State v. Vause, 2013 Ohio 4351, 2013 Ohio App. LEXIS 4587 (5th Dist. September 18, 2013).*

Drug dog’s alert to car was probable cause to search the trunk. State v. Reid, 2013 Ohio 4274, 2013 Ohio App. LEXIS 4492 (9th Dist. September 30, 2013).*

10/01/13

Permalink 05:00:41 pm, by fourth, 42 words, 610 views   English (US)
Categories: General

Cert. grant: Navarette v. California on anonymous tips justifying DWI stops

SCOTUS granted cert in Navarette v. California, 12-9490, today. Issue presented:

Does the Fourth Amendment require an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate dangerous driving before stopping the vehicle?

The opinion below is unpublished.

Permalink 11:49:42 am, by fourth, 123 words, 451 views   English (US)
Categories: General

Center for Investigative Reporting: Easily obtained subpoenas turn your personal information against you

Center for Investigative Reporting: Easily obtained subpoenas turn your personal information against you by G.W. Schulz:

=> Read more!

Permalink 11:44:00 am, by fourth, 161 words, 310 views   English (US)
Categories: General

Slate.com: The Dragnet’s Day in Court | The case that could destroy—or legitimize—mass NSA telephone surveillance

Permalink 11:34:17 am, by fourth, 306 words, 588 views   English (US)
Categories: General

OR: Animal cruelty can constitute an exigent circumstance

In two cases, Oregon holds that animal cruelty can constitute an exigent circumstance for a warrantless entry.

=> Read more!

Permalink 11:31:35 am, by fourth, 432 words, 1111 views   English (US)
Categories: General

OR: Entering a locked restroom to arrest defendant invaded his privacy; a restroom is his "bastion of privacy"

Police entering a locked restroom to arrest defendant invaded his privacy; "a restroom is his 'bastion of privacy.'" State v. Holiday, 258 Ore. App. 601, 310 P.3d 1149 ( 2013):

=> Read more!

Permalink 10:25:05 am, by fourth, 702 words, 459 views   English (US)
Categories: General

CA1: Lack of federal statutory authority for officer’s action does not make it a violation of the Fourth Amendment

Lack of federal statutory authority for officer’s action does not make it a violation of the Fourth Amendment, applying Virginia v. Moore. United States v. Ryan, 731 F.3d 66 (1st Cir. 2013):

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Permalink 06:04:36 am, by fourth, 222 words, 314 views   English (US)
Categories: General

Reason.com: Does Enforcing the Fourth Amendment Increase Gun Violence?

FourthAmendment.com

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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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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:
  Supreme Court:
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  General (many free):
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  Lexis.com $
  Lexis.com (criminal law/ 4th Amd) $
  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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