Archives for: October 2013, 07

10/07/13

Permalink 09:00:31 pm, by fourth, 130 words, 378 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, 434 views   English (US)
Categories: General

NYT: Drug Testing in Schools Divides North Jersey District

Permalink 07:03:22 am, by fourth, 114 words, 290 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, 217 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, 194 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):

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Permalink 06:00:41 am, by fourth, 419 words, 344 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):

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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, 511 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):

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting
www.johnwesleyhall.com

© 2003-14, online since Feb. 24, 2003

HWC e
URL hits since 2010

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

Fourth Amendment cases,
citations, and links

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Most recent SCOTUS cases:
2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)


Research Links:
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  Findlaw.com
  Findlaw.com (4th Amd)
  Westlaw.com $
  F.R.Crim.P. 41
  www.fd.org

  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (pdf)

  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)


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