Archives for: October 2013, 19

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!

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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

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URL hits since 2010

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citations, and links

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Most recent SCOTUS cases:
2009 to date:

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

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

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

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

2009-10 Term:

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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