Archives for: November 2013, 10


Permalink 01:31:49 pm, by fourth, 110 words, 660 views   English (US)
Categories: General

You know your co-defendant’s become a snitch when his counsel won’t return or take your calls

You know your co-defendant’s become a snitch when his counsel won’t return or take your calls.

I’m supposed to be in trial this week, but ...

I figured this on my own after three days of trying. Trial is Wednesday-Friday. Then the deputy prosecutor confirmed it Friday afternoon. Surprise! No; not really. I’m not new at this. It’s happened before; it will happen again. I guess that happens from being “the most likely to go to trial.”

And I know co-defendant’s counsel doesn’t read this blog. Not that curious a lawyer.

(One of these days I will write some of these down for posterity.)

Permalink 11:23:50 am, by fourth, 74 words, 562 views   English (US)
Categories: General

NPR: Edward Snowden's NSA Revelations Keep Coming

Permalink 11:19:37 am, by fourth, 55 words, 520 views   English (US)
Categories: General

NYT: New York City Asks Court to Vacate Rulings on Stop-and-Frisk Tactic

Permalink 09:46:10 am, by fourth, 184 words, 971 views   English (US)
Categories: General

D.Vt.: Running P2P internet connection is an invitation to enter

After a lengthy suppression hearing in a child pornography case, the court concludes one of the government’s experts on protocols for finding hash values on a computer shouldn’t be credited, but, at bottom, it didn’t change the outcome. This was a computer left on in file sharing mode on a P2P network, and that was an invitation to enter. “Because there is no evidence that law enforcement's use of automated software reached information on Defendants' computers that was not made available for sharing by the public, Defendants' motions to suppress on the basis of a warrantless search in violation of the Fourth Amendment must be DENIED.” United States v. Thomas, 2013 U.S. Dist. LEXIS 159914 (D. Vt. November 8, 2013).*

In a dissent from denial of rehearing en banc, one judge finds the panel essentially blew off an immigration case’s Fourth Amendment claim with no discussion whatsoever, and more is required. Gupta v. McGahey, 2013 U.S. App. LEXIS 22596 (11th Cir. November 7, 2013).*

Defendant’s guilty plea waived his alleged Fourth Amendment claim. United States v. Hernandez, 2013 U.S. Dist. LEXIS 160142 (D. Nev. November 7, 2013).*

Permalink 09:34:28 am, by fourth, 189 words, 396 views   English (US)
Categories: General

OR: The officer has an obligation to communicate the end of the stop

Defendant’s stop was [state] unconstitutionally extended by the officer after the need for it ended, and his car was blocking defendant’s car, so the defendant did not feel free to leave. The officer offered to move the car, and the defendant didn’t say so, but that’s not determinative. State v. Peterson, 259 Or. App. 294, 313 P.3d 388 (2013):

=> Read more!

Permalink 09:27:48 am, by fourth, 124 words, 209 views   English (US)
Categories: General

CA2: In false arrest case, state court's ruling was properly ruled out under F.R.E. 403

A state court determination a 1983 plaintiff’s Fourth Amendment rights were violated in a criminal case ruled out at trial of the 1983 case under F.R.E 403 as more prejudicial than relevant and confusing to the jury. That was not an abuse of discretion. Thomas v. O'Brien, 2013 U.S. App. LEXIS 22664 (2d Cir. November 8, 2013).*

“[T]he Border Patrol agents identified ‘specific articulable facts, together with rational inferences from those facts, that reasonably warrant[ed] suspicion that the vehicle's occupant [was] engaged in criminal activity.’ Brignoni-Ponce, 422 U.S. at 884.” United States v. Carranza, 2013 U.S. Dist. LEXIS 159340 (W.D. Tex. November 7, 2013).*

Defendant’s Michigan parole search was authorized by regulation and satisfied Griffin. United States v. Mills, 2013 U.S. Dist. LEXIS 159739 (E.D. Mich. November 7, 2013).*

Permalink 09:08:43 am, by fourth, 182 words, 200 views   English (US)
Categories: General

CA7: An “unavoidable glance through the open door is not a search.”

Two Posner opinions of note involving the Fourth Amendment decided a day apart:

In Balthazar v. City of Chicago, 2013 U.S. App. LEXIS 22744 (7th Cir. November 8, 2013), police had a search warrant and were in an apartment building, and the officer with the battering ram went to the wrong door. Another officer yelled “wrong door,” but he couldn’t check the swing, and broke the door. They went to the right door and entered. The city promptly paid to fix the door, but the officers didn’t otherwise “search.” Plaintiff sued under § 1983. At trial, it was apparent she was lying, so they had to go with alternate theory and lost. “ If  you know you’re in the wrong place—a place you’re not authorized to search or want to search—the “unavoidable glance through the open door is not a search.”.*

Morrow v. May, 735 F.3d 639 (7th Cir. 2013)*, is a false arrest § 1983 case. It’s great, entertaining writing (appellant's counsel wouldn't think so) and you wonder why there was an appeal, but it adds nothing to the body of Fourth Amendment law.

Permalink 08:23:38 am, by fourth, 82 words, 367 views   English (US)
Categories: General San Diego Gets in Your Face With New Mobile Identification System

Permalink 12:12:57 am, by fourth, 335 words, 557 views   English (US)
Categories: General

CA10: Excessive and unnecessary use of a prisoner restraint chair when plaintiff was in juvenile detention overcame qualified immunity

A 1983 plaintiff stated a claim for excessive and unnecessary use of a prisoner restraint chair when he was in juvenile detention. Blackmon v. Sutton, 734 F.3d 1237 (10th Cir. 2013):

=> Read more!

Permalink 12:00:14 am, by fourth, 291 words, 337 views   English (US)
Categories: General

OH8: Single trash pull does not show PC for SW for house

A single trash pull, without more, is not probable cause of possession of drugs. State v. Jones, 2013-Ohio-4915, 2013 Ohio App. LEXIS 5109 (8th Dist. November 7, 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

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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:
  S. Ct. Docket
  Solicitor General's site
  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
  Oyez Project (NWU)
  "On the Docket"–Medill
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  General (many free):
  Google Scholar | Google
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  F.R.Crim.P. 41

  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."

"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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