Archives for: November 2013, 17


Permalink 12:25:26 pm, by fourth, 140 words, 244 views   English (US)
Categories: General

OR: Apparently the state needs a photograph of a cracked windshield to justify stop on that basis

A stop based on a cracked windshield was not shown to be valid by the state. “The difficulty for the state's position is that there is insufficient evidence about the nature of the crack to conclude that McKay's observations made it objectively reasonable to believe that the windshield created the probable risk of harm or loss necessary to establish a violation of ORS 815.020. ‘[W]hether a windshield crack poses a danger depends on the characteristics of the crack.’ Stookey, 255 Ore. App at 499. The only information adduced about the crack at the motion to suppress hearing that distinguished this crack from the one in Stookey was that there was ‘some spiderwebbing’ of the crack.” [Apparently the state needs a picture of the cracked windshield.] The stop led to finding defendant’s DL was suspended. State v. Anderson, 2013 Ore. App. LEXIS 1368 (November 14, 2013).*

Permalink 11:36:22 am, by fourth, 135 words, 201 views   English (US)
Categories: General

D.Vt.: Offer of proof for a Franks violation required

Defendant did not support his claim of a Franks violation with an offer of proof. The affidavit said it did not include all facts (hardly any do). Even if he did make an offer of proof, he'd fail because there was probable cause. United States v. Ciotti, 2013 U.S. Dist. LEXIS 163134 (D.Vt. November 14, 2013).

Defendant’s search and seizure claim was waived by his guilty plea, so he can’t raise it in a 2255. United States v. Aleman, 2013 U.S. Dist. LEXIS 163095 (D. Minn. November 13, 2013).*

Defendant was stopped because of a man with a gun report at 4 am. When he was found with bullets but no gun, it was reasonable for the officers under Quarles’s public safety exception to ask about the gun. United States v. Smith, 2013 U.S. Dist. LEXIS 163009 (D. Mass. November 13, 2013).*

Permalink 10:10:22 am, by fourth, 146 words, 189 views   English (US)
Categories: General

TN: No 4A requirement to prove validity of NCIC car theft report after a stop

Defendant’s stop in Georgia for a traffic offense was reasonable because the car came back stolen. There is no constitutional reason for requiring the state prove that the person reporting the car theft was a “citizen informant.” She was connected to a murder in Tennessee. State v. Norwood, 2013 Tenn. Crim. App. LEXIS 990 (November 15, 2013).

The officer had reasonable suspicion for detaining defendant who was parked the wrong way in a rest area and seemed a little hyped up. The 20 minute wait for a drug dog was not unreasonable. State v. Rice, 2013-Ohio-5056, 2013 Ohio App. LEXIS 5241 (2d Dist. November 15, 2013).*

If there was a factual basis for ordering defendant out of the vehicle to continue the stop, the fact the officer mentioned one that turned out to be untrue doesn’t void the stop. Any basis is sufficient. State v. Sarno, 2013-Ohio-5058, 2013 Ohio App. LEXIS 5246 (2d Dist. November 15, 2013).*

Permalink 09:50:02 am, by fourth, 125 words, 190 views   English (US)
Categories: General

The Verge: The edge of the abyss: exposing the NSA's all-seeing machine

The Verge: The edge of the abyss: exposing the NSA's all-seeing machine by T.C. Sottek:

On November 4th, 1952, a new federal agency was created in secret, chartered with spying on foreign adversaries around the world. There was no mention in the press. There was no discussion on the floor of Congress. The existence of the agency appeared nowhere in the Federal Register.

"I know the capability that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return."
--Senator Frank Church on Meet The Press, 1975

Permalink 09:24:26 am, by fourth, 103 words, 185 views   English (US)
Categories: General

Ars Technica: NSA has no idea when it spies on Americans, top lawyer says

Ars Technica: NSA has no idea when it spies on Americans, top lawyer says by Cyrus Farivar:

Because doing so would "require a greater invasion of that person's privacy."

Speaking before a senatorial subcommittee on Wednesday, the intelligence community’s top lawyer told senators that the National Security Agency is incapable of knowing how often Americans’ data is captured inadvertently. Robert Litt, general counsel at the Office of the Director of National Intelligence, told the Senate Judiciary Subcommittee on Privacy the problem is that it would be “very resource-intensive” to figure out whether foreign targets are communicating with Americans, according to The Hill.

Permalink 08:54:37 am, by fourth, 75 words, 358 views   English (US)
Categories: General

NPR: Writers Especially Concerned About NSA Actions

Permalink 12:18:46 am, by fourth, 120 words, 275 views   English (US)
Categories: General

CA11: Controlled buy 10 days earlier with wiretap info not stale

Wiretap information and a controlled buy ten days before the SW issued for a house was not stale. United States v. Gray, 2013 U.S. App. LEXIS 23120 (11th Cir. November 15, 2013).*

“While the officers did not have absolute certainty that the Defendant was on the premises on March 13, 2012, this Court finds that the officers had at least a reasonable belief that the Defendant was within the premises,” and that made execution of the warrant reasonable. United States v. Foster, 2013 U.S. Dist. LEXIS 162925 (M.D. La. November 15, 2013).*

Defendant contended that some of the information for the SW was illegally obtained. But, even if it was, the remainder establishes probable cause. United States v. Aguilar, 2013 U.S. Dist. LEXIS 162965 (N.D. Ill. November 12, 2013).*

Permalink 12:04:11 am, by fourth, 128 words, 217 views   English (US)
Categories: General

N.D.Tex.: Video didn't support reason for traffic stop

The video of the stop does not support that defendant did not signal 100' before his turn. State v. Hneidy, No. 04-12-00692-CR, 2013 Tex. App. LEXIS 7788, 2013 WL 3279743 (Tex. App. – San Antonio June 26, 2013), is virtually identical, and the motion to suppress is granted. United States v. Gipson, 2013 U.S. Dist. LEXIS 162079 (N.D. Tex. November 14, 2013).*

The question whether defendant was arrested when handcuffed is really moot because a frisk was justified and it produced marijuana. United States v. McCullough, 2013 U.S. Dist. LEXIS 162402 (E.D. Tenn. September 4, 2013),* adopted 2013 U.S. Dist. LEXIS 161411 (E.D. Tenn. November 13, 2013).*

Defense counsel was not ineffective for not filing a motion to suppress on the grounds stated because it would fail. Penton v. United States, 2013 U.S. Dist. LEXIS 162325 (M.D. Ala. September 19, 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

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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:
  Supreme Court:
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  Briefs online (but no amicus briefs) 
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  General (many free):
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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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