Archives for: November 2013, 18


Permalink 02:25:38 pm, by fourth, 97 words, 347 views   English (US)
Categories: General

HuffPo: Big Brother's Always Been Watching Some of U.S.

HuffPo: Big Brother's Always Been Watching Some of U.S. by Laura W. Murphy and Sandra Fulton:

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Permalink 01:11:49 pm, by fourth, 63 words, 338 views   English (US)
Categories: General

Politico: SCOTUS passes up surveillance case

Permalink 01:04:19 pm, by fourth, 398 words, 292 views   English (US)
Categories: General

IN: Prior possession of $1m in cash in same trailer was factor in RS

Defendant was subjected to two stops of his truck. After he refused consent, he was let go on his way, but that officer radioed ahead to others who stopped him again after a traffic violation. This time, reasonable suspicion was found [and probably existed in the first stop]. His possession of a million in cash in the same trailer two years earlier was a factor. A dog alerted, and 90 pounds of cocaine was found. Austin v. State, 997 N.E.2d 1027 (Ind. 2013)*:

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Permalink 01:00:06 pm, by fourth, 282 words, 183 views   English (US)
Categories: General

W.D.Mo.: Leaving engine running while car unattended supported stop

The first justification offered by the officers was concededly a mistake of law, and defendant did not violate a city ordinance. However, another justification was that defendant left his engine running with the car unattended. That justified the stop. United States v. Williams, 2013 U.S. Dist. LEXIS 163241 (W.D. Mo. October 11, 2013).*

The lessee of an apartment has the ability to consent to its search as to all common areas he goes into. Nothing was shown to have been stored in a bag. People v. Plumley, 2013 NY Slip Op 7624, 111 A.D.3d 1418, 975 N.Y.S.2d 309 (4th Dept. 2013).*

The officers had at least arguable reasonable suspicion that the plaintiffs and decedent were going to commit a burglary in an area known for burglaries of vacant houses. They stopped and approached the three with their guns drawn, and the decedent wouldn’t take his hands from his pocket and pulled a gun which resulted in a gun battle where he and the two officers were shot. There was enough reasonable suspicion one of them was armed for qualified immunity. Clark v. City of Atlanta, 544 Fed. Appx. 848 (11th Cir. 2013).* [I know it’s tempting to say that the proof is in the pudding, but reasonable suspicion has to be based on what they knew not what happened, but plaintiffs weren’t in a good position here. A man died and both cops got shot, one potentially by the other. Bad facts and bad law and all that.]

Taking plaintiff’s facts as true at the pleading stage, a throwdown for a misdemeanor theft arrest resulting in a dislocated shoulder was excessive, and qualified immunity denied. Long v. Fulmer, 2013 U.S. App. LEXIS 23093 (10th Cir. November 15, 2013).*

Permalink 12:00:30 am, by fourth, 274 words, 614 views   English (US)
Categories: General

Cert. grant: Plumhoff v. Rickard, revisting Scott v. Harris, on reasonableness of deadly force

On Friday, SCOTUS granted cert. in Plumhoff v. Rickard, a Fourth Amendment reasonableness/qualified immunity case that essentially applies Scott v. Harris on the reasonableness of deadly force during a police chase that started in West Memphis, Arkansas and ended in Memphis, Tennessee, three years before Scott was decided. The issues:

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Permalink 12:00:09 am, by fourth, 153 words, 200 views   English (US)
Categories: General

D.Mass.: Named citizen informant who feared defendant was credited

The officer credits the named citizen informant who claimed to fear defendant, and the court does too. United States v. Smith, 2013 U.S. Dist. LEXIS 163009 (D. Mass. November 13, 2013).*

A USMJ issued a tracking warrant for installation of a GPS device, and it was issued with probable cause. Defendant led the police on a brief high speed chase, ditched the car, and ran across a freeway. That’s abandonment of the car. United States v. Smith, 2013 U.S. Dist. LEXIS 161722 (D. Minn. October 31, 2013).*

The strip search policy at the D.C. Superior Court cell block has changed, and the officers implementing the past policy have qualified immunity. Johnson v. Gov't of the Dist. of Columbia, 734 F.3d 1194 (D.C. Cir. 2013).*

The affidavit for the search of the apartment was with probable cause to believe the occupant was a drug courier from the mainland. United States v. Guzman, 2013 U.S. Dist. LEXIS 162920 (D. Haw. November 15, 2013).*

Permalink 12:00:05 am, by fourth, 846 words, 337 views   English (US)
Categories: General

CA6: Officers not immunized by shooting man in the smoke and noise from a flash bang device

Use of a flash bang device is governed by the Fourth Amendment. Its use by the police cuts both ways: It creates noise and smoke and a bright light, and it disables the citizen briefly, but it also disables the police. Are they reckless when they shoot into the smoke not fully knowing what’s going on? A jury will decide in this case. Jones v. Sandusky County, 541 Fed. Appx. 653 (6th Cir. 2013):

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Permalink 12:00:02 am, by fourth, 339 words, 348 views   English (US)
Categories: General

GA: Hard drive seized within 10 days of SW issued but not searched until later still validly searched

The search warrant for defendant’s computer hard drive was executed by its seizure within the ten days as required by statute. It was not, however, searched until after the ten days. That is not material. Mastrogiovanni v. State, 324 Ga. App. 739, 751 S.E.2d 536 (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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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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  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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