Archives for: November 2013, 19

11/19/13

Permalink 07:56:13 pm, by fourth, 91 words, 553 views   English (US)
Categories: General

HuffPo: Florida Rep. Trey Radel, Busted On Cocaine Charge, Voted For Drug Testing Food Stamp Recipients

“He that is without sin among you, let him first cast a stone at her.”
--Jesus Christ, in John 8:7

Update: He pled Wednesday to misdemeanor probation in D.C. court.

HuffPo: Florida Rep. Trey Radel, Busted On Cocaine Charge, Voted For Drug Testing Food Stamp Recipients by Arthur Delaney:

=> Read more!

Permalink 03:47:02 pm, by fourth, 85 words, 312 views   English (US)
Categories: General

eff.org: Senators, Writers, Reporters, Defense Attorneys, and Surveillance Experts Back EFF's Suit Against the NSA

Permalink 01:20:42 pm, by fourth, 127 words, 213 views   English (US)
Categories: General

OH9: No standing to challenge another's arrest

One defendant cannot challenge another defendant’s arrest. Here, it was under a violation of a mutual aid agreement. State v. Mitchell, 2013 Fla. App. LEXIS 18003 (Fla. 2d DCA November 13, 2013).*

The interaction between defendant and the officer was consensual up until the officer grabbed his hand on seeing a baggie of dope. Then it was justified by reasonable suspicion. State v. Simmons, 2013-Ohio-5088, 2013 Ohio App. LEXIS 5285 (9th Dist. November 18, 2013).*

The defense cannot show clear error on whether taillights were operating or not on a car where the district court found that they weren’t based on the officer’s testimony and a proffer of evidence that was not necessarily reliable that the taillights were working some other time that month. United States v. McGee, 736 F.3d 263 (4th Cir. 2013).*

Permalink 11:43:15 am, by fourth, 1071 words, 414 views   English (US)
Categories: General

OH11: No per se rule that there is no reasonable expectation of privacy in a police interview room; here there was

There is no per se rule that there is no reasonable expectation of privacy in a police interview room. Here, the microphone was hidden in the thermostat. It should have been suppressed; however, the harmless error rule applied. State v. Williams, 2013-Ohio-5076, 2013 Ohio App. LEXIS 5278 (11th Dist. November 18, 2013):

=> Read more!

Permalink 10:52:08 am, by fourth, 143 words, 12780 views   English (US)
Categories: General

CA8: Working meth lab was exigent circumstance

Officers had both exigent circumstances and consent for an entry. Neighbors complained of a strong chemical smell coming from defendant’s house, and officers determined it was obviously from a meth lab. When they knocked, the fan turned off, and the people inside wouldn’t respond for a while. United States v. Reed, 2013 U.S. App. LEXIS 23178 (8th Cir. November 18, 2013).

The warrant for search of one defendant’s house was valid. Excluding the evidence challenged under Franks, there was still probable cause for the warrant. United States v. Gray, 544 Fed. Appx. 870 (11th Cir. 2013).*

Defendant’s motion to suppress merely argued he was a passenger in the back seat of a car that was not even alleged to be unlawfully stopped, so his motion to suppress is denied for lack of standing. United States v. Allie, 2013 U.S. Dist. LEXIS 163350 (W.D. Pa. November 18, 2013).*

Permalink 09:36:32 am, by fourth, 155 words, 194 views   English (US)
Categories: General

CA11: 404(b) motion is not a motion to suppress and waived Fourth Amendment issue

A motion to exclude evidence under 404(b) does not work like a motion to suppress under the Fourth Amendment. Taking it on plain error, it isn’t even error because the stuff was taken from a storage unit that was abandoned. Also there was a computer search issue, but there was no reasonable expectation of privacy in the computers because defendant gave them to her daughter to sell. United States v. Kannell, 2013 U.S. App. LEXIS 23206 (11th Cir. November 18, 2013).

Defense counsel was not ineffective for not arguing the issue in Jardines long before it was decided; it wouldn’t apply to these facts anyway, and, even if it did, Davis good faith would apply. United States v. Lozano, 2013 U.S. Dist. LEXIS 163670 (D. Minn. November 18, 2013).*

Defendant’s ducking to his right as he was pulled over for a seatbelt violation was a furtive movement justifying a frisk. United States v. Tillman, 543 Fed. Appx. 557 (6th Cir. 2013).

Permalink 09:30:30 am, by fourth, 501 words, 388 views   English (US)
Categories: General

N.D. Ga. follows Wurie and Smallwood and holds search incident of cell phone unreasonable

N.D. Ga. follows Wurie and Smallwood and holds search incident of cell phone unreasonable under Gant. United States v. Dixon, 2013 U.S. Dist. LEXIS 163674 (N.D. Ga. August 29, 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

HWC e
URL hits since 2010

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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:
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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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