Archives for: November 2013, 20

11/20/13

Permalink 02:47:46 pm, by fourth, 282 words, 392 views   English (US)
Categories: General

GA: Statement to defendant “give me the drugs you just bought” was a command, not a request

Officer’s statement to defendant “give me the drugs you just bought” was a command, not a request. Hernandez-Espino v. State, 324 Ga. App. 849, 752 S.E.2d 10 (2013):

=> Read more!

Permalink 02:30:31 pm, by fourth, 117 words, 178 views   English (US)
Categories: General

M.D.Pa.: SDT to officer to produce source code for P2P search software quashed; irrelevant to search issue which is a loser

Defendant sought a subpoena to test the software used on a P2P search of defendant’s computer. The subpoena is quashed because the information sought is not relevant to the Fourth Amendment issue which is settled, and defendant will lose for lack of a reasonable expectation of privacy. United States v. Brashear, 2013 U.S. Dist. LEXIS 163865 (M.D. Pa. November 18, 2013).*

The arresting and searching officer had PC to believe defendant had a gun in the car, and that authorized a search. United States v. Sands, 2013 U.S. Dist. LEXIS 163889 (N.D. Ill. November 18, 2013).*

Defendant’s admission he had a gun justified a pat down. United States v. Hines, 2013 U.S. Dist. LEXIS 164056 (N.D. Ga. November 18, 2013).*

Permalink 02:02:11 pm, by fourth, 203 words, 231 views   English (US)
Categories: General

N.D.Iowa: Warrantless entry by police officer after fire marshal entered to check on meth lab fire was valid

Defendant’s house was the subject of what fireman quickly decided was a meth lab fire. The fire marshal’s later entry was for a “cause and origin” determination, and it was justified by Tyler and Clifford. A police officer called during that entry was still justified in his entry. Later entries were by search warrant and were clearly justified. United States v. Mayne, 2013 U.S. Dist. LEXIS 163898 (N.D. Iowa November 15, 2013).

Officers found in a records check that defendant had a firearms prohibition. Based on another record, the affiant erroneously concluded that it was for domestic violence. The database consulted was regularly checked by LEOs and there was no reason to doubt its veracity. Therefore, the false statement was not recklessly nor maliciously made, and the Franks challenge fails. United States v. Franck, 2013 U.S. Dist. LEXIS 164451 (E.D. Wis. November 18, 2013),* R&R 2013 U.S. Dist. LEXIS 164452 (E.D. Wis. September 30, 2013).*

Defendant knew exactly what the police were looking for when he confessed to having child pornography on his computer before originally denying it. He was advised of his right to refuse consent and then consented to a search. United States v. Williams, 2013 U.S. Dist. LEXIS 164177 (N.D. Ga. November 18, 2013).*

Permalink 09:03:46 am, by fourth, 290 words, 387 views   English (US)
Categories: General

M.D.Pa.: Use of an alias to rent hotel room did not deny standing

Defendant failed to appear to serve a federal sentence, and he was found in New Mexico in a hotel room under an alias. His use of an alias to rent the hotel room did not deny him standing. United States v. Donahue, 2013 U.S. Dist. LEXIS 164351 (M.D. Pa. November 19, 2013):

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Permalink 09:00:02 am, by fourth, 128 words, 158 views   English (US)
Categories: General

CA8 doesn't have to decide egregious 4A violation in deportation proceeding here

“We need not decide today whether to join other circuits in holding that an egregious Fourth Amendment violation affirmatively compels exclusion in a removal proceeding because the Petitioners have not alleged an egregious violation.” Lopez-Fernandez v. Holder, 735 F.3d 1043 (8th Cir. 2013).*

Officers had reasonable suspicion to stop defendant. Independent of that, he was identified within an hour as being a suspect in a robbery. Ansley v. State, 325 Ga. App. 226, 750 S.E.2d 484 (2013).*

A police officer who called a prosecutor during a stop for legal advice was entitled to qualified immunity for relying on the advice even though it was contrary to clearly established law. Kelly v. Borough of Carlisle, 2013 U.S. App. LEXIS 23273 (3d Cir. November 19, 2013),* prior appeal Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010) (same).

Permalink 07:24:55 am, by fourth, 206 words, 153 views   English (US)
Categories: General

CA9: File names are enough to find PC it's CP without seeing the images

“File names and opinions of qualified investigating officers that images downloaded from a suspect's computer are ‘child pornography,’ even without a factual description of the images downloaded, may establish probable cause that child pornography will be found.” “Also, unsworn statements that are submitted with and that are, as a matter of common sense and realistic construction, considered part of the affidavit of a search warrant application may be considered as support for a magistrate's probable cause determination.” United States v. Bursch, 2013 U.S. App. LEXIS 23278 (9th Cir. November 19, 2013).*

The GPS tracking warrant was issued with PC and the good faith exception applied. United States v. Rios-Lopez, 2013 U.S. App. LEXIS 23280 (9th Cir. November 19, 2013).*

A claim that plaintiff’s Fourth Amendment rights were violated by not letting her go to the bathroom after was in jail didn’t lie against the arresting officers. Davenport v. Dovgin, 2013 U.S. App. LEXIS 23111 (7th Cir. November 14, 2013).*

The government had two valid reasons to pull defendant over: that his DL was suspended, and a detailed statement from a probationer that defendant was involved in a crime were both enough to be PC. United States v. Ove, 2013 U.S. Dist. LEXIS 163799 (D. Minn. October 4, 2013),* adopted 2013 U.S. Dist. LEXIS 163452 (D. Minn. November 18, 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
www.johnwesleyhall.com

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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)


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  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
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"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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