Archives for: November 2013, 25

11/25/13

Permalink 08:56:28 pm, by fourth, 52 words, 442 views   English (US)
Categories: General

NRC (Netherlands): NSA infected 50,000 computer networks with malicious software:

NRC (Netherlands): NSA infected 50,000 computer networks with malicious software by Floor Boon, Steven Derix, and Huib Modderkolk:

=> Read more!

Permalink 08:40:54 pm, by fourth, 47 words, 346 views   English (US)
Categories: General

WSJ: Data Sweeps in Drug Cases Face Challenge

Permalink 07:38:05 am, by fourth, 275 words, 408 views   English (US)
Categories: General

New law review article: Shima Baradaran, Rebalancing the Fourth Amendment, 102 Geo. L.J. 1 (2013)

Permalink 01:00:00 am, by fourth, 124 words, 234 views   English (US)
Categories: General

GA: Consent to removing a pill box in a patdown wasn't consent to open it

Defendant was subjected to a patdown because he had a knife clipped to his pocket. He consented to removing a pill box from his pocket but not to its search, and the search of the box could not be justified by the frisk. McCormack v. State, 325 Ga. App. 183, 751 S.E.2d 904 (2013).

Mirandized defendant told he didn’t have to consent to search was found to have consented. United States v. Young, 2013 U.S. Dist. LEXIS 166621 (W.D. N.Y. November 22, 2013).*

The state parole search of defendant’s residence was valid. The PO received information defendant had drugs and guns, so he went there to look and found marijuana and a firearm. United States v. Perkins, 2013 U.S. Dist. LEXIS 166623 (W.D. N.Y. October 11, 2013).*

Permalink 12:30:02 am, by fourth, 173 words, 218 views   English (US)
Categories: General

ID: Comment on the refusal to consent here was harmless error

Defendant was accused of battery of a woman, and, when the police arrived, he refused to consent to police entry because he didn’t want them to see her. Assuming, arguendo, that this was clear constitutional error, there was plenty of other evidence admitted without objection proving the same thing. Thus, “Carmouche has not shown that the testimony referencing his exercise of his Fourth Amendment rights, and the prosecutor's brief comment on this testimony, affected the outcome of the trial proceedings. We conclude the error was harmless beyond a reasonable doubt.” State v. Carmouche, 2013 Ida. App. LEXIS 87 (November 21, 2013).

2255 petitioner consented to seizure and search of his computer, so the unsupported claim that the government searched it and lied about it has no merit. It appears that it was never searched. Hargrove v. United States, 2013 U.S. Dist. LEXIS 166361 (N.D. W.Va. September 18, 2013).*

Petitioner’s IAC allegation that defense counsel didn’t order the transcript of the suppression hearing alleges nothing about performance. State ex rel. Adkins v. Dingus, 2013 W. Va. LEXIS 1339 (November 21, 2013).*

Permalink 12:00:28 am, by fourth, 242 words, 203 views   English (US)
Categories: General

W.D.N.Y.: “Photographs” in a SW includes their digital or hard copy format

A search warrant for evidence of untaxed cigarette possession included a clause for seizing photographic evidence of possession of untaxed cigarettes. When executing the warrant, officers picked up a camera and looked at the screen and scanned photographs finding apparent child pornography. A common sense reading of “photographs” includes their digital or hard copy format. The search was valid because the warrant specifically included photographs, and it was in good faith. United States v. Miller, 2013 U.S. Dist. LEXIS 166618 (W.D. N.Y. August 16, 2013).

Defendant was arrested for bank robbery after his picture was picked out of about 1000 as the suspect. The video of the bank robbery is inconclusive, and it can’t be said that defendant was clearly not the robber. His wife consented to a search of their place, and a gun and ammunition were found, and he’s a felon in possession. United States v. Bartee, 2013 U.S. Dist. LEXIS 166366 (S.D. N.Y. November 12, 2013).*

Defendant “flipped his pickup truck” in the Great Smoky Mountains National Park, and it took the officer a while to get to do a field sobriety test. Some of the officer’s time was spent directing traffic around the scene. Based on the damage to defendant’s truck, the officer called EMS. He couldn’t do a field sobriety test until 25 minutes into it, and, all things considered, the officer acted reasonably. United States v. Lane, 2013 U.S. Dist. LEXIS 166339 (E.D. Tenn. November 5, 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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