Archives for: December 2013

12/31/13

Permalink 04:01:33 pm, by fourth, 710 words, 374 views   English (US)
Categories: General

E.D.N.Y.: Suspicionless border searches of laptop computers and other electronic devices are reasonable

Suspicionless border searches of laptop computers and other electronic devices are reasonable, following other courts. As to the named plaintiff, there was reasonable suspicion. Also, plaintiffs also don’t have standing against future searches. Abidor v. Napolitano, 2013 U.S. Dist. LEXIS 181891 (E.D. N.Y. December 31, 2013):

=> Read more!

Permalink 02:58:07 pm, by fourth, 68 words, 152 views   English (US)
Categories: General

Some USDC opinions added to state opinions page

Only a handful (11) of the 94 U.S. District Courts have opinion pages. They are: N.D.Ala., D.D.C., M.D.Ga., D.Kan., D.Me., D.Md., D.Mass., E.D.Mich., M.D.N.C., E.D.Pa., and D.R.I. These links were added this morning to the state opinions page.

If you've been to FDsys, it's TMI and unwieldy, in my view.

Permalink 07:35:09 am, by fourth, 159 words, 332 views   English (US)
Categories: General

ACLU files FOIA suit over mass govt's surveillance uses

Permalink 06:04:43 am, by fourth, 454 words, 342 views   English (US)
Categories: General

CA10: Wrongfully extending arrest on false charge stated Fourth Amendment malicious prosecution claim

Allegedly falsified factual basis for an arrest warrant states a § 1983 Fourth Amendment claim. Plaintiff surrendered on a warrant where his attorney had an agreement with the state he would bond out. Defendant then told the jail that he couldn’t be released because additional charges would be filed, and they were. Plaintiff was portrayed in the media as a methamphetamine dealer. After drug testing was done by the state lab, no controlled substances were found, and the charges were dismissed. Plaintiff properly filed a Fourth Amendment malicious prosecution claim. Myers v. Koopman, 2013 U.S. App. LEXIS 25357 (10th Cir. December 20, 2013):

=> Read more!

Permalink 05:00:00 am, by fourth, 89 words, 382 views   English (US)
Categories: General

Reason.com: L.A. DUI Checkpoints: Now With More Saliva in Your Questionable Fourth Amendment Practices

Permalink 04:00:00 am, by fourth, 150 words, 197 views   English (US)
Categories: General

ABAJ: 10 police raids gone wrong (gallery) and another year end note

(1) ABAJ: 10 police raids gone wrong (gallery)

(2) In the get a life department: When I signed on Christmas morning, about 7 am CT, I noted there were 363 people on this website, which is about the highest that I’ve noticed at any one time. [Note: The “Views” shown on the page are thus meaningless, and I have no idea how they are counted: e.g., the “views” of the most recent article were only about 50 at the time.] I reported that to my wife, sitting across the table from me in our home office, her also on her computer, and she said “Don't they have a life? Families?” “Well, it’s just the two of us here, and this is my job, every morning for the last 11 years. Not everybody has kids [anymore] to play with. If I didn’t do this everyday, I’d soon be incapable of catching back up.”

Permalink 12:07:24 am, by fourth, 105 words, 164 views   English (US)
Categories: General

OR: Seizure of noncontraband manuscript from jail cell violated state constitution

Under Oregon law, seizure of a noncontraband manuscript from a jail cell was unreasonable. It was admitted into evidence in a rape trial. State v. Moore, 260 Ore. App. 303, 317 P.3d 293 (2013), relying on State v. Hartman, 238 Or. App. 582, 243 P.3d 480 (2010), adh'd to as modified on recons, 241 Or. App. 195, 248 P.3d 448 (2011). [Caution: The law is otherwise everywhere else.]

Officers responded to a call of shots fired into a house by a young man well described. They found somebody matching the description close by. The stop and frisk was reasonable, and the trial court erred in suppressing. In re D.S., 2013-Ohio-5740, 2013 Ohio App. LEXIS 6011 (8th Dist. December 26, 2013).*

12/30/13

Permalink 05:25:48 pm, by fourth, 50 words, 238 views   English (US)
Categories: General

HuffPo: Cell Phone Carriers Didn't Use Tech Fixes To Combat NSA Spying: Expert

Permalink 05:23:33 pm, by fourth, 47 words, 209 views   English (US)
Categories: General

WaPo: FAA picks six states for drone testing

Permalink 07:34:15 am, by fourth, 135 words, 267 views   English (US)
Categories: General

eff.org: 2013 in Review: EFF Convinces Court to Declare National Security Letters Unconstitutional

Permalink 01:54:45 am, by fourth, 199 words, 211 views   English (US)
Categories: General

LA3: No reasonable expectation of privacy in a license plate number

There is no reasonable expectation of privacy in a license plate number. The police can run them through the computer system for warrants on the owner anytime they want. Jones v. Town of Woodworth, 132 So. 3d 422 (La.App. 3 Cir. 2013).

On an offer of proof at a juvenile hearing, the accused fled from the police when confronted, and he was shot while fleeing. Searched when he was finally stopped by the shooting, a shotgun shell was found on him, and that was the basis of the charge. The trial court noted that there’s nothing suspicious in having one’s hands in his coat pocket walking on a cold Chicago night. The case is remanded for a new suppression hearing because the offer of proof left a void in the record. After taking two years to get through first hearing and the interlocutory appeal, the appellate court wants it expedited on remand, and recommends settling the dispute with “a resolution of this case that is advantageous to all concerned.” In re Kendale H., 2013 IL App (1st) 130421, 2013 Ill. App. LEXIS 918 (December 27, 2013).*

Driving without headlights in a residential neighborhood was reasonable suspicion for a stop. State v. Jackson, 2013 Mo. App. LEXIS 1542 (December 26, 2013).*

Permalink 01:00:00 am, by fourth, 140 words, 236 views   English (US)
Categories: General

WA: Safe seized with SW doesn't need another SW to search it

Defendant’s pro se additional appellate grounds that a safe seized from his house in a murder case with a search warrant needed a separate search warrant to open it is rejected without comment. State v. Walker, 178 Wn. App. 478, 315 P.3d 562 (2013).*

Defense counsel was not ineffective for not moving to suppress a consent search of a car after defendant and his co-defendant were stopped and the car was full of stuff and the police suspected they were involved in a burglary. State v. Weimer, 2013-Ohio-5651, 2013 Ohio App. LEXIS 5916 (11th Dist. December 23, 2013).*

Defendant lived with his grandmother and she validly consented to a search of the living room, a common area as to the two of them. United States v. Dunn, 2011 U.S. App. LEXIS 26653 (6th Cir. December 15, 2011)* (yes, just came in, and it’s not on court’s website yet).

Permalink 12:04:54 am, by fourth, 87 words, 206 views   English (US)
Categories: General

CO: Trial court erred in putting burden on state to justify search under warrant at suppression hearing

The trial court erred in putting the initial burden on the state to justify a search under a search warrant. People v. Cunningham, 2013 CO 71, 314 P.3d 1289 (2013).

Defendant was stopped and arrested for speeding, estimated at 80 in a 25 after midnight in Kansas City in January 2009. His pre-Gant search incident of the passenger compartment finding a gun was valid. United States v. Gordon, 741 F.3d 872 (8th Cir. 2013).*

The district court did not clearly err in finding defendant consented. United States v. Taylor, 2013 U.S. App. LEXIS 25498 (7th Cir. December 23, 2013).*

12/29/13

Permalink 09:33:17 am, by fourth, 28 words, 312 views   English (US)
Categories: General

Politico: NSA surveillance: Lifeline, limbo

Politico: NSA surveillance: Lifeline, limbo by Jonathan Allen and Josh Gerstein:

The political system is likely to deliver a verdict on the program much sooner than the courts.

Permalink 08:43:13 am, by fourth, 222 words, 351 views   English (US)
Categories: General

Law.com: HBO, Videographer Spared Liability for Shooting in Raid (with case link)

Permalink 08:22:52 am, by fourth, 12 words, 168 views   English (US)
Categories: General

ACLU v. Clapper now on Lexis

ACLU v. Clapper, 959 F. Supp. 2d 724 (S.D. N.Y. 2013), posted here.

Permalink 02:00:00 am, by fourth, 489 words, 350 views   English (US)
Categories: General

PA: Impoundment of car on mistake of law makes inventory invalid

Defendant was stopped and had a suspended license. The officer believed that required a towing of the vehicle and an inventory. The state supreme court concludes otherwise, and the need to tow, and thus inventory, was essentially a mistake of law. “Impounding” the vehicle would have been accomplished by leaving it on the side of the road where it was not impeding traffic. The officer otherwise was acting in good faith and complied with the inventory policy, but that's not relevant. Commonwealth v. Lagenella, 83 A.3d 94 (Pa. 2013), rev’g 2011 PA Super 68, 17 A.3d 1257 (2011) (concurrence; dissent):

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Permalink 01:42:29 am, by fourth, 193 words, 273 views   English (US)
Categories: General

Two grow operations and citizen informants

Bailbondsmen were in defendant’s house to pick him up when they discovered a grow operation, and they called the police. The defendant consented to a search. There was probable cause for issuance of a warrant and the investigation was inevitably going to lead to a search warrant if he didn’t consent. The consent was valid by inevitable discovery. Rodriguez v. State, 129 So. 3d 1135 (Fla. 3d DCA 2013).

A propane truck driver making a delivery saw a grow operation with bright lights and all, and he reported it to the police [a citizen informer]. The affidavit for the search warrant based on his representation was issued with probable cause. Even if it wasn’t [there was], the good faith exception would save it because it wasn’t so lacking in probable cause it couldn’t be relied upon. State v. Elliott, 2013-Ohio-5753, 2013 Ohio App. LEXIS 6029 (5th Dist. December 23, 2013).* [This could have been a lot simpler: Look, the truck driver is a citizen informant, and his report is not subject to close scrutiny. He said he saw a grow, and the police took that to get a search warrant. How is that not PC?]

Permalink 01:00:00 am, by fourth, 175 words, 178 views   English (US)
Categories: General

CA6: Commercial building under demolition was "open field" because unfenced and unattended

Defendants were convicted of violations of the Clean Air Act for not properly having asbestos removal done on a building they were having demolished. They sought a permit for the work, but the company that was low bidder apparently wasn’t shown all that they had to do. When they finished their work, they left. The site remained unattended for at least a month when state pollution control inspectors showed up. The building was unlocked, without security to keep people out. They entered and took samples of asbestos. This commercial building being torn down was an “open field” without a reasonable expectation of privacy. United States v. Mathis, 738 F.3d 719 (6th Cir. 2013).

A regular library patron told the police that a juvenile with a group had a gun and was entering the library. The patron was treated as a citizen informer although a name wasn’t given, because he could be found again at the library. The tip was enough for a frisk. In re B.A.R., 2013-Ohio-5712, 2013 Ohio App. LEXIS 5993 (10th Dist. December 24, 2013).*

Permalink 12:04:37 am, by fourth, 493 words, 240 views   English (US)
Categories: General

ND: “mere fear or speculation that evidence might be destroyed” is not exigent circumstances

The district court upheld the search but the parties did a woeful job of making a record by stipulation, so remanded. Here, exigent circumstances were relied on in the trial court, but the record didn’t support it. “[A]n officer's mere fear or speculation that evidence might be destroyed does not justify a warrantless search and seizure under the exigent circumstances exception.” State v. Canfield, 2013 ND 236, 2013 N.D. LEXIS 234 (December 19, 2013):

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12/28/13

Permalink 04:00:28 am, by fourth, 272 words, 299 views   English (US)
Categories: General

FL3: Anonymous tip good enough for search for gun at school

Anonymous tip of possession of a gun at school was sufficient under T.L.O. for search of a book bag in school. A loaded gun was found. K.P. v. State, 129 So. 3d 1121 (Fla. 3d DCA 2013):

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Permalink 01:00:00 am, by fourth, 545 words, 283 views   English (US)
Categories: General

CA9: Gov't failed to prove necessity of impoundment of vehicle leading to inventory

The government failed to support inventory after impoundment by showing it was even necessary. All the record shows is the street names in Los Angeles where the vehicle was stopped, and including Google street maps in the brief is rejected as a method of supplementing the record on appeal. Because of the district court's prejudicial comments about the suppression issue at the hearing, the case is remanded and will be reassigned to another judge for a new suppression hearing. United States v. Burgos, 2013 U.S. App. LEXIS 25558 (9th Cir. December 23, 2013):

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Permalink 12:26:27 am, by fourth, 200 words, 176 views   English (US)
Categories: General

CA4: A sales receipt found in a search was “indicia of occupancy” under SW

A mall jewelry store was robbed and watches worth $275,000 were stolen. Two men were arrested, and a third got away. Information was later developed on defendant, and a search warrant was obtained for his house which included “indicia of occupancy.” A bag was looked in and it had a cash sales receipt for a Louis Vuitton belt for $461 for the day after the robbery in the name of an alias defendant used. “The fact that the warrant does not explicitly mention receipts is not determinative: ‘law enforcement officers may seize an item pursuant to a warrant even if the warrant does not expressly mention and painstakingly describe it.’” United States v. Dargan, 738 F.3d 643 (4th Cir. 2013).

In the trial court, defendant argued lack of consent. On appeal he argued that the probation officer lacked authority. That’s changing the argument. State v. Howard, 2013-Ohio-5691, 2013 Ohio App. LEXIS 5951 (5th Dist. December 6, 2013).*

“[A] request for consent to search a container is not itself an interrogation, Detective Cavaletti did not violate the Fifth Amendment when he asked Defendant for consent to search the cameras and the black box.” Further questioning about the box was interrogation. State v. Beasley, 416 S.W.3d 357 (Mo. App. 2013).*

Permalink 12:03:19 am, by fourth, 650 words, 298 views   English (US)
Categories: General

CA3: TSA officers get QI for detaining American with Arabic flash cards including "bomb" and "to kill"

TSA officials get qualified immunity for detaining an American at Philadelphia airport after his security screening revealed Arabic language flash cards that included "bomb," "terrorist," "explosion," "an attack," "battle," "to kill," "to target," "to kidnap," and "to wound." They couldn’t be expected to turn a blind eye to that. The security screening also included him being taken away in handcuffs and questioned for four hours. This case, however, is at the outer boundary of the Fourth Amendment and qualified immunity. George v. Rehiel, George v. Rehiel (3d Cir. 2013):

=> Read more!

12/27/13

Permalink 01:50:40 pm, by fourth, 202 words, 332 views   English (US)
Categories: General

AboveTheLaw: Author Of Torture Memo Says Judges Are Too Out Of Touch To Determine If NSA Violated The 4th Amendment

Permalink 12:25:41 pm, by fourth, 67 words, 386 views   English (US)
Categories: General

NYT: N.S.A. Phone Surveillance Is Lawful, Federal Judge Rules (updated link)

Permalink 07:22:05 am, by fourth, 162 words, 353 views   English (US)
Categories: General

MintPressNews: A U.S. citizen has accused Customs and Border Patrol officers of sexual assault after she endured a six-hour anal and vaginal cavity search

Permalink 06:58:07 am, by fourth, 142 words, 317 views   English (US)
Categories: General

SFGate: Attorney General: Marijuana Legalization Would Save Calif. "Hundreds of Millions"

Permalink 06:54:38 am, by fourth, 221 words, 341 views   English (US)
Categories: General

ND: Jardines and the drug sniffing dog at the door of a house does not apply to an apartment building

Jardines and the drug sniffing dog at the door of a house does not apply to an apartment building because apartments don’t have curtilage. State v. Nguyen, 2013 ND 252, 2013 N.D. LEXIS 258 (December 26, 2013):

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Permalink 01:00:14 am, by fourth, 210 words, 251 views   English (US)
Categories: General

OH7: Search of wallet during a frisk for weapons unreasonable

Defendant was fidgety and he was removed from the car and frisked. His wallet was removed. He was allowed back in the car but was still fidgety [there was stuff in the backseat that would have made it uncomfortable]. He consented to a second frisk. Yet, no weapon was ever found. The officer finally searched his wallet admitting that he was unconcerned about a weapon. The search of the wallet was unreasonable. State v. Dunlap, 2013-Ohio-5637, 2013 Ohio App. LEXIS 5898 (7th Dist. December 17, 2013).

Defense counsel was not ineffective for not filing a motion to suppress alleging third-party consent was coerced when defense counsel was never informed of any facts by the defendant to support that argument. The police reports said it was by consent, and the defendant and his witnesses didn’t contradict it. Kinsella v. State, 2013 ND 238, 2013 N.D. LEXIS 249 (December 19, 2013). [Note: Doesn't this beg the question of defense counsel's duty to inquire into whether the police reports were correct? After all, the writer of the police report isn't about to put in there that he "let me search, but I might have coerced consent." When debriefing the client, it is defense counsel's duty to at least ask about the voluntariness of consent and statements and the legality of searches.]

Permalink 12:29:56 am, by fourth, 121 words, 166 views   English (US)
Categories: General

OH5: ‘Blading’ one's body alone is not enough for RS

“[V]irtually the only suspicious activity the officer articulated was ‘blading’ his body away from the officer's view. We find this testimony insufficient to conclude the stop of appellant was proper.” State v. Caplinger, 2013-Ohio-5675, 2013 Ohio App. LEXIS 5940 (5th Dist. December 10, 2013).*

Pre-Jones GPS tracking will not be excluded under Davis. Indeed, in this case, the defense at first conceded it was valid under circuit precedent and didn’t pursue the argument until Jones came down. United States v. Smith, 741 F.3d 1211 (11th Cir. 2013).

Probable cause for the search warrant of defendant’s property was shown based on the product of wiretaps and then three CIs who were corroborated. United States v. Boon, 2013 U.S. Dist. LEXIS 179674 (W.D. N.Y. December 12, 2013).*

Permalink 12:00:09 am, by fourth, 165 words, 180 views   English (US)
Categories: General

SD: Stop and frisk of innocent man was still with RS and search was reasonable

Defendant was mistaken for being a casino robber who had entered a Sioux Falls casino at night wearing sunglasses and a baseball cap pulled way down over his eyes. A casino employee had seen a poster with the robber’s photograph, and she thought he was the man. She hit the “panic button” that called the police, and, when on the phone, was acting really scared and afraid to talk. “The overall tone and nature of the call—an identified, concerned citizen feeling so threatened that she is unable to speak openly with a dispatcher—further supports the officers' reasonable suspicion of criminal activity.” When the police arrived, they went over to defendant and talked to him. When he tensed up, they frisked him finding a meth pipe. The frisk was still with reasonable suspicion, although he was the wrong man. The casino employee was not a CI because she talked with the police and was identifiable. State v. Mohr, 2013 SD 94, 2013 S.D. LEXIS 154 (December 18, 2013).

12/26/13

Permalink 01:21:00 pm, by fourth, 112 words, 211 views   English (US)
Categories: General

WaPo: If not the NSA, who should store the phone data?

Permalink 09:03:22 am, by fourth, 134 words, 299 views   English (US)
Categories: General

NYT: As New Services Track Habits, the E-Books Are Reading You

Permalink 08:51:24 am, by fourth, 131 words, 227 views   English (US)
Categories: General

NYT: In Final Weeks, a Push to Put Bloomberg’s Stamp on Major Legal Cases

Permalink 07:15:43 am, by fourth, 629 words, 287 views   English (US)
Categories: General

CA7: Protective sweep is based on RS of a potential threat; quibbling about the details doesn’t make it unreasonable

The standard for a protective sweep is reasonable suspicion to think it’s necessary. “The inquiry is an exceptionally fact-intensive one in which we must analyze myriad factors including, among other considerations, the configuration of the dwelling, the general surroundings, and the opportunities for ambush. ... An ambush in a confined setting of unknown configuration is just such a situation in which an officer might need to perform a protective sweep. Buie, 494 U.S. at 333 .... [¶] In this case there were many other substantial, particularized factors that would allow a reasonable officer to conclude that he, his fellow officers, or another bystander might face danger.” Quibbling about the details doesn’t make it unreasonable. United States v. Starnes, 741 F.3d 804 (7th Cir. 2013):

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Permalink 06:14:37 am, by fourth, 336 words, 369 views   English (US)
Categories: General

CA9 (en banc): Finds reasonable suspicion for a roving border stop from almost nothing

Defendant was stopped 70 miles from the border on I-5 with Baja California Mexico license plates on a clean pickup truck. He was speeding and weaving in and out of traffic and wouldn’t look at the officer who pulled up next to him. After he was stopped, he consented to a search and 8kg of cocaine was found. A panel of the court held the district court erred in not suppressing the search, and the court granted rehearing en banc, holding that there was reasonable suspicion for the stop on the "totality." United States v. Valdes-Vega, 738 F.3d 1074 (9th Cir. 2013) (8-3). Summary by the court:

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Permalink 04:00:00 am, by fourth, 137 words, 236 views   English (US)
Categories: General

ND: PC exists for Facebook posting information in robbery case

Probable cause existed for a search warrant for defendant’s Facebook account because of various facts known to the police, the fact three “cell phone tower dumps” in the vicinity and at the time of burglaries put defendant in the vicinity, and, finally, defendant’s Facebook account referred to “robbing” and showed piles of cash. In Interest of D.O. v. D.O., 2013 ND 247, 2013 N.D. LEXIS 246 (December 19, 2013).

“Faint odor” of raw cannabis is probable cause. It wasn’t disputed that it could be smelled; the whole argument was whether it mattered it was “faint.” Faint odor is still odor. People v. Weaver, 2013 IL App (3d) 130054, 2 N.E.3d 621 (2013).

A general search issue in a 2255 fails without specifying what happened or how or who messed up. United States v. Wilcox, 2013 U.S. Dist. LEXIS 179218 (D. Minn. December 19, 2013).*

Permalink 03:00:03 am, by fourth, 277 words, 303 views   English (US)
Categories: General

MD: Davis good faith applies to pre-Jones GPS, saying "we wouldn't have thought of it"

GPS surveillance for 11 days prior to Jones would not be suppressed under Davis. The court admits that it wouldn’t have held GPS tracking a violation of the Fourth Amendment prior to Jones. [Why concede that you’re so limited in your thinking?] Kelly v. State, 436 Md. 406 (December 23, 2013):*

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Permalink 12:00:04 am, by fourth, 346 words, 308 views   English (US)
Categories: General

ND: Parked camper with no attached tow vehicle was still subject to automobile exception

A camper parked on commercial property, “not in a place regularly used for residential purposes,” was subject to the automobile exception although it was parked, no vehicle was attached, and electric cords ran to it. State v. Otto, 2013 ND 239, 2013 N.D. LEXIS 242 (December 19, 2013):

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12/25/13

Permalink 09:39:49 am, by fourth, 221 words, 317 views   English (US)
Categories: General

IN: Officer violated curtilage serving civil protective order at back door

Officer serving a civil protective order violated curtilage by going to the back door and finding a marijuana grow. Jadrich v. State, 999 N.E.2d 1022 (Ind. App. 2013):

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Permalink 08:53:50 am, by fourth, 226 words, 287 views   English (US)
Categories: General

Rutherford Institute challenges gun ownership as dispensing with knock-and-announce

Permalink 01:00:00 am, by fourth, 240 words, 367 views   English (US)
Categories: General

LA1: State failed to justify alleged plain feel of drugs after frisk for weapon

Frisk for weapons was justified, but the search of defendant’s pockets for drugs was not justified by “plain feel” because the state did not justify the justification. State v. Carter, 131 So. 3d 479 (La.App. 1 Cir. 2013):

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Permalink 12:12:14 am, by fourth, 406 words, 251 views   English (US)
Categories: General

AL: Roadblock essentially as a show of force in violent neighborhood was constitutionally set up and operated

Roadblock in a “violent” area sustained where it was “for the purpose of checking driver’s license, insurance, seat belts, make sure there were no drunk drivers, that kind of thing.” It was apparently set up just to have a police presence in the area. Defendant was stopped, and one thing led to another and drugs were found. The roadblock passed constitutional muster for planning and operation. Woolen v. State, 2013 Ala. Crim. App. LEXIS 111 (December 20, 2013):

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Permalink 12:00:39 am, by fourth, 168 words, 172 views   English (US)
Categories: General

NJ: SW in NJ for OH crime must be litigated in OH

While New Jersey law provides that a search warrant can be issued on the request of another state for a crime in that other state, the remedy of suppression lies in the other state, not New Jersey. They also can’t get to it by seeking return of property either. In re Search Warrants of VS2 Worldwide Communs., L.L.C., 2013 N.J. Super. Unpub. LEXIS 2992 (December 20, 2013) (unpublished; but it shouldn't be).

Defendant was followed by the police because a headlight was out, and then he made what the officer considered an evasive move by quickly turning into a driveway. The officers pulled in behind and got out to talk to the occupants, one on each side. The trial court’s finding of consent to search the car is supported by the evidence. State v. Spivey, 2013-Ohio-5581, 2013 Ohio App. LEXIS 5840 (8th Dist. December 19, 2013).*

Somebody running from car when it was stopped + furtive movement = reasonable suspicion. United States v. Harris, 2013 U.S. Dist. LEXIS 179111 (S.D. N.Y. December 20, 2013).*

12/24/13

Permalink 04:40:55 pm, by fourth, 222 words, 608 views   English (US)
Categories: General

CA9: City of L.A. ordinance that hotel guest records are open to police violates Fourth Amendment rights of hotel

City of Los Angeles ordinance requiring hotel operators open their guest records to the police is an unreasonable search and facially invalid under the Fourth Amendment. Patel v. City of Los Angeles, 738 F.3d 1058 (9th Cir. 2013) (7-4). Summary by the court:

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Permalink 12:27:32 pm, by fourth, 36 words, 223 views   English (US)
Categories: General

The Atlantic: The War on Terror's Jedi Mind Trick

The Atlantic: The War on Terror's Jedi Mind Trick by Julian Sanchez:

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Permalink 11:59:50 am, by fourth, 425 words, 243 views   English (US)
Categories: General

eff.org: Landmark Decision Important Beyond NSA Phone Records Collection

Permalink 11:53:33 am, by fourth, 45 words, 164 views   English (US)
Categories: General

This blog just passed the 10,000 posts mark on this platform

I don't even know how many on the prior version. This version started in February 2006. That's only an average of 106 a month for the duration. For the last seven months, thanks to the NSA revelations, it averages 154 a month, a little over five a day.

Permalink 09:51:09 am, by fourth, 835 words, 388 views   English (US)
Categories: General

CA1: Miranda warnings do not apply to Terry stops

Officers had reasonable suspicion of credit card fraud from three men in an SUV who came into the store one at a time. The first used a credit card successfully for a video game system, but the second had a card in the same name that was declined. The third came in asking about video game systems, and the store employee sent them to another store. Police got the call and found them at the other store. When confronted by the police, two of the defendants disavowed any privacy interest in it, so they lacked standing. Finally, Miranda warnings do not apply to Terry stops. United States v. Campbell, 741 F.3d 251 (1st Cir. 2013):

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Permalink 02:00:18 am, by fourth, 372 words, 262 views   English (US)
Categories: General

W.D.Okla.: That multiple names surfaced in robbery investigation wasn't material where one man who knew def. ID'ed him

Callers to a crime tip line ID’ed multiple suspects as a bank robber, but one said he’d known defendant for 10 years and he was sure it was him. Omitting the others was not material for Franks purposes. United States v. Richardson, 2013 U.S. Dist. LEXIS 178751 (W.D. Okla. December 20, 2013):

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Permalink 01:00:00 am, by fourth, 545 words, 341 views   English (US)
Categories: General

N.D.Ill.: Tobacco sales are highly regulated under Burger

Tobacco sales are highly regulated under Burger. By undertaking to sell tobacco products, the business is subject to regulatory searches over whether the cigarettes are taxed. United States v. Hamad, 2013 U.S. Dist. LEXIS 178720 (N.D. Ill. December 20, 2013):

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Permalink 12:14:34 am, by fourth, 313 words, 218 views   English (US)
Categories: General

CA10: Not clearly established there's a right to immediate release when facts for arrest evaporate

It was not clearly established for qualified immunity purposes that a person lawfully arrested has a constitutional right to be immediately released on finding that the conditions for the arrest weren’t all true. Here, plaintiff was arrested for possession of a firearm under a protective order, but, in this situation, this wasn’t a crime because the order didn’t involve an “intimate partner.” Panagoulakos v. Yazzie, 741 F.3d 1126 (10th Cir. 2013):

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Permalink 12:02:17 am, by fourth, 158 words, 152 views   English (US)
Categories: General

MD: Drug paraphernalia in plain view when officer walked up to car supported search

The officer approached defendant in a trailer park, somebody he’d run off from parking outside businesses all over town for suspected prostitution. In her car he saw drug paraphernalia in plain view, and that supported her arrest and search of the car under the automobile exception. The state’s concession of error is rejected. Coley v. State, 215 Md. App. 570, 81 A.3d 650 (2013).*

Officer had [really thin] reasonable suspicion, but reasonable suspicion nonetheless. The wait for the drug dog thus was not unreasonable. Commonwealth v. Bucalo, 2013 Ky. LEXIS 633 (December 19, 2013).*

DHS officers doing a “ramp check” at an airport were investigating a Cessna that landed to refuel. They asked for the pilot and found him in the pilot’s lounge. They talked to him, and got consent for him to verify that he owned the luggage on the airplane. Then he consented to a search of the luggage. United States v. Golden, 2013 U.S. Dist. LEXIS 177839 (E.D. Cal. December 18, 2013).*

12/23/13

Permalink 03:03:06 pm, by fourth, 173 words, 343 views   English (US)
Categories: General

MSNBC: How Sotomayor undermined Obama’s NSA [clearly an overstatement]

Permalink 12:03:21 pm, by fourth, 40 words, 268 views   English (US)
Categories: General

CNET: Why more people are training their cell phones on police

CNET: Why more people are training their cell phones on police by Chris Matyszczyk:

A police officer tries to stop a man washing his car in his own driveway. If it wasn't filmed on a smartphone, few would believe it.

Permalink 11:59:46 am, by fourth, 126 words, 248 views   English (US)
Categories: General

Grits for Breakfast: Thinking through state-level regulation of automatic license plate readers

Permalink 08:30:58 am, by fourth, 283 words, 300 views   English (US)
Categories: General

ID: Jardines doesn’t prevent knock-and-talks going to the front door

Jardines doesn’t prevent knock-and-talks going to the front door. Here, officers without a dog could smell marijuana. State v. Howard, 2013 Ida. App. LEXIS 92 (December 19, 2013):

=> Read more!

Permalink 08:12:38 am, by fourth, 171 words, 203 views   English (US)
Categories: General

NJ: Davis good faith exception saves pre-Neely lack of SW in DUI cases

Davis good faith means that the McNeely DUI warrant requirement won’t be applied to cases before it was decided, and McNeely isn’t retroactive. State v. Adkins, 433 N.J. Super. 479, 81 A.3d 680 (2013).

The affidavit for the search warrant was thin, but, considering the deference given warrants, it was enough under Ventresca and Gates. Here, however, there was more because it was undisputed that the officer gave additional information to the issuing magistrate, but couldn’t remember the details. What he remembered of those unrecorded details, however, were sufficient to get over the bar. [Lack of recordation should be a bigger deal; come on.] United States v. Jackson, 2013 U.S. Dist. LEXIS 178374 (E.D. Mo. November 15, 2013), adopted 2013 U.S. Dist. LEXIS 177619 (E.D. Mo. December 17, 2013).*

Officers had exigent circumstances for a warrantless entry into defendant’s apartment. He was armed and believed to have just been involved in a robbery, and there was a small child inside. United States v. Evans, 2013 U.S. App. LEXIS 25321, 2013 FED App. 1030N (6th Cir. December 16, 2013).

Permalink 07:47:07 am, by fourth, 179 words, 232 views   English (US)
Categories: General

TN: CP IP address coming back to house is nexus for SW

In a child pornography case, there is no reasonable expectation of privacy in computer files open to a file sharing program. When the investigators have the IP address of the computer involved, and they can pinpoint the house address, that is nexus for a search warrant. Defendant didn’t raise a staleness challenge on a 19 day delay in the trial court, so it’s waived. It would lose anyway because the time is so short compared to other cases. State v. Aguilar, 2013 Tenn. Crim. App. LEXIS 1101 (December 18, 2013)* [Note: I’ve never seen a successful staleness challenge in a child pornography case, no matter what the time period.]

Denial of defendant’s suppression motion was waived for appeal by not including it in the motion for new trial. State v. Nix, 2013 Tenn. Crim. App. LEXIS 1102 (December 18, 2013).*

Defendant’s traffic stop that led to his DUI was based on probable cause. State v. Murrell, 2013 Tenn. Crim. App. LEXIS 1104 (December 18, 2013).*

Defendant’s traffic stop that led to his DUI was based on reasonable suspicion. State v. Banks, 2013 Tenn. Crim. App. LEXIS 1105 (December 18, 2013).*

Permalink 03:15:37 am, by fourth, 294 words, 302 views   English (US)
Categories: General

D.Utah: Investigatory stop was made like a felony arrest; consent suppressed

This investigatory stop was really conducted as a full blown felony arrest, and it was unreasonable because of a lack of probable cause. The subsequent consent was tainted. United States v. Castro-Carbajal, 2013 U.S. Dist. LEXIS 178217 (D. Utah December 13, 2013):

=> Read more!

Permalink 03:03:09 am, by fourth, 502 words, 248 views   English (US)
Categories: General

D.Utah: One who is a mere party to an email conversation doesn’t have standing to challenge its seizure from another

One who is a mere party to an email conversation doesn’t have standing to challenge its seizure from another. United States v. Young, 2013 U.S. Dist. LEXIS 178284 (D. Utah December 17, 2013):

=> Read more!

Permalink 12:12:06 am, by fourth, 53 words, 248 views   English (US)
Categories: General

Reason: Obama's Defense of NSA Surveillance Doesn't Hold Up

Permalink 12:03:23 am, by fourth, 123 words, 234 views   English (US)
Categories: General

HuffPo: Can the U.S. Stop Itself from Widespread Surveillance?

Permalink 12:01:33 am, by fourth, 68 words, 214 views   English (US)
Categories: General

The Hill: Feds declassify Bush-era surveillance docs

12/22/13

Permalink 10:25:08 am, by fourth, 100 words, 334 views   English (US)
Categories: General

NPR: 1979 Supreme Court Ruling Becomes Focus Of NSA Tactics

Permalink 10:23:34 am, by fourth, 57 words, 232 views   English (US)
Categories: General

NPR: The NSA Gets a Report Card, On The Media

Permalink 10:17:12 am, by fourth, 113 words, 212 views   English (US)
Categories: General

WaPo: Americans uneasy about surveillance but often use snooping tools online

Permalink 10:10:44 am, by fourth, 54 words, 259 views   English (US)
Categories: General

NLJ.com: Landmark Surveillance Ruling a Test for Changing D.C. Circuit

Permalink 09:47:41 am, by fourth, 48 words, 284 views   English (US)
Categories: General

NYT: Researchers Hack Webcam While Disabling Warning Lights

NYT: Researchers Hack Webcam While Disabling Warning Lights by Nick Bilton (http://bits.blogs.nytimes.com/2013/12/19/researchers-hack-webcam-while-disabling-warning-lights/?ref=technology):

=> Read more!

Permalink 09:38:59 am, by fourth, 73 words, 224 views   English (US)
Categories: General

NYT: White House Tries to Prevent Judge From Ruling on Surveillance Efforts

Permalink 09:36:21 am, by fourth, 77 words, 197 views   English (US)
Categories: General

NYT Editorial: Bad Times for Big Brother

Permalink 03:48:16 am, by fourth, 260 words, 339 views   English (US)
Categories: General

M.D.Fla.: Reference to crime under investigation is usually sufficient for particularity

1982's Wuagneux still lives as the leading particularity case. This warrant referring to the crimes under investigation for particularity wasn’t overbroad. United States v. Kermali, 2013 U.S. Dist. LEXIS 178169 (M.D. Fla. November 27, 2013):

=> Read more!

Permalink 03:33:56 am, by fourth, 240 words, 181 views   English (US)
Categories: General

M.D.Ga.: A vague, unsubstantiated hunch isn't RS

“The deputy here acknowledges that prior to the canine alert on the vehicle and his unrelated questioning of Defendant and Weeks, he only had an undefined suspicion that something was not quite right. He had no specific articulable suspicion—only a vague hunch. The vagueness of his hunch is understandable. All he knew was that the driver had followed another vehicle too closely, appeared to change lanes abruptly, and that both the driver and the passenger appeared nervous. These observations are simply insufficient to warrant an extension of a routine traffic stop to allow for questioning unrelated to the traffic offense and to permit a drug dog to sniff the car.” But, tossing the drugs in flight was a waiver of any reasonable expectation of privacy. United States v. Hickson, 2013 U.S. Dist. LEXIS 177626 (M.D. Ga. December 18, 2013),* reconsideration denied 2014 U.S. Dist. LEXIS 18101 (M.D. Ga. February 13, 2014).*

Officers had exigent circumstances for a warrantless entry into defendant’s apartment. He was armed and believed to have just been involved in a robbery, and there was a small child inside. United States v. Evans, 2013 U.S. App. LEXIS 25321, 2013 FED App. 1030N (6th Cir. December 16, 2013).

2255 can’t be used to reargue the case, including the suppression motion. “Because both trial and appellate counsel did advance the type of arguments Gonzales complains about in this § 2255 proceeding, this ineffectiveness claim fails.” United States v. Gonzales, 2013 U.S. Dist. LEXIS 178082 (S.D. Tex. October 28, 2013).*

Permalink 03:15:05 am, by fourth, 237 words, 189 views   English (US)
Categories: General

N.D.W.Va.: Defendant's 11 yo son letting cops in wasn't consent, and it didn't invalidate later SW

Officers encountered defendant’s 11 year old son when they arrived to do a knock-and-talk. They asked for defendant and he said that defendant was inside, and he took them in. Defendant’s son is not treated as consenting to the entry, but defendant never objected to the officers being in the house either. When defendant was asked for consent, he refused, and the officers obtained a valid search warrant. United States v. Belt, 2013 U.S. Dist. LEXIS 178891 (N.D. W.Va. December 20, 2013), R&R 2013 U.S. Dist. LEXIS 178888 (N.D. W.Va. November 8, 2013)*:

=> Read more!

Permalink 03:00:26 am, by fourth, 205 words, 246 views   English (US)
Categories: General

CA9: Comment on refusing consent was not plain error where no objection

AUSA’s unobjected-to comment in closing argument defendant didn’t consent to taking biological samples in a murder case was not plain error. United States v. Zamastil, 2013 U.S. App. LEXIS 25411 (9th Cir. December 20, 2013):

=> Read more!

12/21/13

Permalink 02:58:17 pm, by fourth, 182 words, 382 views   English (US)
Categories: General

NYT: StarChase: A Virtual Alternative to the Hot Pursuit (quoting JWH)

NYT: StarChase: A Virtual Alternative to the Hot Pursuit by Paul Stenquist:

=> Read more!

Permalink 02:51:53 pm, by fourth, 88 words, 189 views   English (US)
Categories: General

NYT: Mr. Obama’s Disappointing Response

Permalink 11:59:01 am, by fourth, 130 words, 178 views   English (US)
Categories: General

IL: State can't rely on parole status to justify search if unknown at time of search

The state can’t rely on parole status to justify a bad search when the officer didn’t know that defendant was on parole. Also, the state’s inevitable discovery argument was expressly waived in the trial court. People v. Coleman, 2013 IL App (1st) 130030, 2 N.E.3d 1221 (2013).

Defendant had no standing to challenge the arrest of codefendants or the search of their car, which was valid anyway under the automobile exception and inventory. United States v. Acosta-Colón, 741 F.3d 179 (1st Cir. 2013).*

Eight minute delay for drug dog was not unreasonable where the reasonable suspicion for the detention was the officer’s reasonable belief the occupants of the car were under the influence from their glazed eyes and slow movements. State v. Valenti, 2013-Ohio-5564, 2013 Ohio App. LEXIS 5811 (9th Dist. December 18, 2013).*

Permalink 09:29:49 am, by fourth, 170 words, 176 views   English (US)
Categories: General

CA3: ICE officers likely unreasonably detained citizens in sweep

ICE officers spent a year collecting a list of Philadelphia taxicab drivers they determined were illegal aliens and ran a sting to get them to come in for a “refund” and detain them. Those who were citizens were still detained for hours so they couldn’t alert others to the sting. They stated a claim for relief they were unlawfully detained under the Fourth Amendment. Lawal v. McDonald, 2013 U.S. App. LEXIS 25203 (3d Cir. December 19, 2013), later opinion 2014 U.S. App. LEXIS 3652 (3d Cir. February 26, 2014).

Defendant’s 2255 claim that defense counsel didn’t file a motion to suppress that was meritorious was not prejudicial even if it was. All that were found were identification documents of the defendant, and that wasn’t even an issue at trial. Therefore, no Strickland prejudice. Sillah v. United States, 2013 U.S. Dist. LEXIS 177577 (S.D. N.Y. December 17, 2013).*

Defendant’s 2255 here is nothing more than an effort to relitigate his motion to suppress. Davis v. United States, 2013 U.S. Dist. LEXIS 177410 (M.D. Fla. December 18, 2013).*

Permalink 08:51:32 am, by fourth, 251 words, 262 views   English (US)
Categories: General

S.D.N.Y.: Consent invalid under threat to get SW where one wouldn't issue

Defendant’s consent was vitiated by the threat to get a search warrant where it was clear that, under New York law, one would not have issued. United States v. Munoz, 2013 U.S. Dist. LEXIS 177576 (S.D. N.Y. December 18, 2013):

=> Read more!

Permalink 08:42:32 am, by fourth, 70 words, 233 views   English (US)
Categories: General

Reuters: In U.S. justice system, the strip-search is common practice

Permalink 08:34:33 am, by fourth, 69 words, 219 views   English (US)
Categories: General

NYT: Obama Weighing Security and Privacy in Deciding on Spy Program Limits

Permalink 08:22:54 am, by fourth, 140 words, 270 views   English (US)
Categories: General

HuffPo: Dire Civil Liberties Predictions For 2014

Permalink 08:01:48 am, by fourth, 64 words, 224 views   English (US)
Categories: General

WSJ: Verizon to Disclose Law Enforcement Requests for Customer Data

Permalink 07:53:34 am, by fourth, 198 words, 280 views   English (US)
Categories: General

Wired: What to Expect From Surveillance Politics in 2014 (Hint: It’s Not Reform)

12/20/13

Permalink 09:00:41 am, by fourth, 122 words, 263 views   English (US)
Categories: General

WaPo: The right call on the NSA

WaPo: The right call on the NSA by Eugene Robinson:

=> Read more!

Permalink 08:58:47 am, by fourth, 78 words, 255 views   English (US)
Categories: General

WaPo: Officials’ defenses of NSA phone program may be unraveling

Permalink 08:30:55 am, by fourth, 123 words, 185 views   English (US)
Categories: General

NC: Private security was not "state actor" for DUI stop on apt complex parking lot

A private security guard at a near campus community of the University of North Carolina at Wilmington was not a state actor when he stopped the defendant for DUI on the community property and then he called the police. He was not induced by the police to make such stops. State v. Weaver, 2013 N.C. App. LEXIS 1317 (December 17, 2013).

The trial court credited the officer that defendant’s girlfriend consented to the search. Defendant was there and didn’t object. State v. Cook, 2013-Ohio-5449, 2013 Ohio App. LEXIS 5696 (1st Dist. December 13, 2013).*

2255 petitioner’s IAC claim was really just an effort to relitigate his denied motion to suppress rearguing the police were lying. Denied. Davis v. United States, 2013 U.S. Dist. LEXIS 177410 (M.D. Fla. December 18, 2013).*

Permalink 08:12:14 am, by fourth, 232 words, 163 views   English (US)
Categories: General

TN: SW affidavit drug sales occurred “at” a house is not “in” the house; no nexus shown

The affidavit for search warrant said that sales of drugs occurred “at 115 Emory Street” not in, and the trial court correctly refused to assume nexus that it meant “in” because it could have been on the porch, in the yard, cars driving by. “Without more facts within the affidavit to tie Mr. Nightwine to the residence at 115 Emory Street, evidence of repeated sales by Mr. Nightwine cannot justify the search of the residence. The affidavit fails to establish a sufficient nexus between the criminal activity and the place to be searched. Accordingly, we conclude that the trial court did not err in granting the defendants' motion to suppress.” State v. Nightwine, 2013 Tenn. Crim. App. LEXIS 1100 (December 17, 2013).

Officers walked up to defendant’s car to see if he knew anything about a shots fired call they were sent on, and they saw furtive movement down to the floorboard as they approached. They smelled burnt marijuana. “In sum, the Court is satisfied that the officers' stop and approach towards Defendant's car were initiated as a consensual encounter that later became non-consensual by virtue of what the officers saw and smelled.” United States v. Winston, 2013 U.S. Dist. LEXIS 177299 (S.D. Mich. December 18, 2013).*

Trial court’s crediting defendant’s testimony that there was no basis for a traffic stop means it gets affirmed on appeal. State v. Liebling, 2013-Ohio-5491, 2013 Ohio App. LEXIS 5726 (9th Dist. December 16, 2013).*

Permalink 07:57:56 am, by fourth, 411 words, 348 views   English (US)
Categories: General

Compare two cases on “what’s a stop”:

“Invs. Concepcion and Dodaro merely parked alongside Mr. Alexander's car, walked to each side of the car, and asked Messrs. Frails and Alexander routine questions about their presence in the neighborhood. It is undisputed that the time between parking the patrol car and approaching Mr. Alexander's car was very brief, the suspects had their windows down, the investigators did not draw their weapons, did not ask for identification, and did not give any directions to Mr. Alexander or Mr. Frails during the initial part of the encounter. [¶] Police action such as this is insufficient to establish a Fourth Amendment seizure.” United States v. Alexander, 2013 U.S. Dist. LEXIS 176920 (S.D. Ga. October 18, 2013).*

Defendant was stopped without reasonable suspicion: United States v. Garner, 2013 U.S. Dist. LEXIS 175962 (D. Nev. October 22, 2013)*:

=> Read more!

12/19/13

Permalink 05:25:52 pm, by fourth, 141 words, 353 views   English (US)
Categories: General

cjonline: Legislator drug testing includes no penalties for failure

cjonline: Legislator drug testing includes no penalties for failure by Andy Marso:

Jeff Russell, director of Legislative Administrative Services, says privacy laws prevent him from disclosing the names of those who fail drug tests.

=> Read more!

Permalink 02:02:54 pm, by fourth, 174 words, 228 views   English (US)
Categories: General

CA3: Possession of gun alone not RS in concealed carry state; evasion was enough, however

Officers had a tip that defendant had a gun on him, but the existence of a concealed carry law did not make that an offense so more was needed. That was provided by defendant’s evasive conduct when he saw the police, so the stop was supported by reasonable suspicion and more than just having a gun. United States v. Garvin, 2013 U.S. App. LEXIS 24944 (3d Cir. December 17, 2013).

Defendant’s stop was justified by a traffic offense, and he fled the car as soon as stopped and the officers could see a gun in his waistband as he got out. That was all reasonable suspicion of criminal activity. United States v. Ray, 2013 U.S. Dist. LEXIS 176655 (N.D. Ohio December 17, 2013).*

In a high crime area of Detroit [apparently so bad the police ride in fours], three of the four officers saw a gun through the thin layer of defendant’s pants, and then he bladed to hide it. That was reasonable suspicion. United States v. Edison, 2013 U.S. Dist. LEXIS 176923 (E.D. Mich. December 17, 2013).*

Permalink 01:51:21 pm, by fourth, 298 words, 321 views   English (US)
Categories: General

CA11: "Service call" about a bullet hole didn't justify an emergency entry

Emergency justification for entry into defendant's apartment fails. Conviction reversed, search and statements suppressed. United States v. Timmann, 741 F.3d 1170 (11th Cir. 2013):

=> Read more!

Permalink 01:33:26 pm, by fourth, 71 words, 262 views   English (US)
Categories: General

EFF: 54 Civil Liberties and Public Interest Organizations Oppose the FISA Improvements Act

Permalink 01:27:22 pm, by fourth, 63 words, 258 views   English (US)
Categories: General

The Guardian: NSA review panel stops short of concrete surveillance reforms

Permalink 01:24:37 pm, by fourth, 128 words, 363 views   English (US)
Categories: General

WaPo: Your laptop: Is someone watching without your knowing?

WaPo: Research shows how MacBook Webcams can spy on their users without warning by Ashkan Soltani and Timothy B. Lee (url won't imbed: http://www.washingtonpost.com/blogs/the-switch/wp/2013/12/18/research-shows-how-macbook-webcams-can-spy-on-their-users-without-warning/)

=> Read more!

Permalink 07:35:54 am, by fourth, 131 words, 363 views   English (US)
Categories: General

NYMag: White House Panel Recommends Limits on NSA Surveillance

12/18/13

Permalink 01:38:05 pm, by fourth, 67 words, 403 views   English (US)
Categories: General

Slate: Why the FBI Thinks Warrantless Drone Surveillance Is Constitutional

Permalink 01:35:29 pm, by fourth, 41 words, 193 views   English (US)
Categories: General

The Hill: Lawmakers applaud court ruling against NSA

The Hill: Lawmakers applaud court ruling against NSA by Brenden Sasso:

Critics of the National Security Agency on Capitol Hill are applauding Monday's court decision that the agency's sweeping collection of records on all U.S. phone calls is likely unconstitutional.

Permalink 01:33:52 pm, by fourth, 14 words, 190 views   English (US)
Categories: General

Politico: Reid open to NSA legislation

Politico: Reid open to NSA legislation ("Says Congress needs a 'good, public debate.'")

Permalink 01:31:14 pm, by fourth, 120 words, 281 views   English (US)
Categories: General

NYT: After Ruling Critical of N.S.A., Uncertain Terrain for Appeal

Permalink 01:29:26 pm, by fourth, 60 words, 292 views   English (US)
Categories: General

BLT: Verizon Wants Claims in NSA Surveillance Suit Dismissed

Permalink 10:29:09 am, by fourth, 146 words, 195 views   English (US)
Categories: General

W.D.N.C.: Defendant from India understood English to consent

Defendant was under investigation for selling synthetic marijuana and bath salts. His consent was valid and the evidence is uncontradicted. He was originally from India, but the court notes that English is a functioning language of India. United States v. Sahney, 2013 U.S. Dist. LEXIS 175912 (W.D. N.C. November 15, 2013).

Defendant’s Cadillac was stolen and it was found and searched for evidence of the thieves potentially in it. There was probable cause. Defendant’s argument that it was pretext to examine its papers is rejected because subjective intent doesn’t matter. United States v. Mastronardo, 2013 U.S. Dist. LEXIS 175655 (E.D. Pa. December 13, 2013).*

Defendant’s traffic stop for failing to maintain a single lane and following a tractor trailer too close were uncontradicted and not a mere conclusion that the court should reject. United States v. Dioubate, 2013 U.S. Dist. LEXIS 175797 (E.D. Tex. November 22, 2013).*

Permalink 10:09:22 am, by fourth, 323 words, 272 views   English (US)
Categories: General

CA1: Possession of two false DLs support search incident for backup records

Defendant was arrested for having two false DLs, and the officers conducted a search of the car. The district court found it a valid inventory and did not decide search incident. On appeal, the court of appeals found search incident dispositive based on the record it had. It was reasonable for the officer to conclude there would be other evidence of the false IDs in the car. United States v. Mensah, 737 F.3d 789 (1st Cir. 2013):

=> Read more!

12/17/13

Permalink 08:24:01 pm, by fourth, 199 words, 360 views   English (US)
Categories: General

The Hill: Lawmakers applaud court ruling against NSA || yet they're still doing nothing

Permalink 11:10:18 am, by fourth, 43 words, 315 views   English (US)
Categories: General

Law.com: Government Insists 'Hemisphere' Surveillance Wasn't Used in Drug Case

Permalink 07:38:50 am, by fourth, 173 words, 251 views   English (US)
Categories: General

CA4: Occupy Columbia case can proceed; qualified immunity for arrest for protesting denied

South Carolina Occupy case goes forward; qualified immunity denied because plaintiffs alleged a violation of a clear constitutional right: The right to protest on state capitol grounds after 6 p.m. Occupy Columbia v. Haley, 13-1258 (4th Cir. December 16, 2013).

Officers had probable cause to believe defendant’s vehicle had evidence of sexual assault in it, and it was sufficient for the automobile exception that it was operational and movable. Defendant’s jurisdictional argument fails because a local deputy sheriff arrived before the search occurred. State v. Podrazo, 21 Neb. App. 489, 840 N.W.2d 898 (2013).*

The officer stopping and frisking defendant had reasonable suspicion he was involved in a robbery within the past 10 minutes and four blocks away. While there were other people similarly dressed in khaki pants, it was cold and only defendant had khaki shorts. Giving due deference to the experience of the officer [something that apparently tipped the balance], there is reasonable suspicion. United States v. Underwood, 2013 U.S. Dist. LEXIS 176229 (E.D. Tenn. October 2, 2013),* adopted 2013 U.S. Dist. LEXIS 175297 (E.D. Tenn. December 13, 2013).*

12/16/13

Permalink 09:19:44 pm, by fourth, 2961 words, 1155 views   English (US)
Categories: General

NSA case: Klayman v. Obama; "James Madison ... would be aghast"

NSA case: Klayman v. Obama, 957 F. Supp. 2d 1, 59 Comm. Reg. (P & F) 825 (D. D.C. December 16, 2013), stay granted by Klayman v. Obama, 2013 U.S. Dist. LEXIS 177169 (D.D.C., Dec. 16, 2013), finding the third party doctrine inapplicable:

=> Read more!

Permalink 04:48:12 pm, by fourth, 43 words, 290 views   English (US)
Categories: General

BLT: Judge Releases Report on Evidence Issues in Mass Arrests Case

Permalink 03:25:24 pm, by fourth, 151 words, 377 views   English (US)
Categories: General

WaPo: Judge: NSA phone collection likely invalid

Permalink 01:12:26 pm, by fourth, 269 words, 412 views   English (US)
Categories: General

N.D.Okla.: SI of cell phone was valid where there was PC evidence was on phone

Search incident of cell phone during a traffic stop was valid with probable cause to believe the phone contained evidence of a crime. United States v. Zaavedra, 2013 U.S. Dist. LEXIS 174493 (N.D. Okla. December 9, 2013):

=> Read more!

Permalink 12:56:33 pm, by fourth, 27 words, 195 views   English (US)
Categories: General

Ars Technica: Boston Police indefinitely suspends license plate reader program

Ars Technica: Boston Police indefinitely suspends license plate reader program by Cyrus Farivar:

BPD's scanners saw a stolen motorcycle 59 times over five months and police did nothing.

Permalink 12:53:22 pm, by fourth, 125 words, 293 views   English (US)
Categories: General

CBS's 60 Minutes: NSA speaks out on Snowden, spying

12/15/13

Permalink 02:31:35 pm, by fourth, 74 words, 347 views   English (US)
Categories: General

NPR: A Movement To Bake Online Privacy Into Modern Life, 'By Design'

Permalink 02:25:10 pm, by fourth, 89 words, 295 views   English (US)
Categories: General

NPR: Tug Of Authority Over Legal Gap In Online Privacy:

Permalink 02:23:19 pm, by fourth, 126 words, 228 views   English (US)
Categories: General

WaPo: Editorial: A high-tech dragnet

Permalink 08:14:48 am, by fourth, 587 words, 441 views   English (US)
Categories: General

UT: Covering the peephole during a knock-and-talk is lawful and not a misrepresentation; quoting Donald Rumsfeld

Police covering the peephole during a knock-and-talk is lawful and not a misrepresentation. The occupants voluntarily opened the door not knowing who was out there, and they actually considered it could be the police. State v. Hoffmann, 2013 UT App 290, 2013 Utah App. LEXIS 299 (December 12, 2013):

=> Read more!

Permalink 08:05:06 am, by fourth, 114 words, 146 views   English (US)
Categories: General

LA5: Leaning and hiding hands during traffic stop warrants patdown

Defendant was stopped for a traffic offense, and he leaned and hid his hands, and that justified a patdown. “The fact that an officer does not issue a traffic citation is irrelevant to the constitutionality of the stop.” State v. Cole, 131 So. 3d 931 (La.App. 5 Cir. 2013).

Defendant’s stop and patdown were without a reasonable suspicion of crime, let alone possession of a weapon. State v. Hawkins, 2013-Ohio-5458, 2013 Ohio App. LEXIS 5709 (2d Dist. December 13, 2013).*

The officer parked his police car so that the headlights were on defendant as he was getting something from a plastic bag on the ground. The stop was consensual, as was the patdown. State v. Phillips, __ Kan. App. __, 315 P.3d 887 (2013).*

Permalink 07:39:41 am, by fourth, 215 words, 247 views   English (US)
Categories: General

Cal.6th: Stop of car without sufficient cause to believe passenger was in it; suppressed

The stop of the car defendant was a passenger in was without sufficient cause. It was not attenuated by the fact defendant was found to be on probation with a search condition. People v. Bates, 222 Cal. App. 4th 60, 165 Cal. Rptr. 3d 573 (6th Dist. 2013). California official summary:

=> Read more!

Permalink 07:30:01 am, by fourth, 56 words, 318 views   English (US)
Categories: General

NYT: Surveillance: Cozy or Chilling?

Permalink 07:26:04 am, by fourth, 259 words, 233 views   English (US)
Categories: General

CA2: Knotts alone was reason enough to apply Davis good faith to pre-Jones GPS

The existence of Knotts as authority for pre-Jones GPS placement was good enough for application of the Davis good faith exception. Add to that the disarray of the courts, and the Second Circuit hadn’t ruled. United States v. Aguiar, 737 F.3d 251 (2d Cir. 2013):

=> Read more!

Permalink 07:18:13 am, by fourth, 101 words, 216 views   English (US)
Categories: General

OR: Consent not coerced by reading DUI implied consent warning

Consent to blood and urine tests in a DUI-negligent homicide case is not coerced merely by reading the implied consent warning to the defendant. State v. Moore, 354 Ore. 493 (December 12, 2013).

Defendant was arrested by a Milwaukee police officer working a prostitution detail for loitering for prostitution when he threatened to “beat her ass.” The arrest was with probable cause. United States v. Tharp, 2013 U.S. Dist. LEXIS 174052 (E.D. Wis. December 12, 2013).*

Defendant was questioned with officers on his porch about sexual contact with a 15 year old cousin. He consented to a search of his house. State v. Hillman, 417 S.W.3d 239 (Mo. 2013).*

Permalink 06:53:14 am, by fourth, 445 words, 291 views   English (US)
Categories: General

CA6: On accidentally discovering cocaine in hotel room, hotel manager can lock out renter and consent

A hotel can terminate the rent on a room and then consent to a search of the room. Here, defendant left the room to go smoke outside, and housekeeping entered mistakenly thinking it had been vacated. The housekeeper smelled marijuana smoke and found cocaine. The police were called, and defendant was locked out of the room. Because defendant’s occupancy was terminated for illegal activity, the hotel could consent. United States v. Spicer, 2013 U.S. App. LEXIS 24804, 2013 FED App. 1024N (6th Cir. December 11, 2013):

=> Read more!

12/14/13

Permalink 03:54:31 pm, by fourth, 155 words, 216 views   English (US)
Categories: General

D.S.D.: Getting out of car in middle of night at traffic stop with hands up was RS for patdown; officer hadn't even spoken

Defendant was lawfully subjected to a patdown. The area was not high crime, but defendant was stopped in the middle of the night with a child in the car, both in their pajamas, the snow never cleared from the windshield. When he got out of the car, he put his hands up, although the officer hadn’t even spoken yet. “Clary explained in his seven years of law enforcement experience, nobody has ever put their hands in the air after being stopped for a mere traffic violation.” United States v. Banks, 2013 U.S. Dist. LEXIS 174881 (D. S.D. December 11, 2013).*

Street side trash pulls were constitutional. United States v. McGuire, 2013 U.S. Dist. LEXIS 174657 (D. S.D. December 10, 2013).*

The officer had probable cause to stop plaintiff for speeding because of the reading of the radar gun, and that led to probable cause to arrest him for OWI. Jones v. City of Elkhart, 737 F.3d 1107 (7th Cir. 2013).*

Permalink 03:44:38 pm, by fourth, 340 words, 294 views   English (US)
Categories: General

S.D.W.Va.: GPS validly placed with a warrant; reconsideration denied

Motion to reconsider installation of GPS device denied, and the judge was not amused that defense counsel just didn’t seem to get it. United States v. Hersman, 2013 U.S. Dist. LEXIS 174831 (S.D. W.Va. December 12, 2013)*:

=> Read more!

Permalink 03:33:47 pm, by fourth, 90 words, 222 views   English (US)
Categories: General

Poitico: Obama gets report on NSA reforms

Poitico: Obama gets report on NSA reforms by Josh Gerstein:

=> Read more!

Permalink 03:30:58 pm, by fourth, 26 words, 164 views   English (US)
Categories: General

WaPo: How NSA pinpoints a mobile device

WaPo: How NSA pinpoints a mobile device (document):

This document is an internal National Security Agency classification guide outlining the agency's abilities to intercept cellular communications.

Permalink 03:28:15 pm, by fourth, 59 words, 281 views   English (US)
Categories: General

WaPo: In cracking cellphone code, NSA power grows

WaPo: In cracking cellphone code, NSA power grows by Craig Timberg and Ashkan Soltani:

=> Read more!

Permalink 03:24:44 pm, by fourth, 33 words, 157 views   English (US)
Categories: General

Daily Business Review: Microsoft GC Wary Of Government Surveillance

Daily Business Review: Microsoft GC Wary Of Government Surveillance by Michael Liedtke and Marcy Gordon:

Microsoft's general counsel warns U.S. government surveillance constitutes an 'advanced persistent threat' on the level of malware.

Permalink 03:16:24 pm, by fourth, 125 words, 277 views   English (US)
Categories: General

The Atlantic: The Surveillance City of Camden, New Jersey

The Atlantic: The Surveillance City of Camden, New Jersey by Conor Friedersdorf:

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Permalink 03:11:35 pm, by fourth, 39 words, 134 views   English (US)
Categories: General

NYT: Obama Panel Said to Urge N.S.A. Curbs

NYT: Obama Panel Said to Urge N.S.A. Curbs by David E. Sanger:

A presidential advisory committee's recommendation of broad new restraints intended to increase privacy protections is a first sign that spying revelations may lead to changes.

12/13/13

Permalink 12:03:43 pm, by fourth, 48 words, 277 views   English (US)
Categories: General

Law.com: Third Circuit to Rehear GPS Tracking Case En Banc

Law.com: Third Circuit to Rehear GPS Tracking Case En Banc:

The U.S. Court of Appeals for the Third Circuit has granted rehearing en banc in a case decided two months ago establishing that police need a warrant before attaching a GPS tracker to a suspect's vehicle.

Permalink 11:26:36 am, by fourth, 177 words, 221 views   English (US)
Categories: General

ID: CI's great detail corroborated by two controlled buys off defendant

The CI was worth crediting here because he had great detail about defendant going to California to score some marijuana to bring back to Idaho to sell, and he was corroborated by two controlled buys off the defendant. When defendant made two traffic violations, his stop was valid and reasonable suspicion existed to extend the stop. State v. Widner, 2013 Ida. App. LEXIS 89 (December 10, 2013).*

The CI here gave probable cause for defendant’s stop, not just reasonable suspicion, and the officer was also authorized to do a patdown on what he knew. State v. Cole, 128 So. 3d 649 (La. App. 5 Cir. 2013).*

No cause of action was stated against the defendant hospital for participating in a search and seizure on its premises. “There were no allegations of any factual or legal basis for liability against Desoto Regional for purported violations of Louisiana law or the Fourth Amendment for search and seizure.” Also, [in passing] the USMJ upheld the search in federal court [so why not collateral estoppel?]. Miller v. Desoto Reg'l Health Sys., 2013 La. App. LEXIS 2530 (La. App. 3 Cir. December 11, 2013).*

Permalink 11:13:29 am, by fourth, 648 words, 374 views   English (US)
Categories: General

Texas's exclusionary rule not inconsistent with independent source doctrine

Texas’s exclusionary rule does not bar application of the independent source rule because evidence found subject to it is lawfully found. Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. LEXIS 2013) (concur; dissent), appeal from 385 S.W.3d 715 (Tex. App. – Fort Worth 2012):

=> Read more!

Permalink 10:37:01 am, by fourth, 146 words, 180 views   English (US)
Categories: General

D.Neb.: Short duration of occupancy doesn't mean defendant couldn't consent

Defendant had moved into the place he consented to a search of a week earlier. That was apparent authority for his consent. “Surely, someone who just moved into a dwelling has as much right to consent or refuse a search as someone who has lived there for years.” United States v. Ramirez, 2013 U.S. Dist. LEXIS 174030 (D. Neb. December 11, 2013).

Defendant’s 2255 claim that his lawyer didn’t properly handle the suppression issues is completely belied by the record. United States v. Garibay, 2013 U.S. Dist. LEXIS 173871 (S.D. Cal. December 10, 2013).*

“[T]he odor of both PCP and marijuana coming from Scott's vehicle provided him with probable cause to search the entire vehicle for illegal drugs – including the side pocket of the driver's door where the subject gun was immediately visible upon opening the door.” United States v. Scott, 2013 U.S. Dist. LEXIS 173765 (W.D. Mo. November 17, 2013).*

Permalink 10:22:31 am, by fourth, 138 words, 298 views   English (US)
Categories: General

AR: Cut and paste error in SW wasn't prejudicial

Cut and paste error in search warrant application for a cell phone that included a laptop computer that was not even at issue was not prejudicial. Only the cell phone was searched. Hayes v. State, 2013 Ark. App. 725 (December 11, 2013).

The paraphernalia for a meth lab was found 200 yards from defendant’s house on his farm, and this was open fields. United States v. Castleman, 2013 U.S. Dist. LEXIS 173436 (E.D. Ark. December 11, 2013).*

A private party looked in defendant’s van and told the police she did. The officer asked if there was anything illegal in the van, and she went back and retrieved it. The officer never suggested the search, so it was a private search. United States v. Alvarez-Herrera, 2013 U.S. Dist. LEXIS 174057 (E.D. N.C. October 25, 2013),* adopted 2013 U.S. Dist. LEXIS 174058 (E.D. N.C. December 12, 2013).*

12/12/13

Permalink 06:16:33 pm, by fourth, 116 words, 427 views   English (US)
Categories: General

ABAJ: Search warrants served on law firm in loan-modification probe; lawyer faces marijuana charge

Permalink 02:13:47 pm, by fourth, 41 words, 346 views   English (US)
Categories: General

NPR: Portland Police Collect Thousands Of License Plate Numbers

NPR: Portland Police Collect Thousands Of License Plate Numbers by Kristian Foden-Vencil (Oregon Public Broadcasting):

=> Read more!

Permalink 02:09:48 pm, by fourth, 95 words, 266 views   English (US)
Categories: General

NPR: Miami-Area Police Chief Resigns Amid Charges Of Racial Profiling

Permalink 01:54:38 pm, by fourth, 99 words, 285 views   English (US)
Categories: General

WaPo: At Senate hearing, NSA director defends spying program

Permalink 01:17:03 pm, by fourth, 35 words, 277 views   English (US)
Categories: General

Leahy: Tech Industry Supports NSA Reform Measure

Permalink 09:45:13 am, by fourth, 362 words, 387 views   English (US)
Categories: General

OR: Home inspection to defend against assessment appeal didn't violate Fourth Amendment (updated)

Taxpayers challenged an assessment of their house after it was built, then refused an inspection. When the Department of Revenue sought an inspection, they defended on Fourth Amendment grounds. The inspection did not violate the Fourth Amendment because they put the value of the house in issue. Bleoaja v. Dep't of Revenue, 20 OTR 102, 2010 Ore. Tax LEXIS 206 (July 19, 2010):

=> Read more!

Permalink 08:27:53 am, by fourth, 55 words, 300 views   English (US)
Categories: General

WaPo: How much is your privacy worth? $350 a year, according to AT&T

Permalink 07:59:33 am, by fourth, 125 words, 189 views   English (US)
Categories: General

OH6: Invalid extraterritorial arrest violates state constitution

Invalid extraterritorial arrest by local LEO on state highway under exclusive jurisdiction of Highway Patrol didn’t violate the Fourth Amendment, but it did violate the state constitution. State v. Brown, 2013-Ohio-5351, 4 N.E.3d 452 (6th Dist. 2013).

There was reasonable suspicion by collective knowledge for the stop of defendant. State v. Widner, 2013 Ida. App. LEXIS 89 (December 10, 2013).*

There was probable cause for defendant’s arrest based on the criminal complaint in the file. His car was validly searched at the time of his arrest under the automobile exception. His cell phone was seized incident to the arrest but a separate search warrant was issued for it, the validity of which isn’t contested. United States v. Thompson, 2013 U.S. Dist. LEXIS 172623 (S.D. N.Y. December 3, 2013).*

Permalink 07:26:52 am, by fourth, 350 words, 362 views   English (US)
Categories: General

CA5: Whether an entry is no-knock is based on reasonable suspicion

Whether an entry is no-knock is based on reasonable suspicion. Here it was defendant being armed during the drug transactions that led to the search warrant. United States v. Rodriguez, 2013 U.S. App. LEXIS 24495 (5th Cir. December 10, 2013):

=> Read more!

Permalink 07:15:52 am, by fourth, 126 words, 340 views   English (US)
Categories: General

LA: “Smurfing” pseudoephedrine from a Wal-Mart was reasonable suspicion; empty blister packs in car was PC

Four people apparently “smurfing” pseudoephedrine from a Wal-Mart was reasonable suspicion. When the officer got to the car, he could see many empty blister packs in plain view in the back seat and that was probable cause of manufacturing methamphetamine. State v. Duhe, 130 So. 3d 880 (La. 2013):

=> Read more!

12/11/13

Permalink 02:24:24 pm, by fourth, 75 words, 390 views   English (US)
Categories: General

WaPo: NSA uses Google cookies to pinpoint targets for hacking

WaPo: NSA uses Google cookies to pinpoint targets for hacking by Ashkan Soltani, Andrea Peterson, and Barton Gellman:

=> Read more!

Permalink 02:16:47 pm, by fourth, 37 words, 353 views   English (US)
Categories: General

Law.com: Does Local Surveillance Of Call Data Breach the Fourth?

Permalink 01:16:29 pm, by fourth, 185 words, 344 views   English (US)
Categories: General

New Yorker: STATE OF DECEPTION, Why won’t the President rein in the intelligence community?

Permalink 10:46:27 am, by fourth, 803 words, 407 views   English (US)
Categories: General

CA1: While SW “is certainly not a model of precise drafting,” it is not constitutionally infirm

Defendant was charged with wire fraud in a scheme that had him trafficking in stolen computer parts. Local police discovered it and passed it to the FBI. A search warrant for his house produced 170 boxes of parts and his computer. Files on the computer helped prove the fraud. The warrant was not overbroad and the entirety had to be read in context. While the search warrant “is certainly not a model of precise drafting,” it is not constitutionally infirm. Besides, the good faith exception applies. United States v. Kuc, 737 F.3d 129 (1st Cir. 2013):

=> Read more!

Permalink 10:32:19 am, by fourth, 154 words, 224 views   English (US)
Categories: General

D.Minn.: Failure to allege a reasonable expectation of privacy in place searched or things seized fatal

Defendant moved to suppress, but he did not claim a reasonable expectation of privacy in the place searched or the things seized, so he cannot prevail. [Note I didn’t say “standing.”] United States v. Rogers, 2013 U.S. Dist. LEXIS 173175 (D. Minn. August 29, 2013).*

One Beckman had possession of defendant’s cell phone and he showed child pornography pictures on it to a police officer who then took the phone for a search warrant. The initial seizure was private, and the showing to the police was not unreasonable. United States v. Rasmussen, 2013 U.S. Dist. LEXIS 172437 (D. Minn. December 6, 2013),* R&R 2013 U.S. Dist. LEXIS 172880 (D. Minn. October 9, 2013).*

If the search in this case were based on inventory, defendant would win, but it can be justified by search incident and it’s valid. United States v. Vance, 2013 U.S. Dist. LEXIS 172187 (E.D. Mo. November 7, 2013), adopted 2013 U.S. Dist. LEXIS 171493 (E.D. Mo., Dec. 5, 2013).*

Permalink 08:51:54 am, by fourth, 470 words, 404 views   English (US)
Categories: General

M.D.Pa.: “Documentary evidence” of the Latin Kings as a DTO were properly seized

“Paraphernalia” in a search warrant does not make it overbroad. “This is consistent with other courts that have found that the use of ‘paraphernalia’ in a warrant is sufficiently particular.” The same with “documentary evidence,” including documents about the Latin Kings as a drug distribution group. The cell phones found were properly seized as well. United States v. Ramsey, 2013 U.S. Dist. LEXIS 172391 (M.D. Pa. December 5, 2013):

=> Read more!

Permalink 08:34:47 am, by fourth, 364 words, 379 views   English (US)
Categories: General

CA6: QI protects against suit over movement from home confinement to actual custody

Qualified immunity protects government employees from a claim that the due process clause and Fourth Amendment create an interest between home confinement and movement to actual custody. As in qualified immunity, “no relevant authority existed at the time of the incident.” And, of course, the Fourth Amendment issue goes undecided in this circuit. Ortega v. United States Immigration & Customs Enforcement, 737 F.3d 435 (6th Cir. 2013)*:

=> Read more!

Permalink 08:17:51 am, by fourth, 155 words, 295 views   English (US)
Categories: General

E.D.N.C.: Pulling defendant out of a car without cause was an unreasonable seizure

“In this case, Officer Michael acted with reckless disregard for Crosby's Fourth Amendment rights when he forcibly removed him from the vehicle without probable cause to believe that he was involved in criminal activity. The court finds that the deterrent value of the exclusionary rule in this case outweighs the resulting social costs. The court further finds that the firearm and ammunition were products of the illegal seizure. For these reasons, the firearm and ammunition must be suppressed.” United States v. Crosby, 2013 U.S. Dist. LEXIS 173154 (E.D. N.C. December 10, 2013).*

Officers had both exigent circumstances and consent to take possession of defendant’s cell phone. It was searched with a search warrant. United States v. Thomas, 2013 U.S. Dist. LEXIS 173117 (D. Ariz. December 9, 2013).*

Defendant’s 2255 on defense counsel’s alleged failures to pursue a suppression motion timely is “is pure fantasy.” Rodriguez v. United States, 2013 U.S. Dist. LEXIS 173165 (S.D. N.Y. December 6, 2013).*

12/10/13

Permalink 01:47:30 pm, by fourth, 110 words, 390 views   English (US)
Categories: General

The Atlantic: E.L. Doctorow Wishes There Had Been More Outrage About the NSA

Permalink 01:41:17 pm, by fourth, 61 words, 358 views   English (US)
Categories: General

KTVU.com: SF public defender accuses police of racial profiling

Permalink 09:20:06 am, by fourth, 226 words, 271 views   English (US)
Categories: General

D.Nev.: Air cleaner under hood proper place for inventory; guns are often hidden there

Defendant was stopped in an apartment complex, and he was going to be arrested. The passenger had no DL. Since neither lived in the complex, the decision was made to impound the vehicle. The air cleaner box in the engine compartment can be searched under inventory. “The officers testified that they have found firearms in other air cleaner boxes. The air cleaner box on the subject vehicle was large enough to contain a pistol and holster.” United States v. Torres, 2013 U.S. Dist. LEXIS 172312 (D. Nev. July 10, 2013), adopted 2013 U.S. Dist. LEXIS 172308 (D. Nev. December 6, 2013).

Defendant was questioned at a campsite in Tennessee about allegedly having public sex with an underage girl he was camping with. While the encounter was two hours long, defendant was cooperative, and the investigation moved along. It was not a “stop” under Terry, and defendant admitted he was cooperative and didn’t feel under arrest. United States v. Partin, 2013 U.S. Dist. LEXIS 172236 (M.D. Ala. September 4, 2013).*

There was an arguably invalid search of defendant’s motel room, but a search warrant was issued. Even without the information from the invalid search there was probable cause for the warrant, and the motion to suppress is denied. United States v. Hill, 2013 U.S. Dist. LEXIS 172752 (N.D. Ga. August 26, 2013),* adopted United States v. Hill, 2013 U.S. Dist. LEXIS 172059 (N.D. Ga. December 6, 2013).*

Permalink 08:17:57 am, by fourth, 166 words, 259 views   English (US)
Categories: General

S.D.Cal.: Not searching computer within 90 day limit in SW not prejudicial

In this child pornography case, the search warrant had a 90 day processing clause to search the contents of the computer. On the 90th day, an application was filed with the USMJ for more time to do that, and it was signed after the 90th day. Violations of Rule 41 do not automatically lead to suppression, and this one doesn’t either because there is no prejudice. Also, this is not a violation of the Fourth Amendment, so no exclusion. United States v. McKany, 2013 U.S. Dist. LEXIS 171826 (S.D. Cal. December 4, 2013).*

No standing in the search of the cell phone of another person (and it was searched under a warrant). There was probable cause for the search of his motel room based on detailed information from potential crime victims. United States v. Hill, 2013 U.S. Dist. LEXIS 172059 (N.D. Ga. December 6, 2013).*

U.S. Navy police had reasonable suspicion to stop defendant for suspicion of DUI. United States v. Carlysle, 2013 U.S. Dist. LEXIS 171777 (E.D. Va. December 5, 2013).*

Permalink 07:43:56 am, by fourth, 1031 words, 393 views   English (US)
Categories: General

Cal.4th: DNA taking is reasonable on balance, and can be used to solve cold cases

In California, DNA is taken from all felony arrestees, and defendant’s was put into the state CODIS and he was linked to cold case burglaries and sex offenses. The seizure and use of his DNA was reasonable. Balancing the privacy interests in what part of the DNA is used and how against the governmental interests, this taking and use of DNA is reasonable under the Fourth Amendment. People v. Lowe, 221 Cal. App. 4th 1276 (4th Dist. November 15, 2013), published December 4, 2013:

=> Read more!

12/09/13

Permalink 06:00:29 pm, by fourth, 223 words, 413 views   English (US)
Categories: General

E.D.N.C.: Checkpoint resulting in federal DUI was reasonable

The police highway checkpoint that resulted in defendant’s federal DUI was reasonably established. United States v. Morton, 2013 U.S. Dist. LEXIS 172242 (E.D. N.C. December 6, 2013):

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Permalink 04:15:50 pm, by fourth, 107 words, 337 views   English (US)
Categories: General

BLT: D.C. Circuit Weighs Challenge to Groin Searches at Guantanamo Bay

Permalink 04:09:55 pm, by fourth, 86 words, 289 views   English (US)
Categories: General

NLJ: Appeals Court Hears Arguments in GPS Tracking Cases

Permalink 01:06:21 pm, by fourth, 85 words, 303 views   English (US)
Categories: General

The Hill: Cell carriers reveal 1.1M police requests

Permalink 01:03:29 pm, by fourth, 96 words, 326 views   English (US)
Categories: General

WaPo: 'Tower dumps' give police masses of cellphone data

Permalink 01:01:53 pm, by fourth, 53 words, 283 views   English (US)
Categories: General

NYT: Tech Giants Issue Call for Limits on Government Surveillance of Users

Permalink 12:56:02 pm, by fourth, 25 words, 217 views   English (US)
Categories: General

USNews: New Legislation Would Ban NSA From Arizona

USNews: New Legislation Would Ban NSA From Arizona by Steven Nelson:

State senator says 'the NSA isn't welcome in Arizona unless it follows the Constitution'

Permalink 09:32:16 am, by fourth, 159 words, 224 views   English (US)
Categories: General

TN: Search before SW arrived saved by inevitable discovery

Defendant’s house and car were opened during the long period waiting for a search warrant to arrive. What was found in the car wasn’t in plain view, but its discovery was valid under inevitable discovery doctrine because the search warrant was in the process of being obtained and was. There was a subsequent search under the warrant. State v. Flinn, 2013 Tenn. Crim. App. LEXIS 1058 (December 3, 2013).

The emergency search in this case was not shown to be plain error because there was some justification for it. State v. Lerch, 2013-Ohio-5305, 2013 Ohio App. LEXIS 5519 (9th Dist. December 4, 2013).*

The office encountered defendant at 4:30 am, but it was not a seizure. The police car had no top lights on, and the officer parked 20-25' from him. The officer asked questions, got his ID, wrote down the information, handed it back, and then asked about weapons. It was all by consent. State v. McDowell, 2013-Ohio-5300, 2013 Ohio App. LEXIS 5514 (10th Dist. December 3, 2013).*

12/08/13

Permalink 09:08:22 pm, by fourth, 25 words, 268 views   English (US)
Categories: General

The Hill: NSA tracks phone locations under executive order

The Hill: NSA tracks phone locations under executive order by Brendan Sasso:

The NSA argues the collection does not violate the Foreign Intelligence Surveillance Act.

Permalink 09:06:15 pm, by fourth, 23 words, 213 views   English (US)
Categories: General

Politico: Obama plans new limits on NSA

Politico: Obama plans new limits on NSA by JOosh Gerstein:

On "Hardball," the president promises to propose new "self-restraint" for the spy agency.

Permalink 05:22:00 pm, by fourth, 190 words, 240 views   English (US)
Categories: General

CA4: CI had real details, and he was corroborated by trash pull

Defendant was IDed by a CI as a drug dealer, so the police surveilled him and noticed his movements at and from his house were consistent with being a drug dealer, and then a trash pull pretty much confirmed it. Probable cause was evident in the affidavit for search warrant. A Franks hearing wasn’t required. “In this case, even excluding all controverted statements from the Affidavit and including the omissions that Marion alleges, the Affidavit would support the Issuing Magistrate's finding of probable cause.” United States v. Marion, 2013 U.S. App. LEXIS 24131 (4th Cir. December 4, 2013).*

The CI was identified with established reliability, and his information, further corroborated provided reasonable suspicion for stopping defendant. United States v. Dockery, 2013 U.S. App. LEXIS 24306 (4th Cir. December 6, 2013).*

The parties dispute whether the defendant’s vehicle was parked on the curtilage or not such that it could be searched under a warrant for the house. That doesn’t matter because it could be searched under plain view leading to the automobile exception because the evidence the police seized could be seen in it. State v. Hunt, 2013-Ohio-5326, 2013 Ohio App. LEXIS 5551 (10th Dist. December 5, 2013).*

Permalink 05:07:04 pm, by fourth, 26 words, 268 views   English (US)
Categories: General

The Hill: Patriot Act author: Obama's intel czar should be prosecuted

The Hill: Patriot Act author: Obama's intel czar should be prosecuted:

"Lying to Congress is a federal offense, and Clapper ought to be fired," says Sensenbrenner.

Permalink 05:01:14 pm, by fourth, 80 words, 309 views   English (US)
Categories: General

WaPo: FBI’s search for ‘Mo,’ suspect in bomb threats, highlights use of malware for surveillance

Permalink 04:47:04 pm, by fourth, 124 words, 303 views   English (US)
Categories: General

The Crime Report: Experts: American Cops Watching the Stop and Frisk Case in NY

Permalink 03:04:00 pm, by fourth, 102 words, 376 views   English (US)
Categories: General

Washington Times: Sen. Rand Paul: Supreme Court needs to re-examine Fourth Amendment

Permalink 09:12:11 am, by fourth, 163 words, 350 views   English (US)
Categories: General

ME: Information not given to magistrate wasn't in the affidavit

Information in addition to the affidavit was supposedly given to the magistrate, but it’s not in the record, so we don’t know what it is. The showing of probable cause was so lacking that the search warrant should not have issued. Accordingly, the good faith exception doesn’t apply. State v. Johndro, 2013 ME 106, 2013 Me. LEXIS 106 (December 5, 2013):

=> Read more!

Permalink 08:49:37 am, by fourth, 144 words, 228 views   English (US)
Categories: General

S.D.Ind.: Child care provider consented to entry by accepting license

Defendant ran a licensed child care facility, and the license provide for consent to records searches. Agents of the state showed up to search her records. A briefcase was also seized without a warrant. She had no standing as to the briefcase. United States v. Crumpton, 2013 U.S. Dist. LEXIS 170756 (S.D. Ind. December 4, 2013).* [Note: Regulatory search authority not mentioned, and it would not have supported the search of the briefcase anyway.]

“The court finds that the evolution of the instant traffic stop into a drug investigation was supported by Officer Baker's reasonable suspicion at every step.” United States v. Showell, 2013 U.S. Dist. LEXIS 171280 (M.D. Pa. December 5, 2013).*

Defense counsel was not ineffective for not arguing “forced abandonment” since defendant was not illegally seized at the time he abandoned the drugs. United States v. Ware, 2013 U.S. Dist. LEXIS 170536 (E.D. Pa. December 2, 2013).*

Permalink 08:41:23 am, by fourth, 454 words, 288 views   English (US)
Categories: General

OH8: IAC claim requires offer of proof of merits of search claim

Defendant satisfies the performance prong of Strickland because it was determined his motion to suppress was waived by defense counsel’s failure to file it. Because the merits issue for prejudice was based on consent, there had to be at least an offer of proof as to how he might have won the motion to suppress, and here there was nothing for the court to evaluate to even grant a hearing. State v. Michailides, 2013-Ohio-5316, 2013 Ohio App. LEXIS 5538 (8th Dist. December 5, 2013):

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Permalink 08:15:55 am, by fourth, 151 words, 195 views   English (US)
Categories: General

W.D.Tenn.: Nexus of probable cause for the place to be searched may be inferred

Nexus of probable cause for the place to be searched may be inferred from the facts. Here, possession of pseudoephedrine made it reasonable to infer that the defendant was operating a small methamphetamine in his house. United States v. Masters, 2013 U.S. Dist. LEXIS 170853 (W.D. Tenn. December 4, 2013), R&R 2013 U.S. Dist. LEXIS 171673 (W.D. Tenn. September 23, 2013).

The information from the CI was corroborated enough to make it believable, and corroboration made PC. United States v. Hall, 2013 U.S. Dist. LEXIS 170844 (E.D. Tenn. November 22, 2013),* R&R 2013 U.S. Dist. LEXIS 171669 (E.D. Tenn. September 25, 2013).*

Defendant’s stop was based on a traffic offense, but, by collective knowledge, the officer knew at least by reasonable suspicion that defendant likely had a significant quantity of marijuana on him. United States v. Bruce, 2013 U.S. Dist. LEXIS 170948 (D. Ariz. September 25, 2013),* R&R 2013 U.S. Dist. LEXIS 170947 (D. Ariz. December 4, 2013).*

12/07/13

Permalink 12:28:29 pm, by fourth, 125 words, 341 views   English (US)
Categories: General

W.D.Mich. & D.Neb.: Visitor in apt for days had standing

Defendant had been visiting in apartment for 4-5 days, and he kept a lot of stuff there. He could come and go as he pleased. He had standing. The search warrant was valid with probable cause. The apartment was secured for a warrant after a knock and talk. United States v. Will, 2013 U.S. Dist. LEXIS 170577 (W.D. Mich. November 26, 2013), adopted 2013 U.S. Dist. LEXIS 170583 (W.D. Mich. Dec. 4, 2013).*

Same as to standing. United States v. Vallejo, 2013 U.S. Dist. LEXIS 170963 (D. Neb. October 16, 2013).*

A turn signal violation justified the stop. The stop was not unreasonably extended because the officer had to sort out the paperwork and who was going to drive the car. United States v. Taylor, 2013 U.S. Dist. LEXIS 170967 (D. Neb. November 13, 2013).*

Permalink 08:42:02 am, by fourth, 89 words, 407 views   English (US)
Categories: General

Lawrence KS ordinance proposes mandatory rental unit inspection

Permalink 08:23:53 am, by fourth, 171 words, 379 views   English (US)
Categories: General

BLT: Criminal Defense Lawyers Criticize Stop-and-Frisk Policies

12/06/13

Permalink 12:26:17 pm, by fourth, 100 words, 309 views   English (US)
Categories: General

D.S.C.: Two anonymous CIs corroborated by trash pull

Two anonymous CIs were essentially corroborated by a trash pull. Therefore, there was probable cause. United States v. Jackson, 2013 U.S. Dist. LEXIS 170847 (D.S.C. December 4, 2013).*

State arrest warrant led to valid search incident of briefcase with cash that was properly applied by the federal government to defendant’s tax liability. Therefore, the motion to suppress was properly granted. United States v. Kahre, 737 F.3d 554 (9th Cir. 2013).*

Defendant’s consent was voluntary based on his signature on the consent form and his experience in the criminal justice system. United States v. Harris, 2013 U.S. App. LEXIS 24107 (3d Cir. December 4, 2013).*

Permalink 11:37:02 am, by fourth, 91 words, 376 views   English (US)
Categories: General

ACLU: DOJ asks court to give police the benefit of the doubt on murky surveillance law

Permalink 11:34:38 am, by fourth, 122 words, 359 views   English (US)
Categories: General

The New Yorker: How to Tell When the N.S.A. Is Lying

The New Yorker: How to Tell When the N.S.A. Is Lying by Amy Davidson:

=> Read more!

Permalink 11:28:35 am, by fourth, 42 words, 278 views   English (US)
Categories: General

NYT: About New York: Vowing to Slay the (Already Subdued) Stop-and-Frisk Dragon

NYT: About New York: Vowing to Slay the (Already Subdued) Stop-and-Frisk Dragon by Jim Dwyer:

Standing next to the next police commissioner on Thursday morning, Bill de Blasio promised that he would bring an end to 'stop-and-frisk as we knew it.'

Permalink 10:46:19 am, by fourth, 127 words, 282 views   English (US)
Categories: General

Wired: NSA Wrongly Says Warrantless Mobile-Phone Location Tracking Is Legal

12/05/13

Permalink 02:07:17 pm, by fourth, 108 words, 443 views   English (US)
Categories: General

CNN: The wrong people decide who goes to prison

CNN: The wrong people decide who goes to prison by U.S. District Court Judge Mark W. Bennett and Professor Mark Osler:

=> Read more!

Permalink 01:48:24 pm, by fourth, 68 words, 328 views   English (US)
Categories: General

WaPo: NSA tracking cellphone locations worldwide, Snowden documents show

Permalink 01:44:02 pm, by fourth, 37 words, 249 views   English (US)
Categories: General

NYT: Internet Firms Step Up Efforts to Stop Spying

NYT: Internet Firms Step Up Efforts to Stop Spying by Nicole Perloth and Vindu Goel:

After surveillance by the National Security Agency, major Internet companies like Microsoft and Yahoo have moved to strengthen protections of users' data.

Permalink 01:37:00 pm, by fourth, 45 words, 288 views   English (US)
Categories: General

The Recorder: In Privacy Opinions, Federal Judges Air Differences

Permalink 01:18:41 pm, by fourth, 103 words, 332 views   English (US)
Categories: General

Human Rights Watch: Forced Guilty Pleas in Drug Cases

Permalink 08:15:07 am, by fourth, 102 words, 259 views   English (US)
Categories: General

MN: Vehicle may be impounded when driver doesn't make own towing arrangements; inventory proper

Police may impound a vehicle for revoked license registration and plates, and for no insurance, when the driver does not ask to make her own towing arrangements. Thus, this inventory was proper. State v. Rohde, 839 N.W.2d 758 (Minn. App. 2013).

An anonymous tip of a DUI was corroborated when the exact vehicle was found with the driver visibly drunk. Cook v. Rankin County, 2013 Miss. App. LEXIS 831 (December 3, 2013).*

A DV arrest does not have to take place at the precise place it occurred; reasonably close proximity is enough. This happened at the N.M. state fairgrounds. State v. Almanzar, 2013 N.M. LEXIS 413 (December 2, 2013).*

Permalink 07:44:18 am, by fourth, 606 words, 389 views   English (US)
Categories: General

MN holds RS required to detain a package in transit for a dog sniff under state constitution

Reasonable suspicion is not required to pick up a package on the shipper’s conveyor belt just to look at it, but it is required to detain it. Here, the detention for a dog sniff required RS under the state constitution, but it was present. The court declines to follow federal precedent. State v. Eichers, 840 N.W.2d 210 (Minn. App. 2013):

=> Read more!

Permalink 12:42:23 am, by fourth, 152 words, 435 views   English (US)
Categories: General

WaPo: The NSA says it ‘obviously’ can track locations without a warrant. That’s not so obvious

12/04/13

Permalink 04:41:20 pm, by fourth, 86 words, 322 views   English (US)
Categories: General

UPI: Anti-surveillance groups seek to use state laws to block NSA

Permalink 08:36:11 am, by fourth, 176 words, 481 views   English (US)
Categories: General

E.D.Ark.: Mistake of law on lane use statute not objectively reasonable; suppression granted

The officer made a mistake of law in concluding that the lane use or “fog line” statute applied. Also, the government never relied on that statute until after the hearing with a motion to supplement the record. The stop was then extended in an effort to find drugs. United States v. Demilia, 2013 U.S. Dist. LEXIS 170265 (E.D. Ark. December 3, 2013):

=> Read more!

Permalink 08:25:35 am, by fourth, 352 words, 455 views   English (US)
Categories: General

CA4: Consent not voluntary; situation completely police dominated

Defendant was in a police dominated place, a bus shelter, where police congregated looking for a man with a gun. They “handled” the other five there when they got to him, and his consent was merely submission to a claim of authority. The situation was completely police dominated. United States v. Robertson, 736 F.3d 677 (4th Cir. 2013):

=> Read more!

Permalink 08:18:49 am, by fourth, 161 words, 294 views   English (US)
Categories: General

NC: CI PC threshold is “low” but it still has to be met; curtilage admittedly violated; suppression affirmed

The threshold for supporting a CI is low, but it still has to be met, and here it wasn’t. There was no showing at all in the affidavit for SW how the CI was reliable, just a conclusory statement. Then the police entered the curtilage, admittedly illegally, to make observations which supported the claim of PC, but they really didn’t, except for a marijuana smell. The warrant was suppressed, and the factual findings of the trial court are supported by the evidence, so suppression is affirmed. State v. Benters, 2013 N.C. App. LEXIS 1237 (December 3, 2013).

“Defendant further contends that subjecting him to SBM [satellite based monitoring as a convicted sex offender] violates his right to be free from unreasonable search and seizure under our federal and state constitutions. This Court recently addressed and rejected this precise argument in State v. Martin, __ N.C. App. ___, 735 S.E.2d 238 (2012). Accordingly, this argument is overruled.” State v. Jones, 2013 N.C. App. LEXIS 1233 (December 3, 2013).

Permalink 07:58:39 am, by fourth, 293 words, 348 views   English (US)
Categories: General

NC: Delay to get a SW for blood shown to be exigency

A warrantless blood draw was with exigent circumstances under McNeeley. Defendant was stopped at a DUI checkpoint, and he was apparently under the influence. Based on that, he was given a FST, and he apparently failed. He was taken to a mobile BAC machine, and he refused the test. Because the nearest hospital was 15 minutes away, and a warrant at the jail would take hours, it was reasonable to conclude that the blood draw was necessary because of dissipation of BAC. State v. Dahlquist, 2013 N.C. App. LEXIS 1231 (December 3, 2013):

=> Read more!

12/03/13

Permalink 02:25:39 pm, by fourth, 125 words, 470 views   English (US)
Categories: General

EFF Amicus Brief: Video Surveillance of a Home for a Month Without a Warrant Violates Fourth Amendment

Permalink 01:56:23 pm, by fourth, 62 words, 320 views   English (US)
Categories: General

The Hill: Door-to-door drones spook lawmakers

The Hill: Door-to-door drones spook lawmakers by Brendan Sasso and Keith Laing:

=> Read more!

Permalink 01:54:23 pm, by fourth, 57 words, 340 views   English (US)
Categories: General

NPR: Why FISA Court Judges Rule The Way They Do

Permalink 09:33:28 am, by fourth, 116 words, 214 views   English (US)
Categories: General

D.D.C.: SW Docket and affidavit unsealed after no indictment

Movant was a government employee whistleblower who benefitted financially from qui tam action, so the government sought a grand jury indictment for mail fraud, wire fraud, bribery, and conspiracy. After the investigation wound on for years without indictment, the affidavit for search warrant for his stuff was unsealed years ago which he never found out about because he was never served. The docket was sealed, so that’s why he didn’t know. The docket and affidavit are ordered unsealed. In re Search Warrant, 2013 U.S. Dist. LEXIS 169224 (D.D.C. November 26, 2013).

Entry found to be by valid consent on the credibility of witnesses. United States v. Soto-Garcia, 2013 U.S. Dist. LEXIS 168868 (N.D. Ga. September 5, 2013).*

Permalink 08:56:00 am, by fourth, 246 words, 366 views   English (US)
Categories: General

D.Minn.: Merely asking for a “four corners review” of a search warrant affidavit is not a valid motion to suppress

Merely asking for a “four corners review” of a search warrant affidavit is not a valid motion to suppress. Considering it anyway, there was probable cause. United States v. Reyes, 2013 U.S. Dist. LEXIS 169487 (D. Minn. August 14, 2013):

=> Read more!

Permalink 08:45:05 am, by fourth, 135 words, 208 views   English (US)
Categories: General

M.D.Fla.: Refusal to keep hands out of pockets during stop justified frisk

Defendant was stopped for riding a bicycle in the center of the road and at night without a headlight. Once stopped, he wouldn’t keep his hands out of his pockets, and that justified a frisk. United States v. Barker, 2013 U.S. Dist. LEXIS 169728 (M.D. Fla. October 22, 2013).

There was probable cause for the search warrant on the totality for cocaine and marijuana (although a really small amount). The court declines to engage in “contraband-balancing,” and there is probable cause. United States v. Thurmond, 2013 U.S. Dist. LEXIS 169263 (N.D. Iowa November 27, 2013).*

Defendant was “staying” with a friend and kept belongings there, so he had standing. The entry was by consent and the plain view was valid. The ensuing search warrant was validly issued. United States v. Galvez, 2013 U.S. Dist. LEXIS 169678 (D. Neb. October 16, 2013).*

Permalink 06:23:56 am, by fourth, 263 words, 438 views   English (US)
Categories: General

HuffPo: "Poll" strongly favors drug testing welfare recipients, Congress

Permalink 06:09:42 am, by fourth, 62 words, 228 views   English (US)
Categories: General

U.Pa.J.Const.L: Cell tower dumps, welfare drug testing, DNA testing

Brian L. Owsley, The Fourth Amendment Implications of the Government's Use of Cell Tower Dumps in its Electronic Surveillance, 16 U. Pa. J. Const. L. 1 (2013)

Celia Goetzl, Government Mandated Drug Testing for Welfare Recipients: Special Need or Unconstitutional Condition? 15 U. Pa. J. Const. L. 1539 (2013)

David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L. 1095 (2013)

12/02/13

Permalink 01:15:02 pm, by fourth, 87 words, 364 views   English (US)
Categories: General

Rochester Democrat and Chronicle: FluxData takes cameras to the sky: Local imaging company puts its equipment aboard unmanned aerial vehicles

Permalink 01:11:10 pm, by fourth, 69 words, 253 views   English (US)
Categories: General

Politico: Digital era confounds the courts

Politico: Digital era confounds the courts by Tal Kopan:

Starting next week, the nation's top court will see three significant tech cases.

The Founding Fathers weren’t big on texting.

Courts have long struggled to deal with key questions at the intersection of individual privacy and ever-advancing technology with little guidance from the Constitution or from prior cases – now judges and experts are hoping that’s about to change.

Permalink 02:01:47 am, by fourth, 193 words, 437 views   English (US)
Categories: General

WA: When police have an arrest warrant, warning of a state right to refuse an entry into the home for consent not required

When police have an arrest warrant, warning of a state right to refuse an entry into the home required in State v. Ferrier does not apply. Consent must still be shown to be voluntary under the totality of the circumstances. State v. Ruem, 179 Wn.2d 195, 313 P.3d 1156 (2013):

=> Read more!

Permalink 01:01:32 am, by fourth, 95 words, 207 views   English (US)
Categories: General

OR: Second officer effected a second stop and first search by consent didn't extend to second stop

Consent to one officer searching defendant’s car was complete and there was a temporal break when the second officer searched the car. In between she was told she could leave and then consent was sought before she could go. This amounted to a second stop. State v. Marino, 259 Or. App. 608, 314 P.3d 984 (2013).

When the trial court is asked to rely on the offense report, credibility determinations are limited. The court of appeals erred in determining that it was not believable when it relied on it. Delafuente v. State, 414 S.W.3d 173 (Tex. Crim. App. 2013).*

Permalink 12:00:09 am, by fourth, 90 words, 274 views   English (US)
Categories: General

CA2: Defendant's arranging a meet corroborated CI's story

The CI provided detailed information in person about the defendant’s drug dealing activities, and it was corroborated by defendant arranging a meeting to acquire drugs. United States v. Cardona, 2013 U.S. App. LEXIS 23840 (2d Cir. November 27, 2013),* As Amended December 3, 2013.

Petitioner’s guilty plea foreclosed his post-conviction search and seizure claim. Barrett v. United States, 2013 U.S. Dist. LEXIS 168760 (S.D. Ohio November 27, 2013).*

Defendant can’t pursue a 2255 claim about his search claim where he litigated it pretrial. United States v. Emmanuel, 2013 U.S. Dist. LEXIS 168273 (M.D. Pa. November 26, 2013).*

12/01/13

Permalink 10:27:17 am, by fourth, 173 words, 404 views   English (US)
Categories: General

Chicago Sun-Times: Attorney for teen terror suspect wants to see secret evidence

Permalink 10:22:06 am, by fourth, 120 words, 396 views   English (US)
Categories: General

The Hill: Pressure builds on Boehner for NSA vote

Permalink 10:00:49 am, by fourth, 273 words, 413 views   English (US)
Categories: General

Qualified Immunity and the First Amendment Right to Record Police

Geoffrey J. Derrick, Qualified Immunity and the First Amendment Right to Record Police, 22 B.U. Pub. Int. L.J. 243 (2013).

This is important because it almost always arises in the context of an arrest for photographing or videorecording.

=> Read more!

Permalink 09:19:56 am, by fourth, 111 words, 342 views   English (US)
Categories: General

NYT: Officers Are Told Race Can Be a Factor in Street Stops, but Not the Only One

Permalink 12:00:05 am, by fourth, 381 words, 483 views   English (US)
Categories: General

OH8: Being overly polite is not suspicious conduct; search after dog sniff suppressed

Defendant was stopped for doing 45 in a 35. He was overly polite, and the officer found that suspicious and had a drug dog go around the car ten minutes into the stop. Overly polite and somewhat nervous is not suspicious conduct warranting detention for a dog sniff. State v. Fontaine, 2013-Ohio-5257, 2013 Ohio App. LEXIS 5466 (8th Dist. November 27, 2013):

=> Read more!

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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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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