Archives for: December 2013, 15

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:

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Permalink 07:30:01 am, by fourth, 56 words, 317 views   English (US)
Categories: General

NYT: Surveillance: Cozy or Chilling?

Permalink 07:26:04 am, by fourth, 259 words, 232 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):

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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, 289 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):

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting
www.johnwesleyhall.com

© 2003-14, online since Feb. 24, 2003

HWC e
URL hits since 2010

~~~~~~~~~~~~~~~~~~~~~~~~~~

Fourth Amendment cases,
citations, and links

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Most recent SCOTUS cases:
2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)


Research Links:
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  Findlaw.com
  Findlaw.com (4th Amd)
  Westlaw.com $
  F.R.Crim.P. 41
  www.fd.org

  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (pdf)

  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)


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