VoteKansas.org

NYTimes.com: ACLU Sues Over Border Patrol Stops in U.S. Pacific Northwest by Reuters:

The U.S. Border Patrol is unjustifiably stopping people based on their skin color in Washington state's Olympic Peninsula, just across the water from Canada, the American Civil Liberties Union said in a lawsuit filed on Thursday.

Two Latinos and a black man - two of them prison corrections officers - said in the complaint filed in U.S. federal court in Seattle that they were subject to racial profiling. One of the officers was in his uniform when he was stopped, the lawsuit said.

Update: American Federation of State County and Municipal Employees, Council 79 v. Scott, 11-civ-21976-UU (S.D. Fla. April 26, 2012):

To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing. Chandler, 520 U.S. at 313. To warrant an exception from the main rule, the government must show that it has a “special need, beyond the normal need for law enforcement.” Id. When, as here, the government alleges such a need, “courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties.” Id. at 314. The permissibility of a drug-testing program "is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Skinner, 489 U.S. at 619-620 (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979)).

. . .

Moving to the Georgia statute [in Chandler] in question, the Court held that merely aspirational goals, such as promoting public confidence and trust in elected officials and demonstrating the government’s commitment to the struggle against drug abuse, which are not tied to any real, concrete danger, do not constitute a “special need” sufficient to exempt a state from its normal Fourth Amendment requirements. According to the Court, Georgia had failed to present any evidence of a “concrete danger” that would demonstrate that the hazards the state sought to avoid were “real and not simply hypothetical.” Id. at 319-20. In particular, the state had asserted “no evidence of a drug problem among the State's elected officials,” nor did the covered individuals “typically ... perform high-risk, safety sensitive tasks.” Id. “Symbolic” public concerns, the Chandler Court concluded, warrant no special departure from the Fourth Amendment. Id. at 322.

. . .

In other words, the Governor’s safety rationale for the EO essentially relies on the Governor's common sense belief that because illegal drug use exists in the general population, it must also exist among state employees. And, the Governor predicts these drug-impaired employees will be less reliable and more accident-prone; thus, a public benefit will be attained by ensuring that all state employees under the Governor's purview are drug-free. The Governor may be right, but unlike the programs in Skinner, Nat’l Treasury, and Vernonia, which were moored to concrete dangers, the Governor’s program is detached from any readily-apparent or demonstrated risk. Rather, the Governor’s broadly-defined objectives more closely resemble the state of Georgia’s argument, rejected in Chandler, that the testing of state officials was justified because “the use of illegal drugs draws into question an official's judgment and integrity; jeopardizes the discharge of public functions, including antidrug law enforcement efforts; and undermines public confidence and trust in elected officials.” 520 U.S. at 318. And in Chandler, the Supreme Court held that without evidence of a drug problem among the state’s elected officials (who typically do not perform high-risk, safety-sensitive tasks), this justification was “symbolic, not ‘special,’” as required by the relevant precedents. Id. at 322.

The Union here asks for a permanent injunction, which requires three elements: (1) there was a legal violation; (2) there is a serious risk of continuing irreparable injury if an injunction is not granted; and (3) there are no adequate remedies at law. Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000). Here, the Court finds that the EO, as applied to current employees at the covered agencies, is violative of the Fourth Amendment, and that these employees will suffer irreparable harm if subjected to it. See Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992) (holding that Fourth Amendment violation is enough to show irreparable harm); see also Am. Fed'n of Teachers-West Va., AFL-CIO v. Kanawha Cnty. Bd. of Educ., 592 F. Supp. 2d 883 (S.D.W. Va. 2009); Bannister v. Bd. of Cnty. Comm'rs of Leavenworth Cnty., Kan., 829 F. Supp. 1249 (D. Kan. 1993); Marchwinski v. Howard, 113 F. Supp. 2d 1134 (E.D. Mich. 2000), but see 309 F.3d 330 (6th Cir. 2002) (holding that district court erred in granting preliminary injunction) vacated by 319 F.3d 258 (6th Cir. 2003). The Court also concludes that there is no adequate remedy at law in light of the immeasurable nature of the harm that will flow from the EO’s implementation; were the EO to be implemented, the current employees at the covered agencies would suffer a Fourth Amendment violation that cannot be remedied in monetary terms. “Indeed, one reason for issuing an injunction may be that damages, being immeasurable, will not provide a remedy at law.” Treasure Valley Potato Bargaining Asso. v. Ore-Ida Foods, Inc., 497 F.2d 203, 218 (9th Cir. 1974), cert. denied 419 U.S. 999 (1974).

The Court is mindful, however, that injunctive relief should be limited in scope to the extent necessary to protect the interests of the parties. See Gibson v. Firestone, 741 F.2d 1268, 1273 (11th Cir. 1984). Because the Union did not contend that the EO is unconstitutional as applied to “prospective new hires,” meaning individuals who are not currently employed at covered agencies, the Court does not reach the issues of whether such prospective employees can be subjected to preemployment testing and subsequent random drug testing pursuant to the EO. However, the relief encompasses both Union and non-Union employees because the EO is unconstitutional as applied to them for precisely the same reasons. Accordingly, the Court grants permanent injunctive relief to all individuals currently employed at covered agencies.

StoptheDrugWar.org: Judge Rejects Florida State Employee Drug Testing by Phillip Smith

Jacksonville.com: Rick Scott's state worker drug tests ruled unconstitutional by Mike Marino

HuffPo: Rick Scott Drug Testing Executive Order Ruled Unconstitutional By Federal Judge by Arthur Delaney

MiamiHerald.com: Judge: Fla. worker drug testing unconstitutional

“[T]he court does not find that Deputy Schneider's use of the density meter was unauthorized by the defendant’s consent to ‘take a quick look in the car.’” The search took six monits and qualified. United States v. Long Tien Dang, 2012 U.S. Dist. LEXIS 56875 (D. Kan. April 24, 2012).*

A general objection to a USMJ’s R&R only requires plain error review. United States v. Tamayo, 2012 U.S. Dist. LEXIS 57126 (N.D. Ga. April 23, 2012)*:

Defendants make no attempt to specify why they disagree with the magistrate judge's conclusions. "In order to trigger de novo review of an R&R, the objection must be 'specific.'" United States v. Diaz, No. 1:09-CR-0037-WBH, 2011 WL 344093, at *1 (Jan. 31, 2011) (quoting Fed. R. Civ. P. 59(b)(2)). "General objections which reassert arguments by reference to prior pleadings do not suffice." Id. (citing Nettles v. Wainwright, 677 F.2d 404, 410 n. 8 (5th Cir. 1982). In the absence of objections filed in accordance with Rule 59(b)(2), this court need only perform plain error review. Id.

Running a stop sign was reason enough for a stop. State v. Edmonds, 2012 Tenn. Crim. App. LEXIS 241 (April 23, 2012).*

How much does it take to be suspected of smuggling aliens? Not much. United States v. Castillo-Gamez, 2012 U.S. App. LEXIS 8180 (11th Cir. April 24, 2012)*:

Here, the district court properly concluded that Barrientos had a reasonable suspicion that the minivan carried illegal aliens. As Barrientos testified, the minivan had out-of-state license plates, tinted windows, and appeared to be weighted down. Barrientos knew that smugglers often used I-95 to avoid the cameras and tolls on the Florida Turnpike. And when he pulled along side the minivan, Barrientos noticed that Castillo-Gamez appeared stiff and did not make eye contact. Considering these facts together, Barrientos had a reasonable suspicion that the minivan contained illegal aliens. See Bautista-Silva, 567 F.3d at 1272-74.

Defendant couldn’t appeal the search issue in his guilty plea without a conditional plea. United States v. Dorsey, 2012 U.S. App. LEXIS 8213 (5th Cir. April 24, 2012).*

Defendant’s Franks claim was based on speculation and is unsupported by the tenor of the affidavit. If the officers had looked at his laptop and seen the child pornography, that would have only strengthened the probable cause, and it didn’t. United States v. Miller, 2012 U.S. Dist. LEXIS 56878 (W.D. Va. April 24, 2012).*

Defendant’s evasive behavior in replacing the license plate on his car to avoid detection when was being investigated for a grow operation was reasonable suspicion. When officers stopped him, he was cooperative and admitted what he was doing. United States v. Valerio, 2012 U.S. Dist. LEXIS 57038 (S.D. Fla. April 24, 2012).*

Defense counsel was not ineffective for not challenging the delay during a stop where it took time for the owner of the car to arrive or in challenging a stop based on a clear speeding violation. Owens v. United States, 2012 U.S. Dist. LEXIS 56416 (M.D. Pa. April 23, 2012).*

InfoWars.com: Security Experts Send Congress Letter on Fourth Amendment Busting CISPA by Kurt Nimmo:

On Monday, a group of prominent engineers, professionals and academics posted an open letter to Congress stating their opposition to CISPA, the Cyber Intelligence Sharing and Protection Act that trashes the Fourth Amendment and privacy of internet users.

Later this week, CISPA will go to the House floor for a vote. On Monday, Rep. Ron Paul said CISPA represents the “latest assault on Internet freedom” and “is Big Brother writ large.”

Rep. Rogers’ Cyber Intelligence Sharing and Protection Act of 2011 (H.R. 3523) and Sen. McCain’s SECURE IT Act (S. 2151) “nullify current legal protections against wiretapping and similar civil liberties violations for that kind of broad data sharing,” the letter states. “By encouraging the transfer of users’ private communications to US Federal agencies, and lacking good public accountability or transparency, these ‘cybersecurity’ bills unnecessarily trade our civil liberties for the promise of improved network security.”

Defendant’s wife left the house after an argument and went to her father’s to spend the night. She validly consented to a search of the house even though temporarily out. She was a co-owner, had her stuff there, and still lived there with equal control over the premises. United States v. Mooney, 2012 U.S. App. LEXIS 8087 (11th Cir. April 23, 2012).

Stop was justified by following too close, and defendant was properly put into the patrol car for lying about possessing weapons. State v. Demcovitz, 2012 Tenn. Crim. App. LEXIS 239 (April 20, 2012).*

Traffic stop led to inconsistent answers and reasonable suspicion which led to valid consent and a hidden compartment with drugs. United States v. Soto, 2012 U.S. Dist. LEXIS 56304 (E.D. Ark. April 3, 2012).*

HuffPo: TSA Defends Pat-Down Of Crying 4-Year-Old Girl At Kansas Airport by Roxana Hegeman:

WICHITA, Kan. -- The grandmother of a 4-year-old girl who became hysterical during a security screening at a Kansas airport said Wednesday that the child was forced to undergo a pat-down after hugging her, with security agents yelling and calling the crying girl an uncooperative suspect.

The incident has been garnering increasing media and online attention since the child's mother, Michelle Brademeyer of Montana, detailed the ordeal in a public Facebook post last week. The Transportation Security Administration is defending its agents, despite new procedures aimed at reducing pat-downs of children.

The child's grandmother, Lori Croft, told The Associated Press that Brademeyer and her daughter, Isabella, initially passed through security at the Wichita airport without incident. The girl then ran over to briefly hug Croft, who was awaiting a pat-down after tripping the alarm, and that's when TSA agents insisted the girl undergo a physical pat-down.

Isabella had just learned about "stranger danger" at school, her grandmother said, adding that the girl was afraid and unsure about what was going on.

New Law Review article: A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases by David H. Kaye on SSRN. Abstract:

Routine DNA sampling following a custodial arrest process is now the norm in many jurisdictions, but is it consistent with the Fourth Amendment? The few courts that have addressed the question have disagreed on the answer, but all of them seem to agree on two points: (1) the reasonableness of the practice turns on a direct form of balancing of individual and governmental interests; and (2) individuals who are convicted — and even those who are merely arrested — have a greatly diminished expectation of privacy in their identities. This Article disputes these propositions and offers an improved framework for analyzing the constitutionality of databases of biometric data. It demonstrates that the opinions on DNA collection before conviction have lost sight of the foundations of balancing tests in Fourth Amendment analysis. It argues that balancing is acceptable only for “special needs” or “administrative search” cases, or for defining new exceptions to the warrant requirement of the Fourth Amendment. The Article examines how DNA collection before conviction might be brought under the traditional special-needs doctrine and how it might fit within a new, but coherent exception for certain forms of biometric data. This framework permits the courts to analyze DNA databases without diluting the protections guaranteed by the Fourth Amendment, and it provides a sound rationale for the current law on arrestee fingerprinting.

The Republic: Group questions constitutionality of middle-of-the-night 'wake up calls' by Richmond police by Larry O'Dell:

Richmond police are violating residents' constitutional rights by waking them in the middle of the night with a knock on the door to admonish them for leaving valuables in plain sight in their parked cars, a civil liberties group said Wednesday.

The Charlottesville-based Rutherford Institute said in a letter to Police Chief Bryan Norwood that the department's new "Wake Up Call" initiative invades residents' privacy and infringes on their Fourth Amendment right to be free of unreasonable police intrusions. The program also heightens the risk of a violent confrontation between police and an alarmed resident, the institute said.

"The recent Trayvon Martin incident from Florida should serve as a stark warning of how the fear and misunderstanding of a homeowner can turn a benign situation into tragedy involving loss of life," John W. Whitehead, executive director of the Rutherford Institute, wrote in the letter.

Law.com: Ohio Court Addresses Text Messages and the Fourth Amendment by Joshua A. Enge:

The question of who can challenge a search of cell phone records was before an Ohio court on Aug. [sic: April] 13. The case, from the Court of Appeals of Ohio, Sixth District, is State v. Young.

This case started with a missing 17-year-old girl. The police began to suspect that the defendant knew where she was. So they obtained his cell phone records from Verizon Wireless, by submitting a single page Emergency Request Form. The police also obtained the 17-year-old girl's cell phone records with the consent of her mother.

DNA testing of arrestees violates the Fourth Amendment, applying a balancing test. King v. State, 2012 Md. LEXIS 211 (April 24, 2012):

Although previously we upheld the constitutionality of the Act, as applied to convicted felons, in State v. Raines, 383 Md. 1, 857 A.2d 19 (2004), the present case presents an extension of the statute, not present in Raines. Thus, we evaluate here rights given to, and withdrawn from, citizens who have been arrested, including the right to be free from unreasonable searches and seizures. Under the totality of the circumstances balancing test, see Knights v. United States, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed. 2d (2001), we conclude, on the facts of this case, that King, who was arrested, but not convicted, at the time of his first compelled DNA collection, generally has a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches that is not outweighed by the State's purported interest in assuring proper identification of him as to the crimes for which he was charged at the time. The State (through local law enforcement), prior to obtaining a DNA sample from King following his arrest on the assault charges, identified King accurately and confidently through photographs and fingerprints. It had no legitimate need for a DNA sample in order to be confident who it arrested or to convict him on the first-or second-degree assault charges. Therefore, there was no probable cause or individualized suspicion supporting obtention of the DNA sample collection for those charges. We conclude that the portions of the DNA Act authorizing collection of a DNA sample from a mere arrestee is unconstitutional as applied to King. Although we have some trepidation as to the facial constitutionality of the DNA Act, as to arrestees generally, we cannot exclude the possibility that there may be, in some circumstances, a need for the State to obtain a DNA sample to identify an arrestee accurately.

Arrest outside the threshold of the home led to invalid protective sweep of the house. The officers failed to articulate any facts or reason to justify going in the house. United States v. Barsoum, 2012 U.S. Dist. LEXIS 56218 (M.D. Fla. April 5, 2012):

Against these standards, the government offers nothing to suggest the Defendant or anyone in the residence (his family) likely posed a danger to the agents, and certainly nothing that a reasonably prudent officer would accept. Instead, the main reason the government seemingly gives is that the agents took the Defendant inside to avoid the rainy morning and to offer him the opportunity to put on some clothes and shoes. Frankly, I find another reason is more obvious. As Agent Zdrojewski admitted, he wanted to secure the Defendant's consent to search his house. Indeed, he specifically chose that location for the Defendant's arrest, as opposed to the pharmacy, to increase his odds that he could search the residence.11 Because I find the government has failed to meet its burden under Buie, I find the agents' entry into the Defendant's house and their subsequent protective sweep illegal.

11 I do not suggest that this tactic is illegal; on the contrary, the approach is commonplace. But as Payton and Buie make clear, an arrest warrant and a search warrant are not synonymous. Without a search warrant, the government must present an exception to the warrant requirement.

Defense counsel was not ineffective for not challenging the length of a stop where the stop was lengthened by the wait for the owner of the car to come to the scene. Defense counsel also was not ineffective for not challenge the stop where the car was indisputably speeding. Owens v. United States, 2012 U.S. Dist. LEXIS 56416 (M.D. Pa. April 23, 2012).*

The same pro se defendant’s motion to suppress was denied where he never, after being invited to do so, said what it was he was trying to suppress. United States v. Goodrich, 2012 U.S. Dist. LEXIS 56472 (W.D. Mo. April 23, 2012),* R&R 2012 U.S. Dist. LEXIS 56470 (W.D. Mo. April 11, 2012).*

Pro se defendant’s claim that a search warrant could not issue without a criminal complaint also being issued is denied as without any legal basis. United States v. Goodrich, 2012 U.S. Dist. LEXIS 56470 (W.D. Mo. April 23, 2012).*

“Quilter raises a hodgepodge of constitutional arguments in support of his motion to suppress.” [Meaning: The court is going to deny them as misguided at best.] As to entry of the hotel room, it was justified by the exigent circumstance of officer safety where one person in the room on a bed wouldn’t show his hands right away. “Entry therefore became a matter of officer safety. Since law enforcement officers must be permitted to secure environments for their own protection, Minnesota v. Olson, 495 U.S. 91, 100 (1990), this situation justified entry for that limited purpose.” United States v. Quilter, 2012 U.S. Dist. LEXIS 56393 (D. Vt. April 23, 2012)*:

The Second Circuit has adopted a non-exhaustive list of six factors to determine existence of exigent circumstances:

(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect "is reasonably believed to be armed"; (3) "a clear showing of probable cause ... to believe that the suspect committed the crime"; (4) "strong reason to believe that the suspect is in the premises being entered"; (5) "a likelihood that the suspect will escape if not swiftly apprehended"; and (6) the peaceful circumstances of the entry.

United States v. Reed, 572 F.2d 412, 424 (2d Cir. 1978) (quoting Dorman v. United States, 435 F.2d 385, 392-93 (D.C. Cir. 1970)).

In a high crime area, officers observed defendant dropping a cell phone and car keys into brush. That was reasonable suspicion. They did not violate the Fourth Amendment by pressing the key fob to find the car. United States v. Cowan, 2012 U.S. App. LEXIS 6051 (8th Cir. March 23, 2012). United States v. Figures, 2012 U.S. Dist. LEXIS 55641 (D. Neb. April 20, 2012).*

Motion for return of property under Rule 41(g) was denied without prejudice where the
claimant likely had no property interest in the place where it was seized. He needed to show more and still can. United States v. Return of Property of Fawcett, 2012 U.S. Dist. LEXIS 55620 (N.D. Ohio April 20, 2012)*:

In this matter, Mr. Fawcett has not yet shown a sufficient property interest in the jewelry listed in his Declaration. The Defendant avers the jewelry, consisting largely of vintage watches, was taken from a residence in which, at the time of the exercise of the warrant, Mr. Fawcett no longer had any property interest and in which he no longer resided. Mr. Fawcett has yet to offer any evidence to demonstrate his lawful possession of the jewelry listed in his Declaration. Further, Mr. Fawcett has failed to specify with any certainty the items he seeks to have returned. Instead, the description offered in his Declaration is generic by type (watch), and brand (Rolex), and general year (vintage 1978).

by Greg Palast – Special for Buzzflash at Truthout

The Justice Department went big game hunting and bagged a teeny-weeny scapegoat.  More like a scape-kid, really.

Today, Justice arrested former BP engineer Kurt Mix for destroying evidence in the Deepwater Horizon blow-out.

I once ran a Justice Department racketeering case and damned if I would have 'cuffed some poor schmuck like Mix––especially when there's hot, smoking guns showing greater crimes by BP higher ups.

Last week, I released evidence we uncovered that BP top executives concealed evidence of a prior blow-out.  Had they not covered up the 2008 blow-out in then Caspian Sea, then the Deepwater Horizon probably would not have blown out two years later in 2010. [Watch the film and read the stories.]

I urge you to read the affidavit of FBI agent Barbara O'Donnell which the government filed in arresting Mix.  His crime is deleting texts from his phone indicating that the blown-out Macondo well was gushing over 15,000 barrels of oil a day, not 5,000 as BP told the public and government.  If true, it's a crime, destruction of evidence.  But Mix is a minnow.  What about the sharks?  The texts were obviously sent to someone (named only "SUPERVISOR" by the FBI).  If "Supervisor" knew, then undoubtedly so did BP managers higher up.  Presumably, even CEO Tony Hayward would have gotten the message on his racing yacht.

Destruction of evidence is not nice, but concealment of evidence and fraud by corporate bigs, is the bigger crime.  I hope, I assume, I demand that we find out what Supervisor's supervisors knew and when they knew it––and didn't tell us.

And far, far, far more important:  when is the Justice Department going to go after the greater wrongdoing? Let's begin with the cover-up before the spill that the drilling methods used on the Deepwater Horizon had led to a blow-out nearly two years earlier.

Let's face it:  to go after the bigger crime means going after the entire industry.  The earlier blow-out was concealed by BP as well as its partners Exxon and Chevron and, by the US State Department under Condoleezza Rice.  [If you want to get that story, please check out Part II:  BP Covered Up Prior Oil Spill at Ecowatch.org.]

One point in Mr. Mix's defense.  During my investigation of the Deepwater Horizon, I found that employees who provide evidence against BP find their careers floating face down in the Gulf.

BP and other oil companies punish troublemakers by writing "NRB" on their record.  That means "Not Required Back"––and the worker is banned from the offshore rigs.  No doubt, Mr. Mix thought long and hard about what would happen to his career if his texts came to light.  Not an excuse for crime, but it's a fact.  It's the guys on top putting on this kind of pressure that should be doing the perp walk:  the Big Bad BP Wolves, not their mixxed-up scapegoat.

****

Re-prints permitted with credit to Greg Palast

Greg Palast is the author of Vultures’ Picnic, which centers on his investigation of BP, bribery and corruption in the oil industry. Palast's, reports can be seen on BBC-TV and Britain’s Channel 4.

You can read Vultures' Picnic, "Chapter 1: Goldfinger," or download it, at no charge: click here.

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BLT: Does Gant prohibit search incident in DUI cases? D.C. Appeals Court Weighs Warrantless Car Searches:

The District of Columbia Court of Appeals heard arguments this morning on when it's still lawful for local police to search a car without a warrant after making a lawful arrest.

The U.S. Supreme Court tried to limit those types of searches in its 2009 decision in Arizona v. Gant. The high court did carve out some exceptions, though, which included searches where police have "reason to believe" they might find evidence of the crime.

Almost all the precedent since Gant says yes.

WebProneNews: Judge: Your Tweets Aren’t Yours, And Even Your Deleted Tweets Can Be Obtained Without A Warrant; #OWS protestor loses motion to quash subpoena by Josh Wolford:

“While the Fourth Amendment provides protection for our physical homes, we do not have a physical “home” on the Internet.”

That’s the crux of a decision from New York Criminal Court judge Matthew Sciarrino Jr. Not only that, but when you tweet, you’re giving Twitter the right to distribute all of you information however they please.

cnet.com: Wireless providers side with cops over users on location privacy by Declan McCullagh:

The trade association representing AT&T, Verizon, and Sprint opposes a California proposal for search warrants to track mobile devices, claiming it will cause "confusion."