VoteKansas.org

Do you know what Kickstarter is? Check out the post on my farm blog about:

Kickstarter.com - The Butcher Shop Project

Here’s the direct link and here’s a short link to pass around:

http://smf.me/k

We are doing a Kickstarter project to help raise money as we go into the final stretch of construction for our family’s on-farm butcher shop. This will let us start cutting meat here at our farm. I appreciate any and all backing you can do and just as importantly spreading the word about our project. The more people that know the better!

Cheers,

-Walter Jeffries
Sugar Mountain Farm

Massachusetts Lawyers Weekly: Lawyer settles cell phone suit against city, cops for $170K by Matt:

The attorney arrested for using his cell phone to record Boston police officers during an arrest has reached a settlement with the city for $170,000.

After a judge threw out criminal charges of illegal wiretapping, aiding the escape of a prisoner, and disturbing the peace against Simon Glik, he filed a civil rights suit against the city and the arresting officers in U.S. District Court, aided by the American Civil Liberties Union of Massachusetts and Boston attorneys Howard Friedman and David Milton.

The settlement follows a landmark decision last August by the 1st U.S. Circuit Court of Appeals, which ruled that the First Amendment protects the right to record police carrying out their duties in a public place. In Glik v. Cunniffe, The 1st Circuit affirmed that an arrest for openly recording the police also violates the Fourth Amendment’s guarantee against false arrests.

Defendant was found to have consented. Sure, there were a lot of police there, but he wasn’t yet arrested, and they talked casually for 20 minutes before consent was asked for. There was no evidence of overt coercion, and he was informed of his right to refuse the search in writing. United States v. Cochran, 2012 U.S. Dist. LEXIS 40505 (S.D. Fla. February 8, 2012).*

A wire on a cooperating codefendant-to-be was sufficient to show nexus to defendant’s house because the house was connected to the alleged drug deal. The good faith exception would support the search anyway. United States v. Bell, 2012 U.S. Dist. LEXIS 40770 (D. Minn. February 6, 2012).*

Police had fairly specific information (which was couched in terms of what they knew and didn’t know) and overhead the CI on a wire talking with a man in a silver Jetta and a drug deal was arranged. When a silver Jetta showed up, the police identified themselves, and the defendant ran from the Jetta. They had probable cause, and flight alone wasn’t all they had. United States v. Bazzle, 2012 U.S. Dist. LEXIS 40236 (E.D. Pa. March 23, 2012).*

Officers followed tracks in the snow from the scene of a burglary to defendant’s house, and defendant’s father consented to a search of computers in the house that were likely stolen. His father, a retired police officer, appreciated the significance of what was going on and wanted the computers gone. He had apparent authority to consent to a search of these computers. United States v. Clutter, 2012 U.S. App. LEXIS 6139 (8th Cir. March 26, 2012):

When determining whether a third party exercised actual or apparent common authority over the contents of a computer, courts typically examine several factors -- whether the consenting third party in fact used the computer, whether it was located in a common area accessible to other occupants of the premises, and -- often most importantly -- whether the defendant's files were password protected. See United States v. Stanley, 653 F.3d 946, 950-51 (9th Cir. 2011); United States v. Stabile, 633 F.3d 219, 232-33 (3d Cir.), cert. denied, 132 S. Ct. 399 (2011); Andrus, 483 F.3d at 719-20; United States v. Buckner, 473 F.3d 551, 554-55 (4th Cir.), cert. denied, 550 U.S. 913 (2007); United States v. Morgan, 435 F.3d 660, 663-64 (6th Cir. 2006). Clutter argues it was error to deny his motion to suppress because the government presented no evidence "that Joel Clutter used or had electronic access to the computers."

The primary flaw in this argument is that the only Fourth Amendment issue with any factual support is whether the three computers were validly seized at the Clutter home on January 22. There is no evidence that the officers searched the computers before obtaining an unchallenged warrant authorizing the search. The distinction, though often overlooked, is important: ....

[Maybe intentionally] Overlooked is a more fundamental question: Is there a reasonable expectation of privacy in stolen computers?

Business Week: Big Brother Wants Your Facebook Password by Claire Suddath:

If you want to become a state trooper in Virginia, you should probably delete any indelicate information you have on Facebook. During the job interview process, the Virginia State Police requires all applicants to sign into Facebook, Twitter, and any social-networking site to which they regularly post information in front of an administrator.

“You sign a waiver, then there’s a laptop and you go to these sites and your interviewer reviews your information,” says Corinne Geller, spokeswoman for the Virginia State Police. “It’s a virtual character check as much as the rest of the process is a physical background check.” Geller says the practice has been around for only three months and is just one of many ways the state makes sure its law enforcement officials are ethically sound. (Potential troopers also have to submit to a polygraph test).

Officers came to defendant’s house for a knock-and-talk about child pornography traced back to his IP address. He wasn’t home but his parents were. Because the computers were used by all, sitting in the dining room, and his parents paid the internet bill, his parents had apparent authority to consent to a search of the computers. The fact he had an individual profile was not enough to create a reasonable expectation of privacy because it was not password protected. United States v. Trejo, 2012 U.S. App. LEXIS 6113, 2012 FED App. 0315N (6th Cir. March 22, 2012) (unpublished).

Officers found a marijuana patch outside defendant’s curtilage and followed footprints in the mud to defendant’s house. Officers came close to the curtilage, in making their observations, and they actually entered an outbuilding within the curtilage arguing protective sweep because of fresh footprints. That incursion, however, never was revealed to the issuing magistrate, so it was valid under inevitable discovery. United States v. Witherspoon, 2012 U.S. App. LEXIS 6115, 2012 FED App. 0321N (6th Cir. March 23, 2012) (unpublished).*

Compulsory HIV testing of accused sex offenders satisfies the special needs requirement because it is a public health issue, not a criminal law issue. Imposing a probable cause standard would be “entirely impracticable” [not impractical?] because of lack of immediate outward manifestations. State v. Handy, 2012 VT 21, 2012 Vt. LEXIS 22 (March 23, 2012).*

Fourth Amendment law is clear that mobility of a car makes for exigency for the automobile exception. Because the defendant did not argue that the state constitution should be separately considered as in other states where a warrant would be required if there was time, the court declines to do decide case on state constitution. State v. Sanchez-Loredo, 2012 Kan. LEXIS 210 (March 23, 2012).*

The officers observed defendant committing a crime, so there was probable cause for the stop and search of his car. Marked money was in plain view torn up on the floorboard. Therefore, defense counsel couldn’t be ineffective. Cooper v. United States, 2012 U.S. Dist. LEXIS 39826 (C.D. Ill. March 23, 2012).*

Cert. granted today in Florida v. Harris, 11-817.

Issue: Whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle.

Opinion below: Harris v. State, 71 So. 3d 756 (Fla. 2011) posted here.

Briefs: Cert petition; brief in opposition.

This case will be argued next Term. Read the Florida Supreme Court's decision, the petition, and the BIO before you pass judgment on the oversimplistic issue the state chose to present. The case isn't that easy, unless, of course, the conservative wing has no problem with just saying "this is Place and Caballes and we're done." If it really was, they should have GVR'd it and been done with it.

A face-to-face meeting better the affiant for a search warrant and the issuing magistrate is not required. Here, they recognized each other’s voices, the affiant swore over the phone and faxed the affidavit to the magistrate who faxed back the signed search warrant. Clay v. State, 2012 Tex. App. LEXIS 2298 (Tex. App. – Waco March 21, 2012):

The second statement relied upon by Clay is a comment by the Court that, while recognizing innovations such as telephonic search warrants should not be foreclosed by the requirement of a signed affidavit, "[w]e leave those potential future changes to the Texas Legislature...." Smith v. State, 207 S.W.3d 787, 793 (Tex. Crim. App. 2006). This statement, Clay believes, is an acknowledgment that a procedure to obtain warrants by telephone and facsimile has not been authorized by statute, does not exist under Texas law, and therefore cannot be a valid practice in Texas at the present time. We believe it is not such an acknowledgement and certainly is not such a prohibition. As the Court stated, it is important for the law to retain some flexibility in the face of technological advances. Id. at 792. Had there been no flexibility in the statute, the Smith Court would have been compelled to hold that a signed affidavit was required. It did not. And thus, the statute is also flexible so as to allow for the taking of an oath over the telephone or by some other electronic means of communication under certain circumstances. That is the nature of the development of the common law. We must decide only the issue presented—in this case, is the affidavit invalid because it was not made on an oath administered face-to-face.

Officers somehow ended up at defendant's house based on an investigation that his IP address had been used for credit card fraud. They came to do a knock-and-talk for his computers and he refused to consent to a search. They came back with a search warrant, and he requested to delete files from one of the computers when one made an off-hand remark about child pornography, which they denied. Then they sought a second search warrant for child pornography based on the request to delete files. That was not an additional factor in probable cause, and the trial court was correct in suppressing the search and in finding no good faith exception. State v. Sprunger, 283 Neb. 531, 2012 Neb. LEXIS 40 (March 23, 2012):

The Fourth Amendment contains a particularity requirement, stating that “no Warrants shall issue, but upon probable cause ... and particularly describing the place to be searched, and the persons or things to be seized.” (Emphasis supplied.) The Founding Fathers’ abhorrence of the English King’s use of general warrants—which allowed royal officials to engage in general exploratory rummaging in a person’s belongings —was the impetus for the adoption of the Fourth Amendment.10 Simply put, the Fourth Amendment prohibits “fishing expeditions.”

...

[12] To allow a search based only on the fact that Sprunger wanted to hide something would sanction the type of general exploratory rummaging the Founders wished to prohibit. As we have stated before, “‘[a] general search for evidence of any crime,’” such as the one that would be issued based solely on this fact, is unconstitutional.

It is true that the fact Sprunger asked to delete some files might have raised a suspicion. But this suspicion did not amount to a fair probability that child pornography would be found on his computers. Based solely on this fact, the deputies would have no idea what would be found. Their search would have amounted to a rummaging through a treasure trove of information. “‘[T]he modern development of the personal computer and its ability to store and intermingle a huge array of one’s personal papers in a single place increases law enforcement’s ability to conduct a wide-ranging search into a person’s private affairs.’” It thus makes the particularity and probable cause requirements all the more important. To sanction a search based solely on Sprunger’s request to delete some unknown files would trivialize the protections of the Fourth Amendment.

. . .

Moreover, not only would a reasonable officer know that a general search warrant was illegal, a reasonable officer would also know that telling a person that he had “nothing to worry about” if he had no child pornography on his computer would lead that person to believe he was being investigated for child pornography. T The deputy had effectively planted the idea in Sprunger’s head. Given this, we do not see how the deputies could have objectively relied on the warrant. The deputies knew—or certainly should have known—that the only fact showing any connection to child pornography was of their own making.

While the application for the search warrant failed to show nexus to defendant’s car, the arrest warrant application presented to the magistrate just five minutes earlier did. Therefore, it was apparent the search warrant application omission was a mere oversight, and the magistrate apparently considered both in issuing the warrant, and this was not improper. The good faith exception would apply in any event. State v. Cunningham, 2012 La. App. LEXIS 370 (La. App. 4th Cir. March 21, 2012):

In sum, we find that Detective Matthews' failure to include information in the affidavit for the search warrant linking the residence to the Mustang used in the shooting was an apparent oversight. Nonetheless, the magistrate was aware of this link because it was contained in the affidavit for Williams' arrest warrant, which the magistrate read and signed mere minutes before reading the affidavit for the search warrant for the residence. Detective Matthews and the other officers were not unreasonable in relying on the validity of the search warrant for the residence. Nor is there evidence of any police misconduct on Detective Matthews' part. Given these circumstances coupled with the fact that the magistrate was in possession of the information linking the residence to the Mustang before he signed the search warrant for the residence, none of the exceptions to the good faith doctrine applies to this case. Thus, the district court did not err in denying the motion to suppress the evidence seized from the residence. Accordingly, the Relator's writ application is denied.

One defendant’s cell phone was could be seized and searched under his parole search condition, and the other defendants had no standing in his cell phone. United States v. Delvalle, 2012 U.S. Dist. LEXIS 38547 (C.D. Cal. March 20, 2012).*

There was no reasonable suspicion to extend the stop in this case, and that unlawful detention led to an invalid consent. State v. Wendler, 2012 Kan. App. LEXIS 24 (March 23, 2012)*:

We conclude that under the totality of the circumstances, the duration of the traffic stop was measurably extended after the purpose of the traffic stop—to investigate Wendler's commission of a traffic violation—was concluded. Moreover, during the investigation into the traffic violation, the officer did not gain reasonable suspicion of illegal drug activity necessary to lawfully extend the scope and duration of the detention. Finally, we conclude the unlawful detention of Wendler infected or tainted his consent to answer questions and to search the RV. Accordingly, we affirm the ruling of the district court suppressing the marijuana seized from the RV and the dismissal of charges against Wendler.

Government nonsense is blooming in Michigan:

Michigan DNR Going Hog Wild
By Pete Kennedy, Esq. | March 15, 2012

In a brazen power grab threatening the livelihood of hundreds of small farmers, the Michigan Department of Natural Resources (DNR) is using the state Invasive Species Act to expand its jurisdiction beyond hunting and fishing to farming operations. On April 1, 2012 an Invasive Species Order (ISO) that DNR issued in December 2010 prohibiting the possession of a number of different types breeds of swine will go into effect.

The order allows DNR to seize and destroy heritage breeds of pigs that farmers are raising; and DNR will not compensate farmers whose pigs are destroyed. In the logic of the department, “Indemnification in [Michigan] statute is for livestock and invasive species are not livestock, and are therefore, not eligible for indemnification.”
-Farm-to-Consumer Legal Defense Fund

Aye, it’s crazy, unscientific and a blatant trampling on the Constitutional rights. But, it’s easy to understand. It is all about greed and cutting out the competition. What is particularly, almost, amusing is that Big Ag feels threatened enough to have pushed for this.

Abolish the U.S. Department of Education, 4-18-11

The Illuminati, Part 5, 12-27-10

The Power Elite and the Secret Nazi Plan, Part 19, 9-6-10

Times Got Much Better 1-1-11

The affidavit for the search warrant in this case was signed before a notary public working for the DA, but not one authorized by a judge in violation of the Rules of Criminal Procedure. A violation of the Rules was not a Fourth Amendment issue, defendant cannot show he was prejudiced, and the court will not order suppression of the evidence. Copley v. Commonwealth, 2012 Ky. LEXIS 26 (March 22, 2012):

Suppression under this test is not warranted in this case because neither prong is satisfied. Copley was not prejudiced by the violation of RCr 2.02 and 13.10. There was no allegation or proof that the search would not have occurred absent the rule violation or that the search was abusive. Nor is there evidence that law enforcement officials deliberately disregarded the rules. Rather, given that Ms. Hardy was a notary public, was generally qualified to administer oaths and was employed by the Commonwealth Attorney's office, and that all other requirements for securing the warrant were carefully observed, such as complying with KRS 15.725(5) by having the Commonwealth Attorney and the County Attorney certify that no judge or commissioner was available, it appears that the violation of Rules 2.02 and 13.10 was simply inadvertent.

The notion of needing to show prejudice is a death knell to nearly any suppression motion. How can you show prejudice from the wrong notary? You can't. The affidavit was sworn and seemingly truthful, that's all that's really required.

In a FIPF case where the gun was the target of a search warrant, the defendant did not show enough to get access to the CI’s identity under Roviaro. The CI was not central to the charge under the government's theory of constructive possession. Here, it was all speculative what the defense was trying to prove. United States v. Anthony, 2012 U.S. Dist. LEXIS 38123 (D. N.J. March 20, 2012):

Defendant offers a series of contentions for why disclosure is warranted, including: the need to challenge the basis for the warrant; the fact that the informant is the only person who claims to have seen Defendant in possession of the firearm; and the need to investigate Defendant's theory that the informant played a role in framing Defendant. None of these reasons provides a sufficient basis to overcome the qualified privilege.

First, the validity of the search warrant does not turn on the informant's intentions or mental state. ...

Second, the Government does not intend to introduce the informant's testimony at trial in order to prove possession; instead, the Government will present a case for constructive possession. Therefore, there is no need to cross-examine the informant regarding the informant's claimed observations.

The third and final issue is the question of whether disclosure is necessary because the informant's identity is helpful to Anthony's defense involving the gun having been planted by the informant or the informant's co-conspirator. This is the kind of defense theory that does not rise above mere speculation or hope. ...

Roviaro was decided in 1957, yet I still occasionally see charges where the prosecuting attorney charged the defendant with the underlying CI offense thereby making the CI a material witness. They apparently were not paying attention in law school or when reading the file.

Officers pulled guns on defendants and ordered them to sit down, and this was with reasonable suspicion somebody in the group was armed. The district court erred in suppressing the frisk. United States v. Lewis, 2012 U.S. App. LEXIS 6073 (11th Cir. March 23, 2012):

As the Supreme Court emphasized in Terry itself, a brief stop-and-frisk is permissible, even absent probable cause to arrest, "for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual." 392 U.S. at 27 (emphasis added). In fact, the very rationale underpinning Terry -- the protection of officer safety and the safety of others nearby, especially from the dangers posed by firearms -- is presented by the facts of this case. We add that the detention took place at night in a high crime area, which, while surely not dispositive, is still another relevant consideration in the Terry calculus. See Wardlow, 528 U.S. at 124; United States v. Gordon, 231 F.3d 750, 755-56 (11th Cir. 2000). And we further emphasize that, as in Clark, the defendant here was not some "unrelated bystander," Clark, 337 F.3d at 1288, but rather "an associate of [the] persons being investigated for criminal activities," id.

In short, under the totality of the circumstances of this case, the officers were entitled to control the scene and exercise command over the situation in the course of briefly detaining McRae for further investigation. A brief detention of all four associated individuals was reasonable, in light of the substantial risks to the officers' safety. Accordingly, we REVERSE the district court's order granting Lewis's motion to suppress, and REMAND for further proceedings consistent with this opinion.