VoteKansas.org

Wired.com: Few Companies Fight Patriot Act Gag Orders, FBI Admits by Kim Zetter:

Since the Patriot Act broadly expanded the power of the government to issue National Security Letters demanding customer records, more than 200,000 have been issued to U.S. companies by the FBI. But the perpetual gag orders that accompany them are rarely challenged by the ISPs and other recipients served with such letters.

NYTimes.com: Lawsuit Says Sheriff Discriminated Against Latinos by Fernanda Santos and Charlie Savage:

PHOENIX — A federal lawsuit asserting a “pattern of unlawful discrimination” by law enforcement officials here claims that Latinos at the county jail were often referred to as “stupid” or addressed with a coarse ethnic slur. It also says that an e-mail circulated among jail officers contained a photograph of a Chihuahua in a swimsuit, over the words, “A rare photo of a Mexican Navy Seal.”

On the streets, Latino drivers were five to nine times more likely than their non-Latino counterparts to be stopped or searched, the suit asserts, for appearing disheveled or dirty or if it was deemed that too many people were in the back seat. Some were detained because they were said to have looked nervous or avoided eye contact.

. . .

Portraying Sheriff Arpaio’s roughly 900 deputies as poorly trained and supervised, the suit contends that they are far more likely to stop and search Latinos than non-Latinos. Further, the complaint asserts, there is a “culture of bias” against Latinos among the 1,800 officers in the county jail system.

Blocking defendant’s car made the encounter a seizure. [This case provides a wealth of caselaw.] United States v. Jones, 2012 U.S. App. LEXIS 9513 (4th Cir. May 10, 2012):

That this was not a routine encounter, but one targeted at Jones seems to us particularly significant given that the officers blocked in Jones's car to effectuate the encounter. In United States v. Green, 111 F.3d 515 (7th Cir. 1997), the Seventh Circuit considered a very similar case. There, as here, the police followed a car into a driveway where the driver parked the car, and there, as here, the defendant then exited his car. Id. at 517. The Seventh Circuit concluded that, although the driver was no longer in his car, and indeed was walking away from his car toward a house, when "the officers pulled their car in behind the [defendant's car], blocking the car's exit ... a reasonable person would not feel that he was free to leave." Id. at 520 n.1. Accordingly, the court found that the police had seized not only the passenger who remained in the car but also the driver who had left it. Id.

This holding comports with that of numerous other courts considering similar facts. ...

We agree that when an officer blocks a defendant's car from leaving the scene, particularly when, as here, the officer has followed the car, the officer demonstrates a greater show of authority than does an officer who just happens to be on the scene and engages a citizen in conversation. For this reason, the three cases on which the Government relies are inapposite. ... Rather, Jones saw the officers follow his car from a public street onto private property and then block the car from exiting in their haste to speak with him.

The Government contends that the placement of the police cruiser has minimal relevance because, as the police approached, two of Jones's companions walked away from the car—one into an apartment and one in the other direction —and the officers did not chase after them or call them back. But it is not altogether clear to us which way this fact cuts. On the one hand, that the officers allowed two passengers to walk away from the vehicle could convey to a reasonable person that he, too, was free to walk away.

Roommate did not have actual or apparent authority to consent to a search of defendant’s separate bedroom and bathroom. State v. Robinson, 2012 Ida. App. LEXIS 32 (May 2, 2012) [not online yet]:

The absence of locked doors does not mean that Mr. Daigneau had access to these rooms. While it does make it physically easier for him to enter these rooms, it is not uncommon for residents of a home to leave their bedroom doors unlocked. The fact that each bedroom was private and not communal is strengthened by the fact that each bedroom door was shut prior to the search commencing.

The fact that Mr. Daigneau slept at the residence does not mean that he has the actual authority to authorize the search of the entire residence. The same holds true for the fact that Mr. Daigneau listed the house in question as his residence. The State was aware prior to the search that Mr. Daigneau shared the residence with others. The probation forms list the other residents of the house, police officers on the scene the night before were aware that both [Robinson] and Mr. Daigneau lived at the residence, and the State was aware that Mr. Daigneau did not own the residence.

From these facts it is conclusive that Mr. Daigneau had actual authority only over his own bedroom and to some extent the common areas of the house. The extent of the search at that time should have been limited to communal areas and Mr. Daigneau's private bedroom. It also must be noted that [one officer] testified that he did not know whose bedroom the back bedroom was.

Defendant’s probation was not over for purposes of this probation search where a petition to revoke had been filed and unresolved at the time of the his search, effectively extending probation. United States v. Izatt, 2012 U.S. App. LEXIS 9528 (9th Cir. May 10, 2012).*

There was probable cause and nexus for a search warrant of defendant’s house where he left the house to go directly to a drug deal. United States v. Thornton, 2012 U.S. Dist. LEXIS 65652 (E.D. Pa. May 10, 2012).*

Defendant got a Franks hearing, and it was readily apparent that the proof failed. Faced with that, the defense still didn’t withdraw the motion. United States v. Villar, 2012 U.S. Dist. LEXIS 65528 (S.D. Fla. May 1, 2012).*

Plaintiff’s allegations that force was applied to coerce consent to search survives qualified immunity claim in a 1983 case. Hemphill v. Hale, 2012 U.S. App. LEXIS 9483 (8th Cir. May 10, 2012):

In Chambers, we held that evidence of de minimis injury does not necessarily foreclose a Fourth Amendment excessive-force claim, that the force alleged was not reasonable under the circumstances, but that defendants were entitled to qualified immunity because the state of the law in August 2005 was such that a reasonable officer could have believed that as long as he did not cause more than de minimis injury to an arrestee, he would not violate the Fourth Amendment. See Chambers, 641 F.3d at 904, 906-08.

Chambers, however, did not address the situation alleged here: that the force was used in an attempt to coerce consent to a search. While in Chambers we stated that "[p]olice officers undoubtedly have a right to use some degree of physical force, or threat thereof, to effect a lawful seizure," see id. at 907, we agree with the district court that officers do not have the right to use any degree of physical force or threatened force to coerce an individual to consent to a warrantless search of his home. See United States v. Drayton, 536 U.S. 194, 201 (2002) (law enforcement officers may request consent to search "provided they do not induce cooperation by coercive means"); United States v. Thomas, 93 F.3d 479, 486 (8th Cir. 1996) (consent to search may not be result of "'duress or coercion, express or implied'" (internal citation omitted)); cf. Wilkins v. May, 872 F.2d 190, 194 (7th Cir. 1989) (showing of physical injury required to state Fourth Amendment excessive-force claim for force used in course of arrest is not required in situations not involving arrest, such as during interrogation). Because no use of force to obtain Hemphill's consent to search would have been reasonable, the force Hale was alleged to have used-grabbing Hemphill by the neck, choking him, and hitting him two or three times while he was handcuffed-was objectively unreasonable given the facts and circumstances in the case. See Graham v. Connor, 490 U.S. 386, 396-97 (1989) (officer's use of force violates Fourth Amendment when it is objectively unreasonable given facts and circumstances of particular case, judged from perspective of reasonable officer at scene). The law regarding forced consent was clearly established in August 2009 such that a reasonable person in Hale's position would have known that his actions were unreasonable. See Drayton, 536 U.S. at 201; Thomas, 93 F.3d at 486.

The order denying qualified immunity is affirmed.

NYTimes.com: 2 Opinions on Stop-and-Frisk Report by Al Baker and Joseph Goldstein

In 2003, the second year of Mayor Michael R. Bloomberg’s first term, police officers confiscated 604 guns through 160,851 stop-and-frisk encounters: a success rate of one gun for every 266 stops.

Last year, the police seized 780 guns through 685,724 stop-and-frisk encounters, meaning that officers made 879 stops for each gun found.

Critics of the Police Department’s street-stop tactics, including the New York Civil Liberties Union, said the falling gun recovery rate was a sign that the department was stopping too many innocent people as it made an increasing number of street stops in minority neighborhoods.

Marijuana Odor Perception: Studies Modeled From Probable Cause Cases, 28 Law and Human Behavior, No. 2 (April 2004), by Richard L. Doty, Thomas Wudarski, David A. Marshall, and Lloyd Hastings:

The 4th Amendment of the United States Constitution protects American citizens against unreasonable search and seizure without probable cause. Although law enforcement officials routinely rely solely on the sense of smell to justify probable cause when entering vehicles and dwellings to search for illicit drugs, the accuracy of their perception in this regard has rarely been questioned and, to our knowledge, never tested. In this paper, we present data from two empirical studies based upon actual legal cases in which the odor of marijuana was used as probable cause for search. In the first, we simulated a situation in which, during a routine traffic stop, the odor of packaged marijuana located in the trunk of an automobile was said to be detected through the driver’s window. In the second, we investigated a report that marijuana odor was discernable from a considerable distance from the chimney effluence of diesel exhaust emanating from an illicit California grow room. Our findings suggest that the odor of marijuana was not reliably discernable by persons with an excellent sense of smell in either case. These studies are the first to examine the ability of humans to detect marijuana in simulated real-life situations encountered by law enforcement officials, and are particularly relevant to the issue of probable cause.

Network World: Fight the Patriot Act and win. Next? Promise privacy, a surveillance-free ISP:

Nick Merrill, once known as John Doe, secretly fought for our First and Fourth Amendment rights, battled against NSL abuse, a gag order, excessive government secrecy, and almost entirely redacted documents from FBI counterintelligence. Living under such mentally-exhausting circumstances for years is bound to change a person, but Merrill believes it is "better to die on your feet than live on your knees" and is "hoping to do further legal challenges to some of the warrantless wiretapping laws in America.” What’s next after fighting the Patriot Act and winning? Merrill intends to create a surveillance-free ISP with end-to-end encryption that promises to put your privacy above profit. The Calyx Institute promises to be an ISP that will stand up to the government.

New Yorker: Here’s Looking at You; Should we worry about the rise of the drone? by Nick Paumgarten:

ABSTRACT: THE WORLD OF SURVEILLANCE about drones. The prospect of unmanned flight has been around—depending on your definition—since Archytas of Tarentum reputedly designed a steam-powered mechanical pigeon, in the fourth century B.C., or since Nikola Tesla, in 1898, demonstrated a radio-controlled motorboat at an exposition in Madison Square Garden. By the sixties the Air Force was deploying unmanned reconnaissance jets over Southeast Asia. Still, it was the advent, in the mid-nineties, of the Global Positioning System, along with advances in microcomputing, that ushered in the possibility of automated unmanned flight. The Department of Defense, meanwhile, developed a keen interest. With the wars in Iraq and Afghanistan, and manhunts in places like Yemen, the military applications, and the corporations devoted to serving them (Lockheed Martin, Northrop Grumman), came to dominate the skyscape. Many of these manufacturers had one client: the Department of Defense. In 2001, the military had just a few Unmanned Aerial Vehicles (U.A.V.s). Now it has more than ten thousand. Later this month, the F.A.A. will present a regulatory regimen enabling law-enforcement departments to fly small drones, and the military contractors will suddenly have some eighteen thousand potential new customers. As of now, only a tiny percentage of municipal and state police departments have any air presence, because most can’t afford helicopters or planes. Small camera-loaded U.A.V.s are much cheaper. The public proposition, at this point, anyway, is not that drones will subjugate or assassinate unwitting citizens but that they will conduct search-and-rescue operations, fight fires, catch bad guys, inspect pipelines, spray crops, count nesting cranes and migrating caribou, and measure weather data and algae growth. For these and other tasks, they are useful and well suited. Of course, they are especially well suited, and heretofore have been most frequently deployed, for surveillance.

“No more than reasonable suspicion is required to search a parolee's home when the search is conducted pursuant to a valid parole condition.” State v. Heaton, 2012 Minn. App. LEXIS 39 (May 7, 2012).*

Defendant was stopped for a turn lane violation. Defendant’s detention was based on the fact that he would not make direct eye contact, his eyes were red and glassy, he was looking around the vehicle, and he acted somewhat suspicious. This led the officer to believe that he might be engaged in criminal activity. State v. Aguirre, 2012 Ohio 2014, 2012 Ohio App. LEXIS 1765 (3d Dist. May 7, 2012).*

Defendant has the burden of showing that the search warrant was issued without probable cause. Evaluating all the information, there was a substantial basis for concluding there was probable cause. State v. Fruge, 2012 La. App. LEXIS 623 (La.App. 5 Cir. May 8, 2012).*

To apply a Davis good faith exception to an officer’s interpretation of the statute, it has to be correct and in accord with existing case law that thereafter changed. If the officer is wrong on application of the statute, that’s a mistake of law and any good faith exception would not apply. United States v. Gore, 2012 U.S. Dist. LEXIS 64784 (D. S.C. May 9, 2012).*

Officers approached defendant outside a store and got her ID to run a “local check” finding no warrants. They let her go but watched her walk and then decided to encounter her again, having her back against a wall and officers to both sides. A reasonable person would not have felt free to leave, and this was a Terry stop without justification. Defendant had the burden of showing that this was a seizure, and she satisfied it. State v. Young, 2012 Wash. App. LEXIS 1015 (May 1, 2012).*

COA(2253(c)) in a 2254 denied on petitioner’s Fourth Amendment claim. The contention that the free standing Fourth Amendment claim was decided wrongly by state courts is barred under Stone v. Powell and AEDPA. McIntyre v. McKune, 2012 U.S. App. LEXIS 9435 (10th Cir. May 9, 2012):

Unlike the situation in Gamble, however, there is no indication that the Kansas courts refused to recognize or apply the correct legal standards in this case. McIntyre's belief that the state courts decided the claim wrongly does not mean that he was denied a full and fair opportunity to litigate. See Matthews v. Workman, 577 F.3d 1175, 1194 (10th Cir. 2009). He was able to brief his arguments, and the trial court held a hearing on whether to hold a Franks hearing. At that hearing, in addition to concluding that a Franks hearing was not warranted, the trial court held that the omissions were not material. McIntyre's counsel declined to raise suppression in his direct criminal appeal, but the Kansas Court of Appeals allowed McIntyre to file a pro se supplemental brief challenging the denial of suppression. After the Kansas Court of Appeals specifically acknowledged the pro se brief and stated that the arguments were meritless, McIntyre again on direct appeal was able to file a pro se petition for review to place the issue before the Kansas Supreme Court. No reasonable jurist would find it debatable whether McIntyre had a full and fair opportunity to litigate his Fourth Amendment claim in the Kansas courts.2 See Miranda v. Cooper, 967 F.2d 392, 401 (10th Cir. 1992) (concluding that defendant had a full and fair opportunity to litigate, even though he did not receive a Franks hearing).

The fact there were innocent explanations for what was described in the application for the search warrant does not undermine probable cause. The showing as to one of the searches was not supported and was thus waived. United States v. Durham, 2012 U.S. Dist. LEXIS 65126 (S.D. Ind. May 9, 2012):

Mr. Durham's motion also purports to challenge the fruits of a search warrant issued in Ohio. [See dkt. 153 at 1.] He has not provided the Court with a copy of that warrant, its application, or with any argument specifically addressing the legal and factual circumstances for that warrant (including, for example, an explanation of the extent of his reasonable expectation of privacy there). Those failures constitute a waiver of any argument that he may have had, for lack of cogent development. E.g., Kawasaki Heavy Indus. v. Bombardier Rec. Prods., 660 F.3d 988, 994 n.3 (7th Cir. 2011) (citation omitted).

Inmate telephone calls out of a federal prison are recorded, and recording and listening to one is not an illegal search. United States v. Bassett, 2012 U.S. Dist. LEXIS 65068 (E.D. Mo. April 13, 2012).*

Narcotics officers executing two search warrants at a motel were justified in detaining those around the scene for officer safety. “The record in this case fully supports the determination that the initial detention of Thompson was a valid investigatory stop. The officers were engaged in executing narcotics search warrants, "... the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence." Summers, 452 U.S. at 702, 101 S.Ct. at 2594. Moreover, Agent Parker's testimony that guns are frequently used in narcotic trafficking is a factor which increases the possibility of danger to the officers.” State v. Thompson, 2012 La. LEXIS 1321 (May 8, 2012), revg 58 So.3d 994 (La. App. 2 Cir. February 23, 2011).

An officer at a sobriety checkpoint observed a vehicle abruptly pull into a parking lot of closed businesses. He went to investigate, and defendant’s vehicle pulled in, too. The police car blocked the exit. This was a stop without reasonable suspicion of wrongdoing, and it was not consensual. Jones v. State, 2012 Ga. LEXIS 435 (May 7, 2012).*

The search warrant for defendant’s cell phone was based on probable cause, and the nine months between transactions did not make it stale here. The good faith exception also applies. United States v. Sinclair, 2012 U.S. Dist. LEXIS 63864 (N.D. Cal. May 3, 2012).*

In the process of renewing this website until 2017 yesterday, some electronic switch was thrown that put us out of commission for about 24 hours. Then, only some people could see it not others. I was one of those who couldn't. I couldn't see it until about 5 pm central.

The Internet may seem to operate seamlessly, but it really is subject to individual failures. Anything subject to human intervention is prone to be screwed up.

PCWorld: DOJ Says Requiring Warrant for Cell Phone Tracking Would 'Cripple' Law Enforcement by Darlene Storm:

If your mobile phone is on then it is constantly pinging cell phone network towers, leaving you no choice about revealing your location. The ACLU warned the "threat to personal privacy presented by this technology is breathtaking," especially since the "government is routinely violating American's privacy rights through warrantless cell phone tracking." Apparently any mobile phone privacy is too much privacy in the early stages of an investigation, before law enforcement actually has any proof that a person has done anything illegal. An Obama administration official told a congressional panel that requiring a search warrant to obtain cell phone location tracking information would "cripple" law enforcement and prosecutors.

The video showed defendant crossing the centerline repeatedly. There was probable cause for his stop, despite his contention that state law was not violated. “Additionally, as noted by the officer and demonstrated by the video, the defendant's driving pattern indicated that he might be impaired, also warranting an investigatory stop.” United States v. Benitez, 2012 U.S. Dist. LEXIS 62913 (N.D. Ala. April 4, 2012).*

Defendant probationer consented to a search of his cell phone and pictures of him holding guns were revealed, and that justified a probation search of where he lived. United States v. Peila, 2012 U.S. Dist. LEXIS 63036 (D. Nev. April 3, 2012).*

Defendant filed a general motion to suppress which was heard before trial, but only statements made at the time of arrest were discussed. A gun was also seized in Tennessee, and it was never mentioned. At trial, the gun was not objected to. On appeal, the issue of the seizure of the gun was waived. Rockholt v. State, 2012 Ga. LEXIS 446 (May 7, 2012).*

Drug officers stopped defendants based on a request to stop him so used the fact that one of three taillights was out. But, Arizona law just says that “a stop light” needs to work, and this is a mistake of law because defendants otherwise were committing no traffic violation. The subsequent consent derived from the illegal stop, and it’s all suppressed. United States v. Pro, 2012 U.S. Dist. LEXIS 63058 (D. Ariz. May 3, 2012).*

LA Times editorial: The secret life of your cellphone; In a threat to the 4th Amendment, law enforcement is using location data as a crime-fighting tool:

Concerned that mobile phone networks are becoming surveillance tools, the American Civil Liberties Union recently asked hundreds of local law enforcement agencies whether they've tracked people's movements through their cellphones. Most of those that responded said they had, usually obtaining the information from mobile phone companies without a warrant. The practice has become so routine, the ACLU found, that phone companies are sending out catalogs of monitoring services with detailed price lists to police agencies. The alarming findings should persuade Congress to clarify that the government can't follow someone electronically without showing probable cause and obtaining a warrant.

Allegations of excessive force used during defendant’s arrest did not justify suppression of the search where there was no causal connection. United States v. Collins, 2012 U.S. Dist. LEXIS 63214 (N.D. Ind. May 4, 2012):

The Defendant's primary objection to the admission of the evidence against him is his claim that Officers Ealing and Johnson used unreasonable force to effectuate his arrest. The Defendant cites a Ninth Circuit case, United States v. Ankeny, for the proposition that a Fourth Amendment excessive force violation requires suppression of the evidence seized. 502 F.3d at 836. However, the Defendant also cites to United States v. Watson, where the Seventh Circuit disagreed with the Ankeny court. Specifically, the Seventh Circuit declined to apply the Ankeny court's reasoning, holding: "We thus disagree with the dictum in United States v. Ankeny ... that the use of excessive force in the course of a search can require suppression of the evidence seized." 558 F.3d at 705. Rather, if a defendant proves excessive force, "his remedy would be a suit for damages under 42 U.S.C. § 1983 (or state law) rather than the exclusion from his criminal trial of evidence that had been seized in an otherwise lawful search." Id. at 704. Therefore, under a plain reading of Watson, suppression would not be appropriate even if the Defendant could establish that Officers Ealing and Johnson used excessive force against him. Rather, the Defendant's appropriate remedy would be a § 1983 civil suit against the Officers for use of excessive force.

The Court notes that even under Ankeny, suppression would not be appropriate in this case. The Ankeny court held that it did not need to determine whether unreasonable force had been used because there was no "causal nexus" between the allegedly unreasonable force and discovery of the evidence. Ankeny, 502 F.3d at 837; see also Watson, 558 F.3d at 702 ("There was no causal connection ... between the alleged police misconduct and the obtaining of the evidence."). The bag containing cocaine was obtained not because of any allegedly unreasonable force used by the Officers, but because the Defendant threw it away from his person before Officer Ealing used any force. As the Government urges, "[a]n arrest does not occur until a police officer lays hands on a subject or the subject voluntarily submits to a show of authority." United States v. Britton, 335 Fed. Appx. 571, 575 (6th Cir. 2009); California v. Hodari D., 499 U.S. 621, 626 (1991) ("An arrest requires either physical force ... or, where that is absent, submission to the assertion of authority."). The exclusionary rule is only triggered where evidence is obtained "following an unlawful arrest." United States v. Howard, 621 F.3d 433, 451 (6th Cir. 2010). Because the facts indicate that the Defendant threw the bag away from his person before Officer Ealing touched him, the bag was not obtained "following" an arrest at all, and so there can be no nexus between the alleged unreasonable force and finding the bag. For that matter, it appears that the Defendant placed the bag in a publicly exposed place, suggesting that the Government's retrieval of the bag did not constitute a search at all within the meaning of the Fourth Amendment. See United States v. Eubanks, 876 F.2d 1514, 1516 (11th Cir. 1989) ("[U]nder the fourth amendment no governmental 'search' occurs if the place or object examined is publicly exposed such that no person can reasonably have an expectation of privacy.").