March 29, 2013

Little-Known Surveillance Tool Called Stingray Raises Concerns by Judges, Privacy Activists

From The Washington Post. Click HERE for original story.

By Ellen Nakashima, Published: March 27

Federal investigators in Northern California routinely used a sophisticated surveillance system to scoop up data from cellphones and other wireless devices in an effort to track criminal suspects — but failed to detail the practice to judges authorizing the probes.

The practice was disclosed Wednesday in documents obtained under the Freedom of Information Act by the American Civil Liberties Union of Northern California — in a glimpse into a technology that federal agents rarely discuss publicly.

The investigations used a device known as a StingRay, which simulates a cellphone tower and enables agents to collect the serial numbers of individual cellphones and then locate them. Although law enforcement officials can employ StingRays and similar devices to locate suspects, privacy groups and some judges have raised concerns that the technology is so invasive — in some cases effectively penetrating the walls of homes — that its use should require a warrant.

The issues, judges and activists say, are twofold: whether federal agents are informing courts when seeking permission to monitor suspects, and whether they are providing enough evidence to justify the use of a tool that sweeps up data not only from a suspect’s wireless device but also from those of bystanders in the vicinity.

In Northern California, according to the newly disclosed documents, judges expressed concerns about the invasive nature of the technology.

“It has recently come to my attention that many agents are still using [StingRay] technology in the field although the [surveillance] application does not make that explicit,” Miranda Kane, then chief of the criminal division of the Northern California U.S. attorney’s office, said in a May 2011 e-mail obtained by the ACLU.

As a result of that, she wrote, “effective immediately, all . . . applications and proposed orders must be reviewed by your line supervisor before they are submitted to a magistrate judge.”

The Justice Department has generally maintained that a warrant based on probable cause is not needed to use a “cell-site simulator” because the government is not employing them to intercept conversations, former officials said. But some judges around the country have disagreed and have insisted investigators first obtain a warrant.

“It’s unsettled territory,” said one U.S. law enforcement official, who spoke on the condition of anonymity because he was not authorized to speak for the record.

In a statement, Christopher Allen, a spokesman for the FBI, said the bureau advises field offices to “work closely with the relevant U.S. Attorney’s Office to adhere to the legal requirements” of their respective districts.

One of the problems is there is “scant law” addressing the issue of cell-site simulators, said Brian L. Owsley, a federal magistrate judge in the Southern District of Texas, who in June wrote a rare public ruling on the issue. He denied an application to use a StingRay, in large part because he felt the investigating agent failed to explain the technology or how it would be used to gather the target’s cellphone number.

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July 12, 2010

CALIFORNIA CIVIL RIGHTS ATTORNEY - JUDGE SAYS: ORANGE COUNTY SHERIFF DEPUTIES MAY HAVE USED EXCESSIVE FORCE

by Teri Sforza, Register staff writer

Perhaps the question is not if the county will settle this lawsuit, but when, and for how much…?

It’s not going well when a federal judge writes, “a reasonable jury could conclude that the defendant officers used excessive force against Ms. White …. Ms. White was not under suspicion of having committed any crime. Nor were the officers present to investigate Ms. White. Indeed, the officers were standing on Ms. White’s property without having obtained a warrant ….”

OUCH

We told you recently about the case involving an Old English sheep dog, a woman named Toy (who suffered a nasty black eye), and an Orange County Sheriff’s deputy who was arrested for DUI after two crashes within a half-hour.

Mission Viejo paid $24,000 to make this suit go away – but it is still grinding against former Deputy Allan James Waters’ bosses, the County of Orange and the Sheriff’s Department, racking up legal bills.

(Waters, by the way, is no longer a deputy. And shortly after he turned in his uniform, he was arrested for DUI and on suspicion of being a drug dealer who traded fake drugs and cash in exchange for real prescription drugs. The District Attorney’s Office said he tried to pull a fast one by using a white powder instead of cocaine. Oops.)

The county has settled one other case involving Deputy Waters for $32,000.

DOG GONE

On July 7, 2007, Toy Whitewas home in Mission Viejo with her husband Steve and their three Old English sheep dogs. A woman entered the property without permission, the suit says - and one of the dogs bit her.

That evening, there was a knock at the Whites’ door. They opened it, and there stood four OC sheriff’s deputies and a Mission Viejo animal control officer. They entered the house without the Whites’ consent – and without a warrant - demanding that the dog be surrendered for a 10-day quarantine.

Mission Viejo law allows for in-home quarantine when a bite happens during trespassing on private property. The Whites said they wanted to do that instead.

And here, according to the suit filed in federal court, is where things got dicey. The deputies became threatening and said, “Just give up the dog,” the suit says.

Toy White asked the officers to leave her house; they would continue the discussion outside. As she placed her hand on the door handle, “she was violently grabbed and thrown face first onto the tile floor, without warning or provocation, by (deputies) Macias and Waters,” the suit says. She was then cuffed tightly, arrested, and hauled off to jail.

The dog, meanwhile, was taken into custody as well. The dog was returned the following day, when the city realized its error; but White was arrested for battery on an officer and resisting arrest. The District Attorney’s office did not proceed, however, determining that the officers had no authority to enter the house, and no legal right to remove the dog, the suit says.

Deputies named, along with Waters, are J. Macias, S. Crivelli and T. Jansen, along with animal control officer H. Holmes. They maintain that White was threatening, advanced toward the deputies and resisted arrest.

SAYS THE JUDGE

The suit is in federal court, before Judge David O. Carter. He made the comments we’re quoting in an order granting in part, and denying in part, the county’s motion for summary judgment (a determination made by the court without a full trial).

Writes Carter: “…it remains a disputed issue of material fact as to whether Ms. White made any contact with the police officers. Even if Ms. White made such contact, the officers would only be entitled to use the force necessary in the circumstances, which was minimal since the officers concede that Ms. White was in the office of closing the front door to Plaintiffs’ residence and thereby imposing a physical barrier between herself and the officers.

“To the extent the officers now claim it was necessary to physically restrain Ms. White in order to effectively combat the harm alleged to have been caused by the Plaintiffs’ dog, the Court is unconvinced. It is for a jury to determine whether Ms. White’s restraint was a reasonable response to the threat that a dog inside Plaintiffs’ home posed a public safety risk. But the mere fact that Ms. White resisted the officers’ attempts to enter her residence without a warrant is far from a legitimate basis for the officers’ actions on July 7, 2007.”

The Whites’ attorney, Mary Frances Prevost, is understandably encouraged. She doesn’t completely understand why the county doesn’t cut its losses here, but postulates that it’s the way the system is set up. Lawyers make more money when cases go to trial, she says. Lawyers make less money when cases settle.

[california civil rights attorney, san diego civil rights attorney, orange county civil rights attorney, riverside civil rights attorney, imperial county civil rights attorney, san francisco civil rights attorney, ventura vicil rights attorney, santa barbara civil rights attorney]

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April 7, 2010

CALIFORNIA CRIMINAL DEFENSE: REASONABLE CAUSE FOR SCHOOL SEARCHES

In T.L.O. (469 US 325), the US Supremes said that school officials could conduct a search if it was reasonable, even if there was no probable cause. Here, the police called the school to tell them that this minor had illegal pills on him. The vice principal searched the minor with the police present. The Court of Appeal that T.L.O. controls here, although you
might think that the school was merely acting as the agent of the police.

In re K.S.; 2010 DJ DAR 4459; DJ, 3/26/10; C/A 1st, Div. 5

January 11, 2010

A CURTILAGE JUST ISN'T WHAT IT USED TO BE (SIGH!)

A curtilage just isn't what it used to be. Ah, we long for the good old days. Here, the defendant was being investigated on drug charges. Agents placed a mobile tracking device on his Jeep while in his driveway. The driveway had no special features that raised an expectation of privacy necessary for curtilage protection under the 4th Amendment. There were no barriers or fences, or enclosures, or a lack of visibility. There were no "No Trespassing" signs or warnings. (hint, hint) The driveway was open to the public, and was used to approach the house. The attaching of the device in the early morning -- between 4 and 5 am -- did not raise the expectation of privacy to the driveway's physical nature. The 9th Circuit Court of Appeal followed precedent (McIver) in holding that the undercarriage of the car was the exterior; and that parking the car on the public street was outside the curtilage. Finally, the mobile tracking device is permitted by the Supremes. Bummer.

U.S. v. Pineda-Moreno, No. 08-30385 (1-11-10).

November 15, 2009

EXIGENT CIRCUMSTANCE SEARCHES FOR MISSING PERSONS

This California Court of Appeal ends up upholding the search in this case based on exigent
circumstances. The details are long and exhausting, but essentially the Court of Appeal says that there are exigent circumstances when a reliable missing person report is made under circumstances strongly suggesting that the missing person is injured or worse, and where a reasonably cautious person would believe the action was appropriate.

The Court of Appeal also upholds a car search, relying on Ross (456 U.S. 798). Maybe if a car is an undriveable motor home, Ross might not apply, but this was just a regular car (with dismembered body parts of the victim inside), so the Ross exception for cars applies.

People v. Hochstraser; 2009 DJ DAR 15299; DJ, 10/28/09; C/A 6th

November 3, 2009

CALIFORNIA SEARCH & SEIZURE LAW: THE FOURTH AMENDMENT AND PRIVATE POSTAL BOXES

The defendant rented a private postal box. The police went to it and asked an employee if the defendant received mail at that facility. The clerk responded by reaching into the defendant's postal box, retrieving three letters, and displaying them without opening them to the police. One showed a bill from AT&T. The police then directed a warrant for cell phones records to AT&T and got evidence of defendant's involvement in a kidnapping.

The Court of Appeal says that the 4th Amendment doesn't apply to an employee's removal of mail from a postal box at a private mail facililty because the back of the box was open and the staff had complete and unfettered access to its contents, and the police didn't search the
postal box or direct the clerk to reveal its contents. The staff has already seen and handled the mail, so there's no limitation on the staff.

People v. Reyes; 2009 DJ DAR 15589; DJ, 11/3/09; C/A 4th, Div. 3

October 21, 2009

UNITED STATES SUPREME COURT DECLINES TO HEAR "ONE SWERVE" ANONYMOUS TIPSTER DUI CASE

United States Supreme Court Chief Justice Samuel Alito lobbied hard to gain enough colleagues to vote to hear a DUI case out of Virginia where the cop pulled over a driver based solely on the tip from an anonymous tipster that he saw the driver "swerve once." The cop, however, saw no bad driving himself.

That's not a good enough case to make a majority of the U.S. Supremes take it on. In fact, it is a major win for the Constitution. That a cop should be able to suspend the Fourth Amendment rights of a citizen based on an anonymous tipster is ludicrous. So implied the remainder of the justices that declined Alito's push to hear this ridiculous case.

CLick HERE for the news story on the case.

April 25, 2009

CALIFORNIA CRIMINAL DEFENSE: ILLEGALLY PROLONGED DETENTION? NO PROBLEM

In a week with perhaps the best case of the year (Arizona), we also get an outrage of the week, perhaps the outrage of the year. The California Court of Appeal has to really struggle even to come up with a traffic infraction to justify the detention in this case; get this, the headlights were out of alignment.

ARE YOU KIDDING?

Alrighty, then. But the detention was illegally prolonged, under McGaughran (25 Cal.3d 577). Atwater (532 U.S. 318) says that the 4th Amendment isn't violated by a state law permitting a custodial arrest for a fine-only infraction.

This California Court of Appeal mangles Atwater and comes up with a rule that the 4th Amendment permits custodial arrests for infractions, and concludes that McGauhran isn't the law, so illegally prolonged detentions don't require uppression under the 4th Amendment.

Don't believe me: "if the law enforcement officers had probable cause to believe defendant
committed traffic infractions, then detaining him longer than necessary to simply cite him did not violate the Fourth Amendment." So they ignore a case from the California Supremes and essentially permit extended detentions justified by the most trivial of traffic violations.

Oh, and they skillfully don't even mention the binding cases from the U.S. Supremes barring illegally prolonged detentions, U.S. v. Sharpe (470 U.S. 675) and U.S. v. Place (462 U.S. 696).

And anyway, what does the scope of a custodial arrest have to do with an illegally prolonged detention prior to an arrest? What was searched? Sure enough, the police searched the car after the defendant was arrested and removed from it, violating our new winner, Arizona v. Gant, just decided by SCOTUS.!

People v. Branner; 2009 DJ DAR 5507; DJ, 4/21/09; C/A 3rd

April 21, 2009

CALIFORNIA CRIMINAL LAW: BAD OBSERVATION POST CASE

It seems that every few years we get an observation post case. Here's this year's bad boy. The officer watched a claimed drug sale from a surveillance location. The DA claimed the EC 1040 privilege.

The court sustained the privilege and imposed no sanction. We ought to be winning these, but here we lose. The Court of Appeal stresses that the trial court here permitted extensive cross about distance and angle of view and only barred questions about the exact location where the ofr. was when he saw what he claimed to have seen.

Here is a critical point that we have to emphasize: essentially, the defense was only barred from asking the ultimate question. But the Court of Appeal goes nuts, trying tomake the distinction between relevance and materiality. Sure, it would be relevant to know where the officer made the observations from.

But material? The Court of Appeal finds lack of materiality because the officer's testimony about observations from the location were sufficiently corroborated by independent evidence, so there was no realistic possibility that disclosure would have enabled the def. to raise a
reasonable doubt.

Right, we're sure the defendant is guilty, so nothing you slimy defense lawyers could do would do you any good anyway, so we're just not going to let you do it. Nothing like a presumption of guilt.

People v. Lewis; 2009 DJ DAR 5321; DJ, 4/15/09; C/A 1st

April 21, 2009

CALIFORNIA CRIMINAL DEFENSE: HARASSING PAROLE SEARCHES ARE DANDY

The officer contacted the defendant and found out that he was on parole. Sanders (31 Cal.4th 318) permits a parole search. The only limitation on that search is em>Reyes (19 Cal.4th 743), which says that the search can't be arbitrary, capricious, or harassing.

The defense claims that this was a public strip search, and was thus harassing. The Court of Appeal goes to some pains to rule that this was not a public strip search. The search, though in public, was conducted in the back of a hotel parking lot in an area that didn't face the street.

They describe the search as the officer. lowering the defendant's pants a foot or so, then pulling back the elastic waistband of his underwear, permitting a visual search of his crotch area. The
only item of clothing the officer removed was the defendant's belt, the defendant's private parts were not exposed, and there's no evidence the officer touched the defendant's private area, he simply retrieved the bag of drugs. We're going to have to argue that had the officer done much more than this, it would qualify as harassing.

People v. Smith; 2009 DJ DAR 5224; DJ, 4/10/09; C/A 1st

April 21, 2009

BIG WIN IN THE SUPREMES: COPS NEED WARRANT TO SEARCH PASSENGER AREAS OF CARS WHEN SUSPECT IS LOCKED UP

WASHINGTON ­ The Supreme Court ruled Tuesday that police need a warrant to
search the vehicle of someone they have arrested if the person is locked up
in a patrol cruiser and poses no safety threat to officers.

The court's 5-4 decision puts new limits on the ability of police to search
a vehicle immediately after the arrest of a suspect.

Justice John Paul Stevens said in the majority opinion that warrantless
searches still may be conducted if a car's passenger compartment is within
reach of a suspect who has been removed from the vehicle or there is reason
to believe evidence of a crime will be found.

"When these justifications are absent, a search of an arrestee's vehicle
will be unreasonable unless police obtain a warrant," Stevens said.

Justice Samuel Alito , in dissent, complained that the decision upsets
police practice that has developed since the court first authorized
warrantless searches immediately following an arrest.

"There are cases in which it is unclear whether an arrestee could retrieve a
weapon or evidence," Alito said.

Even more confusing, he said, is asking police to determine whether the
vehicle contains evidence of a crime. "What this rule permits in a variety
of situations is entirely unclear," Alito said.

The decision backs an Arizona high court ruling in favor of Rodney Joseph
Gant, who was handcuffed, seated in the back of a patrol car and under
police supervision when Tucson, Ariz., police officers searched his car.
They found cocaine and drug paraphernalia.

The trial court said the evidence could be used against Gant, but Arizona
appeals courts overturned the convictions because the officers already had
secured the scene and thus faced no threat to their safety or concern about
evidence being preserved.

The state and the Bush administration complained that ruling would impose a
"dangerous and unworkable test" that would complicate the daily lives of law
enforcement officers .

The justices divided in an unusual fashion. Justices Ruth Bader Ginsburg,
Antonin Scalia, David Souter and Clarence Thomas joined the majority
opinion. Chief Justice John Roberts and Justices Stephen Breyer and Anthony
Kennedy were in dissent along with Alito.

March 26, 2009

CALIFORNIA CRIMINAL DEFENSE: NO "CUSTODY" FOR MIRANDA PURPOSES AT WORK

The Defendant was instructed to follow police to room in office space where he worked while his office, home and car were being searched (with a warrant).

He was questioned with the door closed, but specifically told he was not under arrest, and that he would walk out when "we're done," but was not told he was free to leave.

The questioning was mostly friendly, though at one point the defendant asked the officer not to yell. Held, he was not in custody.

Was he really free to leave having been instructed (otherwise known as "ordered") to go to the office, placed in a closed room, and told he could leave "when we're done" (the converse of which is you can't leave until I am through with you)? Yeah, right.

United States v. Bassignani (9th Cir., 3/25/09, 07-10453) 09 C.D.O.S. 3766

March 26, 2009

FEDERAL WIRETAPPING AND STANDING

Even though the trial court erred in ruling that the Defendant did not have standing to complain of a violation of wiretap laws in the monitoring of her boyfriend's phone, which she also used, Defendant was not entitled to suppression because "Ms. Ahamad never sought a hearing based on the claim federal law enforcement authorities utilized the drug trafficking warrant as a stratagem to discover evidence relating to the shooting of Mr. Larrainzar.

Nor did Ms. Ahamad challenge the federal court disclosure orders which resulted in the Los Angeles homicide detectives learning of the ongoing federally authorized electronic surveillance."

People v. Reyes (2nd Dist., 3/24/09, B201294) 09 C.D.O.S. 3803

March 12, 2009

SAN DIEGO CRIMINAL DEFENSE: PROSECUTORS CAN'T APPEAL THEIR OWN DISMISSAL

Where prosecutors moved to dismiss misdemeanor charges against defendant due to lack of evidence after trial court granted defendant’s motion to suppress evidence, prosecutors could not appeal adverse ruling on suppression motion.

People v. Gallagher - filed January 30, 2009, San Mateo Superior Court, Cite as 2009 SOS 1525

February 16, 2009

CALIFORNIA CRIMINAL DEFENSE: IS THE SUPREME COURT ABOUT TO KILL OFF THE EXCLUSIONARY RULE?

Is the Supreme Court About to Kill Off the Exclusionary Rule?
Published: February 15, 2009. Click HERE for New York Times article.

In 1957, the Cleveland police showed up at Dollree Mapp’s home looking for a bombing suspect. Ms. Mapp would not let them in without a search warrant, but they entered anyway. The police did not find the bomber, but they came across a trunk containing “lewd and lascivious” books and pictures.

Ms. Mapp was convicted of possessing obscene materials, even though the evidence was taken without a warrant. She was tried in state court, like the overwhelming majority of criminal defendants. So it did her no good that federal courts had applied the so-called “exclusionary rule” since 1914 to bar the use of illegally seized evidence.

In 1961, in Mapp v. Ohio, the Supreme Court reversed Ms. Mapp’s conviction and adopted the exclusionary rule as a national standard. The court acknowledged that the rule might let some criminals go free, but it underscored that it was more important to compel the nation’s police forces to obey the law.

The court carved out exceptions over the years, but the basic rule laid down in Mapp has endured for nearly five decades. Now, Chief Justice John Roberts’s conservative majority on the Supreme Court is working to undo the exclusionary rule in a more fundamental way. It’s been a longstanding interest of Mr. Roberts’s. As a young Reagan administration lawyer, he worked on what he described in a memo as a “campaign to amend or abolish” the rule.

[COMMENTARY: Doesn't this warrant his recusal from any case addressing this issue?]

The Mapp decision has had both effects that were predicted when it came down. Some criminals had convictions thrown out, or avoided being charged, because evidence was obtained illegally or found by relying on illegally obtained information. But Mapp also changed the incentives for the police. It gave them less reason to enter a home or tap a phone without a warrant.

The exclusionary rule has always had critics. Long before Mapp, Judge Benjamin Cardozo said it allowed the criminal to go free “because the constable has blundered.” In recent years, it has become Exhibit A for those who argue that defendants get off on technicalities.

In 2006, in Hudson v. Michigan, Chief Justice Roberts assigned the majority opinion to Justice Antonin Scalia, who wrote a sweeping assault on the rationale for excluding illegally obtained evidence. Justice Scalia argued that “the increasing professionalism of police forces,” the increased availability of civil rights lawsuits, and other checks on police wrongdoing have sharply reduced the need for such measures.

Last month, the court eroded the rule still further in Herring v. United States. Writing for the majority, Chief Justice Roberts declared that evidence need not necessarily be disqualified if it was illegally obtained because of errors in police databases. Isolated mistakes of this sort, he insisted, are not among the exclusionary rule’s “core concerns.”

Justice Ruth Ginsburg, in dissent, was right to point out that in the modern age database errors can lead to many people’s rights being denied. The harm to a citizen who is arrested and searched on the street because a bureaucrat has made a computer error, she noted, is just the sort of invasion the founders worried about when they drafted the Fourth Amendment.

After Hudson and Herring, critics of the exclusionary rule have high hopes that the Roberts court will take the ultimate step of overruling Mapp v. Ohio. That would be a great setback for the rule of law.

Despite Justice Scalia’s claims, police misconduct is rampant. In the last few years, the Atlanta and Oakland police departments have had major scandals over officers’ lying to obtain search warrants. In this same period, of course, the federal government engaged in an illegal domestic wiretapping program, the extent of which is still unknown.

The exclusionary rule does more than simply put a check on police misconduct. It protects the integrity of the judicial system. If courts put people like Ms. Mapp in prison based on the actions of lawless, marauding police officers, respect for the law suffers.

There is no denying that the exclusionary rule allows a small number of criminals to go free because the police have blundered — which is certainly no minor matter. But the more faithfully the rule is applied, the more likely the police are to collect evidence lawfully.

As important as it is to convict criminals, the Supreme Court in Mapp rightly insisted that the Constitution must not be trampled in the process. “Nothing can destroy a government more quickly,” the court noted, “than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”

February 2, 2009

U.S. SUPREME COURT: MIGHT THE EXCLUSIONARY RULE BE ELIMINATED?

I'm scared. I'm very, very scared. While I have always championed personal financial sanctions on police officers who violate the Fourth Amendment rather than exclusion of evidence (seems a stronger deterrent to me), the courts have historically thought otherwise. Now, if a cop violates your Fourth Amendment rights, the evidence he subsequently learns of as a result of the illegal search or seizure is suppressed and cannot beused in court against you.

Will our chief justice, who championed such causes in the past, lead the Supremes to total expungement of Fourth Amendment remedies?

Take a look at the URL below. Maybe so.

http://www.nytimes.com/2009/01/31/washington/31scotus.html?_r=1


December 13, 2008

CALIFORNIA CRIMINAL DEFENSE: STOPPING CARS TO CHECK ON TEMPORARY PERMITS

STOPPING CARS TO CHECK ON TEMPORARY PERMITS

We were worried that the Supremes would wipe out Butler (202 Cal.App.3d
602). Butler says an officer can't stop a car to determine whether tinted windows in the car are illegally tinted. The officer can't detain to find out if there's a violation of law; the officer has to have reasonable cause to believe there's a violation. However, Butler lives to fight another day!

Both these cases involve stops for cars with temporary permits. In Raymond C., the officer sees a car with no license plates and no temporary permit in the rear window. The Supremes uphold a stop, even though it turned out that there was a permit in the front
window. The Supremes say that the stop was reasonable because driving past the car to see if there was a permit in the front window might have been dangerous. However, in Hernandez, the officer saw a car with no license plates which DID have a temporary permit in the rear window.

stop.bmp

The officer stopped the car because a lot of stolen cars have forged temporary permits. The Supremes rule that this search was illegal, because the officer had nothing specific to support his belief. So I think Raymond C. is narrow, and Butler survives.

In re Raymond C.; 2008 DJ DAR 18112; DJ, 12/13/08; Cal. Supremes (we
lose)

People v. Hernandez; 2008 DJ DAR 18109; DJ, 12/13/08; Cal. Supremes
(we win)

Continue reading "CALIFORNIA CRIMINAL DEFENSE: STOPPING CARS TO CHECK ON TEMPORARY PERMITS" »

November 25, 2008

UNLAWFUL STOP, DISCOVERY OF A WARRANT, THEN A SEARCH. ILLEGAL? NAW!

UNLAWFUL STOP, DISCOVERY OF A WARRANT, THEN A SEARCH. ILLEGAL?

Hold your horses. It's gonna be a tough ride. Here we go and buckle of for this piece of dribble.

FACTS: The police unlawfully stop the defendant. So this is an unlawful traffic stop. It is. There is no question. It's wrong and it's illegal. Get it?

During the stop, before any search, the police find that the defendant has a warrant. They arrest the defendant, search, and find drugs. Result? You're probably going to say that the unlawful stop invalidates the search. You would be wrong.

The Cal. Supremes say that the discovery of the warrant is an intervening circumstance that attenuates the taint of the antecedent unlawful traffic stop. Say that three times fast. Um, is this tort law or something. This seems incredible to me. They note that evidence of purposeful or flagrant police misconduct would require suppression, as would a stop undertaken as a fishing expedition.

They distinguish Sanders (31 Cal.4th 318), which held that an unlawful search can't be justified by later discovery that the defendant is on probation or parole with search conditions, saying that no search occurred here until after the police found the warrant.

People v. Brendlin; 2008 DJ DAR 17352; DJ, 11/25/08; Cal. Supremes

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August 19, 2008

NINTH CIRCUIT UPHOLDS REASONABLENESS OF COP'S STOP AND SEARCH

Reasonable suspicion was evident for defendant's stop by police where the vehicle was already stopped at a rest area within one mile of the Mexican border and the desert off-road vehicles were off-loaded from the defendant's vehicle.

United States v. Macias-Encinas, 2008 U.S. App. LEXIS 18353 (9th Cir. August 19, 2008) (unpublished).*

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August 2, 2008

DEPARTMENT OF HOMELAND SECURITY WILL SEARCH LAPTOPS AT THE BORDER

The Department of Homeland Security has now made it clear that they will search laptops at the border. See the Washington Post article published today: Travelers' Laptops May Be Detained At Border / No Suspicion Required Under DHS Policies:

Federal agents may take a traveler's laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.

Also, officials may share copies of the laptop's contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

"The policies ... are truly alarming," said Sen. Russell Feingold (D-Wis.), who is probing the government's border search practices. He said he intends to introduce legislation soon that would require reasonable suspicion for border searches, as well as prohibit profiling on race, religion or national origin.

DHS officials said the newly disclosed policies -- which apply to anyone entering the country, including U.S. citizens -- are reasonable and necessary to prevent terrorism. Officials said such procedures have long been in place but were disclosed last month because of public interest in the matter.