Tag Archives: solicitor

EFF: The Playpen Story: Some Fourth Amendment Basics and Law …

Posted: September 25, 2016 at 7:19 am

ABA Journal’s Blawg 100 (2015)

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

2003-16, online since Feb. 24, 2003

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

Fourth Amendment cases, citations, and links

Latest Slip Opinions: U.S. Supreme Court (Home) Federal Appellate Courts Opinions First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit Eleventh Circuit D.C. Circuit Federal Circuit Foreign Intell.Surv.Ct. FDsys, many district courts, other federal courts, other Military Courts: C.A.A.F., Army, AF, N-M, CG State courts (and some USDC opinions)

Google Scholar Advanced Google Scholar Google search tips LexisWeb LII State Appellate Courts LexisONE free caselaw Findlaw Free Opinions To search Search and Seizure on Lexis.com $

Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General’s site SCOTUSreport Briefs online (but no amicus briefs) Curiae (Yale Law) Oyez Project (NWU) “On the Docket”Medill S.Ct. Monitor: Law.com S.Ct. Com’t’ry: Law.com

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf) Stringrays (ACLU No. Cal.) (pdf)

Congressional Research Service: –Electronic Communications Privacy Act (2012) –Overview of the Electronic Communications Privacy Act (2012) –Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy Foundation Electronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

“If it was easy, everybody would be doing it. It isn’t, and they don’t.” Me

I still learn something new every day. Pete Townshend, The Who 50th Anniversary Tour, “The Who Live at Hyde Park” (Showtime 2015)

“I can’t talk about my singing. I’m inside it. How can you describe something you’re inside of?” Janis Joplin

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

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

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

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

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

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

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

“The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth.” Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

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

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

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

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

“You can’t always get what you want / But if you try sometimes / You just might find / You get what you need.” Mick Jagger & Keith Richards

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

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

The rest is here:
EFF: The Playpen Story: Some Fourth Amendment Basics and Law …

Posted in Fourth Amendment | Comments Off on EFF: The Playpen Story: Some Fourth Amendment Basics and Law …

NACDL: Symposium Report: The Fourth Amendment in the Digital Age

Posted: June 13, 2016 at 12:49 pm

ABA Journal’s Blawg 100 (2015)

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

2003-16, online since Feb. 24, 2003

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

Fourth Amendment cases, citations, and links

Latest Slip Opinions: U.S. Supreme Court (Home) Federal Appellate Courts Opinions First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit Eleventh Circuit D.C. Circuit Federal Circuit Foreign Intell.Surv.Ct. FDsys, many district courts, other federal courts, other Military Courts: C.A.A.F., Army, AF, N-M, CG State courts (and some USDC opinions)

Google Scholar Advanced Google Scholar Google search tips LexisWeb LII State Appellate Courts LexisONE free caselaw Findlaw Free Opinions To search Search and Seizure on Lexis.com $

Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General’s site SCOTUSreport Briefs online (but no amicus briefs) Curiae (Yale Law) Oyez Project (NWU) “On the Docket”Medill S.Ct. Monitor: Law.com S.Ct. Com’t’ry: Law.com

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf) Stringrays (ACLU No. Cal.) (pdf)

Congressional Research Service: –Electronic Communications Privacy Act (2012) –Overview of the Electronic Communications Privacy Act (2012) –Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy Foundation Electronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

“If it was easy, everybody would be doing it. It isn’t, and they don’t.” Me

I still learn something new every day. Pete Townshend, The Who 50th Anniversary Tour, “The Who Live at Hyde Park” (Showtime 2015)

“I can’t talk about my singing. I’m inside it. How can you describe something you’re inside of?” Janis Joplin

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

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

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

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

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

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

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

“The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth.” Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

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

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

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

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

“You can’t always get what you want / But if you try sometimes / You just might find / You get what you need.” Mick Jagger & Keith Richards

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

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

Read this article:
NACDL: Symposium Report: The Fourth Amendment in the Digital Age

Posted in Fourth Amendment | Comments Off on NACDL: Symposium Report: The Fourth Amendment in the Digital Age

HuffPo: Heres A Good Reason For The Fourth Amendment To …

Posted: May 14, 2016 at 5:47 am

ABA Journal’s Blawg 100 (2015)

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

2003-16, online since Feb. 24, 2003 real non-robot URL hits since 2010; approx. 18k posts since 2003

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

Fourth Amendment cases, citations, and links

Latest Slip Opinions: U.S. Supreme Court (Home) Federal Appellate Courts Opinions First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit Eleventh Circuit D.C. Circuit Federal Circuit Foreign Intell.Surv.Ct. FDsys, many district courts, other federal courts, other Military Courts: C.A.A.F., Army, AF, N-M, CG State courts (and some USDC opinions)

Google Scholar Advanced Google Scholar Google search tips LexisWeb LII State Appellate Courts LexisONE free caselaw Findlaw Free Opinions To search Search and Seizure on Lexis.com $

Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General’s site SCOTUSreport Briefs online (but no amicus briefs) Curiae (Yale Law) Oyez Project (NWU) “On the Docket”Medill S.Ct. Monitor: Law.com S.Ct. Com’t’ry: Law.com

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf) Stringrays (ACLU No. Cal.) (pdf)

Congressional Research Service: –Electronic Communications Privacy Act (2012) –Overview of the Electronic Communications Privacy Act (2012) –Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy Foundation Electronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

“If it was easy, everybody would be doing it. It isn’t, and they don’t.” Me

I still learn something new every day. Pete Townshend, The Who 50th Anniversary Tour, “The Who Live at Hyde Park” (Showtime 2015)

“I can’t talk about my singing. I’m inside it. How can you describe something you’re inside of?” Janis Joplin

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

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

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

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

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

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

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

“The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth.” Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

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

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

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

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

“You can’t always get what you want / But if you try sometimes / You just might find / You get what you need.” Mick Jagger & Keith Richards

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

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

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HuffPo: Heres A Good Reason For The Fourth Amendment To …

Posted in Fourth Amendment | Comments Off on HuffPo: Heres A Good Reason For The Fourth Amendment To …

SCOTUS has two weeks of arguments starting Monday, one a …

Posted: February 19, 2016 at 9:43 pm

ABA Journal’s Blawg 100 (2015)

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

2003-16, online since Feb. 24, 2003 real non-robot URL hits since 2010; approx. 18k posts since 2003

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

Fourth Amendment cases, citations, and links

Latest Slip Opinions: U.S. Supreme Court (Home) Federal Appellate Courts Opinions First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit Eleventh Circuit D.C. Circuit Federal Circuit Foreign Intell.Surv.Ct. FDsys, many district courts, other federal courts, other Military Courts: C.A.A.F., Army, AF, N-M, CG State courts (and some USDC opinions)

Google Scholar Advanced Google Scholar Google search tips LexisWeb LII State Appellate Courts LexisONE free caselaw Findlaw Free Opinions To search Search and Seizure on Lexis.com $

Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General’s site SCOTUSreport Briefs online (but no amicus briefs) Curiae (Yale Law) Oyez Project (NWU) “On the Docket”Medill S.Ct. Monitor: Law.com S.Ct. Com’t’ry: Law.com

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf) Stringrays (ACLU No. Cal.) (pdf)

Congressional Research Service: –Electronic Communications Privacy Act (2012) –Overview of the Electronic Communications Privacy Act (2012) –Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy Foundation Electronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

“If it was easy, everybody would be doing it. It isn’t, and they don’t.” Me

I still learn something new every day. Pete Townshend, The Who 50th Anniversary Tour, “The Who Live at Hyde Park” (Showtime 2015)

“I can’t talk about my singing. I’m inside it. How can you describe something you’re inside of?” Janis Joplin

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

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

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

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

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

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

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

“The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth.” Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

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

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

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

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

“You can’t always get what you want / But if you try sometimes / You just might find / You get what you need.” Mick Jagger & Keith Richards

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

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

Read this article:
SCOTUS has two weeks of arguments starting Monday, one a …

Posted in Fourth Amendment | Comments Off on SCOTUS has two weeks of arguments starting Monday, one a …

Harv.L.Rev.: Digital Duplications and the Fourth Amendment

Posted: February 15, 2016 at 5:45 pm

ABA Journal’s Blawg 100 (2015)

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

2003-16, online since Feb. 24, 2003 real non-robot URL hits since 2010; approx. 18k posts since 2003

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

Fourth Amendment cases, citations, and links

Latest Slip Opinions: U.S. Supreme Court (Home) Federal Appellate Courts Opinions First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit Eleventh Circuit D.C. Circuit Federal Circuit Foreign Intell.Surv.Ct. FDsys, many district courts, other federal courts, other Military Courts: C.A.A.F., Army, AF, N-M, CG State courts (and some USDC opinions)

Google Scholar Advanced Google Scholar Google search tips LexisWeb LII State Appellate Courts LexisONE free caselaw Findlaw Free Opinions To search Search and Seizure on Lexis.com $

Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General’s site SCOTUSreport Briefs online (but no amicus briefs) Curiae (Yale Law) Oyez Project (NWU) “On the Docket”Medill S.Ct. Monitor: Law.com S.Ct. Com’t’ry: Law.com

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf) Stringrays (ACLU No. Cal.) (pdf)

Congressional Research Service: –Electronic Communications Privacy Act (2012) –Overview of the Electronic Communications Privacy Act (2012) –Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy Foundation Electronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

“If it was easy, everybody would be doing it. It isn’t, and they don’t.” Me

I still learn something new every day. Pete Townshend, The Who 50th Anniversary Tour, “The Who Live at Hyde Park” (Showtime 2015)

“I can’t talk about my singing. I’m inside it. How can you describe something you’re inside of?” Janis Joplin

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

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

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

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

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

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

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

“The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth.” Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

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

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

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

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

“You can’t always get what you want / But if you try sometimes / You just might find / You get what you need.” Mick Jagger & Keith Richards

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

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

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Problems Associated with Cryonics – Cryonics: Alcor Life …

Posted: December 27, 2015 at 9:44 pm

(and some possible solutions)

When you buy a house, the seller is legally obliged to disclose any known defects. When you review a company’s annual report, it tells you every problem that could affect the corporate share value. Since arrangements for cryopreservation may have a much greater impact on your life than home ownership or stock investments, we feel an ethical obligation to disclose problems that affect cryonics in general and Alcor specifically. We also believe that an organization which admits its problems is more likely to address them than an organization which pretends it has none. Thus full disclosure should encourage, rather than discourage, consumer confidence.

As of 2011, Alcor is nearly 40 years old. Our Patient Care Trust Fund is endowed with more than 7 million dollars and is responsible for the long-term care of over 100 cryopatients. In almost every year since its inception Alcor has enjoyed positive membership growth. We are the largest cryonics organization in the world yet in many respects we are still a startup company. We have fewer than a dozen employees in Scottsdale, Arizona and approximately 20 part-time independent contractors in various locations around the USA, mostly dedicated to emergency standby and rescue efforts. We serve fewer than 1,000 members and the protocols that aid our pursuit of the goal of reversible suspended animation continue to be developed. At the present time the technology required for the realization of our goal far exceeds current technical capabilities. Cryonics will not be comparable with mainstream medicine until our patients can be revived using contemporary technology, and we expect to wait for decades to see this vision fulfilled. Nevertheless, we have made important progress by introducing brain vitrification to improve patient tissue structure preservation.

Alcor shares some of the characteristics of startup companies. The organization is understaffed in some important areas and lacks as much capitalization as would be desired to support maximum growth. Limited resources prevent the organization from hiring as many highly qualified and experienced personnel as desired, and sometimes we have to postpone enhancements to equipment and procedures.

Because Alcor must react quickly to circumstances, it cannot always handle multiple tasks simultaneously. We feel a significant impact if, for example, several members experience legal death in quick succession. A heavy caseload generally means that administrative and even technical development work is postponed while member emergencies take precedence.

On the other hand, Alcor staff believe very strongly in the mission of the organization and are extremely dedicated. Alcor transport team members feel that they are saving lives, and behave accordingly. Most of all, everyone at Alcor is concerned with insuring the security of the patients who have been cryopreserved for the indefinite future. The organization’s powerful sense of purpose is reinforced by the fact that all Alcor directors and most staff members have made arrangements to be cryopreserved themselves in the future.

Unlike most startups, Alcor is unlikely to fail for financial reasons. Due to the legally independent status of the Patient Care Trust from Alcor, patients can be maintained indefinitely through its portfolio of cash, investments, real estate, and capital equipment. Some wealthy Alcor members have contributed gifts and endowments to help the organization to advance, and in the event of a financial crisis, many of the people who hope ultimately to be cryopreserved would probably provide assistance. In this sense Alcor benefits from its small size, since it maintains an intimate relationship with many members which would be more problematic if our membership was ten times as large.

Inability to Verify Results

When a conventional surgical procedure is successful, usually the patient recovers and is cured. If the same surgical procedure is unsuccessful or a surgeon makes a serious error, the patient may die. These clear outcomes provide prompt feedback for the people involved. A physician may feel deeply satisfied if a life is saved, or may be deeply troubled (and may be sued for malpractice) if errors cause a death that should have been avoidable.

Clear feedback of this type does not exist in cryonics, because the outcome of our procedures will not be known definitively until decades or even a century from now. We have good reason to expect future technologies capable of repairing cellular damage in cryonics patients, but we feel equally certain that if a patient experiences very severe brain damage prior to cryopreservation, repairs may be delayed, may be incomplete, or may be impossible. The dividing line between these positive and negative outcomes cannot be established clearly at this time.

Suppose a patient experiences 30 minutes of warm ischemia (lack of blood flow at near-normal body temperature) after legal death occurs. Will this downtime create damage that is irreversible by any imaginable technology? Probably not. But what if the ischemic interval lasts for an hour or two hours, or a day? We simply don’t know where to draw the line between one patient who is potentially viable, and another who is not.

Of course we can refer to experimental work that has evaluated the injury which occurs when cells are deprived of essential nutrients. These studies provide some guidance regarding the likely damage that a patient may experience, but they still cannot tell us with certainty if future science will be able to reverse that damage.

Another problem afflicting cryonics cases is that many uncontrolled variables prevent us from developing objective criteria to compare one case with another. Consider these two examples:

In the first case, will the long transport time negate the advantage of a rapid initial response and replacement of blood with a chilled preservation solution? In the second case, will the initial hours of warm ischemia outweigh the advantage of the rapid transport to Alcor? We can make educated guesses, but we cannot answer these questions definitively. We have no certain way of knowing which case will work out better, because we have no evidence no outcome.

We do have some simple ways to determine if a patient’s circulatory system allows good perfusion with cryoprotectant. Personnel in the operating room will notice if blood clots emerge when perfusion begins. The surface of the brain, visible through burr holes which are created to enable observation, should be pearly white in color. The brain should shrink slightly as water is replaced with cryoprotectant. When perfusion is complete the patient’s features should have acquired a sallow color indicating that cryoprotectant has diffused through the tissues.

These simple observations are helpful, but still the people who work hard to minimize transport time and maximize the rate of cooling can never enjoy the satisfying payoff that a physician receives when one of his patients recovers and returns to a normal, active life. This lack of positive outcome can cause feelings of frustration and futility, sometimes leading to disillusionment and burnout.

Conversely, if a case goes badly, team members will be protected from negative feedback. A team leader can never say to one of the personnel, “Because of your error, the patient has no chance of recovery.”

The lack of a clear outcome also prevents us from refuting people who claim that future science will be able to undo almost any degree of damage. The danger o
f this extreme positive thinking is that it can lead to laziness. Why bother to make heroic efforts to minimize injury, if nanotechnology will fix everything?

Alcor’s stated policy firmly rejects this attitude. Team members are very highly motivated to minimize injury because we believe that our members should not bet their lives on unknown capabilities of future science. Alcor generally hosts a debriefing after each case, encouraging all participants to share complaints, frustrations, and suggestions for improvement. Ideally, each case should be a learning experience, and participants should welcome criticism as an opportunity to identify weaknesses and overcome them in the future.

Still the lack of a clear outcome remains one of the biggest weaknesses in cryonics, since it encourages complacency and prevents accountability. The antidote to this problem is a better set of objective criteria to evaluate cases, and Alcor is working in consultation with brain ischemia experts to develop such criteria.

Volunteer Help

During the 1960s the first cryonics organizations were run entirely by volunteers. The field was not sufficiently reputable to attract qualified medical staff, and no one could have paid for professional help anyway.

Today cryonics is making a transition to professionalism, but financial limitations are prolonging the process. Some paramedics are associated with Alcor, and we hope for more in the future. We have an MD medical director, access to three contract surgeons, access to a hospice nurse, and assistance from an ischemia research laboratory in California where staff has extensive experience in relevant procedures such as vascular cannulation and perfusion. Alcor also communicates with a cryobiology laboratory that has made the most important advances in organ preservation during the past decade. Still, most transport team members who work remotely from the facility are volunteers who receive a week or two of training and modest payment for their work.

In the future, as Alcor becomes more financially secure and is able to offer higher salaries, the organization will attract more medical professionals. At this time, the transition is incomplete.

Limited Support from Mainstream Science

In the 1960s scientists in mainstream laboratories investigated techniques to cryopreserve whole organs. By the end of the 1970s most of this work had ended, and the field of cryobiology separated itself very emphatically from cryonics. The Society for Cryobiology has discouraged scientists from doing work that could advance cryonics, and has adopted a bylaw that threatens to expel any member who practices or promotes cryonics. Consequently the few scientists who are willing to do cryonics-related research live in fear of being excluded from the scientific specialty that is most relevant to their work.

The rift between cryonics and cryobiology may have been caused initially by fears among mainstream scientists that cryonics had a “tabloid journalism” flavor incompatible with science. In addition many scientists have been dissatisfied with the idea of applying procedures without a complete and full understanding of their outcome. Generally, in medicine, first a technique is studied, validated, and perfected, and then it is applied clinically. Cryonics has, of necessity, done an end-run around this formal approach by rushing to apply a technique based on theoretical arguments rather than validated clinical effectiveness.

During the past decade our knowledge and procedures have advanced far beyond the crude freezing methods imagined by most cryobiologists, and experts in molecular nanotechnology have voiced strong support. As more papers are published describing technical advances, we expect that cryobiologists and other scientists will revise their negative assessment of cryonics. In the future we believe that the arbitrary barrier between cryonics and cryobiology will gradually dissolve, and cryonics research will be recognized as a legitimate specialty of the field. However, for the time being the dim view taken of cryonics by most cryobiologists remains problematic, impairing Alcor’s ability to achieve respectable status among other relevant groups such as prospective members, regulatory officials, and legislators.

Limited Legal and Government Support

Cryonics is not explicitly recognized in the laws of any state in the United States (see The Legal Status of Cryonics Patients). This does not mean that cryonics is illegal or unregulated. In fact, Alcor must comply with state laws controlling the transport and disposition of human remains, and we make arrangements with licensed morticians to insure that these requirements are met. Alcor also complies with federal regulations established by agencies such as OSHA and EPA.

Still, the lack of specific enabling legislation for cryonics can cause problems. In the late 1980s the California Department of Health Services (DHS) asserted that because there was no statutory procedure for becoming a cryonics organization, human remains could not be conveyed to a cryonics organization via the Uniform Anatomical Gift Act (UAGA), and therefore cryonics was illegal. Fortunately, the courts were unimpressed by this argument. In 1992 the legality of cryonics, and the legality of using the UAGA for cryonics, were upheld at the appellate level.

In 1990 the Canadian province of British Columbia enacted a law that specifically banned the sale of cryonics services in that province. In 2002 the Solicitor General (Canadian equivalent of a state Attorney General) issued a written clarification stating that the law only prohibited funeral homes from selling cryonics arrangements. Cryonics could still be performed in the province, even with the paid assistance of funeral homes, provided they were not involved in the direct sale of cryonics. This position is affirmed by the Business Practices and Consumer Protection Authority of British Columbia. Despite these assurances, anxiety about the law remains.

In 2004 a bill was passed by the Arizona House of Representatives to place cryonics and cryonics procedures under the regulation of the state funeral board. In its original form this law would have prevented our use of the UAGA. The bill was ultimately withdrawn, but may be revived at a later date. Very hostile comments were made about cryonics during the floor debate of this bill. We cannot guarantee that any future legislation will be friendly to cryonics or will permit cryonics to continue in Arizona.

Despite these uncertainties, the United States enjoys a strong cultural tradition to honor the wishes of terminal patients. We believe that the freedom to choose cryonics is constitutionally protected, and so far courts have agreed. We are hopeful that we will be able to continue performing cryonics without technical compromise, under state supervision where necessary, for the indefinite future.

Limited Mainstream Medical Support

Cryonics is not an accepted or recognized “therapy” in the general medical community. To the average medical professional, cryonics is at best an unusual anatomical donation. At worst it can be viewed by some physicians as fraud upon their patient. Hospitals have sometimes deliberately delayed pronouncement of legal death, delayed release of patients to Alcor, or forbade the use of cryonics life support equipment or medications within their facilities. On one occasion in 1988 Alcor had to obtain a court order to compel a hospital to release a patient to Alcor promptly at legal death and permit our stabilization proce
dures on their premises.

Relations with hospitals and their staff are not always difficult. Usually when nurses and physicians learn that cryonics is a sincere practice that is overseen by other medical professionals, they will be willing to accommodate a patient’s wishes, or at least will not interfere with them. Sometimes medical staff will even assist with cryonics procedures such as administering medications and performing chest compressions if Alcor personnel are not present when legal death occurs.

The lack of formal medical recognition or support for cryonics generally means that cryonics patients remote from Alcor must be moved to a mortuary for blood replacement before transport to Alcor. Ideally these preparatory procedures should be performed within hospitals, not mortuaries. Hospitals presently allow organ procurement personnel to harvest organs from deceased patients (a fairly elaborate procedure) within their walls. We are hopeful that similar privileges will be extended to cryonics more often as the process becomes better understood and accepted, but we cannot predict how quickly this change will occur.

High Incidence of Poor Cases

In more than 50 percent of cryonics cases legal death occurs before Alcor standby personnel can be deployed, and is often followed by hours of warm ischemia. This downtime may cause severe cellular damage.

The threat of autopsy, in which the brain is routinely dissected, is an even greater danger. Any person who suffers legal death under unexpected circumstances, especially involving accidents or foul play, is liable to be autopsied. Alcor strongly urges members living in California, Maryland, New Jersey, New York, and Ohio to sign Religious Objection to Autopsy forms.

Sometimes cryonicists perish under circumstances resulting in complete destruction or disappearance of their remains. Cryonicists have been lost at sea, suffered misadventures abroad, or even disappeared without a trace. Two members of cryonics organizations were lost in the 2001 collapse of the World Trade Center towers. One was a policeman performing rescue operations.

Cryonics is not a panacea or a “cure” for death. The cryonics ideal of immediate cooling and cardiopulmonary support following cardiac arrest cannot be achieved in the majority of cases. We have good reasons to believe that molecular records of memory persist in the brain even after hours of clinical death, but only future physicians using medical technology which we do not yet possess will be able to determine, finally, whether such a person is really still “there.”

What can be done?

If you are:

…then please contact us at .

…or check out our volunteer opportunities.

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Done right, C-51 can balance freedom and security

Posted: March 16, 2015 at 4:51 pm

Christian Leuprecht is associate dean and associate professor at the Royal Military College of Canada, affiliated with Queens University.

In debating the federal governments anti-terrorism legislation, Bill C-51, we would do well to remember that there is a reason even Pierre Trudeau insisted on protecting freedom of expression rather than freedom of speech in the Canadian Charter of Rights and Freedoms: unlike the United States, there was a broad consensus that we did not want to afford neo-Nazis constitutional protection to march through Jewish neighbourhoods (National Socialist Party of America vs. Village of Skokie, 1977). Similarly, we do not want salafist Jihadists abusing their adulterated interpretation of Islam to lure the unsuspecting back to the moral ice age.

Democracies, by definition, cherish the Lockean principle of limited state. Its intervention needs to be justified in an effort to advance freedom (and, subsequently, equality and justice). Life is the ultimate human right: It is difficult to enjoy your freedom when you are dead. No one knew that better than John Locke himself: He fled Oxford fearing for his life, only to return from his Dutch refuge on the same ship as William of Orange.

Far from creating a police state, C-51 is merely getting Canada caught up to the rest of the civilized world. Living thousands of miles from the worlds hotspots, Canadians have until lately enjoyed the privilege of being able to bury their heads in the sand. But globalization has made Canada as vulnerable to violent extremism as our allies. The difference is that most of them have long had in place the provisions in C-51 that have caused such heated debate in Canada: measures of detention that are clearly distinct from arrest, risk-diminishment mandates for security intelligence, more robust provisions to stop people from boarding planes, and very robust provisions for sharing data.

While controversy on C-51 abounds, all critics agree on one fundamental question: How can the government assure me that my rights and freedoms have not been violated? The question is hardly new. Roman satirist Juvenal famously probed: Quis custodiet ipsos custodes? Who is watching the watchers? The government points to the Security Intelligence Review Committee. The problem with SIRC is it has (almost no) jurisdiction beyond the Canadian Security Intelligence Service.

First, C-51 should extend SIRCs remit to be able to follow intelligence that originated with CSIS throughout the Canadian security food chain. For example, within the RCMP, SIRC should be able to follow the entire intelligence to evidence thread. To be clear: SIRC should not have purview over entire RCMP investigations that were based on or involve CSIS evidence. SIRCs sole responsibility should be the ability to follow CSIS intelligence throughout federal agencies to ensure that intelligence is handled in accordance with the law and the Constitution.

Second, the SIRC reporting process needs to be sped up. Many of SIRCs reports become public domain, but it takes a couple of years. Due to the steps involved, that glacial pace is unlikely to change. In the interim, why not follow the example of the United Kingdom: clear select members of the opposition to read SIRCs report (and the CSE Inspector Generals, for that matter).

The precedent for clearing select members of the opposition was set during the Afghan detainee debate. Since parliamentary procedure would prohibit this being done in committee, the opposition instead forwards to the Prime Minister a list of names from which the Prime Minister picks at his or her discretion. Rather than having to trust the Prime Minister, Canadians would sleep better if, for example, former Solicitor General Wayne Easter and well-versed defence critic and lawyer Jack Harris had a chance to read these reports in a timely fashion and corroborate that they are satisfied that Canadians rights and freedoms had, indeed, not been violated.

And by virtue of being sworn in as Privy Councillors, the opposition members privy to the reports would never be able to talk about them in public, or Question Period, anyway. So, the risk to the government of sharing this information is negligible compared to the benefits of added oversight.

Compared to standing up a whole new review bureaucracy or vastly expanding the scope of existing ones, the legislative fix for both these remedies would be relatively easy and cost little or no treasure.

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Done right, C-51 can balance freedom and security

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Argument analysis: What exactly is a routine traffic stop, and should a suspicionless dog sniff be part of it?

Posted: January 22, 2015 at 11:51 pm

License, registration, and dog sniff, please? After a somewhat frustrating argument Wednesday morning, Justice Elena Kagan finally expressed concern about the possibility that the federal governments position in Rodriguez v. United States would lead to . . . 40 minutes of free time for police officers to investigate any crimes that they want. Assistant to the Solicitor General Ginger Anders responded that I dont think thats how we envision things, but she then suggested that only the duration of a routine traffic stop under the circumstances defines the Fourth Amendments reasonable limit. This did not answer the question that Justice Anthony Kennedy asked early on: how do you define the traffic stop? But even if the government loses, the Justices expressed a fair amount of indecision over exactly what the rule should be, and they appeared less than satisfied with the arguments offered by Rodriguezs attorney, Shannon OConnor the First Assistant Federal Public Defender for the District of Nebraska.

The facts, the question, and a few points of clarity

As previewed yesterday, the issue before the Court involves a valid traffic stop for swerving over the highway shoulder line, in which the officer prolonged the stop for seven to eight minutes after he had completed writing a warning, in order to conduct a dog sniff of Rodriguezs car after a back-up officer arrived. The entire traffic stop lasted about thirty minutes, at which point the dog alerted and provided probable cause for further search (which revealed methamphetamine). The Eighth Circuit did not question the lower courts finding that there was no reasonable suspicion for the dog-sniff detention, but it ruled that a de minimis delay to conduct a dog sniff is okay. Since the Courts 2005 ruling in Caballes that a dog sniff conducted simultaneously with a traffic stop did not violate the Fourth Amendment, lower state and federal courts have divided on the appropriate constitutional standards as well as their application when a sniff (or other investigation) extends the time of a stop.

A few things seemed clear from Wednesdays argument. First, a dog sniff of a car stopped for a traffic violation is extraneous to the purpose of that is, not an ordinary incident of a traffic violation stop. Justice Samuel Alito questioned this and accurately noted that the Court has previously held that questions which seem unrelated to the mission of the traffic stop have been routinely upheld, starting with the standard opening license and registration, please and extending, as in Rodriguezs case, to questions about where the driver and the passenger were going and why. Thus, he repeatedly asked, why are those questions part of the mission and the dog sniff is not? But Anders wisely conceded that she was not arguing that a dog sniff should be considered an ordinary incident of most traffic stops. Although no one mentioned Indianapolis v. Edmond, the Courts 2000 decision ruling that routine drug checkpoints employing dog sniffs without suspicion violates the Fourth Amendment, the Justices did not seem ready to accept the routine addition of dog sniffs to valid traffic stops.

(Incidentally, repeated points of some humor were moments in which Justices referred to having been stopped themselves by the police. Chief Justice John Roberts began this thread by commenting during OConnors argument(to laughter) that people have told me what happens when youre stopped. Justice Sonia Sotomayor later began Anders argument by saying and Chief, Ive been stopped, to which Anders quickly responded, so have I. The underlying point being that perhaps one of the most shared experiences in our national culture is being stopped by the police while driving. Or as Justice Stephen Breyer put it, our experience on stops comes from, unfortunately, being the stoppee.)

A second point that appears clear from yesterdays argument is that the Court will not use this case to reconsider Caballes and examine whether a dog sniff should count as a Fourth Amendment search. Justice Sotomayor appeared to raise this fundamental question briefly is that really what the Fourth Amendment should permit? but then quickly suggested that the Court should cabin it to Caballess simultaneous with writing the ticket holding. Thus while the Caballes holding appears to be in some tension with the constitutional theory of search that Justice Antonin Scalia, among others, has recently advanced, this case will not be used as an occasion to discuss it in the text of the opinion, although it may surface in footnotes or separate opinions.

The basic question: Is suspicionless detention for a dog sniff allowed?

Various Justices the Chief Justice and Justices Scalia Kagan in particular appeared to keep driving the case to its basic question: may the police continue to detain someone, without at least reasonable suspicion, when the Fourth Amendment justification for the stop (that is, the traffic violation) has ended? Toward the end of the argument, Justice Kagan bluntly stated that if the government is arguing that Caballes gives you extra leeway to detain people . I think thats just not right. Chief Justice Roberts appeared to agree, rhetorically asking a bit earlier (generating laughter) whether [i]ts only a violation of the Fourth Amendment for two minutes, right? And Justice Scalia later interjected, apparently along the same rhetorical line, it can prolong it a little bit.

At one point, Justice Breyer began a question for Anders with the announcement that I have a great idea. Reading this, I initially imagined everyone was groaning but then Justice Breyers idea appeared to catch on with the rest of the Court (perhaps for want of any other more specific guidance). Justice Breyer appeared to suggest that the Court simply stick to what it has said in past cases: that a stop cannot last longer than is necessary to effectuate the purpose of the stop, or that a stop cannot be unnecessarily prolonged. He explained that these were not new ideas what an original idea I had, he noted with irony and that after we cite these two cases , [we] reverse. QED, goodbye. And then, as Justice Ruth Bader Ginsburg repeatedly noted, the issue whether there actually may have been reasonable suspicion about narcotics on the facts of this case, a point not addressed by the court of appeals, would be open on remand. Although OConnor urged the Court to decide that question itself for judicial economy, no Justice seemed likely to agree.

One final point, about Terry v. Ohio

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Fourth Amendment

Posted: December 19, 2014 at 2:48 pm

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

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

Fourth Amendment cases, citations, and links

Latest Slip Opinions: U.S. Supreme Court (Home) Federal Appellate Courts Opinions First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit Eleventh Circuit D.C. Circuit Foreign Intell.Surv.Ct. FDsys, many district courts, other federal courts, other Military Courts: C.A.A.F., Army, AF, N-M, CG State courts (and some USDC opinions)

Google Scholar Advanced Google Scholar Google search tips LexisWeb LII State Appellate Courts LexisONE free caselaw Findlaw Free Opinions To search Search and Seizure on Lexis.com $

Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General’s site SCOTUSreport Briefs online (but no amicus briefs) Curiae (Yale Law) Oyez Project (NWU) “On the Docket”Medill S.Ct. Monitor: Law.com S.Ct. Com’t’ry: Law.com

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf)

Congressional Research Service: Electronic Communications Privacy Act (2012) Overview of the Electronic Communications Privacy Act (2012) Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy Foundation Electronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

“If it was easy, everybody would be doing it. It isn’t, and they don’t.” Me

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

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Argument preview: First Amendment protections for public employees subpoenaed testimony

Posted: April 26, 2014 at 12:25 pm

On Monday, April 28, the Court will hear oral arguments in Lane v. Franks on the First Amendment protections for a public employee who testifies in court. There are two respondents the previous and current presidents of the college in question and they disagree with each other on the First Amendment question. The Solicitor General will participate in the oral argument.

Background

Central to the resolution of Lane v. Franks is the reach of Garcetti v. Ceballos, the Courts latest pronouncement on the First Amendment rights of public employees. Since Pickering v. Board of Education in 1968, the First Amendment has protected public employees from adverse employment actions when they are speaking as a citizen on a matter of public concern. In Garcetti, the closely divided Court held that, when public employees make statements pursuant to their official duties, such speech is not protected by the First Amendment. The employee in Garcetti was a deputy district attorney in Los Angeles who investigated a law enforcement officers affidavit in support of a search warrant and concluded it was false. The prosecutor wrote a memo recommending the case be dismissed; his supervisors not only vehemently disagreed but also allegedly retaliated against him. In an opinion by Justice Kennedy, the Court reasoned that when an employee is simply performing his or her job duties, there is no relevant analogue to speech by citizens who are not government employees.

In the eight years since Garcetti, courts have varied in their application of the doctrine. For some courts, Garcetti has seemed a broad mandate insulating public employer actions from First Amendment challenge by any employee. Other courts, however, have limited and distinguished Garcetti. The Court has denied certiorari in several closely watched cases, such as Jackler v. Byrne and Bowie v. Maddox, which both involved police officers and reached differing conclusions, arguably producing a circuit split.

The Eleventh Circuits opinion in Lane v. Franks is decidedly in the expansive mandate camp. Indeed, the opinion is a per curiam one, decided without oral argument and intended as non-precedential. In affirming the district judges grant of summary judgment to the public employer, the Eleventh Circuit described Garcetti as further restricting public employees protected speech. Relying on its own circuit precedent, including pre-Garcetti cases, the court of appeals ruled that an employee enjoys no First Amendment protection when the speech was made pursuant to his official duties, including if his speech owes its existence to the employees professional responsibilities and is a product that the employer itself has commissioned or created. This broad category included subpoenaed testimony. However, the Eleventh Circuit recognized, albeit in a footnote, that both the Seventh Circuit and Third Circuit had decided this issue differently, citing Morales v. Jones and Reilly v. City of Atlantic City.

Even as related by the Eleventh Circuit, however, the circumstances giving rise to Lane v. Franks paint a troubling picture of retaliation for a public employees failure to cooperate with political corruption and his resulting testimony. In 2006, soon after Edward Lane became the director of a program for at-risk youth at Central Alabama Community College (CACC), he looked at the programs finances. He discovered that an Alabama state representative, Suzanne Schmitz, was listed on the payroll. He also discovered she had never performed any work for the program. Edward Lane raised his concerns about Schmitz, but he was warned by the CACC president (a predecessor to respondent Steve Franks) and CACCs lawyer that terminating Schmitzs employment could have negative repercussions for both Lane and CACC. Nevertheless, Lane did terminate Suzanne Schmitz after she refused to report to work. Schmitz told another program employee that she planned to get [Lane] back for terminating her and that, if he requested money from the state legislature, she would tell him youre fired. The FBI began investigating Suzanne Schmitz and contacted Edward Lane for information. Lane testified before a federal grand jury and pursuant to a subpoena he testified at Schmitzs two federal criminal trials for mail fraud and fraud involving a program receiving federal funds. Schmitz was ultimately convicted, although a divided Eleventh Circuit panel reversed her convictions on some of the counts.

Lane was terminated after his testimony at the first criminal trial. In January 2009, Franks who had become president of CACC terminated the twenty-nine employees of the at-risk youth program, but soon rescinded the termination of all the employees except Lane and one other. Whether Franks terminated Lane due to Lanes testimony against Schmitz remains unresolved; an essential issue in the Supreme Court is whether it needs to be.

Arguments and analysis

The primary question before the Court is whether the Eleventh Circuit was correct in holding that Lanes testimony was categorically unprotected by the First Amendment, although there is also a secondary issue of whether Franks is entitled to qualified immunity from an award for damages.

There is little support for a straightforward affirmance of the Eleventh Circuit opinion on the First Amendment issue. Lane is not the only one to argue that the Eleventh Circuits categorical exclusion of First Amendment protection for subpoenaed testimony is incorrect: the Solicitor General, representing the United States as an amicus, agrees with him. More unusually, the Alabama attorney general Alabama representing respondent Susan Burrow, the current acting president of CACC also agrees that the Eleventh Circuit was incorrect to conclude that Lanes testimony was categorically unprotected by the First Amendment. Additionally, almost all of the amicus briefs agree with this position, including one from the National Association of Police Organizations, which is perhaps not surprising given that so many of the similar cases involve persons employed in law enforcement.

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Argument preview: First Amendment protections for public employees subpoenaed testimony

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