Forgot your password?
typodupeerror

Comment: Re:Good-faith exception to the exclusionary rule (Score 5, Informative) 107

by greggem (#42336823) Attached to: Newest Gov't Tracking Threat: Cell-Site Data Without a Warrant

This is not actually true. If the warrant in your example was obtained based on a deliberate deception it would be invalid and the evidence from the search would not come in. If what you suggest was the case, there would be basically no point to the exclusionary rule since the police could freely lie in affidavits and have the warrants (or at least the evidence obtained from their execution) upheld.

The good faith exception is easy to apply if you consider the purpose of the exclusionary rule. The exclusionary rule exists to deter unlawful police conduct.

Consider the situation where the police request a warrant in good faith, and it is issued by a detached and neutral magistrate. On appeal, the affidavit is found to lack probable cause. Should the evidence be suppressed? The Supreme Court says no, because the police acted in complete good faith. There was no misconduct involved and applying the exclusionary rule in situations like this would not further its purpose since there is no unlawful conduct to deter. This is the proper application of the good faith exception.

By contrast, excluding evidence obtained by lying in an affidavit for a warrant would have a very pronounced effect on reducing unlawful behavior by the police. Thus, no good faith exception for your dishonest detective. (Actually, he may be looking at a perjury prosecution.)

Law school ruined Law and Order for me. My wife can't stand me explaining why everything on the show is wrong. Also she hates it when I yell "Objection!!" at the screen every few minutes during the second half of the show.

Comment: Re:TFS is lacking (Score 1) 420

by greggem (#41843257) Attached to: Federal Judge Approves Warrantless, Covert Video Surveillance

"What lawyers call "curtilage," on the other hand, meaning the land immediately surrounding a residence, still has greater privacy protections."

From the SCOTUS decision in United States v. Dunn, a case where the DEA overstepped it limitations when searching--without a warrant--the premises of a suspected drug manufacturer ( http://en.wikipedia.org/wiki/United_States_v._Dunn ):

>

Dunn lost that case. And before anyone goes trying to put up a fence to convert open fields into curtilage, check out how far Dunn went to try to protect his property:

SCOTUS wrote:

Respondent's ranch comprised approximately 198 acres and was completely encircled by a perimeter fence. The property also contained several interior fences, constructed mainly of posts and multiple strands of barbed wire. The ranch residence was situated 1/2 mile from a public road. A fence encircled the residence and a nearby small greenhouse. Two barns were located approximately 50 yards from this fence. The front of the larger of the two barns was enclosed by a wooden fence and had an open overhang. Locked, waist-high gates barred entry into the barn proper, and netting material stretched from the ceiling to the top of the wooden gates.

On the evening of November 5, 1980, law enforcement officials made a warrantless entry onto respondent's ranch property. A DEA agent accompanied by an officer from the Houston Police Department crossed over the perimeter fence and one interior fence. Standing approximately midway between the residence and the barns, the DEA agent smelled what he believed to be phenylacetic acid, the odor coming from [***333] the direction of the barns. The officers approached the smaller of the barns -- crossing over a barbed wire fence -- and, looking [**1138] into the barn, observed only empty boxes. The officers then proceeded to the larger barn, crossing another [*298] barbed wire fence as well as a wooden fence that enclosed the front portion of the barn. The officers walked under the barn's overhang to the locked wooden gates and, shining a flashlight through the netting on top of the gates, peered into the barn. They observed what the DEA agent thought to be a phenylacetone laboratory. The officers did not enter the barn. 1 At this point the officers departed from respondent's property, but entered it twice more on November 6 to confirm the presence of the phenylacetone laboratory.

These actions were all held to be lawful in the case you cited.

Comment: Re:TFS is lacking (Score 1) 420

by greggem (#41842833) Attached to: Federal Judge Approves Warrantless, Covert Video Surveillance

It is trespassing, and the criminal defendant could sue the cops. However, for something like this you could only get nominal damages in an amount barely enough to buy lunch. Unless perhaps they destroyed something valuable in the process of driving across his field and installing the cameras.

In some (most? all?) trespassing is a criminal offense, so you wouldn't sue for damages you'd press criminal charges. Well, if they damaged something you could also sue for damages. It's a misdemeanor crime, of course, but it has always seemed to me that any evidence collected as the result of criminal action should be inadmissible. Apparently not.

Trespassing is both a criminal offense and a civil tort. You could both press criminal charges (actually the prosecutor decides whether to do that) and file a civil suit. v1 is spot on with his comment about damages. Good luck with talking the prosecutor into pressing charges against the police officers, though.

The elements of trespassing are not necessarily the same for the civil tort and the criminal charge. It will vary from state to state, but in many jurisdictions posting a sign at the edge of your property is not sufficient as a warning to merit criminal charges. You have to be told by someone with the legal authority to do so (e.g. owner or his representative) to leave and not return. The police usually have a form to document this if you call them. I do know of one jurisdiction where signs can be adequate, but they have to be posted at certain intervals around the edge of the property.

It's pretty well-settled law that open fields are not within the 4th amendment warrant requirement. Additionally you can't enhance your (legal) expectation of privacy by posting signs or building fences.

Comment: Re:The power to tax includes (Score 1) 46

by greggem (#41136373) Attached to: Aussie Tax Office Wants Phone Tapping, Data Retention

Remind me to thank the magical gnomes who created the interstate highway system in the U.S. It sure does make getting around easier.

Don't forget to thank the magical gnomes who created the interstate highway syste... Wait a second! Those gnomes were paid by their leprechaun overseers with gold mined by hardworking dwarves like me. They show up, take our gold by force, hire some gnomes on our dime and that's productive? That's (drum-roll, please) highway robbery!

Comment: Re:Federal Supremacy (Score 1) 65

by greggem (#41115377) Attached to: Location Privacy Act Approved By California Legislature

>>>One example in the search and seizure area is routine traffic stops. SCOTUS says you can arrest someone for not wearing a seatbelt and haul their butt to jail.

Yeah but they also ruled any evidence found is not admissable, because the officer had no cause to randly pull-over your car and impede your travel. He can ticket you for the safety violation of not wearing a belt, but if he finds drugs then he is exceeding the purpose of the stop & the evidence must be thrown out.

Who said it was random? You weren't wearing a seat belt. If he can arrest you he can search your car. There are a couple of different exceptions that allow this search without a warrant. One is called the "search incident to arrest." This allows the officer to search your person and your immediate vicinity when you are arrested. It is well established that this includes your car (though probably not the trunk).

Of course if you are arrested for that seat belt ticket, the officer isn't required to leave your car there on the road. It will be towed and impounded. For defense against claims of damage or theft from the vehicle, it may be subject to an inventory search. This search must be done according to a department policy, but they can definitely look in any containers in the vehicle (including the trunk). Any evidence found during a lawful inventory search is most definitely not going to be thrown out.

This is why if you get pulled-over by DHS along one of their internal checkpoints, you are not required to comply with their demands to see inside your car or trunk. No warrant == no right to search your person or effects.

There are numerous exceptions to the search warrant requirement. One is called the "automobile exception." If you are stopped for any legal reason and the officer develops probable cause to believe there is evidence or contraband in your vehicle (e.g. you reek of recently burned marijuana), they are not required to hold you on the side of the road and get a warrant prior to searching.

Comment: Re:Federal Supremacy (Score 1) 65

by greggem (#41114527) Attached to: Location Privacy Act Approved By California Legislature

Local (i.e. non-federal) law enforcement would be required to comply with the state law.

Basically, the Federal Constitution provides the minimum rights afforded to everyone in every state. No state can have a law which would reduce those rights. The states are entirely free to give people more rights and freedoms, however. Many States do just that. In some states there are provisions of the state constitution which are word-for-word copies of parts of the federal constitution, but which have been interpreted differently by the state courts.

One example in the search and seizure area is routine traffic stops. SCOTUS says you can arrest someone for not wearing a seatbelt and haul their butt to jail. The Nevada Supreme Court says: that may be a "reasonable" seizure within the meaning of the federal constitution, but it sure as hell isn't "reasonable" as we interpret our state constitution's prohibition on unreasonable searches and seizures. The evidence you found during the subsequent inventory of the defendant's car is therefore excluded.

Another way to look at it is that the laws aren't really in conflict. The federal rule excludes evidence under certain circumstances. The state law excludes evidence under those circumstances and other additional circumstances. The federal rule isn't about what evidence is allowed in; it's about when it must be kept out.

Comment: Re:Why is this desirable? (Score 1) 131

by greggem (#41110963) Attached to: Ex-Lulzsec-Head Sabu Rewarded Six-Month Sentencing Delay

Usually you want to delay your sentencing so you can show the judge what a good boy you're being. It's more difficult for the State to argue that you need to be imprisoned because you are dangerous if you've been behaving yourself for the year or so that the case was pending.

It's a better argument if you're out on bail. I'm not sure what Sabu's custody status is.

Comment: Re:The punch line (Score 1) 278

by greggem (#40714923) Attached to: Apple Must Publicly Post That Samsung Did Not Copy iPad

The punch line is in TFA (emphasis added):

Birss said in his July 9 ruling that Samsung’s tablets were unlikely to be confused with the iPad because they are “not as cool.” He declined today to grant Samsung’s bid for an injunction blocking Apple from making public statements that the Galaxy infringed its design rights.

“They are entitled to their opinion,” he said.

It looks like they have to run the ads, but they can still say Samsung copied them.

Unlike in copyright law, where independent creation is a complete defense, it is possible to "infringe...design rights" of a patent without any copying whatsoever. If you use technology disclosed in a patent (even a ridiculous design patent) without a license you have infringed upon the patent holder's rights. It is irrelevant whether you knew it existed or not. Copying, on the other hand, is a deliberate act of duplicating something that you know exists.

It is therefore possible that Samsung infringed Apples design rights without "copying" Apple's design.

It's just stupid.

Comment: Re:Contempt of Court? (Score 4, Informative) 184

This is correct. I used to be a court reporter. The section regarding "a person who transcribes recorded testimony" exists to cover the independent contractors who take audio recordings from the court reporter and do all the boring typing stuff for us. We have to proofread it against the audio again when we get it back before it can be certified as an official transcript.

The contention that a witness can't take notes or can't share them afterwards is pretty remarkable.

Comment: Re:Violates the Data Treaties with Canada and the (Score 1) 157

by greggem (#40641931) Attached to: ISP 'Six Strikes' Plan Delayed

Too bad this violates the Data Treaties that the US signed with both the EU and Canada over Data Privacy and Copyright.

This is interesting. Does anyone know the names of these treaties?

I'll give you a hint. They have the word Data in them.

Yeah, data is kind of a common word on the Internet. :-) Do you know what year they were ratified or when the enabling legislation might have been passed? I'm just curious to read them.

If at first you don't succeed, you must be a programmer.

Working...