Issue summaries are from ScotusBlog, which also links to papers: Monday Boyer v. Louisiana: Whether a state’s failure to fund counsel for an indigent defendant for five years as a direct result of the prosecution’s choice to seek the death...
Next week's criminal law/procedure arguments
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Saturday Open Thread
Don't forget to disable Java (not javascript) from your browsers. Here's how. I also uninstalled the program from my computers. Here's why. Here's the Government alert.
A federal...
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SUPREME COURT PUNTS ON “ACTUAL INNOCENCE” ISSUE, AGAIN
What does “actual innocence” actually mean? It means quite simply that an innocent person has been wrongfully convicted for a crime that he/she did not commit. It is a subject-matter we have devoted significant attention to in recent years, given that 302 persons have been exonerated through DNA evidence since 1989. This past year alone we posted three articles trying to tackle and pin down this issue which stalks our criminal justice system like an Ebola virus (here, here, and here). Why the continued interest?
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The Final Hack
Recently a young man, by all accounts a brilliant hacker, took his own life. One of the young man’s friends wrote a beautiful eulogy. He addressed what I would call the ethics of the suicide: Because whatever problems Aaron was facing, killing himself didn’t solve them. Whatever problems Aaron was facing, they will go unsolved forever. If [...]
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DUI Under 21 in Washington State: Spokane Lawyer’s Perspective
In Washington State, the laws surrounding DUI allegations can be confusing if the defendant is under 21 years of age. It is commonly thought that the “legal limit” for DUI for an underage driver is .02. However, this is not quite true. The legal limit for DUI is .08 irrespective of the age of the [...]
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What to do with the rest of one's life?
By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com. Last year, after about two decades I reestablished contact with a lawyer who worked at my first law firm and who started practicing law around seven years before I. We got together for lunch soon after and again a few days ago. Little did I know beforehand how much we had in common about finding meaning in our relatively short lives on this planet. When at that law firm, I did not open up to many colleagues about my personal and political views and yearnings, particularly after hearing a law partner and my supervising senior associate praise Bush I's invasion of Panama months during lunch together -- coupled with praising the "war on drugs" that I have long seen as a war on the Bill of Rights -- after I started there as an associate, and saw yellow ribbons there during Gulf War I without a counterbalance of expressed concern about a war entered much too prematurely by Bush -- and found refuge at lunchtime with the peace demonstrators at the nearby Lafayette Park. I threw up my hands about whether I would get anywhere productive talking politics and social justice with my law firm colleagues -- beyond the fact that I did express my interest in doing pro bono work with the firm. Consequently, without telling my law firm colleagues, I reveled in attending my first conference of the National Organization of Marijuana Laws in 1990, where I shared my feelings of law firm isolation on such topics with some conference attendees; attended a pot freedom rally in Lafayette Park not long after; joined a friend in demonstrating against the Senate's authorizing Gulf War I; joined the second weekend march against Gulf War I; and took out a subscription to High Times in protest against a federal subpoena for the magazine's advertiser records, writing then-attorney general Dick Thornburgh that I had done so under such protest. When I left the firm after two years to join the Maryland Public Defender's Office, I was all bright-eyed and bushy-tailed that I had found the ultimate job where I could feel more comfortable being open with my colleagues about politics and social justice, but found no such enclave there for such discussions. Such like-minded people may have been there, but I did not find them -- maybe in part because I heard few people there speaking of such things that I agreed with, beyond our criminal defense work at hand, so did not seek them out -- although I found many who were truly devoted to providing top-flight service to indigent criminal defendants. Continue reading "What to do with the rest of one's life?"
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Spokane Prostitution Bust: TV News Releases Names of Possible Customers
Last July, various police agencies in Spokane County raided several areas spas as part of an investigation into an alleged prostitution ring in the area. One of the spas was Joe Jean’s Health Spa on Division. This business had been in operation for years. At the time the police stated “we don’t think anyone was [...]
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Stalin's Right. Weller's Wrong.
Rodney Alcala entered guilty pleas last month."Yes," he said (or perhaps his lawyer did in his name, and I have no idea what words were actually used, this was New York, I wasn't there, and I don't know squat about New York law anyway), "I did it. I'm the one who killed Ellen Hover in 1977 and Cornelia Crilley in 1971."Alcala hasn't been wandering the streets in the interim. Within a couple of years of Hover's murder he'd killed again - in California. He's on death row there, has been for years and years. Whether he's ever executed, he'll never get out. And so New York didn't bother. I mean, what was the point? A show trial? He was California's problem. Let him stay California's problem.Which left Sheila Weller understandably unsatisfied. Hover was her cousin though they hadn't seen one another in years. But her cousin. And her killer was out there. Known. Identified. And New York didn't care enough to bring him to justice. To bring Sheila something like peace.Until last month when Rodney Alcala entered guilty pleas.Every victim deserves her own day in court, no matter what else the culprit has been arrested for, no matter how long ago the crime: this is the pure integrity of opening a cold case. That's from "A Cold Case of Cold-Blooded Murder," a column by Sheila in the Times. She added this.LAST year, when I heard that Rodney Alcala was actually going to be extradited to New York to face a grand jury on Ellen’s case, I remembered something a clergyman had said at the first service after 9/11: it was too overwhelming, and unfair to the victims, to think of 3,000 people dead. The best way to honor them was to think that “one person died,” three thousand times. When justice is broken down to individual victims, humanity is restored. And so Sheila Weller makes her case, a moral case, a human case, for insisting that every person murdered, every person raped, every person robbed, every person abused, should be remembered. Because Stalin was absolutely right.A single death is a tragedy. A million deaths is just a statistic.For all of that, though, Weller is wrong.Oh, there's tragedy to burn. Stalin was still right. But the criminal justice system isn't about giving "victims" a day in court. At least, not the sort of victims Weller means.I've explained this before, but it needs to be repeated. The victim of a crime is the state, the body politic. It's why criminal cases have names like State of Ohio v. Some Poor Fuckup or United States of America v. Gee Hesa Shithead or, to bring this back to go, People of New York v. Rodney Alcala. Ellen Hover and Cornelia Crilley, they were victims of Rodney Alcala, and they were victims of his criminal actions, but they aren't the victims of his crimes. And his prosecution doesn't vindicate them in any way. Maybe it was a good thing. Maybe there's some sort of cosmic justice to be had in bringing Alcala before the bar in New York, in taking a ritual plea and imposing a sentence he cannot serve. Maybe in some sense he thereby answers for what he did to those women. So maybe it's an absolute good. I don't know, don't pretend to.As I've said too many times in these posts, I don't know what justice is. I can recognize injustice, but justice - that's in the hands of the gods.Still, if a show trial (and that's all it could be) or show plea as it happened of Rodney Alcala brought Weller some peace after all these years, if it gave her solace, I certainly don't begrudge her that. The families, the friends, the loved ones and loving ones of those who have been murdered, and those themselves who've suffered other violations - they ache, they suffer. They deserve what comfort and sympathy and compassion we can offer.What they don't deserve is a day in the criminal court where their only proper role is witness. Not victim.Last month Rodney Alcala entered guilty pleas. Last week he was sentenced. 25 years to life. A sentence he won't serve because he's going to die (one way or another) in prison in California for his long-ago crimes there. Those years, they're the ritual sentence. Weller calls it "symbolic," and that's not wrong. But there's another part he had to endure. The castigation.At one point, the judge broke down, saying she had never had before her a case with such brutality and hoped she would never again.And with that, and with the symbolic/ritual term of years. Weller has her peace, her satisfaction. Or maybe not. Part of what Jody Lyneé Madeira eloquently conveys in Killing McVeigh: The Death Penalty and the Myth of Closure (reviewed here) is that survivors want acknowledgment, recognition. They want, they need, the bad guy to acknowledge his misdeeds. Not to the world, but to them. Just a fucking sincere apology. Please. The criminal courts aren't the place. They rarely provide the setting. It's not what they're for. And so they leave those victimized by the criminal acts unsatisfied.During the hearing he never once turned to face us, the family members. He simply clutched his orange Department of Corrections jacket, protection against the cold on the short trip from court to van and from van to Rikers.No solace, no acknowledgement, no satisfaction.All I could think was: a coward to the end. Which of course he might be. Or maybe it just wasn't to be. Because much as she might like to think it otherwise, the prosecution of Rodney Alcala wasn't about Ellen Hover or Cornelia Crilley. And it wasn't about Weller or the family and friends of the mudered women.Stalin was right. So was that clergyman speaking after 9/11. The murders of those two are tragedies. They are to be mourned. Their loved ones are entitled to grief, despair, anger, bitterness.But the criminal justice system, whatever its virtues and whatever its defects isn't there to heal them or provide them peace or solace or satisfaction. It can't do that because it isn't about them. We've lied in recent years and told them it is. We've adopted so-call "victim's rights" laws and procedures. We've a whole panoply of stuff designed to give victims of criminal acts a role in the prosecution of people who are alleged to have committed those acts against the state. That's a level of dissonance that simply can't be made to cohere.
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Strafbefehl: Datenbankdiebstahl zwischen Lieferservice-Startups
Der Kampf zwischen den Lieferservice-Anbietern im Internet wird mit harten Bandagen ausgetragen. Die drei großen deutschen Startups Lieferheld, pizza.de und Lieferando beschuldigen sich schon seit Monaten, gegenseitig Cyberangriffe auf die Konkurrenz auszuüben. Nun hat die Staatsanwaltschaft Berlin gegen sieben Führungskräfte von Lieferheld einen Strafbefehl beantragt. Die Führungspersonen des Unternehmens sollen 2010 die Datenbank des . . . → Read More: Strafbefehl: Datenbankdiebstahl zwischen Lieferservice-StartupsÄhnliche Beiträge:Körperverletzung: Strafbefehl gegen Hertha-Profi…Verletzung beim Raustragen: Türsteher wehrt sich…„Im Zweifel für den Angeklagten“Verurteilung wegen Aufforderung zum „Schottern“Doping: Verfahren gegen Team Telekom-Ärzte eingestellt
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Haftlockerung für Beate Zschäpe
Der Generalbundesanwalt klagt Beate Zschäpe unter anderem wegen Beteiligung an Mordes in zehn Fällen an. Sie soll sich als Mittäterin in der Terror-Organisation „Nationalsozialistischer Untergrund“ (NSU) an den Taten beteiligt haben. Die Strafverteidigung bestreitet dagegen den wesentlichen Tatbeitrag, der für die Mittäterschaft zwingend notwendig wäre. Sie hätte den beiden verstorbenen Mitgliedern der NSU lediglich . . . → Read More: Haftlockerung für Beate ZschäpeÄhnliche Beiträge:NSU: Die Bundesanwaltschaft erhebt Anklage gegen Beate…NSU-Morde: Zeugin will Zschäpe in Tatort-Nähe gesehen…„Hallo hier ist Beate Zschäpe und ich möchte mich…Keine KronzeugenregelungVerjährung „schützt“ Unterstützer der NSU vor Anklage
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Aaron Swartz Post-Mortem: So Now You Know
<font style="FONT-SIZE: 12px" face="arial">It would be outrageously presumptuous for me to suggest anything about why Hacktivist Aaron Swartz too his life, but <a href=
"http://unhandled.com/2013/01/12/the-truth-about-aaron-swartzs-crime/">others</a> who <a href="http://lessig.tumblr.com/post/40347463044/prosecutor-as-bully">knew him</a>, including <a href=
"http://allthingsd.com/20130112/family-of-hacktivist-aaron-swartz-condemns-mit-states-attorney-for-contributing-to-his-suicide/">his family</a>, have <a href=
"http://blogs.law.harvard.edu/philg/2013/01/12/aaron-swartz/">offered</a> insight, and it would be wrong to ignore it.<br>
<br>
His <a href="http://rememberaaronsw.tumblr.com/post/40372208044/official-statement-from-the-family-and-partner-of-aaron">family explains</a> the pressures that drove him to this final act:<br>
<br></font>
<blockquote><font style="FONT-SIZE: 12px" face="arial">Aaron’s death is not ...</font></blockquote>
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Sonia Sotomayor On Being A Lawyer
Q: Would you describe yourself as being tough on the bench? A: Demanding. Q: You’re demanding. A: Tough, yes, in the sense that I want lawyers to be prepared. I think that being a lawyer is one of the best jobs in the whole wide world. Q: Really? A: You want to know why? Because [...]
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New Law Review Article: "Power Down: Tasers, The Fourth Amendment, and Police Accountability in the Fourth Circuit"
Power Down: Tasers, The Fourth Amendment, and Police Accountability in the Fourth Circuit by Ian A. Mance, 91 N.C. L. Rev. (forthcoming 2013):
This Comment focuses its attention on the phenomenon of taser abuse in the states that comprise the Fourth Circuit: Maryland, North Carolina, South Carolina, Virginia, and West Virginia. It assesses the state of the law as presented to genuine victims of police abuse who wish to vindicate their right to be free of excessive force under 42 U.S.C. § 1983, the federal statute under which plaintiffs can seek relief for violations of their constitutional rights by state actors.
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Public Defender Pleads to Lesser Crime in Shoplifting Case
A public defense attorney in nearby Loudoun, VA has taken a plea deal that will allow her to avoid any serious sanctions following her conviction for shoplifting an energy drink from a local store. ![meanbean.jpg]()
Rather than be faced with a theft charge, she has pleaded guilty to trespassing.
Our D.C. defense attorneys recognize that while shoplifting or even a charge of theft 2 are mid-level misdemeanors - meaning you aren't entitled to a court-appointed lawyer if you're arrested solely for either - it's usually a good idea to hire one. Our attorneys have not only worked to have many such charges dropped outright for lack of evidence or other reasons, we've also been able to negotiate plea deals that have resulted in the dismissal of charges with completion of a diversion program or conceding a guilty plea, but only to a lesser charge - one less likely to greatly affect your future.
That last scenario is exactly what happened in this case. The defendant - a public defender herself - was accused of slipping $3 energy drink into her purse while at a store and attempting to leave without paying for it as she went through the checkout line. It was actually the second time she had reportedly been accused of retail theft at this same location, though she was not charged in the earlier incident.
The case prompted baffled editorials from local columnists, who wondered why someone paid an annual salary of $127,000 would need to steal a cheap drink.
Nonetheless, a conviction on a theft charge could have meant serious consequences for this woman because it is considered a crime of moral turpitude. A conviction for a crime of moral turpitude can sometimes be used against you by your employer or immigration officials, if you're not a citizen. It also could have resulted in the loss of her license to practice law.
Having the charge successfully reduced to trespassing means she is less likely to suffer any major disciplinary action either from her employer or from the Bar Association. Her immediate supervisor has gone on record with the Washington Post to say the attorney is doing an excellent job and they are happy to have her on their team.
The actual charge of shoplifting is technically on the books in D.C. Criminal Code 22-3213, carrying a fine of up to $300 and three months in jail. However, incidents of retail theft are most often charged as second-degree theft. It's still a misdemeanor, but it carries a possible jail term of up to a year. A conviction for trespassing carries up to six months of incarceration.
(While no attorney can promise any particular outcome in a criminal case, most people charged with these offenses who work closely with an experienced defense lawyer end up serving little if any jail time.)
In the end, this defendant was not given any jail time, but was ordered to pay a $500 fine ($500 less than the maximum), as well as $84 in court costs. The prosecutor in the case later said his office, which hadn't been seeking a stiff penalty to begin with, was satisfied with the outcome. The defense lawyer was able to convince them that changing the actual charge wasn't going to impact the ultimate outcome of the case, but given lack of criminal history and her role as a public servant, it probably helped save her job.
Again, you won't be appointed a free defense lawyer in a shoplifting case, but it's almost always worthwhile to invest in one.
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Rather than be faced with a theft charge, she has pleaded guilty to trespassing.
Our D.C. defense attorneys recognize that while shoplifting or even a charge of theft 2 are mid-level misdemeanors - meaning you aren't entitled to a court-appointed lawyer if you're arrested solely for either - it's usually a good idea to hire one. Our attorneys have not only worked to have many such charges dropped outright for lack of evidence or other reasons, we've also been able to negotiate plea deals that have resulted in the dismissal of charges with completion of a diversion program or conceding a guilty plea, but only to a lesser charge - one less likely to greatly affect your future.
That last scenario is exactly what happened in this case. The defendant - a public defender herself - was accused of slipping $3 energy drink into her purse while at a store and attempting to leave without paying for it as she went through the checkout line. It was actually the second time she had reportedly been accused of retail theft at this same location, though she was not charged in the earlier incident.
The case prompted baffled editorials from local columnists, who wondered why someone paid an annual salary of $127,000 would need to steal a cheap drink.
Nonetheless, a conviction on a theft charge could have meant serious consequences for this woman because it is considered a crime of moral turpitude. A conviction for a crime of moral turpitude can sometimes be used against you by your employer or immigration officials, if you're not a citizen. It also could have resulted in the loss of her license to practice law.
Having the charge successfully reduced to trespassing means she is less likely to suffer any major disciplinary action either from her employer or from the Bar Association. Her immediate supervisor has gone on record with the Washington Post to say the attorney is doing an excellent job and they are happy to have her on their team.
The actual charge of shoplifting is technically on the books in D.C. Criminal Code 22-3213, carrying a fine of up to $300 and three months in jail. However, incidents of retail theft are most often charged as second-degree theft. It's still a misdemeanor, but it carries a possible jail term of up to a year. A conviction for trespassing carries up to six months of incarceration.
(While no attorney can promise any particular outcome in a criminal case, most people charged with these offenses who work closely with an experienced defense lawyer end up serving little if any jail time.)
In the end, this defendant was not given any jail time, but was ordered to pay a $500 fine ($500 less than the maximum), as well as $84 in court costs. The prosecutor in the case later said his office, which hadn't been seeking a stiff penalty to begin with, was satisfied with the outcome. The defense lawyer was able to convince them that changing the actual charge wasn't going to impact the ultimate outcome of the case, but given lack of criminal history and her role as a public servant, it probably helped save her job.
Again, you won't be appointed a free defense lawyer in a shoplifting case, but it's almost always worthwhile to invest in one.
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D.Minn.: Second search under same warrant hours later was valid
Defendant’s house was searched under a state search warrant starting at 9:05 pm. Officers came back and searched again early the next morning. In these circumstances, the second search was a continuation of the first. United States v. Pape, 2012 U.S. Dist. LEXIS 184063 (D. Minn. December 10, 2012):
The Eighth Circuit, citing the Sixth Circuit, has previously explained that "entries onto premises on successive days pursuant to a single warrant" are not necessarily illegal when "[t]he authority of the warrant ha[s] not expired and ... the return search [is] not beyond the scope of the Fourth Amendment." See United States v. Carter, 854 F.2d 1102, 1107 (8th Cir. 1988) (citing United States v. Bowling, 351 F.2d 236, 241 (6th Cir. 1965), ...). In Carter, the police had executed a search of the defendant's hotel room pursuant to a valid search warrant obtained based on information police had gathered from an earlier, consented entry into the hotel room. 854 F.2d at 1104-1105. After one of the officers presented the defendant with an inventory list of the items seized from the hotel room, the defendant informed the officer that "$4,000 hidden under the mattress had been omitted." Id. at 1105. The police then returned to the hotel and seized the cash. Id. In rejecting the defendant's challenge to the "return search," the court explained that "the question [was] not whether there were two entries pursuant to the warrant, but rather, whether the second search was a continuation of the first," and found the search proper because "the warrant listed money as an item to be recovered and the search took place several hours later." Id. at 1107 (citing United States v. Huslage, 480 F. Supp. 870, 875 (W.D. Pa. 1979)).
In Bowling, upon which the Eighth Circuit relied in Carter, the police had executed a search warrant at approximately 6:15 p.m. on April 2, 1963, as part of which they recorded serial numbers for numerous items but seized only one. 351 F.2d at 240. After having cross-referencing the serial numbers acquired from the defendant's residence with police lists of stolen equipment, the officers returned the next morning with a truck and seized and removed other machines from the defendant's basement. Id. In rejecting the defendant's argument that the search was improper, the court explained that "certainly the mere fact that the time of [the search warrant's] first use was promptly noted thereon did not vitiate its powers as of the following morning." Id. at 241.
Similarly, in Huslage, upon which the Eighth Circuit also relied in Carter, the police conducted an initial search of the defendant's vehicle at approximately 4:10 a.m. on July 9, 1979, during which they did not seize any evidence. Huslage, 480 F. Supp. at 874. Although the warrant, by its terms, had to be served by 5:00 a.m., at approximately 10:00 a.m. that morning, after the victim of the crime the defendant was charged with provided that she had seen the pistol in the defendant's vehicle, the police conducted a second search of the vehicle. Id. "Aided by natural light," the police found the pistol they were seeking in the vehicle. Id. In rejecting the defendant's argument that the search violated his Fourth Amendment rights, even though the Court found that the warrant according to its terms had expired, the court held that
the fact that the police made two entries into the [vehicle] pursuant to a single search warrant does not require a finding that the police violated the Fourth Amendment rights of the defendants. The question is not whether the police went through the door of the vehicle twice, but rather, whether the search conducted at 10:00 A.M. was a continuation of the search that had been initiated at 4:10 A.M.
Id. at 875 (citing Bowling, 351 F.2d at 241). It emphasized that the second search was made within nine hours of when the search warrant was issued and within twelve hours after the police had arrested the defendants and "[t]he probable cause supporting the search had not become stale." Id.
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Because The Victim Deserves
<font style="FONT-SIZE: 12px" face="Arial">In an op-ed in the <a href="http://www.nytimes.com/2013/01/13/opinion/sunday/a-cold-case-of-cold-blooded-murder.html?hp&_r=0" target="">New York
Times</a>, Sheila Weller writes of the loss of her cousin, Ellen Hover, in 1977.</font>
<blockquote>
<p itemprop="articleBody"><font style="FONT-SIZE: 12px" face="Arial">ON a hot July day in 1977, one of New York’s ugliest summers, my 23-year-old cousin, Ellen Hover, left her Third Avenue apartment.
She had an appointment with a young photographer who had asked to take pictures of her. His name, he’d told her, was John Berger.<br>
<br></font></p>
...</blockquote>
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Harrison v. U.S.: Reasonable Doubt Through Too Many “Interconnected Inferences”
Yes, they record your personal phone calls from prison. Yes, they have someone listen to those tapes. And, yes, they sometimes use something they find in those tapes against you. There is usually a voice recording that periodically reminds both parties — the inmate and the family member or friend he is speaking with – [...]
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PA: Suspicion drug deal was about to occur didn't add to RS
Defendant stopped and talked to a couple that police saw pacing on a parking lot. Police stopped him, and he was nervous. It was not reasonable suspicion that a drug deal was going to go down. Commonwealth v. Walton, 2013 PA Super 3, 2013 Pa. Super. LEXIS 3 (January 8, 2013).*
The stop was not overlong and unreasonable because reasonable suspicion developed. [The court uses unfortunate language that suggests the burden is on defendant: “Campbell has not provided sufficient evidence to support the conclusion that the duration of the stop was excessive.” The burden is on the government, and the appellate review is de novo. What is his burden on appeal? To show legal error.] United States v. Campbell, 2013 U.S. App. LEXIS 696, 2013 FED App. 0049N (6th Cir. January 9, 2013).*
The conversation after defendant’s papers were returned to him was consensual, and there was nothing that indicated that the conversation couldn’t be terminated. United States v. Chung Dam, 2012 U.S. Dist. LEXIS 184139 (M.D. Fla. November 16, 2012).*
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Roundup: Big Brother online, little brother on your cell phone
A number of recent items related to electronic privacy, or the lack thereof, merit Grits readers' attention: What cops get from Facebook Wanna know what information Facebook will give up about you if any law enforcement agency sends them a subpoena? See here.Big Brother is a Democrat, for todayThe Obama Administration last year succeeded in authorizing a version of "Total Information Awareness" where the Bush Administration failed, the Wall Street Journal reported last month. Apparently the key was to do it behind closed doors and not to tell the press until months after the deed was done.Your cell phone may be spying on youThe government isn't the only one who can invade your privacy. This company and others are marketing software which can be covertly downloaded onto a smart phone "through an untraceable installation process that takes less than 2 minutes" that lets you "listen in on live conversations in real-time and without the risk of being detected or traced!" Even more concerning, it contains a feature that "allows you to activate the target smartphone device’s integrated microphone through an SMS command, enabling you to record the conversation taking place in the surrounding environment." In other words, it can listen to your face-to-face conversations if the phone is in the same room with you. Marketed to helicopter parents and spouses suspecting cheaters, but also to employers, the technology is both creepy and cheap.Congress sucks: Stored communications editionA quarter-century old law allows the government to access your email if it's stored on a third-party server for longer than 180 days, and during the week between Christmas and the New Year, Congress gutted provisions in its reauthorization that would have updated the law to protect privacy during the era of cloud computing. If you use Gmail or other services to store your old emails, the government can access them, content and all, with only a subpoena. FWIW, Article 18.21, Section 4 of Texas' Code of Criminal Procedure gives state and local law enforcement in Texas similar access to "stored communications" older than 180 days, tracking the federal law.
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OR: Consent after illegal police conduct and purging the taint explained
Oregon explains consent after illegal police conduct and purging the taint. State v. Hemenway, 2013 Ore. LEXIS 3 (January 10, 2013)
Properly considered, then, a voluntary consent to search that is prompted by an officer's request can be sufficient to purge the taint of illegal police conduct. Whether the voluntary consent is sufficient to purge the taint — or whether the police exploited their illegal conduct to obtain consent — will depend on the totality of the circumstances. We reject the state's position that voluntary consent during an unlawful stop necessarily breaks the causal chain and makes the evidence admissible, as we do defendant's argument that such consent will rarely, if ever, break the causal chain.
In an effort to clarify this complicated area of law, we again review the basic principles at issue. As noted, the overarching inquiry is whether the evidence that the state seeks to introduce must be suppressed because that evidence was obtained in violation of the defendant's constitutional rights. In the context of Hall and this case, where an illegal stop preceded a consent to search, that inquiry has two prongs. First, the court must assess whether the consent was voluntary. If the consent to search was not voluntary, then the evidence must be suppressed, because only a voluntary consent to search provides an exception in this context to the warrant requirement of Article I, section 9. Second, even if the consent was voluntary, the court must address whether the police exploited their prior illegal conduct to obtain the evidence. Evidence may be tainted directly by the illegal police conduct, if, for example, the police illegally stop a vehicle, allowing them to view contraband that otherwise would not have been visible, and then request the driver's consent to search the vehicle as a result of what they saw. The consent in that example does not "purge the taint" of the prior illegal stop, because the evidence has a direct causal connection to the illegal conduct.
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More Pages to Explore .....
