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Of prosecutors, power, high horses, and the magic mirror.

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Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com In all state-level courthouses where I practice, prosecutors take over a table in the courtroom well within feet of the judge, unless a jury trial is scheduled there. Depending on the courthouse, judge and circumstances, a criminal defense lawyer who tries entering the well before his or her case has been called and while the judge is on the bench -- even if to speak with or pass a note to the prosecutor -- can get verbally zapped by the judge or court security personnel.  Since when are prosecutors and cops (who routinely bypass courthouse security, armed at that) higher beings, respectively, than other lawyers and other witnesses? THEY ARE NOT, and jurors should not get any sense or image otherwise. Jurors, for instance, should see prosecutors and criminal defense lawyers treated the same by courthouse security, judges and courtroom personnel. Jurors should see police required to relinquish their weapons upon entering the courthouse. Jurors should not hear judges refer to prosecutors as "the government", "the state", "the commonwealth", or "the people". They are just lawyers representing their clients.  Prosecutors and police are civil servants with tremendous power, including the power to decide who to arrest or not, what crimes to charge people with, whether to prosecute or not, the settlement and plea offers to make, and the sentences to seek. Their duty is to serve their oaths and the public, and not to let their power go to their heads or to feel they are sitting on some high horse.  A public defender colleague once opined -- unfortunately with more than a few grains of truth as to many, but not all, prosecutors -- that prosecutor are hatched rather than born, in their twenties, with limited real-life experience (hurdles to their empathetic and common sense abilities), a law degree in one hand, and the power of prosecuting. Fortunately, many upstanding prosecutors are out there, ones who do not bark to try to cow criminal defense lawyers (I don't cow, but then there are prosecutors who, wrongfully, speak in cowing terms in front of defense lawyers' clients, without the lawyers' permission for the defendant to hear the prosecutor, which does not square with the ethics rules), who maintain an eye on doing justice and serving the governing law over getting convictions and keeping job security and cozy relations with police and colleagues, who speak as humans, and who can agree to disagree.  Power is intoxicating. Power too frequently gets abused. POWER MUST BE TAMED. Continue reading "Of prosecutors, power, high horses, and the magic mirror. "

Rock Hill Woman Has Wallet Stolen at Grocery Store

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A Rock Hill woman may want to keep closer tabs on her wallet.  The woman stated to officers that a man stole it from her and the $130 inside from a grocery store on Saturday. According to authorities, the woman said she was approached from behind by a man at the grocery store.  The man asked the lady “Do you know Jeremy?”  The woman stopped and turned around to look at the man, which is when she realized he had her wallet. After confronting him about the wallet, the man fled the scene on foot.  The woman stated along with the $130, ...

Vehicle Overturns in Northeast Charlotte, NC After Chase

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  One person received injuries in a crash that occurred in northeast Charlotte at 2 a.m. Saturday.  The crash occurred near the intersection of Rocky River Road and Hood Road. According to officers, they were involved in a high-speed chase with the driver, whom sustained the injuries.  The car flipped several times after the driver lost control and he was taken to Carolina Medical Center for his injuries. Officers have not revealed why they were originally chasing the man, but officers have revealed they will charge the man after his release from the hospital for his injuries.  Any criminal charge is a serious ...

Marriage Fraud: Void For Vagueness?

Injury Crash US95 @ 284

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IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer DO NOT REPLY --------------------------------------------------------------------------- Idaho State Police Regional Communication Center - North 615 W Wilbur Ave Suite A Coeur d'Alene, Idaho 83815 Please direct questions to the appropriate District Offices District 1 (208) 209-8620 Fax (208) 209- 8618 District 2 (208) 799-5150 CASE # L13000163 --------------------- PRESS RELEASE ----------------------------- DATE: 02/18/2013 TIME: 7:12 PM LOCATION: SB US95 @ 284 ASSISTING AGENCIES: Lewis County Sheriff's Office, Winchester QRU, Nez Perce Ambulance VEHICLE #1 ------------- DRIVER Coombes,Edward AGE 78 ADDRESS Winchester, ID INJURIES? - Yes HOSPITAL/LOCATION TAKEN ? St. Joseph's Hospital VEHICLE YEAR 1984 VEHICLE MAKE Toyota VEHICLE MODEL Truck WRECKER Fred's Towing SEATBELTS/HELMET WORN? NO INCIDENT NARRATIVE: Coombes was traveling Southbound on US95 at approximately mile post 284 when he went off the roadway about forty feet down the embankment. He was transported to St. Joseph's Hospital. The Northbound lane was closed intermittently for about twenty minutes to remove the vehicle. The crash remains under investigation. DSP INITIALS AHR -----------------------------------

Neue Wattestäbchen-Panne bei NSU-Ermittlungen?

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Über zwei Jahre fahndete die Polizei nach einer Frau, deren DNA-Spur an über 40 verschiedenen Tatorten gefunden wurde. Dabei waren DNA-Treffer bei völlig unterschiedlichen Delikten gefunden worden. Vom schweren Banküberfällen bis hin zu Einbrüchen in Schulen. Erst nach zwei Jahren stellte sich heraus, dass die von den Ermittlern verwendeten Wattestäbchen mit DNA einer Mitarbeiterin . . . → Read More: Neue Wattestäbchen-Panne bei NSU-Ermittlungen?Ähnliche Beiträge:Freispruch im Mordprozess um MusikmanagerSchrecklicher Fund: Frauenleiche im Karton in Hannover…Festnahmen wegen InsiderhandelsDiebestour durch Hamburg: Mutmaßlicher Einbrecher…Hotelzimmer zum Betrug genutzt

Oscar Pistorius Bail Hearing Underway

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It was media bedlam outside the Pretoria courthouse this morning for Oscar Pistorius's bail hearing. Photos here and here. Only 26 journalists were allowed inside the courtroom. The hearing is... [[ This is a content summary only. Visit my website for full links, other content, and more! ]]

WI - Repeat Drunk Drivers Now Like Sex Offenders in Janesville

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Original ArticleClick the link above to see the video.02/18/2013By Matt MershonJANESVILLE - [name withheld], 35, sits in jail after committing his sixth OWI, and now he's on a registry bringing awareness to the problem of repeat drunk drivers. It's called Project Sober Streets, a program of the Janesville Police department that acts similar to a sex offender registry. After getting five OWI's, an offender is placed on the list for neighbors to see.- Five?  Why not just one? The list was created back in 2010 and now lists 51 offenders just in the city of Janesville. The listing is valid for five years, post the offender's crime because Janesville Police Chief David Moore, says it's likely recent offenders will offend again. The list is in map form on the police department's website, allowing viewers to see if a repeat drunk driver lives right next door.- But where is the list for all other ex-felons?  Like gang members, drug dealers/users, thieves, murderers, etc? "We have a responsibility to our community to allow people to stay safe and Project Sober Streets strips away that anonymity of drunk drivers," said Chief Moore. Project Sober Streets is the first program of its kind in the nation. The website provides links for each offender, that when clicked on provide the offenders address, picture, how many OWI's the person has, whether they're on parole and if their license has been revoked. Sober Streets acts as a shaming tool for offenders, but also acts as a police aid. "Because they know where they live, what they look like, they know they're not supposed to be drinking, in bars, they probably aren't supposed to be driving if they have a revoked driver's license, so neighbors can give us a call if they see something like that occurring so they can assist law enforcement," said Moore. The project goes a step further, making public awareness a priority. Janesville offenders, with four or more offenses, will have a press release made up regarding their crime to be sent out to local television and radio stations. "The exposure of the number and level of arrests that we make really starts that social change," said Moore. "That's what this project and the hard work of our officers are doing; it's the effort that we're making here." Moore says there's a need for social change in a state culture caught up in excessive drinking. The Wisconsin State Legislature helped to beef up state laws when it comes to drunk driving. As of 2007, if a driver is caught in Wisconsin committing their fourth OWI, it counts as a felony charge. However first time offenders still get not much more than a slap on the wrist - a first time offense is just a ordinance violation and not a state law. - Drunk drivers kill a ton of people each day in this country.  Why aren't they on the list after the first offense like the ex-sex offenders list?  And why isn't it a felony? One big factor that's still not a part of Wisconsin's journey to sobriety is the roadside sobriety checkpoint, which supposedly goes against Wisconsin's state constitution. "I know that [sobriety checkpoints] are successful in other states," said Moore. "I think it's all in how [the checkpoints] are setup and if people are being fair with the implementation of it. Do I think it could be of assistance? Yes," said Moore. Moore says the state house and senate are supposed to bring up new drunk driving legislation this year to help beef up the 2007 laws. However, Moore says sobriety checkpoints are still not going to be brought into law.© 2006-2013 | Sex Offender Issues

NJ - 14-Year-Old New Jersey Girl To Register As Sex Offender After Posting Nude Photos On Myspace?

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Original Article02/18/2013By Evan Bleier A 14-year-old New Jersey girl is facing child pornography charges for posting almost 30 nude photos of herself on MySpace. If she is convicted, the girl may have to register as a sex offender. According to The Daily News, this case is just one example of a larger effort by law enforcement officials across the country to crack down on child pornography. Prosecutors now routinely bring charges resulting from kids sending nude photos to one another over cell phones and e-mail. This case may be unique in that it is the first one where charges were filed based on a teen posting photos on a social networking site. The explicit posting was brought to the attention of law enforcement by The National Center for Missing and Exploited Children. MySpace has yet to comment on the matter. The company does have an internal team that is supposed to review image postings but it appears they may have missed this one. After the Passaic County Sherriff’s Office began their investigation, the photos that they discovered online were “very explicit.” The sheriff’s spokesman, Bill Maer, said that girl posted the photos of herself because she wanted her boyfriend to be able to see them. “We consider this case a wake-up call to parents,” Maer said. After officially being charged with possession of child pornography and distribution of child pornography, the girl was released into the custody of her mother. The girl’s name has not been made public because of her age. If the girl is found guilty of the distribution charge, she would have to register with the state as a sex offender because of the provisions set forth by Megan’s Law. She would also be facing up to 17 years in prison. No matter what happens, it sounds as if this case is a first. “I’m not sure I’ve seen a prosecution like this coming out of a social networking site,” said Seth Kreimer, a constitutional law professor at the University of Pennsylvania.© 2006-2013 | Sex Offender Issues

Court disallows cell phone search that occurred six hours after arrest

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Timing they say is everything, even when it comes to warrantless searches. A federal district court echoed similar sentiments when it held that a warrantless search of a defendant’s cell phone six hours after arrest was unconstitutional.  In U.S. v. Dimarco, U.S. Dist. LEXIS 16279 (S.D.N.Y. 2013), the court granted the defendant’s motion to suppress evidence obtained from the warrantless search of his cell phone because of the timing of the search and the insufficient justifications offered by the officer who conducted the search.  The defendant, a felon, was arrested by the NYPD during an illegal gun sale. During the arrest, the defendant’s cell phone, a defaced automatic firearm and a silencer were recovered.  More than six hours after the defendant’s arrest, a special agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives examined the defendant’s cell phone. She scrolled through the pictures, text messages, and phone numbers stored on the phone.  The agent stated that her purpose was to see if there was any evidence on the phone linking the firearm to the defendant. The agent also added that she searched through the phone without a warrant in an attempt to preserve the evidence because she was unsure of the arresting officer's evidence preservation methods.  The warrantless search yielded about four pictures depicting a firearm that was the same color and same shape as the one recovered from the defendant during the arrest.  The agent took pictures of the digital images she came across. At trial, the government opposed the defendant’s motion, arguing that the agent’s search of the phone was acceptable because it fell within the “search incident to arrest exception” to the Fourth Amendment’s warrant requirement.  The court rejected this argument and held that the defendant had a cognizable privacy interest in his cell phone due to the “unique and significant information-storing capabilities of the modern cell phone.”  Given the timing of the search and the justifications offered by the agent, the court further held that the search was unreasonable and did not properly fall within the search incident to arrest exception.  The court focused on the fact that the search occurred more than six hours after the defendant’s arrest and thus was not contemporaneous on the defendant’s arrest. The court also noted that there was not any exigent circumstance that warranted the delay. Also, the court highlighted that the reasons stated by the agent for conducting the search were not in line with the justifications underlying the search incident to arrest exception.  The government was neither able to prove that the cell phone presented a threat to the officers nor that the defendant would have been able to destroy the evidence on his cell phone once it was placed under police authority.  To its likely detriment, the government failed to make a case for the possibility of automatic deletion or remote wipe (see a discussion about this issue in the comments on this earlier post). Making these arguments to the court would have bolstered its case. On the other hand, given that the search occurred more than six hours after the arrest, there was ample time to procure a warrant, which most likely would have been granted.  But as courts dabble deeper in Fourth Amendment issues as it relates to cell phone searches, it would be interesting to see the creative techy arguments attorneys come up with. 

PA - Law change means some will be registered sex offenders for life

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Original Article02/18/2013 Late in 2002, [name withheld] of Hazleton pleaded guilty to molesting a 7-year-old girl and was sentenced to serve one year in prison and register as a sex offender for 10 years.- And anything beyond this is an unconstitutional ex post facto law. His 10 years on the registry would have expired on May 15, but a little more than a year ago the law changed. Now [name withheld] must register as a sex offender for life.- And that is unconstitutional additional punishment!  Imagine, if they can do this, then they can change any law and re-punish you for something you did years ago. "What I can't understand is how can they do this? If you are already under Megan's Law, how can they add to that? That's very upsetting," [name withheld] said.- Because they claim it's regulatory and not punishment, which we all know is a load of BS! The U.S. Constitution bans ex post facto laws - those that take effect after the fact.- And so does the states constitution (section 17). However, in challenges to the sex offender registry under Megan's Law, the U.S. Supreme Court ruled in 2003 that the registry is a regulatory law, not a criminal law, so the ex post facto rule doesn't apply. An update to Megan's Law in Pennsylvania that Gov. Tom Corbett signed on Dec. 20, 2011, changes the registration requirement from 10 years to life for some crimes, including indecent assault of a person less than 13 years of age, to which [name withheld] pleaded guilty. The law now requires offenders to register for 15 years, 25 years or life depending on how their crime is categorized.Some offenders who completed their time on the registry before the law changed must re-register.Others who never had to register when their cases were adjudicated must go on the registry. An Altoona attorney told his local newspaper, the Mirror, in December 2012 that at least three people who accepted pleas keeping them off the register want to negotiate new deals or challenge the new law that requires them to register. The attorney, Thomas M. Dickey, did not return a telephone call asking for an update on those cases. "I'm looking for a sexual offender to challenge this as ex post facto," Shelly Clevenger, assistant professor at Illinois State University, said. Clevenger is studying the retroactive law in Illinois, where sexual offenders face additional restrictions. "We have some strange laws. Sexual offenders can't go to a public park, be on a walking trail, operate a food vehicle. The state is starting to legislate what offenders can and cannot do," she said.Does the law work? In her dissertation for a doctorate in criminology at Indiana University of Pennsylvania in May 2012, Clevenger studied the effectiveness of Megan's Law in Pennsylvania. The law takes its name from Megan Kanka, a 7-year-old girl who was sexually abused and murdered in New Jersey in 1994. "Overall, the results of the current study, coupled with results from previous studies which have examined the effectiveness of Megan's Law, indicate that the legislation has not been effective in reducing and/or preventing rape, sex offenses and/or the murder of children," Clevenger wrote in her dissertation. Since Megan's Law took effect in 1996 in Pennsylvania, the incidences of rape, other sex crimes and murder of a person younger than 13 decreased in urban areas, Clevenger's study found. But in suburban and rural areas, rape and sexual offenses increased, according to her study. Laura Ahearn, executive director of Parents for Megan's Law in Stony Brook, N.Y., said case statistics alone don't measure the effectiveness of the law. Creating a registry for sex offenders made people more aware of sex crimes. That might have caused people to report abuse instead of keeping secrets, Ahearn said. Instances where the registry prevented a crime don't show up on statistics, but parents who consulted the registry have prevented children from playing where an offender lived, she said. "There's plenty of anecdotal evidence," Ahearn said. When Clevenger conducted research for her doctorate, she wasn't expecting crime rates to move in different directions in urban and rural areas. When thinking about the results, she noticed that the drop in urban crimes coincided with a national trend. She reasoned that Megan's Law might have enticed offenders to move from urban areas to suburbs and rural areas. "That was the best theory I could come up with," Clevenger said. Assorted laws in municipalities around the nation set distances from schools, playgrounds or other public places where sex offenders may not live. Clevenger said residence rules and competition for rental housing in cities might have led some sex offenders to move from urban areas to suburban or rural areas.Life on the registry In Hazleton, [name withheld] said he cannot go to events at the Wiltsie Center at the Historic Castle, such as the George Thorogood concert on March 10 that he would like to attend. "We can't even go to church," he said, citing a city law.[name withheld] hasn't had a job since his release from prison, and he said that's common for people on the registry. "Very few of us are able to work. Employers won't hire. They don't want their businesses on the registry," [name withheld] said. He receives disability payments. "I've been trying to get off disability and find a job. I'm never going to be able to. Nobody's going to hire me," [name withheld] said. His criminal record includes a conviction for arson in 1999. Two years ago, workers at the office of state Rep. Tarah Toohil said [name withheld] harassed them. In 2005, [name withheld] was charged with failing to report a change of address to the registry. Megan's Law requires offenders to report address changes within 48 hours. Under current law, if [name withheld] misses that deadline, he can be charged with a felony and sentenced to prison for up to 10 years.- So if it's regulatory and not punishment, then why would he be sentenced to 10 years in prison, more than what his actual crime received (1 year)?  Sounds like additional punishment to us. Four times a year, he must report to a police station to update his information on the registry. Police take a new photo of him, note his address, emails, workplace and whether he is enrolled in a school or college or owns a vehicle or boat. "If I go on vacation, I have to register in that state and tell Pennsylvania police that I'm going there. So I don't go nowhere," [name withheld] said. No one has ever harmed him because he is on the registry. A note on the website for the registry says anyone who intimidates or harasses a person on the registry can be prosecuted or be liable in a civil lawsuit.- Doesn't mean it doesn't happen, it does, all the time, as seen here. Still, [name withheld] remains fearful. "You don't know what vigilante is out there. I don't trust nobody. All my trust is gone," he said.Proactive parents Parents have different fears when trying to protect their children. The registry provides a starting point by listing people who are potential threats because of their past actions.- It only lists some people, ex-sex offenders, not all criminals who have or may harm children, like murderers, gang members, drug dealers, DUI offenders, kidnappers, etc. "There are pedophiles on the registry and people on the registry that you should look out for," Clevenger said. But she said the registry can breed a false sense of security. Parents should realize that not every offender is on the registry, nor are offenders likely to be strangers, Clevenger said. The case of Jerry Sandusky underscores that sexual offenders can avoid detection for years while remaining off the registry. Sandusky, a former assistant football coach at Penn State University, is serving a prison sentence of 30 to 60 years for abusing at least 10 boys during a 20-year span. The registry started to prevent strangers from abducting children, as happened to Megan Kanka. Her death outraged the nation, but the circumstances of her case are relatively rare.Most children are abused by someone whom they know, Clevenger and Ahearn said. "The fact that most crime(s) of this nature (are) not committed by a stranger, but by an intimate, who likely does not appear on the registry, suggests that this legislation was passed without any attention to the facts and realities of sex offenses," Clevenger wrote in her dissertation.- Of course they ignored the facts.  If you go back and review the history, and the many recidivism studies, you will see the law doesn't jive with the facts. Ahearn said Parents for Megan's Law recommends several strategies to reduce child sexual abuse. Her group staffs a 24-hour hotline. Members lead education programs for parents and children from preschool to high school. The group counsels victims.- And now, in New York, they are also being contracted to MONITOR ex-sex offenders! "When the victim is provided services, they are more likely to participate in the criminal justice system and less likely to be revictimized," Ahearn, the director, said.- Do you have facts to back this statement up?  Or you just assume we will believe you?  Like domestically abused men/women who move from bad relationship to another, We're sure your statement is not exactly true, it's just an assumption on your part. She said the group also supports police. Through a new program with Suffolk County, Long Island, N.Y., the group will hire retired police to verify addresses of people on the registry. Ahearn favors having offenders stay on the registry for life and believes they also should have individual monitoring plans. People who comply with the registry requirements have a lower rate of repeating crimes, she said.- Ex-sex offenders in general have low recidivism rates, and there is no study or evidence to back up her assumption. Local laws that keep offenders from living in sight of children reduce temptation to commit further crimes, Ahearn said. The local laws, she said, will vary among communities because of population densities, but shouldn't be so restrictive that courts will overturn them.- Again, her opinion doesn't make it a fact.  Show us a study to prove that Ms. Ahearn!  She's also making the usual blanket statement making it appear as if all ex-sex offenders are out drooling over children, which is false.  Many have not touched a child in any way, yet she makes it appear as if all are child molesters. "You want to avoid a registered sex offender having his backyard against the backyard of a day care or a school," Ahearn said.- What if the ex-sex offenders crime didn't involve a child? She referred to sex offenders as pied pipers who befriend children and parents while setting the stage to abuse a child.- You see, she thinks all ex-sex offenders are child molesters.  That would be like saying all humans are murderers because a couple are.  It's the same logic! "Most child sexual abuse happens with somebody in an existing, trusted relationship," Ahearn said. "That doesn't mean the relationship is known by parents."- What about the ex-sex offenders who had nothing to do with children but their crime was against an adult? Stop assuming all ex-sex offenders are child molesting, pedophile, predators who are lurking behind every corner just waiting to jump on your child, that is absurd!© 2006-2013 | Sex Offender Issues

The Luxury of Defeat

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<font style="FONT-SIZE: 12px" face="Arial">In&nbsp;<a href="http://blog.simplejustice.us/2013/02/08/law-integrity-and-prestige-whoring.aspx#comment-19001958" target="">comments to a recent&nbsp;post</a> here, MIT professor&nbsp;<a href="http://moultonlava.blogspot.com/search?q=HOLE+Story" target="">Barry Kort</a> eloquently expressed some thoughts I found distressing.<br> <br></font> <blockquote><font style="FONT-SIZE: 12px" face="Arial">I lost faith in the System of Justice a long long time ago, partly on the grounds of empirical evidence, and partly on the grounds of analytical theory.<br> <br> As I see it, there are a number of systemic problems that impede our objective of crafting a peaceable society through the Rule ...</font></blockquote>

Yes, You Can Afford to Hire a Lawyer!

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If you’re facing a misdemeanor charge in Virginia or any kind of serious traffic ticket, one question that may be going through your mind is whether or not hiring a lawyer is affordable. You might even question if it would be worth the money. Hiring an attorney does cost money, but I suggest that it’s [...]

The Police Had to Know

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<font style="FONT-SIZE: 12px" face="arial">Robert Ethan Saylor was 24 years of age when he died of asphyxiation. His life probably wasn't an easy one, having Down Syndrome, but it was his. Even so, it was taken from him because a few police officers were just doing their job the same way they always do their job.<br> <br> Via <a href="http://z6mag.com/business/law/crime/man-with-down-syndrome-robert-saylor-suffocated-by-police-for-refusing-to-leave-theater-1618969.html">Z6Mag</a>:</font> <blockquote><font style="FONT-SIZE: 12px"><font size="+0"><font style="FONT-SIZE: 12px" face="Arial">He was at the movies with a health aide the night of the incident. When the movie, ...</font></font></font></blockquote>

E.D.N.C.: Rifle case, a “single purpose container” that revealed its contents, could be searched without warrant

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Defendant had a reasonable expectation of privacy in zipped and closed duffle bags stored by permission at a friend’s house. This was reasonable under our societal understandings. See United States v. Waller, 426 F.3d 828 (6th Cir. 2005). The closed and locked nature of the containers showed his expectation of privacy, and that was enough for him to prove it, even without testifying. A search of the rifle case was valid without a warrant because it was a “single purpose container” that revealed its contents. United States v. Gardner, 2013 U.S. Dist. LEXIS 20527 (E.D. N.C. January 30, 2013): "[A]lthough the plain view doctrine may support the warrantless seizure of a container believed to contain contraband, any subsequent search of its concealed contents must either be accompanied by a search warrant or justified by one of the exceptions to the warrant requirement. United States v. Williams, 41 F.3d 192, 197 (4th Cir. 1994). One such exception is the so-called single-purpose container exception. This doctrine instructs that search of a container seized pursuant to the plain view doctrine is permissible when "the contents of the seized container are a foregone conclusion." Davis, 690 F.3d at 235. The Supreme Court has specifically held that a gun case is such a container. See Arkansas v. Sanders, 442 U.S. 753, 765 n.13 (1979) (specifically noting that the contents of a gun case "can be inferred from [it's] outward appearance" obviating the need for a warrant to search it), overruled on other grounds, California v. Acevedo, 500 U.S. 565 (1991). In this case, the rifle case was found in plain view. As it was a gun case, it falls within the single-purpose container exception. Since the contents of the case were a foregone conclusion, no warrant was needed to search this case found in plain view. Accordingly, the court denies the motion to suppress as to the rifle case.

D.Ore.: FISA’s “significant purpose” requirement satisfies Fourth Amendment

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FISA’s “significant purpose” requirement has been upheld by several circuits under the Fourth Amendment. The PATRIOT Act amendments have also been upheld. This court doesn’t disagree. United States v. Mohamud, 2012 U.S. Dist. LEXIS 186093 (D. Ore. May 7, 2012).* A commercial building that was the subject of an arson was reasonably searched under Tyler and Clifford. The owner’s interest is less in a commercial property than in a home. No effort had been made to secure the property after the fire. United States v. Cromer, 2012 U.S. Dist. LEXIS 186153 (E.D. Mo. July 11, 2012).* 2255 petitioner “supplies a laundry list of criticisms relating to his counsel's pretrial investigation and management of a motion to suppress” that was litigated and lost, and then petitioner pled guilty. That was a waiver. Petitioner claims defense counsel didn’t address the Fourth Amendment in the motion to suppress, but he clearly and effectively did. “Counsel was not ineffective merely because the Court ruled against him on the motion.” Leggette v. United States, 2013 U.S. Dist. LEXIS 21569 (S.D. W.Va. January 7, 2013).*

CA11: Borrower of vehicle can change GPS tracking of his use of vehicle

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Following the analogous United States v. Hernandez, 647 F.3d 216, 219-20 (5th Cir. 2011), defendant has standing to challenge GPS tracking of a vehicle he legitimately borrowed when he was in control, but not otherwise. United States v. Gibson, 2013 U.S. App. LEXIS 3322 (11th Cir. February 14, 2013): Contrary to the assertion of the dissent, we do not hold that only the person with legal ownership has a reasonable expectation of privacy at the time a tracking device is installed on a vehicle. If we had so held, we could not have concluded, as we do, that James Gibson has standing to challenge the installation of the tracking device on the Avalanche when it was in his possession and control. Instead, we conclude that James Gibson has not established that he had a reasonable expectation of privacy in the Avalanche only when it was searched on February 20, 2009, because he was not the legal owner of the Avalanche, he has not established that he had exclusive custody and control of the Avalanche, and he was neither a driver of, nor a passenger in, the Avalanche when it was searched.

E.D.Tenn.: Search of NCIC database not a Fourth Amendment issue

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There is no Fourth Amendment right to protection against searching information in NCIC. A warrant on defendant was basis for his stop. United States v. Cobb, 2012 U.S. Dist. LEXIS 186155 (E.D. Tenn. December 27, 2012): Without providing any legal support for this argument, Defendant Campbell insists that a law enforcement officer must have reasonable suspicion to search the NCIC database for a person's information. Many courts have held that computer database searches are not subject to Fourth Amendment analysis. In fact, "[t]he obvious purpose of maintaining law enforcement databases is to make information, such as the existence of outstanding warrant, readily available to officers carrying out legitimate law enforcement duties." United States v. Ellison, 462 F.3d 557, 562 (6th Cir. 2006) (finding no expectation of privacy in an officer's search of the Law Enforcement Information Network, which revealed an outstanding warrant); see also Eagle v. Morgan, 88 F.3d 620, 628 (8th Cir. 1996) (finding that a NCIC search did not violate the plaintiff's federal constitutional rights); Cincerella v. Egg Harbor Township Police Dept., No. 06-1183 (RBK), 2009 WL 792489, at *3 (D. N.J. Mar. 23, 2009) (stating that "[b]ecause a person has no reasonable expectation of privacy in the information in the NCIC database, searching a person's record through the NCIC database does not violate the federal or state constitution"); United States v. Schmid, No. 3:06-CR-97, 2007 WL 540788, at *5 (E.D. Tenn. Feb. 15, 2007) (finding probable cause after the officer entered the vehicle's license plate number and received a NCIC reporting indicating that the vehicle was associated with the defendants, who had outstanding federal warrants). Therefore, the Court finds that Officer Mattina did not violate the Fourth Amendment when he conducted the computer searches.

Grey Lady has lots of sentencing stories fit to print today

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Seemingly just conincidentally, the New York Times has these three notable sentencing-related pieces in its print edition today. Here are the headlines and the start of the stories in the order they appear in the paper: On the editorial page...

Sixth Circuit Discusses What Makes A Jail Escape A “Crime of Violence”

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The case of  U.S. v. Benji Antonio Stout, involved one man’s escape from prison and how that escape should be classified with regard to a subsequent criminal prosecution. The man, Benji Antonio Stout, was charged with knowingly possessing body armor after having previously been convicted of a crime of violence. The previous crime of violence conviction was Stout’s earlier charge of second-degree escape, a conviction he earned from escaping a county jail. During the escape, Stout climbed a wall in the recreation area of the jail and then crawled through a hole in the top of the fence.Stout and his attorneys argued that the prior conviction did not involve a crime of violence and asked the lower court for a hearing on the matter. The lower court concluded that his escape was a crime of violence given that his escape was purposeful and aggressive and that it created a substantial risk that he would need to use physical force against either guards or members of the public who encountered him during the escape. The fact that he never used such physical force was immaterial. Stout then appealed the case, claiming essentially the same thing. The Sixth Circuit agreed with the decision of the lower court, holding that the escape amounted to a crime of violence. In its ruling, the Court walked through Kentucky’s statutes dealing with the subject of second-degree escape and determined that the type of escape at issue in this case involved “an escape by leaving custody in a secured setting.” This variety of escape involves a purposeful act and requires stealth and presents the possibility of both detection and ensuing confrontation. The Sixth Circuit said that 18 U.S.C. Section 16(b) makes clear that a crime of violence includes any that involves a substantial risk that physical force may be used in the course of committing the offense. Under this definition, the Court says it is clear that the Stout’s escape meets the standard and should be properly deemed a crime of violence. As a result, his conviction and sentence were upheld. In an interesting dissent, Judge Bernice Donald argued that unlike the famous prison escapes mentioned in The Count of Monte Cristo or The Shawshank Redemption, which Donald agrees would qualify as crimes of violence, Stout’s escape was achieved by merely climbing over a wall and crawling through a hole that he was not responsible for creating. Given that Stout never harmed anyone or any property in his escape, Judge Donald believes it is clear that his escape should not be labeled a crime of violence.To read the full opinion, click here. See Our Related Blog Posts: Sentencing Friday For Amish Beard Cutting Case Then To Sixth CircuitSixth Circuit Says For Sentencing Purposes “Relevant Conduct” Must Be Criminal Conduct
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