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 #: L12000971
--------------------- PRESS RELEASE -----------------------------
DATE: 12/18/12 TIME: 5:26 PM LOCATION: WB US12 at milepost 52, East of Orofino
ASSISTING AGENCIES: Clearwater County Sheriff Office, Orofino Police Department
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VEHICLE #1
DRIVER: Edward D Killins
AGE: 54
ADDRESS: Orofino, ID
INJURIES?: Yes
HOSPITAL TAKEN?: Clearwater Valley Hospital, life-flighted to St. Josephs
VEHICLE YEAR: 2005
VEHICLE MAKE: Chevy VEHICLE MODEL: Silverado Pickup
WRECKER: Orofino Body
SEATBELTS WORN?: Unknown
PASSENGER(S): Unknown Male
ADDRESS: Unknown
INJURIES?: Yes
HOSPITAL TAKEN?: Clearwater Valley Hospital
-------------
INCIDENT NARRATIVE: Killins was eastbound on US12 when he crossed the centerline and went off the left shoulder. The vehicle rolled down an embankment striking large boulders all the way down. The crash is still under investigation.
DSP INITIALS ksw
-----------------------------------
Injury Crash US12 @ milepost 52, east of Orofino
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Steuerhinterziehung: Deutscher YouPorn-Chef in Belgien festgenommen
Ein Teil der Porno-Szene im Internet ist seit einigen Jahren in der festen Hand eines Deutschen. Der 34-Jährige unterhält neben YouPorn auch weitere große Plattformen wie Pornhub, MyDirtyHobby oder Brazzers. Nun hat der Mann aber Probleme mit der Staatsanwaltschaft bekommen. Die Behörden werfen dem Unternehmer vor, dass er Steuerhinterziehung begangen haben soll. Die Behörden . . . → Read More: Steuerhinterziehung: Deutscher YouPorn-Chef in Belgien festgenommen
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IN REMEMBRANCE
UPDATE: Lots of new names added after the original post. At this time of year thoughts turn to those who have been here before us and have since departed. Many of those who graced our courthouse and this earth planted seeds which grew into giant oak trees. These are the men and women who made the practice of law in Dade County a great thing. So in no particular order, except for the first, we remember Judges and attorneys we knew. Please email or post your remembrances and we will put those names on the front of the blog. Ed Cowart- the first among many. Rob Pinero. Manny Crespo. Gerald Klein. Phil Knight. Sy Gaer. Ned Davis. Wilkie Ferguson. Henry Oppenborn. Julio Jimenez. Henry Leyte-Vidal. Fred Nesbitt. Ellen Morphonios. Arthur Snyder. Stanley Goldstein (founder of the first drug court in the nation!). Calvin Mapp. Tom Carney. George Orr. Gemma Cosentino. Greg Wenzel, who died in the line of duty of serving his country and was a former dade PD. Harold Solomon. Sydney Shapiro. Richard Hickey. Richard Gerstein. Paul Mendelson. Margarita Esquiroz. Dixie Chastain. Mattie Belle Davis. Norman Roettger. David Dyer. Maxine Cohen-Lando. Michelle Block. Ed Newbold. John Tanksley. Morton Perry (a real gem of a man) C.P. Rubiera- who loved to mentor young attorneys, and one of our favourites: Dominick Koo. Joe Durant. Gabe Martin. Bill Meadows- another gem of a man. Harry Prebish (founded FACDL Miami Chapter), Carol Guralnick- somebody should write a book about her, Gino Negretti (the cuban rocket), Paul Pollack. Rodney Thaxton- amazing PD, FACDL gives an award in his name. Carl Vizzi. These names are in no particular order and we are sure we have forgotten many who deserve to be remembered. Think of this as a start. Please email us or post a name and we will put it up. See You In Court. Site Feed
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"Criminals Don't Like Being Talked To"
<font style="FONT-SIZE: 12px" face="arial">So says the Mayor of Paragould, Arkansas, Mike Gaskill, speaking of the <a href="http://current.com/1nnrokc">recent increase in violent
crime</a> in his town. After thinking long and hard, he's <a href="http://www.paragoulddailypress.com/articles/2012/12/15/top_story/doc50cbbb312e241511092932.txt">come up with a
solution</a>.<br>
<br></font>
<blockquote><font style="FONT-SIZE: 12px" face="arial">In response to a recent increase in crime, Paragould Mayor Mike Gaskill and Police Chief Todd Stovall offered residents at a town hall meeting
Thursday night at West View Baptist Church what could be considered an extreme ...</font></blockquote>
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Massachusetts OUI Checkpoints to be Plentiful New Year's Eve
As Massachusetts revelers prepare to ring in the New Year, law enforcement agencies are gearing up for the launch of an aggressive effort to arrest drunk drivers. Massachusetts OUI lawyers are also prepared. We know that these blitzkrieg law enforcement...
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Sticky: Nominations are Open for the 4th Annual Jdog Memorial Best Criminal Law Blawg Post
<font style="FONT-SIZE: 12px" face="Arial">While the ABA Journal is busy checking out blogs in bikinis, it's time for the Practical Blawgosphere to once again honor the dedicated
efforts of criminal law blawgers in bringing illumination to the substance of criminal law. As <a href=
"http://blog.simplejustice.us/2011/12/19/sticky-nominations-open-for-third-annual-best-criminal-law-blawg-post.aspx" target="">explained last year</a>,<br>
<br></font>
<blockquote><font style="FONT-SIZE: 12px" face="Arial">This is no beauty pageant, but a chance to accomplish two things. First, to open the door to the best substantive content on the subject of
criminal law, and ...</font></blockquote>
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Spionage: Wurde das Gesundheitsministerium von einem Apotheken-Lobbyisten ausspioniert?
Die Staatsanwaltschaft Berlin ermittelt gegen einen Lobbyisten der Apothekerschaft. Dieser soll sich über Jahre geheime Unterlagen aus dem Bundesgesundheitsministerium besorgt haben. Darunter sollen sich auch vertrauliche Emails von den Bundesgesundheitsministern Phillip Rösler und Daniel Bahr befinden. Die Unterlagen soll ein Mitarbeiter der IT-Abteilung verkauft haben. Hauptsächlich hatte es der Lobbyist auf noch geheime Gesetzesentwürfe . . . → Read More: Spionage: Wurde das Gesundheitsministerium von einem Apotheken-Lobbyisten ausspioniert?
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Accidents Happen When it Rains or Snows
When the weather is a bit nasty outside, many more accidents happen on the roads. As a driver, you need to be particularly vigilant and careful when driving in inclement weather. The first thing that I always recommend is to give yourself a little extra following distance. It’s going to take your car a little [...]
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Ex-Denton prosecutor named one of America's worst bosses
A fired supervisor at the Denton County District Attorney's Office, Susan Piel, came in at number six on the list of America's Worst Bosses in 2012 after she allegedly denied promotions and contributed to a hostile work environment for an African American attorney who complained of racially bigoted remarks by Piel's husband, also an attorney in the office. Though the Denton DA at first defended the accused, the Piels and two others were eventually fired after a federal jury awarded just more than a half million dollars to the wronged employee. See Grits' earlier coverage of the episode which earned her this dishonor. According to eBoss Watch, which produced the rankings:To date, the 2012 America’s Worst Bosses have cost their employers over $41 million in monetary damages and lawsuit settlement payments. Of this amount, the 2012 worst bosses in the public sector have cost their respective taxpayers over $21 million.The managers who made this year’s list of America’s Worst Bosses were named in workplace lawsuits filed by their employees and were accused of workplace harassment and/or sexual harassment, discrimination, retaliation, and/or creating a hostile work environment.
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What Williams decided — and didn’t
Two weeks ago, in State v. Williams, the Ohio Supreme Court tackled the issue of allied offenses for the first time since its landmark decision two years ago in State v. Johnson (discussed here). Johnson jettisoned test employed by State v. Rance, where the elements of the two offenses had to be compared in [...]
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AL: Dried blood on hands subject to warrantless seizure under Cupp
Defendant was questioned for having sex with a developmentally disabled teenager who could not talk. The officer noticed dried blood on his hands, and swabbed it with distilled water. It proved to be the victim’s. The taking of the blood sample was reasonable under Cupp v. Murphy. Dardy v. State, 2012 Ala. Crim. App. LEXIS 110 (December 14, 2012):
These facts provided probable cause to believe that the blood on Dardy's hands was evidence of a crime. Because Dardy could have easily attempted to destroy the evidence by wiping it off or by putting his fingers in his mouth, exigent circumstances existed from "the ready destructibility of the evidence." Cupp, 412 U.S. at 296. Thus, the warrantless search was justified under the probable-cause-coupled-with-exigent-circumstances exception.
Furtive movements plus a lone bullet on the seat when defendant got out justified a Long frisk of the vehicle. State v. Craig, 2012 Ala. Crim. App. LEXIS 114 (December 14, 2012).
A bag of crack was in plain view on the floorboard when defendant was stopped. State v. Moore, 2012 Ala. Crim. App. LEXIS 118 (December 14, 2012).*
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Exigent Seizure of a Laptop
As I’ve noted in earlier posts, the 4th Amendment to the U.S. Constitution requires, as its default position, that officers obtain a warrant – a search (and seizure) warrant before they search a place and seize evidence. As I’ve also noted, officers do not have to get a warrant if they can rely an exception to the default warrant requirement, one of which is “exigent circumstances.” And as Wikipedia explains, exigent circumstances exist when officers have probable cause to believe that if they do not quickly (i.e., without getting a warrant), human life or safety will be in danger, a suspect may escape and/or evidence may be destroyed. That brings us to U.S. v. Brown, __ F.3d __, 2012 WL 6052019 (U.S. Court of Appeals for the 4th Circuit 2012). After being convicted of “receiving visual depictions involving the use of minors engaging in sexually explicit conduct . . . in violation of 18 U.S. Code § 2252(a)(2)” and sentenced to “to 144 months in prison and ten years of supervised release”, Daniel J. Brown appealed. U.S. v. Brown, supra. On appeal, he argued that the district court judge who had the case erred in denying his motion to suppress certain evidence. U.S. v. Brown, supra.To understand the suppression motion and why the district court judge did not grant it, it is necessary to understand how the case arose. According to this opinion, it began in May of 2009, when Detective Nicholas Rudman of the Charlottesville (Virginia) Police Department, who was assigned to investigate internet crimes against children, began an investigation of an internet protocol (`IP’) address associated with a computer that had downloaded files containing child pornography. Those files were identified to Rudman by what is known as `hash value,’ rather than by a proper name.Rudman recognized the hash values of the files as corresponding to those which, he knew from prior experience, contained child pornography. The pornographic files had been transmitted over the Internet through peer-to-peer (file sharing) networks, where users are able to download each others' digital files.U.S. v. Brown, supra.Rudman’s investigation revealed that the subscriber of the IP address was Medical Transport, LLC, a private ambulance business located in Charlottesville. Based on information obtained from the company's manager, Rudman and Detective Todd Lucas were able to narrow the focus of their investigation to Brown and Justin Yarboro, who worked together and were always on duty at Medical Transport when the files were downloaded. Using the information they had discovered, the detectives secured a search warrant on June 17, 2009, for Medical Transport's headquarters. Rudman and Lucas, joined by Detectives Lisa Reeves and Michael Flaherty, executed the search warrant that day while Brown and Yarboro were on duty. U.S. v. Brown, supra. The search of Medical Transport’s building did not reveal “any computers or electronic equipment that were relevant to” the investigation. U.S. v. Brown, supra. While the officers were executing the warrant at the Medical Transport building, Brown and Yarboro were out on a call in an ambulance. U.S. v. Brown, supra. When the two returned to Medical Transport, they “pulled the ambulance to the front of the building” and got out. U.S. v. Brown, supra. The detectives “promptly approached” the two and identified themselves “as officers of the Charlottesville Police Department investigating Internet crimes against children.” U.S. v. Brown, supra. Rudman then asked Brown and Yarboro, `Do you guys have any laptops in your vehicle?’ When Brown responded in the affirmative, Rudman asked, `Can you get those for us?’ Brown complied, retrieving his laptop, which Rudman took out of Brown's hands and handed to Flaherty for inspection. Brown and Yarboro were then brought into the Medical Transport building and interviewed separately. Rudman conducted the interview of Yarboro, who was the initial focus of the investigation because he was younger than Brown and was presumably more computer savvy. Lucas simultaneously interviewed Brown, and quickly realized that Brown was the more likely suspect of the two.U.S. v. Brown, supra. Detective Reeves, who was present when Brown’s interview began, also deduced that Brown was more likely to have downloaded the files. She promptly left the interview room to interrupt Rudman's interview of Yarboro and lead Rudman to where Lucas was interviewing Brown. Rudman explained that he was present to ask about child pornography. During the interview, Rudman showed Brown documents from the investigation indicating that files containing child pornography had been downloaded at Medical Transport's IP address. Brown soon admitted that his laptop was the computer that had been involved, and he acknowledged searching for child pornography by computer on and off for a couple of years, using search terms like `daughter,’ `incest,’ and `PTHC’ (pre-teen hard core). The detectives thereafter concluded the interview. Having seized Brown's laptop, the detectives procured a second search warrant, authorizing them to search the laptop itself. The laptop was found to contain videos and images of child pornography.U.S. v. Brown, supra. Brown’s appellate brief notes that the laptop search “revealed internet activity, four videos, and the remnants of deleted images indicative of child pornography”. Brief of the Appellant, U.S. v. Brown, 2012 WL 710678. It also notes that this “evidence was the basis of the government's case against” him. Brief of the Appellant, supra.Brown was indicted for receiving child pornography and, as noted above, moved to suppress evidence. U.S. v. Brown, supra. In his motion, Brown argued that thesearch warrant for Medical Transport did not authorize a seizure of Brown's laptop because the laptop was not found in the Medical Transport building. The motion contended that the warrant only authorized the search of `the business of Medical Transport,’ and specifically identified and described the building, which was located on Harris Street in Charlottesville. The motion maintained that the warrant allowed the detectives to search for computers, electronic storage devices, and employee records relating to scheduling, but did not authorize a search of either Brown or the ambulance outside the building. U.S. v. Brown, supra. More precisely, Brown’s motion to suppress argued that`[n]either Brown nor the computer was at the location the warrant authorized for search. Officer Rudman's statements reveal that the CPD officers' zeal to obtain the subject of the warrant led them to disregard their authority to search for it. . . . Here, the warrant clearly allows for search inside a specific building but officers chose to search a person and vehicle outside of the building. Thus, the officers found what they were looking for but they did not find it in an area where they were constitutionally permitted to look.’U.S. v. Brown, supra(quoting Brown’s motion to suppress).The district court judge denied the motion to suppress before the trial began and again, when Brown renewed it at the close of the prosecution’s evidence. U.S. v. Brown, supra. On appeal, Brown argued that the judge “erred” in not holding “an evidentiary hearing prior to denying the motion.” U.S. v. Brown, supra. More specifically, Brown contends that the court should have assessed whether the seizure of his laptop by the officers was reasonable. . . .In its response brief, the government asserts that exigent circumstances existed to justify the officers' seizure of the laptop.U.S. v. Brown, supra. The prosecution did not contest Brown's assertion that the search warrant for the Medical Transport building failed to authorize a search or seizure of Brown's person or the ambulance.” U.S. v. Brown, supra. The Court of Appeals therefore noted that “rather than engaging in an analysis of the scope of the warrant (which is not in the record), we will proceed on the proposition that the seizure of Brown's laptop was warrantless.” U.S. v. Brown, supra. Since the seizure was not conducted pursuant to a warrant, it would violate the 4thAmendment unless it was justified by one of the warrant exceptions.The court began its analysis of Brown’s argument by noting that the “exigent circumstances that may justify a warrantless seizure include . . . imminent destruction of evidence.” U.S. v. Brown, supra. It then explained that the Supreme Court hasrecognized that, with respect to warrantless seizures, `the 4th Amendment requires only that the steps preceding the seizure be lawful.’ [Kentucky v. King, 131 S.Ct. 1849 (2011).] In other words, `the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the 4th Amendment.’ Kentucky v. King, supra. Here, the Charlottesville detectives had probable cause to believe child pornography was being downloaded at the Medical Transport building, and they could reasonably believe that it was being downloaded at that location by either Brown or Yarboro. The detectives' showing of probable cause -- accepted and endorsed by the magistrate judge in issuing the search warrant for the building -- came from tracing the illegal files to the Medical Transport IP address and learning from Medical Transport's manager that Brown and Yarboro were the only employees working at the time that the files were downloaded. The detectives' entry onto the company's property was authorized by the search warrant, and their subsequent inquiries regarding laptop computers possessed by Brown and Yarboro, were therefore lawful and proper.U.S. v. Brown, supra. The Court of Appeals also noted that based on their investigation, the detectives hadprobable cause to believe that any computer used by either Brown or Yarboro during their work shifts at Medical Transport harbored evidence of child pornography. Accordingly, when the Charlottesville detectives informed Brown they were investigating Internet crimes against children, they had probable cause to believe that Brown's laptop, which he possessed during his work shift, contained evidence of child pornography. See U.S. v. Place, 462 U.S. 696 (1983) (4th Amendment permits a warrantless seizure of property `[w]here . . . authorities have probable cause to believe [the property] holds contraband or evidence of a crime . . . , if the exigencies of the circumstances demand it’). Following up on Brown's response, it was entirely reasonable for the officers to seize Brown's laptop—as they did—to prevent either it or its contents from being damaged or destroyed. . . . U.S. v. Brown, supra(emphasis in the original). The Court of Appeals therefore affirmed the district court’s denial of the motion to suppress and affirmed Brown’s conviction and sentence. U.S. v. Brown, supra.
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N.D.Ala.: Pole camera on utility pole on utility's easement virtually on defendant's property not a trespass
The government put a pole camera on a pole on defendant’s property but the pole was on an easement belonging to the utility company, and this was not a Jones trespass. United States v. Nowka, 2012 U.S. Dist. LEXIS 178025 (N.D. Ala. December 17, 2012)*:
The 50-foot right-of-way was dedicated, without restriction or reservation, to the public. Thus, although the use of the utility pole for surveillance purposes, as opposed to for the provision of utilities, is a change in kind that might support a theory of trespass if the dedication had been only for utilities, those simply are not the facts of this case. As the utility pole was on a publicly-dedicated space, and as the use of the pole was not shown to have been subject to any restriction, Nowka has failed to show any constitutional violation under his trespass theory.
Officers knew that a drug deal was going down with a guy named “D” in the vehicle. They didn’t need a name to have probable cause. United States v. Williams, 2012 U.S. Dist. LEXIS 177894 (D. Vt. December 17, 2012).*
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E.D.Wis.: Defendant kicked live-in girlfriend out, and police were aware of most of it; no apparent authority shown
Defendant leased the property and he and his live-in girlfriend got in a serious argument and he kicked her out, pulling her clothes out of the closets. He tried getting her keys from her and that led to an assault charge when they fought over the keys. Defendant adequately revoked his apparent authority to her for her otherwise having an ability to consent. The police were aware of enough of these circumstances to have to inquire further and didn’t. Therefore, she lacked apparent authority. United States v. Jackson, 2012 U.S. Dist. LEXIS 178066 (E.D. Wis. December 17, 2012):
... Thus, before they commenced their search, the police knew that defendant had ordered King out and that she possessed a key only because she had fought off defendant's effort to retrieve it. These facts do not suggest that King was authorized to consent to a search of defendant's home.
The officers were also aware of other facts raising red flags. When Knight called King to ask her to look for the gun, she was not at defendant's home. Nor did she find the gun. Likewise, when Johnson called King to set up a search, King was not at the residence. And when Johnson met King she did not come from inside the house; rather, she, Jamauri and Presha arrived in a car suggesting that the three of them were residing elsewhere. Cf. Ryerson, 545 F.3d at 485 (finding actual and apparent authority when the defendant's girlfriend left their daughter and her belongings behind after she left). Further, the officers found boxes and bags on the porch and virtually nothing in the living room, indicating that someone had or was moving out.
Finally, it is important to note what the police did not know at the time King consented: they did not know how long King had lived at the residence, whether she was a co-owner or co-lessee, whether she paid any portion of the rent, or whether she performed any household chores. And they didn't ask. Nor did they check King's driver's license or mailing address. Despite the many signs that King no longer lived at the residence, the police made no serious inquiry into her authority. Had they made such an inquiry, they would have discovered that defendant was the sole lessee and that he had a right to revoke her shared authority over the premises. King said nothing suggesting the contrary.
. . .
In the present case, conversely, the officers asked only if King lived at the residence. Despite the red flags raised by the circumstances leading to defendant's arrest and the officers' own observations, they asked King nothing about her connection to the premises. Nor did they conduct any independent investigation such as, for example, contacting the landlord or checking utility records. It is also worth noting that no exigency required the police to proceed as they did. The police could easily have obtained a warrant to search the house as they did for the Jeep parked outside. Cf. Ladell, 127 F.3d at 624 (noting that the officers obtained consent during an ongoing domestic violence incident in which the defendant's sister and mother feared he would shoot someone). In sum, the government fails to meet its burden of showing by a preponderance of evidence that the facts were such that a person of reasonable caution would believe that King had authority to consent to a search of defendant's residence.
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E.D.N.Y.: Sharing CP with "friends" on a P2P network no reasonable expectation of privacy
The fact the defendant only shared his child pornography with "friends" on the GigaTribe peer-to-peer network does not create a reasonable expectation of privacy. After all, he never otherwise communicated with the officer he was chatting with who requested child porn that he sent. United States v. Brooks, 2012 U.S. Dist. LEXIS 178453 (E.D. N.Y. December 17, 2012)*:
Brooks contends that he "maintained a reasonable expectation of privacy" in his GigaTribe files because the peer-to-peer network was open only to "friends." (Def. Br. (Doc. No. 23-5) at 12.) Even accepting that proposition as true, the Supreme Court has "consistently [ ] held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Smith v. Maryland, 442 U.S. 735, 743-44 (1979). In applying this principle to emerging internet technologies, courts have uniformly held that a user of a private or "closed" peer-to-peer network such as GigaTribe who makes available files to his "friends" does not have an objectively reasonable expectation of privacy in those files he shared. See United States v. Soderholm, 11-cr-3050, 2011 WL 5444053, at *7 (D. Neb. Nov. 9, 2011) (holding that the "defendant did not have an objectively reasonable expectation of privacy in the files stored on his computer once he designated those files for sharing with the 'friends' on his private network"); United States v. Sawyer, 786 F. Supp. 2d 1352, 1356 (N.D. Ohio 2011) (holding that the "[d]efendant did not have an objectively reasonable expectation of privacy in the information that he shared over GigaTribe"); United States v. Ladeau, 09-cr-40021, 2010 WL 1427523, at *5 (D. Mass. Apr. 7, 2010) (holding that once the defendant "turned over the information about how to access the network to a third party, his expectation of privacy in the network became objectively unreasonable"). This Court joins in so holding, and finds that once Brooks accepted the undercover agent as a "friend" and designated as shared certain files to which the undercover could gain access, Brooks had no legitimate expectation of privacy in those shared files.
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The Government in Your Dashboard
The National Transportation Safety Board (NTSB) thinks states ought to require ignition interlock as a condition of driving for anyone convicted of DWI, including first-time offenders. So does the U.S. Congress. The NTSB made its recommendation last week as part of its report on a special investigation into vehicle crashes occurring as a result of [...]
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VT: CDTI followed: Issuing magistrate can impose preconditions on execution of a computer search warrant
The judicial officer issuing a computer search warrant can impose preconditions ("ex ante conditions") like in CDT on execution. Here, the conditions are upheld except for the state’s ability to discover things by a valid plain view which is a question of law that should not be abrogated by the warrant. In re Appeal of Application for Search Warrant, 2012 VT 102, 2012 Vt. LEXIS 100 (December 14, 2012):
[*P1] In this complaint for extraordinary relief, we are asked to determine whether a judicial officer has discretion to attach ex ante or prospective conditions to a search warrant. The State petitions this Court to strike ten such conditions pertaining to the search of a personal computer, seized by police as part of an identity theft investigation. The State contends that the conditions exceed the judicial officer's authority under the Fourth Amendment and unnecessarily impede law enforcement's ability to investigate crime. Two amici have filed briefs in opposition to the State's petition, and they argue that the conditions are a valid exercise of the judicial officer's authority and are necessary to protect personal privacy. We grant the petition in part and strike the condition abrogating the plain view doctrine. Because we conclude that the remaining conditions serve legitimate privacy interests, the petition is otherwise denied.
. . .
[*P7] The judicial officer reviewing the request granted a warrant to search the residence and to seize electronic devices to be searched at an off-site facility for as long as reasonably necessary. In a separate order, however, the judicial officer stated only that “[t]he application to search the computer belonging to Eric Gulfield is granted,” and attached conditions: (1) restricting the police from relying on the plain view doctrine to seize any incriminatory electronic record not authorized by the warrant — that is, “any digital evidence relating to criminal matters other than identity theft offenses”; (2) requiring third parties or specially trained computer personnel to conduct the search behind a “firewall” and provide to State investigatory agents only “digital evidence relating to identity theft offenses”2; (3) requiring digital evidence relating to the offenses to be segregated and redacted from surrounding non-evidentiary data before being delivered to the case investigators, “no matter how intermingled it is”; (4) precluding State police personnel who are involved in conducting the search under condition (2) from disclosing their work to prosecutors or investigators; (5) limiting the search protocol to methods designed to uncover only information for which the State has probable cause; (6) precluding the use of specialized “hashing tools” and “similar search tools” without specific authorization of the court; (7) allowing only evidence “relevant to the targeted alleged activities” to be copied to provide to State agents; (8) requiring the State to return “non-responsive data” and to inform the court of this action; (9) directing police to destroy remaining copies of electronic data absent judicial authorization otherwise; and (10) requiring the State to file a return within the time limit of the warrant to indicate precisely what data was obtained, returned, and destroyed.
. . .
[*P15] While the State has argued briefly that Article 11 creates no greater power to issue ex ante instructions as part of the constitutional mandate, and the Defender General argues to the contrary urging us to ground our decision on the Vermont Constitution, this case is fundamentally about the reach of the Fourth Amendment. The judicial officer relied upon Fourth Amendment decisions in imposing the instructions, and the parties have relied upon Fourth Amendment decisions in their arguments to this Court. In part, this is because there are no state constitution precedents. To be sure, we have noted on many occasions that Article 11 “may offer protections beyond those provided by the Fourth Amendment,” State v. Roberts, 160 Vt. 385, 392, 631 A.2d 835, 840 (1993), and this case could involve a variation of this principle. Our first impression, however, is that this case is less about the scope of protections of a constitutional provision and more about the tools available to ensure that protection occurs. Thus, any holding we might ultimately make concerning the scope of Article 11 with respect to ex ante instructions will be based on a new analysis of the protections of that Article. In view of our disposition of the case under the Fourth Amendment, we decline to engage in such an analysis in this case.
[*P16] Nor do we rest our decision on Vermont non-constitutional law. While the State argued that Vermont law does not authorize a judicial officer to impose ex ante instructions, it addressed only Vermont Rule of Criminal Procedure 41. It argued that this criminal procedure rule does not authorize the magistrate to issue instructions on how the search shall be conducted. Although Rule 41 is relevant, neither it, nor the federal rule on which it is based, purport to completely define the scope of judicial power with respect to search warrants. Thus, we are not persuaded on this limited record that Vermont law supports the State's argument and do not consider it further.
. . .
[*P18] We now proceed to the main question before us — whether a judicial officer issuing a warrant has the authority to place ex ante instructions on how a search may be conducted. We have stated the question broadly because the State has challenged the authority of the judicial officer to impose any ex ante instructions, not particularly those in this case. We also emphasize that the general question is one of authority, and not responsibility. No party or amicus is directly claiming that ex ante instructions are ever required, and we certainly do not hold so here.
. . .
[*P20] In creating the instructions, the issuing judicial officer explicitly relied on United States v. Comprehensive Drug Testing, Inc. (CDT I), 579 F.3d 989 (9th Cir. 2009) (en banc). ...
. . .
[*P25] The permissibility of imposing the ex ante instructions on computer searches is a relatively novel question for courts generally. What tools are at the disposal of judicial officers in confronting the challenges presented by searches of electronic media is a real and important question. As one court succinctly put it: “Computers are simultaneously file cabinets (with millions of files) and locked desk drawers; they can be repositories of innocent and deeply personal information, but also of evidence of crimes. The former must be protected, the latter discovered.” United States v. Adjani, 452 F.3d 1140, 1152 (9th Cir. 2006). We are not called upon to decide today how these conflicting goals are best satisfied. Our question is not whether the judicial officer's attempt to reconcile these objectives was recommendable, much less required. Our question is simply whether this attempt was such a clear abuse of authority as to merit our prohibition in the context of this petition for extraordinary relief.
. . .
[*P26] In this light, we reject the State's invitation to hold that all ex ante restrictions on the execution of a search warrant are universally of no effect in defining the constitutional requirement. Although the historical record is sparse at this point, we see no bright line that allows some conditions, but not ones that specify how law enforcement officials must conduct their search. Indeed, the evidence from Vermont suggests that such ex ante instructions have been used in the past. See discussion supra note 8.
[*P27] We conclude that ex ante instructions are sometimes acceptable mechanisms for ensuring the particularity of a search. According to Professor Kerr's argument, which the State would have us adopt, a judicial officer's only concern ex ante should be with probable cause and particularity, not reasonableness. Kerr, supra, at 1290-91 (“[E]x ante assessment of probable cause and particularity serves a different function than ex ante assessment of how a search should be executed.”). Accepting arguendo that such a bright dividing line exists, ex ante instructions may be a way to ensure particularity. Even in traditional contexts, a judicial officer may restrict a search to only a portion of what was requested — a room rather than an entire house, or boxes with certain labels rather than an entire warehouse. In other words, some ex ante constraints — of the form “here, not there” — are perfectly acceptable. Warrant applications describing the proposed scope of a search are not submitted to the court on a take it or leave it basis.
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How To Get A Speeding Ticket Dismissed
A dismissal of speeding ticket in is very hard to obtain. Most police officers who issue such tickets are familiar with what they need to say, and great deference is given to their testimony. With that said, there are things … Continue reading →
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Law enforcement grants, DWI and the fiscal cliff
As the feds approach the "fiscal cliff," media are beginning to look at the state-level implications. But one small element hasn't been much discussed: Federal grants to states for law enforcement. In particular, federal funds for Texas DWI grants were cut by 30% in 2011 - from $20 million to $14 million - and could be eliminated entirely if a budget deal isn't struck, or for that matter if the grants are eliminated as part of GOP-driven spending reductions being proposed in Congress. (The Obama Administration wants to increase spending on law enforcement grants, but the funds are part of the discretionary spending considered "on the table" in the fiscal cliff negotiations.) Reduced federal grant funds already contributed to a recent dip in the number of traffic stops initiated by Texas law enforcement. One wonders: What would be the effect on DWI enforcement if the remaining $14 million were cut?DWI enforcement is as much about public relations as taking dangerous drivers off the street, as nearly everyone agrees that TV ads and public relations campaigns related to DWI have contributed at least as much as tougher penalties and strict enforcement to declining DWI death rates. So you get press events like the one described in this report from KUHF radio, announcing a federal grant to Harris County to coordinate:![]()
Press conference announcing DWI grant via KUHFa new DWI Task Force. The group is administering a $295,000 TxDOT grant. That money will help law enforcement in an eight-county area with enhanced DWI enforcement efforts.Funds will be used during the Christmas holidays, and they'll also be used during summer holidays when people tend to drink a lot.Kaufman says large police and sheriff's departments have had DWI enforcement grants for years, but the task force will allow smaller departments to conduct their own efforts."They might not have the numbers specifically to qualify. Some of the administrative issues just make it a challenge in order to do the enforcement and administer the grant."Much of the grant money will be used to pay for police overtime during the "no refusal" period. That's when police get a search warrant to take a blood sample when a drunk driving suspect refuses to take a field sobriety test.And in some places the enforcement effort goes even further.Montgomery County prosecutor Warren Diepraam says they've even sent uncover officers into bars to make sure customers aren't being overserved.If federal grants for DWI enforcement go away, these sorts of activities would either a) cease, b) be paid for with local tax dollars or c) be covered by state budget writers, perhaps shifting funds from border security or the Governor's business incentive accounts. That last option seems the least likely. If grants for DWI enforcement were eliminated at the federal level, it wouldn't surprise me if state budget writers balked at funding routine local law enforcement activities, especially since some DWI grant funds have been misused. So, even as Houston-area authorities celebrate their latest grant, officials must also face the reality that those funds may not be available, certainly at such generous levels, in the near future.Of course, DWI enforcement isn't the only criminal justice area where state spending could be affected by federal budget cuts. Certain specialty courts and other innovative programs have been funded through federal pass-through grants which have generally demonstrated excellent results, including for DWI. Local law enforcement has used federal grant funds for tons of equipment upgrades, vehicles and to purchase a variety of military-style gear. And most of Texas' border security spending relies on federal spending. (For that matter, cuts to the military would disproportionately affect Texas, too, because we have so many military bases.) If those federal dollars went away, it would leave hundreds of state and local officials scrambling to plug the gaps.Between the fiscal cliff and Gov. Perry's insistence that the state won't accept new Medicaid funds, state and local government in Texas can expect a lot less benefit from federal spending for the rest of the decade than we've enjoyed in recent years. The complaints won't come until after the fact: Right now confusion about what's going on and gridlock surrounding Congressional debates makes discussion of specifics premature. But Grits suspects that the landscape surrounding federal law-enforcement grants is one of many things that could change dramatically as a result of the budget negotiations in Washington.
Press conference announcing DWI grant via KUHFa new DWI Task Force. The group is administering a $295,000 TxDOT grant. That money will help law enforcement in an eight-county area with enhanced DWI enforcement efforts.Funds will be used during the Christmas holidays, and they'll also be used during summer holidays when people tend to drink a lot.Kaufman says large police and sheriff's departments have had DWI enforcement grants for years, but the task force will allow smaller departments to conduct their own efforts."They might not have the numbers specifically to qualify. Some of the administrative issues just make it a challenge in order to do the enforcement and administer the grant."Much of the grant money will be used to pay for police overtime during the "no refusal" period. That's when police get a search warrant to take a blood sample when a drunk driving suspect refuses to take a field sobriety test.And in some places the enforcement effort goes even further.Montgomery County prosecutor Warren Diepraam says they've even sent uncover officers into bars to make sure customers aren't being overserved.If federal grants for DWI enforcement go away, these sorts of activities would either a) cease, b) be paid for with local tax dollars or c) be covered by state budget writers, perhaps shifting funds from border security or the Governor's business incentive accounts. That last option seems the least likely. If grants for DWI enforcement were eliminated at the federal level, it wouldn't surprise me if state budget writers balked at funding routine local law enforcement activities, especially since some DWI grant funds have been misused. So, even as Houston-area authorities celebrate their latest grant, officials must also face the reality that those funds may not be available, certainly at such generous levels, in the near future.Of course, DWI enforcement isn't the only criminal justice area where state spending could be affected by federal budget cuts. Certain specialty courts and other innovative programs have been funded through federal pass-through grants which have generally demonstrated excellent results, including for DWI. Local law enforcement has used federal grant funds for tons of equipment upgrades, vehicles and to purchase a variety of military-style gear. And most of Texas' border security spending relies on federal spending. (For that matter, cuts to the military would disproportionately affect Texas, too, because we have so many military bases.) If those federal dollars went away, it would leave hundreds of state and local officials scrambling to plug the gaps.Between the fiscal cliff and Gov. Perry's insistence that the state won't accept new Medicaid funds, state and local government in Texas can expect a lot less benefit from federal spending for the rest of the decade than we've enjoyed in recent years. The complaints won't come until after the fact: Right now confusion about what's going on and gridlock surrounding Congressional debates makes discussion of specifics premature. But Grits suspects that the landscape surrounding federal law-enforcement grants is one of many things that could change dramatically as a result of the budget negotiations in Washington.
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Exoneration Anniversary: Central Park Five
Photo: Korey Wise with two children from the Street Squash program.Today marks the 10th anniversary of the day that five men-Antron McCray, Kevin Richardson, Yusef Salaam, Raymond Santana, Korey Wise-known as the "Central Park Five," were exonerated through DNA testing. They had been wrongfully convicted of raping and assaulting a female jogger in Central Park on April 19, 1989 based on their false and coerced confessions. The Central Park Five, a Ken Burns' documentary about the wrongful conviction, and the book that it is based on, have revitalized interest in the case and shed light on the hardship that the co-defendants and their families have endured. Since the film's release in November, the exonerees have been traveling and speaking publicly about their story. The Harlem-based youth center Street Squash recently invited Wise to come and speak to middle school age boys involved in its after school program. Looking around the room, Wise was couldn't help but notice that the boys were just a little younger than he had been when the crime occurred. Wise and his co-defendants were teenagers at the time, between the ages of 14 and 16. Because Wise was the oldest, he received the harshest sentence, serving over 11 years in a maximum-security facility before his release. He is now 40 years old. "I'm glad to be alive to see my young brothers," he greeted the boys. When they asked why he falsely confessed, he explained that for seasoned detectives, getting a confession out of a young, inexperienced boy like him was like "taking candy from a baby." Looking around the room, he cautioned, "I don't want to see this repeated." Read more about the Central Park Five case. Read more about the documentary. Other exoneration anniversaries this week:Clyde Charles, Louisiana (Served 17 years, Exonerated 12/17/99)McKinley Cromedy, New Jersey (Served 5 years, Exonerated 12/20/99)Billy Wayne Miller, Texas (Served 22 years, Exonerated 12/20/06)John Kogut, New York (Served 17 years, Exonerated 12/21/05)Larry Mayes, Indiana (Served 18.5 years, Exonerated 12/21/01)
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