4th Amendment

There’s no love lost between cops and guys in wheelchairs.

You know things are not going well for the police when a judge uses the citation “U.S. Const. amend. IV.” Not a case interpreting the Fourth Amendment, not a scholarly analysis of search and seizure law, just a straight-up shout-out to the plain text of the constitutional prohibition. It kind of tells you where the judge is going.

Today’s installment of “Why Can’t You Just Get A Warrant” comes out of the Montgomery County courthouse near Dayton, Ohio. According to the judge’s order granting a suppression motion, the police subdued a wheelchair-bound paraplegic and searched his home. And by “subdued,” I of course mean: tackled a man in a wheelchair, handcuffed him, then pretended to be worried about the man’s grabbable area.

Fun times…

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Thanks to spyware, an FBI dad got a gift-wrapped child porn case.

Like any dad, Joseph Auther was worried about what his son might get up to while exploring the wilds of the World Wide Web. So when his 7th grade son got a school-provided laptop from Whispering Palms School in Saipan in the U.S. territory of the Northern Mariana Islands, Auther decided to install a monitoring program on it. He went with a spyware program called eBlaster from SpectorSoft, a company based in Vero Beach, Florida. Unbeknownst to his son, the program captured his website visits, his keystrokes, and every email, chat, and instant message he sent and received. This was all delivered up to his dad in emails, while giving the monitored person no hint that it was doing so.

Auther has a special appreciation for the benefits of surveillance. He’s an FBI special agent. In April, he discovered he was being transferred to the FBI office in Denver. At the end of the school year, Auther let Whispering Palms principal Thomas Weindl know that his family was moving and that they would be returning the school’s laptop. Weindl, 67, was actually a friend of the Auther family; when he got married earlier that year, Auther’s wife gave a reading at the ceremony. Auther told Weindl that he would return the laptop after he removed all of his son’s files, programs, and games.

Auther first took the laptop to his FBI office and asked his colleagues how to wipe it clean. Apparently they don’t have many cyber experts in the Mariana Islands, because they were unsuccessful. So Auther had to instead take it to a computer repair shop, which cleaned out the old files and allegedly re-imaged the hard drive to return it to its original settings. Auther didn’t tell the shop about eBlaster being on the computer — perhaps feeling a little Big Parent shame — but assumed that it would be wiped along with everything else. He then returned the computer to Weindl….

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Today at least, Gregory Garre is dog’s best friend in the Supreme Court.

The Court heard two cases involving when dogs can use their noses to help fight the war on drugs. Garre argued both – back to back – for the State of Florida. Fresh on the heels of his representation of Texas in the recent affirmative action case, it was an impressive morning.

The first case presented the question of whether a dog – here, named Frankie – brought to the front door of a house, can sniff at the front of the house for drugs.

Garre came out of the box asserting that there is no legitimate expectation of privacy in contraband. That didn’t go so well….

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Right now is a great time to be a Supreme Court aficionado. There’s a big new book out about the Court, Jeffrey Toobin’s The Oath (affiliate link). And the new SCOTUS Term starts in just a few days, on Monday, October 1.

Given the time of the year, it’s not surprising that SCOTUS preview events are as common as Ninth Circuit reversals pro se cert petitions. I attended one sponsored by the Federalist Society earlier this month, where Kannon Shanmugam of Williams & Connolly offered excellent insights into October Term 2012. Our Supreme Court correspondent here at Above the Law, Matt Kaiser, went to a preview talk sponsored by the American Constitution Society (which he turned into Kaiser’s Guide To Bluffing Your Way Through Knowledge About The Supreme Court’s New Term).

That sounds like more than enough SCOTUS previews. But I couldn’t help myself from attending one more, due to the starpower of the panelists: Paul Clement, the former solicitor general who’s now a partner at Bancroft, and Tom Goldstein, the noted Supreme Court advocate and founder of the invaluable SCOTUSblog.

What did Messrs. Clement and Goldstein have to say about OT 2012?

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At this point, stuff like this doesn’t even make me mad. I’m just impressed. In a few years, I swear Ashton Kutcher will come out and that he’s been secretly working with the Transportation Security Administration on a new airport-themed reboot of Punk’d.

They dump grandpa’s ashes all over the floor. They accuse some guy of carrying a weapon, when it’s just his massive package. And now they apparently believe the massively overpriced, burnt Starbucks coffee you bought after getting ambiguously naked x-ray photos taken of you is SOMEHOW worth screening too.

[Stops to breathe]

OK. Let’s take a look. And, yes, OF COURSE we have video….

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If this Essay serves no other purpose, I hope it serves to debunk, for any readers who persist in believing it, the myth that locking your trunk will keep the cops from searching it. Based on the number of my students who arrived at law school believing that if you lock your trunk and glove compartment, the police will need a warrant to search them, I surmise that it’s even more widespread among the lay public. But it’s completely, 100% wrong.

– Professor Caleb Mason of Southwestern Law School, in a Saint Louis University Law Journal article that analyzes the legal issues in Jay-Z’s smash hip-hop hit, 99 Problems.

Tom Goldstein

I’m really sorry about that.

Tom Goldstein, publisher of SCOTUSblog, commenting on the Supreme Court decision rendered in Florence v. Board of Chosen Freeholders of County of Burlington. Goldstein, who argued on behalf of the petitioner in that case, made this remark while speaking as a guest on The Daily Show with Jon Stewart.

(In the wake of President Obama’s comments on the Court’s “judicial activism,” what did Goldstein have to say about the Nine’s stance on Marbury v. Madison? Find out, after the jump.)

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* Looks like Obama has reached a compromise position on birth control. It’s not right, but it’s okay. [WSJ Law Blog]

* Apple gets so emotional baby, every time it thinks of Samsung. [eWeek]

* Greece begrudgingly signed austerity legislation while lamenting, “Didn’t we almost have it all.” [What About Clients]

* The Bearcat would be a patrol car that had the stuff that you want, and the thing that you need. It would have more than enough to make the 4th Amendment drop to its knees. It’d be the Queen of the night, oh yeah. [Simple Justice]

* It’s almost time for the National Animal Law Competitions. How will I know if this is really happening? I say a prayer that one of these guys gets paid. [Animal Legal Defense Fund]

* Now that Super PACs are back on the table, a cabinet secretary could be your baby tonight, for a million dollars or so. [Election Law Blog]

* For some reason, the Columbia Law School twitter feed retweeted this article about the five leadership mistakes of the Emperor in Star Wars. I don’t know why? Are they saying that Dean David Schizer is like Emperor Palpatine? I don’t get it, I have nothing. [Forbes]

* R.I.P. Whitney Houston, lady with a voice that could put soul into a country song…

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The Supreme Court just handed down a unanimous opinion ruling in one of the most closely watched cases of the year. All the justices agreed on the result, but diverged significantly in reasoning.

This morning, the court issued its decision in United States v. Jones. Police in Washington, D.C. placed a GPS tracking device on the car of Antoine Jones, a nightclub owner, without obtaining a warrant. The GPS device helped law enforcement link Jones to a house used to store drugs and money. He was eventually convicted and sentenced to life in prison. An appeals court later overturned his conviction.

The central issue in Jones was whether attaching a GPS device to a car (i.e., allowing law enforcement 24/7 access to a person’s movements), without obtaining a warrant first, violated the Fourth Amendment.

The case has been heralded as one of the most important privacy cases in recent memory. Wired’s Threat Level blog said Jones “is arguably the biggest Fourth Amendment case in the computer age.” Editor emerita Kashmir Hill attended oral arguments for the case back in November.

What did the justices say? The ruling might surprise you…

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WASHINGTON - OCTOBER 08:  U.S. Supreme Court m...

“If you win this case, there is nothing to prevent the police or government from monitoring 24 hours a day the public movement of every citizen of the United States,” said Justice Breyer.

The Supreme Court justices were decked out in their usual black robes today for U.S. vs Jones [pdf], a case involving the question of whether police need a warrant to attach a GPS tracker to someone’s car. But given their paranoia about possible technology-enabled government intrusions on privacy, it might not have been surprising if they had also been wearing tin foil hats.

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