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Tag: supreme court

Supreme Court Effortlessly Throws Out Warrantless Cell Phone Searches

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.
 
By Ross Parker
ticklethewire.com

Guessing the correct result and even the basic rationale of the Supreme Court’s cell phone case could be considered a minor achievement, but not even the most ardent defense attorney would have predicted that the opinion would be a unanimous 9-0 decision authored by the normally pro-law enforcement Chief Justice. Chief Justice Roberts’ opinion held, without a single dissent, that the warrantless search of an arrestee’s cell phone incident to his arrest was in violation of the 4th Amendment. It’s embarrassing to miss the ease with which the Court made the decision.

In doing so the Court resolved a split in lower courts and rejected a line of cases which compared the cell phone search to be analogous to the previously authorized search of an arrestee’s papers, diaries and the like. That had been the rationale of one of the two cases reviewed, the California Court of Appeals decision in Riley v. California, which had upheld the police search of a man’s cell phone when he was stopped on a traffic charge and then arrested for illegal firearm possession. The search had produced data linking him to a gang shooting, and he was convicted of attempted murder. Instead the Court followed the other decision reviewed, U.S. v. Wurie, in which the Court of Appeals threw out drug and firearm convictions for a defendant whose cell phone was searched incident to his arrest.

The Court rejected the Justice Department position and reasoned that the invasion of privacy was not comparable to the other cases involving the search of notes, private documents and the like. The extent of private material exposed in a modern cell phone is of an entirely different magnitude than that which could be kept in such papers. The extra-legal consideration was perhaps left between the lines. Everyone including Supreme Court Justices has a cell phone and increasingly relies on it for a variety of private and extensive purposes.

The opinion found a clear distinction in the latest cell phone technology and its ever-expanding capacity to store a vast trove of private information. From a legal analysis standpoint (and foreseeable only with 20-20 hindsight), the case was a logical extension of the Court’s increasing propensity to rein in law enforcement’s use of advanced technology. Thermal imaging, DNA, and transponders are a few of the techniques which had been found to be “unreasonable searches” without prior judicial authorization.

So what does the case portend? The loss of free rein to investigate the secrets of those arrested without prior judicial authorization will be an inconvenience to law enforcement, especially since nearly every person arrested possesses a smart phone. But enterprising agents will mitigate this loss in many cases by imaginative considerations of probable cause to present to a judge. Other advanced tools of the expanding sources of technology should probably be second-guessed in terms of the need for a warrant. But most prosecutors and case agents were already aware of this trip for the unwary.

Does it mean a cutting back from the wide scope of non-cell phone searches incident? Probably not since the prior cases in this category set forth a fairly well defined course of action by arresting officers.

On the other hand, being presumptuous about who your friends are on the High Court can be a humbling experience.

 

Parker: Supreme Court Effortlessly Throws Out Warrantless Cell Phone Searches

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office

Ross Parker

 
By Ross Parker
ticklethewire.com

Guessing the correct result and even the basic rationale of the Supreme Court’s cell phone case could be considered a minor achievement, but not even the most ardent defense attorney would have predicted that the opinion would be a unanimous 9-0 decision authored by the normally pro-law enforcement Chief Justice. Chief Justice Roberts’ opinion held, without a single dissent, that the warrantless search of an arrestee’s cell phone incident to his arrest was in violation of the 4th Amendment. It’s embarrassing to miss the ease with which the Court made the decision.

In doing so the Court resolved a split in lower courts and rejected a line of cases which compared the cell phone search to be analogous to the previously authorized search of an arrestee’s papers, diaries and the like. That had been the rationale of one of the two cases reviewed, the California Court of Appeals decision in Riley v. California, which had upheld the police search of a man’s cell phone when he was stopped on a traffic charge and then arrested for illegal firearm possession. The search had produced data linking him to a gang shooting, and he was convicted of attempted murder. Instead the Court followed the other decision reviewed, U.S. v. Wurie, in which the Court of Appeals threw out drug and firearm convictions for a defendant whose cell phone was searched incident to his arrest.

The Court rejected the Justice Department position and reasoned that the invasion of privacy was not comparable to the other cases involving the search of notes, private documents and the like. The extent of private material exposed in a modern cell phone is of an entirely different magnitude than that which could be kept in such papers. The extra-legal consideration was perhaps left between the lines. Everyone including Supreme Court Justices has a cell phone and increasingly relies on it for a variety of private and extensive purposes.

The opinion found a clear distinction in the latest cell phone technology and its ever-expanding capacity to store a vast trove of private information. From a legal analysis standpoint (and foreseeable only with 20-20 hindsight), the case was a logical extension of the Court’s increasing propensity to rein in law enforcement’s use of advanced technology. Thermal imaging, DNA, and transponders are a few of the techniques which had been found to be “unreasonable searches” without prior judicial authorization.

So what does the case portend? The loss of free rein to investigate the secrets of those arrested without prior judicial authorization will be an inconvenience to law enforcement, especially since nearly every person arrested possesses a smart phone. But enterprising agents will mitigate this loss in many cases by imaginative considerations of probable cause to present to a judge. Other advanced tools of the expanding sources of technology should probably be second-guessed in terms of the need for a warrant. But most prosecutors and case agents were already aware of this trip for the unwary.

Does it mean a cutting back from the wide scope of non-cell phone searches incident? Probably not since the prior cases in this category set forth a fairly well defined course of action by arresting officers.

On the other hand, being presumptuous about who your friends are on the High Court can be a humbling experience.

 

Two Democrats Criticize Obama Administration for Handling of NSA Spying

Steve Neavling
ticklethewire.com

Two Democratic senators are accusing the Obama administration of trying to “ignore or justify” factual misrepresentations to the Supreme Court about warrantless surveillance by the National Security Agency.

The New York Times reports that the senators, Mark Udall of Colorado and Ryan Wyden of Oregon, complained in a letter to Solicitor General Donald B. Verrilli Jr. that the Obama administration was contributing to a “culture of misinformation.”

The issue is over the legality of permitting warrantless NSA surveillance.

The Justice Department is reviewing the complaints.

Supreme Court to Consider Warrantless Cell Phone Searches

 
 
By Ross Parker
ticklethewire.com

The U. S. Supreme Court will hear argument today on two cases involving warrantless searches of cell phones. The case is probably the most important and most difficult 4th Amendment case of the term. Lower courts are split on the issue, and the number and tone of the appellate briefs in the cases illustrate the future ramifications of the case in the Cyber Age.

In U.S. v. Wurie the Court of Appeals threw out drug and firearm convictions for a defendant whose cell phone was searched incident to his arrest. The California Court of Appeals went the other direction in Riley v. California, upholding the police search of a man’s cell phone when he was arrested on firearms charges. The search produced data linking him to a gang shooting, and he was convicted of attempted murder.

Warrantless searches of all materials on the person of one lawfully arrested have traditionally been upheld without serious controversy. Isn’t the cell phone just a 21st Century version of a personal notebook or photo album? That is why many, perhaps most, commentators are predicting that the conservative majority of the Court will hand down a decision sometime before the end of the term in June which upholds the law enforcement position in these cases.

However, several factors seemingly unconnected to traditional 4th Amendment theory make this a much closer question. First, everyone including Supreme Court Justices has a cell phone and increasingly relies on it for a variety of purposes. Second, the latest cell phone technology has an ever-expanding capacity to store all kinds of private information. Finally, the Court has shown an increasing propensity to rein in law enforcement’s use of advanced technology. Thermal imaging, DNA, and transponders are a few of the techniques found to be “unreasonable searches” without prior judicial authorization. Traditionally conservative Justice Anton Scalia has surprised many by his views in this area.

Prediction: 5-4 vote requiring warrants for cell phone searches incident to arrests.

Parker: Supreme Court to Consider Warrantless Cell Phone Searches

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office. 
 
By Ross Parker
ticklethewire.com

The U. S. Supreme Court will hear argument today on two cases involving warrantless searches of cell phones. The case is probably the most important and most difficult 4th Amendment case of the term. Lower courts are split on the issue, and the number and tone of the appellate briefs in the cases illustrate the future ramifications of the case in the Cyber Age.

In U.S. v. Wurie the Court of Appeals threw out drug and firearm convictions for a defendant whose cell phone was searched incident to his arrest. The California Court of Appeals went the other direction in Riley v. California, upholding the police search of a man’s cell phone when he was arrested on firearms charges. The search produced data linking him to a gang shooting, and he was convicted of attempted murder.

Warrantless searches of all materials on the person of one lawfully arrested have traditionally been upheld without serious controversy. Isn’t the cell phone just a 21st Century version of a personal notebook or photo album? That is why many, perhaps most, commentators are predicting that the conservative majority of the Court will hand down a decision sometime before the end of the term in June which upholds the law enforcement position in these cases.

However, several factors seemingly unconnected to traditional 4th Amendment theory make this a much closer question. First, everyone including Supreme Court Justices has a cell phone and increasingly relies on it for a variety of purposes. Second, the latest cell phone technology has an ever-expanding capacity to store all kinds of private information. Finally, the Court has shown an increasing propensity to rein in law enforcement’s use of advanced technology. Thermal imaging, DNA, and transponders are a few of the techniques found to be “unreasonable searches” without prior judicial authorization. Traditionally conservative Justice Anton Scalia has surprised many by his views in this area.

Prediction: 5-4 vote requiring warrants for cell phone searches incident to arrests.

NY Times Reporter James Risen Goes to Supreme Court Over Confidential Sources

Reporter James Risen

By LUCY MCCALMONT
Politico

WASHINGTON — Lawyers for New York Times reporter James Risen have filed a petition to the Supreme Court on Monday to request that the court take up his case to recognize reporter’s privilege.

It is the latest development in the ongoing battle Risen faces against the the government over confidential sources. Former CIA Officer Jeffrey Sterling has been accused of leaking information to Risen on the agency’s operations. The government is seeking Risen’s testimony in a separate case against Sterling. An earlier decision by the 4th Circuit in 2013 stated Risen was not entitled to reporter’s privilege.

In the petition filed Monday, Risen’s representation said that due to confusion and conflict in prior interpretations regarding both Risen’s and similar cases, the Supreme Court should take up the case.

To read more click here. 

 

Read court filing. 

 

Supreme Court Case Pits Protesters’ Rights to Be Heard Against Politicians

The Daily Astoria 
Editorial

Can political protests be restricted so that political leaders don’t have to listen?

This is one way of framing the issue before the U.S. Supreme Court when it considers this term whether Secret Service agents were right in ordering protesters to be removed from President George W. Bush’s sight and hearing during a 2004 visit to Jacksonville in southern Oregon.

The other main way to view the matter is whether the Secret Service has unquestionable discretion to ensure the president’s safety by keeping obvious opponents much farther away than they keep obvious supporters.

The U.S. Court of Appeals for the 9th Circuit – the second-highest level of federal court – was seriously split on this question in a decision released in February. A majority of the 28 judges ruled that a lawsuit can proceed against the agents who required protesters to be moved more than twice as far away from the president than supporters. The Obama administration, supporting the agents, asked Supreme Court justices to consider quashing the lawsuit.

To read more click here.

Appeals Court Rules NY Times Reporter James Risen Must Testify: He Says He’d Rather Go to Jail

Reporter James Risen

By Allan Lengel
ticklethewire.com
WASHINGTON — James Risen, a hard-hitting New York Times reporter, continues to have his feet held to the fire.

A U.S. Appeals Court in Richmond, Va. on Friday ruled that the reporter and author must testify in a criminal trial of a former CIA officer accused of providing classified information to Risen about a botched plot against the Iranian government, USA Today reports.

The court ruled that  the First Amendment did not protect reporters in cases of unauthorized leaks from testifying against the suspected leakers.

Risen has vowed to appeal the ruling to Supreme Court and go to jail if necessary.

The ruling comes in wake of a controversial move by the Justice Department to secretly obtain Associated Press reporters’ phone records, and a vow by the Justice Department to be more sensitive to the work reporters do.

“The subpoena for Risen’s testimony was not issued in bad faith or for the purpose of harassment,” the court’s majority concluded. “Risen is not being called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, and there is no reason to believe that his testimony implicates confidential source relationship without a legitimate need of law enforcement.”

The latest ruling has triggered much talk among journalists here in the nation’s capital.

The New York Times writes:

Mr. Risen is a national security reporter for The Times, but the case revolves around material he published in his 2006 book, “State of War,” not in the newspaper. A chapter in the book recounted efforts by the C.I.A. in the Clinton administration to trick Iranian scientists by having a Russian defector give them blueprints for a nuclear triggering device that had been altered with an error. The chapter portrays the operation as reckless and botched in a way that could have helped the Iranians gain accurate information.