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Sixteen hour warrantless seizure of a FedEx package in transit for a dog sniff was unreasonable. The government directed FedEx to hold it, and that made FedEx its agent. (The government stipulated to one defendant’s standing, but it certainly appears to the court that she doesn’t have any. (n.1)) United States v. Poor, 2012 U.S. Dist. LEXIS 48292 (E.D. Ky. March 9, 2012):

Here, law enforcement directed FedEx to act by holding the parcels on March 2. The question then becomes whether FedEx's intent in complying was "entirely independent of the government's intent to collect evidence for use in a criminal prosecution." Howard, 752 F.2d at 227-28, vacated on other grounds, 770 F.2d 57, 62 (6th Cir. 1985)); see United States v. Jones, 2011 WL 5967230, at *2 (W.D. Tenn.) (identifying factors as whether police "'instigated, encouraged, or participated'" in search and whether "'individual ... engaged in the search with the intent of assisting the police'" (quoting United States v. Lambert, 771 F.2d 83, 89 (6th Cir. 1985))). The Fourth Amendment does not apply if a private actor is "not acting as an agent of the Government or with the participation or knowledge of any government official." United States v. Jacobsen, 104 S. Ct. at 1652, 1656 (1984) (citation and internal quotation marks omitted). The burden of proving agency generally falls on the defendant. United States v. Aldridge, 642 F.3d 537, 541 (7th Cir. 2011) (citation omitted). Here, Hart's own testimony clearly establishes the agency relationship.

WASHINGTON — Maryland's highest court is poised to hear arguments in a precedent-setting case involving two women who married in California but were denied a divorce in Maryland, which does not currently allow same-sex weddings.

The Court of Appeals of Maryland in Annapolis was set to hear arguments Friday from ...

The Puerto Rican coffee importing business his sufficiently regulated that Burger applies. The beans here were seized after an administrative inspection under PR law. United States v. 323 "Quintales" of Green Coffee Beans, 2012 U.S. Dist. LEXIS 47775 (D. P.R. March 30, 2012), R&R 2012 U.S. Dist. LEXIS 47765 (D. P.R. March 9, 2012):

The Supreme Court stated in Burger that an administrative search qualifies as an exception if: (1) the state has a substantial interest in regulating the industry (2), the inspection is necessary to further the regulatory scheme, and (3) the inspection is properly limited in scope and puts the business owner on notice that the search is being made. Burger, 482 U.S. at 702-703. The second part of this last requirement is satisfied if the regulatory scheme is "sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes." Id. at 703 (quoting Donovan v. Dewey, 452 U.S. 594, 600 (1981)).

The laws of Puerto Rico contain a comprehensive set of provisions pertaining to the regulation of the coffee industry. P.R. Laws Ann. Tit. 5, § 320 et. seq.; Tit. 13, §§ 2201-2205. The laws relating to coffee production express the need to protect the local coffee industry and eradicate plant pests and diseases on coffee plantations. P.R. Laws Ann. Tit. 5, §§ 319-319g. The Court agrees with the Magistrate's determination that these provisions evince a substantial government interest in regulating the coffee industry in order to meet local consumption needs and promote the economic health of the industry.

(Lorenzo J. Palomares-Starbuck appeared for the beans.)

“[W]e adopt the Harris exception to the exclusionary rule for certain evidence obtained after a Payton violation. We hold that, where police had probable cause to arrest before the unlawful entry, a warrantless arrest from Felix's home in violation of Payton requires neither the suppression of statements made outside of the home after Felix was given and waived his Miranda rights, nor the suppression of physical evidence obtained from Felix outside of the home. Assuming without deciding that Felix's warrantless arrest from his home was in violation of Payton, we conclude that, pursuant to the Harris rule, the following evidence that police obtained outside of his home is admissible: Felix's signed statement, made after Felix was given and waived his Miranda rights, the buccal swab obtained at the police station, and Felix's clothing seized at the jail, as well as any derivative evidence.” The court declines to adopt a separate rule under the state constitution. State v. Felix, 2012 WI 36, 2012 Wisc. LEXIS 29 (April 3, 2012).*

Petitioner’s Fourth Amendment claim was decided on the merits in state court, so it could not be considered on habeas. Rashad v. Lafler, 2012 U.S. App. LEXIS 6765, 2012 FED App. 0093P (6th Cir. April 5, 2012).

Seizure of defendant’s cell phone at the end of his interrogation was reasonable and based on exigent circumstances. Officers has probable cause to believe that the phone contained evidence and that it should be seized. United States v. Robison, 2012 U.S. Dist. LEXIS 47092 (D. Minn. March 16, 2012).*

The court finds defendant was free to leave when his papers were handed back to him, but he agreed to stay when the officer asked if he could ask a few questions. Defendant said that consent had to come from the other person which was agreeing to continue the encounter. United States v. Quintero-Felix, 2012 U.S. Dist. LEXIS 46377 (N.D. Iowa April 3, 2012).*

“Prior to conducting a warrantless probation search, an officer must have probable cause to believe the probationer lives in the residence to be searched.” United States v. Gibson, 2012 U.S. Dist. LEXIS 47138 (N.D. Cal. April 3, 2012).*

Defendant’s IAC claim was that it somehow violated the Fourth Amendment for police to continue to keep records lawfully seized for several years was rejected. No case even suggests that was unlawful, so how could defense counsel be ineffective? United States v. Lecroy, 2012 U.S. Dist. LEXIS 47030 (N.D. Ga. March 30, 2012).*

New law review article: The Missed Opportunity of United States v. Jones--Commercial Erosion of Fourth Amendment Protection in a Post-Google Earth World by Mary Leary on SSRN. Abstract:

The Fourth Amendment protects people from unreasonable searches and seizures by the government. These protections, therefore, are only triggered when the government engages is a “search” or “seizure.” For decades, the Court defined “search” as a government examination of an area where one has a “reasonable expectation of privacy.” Such an expectation requires both that the individual demonstrate a subjective expectation of privacy and that the expectation is one society finds reasonable. In 1974, Anthony Amsterdam prophesized the unworkability of this test, warning of a day that the government would circumvent it my merely announcing 24 hour surveillance. Similarly, the Court has stated that it would adjust the definition of a search if the government tried to “condition” citizens to have no expectation of privacy.

Today, those concerns have come to bear, but not in the way Amsterdam or the Court predicted, and the Court has failed to respond. Today, private commercial entities, not the government, have utilized technology to “condition” citizens to have no expectation of privacy. They have done so on two particular levels. First, these commercial entities have obtained private data about citizens, i.e. information from their “digital dossier.” They have then revealed the information to others resulting in citizens feeling as though “nothing is private.” Second, when these entities obtain the data, they do not afford the individuals the opportunity to “demonstrate” their subjective expectation of privacy. Since a “search” requires a demonstration of a subjective expectation of privacy, and these commercial entities have used today’s technology to strip citizens of any expectation of privacy or ability to demonstrate one, then little the government examines will constitute a “search” and trigger Fourth Amendment protections.

This article identifies this assault on the expectation of privacy due to “corporate conditioning” of the consumer and proposes a viable legislative solution. It examines the Court’s existing approaches, including a thorough analysis of the recently articulated frameworks announced in the majority and concurring opinions of United States v. Jones, noting their inadequacy for today’s technological challenges. Utilizing the example of satellite imaging technology, it demonstrates the threat to privacy expectations unanticipated by the Court. This article proposes a new legislative framework for respecting privacy protections in response to these corporate induced privacy affronts. This framework, supported by analogous American law and European proposals, calls for an opt-in model. Before a citizen can be assumed to have voluntarily sacrificed his privacy, he must meaningfully opt in to the sharing of his private data. Such an opt-in must not conditioned upon the service but must be uncoerced.

This approach advocates for addressing this unanticipated problem further upstream than other solutions by focusing on the commercial entities and not the later police action. It is rooted in the concept of ownership of one’s digital footprint and, therefore, the right to control one’s data.

New law review article: A Spectacular Non Sequitur: The Supreme Court's Contemporary Fourth Amendment Exclusionary Rule Jurisprudence by David C. Gray on SSRN and forthcoming in American Criminal Law Review. Abstract:

Much of the Supreme Court’s contemporary Fourth Amendment exclusionary rule jurisprudence is constructed upon an analytic mistake that H.L.A. Hart described in another context as a “spectacular non sequitur.” That path to irrelevance is paved by the Court’s recent insistence that the sole justification for excluding evidence seized in violation of the Fourth Amendment is the prospect of deterring law enforcement officers. This deterrence-only approach ignores or rejects more principled justifications that inspired the rule at its genesis and have sustained it through the majority of its history and development. More worrisome, however, is the conceptual insufficiency of deterrence considerations alone to justify core components of the Court’s Fourth Amendment exclusionary rule doctrine, including the good faith exception, the cause requirement, and the requirement to show standing. That conceptual deficit has produced an opaque body of doctrine that is often incoherent and always speculative and unpredictable. Faced with these results, the Court has two options. First, it can abandon almost a century of doctrine in favor of a dramatically expanded exclusionary rule cut loose from general rules and exceptions; or, second, the Court can preserve the bulk of its Fourth Amendment exclusionary rule jurisprudence by adopting a hybrid theory of the exclusionary rule that embraces retributive principles. This Article argues for the latter course and explores the consequences. Principal among them is that the Court must accept the exclusionary rule as the natural and necessary sanction for Fourth Amendment violations rather than a contingently justified judicial doctrine. Although some Justices and their academic supporters may think this a steep price to pay, this Article argues that the costs are more than justified by the rewards of doctrinal coherence, added clarity, and predictability.

The man who purchased two semi-automatic assault rifles found at the scene of the fatal December 2010 shooting of a U.S. Border Patrol agent just north of the Arizona-Mexico border pleaded guilty Thursday to two felony charges in the federal government's botched Fast and Furious gun-smuggling investigation.

Jaime Avila Jr. ...

HELENA, MONT. | Best-selling "Three Cups of Tea" author Greg Mortenson mismanaged the nonprofit organization he co-founded to build schools in Pakistan and Afghanistan and spent charity money on personal items, family vacations and millions on charter flights, according to an investigative report released Thursday.

Mr. Mortenson's control of the ...

DETROIT — A federal judge in Michigan on Thursday cleared the way for Koran-burning pastor Terry Jones to lead a protest in front of the nation's largest mosque this weekend, saying efforts by officials in Dearborn, Mich., to essentially force organizers to guarantee the rally would be peaceful were unconstitutional.

BELLEFONTE, Pa. — Former Penn State assistant football coach Jerry Sandusky's lawyer said after a short pretrial hearing Thursday that he expected the presiding judge to soon dismiss defense motions to have the child sexual abuse charges thrown out, but he hoped he would let them be refiled after more ...

International arms dealer Viktor Bout, the so-called "Merchant of Death," was sentenced Thursday in federal court in New York to 25 years in prison following his conviction in a multimillion-dollar conspiracy to finance a fleet of aircraft to arm bloody conflicts and support terrorists worldwide.

U.S. District Judge Shira Scheindlin ...

God may once again bless the USA at Stall Brook Elementary.

The Bellingham, Mass., school, under fire for changing the lyrics of Lee Greenwood's "God Bless the USA" to "We Love the USA" for an upcoming fourth-grade concert, reversed course Thursday after drawing a backlash from parents and hints of ...

OHIO

School OKs gay student's T-shirt for 1 day only

CINCINNATI | A gay student suing his Ohio high school for prohibiting him from wearing a T-shirt designed to urge tolerance will be allowed to wear the shirt for one day.

Maverick Couch's lawsuit charges that Waynesville High School and ...