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fourthamendment
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“The Fourth Amendment … Is In Retreat”

That’s how a dissenting opinion ends in a major federal case that was decided on Tuesday. This is how it begins: “A customer buys a cell phone. She turns it on and puts it in her pocket.” And with that, according to the majority’s opinion, the customer has consented to create a record of everywhere she goes, a Read More

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The Price of Freedom is Eternal Vigilance

Antonin Scalia didn’t coin that expression, but the late Supreme Court Justice, who died one month ago, once delivered a speech that touched on a similarly uncomfortable notion. Nearly two years to the day before his death, Scalia was speaking to a group of law students at the University of Hawaii, and he was asked about Read More

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New California Criminal Laws: Part Deux

To conclude our two-part series on the state’s new criminal laws, here are three more important ones that went into effect on January 1, 2016. Both prosecutors and defense attorneys must account for the immigration consequences of a plea deal. This is Assembly Bill 1343. It amended the Penal Code to reflect that defense lawyers must advise noncitizens accurately about Read More

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New California Criminal Laws in 2016

Happy New Year! And with it, here are five important criminal laws that went into effect. Courts must report prosecutors for bad-faith Brady violations. This is Assembly Bill 1328. It amends the Penal Code to provide that a court must report a prosecutor to the State Bar who it finds, by clear and convincing evidence, has deliberately withheld exculpatory evidence in Read More

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Out of the Mouths (or Lives) of Babes

If you’re on probation, can the court require you to surrender your passwords to your electronic devices and social-media accounts, so they can be searched at any time? California has been weighing that question lately, and one month ago, the Court of Appeal issued decisions in two separate juvenile cases—one with a girl and one with a boy—that help Read More

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DOJ Posts New Policy on Stingrays

Well, what do you know. Two weeks ago, we lamented the fact that law enforcement was using these electronic devices—commonly referred to as Stingrays, IMSI-catchers, or cell-site simulators—without search warrants and, often, in secret. Then last Thursday, the U.S. Justice Department announced that, from now on, each of its agencies must obtain search warrants to use such devices, and the warrants must be supported Read More

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Cyber Search Warrants Are Going to the Dogs

It’s true, and reportedly, even the recent search of Jared Fogle’s home involved a Labrador who found a thumb drive of potential evidence. The dog is one of a handful or two nationwide that’s trained to sniff out electronics and their component parts based on a chemical that’s common to all of them. Law enforcement won’t identify the chemical, but after a few Read More

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An Open Secret of Surveillance

From USA Today comes this report on law enforcement’s burgeoning use of so-called IMSI-catchers to conduct routine, mass surveillance. If you haven’t heard of these devices, here’s a good, plain-English piece on them from NPR. The IMSI part stands for International Mobile Subscriber Identity, and an IMSI-catcher tricks your cell phone (and every other cell phone in the vicinity) Read More

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These Walls Are Thin

A federal court of appeals recently issued an interesting opinion that touched on law enforcement’s use of new radar technology that can peer through the walls of your home. Reportedly, at least fifty agencies have quietly equipped their agents with such devices, and other, similar devices boast even greater capabilities. Here’s the backstory. The defendant was on the lam. He’d been convicted of Read More

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A National Consensus: Cell-Phone Location Records are Private

That’s according to this summary of the emerging law in states and federal courts across the country regarding your phone’s cell-site location data. Those are the logs and records of the cell towers that your phone is constantly connecting or attempting to connect to as you go about your business. Your phone has to do that in order to be able to make or receive calls Read More

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