FISA Probable Cause Standard Is Different From The Standard for Criminal Warrants

Foreign Intelligence Surveillance Act ("FISA") intercepts may contain national security information. If an aggrieved person (usually the target of the surveillance) is charged with a crime and seeks discovery of the FISA applications or orders or other materials, alleging the surveillance was unlawfully acquired or not in conformity with the FISA Court's authorization, 50 U.S.C. § 1806(e), (f), the Attorney General could prevent discovery by filing an affidavit declaring that disclosure or an adversary hearing "would harm the national security of the United States," in which case the federal district court reviewing the defendant's motion must "review 'in camera' and 'ex parte' the application, order, and such other materials as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted." See United States v. El-Mezain, 664 F.3d 467, 564 (5th Cir. 2011) (quoting and citing 50 U.S.C. § 1806).

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D.C. v. Wesby: "Lurid Optics" Overwhelm Case

In District of Columbia v. Wesby (U.S. Supreme Court, Jan. 22, 2018), the claim was false arrest.  The result was 9-0 in favor of the police (the District of Columbia's Metropolitan Police Department).  Apparently the arrestees conceded the unfavorable facts initially in their opposition to the petition for writ of certiorari.  As a result, the arrestees waived their right to challenge those facts later in their merits brief, under the Supreme Court’s Rule 15.2. 

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Marijuana: Seizure of Evidence

Under federal law, possession of even small amounts of marijuana is still a crime in the District. Federal law enforcement can still arrest anyone for possession in D.C., although local law enforcement (the Metropolitan Police Department) complies with local decriminalization of possession of up to 2 ounces by a person over age 21. But whether you’re 21 or under, or over 21, the government must not exceed constitutional prohibitions against unreasonable searches and seizures (whether seizure of a person or evidence of an alleged crime). The Fourth Amendment of the U.S. Constitution gives enhanced protection to preserving the sanctity of the home. Privacy in your home extends to all types of warrantless “searches,” whether the search is conducted in person by police, or through infrared technology. Your privacy might even be protected from warrantless surveillance flights above your property, depending on how common such flights are, if you maintain a “reasonable expectation of privacy” from such intrusions.

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Waiving Miranda Rights Through Ambiguous Conduct

A suspect must invoke his Miranda rights unambiguously, but can waive Miranda rights by acting ambiguously.

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