Obtaining Cell site location information doesn’t yet require a search warrant on probable cause under ECPA or the Fourth Amendment in the Ninth Circuit or in any district court in the circuit. Even if all those courts are wrong, the good faith exception would apply. United States v. Bailey, 2015 U.S. Dist. LEXIS 23693 (C.D.Cal. February 23, 2015):
As stated above, the statute pursuant to which the orders were issued requires that law enforcement support an application with “specific and articulable facts showing that there are reasonable grounds to believe that … the records sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d) (emphasis added). Below, the Court first explains that the Fourth Amendment does not apply to the orders at issue (and that even if it did, the subscriber information and historical cell site data would likely be admissible under the good faith exception). Second, the Court concludes that the orders at issue met the applicable SCA standard for historical cell site data—and even if they did not, that statute would not permit the Court to suppress any evidence on that basis.
Defendant had no standing in a stolen trailer even though he owned the truck pulling it. Similar is United States v. Abreu, 935 F.2d 1130, 1132 (10th Cir. 1991). United States v. Hayes, 2015 U.S. Dist. LEXIS 22860 (D.Utah February 9, 2015).
Defendant was a suspect in brandishing a weapon in a neighborhood. Police checked to see if he was on probation or parole, and he was a convicted sex offender with lifetime supervision who had never been registered. They obtained an arrest warrant and went to his house to arrest him. His wife consented to a search of the house and a gun was found. The affidavit for the warrant said he was to have reported for registration “on or about November 17, 2011” when it was actually December 1st. This was hardly material for Franks purposes in February 2013. United States v. Holmes, 2015 U.S. App. LEXIS 3043 (6th Cir. February 25, 2015).*
There is a vast amount of federal law. So much that no one can hope to keep it all in mind, much less master the mass of it. But it was not always so. The current universe of federal law did begin with a bang, although not a big one. It began with a Constitution on four parchment pages, followed by a Bill of Rights on one more.1 But the Constitution begat Congress, and Congress begat statutes –– lots and lots of statutes –– the current version of them fills 45,000 pages of the United States Code.2 Those statutes begat hundreds of administrative agencies, and many of those agencies begat regulations –– lots and lots of them. So many that the Code of Federal Regulations fills 235 volumes and is 175,000 pages long, give or take a few thousand pages.3 As the number of statutes and regulations has multiplied exponentially, so has decisional law. Supreme Court decisions fill 573 volumes of the official United States Reports, while federal court of appeals decisions fill 2,000 or so volumes of the Federal Reporter series.
Truly, federal laws have multiplied to become “beyond number, like the stars in the sky and the sand on the seashore.”4 Charting a course through this universe of federal law, which is expanding at an ever-accelerating rate, can be difficult. Attorneys and judges sometimes overlook a statutory provision, a regulation, or a decision that directly controls a case. We have all done it occasionally. It happened in this case.
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1. The parchment pages containing the Constitution are 28 and 3/4 inches by 23 and 5/8 inches. The Bill of Rights parchment page is 28 and 1/2 inches by 28 and 1/4 inches.
2. This number is based on the 2012 edition of the United States Code, excluding volumes 35 through 41 (which contain conversion tables and indices) and annual supplements.
3. Those numbers are based on the latest official statistics from the Office of the Federal Register. See Office of the Federal Register, Code of Federal Regulations – Total Pages 1938 Through 1949, and Total Volumes and Pages 1950 Through 2013, https://www.federalregister.gov/uploads/2014/04/OFR-STATISTICS-CHARTS-ALL1-1-1-2013.pdf (last visited Jan. 27, 2015).
4. Genesis 22:17 (New Living Translation); see also Raymond Chandler, The Long Goodbye 315 (Vintage Books 1988) (1953) (“[Lawyers] write the laws for other lawyers to dissect in front of other lawyers called judges so that other judges can say the first judges were wrong and the Supreme Court can say the second lot were wrong. Sure there’s such a thing as law. We’re up to our necks in it.”).
The 2254 CoA was granted as to a DNA consent after invocation of the right to remain silent in a death case. “As to the DNA consent, Everett has not demonstrated that the Florida Supreme Court’s decision—that the request for consent to collect DNA samples did not violate his Fifth Amendment rights—‘was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at __, 131 S. Ct. at 786-87.” Everett v. Fla. Dep’t of Corr., 2015 U.S. App. LEXIS 3027 (11th Cir. February 27, 2015)*: Continue reading →
A person in jail has no reasonable expectation of privacy in a cell phone found hidden in the cell, prison contraband, and a warrantless search of the cell phone is proper. United States v. Boyce, 2015 U.S. Dist. LEXIS 23129 (D.V.I. February 26, 2015).
No matter which version of the facts is credited, that defendant struggled with the officers during the stop or was merely uncooperative, the officer could smell marijuana and that furnished a basis to search the car. United States v. Hickman-Smith, 2015 U.S. Dist. LEXIS 22885 (D. Neb. January 15, 2015).*
It was objectively reasonable for the officer to conclude that defendant failed to signal at the red light when he turned right. State statute says 200′ out from the turn. He says he decided while he was sitting there to turn right. Either way, the signal wasn’t used, and his subjective intent doesn’t diminish the officer’s objective observation. Peak v. State, 2015 Ind. App. LEXIS 110 (February 25, 2015).*
Taking a DNA swab from a juvenile on probation violated the state statute on juvenile probation, but the court declines to suppress the evidence because probation officers cannot be deterred from committing such statutory violations. “Juvenile probation officers performing a supervisory function for the juvenile court have no stake in the outcome of criminal prosecutions and thus the threat of exclusion ‘cannot be expected significantly to deter them.’ Leon, 468 U.S. at 917; see Calandra, 414 U.S. at 347; Altman, 960 P.2d at 1168.” People v. Casillas, 2015 Colo. App. LEXIS 289 (February 26, 2015). Earlier in the opinion: Continue reading →
The CI’s statement here was uncorroborated and 3-4 months old. Thus, the search warrant lacked probable cause and it was so lacking in probable cause, that the good faith exception cannot apply. Cartwright v. State, 2015 Ind. App. LEXIS 107 (February 25, 2015): Continue reading →
The Republican Party needs to prove it values rights like freedom of speech and the right to a speedy trial as much as it values gun rights, Rand Paul said Friday.
“We do a great job defending the Second Amendment, and everybody knows that,” the Kentucky senator and potential presidential candidate said at the Conservative Political Action Conference (CPAC). “But we have to defend the whole Bill of Rights.”
“To defend the Second amendment, you have to defend the Fourth Amendment,” he continued. “You need the First Amendment to protect the Second Amendment… The Fifth, the Sixth — we should have speedy trials in our country.”
A Honda owner’s car was stolen, and it was equipped with LoJack. LoJack directed the police to defendant’s garage, and the police, without a warrant, announced their presence. Inside they could hear power tools and tools dropping when they yelled out “Police.” Coming upon an active chop shop was exigency for a warrantless entry. The proof showed that a car could be dismantled in minutes and serial numbers removed. Commonwealth v. Ramos, 2015 Mass. LEXIS 100 (February 26, 2015): Continue reading →
The Utah State Senate on a 27-0 vote has passed legislation to require law enforcement agencies to obtain a warrant before accessing the state’s controlled substance database.
Sen. Todd Weiler, sponsor of the legislation, tells Health Data Management that police search the database up to 11,000 times a year in what he believes are “fishing expeditions” to find individuals to prosecute, and they should have to show probable cause to access the database.
The legislation also enables an individual whose prescription records are in the database to obtain a list of persons who have had access to the records unless the records are subject to an investigation.
Defendant’s consent to search a box when he was in custody in a holding cell in Seattle airport’s jail was shown to be voluntary. He said “Go ahead. It’s just helicopter parts.” Heroin and meth were found in a radio in a box. Officers had their attention drawn to him because he had a warrant for his arrest. [Reading between the lines, one might assume that TSA found the warrant since they get passenger lists, and he was taken into custody at the gate getting on a flight to Juneau.] United States v. Benedict, 2015 U.S. Dist. LEXIS 22808 (D.Alaska February 13, 2015).
There was probable cause for issuance of a search warrant for defendant’s house for child pornography on computers. United States v. Dorweiler, 2015 U.S. Dist. LEXIS 22540 (D.Minn. February 9, 2015).*
The only basis for using force during the stop of plaintiff’s car was if there was a man in it, and then against him. The use of force against her, driving alone, was apparently excessive, and qualified immunity was properly denied. Brown v. Lewis, 2015 U.S. App. LEXIS 2917 (6th Cir. February 26, 2015).*
The U.S. Supreme Court is set to meet privately on Friday to discuss whether Americans have a constitutional right against surreptitious collection of their DNA.
Glenn J. Raynor was convicted of rape in 2009 in Harford County Court; his DNA had been collected from a chair after he refused to voluntary give police a sample.
The matter is now in the Supreme Court. Daily Record Legal Affairs Writer Steve Lash has written extensively about the issue.
Officers were called for a civil standby to assist a woman from moving out of a house where she feared trouble from her roommates. It was objectively reasonable to believe her based on her conversation and because she had a key to the house. A grow operation was seen and photographed, and defendant was interviewed two days later and admitted running the grow. Then a search warrant issued. State v. Urziceanu, 2015 MT 58, 2015 Mont. LEXIS 58 (February 24, 2015).
Trash out for collection can be searched. People v. Crump, 2015 NY Slip Op 01662, 2015 N.Y. App. Div. LEXIS 1663 (2d Dept. February 25, 2015).
No exigency justified defendant’s warrantless blood draw in an intoxication manslaughter case. Chidyausiku v. State, 2015 Tex. App. LEXIS 1750 (Tex. App.–Ft. Worth February 19, 2015).*
Police received multiple calls, some anonymous, about shots fired, and they were ultimately directed to defendant’s house which they approached from the rear. One called said a gun was kept in a doghouse, and there were pit bulls in the backyard. There was a chain link fence and defendant refused to come to the fence to be frisked for weapons. When the door was opened, the officer smelled burnt marijuana coming from the house. The warrantless search of the house was unjustified based on smell of burning marijuana. State v. Samuell, 2015 N.J. Super. Unpub. LEXIS 363 (February 25, 2015): Continue reading →
Codefendant consented to a search of shared business premises. His general consent to search the basement did not extend to breaking open a safe that both said was defendant’s because he had no joint control over the safe. United States v. Abdullah, 2015 U.S. Dist. LEXIS 22621 (W.D.N.Y. February 25, 2015), R&R 2014 U.S. Dist. LEXIS 182405 (W.D. N.Y. October 31, 2014): Continue reading →
“Onlookers” reported hearing “strangulation sounds” during an argument in an apartment, and that was exigency. Defendant was an overnight guest who had standing under Olson. United States v. Harris, 2014 U.S. Dist. LEXIS 182312 (D.Mont. February 24, 2015) (note incorrect citation).
The undisputed facts show that the officer smelled “fresh” marijuana, and that justified a search under the automobile exception, so a hearing isn’t even necessary. United States v. Landry, 2015 U.S. Dist. LEXIS 21512 (N.D.Cal. February 23, 2015).*
Headlight out justifies a stop. State v. Lensgraf, 2015 Iowa App. LEXIS 162 (February 25, 2015).*
Where the police attempt a knock and talk and it’s apparent to them that somebody is home but not coming to the door, it is not unreasonable to go to another door to attempt an answer. Thus, the curtilage may be invaded to that limited extent. The court notes that SCOTUS left this open in a qualified immunity case in November: Carroll v. Carman. The warrantless entry was based on exigency. “While Manning might be ungrateful that law enforcement intervened during his drug overdose, he is incorrect in asserting that they were unjustified in entering his home.” United States v. Manning, 2015 U.S. Dist. LEXIS 22202 (E.D.Ky. February 23, 2015), R&R 2014 U.S. Dist. LEXIS 182358 (E.D. Ky. November 6, 2014): Continue reading →
"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
—Malcolm Forbes
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)
