Category Archives: State constitution

Massachusetts holds long term pole camera surveillance of one’s home can violate REP and state constitution

Long term surveillance of defendant’s homes with pole cameras wasn’t a Fourth Amendment violation but it could violate the Massachusetts Constitution. Two defendants show a reasonable expectation of privacy under a “mosaic theory” which has been recognized in Massachusetts. Remanded … Continue reading

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MD: Officer had RS and consent for patdown

The officer had reasonable suspicion but he asked for consent to search defendant’s person for a weapon, which he granted. It was consensual on the totality. Defendant didn’t make a state constitutional argument in the trial court but did on … Continue reading

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PA: State waived challenge to def’s reliance on state constitution

The state waived its challenge to the defendant’s reliance on the state constitution by failure to litigate it below. Waiver claims have to be applied evenhandedly between the state and defendants. Commonwealth v. Wolfel, 2020 Pa. LEXIS 3797 (July 21, … Continue reading

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Law Rev. article: State-Constitutional Departures From the Supreme Court: The Fourth Amendment

LaKeith Faulkner & Christopher R. Green, State-Constitutional Departures From the Supreme Court: The Fourth Amendment, 89 Miss. L.J. _ (2020). Abstract:

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NM declines to adopt third-party doctrine in bank records under state constitution

“In this opinion we address whether, pursuant to Article II, Section 10 of the New Mexico Constitution, defendants Ismael and Angela Adame (the Adames) had a reasonable expectation of privacy in personal financial records maintained by their banks. We hold … Continue reading

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MN: REP in hotel registry information under state constitution

A hotel customer has a reasonable expectation of privacy in the hotel’s registry information about the customer from government intrusion, at least with reasonable suspicion under the state constitution. The statute permitting inspection is constitutional with this limitation. The officer’s … Continue reading

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MI Const. search and seizure provision is not coextensive with 4A

The Michigan Supreme Court sets aside part of a Court of Appeals decision that says that the Michigan Constitution’s search and seizure provision is coextensive with the Fourth Amendment because it’s not. Otherwise, it declines review of the decision. People … Continue reading

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TX14: Vehicle coming back as “no record” in database check is RS for stop

The fact defendant’s vehicle came back as “no record” from the Texas law enforcement databases was reason for a stop as unlicensed. After the valid stop, defendant consented. Villarreal v. State, 2020 Tex. App. LEXIS 3180 (Tex. App. – Houston … Continue reading

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OR: Asking about drugs in car during an “unavoidable lull” in traffic stop was unreasonable under state constitution

Asking about drugs in the car during an “unavoidable lull” in the stop was unreasonable under the state constitution under Arreola-Botello. State v. McBride, 303 Ore. App. 292, 2020 Ore. App. LEXIS 433 (Apr. 1, 2020), on remand from 366 … Continue reading

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FL2: Anonymous calls about a pick-up truck driving slowly around the block in the middle of the night in a residential low crime area wasn’t RS

Officers received two anonymous calls about a dark pickup truck with a loud muffler on a residential street in the middle of the night. Once it stopped in the street for a few seconds and then pulled off and turned … Continue reading

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KY declines to reject Hodari D. under state constitution

Kentucky’s state constitution’s search provision is based on Pennsylvania’s. Pennsylvania has rejected Hodari D. under state law. Kentucky declines to do so, too. Hunter v. Commonwealth, 2019 Ky. LEXIS 434 (Oct. 31, 2019). Post-conviction petitioner’s cell phone search issue had … Continue reading

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IA: Failure to get ruling on state constitutional claim was waiver

Defendant barely raised the state constitutional claim below and why it should be different than the Fourth Amendment claim and in her briefing, but the issue was not decided below so it wasn’t preserved for review. State v. Lasley-Eakins, 2019 … Continue reading

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OH4: Heien good faith mistake of fact doesn’t apply to a stop under a completely inapplicable ordinance

Defendant’s stop was unreasonable, and Heien’s good faith mistake of fact doesn’t apply. The city code provision dealt with turning at intersections, and the officer stopped defendant for turning into a driveway which is not an “intersection.” State v. Ware, … Continue reading

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IA: State const. search and seizure provision to be interpreted as the 4A; that’s what the state framers wanted

The state constitution does not require a different outcome for pretextual stops than under the Fourth Amendment. It isn’t prudential to do so, and the state’s 1857 constitutional convention wanted the state to follow the Fourth Amendment. State v. Brown, … Continue reading

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OR: Under state constitution, REP remains in trash picked up and searched other than at dump

Trash collectors picked up defendants’ trash and took it to a place where the police could search it. Under the state constitution, defendants retained a reasonable expectation of privacy in their trash. “On review, we hold that defendants retained protected … Continue reading

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WA: State attenuation is more narrow than the 4A’s, and here it wasn’t satisfied

The attenuation doctrine applies under the Washington Constitution, but it is more narrowly applied than the Fourth Amendment’s. Here is it not satisfied, and there are no intervening circumstances. State v. Mayfield, 2019 Wash. LEXIS 70 (Feb. 7, 2019):

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