Once the Secretary of Corrections issues an arrest warrant for retaking a parole violator, any Kansas police officer may serve it. The court finds this constitutional in the same sense that Shadwick v. City of Tampa authorized court clerks to issue warrants when directed. Therefore, once PC is established to the satisfaction of the parole officials, it is constitutional for any officer to arrest. United States v. Eden, 2013 U.S. Dist. LEXIS 96639 (D. Kan. July 11, 2013).
The government argued defendants who were ordered from their car at gun point and ordered face down on the ground, search, and handcuffed were not arrested. “Under these circumstances, a reasonable person would not have believed he was free to leave.” This arrest also was without probable cause. United States v. Mayberry, 2013 U.S. Dist. LEXIS 96710 (D. Vt. July 11, 2013).*
[Posted 7/16. In case you’re wondering, I’ve been finishing the manuscript to the Fifth Edition for publication in late December.]
The Sixth Circuit is troubled by three weeks of constant video surveillance of defendant’s backyard by a pole camera in light of Jones and its trespass holdings. “We are inclined to agree with the Fifth Circuit that ‘[t]his type of surveillance provokes an immediate negative visceral reaction.’” Nevertheless, the court finds the error, possible error harmless and doesn’t have to decide it. United States v. Anderson-Bagshaw, 509 Fed.Appx. 396 (6th Cir. 2012):
This case was held in abeyance pending Jardines because of its similarity: a dog sniff of a residence. It is reversed rather than rebriefed. People v. Holt, 494 Mich. 863, 831 N.W.2d 241 (2013):
The Newark Police Department has agreed to require that its officers document every stop-and-frisk interaction and to report statistics monthly on the Web.
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Florida holds that a cell phone cannot be searched incident to an arrest, rejecting Robinson on its facts because that involved searching a cigarette pack, not a computer. Smallwood v. State, 113 So. 3d 724 (Fla. 2013). This is the minority rule, but it is clearly correct, if Gant has any meaning at all. Opinion below: Smallwood v. State, 61 So. 3d 448 (Fla. 1st DCA 2011).
The search of defendant was permissible as a search incident with probable cause of drug possession. The fact the officer articulated that he wanted to do a Terry patdown is irrelevant since the objective record supports the search. Tolbert v. State, 111 So. 3d 747 (Ala. Crim. App. 2011):
Although the record appears to indicate that Officer Foster intended to perform a Terry search limited to a search of Tolbert for weapons in order to protect his and other officers’ safety, Officer Foster’s subjective intentions are irrelevant. As noted above, Officer Foster was objectively-authorized to search Tolbert incident to a lawful arrest, and therefore the discovery and seizure of a controlled substance from Tolbert’s pants pocket was legally permissible. See State v. Gargus, 855 So. 2d 587, 590 n.2 (Ala. Crim. App. 2003).
Defendant’s patdown was unreasonable because the officer failed to provide justification that he believed defendant was armed. State v. Edwards, 112 So. 3d 53 (Ala. Crim. App. 2012).*
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Suspicionless patdown of school prom attendees violated the Fourth Amendment, but school officials get qualified immunity. Herrera v. Santa Fe Pub. Schs, 2013 U.S. Dist. LEXIS 96171 (D. N.M. June 28, 2013):
Texas Court of Criminal Appeals refuses to assume exigency that the occupant will destroy marijuana just because an officer smelled it during a knock and talk. Turrubiate v. State, 399 S.W.3d 147 (Tex. Crim. App. 2013) (dissent here):
• Secret files show scale of Silicon Valley co-operation on Prism
• Outlook.com encryption unlocked even before official launch
• Skype worked to enable Prism collection of video calls
• Company says it is legally compelled to comply
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In the trial court, only the stop was challenged and not the patdown. On appeal, only the patdown was argued and not the stop. This is essentially waived, but what record the court has shows that the defendant was walking in the middle of the street and had a scuffle with the police and was arrested for it. The patdown was thus legal. State v. Beechum, 2013 Iowa App. LEXIS 592 (May 30, 2013).*
The record supports that defendant was speeding at night on a wet highway, and that’s probable cause for a stop. State v. Mackinnon, 2013 Tenn. Crim. App. LEXIS 458 (May 29, 2013).*
Defendant was not getting back his computer under Rule 41(g) where it had child pornography on it. United States v. Penry, 2013 U.S. App. LEXIS 11076 (10th Cir. June 3, 2013).*
Any possible error in defendant’s statement taken at a time his DNA was taken, and the DNA was incidentally suppressed by the trial court, was harmless beyond a reasonable doubt. State v. Zornes, 831 N.W.2d 609 (Minn. 2013).*
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Protective sweep (over)broadly held to include looking for a murder weapon. Commonwealth v. Harrell, 2013 PA Super 82, 65 A.3d 420 (2013):
Here, officers arrested appellant on the front porch of his residence. (Trial court opinion, 7/13/11 at 29.) However, they did not recover the weapon used to kill the two victims. (Id.) A female, described as frantic, exited the residence and informed officers that there were children inside. (Id.) Officers did not know at that time if there was anyone else involved in the shooting, if the murder weapon was inside the house, or if the children were in danger. (Id.) Under these circumstances, the officers were justified in performing a protective sweep of the residence.
Buie protective sweep is limited to looking for other people. Here, the court’s conclusion should have been “the gun probably was in the house and children were in the house so exigency (or public safety, see New York v. Quarles) justified locating the gun under exigent circumstances. As to the other person, a protective sweep was permissible, although protective sweep only justifies a plain view.”
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Defendant’s stop was based on a call about a domestic disturbance, and that supported his stop to investigate further. The patdown, however, was unjustified because no articulable belief he was armed was shown. Felton v. State, 2013 Ga. App. LEXIS 575 (July 3, 2013).*
A subpoena to defendant’s ISP for subscriber information did not violate any reasonable expectation of privacy. Any violation of the state ECPA does not result in suppression because there is no suppression remedy in the statute. State v. Lemasters, 2013 Ohio 2969, 2013 Ohio App. LEXIS 3009 (12th Dist. July 8, 2013).*
Unnecessarily beating and pepper spraying an unresisting arrestee is “coercion” under state law separate from the false arrest. Verdict for plaintiff sustained. Defendants sought to keep out plaintiff’s acquittal in the criminal case as irrelevant, but it correctly came in on the question of damages here for plaintiff’s legal fees in that case. Bender v. County of L.A., 2013 Cal. App. LEXIS 536 (2d Dist. July 9, 2013).*
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His dissent in a 1989 case [Skinner v. Railway Labor Executives’ Association] stated that “today’s decision will reduce the privacy all citizens may enjoy.” And so it has.
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Utah’s oldest Internet service provider, XMission, has refused to give up customer information to law enforcement, reports The Salt Lake Tribune. Specifically, the company says it won’t comply with administrative subpoenas.
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"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"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, Let it Bleed (album, 1969)
"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]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"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)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
