SAN FRANCISCO — In 2011 federal prosecutors were working with magistrate judges in the Northern District to resolve concerns about the government’s use of sophisticated surveillance technology known as a stingray to track people using their cellphone signals.
The problem, as described in an email from Criminal Division chief Miranda Kane, involved agents’ use of stingray devices, also known as WIT or triggerfish, without obtaining specific permission from the court. Such devices, which simulate a cell tower, can be placed in a van and driven anywhere in order to pinpoint the location of wireless devices like cellphones or broadband Internet cards.
Comments Off on Law.com: Emails Detail N.D.Cal’s Use of Controversial Surveillance
The search warrant here authorized seizure of things not remotely related to a completed crime, and they were suppressed and were severable from the whole warrant. Thus, the parts lawfully seized under the rest of the warrant were not suppressed. A state law issue to the conduct of searches is irrelevant under Virginia v. Moore. United States v. Khan, 2013 U.S. Dist. LEXIS 49171 (E.D. Cal. April 3, 2013):
The young man was testifying about how the police had stopped him on his way to the bodega to buy milk. As he described being frisked, Judge Shira A. Scheindlin turned to him with a familiar question: Had the police officer put his hands in the man’s pockets?
Comments Off on NYTimes: At Trial Over Police Tactic, Judge’s Focus Shifts From Stopping to Frisking
Encryption used in Apple’s iMessage chat service has stymied attempts by federal drug enforcement agents to eavesdrop on suspects’ conversations, an internal government document reveals.
An internal Drug Enforcement Administration document seen by CNET discusses a February 2013 criminal investigation and warns that because of the use of encryption, “it is impossible to intercept iMessages between two Apple devices” even with a court order approved by a federal judge.
It’s the first major company to openly challenge FBI’s warrantless data-gathering known as national security letters, which authorize a gag order ruled unconstitutional by a federal judge.
The plaintiff was caught texting on his cell phone in class and disciplined for it. School officials unreasonably searched the phone’s text messages and voicemail because there was no justification. This was the Sixth Circuit’s first foray into T.L.O. and school searches. G.C. v. Owensboro Pub. Sch., No. 11-6476 (6th Cir. March 28, 2013):
A federal judge has granted the ACLU’s motion to intervene in an Oregon case that raises the question of whether the Fourth Amendment allows Drug Enforcement Administration agents to obtain confidential prescription records without a judge’s prior approval. (We’ve previously written about the case here).
Like most states, Oregon operates a Prescription Drug Monitoring Program (PDMP), which tracks prescriptions for certain drugs dispensed in the state.
Comments Off on ACLU.org: Court Agrees to Consider ACLU Arguments That Fourth Amendment Requires Warrant For Access to Prescription Database
Salon.com: Antonin Scalia, civil libertarian? The Supreme Court justice has forged an unlikely alliance with Sonia Sotomayor on matters of criminal procedure by Caleb Mason:
(This article originally appeared on The Crime Report, the nation’s largest criminal justice news source.)
Defendant not entitled to a Miranda warning before asking him “What’s in your pocket?” during a patdown because it was not a custodial interrogation. The District Court conflated the Fourth and Fifth Amendment analyses. United States v. Woods, 11-2429 (6th Cir. April 3, 2013):
On a 2255 IAC claim, where defendant refused to testify at this suppression hearing or trial, his affidavit in support of the IAC claim is rejected. On the merits of the search claim, there was reasonable suspicion and probable cause. As to the Franks claim, even removing the offending information left probable cause. Therefore, the Fourth Amendment wasn’t violated, so defense counsel couldn’t be ineffective. Simpson v. United States, 2013 U.S. Dist. LEXIS 45248 (E.D. Tenn. March 29, 2013).*
Collective knowledge of officers from DEA to traffic cop was probable cause drugs would be in the car, so whether a traffic stop was valid doesn’t matter. United States v. Sharp, 2013 U.S. Dist. LEXIS 46507 (E.D. Mich. April 1, 2013).*
Collective knowledge of officers justified stop and use of dog. United States v. Rivera, 2013 U.S. Dist. LEXIS 47562 (D. Ariz. March 5, 2013).*
The contact between defendant and the police was justified by probable cause he was involved in a drug deal, so he could be gotten out of the car and the car searched under the automobile exception. United States v. Beckstrom, 2013 U.S. Dist. LEXIS 46756 (D. Neb. March 18, 2013).*
Comments Off on E.D.Tenn.: Where defendant doesn’t testify in suppression hearing or trial, his affidavit is inadmissible in a 2255
A beating and torture victim was left at a hospital ER. As best as the police could determine, there were others in the house where this happened, so they went back without lights and siren and entered the house for a protective sweep. Under the emergency aid exception, this was a reasonable entry. On the totality, swift action was required, and that made the entry reasonable. United States v. Shephard, 2013 U.S. Dist. LEXIS 45287 (E.D. Ky. March 29, 2013):
Indiana’s new immigration statute that gives discretion to law enforcement to arrest a person because of a prior conviction without any removal proceeding even pending against them violates the Fourth Amendment and due process. Buquer v. City of Indianapolis, 2013 U.S. Dist. LEXIS 45084 (S.D. Ind. March 28, 2013):
Comments Off on S.D.Ind.: IN statute that allows arrest of a suspected alien solely because of a prior crime that might lead to removal violates Fourth Amendment
DEA inventory policy did not apply to luggage that the DEA unlawfully seized. Here, there was somebody readily available to take custody of the luggage, and the DEA wouldn’t let them because they wanted to inventory. United States v. Papraniku, 2013 U.S. Dist. LEXIS 46343 (E.D. N.Y. March 29, 2013):
Access to defendant’s cell phone records by subpoena duces tecum was not a search under Smith v. Maryland. As to the Stored Communications Act, suppression is not a statutory remedy, even if it was violated. State v. Bone, 107 So. 3d 49 (La. App. 5 Cir. 2012).*
The informant’s credibility issues were adequately explained to the magistrate. State v. Clement, 101 So. 3d 460 (La. App. 5 Cir. 2012).*
Defendant was walking in the street, and the officer stopped to tell him to walk on the sidewalk, and defendant ran, so he gave chase. Defendant abandoned a baseball size baggie of cocaine. Barber v. State, 317 Ga. App. 600, 732 S.E.2d 125 (2012).*
Comments Off on LA5: SDT for defendant’s cell phone records was not a search requiring PC or a SW
Defendant was arrested for obstruction, and the search of his truck after he was handcuffed was invalid under Gant. Hargis v. State, 319 Ga. App. 432, 735 S.E.2d 91 (2012).
The court credits the officers’ testimony that defendant spontaneously admitted to having a gun on him after a brief encounter that was not a confrontation and involved “exchanging pleasantries.” United States v. Pankey, 2012 U.S. Dist. LEXIS 169276 (D. Ore. November 29, 2012).*
Defendant’s stop was for a broken taillight, and the officer saw furtive movements under the seat, and there was a cigarette pack with glass tubes sticking out in plain view. State v. Bridges, 104 So. 3d 657 (La. App. 4 Cir. 2012).*
Comments Off on GA: Arrest for obstruction didn’t support SI under Gant
While a search warrant is required for a search of a cell phone in Ohio under State v. Smith, 124 Ohio St.3d 163, 2009 Ohio 6426, 920 N.E.2d 949 (2009), a warrant is not required if the cell phone is abandoned. State v. Moten, 2012 Ohio 6046, 2012 Ohio App. LEXIS 5204 (2d Dist. December 21, 2012).
A pre-Gant search that was valid under Belton but not Gant was still valid under Davis v. United States’s good faith exception. State v. Brown, 401 S.C. 82, 736 S.E.2d 263 (2012), revg State v. Brown, 389 S.C. 473, 698 S.E.2d 811 (Ct. App. 2010).
Comments Off on OH2: The SW for cell phone requirement of Ohio’s Smith doesn’t apply to abandoned ones
Defendant was “asked” to get out of the truck and open the trailer to show whether the contents really was furniture. Because he was a foreigner, he didn’t understand this as a request; rather it was submission to a claim of authority. United States v. Younis, 890 F. Supp. 2d 818 (N.D. Ohio 2012):
The defendant is a foreign national with limited ability to understand and speak English. In all likelihood he, unlike native born citizens. probably had no culturally acquired or even subliminal understanding of his Fourth Amendment rights. On being stopped, he was simply asked, in English, if the trooper could see the furniture. To which his wife responded, “Yeah.” This was followed by some conversation in Arabic between the defendant and his wife. The trooper then asked who would be getting out of the truck. The defendant said, “I am” and went to the back of the truck and opened the door.
The Fourth Circuit has previously found a drug dog’s 60% reliability rate to be sufficient, and this one was better than that, so motion to suppress denied. United States v. Green, 2012 U.S. Dist. LEXIS 99220 (W.D. Va. June 28, 2012).*
Comments Off on N.D.Ohio: Foreigner did not truly consent to opening trailer during stop
Defendant’s request for shoes after he was arrested and removed from his hotel room was implied consent for the officer to return to the room to get them. Plain view on that entry sustained. United States v. Chapman, 2012 U.S. Dist. LEXIS 116074 (D. Utah August 16, 2012).*
Defendant’s motion to suppress is granted. His consent was shortly after, and came as result of, a prior illegal entry by the police and cannot be distinguished from it in time or context. Indeed, the officers involved in the consent thought they were part of the same operation. United States v. Roberts, 888 F. Supp. 2d 1316 (N.D. Ga. 2012),* rejecting R&R 2012 U.S. Dist. LEXIS 115638 (N.D. Ga. June 28, 2012).*
Defendant hiding behind a pillar and his hands to avoid the police in a high crime area was reasonable suspicion. State v. Allen, 2012 Ohio 3709, 2012 Ohio App. LEXIS 3282 (2d Dist. August 17, 2012).*
Comments Off on D.Utah: Request for shoes after arrest outside motel room was implied consent to enter; plain view sustained
"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.
