Defendant’s motion to suppress electronic data acquired by a Rule 41(e)(2)(B) search warrant on his email account was properly denied. Based on the absence of a time limit in the warrant, it was not unreasonable to interpret the warrant to permit the government to retain the data until appeals were completed. There was no evidence that probable cause had lapsed at the time that any particular search of the data may have been conducted. Seizure of personal information was proper to show that he was the party controlling the email account. Even if the scope of the government’s search was too broad and violated the Fourth Amendment, he would only be entitled to partial suppression. He failed to identify which emails that were introduced at his trial on healthcare fraud conspiracy charges fell outside the scope of the warrant. United States v. Aboshady, 2020 U.S. App. LEXIS 5198 (1st Cir. Feb. 20, 2020).
It is not clearly established that a police officer’s taking the mentally infirm decedent to the county line and leaving him violated the Fourth Amendment. The decedent was hit by a car and died. Keller v. Fleming, 2020 U.S. App. LEXIS 5227 (5th Cir. Feb. 20, 2020).*
Posted inE-mail, Overseizure, Qualified immunity|Comments Off on CA1: Alleged overseizure of email under SW would only require partial suppression; def doesn’t identify that which was overseized
Defendant’s unsworn motion for a Franks hearing fails to identify the materiality of the alleged misstatement and that it was knowingly false. Setting up a “swearing match” for a hearing doesn’t satisfy Franks. United States v. Figueroa-Rivera, 2020 U.S. Dist. LEXIS 28657 (D.P.R. Feb. 18, 2020): Continue reading →
Posted inFranks doctrine|Comments Off on D.P.R.: Franks motion that only sets up a “swearing match” for witnesses is inadequate
Witnesses who had provided affidavits in the underlying criminal case were entitled to absolute witness immunity, regardless of whether they gave false testimony. Prosecutors in that case who allegedly participated in falsifying evidence and writing a perjured search warrant were entitled to absolute prosecutorial immunity, regardless of whether they had malicious intent. Hartman v. Barker, 2020 Tex. App. LEXIS 1436 (Tex. App. – Beaumont Feb. 20, 2020).
The affidavit for search warrant showed probable cause on the face of the affidavit. The motion to suppress alludes to a potential Franks violation, but there is no “substantial preliminary showing” of a knowing or reckless falsity. United States v. Flippo, 2020 U.S. Dist. LEXIS 28602 (E.D. Tenn. Feb. 19, 2020).*
Posted in§ 1983 / Bivens, Franks doctrine|Comments Off on TX9: Witness and ADAs allegedly providing false information for SWs are absolutely immune from civil cases
The Recorder: California’s Appellate Courts Are Fine-Tuning When Juvenile Offenders Are Subject to Warrantless Searches (“Although California’s First District Court of Appeal did not rule on the constitutional questions raised in the appeal, the court blocked the attorney general’s attempt to impose warrantless device searches on a teenage girl convicted of felony assault, as the state’s courts continue to shape the case law around electronic privacy for criminal offenders.”)
Posted inUncategorized|Comments Off on The Recorder: California’s Appellate Courts Are Fine-Tuning When Juvenile Offenders Are Subject to Warrantless Searches
Just because a GPS device lawfully planted on a car stops working is not probable cause to believe the defendant stole it. The search warrant for his house and barn to recover it lacked all probable cause and any basis for the good faith exception to apply. Heuring v. State, 2020 Ind. LEXIS 98 (Feb. 20, 2020).
Defendant was searched as a result of a stalking arrest, and the subsequent invalidation of the stalking statute in state court didn’t invalidate the search under Krull and DeFillipo. Fredin v. Clysdale, 2020 U.S. App. LEXIS 5157 (8th Cir. Feb. 20, 2020).*
The estate of a young man shot and killed across the U.S.-Mexico border by a U.S. Border Patrol agent for no reason has no Bivens claim for a Fourth or Fifth Amendment claim. Hernández v. Mesa, 2020 U.S. LEXIS 1361 (Feb. 25, 2020): Continue reading →
Posted in§ 1983 / Bivens, Excessive force, Police misconduct, SCOTUS|Comments Off on SCOTUS: The estate of a young man shot and killed across the U.S.-Mexico border by a U.S. Border Patrol agent has no 4A or 5A Bivens claim.
Posted inSurveillance technology|Comments Off on techdirt: Ring Continues To Pitch Facial Recognition To Law Enforcement While Claiming It Won’t Be Adding Facial Recognition To Its Cameras
Today is the 17th anniversary of this blog. Today is also the 259th anniversary of James Otis’ 1761 argument at the Boston Old State House against the writs of assistance in Paxton’s Case. Transcripts of the argument are here. (It was reargued Nov. 16, 1761.) See my 2011 post at the 250th anniversary.
As John Adams wrote and reported in the Legal Papers of John Adams (1968), this tension of this case was part of the impetus for the Revolution itself and the Fourth Amendment in the Bill of Rights in 1791.
Posted inUncategorized|Comments Off on 17th anniversary of this blog; 259th anniversary of Otis’ argument in Paxton’s Case
CBS News: Racial Profiling 2.0 (“As police departments turn to big data to help reduce crime in their neighborhoods, advocacy groups are sounding the alarm about high-tech racial profiling. The algorithm-driven systems analyze supposedly impartial historical crime data to predict where crimes will occur or who might commit them. But critics say the data can actually reinforce biased past police practices. This CBSN Originals documentary raises the question: Are predictive policing programs actually super-charging racial bias?”)
Posted inRacial profiling|Comments Off on CBS News: Racial Profiling 2.0
Defendant was sitting in a car near a drug house doing nothing wrong. Police accosted him under the pretext there might be a warrant for him. It turned out there was. Even applying Strieff, the court concludes that Strieff was far stronger on the facts for the state than here, and the motion to suppress was properly granted. There was no reasonable suspicion at all for the stop. State v. Carter, 2020-Ohio-589, 2020 Ohio App. LEXIS 550 (10th Dist. Feb. 20, 2020).
Defendant made no preliminary showing of a reasonable expectation of privacy to even have standing, so the motion to suppress was properly denied without a hearing. People v. Johnson, 2020 NY Slip Op 01244, 2020 N.Y. App. Div. LEXIS 1257 (1st Dept. Feb. 20, 2020).*
While the affidavit itself may have been deficient on showing probable cause, the officer provided the issuing magistrate additional information to supplement it. Thus, the officer reasonably relied upon the warrant in good faith. Trial court erred in suppressing. State v. Dibble, 2020-Ohio-546, 2020 Ohio LEXIS 458 (Feb. 20, 2020).
There was sufficient information in the affidavit for search warrant connecting defendant to a robbery scheme to be probable cause. He argues more detail was required, but not so because there is sufficient information here to conclude he was involved. United States v. Goldsby, 2020 U.S. Dist. LEXIS 28502 (D. Nev. Feb. 19, 2020).*
Posted inProbable cause|Comments Off on OH: While affidavit for SW may have been deficient, it was supplemented by testimony and it was reasonable to find PC
“The evidence, interpreted in the light most favorable to Alcocer, is sufficient for a reasonable jury to conclude that Mills violated Alcocer’s Fourth Amendment rights by continuing to detain her without new probable cause after her attempted posting of bond before 6:00 p.m. on January 30, 2014. See O’Rourke, 378 F.3d at 1206. To rule otherwise on this record would raise real concerns about the continued unlawful detention of U.S. citizens based on legally inapplicable, groundless immigration hunches unsupported by even arguable probable cause. Mills’s actions and inactions constituted a violation of Alcocer’s clearly established Fourth Amendment right to be free from unreasonable seizure. Therefore, Mills is not entitled to qualified immunity.” Alcocer v. Mills, 2020 U.S. App. LEXIS 5132 (11th Cir. Feb. 20, 2020). See Bloomberg Law: Jailer Who Held U.S. Citizen Over Legal Status Must Face Suit by Bernie Pazanowski (“A civil rights suit may proceed against a jailer who continued to hold a U.S. citizen in custody under the erroneous belief she was in the county illegally, the Eleventh Circuit said. The applicable Fourth Amendment law was established at the time and a reasonable jailer in Ashley Mills’s position wouldn’t have kept Judith Alcocer in custody, the unpublished per curiam opinion said.”)
It was reasonable for POs to search defendant’s unapproved cell phone without a search warrant as a probation search. Making him use his face or get the password to unlock the phone was not unreasonable because the contents of the SIM card would have been inevitably discovered in a forensic search. United States v. Jackson, 2020 U.S. Dist. LEXIS 28200 (W.D. N.Y. Feb. 19, 2020): Continue reading →
Posted inCell phones, Inevitable discovery, Privileges|Comments Off on W.D.N.Y.: Getting def to unlock his phone wasn’t unreasonable because the SIM card would have been forensically searched later anyway
"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.
