Defendant was held to have abandoned his cell phone by leaving it behind when he moved and making no effort to retrieve it and many other belongings. United States v. Gregg, 2019 U.S. App. LEXIS 13874 (11th Cir. May 9, 2019).
Hearsay from a search warrant affidavit could be considered in defendant’s sentencing. State v. McClanahan, 2019-Ohio-1802, 2019 Ohio App. LEXIS 1882 (2d Dist. May 10, 2019).*
The question of the legality of a search for a weapon in defendant’s case was mooted by and made harmless by his acquittal on charges related to it. He was convicted of forgery. State v. Allen, 2019-Ohio-1797, 2019 Ohio App. LEXIS 1877 (2d Dist. May 10, 2019).*
Posted inAbandonment|Comments Off on CA11: Def abandoned his cell phone and property in the building he moved out of and never came back for it
The likelihood of federal privacy legislation has waxed and waned many times over the last two decades. It’s presently in a waxing phase, so it’s worth reviewing again what privacy and privacy legislation are about.
Posted inUncategorized|Comments Off on American Enterprise Institute: Would privacy legislation actually improve people’s privacy?
A Florida judge decided to suppress police surveillance footage of New England Patriots owner Robert Kraft from a prostitution case, ruling that the evidence was illegally obtained. It was a key piece of evidence in the case and the immediate effects of the ruling were put rather straightforwardly by Judge Leonard Hanser.
Stop in a high crime area justified a seven minute wait for backup to arrive before the officer completed the stop. “ When Defendants pulled over, they parked in an apartment complex Officer Cruz knew to be frequently the location for violent crime and had a gang presence. Once Defendants pulled over, Officer Cruz promptly called for backup, which arrived roughly seven minutes later. This delay was constitutionally tolerable because it was a ‘negligibly burdensome precaution’ related to the mission of the traffic stop. See Rodriguez, 135 S. Ct. at 1616.” United States v. Portillo-Saravia, 2019 U.S. Dist. LEXIS 79252 (S.D. Tex. May 10, 2019).
The court finds the officer’s credibility lacking on the basis for the stop, and it was without reasonable suspicion, and the exclusionary rule should apply. The driver of a rental car who didn’t have a driver’s license still had standing to challenge the search. United States v. Shine, 2019 U.S. Dist. LEXIS 78723 (W.D. N.Y. May 10, 2019).*
Posted inReasonable suspicion|Comments Off on S.D.Tex.: Stop in a high crime area justified a 7 minute wait for backup to arrive before the officer completed the stop
“Cosby argues that the district court erred in denying his motion to suppress evidence seized from his cell phone. He argues that the warrant, though authorizing seizure of the device, did not authorize the agents to view its contents. But Cosby recognizes that his argument is foreclosed by this court’s decision in United States v. Fifer, 863 F.3d 759 (7th Cir. 2017), on which the district court relied. Fifer held that a state warrant that explicitly authorized the police to seize an electronic device additionally ‘implicitly authorized them to search those devices as well.’ Id. at 766. Cosby’s citation to out of circuit precedent is unavailing.” United States v. Cosby, 2019 U.S. App. LEXIS 13907 (7th Cir. May 9, 2019).
Posted inCell phones|Comments Off on CA7: SW to seize a cell phone implicitly carries authority to search it
If San Francisco adopts a ban, other cities, states or even Congress could follow, with lawmakers from both parties looking to curtail government surveillance and others hoping to restrict how businesses analyze the faces, emotions and gaits of an unsuspecting public.
Posted inSurveillance technology|Comments Off on AP: San Francisco may ban police, city use of facial recognition
Nexus and probable cause are shown to defendant’s house by the fact he went back to his house from three controlled buys. United States v. Stewart, 2019 U.S. Dist. LEXIS 78376 (D. Conn. May 9, 2019).
Having pled guilty to child pornography offense, defendant is ordered to provide access to encrypted devices under the All Writs Act for purposes of the PSR. United States v. Burns, 2019 U.S. Dist. LEXIS 79308 (M.D. N.C. May 10, 2019).
Posted inNexus, Privileges|Comments Off on D.Conn.: Nexus shown by def going home after three controlled buys
The protective arrest of a juvenile under the Family Court Act violates the Fourth Amendment. This has been a longstanding practice, and no bad motives are attributed to anyone, but this practice can’t continue. Matter of Zavion O. (Donna O.), 2019 NY Slip Op 03554, 2019 N.Y. App. Div. LEXIS 3553 (1st Dept. May 7, 2019): Continue reading →
Posted inArrest or entry on arrest|Comments Off on NY1: Protective arrest of juvenile for health and safety reasons just to get him to court violates 4A
Officer’s experience alone that drugs and paraphernalia are often kept at the alleged dealer’s home does not satisfy the good faith exception. There must also be some facts connecting the house to the drug offense away from the home. United States v. Bell, 2019 U.S. Dist. LEXIS 78339 (N.D. Tex. May 9, 2019): Continue reading →
Posted inGood faith exception, Nexus|Comments Off on N.D.Tex.: Nexus & GFE: Officer’s experience drug dealers keep stuff at home alone is not enough; some fact connecting home required
The district court granted the initial search warrant based on the showing of probable cause, but then it denied a second application to force the owner to open it. The compelled use of biometrics to unlock the phone violates the Fifth Amendment. In the Matter of the Search of a White Google Pixel 3XL Cell Phone, 2019 U.S. Dist. LEXIS 83300 (D. Idaho May 8, 2019): Continue reading →
Posted inCell phones, Privileges|Comments Off on D.Idaho: Forced use of fingerprint biometric to unlock a smartphone violates 5A
Emboldened by legalization and facing only light punishment if captured, more and more smugglers are taking to the friendly skies in an effort to escape California’s glutted cannabis market, according to authorities, marijuana industry experts and a lawyer who represents accused smugglers. As a result, the world’s fourth-busiest airport is now an expanding hub in the illegal export of marijuana, they say.
Posted inUncategorized|Comments Off on LATimes: Weed smuggling arrests at LAX have surged 166% since marijuana legalization
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 privacy interests in their garbage under Article I, section 9, which the police invaded when they searched defendants’ garbage bin without a warrant. Accordingly, the trial court erred by denying defendants’ motions to suppress evidence, and we reverse the decision of the Court of Appeals and the judgments of the circuit court and remand for further proceedings before the circuit court.” State v. Lien, 364 Ore. 750 (May 10, 2019).
The News published a story that Rxpress was under investigation for health care fraud because a search warrant was issued for its records. Actually, Halsey was under investigation, and the search warrant sought the company’s communications with him. The article was substantially true for libel purpose and the Texas Citizens Participation Act, to protect free speech without retaliation. Dallas Morning News v. Hall, 2019 Tex. LEXIS 444 (May 10, 2019): Continue reading →
Posted inWarrant execution|Comments Off on TX: Dallas Morning News article that target of SW was “under investigation” was substantially true for libel purposes
Smoking medical marijuana in a car in a commercial parking lot is public enough that it violates the AMMA to do so. While a car has some privacy, anything visible isn’t. Following People v. Carlton, 880 N.W.2d 803 (Mich. Ct. App. 2015). State v. Tagge, 2019 Ariz. App. LEXIS 459 (May 9, 2019).
“[T]he recording of the controlled buy provided probable cause for the search warrant without regard to the other information in the application.” People v. Kirkley, 2019 NY Slip Op 03703, 2019 N.Y. App. Div. LEXIS 3717 (3d Dept. May 9, 2019).*
Posted inPlain view, feel, smell|Comments Off on AZ: Smoking MMJ in a parked car on a commercial lot is “public”
The smell of burnt marijuana during a traffic stop is not probable cause to search the trunk of the car. Commonwealth v. Scott, 2019 PA Super 154, 2019 Pa. Super. LEXIS 459 (May 10, 2019): Continue reading →
Posted inProbable cause, Scope of search|Comments Off on PA: Smell of burnt marijuana during a traffic stop is not PC to search the trunk of the car
Petitioner’s stop was without reasonable suspicion, and the DMV can apply the exclusionary rule in the administrative proceeding. Jarvis v. Kansas Dep’t of Revenue, 2019 Kan. App. LEXIS 27 (May 10, 2019).
“Regardless of whether defendant made a valid waiver of his right to appeal, we find, after our in camera view of sealed search warrant materials, that the warrant was supported by probable cause.” People v. Ewell, 2019 NY Slip Op 03667, 2019 N.Y. App. Div. LEXIS 3667 (1st Dept. May 9, 2019).*
The USMJ in recommending rejection of this 2255 discussed all the issues. Petitioner’s claim that exigent circumstances weren’t adequately addressed is rejected because it was. Moreover, he can’t show that the outcome would have been different if the issues had succeeded. Camberos-Villapuda v. United States, 2019 U.S. Dist. LEXIS 77440 (D.S.D. May 8, 2019).*
Posted inExclusionary rule|Comments Off on KS: DMV can apply exclusionary rule to DL suspensions from bad stop
“The district court erred in denying defendant’s motion to suppress despite finding that the officers failed to articulate probable cause in their search warrant application to subpoena defendant’s medical records. A search warrant application must contain within its four corners the facts establishing the existence of probable cause. State v. Duncan, 420 So.2d 1105 (La.1982). Louisiana Code of Evidence article 510 is not an exception to the warrant requirement; rather, it is an exception to the admissibility protections of that evidence after lawful seizure. The evidence in this matter was not lawfully seized; thus, Article 510 does not apply.” State v. Johnson, 2019 La. LEXIS 1360 (April 29, 2019) (per curiam; three dissented on good faith exception).*
Posted inExclusionary rule|Comments Off on LA: Failure to show PC for medical records required suppression
Defendant hid a recording smartphone in a coed bathroom at Villanova University that a female student found and turned over to the University Police. The phone was essentially abandoned even though he intended to return to recover it later, and Riley does not protect against that. Commonwealth v. Kane, 2019 PA Super 153, 2019 Pa. Super. LEXIS 453 (May 9, 2019): Continue reading →
Posted inAbandonment, Cell phones|Comments Off on PA: Cell phone left recording in a college coed bathroom was treated as abandoned property despite intention to return later
Defendant stored property with his sister in her house for extended periods of time. Here, he lacked standing to challenge the search of his stuff in her house, and she had apparent authority to consent to the search. United States v. Felix, 2019 U.S. Dist. LEXIS 78559 (S.D. Ohio May 9, 2019). As to standing: Continue reading →
Posted inReasonable expectation of privacy, Standing|Comments Off on S.D.Ohio: Def who left property in sister’s house without plan to ever return lacked standing, and she had apparent authority to consent
"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.
