Defendant on a wiretap application was only known by his nickname, and this did nothing to alter the probable cause analysis nor undermine probable cause. United States v. Santiago, 2018 U.S. App. LEXIS 27919 (7th Cir. Oct. 2, 2018) (there’s no reason for this case to not apply to search warrants in general).
Defendant’s cell phone was searched by court order. He alleges in his ineffective assistance of counsel claim that defense counsel failed to argue it correctly, but defense counsel apparently did, and there’s nothing presented to show how defense counsel could have changed the outcome by arguing something else. Ruiz v. United States, 2018 U.S. Dist. LEXIS 169709 (W.D. Tex. Oct. 2, 2018).*
Officers investigating a sex offense had plenty of reasonable cause for a search warrant. Officers were watching the house and stopped defendant after he left and they got him to return to the place of the search in his own car with a detective riding with him. He wasn’t arrested or searched based on that, and the stop didn’t violate Bailey or the Fourth Amendment. State v. Pole, 2018 N.C. App. LEXIS 1005 (Oct. 2, 2018) (unpublished): Continue reading →
Posted inConsent, Seizure|Comments Off on NC: Def’s consensual return to scene of search warrant didn’t violate Bailey
We should be highly skeptical of any proposal that would wipe out existing privacy laws that protect consumers or foreclose states from acting to address future privacy threats. Such preemption from Congress would be a win for business interests at the expense of the public.
Posted inSurveillance technology|Comments Off on WaPo: Opinion: The tech industry is suddenly pushing for federal privacy legislation. Watch out.
A federal judge has signed off on an $8 million judgment in favor of a New York City police officer who was brutally beaten both inside and outside his own home while he was off duty by group of fellow officers who responded to a 911 call.
Posted inExcessive force|Comments Off on NYLJ: NYPD Cop Beaten by Fellow Officers During 911 Call Gains $8M Judgment
Many cities across the country are struggling with issues surrounding short-term vacation rentals and how they affect the availability and price of housing for local residents. However, New York City’s latest ordinance aimed at regulating home-sharing platforms is an extraordinary governmental overreach with invasive privacy ramifications, and EFF is fighting back.
Posted inInformational privacy|Comments Off on EFF: New York City Home-Sharing Ordinance Could Create Privacy Nightmare
Defense counsel’s decision not to call the defendant or other witnesses at a suppression hearing was a strategy decision not subject to second guessing except in extraordinary circumstances. Defense counsel concluded they lacked credibility. Here, defendant testified at trial to distance himself from the drugs found with an anticipatory warrant and the house where they were found. The trial judge also found that he perjured himself during trial testimony. Also, defendant lacked standing in the house and thus cannot show prejudice. Campbell v. United States, 2018 U.S. App. LEXIS 27923 (11th Cir. Oct. 2, 2018), vacating Campbell v. United States, 891 F.3d 940 (11th Cir. 2018) (same result): Continue reading →
Posted inIneffective assistance, Standing|Comments Off on CA11: Not calling def at suppression hearing was [a founded] strategy decision
The state’s plain view argument wasn’t pressed in the trial court, so it can’t be a basis for appeal. Even on the merits, the state loses because the stop was invalid, and the detention unreasonable all before the alleged plain view. State v. McQueen, 2018-Ohio-3996, 2018 Ohio App. LEXIS 4323 (8th Dist. Oct. 1, 2018).
Late disclosure of a jail call didn’t prejudice the defendant in light of the overwhelming proof at trial. State v. Cummings, 2018-Ohio-3993, 2018 Ohio App. LEXIS 4322 (8th Dist. Oct. 1, 2018).*
Whatever the status of the third-party doctrine after Carpenter, nothing would change as to subpoenaing IP address information in a child pornography case. “The information at issue here falls comfortably within the scope of the third-party doctrine.” United States v. Contreras, 2018 U.S. App. LEXIS 27795 (5th Cir. Oct. 1, 2018): Continue reading →
Posted inThird Party Doctrine|Comments Off on CA5: IP information “falls comfortably within the scope of the third-party doctrine” after Carpenter; no comparison to CSLI
Exclusion of evidence for violation of the implied consent statute is not provided for by the statute nor required by the constitution. Soza v. Marner, 2018 Ariz. App. LEXIS 157 (Oct. 2, 2018): Continue reading →
There was evidence defendants coordinated their actions while in separate cars, and that provided a strong inference they were in communication by cell phone, thus providing probable cause to search them. Police promptly seized the phones and then obtained search warrants for the phones. They did, however, take a long time to get around to it. This was not unreasonable because the phones were lawfully already in police custody and would stay there until the trial, so no further privacy interest of the defendants was impinged upon. Commonwealth v. Arthur, 2018 Mass. App. LEXIS 133 (Oct. 1, 2018).
Posted inCell phones, Reasonableness|Comments Off on MA: Delay in searching cell phones lawfully seized wasn’t unreasonable
Defendant was lawfully detained on an arrest warrant, and prolonging it wasn’t a real issue. People v. Delgado, 2018 Cal. App. LEXIS 896 (3d Dist. Oct. 1, 2018).*
Defendant was lawfully arrested for resisting during a lawful traffic stop. He got out of the vehicle and wouldn’t get back in so the officer could assess the situation. Eaton v. State, 2018 Ind. App. LEXIS 346 (Oct. 1, 2018).*
Posted inArrest or entry on arrest|Comments Off on Cal.3: When detained on an arrest warrant, prolonging it isn’t much of an issue
Officers had a search warrant for a house and garage. A car found in the garage could be searched under the warrant. State v. Lucas, 2018 Ind. App. LEXIS 347 (Oct. 1, 2018).
The search warrant didn’t describe firearms and ammunition. The state relied on third party consent, which was not voluntary. Considering all the proof, however, it was harmless beyond a reasonable doubt considering all the proof connecting defendant to the murder. He admitted having the gun before it was found. State v. Smoot, 2018 Tenn. Crim. App. LEXIS 739 (Oct. 1, 2018).*
Posted inConsent, Scope of search|Comments Off on IN: SW for house and garage permits search of car found in garage
Defendant wasn’t seized by being bumped by police car because he went another three miles without stopping. “Moreover, the Eleventh Circuit and courts across different circuits have concluded that no seizure occurs where police attempt to stop a fleeing vehicle in more extreme manners and are ultimately unsuccessful.” By the time of the stop, officers had probable cause for drug offenses for other reasons. United States v. Orange, 2018 U.S. Dist. LEXIS 168265 (S.D. Ga. Sep. 29, 2018).
Just saying defense counsel was ineffective for not moving to suppress is meaningless. “Moreover, Defendant fails to present any cogent argument to support suppression. He fails to set forth deliberate falsehoods and offers no proof to support his claim that a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 171-72 (1978) should have been requested. Finally, having reviewed the affidavit that formed the basis for the warrants, the Court discerns no basis for suppression based on Defendant’s current assertions.” United States v. Carey, 2018 U.S. Dist. LEXIS 168229 (E.D. N.Y. Sep. 29, 2018).*
Posted inIneffective assistance, Seizure|Comments Off on S.D.Ga.: Being bumped by a police car and fleeing three more miles wasn’t a seizure
“An inventory search of a vehicle is reasonable if it is conducted pursuant to standardized regulations and procedures. McKinnon, 681 F.3d at 209-10. Alvarez contends the officers did not follow CCPD’s standard procedures, which require officers to complete and submit an inventory form listing all items found in the impounded vehicle, including the trunk, because they failed to complete and retain the required form, failed to call a tow truck, and failed to inventory the contents of his trunk. But, evidence presented at the suppression hearing shows the officers acted consistent with CCPD policy in these circumstances.” United States v. Alvarez, 2018 U.S. App. LEXIS 27715 (5th Cir. Sep. 28, 2018) (Other courts would suppress an “inventory” with this description; if all this is permitted by the policy, then the policy is unconstitutional.)
Posted inInventory|Comments Off on CA5 sustains an inventory that certainly appears pretextual criminal search
Leaving your house, conducting a drug sale, then returning to your house is nexus that there are drugs in the house. United States v. Houser, 2018 U.S. App. LEXIS 27671 (6th Cir. Sep. 28, 2018).
“The magistrate judge presumed that even if the tip were anonymous, sufficient corroboration rendered the tip reliable. … According to the R & R, ‘the [Terry] stop in this case was not only based on the corroborated information received in the tip but on the observations of the officers at the scene.’” United States v. Acevedo-Vázquez, 2018 U.S. Dist. LEXIS 168386 (D. P.R. Sep. 29, 2018).
Posted inInformant hearsay, Nexus|Comments Off on CA6: Leaving house, doing drug deal, going back home is nexus
Defendant made no attempt to show standing in the cell phone of another person that was lawfully seized incident to his arrest and in his pocket. He needed his own testimony or that of another to establish it. United States v. Hamlett, 2018 U.S. Dist. LEXIS 166762 (D. Conn. Sep. 28, 2018).
Defendant’s SnapChat video showing firearms led to a valid probation search. There was also voluntary consent. State v. Love, 2018 Del. Super. LEXIS 412 (Sep. 27, 2018).*
Gov. Jerry Brown ushered in a new era of transparency in California law enforcement on Sunday, signing two new laws that for the first time give the public access to internal police investigations and video footage of shootings by police officers and other serious incidents.
Posted inExcessive force, Police misconduct|Comments Off on LA Times: Gov. Jerry Brown signs landmark laws that unwind decades of secrecy surrounding police misconduct, use of force
"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.
