The police received informant hearsay, and sought to corroborate it, and a trash pull did it. State v. Rieves, 2018-Ohio-955, 2018 Ohio App. LEXIS 1021 (8th Dist. Mar. 15, 2018).
The town’s housing inspection scheme is reasonable under the Fourth Amendment. Essentially the same rationale has been upheld by this court and the NY Court of Appeals. Mamakos v. Town of Huntington, 2018 U.S. App. LEXIS 6730 (2d Cir. Mar. 19, 2018).*
The argument here was that there was no assurance that the dog’s free air sniff wasn’t of the air near the car in a public place and not the car. Whatever: that’s still probable cause. United States v. Rothwell, 2018 U.S. Dist. LEXIS 42405 (N.D. Fla. Mar. 15, 2018).*
The USMJ’s ruling that a cell phone number is also required for a pen register/track and trace order on a WhatsApp account is incorrect. All the government needs is the WhatsApp account number because the cell phone number isn’t even important to the government: just the WhatsApp messages, and they are clearly covered by the statute. In re Application of United States of Am. for PRTT Order for One WhatsApp Account for Investigation of Violation of 21 U.S.C. § 841, 2018 U.S. Dist. LEXIS 43599 (D. D.C. Mar. 2, 2018): Continue reading →
Posted inCell phones, Messaging orders|Comments Off on D.D.C.: SW for WhatsApp account doesn’t require the cell phone number to be valid
Defendant was a co-defendant with Schultz, a chiropractor, charged with false insurance claims. “The Court concludes that Defendant Hassan does not have standing to challenge the evidence obtained from Defendant Schulz because Defendant Hassan did not have a reasonable expectation of privacy in Defendant Schulz’s documents, clinic, or phone.” United States v. Schulz, 2018 U.S. Dist. LEXIS 41167 (D. Minn. Feb. 8, 2018).
Even if the omitted evidence had been included, probable cause would still exist, and the search warrant still would have issued. Therefore, no Franks violation. United States v. Thompson, 2018 U.S. Dist. LEXIS 42629 (E.D. La. Mar. 15, 2018).*
Posted inFranks doctrine, Standing|Comments Off on D.Minn.: Chiropractor’s co-def in insurance fraud had no standing in the clinic’s records or chiro’s phone
The defendant raised attorney-client privilege against the seizure of emails to lawyers and then CPAs retained by his tax lawyers. The former was determined to be waived. The latter, however, remained privileged. United States v. Adams, 2018 U.S. Dist. LEXIS 41165 (D. Minn. Mar. 13, 2018).
Defendant’s claim that defense counsel was ineffective for not moving to suppress was rejected on the merits of the search. The officers did not exceed the scope of the search warrant. Lynn v. State, 2018 Ga. App. LEXIS 194 (Mar. 15, 2018).*
Posted inE-mail, Privileges, Scope of search|Comments Off on D.Minn.: Seizure of emails implicated A-C privilege and are subject to suppression
“It is well established that an individual on probation has a reduced expectation of privacy, and a community corrections officer (CCO) may conduct a warrantless search if he or she suspects the individual has violated a probation condition. The issue in this case is whether there are any limitations on the scope of the CCO’s search. We hold that article I, section 7 of the Washington Constitution requires a nexus between the property searched and the suspected probation violation. There was no nexus in the search at issue here. Accordingly, we reverse the Court of Appeals and Cornwell’s convictions.” The court resolved a conflict between two divisions of the court of appeals, and the court doesn’t cite the Fourth Amendment. State v. Cornwell, 2018 Wash. LEXIS 205 (Mar. 15, 2018): Continue reading →
Posted inCell phones, Cell site location information|Comments Off on TechCrunch: Report: Police are now asking Google for data about all mobile devices close to certain crimes
The driver of a vehicle has a reasonable expectation of privacy in the vehicle, but he assumes the risk that the owner of the vehicle may consent to a search. Here, the officers noticed that the ignition had been punched out and defendant had no key. Therefore, it was reasonable for them to call the owner of the vehicle to see whether it was stolen. The owner then consented to a search, and the owner’s consent controls. State v. Vanhollebeke, 2018 Wash. LEXIS 206 (Mar. 15, 2018).
In his 2255, petitioner claimed that the wiretaps were without probable cause. The district court didn’t even talk about ineffective assistance of counsel–it just went to the merits of the search issue and found (1) defendant didn’t overcome the presumption of regularity in a warrant by his general allegations, and (2), even if he did, the wiretap warrant was issued with probable cause. Galloway v. United States, 2018 U.S. Dist. LEXIS 42457 (D. Md. Mar. 15, 2018).*
Officers arrested defendant’s housemate at a motel for attempting to buy oxycontin. Somehow, not described, this led to probable cause to search her house. While other officers were obtaining a search warrant, two officers went to the house for a “security check” in anticipation of the search warrant being issued and served. Nobody answered the front door, so they went around to the back to look for another door. In the fresh snow, right outside a window, were translucent bags in which the officers could see drug paraphernalia without even picking them up. This was on the curtliage and apparently thrown out the window, but it was plain view and inevitable discovery applied. Suppressing here would not advance any purpose of the Fourth Amendment or curb future police overreach. State v. Sullivan, 2018 ME 37, 2018 Me. LEXIS 38 (Mar. 15, 2018).
Posted inCurtilage, Inevitable discovery|Comments Off on ME: Entry on curtilage for “security check” just before SW issued was inevitable discovery
A micro data storage card in defendant’s watch pocket could be seized incident to arrest. It was then searched with a warrant. The informant was a victim, and thus didn’t need to be corroborated. “Knocking on a door does not constitute an investigatory stop and does not require reasonable suspicion. State v. Sanders, 374 So.2d 1186, 1188 (La. 1979); State v. Oliver, 448 So.2d 156, 158 (La. App. 5 Cir. 1984). In Sanders, the Louisiana Supreme Court found that when a door is opened in response to a knock, it is a consent of the occupant to confront the caller, and there is no compulsion, force, or coercion involved. The Court further noted that the defendant was free to refuse to open the door or to slam it shut once opened and that his freedom of movement was never infringed upon, and no search or seizure occurred except on the basis of the defendant’s voluntary actions. Sanders, 374 So.2d at 1189.” State v. Murray, 2018 La. App. LEXIS 460 (La. App. 5 Cir. Mar. 14, 2018).
Posted inConsent, Informant hearsay, Search incident|Comments Off on LA5: A micro data storage card in defendant’s watch pocket could be seized incident to arrest
“[T]he allegation that the officers ‘beat the crap out of’ plaintiff was [not] too vague and conclusory to support a legally cognizable claim. The panel held that plaintiff’s use of a colloquial, shorthand phrase made plain that he was alleging that the officers’ use of force was unreasonably excessive; this conclusion was reinforced by his allegations about the resulting injuries.” Plaintiff’s allegations about the force of his arrest didn’t invoke the Heck v. Humphrey bar. Byrd v. Phoenix Police Dep’t, 2018 U.S. App. LEXIS 6575 (9th Cir. Mar. 16, 2018).
The trial court’s findings of consent and findings of fact are entitled to deference. The appellate court isn’t obliged to consider the alternative to what the trial court found when the evidence supports the trial court’s findings. United States v. Ebrom, 2018 U.S. App. LEXIS 6653 (5th Cir. Mar. 16, 2018).*
Posted in§ 1983 / Bivens, Excessive force, Standards of review|Comments Off on CA9: Pro se ptf’s allegation that the officers “beat the crap out of” him was not too vague and conclusory to support an excessive force claim
The government is steadily increasing the use of facial or biometric scanning at the nation’s airports. Airlines say it can speed the boarding process, but critics say the scans aren’t always accurate and there are privacy concerns.
Posted inSurveillance technology|Comments Off on NPR: Critics Concerned About Privacy Issues As Biometric Scanning Increases
An official who supervised the FBI’s Section 215 warrantless phone surveillance program revealed by Edward Snowden in 2013 says he warned then-Director James Comey it was woefully ineffective in catching terrorists and needed to be modified.
Posted inFISA|Comments Off on The Hill: FBI supervisor warned Comey in 2014 that warrantless surveillance program was ineffective
The National Association of Criminal Defense Lawyers, the American Civil Liberties Union and others are calling on Congress to block legislation meant to facilitate cross-border data requests by law enforcement, saying the measure would torpedo U.S. residents’ Fourth Amendment rights.
Posted inForeign searches|Comments Off on Law 360: Rights Groups Say CLOUD Act Tramples Civil Liberties
Defendant’s journals were allegedly illegally seized, and the state agreed not to use them. Defendant testified, and the state sought to put the journals into evidence for impeachment as a prior inconsistent statement. When the trial court allowed it, defendant refused to submit to cross-examination. The trial court then struck the direct testimony and told the jury to disregard it. The journals weren’t put into the record, so the court considers the issue defaulted for appeal. McKoy v. State, 2018 Ga. LEXIS 175 (Mar. 15, 2018).
The search of defendant’s house that led to count 2 of the superseding indictment was the result of a valid protective sweep after an arrest. The arresting officers could show reasonable suspicion there was potentially another person there. United States v. Peten, 2018 U.S. Dist. LEXIS 41019 (M.D. Ala. Feb. 14, 2018) (R&R).
The affidavit for the search warrant satisfied probable cause to believe items were stolen, but the search warrant’s particularity failed because “The description ‘stolen property’ is no description” at all. More is required. Sutton v. State, 2018 Miss. LEXIS 128 (Mar. 15, 2018): Continue reading →
Posted inParticularity|Comments Off on MS: “The description ‘stolen property’ is no description” for particularity
This is an excessive force and illegal search claim where plaintiff claimed her husband was unreasonable killed in violation of the Fourth Amendment and state law. It also included a claim that the search warrant was obtained by judicial deception. On that count, neither party put the search warrant papers in the summary judgment materials, so that’s denied. Kendrick v. County of San Diego, 2018 U.S. Dist. LEXIS 42185 (S.D. Cal. Mar. 14, 2018).
The trial court erred in finding defense counsel was ineffective for not challenging the frisk of his person. On the merits of the frisk, there was reasonable suspicion based on extreme nervousness and his refusal to talk. Therefore, no prejudice and no IAC. Milledge v. State, 2018 S.C. LEXIS 29 (Mar. 14, 2018).*
Not a Fourth Amendment case but relevant on conflict of laws: Miranda doesn’t apply to defendant’s statement in Canada about a Massachusetts homicide, and the deterrence rationale of the exclusionary rule could not apply to them. Commonwealth v. Wright, 2018 Mass. LEXIS 159 (Mar 15, 2018).
Plaintiff is a used car dealer who parked cars on a city owned lot that they were trying to acquire, but it never went through. The cars weren’t removed despite requests, so all 85 were towed off by towing companies at the request of the city. Plaintiff was essentially a trespasser, and the removal of the cars was reasonable under the Fourth Amendment. Carmen Auto Sales III v. City of Detroit, 2018 U.S. Dist. LEXIS 42298 (E.D. Mich. Mar. 15, 2018): Continue reading →
Posted inTrespass|Comments Off on E.D.Mich.: Detroit’s removal of 85 used cars parked on city land as a trespass was reasonable
The search warrant issued by a state grand jury are still entitled to grand jury secrecy, compared to other judicial records. The court followed In re Gwinnett Cty. Grand Jury, 284 Ga. 510, 668 S.E.2d 682 (2008). In re 2014 Allegheny Cty. Investigating Grand Jury Appeal of WPXI, 2018 PA Super 56, 2018 Pa. Super. LEXIS 220 (Mar. 14, 2018).
The CI and the officer testified before the state judge issuing the search warrant. Defendant has a heavy burden in overcoming the presumption that the search warrant was issued with probable cause, and he doesn’t. Moreover, the good faith exception applied. United States v. Clark, 2018 U.S. Dist. LEXIS 41294 (W.D. N.Y. Feb. 1, 2018),* adopted 2018 U.S. Dist. LEXIS 41010 (W.D. N.Y. Mar. 13, 2018).*
"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.
