Aspen Way leases computers in Wyoming. “The complaints each generally alleged that Aspen Way installed software on Plaintiffs’ leased computers, without Plaintiffs’ knowledge, that enabled Aspen Way to track the leased computers’ locations, remotely activate the computers’ webcams, and capture screen shots and key strokes.” The court follows the Restatement of Torts and finds that the complaint stated a cause of action for invasion of a reasonable expectation of privacy. Howard v. Aspen Way Enters., 2017 WY 152, 2017 Wyo. LEXIS 159 (Dec. 19, 2017). So, if the police know about Aspen Way’s records, they could subpoena a customer’s computer keystrokes and webcam through them?
Two men were with bicycles in Topeka in an alley talking to each other. As officers approached, one brandished a gun. A frisk of both was reasonable. United States v. Hartz, 2017 U.S. Dist. LEXIS 205595 (D. Kan. Dec. 14, 2017).*
The stop here was consensual and required no justification. A warrant check produced an outstanding warrant that led to arrest. United States v. Ford, 2017 U.S. Dist. LEXIS 204924 (W.D. Tenn. Nov. 2, 2017).*
Posted inComputer and cloud searches, Stop and frisk|Comments Off on WY recognizes invasion of privacy cause of action from Restatement of Torts for rental company’s tracking software on rented computers
Defendant went into a bar known for drug activity, stayed a few minutes, came out to his car, and drove off. There was a traffic offense and furtive gestures toward the console. The officer stopped him and searched the car. The automobile exception didn’t apply (just barely, the court admits) based solely on an undefined furtive guesture. Remanded for whether some other exception applies in the briefs. Marcopoulos v. State, 2017 Tex. Crim. App. LEXIS 1310 (Dec. 20, 2017) (dissent): Continue reading →
Posted inAutomobile exception|Comments Off on TX: Mere furtive gesture not enough for PC
Officers came to arrest defendant in his home. They conducted a protective sweep of the entire premises without reason to believe anyone else was present. Their plain views made it into a search warrant, and the search is suppressed. United States v. Bagley, 2017 U.S. App. LEXIS 25461 (10th Cir. Dec. 18, 2017): Continue reading →
Posted inProtective sweep|Comments Off on CA10: Protective sweep conducted without RS others present; SW suppressed
The officer’s subjective intent to delay the processing of defendant’s speeding ticket didn’t show that it was objectively slowed down to give time to get a drug dog to the scene to conduct a car sniff before the finishing of the ticket. United States v. Buchheim, 2017 U.S. Dist. LEXIS 207315 (N.D. Iowa Dec. 18, 2017).
Sitting in a car in a parking lot with the engine running for two hours and reportedly nodding off was at least reason to approach the car to check on the driver. It developed into reasonable suspicion she was under the influence for a field sobriety test. State v. Stover, 2017-Ohio-9097, 2017 Ohio App. LEXIS 5549 (12th Dist. Dec. 18, 2017).*
Recorded jail calls are admissible because there is no reasonable expectation of privacy in them. United States v. Feaster, 2017 U.S. Dist. LEXIS 206686 (W.D. N.Y. Dec. 15, 2017).*
There was a reasonable basis for finding probable cause that drug sales were occurring from defendant’s house, but the affidavit for the warrant failed to show which apartment in a 30 unit complex was his. Since New Jersey doesn’t recognize a good faith exception, this warrant is fatally defective despite this being an innocent mistake. State v. Boone, 2017 N.J. LEXIS 1422 (Dec. 18, 2017). Syllabus by the court: Continue reading →
Officer’s peek into backpack seeing cocaine before getting a search warrant for it didn’t taint the search. There was plenty of probable cause before the peek. “The agents disclosed in the warrant affidavit that they had looked inside the backpack after Guzman-Guerrero was apprehended and observed eight cellophane-wrapped bricks. But there was ample probable cause before the peek, and the district court properly found that the magistrate would have issued the warrant anyway. We agree that even when the information from the warrantless search is excised from the warrant affidavit, the remaining facts still establish probable cause. See Heckenkamp, 482 F.3d at 1149. [¶] The district court did not explicitly find that officers would have sought a warrant absent the initial search. We have previously remanded for such factfinding in similar situations. … But here, Guzman-Guerrero conceded—both in his briefing and at oral argument—that the officers would have sought a warrant even if they had not peeked into his backpack.” United States v. Guzman-Guerrero, 2017 U.S. App. LEXIS 25203 (9th Cir. Dec. 13, 2017).
Posted inIndependent source, Probable cause|Comments Off on CA9: Officer’s peek into backpack seeing cocaine before getting SW didn’t taint the search; plenty of PC before the peek
An AFOSI form states that a cell phone search has to occur within three days of their acquiring the phone. The court in the past has suggested that form change because it’s unreasonable to expect that it can be done that quickly. Taking more than three days to conduct the search was not unreasonable under the Fourth Amendment. United States v. Kicker, 2017 CCA LEXIS 756 (A.F. Ct. Crim. App. Dec. 14, 2017)* (memorandum).
Defendant was subject to a probation search condition. His PO showed up at the house, and he signed an express consent to search. He argued that the search was merely acquiescence to a claim of authority. It was: They had the power to search without consent. [And the court spends too much unnecessary time talking about consent. One could argue that this is enforced consent, but that’s not the point, it’s just a probation search.] United States v. Danner, 2017 U.S. App. LEXIS 25225 (11th Cir. Dec. 14, 2017).*
Posted inCell phones, Probation / Parole search, Reasonableness|Comments Off on A.F.Ct.Crim.App.: AFOSI form that said cell phone consent search would be done in 3 days wasn’t constitutionally binding
Defendant put on no proof of how long he was in another’s hotel room to claim standing in the room. The district court inferred, without much support, that he slept there for some brief period of time, and that’s not error, but the extent of his reasonable expectation of privacy was unexplored in the district court and defendant put on no proof of it. The proof showed he had no belongings there other than the shoes he was putting on when the police came to the door. Therefore, he had no standing. United States v. Aiken, 2017 U.S. App. LEXIS 25490 (1st Cir. Dec. 18, 2017): Continue reading →
Colorado requires notice of a right to refuse a consent search of a car. When there is probable cause and exigent circumstances, however, that’s enough for the search without even considering consent. People v. Ball, 2017 CO 108, 2017 Colo. LEXIS 1091 (Dec. 18, 2017) (see Treatise § 12.28): Continue reading →
Posted inAutomobile exception, Consent|Comments Off on CO: The statutory right to notice of right to refuse a consent search doesn’t apply when the automobile exception applies
As always, the answer depends on things we don’t yet know. Conceivably if you strain for unlikely facts, but probably not.
Posted inConsent, Reasonable expectation of privacy|Comments Off on Lawfare: Did the Special Counsel’s Access to the Transition’s Emails Violate the Fourth Amendment?
Peeing in a parking lot is reasonable suspicion of “public nudity” justifying a stop. State v. Harris, 2017 Fla. App. LEXIS 18994 (Fla. 5th DCA Dec. 15, 2017).
Defendant’s rental company maintenance man was acting as a private citizen when he entered to repair the oven and saw defendant’s silencer. United States v. Coffell, 2017 U.S. App. LEXIS 25221 (11th Cir. Dec. 14, 2017).*
“A motion to suppress is the proper procedural device to challenge the state’s substantial compliance with regulations governing the collection and handling of urine samples, but not to challenge admissibility based on evidentiary grounds such as authentication and chain of custody under Evid.R. 901.” State v. Woltz, 2017-Ohio-9042, 2017 Ohio App. LEXIS 5478 (4th Dist. Nov. 28, 2017).*
Defendant sought a motion to suppress which was actually a motion for directed finding of not guilty. They are different things. People v. Lomeli, 2017 IL App (3d) 150815, 2017 Ill. App. LEXIS 782 (Dec. 15, 2017).
This immigration checkpoint was well known and it was operated constitutionally at the time in question. United States v. Brown, 2017 U.S. Dist. LEXIS 205765 (D.Ariz. Oct. 3, 2017),* adopted, 2017 U.S. Dist. LEXIS 205535 (D. Ariz. Dec. 13, 2017).*
The search here was a juvenile probation search, and the search was valid by consent of the parent or by the probation search condition which requires the parents be informed of the condition. State v. Council, 2017-Ohio-9047, 2017 Ohio App. LEXIS 5481 (7th Dist. Dec. 13, 2017).*
Defendant was charged with rape of his daughter occurring daily for years. Defense counsel saw no reason to file a motion to suppress the search warrants for the house for the vibrator the victim described was used on her. Reviewing the search warrant materials in the post-conviction proceeding, no motion to suppress would have been successful. State v. Hunter, 2017 Del. Super. LEXIS 645 (Sept. 29, 2017).
Defendant moves to suppress a tax enforcement summons but doesn’t identify what he wanted suppressed. Suppression requires some affirmative misrepresentation, but none is alleged. United States v. Orrock, 2017 U.S. Dist. LEXIS 205021 (D. Nev. Oct. 4, 2017).*
Plaintiff filed FOIA requests over StringRay devices and ultimately prevailed. The court declines to award attorneys fees. Rudenberg v. Chief Deputy Attorney General, 2017 Del. Super. LEXIS 656 (Dec. 8, 2017).*
"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.
