Defendant did not have a suspicionless search condition on him. “This Court now joins the other courts in this district that have held that an officer must have reasonable suspicion to conduct a search of a probationer, unless the probationer is subject to a search clause that explicitly permits a search without suspicion.” United States v. Craft, 2017 U.S. Dist. LEXIS 181320 (N.D.Cal. Nov. 1, 2017).
Mere presence at an apartment where a search occurred does not confer standing to challenge the search. More must be alleged. People v. Jones, 2017 NY Slip Op 07641, 2017 N.Y. App. Div. LEXIS 7754 (3d Dept. Nov. 2, 2017).*
Posted inProbation / Parole search, Standing|Comments Off on N.D.Cal.: Suspicionless probation search condition not shown to be on defendant; motion to suppress granted
Defendant’s challenge to removal of a pill bottle from his person did not preserve a challenge to search of the pill bottle at the police station. “In any event, we conclude that Sado’s argument on appeal is without merit. Officer Dudoit’s seizure of the pill bottle from Sado’s pocket was pursuant to, and did not exceed the permissible scope of, a valid search incident to arrest. Accordingly, the pill bottle and its contents were not subject to suppression.” State v. Sado, 2017 Haw. App. LEXIS 447 (Oct. 31, 2017) (memorandum).
Summary judgment on plaintiff’s complaint against arresting officers was granted because there was probable cause for arrest. B.R. v. McGivern, 2017 U.S. App. LEXIS 22032 (6th Cir. Nov. 1, 2017).*
Posted in§ 1983 / Bivens, Probable cause, Standards of review|Comments Off on HI: Moving to suppress seizure of pill bottle incident to arrest didn’t cover later search of the bottle; issue waived
Defendant’s car was seized with probable cause for involvement in a series of bank robberies, and it could have been searched without a warrant under the automobile exception. The police got a search warrant instead and took eight days to search it. This delay was not unreasonable considering the police were investigating a series of bank robberies. United States v. Pleasant, 2017 U.S. Dist. LEXIS 181393 (E.D. Pa. Nov. 1, 2017): Continue reading →
Posted inUncategorized|Comments Off on E.D.Pa.: Def’s car could have been searched under auto. exception but police got a SW and took 8 days to search; not unreasonable under the circumstances
Less than a month after a first report was delivered on Washington, DC police body camera use, a second one has arrived. And it seems to contradict some assertions made in the first report.
The first report was put together by an extension of DC’s government called the Lab@DC. It showed body camera use doing almost nothing to curtail use of force by officers. This seemed to undercut the notion body cameras can be a tool of accountability. But they never will be — not if the agencies using them remain uninterested in punishing officers for misconduct.
Posted inBody cameras|Comments Off on Techdirt: Oversight Board Report On DC Police Cameras Contradicts Earlier Report’s Claims
Probable cause for a vehicle search under the automobile exception continues into impoundment for later inventory even though the vehicle is immobilized by where it is. Also, permission from the owner gives the driver of a car standing. United States v. Cabrera, 2017 U.S. Dist. LEXIS 176982 (D. Nev. Oct. 23, 2017).
Posted inAutomobile exception, Inventory|Comments Off on D.Nev.: PC for automobile exception continues into impoundment
An insurance company subject to government audit has standing to challenge the legal basis for the audit. Its Fourth Amendment claim is ripe: “Fidelity’s Fourth Amendment claim in Count 1 presents a purely legal question, which renders the claim fit for judicial review. See Abbott, 387 U.S. at 149 (purely legal issue was fit for judicial review). Fidelity argues that it will suffer hardship absent judicial review. Fidelity notes that the Seventh Circuit has held that a party need not show an injury beyond the violation of the Fourth Amendment to be entitled to redress for a violation of the Fourth Amendment. See Siebert, 256 F.3d at 655 (‘The law recognizes that law-abiding citizens can sue and recover general (or presumed) damages for a Fourth Amendment violation, even without proof of injury.’). Because Fidelity does not have to show injury to be entitled to redress and alleges that the audit process itself violates its constitutional rights, Fidelity has shown it will suffer an immediate hardship if the audit proceeds in violation of its rights. The claim in Count 1 is ripe.” The complaint also states a claim for relief. Motion to dismiss denied. Fid. & Guar. Life Ins. Co. v. Frerichs, 2017 U.S. Dist. LEXIS 181396 (C.D. Ill. Oct. 31, 2017).*
Posted in§ 1983 / Bivens|Comments Off on C.D.Ill.: Ins. co. has standing to sue that audit would be 4A violation, and its claim is ripe. Motion to dismiss denied.
State couldn’t appeal a suppression order after it moves to dismiss a case. It should have appealed the dismissal order or both. State v. Cruz, 2017 Wash. LEXIS 997 (Nov. 2, 2017).
Dropping a coat with a gun in the pocket while running from the police is an abandonment. People v. Campbell, 2017 NY Slip Op 07679, 2017 N.Y. App. Div. LEXIS 7729 (1st Dept. Nov. 2, 2017).*
Posted inAbandonment, Uncategorized|Comments Off on WA: Appeal should have been from dismissal after granted suppression order; appeal dismissed
The defendant was suspected of running a “pill mill.” A nurse practitioner worked for the clinic and was feeding information to the DEA as well as engaging in illegal acts, too. The DEA got the nurse to let an undercover officer come in as a fake patient to see the inside. This was not a question of private search. Instead, it is a question of apparent authority and trusting somebody who was really working for the police, and that’s not a Fourth Amendment violation. United States v. Lang, 2017 U.S. App. LEXIS 21860 (6th Cir. Oct. 31, 2017): Continue reading →
Posted inApparent authority, Consent|Comments Off on CA6: “Pill mill” employee was a snitch who let in undercover DEA agent as a patient; this was consent to enter and assumption of risk
“When reviewing the information known to Seidl at the time of Zavatson’s arrest, we conclude that no reasonable officer could have believed, based on anything more than speculation, that Zavatson had committed the purported theft. As an initial matter, there is no direct connection between Zavatson and the theft.” Multiple people were all potential suspects, and no individual could be identified. “Here, a reasonable jury could conclude that Seidl made deliberately false statements and intentional omissions in his warrant application that were material to Odgers’s finding of probable cause. For example, in the ‘Summary of Offense’ in his warrant request, Seidl stated that video surveillance showed Zavatson committing the crime, which it did not; Seidl stated that the theft occurred on a particular date and time, when in fact that information was uncertain; and Seidl failed to note that video surveillance placed Zavatson at the opposite end of the school three minutes after the suspect exited Sonnenfeld’s office.” Thus, he gets no qualified immunity. Zavatson v. City of Warren, 2017 U.S. App. LEXIS 21859 (6th Cir. Oct. 31, 2017).
Plaintiff sued over his body cavity search that was part of his state case. He litigated and lost in state trial court then pled guilty. His federal action does not implicate his conviction, and it can proceed under Heck v. Humphrey. Moreover, this case is not barred by collateral estoppel. The district court erred in dismissing. Remanded. Wiggins v. Metro. Gov’t of Nashville & Davidson County, 2017 U.S. App. LEXIS 21913 (6th Cir. May 8, 2017) (this is an order not an opinion, so it doesn’t appear on court’s opinion search): Continue reading →
Posted in§ 1983 / Bivens|Comments Off on CA6: Ptf’s guilty plea after losing suppression motion wasn’t collateral estoppel to § 1983 and Heck not implicated
Officers went to defendant’s mobile home on a knock-and-talk based on an attempt to buy a gun two weeks earlier that was denied because the address given didn’t match the driver’s license. At the door of the mobile home, the officers smelled marijuana and asked about how much was inside. Defendant answered: “A lot.” The officer’s claim of exigency for a protective sweep was belied by the record. There was no perceived threat inside, and the officers never acted like there was one. United States v. Leonard, 2017 U.S. Dist. LEXIS 179075 (D. Me. Oct. 30, 2017): Continue reading →
Posted inProtective sweep|Comments Off on D.Me.: Officer’s comments and actions on body recorder belie any need for protective sweep
Plaintiff’s father was acting erratic and was armed, and the police were called. Plaintiff was trying to defuse the situation. The SWAT team showed up, and, after a brief stand-off plaintiff’s father was shot while she was standing next to him. She was grabbed by the police, handcuffed, and detained for two hours. She stated a claim for an unreasonable detention. Two other circuits have held that detention of witnesses for over 90 minutes was unreasonable. She also alleged sufficient excessive force, and the district court was clearly erroneous in concluding otherwise. Lincoln v. Turner, 2017 U.S. App. LEXIS 21652 (5th Cir. Oct. 31, 2017): Continue reading →
Posted inReasonableness, Seizure|Comments Off on CA5: Witness to police shooting handcuffed and detained for 2 hours stated 4A claim for relief
Defendants did not violate clearly established Fourth Amendment law by accessing the Utah Controlled Substance Database on plaintiffs’ prescriptions (and the Fourth Amendment claim goes undecided). Pyle v. Woods, 2017 U.S. App. LEXIS 21713 (10th Cir. Nov. 1, 2017): Continue reading →
Posted in§ 1983 / Bivens, Administrative search, Qualified immunity|Comments Off on CA10: Defs did not violate clearly established 4A law by accessing the Utah Controlled Substance Database on plaintiffs’ prescriptions
Posted inBody cameras, Excessive force, Police misconduct|Comments Off on The New American: Utah Nurse Waives Lawsuit, Settles for $500,000 in Patient Privacy Case Written by Bob Adelmann
A third Appeals Court has ruled on the tactics the FBI used to track down users of a dark web child porn site. And the third one to rule — the First Circuit Appeals Court — continues the government’s shut out of suppression orders at the appellate level.
In the two previous cases to reach this level (Tenth and Eighth), the judges found the FBI’s Network Investigative Technique to be a search under the Fourth Amendment. This wasn’t much of an issue because the FBI had a warrant. The real issue was the warrant’s reach: it was issued in Virginia but the NIT found a home in computers all over the US, not to mention the rest of the world.
Posted inF.R.Crim.P. 41|Comments Off on techdirt: First Circuit Appeals Court Latest To Overturn Playpen Suppression Order
Last Thursday, I participated in an excellent debate on Carpenter v. United States, the pending Fourth Amendment case on government access to historical cell-site records. I argued that accessing those records is not a “search” of the cell-phone users, while Alex Abdo (formerly of the ACLU, now of the Knight First Amendment Institute) argued that it is a “search” and requires a warrant. My friend and colleague Jeffrey Rosen, the president of the National Constitution Center, very ably moderated.
Posted inCell site location information|Comments Off on WaPo: Debate on ‘Carpenter v. United States,’ the Fourth Amendment cell-site case
The police must become part of a robust partnership involving the community and other municipal agencies. Collectively and creatively, the members of this partnership must target the very small number of people and places that account for the overwhelming majority of crime and disorder in a community. So far, however, these collaborative, problem-solving, place-based strategies are the exception, not the norm. Until that changes, body worn cameras will simply capture precisely what we have long asked the police to do. That’s why most police departments like them. And that’s the problem.
Posted inBody cameras|Comments Off on Newsweek: Opinion: So If Police Body Cams Don’t Work, What’s the Solution?
"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.
