Cert. granted: United States v. Microsoft Corp., 17-2 (ScotusBlog)
Issue: Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider’s control, even if the provider has decided to store that material abroad.
This was inevitable, and it will be reversed. An American customer’s email can’t be hidden from a search warrant by claiming it’s in a server overseas.
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Birchfield came down after the blood draw in this case. Defendant only pled the Fourth Amendment and did not cite the state constitution. There is no good faith exception to the Pennsylvania exclusionary rule, but there is to the federal, and defendant must lose on his claim. Commonwealth v. Updike, 2017 PA Super 325, 2017 Pa. Super. LEXIS 797 (Oct. 13, 2017). In Commonwealth v. Carper, 2017 PA Super 326, 2017 Pa. Super. LEXIS 798 (Oct. 13, 2017), however, the defendant did plead the state constitution, and he prevails.
The U.S. attorney’s office for D.C. told a judge Friday that the government has ‘little interest’ in obtaining the names of thousands of people who ‘liked’ the Facebook page of a political group that helped plan the Jan. 20 demonstrations, and agreed to narrow the timeline for photos the government is seeking as part of its investigation.
An order compelling persons to provide fingerprints to unlock Apple devices doesn’t violation the self-incrimination clause of the Fifth Amendment. In re Search Warrant Application for [Name Redacted by the Court], 2017 U.S. Dist. LEXIS 169384 (N.D. Ill. Sept. 18, 2017): Continue reading →
Posted inCell phones|Comments Off on N.D.Ill.: Compelling persons to provide fingerprints to unlock Apple devices doesn’t violation the self-incrimination clause of the Fifth Amendment
Tax records were collected in an audit.”Failure to follow Internal Revenue manual does not mandate suppression of any evidence obtained in violation thereof.” United States v. Wright, 2017 U.S. Dist. LEXIS 167300 (S.D. Ohio Oct. 10, 2017).
“[I]f an objectively reasonable police officer would have suspected that the windows were tinted in violation of New York law, probable cause can be found, regardless of the individual officer’s behavior or beliefs.” Drugs were then seen in plain view. United States v. Derrick, 2017 U.S. Dist. LEXIS 169320 (S.D. N.Y. Oct. 12, 2017).*
Posted inExclusionary rule|Comments Off on S.D.Ohio: “Failure to follow Internal Revenue manual does not mandate suppression of any evidence obtained in violation thereof.”
Two plainclothes officers jumped out of a car and approached to men who fled. The court finds the officers didn’t identify themselves. This wasn’t reasonable suspicion, and the court finds exclusion warranted for the police conduct. United States v. Bell, 2017 U.S. Dist. LEXIS 166114 (S.D. N.Y. June 27, 2017): Continue reading →
Defendant’s consent was explicit: to search his house for a wanted man. When that man was found, the search had to end. Motion to suppress granted because officers exceeded the consent. United States v. Nelson, 2017 U.S. Dist. LEXIS 164992 (D. Kan. Oct. 4, 2017), on remand from 868 F.3d 885 (10th Cir. Aug. 17, 2017).
Another Playpen warrant sustained. United States v. Leonard, 2017 U.S. Dist. LEXIS 166263 (E.D. Va. Oct. 6, 2017).*
Posted inConsent, Scope of search|Comments Off on D.Kan.: Consent to USM was to search for wanted man, and continuing search after finding him exceeded consent
Defendant got a suppression hearing to put on proof of a Franks violation, and he fails to show with any proof that the statements were reckless or material. Perhaps the court should have never ordered a hearing for a lack of an offer of proof. United States v. Pruitt, 2017 U.S. Dist. LEXIS 165111 (D. Nev. Sept. 25, 2017): Continue reading →
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A six day delay in installing a court ordered tracking device wasn’t unreasonable without a showing that the probable cause dissipated in the meantime, and defendant didn’t. United States v. Thirkill, 2017 U.S. Dist. LEXIS 166131 (M.D. Tenn. Oct. 5, 2017).
The inventory was valid because it was within policy and there was nobody else there to drive it off. The discrepancies of what could have happened when through the timeline pointed out by the defense is not determinative because it still doesn’t show pretext or that this inventory was reasonable. United States v. Vales, 2017 U.S. Dist. LEXIS 164441 (S.D. Ind. Oct. 4, 2017).*
Posted inGPS / Tracking Data, Inventory|Comments Off on M.D.Tenn.: 6 day delay in installing a court ordered tracking device wasn’t unreasonable without a showing that PC dissipated
The Brignoni-Ponce factors on the totality showed reasonable suspicion. Defendant’s attempt to isolate the factors and provide innocent explanations for all doesn’t work because of Arvizu: there is still reasonable suspicion on the totality. United States v. Rivero, 2017 U.S. Dist. LEXIS 164755 (D.N.M. Oct. 2, 2017).*
Also finding reasonable suspicion for a border patrol immigration stop away from the board is United States v. Martin, 2017 U.S. Dist. LEXIS 166096 (D. Ariz. Oct. 6, 2017).*
Posted inImmigration arrests|Comments Off on Two on RS for immigration stops on RS
The suppression hearing judge found the officer credible on the question of whether the inventory was pretextual and concluded it was not. As a credibility determination, it can’t be reversed on appeal. The inventory was otherwise reasonable. Commonwealth v. Ehiabhi, 2017 Mass. LEXIS 763 (Oct. 13, 2017).*
Defendant was parked on a convenience store parking lot in a high crime area right in front of a “no loitering” sign. After ten minutes of him not getting out of the car, the officer approached to talk to him, and defendant said he was just “hanging out.” The officer at that point had probable cause to arrest for loitering. The patdown incident to the arrest produced heroin, and that created probable cause to search the car under the automobile exception. State v. Acoff, 2017-Ohio-8182, 2017 Ohio App. LEXIS 4546 (1st Dist. Oct. 13, 2017).*
Posted inInventory, Standards of review|Comments Off on MA: Inventory was not shown to be pretextual and was within policy
Defendant was arrested for drug dealing outside his apartment building. A search incident produced a set of keys. The police tried the keys on the apartment door until they worked. They didn’t enter but used the facts they’d developed plus that key fitting to get a warrant for the apartment. The use of the key in the door of an apartment was a “search” under the Fourth Amendment. It was not de minimus. However, that did not mean that the search under the warrant was invalid. The court concludes after much thoughtful analysis and surveying cases from elsewhere that the good faith exception should still apply even though one of the facts was obtained by a search in violation of the Fourth Amendment. (The court also finds that the Davis good faith exception is not applicable.) United States v. Bain, 2017 U.S. App. LEXIS 20032 (1st Cir. Oct. 13, 2017). This is an interesting opinion for its thoughtful and full analysis without any corner cutting: Continue reading →
Posted inGood faith exception, Search|Comments Off on CA1: Using def’s keys to find his apt door was a “search” but it was still in GF even though that fact was in warrant application for apt
Somebody leaning in the car window to talk to defendant then walking away as police approached is not probable cause to believe a drug deal just went down. Suppression motion should have been granted. State v. Ward, 2017-Ohio-8141, 2017 Ohio App. LEXIS 4512 (2d Dist. Oct. 11, 2017).
Trial court’s credibility determination that the officers saw marijuana in the vehicle is entitled to deference. State v. Hamilton, 2017-Ohio-8140, 2017 Ohio App. LEXIS 4513 (1st Dist. Oct. 11, 2017).*
The trial court did not err denying defendant’s motion to suppress because exigent circumstances justified the warrantless blood draw from defendant. The blood draw arose from a serious automobile accident, the officer was delayed in pursuing the usual procedures for obtaining a valid blood draw by the need to investigate the accident, and development of suspicion that alcohol was involved may have been delayed by defendant’s act of concealing beer cans. Aponte v. Commonwealth, 2017 Va. App. LEXIS 250 (Oct. 10, 2017).*
Posted inProbable cause|Comments Off on OH2: Somebody leaning in car window then leaving when police approach is not PC
Collective knowledge and reasonable suspicion doesn’t require the officer with knowledge actually communicate it to the others. “It is entirely permissible for an officer to engage in the investigation of a suspect based on the observations of another officer even when the officer conducting the investigation has not been supplied with the specific facts needed to support the seizure; however, the officer who made the observations must have the necessary facts to support the interdiction. This precept flows from the realities of police investigation, which often relies upon the cooperation of many police officers.” Commonwealth v. Smith, 2017 PA Super 318, 2017 Pa. Super. LEXIS 785 (Oct. 10, 2017).
Posted inCollective knowledge|Comments Off on PA: Collective knowledge and RS doesn’t require the officer with knowledge actually communicate it to the others
Within 100 miles of the border and the coastline, Border Patrol agents have broad authority to stop cars and people for immigration questions. For example, over the past few months the agency has set up checkpoints in New Hampshire, stopping hundreds of cars and arresting more than two dozen unauthorized immigrants.
Posted inImmigration checkpoints|Comments Off on WBUR: Broad Jurisdiction Of U.S. Border Patrol Raises Concerns About Racial Profiling
Defendant’s erratic behavior during a stop was reasonable suspicion when he also refused to stop digging around in his pockets. State v. Imani, 2017-Ohio-8113, 2017 Ohio App. LEXIS 4469 (5th Dist. Oct. 5, 2017).
The trial court did not err denying defendant’s motion to suppress because exigent circumstances justified the warrantless blood draw from defendant. The blood draw arose from a serious automobile accident, the officer was delayed in pursuing the usual procedures for obtaining a valid blood draw by the need to investigate the accident, and development of suspicion that alcohol was involved may have been delayed by defendant’s act of concealing beer cans. Aponte v. Commonwealth, 2017 Va. App. LEXIS 250 (Oct. 10, 2017).*
The Ohio Supreme Court follows Hudson under the state constitution and holds that a violation of knock-and-announce does not justify suppression of the search. The state constitution has been applied more broadly than the Fourth Amendment on occasion, but not here. State v. Bembry, 2017-Ohio-8114, 2017 Ohio LEXIS 2039 (Oct. 10, 2017).
The use of force was objectively reasonable under the Fourth Amendment because it was reasonable for the officer to shove the father aside so he could deal with the daughter, who was refusing to drop her gun while approaching an officer, and it was also not unconstitutional for the deputy to take control of the daughter, who had shown a willingness to hold onto her gun when told to drop it. Hamilton v. Roberts, 2017 U.S. App. LEXIS 19813 (11th Cir. Oct. 11, 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.
