The trial court erred in finding that defendant lacked standing to challenge the propriety of the search of the apartment because defendant’s uncle, who resided in the apartment, told the police that defendant had stayed with his family “on and off” since he was five years old, and defendant slept on the couch, stored all of his clothes in the living room, and received mail at the apartment, and, as such, the evidence suggested that defendant had a legitimate privacy interest in the apartment and surrounding curtilage. The uncle, however, had apparent authority to consent. People v. Hill, 2017 NY Slip Op 05920, 2017 N.Y. App. Div. LEXIS 5860 (1st Dept. Aug. 1, 2017).
Defendant’s father had apparent authority to consent to a search, so defense counsel wasn’t ineffective for not challenging it. Cabrera v. State, 2017 Del. LEXIS 325 (July 31, 2017).*
Posted inApparent authority, Standing|Comments Off on NY1: Staying “on and off” with an uncle for many years, getting mail there, storing all his clothes there gave standing
City code inspectors’ entries into the common areas of plaintiff’s “historically unmanageable rental properties” did not violate the Fourth Amendment for lack of a reasonable expectation of privacy in those places. His claims as to allegedly protected areas was waived. Azam v. City of Columbia Heights, 2017 U.S. App. LEXIS 13799 (8th Cir. July 31, 2017).
“The Constitution does not require that officers always take arrestees suspected to be under the influence of drugs or alcohol, or reported by relatives to be at risk, to a hospital against their wishes. Grayson v. Peed, 195 F.3d 692, 696 (4th Cir. 1999). Mrs. Simpson’s decision to take her own life is tragic. The County, however, cannot be held responsible for fatal decisions she made that were, under all the circumstances, not obvious to government employees.” Sanchez v. Young County, 2017 U.S. App. LEXIS 13886 (5th Cir. July 31, 2017).*
When the Franks challenge is more of a different interpretation of facts, it doesn’t suffice. “And, frankly, Defendant is just arguing that a different interpretation should be placed on his conduct than Agent Cunningham’s interpretation – or most likely the interpretation of the officers at the scene and relayed to the agent – without providing any basis for the court to find that the agent intentionally or with reckless disregard misstated Defendant’s conduct the morning of November 21, 2013. The court does not even find that this statement is misleading much less included by the agent either intentionally or with deliberate recklessness.” United States v. Bates, 2017 U.S. Dist. LEXIS 116197 (N.D. Ga. June 1, 2017), adopted, 2017 U.S. Dist. LEXIS 115908 (N.D. Ga. July 24, 2017).
Posted inFranks doctrine|Comments Off on N.D.Ga.: A Franks challenge has to be more than just an argument over interpretation of meaning of facts
A search warrant for email can be for servers outside the jurisdiction of the court. United States v. McGuire, 2017 U.S. Dist. LEXIS 114471 (D. Nev. Feb. 9, 2017).
The Coast Guard was surveilling Arroyo Quemada Beach in Santa Barbara County for panga boats smuggling marijuana. They saw activity consistent with smuggling and offloading what could have been marijuana. The SBSD also came to surveil and what they saw gave them reasonable suspicion for stopping the vans leaving the area of the boats. United States v. Garcia, 2017 U.S. Dist. LEXIS 116407 (C.D. Cal. July 24, 2017).*
A journalist and a data scientist secured data from three million users easily by creating a fake marketing company, and were able to de-anonymise many users.
Posted inSurveillance technology|Comments Off on The Guardian: ‘Anonymous’ browsing data can be easily exposed, researchers reveal
In a ‘botched’ investigation, Immigrations and Customs Enforcement kept Davino Watson, a U.S. citizen, imprisoned as a deportable alien for nearly 3 1/2 years.
Noting the different approaches of the circuits to the standing of a driver of a rental car who is not on the contract but operating with permission of the renter, the totality of circumstances test is adopted, and he lacks standing. He urged this test be applied, lost before the USMJ, and argues against it on review. That’s the standard likely to be adopted in the circuit, on this record, he lacks standing. United States v. McCray, 2017 U.S. Dist. LEXIS 115689 (N.D. Ga. July 25, 2017), adopting 2017 U.S. Dist. LEXIS 116033 (N.D. Ga. June 15, 2017): Continue reading →
Posted inStanding|Comments Off on N.D.Ga. predicts CA11 would go with totality standard in standing in a borrowed rented car
Driver’s license checkpoints don’t require written rules. United States v. Moore, 2017 U.S. Dist. LEXIS 116012 (E.D. N.C. May 18, 2017), adopted, 2017 U.S. Dist. LEXIS 115453 (E.D. N.C. July 25, 2017): Continue reading →
Posted inRoadblocks|Comments Off on E.D.N.C.: Driver’s license checkpoints don’t require written rules
The state’s argument that the finding of a used syringe and a “cooker” on him would have been found lawfully anyway during a patdown was based on speculation the court can’t accept. State v. Sigfridson, 287 Ore. App. 74, 2017 Ore. App. LEXIS 914 (July 26, 2017).
Defendant’s vehicle was subjected to a stop and a search on probable cause from a CI based on the automobile exception. United States v. Alicea, 2017 U.S. Dist. LEXIS 113969 (D. Mass. July 21, 2017).*
Posted inInevitable discovery|Comments Off on OR: State’s inevitable discovery argument was speculative and rejected
Defendant preserved his argument that officer safety was not a valid justification in his memorandum of law, and that put the state and the trial court on notice that was an issue the state had to address, and didn’t. State v. Mejia, 287 Ore. App. 17, 2017 Ore. App. LEXIS 928 (July 26, 2017).
Defendant did not preserve the issue of whether opening the door of his car was a search by mentioning it for the first time in his closing argument at the hearing on the motion to suppress. The state wasn’t given enough notice to respond. State v. Geyer, 287 Ore. App. 25, 2017 Ore. App. LEXIS 916 (July 26, 2017).
The state didn’t sufficiently raise its alternative argument for affirmance to the trial court to get it ruled on. State v. Najar, 287 Ore. App. 98, 2017 Ore. App. LEXIS 925 (July 26, 2017).
The Border Patrol officer had reasonable suspicion to stop defendant’s vehicle for transporting persons across the border in the trunk. Defendant got past the checkpoint, but another officer’s suspicions of a following car were heightened. After two were found in the trunk, they gave chase to find defendant’s car. They had reasonable suspicion. United States v. Mackey, 2016 U.S. Dist. LEXIS 188672 (S.D. Tex. Oct. 24, 2016)*: Continue reading →
Posted inUncategorized|Comments Off on WaPo: Former Ariz. sheriff Joe Arpaio, who took extreme stance on immigration, is convicted of criminal contempt [including 4A violations, with opinion link]
"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.
