House Republicans voted overwhelmingly Tuesday, by a margin of 215-205, to repeal a set of landmark privacy protections for Web users, issuing a sweeping rebuke of Internet policies enacted under the Obama administration. It also marks a sharp, partisan pivot toward letting Internet providers collect and sell their customers’ Web browsing history, location information, health data and other personal details. Continue reading →
Posted inUncategorized|Comments Off on WaPo: The House just voted to wipe out the FCC’s landmark Internet privacy protections | Money more important than privacy
“We cannot conclude that Edgar’s trial counsel was ineffective for not filing a motion to suppress based on an unresolved proposition of law.” State v. Edgar, 2017 UT App 53, 2017 Utah App. LEXIS 53 (March 23, 2017): Continue reading →
Posted inIneffective assistance|Comments Off on UT: Defense “counsel was [not] ineffective for not filing a motion to suppress based on an unresolved proposition of law.”
An allegation of falsely creating a case against the plaintiff is independent from the absolutely immune conduct of grand jury testimony. The district court erred in granting summary judgment to the defendants. Supplement jurisdiction claims dismissed also reversed. King v. Harwood, 2017 U.S. App. LEXIS 5264 (6th Cir. March 27, 2017).
Defendant’s motion to reconsider wasn’t timely because he waited way more than 14 days to ask for it while the government said it was going to do an interlocutory appeal. “Even if this court were to overlook the untimeliness of the Motion, however, defense counsel has failed to provide a valid basis for reconsideration.” United States v. Bohannon, 2017 U.S. Dist. LEXIS 44113 (D. Conn. March 27, 2017).*
Posted in§ 1983 / Bivens|Comments Off on CA6: Allegation of falsely creating PC is different than absolute immunity for GJ testimony
Plaintiff suppressed his search in state court for lack of reasonable suspicion, but he can’t get over the qualified immunity hurdle to sue the officer for the detention. The reasonable suspicion was thin at best, and, instead of nervousness, the defendant was calm. Too calm for the officer. When defendant didn’t consent, he called for a drug dog. The cases don’t have enough of a pattern for a fact bound situation like this to show the officer should be denied qualified immunity. De La Rosa v. White, 2017 U.S. App. LEXIS 5273 (8th Cir. March 27, 2017): Continue reading →
The facts before the USMJ, based on two emails, showed probable cause to believe that defendant’s two email accounts would have further evidence of money laundering. United States v. Bradley, 2017 U.S. Dist. LEXIS 43719 (W.D. Va. March 24, 2017).
A video of the execution of a search warrant from 1987 was available to the defense all along, so he gets no equitable tolling of filing a recent coram nobis petition based solely on the prosecutor’s misstatement on the record at trial that the video started in a different place than it did. Cauthern v. State, 2017 Tenn. Crim. App. LEXIS 223 (March 24, 2017).*
Posted inE-mail|Comments Off on W.D.Va.: Two emails showed PC to believe two email accounts would have evidence of money laundering
The entry into defendant’s house on probable cause but without an arrest warrant was unreasonable. The officers claimed exigency from the fact they announced and nobody answered. After the entry, the police went to defendant’s wife and told her of the entry and then asked her for consent to search, and that search revealed evidence not found before. The government proved attenuation from the illegal search and a later statement. United States v. Sanchez, 2017 U.S. Dist. LEXIS 43631 (M.D. Pa. March 24, 2017).
The change in the law about GPS installation doesn’t entitle a 2255 petitioner to relief or show IAC. Curbelo v. United States, 2017 U.S. Dist. LEXIS 44188 (M.D. Fla. March 27, 2017).*
Posted inEmergency / exigency|Comments Off on M.D.Pa.: Knocking and getting no answer is not exigency
“Additionally, there is an unresolved factual issue about how the police officers used their flashlights. If an officer uses a flashlight to block a person’s view, and thereby hinders his or her ability to leave an encounter, it could contribute to a conclusion that the officer engaged in a show of authority because a reasonable person might feel that he or she is not free to terminate the encounter.” State v. Washington, 284 Ore. App. 454, 2017 Ore. App. LEXIS 387 (March 22, 2017).
Defendant’s stop ripened into reasonable suspicion when he didn’t know where his passengers were traveling, his story started changing, and his nervousness became more apparent. United States v. Avalos, 2017 U.S. Dist. LEXIS 39565 (D. Neb. March 20, 2017).*
Posted inSeizure|Comments Off on OR: Officer’s flashlight in the eyes at night a factor in “show of authority” for a seizure
The attic is a part of the premises, and it’s part of a consent to search a house. The First Circuit already held that a search warrant for a house includes the attic. United States v. Gardiner, 2017 U.S. Dist. LEXIS 41235 (D. Me. March 22, 2017).
Defense counsel wasn’t ineffective for not filing a motion to suppress evidence first taken from trash bags outside his property and then again by consent. United States v. Smith, 2017 U.S. Dist. LEXIS 42049 (E.D. Pa. March 23, 2017).*
Posted inScope of search|Comments Off on D.Me.: Attic is part of the premises for consent or a SW
Defendant’s consent to search his cell phone for child pornography was voluntary. A host of facts support voluntariness. United States v. Mays, 2017 U.S. App. LEXIS 5246 (6th Cir. March 23, 2017)*: Continue reading →
Posted inConsent|Comments Off on CA6: Court details all the facts that make consent to search a cell phone voluntary
The evidence was suppressed, and the state appealed and it was affirmed. They dismissed and refiled later. The prior ruling was “law of the case,” and the state is bound by it. State v. Parry, 2017 Kan. LEXIS 116 (March 24, 2017) (see Treatise § 60.54): Continue reading →
Posted inUncategorized|Comments Off on KS: State is bound by prior suppression ruling when it dismisses and refiles
The evidence supported the trial court’s finding that defendant’s consent to search was not freely and voluntarily given because the officer’s explanation to defendant incorrectly intimated that she could be charged with tampering with evidence if it was concealed on her person and she did not affirmatively point it out to the police. Instead she was charged with the drugs. State v. Myer, 2017-Ohio-1046, 2017 Ohio App. LEXIS 1023 (5th Dist. March 22, 2017).
The continuation of defendant’s stop was by consent. He was unequivocally told it was over and he could go but he continued to talk. People v. West, 2017 IL App (3d) 130802, 2017 Ill. App. LEXIS 159 (March 23, 2017).*
Posted inConsent|Comments Off on OH5: Consent was invalid when def was told she’d only be charged with tampering if she didn’t disclose the heroin on her person
Defendant was a second grade teacher convicted of gross sexual imposition on some of his female students too whom he also showed child pornography. One of them ratted him out to the police, and that resulted in a search warrant for his classroom where two phones and child pornography were found. The search warrant was issued on probable cause of information directly from a victim. State v. Rausenberg, 2017-Ohio-1078, 2017 Ohio App. LEXIS 1044 (5th Dist. March 23, 2017).* [Note: The court here talks about not doubting the credibility of the officer, but that’s really the wrong question and it diverts from the real issue: It’s the credibility of the victim’s story to the officer which was detailed and believable. This may not have been a big deal, but that sentence didn’t need to be there because it might mislead others later.]
Posted inProbable cause|Comments Off on OH5: Child sexual assault victim’s story to the police led to SW for 2d grade teacher’s classroom for CP
The government’s claim of exigency from an alleged fear of “suicide by cop” is rejected here. “The Government invokes the inherent danger of suicide and, in particular, suicide by cop, but suicide by cop requires engagement with law enforcement. The officers chose the time and place that Hastings encountered law enforcement. The Government fails to show that any threat by Hastings to himself or the officers was imminent at the time they entered the hotel room.” United States v. Hastings, 2017 U.S. Dist. LEXIS 42266 (E.D. Tex. Jan. 20, 2017), adopted, 2017 U.S. Dist. LEXIS 42046 (E.D. Tex. March 23, 2017).
Defendant’s stop was for talking on her cell phone while driving, and she was found potentially under the influence. Probable cause is found for her arrest despite her refusal to submit to a BAC test or the state to obtain a BAC search warrant, and the DL suspension is affirmed. Espinoza v. Shiomoto, 2017 Cal. App. LEXIS 271 (4th Dist. March 24, 2017).*
Posted inEmergency / exigency|Comments Off on E.D.Tex.: Suicide by cop as exigency requires actual engagement with law enforcement
“The deliberate falsity or reckless disregard of the truth applies only to the affiant—here, Officer Ramirez—and not to any nongovernmental informant like Rodriguez. … What is more, we note that both Officer Ramirez and Rodriguez appeared before the issuing judge, thus providing that court with at least the opportunity to test Rodriguez’s statements. This factor militates against defendant, as does the fact that police did not fabricate Doe’s existence.” People v. Garcia, 2017 IL App (1st) 133398, 2017 Ill. App. LEXIS 152 (March 22, 2017).
Defendant was seen walking a few blocks away from the scene of a convenience store shooting. He was sweating on a cold November night. He matched the description broadcast, but the officer didn’t act on it to arrest right away. She went to the store, saw the video, and then put out a BOLO for him with the area last seen. He was found, and merely asked what he was doing, and said he had nothing to do with that shooting when he hadn’t been asked about a shooting. He was taken in for questioning. There was probable cause for taking him in, and his statement is not suppressed. Commonwealth v. Charley, 2017 Mass. App. LEXIS 33 (March 24, 2017).*
Posted inFranks doctrine, Informant hearsay|Comments Off on IL: Franks falsity applies to the officer, not the CI; also, the CI testified before the issuing magistrate, and that bolsters credibility
Today, ICE issued a new policy regarding use of immigration detainers. Sometimes called immigration holds, detainers are requests by ICE that a local law enforcement agency continue holding someone in the LEAs custody. The purpose of continued confinement is to give ICE time to pick up the individual. The policy announced today instructs immigration officers, including local police deputized as immigration officers pursuant to a 287(g) agreement, to issue detainers against anyone who they have probable cause to believe is removable from the United States.
Though couched in carefully crafted language, ICE’s new policy remains legally problematic. Like past detainer policies, today’s announced policy does not conform to key Fourth Amendment principles.
Posted inSeizure|Comments Off on Crimmigration blog: ICE’s New Immigration Detainer Policy Remains Legally Flawed
R&R recommends Playpen warrant be suppressed. United States v. Carlson, 16-cr-00317-JRT-FLN (D. Minn. March 23, 2017).
Defense counsel wasn’t ineffective for not challenging the particularity of the search warrant in this case. “In our view, the warrant describes the character of the property subject to seizure with sufficient particularity ‘to enable the searcher to reasonably ascertain and identify the things which are authorized to be seized.’” Cannon v. State, 2017 Tenn. Crim. App. LEXIS 204 (March 21, 2017).*
Defendant filed a motion to suppress and a motion to produce the “activity logs” of the officers involved for the 60 days prior to his stop. He wants to see whether the officers claimed to have smelled marijuana during those stops, too. Denied: “Simply put, West has not yet identified evidence that could support a finding that the requested activity logs reflect repeated detections of marijuana odor by Officers Carter and Carson such that the impeachment value of the logs would ‘alter the quantum of proof’ at the upcoming suppression hearing. Lykins, 428 Fed. App’x at 624. In West’s own words, there is a ‘possibility’ that the logs reflect false or numerous marijuana detections by Officers Carter and Carson. … But a mere ‘possibility’ is not enough to warrant disclosure under Rule 16.” United States v. West, 2017 U.S. Dist. LEXIS 41865 (E.D. Mich. March 23, 2017). [What would it really prove? Try talking to a client in your office who says the police smelled marijuana in his car. Often the client smells of marijuana because, if a regular smoker, they can’t even smell it on themselves, let alone in their own car. Just an observation …]
Posted inPlain view, feel, smell|Comments Off on E.D.Mich.: Defense can’t get “activity logs” of officers for 60 days prior to his stop to see if they also smelled MJ then; what would it prove?
The officer did not return the defendant’s driver’s license to him before beginning to question him while in his car in a hotel parking lot. Thus, a reasonable person would not have felt free to leave. Therefore, it was a Fourth Amendment violation and a custodial interrogation and thus the detective should have read defendant his Miranda rights before questioning. State v. Burris, 2017 N.C. App. LEXIS 175 (March 21, 2017).
Defendant stayed often with his girlfriend, and her consent to search her place was sufficient and shown to be voluntary. He was not shown to have been detained so he couldn’t have objected to the search. People v. Holley, 2017 NY Slip Op 02222, 2017 N.Y. App. Div. LEXIS 2218 (4th Dept. March 24, 2017).*
Posted inConsent, Reasonable suspicion, Seizure|Comments Off on NC: Driver not free to leave during questioning while officer holds his DL
There are about 300 Los Angeles County deputy sheriffs and higher-ranking officials whose personnel files include evidence that they lied, took bribes, used excessive force or committed some other type of misconduct that is sufficiently serious to undermine their credibility as prosecution witnesses in criminal cases. Prosecutors have a constitutional duty to share that kind of evidence about their witnesses with defendants, but they can’t do it if they don’t know about it, and the California Supreme Court has blocked them from poring through law enforcement files themselves to find out who those deputies might be.
Posted inPolice misconduct|Comments Off on LA Times: If sheriff’s deputies are involved in misconduct, prosecutors have to know
"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.
