“Because a request that a suspect consent to provide a DNA sample does not constitute interrogation under Miranda v. Arizona, … and DNA evidence is not testimonial or communicative in nature, a police officer does not violate a suspect’s Fifth Amendment rights by asking for such consent after the suspect has invoked his or her right to remain silent.” State v. Heinonen, 2017 Minn. App. LEXIS 19 (Jan. 30, 2017).
Defendant’s post-conviction argument about the search was really just a reargument of the appeal, and the trial court didn’t err denying a hearing. Lacey v. State, 2017 MT 18, 2017 Mont. LEXIS 30 (Jan. 31, 2017).*
Posted inDNA|Comments Off on MN: Request for consent to DNA after def lawyers up doesn’t violate 5A
Opinion from 4th Circuit Court of Appeals implies that exercising your Second Amendment rights means you inherently lose some of your Fourth and First Amendment rights.
Posted inReasonable suspicion|Comments Off on Reason: ‘Hit and Run’ Blog: ‘Armed’ is Same as ‘Armed and Dangerous’ When it Comes to Police Searches, 4th Circuit Concludes
The New York Police Department is implementing the country’s largest body camera program. More than 20,000 officers will wear the cameras once the rollout is complete by 2019, reports CBS News correspondent Jeff Pegues….Our CBS News team spent one afternoon with the department who says the cameras are a great tool. But others say the technology isn’t a cure-all when it comes to improving relationships between the police and the community.
Posted inBody searches|Comments Off on CBS News: Police body cameras on the rise, but how effective are they?
Supervised release term of “random inspections of his computer’s internet and email usage history” reasonably justified search of defendant’s computer. United States v. McCoy, 2017 U.S. App. LEXIS 1695 (8th Cir. Jan. 31, 2017): Continue reading →
Posted inComputer and cloud searches, Probation / Parole search|Comments Off on CA8: Supervised release term of “random inspections of his computer’s internet and email usage history” reasonably justified search of def’s computer
A passenger’s furtive movements can justify ordering him out of the car. As an aside, the court chides defense counsel for not addressing the issue before appeal so the parties could develop the record. [Most other states would say it was waived.] State v. Bacome, 2017 N.J. LEXIS 120 (Jan. 31, 2017).
Defendant’s sentence cannot be enhanced for refusing a blood test under Birchfield. Commonwealth v. Giron, 2017 PA Super 23, 2017 Pa. Super. LEXIS 60 (Jan. 31, 2017).*
Hot pursuit for misdemeanor possession of marijuana and nonviolent fleeing does not permit a warrantless entry into the home. State v. Markus, 2017 Fla. LEXIS 233 (Jan. 31, 2017), aff’g Markus v. State, 160 So. 3d 488 (Fla. 1st DCA 2015): Continue reading →
Posted inArrest or entry on arrest, Hot pursuit|Comments Off on FL: Hot pursuit for misd possession of MJ and nonviolent fleeing does not permit warrantless entry into the home
The Court is likely to consider cellphone location data, encryption, and other privacy issues in the coming years.
Posted inCell site location information|Comments Off on BuzzFeed: Gorsuch Might Play Key Role In Cellphone Privacy Issues If Confirmed To The Supreme Court
Gorsuch has also rejected pro-government deference in the Fourth Amendment context. For instance, in his 2016 dissent in United States v. Carloss, Gorsuch strongly objected to the majority’s view that police officers had the “implied consent” to enter private property for a warrantless “knock and talk” on a homeowner’s front porch even though the homeowner had placed multiple “No Trespassing” signs around the property and even on the front door. Under the government’s flawed theory of the Fourth Amendment, Gorsuch complained, “a homeowner may post as many No Trespassing signs as she wishes. She might add a wall or a medieval-style moat, too. Maybe razor wire and battlements and mantraps besides. Even that isn’t enough to revoke the state’s right to enter.” As Gorsuch dryly observed, “this line of reasoning seems to me difficult to reconcile with the Constitution of the founders’ design.”
Posted inSCOTUS|Comments Off on Reason: Trump Nominates Neil Gorsuch to the Supreme Court; Fourth Amendment?
Letter from NACDL Past President Gerry Morris of Austin, Texas today, in part:
I am pleased to report that the Foundation for Criminal Justice has received a significant new grant from the John D. and Catherine T. MacArthur Foundation. The grant will fund the establishment of an NACDL Fourth Amendment Center. I have long thought that this is a perfect project for NACDL, and I am grateful to the NACDL Staff for helping to make this a reality. Continue reading →
Posted inUncategorized|Comments Off on NACDL gets grant to fund NACDL Fourth Amendment Center
Noting in the affidavit for search warrant that defendant was allegedly involved in drug and gun sales and that drug dealers regularly use cell phones was enough to get a search warrant for his cell phones contents. Recording the serial number off defendant’s cell phone after he was booked in wasn’t an unreasonable search. United States v. Lowe, 2017 U.S. App. LEXIS 1528 (9th Cir. Jan. 27, 2017): Continue reading →
Posted inCell phones, Nexus|Comments Off on CA9: ATF officer’s SW affidavit said dealers of illegal drugs and guns often use cell phones showed nexus; recording phone’s SN at book-in wasn’t unreasonable
The state here failed to show nexus between defendant’s cell phone and a shooting incident. In addition, the search warrant lacked all particularity — it sought to search three cell phones for data and calls without time limit or scope. Motion to suppress granted. State v. Westcott, 2017 Del. Super. LEXIS 41 (Jan. 23, 2017): Continue reading →
Posted inCell phones, Nexus, Particularity|Comments Off on DE: Just being involved in a shooting doesn’t give nexus to search a cell phone
The officer knew defendant had a suspended DL, and seeing him drive to a convenience store justified his detention and arrest. A frisk incident to the arrest produced drug paraphernalia which was validly found. State v. Lee, 2017 Ida. App. LEXIS 8 (Jan. 25, 2017).
“Here, the warrantless entry of Wilkinson’s vehicle was permissible under the medical assistance exception to the Fourth Amendment because it was reasonable for the officers to believe Wilkinson needed medical attention. The Unversaws placed a 911 call because a strange car that had been wrecked was parked in their driveway, and the driver of the vehicle was disoriented and unsteady. The officers responded to the call and confirmed the Unversaws’ observations. Wilkinson was slumped over behind the wheel, his speech was slurred, and he responded, ‘I don’t know’ when asked if he needed help.” Then there was a plain view. Wilkinson v. State, 2017 Ind. App. LEXIS 32 (Jan. 27, 2017).*
The words and actions of candidate, President-Elect, and now President Donald Trump indicate that this Administration will aggressively seek to use state power with little regard for the rule of law. A great deal has been written about the constitutional and administrative law regulating inter- and intra-branch separation of powers. However, there is no comprehensive legal and theoretical analysis of government lawyers as lawyers, subject to regulation by state rules of professional conduct and other positive legal standards. This Article engages with numerous contested issues in the law of lawyering to provide a constructive legal and ethical conception of government legal advisors. In practical terms, it may serve as a source of guidance for lawyers in the new administration, or as a roadmap for discipline by lawyer regulators. More theoretically, it defends a conception of the rule of law as a practice of reason-giving, not dependent upon legal objectivity or determinacy.
Posted inUncategorized|Comments Off on SSRN: Government Lawyers in the Trump Administration
Should a person forfeit certain constitutional rights just because he or she chooses to carry a firearm lawfully in public? That’s exactly what a federal appellate judge declared this week in a case involving police stop-and-frisk.
The case is United States v. Robinson and it was heard by all 16 judges on the United States Court of Appeals for the Fourth Circuit.
Posted inReasonable suspicion|Comments Off on The Hill: Fourth Circuit shreds civil liberties for public gun carry
The search of the call log on the cell phone in the car defendant was driving a year before Riley was valid. He also disavowed the cell phone and lacks standing. United States v. Monestime, 2017 U.S. App. LEXIS 1501 (3d Cir. Jan. 27, 2017).
“Assuming without deciding that the search warrants lacked requisite probable cause, the Court concludes that the evidence is nonetheless admissible under the good-faith exception to the exclusionary rule as articulated in United States v. Leon, ….” The search warrant application was not so bereft of probable cause that it should be suppressed. United States v. Johnson, 2016 U.S. Dist. LEXIS 182781 (D.Minn. Dec. 23, 2016),* adopted, 2017 U.S. Dist. LEXIS 10684 (D.Minn. Jan. 24, 2017).*
Posted inCell phones, Standing|Comments Off on CA3: Disavowal of cell phone in car was a waiver of standing
Defendant was stopped for no license plate and weaving. When the window came down, the smell of marijuana was apparent. The driver appeared under the influence. The passenger became agitated, and that confirmed to the officer he was too. A patdown produced $19,000 in cash from the person. A search of the car produced a pound of methamphetamine. All this was valid because the smell gave probable cause. United States v. Mayfield, 2017 U.S. App. LEXIS 1488 (8th Cir. Jan. 27, 2017).*
Officers reasonably believed that the consenter had apparent authority to consent to a search of the premises. United States v. Yeager, 2016 U.S. Dist. LEXIS 182995 (N.D. Iowa Nov. 21, 2016),* adopted, 2017 U.S. Dist. LEXIS 11315 (N.D. Iowa Jan. 27, 2017).*
Officers entered defendant’s home to secure a firearm and then returned with a search warrant. Defendant’s consent argument is moot. Lundy v. Commonwealth, 2017 Ky. App. LEXIS 22 (Jan. 27, 2017).
The court properly overruled defendant’s motion to suppress a safety patdown that produced $101 in cash. “Here, the officer’s search of petitioner’s person and seizure of the currency were non-intrusive means that were ‘necessary in the circumstances to ensure the suspect … [was] not armed.’ David, 205 W. Va. at 397, 518 S.E.2d at 401.” State v. Fidler, 2017 W. Va. LEXIS 28 (Jan. 27, 2017)* (memorandum) [How currency is seizable in a mere safety search is beyond me since it’s not a weapon. It is, however, admissible if it was the product of a search incident to the arrest because $101 was given defendant by the CI. Right result, wrong reason, but this appears settled in WV.]
Defendants were suspected of being involved in a shooting outside a federal building. One defendant can’t move to suppress the seizure of a gun from the person of a codefendant. Officers following them suspected a gun was transferred between them as they walked away from the scene, and that justified their frisk. United States v. Cabreras-Cañuelas, 2016 U.S. Dist. LEXIS 182929 (D.P.R. Oct. 3, 2016).*
A warrantless blood draw was permissible where defendant was unconscious at the scene of an accident and unconscious through the blood draw at the hospital. Commonwealth v. March, 2017 PA Super 18, 2017 Pa. Super. LEXIS 46 (Jan. 26, 2017).
Defendant lacked standing to challenge the search of an apartment recovering a one pot meth lab when he didn’t live there or wasn’t an overnight guest. State v. Burton, 2017-Ohio-322, 2017 Ohio App. LEXIS 317 (4th Dist. Jan. 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.
