Along with several other advocacy groups, EFF signed on to an amicus brief this week in the case of the Commonwealth of Massachusetts v. James Keown, in support of requiring courts to set pre-search limits on the method of digital searches by law enforcement pursuant to judicially authorized warrants.
Keown was charged with murdering his wife after she died of an apparent poisoning. The evidence against him included a forensic search of his laptop, which revealed web searches for homemade poison. Although the police got a warrant to do this forensic examination, it allowed them to conduct a nearly unfettered search of the computer.
Posted inComputer and cloud searches|Comments Off on EFF Asks Massachusetts High Court to Require Clear Limits Before Allowing Searches of Digital Devices and Information
On remand from reversal of denial of defendant’s suppression motion, the court analyzed the evidence anew, albeit from a different perspective, and it denies the motion to suppress on different grounds. This does not violate the Fifth Circuit’s mandate. Defendant gets to conditionally plead anew if he wants to. United States v. Beene, 2017 U.S. Dist. LEXIS 5059 (W.D.La. Jan. 11, 2017).
CI’s information was fresh and detailed. “‘An explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles the [confidential informant’s] tip to greater weight than might otherwise be the case.’ Brundidge, 170 F.3d at 1353 (confidential informant’s ‘basis of knowledge was good’ where the informant gave officers ‘a detailed description of the drugs in the room and the sale of some of those drugs in his presence’) (citing Gates, 462 U.S. at 234).” United States v. Lambert, 2017 U.S. Dist. LEXIS 7649 (S.D.Ga. Jan. 19, 2017).*
Posted inInformant hearsay|Comments Off on W.D.La.: Deciding against def after remand on suppression motion on different ground didn’t violate mandate
Asset forfeiture programs in the majority of states across the country suffer from a lack of transparency and accountability, leaving the public in the dark about how much property police seize from citizens and where those proceeds go, the Institute for Justice, a libertarian-leaning public interest law firm, said in a report released Tuesday.
According to the report, 26 states have little to no transparency requirements surrounding asset forfeiture, and 14 of those states “do not appear to require any form of property tracking, leaving in doubt even such basic questions as what was seized and how much it was worth, who seized it, when it was seized, where it was seized, and why it was seized.” The rest of the states aren’t much better.
Posted inForfeiture|Comments Off on Reason: Majority of States Lack Transparency on Asset Forfeiture
A mixed motive for an inventory search doesn’t make it unreasonable as long as the inventory was reasonable. United States v. Dowl, 2017 U.S. Dist. LEXIS 7184 (E.D. Mich. Jan. 19, 2017): Continue reading →
Posted inInventory, Reasonableness|Comments Off on E.D.Mich.: Mixed motive for otherwise valid inventory doesn’t make it unreasonable
It does not violate the Fourth Amendment for a CI invited into defendant’s house for a drug deal to surreptitiously video record it. State v. Valdez, 2017-Ohio-241, 2017 Ohio App. LEXIS 242 (3d Dist. Jan. 23, 2017).
Defendant claims he merely acquiesced in his blood draw, but the court finds that he consented. McKibben v. State, 2017 Ga. App. LEXIS 15 (Jan. 23, 2017).*
Another Playpen warrant sustained. United States v. Smith, 2016 U.S. Dist. LEXIS 182365 (S.D.Tex. Sept. 28, 2016);* United States v. Rivera, 2016 U.S. Dist. LEXIS 182483 (E.D. La. July 19, 2016);* United States v. Sullivan, 2017 U.S. Dist. LEXIS 6859 (N.D. Ohio Jan. 18, 2017).*
Defense counsel failed to adequately defend the accused on his motion to suppress by not briefing and failing to get it before the court for a hearing, essentially abandoning the client. The issue was left cloudy enough in the record that the court can’t say that defendant would win or lose, so a hearing is required. State v. Martinez-Castellanos, 2017 UT App 13, 2017 Utah App. LEXIS 13 (Jan. 20, 2017): Continue reading →
Posted inIneffective assistance|Comments Off on UT: Def counsel failed to provide effective assistance in getting 4A issue before court for resolution
The state failed to corroborate at all the basis of knowledge or reliability of the anonymous source. The described car showing up at the appointed time isn’t enough. Commonwealth v. Pinto, 2017 Mass. LEXIS 21 (Jan. 23, 2017): Continue reading →
Posted inInformant hearsay|Comments Off on MA: Anonymous tip only corroborated on obvious details not sufficient
Despite decriminalization of less than 10g of marijuana, the officer here had probable cause to search vehicle where he detects odor of marijuana emanating from vehicle, as marijuana in any amount remains contraband, notwithstanding decriminalization of possession of less than ten grams of marijuana. Odor of marijuana gives rise to probable cause to believe that vehicle contains contraband or evidence of crime. There was probable cause to search vehicle based on the odor. Robinson v. State, 2017 Md. LEXIS 12 (Jan. 20, 2017).
Defendant raised the automobile exception via and IAC search claim on the premise that the state didn’t prove the vehicle was readily mobile. [Without an objection it doesn’t have to.] The search appears legal under the automobile exception. State v. Burton, 2017 N.C. App. LEXIS 31 (Jan. 17, 2017).*
Posted inPlain view, feel, smell|Comments Off on MD: Even with MJ decrim, smell of pot in car is PC
Officers knew that defendant had bought precursors to make methamphetamine, and that they were likely in his car. There was enough information for probable cause for a search of the car, independent of what the officers smelled. The appellate argument is essentially an effort to get the court of appeals to reweigh the evidence which it cannot do under the standard of review. Holloway v. State, 2017 Ind. App. LEXIS 23 (Jan. 19, 2017).
The smell of marijuana and visible marijuana shake on the floorboard justified the search of the car. State v. Guein, 2017 Kan. App. LEXIS 9 (Jan. 20, 2017).* [Note: Also noteworthy is the fact the dashcam video was edited to keep something inadmissible out of the hearing of the jury, but only the edited version made it into the appellate record. The court is troubled by this, and defense counsel should have seen to it that the unedited version was in the record, too. It may not have mattered in the end, but it is discussed in the opinion.]
Posted inPlain view, feel, smell|Comments Off on IN: Smell of meth was PC, aside from knowledge of purchase of precursors
Defendant’s stop and detention was with a show of force, and his statement wasn’t attenuated from his de facto arrest. Suppression order affirmed. State v. Pichardo, 360 Ore. 754 (Jan. 20, 2017), aff’g 275 Ore. App. 49, 364 P.3d 1 (2015) (posted here): Continue reading →
When Daryl Glenn Pawlak logged into a large child pornography website and downloaded images using his work computer, he was charged with receipt and possession of child pornography. / The operator of the website that was exploiting children, however, was not arrested./ That’s because it was the FBI. And federal prosecutors are defending the agency’s decision to secretly hijack and peddle child porn for two weeks as part of a sting operation.
Posted inComputer and cloud searches|Comments Off on Dallas News: The FBI ran a child porn site to catch predators, and now the accused are crying foul
It’s no secret online service providers hold tons of sensitive data about their customers, which is why EFF calls on companies to stand up to abusive or overbroad government demands for this data. It’s especially important for providers to play this role when the government forces them to stay silent and not notify their users about the government’s demands. In those cases, the service provider is simply the only party able to challenge the government. Unfortunately, companies are too often met with hurdles to vindicating their users’ rights. Two recent cases illustrate some of the problems they face.
Posted inE-mail|Comments Off on EFF: When the Law Stands in the Way of Tech Companies Standing Up for Their Users
Bloomberg: Microsoft Asserts Clients’ Rights in FBI E-Mail Searches Fight by Kartikay Mehrotra:
–First hurdle is convincing judge it can sue on their behalf
–Tech industry says future of mobile, cloud computing at stake Continue reading →
Posted inE-mail, Standing|Comments Off on Bloomberg: Microsoft Asserts Clients’ Rights in FBI E-Mail Searches Fight
Defendant’s cell phone was properly seized, and the order compelling him to provide his fingerprint to unlock the phone didn’t violate his privilege against self-incrimination because there was nothing testimonial about it. State v. Diamond, 2017 Minn. App. LEXIS 9 (Jan. 17, 2017): Continue reading →
Posted inUncategorized|Comments Off on MN: 5A not violated by order to use fingerprint to open cell phone for search
Exigent circumstances justified the officers’ entry into defendant’s home. There was a blood trail that did not go all the way back to his apartment, but there was a debris trail, too, he was badly hurt and bleeding, and he refused to talk about what happened inside. His door was left open and the light was on suggesting people still inside. Goben v. Commonwealth, 2016 Ky. LEXIS 630 (Dec. 15, 2016).
Police got an anonymous 911 call about three men loitering behind a residence in a “high crime area” and the tipster said they didn’t live there and one had a gun. The police arrived and one of the three put a baggie in his mouth. They were ordered to show their hands and get on the ground. Defendant didn’t comply. Defendant was put up against a chain link fence and frisked, but he turned his body to attempt to conceal a gun. A .45 was found anyway. Based on what the officer saw when he got there and defendant’s refusal to comply, there was reasonable suspicion. State v. Taylor, 2017-Ohio-139, 2017 Ohio App. LEXIS 128 (6th Dist. Jan. 13, 2017).*
Posted inEmergency / exigency, Informant hearsay|Comments Off on KY: Blood and debris trail to def’s open door and his refusal to talk about who was inside or what happened justified entry
Defendant was reported to have assaulted people outside his house with a small bat and a brandishing a firearm. Police arrived, and he ran inside. Police kicked the door in, secured him, cleared the house [a protective sweep] putting the other occupants together in a back room. Then they searched for the gun. The search for the gun was unreasonable and beyond the purpose of the entry. Also, defendant’s motion papers said he sought to suppress “the physical evidence,” but the hearing focused on the gun, not the bat. The gun should have been suppressed. [Likely the bat, too, if it hadn’t been waived, but the gun was a more serious crime.] People v. Williams, 2017 NY Slip Op 00329, 2017 N.Y. App. Div. LEXIS 331 (2d Dept. Jan. 18, 2017).
(1) Whether police officers who found late-night partiers inside a vacant home belonging to someone else had probable cause to arrest the partiers for trespassing under the Fourth Amendment, and in particular whether, when the owner of a vacant home informs police that he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects’ questionable claims of an innocent mental state; and (2) whether, even if there was no probable cause to arrest the apparent trespassers, the officers were entitled to qualified immunity because the law was not clearly established in this regard.
The District Court’s findings under Franks are subject to the clear error standard of review. Here, the officer learned a new fact between the wiretap application and the search warrant application, and there is some surface appeal to apply Franks. Nevertheless, it isn’t material to the finding of probable cause. United States v. Asker, 2017 U.S. App. LEXIS 1057 (6th Cir. Jan. 18, 2017).
Defendant’s DUI consent argument depended on a credibility determination that he lost in the trial court, and the evidence supports it. State v. Lutton, 2017 Ida. App. LEXIS 4 (Jan. 18, 2017).*
Posted inFranks doctrine, Standards of review|Comments Off on CA6: Franks challenges subject to clearly erroneous standard of review; here, materiality not shown
Taking gunshot residue without a warrant incident to arrest is reasonable because it disappears so fast. [The court analogizes blood alcohol, but GSR can disappear easily within minutes, simply by putting one’s hands in pockets or rubbing hands together.] State v. Boyd, 2017 W. Va. LEXIS 16 (Jan. 19, 2017) (citing plenty of authorities in n.20).
The incriminating nature of an open container is obvious. Stopping defendant alone in an isolated high crime known for gun violence justified a frisk of defendant’s car based on observations. Commonwealth v. Edwards, 2017 Mass. LEXIS 19 (Jan. 20, 2017).
Under Georgia law, a DNA sample from a first offender should be expunged from the system when he completes his probation or sentence. This one wasn’t. Whatever the statute says, it doesn’t violate the Fourth Amendment. United States v. Hinton, 2017 U.S. App. LEXIS 828 (11th Cir. Jan. 18, 2017): Continue reading →
Posted inDNA, Exclusionary rule|Comments Off on CA11: First offender DNA sample that should have been destroyed under state law but wasn’t could be used in federal prosecution
"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.
