Reasonable suspicion defendant is trafficking methamphetamine means there is likely the presence of firearms. State v. Flournoy, 2016 La. App. LEXIS 2225 (La.App. 3 Cir. Dec. 7, 2016).
Defendant juvenile was “in custody” and handcuffed in a patrol car being asked to consent to a search by the officer and being questioned by his father about the burglary in question all captured on the body cam. His confession was not shown voluntary, but it was harmless error. State in the interest of W.B., 2016 La. App. LEXIS 2199 (La.App. 4 Cir. Dec. 7, 2016).*
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Defendant juvenile left a cell phone in a stolen car, and it was password protected. The password protection “clearly indicat[ed] an intention to protect the privacy of all of the digital material on the cell phone or able to be accessed by it” when out of the owner’s possession. State v. K.C., 2016 Fla. App. LEXIS 18084 (Fla. 4th DCA Dec. 7, 2016): Continue reading →
Plaintiffs were two teenagers stopped by police for one vaguely matching the description of one of two robbers. One of them refused to put his phone away when the officer ordered him three times not to. At a § 1983 trial, one received judgment for $115,000 for false arrest and $100,000 for excessive force. The latter verdict was remitted down to $81,500. The district court properly granted judgment as a matter of law on liability because the detention and arrest was without legal justification. “First, no reasonable officer could have believed that there was reasonable suspicion to stop Elting under the circumstances. Second, no reasonable officer could have believed that there was probable cause to arrest Elting for obstruction of governmental administration on the facts presented.” Therefore, no qualified immunity. The verdicts were not excessive. Dancy v. McGinley, 2016 U.S. App. LEXIS 21753 (2d Cir. Dec. 7, 2016).
Plaintiff was accused of insurance fraud after a burglary at his house when he was on vacation. Ultimately he was prosecuted, but the case was dropped by the state. He sued the insurance company and others alleging bad faith prosecution and that there was an illegal search based on bogus information at a storage unit where a bunch of his stuff was found. Because he claimed no connection to the storage unit, there wasn’t any violation of his rights, and the case was properly dismissed for lack of standing. Pittman v. State Farm Fire & Cas. Co., 2016 U.S. App. LEXIS 21610 (11th Cir. Dec. 5, 2016).*
The trial court erred in denying defendant’s motion to suppress and in finding that the evidence was purged from the taint of an unlawful detention. The State conceded that an unlawful seizure occurred when the officer held onto defendant’s driver’s license solely for the purpose of running a warrants check, the district court used the incorrect time period in analyzing attenuation, the officer did not operate under a mistake of fact regarding defendant’s identity, his misconduct was not a precaution for officer safety or connected with a bona fide investigation, and the evidence was not attenuated so as to be purged of the taint from the officer’s misconduct. State v. Cohagan, 2016 Ida. App. LEXIS 139 (Dec. 5, 2016).
Defendant wasn’t stopped until he pulled over; blue lights alone isn’t a stop because he has to submit for it to be a stop. Here, there was an anonymous tip of potential DWI, and it was corroborated by the officer’s observations. State v. Mangum, 2016 N.C. App. LEXIS 1254 (Dec. 6, 2016).
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Defendant was charged with video voyeurism using his iPhone, and it was seized by the police. The trial court erred in not compelling the defendant to produce the password to the iPhone. Probable cause was already established with the issuance of the order to search, the phone was already connected to defendant, and producing the password wouldn’t be testimonial. State v. Stahl, 2016 Fla. App. LEXIS 18067 (Fla. 2d DCA Dec. 7, 2016): Continue reading →
Posted inCell phones|Comments Off on FL2: Order could issue to def to produce password for iPhone already seized by search warrant; compulsory testimony not the issue
Defendant was stopped in front of his own house for driving on a suspended license because of a DWI. The officer confirmed this before attempting an arrest. Defendant refused to submit to arrest and ran in his house. The officers gave chase. The entry into the house and arrest just inside the threshold was valid as a hot pursuit. State v. Adams, 2016 N.C. App. LEXIS 1236 (Dec. 6, 2016).
Because the court can’t separate findings on objective reasonableness for the officer’s actions in arresting the plaintiff from the evidence of pretext, the case is remanded. Morrow v. Washington, 2016 U.S. App. LEXIS 21576 (5th Cir. Dec. 2, 2016).*
Defendant was pulled over because an LPN check showed his license was suspended and there was a warrant out for him. When he got out of the car, he took off his jacket and left it in the car. Since he was being arrested for the warrant, his car was being towed. The officer called it a “search incident to arrest” although it was an inventory. The search of the jacket went beyond the purposes of the inventory and was unreasonable. Anderson v. State, 2016 Ind. App. LEXIS 432 (Dec. 5, 2016). [This one might be hard to justify elsewhere if you see it as inventory. It can easily be argued by the state that valuables could be in the jacket, too. Perhaps the problem was the officer being fast and loose with using search incident. Around here, they all use “inventory” like it’s a panacea or Fourth Amendment extinguisher.]
Defendant was parked in an alley and apparently completed a hand-to-hand drug deal. The officer approached the window and surprised defendant who was looking in the envelope he had just received. The officer could see the envelope contained a baggie similar to those holding drugs. Defendant put it in the glove compartment before getting out of the car. There was justification for a search of the car. (Defendant’s response to statements, however, is suppressed for lack of a Miranda warning.) State v. Turner, 2016-Ohio-7983, 2016 Ohio App. LEXIS 4868 (2d Dist. Dec. 2, 2016).*
The good faith exception doesn’t save a cell phone search that wasn’t even valid before Riley in California. “In People v. Diaz (2011) 51 Cal.4th 84 (Diaz), we held that, incident to a custodial arrest, police may search through data on a defendant’s cellular phone without obtaining a warrant. The United States Supreme Court subsequently held to the contrary in Riley v. California (2014) 573 U.S. __ (Riley). We conclude the warrantless search of defendant Paul Macabeo’s phone would not have been proper even under our decision in Diaz, and a reasonably well-trained officer would have so known. Under these circumstances, the search violated the Fourth Amendment and the good faith exception to the exclusionary rule does not apply. We reverse the Court of Appeal’s contrary judgment.” People v. Macabeo, 2016 Cal. LEXIS 9586 (Dec. 5, 2016).
It wasn’t even valid under the search incident doctrine, so why would the GFE conceivably even apply?
Posted inCell phones, Good faith exception|Comments Off on Cal.: The good faith exception doesn’t save a cell phone search that wasn’t even valid before Riley in California
There are plenty of recent stories involving white police officers who have shot and killed black men, including some who are on trial for those shootings. Then there’s the case of a white cop who did not shoot a black man holding a gun — and it may have cost him his job.
What kind of thinking requires a police officer to think to kill before thinking to try to save a life? Deadly force should be the last resort or the only option when it’s life or death, not the first response. In addition, that could end up being evidence the next time an officer of that department shoots somebody. “Protect and Serve” whom?
Posted inExcessive force|Comments Off on NPR: Military-Trained Police May Be Less Hasty To Shoot, But That Got This Vet Fired
It remains to be seen whether the rule of law will be upheld as it has been in the past, or whether it will be betrayed from within by its defenders or shrugged away by an indifferent and unappreciative people. Until we see how bench, bar and public meet the coming test, it is too early for self-congratulation about our resilience.
Posted inUncategorized|Comments Off on Law.com (editorial): Lawyers Must Be Ready to Fight for the Rule of Law
There is a reasonable expectation of privacy in text messages, and a search warrant on probable cause is required to search for and seize them. (The federal good faith exception is not applicable, and there is no state good faith exception.) Capital murder convictions and death sentence reversed. Love v. State, 2016 Tex. Crim. App. LEXIS 1445 (Dec. 7, 2016): Continue reading →
Post-Grady, the reasonableness requirement of the Fourth Amendment required the trial court conduct a hearing if the defendant objects to GPS monitoring. State v. Stroessenreuther, 2016 N.C. App. LEXIS 1240 (Dec. 6, 2016): Continue reading →
Posted inGPS / Tracking Data, Reasonableness|Comments Off on NC: After Grady, sex offender GPS monitoring requires a reasonableness hearing on def’s request
Assemblyman Rob Bonta and Sen. Bob Hertzberg said they plan to fire the first salvo Monday, when lawmakers descend upon the Capitol for the start of the 2017 legislative session. They will introduce bills stating the Legislature intends to enact laws that will reduce the number of people detained before trial and address the racial and economic disparities in the bail process.
Posted inArrest or entry on arrest|Comments Off on Los Angeles Times: California lawmakers want to reform a bail system they say ‘punishes the poor for being poor’
Between 2008 and 2013, Miami Gardens Police ran what one public defender called ‘New York City stop-and-frisk on steroids.’…Now a former Miami Gardens Police officer says he was fired for blowing the whistle on the department’s nefarious practices.
Posted inUncategorized|Comments Off on Miami New Times: Miami Gardens Cop Says He Was Fired for Reporting Illegal Stop-and-Frisks
"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.
