The officer had reasonable suspicion something was up and the driver of a van already stopped consented to a search of the van, but that did not include a backpack that didn’t belong to him. Defendant did not abandon the backpack by not affirmatively claiming that it was his when he was claiming other property in the vehicle. There was no affirmative disclaiming ownership. State v. Jones, 280 Ore. App. 135, 2016 Ore. App. LEXIS 975 (Aug. 3, 2016).
Defendant claimed the search warrant was overbroad because his bedroom was actually a separate dwelling unit within the house named in the warrant. The court finds as fact that it wasn’t a separate dwelling unit and that the place was objectively a single family dwelling. United States v. Hoston, 2016 U.S. Dist. LEXIS 102737 (E.D.N.C. July 11, 2016), adopted, 2016 U.S. Dist. LEXIS 102423 (E.D.N.C. Aug. 4, 2016).*
Posted inAbandonment, Overbreadth|Comments Off on OR: Def didn’t abandon backpack by not affirmatively claiming ownership of it during vehicle search by consent
In a Bronx stop and frisk, the fact that the four NYPD Stop, Question and Frisk Report Worksheets for each person frisked didn’t have the detail of the officers’ hearing testimony or resulted in minor discrepancies doesn’t make them unbelievable. United States v. Winkfield, 2016 U.S. Dist. LEXIS 104260 (S.D.N.Y. Aug. 1, 2016): Continue reading →
Posted inBurden of proof, Reasonable suspicion|Comments Off on S.D.N.Y.: Lack of full detail and minor discrepancies from reports didn’t make officers unbelievable
Another NIT warrant upheld in a child pornography case. United States v. Laurita, 2016 U.S. Dist. LEXIS 103405 (D.Neb. Aug. 5, 2016)* (collecting cases): Continue reading →
Posted inF.R.Crim.P. 41|Comments Off on D.Neb., M.D.Fla., C.D.Cal. also sustain an NIT search warrant for IP addresses
Use of a Stingray to capture defendants’ cell phone location information in real time was unreasonable under the Fourth Amendment [without much discussion], but the defendants lack standing to complain. The mere fact the government referred to the phones as the “defendants’” was insufficient in itself to confer standing. They still had to prove their connections to the phones and their reasonable expectation of privacy in them. They used burner phones not registered to anybody except one was listed to “LOL LOL,” and they disassociated themselves from the phones. United States v. Harris, 2016 U.S. Dist. LEXIS 102731 (M.D.Fla. July 25, 2016): Continue reading →
Under the Stored Communications Act, one must still prove standing as an “aggrieved person.” A state court cell phone tracking order is entitled to good faith exception deference, particularly since it was issued prior to any cases on the subject. United States v. Harris, 2016 U.S. Dist. LEXIS 102732 (M.D.Fla. July 31, 2016): Continue reading →
In the wake of high-profile police shootings, the Obama administration has encouraged local police departments to equip their officers with body-worn cameras. The devices, said Attorney General Loretta Lynch, ‘hold tremendous promise for enhancing transparency, promoting accountability, and advancing public safety.’ A new study by Temple University researchers, however, suggests that the wearable video cameras may not lead to fewer police shootings of civilians, but may actually make officers more likely to use lethal force.
Posted inBody cameras|Comments Off on WSJ Blog: Study Links Police Bodycams to Increase in Shooting Deaths
Search for evidence under a statute later declared unconstitutional in state court had to be suppressed because Texas has only a limited good faith exception. Siller v. State, 2016 Tex. App. LEXIS 8733 (Tex.App. – Eastland Aug. 11, 2016).
Speculative allegations of the CI’s motive to falsify don’t rise to the level of a Franks violation. “Such speculative allegations do not amount to the substantial preliminary showing required to trigger a Franks hearing. Franks, 438 U.S. at 171 (explaining that a defendant’s attack on a search warrant affidavit ‘must be more than conclusory and must be supported by more than a mere desire to cross-examine’).” The officer’s failure to include the CI’s criminal history was negligence at worst, and it wasn’t material. United States v. Shaw, 2016 U.S. Dist. LEXIS 102491 (D.Ore. Aug. 4, 2016).*
Posted inFranks doctrine, Good faith exception|Comments Off on TX11: A search for evidence under an unconstitutional statute still suppressed in Texas despite good faith
Defendant was stopped at an immigration checkpoint at Laredo, saying he was going to San Antonio. The officer found the story dubious, ran the paperwork in seconds, and then got a drug dog which did not alert. Then defendant consented to a search and the officer found eleven kilos of methamphetamine in the lining to two empty suitcases. The stop was reasonable in length and the consent was valid. United States v. Hipolito-Ramirez\, 2016 U.S. App. LEXIS 14637 (5th Cir. Aug. 9, 2016).*
After defendant’s arrest, his bag was found and searched by private parties before turning it over to the police. the private search was valid. United States v. Jordan, 2016 U.S. Dist. LEXIS 102365 (N.D.W.Va. Aug. 4, 2016).*
Although the stop of defendant’s car was unreasonable, defendant still doesn’t have standing to question the search of his passenger. United States v. Kuespert, 773 F.2d 1066 (9th Cir. 1985). United States v. Abarza, 2016 U.S. Dist. LEXIS 103035 (D.Ore. Aug. 5, 2016).
It wasn’t error to deny defendant’s motion to suppress his warrantless blood draw because the State showed the implied consent exception to the warrant requirement applied. The officer had reasonable grounds to believe defendant was DUI, so he gave his implied consent to having his blood drawn due to the implied consent statute based on the totality of the circumstances. Defendant’s consent was voluntary and continued through to the blood draw; nothing showed he drove involuntarily or withdrew his consent. The State did not have to prove the consent was continuous, and he did not claim he was told he had to submit to the blood draw. State v. Charlson, 2016 Ida. LEXIS 230 (Aug. 5, 2016).*
Posted inDrug or alcohol testing, Standing|Comments Off on D.Ore.: Driver doesn’t have standing to challenge search of passenger’s person
“Here, the Government has adduced no testimony or other evidence explaining the basis of Defendant’s arrest or even identifying the officers who arrested her. The Government has also not introduced any evidence of the circumstances of Defendant’s arrest, including when and where she was arrested. The closest thing that the Government points to is a statement from a Detective that encountered Defendant at the station, that ‘[a]s far as I understand, she was arrested on the scene.’ … This Detective had no personal knowledge of the arrest, however, and provided no facts to show a reliable foundation to support his unexplained ‘understanding].’ [¶] Obviously, unexplained suspicions or conclusions do not amount to probable cause. Thus, the Government appears to mainly focus on the conversation overheard by EMT Reese. Oddly, instead of calling the officers who actually investigated and arrested Defendant, or the officer who actually interviewed the shooting victim, the Government only called an EMT who overheard that interview. [¶] The Government’s burden to prove probable cause is not a high one. And, while unusual, the Court is aware of no legal barrier preventing the Government from relying on indirect, circumstantial evidence of the facts surrounding an arrest and reasons for it. But there are simply too many holes in the evidence presented here for the Court to find that the arresting officers had probable cause to arrest Defendant.” United States v. Jackson, 2016 U.S. Dist. LEXIS 103275 (N.D.Ga. June 16, 2016),* adopted 2016 U.S. Dist. LEXIS 102916 (N.D. Ga. Aug. 4, 2016).*
Posted inProbable cause|Comments Off on N.D.Ga.: PC to arrest isn’t a high burden, and the govt can’t meet it here
A violation of Rule 41 simply is not a Fourth Amendment violation. The case defendant cites isn’t on point. “[T]he defendant ignores the fact that, thirteen years after [that] decision, and almost thirty years before the search that resulted in the defendant’s prosecution, the Seventh Circuit addressed, and rejected, the argument he makes in this case.” The court won’t adopt Justice Alito’s concurrence in Jones. “The defendant argues, based on the above language in Justice Alito’s concurrence, that this court should hold (a) that the question of whether a GPS warrant violates the Fourth Amendment should be based on the duration of the monitoring period, and (b) that monitoring periods of longer than four weeks (including the eight-week period authorized by the warrant in his case) violate the Fourth Amendment.” No court has yet. United States v. Felton, 2016 U.S. Dist. LEXIS 101727 (E.D.Wis. Aug. 2, 2016).
The officer had reasonable suspicion to stop defendant for domestic assault, so defendant’s flight was an offense. Rodriguez v. State, 2016 Tex. App. LEXIS 8494 (Tex. App. – Amarillo Aug. 8, 2016).
Plaintiffs in a civil case sought search warrant materials that had nothing to do with the civil case, and it’s denied without prejudice to do a separate action. Societe D’Equipments Internationaux Nigeria, Inc. v. Dolarian Capital, 2016 U.S. Dist. LEXIS 104335 (E.D.Cal. Aug. 8, 2016).
The government executed five search warrants and seized thousands of pages of paper and eleven computer hard drives. The filter team hasn’t completed its review. It needs to and the parties file a report within ten days as to when it will be done. United States v. Musto, 2016 U.S. Dist. LEXIS 103078 (M.D.Pa. Aug. 5, 2016).*
The DOJ may be headed into the business of breaking blinds in bulk. Innocuous-sounding legislation that would allow the FBI to shut down botnets contains some serious privacy implications.
Posted inComputer and cloud searches|Comments Off on techdirt: Botnet Bill Could Give FBI Permission To Take Warrantless Peeks At The Contents Of People’s Computers
WASHINGTON — The Obama administration is moving forward with a plan to better track killings by police officers, as heightened national scrutiny of such deaths has reinforced criticism of its reliance on self-reporting by state and local law enforcement agencies.
In a notice published in the Federal Register this week, the Justice Department said it would ask law enforcement agencies and medical examiner’s offices to fill out forms when there is a news report or another indication that a person died while in police custody.
Posted inExcessive force|Comments Off on NYTimes: Justice Department to Streamline Tracking of Police Killings
Defendants used a civil eviction order twice. The first time was lawful and based on a court order. The landlord let the plaintiffs back in. Then the first order was somehow stamped by the clerk to reuse it to evict again. Defendants obtained summary judgment but it’s reversed. Zoretic v. Darge, 2016 U.S. App. LEXIS 14537 (7th Cir. Aug. 8, 2016): Continue reading →
Posted inQualified immunity|Comments Off on CA7: Reused civil eviction order was without legal authority and qualified immunity denied
Seventh Circuit grants rehearing en banc in a case the dissent criticized as “enabling police seizures for ‘parking while black'”: Thanks to a reader of the blog, I have learned that yesterday the U.S. Court of Appeals for the Seventh Circuit issued this order granting rehearing en banc in the case.
Yesterday’s order granting en banc review vacated the earlier opinion of a divided three-judge Seventh Circuit panel. This blog’s coverage of that earlier decision appeared here and here.
Posted at 04:18 PM by Howard Bashman
Utah v. Strieff is discussed in six sections in the 2016 supplement, primarily in § 10.02:
§ 10.02 on the attenuation doctrine
Page 10-12 Add at end of section:
In Utah v. Strieff,63 the officer had been tipped that drugs were being sold out of a particular house, and the police had been watching it, noticing the short stay of the visitors. Strieff came out of the house after his short stay, and the officer followed and stopped him just to see what he had to say for himself. The officer asked Strieff for his identification, and then ran it, as department policy dictated, finding a warrant which led to Strieff’s search incident and finding methamphetamine and drug paraphernalia.64 The stop was conceded by the state to be unreasonable and without reasonable suspicion, but the Utah Court of Appeals found the evidence admissible because the finding of the warrant happened as a matter of course, searching for warrants wasn’t the purpose of the stop, and the discovery of the warrant was not the officer exploiting the primary illegality of the stop.65 The Utah Supreme Court reversed holding that the Supreme Court’s attenuation cases require that there be an intervening act of the defendant’s free will.66 Continue reading →
Posted inAttenuation|Comments Off on Utah v. Strieff, 2016 Supplement, § 10.02; maybe overcoming Strieff
Defendant’s motion to suppress her cell phone search two weeks after conviction wasn’t timely, and no good cause shown. Riley being decided after her conviction is not “good cause.” United States v. Gonzalez, 2016 U.S. App. LEXIS 14298 (9th Cir. Aug. 4, 2016).* (Besides, won’t she lose under Davis?)
Police had been receiving information for a long time about defendant’s alleged drug dealing, so they did a trash pull and found incriminating evidence [considerably more than the usual trash pull that I’ve seen]. The information was not stale because the drug operation was ongoing. United States v. Smith, 2016 U.S. App. LEXIS 14418 (10th Cir. Aug. 5, 2016).*
Posted inMotion to suppress, Staleness|Comments Off on CA9: Motion to suppress after conviction wasn’t timely
"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.
