There is no reasonable expectation from a snitch coming into one’s home and recording a drug sale. By letting the snitch in, defendant assumed the risk. State v. Taylor, 2016-Ohio-2781, 2016 Ohio App. LEXIS 1644 (4th Dist. April 27, 2016).
A bag in an open field was subject to seizure and then a search, and defendant showed no reasonable expectation of privacy in it. United States v. Wellsandt, 2016 U.S. Dist. LEXIS 55782 (D.S.D. April 27, 2016).*
The search did not exceed the scope of consent granted, and, even it if did, there was probable cause for the search. United States v. Durazo, 2016 U.S. Dist. LEXIS 57322 (D.Ariz. April 28, 2016).*
After 45 years, more than $1 trillion wasted, and the creation of the world’s largest prison system, America still lacks the political will to change its failed drug policy.
Posted inUncategorized|Comments Off on Rolling Stone: Why America Can’t Quit the Drug War
This week the House of Representatives took an historic step for Americans’ privacy rights. By an overwhelming vote of 419-0, it passed bipartisan legislation to protect Americans’ email and other information in the cloud from warrantless searches. Now that the House has passed the Email Privacy Act to finally update our laws for the digital age and without a single opposing vote, the Senate should do the same.
The Email Privacy Act would require the government to go before a judge and get a search warrant based on probable cause whenever it seeks to obtain our emails, photos, or texts held by technology companies. This bipartisan bill updates a law, the Electronic Communications Protect Act (ECPA), that was written 30 years ago—before the widespread use of email. The type of information that we send and store electronically today looks nothing like it did then. ECPA’s arcane rules for protecting electronic information no longer make sense. As a result, papers in your filing cabinets have more legal protections than emails in your inbox.
Posted inECPA|Comments Off on The Hill: Let’s close the email privacy loophole now
An “opaque plastic parking pass for a nearby military facility, approximately 3″ by 5″ in size, suspended from the rear-view mirror mounting” was sufficiently obstructive of the driver’s view to justify a traffic stop. Mason v. Commonwealth, 2016 Va. LEXIS 59 (May 5, 2016).
A citizen informant tipped off an off-duty police officer in his car that a tanker truck would be carrying a bulk load of marijuana, and the officer took the man who showed him the truck parked on a church parking lot. The informant was dropped off and the truck was followed when it pulled out. The taillights couldn’t be seen, so the truck was stopped. The officer asked what was in the tank, and the driver said it was waste water. The officer tapped the tank with his flashlight and it was hollow. The pipes were dry. The officer asked for consent, got it, and opened the hatch and saw the wrapping, not water. The continuation of the stop was with reasonable suspicion. United States v. Castro, 2016 U.S. App. LEXIS 7765 (5th Cir. April 29, 2016).*
Posted inReasonable suspicion|Comments Off on VA: Military base parking pass on rear view mirror justified traffic stop
Defendant was in a high crime area and his suspected “dangerous” companions fled. That left him doing nothing and he got frisked. Somehow, this is reasonable suspicion. State v. Primous, 2016 Ariz. App. LEXIS 77 (May 5, 2016). And this is troubling: Continue reading →
Posted inReasonable suspicion|Comments Off on AZ somehow finds RS from flight of “dangerous” companion to defendant doing nothing
Defendant disputed the officer’s attempt at asking for consent in Spanish using a translation app on his iPhone. The defense called expert Spanish speakers that the query was essentially “may I look [at or for] your car” not in it. The USMJ, District Court, and Court of Appeals disagree that he didn’t understand what was said. He seemed to, and the testimony would have him responding to a “nonsensical” question. United States v. Leiva, 2016 U.S. App. LEXIS 7956 (7th Cir. April 29, 2016): Continue reading →
Posted inConsent|Comments Off on CA7: Officer’s use of translation app on iPhone to ask for consent in Spanish was close enough for consent
There is no “contemporaneity between the evidence supporting probable cause and the arrest.” It’s up to police discretion when to arrest. Essentially: Staleness doesn’t apply to PC for arrest. United States v. Clark, 2016 U.S. App. LEXIS 7959 (5th Cir. May 2, 2016): Continue reading →
Posted inProbable cause, Staleness|Comments Off on CA5: There is no “contemporaneity between the evidence supporting probable cause and the arrest.”
Decedent was Tasered when he was fighting officers and wouldn’t comply with repeated requests. He was finally hogtied, too, and he stopped breathing. Paramedics were called, and he ultimately died. Viewing the undisputed facts most favorably to the estate, the officers have qualified immunity for both the Tasering and the hogtying. The former was reasonably used, and the latter had never been held unconstitutional. Harris County had a policy against it, but a violation of policy is not a per se a constitutional violation. Pratt v. Harris County, Tex. (In re Estate of Pratt), 2016 U.S. App. LEXIS 8049 (5th Cir. May 3, 2016).
The state showed reason to seal the affidavit for the search warrant in this murder case at the time of issuance, and the threshold isn’t high. [The court chides the defense for not citing law in support, then fails to cite law to support denial, and there’s plenty on the subject matter both ways.] The failure to timely provide the inventory wasn’t a Fourth Amendment violation or a ground to suppress. Bodden v. State, 126 Nev. 695, 367 P.3d 751 (Table) (Feb. 1, 2010) [just on Lexis]: Continue reading →
Posted inWarrant execution|Comments Off on NV: Sealing affidavit without explanation or timely providing inventory not ground to suppress
The government’s use of warrantless searches and secret requests for information is exploding, and recent court actions have greatly expanded the reach of legal searches. The digital age is presenting challenges to our Fourth and Fifth Amendment constitutional rights in ways the Founding Fathers could never have foreseen.
A transparency report released this week from the Office of the Director of National Intelligence (DNI) — the president’s appointee who manages the U.S. spy agencies — shows warrantless searches on Americans doubled between 2013 and 2015. That’s a conservative estimate, too.
Posted inFISA|Comments Off on InfoWorld: Warrantless searches surge as online privacy dwindles
The Rule Change: Under the old Rule 41 of the Federal Rules of Criminal Procedure, magistrates with authority in a district may only issue warrants for search and seizure of property located within that district, with limited exceptions. Under the new Rule 41, magistrate judges would be able to grant warrants to search and seize electronic media located outside of their districts in two additional circumstances: 1) When the physical location of the information is “concealed through technological means”; and, 2) When, in an investigation of a violation of the Computer Fraud and Abuse Act (CFAA) (18 U.S.C. §1030(a)(5)), computers in five or more districts have been “damaged without authorization.”
…[P]olice department data reveal a complicated picture. The records, obtained by WBEZ through the Illinois Freedom of Information Act, show negative trends as officers reported more stops: Gun seizures dropped, detectives solved fewer murders, and a decade-long decline in gun violence ended. Those numbers did not improve as the department developed one of the most intense stop-and-frisk programs in the nation.
Posted inStop and frisk|Comments Off on WBEZ: Police Data Cast Doubt On Chicago-Style Stop-And-Frisk
NYTimes: Former Officer Is Jailed Months Without Charges, Over Encrypted Drives by Christine Hauser:
A former police sergeant has been held without charges in a federal detention cell in Philadelphia, part of an effort by the authorities to pressure him to decrypt two computer hard drives believed to contain child pornography.
Posted inComputer and cloud searches|Comments Off on NYTimes: Former Officer Is Jailed Months Without Charges, Over Encrypted Drives
At least two Oklahoma law enforcement agencies possess or have used a controversial device, shrouded in secrecy, to track and collect information from cellphones, an Oklahoma Watch investigation found. Continue reading →
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The officer had reasonable suspicion to stop defendant for not driving in his traffic lane despite defendant’s argument that he moved over because the glare of headlights in his mirrors was blinding him. That’s a defense to the charge but doesn’t undermine the justification for the stop. State v. Howard, 2016 VT 49, 2016 Vt. LEXIS 47 (April 29, 2016).
Posted inReasonable suspicion|Comments Off on VT: Stop was based on RS despite def’s good reason for the alleged violation
Defendant was stopped for not having a front license plate on his car, although it was on the dash. At worst, this was an infraction. When defendant got out of the car, the officer could smell marijuana on him, and defendant attributed that to his girlfriend in the car using a “licensed” vaporizer. When defendant was out of the car, the officer did not smell marijuana in the car. The officer patted defendant down and felt a hard round object behind a knee. Before the officer could search for it, defendant fled. After he was captured, a further search occurred. The court finds that the first effort to search the hard round object was unreasonable because there could be no fear that it was a weapon, and defendant’s flight was based on unconstitutional conduct. Therefore, the motion to suppress should have been granted. State v. Lee, 2016 Mo. App. LEXIS 445 (May 3, 2016).
Posted inReasonable suspicion|Comments Off on MO: Def’s impending search was unreasonable, so his flight didn’t give further justification
"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.
