Defendant had no standing in this rental car rented in a false name with a fake ID and credit card and then he drove the car away and then turned the car over to a co-conspirator who was driving at the time of the stop. United States v. Bian, 2016 U.S. Dist. LEXIS 58618 (S.D.Fla. April 29, 2016).
“[A] consent to search is not considered a self-incriminating statement and does not require prior Miranda warnings. [citing authorities]” Also, the evidence would have inevitably been found by inventory. United States v. Pons-Pagan, 2016 U.S. Dist. LEXIS 58964 (D.P.R. May 2, 2016), R&R 2015 U.S. Dist. LEXIS 177814 (D.P.R. Jan. 30, 2015) (officer couldn’t remember whether he Mirandized defendant before asking for consent).
Posted inConsent, Standing|Comments Off on S.D.Fla.: No standing in a rental car obtained with a fake ID and CC and then turned over to another
“This case calls for us to apply Leon where the judge who issued the search warrant was arguably not neutral and detached. Although we are unaware of any court applying the good faith exception in such circumstances, it is apparent from Leon itself that the good faith exception is applicable in this situation.” Reason: There was arguable probable cause. The warrant was not overbroad considering how it was executed and what was taken. Even the staleness question was subjected to the good faith exception. United States v. Villanueva, 2016 U.S. App. LEXIS 7880 (10th Cir. May 2, 2016).
Bail pending appeal is denied. While defendant presents an evidentiary admissibility issue, the SJC sees it differently and finds the challenged document was properly seized in any event. Commonwealth v. Mattier, 2016 Mass. LEXIS 253 (May 2, 2016).*
The resident of an apartment lacked apparent authority to consent to a search of a visitor’s backpack. The visitor had been arrested for a robbery and removed from the apartment, and the officers went back for his backpack left in a room. The court surveys the circuits and applies what it finds is the best test. While this involves a warrantless search in a home of another, the court seemingly puts some burden on the defendant yet the state still bears the burden in a warrantless search and here could not prove the apparent authority of the consenter over the property of another. State v. Jackson, 2016 Iowa Sup. LEXIS 52 (April 29, 2016), rev’g State v. Jackson, 867 N.W.2d 195 (Iowa App. 2015): Continue reading →
Posted inApparent authority|Comments Off on IA: No apparent authority of apartment dweller to consent to search of visitor’s backpack
Payton’s “reason to believe” language from Payton/Steagald amounts to probable cause, such that officers who have an arrest warrant for a suspect have to show “probable cause” that the suspect resides at or is present at a particular address before forcing entry into a private dwelling that is not the suspect’s home, following what it finds the constitutionally mandated rule. Here, police officers violated defendant’s Fourth Amendment rights when they forcibly entered an apartment with an arrest warrant for a homicide suspect who they believed was “staying” or “residing” there, as information from another officer and street informants, and noises inside the apartment, did not provide probable cause. As the good-faith exception to the exclusionary rule did not apply, so suppression of seized evidence was required. United States v. Vasquez-Algarin, 2016 U.S. App. LEXIS 7889 (3d Cir. May 2, 2016):
Having considered the different approaches of our sister Circuits and their reasoning where provided, we join the Fifth, Sixth, Seventh and Ninth Circuits in holding that Payton’s “reason to believe” language amounts to a probable cause standard. As explained more fully below, we do so for two reasons. First, the Supreme Court’s use of the phrase “reason to believe,” when considered in the context of Payton and more generally the Court’s Fourth Amendment jurisprudence, supports a probable cause standard. Second, and more fundamentally, requiring that law enforcement officers have probable cause to believe their suspect resides at and is present within the dwelling before making a forced entry is the only conclusion commensurate with the constitutional protections the Supreme Court has accorded to the home.
Posted inArrest or entry on arrest, Probable cause|Comments Off on CA3: Payton’s “reason to believe” language from Payton/Steagald amounts to probable cause, noting conflict
Defendant deputy sheriff arrested the agents of the company foreclosing on his house, and they spent the night in jail. No immunity. “Being a law-enforcement officer is not a license to break the law. And it is certainly not a shield behind which Filbeck may abuse his power with impunity.” Carter v. Butts County, 2016 U.S. App. LEXIS 8010 (11th Cir. May 3, 2016): Continue reading →
Posted in§ 1983 / Bivens, Qualified immunity|Comments Off on CA11: Deputy sheriff arresting people working for foreclosure company’s agents on his house gets no immunity
Robert Litt, General Counsel for the Office of the Director of National Intelligence, has been given space at the Yale Law Review Journal to publish his citable article “Why Everyone’s Wrong About the Fourth Amendment.” Or, as Litt would like us to refer to it:
Preferred Citation: Robert S. Litt, The Fourth Amendment in the Information Age, 126YALE L.J. F. 8 (2016), http://www.yalelawjournal.org/forum/fourth-amendment-information-age.
To be fair, Litt never says we’re all wrong about the Fourth Amendment and the Third Party Doctrine. He only says Judge Leon is. Judge Leon was the single district court judge who found the bulk collection of phone metadata to be unconstitutional.
Posted inFISA, Third Party Doctrine|Comments Off on techdirt: National Intelligence Office’s Top Lawyer Fires Off Spirited Defense Of Bulk Surveillance, Third Party Doctrine
Defendant drove up to a house in the process of a drug raid. Eight people were in custody. Defendant was stopped when he got to the door, and he was frisked and a gun was found. The search was valid under Michigan v. Summers. Shotts v. State, 2016 Ind. App. LEXIS 126 (April 27, 2016).
The district court found that the decision to seek a search warrant for defendant’s cell phone was not prompted by a prior illegal search of the cell phone. Thus, the independent source rule applies. United States v. Barron-Soto, 2016 U.S. App. LEXIS 7569 (11th Cir. April 26, 2016).
While McNeely was decided in April 2013 and defendant’s DWI stop was in September 2013, the state supreme court had not held the implied consent statute unconstitutional until later. Therefore, the good faith exception applied. State v. Kraemer, 2016 Kan. App. LEXIS 28 (April 29, 2016).
The state showed exigency for a warrantless blood draw where the only on call judge for warrants was unavailable. State v. Chernobieff, 2016 Ida. App. LEXIS 51 (April 29, 2016).
Search warrants in Alabama have to be executed only by the officers to whom they are directed. Here, the warrant was to the Sheriff of Mobile County, but an officer of the Mobile PD executed it. This was invalid execution. In light of the clear statutory mandate, despite the past practice of doing just that in the past, the good faith exception does not apply. Anderson v. State, 2016 Ala. Civ. App. LEXIS 107 (April 29, 2016): Continue reading →
Probation officers had reasonable suspicion to seize a flash drive found during a supervised-release search of defendant’s residence. Reasonable suspicion existed because of defendant’s prior conviction for possession of child pornography, a release condition prohibiting him from accessing a computer, and a tip that defendant had bragged about possessing child pornography. The officers had reasonable suspicion to search the flash drive without a warrant because defendant telephoned them and admitted that the drive contained child pornography. United States v. Makeeff, 2016 U.S. App. LEXIS 7756 (8th Cir. April 29, 2016).
Walking in the street where there was a sidewalk was justification for a stop. A frisk was consented to by defendant saying “Go ahead.” United States v. Chambers, 2016 U.S. App. LEXIS 7821 (6th Cir. April 27, 2016).*
Officers had reasonable suspicion there was a gun in defendant’s car, and they could make a limited sweep of a vehicle knowing that the vehicle is or shortly will be impounded and will be towed from the scene. State v. Duncan, 2016 Wash. LEXIS 573 (April 28, 2016).
Defendant was hearing impaired, wearing headphones and sunglasses with one hand in his pocket, and he wandered into a drug raid on the street (despite the raid gear) and ignored commands from the police because he could not hear them. Officers detained him, and pulled his hand from his pocket, and marijuana was then in plain view. The stop and finding the marijuana was lawful. Gumbs v. People, 2016 V.I. Supreme LEXIS 12 (April 26, 2016).*
Posted inReasonable suspicion, Stop and frisk|Comments Off on WA: Reasonable suspicion there was a gun in car permitted a protective sweep of the car
Defendant was stopped because the officer checked the LPN and saw that the female owner’s DL was suspended. Once he saw the driver was a man, the reasonable suspicion for the stop was immediately dispelled. Nevertheless, the court is constrained to conclude, based on state precedent it must follow, that it was appropriate to ask the driver for his driver’s license. He was driving was barred, too. The court analyzes both positions and the case law in support of each. State v. Coleman, 2016 Iowa App. LEXIS 422 (April 27, 2016): Continue reading →
Posted inReasonable suspicion|Comments Off on IA: Once it was discovered that owner with suspended DL wasn’t driving car, officer could still ask for DL (noting conflicting authorities)
Rule 41(g) on return of property cannot be used to relitigate a final forfeiture order. United States v. Varnedoe, 2016 U.S. Dist. LEXIS 55933 (M.D.Fla. April 26, 2016).
Defendant’s warrantless blood draw was unlawful because defendant was presented with the implied consent form which gave defendant two options: either provide actual consent or revoke implied consent and be subject to penalties. He chose the latter and they drew the blood. State v. Rios, 2016 Ida. LEXIS 116 (April 26, 2016).
“[A]pplying the totality of the circumstances test the Court has little difficulty concluding there was sufficient probable cause to search the electronic storage media provided to the F.B.I. For starters, a simple examination of the items to be searched evidences that there is fair probability the items contain child pornography. … Notably, these items were turned over in plastic bags, which had been stored under a woodpile. Common sense dictates that there is no legitimate reason or explanation for storing electronic storage devices outside in plastic bags under a woodpile. There is no reason for any individual to do this and certainly no reason for an individual who lives in rural Dixie County to bury digital storage devices underground. Had the CS simply presented the digital storage devices to the F.B.I. and told them he found the items buried under a woodpile, the F.B.I. would have had probable cause to forensically search the items to determine what was stored on the devices. The F.B.I. of course had much more than just that.” United States v. Laplante, 2016 U.S. Dist. LEXIS 56834 (N.D. Fla. Mar. 29, 2016),* adopted 2016 U.S. Dist. LEXIS 56819 (N.D. Fla., Apr. 28, 2016).*
Posted inComputer and cloud searches, Probable cause|Comments Off on N.D.Fla.: FBI had PC there was CP on electronic storage media hidden in plastic bags in a woodpile
A Washington county judge has ruled that the city of Seattle’s warrantless searches of garbage violated the state’s constitution.
In her 14-page order, King County Judge Beth Andrus found in favor of eight Seattle residents whose trash was searched by sanitation workers. The workers were operating under a city ordinance that allowed them to inspect trash for possible violations of a city composting law. Violators could be fined $1 if they mistakenly put food waste into their regular garbage rather than organic waste bins.
The Federal Bureau of Investigation’s refusal to discuss even the broad strokes of some of its secret investigative methods, such as implanting malware and tracking cellphones with Stingrays, is backfiring – if the goal is to actually enforce the law.
Posted inSurveillance technology|Comments Off on The Intercept: FBI Chooses Secrecy Over Locking Up Criminals
Of the 41 cases in which law enforcement officials invoked the All Writs Act to ask courts for permission to forcibly unlock a cellphone, and for which the reason for the request is known, exactly one was related to a terrorism investigation. Nearly half were for drugs.
Posted inCell phones|Comments Off on WaPo: All Writs Act and cracking into cell phones
While authorities can’t search for data on your cellphone without a warrant, once they’ve obtained that warrant they can force you to unlock your device with your fingerprint if you use biometric security, a magistrate in California recently ruled.
Posted inCell phones|Comments Off on CIO Today: Court Orders Suspect To Unlock iPhone with Finger
A search warrant was issued for defendant’s home, and he was also involved in three controlled buys from his car. His stop miles from the search of his house was based on the probable cause from the buys, not the warrant as in Bailey, and it was thus valid. Redfearn v. State, 2016 Ala. Crim. App. LEXIS 20 (April 29, 2016).
Defendant’s brief detention was within the scope of the reasonable suspicion which authorized it. Defendant then consented to the search of his backpack. There was first implied consent then express consent. It was not coerced because he was handcuffed. Peucker v. State, 2016 Tex. App. LEXIS 4482 (Tex. App. – Texarkana April 29, 2016).*
"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.
