Defense counsel didn’t file an affidavit in this IAC case, so the court presumes that failure to file a motion to suppress was objectively unreasonable. Nevertheless, it wouldn’t have succeeded because defendant didn’t have standing to challenge the search. State v. Dale, 2016 Del. Super. LEXIS 144 (April 19, 2016).* Note: If he didn’t have standing, it can’t be “objectively unreasonable” to not file a motion to suppress. Right outcome, wrong choice of words.
The officers’ stop was admittedly pretextual, but it had a factual basis for no turn signal. Therefore, it was valid. United States v. Maldonado, 2016 U.S. Dist. LEXIS 52591 (N.D.Iowa April 20, 2016).*
The officer had more than just criminal history to find reasonable suspicion to extend the stop. “Significantly, Officer Ring learned, early in the traffic stop, that Palmer was a suspected member of the Bounty Hunter Bloods. Ring knew that the Bloods had threatened law enforcement during his service as a police officer and that such gangs are frequently involved in organized criminal activity such as ‘narcotics distribution.’ … Ring also ascertained that Palmer had at least four earlier arrests on drug charges and was probably a convicted felon. Indeed, he had been charged previously as a felon in possession of a firearm. As we explained in United States v. Sprinkle, ‘an officer can couple knowledge of prior criminal involvement with more concrete factors in reaching a reasonable suspicion of current criminal activity.’ … At minimum, such ‘concrete factors’ in this situation included the overwhelming odor from multiple air fresheners and Palmer’s apparent gang membership.” United States v. Palmer, 2016 U.S. App. LEXIS 7224 (4th Cir. April 21, 2016).*
Posted inReasonable suspicion|Comments Off on CA4: Officer had more than just criminal history for RS here; high-crime area, and gang affiliation were important
The DEA subpoena power of the federal Controlled Substances Act subpoena preempts the Texas Occupational Code, so the doctor here can’t rely on state law to prevent disclosure of patient medical records. The gag order request in the subpoena was not enforced by the USMJ, so patients were notified and none intervened. This point is now a nonissue. United States v. Zadeh, 2016 U.S. App. LEXIS 7248 (5th Cir. April 21, 2016).
The trial court erred in finding that the defendant didn’t consent to the taking of her blood. State v. Reid, 2016 Ga. App. LEXIS 241 (April 22, 2016).*
Tennessee Court of Criminal Appeals again declines to adopt a good faith exception for failure to comply with McNeely–that’s the state supreme court’s job. State v. Wilson, 2016 Tenn. Crim. App. LEXIS 302 (April 21, 2016) (dissent).*
An infant, through her parents, didn’t have standing to challenge potential use of blood drawn for genetic testing per state law because it was still subject to destruction. A state constitutional argument has to be separately briefed to be considered (n.8). Doe v. Adams, 2016 Ind. App. LEXIS 114 (April 19, 2016).*
The court finds defendant’s cell phone was in plain view when it was seized. It wasn’t searched until the officers obtained a state search warrant. United States v. Hoffa, 2016 U.S. Dist. LEXIS 54221 (E.D.Tenn. March 25, 2016).*
A person being questioned at the police station has a state due process right to know that a lawyer has shown up on his or her behalf, and the police have to let the lawyer in. Moran v. Burbine rejected under state constitution. State v. McAdams, 2016 Fla. LEXIS 831 (April 21, 2016): Continue reading →
Posted inArrest or entry on arrest|Comments Off on FL: Moran v. Burbine rejected under FL const.; due process right to have lawyer who showed up admitted for questioning
Defendant’s girlfriend retrieved a knife for the police and brought it out. She spent five nights a week there, and she happened to see it on this trip when she went in to let the dog out. She had complete access to the place sufficient to consent. Rigterink v. State, 2016 Fla. LEXIS 835 (April 21, 2016).
Defendant put something in the trunk of his girlfriend’s car, and that’s as much connection to it as he would admit. He put on no other evidence of having standing. United States v. Crockett, 2016 U.S. Dist. LEXIS 52135 (W.D.Mo. Feb. 24, 2016),* adopted 2016 U.S. Dist. LEXIS 52052 (W.D.Mo. April 19, 2016).*
Posted inApparent authority, Standing|Comments Off on FL: Def’s girlfriend had full access to his place to remove a knife she told police about
The officer had reasonable suspicion to pat defendant down because of his “nervous and evasive behavior” when talking to the officer. While the patdown was excessive if looking for a weapon, defendant discarded drugs, too, and that made a more intensive search of his sock valid. Cole v. State, 2016 Fla. App. LEXIS 5971 (Fla. 3d DCA April 20, 2016).
Border Patrol officers had reasonable suspicion for a stop of a Mercedes which, by all appearances, was picking up hitchhikers who probably were dropped off and walked around a checkpoint. United States v. Escobedo, 2016 U.S. Dist. LEXIS 52695 (S.D.Tex. April 20, 2016).*
Posted inReasonable suspicion|Comments Off on FL3: “Nervous and evasive behavior” justified patdown for weapons; once def discarded drugs, whole search could occur
In a child porn investigation, the government took over a server with child porn known as “Website A.” “The government used a “Network Investigative Technique (“NIT”) [warrant] that would allow the government covertly to transmit computer code to Website A users.” The court finds the NIT warrant unauthorized under the USMJ statute and Rule 41. This is a substantive and not merely ministerial issue. Thus, there could be no good faith exception. United States v. Levin, 2016 U.S. Dist. LEXIS 52907 (D.Mass. April 20, 2016): Continue reading →
Checking criminal history doesn’t require probable cause, and defendant doesn’t cite any authority other than the Fourth and Fifth Amendment should be liberally construed. Motion in limine denied in one 711 word sentence. United States v. Green, 2016 U.S. Dist. LEXIS 52962 (M.D.Pa. April 20, 2016): Continue reading →
Posted inReasonableness|Comments Off on M.D.Pa.: Checking criminal history doesn’t require probable cause
“Although Cartwright does not appear to challenge the CI’s basis of knowledge for the tip, it is a factor that is considered in the reliability analysis. … Even so, that fact, considered alongside the other substantial factors, leads to the conclusion that the information from the CI contained ‘sufficient indicia of reliability’ to justify a stop and that it was corroborated by other independent police work. … All in all, the CI’s tip alone satisfies the reasonable suspicion requirement.” United States v. Cartwright, 2016 U.S. Dist. LEXIS 52513 (M.D.Ga. April 20, 2016).
A nurse drew defendant’s blood in the hospital, and the officer made a point of advising defendant of his rights when he was unconscious. There was excessive blood drawn, and the excess was taken without a warrant. The state can’t claim the good faith exception without a warrant. State v. Romano, 2016 N.C. App. LEXIS 430 (April 19, 2016).*
In part, our decision was based on science. Researchers have found that when readers are exposed to uncivil, negative comments at the end of articles, they trust the content of the pieces less. (Scientists dubbed this the “nasty effect.”) A study by the Atlantic found that negative comments accompanying a news article caused readers to hold the article in lower esteem. In an increasingly competitive media environment, websites can ill afford to have their content and brands tarnished in this way.
Never had comments here. No point in it.
Posted inUncategorized|Comments Off on WaPo: Re: Above the Law: Comments are making the internet worse. So we got rid of them.
Opening defendant’s flip phone to see the home screen is a search under Hicks. The phone was clearly seized under the Fourth Amendment. The government, however, showed probable cause for a search warrant for the phone, and that was independent of opening the phone. United States v. Bell, 2016 U.S. Dist. LEXIS 52651 (C.D.Ill. April 20, 2016): Continue reading →
Posted inCell phones, Search|Comments Off on C.D.Ill.: Opening a flip phone to see the screen is a “search” under Hicks
The police had good reason under Payton to believe that a man wanted in an arrest warrant would be found at defendant’s house: An outstanding arrest warrant listed that address, postal records showed he got mail there, and other public databases showed him there. United States v. Hamilton, 2016 U.S. App. LEXIS 7172 (1st Cir. April 20, 2016).
Defendant was the target of a drug investigation, and officers saw him doing a drug deal in his open garage. Entering the garage to maintain the status quo and do a protective sweep was thus valid. United States v. Contreras, 2016 U.S. App. LEXIS 7036 (7th Cir. April 19, 2016).
Posted inArrest or entry on arrest|Comments Off on CA1: Prior arrest warrant and public records put subject of arrest warrant at address; sufficient under Payton
Defendant walked up to officers at 1:30 am in a high crime area, did not acknowledge their words to him, and moved his hand to his back pocket as he got closer. They frisked him, finding only a baggie of marijuana. Nevertheless, the frisk was valid. State v. Bard, 2016 N.J. Super. LEXIS 55 (Feb. 29, 2016, approved for publication April 19, 2016): Continue reading →
Posted inStop and frisk|Comments Off on NJ: Walking up to police at 1:30 am and reaching for back pocket justified frisk
Microsoft found child pornography in a folder saved by defendant on its cloud service, and it reported it to NCMEC. Law enforcement was afraid to contact him directly because he might delete images, so they found he was on probation and went to his PO. The PO went with the officers and conducted a search of defendant’s person and belongings other than his computer. A warrant was used on the computer. The searches were valid. Defendant’s motion to suppress was not timely, and the excuse that he was in jail away from his lawyer doesn’t cut it, particularly after the motion deadline was extended. United States v. Martin, 2016 U.S. Dist. LEXIS 51619 (E.D.N.C. Feb. 3, 2016),* adopted 2016 U.S. Dist. LEXIS 51620 (E.D.N.C. Apr. 18, 2016).*
Defendant waived appellate review of the sufficiency of the location description in the search warrant for his property because the issue was not raised in the lower court. The police had sufficient probable cause and exigent circumstances to warrant the temporary seizure of the premises while they obtained a search warrant because, from adjoining land, they saw defendant tending to the area next to a growing marijuana plant. State v. Powell, 2016 Tenn. Crim. App. LEXIS 294 (April 19, 2016).*
Thanks to EFF and the ACLU, the government has finally admitted it secretly used a Stingray to locate a defendant in a Wisconsin criminal case, United States v. Damian Patrick. Amazingly, the government didn’t disclose this fact to the defendant—or the court—until we raised it in an amicus brief we filed in the case. In the government’s brief, filed late last week, it not only fails to acknowledge the impact of hiding this fact from the defendant but also claims its warrantless real-time location tracking didn’t violate the Fourth Amendment.
Posted inCell site simulators|Comments Off on eff.org: EFF and ACLU Expose Government’s Secret Stingray Use in Wisconsin Case
The Justice Department said Friday night that it had gained access on its own to a locked iPhone used by a Brooklyn drug dealer, the second time in less than a month that it had unlocked such a device after initially insisting it could do so only with Apple’s help.
Posted inCell phones|Comments Off on NYTImes: U.S. Opens Another iPhone, This Time With the Keycode
Today, the FBI’s digital catalog of searchable ‘face photos’ has ballooned to some 548 million pictures, the largest database of faces in history. It includes criminal mug shots; photos of suspected violent extremists overseas; and, thanks to an agreement with a number of state governments, driver’s licenses and ID photos of Americans who have never committed a crime.
Posted inSurveillance technology|Comments Off on Newsweek: How the FBI Uses Facial Recognition Technology to Fight Crime
The director of the F.B.I. suggested Thursday that his agency paid at least $1.3 million to an undisclosed group to help hack into the encrypted iPhone used by an attacker in the mass shooting in San Bernardino, Calif. At a technology conference in London, a moderator asked James B. Comey Jr., the F.B.I. chief, how much bureau officials had to pay the undisclosed outside group to demonstrate how to bypass the phone’s encryption.
Posted inCell phones, Surveillance technology|Comments Off on NYTimes: F.B.I. Director Suggests Bill for iPhone Hacking Topped $1.3 Million
"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.
