Data has always been a double-edged sword. The convenience, efficiency and knowledge on one side and privacy fears, surveillance concerns and cybercrime on the other. The same goes for Fitbit fitness trackers. In a criminal case in Pennsylvania, police say the wearable device wasn’t just a heart-rate monitor but a valuable truth detector. A 44-year-old woman accused of fabricating a rape claim was recently ordered to serve two years of probation and complete 100 hours of community service. Prosecutors say data pulled from her Fitbit wristband provided them with crucial evidence contradicting her claims.
Posted inSurveillance technology|Comments Off on WSJ: Prosecutors Say Fitbit Device Exposed Fibbing in Rape Case
“In this case, we consider whether a defendant who has pled guilty to a criminal offense but later successfully challenged the validity of the plea may qualify as a “wrongfully imprisoned person” under Iowa Code section 663A.1 (2015).” While the innocent sometimes plead guilty to avoid harsh consequences, the guilty plea is still a bar to a wrongful incarceration claim in this state. Rhoades v. State, 15–1169 (Iowa April 20, 2016).*
Posted in§ 1983 / Bivens|Comments Off on IA: Guilty plea by a person later proved innocent bars civil action for false arrest
In a warrantless blood draw case under McNeely, the state argued for a good faith exception, analogizing the state’s new statutory good faith exception, which the court finds inapplicable. There simply was no exigent circumstance in this case to dispense with a warrant. Here, doing the blood draw without a warrant was convenience, not exigency. State v. Wilson, W2015-00699-CCA-R9-CD (Tenn.Crim.App. April 21, 2016): Continue reading →
Defenders of the NSA’s mass spying have lost an important talking point: that the erosion of our privacy and associational rights is justified given the focus of surveillance efforts on combating terrorism and protecting the national security. That argument has always been dubious for a number of reasons. But after a November 2015 ruling [.pdf] by the secretive Foreign Intelligence Surveillance Court (FISC) was unsealed this week, it’s lost another chunk of its credibility. The ruling confirms that NSA’s warrantless spying has been formally approved for use in general criminal investigations. The national security justification has been entirely blown.
Posted inFISA|Comments Off on eff.org: Secret Court Takes Another Bite Out of the Fourth Amendment
Where the search warrant was for the residence and yard, a shed on the yard could not be searched. Thus, defense counsel was ineffective for not challenging the search. Reversed. People v. Velez, 2016 NY Slip Op 03027, 2016 N.Y. App. Div. LEXIS 2907 (2d Dept. April 20, 2016): Continue reading →
Posted inWarrant execution|Comments Off on NY2: SW for house and yard didn’t include shed behind the house
Neither a warrant nor probable cause is required to get CLSI information. Taylor v. State, 132 Nev. Adv. Rep. 27, No. 16-12414 (April 21, 2016): Continue reading →
Posted inCell site location information|Comments Off on NV: Neither a warrant nor probable cause is required to get CLSI information
On Tuesday, the Office of the Director of National Intelligence (ODNI) released a redacted version of an opinion by Judge Thomas F. Hogan of the Foreign Intelligence Surveillance Court (FISC) that is chock full of revelations about how the NSA and FBI handle – and mishandle – data collected under Section 702 of the Foreign Intelligence Surveillance Act (FISA). But the most notable news contained in the Nov. 6, 2015 opinion may be the FBI’s move to widen the “back door loophole” that allows it to search 702 data for information about Americans – and the FISC’s underwhelming analysis of the Fourth Amendment concerns this raises.
Posted inFISA|Comments Off on Just Security: The FBI’s Warrantless Surveillance Back Door Just Opened a Little Wider
At the Tenth Annual Border Security Expo in San Antonio, Texas, officials from the Department of Homeland Security browsed booths with 3D holographic images, portable biometric testing kits, underground seismic signal detectors, and ergonomic pistols, eyeing the latest inventions to survey and protect the United States’ border.
The unusual traffic patterns at defendant’s house led to probable cause to believe that the car leaving had drugs acquired inside. United States v. Hernandez-Ortiz, 2016 U.S. Dist. LEXIS 49658 (D. Neb. March 8, 2016),* adopted 2016 U.S. Dist. LEXIS 49655 (D. Neb. Apr. 13, 2016).*
The court details the evidence and concludes the officer had probable cause for the stop for following too close, and then the officer observed the window tint was too dark. United States v. Matias, 2016 U.S. Dist. LEXIS 49660 (M.D. Fla. March 4, 2016),*adopted 2016 U.S. Dist. LEXIS 49659 (M.D. Fla. Apr. 13, 2016).*
Defendant waived any search and seizure challenge by his guilty plea. Even so, there was probable cause for the search and seizure under Gates. Walker v. United States, 2016 U.S. Dist. LEXIS 50780 (N.D.W.Va. Feb. 25, 2016).*
Posted inProbable cause|Comments Off on D.Neb.: Unusual traffic patterns at def’s house was probable cause of drug dealing
Nebraska Gov. Pete Ricketts signed a bill on Tuesday that eliminates civil forfeiture, which allows law enforcement to seize and keep property without filing charges or securing criminal convictions. The bill, LB 1106, passed the unicameral legislature last week by a vote of 38 to 8.
Posted inForfeiture|Comments Off on Forbes: Opinion: Nebraska Just Abolished Civil Forfeiture, Now Requires A Criminal Conviction To Take Property
A major theme that emerged from this latest hearing (though it’s been discussed by some cybersecurity experts before) was the ability or the need of the FBI to improve its own technical prowess to crack encryption — something that wouldn’t require the help of the tech companies or other third parties, like the high-profile case of the San Bernardino iPhone did.
Posted inCell phones|Comments Off on NPR: Lawful Hacking: Should, Or Can, The FBI Learn To Overcome Encryption Itself?
It’s generally not good to include “all” before the documents to be seized in a search warrant, but it is valid if it can be shown to relate back to something for which there is a showing of probable cause. United States v. Lonich, 2016 U.S. Dist. LEXIS 51796 (N.D.Cal. April 15, 2016): Continue reading →
Posted inOverbreadth, Particularity|Comments Off on N.D.Cal.: It’s generally not good to include “all” before the documents to be seized in a SW; PC must be shown for what “all” modifies in SW, and here it was
The record supports the conclusion that defendant, a probationer, knew that the police were “on his tail” that he possessed child pornography and expressed concern about finding child pornography on his electronics. Thus, the police acted reasonably in seizing a computer without a warrant. United States v. Martin, 2016 U.S. Dist. LEXIS 51620 (E.D.N.C. April 18, 2016), R&R 2016 U.S. Dist. LEXIS 51619 (E.D.N.C. Feb. 3, 2016).
In an immigration stop case where the USMJ recommended granting the motion to suppress, the government successfully appealed to the USDJ who remanded, the USMJ on remand reaffirms the grant of the motion to suppress, partly on credibility grounds. “A reasonable border patrol agent with Agent Morin’s training and experience would not have found that the circumstances here amounted to reasonable suspicion.” They were too innocuous. United States v. Sulema, 2016 U.S. Dist. LEXIS 49096 (D.N.M. April 7, 2016).*
Posted inEmergency / exigency, Immigration checkpoints|Comments Off on E.D.N.C.: Def knew police were “on his tail” that he possessed CP, and that authorized warrantless seizure
The trial court had no authority to order access to a third party’s home as a part of a discovery order. It was a sex case, and defendant wanted access to the scene of the alleged crime. It was beyond discovery orders, and it would be an unreasonable invasion of the homeowner’s privacy. [By that time, what would it actually reveal? Staleness alone is an argument.] People In Interest of E.G., 2016 CO 19, 2016 Colo. LEXIS 359 (April 18, 2016), rev’g People in the Interest of E.G., 2015 COA 18, ___ P.3d ___: Continue reading →
Posted inUncategorized|Comments Off on CO: A third party’s home can’t be invaded by the defense for discovery purposes under 4A and discovery rules
The Supreme Court finds unity in the face of bumbling attorneys and a tough Fourth Amendment case.
The justices of the United States Supreme Court are at their best when united against a common foe. It’s much easier to put aside doctrinal differences and work together when an attorney at the lectern sounds like a clodhopping amateur trying out for the moot court team. On Wednesday, in a critically important Fourth Amendment case, not one but two advocates performed so terribly that the justices effectively gave up and had a conversation among themselves. The result was a deeply uncomfortable 70 minutes during which the clash between state power and individual autonomy took a back seat to jokes about night court and hillbilly judges.
Was that fair comment or not?
Posted inSCOTUS|Comments Off on Slate: Blood Tests and Bad Lawyering
The triggering condition in the anticipatory warrant clearly occurred, and the warrant was timely executed. United States v. Bright, 2016 U.S. Dist. LEXIS 51979 (M.D.Ga. April 19, 2016).*
Aside from other indicators of driving under the influence defendant consumed a lot of mouthwash in the car, denied it, and then admitted he lied about it. Farrell v. Thomas, 2016 N.C. App. LEXIS 431 (April 19, 2016).*
Defendant’s argument that the police waited several minutes before entering for a protective sweep or emergency entry ignored that a frightened woman came out in between those two points. The sweep was cursory and lasted only seconds, and it was reasonable. United States v. Garcia, 2016 U.S. Dist. LEXIS 51100 (N.D. Cal. April 15, 2016).*
The Office of the Director of National Intelligence released three redacted Foreign Intelligence Surveillance Court opinions (FISC) yesterday, respectively on a pen register and trap-and-trace case, Section 702 certifications, and the Government’s first application for orders requiring the production of call records under the USA FREEDOM Act. Continue reading →
Posted inFISA|Comments Off on Lawfare: ODNI Releases Three FISC Opinions
Defendant was button-holed during a smoke break off the train when his Amtrak train stopped in Reno. His consent for a search of this compartment and stuff wasn’t consensual and induced by the threat of a dog sniff; it was coerced. The court finds the narc’s testimony not believable. United States v. Estes, 2016 U.S. Dist. LEXIS 51510 (D.Nev. April 18, 2016): Continue reading →
Posted inConsent|Comments Off on D.Nev.: Consent on Amtrak platform wasn’t voluntary
Today the U.S. Supreme Court will hear oral argument in three consolidated cases that pose the following question: “Whether, in the absence of a warrant, a State may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.”
At issue in the consolidated cases of Birchfield v. North Dakota, Beylund v. Levi, and Bernard v. Minnesota, are state laws from North Dakota and Minnesota that impose criminal penalties on suspected drunk drivers who refuse to submit to warrantless chemical DUI tests. According to North Dakota, the state has a legitimate interest in combatting drunk driving and that legitimate interest “far outweigh[s] the limited interference with an arrestee’s right to require the police to secure a warrant before conducting the search. The right to demand that police secure a warrant here is at the periphery of the Fourth Amendment.” Minnesota offers a related argument, telling the Court that its law “is constitutional as applied to breath tests because a warrantless breath test administered to a suspect lawfully arrested for drunk driving would be permissible pursuant to the search incident to arrest doctrine.”
Posted inDrug or alcohol testing, SCOTUS|Comments Off on reason.com: Today at SCOTUS: Warrantless Drunk Driving Tests and the Fourth Amendment
"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.
