Defendant was driving his girlfriend’s car, and she was the passenger. Stopped for a traffic offense, the officer found a warrant from another town, but advised that they didn’t want him arrested on it. The paperwork on the car was in order. Defendant had standing to challenge the continuation of the stop to check into the owner’s paperwork because he was detained, too. The trial court’s suppression order was affirmed. He had sufficient connection to the car to challenge the search; he was driving with the owner in the passenger seat. State v. Williams, 2016 Mo. App. LEXIS 350 (April 12, 2016).
Alleged delay in finding one of the 13 magistrates in the county was not an exigency in not getting a BAC warrant. Neither was defendant’s belligerence. Fears v. State, 2016 Tex. App. LEXIS 3708 (Tex.App. – Houston (1st Dist.) April 12, 2016).*
New software will help low-income people and communities of color to record their experiences with law enforcement—in order to create a crowdsourced map of their behavior.
Posted inPolice misconduct|Comments Off on The Atlantic: An App That Tracks the Police to Keep Them in Check
Apple told a federal court on Friday that it should not have to help the F.B.I. unlock an iPhone used by a Brooklyn drug dealer and that the case would lead to ‘an avalanche’ of similar demands if prosecutors prevailed. Apple’s lawyers, in a new filing in Federal District Court for the Eastern District of New York, said that a judge should uphold an earlier ruling that the Justice Department had gone beyond its authority in demanding Apple’s technical help.
Posted inCell phones|Comments Off on NYTimes: In New Filing, Apple Resists F.B.I.’s Call to Open iPhone in Drug Case
Officers had probable cause under the automobile exception to search defendant’s truck, or at least the trial court had a basis for finding it. Defendant had entered a bar known for drug sales that the police were surveilling. He’d been seen there before. This time, he left a couple of times and came back in again. Finally, he left and the surveilling officer followed, observing traffic offenses. That officer called for a marked car to make the stop. That officer also observed a traffic offense. Defendant was sitting in the truck making repeated furtive gestures. The collective knowledge doctrine would have supported the stop without the subsequent violation. There was probable cause from defendant’s actions in the car. “Given Appellant’s repeated history of going to a place known for selling narcotics, his uncommonly short time spent at a bar, and his furtive gestures when he noticed a patrol car behind him, we hold there was a substantial basis in the record to support the trial court’s ruling of probable cause.” Marcopoulos v. State, 2016 Tex. App. LEXIS 3911 (Tex. App. – Houston (1st Dist.) April 14, 2016) (concur; dissent).* [Comment: Two problems here: The dissent makes the better case. Worse, the Court of Appeals fails to make an independent review of probable cause under Ornelas, which isn’t even cited in this case, instead crediting trial court’s finding. Lazy panel.]
Posted inAutomobile exception, Standards of review|Comments Off on TX1: Frequenting bar known for drug sales, going in and out repeatedly, and furtive gestures when stopped was PC
Company fights government demands for secret searches of cloud customers Continue reading →
Posted inCell phones, Surveillance technology, Third Party Doctrine|Comments Off on Windows IT Pro: Microsoft to DOJ: The cloud isn’t an automatic Fourth Amendment exemption; challenging the third-party doctrine in the Cloud
“Therefore, because the Jones decision did not present an intervening change in the law, we conclude the trial court abused its discretion in re-opening Sodomsky’s suppression hearing for the second time after its two prior suppression orders were reversed by this Court on appeal. Indeed, Sodomsky is not entitled to “three bites” of the proverbial suppression apple.” Jones had no application to defendant’s computer search issue. Commonwealth v. Sodomsky, 2016 PA Super 84, 2016 Pa. Super. LEXIS 223 (April 12, 2016).
The independent source doctrine supported the validity of the search warrant in this case. Police were on the premises and waiting for a warrant to arrive, and they did make observations and took photographs. None., however, was involved in the obtaining of the warrant. State v. Bardales, 2016 Conn. App. LEXIS 156 (April 19, 2016).*
Posted inBurden of proof, Computer and cloud searches|Comments Off on PA: Trial court abused discretion in reopening twice reversed suppression order for third hearing; no change in law
“It generalizes that ‘an individual’ may have information on his or her phone that connects him or her to a crime, co-defendants or victims, rather than specifically connecting Ramirez, the crime with which he was charged, or any known information about communications made using this particular phone. [¶] A criminal charge is a conclusion drawn by law enforcement based on information gathered that leads them to believe that a particular person is guilty of a particular crime. That cell phones contain evidence that may connect individuals to a crime is also a conclusion. An affidavit that contains only suspicions, beliefs or conclusions, without providing some underlying factual circumstances, has come to be known as a “bare bones’ affidavit.” United States v. Ramirez, 2016 U.S. Dist. LEXIS 49012 (W.D. Ky. Mar. 4, 2016), adopted 2016 U.S. Dist. LEXIS 48719 (W.D.Ky. April 11, 2016).
Probable cause for defendant’s residence was shown by the fact his son was given money to get drugs and he went to defendant’s home to get it. State v. Layman, 2016-Ohio-1503. 2016 Ohio App. LEXIS 1412 (4th Dist. March 31, 2016).*
Civil-rights activists are ecstatic that a federal judge declared the NYPD’s policy unconstitutional. But law-enforcement officials say the practice has made U.S. cities dramatically safer. Now what?
Posted inStop and frisk|Comments Off on The Atlantic: Magazine: Is Stop-and-Frisk Worth It?
The state record on habeas was inadequate to determine whether petitioner actually got a “full and fair opportunity” to litigate his search claim, so the case is remanded to get the state court record before the district court. Thornton v. Goodrich, 2016 U.S. App. LEXIS 6771 (10th Cir. April 13, 2016).
A Franks showing was not made. On a distance discrepancy, the proximity was correct. On a color discrepancy of a sweatshirt being omitted, it was otherwise explainable and didn’t undermine the probable cause. United States v. Pettis, 2016 U.S. Dist. LEXIS 49008 (D. Minn. March 16, 2016),* adopted 2016 U.S. Dist. LEXIS 48683 (D. Minn. Apr. 11, 2016).*
Posted inFranks doctrine|Comments Off on CA10: Stone v. Powell’s “full and fair opportunity” to litigate search claim below couldn’t be established on this record
Microsoft wants a federal judge in Seattle to strike down a law that allows courts to prohibit a tech company from telling customers that the government has sought their data.
In a civil suit filed Thursday against the Justice Department, the tech giant revealed that in the past 18 months alone federal courts have issued almost 2,600 orders preventing Microsoft from alerting customers their data has been obtained in criminal probes.
Posted inWarrant execution|Comments Off on WaPo: Microsoft sues over law banning tech firms from telling customers about data requests
A high-level surveillance probe of Montreal’s criminal underworld shows that Canada’s federal policing agency has had a global encryption key for BlackBerry devices since 2010.
Posted inCell phones|Comments Off on Vice: Exclusive: Canadian Police Obtained BlackBerry’s Global Decryption Key
They persuaded a judge to let them remotely, and secretly, install software on the group’s computers to help get around the encryption. That effort, revealed in newly declassified and released records, shows in new detail how F.B.I. hackers worked to defeat encryption more than a decade before the agency’s recent fight with Apple over access to a locked iPhone.
Posted inCell phones|Comments Off on NYTimes: F.B.I. Used Hacking Software Decade Before iPhone Fight
CSLI is a mere business record subject to the third party doctrine and accessible without a warrant. United States v. Carpenter, 2016 U.S. App. LEXIS 6670 (6th Cir. April 13, 2016) (two articles at end of quote): Continue reading →
Posted inCell site location information|Comments Off on CA6: CSLI is a mere business record subject to the third party doctrine and accessible without a warrant
A hospital patient (here suspected of DUI) has a privacy interest in his medical records sufficient to give standing to challenge their acquisition by the state, but prior to HIPAA under state case law and bolstered by HIPAA. But, the state can still get the information by grand jury subpoena. State v. Huse, 2016 Tex. Crim. App. LEXIS 72 (April 13, 2016): Continue reading →
Posted inStanding|Comments Off on TX: Common law and HIPAA creates a privacy interest in medical records; but GJ subpoena good enough
Three officers were on patrol and only one saw defendant allegedly remove a chrome gun from one pocket and the glint of a streetlight off the gun. Defendant provided an affidavit that he never pulled the gun out, but he didn’t testify. “As a preliminary matter, the court notes the difficulty of this case and cases like it. See Floyd v. City of New York, 959 F. Supp. 2d 540, 562 (S.D.N.Y. 2013) (‘In making these decisions I note that evaluating a stop in hindsight is an imperfect procedure. Because there is no contemporaneous recording of the stop (such as could be achieved through the use of a body-worn camera), I am relegated to finding facts based on the often conflicting testimony of eyewitnesses.’). Allen, although he was accompanied by three other officers, is the only one who claims to have seen Felix with a gun prior to the stop. Felix disputes that Allen could have seen him with a gun at all. No other witnesses are available who could shed light on whether Allen or Felix is telling the truth. Nonetheless, for the reasons stated below, the court finds that Allen’s testimony is credible.” The court makes a detailed credibility finding. United States v. Felix, 2016 U.S. Dist. LEXIS 48933 (E.D.N.Y. April 8, 2016).*
There were exigent circumstances for seizure of defendant’s cell phone because of the possibility of the phone being remotely erased or thrown away. Then defendant denied knowledge of the password or ownership of the phone, and that showed a lack of standing. United States v. Harris, 2016 U.S. Dist. LEXIS 48445 (E.D.Va. April 8, 2016).
“Here, for reasons not disclosed in the record, appellants filed only a [Texas] no-evidence motion for summary judgment on their affirmative defense of qualified immunity. This motion was not an appropriate procedural vehicle for establishing their affirmative defense without a trial.” Haver v. Coats, 2016 Tex. App. LEXIS 3701 (Tex.App. – Houston (14th Dist.) April 12, 2016).*
Defendant was supposed to sell methamphetamine from his camper at a campsite to an undercover officer, but he declined, so the officer attempted to arrest him outside the camper on an outstanding warrant and he fled. He went to the door and knocked because defendant said there was another person inside. The officer opened the door and told the guy on the couch to come out. In doing that, the officer could see two glass pipes which formed the basis of a search warrant of the camper. The observation was reasonable and related to the arrest and protective sweep of the camper. United States v. Pile, 2016 U.S. App. LEXIS 6536 (8th Cir. April 11, 2016).
The government didn’t raise defendant’s standing before the USMJ so defendant couldn’t respond at a hearing. The court assumes standing and denies the motion to suppress on the merits. There was probable cause as to this vehicle by its description and its proximity to the crime scene. United States v. Centeno-González, 2016 U.S. Dist. LEXIS 49193 (D.P.R. April 11, 2016),* R&R 2015 U.S. Dist. LEXIS 177547 (D.P.R. Dec. 31, 2015).*
Today the House Judiciary Committee passed out of committee the Email Privacy Act (H.R. 699) by a vote of 28-0. This bill is a long overdue update of the Electronic Communications Privacy Act (ECPA), a bill passed in 1986 that governs the treatment of electronic communications. The Email Privacy Act establishes that law enforcement officers must obtain a warrant to access the content of most electronic communications and cloud-stored content from third-party providers and eliminates the arbitrary rule that would allow the government to obtain emails older than 180 days with a subpoena.
Use of a drug dog in an apartment building violated Jardines. The court can’t find any other conclusion because people of color and lower economic means are more likely to live in apartments. Kyllo was sufficiently clear on this that good faith doesn’t apply. United States v. Whitaker, 2016 U.S. App. LEXIS 6655 (7th Cir. April 12, 2016): Continue reading →
Posted inCurtilage, Dog sniff|Comments Off on CA7: Jardines has to apply to dog sniffs in apartment complexes
"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.
