Two weeks ago, privacy advocates across the country celebrated as the Federal Bureau of Investigation backed off its request for Apple to help gain access into the iPhone of Syed Farook, one of the terrorists who killed 14 people in San Bernardino, Calif., in December.
On Friday, the F.B.I. again sought Apple’s assistance — this time to help crack an iPhone belonging to a convicted drug dealer — by requesting that a federal judge overturn an earlier decision in Brooklyn supporting Apple.
Apple had argued in part that it didn’t want iPhone hacking by the government to become routine. That the F.B.I. so soon wants access to another iPhone would seem to prove Apple right and to vindicate the company’s principled resistance, right? Wrong.
Posted inCell phones|Comments Off on NYTimes: Why Apple’s Stand Against the F.B.I. Hurts Its Own Customers
Plainclothes officers in the MPD Gun Recovery Unit saw defendant walk in front of their vehicle. On a here hunch, one called out to him: “Officer Katz testified that he then shined his flashlight on appellant, leaned out of his vehicle window, and ‘loud[ly] shout[ed],’ ‘[H]ey, do you got a gun[?] [D]o you got a gun[?]’ Appellant took a couple of steps and then began to run to the door of the apartment building. As he ran, he was moving his right hand, but he kept the palm of his left hand pressed against his jacket on his left side.” “In this case, we conclude that appellant was seized only when one of the officers grabbed him and the officers took him to the ground. Immediately before that, when the officers pointed their guns at appellant and directed him to stop and get on the ground, he did not comply; even to the extent that he stood still at the apartment door he was trying to open, he ignored the officers’ requests that he get on the ground, and he kept moving his hand around his left side. Thus, our analysis must focus on whether, by the time the officers grabbed and tackled appellant, they had reasonable articulable suspicion that he was armed.” They did. Pridgen v. United States, 2016 D.C. App. LEXIS 91 (April 7, 2016).
Posted inReasonable suspicion|Comments Off on DC: Unprovoked flight when being asked about possession of a gun was RS
Defendant’s landlord conducted a private search of his apartment and brought out 2 lbs of meth to the police saying there was more inside. He argues that this information in a search warrant application should be purged because the landlord was acting as an agent of police [which actually has surface appeal here]. The court, however, strikes the landlord’s search from the affidavit, and the remainder still shows probable cause. The first time informant was still worthy of credit. Every CI is a first timer sometime. United States v. Mendoza, 2016 U.S. Dist. LEXIS 47114 (E.D. Tex. March 17, 2016).
Defendant revoked the implied consent under the state DUI statute. Thus, the forced warrantless blood draw was unconstitutional. State v. Eversole, 2016 Ida. LEXIS 104 (April 4, 2016).
Posted inAttenuation, Independent source, Private search|Comments Off on E.D.Tex.: Alleged police induced private search in SW affidavit mooted by fact remainder still shows PC
“The court notes some of this information has never been protected, and this does not change simply because the phone records arise from use of a cell phone rather than a landline. See Smith, 442 U.S. at 745 (no reasonable expectation of privacy in the phone numbers dialed). [¶] But basic telephone records and historical cell-site information are not ‘sensitive records’ that a person may keep on a cell phone or in a home. Cell-site information is not private information; it is information gathered and documented by a third party in the regular course of business. Accordingly, Defendant’s reliance on Riley is misplaced. See Guerrero, 768 F.3d at 359-60; Ledbetter, 2015 WL 7758930 at *14.” United States v. Hudson, 2016 U.S. Dist. LEXIS 44967 (D.Neb. Feb. 19, 2016).
That’s the one thing that four people from very different professions agreed on during a panel at a Kenyon College political-science conference about technology’s impact on privacy in the 21st century.
Julia Angwin, a senior reporter at ProPublica, described her attempt to completely avoid being tracked while writing a book about whether privacy was dead. She turned off cookies, left Gmail, moved to an encrypted file-hosting service, and tried to quit Facebook. She feared quitting LinkedIn before realizing that she never logged in anymore; she hesitated anyway, because she didn’t want to miss out in the future. She called this concern “loss aversion.”
“Big data” is discussed in the third party doctrine,§§ 5.01-5.03
Posted inThird Party Doctrine|Comments Off on Daily Dot: From insurance to surveillance: Experts debate privacy in the age of Big Data
In a knock-and-talk, defendant denied any interest in a shed behind her mobile home. While the police were outside, she’d delivered a box to her boyfriend there. She consented to a search of the mobile home. That denial denies her standing to contest the search of the shed. Whitehead v. State, 2016 Miss. App. LEXIS 182 (April 5, 2016).
Excessive nervousness and inability to answer basic questions was sufficient to give rise to reasonable suspicion. Defendant couldn’t say where he’d come from or where he was going. State v. Johnson, 2016 N.C. App. LEXIS 341 (April 5, 2016).*
Posted inReasonable suspicion, Standing|Comments Off on MS: Denial of privacy interest in shed behind rented mobile home meant no standing there
Defendant’s description was close to that of a person suspected of a disturbance at a store, and that justified his stop. There was, however, no reasonable suspicion or probable cause to believe that defendant was jaywalking when he was stopped. “Officers who witness an individual violating the law, even if it is a simple misdemeanor or municipal ordinance violation, are permitted under Terry to detain that individual, even if it is to just to warn that individual that such conduct is in violation of the law. United States v. Banks, 553 F.3d 1101, 1104 (8th Cir. 2009).” Where the motion to suppress only attacked the stop and not the frisk, the frisk was not considered. United States v. Alberty, 2016 U.S. Dist. LEXIS 45237 (W.D.Mo. April 4, 2016).
Posted inBurden of proof, Stop and frisk|Comments Off on W.D.Mo.: Motion to suppress only the stop didn’t include the frisk
“Responding to a possible domestic violence call, officer Dillard demanded that plaintiff submit to a Terry frisk for a search of weapons. When plaintiff refused to be searched, officer Dillard tased him. The panel held that although the domestic violence nature of a police investigation is a relevant consideration in assessing whether there is reason to believe a suspect is armed and dangerous, it is not alone sufficient to establish reasonable suspicion. The panel therefore held that Dillard violated plaintiff’s Fourth Amendment rights against unreasonable seizure by detaining him for the purpose of performing a Terry frisk. The panel nonetheless held that Dillard was entitled to qualified immunity because it was not clearly established at the time that the initial demand for a frisk was unlawful. The panel further held that it was not clearly established at the time that continuing to detain a noncompliant domestic violence suspect for the purpose of executing a frisk and tasing him when he refused to comply were unlawful.” (Summary by the clerk) Thomas v. Dillard, 2016 U.S. App. LEXIS 6210 (9th Cir. April 5, 2016).
Posted inExcessive force, Qualified immunity|Comments Off on CA9: It was not clearly established at the time that Tasing a noncompliant detainee was excessive
The recording of non-attorney jail calls from Rikers Island and turning them over to the DA’s office does not violate the constitution. Defendant was warned by signs, and thus knew, his calls were being recorded. The NYC Department of Corrections was not acting as an agent of the DA in recording the calls. Thus, the DA learning of the defense strategy from non-attorney calls did not violate the Sixth Amendment right to a fair trial. People v. Johnson, 2016 N.Y. LEXIS 752, 2016 NY Slip Op 02552 (April 5, 2016): Continue reading →
Posted inSpecial needs|Comments Off on NY: NYC DoC recording jail calls was not as agent of DA; no Sixth Amd. violation
Maryland could appeal to supreme court to reverse ruling that found police use of device to track cellphones without warrant in violation of fourth amendment.
Defendant’s car was stopped on the RI turnpike for no seatbelts after being noticed at a toll booth. The stop was valid. The officer saw a pill bottle in a mesh holder on the driver’s door, and then he announced that he smelled marijuana. “When viewing the remaining factors in their totality, the Court believes that this militates against finding the Trooper’s suspicions to be well founded or credible.” No drugs were found. When the officer opened the door of the car, however, he did see the magazine to a gun. The court grants that the officer may have had reasonable suspicion but not probable cause to support the automobile exception. In addition, the protective search doctrine for a frisk of the car wasn’t factually justified. Motion to suppress granted. State v. Ellis, 2016 R.I. Super. LEXIS 41 (Feb. 18, 2016): Continue reading →
One of the largest providers of private probation services in Georgia will temporarily stop requiring people on probation to submit to and pay for drug tests not ordered by a court.
Posted inDrug or alcohol testing|Comments Off on Daily Report: Private Probation Firm Halts Drug Tests Without Court Order
Dog alert on a car for marijuana where 10g or less is a civil penalty still supports probable cause for a search of the car. Bowling v. State, 2016 Md. App. LEXIS 37 (March 31, 2016).
Defense counsel wasn’t ineffective for not challenging the search of the shed of another where he left evidence. First, he didn’t have standing in the place; second, the owner consented; third, he effectively abandoned the stuff, leaving and apparently never coming back. State v. Hawkins, 2016-Ohio-1404, 2016 Ohio App. LEXIS 1277 (10th Dist. March 31, 2016).*
The record shows defendant consented to a search. It came up when he was being questioned in a public place, and he wasn’t coerced. United States v. Brown, 2016 U.S. Dist. LEXIS 43540 (D.Neb. March 31, 2016).*
Defendant’s argument that the IP address was subject to speculation wasn’t enough to overcome the totality of the showing of probable cause because it wasn’t that good an argument. United States v. Moberg, 2016 U.S. Dist. LEXIS 44571 (W.D.Mo. March 15, 2016).*
Posted inConsent, Dog sniff, Probable cause|Comments Off on MD: Dog alert on a car for marijuana where 10g or less is a civil penalty still supports probable cause for a search of the car
DC police did not act unreasonably in shooting a dog named Wrinkles that had bitten a police officer hard enough to puncture leather boots. Even though it was lying down when shot, they couldn’t be certain that the dog did not still pose a threat. Nine years of police reports on dog shootings didn’t show a pattern of unconstitutional conduct to hold the District responsible because one couldn’t tell from the reports which were unconstitutional or not. Robinson v. Pezzat, 2016 U.S. App. LEXIS 5965 (D.C.Cir. April 1, 2016) (Garland not participating although on the panel).*
Defendant who went to ER was not in custody for Miranda purposes; he was being interviewed as a crime victim. State v. Gray, 2016-Ohio-1419, 2016 Ohio App. LEXIS 1286 (2d Dist. April 1, 2016).*
Posted inExcessive force|Comments Off on CADC: Shooting dog that bit through officer’s leather boot wasn’t excessive
The widespread use of cellphones gives the government a way to locate criminal suspects using a device known as a cell-site simulator. The Maryland Court of Special Appeals recently handed down the first appellate decision on whether and when use of a cell-site simulator to identify the location of a target’s phone is a Fourth Amendment “search.” The opinion, in State v. Andrews, rules that government use of a cell-site simulator is always a Fourth Amendment search and that it ordinarily requires a warrant.
I think that result is plausible, but I found the court’s path to that result rather frustrating. This post explains why.
The Strickland “doubly deferential” standard of trial counsel’s failure to challenge a search issue because it would not prevail applies to appellate counsel, too. Woods v. Etherton, 15-723 (U.S. April 4, 2016): Continue reading →
Posted inIneffective assistance, SCOTUS, Standards of review|Comments Off on SCOTUS: Strickland’s deference to counsel’s decisions applies to appellate counsel [didn’t we all assume that anyway? Not CA6]
Defendant’s wife saw child pornography on his computer and told the police. She consented to a search of the computer. Even though he was the primary user of the computer, he did not leave the computer password protected from her nor hide his search history. The fact he was the primary user did not show that she could not consent. When he objected, they stopped the search, but they had probable cause by then. United States v. Thomas, 2016 U.S. App. LEXIS 5972 (11th Cir. April 1, 2016): Continue reading →
Posted inApparent authority, Computer and cloud searches|Comments Off on CA1: Merely being primary user of computer doesn’t mean wife didn’t have apparent authority to consent; no separate password
The motion to suppress the statement here did not include a motion to suppress psychical evidence derived from it. “Here, the particular record of this case demonstrates that defendant did not raise the issue regarding the evidence in the backpack that he now urges us to decide in a clear enough way to preserve it. First, in his written motion, defendant asked only that the trial court suppress a specific category of statements made by defendant: ‘all statements made by the defendant in response to police questions while he was under compelling circumstances but was not given his Miranda warnings.’ That written motion did not alert the trial court that defendant sought to suppress any physical evidence. [¶] Defendant’s arguments at the hearing did not remedy the deficiency in his written motion. …” State v. Anderson-Brown, 277 Ore. App. 214, 2016 Ore. App. LEXIS 372 (March 30, 2016).*
Defendant’s IAC claim based on failure to pursue a search issue was not briefed on appeal so it’s waived. State v. Cox, 2016 Tenn. Crim. App. LEXIS 240 (March 31, 2016).
Posted inBurden of proof|Comments Off on OR: Motion to suppress statement does not include suppression of evidence derived from it; have to be explicit
“We affirm, and write to consider whether a police officer may, as a matter of course, detain a passenger who attempts to leave the scene of a lawful traffic stop without violating the passenger’s Fourth Amendment rights. … We hold that the officer can, and recede from F.J.R. v. State, 922 So. 2d 308 (Fla. 5th DCA 2006), which reached a contrary conclusion relying upon Wilson v. State, 734 So. 2d 1107 (Fla. 4th DCA 1999), certiorari denied, 529 U.S. 1124 (2000).” Much later: “While Brendlin did not involve a passenger who attempted to leave the scene, there is a compelling link between the reasonableness finding in Brendlin and the reasonableness inquiry in our case. Put simply, the United States Supreme Court’s unanimous conclusion that ‘any reasonable passenger’ would ‘obviously’ expect police to detain him or her for the duration of a traffic stop compels a conclusion that it was reasonable for the officer to do so.” Aguiar v. State, 2016 Fla. App. LEXIS 5027 (Fla. 5th DCA April 1, 2016): Continue reading →
Posted inReasonableness, Seizure|Comments Off on FL5: Passenger can be detained with car; certifying conflict with FL4
"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.
