The CI’s seeing a gun in defendant’s house a month before the warrant issued is not stale at all. “The Affidavit established a fair probability that firearms would be found.” Also, the detail of the affidavit provided cross–corroboration. Finally, defendant’s Franks challenge fails. Even if he could show intent, he can’t show that it was material to the finding of probable cause. United States v. Crowe, 2016 U.S. Dist. LEXIS 35368 (E.D.Ky. March 4, 2016), adopted 2016 U.S. Dist. LEXIS 35024 (E.D. Ky. Mar. 18, 2016).
Younger abstention barred a federal suit to enjoin a state administrative inspection and investigation. All American Check Cashing v. Corley, 2016 U.S. Dist. LEXIS 37002 (S.D.Miss. March 22, 2016).
Posted in§ 1983 / Bivens, Staleness|Comments Off on E.D.Ky.: One month old information about a gun is not stale
The owner of a company put into receivership has no reasonable expectation of privacy in the business records, and the receiver can give them all to the government without violating the Fourth Amendment. United States v. Avery, 2016 U.S. Dist. LEXIS 36380 (N.D.Ga. Feb. 5, 2016), adopted 2016 U.S. Dist. LEXIS 36141 (N.D. Ga. Mar. 21, 2016).
A taillight being out justified defendant’s stop, and ultimately the finding of his gun. United States v. Wright, 2016 U.S. Dist. LEXIS 35158 (E.D.Mich. March 18, 2016).*
The officer with the dog doing the sniff happened while the first officer was writing the ticket, and that made it valid. Even if not, there was reasonable suspicion extending the stop for the dog sniff. United States v. Guidry, 2016 U.S. App. LEXIS 5322 (7th Cir, March 22, 2016).
Probation officers had reasonable suspicion once inside defendant’s apartment because of his violation of terms of release. “Defendant’s violations of his release conditions by failing to report and lying about the presence of his naked girlfriend, his effort to keep the probation officers out of his apartment or just on the first level of the apartment away from the living area, his seeming violation of the no-excess-alcohol-consumption condition, his question about getting in trouble, his evasive conduct during the home visit, his nervous demeanor, and his visual fixation with the small table combined with the odd placement of the bath towel thereon, in their totality, were sufficient to establish reasonable suspicion to believe that Defendant was engaged in criminal activity that he wished to hide from the probation officers.” United States v. Harrison, 2016 U.S. Dist. LEXIS 34896 (E.D.N.Y. Feb. 1, 2016),* adopted 2016 U.S. Dist. LEXIS 34682 (E.D.N.Y. Mar. 14, 2016).*
When police have probable cause to believe that the subject of a valid arrest warrant is present as a short-term social guest at another person’s residence, police may enter that residence to effectuate the arrest pursuant to the warrant without violating the Fourth Amendment rights of the person named. State v. deLottinville, 2016 Minn. App. LEXIS 18 (March 21, 2016).
Reasonable suspicion developed during the stop to justify extending the stop. United States v. Hayes, 2016 U.S. Dist. LEXIS 34845 (D.Utah Feb. 24, 2016),*adopted 2016 U.S. Dist. LEXIS 33458 (D. Utah Mar. 15, 2016).*
Seizing flash drives which were outside of the warrant requires their suppression. Failure to include the attachment in a warrant left on the premises is only a rule violation, not a constitutional one. United States v. Rojas-Camilo, 2016 U.S. Dist. LEXIS 34610 (D.Mass. March 17, 2016): Continue reading →
Defendant doesn’t show “new evidence, no change of law, and nothing the Court overlooked in denying the prior motion for suppression.” On the off chance that this could lead to a potential ineffectiveness challenge against former defense counsel, the court goes to the merits anyway and finds that the warrant authorized a search in confined spaces, and the evidence found was validly seized under the plain view doctrine. The evidentiary value was immediately apparent. United States v. Muhammad, 2016 U.S. Dist. LEXIS 36018 (D.N.J. March 18, 2016). As to reconsideration: Continue reading →
SAN FRANCISCO — For weeks, the United States government has said that the only way to open an iPhone used by a gunman in a mass shooting was to get Apple’s help, a position that set off a clash between the technology giant and law enforcement.
But remarks by a federal prosecutor in a court conference call on Monday and a letter from the F.B.I. director, James B. Comey Jr., published on Wednesday indicated a recent flurry of activity behind the scenes between law enforcement and other parties that have suggested methods to break into the phone.
Posted inSurveillance technology|Comments Off on NYTimes: F.B.I. Clash With Apple Loosed a Torrent of Possible Ways to Hack an iPhone
NYTimes: Apple Policy on Bugs May Explain Why Hackers Would Help F.B.I. by Nicole Perlroth and Katie Benner:
For all the steps Apple has taken to encrypt customers’ communications and its rhetoric around customer privacy, security experts said the company was still doing less than many competitors to seal up its systems from hackers. And when hackers do find flaws in Apple’s code, they have little incentive to turn them over to the company for fixing.
Posted inSurveillance technology|Comments Off on NYTimes: Apple Policy on Bugs May Explain Why Hackers Would Help F.B.I.
Americans “deserve a public debate” on 4th amendment encroachments, reps say.
Today, two representatives from the House Oversight & Government Reform Committee sent a letter (PDF) to Michael Rogers, director of the National Security Agency (NSA), asking him to discontinue any plans to expand the list of who the NSA shares certain information with.
Posted inNational security|Comments Off on Ars Technica: Representatives say NSA must end plans to expand domestic spying
Officers came to defendant’s house at 4 am for a knock-and-talk to arrest him. They heard a crashing noise in the backyard and found defendant there. The subsequent search of defendant’s house was presumptively unreasonable and without any lawful justification. United States v. Lundin, 2016 U.S. App. LEXIS 5236 (9th Cir. March 22, 2016): Continue reading →
Officers had no reasonable suspicion from defendants’ stop to conduct a dog sniff. The officer asked for consent and was denied. “I know my rights. I don’t have to let you search. I know what my fiancé is going to say. He’s going to say, No, and also if you want to search you can get a dog.” The officer did not take this consent, and he called for backup with a drug dog. The records searched produced two minor non-extraditable warrants. All the officer knew was a prior drug conviction and maybe prior drug involvement but nothing current. The search violated Rodriguez and even Arizona law before the stop. State v. Kjolsrud, 2016 Ariz. App. LEXIS 36 (March 18, 2016).
Posted inDog sniff, Reasonable suspicion|Comments Off on AZ: Def’s past drug conviction wasn’t RS to extend stop for a dog sniff
Defendant was stopped for weaving. Before the stop, however, other officers and this officer had discussed defendant being involved with drugs. That played a part in following defendant, but he did, in fact, weave. After defendant passed field sobriety tests and a portable breath test, the officer asked for consent and it was refused. Then he ran his drug dog for two minutes, and the dog alerted. The search of the car based on the dog alert is suppressed because the use of the drug dog extended the stop without justification because there was no indication the dog would find anything related to the traffic offense. [Note, there is no discussion of when the “normal incidents” of a traffic stop of checking the DL and LPN were complete]. Davis v. Commonwealth, 2016 Ky. LEXIS 99 (March 17, 2016): Continue reading →
Defendant was snitched off as a drug dealer by his own son as a citizen informant. The specific time of the possession of drugs wasn’t specifically stated, but here it can be ascertained by the totality of circumstances. Stating when something was observed is the far better rule because it removes uncertainty, but it’s not always required as long as the totality shows the information isn’t stale. Abney v. Commonwealth, 2016 Ky. LEXIS 101 (March 17, 2016): Continue reading →
Posted inStaleness|Comments Off on KY: Lack of staleness is determined from the totality of circumstances if time not specifically stated
In a search of a hotel room and arrest for sex trafficking of a minor, officers talked to the minor by telephone and that was sufficient to provide probable cause without much need for corroboration. Here, there was a tip and the corroboration was talking to the minor. United States v. Deffenbaugh, 2016 U.S. Dist. LEXIS 34617 (E.D.Ark. March 17, 2016).
In denying defendant’s motion to withdraw his plea where he was going to get life in prison, defendant included a contention that a motion to suppress “possibly” would be granted and that could have affected his decision to plead is not enough. Andaya v. United States, 2016 U.S. Dist. LEXIS 35244 (W.D.N.C. March 18, 2016).*
Posted inIneffective assistance, Probable cause|Comments Off on E.D.Ark.: Police received a tip of sex trafficking a minor; talking to the minor on the phone was PC
Law enforcement officials have long relied on location details gleaned from cellphone towers as a powerful tool for tracing steps of suspects, particularly in the early stages of investigations. But civil liberties groups and privacy advocates are increasingly challenging the practice throughout the country, concerned that police and federal agents too easily tap vast caches of information about people’s movements through the devices most Americans carry in their pockets — tracking that could show how often someone goes to a doctor’s office, to a casino or to church.
Posted inCell site location information|Comments Off on WaPo: Court asks: Do police need a warrant to track your cellphone for months at a time?
RIVERSIDE, Calif.— The FBI may have found a way without Apple’s assistance to unlock the iPhone used by one of the shooters in the San Bernardino terrorist attack, Justice Department officials said Monday.
Less than 24 hours before a highly anticipated hearing over access to the phone was set to begin, Justice Department lawyers requested a delay. A federal judge here agreed to postpone the oral arguments in which Apple and the U.S. government were set to face off over whether a court could force Apple to help the FBI unlock the phone.
Posted inSurveillance technology|Comments Off on NYTimes: FBI may not need Apple to unlock San Bernardino shooter’s iPhone
That defendant was “staying” at a residence satisfies Payton’s “reason to believe” requirement he’s residing there. United States v. Washington, 2015 U.S. Dist. LEXIS 176979 (W.D.La. Nov. 18, 2015), adopted 2016 U.S. Dist. LEXIS 35051 (W.D. La. Mar. 16, 2016): Continue reading →
Posted inArrest or entry on arrest|Comments Off on W.D.La.: That defendant was “staying” at a residence satisfies Payton’s “reason to believe” requirement
Defendant was standing next to his motorcycle on a closed business parking lot, across the street from a casino, in the early morning hours. The officer approached him to inquire. Defendant said he was “taking a break.” The officer asked to see his paperwork, and the insurance had expired. Under Oklahoma law, impoundment and inventory of the motorcycle was permitted. But first: a dog sniff. All this was reasonable. [The opinion talks about “asked” for the DL. Maybe if defendant had said no? He wasn’t driving, and his “welfare” was fine.] State v. Feeken, 2016 OK CR 6, 2016 Okla. Crim. App. LEXIS 6 (March 17, 2016): Continue reading →
Posted inConsent, Inventory|Comments Off on OK: Officer could approach parked motorist on closed business parking lot after hours for welfare check
"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.
