Refusal to stop for “Hey, I need to talk to you,” didn’t justify an arrest in Indiana. It wasn’t a stop to flee from. Miller v. State, 2016 Ind. App. LEXIS 33 (Feb. 9, 2016).
Defendant’s stop for criminal trespass was with reasonable suspicion even though the officer didn’t “know” whether he was. People v. Little, 2016 IL App (3d) 130683, 2016 Ill. App. LEXIS 56 (Feb. 10, 2016).*
A regular and reliable CI provided information that defendant was armed and was recently involved in a shooting. This was reasonable suspicion for his stop. United States v. Thompson, 2015 U.S. Dist. LEXIS 176024 (W.D.Mo. Oct. 9, 2015), adopted 2016 U.S. Dist. LEXIS 13398 (W.D. Mo. Feb. 4, 2016).*
Posted inReasonable suspicion, Seizure|Comments Off on IN: Refusal to stop for “Hey, I need to talk to you,” didn’t justify an arrest
Seizing defendant’s money and cell phone and then spending only three minutes in the back of a police car was not “custody” for Miranda purposes. United States v. Broca-Martinez, 2016 U.S. Dist. LEXIS 17077 (S.D.Tex. Feb. 11, 2016)*: Continue reading →
Posted inArrest or entry on arrest|Comments Off on S.D.Tex.: Seizing defendant’s money and cell phone and then spending only three minutes in the back of a police car was not “custody” for Miranda
Defendant’s trash was on an alleyway where all the other residents of that street put their trash, so it wasn’t on the curtilage. Based on the trash search, a warrant was sought for the house, but there was a mistake in saying the trash search was on Wednesday not a Thursday. This argument isn’t developed that it undermines probable cause, and it clearly has no bearing on the outcome even if it was because it doesn’t undermine the probable cause. Commonwealth v. Irvin, 2016 PA Super 27, 2016 Pa. Super. LEXIS 77 (Feb. 8, 2016).
Defendant was under investigation first in 2010 for fraud and credit card fraud, and a GPS device was placed on his vehicle without a warrant. The vehicle immediately went to a repair shop for a week, so the device was retrieved. At the time of the traffic stop for speeding, the GPS was not on the vehicle, so defendant’s claim he was being tailed by the GPS fails. He was speeding, and any ulterior motive fails. Defendant’s vehicle was then lawfully impounded for a fictitious tag, and the following inventory was proper and followed procedure. Moreover, “[t]he officers believed that they had probable cause to arrest Lumbus for fraud. Accordingly, Officer Bullins asked Lumbus to step out of the vehicle and placed him under arrest.” The inventory produced evidence of fraud. In the course of the investigation, the Secret Service got, what the trial court found, was invalid consent from defendant’s grandmother to search her garage. No matter, defendant had no reasonable expectation of privacy in her garage. State v. Lumbus, 2016-Ohio-380, 2016 Ohio App. LEXIS 324 (8th Dist. Feb. 4, 2016).*
Posted inStanding|Comments Off on PA: Whether the trash search leading to the search warrant was really on Wednesday not Thursday not material
A 911 call of gunshots in an apartment and blood seen on a man’s shirt was exigency. “In this case, the facts establish that Toledo police officers responded to a 911 call wherein the caller said that someone was yelling inside Apartment No. 5 and was ‘busting off caps.’ Also, the caller indicated that there was a black male with blood on his shirt. Upon arrival at 1561 Brooke Park, Apartment No. 5, the officers observed fresh blood directly outside the door of the apartment. These facts effectively define an exigent circumstance, thereby enabling the responding officers to gain access to the apartment without violating the proscriptions of the Fourth Amendment of the United States Constitution and Article I, Section 14 of the Ohio Constitution.” State v. Williams, 2016-Ohio-439, 2016 Ohio App. LEXIS 377 (6th Dist. Feb. 5, 2016)
Defendant was sitting in a car outside a convenience store waiting for a friend when the officers approached him. They had no reasonable suspicion of wrongdoing, but it was consensual when officers talked with him. The officers didn’t have the same story about what they smelled, fresh or burnt marijuana, but defendant admitted he had marijuana, and that was enough for cause to search the car. United States v. Warren, 2015 U.S. Dist. LEXIS 175839 (W.D.Ky. Oct. 21, 2015), adopted 2016 U.S. Dist. LEXIS 12735 (W.D. Ky. Feb. 3, 2016).*
Posted inEmergency / exigency, Probable cause|Comments Off on OH6: A 911 call of gunshots in an apartment and blood seen on a man’s shirt was exigency
Just because this DUI happened in a small town and the hospital drew blood from defendant on admission, as it usually does, that doesn’t mean that the hospital was acting as an agent of the police when doing the blood draw for medical purposes. State v. Fischer, 2016 SD 12, 2016 S.D. LEXIS 20 (Feb. 3, 2016): Continue reading →
Posted inBody searches, Drug or alcohol testing, Private search|Comments Off on SD: Hospital blood draw was for medical purposes, not as agent of police; “small town” folks working together argument fails
The officer had three traffic offenses to stop defendant for, and circumstances gave reasonable suspicion of drug activity too. “While Captain Pendergrass had reasonable suspicion to perform a pat down frisk for weapons on Defendant based on the presence of what he believed to be cocaine around Defendant’s mouth, Captain Pendergrass exceeded the scope of the pat down frisk by looking inside Defendant’s mouth and removing the hotel key card from Defendant’s pocket.” A search warrant was obtained. Removing any tainted information from the search warrant affidavit still left probable cause for the warrant. United States v. Winstead, 2015 U.S. Dist. LEXIS 175846 (E.D.N.C. Dec. 3, 2015), adopted 2016 U.S. Dist. LEXIS 13860 (E.D.N.C. Feb. 4, 2016).
Defendant was a known “major drug player” in the community, and, although local, he rented a motel room for cash, “reupped” it daily, but didn’t stay there, visited the room, told the hotel he wanted no service, and left the “do not disturb” sign on the door. The officer concluded that he was using the room as a stash location. When he drove away, he went in circles seemingly insuring he wasn’t being followed. All this added up to reasonable suspicion for a stop. State v. Arafat, 2016-Ohio-385, 2016 Ohio App. LEXIS 327 (8th Dist. Feb. 4, 2016).*
Posted inReasonable suspicion, Stop and frisk|Comments Off on E.D.N.C.: Looking in def’s mouth for drugs and pocket for a key exceeded the scope of a Terry frisk
U.S. Rep. Suzan DelBene, a former Microsoft executive, is a co-sponsor of a bill to preempt states from enacting separate versions of encryption laws.
One of four congressional sponsors of the ENCRYPT Act of 2016, which would preempt state and local laws banning encryption on smartphones, cut her teeth in mobile communications for Microsoft.
U.S. Rep. Suzan DelBene (D-Wash.) worked as vice president of mobile communications at Microsoft from 2004 to 2007. That was her second stint at Microsoft; her first was from 1989 to 1998 after receiving an MBA when she worked on Windows 95, email and embedded systems. In between, she helped start Drugstore.com.
Posted inSurveillance technology|Comments Off on Computerworld: ENCRYPT Act co-sponsor learned tech ropes at Microsoft
Covert cellphone tracking devices, which have proliferated in law enforcement agencies across the nation, have been used by the New York Police Department on at least 1,000 occasions since 2008 in the course of investigating rapes, murders and other crimes as well as searching for missing people, according to documents obtained by the New York Civil Liberties Union.
Posted inCell site simulators|Comments Off on NYTimes: New York Police Dept. Has Used Cellphone Tracking Devices Since 2008, Civil Liberties Group Says
The explosive growth of digital data in the twenty-first century has been both a boon and a curse for law enforcement. On one hand this growth has heralded a “golden age of surveillance” owing to the massive amount of information that is available about actual and potential lawbreakers, but on the other hand the government now has that much more data to sort through. To search this ever-expanding “haystack,” the government has adopted various techniques, including algorithmic queries. But in order to apply these queries — to search for the needle — the government must first collect the hay. One technique that law enforcement has adopted is to take “mirror images” of digital data for later off-site review. Continue reading →
Posted inSurveillance technology|Comments Off on Harv.L.Rev.: Digital Duplications and the Fourth Amendment
Defense counsel couldn’t be ineffective for not raising that a motel operator couldn’t consent to a search of his room after defendant was locked out for nonpayment of rent. That’s established law. Bruno v. Superintendent, 2016 U.S. App. LEXIS 2075 (2d Cir. Feb. 5, 2016): Continue reading →
An “all record” warrant for patient records had a sufficient showing, and it was not overbroad. “The Government is not required to have evidence relating to each and every patient in order to justify the seizure of all patient files.” The government showed the practice was “permeated” by fraud. And, the good faith exception applies. United States v. Minhas, 2016 U.S. Dist. LEXIS 13061 (E.D.Mich. Feb. 3, 2016).
An anonymous tip justified a stop about defendant’s vehicle when the LPN told the officers that the vehicle was stolen and the occupants were armed and dangerous. That was reasonable suspicion. United States v. Foster, 2016 U.S. Dist. LEXIS 12672 (D.Del. Feb. 3, 2016).*
The affiant’s mistake that the cell phone company in a ping order was headquarted in Nebraska when it was in Kansas was not material for Franks purposes. United States v. Zelazny, 2016 U.S. Dist. LEXIS 13513 (D.Neb. Jan. 7, 2016), adopted 2016 U.S. Dist. LEXIS 13516 (D.Neb. Feb. 4, 2016).*
The government obtained a tracking warrant from a Kansas state court judge to ping two cell phones to find the owners, and they were issued on probable cause and complied with the Fourth Amendment. Because it was the weekend, the phone provider was dragging its feet, so the officer stated exigent circumstances existed. Because the warrant issued on probable cause, the question of exigency to motivate the phone company wasn’t unlawful because the warrant was an independent source. United States v. Moreno-Magana, 2016 U.S. Dist. LEXIS 12978 (D.Kan. Feb. 3, 2016).
Posted inCell site location information|Comments Off on D.Kan.: Cell phone ping order was issued on PC; additional claim of exigency to speed it up wasn’t unconstitutional
What should you do if a local portfolio reviewer asks you to bring your child with you to an annual homeschool portfolio review? The best answer for almost everyone is, “no thank you.” Here’s why.
The homeschool regulation COMAR 13A.10.01.01.E which says a parent “shall agree to permit” a portfolio reviewer to “observe instruction” is unconstitutional. The Fourth Amendment prohibits government agents from coming into your home without a warrant. A portfolio reviewer who might seek to come into your home (where instruction normally occurs) would have no warrant. Nor would she have grounds for a warrant. Forcing you to allow a government agent into your home to observe instruction violates your Fourth Amendment rights.
Posted inAdministrative search|Comments Off on Natl. Home School Legal Defense Assn.: Protect Your Right to Keep Kids Home during Portfolio Review
The Sixth Circuit distinguishes Anderson-Bagshaw and holds ten weeks of pole camera surveillance on rural property violated no reasonable expectation of privacy. “Rocky Houston appeals his conviction of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At trial, the primary evidence against Houston was video footage of his possessing firearms at his and his brother’s rural Tennessee farm. The footage was recorded over the course of ten weeks by a camera installed on top of a public utility pole approximately 200 yards away. Although this ten-week surveillance was conducted without a warrant, the use of the pole camera did not violate Houston’s reasonable expectations of privacy because the camera recorded the same view of the farm as that enjoyed by passersby on public roads.” United States v. Houston, 14-5800 (6th Cir. Feb. 8, 2016): Continue reading →
I had five major deadlines in a row. No. 4 was a brief finished at 9:45 last night after two weeks of work in one of the FBI withdrawn hair analysis cases from a 1979 conviction. With our state abstracting requirement, volume 1 is 260 pages long. Volume 2, the addendum, is 637 pages. It’s being filed by noon today because he’s IFP and the state has to print the 20 copies. Wednesday-Friday is a three day jury trial.
So, don’t expect much before the weekend.
Posted inUncategorized|Comments Off on Don’t expect much this week
Defendant took his computer for repair, and the repair guy encountered pictures of children that made him uncomfortable. He called the police and described them. The officer didn’t think that a crime occurred, and he said so. The computer guy searched more deeply finding child porn. This time the police were interested. Both searches were private searches. United States v. Tapley, 2016 U.S. App. LEXIS 2020 (1st Cir. Feb. 5, 2016).
Posted inPrivate search|Comments Off on CA1: Two computer tech’s searches were private searches; police called after first, but didn’t have enough
Defendant was searched incident to arrest for a rape. There, however, was a complete lack of probable cause for his arrest, and the search is suppressed. He was only the same general height and description of the attacker, and he was near the scene days later at a bus transfer point where he got off one bus and was waiting for another. There were specific scars and tattoos given in a description that the police didn’t check for before the arrest. “On more than one occasion, the officers suggested the victim was not being truthful with them. (See Fact No. 27) Many of the questions which the officers directed to the victim were indicative of the significant concern they had with respect to the victim’s credibility and truthfulness.” United States v. Evans, 2015 U.S. Dist. LEXIS 175726 (W.D.Mo. Nov. 9, 2015),* adopted 2016 U.S. Dist. LEXIS 11840 (W.D. Mo. Feb. 2, 2016).*
The affidavit for the search warrant in this case completely lacked probable cause by showing a nexus to defendant, 12 other burglaries, and the place to be searched. Moreover, the list of things to be seized was completely without particularity for “any and all burglary tools, stolen items, or any similar items pertaining to this or any other recent burglary.” Finally, it was so facially deficient that the good faith exception cannot apply. Russ v. State, 2016 Fla. App. LEXIS 1528 (Fla. 5th DCA Feb. 5, 2016): Continue reading →
The 4th U.S. Circuit Court of Appeals unexpectedly ruled to limit how officers may use Tasers or other stun guns. In states such as Virginia and North Carolina, it’s no longer legal for police to use Tasers to force compliance from a non-dangerous suspect. Some cops say this is an unnecessary and dangerous restriction. Others say it’s an overdue curb on the abuse of these weapons.
Posted inExcessive force|Comments Off on NPR: Court Ruling Forces Police In Southern States To Reconsider Use Of Tasers
"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.
