In a bank fraud conspiracy, other person’s cell phones had evidence of the conspiracy on them. That led to a fair probability defendant’s phone would, too, based on the PC showing. There was also PC for a tracking device and good cause for a 45 day extension of the order under Fed. R. Crim. P. 41(e)(2)(C). In addition, while defendant was told he could leave, he was in restraints and his car was seized. He was in custody for Miranda purposes. United States v. Gaye, 2015 U.S. Dist. LEXIS 167691 (D.Minn. June 11, 2015), adopted 2015 U.S. Dist. LEXIS 167702 (D. Minn. Dec. 14, 2015).
Defendant was a suspected heroin dealer who got off a bus from NYC and got in a truck. The truck was stopped for speeding, and reasonable suspicion developed from the conversation sufficient to continue the detention. The court thus does not have to consider the collective knowledge issue. United States v. Herman, 2015 U.S. Dist. LEXIS 167700 (D.Vt. Dec. 14, 2015).*
Posted inCell phones, Reasonable suspicion|Comments Off on D.Minn.: Bank fraud conspiracy investigation supported PC for SW for cell phone
Defendant had the burden of showing standing in business premises to challenge the search, and he cannot rely on the government’s theory of the case to do so [the latter is a premise on which I disagree: why isn’t that an admission under 801(d)(2) or estoppel?]. United States v. Medina, 2015 U.S. Dist. LEXIS 167608 (S.D.Fla. Dec. 15, 2015): Continue reading →
Posted inBurden of proof, Standing|Comments Off on S.D.Fla.: Def has burden of showing standing in business premises; he can’t just rely on govt’s theory of case
THE INTERCEPT HAS OBTAINED a secret, internal U.S. government catalogue of dozens of cellphone surveillance devices used by the military and by intelligence agencies. The document, thick with previously undisclosed information, also offers rare insight into the spying capabilities of federal law enforcement and local police inside the United States.
Posted inCell site simulators|Comments Off on The Intercept: Stingrays–A Secret Catalogue of Government Gear for Spying on Your Cellphone
A federal appeals court on Friday declined to take up a lower court’s decision upholding National Security Agency surveillance, in a blow to privacy advocates who have called the agency’s data collection unconstitutional.
Posted inNational security|Comments Off on The Hill: Court won’t reconsider ruling upholding NSA spying
Where a recording of defendant was made in California in violation of California law but being used in a prosecution in Ohio, the exclusionary rule would not be applied. The recording violated neither the Fourth Amendment nor Ohio law, and it was otherwise admissible. State v. Knoefel, 2015-Ohio-5207, 2015 Ohio App. LEXIS 5043 (11th Dist. Dec. 14, 2015).
Where decedent fired at police first, shooting back was reasonable under the Fourth Amendment. Howard v. City of Pine Bluff, 2015 U.S. Dist. LEXIS 166903 (E.D.Ark. Dec. 14, 2015).*
Posted inConflict of laws, Excessive force, Exclusionary rule|Comments Off on OH11: Conflict of laws: Recording of def in CA which violated CA law but not Fourth Amendment nor OH law was admissible in OH prosecution
Defendant made a successful Franks challenge in his drug case. The officer affiant was reckless in overstating facts that were critical to the finding of probable cause and the warrant was suppressed because a Franks violation means no good faith exception. The false statements were “convictions” rather an a 2002 assault conviction and a male removing trashbags with marijuana residue in them that (1) flakes in two small baggies never field tested for marijuana and (2) the male was an 8 year old child. The PC was thin, so it was material, and the state judge would likely not have issued the warrant if all the facts were out. United States v. Gaines, 2015 U.S. Dist. LEXIS 167257 (W.D.Okla. Dec. 15, 2015): Continue reading →
“In this case, we are asked to decide whether it constitutes a search within the meaning of the Fourth Amendment for law-enforcement officers to bring a trained drug-detection dog directly up to the front door of an apartment-home for the purpose of conducting a canine-narcotics sniff. We hold that it does. Consistent with the reasoning of the Supreme Court’s opinion in Florida v. Jardines, we conclude that the officers’ use of a dog sniff at the front door of the apartment-home of Michael Eric Rendon, appellee, resulted in a physical intrusion into the curtilage that exceeded the scope of any express or implied license, thereby constituting a warrantless search in violation of the Fourth Amendment. We, therefore, affirm the judgment of the court of appeals, which had affirmed the trial court’s rulings granting appellee’s motions to suppress. See State v. Rendon, Nos. 13-13-00665-CR, 13-13-00666-CR, 2014 Tex. App. LEXIS 12936, 2014 WL 6881630 (Tex. App.-Corpus Christi Dec. 4, 2014).” State v. Rendon, 2015 Tex. Crim. App. LEXIS 1413 (Dec. 16, 2015) (concur; dissent): Continue reading →
Posted inCurtilage, Dog sniff|Comments Off on TX: Jardines applies to apartments
The protective sweep of defendant’s hotel room permitted looking at a glass jar and box of ammunition that were out in the open. Looking in a glasses case and a duffle bag, however, cannot be justified by the protective sweep doctrine. United States v. Fore, 2015 U.S. Dist. LEXIS 167018 (W.D.N.C. Sept. 18, 2015), adopted 2015 U.S. Dist. LEXIS 167016 (W.D.N.C. Dec. 14, 2015).
Defendant was asked for consent three separate times, and he consented all three. The officers had reasonable suspicion to detain him otherwise, too. Torres v. State, 2015 Tex. App. LEXIS 12640 (Tex. App. – Houston (14th Dist.) Dec. 15, 2015).*
Defendant fails both Franks prongs. Even if the affiant’s statements were false, (1) defendant didn’t show that they were included with knowledge of their falsity, and (2) excising the questioned information still leaves PC. United States v. Lawrence, 2015 U.S. Dist. LEXIS 167622 (W.D.Pa. Dec. 15, 2015).*
Posted inConsent, Franks doctrine, Protective sweep|Comments Off on W.D.N.C.: Protective sweep permits a plain view, but officers could not open closed containers
“[T]he smell of burnt marijuana in the vehicle, without more, [doesn’t] provide[] probable cause to search each of the occupants for marijuana.” Otherwise it’s guilt by association. The officers needed to do more to isolate the smell of marijuana as to whom. The search of the whole car was thus unreasonable. United States v. Brock, 2015 U.S. Dist. LEXIS 167482 (W.D.N.Y. Dec. 11, 2015): Continue reading →
Posted inProbable cause|Comments Off on W.D.N.Y.: Smell of burnt MJ didn’t justify searching all four occupants or the whole car
[W]hile it is important to consider how the public views police body cameras, it is also worth noting what police law enforcement leadership thinks about the technology.
Posted inBody cameras|Comments Off on Cato Institute: Blog: What Do Police Think About Body Cameras?
The state Court of Appeals said Wednesday it will hear an appeal of a lower court’s ruling that found Facebook lacks standing to challenge search warrants seeking information on 381 of its account holders.
Posted inThird Party Doctrine|Comments Off on NYLJ: Court to Review Facebook’s Ability to Fight Warrants
“Did the State’s warrantless acquisition of four days worth of historical cell-site-location information—recorded by Jon Thomas Ford’s cell-phone service provider—violate the Fourth Amendment? No. We agree with the San Antonio Court of Appeals that, because a third-party, AT&T, gathered and maintained the information as business records of the service provided to Ford’s phone, Ford did not have a reasonable expectation of privacy in the data. The State did not violate Ford’s Fourth Amendment rights when it obtained that information by way of a court order under Article 18.21 § 5(a) of the Texas Code of Criminal Procedure—an order available on a showing short of probable cause. We will affirm.” Ford v. State, 2015 Tex. Crim. App. LEXIS 1412 (Dec. 16, 2015).
A Connecticut judge says police have been improperly using data from cellphones to track the location of suspects.
New Haven Superior Judge Jon Blue agreed to suppress evidence in an ATM robbery case, saying it was the result of Connecticut State Police improperly asking in advance to receive periodic live updates from the phone company of the location of the suspect’s cellphone
The Monday ruling comes in the case of Terrance Brown, 29, of Stratford, who was charged with robbing several automated bank teller machines in 2010.
T-Mobile was ordered to provide the location of Brown’s cellphone every 10 minutes during the time police were tracking him.
Posted inCell site location information|Comments Off on New Haven Register: New Haven judge says police need warrant for phone tracking data
Concerning Total Information Awareness, Holman Jenkins is wrong: TIA will not protect us, and it does threaten liberty (“Bring Back Poindexter’s Baby,” Business World, Dec. 9). TIA presumably analyzes on-line transactions, weighting each it considers suspicious; when enough points accumulate, it notifies authorities. So warrants will be sought using information nobody has seen, from an algorithm that cannot be examined—so much for the Fourth Amendment. Innocent transactions, such as gun ownership, will be suspect, leading to false-positive accusations. Worse, given the ease of spoofing identities online, inevitably a malicious person will seed a TIA system with false information about rivals. Imagine having to face charges based on false information that, by design, is impossible to challenge. This is Kafka come to life.
Posted inSurveillance technology|Comments Off on WSJ: The Fourth Amendment and TIA Algorithms
An ex parte order to freeze a bank account of a theft suspect violated the Washington Constitution because bank records are protected there. The trial court’s order was without legal authority, and it was not the functional equivalent of a search and seizure warrant. State v. Meza, 2015 Wash. App. LEXIS 3023 (Dec. 15, 2015): Continue reading →
Posted inSeizure|Comments Off on WA: Ex parte order freezing criminal def’s bank account was not functional equivalent of a SW and unreasonable
The City of Milwaukee on Tuesday proposed paying $5 million to 74 African-American residents who say they were subjected to illegal strip searches and body cavity searches by police officers looking for drugs.
Posted inStrip search|Comments Off on Milwaukee Journal Sentinel: Milwaukee to pay $5 million to settle suits over illegal strip searches
Anonymous tip that a parolee had marijuana in his house wasn’t sufficient for reasonable suspicion for a parole search, despite the lesser expectation of privacy that a parolee has. Commonwealth v. Coleman, 2015 PA Super 258, 2015 Pa. Super. LEXIS 814 (Dec. 14, 2015): Continue reading →
"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.
