Defendant’s girlfriend was a Louisiana State Police dispatcher. She suspected he was cheating on her, and she looked at his iPhone to see. She found a nude picture of her 12 year old daughter. At the time of the search, she was acting as a private person, not as a LEO or employee of the LSP. United States v. Richard, 2015 U.S. Dist. LEXIS 165654 (W.D.La. Sept. 30, 2015), adopted 2015 U.S. Dist. LEXIS 165652 (W.D. La. Dec. 8, 2015).
Defendant swerved to miss two deer and wrecked his car, getting knocked out. He agreed to go to the hospital, and there a nurse drew blood only for treatment. She was not a state actor, so the motion to suppress is denied. People v. Wuckert, 2015 IL App (2d) 150058, 2015 Ill. App. LEXIS 915 (Dec. 10, 2015).*
Posted inPrivate search|Comments Off on Two on private search: a police dispatcher and an ER nurse
Consent to search a car did not include containers. “A reasonable person would not have understood the scope of the deputies’ interest in the car to extend to the contents of the zipped fanny pack found under the passenger’s seat from the open-ended and vague question Robeson asked defendant, namely, whether there was ‘anything in the vehicle that we should be concerned about.’ Defendant responded ‘no,’ and said that ‘if [the deputies] wanted to search the vehicle, [they] could.’ The only location of the search specified was the car itself.” Search of a fannypack exceeded the scope of consent. State v. Delong, 275 Ore. App. 295, 2015 Ore. App. LEXIS 1453 (Dec. 9, 2015). [Remember, this is Oregon. Other state courts would not be so kind to the defense.]
Defendant wrecked his bike and ended up in the hospital. A police officer met him there and smelled marijuana on him. Defendant consented to a search of his backpack but not his cell phone which was search incident to his arrest. Defendant’s motion to suppress was denied, and he appealed. After oral argument in April 2014, Riley was decided. The parties supplemented their briefs. Riley applies and the search of the cell phone is suppressed. Harmless error review is not possible on conditional pleas, so reversed. (The original case date appears to be 2011.) State v. Lowell, 275 Ore. App. 365, 2015 Ore. App. LEXIS 1490 (Dec. 9, 2015).
Posted inUncategorized|Comments Off on OR: Consent to search a car didn’t include a fannypack
The Right to Financial Privacy Act was passed in response to Miller, but bank customers can waive privacy in their account records during an investigation, aside from process being applied. Bond v. United States Postal Serv. Fed. Credit Union, 2015 U.S. Dist. LEXIS 165372 (D.Md. Dec. 9, 2015): Continue reading →
“At issue is whether there was reasonable suspicion to stop and frisk the defendant, who did not match the particularized aspects of the descriptions provided by eyewitnesses who called 911 to report that there had been a shoot-out on a residential street. The defendant was, however, among the trees in a closed public park well after dark, close to the scene of the crime within minutes of its occurrence, wearing a ‘hoodie’ pulled tightly around his face. In the circumstances presented, as described more fully below, we conclude that the seizure was reasonable and therefore there was no error in the denial of the defendant’s motion to suppress.” Commonwealth v. Johnson, 2015 Mass. App. LEXIS 187 (Dec. 9, 2015).
Posted inReasonable suspicion|Comments Off on MA: Police responding to a shooting call saw def hiding in a closed park with a ‘hoodie’ pulled tightly around face; that was a factor in reasonable suspicion
Many Georgia prosecutors, like Wright, can point to examples of crimes that might not have happened if Georgia allowed the collection of DNA upon arrest….Civil libertarians and others are suspicious of the laws, arguing that they violate Fourth Amendment prohibitions on searches and seizures. They also say that the laws enable the state to collect extensive information on people who might never be convicted of a crime.
Posted inDNA|Comments Off on Atlanta Journal-Constitution: Prosecutors want to collect DNA at arrest, not after conviction
The overall number of arrests, stops, moving violations and criminal summonses issued in New York City has fallen substantially over the past four years, according to a study released on Friday.
Posted inStop and frisk|Comments Off on NYT: Decline in Stop-and-Frisk Tactic Drives Drop in Police Actions in New York, Study Says
Schmerber not McNeely was the law at the time of the blood draw here, and Davis means that Schmerber applies. Here, defendant said to a nurse he was withdrawing from methamphetamine and that reasonably was exigency. People v. Jimenez, 2015 Cal. App. LEXIS 1110 (5th Dist. Dec. 11, 2015): Continue reading →
The smell of marijuana on defendant’s clothing noticed during the traffic stop and his heavily sweating during the stop although the temperature was in the high 20’s to low 30’s and travel plans that were suspicious all added up to reasonable suspicion to extend the stop. “Therefore, under Rodriguez, Fourth Amendment considerations are both qualitative and temporal; related actions which unduly prolong a stop and unrelated actions performed after completion of the actions related to the traffic stop’s purpose are both Fourth Amendment violations.” Fisher v. State, 2015 Tex. App. LEXIS 12472 (Tex. App. – Texarkana Dec. 10, 2015).
Posted inReasonable suspicion, Seizure|Comments Off on TX6: “[U]nder Rodriguez, Fourth Amendment considerations are both qualitative and temporal”
SCOTUS granted cert today on the question of whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood. Birchfield v. North Dakota, 14-1468; Bernard v. Minnesota, 14-1470; Beylund v. North Dakota, 14-1507. They are consolidated for oral argument, presumably under Birchfield since it has the lowest case number.
Posted inDrug or alcohol testing, SCOTUS|Comments Off on SCOTUS cert. grant: “Whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.”
Prosecutors determined that wiretaps the U.S. Drug Enforcement Administration used as the core of its investigation were illegal and couldn’t be used in court. Four suspects went free, and they want the government to give back nearly $800,000 drug agents seized.
Posted inForfeiture|Comments Off on USA Today: After illegal wiretap, suspects go free and want a refund
Video from body-worn cameras can both exonerate and implicate. It will be an important tool to justify police action in the face of unwarranted criticism as well as to hold officers accountable who misuse their positions.
Posted inBody cameras|Comments Off on Denver Post: Editorial: Why SWAT needs body cams, too
Attorney Mark A. Romance writes about an Eleventh Circuit ruling that if you use a free mobile application that does not require you to register, your identity and viewing history can be sold and publicized.
Posted inSurveillance technology|Comments Off on Law.com/Daily Business Review: Is Privacy a Thing of the Past?
The federal government on Thursday began collecting facial and eye scans of foreigners entering at a busy border crossing with Mexico, a first step in an ambitious effort to track people who stay in the country illegally after their visas expire.
Posted inSurveillance technology|Comments Off on NY Times: California: Trial Run Starts for Biometric Scans at Border
“Although certainty of knowledge of the commission of a particular crime is frequently an important factor in the determination of probable cause, probable cause may exist when the commission of a crime has not been definitely established, but is reasonably probable under the totality of the known circumstances. State v. Green, 02-1022 (La. 12/4/02), 831 So.2d 962, 969.” State v. Mitchell, 2015 La. App. LEXIS 2489 (La.App. 5 Cir. Dec. 9, 2015).
It was apparent from the affidavit for the search warrant that the CI was involved in the drug trade, so it was not misleading under Franks. The information was timely and showed probable cause. State v. Mitchell, 2015 Mo. App. LEXIS 1274 (Dec. 8, 2015).*
The Court of Appeals of the Armed Forces held that the protective sweep of defendant’s quarters was unreasonable and unconstitutional. The government did not prove that inevitable discovery even applied. United States v. Keefauver, 2015 CCA LEXIS 553 (Army Ct.Crim.App. Nov. 25, 2015), on remand from 74 M.J. 230 (C.A.A.F. 2015).*
The officer’s failure to follow the inventory procedures and stopping the inventory when contraband was found still didn’t make the inventory pretextual. Whitley v. State, 2015 Ind. App. LEXIS 739 (Dec. 7, 2015): Continue reading →
Posted inInventory|Comments Off on IN: Failure to follow the inventory procedures and stopping the inventory when contraband was found still didn’t make the inventory pretextual
The District Court enhanced defendant’s sentence by two levels under the U.S.S.G. for perjury at the suppression hearing. The District Court merely adopted the PSR’s statement without making sufficient findings of false testimony. It could have been misremembering. Merely crediting one version over another doesn’t involve perjury. United States v. Thompson, 2015 U.S. App. LEXIS 21314 (2d Cir. Dec. 9, 2015): Continue reading →
Posted inBurden of proof|Comments Off on CA2: Inadequate findings made to support obstruction USSG enhancement for suppression hearing testimony
"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.
