An SEC subpoena was narrow and directed at company emails. It complied with the Fourth Amendment. The third party doctrine is not involved. United States SEC v. Karroum, 2015 U.S. Dist. LEXIS 164718 (D.D.C. Dec. 9, 2015).
Petitioner raised a search and seizure question on direct appeal, and law of the case prohibits relitigation in a § 2255. Bernal v. United States, 2015 U.S. Dist. LEXIS 163764 (D. Ariz. Nov. 5, 2015), adopted 2015 U.S. Dist. LEXIS 163762 (D. Ariz. Dec. 7, 2015).*
Defendant’s guilty plea waived his search issue. McMickle v. State, 2015 Miss. App. LEXIS 651 (Dec. 8, 2015).*
Posted inSubpoenas / Nat'l Security Letters|Comments Off on D.D.C.: SEC subpoena for company emails was narrow and complied with Fourth Amendment
“Defendant now challenges the facial constitutionality of [the Arizona implied consent law,] § 28-1321, arguing that it is invalid under the United States Supreme Court’s decision in Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), and the doctrine of “unconstitutional conditions.” We reject these facial challenges. Consistent with the underlying principles of McNeely (an exigent-circumstances case), § 28-1321 authorizes warrantless searches of a DUI arrestee’s bodily substances only when the arrestee gives actual, voluntary consent, as determined by the totality of the circumstances. Further, the statutory penalties for failure to give consent do not violate the unconstitutional conditions doctrine. The state has a substantial interest in keeping intoxicated drivers off the roadways, and the statute reasonably serves that interest by penalizing an arrestee’s refusal to submit to testing with suspension of his or her driver’s license.” State v. Okken, 2015 Ariz. App. LEXIS 296 (Dec. 8, 2015).*
A DUI checkpoint on I-540 through Fort Smith, Arkansas was set up and executed without a plan, and it was unconstitutional. There was no supervisor there and nothing to limit discretion. Every car was stopped, except until a traffic jam ensued. Whalen v. State, 2015 Ark. App. 706 (Dec. 9, 2015): Continue reading →
Posted inDrug or alcohol testing, Roadblocks|Comments Off on AR: DUI checkpoint on an interstate highway without a plan or supervision was unconstitutional
This 4 a.m. knock-and-talk was reasonable. Seven police officers with vests and guns showed up to get a consent and got it. Defendant was dealing marijuana butter in a MMJ state. People v. Frederick, 2015 Mich. App. LEXIS 2289 (Dec. 8, 2015). [Note: In some states, like my own, this just could not happen because the common law and statutory aversion to nighttime searches factors (§ 55.13). The opinion reads like an apologia and rank justification for police overreaching finding it completely normal for the police to show up at your house and wake you up to conduct a knock-and-talk while you’re still in bed asleep. And, the opinion relies on a Michigan federal case finding a 4 a.m. knock-and-talk valid, so that’s not uncommon there. The opinion flirts with a discussion of societal norms by alluding to it, and then just ignores them. Societal norms are important in the Fourth Amendment, and they inform the reasonable expectation of privacy, reasonableness in general, guest standing, and was the basis for Katz, Bond, Jones, Riley, and Jardines, among other things. In short, a 4 a.m. knock-and-talk is unreasonable on its face unless this is a drug house open for business at that hour. But not in Michigan. This is just indefensible.]
Posted inKnock and talk, Nighttime search|Comments Off on MI sustains a 4 am knock-and-talk; a depressing must read for practitioners there
Defendant was stopped on an “investigative alert,” which would have been sufficient if there was reasonable suspicion under the collective knowledge doctrine. There was no showing of the basis for the alert, and the stop was thus without reasonable suspicion and unreasonable. People v. Jones, 2015 IL App (1st) 142997, 2015 Ill. App. LEXIS 907 (Dec. 8, 2015).
Plaintiff was picked up on a mental commitment order, held briefly, evaluated, and released. Defendant initiated that order. A mere violation of the state mental commitment statute does not state a Fourth Amendment claim. Plaintiff’s case doesn’t even spell out an unreasonable seizure claim. Durand v. Harpold, 14-2244 (1st Cir. Dec. 7, 2015).*
Even if there was constitutional error and ineffective assistance of counsel in admission of a urine test at petitioner’s trial, it was harmless error at worse. IAC prejudice subsumes a harmless error analysis. Brown v. Aud, 2015 U.S. Dist. LEXIS 163926 (E.D.Mich. Dec. 8, 2015).*
Posted inIneffective assistance, Reasonableness, Seizure|Comments Off on IL: When a stop is based on an “investigative alert,” the basis has to be shown to be reasonable; here, the state couldn’t
Texas law enforcement agencies have taken in over half a billion dollars in forfeiture revenue an average of $41.5 million per year.
Civil forfeiture is a booming industry in Texas. Every year, police and prosecutors statewide take in more and more cash and property from people without so much as charging them with a crime. Between 2001 and 2013 (the most recent year for which these numbers are available), Texas law enforcement agencies have taken in over half a billion dollars in forfeiture revenue – an average of $41.5 million per year. Make no mistake: Reform is sorely needed. Texas’ civil forfeiture laws receive a grade of “D&” in “Policing for Profit,” a recently updated nationwide report from the Institute for Justice. Texas scores so poorly for three reasons.
Posted inForfeiture|Comments Off on Houston Chronicle: Miller: Texas fails to protect property owners from civil forfeiture
The tenure of the average urban police chief has never been long or been noted for its serenity, but in an age of widely disseminated video footage of fatal police shootings as well as other accusations of abusive police behavior, some chiefs say the heightened level of scrutiny has radically changed their work — making jobs more difficult, far more political and much less secure.
Posted inBody cameras|Comments Off on NYTimes: Police Chiefs Say Scrutiny Over Videos Has Radically Changed Their Work
Defendant’s car was seized as evidence of what he claimed was a carjacking where guns were stolen out of his car. His wife was murdered around that time. The government believed that the carjacking was a ruse to coverup loss of the gun used in the murder. The government had the car by consent and searched multiple times. Defendant contended that he revoked his consent but he never explicitly said he did. He just asked when he was getting the car back. There is no specific time when the search has to be done; it just has to be reasonable. Defendant was tried and convicted of the murder and sentenced to 109 years by the Commonwealth of Puerto Rico. Then the feds indicted him for false statements about the carjacking. P&A in the federal case was right after the murder sentencing. The court reverses on denial of a change of venue because virtually all the jurors were aware of the murder conviction. The denial of the motion to suppress is affirmed, and the court questions the point of trying him for a 1001 violation while he’s doing a 109 year sentence. United States v. Casellas-Toro, 2015 U.S. App. LEXIS 21199 (1st Cir. Dec. 7, 2015): Continue reading →
Posted inConsent, Reasonableness|Comments Off on CA1: Asking when you can get your car back is not revocation of consent; here it took over 21 days to search defendant’s car
Missouri’s Linn State Technical College’s student drug testing policy is constitutional under the Fourth Amendment. After the prior appeal, Barrett v. Claycomb, 705 F.3d 315 (8th Cir. 2013), the district court erred in conducting a program-by-program analysis of where the special needs doctrine would apply. Because the students were hands on in industrial training, and going into industries where they would almost certainly be drug tested at work, testing them as they learn is not unconstitutional because of the safety concerns. Kittle-Aikeley v. Claycomb, 2015 U.S. App. LEXIS 21132 (8th Cir. Dec. 7, 2015) (2-1) [Update: Decided en banc: Kittle-Aikeley v. Strong, 2016 U.S. App. LEXIS 23030 (8th Cir. Dec. 22, 2016) (en banc) [posted here], panel at Kittle-Aikeley v. Claycomb, 807 F.3d 913 (8th Cir. 2015), prior opinion, Barrett v. Claycomb, 705 F.3d 315 (8th Cir. 2013).]: Continue reading →
Posted inDrug or alcohol testing, Special needs|Comments Off on CA8: Linn State Tech College’s student drug testing policy constitutional; special needs proven [Update: rev’d en banc 12/22/16]
Blog readers are probably more interested in the underlying merits: Why is blood removal and testing a Fourth Amendment search? Here’s an overview from the petition.
Posted inDNA|Comments Off on WaPo: ‘Volokh Conspiracy’ Blog: Cert petition: Is DNA testing blood on seized clothing a Fourth Amendment ‘search’?
The court-appointed monitor overseeing the remedial process in New York City’s stop-and-frisk litigation has proposed altering a pilot program that would have police officers wear body cameras.
Posted inBody cameras|Comments Off on NYLJ: Monitor Wants ‘Controlled’ Study of Police Body Cameras
The impoundment of defendant’s car was reasonable under the circumstances because officers intended to and did get a search warrant for it. The inventory before the search warrant wasn’t prejudicial because nothing from the inventory was even mentioned in the search warrant application. In the warranted search, officers sought one SD card to search. A second was found, and another search warrant was sought for it. A premature search of it was saved by inevitable discovery. State v. Workman, 2015-Ohio-5049, 2015 Ohio App. LEXIS 4895 (3d Dist. Dec. 7, 2015).
Defendant’s car was three feet from the curb, so the officer had reasonable suspicion that it was illegally parked. The officer was not required to discount that the driver was letting off passengers. He didn’t even see anybody in the vehicle at first. United States v. Rodriguez-Ramirez, 2015 U.S. Dist. LEXIS 162808 (E.D.Wis. Aug. 13, 2015).*
Posted inInventory, Reasonable suspicion|Comments Off on OH3: Impoundment of car for SW did not prohibit inventory before SW issued
Killing a dog is a Fourth Amendment seizure. Here, the owner testified that the dog was not aggressive, although it did come at the officer. The officer had a split second to respond and shot the dog when it was on him. Qualified immunity applies. Stephenson v. McCleland, 2015 U.S. App. LEXIS 21136 (5th Cir. Dec. 4, 2015): Continue reading →
When the state shows probable cause for a search warrant for defendant’s house because he was a suspected heroin dealer, there is also probable cause for a search of defendant’s cell phone because cell phones are used to arrange drug deals. State v. Albert, 2015 Del. Super. LEXIS 997 (Dec. 3, 2015): Continue reading →
Posted inNexus, Probable cause|Comments Off on DE: Being an alleged heroin dealer is nexus to search the alleged dealer’s cell phone
Defendant’s consent was not voluntary where the officer claimed to have search warrant papers and said that he’d arrest defendant’s mother if the search warrant had to be used. United States v. Bachelor, 2015 U.S. Dist. LEXIS 161299 (W.D.Ky. Dec. 1, 2015), R&R 2015 U.S. Dist. LEXIS 162157 (W.D.Ky. Oct. 8, 2015).
The DUI checkpoint in this case complied with case law and the highway patrol policy. The one issue was notice, which was sent to a newspaper 17 days before, and it chose not to print it. State v. Mitchell, 2015 Tenn. Crim. App. LEXIS 962 (Dec. 3, 2015).*
Posted inConsent, Roadblocks|Comments Off on W.D.Ky.: Threat to arrest def’s mother if he didn’t consent made it involuntary
Defendant was indicted and convicted in federal court in Georgia, but he was on bond pending appeal in Minnesota. As a condition of his supervised release, his computers were subject to inspection. Based on certain admissions, USPO seized his computer and shipped it to Georgia for inspection. The conditions of release permitted the seizure and search of his computer elsewhere. United States v. McCoy, 2015 U.S. Dist. LEXIS 162452 (D. Minn. Oct. 1, 2015), adopted 2015 U.S. Dist. LEXIS 168838 (D.Minn. Dec. 17, 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.
