Defendant fled from the police and dropped a gun. His being accosted was without reasonable suspicion and his flight was not reason to arrest. Dropping the gun while being chased is suppressed. “Detective Lunt’s experience with gang activity, his awareness that he was in an area known for gang activity, and his observation that the defendant made ‘constant adjustments’ to the right side of his waistband, did not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion that was necessary to lawfully pursue the defendant, even when coupled with the defendant’s flight from the police.” People v. Clermont, 2015 NY Slip Op 07989 (2d Dept. Nov. 4, 2015).
The protective sweep of defendant’s rented room in the house entered here was essentially the same as in Buie, and it was reasonably necessary for officer safety. United States v. Medina, 2015 U.S. App. LEXIS 19377 (11th Cir. Nov. 6, 2015).*
Posted inAbandonment, Protective sweep, Reasonable suspicion|Comments Off on NY2: Def was accosted on the street without reasonable suspicion, and def’s flight and abandonment was precipitated by unlawful police action
Anal cavity search for drugs at the stationhouse, rather than on the street, could not be justified as a search incident. It was so intrusive that a warrant was required under the state constitution. State v. Scruggs, 274 Ore. App. 575, 2015 Ore. App. LEXIS 1294 (Nov. 4, 2015): Continue reading →
Posted inBody searches|Comments Off on OR: Anal cavity search could not be justified by search incident doctrine
The average American today generates more media than they did at any other point in history, and the ease with which our communications, photos, and videos are sent and stored digitally means most of us have more media stored in the cloud or on a single digital device than previous generations would have created in an entire lifetime. However, even as the amount of media we create and store has increased, the laws governing its search and seizure have failed to keep up. Under federal law and the laws of most states, the same information may be subject to different levels of protection from government authorities depending on whether that information is in the form of an e-mail stored in the cloud or a letter stored in a desk drawer.
Posted inSurveillance technology|Comments Off on mondaq.com: United States: California Gives The Fourth Amendment A 21st Century Makeover
That system will replace the government’s sweeping collection of phone call records with a process in which NSA officials obtain court orders to access a narrower set of records from private phone companies.
Posted inNational security|Comments Off on The Hill: NSA’s new surveillance system is nearly operational
It is no surprise that the National Labor Relations Board (NLRB) has been busy this summer establishing several principles that are frightening to employers. But in an unexpected turn of events, the NLRB Office of the General Counsel, Division of Advice, recently handed management a win. The Board held that installation of a GPS tracking system on an employee’s company vehicle did not require bargaining with a union because it was not a “material, substantial, and significant” change.
Posted inGPS / Tracking Data|Comments Off on Natl.L.Rev.: NLRB Hands Employers a Win (Seriously!): GPS Tracking of Employee Upheld
“Defendant Darren Wesley Huff was convicted in federal district court of transporting a firearm in commerce with the intent that it be used unlawfully in furtherance of a civil disorder, in violation of 18 U.S.C. § 231(a)(2).” He was a member of a militia group who sought to have the President and others indicted for treason by a local grand jury. When the grand jury wouldn’t, he enlisted others to take over the Madisonville, TN courthouse by force. The FBI heard of the plans and got involved, and all local law enforcement got the intel in morning briefings. He was stopped for a purported traffic offense and questioned, and he pretty much admitted his plan. The officers let him go [which the court finds inexplicable]. He moved to suppress his statements and the officers seeing his gun which he volunteered because of an alleged illegal stop, and the plurality finds the stop without reasonable suspicion of a traffic offense because the video doesn’t support it. Instead, the stop is found valid on a ground not argued yet supported by the record: there was reasonable suspicion of him being involved in the planned assault on the courthouse, and the admission occurred after he was told he could leave. United States v. Huff, 2015 U.S. App. LEXIS 19466 (6th Cir. Nov. 4, 2015): Continue reading →
Posted inBurden of proof, Reasonable suspicion|Comments Off on CA6: RS for def’s stop for transporting a firearm in commerce with the intent that it be used unlawfully in furtherance of a civil disorder, not the traffic offense asserted by the govt
(1) The judge issuing the search warrants in this murder case was a former Chief Deputy District Attorney who had prosecuted defendant for financial crimes more than 15 years earlier. That connection was insufficient to show that he was not a neutral and detached magistrate when the search warrants here were presented to him. There were no common facts. Similar are: United States v. Outler, 659 F.2d 1306 (5th Cir. 1981); United States v. DeLuna, 763 F.2d 897 (8th Cir. 1985); United States v. Freerksen, 457 Fed. Appx. 769 (10th Cir. 2012). And, this is a kidnapping, sexual battery, and murder case 15 years later. (2) The District Judges have authority to issue search warrants across county lines, and (3) law enforcement officers in this metropolitan county can execute them. (4) Defendant’s trash containers were not on the curtilage when the officers searched, and (5) there is no expectation of privacy in a trash container out for collection. State v. Robinson, 2015 Kan. LEXIS 929 (Nov. 6, 2015)
[Note: First, this is a death penalty case and it has a spirited argument in dissent over the constitutionality of the death penalty under the state constitution. Second, this case was pending a really long time. Its docket number is 90196. Decided the same day is 107872. The murder was in 2000. Trial took six weeks ending October 29, 2002. 90197 was decided July 24, 2004. So, one can surmise that the record was filed 11 years ago. Third, this may be the longest opinion I’ve ever seen. The pdf is 415 pages. The prior record holder to me is Capano v. State, 781 A.2d 556 (Del. 2001) of 234 pages with 565 footnotes allegedly produced in two months, likely written by everybody on that court, and it is 122 pages in the Atlantic Reporter.]
Posted inNeutral and detached magistrate, Reasonable expectation of privacy|Comments Off on KS: Judge was former ADA who prosecuted def 15 years earlier for fraud; he was “neutral and detached” and could issue SW in murder case unrelated to prior prosecution
Chief Justice John G. Roberts Jr. is a stickler for evenly distributing the workload of the Supreme Court, but he plays favorites among his eight colleagues when assigning the court’s most important decisions.
Not surprisingly, Roberts calls his own number more than anyone else’s and assigns the next highest number to Justice Anthony M. Kennedy, the pivotal justice on the ideologically divided court, according to a new study by Harvard law professor Richard J. Lazarus published in the Harvard Law Review.
Posted inSCOTUS|Comments Off on WaPo: Chief justice favors some when assigning court’s major decisions
The NSA’s Bulk Telephony Metadata Program is enjoined. Plaintiffs have shown likelihood of showing standing with a new party who is a Verizon customer (“Given the strong presumption that the NSA collected, and warehoused, the Little plaintiff’s data within the last five years, these plaintiffs unquestionably have standing to enjoin any future queries of that metadata.” This claim is not “attenuated” under Clapper. Plaintiffs have also shown a substantial likelihood of prevailing on the merits of the Fourth Amendment claim because of the nature of the privacy interest in smartphones and the character and degree of the government’s intrusion, still shrouded in secrecy. Finally, they will suffer irreparable harm without injunctive relief. Klayman v. Obama, 2015 U.S. Dist. LEXIS 151826 (D.D.C. Nov. 9, 2015), prior opinion 957 F.Supp.2d 1 (D.D.C. 2013), vacated and remanded 800 F.3d 559 (D.C.Cir. 2015).
It was not clearly established at the time (2010) that deadly force could not be used on a suspect fleeing in a car at 85-100 mph who threatened to shoot police officers. Thus, the separate Fourth Amendment question doesn’t matter here. Later cases said that it would have been. Mullenix v. Luna, 2015 U.S. LEXIS 7160 (Nov. 9, 2015) (per curiam, 8-1): Continue reading →
Posted in§ 1983 / Bivens, Excessive force, Qualified immunity|Comments Off on SCOTUS: Not clearly established deadly force could not be used on suspect fleeing at high speed who threatened to shoot officers; Sotomayor: “By sanctioning a ‘shoot first, think later’ approach to policing, the Court renders the protections of the Fourth Amendment hollow.”
Supreme Court denies petition that said authorities should get a warrant to obtain cell tower info.
The U.S. Supreme Court on Monday refused to decide whether law enforcement officers must have a warrant to obtain cellphone location information.
In Davis v. United States, a divided en banc U.S. Court of Appeals for the Eleventh Circuit held that Quartavius Davis had no reasonable expectation of privacy in cellphone location records held by his service provider. And even if a Fourth Amendment search had taken place, the court said, the government’s use of a court order obtained under the federal Stored Communications Act rather than a warrant was reasonable because the privacy intrusion was minor and the government had a compelling interest in investigating crimes.
The high court’s decision to deny review was not surprising because a split among the federal appellate courts on the Fourth Amendment privacy issue disappeared when the full Fourth Circuit last month agreed to rehear United States v. Graham. The full court, granting a petition from the government, vacated a panel’s ruling contrary to Davis.
Defendant was under investigation for various offenses, including sex crimes. His cell phone was seized when he was arrested for burglary. Minor sex offense witnesses were identified by the allegedly illegal search of the phone, and the court doesn’t suppress because their identity was already known before the search. [And the court could more easily have said that “witnesses aren’t suppressed as a result of an alleged illegal search: United States v. Ceccolini (1978).] State v. Davis, 2015 Ida. App. LEXIS 114 (Nov. 4, 2015).
That kidnapping victim supposedly gave contradictory information to the police that was not included in the affidavit for search warrant failed the Franks threshold. There was no offer of proof to overcome the presumption of validity of the warrant. United States v. Felton, 2015 U.S. Dist. LEXIS 150379 (M.D.Fla. Oct. 27, 2015).*
Defendant was stopped, and the officers could smell raw marijuana coming from the car. A search revealed cultivation supplies. They went to his house for a knock-and-talk and his girlfriend was there, and they could smell raw marijuana when she opened the door. She refused to consent. They did a protective search while one officer applied for a search warrant. There was probable cause for the search, and it is not suppressed. State v. Turner, 2015-Ohio-4612, 2015 Ohio App. LEXIS 4483 (2d Dist. Nov. 6, 2015).*
Weaving within one’s lane, touching the center line once, crossing it once, turning wide, and driving five mph below the speed limit is not reasonable suspicion. A motorist doesn’t have to drive perfectly to avoid a stop. Case law supports that “a driver is not required to drive perfectly on the highways in order to avoid being stopped by police and subjected to a seizure.” State v. Seagraves, 2015 Tenn. Crim. App. LEXIS 888 (Nov. 5, 2015).*
Defendant showed enough of a factual basis on the question of reasonable suspicion that he gets a hearing on his motion to suppress. United States v. Kash, 2015 U.S. Dist. LEXIS 149997 (E.D.Cal. Nov. 3, 2015).*
“McMurray spends a great deal of time arguing about the strength of the motion to suppress, and the Court commends his efforts and acknowledges the competency of McMurray’s Fourth Amendment legal analysis. … Despite his firm belief in the motion’s strength, McMurray has not carried his significant burden under Strickland to show that the motion’s likelihood of success was so strong that abandoning it in favor of the plea deal was objectively unreasonable.” United States v. McMurray, 2015 U.S. Dist. LEXIS 149848 (D.Ore. Oct. 31, 2015).*
Posted inIneffective assistance, Reasonable suspicion|Comments Off on TN: “a driver is not required to drive perfectly on the highways in order to avoid being stopped by police and subjected to a seizure.”
A police officer has the discretion to impound a vehicle being left on private property too, not just on a public road. It is still subject to vandalism. [And why should the owner of the private property have to put up with a strange vehicle parked there in the way and for who knows how long?] United States v. Vladeff, 2015 U.S. App. LEXIS 19193 (11th Cir. November 4, 2015): Continue reading →
Posted inInventory|Comments Off on CA11: Impoundment and inventory can happen with a vehicle parked on private property, too
Where a child pornography search warrant also permitted seizure of adult pornography which is not unlawful, it was overbroad under established precedent for 23 years. Merely citing the child pornography in the search warrant wasn’t a cure. State v. Besola, 2015 Wash. LEXIS 1315 (Nov. 5, 2015): Continue reading →
Posted inOverbreadth|Comments Off on WA: Child porn SW permitted search and seizure of adult porn, and that made it overbroad; merely citing the CP statute doesn’t narrow it
Defense counsel was not ineffective for not listening to the audio of the oral application for the search warrant challenging probable cause. The defense moved to suppress on lack of PC, and it was denied by the trial court and affirmed on the merits of the CI’s information showing probable cause. People v. Brandon, 2015 NY Slip Op 08000, 2015 N.Y. App. Div. LEXIS 8101 (3d Dept. Nov. 5, 2015).*
Defendant was a tractor trailer driver who crossed the centerline twice and got pulled over by an officer with a drug dog. Defendant said there was a co-driver behind the curtain in the sleeper, and he retrieved the logbook without opening it. He was excessively nervous and the logbook wasn’t accurate. The trailer doors were not sealed. The load was supposedly perishable, and that meant that the truck should not have stopped at all for any appreciable period of time. There was reasonable suspicion. Sherod v. State, 2015 Ga. App. LEXIS 630 (Nov. 3, 2015).*
The fact that the officers did not quantify the excess window tinting does not undermine the reasonable suspicion for the stop. At worst, it’s only a reasonable mistake of fact. United States v. Quinones, 2015 U.S. Dist. LEXIS 148557 (W.D.N.Y. Nov. 2, 2015).*
The order to defendant during a traffic stop to remove his shoes showed it was not by consent. The trial court’s suppression order is affirmed. State v. Carothers, 2015-Ohio-4569, 2015 Ohio App. LEXIS 4455 (5th Dist. Nov. 3, 2015).
Police stopped defendant after two biker gangs fought at the Lancaster Speedway in New York where two were killed. Defendant said he was coming from the speedway, and the officer saw spray mace, possession of which was prohibited under state law. That was probable cause for a search for weapons. United States v. Yager, 2015 U.S. Dist. LEXIS 148273 (E.D.Wis. Nov. 2, 2015).*
Defendants’ stop on the street was purely on a hunch without reasonable suspicion, and the motion to suppress the gun found is granted. Officers stopped near defendant walking down the street in Brooklyn. “7. One officer said, ‘What’s up fellas?’ To which Williams replied, ‘Ain’t nothing.’ 8. The officers then asked if Williams or Slaughter ‘had anything.’ Both Williams and Slaughter said ‘no.’ 9. The officers then searched Williams and Slaughter and discovered the handgun in Williams’s pants loaded with 12 rounds of ammunition. Both Williams and Slaughter were placed under arrest.” United States v. Williams, 2015 U.S. Dist. LEXIS 150486 (E.D.N.Y. Nov. 5, 2015).*
Federal adoption of a forfeiture deprives the state court of jurisdiction to order return of property. Gray v. City of Opelika, 2015 Ala. Civ. App. LEXIS 254 (Nov. 6, 2015).
A traffic offense justified this stop, then “the smell of marijuana alone by a person qualified to recognize the odor is sufficient to provide probable cause for a warrantless search of the vehicle.” State v. Tate, 2015-Ohio-4496, 2015 Ohio App. LEXIS 4461 (8th Dist. Oct. 29, 2015).*
The two CIs here were corroborated by independent evidence and each other so there was probable cause. Nexus is shown by the defendant being picked up at his house and having meth on him for the CI. Three month old information that another CI was going to defendant’s house to get meth was timely by the other CI seeing defendant counting a large amount of cash in the house the day before the warrant issued. United States v. Flemino, 2015 U.S. Dist. LEXIS 149633 (D.Minn. Sept. 16, 2015), adopted 2015 U.S. Dist. LEXIS 149125 (D. Minn. Nov. 3, 2015).*
"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.
