If you’ve been waiting for the Supreme Court to decide whether the Fourth Amendment applies to government collection of cell-site records, you will probably have to wait a little longer. On Wednesday, the Fourth Circuit granted the government’s petition for rehearing in United States v. Graham, the case on whether and how the Fourth Amendment applies to the collection of historical cell site data. As I explained here back in August, the Fourth Circuit’s grant of rehearing eliminates the circuit split (at least for now) with the Fifth and Eleventh Circuits.
The Court could still grant the pending petition from the Eleventh Circuit in United States v. Davis. But that’s not likely. With the split now gone, the Supreme Court will probably stay out.
Posted inCell site location information|Comments Off on WaPo: The Volokh Conspiracy: Fourth Circuit grants rehearing, eliminates split, on cell-site surveillance
Where two men were alleged to have planned a homicide, it was reasonable to infer that the cell phone of one of them would have calls between the two planning and executing the murder. Therefore, the affidavit reasonably showed a nexus between the phone and the murder. [Caution: This can almost be read as a per se rule: two people + cell phone + murder = they talked or texted. What about drug crimes? That, too, is almost a given these days.] Johnson v. State, 2015 Ark. 387 (Oct. 29, 2015): Continue reading →
Posted inCell phones, Nexus|Comments Off on AR: When two plan a homicide, it’s reasonable to infer their cell phones have evidence of communications related to the crime, so nexus shown
Defendant’s consent was valid, and a bunch of police officers surrounding the house and a helicopter circling over head were not “provocative” enough to make consent invalid. [And what’s the purpose of the helicopter other than to intimidate? It sure doesn’t help the police on the ground when the house is that well covered.] United States v. Menchaca-Lopez, 2015 U.S. App. LEXIS 18790 (5th Cir. Oct. 26, 2015): Continue reading →
Posted inConsent|Comments Off on CA5: Cadre of police and helicopter circling overhead not sufficiently “provocative” to make consent involuntary
The GPS tracking warrant in this case was good for 30 days, and it was installed the day after issuance. When officers learned the car was going in for service, they recovered it so it would not be detected, then reinstalled it after service. This was within the terms of the warrant. For example, a GPS knocked off a car could be replaced under the warrant. Turner v. Commonwealth, 2015 Va. App. LEXIS 301 (Oct. 27, 2015).
The officer unmistakably smelled marijuana when he walked up to defendant’s car during a stop, and this was probable cause. Defendant also consented. United States v. Henry, 2015 U.S. Dist. LEXIS 145395 (M.D.La. Oct. 27, 2015).*
The officer texted somebody about a drug deal at a convenience store in the daytime, and defendant showed up, parked next to the officer’s car, and walked into the store. Nothing about this suggested criminality, and defendant’s arrest was without probable cause. Elvine v. State, 2015 Ga. App. LEXIS 607 (Oct. 23, 2015).*
The DEA directed the state officer to stop defendant for a traffic offense to find an excuse for a vehicle impoundment and inventory. Here, it was failure to signal, and the officer testified he wouldn’t have stopped somebody for that. Then, the DL was suspended, but the officer added that they never made a custodial arrest for that. Here they did because the DEA asked for it. Also, there was a drug dog immediately on the scene following, too. The stop and search are suppressed because the entire basis was to use inventory as a pretext for an investigative search. Commonwealth v. Ortiz, 2015 Mass. App. LEXIS 172 (Oct. 26, 2015): Continue reading →
Posted inInventory, Pretext|Comments Off on MA: Inventory proved to be pretext for investigative search; suppressed
“The collective knowledge doctrine, however, is not limited to cases where a superior officer commands another officer. Rather, the doctrine properly may be applied in cases where information is relayed between different law enforcement departments, even when the agency possessing probable cause does not presume the authority to formally ‘direct’ another, separate agency.” United States v. Ittenbach, 2015 U.S. Dist. LEXIS 145008 (E.D.N.C. Oct. 26, 2015), R&R 2015 U.S. Dist. LEXIS 145005 (E.D.N.C. Aug. 3, 2015).
Surveillance of a barber shop for defendant coming out to do drug deals bore fruit, and the car he got into was stopped with reasonable suspicion. The statements made during the stop are not suppressed. United States v. Palmer, 2015 U.S. Dist. LEXIS 144987 (S.D.N.Y. Oct. 23, 2015).*
Defendant voluntarily consented to a urine test for DUI after being advised of her right to counsel. Poeschel v. Comm’r of Pub. Safety, 2015 Minn. App. LEXIS 81 (Oct. 26, 2015).*
Warrants are usually directed at places and things not people, but here was a search warrant directed at defendant by his known alias and description. From the time it was issued until it was executed, defendant was under surveillance. It was not a general warrant. United States v. Perez, 2015 U.S. App. LEXIS 18614 (6th Cir. Oct. 23, 2015): Continue reading →
Posted inOverbreadth, Particularity|Comments Off on CA6: SW for person by alias and description was valid when he was under surveillance from issuance to execution
Police officers can make mistakes, which, for better or worse, the U.S. Supreme Court has often seen fit to forgive. Police, for instance, can make mistakes of fact when assessing whether circumstances justify the seizure of an individual or search of a residence; they can even be mistaken about the identity of those they arrest. This essay examines yet another, arguably more significant context where police mistakes are forgiven: when they seize a person based on their misunderstanding of what a law prohibits. Continue reading →
Posted inReasonableness|Comments Off on New Law Review Article: Wayne A. Logan, Cutting Cops Too Much Slack
A cell phone search warrant for indicia of ownership did not permit search of every folder in the phone; that would be a general warrant. People v. Herrera, 2015 CO 60, 2015 Colo. LEXIS 1011 (Oct. 26, 2015). Syllabus by the court: Continue reading →
Posted inCell phones, Overbreadth|Comments Off on CO: Cell phone SW for indicia of ownership did not permit search of every folder in the phone
Defendant readily submitted to the police and came outside to be arrested. While the arrest warrant was for a defaced firearm, a protective sweep on that basis alone was unreasonable. Commonwealth v. Colon, 2015 Mass. App. LEXIS 171 (Oct. 26, 2015): Continue reading →
Posted inArrest or entry on arrest, Protective sweep|Comments Off on MA: Def readily submitted to arrest and came out; entry for protective sweep not reasonably justified
The majority of Americans support body cameras for police officers but say there needs to be clear rules on how the cameras and the footage are used, according to a poll released Monday by a D.C.-based democratic polling firm and a civil rights advocacy group.
Posted inBody cameras|Comments Off on The Hill: Poll: Overwhelming majority want police to wear body cameras
A federal magistrate judge had tough questions Monday for Apple Inc. and federal prosecutors on whether he should compel the technology giant to disable the security features of a passcode-protected iPhone obtained through a search warrant. Continue reading →
Posted inCell phones|Comments Off on NYLJ: Judge Grapples With Request for Apple to Decrypt iPhone
The Internal Revenue Service is the latest in a growing list of US federal agencies known to have possessed the sophisticated cellphone dragnet equipment known as Stingray, according to documents obtained by the Guardian.
Posted inCell site simulators|Comments Off on The Guardian: IRS possessed Stingray cellphone surveillance gear, documents reveal
Defendant was stopped for a traffic offense and received no ticket. The officer pulled the Columbo gambit of starting back to his car and “asked him if he would answer ‘a couple of questions real quick.’” Defendant consented and four more troopers suddenly appeared. As soon as they were in the car, defendant revoked his consent. They didn’t stop. Whatever was found was after the ignored revocation of consent, and it can’t support the continued search. United States v. Patiutka, 2015 U.S. App. LEXIS 18464 (4th Cir. Oct. 23, 2015).
Plaintiff stated a claim for excessive force where zipties were used to handcuff him and they were intentionally tightened to cause pain. Shamir v. City of New York, 2015 U.S. App. LEXIS 18420 (2d Cir. Oct. 22, 2015).*
The affidavit for the search warrant for child pornography showed probable cause from getting it from defendant via a P2P connection. United States v. Kubaryk, 2015 U.S. Dist. LEXIS 143660 (N.D.Ga. Sept. 28, 2015),* adopted 2015 U.S. Dist. LEXIS 143813 (N.D. Ga., Oct. 22, 2015).*
Posted inConsent, Excessive force|Comments Off on CA4: Defendant revoked his consent to search his car, but officers did not stop searching; suppressed
Defendant was stopped for a traffic offense and had a seizure. The officer reached into his pocket to look for medication and discovered marijuana. The search was valid under the community caretaking function. Allgier v. State, 2015 WY 137, 2015 Wyo. LEXIS 154 (Oct. 23, 2015).
Police had reason to believe that two drug dealers who were brothers acquired a machine gun stolen in a burglary about four weeks earlier for heroin. The police had probable cause to search their house for drugs. The affidavit included [a seemingly obligatory] weapons clause because guns are often found with drugs. On the whole, the affidavit showed PC for the search. State v. Clayton, 2015-Ohio-4370, 2015 Ohio App. LEXIS 4253 (8th Dist. Oct. 22, 2015).
The officer was passing defendant who looked startled and pulled over and stopped immediately. The officer stopped to inquire. Reasonable suspicion developed and that justified prolonging the detention. State v. Knox, 2015 Ala. Crim. App. LEXIS 83 (Oct. 23, 2015).*
There were exigent circumstances for a warrantless UA of the defendant because he was suspected to be under the influence of a stimulant that would dissipate more rapidly than alcohol. State v. Raymond, 274 Ore. App. 409, 2015 Ore. App. LEXIS 1259 (Oct. 21, 2015).
Defendant fought with EMTs and tried to get off the gurney after a fatal car wreck that pinned him in his car. At the hospital, however, defendant did not refuse medical treatment. The trial court’s finding that defendant did not refuse medical treatment is supported by the record, and the reckless manslaughter conviction is affirmed. [The blood draw could then be justified via medical treatment.] State v. Nissley, 2015 Ariz. App. LEXIS 264 (Oct. 20, 2015).*
This successive 2255 can’t be filed to pursue a search and Brady claim. Neither fits the successive habeas rule as newly discovered or a new rule of law. In re Alferez, 2015 U.S. App. LEXIS 18423 (5th Cir. Oct. 20, 2015).*
The driver of the car defendant was a backseat passenger in conducted hand-to-hand transactions, and that give probable cause for a search of the car by the automobile exception. The search of the backseat passenger was valid as a frisk with reasonable suspicion. United States v. Adams, 2015 U.S. Dist. LEXIS 143490 (D.Minn. Oct. 22, 2015), rejecting 2015 U.S. Dist. LEXIS 144217 (D.Minn. Aug. 5, 2015). From the R&R: Continue reading →
Posted inAutomobile exception, Stop and frisk|Comments Off on D.Minn.: Backseat passenger of driver doing hand-to-hand transactions subject to frisk
"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.
