For years, police nationwide have used patrol car-mounted scanners to automatically photograph and log the whereabouts of peoples’ cars, uploading the images into databases they’ve used to identify suspects in crimes from theft to murder. Nowadays, they are also increasingly buying access to expansive databases run by private companies whose repo men and tow-truck drivers photograph license plates of vehicles every day.
Posted inSurveillance technology|Comments Off on AP (via WTOP): Private database lets police skirt license plate data limits
A couple of weeks ago, the government petitioned the Fourth Circuit Court of Appeals for an en banc rehearing of its decision finding that the acquisition of historical cell site location information (CSLI) requires a warrant. The government used many of the arguments the dissenting opinions did — mainly that CSLI should still be considered a “business record” under the Third Party Doctrine.
I think that SCOTUS knew when it decided Jones this was coming, and it presaged CSLI in Jones. Don’t forget that privacy protections in “persons” is a “core value” of the Fourth Amendment. Period. End of discussion. Tracking a person’s every moves is far more intrusive than tracking that person’s car.
Posted inCell site location information|Comments Off on TechDirt: Defendants Counter Government’s Arguments That Appeals Court Should Treat Cellphones As ‘Personal Homing Beacons’
On Friday, in a federal courtroom in Tucson, Ariz., an agent of the U.S. Border Patrol for the first time will be arraigned on charges of murder for shooting and killing a Mexican national across the international border.
Posted inExcessive force|Comments Off on NPR: In A First, Border Agent Indicted For Killing Mexican Teen Across Fence
An alleged material omission for Franks purposes was not material because adding it in would essentially be misleading. Telling the issuing magistrate that the CI was “working off a case” isn’t really required under Franks because that’s usually a given they take into consideration. The officer did not have to actually state the lighting conditions because the affidavit mentioned it was at night and he “believed” he saw a hand to hand drug deal, not actually saw one. State v. Turner, 2015 Mo. App. LEXIS 1033 (October 6, 2015).
Defendant abandoned a tote bag he left behind when he fled from a wrecked motor scooter when fleeing from the police. United States v. Ritchie, 2015 U.S. Dist. LEXIS 136963 (W.D. Mo. Sept. 14, 2015),* adopted 2015 U.S. Dist. LEXIS 136012 (W.D.Mo. Oct. 6, 2015).*
Officers went to a motel room in a minor sex trafficking investigation. The door was ajar 2″ and the knock caused it to inadvertently open farther such that there was a glimpse of the minor females inside. That created exigency for the entry. United States v. Shingles, 2015 U.S. Dist. LEXIS 136195 (M.D.Fla. October 6, 2015),* R&R 2015 U.S. Dist. LEXIS 138285 (M.D.Fla. June 18, 2015).*
Officers did a knock-and-talk and they could smell marijuana before the knock. When defendant opened the door, the smell was stronger. He refused to consent and refused entry. He turned and yelled something inside and came outside. When he pulled the door shut, it locked. Officers then kicked the door in. The yell indicated somebody else was home and that flushing of the drugs could be happening. United States v. Holloman, 2015 U.S. Dist. LEXIS 135838 (M.D. N.C. Oct. 6, 2015).
Defendant was not seized during his interview with the police about the child pornography on his computer. United States v. Killingbeck, 2015 U.S. App. LEXIS 17428 (2d Cir. Oct. 5, 2015).*
A motion to suppress was filed and lost in the trial court on lack of standing. In the 2255, defendant’s attempt to cast it in a different way doesn’t succeed either for lack of standing. Porter v. United States, 2015 U.S. Dist. LEXIS 136541 (E.D.Mich. Oct. 7, 2015).*
Robert Durst was believed to be on the run after the HBO series “The Jinx,” where he allegedly admitted a connection to a 10 year old homicide in Los Angeles. He was found by the FBI in the Marriott in New Orleans. At the same time, LAPD was in Houston looking for him, and they searched his house with a search warrant. Registering in a hotel under an alias is not a waiver of any expectation of privacy. “Although there is no Fifth Circuit authority on point, this Court is not about to disrupt the long standing Fourth Amendment protection afforded hotel rooms as temporary homes by declaring that the use of an alias negates any privacy interest in that room. To do so would call into question the privacy expected from numerous dignitaries, politicians and celebrities who rely on using an alias to register for hotel rooms in order to maintain their security and privacy.” The FBI took Durst to his room to “inventory” it, and they found a handgun. The LAPD told them to back off, they were coming from Houston. They procured a search warrant for the room. They would have searched the room in any event because it is logical to do so when somebody is on the lam to look for things aiding in flight. The affidavit for the NOLA search warrant was nearly identical to the Houston one, with some 10 year old information, and that one was already found to have probable cause despite some minor defects. United States v. Durst, 2015 U.S. Dist. LEXIS 136225 (E.D.La. Oct. 6, 2015).
Posted inReasonable expectation of privacy|Comments Off on E.D.La.: Robert Durst case: One does not lose REP in a hotel room by registering under an alias
CALIFORNIA CONTINUED ITS long-standing tradition for forward-thinking privacy laws today when Governor Jerry Brown signed a sweeping law protecting digital privacy rights.
The landmark Electronic Communications Privacy Act bars any state law enforcement agency or other investigative entity from compelling a business to turn over any metadata or digital communications—including emails, texts, documents stored in the cloud—without a warrant. It also requires a warrant to track the location of electronic devices like mobile phones, or to search them.
The legislation, which easily passed the Legislature last month, is the most comprehensive in the country, says the ACLU.
Dismissal of a Fourth Amendment civil rights claim under the federal heightened pleading standard was not an “adjudication on the merits” for collateral estoppel in state court. Fox v. Johnson, 2015 N.C. App. LEXIS 814 (October 6, 2015): Continue reading →
Posted in§ 1983 / Bivens|Comments Off on NC: Federal civil rights 12(b)(6) dismissal not “adjudication on the merits” for collateral estoppel in state court
As of Oct. 5, 754 people, or almost three people per day, were shot to death by police officers in the United States in 2015. This information was not compiled by a law enforcement agency, although it easily could have been. Instead, The Washington Post has been gathering the data and posting it daily on its website. You can find the tally by googling “Washington Post police shootings.”
Posted inExcessive force|Comments Off on Connecticut Law Tribune: Norm Pattis: Police Departments Should Be Held Liable for Shootings
The officer here responded to a suspicious activity report and found a stolen trailer in defendant’s yard with a piece of pipe on it. He inquired of dispatch and was told defendant was on probation for brandishing a weapon. He did not inquire whether there was a search term, and he assumed there was because he never encountered a suspect on probation for a weapons offense that did not have a search term. “Later, Deputy Yamaguchi learned that, at the time of the search, defendant was no longer on probation for the brandishing a weapon conviction. Defendant’s probation for that offense had ended on March 1, 2012, about one month prior to the search of his residence. Defendant, however, was on probation at the time of the search for a felony case, case No. INF028639, which contained search terms. Deputy Yamaguchi acknowledged that at the time he entered defendant’s home to conduct the probation search, he did not know any specific terms and conditions of defendant’s probation and that law enforcement officers do not directly contact the court to find an individual’s specific terms and conditions.” The exclusionary rule would not be applied because the officer was acting in good faith reliance on the probation report and his experience, despite the fact that specific probation expired because there still was a probation search term on defendant. People v. Wolfgang, 2015 Cal. App. LEXIS 877 (4th Dist. October 5, 2015): Continue reading →
Posted inGood faith exception, Reasonableness|Comments Off on Cal.4: Dispatch told officer that def was on probation for one crime, but it actually had expired; he was, however, on probation for something else; GFE applied
Since defendant’s DNA Fourth Amendment claim was decided on the merits of his appeal, it can’t be litigated in a 2255. Thomas v. United States, 2015 U.S. Dist. LEXIS 133478 (D.Me. September 30, 2015).
Defendant’s consent to a blood draw for DUI marijuana was valid. “According to Alvarez, no consequences were explained to her. [¶] But no case holds, or least Alvarez has not cited one, that where a defendant signs a written form affirmatively stating ‘I, [defendant], do hereby consent to the withdrawal of a blood sample from my body,’ that written consent is insufficient because the officer did not advise the defendant that she did not have to sign the form. Even when the lack of the advisement is considered in connection with Alvarez’s custody status, age, and lack of prior contacts with law enforcement, there is simply no caselaw to support Alvarez’s urging of a constitutional violation.” United States v. Alvarez, 2015 U.S. Dist. LEXIS 135743 (N.D.Cal. October 5, 2015).*
A trunk lid bouncing open was reasonable suspicion for a stop. Commonwealth v. Williams, 2015 PA Super 216, 2015 Pa. Super. LEXIS 581 (October 6, 2015).*
Officers came to defendant’s house to serve an arrest warrant, but nobody was home. Walking back to the street, the officers saw a black nylon bag laying just beyond railroad ties in the yard between the house and nearer the street. As a line of demarcation, the railroad ties would at least mark the curtilage, and the bag was outside that where anyone could pick it up and look. Thus, there was no reasonable expectation of privacy in the bag where it was found. United States v. Wellsandt, 2015 U.S. Dist. LEXIS 132122 (D.S.D. September 29, 2015).
“[W]here a district court denies a motion to suppress without making explicit findings, ‘[o]ur review is framed by the factual findings and legal conclusions implicit in the district court’s decision ….’” Defendant’s cell phone was seized from his car with a search warrant, and he was found to have consented in writing to a search of the phone, including providing the password to the phone. A search warrant for firearms included a gunlock found in the car. The officers were not required to specify the caliber of the firearms they were looking for. There was no showing that the officers were not acting in good faith. State v. Tyler, 291 Neb. 920, 2015 Neb. LEXIS 169 (October 2, 2015).
Defendant’s consent to search his house for weapons after a shots fired call was not coerced merely because he was handcuffed when he consented. People v. Harris, 2015 NY Slip Op 07113, 2015 N.Y. App. Div. LEXIS 7048 (4th Dept. October 2, 2015).
Individually, no one thing defendant did amounted to reasonable suspicion, but collectively they did, particularly defendant’s trying to secrete a pill bottle. State v. Manning, 2015 VT 124, 2015 Vt. LEXIS 107 (October 2, 2015).*
Posted inConsent, Reasonable suspicion|Comments Off on NY4: Consent to search house not coerced merely because def handcuffed
WASHINGTON — The last Supreme Court term ended with liberal victories, conservative disarray and bruised relations among the justices. The new one, which opens on Monday, marks the start of Chief Justice John G. Roberts Jr.’s second decade on the court and will reveal whether the last term’s leftward drift and acrimony were anomalies or something more lasting.
At least most Fourth Amendment cases aren’t.
Posted inSCOTUS|Comments Off on NYTimes: Supreme Court Prepares to Take On Politically Charged Cases
Defendant on post-conviction did not prove that the motion to suppress an inventory would have been granted (and Tennessee law is favorable to the defense). All he called as witnesses were the lawyers involved and himself, but that does not establish that he would have prevailed in the trial court on the merits. It’s his responsibility to make a record on the post-conviction motion by showing that it would be granted, and he did not. Fisher v. State, 2015 Tenn. Crim. App. LEXIS 801 (October 2, 2015).
On review of the R&R, the USMJ’s credibility determination is adopted. Defendant answered a buzzer at this apartment without asking who was there and let in the officers thinking they were just a friend. At the door, they asked him if he was a citizen, and he was not. They asked for his papers for a legal entry, and he had none. He was here despite previously being deported for an aggravated felony. United States v. Ortega-Montalvo, 2015 U.S. Dist. LEXIS 134569 (W.D.Mo. October 2, 2015),* R&R 2015 U.S. Dist. LEXIS 135403 (W.D. Mo. July 29, 2015).*
Posted inBurden of proof, Consent, Ineffective assistance|Comments Off on TN: Post-conviction petitioner bears burden of showing warrantless search was invalid; here, no witnesses to search called
Trial counsel was not ineffective for not pursuing an exigency-based search issue where police entered after hearing cries for help when the grandfather of missing children entered and found blood on the floor. A suppression motion would have lost. State v. Hebert, 2015 La. LEXIS 1972 (October 2, 2015).
Defendant was involved in a car theft and the owner gave chase and a gun was waved. The police came to defendant about it, and he consented to a search of his home for the weapon. He was not in custody at the time of consent. United States v. Brown, 2015 U.S. App. LEXIS 17204 (3d Cir. September 30, 2015).*
The record shows that defendant’s girlfriend had apparent authority to consent, even if not actual authority, yet doesn’t tell us what it is. United States v. Gomez-Jimenez, 2015 U.S. App. LEXIS 17137 (4th Cir. September 29, 2015).*
Suppression of evidence in state court does not per se raise a basis for a claim in federal court on whether the officers violated clearly established rights, particularly when the suppression hearing transcript wasn’t provided to the federal court. Cleveland v. Liberty County Sheriff’s Dep’t, 2015 U.S. App. LEXIS 17374 (5th Cir. September 30, 2015): Continue reading →
Posted in§ 1983 / Bivens, Qualified immunity|Comments Off on CA5: Suppression of evidence in state court does not per se raise a basis for a claim in federal court on whether the officers violated clearly established rights
To justify the automobile exception in Oregon, the vehicle must be mobile when first encountered in connection with a crime. If parked, a warrant must be sought. State v. Belander, 274 Ore. App. 167, 2015 Ore. App. LEXIS 1175 (September 30, 2015).*
The officer had all the occupants get out of the car during the stop. The smell of marijuana was strongest around defendant’s person, so that was reasonable suspicion that defendant was carrying. Therefore, consent could be sought, and consent isn’t disputed. State v. Vennell, 274 Ore. App. 94, 2015 Ore. App. LEXIS 1176 (September 30, 2015).* [Will this change now that recreational use in Oregon is permitted, or will the “strong” smell still be justification?]
Officers responding to a 3 am bar fight ended up talking with defendant and with him in handcuffs. He turned his body repeatedly as officers tried to pat him down. After three paragraphs of explaining, the court shows why a patdown for officer safety was permitted. State v. Castillo-Lima, 274 Ore. App. 67, 2015 Ore. App. LEXIS 1180 (September 30, 2015)* [This case is a good example of the extremes Oregon courts go through to justify warrant exceptions. Not just one fact and done, but a detailed analysis of consequences of what happened and why it was reasonable.]
"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.
