Virginia statute that permitted natural gas transmission companies to enter open fields for survey purposes did not facially violate the Fourth Amendment or Virginia Constitution. Charlottesville Div. v. Dominion Transmission, 2015 U.S. Dist. LEXIS 132554 (W.D.Va. September 30, 2015).
2255 petitioner challenged defense counsel’s failure to object to an alleged consent search, but it is rejected [somehow] as being conclusory [which I don’t get]. United States v. Davis, 2015 U.S. Dist. LEXIS 133972 (S.D.Tex. August 21, 2015).*
2255 petitioner claimed newly discovered evidence of an illegal entry onto his curtilage to look in his truck. It didn’t matter because the truck was independently stopped on the street, and the same view occurred there. He also pled under a plea agreement that waived the search issues. Honish v. United States, 2015 U.S. Dist. LEXIS 134682 (E.D.Tex. September 9, 2015).*
Posted inIneffective assistance, Open fields|Comments Off on W.D.Va.: VA statute that permitted natural gas companies to survey open fields doesn’t violate Fourth Amendment
The Fourth Amendment claim that police entered the bar area of the plaintiff’s business because of police calls fails because it was open to the public. The selective enforcement claim fails on the facts. There is no First Amendment right for “swingers” to have sex in plaintiff’s bar area. Beverly Hills Suites LLC v. Town of Windsor Locks, 2015 U.S. Dist. LEXIS 133137 (D.Conn. September 30, 2015).
Defendant consent claim on his cell phone search fails–it depended on claimed prior illegality which was already found legal. United States v. Bazzelle, 2015 U.S. Dist. LEXIS 131886 (N.D.Ill. September 30, 2015).*
The officer asked defendant during a traffic stop if he was armed, and he didn’t answer and was scanning the area like he was about to flee. Defendant also repeatedly asked to get back into the car. The officer had reasonable suspicion for a patdown. State v. Carson, 2015-Ohio-4110, 2015 Ohio App. LEXIS 3969 (2d Dist. October 2, 2015).*
Information that was 1-2 years old was included in the affidavit, and there was current information, too. The old information supported showing that defendant’s counterfeiting operation was “protracted and continuous and that it was ongoing just two days to two weeks prior to the warrant application” and, thus, not stale. United States v. Bagley, 2015 U.S. Dist. LEXIS 131590 (W.D.Pa. September 29, 2015).
The USMJ’s credibility determinations are correct on probable cause, and defendant’s arguments seeking to undermine the officers’ credibility are unavailing. United States v. Barnes, 2015 U.S.Dist. LEXIS 133397 (N.D.Ga. September 30, 2015),* adopting 2015 U.S. Dist. LEXIS 133879 (N.D.Ga. August 18, 2015).*
The driver of the vehicle was arrested on outstanding warrants and that justified an inventory. The officers actually nearly had, or at least were striving for, probable cause there were drugs in the car but couldn’t corroborate the informants. State v. Johnson, 2015-Ohio-4115, 2015 Ohio App. LEXIS 3968 (2d Dist. September 30, 2015).*
Posted inBurden of proof, Inventory, Staleness|Comments Off on W.D.Pa.: 1-2 yr old info coupled with current info showed ongoing drug operation at house
Warrantless copying of an international traveler’s notebook by CBP was with reasonable suspicion via the DEA. Essentially, the collective knowledge doctrine can permit a more extensive border search than would otherwise occur. Defendant was under investigation for stock fraud and was returning to the U.S. to face charges when the photocopying occurred. United States v. Levy, 2015 U.S. App. LEXIS 17154 (2d Cir. September 29, 2015): Continue reading →
Posted inBorder search|Comments Off on CA2: CBP could photocopy a notebook on entry into the U.S. based on info from DEA that was RS
CSLI was seized: one defendant five days worth, another seven days worth. State case law all developed after that happened, so remanded to reconsider the CSLI under those cases. Commonwealth v. Tewolde, 2015 Mass. App. LEXIS 156 (October 1, 2015).
Defendant’s traffic stop was with probable cause. Woods v. State, 2015 Miss. App. LEXIS 496 (September 29, 2015);* Cameron v. State, 2015 Miss. App. LEXIS 490 (September 29, 2015).*
After a Sixth Circuit habeas reversal that there was an apparent County of Riverside v. McLaughlin issue for defendant’s first appearance taking more than 48 hours, the court finds defendant’s confession valid. “While not totally clear, it appears that the Defendant made his first confession before being in custody for more than forty-eight hours. It also appears that part of the delay in the forty-eight hour time frame was caused by the Defendant’s desire to speak with his mother. Because of the ambiguity and because some of the delay is attributable to the Defendant, we conclude that the Defendant’s detention was not illegal. Accordingly, we affirm the judgment of the trial court.” State v. Norris, 2015 Tenn. Crim. App. LEXIS 798 (September 30, 2015).
Mere refusal of a BAC test was constitutionally protected and couldn’t be prosecuted. “Here, police did not attempt to obtain a warrant or to perform a forced blood draw based on another exception to the warrant requirement, such as exigent circumstances. Nevertheless, the jury was instructed, contrary to Wetzel and Camara, that it could convict defendant of a violation of section 148 based on nothing more than his exercise of the constitutional right to refuse to consent to a chemical test. This was constitutional error.” People v. Valencia, 2015 Cal. App. LEXIS 861 (App.Div. Riverside September 29, 2015).
Posted inDrug or alcohol testing|Comments Off on Cal. Riverside: Refusal of a BAC test was constitutionally protected and couldn’t separately be prosecuted
“To show he can challenge the search of SPI’s and CDS’s offices and the seizure of the employees’ computers and network server as a shareholder and executive, Nagle must show a personal connection to the place searched or to the item seized and that he attempted to keep the place and item private. Nagle has failed to meet this standard.” United States v. Nagle, 2015 U.S. App. LEXIS 17187 (3d Cir. September 30, 2015).
Pro se 2255 petitioner’s claim that his counsel should have immediately appealed denial of his motion to suppress wasn’t a claim because there was no right to appeal pretrial. He pled and waived it. United States v. Golson, 2015 U.S. Dist. LEXIS 130393 (M.D.Pa. September 28, 2015).*
The pipe in defendant’s belt loop was in plain view, and that, coupled with the late night stop on a busy highway and defendant’s excessive nervousness was probable cause on the totality for a search of his car. United States v. Barmore, 2015 U.S. Dist. LEXIS 131129 (W.D.La. August 14, 2015),* adopted 2015 U.S. Dist. LEXIS 131187 (W.D. La. September 27, 2015).*
Posted inPlain view, feel, smell, Probable cause, Standing|Comments Off on CA3: A corporate shareholder and executive doesn’t have standing in the corporation’s computer server; no personal connection
Defendant’s consent was not tainted by the officer’s assertion that his apartment would be searched anyway because there was probable cause for a warrant. Defendant drove himself to the police station for an interview, and he wasn’t in custody for Miranda purposes. Ulimately he was Mirandized. United States v. Hinkley, 2015 U.S. App. LEXIS 17215 (1st Cir. September 30, 2015).
A search and seizure claim cannot be raised under a motion to correct an illegal sentence. State v. Logan, 2015 Conn. App. LEXIS 348 (October 6, 2015).*
There was probable cause for arresting defendant for no trespassing or no loitering. United States v. Wilkerson, 2015 U.S. Dist. LEXIS 130186 (E.D. Wis. August 25, 2015).*
Posted inConsent, Probable cause|Comments Off on CA1: Consent not tainted by statement officers would search anyway where they had PC for SW
The state failed to prove an exception to justify a search of defendant’s bookbag. It was seized, but it was wasn’t on him when he was arrested. It couldn’t be a search incident or inventory. State v. Berrigan, 2015 La. App. LEXIS 1864 (La.App. 4 Cir. June 26, 2015): Continue reading →
Posted inSearch incident|Comments Off on LA4: State failed to show justification for search of bookbag not on def when he was arrested
The Drug Enforcement Administration is involved in a lawsuit for targeting medical records using judge-less warrants called “administrative subpoenas.” The quantity of DEA administrative subpoenas issued unilaterally, i.e., without authorization from judges, is unknown but somewhere in the thousands according to one DEA spokesman.
Utah v. Strieff — Question Presented: “Should evidence seized incident to a lawful arrest on an outstanding warrant be suppressed because the warrant was discovered during an investigatory stop later found to be unlawful?”
Under the attenuation doctrine, incorporating a proximate cause analysis, inevitable discovery must ultimately control where there is both lawful and unlawful police action. State v. Strieff, 2015 UT 2, 2015 Utah LEXIS 4 (January 16, 2015): Continue reading →
Posted inExclusionary rule, SCOTUS|Comments Off on Cert. grant: Utah v. Strieff: 4A violated by outstanding warrant found during illegal stop?
In a cold case rape and murder that came from retesting defendant’s DNA 20 years after the crime, a search incident that was valid in 1985 was now saved by Davis good faith. State v. Adams, 2015-Ohio-3954, 2015 Ohio LEXIS 2672 (October 1, 2015).*
Defense counsel did not file a motion to suppress an inventory search, but it wasn’t ineffective assistance because, whether the inventory was valid or not, the search of the car was pre-Gant and valid under Davis as a search incident. Atchley v. United States, 2015 U.S. Dist. LEXIS 130276 (S.D. Ohio September 28, 2015).*
A juvenile’s probation conditions required that he and his family turn over all passwords to cell phones and social media sites. The condition is overbroad considering what probation seeks to accomplish (seeing if he has stolen iPhones), and it implicates Riley. In re Malik J., 2015 Cal. App. LEXIS 849 (1st Dist. September 29, 2015): Continue reading →
Posted inCell phones, Probation / Parole search|Comments Off on Cal.1st: Probation condition to reveal all passwords to search phones and social media was overbroad
In a Medicaid fraud document search warrant, some documents found were outside of the scope of the warrant, but they satisfied the plain view doctrine that their potential incriminating nature was immediately apparent and they were found in the course of the search for the other records. United States v. Menendez, 2015 U.S. Dist. LEXIS 129993 (D.N.J. September 28, 2015).*
Defendant was a mere visitor to a hotel room who had no standing. He wasn’t on the guest register, wasn’t spending the night, and didn’t have any belongings in the room. State v. Graves, 2015-Ohio-3936, 2015 Ohio App. LEXIS 3812 (12th Dist. September 28, 2015).*
Warrantless taking a DNA sample from an arrestee under state law but 16 days after his arrest violated the Fourth Amendment. If it was at the time of booking, it would have been reasonable. Nominal damages awarded. Lewis v. Brazell, 2015 U.S. Dist. LEXIS 130295 (W.D.Ark. September 28, 2015).
A search of defendant’s person that lawfully occurred during a traffic stop produced pills, and that, in turn, was reason for a search of his car. United States v. Anderson, 2015 U.S. Dist. LEXIS 130033 (W.D.Ky. September 28, 2015),* R&R 2015 U.S. Dist. LEXIS 131284 (W.D.Ky. August 5, 2015).*
“In considering the ‘totality of the circumstances’, the Court finds that the primary purpose of the checkpoint is to deter illegal immigration. That [the dog] is trained to detect both concealed humans and illegal drugs does not preclude his presence at the checkpoint nor automatically transform the checkpoint into a general crime control device. The dog sniff is not a search. It involves minimal intrusion and there is no reasonable expectation of privacy in hidden contraband.” United States v. Romero-Cubillas, 2015 U.S. Dist. LEXIS 130358 (D.Ariz. August 10, 2015).*
The U.S. Court of Appeals for the Second Circuit sat en banc Wednesday afternoon for the first time in almost two years. The occasion? An otherwise-mundane tax fraud prosecution that propelled the Fourth Amendment into the digital era.
My backgrounder on Tuesday provides some of the details of the Ganias case, but the Court asked for briefing on two issues: First, did the government’s 2006 search—pursuant to a warrant—of data that was obtained during the execution of a 2003 warrant violate the Fourth Amendment, given that the data was not responsive to the first warrant? Second, if so, did the good faith exception nonetheless preclude application of the exclusionary rule? Roughly halfway through the Government’s argument, though, Chief Judge Robert Katzmann hinted at the underlying privacy issues that helped explain why the courtroom was full: He asked whether, if the government collected private data on him, or anyone else in the room, it would be obligated to inform that person. (The Government artfully sidestepped the question, saying that it would have no way of knowing whether it held any such information because it wouldn’t review nonresponsive data.)
But the tiny satellite-connected devices — embedded by the manufacturer or slipped by police into stacks of cash, pill bottles or other commonly stolen items — are raising questions from legal experts over what they see as the potential for abuse by law enforcement authorities.
Posted inGPS / Tracking Data|Comments Off on NYTimes (AP): Hidden GPS Devices to Track Suspects Raise Legal Concerns
For the first time in its modern history, the New York Police Department is establishing explicit guidelines — backed by a sweeping new tracking system — for using and documenting force.
Posted inExcessive force|Comments Off on NYTimes: New York Police Will Document Virtually All Instances of Force
"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.
