When a cotenant with authority consents, the officers do not have to seek out the “target” for his consent, too. United States v. Morales, 2015 U.S. Dist. LEXIS 125085 (S.D.Fla. September 18, 2015), R&R 2015 U.S. Dist. LEXIS 125086 (S.D.Fla. June 24, 2015)
Defendant was arrested with a warrant, so the search incident was valid. The searches of his cell phones were with valid search warrants. United States v. Moquete, 2015 U.S. Dist. LEXIS 123293 (D.Md. September 15, 2015).*
The affidavit recited 14 “sources of information,” only 4 of whom the officer talked to. None of the individual pieces provided probable cause and some were even stale, but the totality of information was probable cause and not stale. United States v. Malek, 2015 U.S. Dist. LEXIS 121948 (D.S.D. August 21, 2015) [helpful analysis here for the practitioner].
Officers on bike patrol encountered the strong smell of burning marijuana, and they quickly were able to pinpoint the location as defendant’s apartment. They went to the door for a knock-and-talk and defendant’s mother answered the door. They explained why they were there, and she denied anybody smoking marijuana. Two more times they knocked and she opened the door, briefly talked and denied the second time and then shut the door. The third time the officers heard noise inside and finally the door opened and she admitted her son was smoking a blunt, so they came in. This was with exigent circumstances because it was obvious she knew what was going on, and it was not police created merely because they came to the door. Evans v. Commonwealth, 2015 Va. LEXIS 115 (September 17, 2015): Continue reading →
Posted inEmergency / exigency|Comments Off on VA: Smell of MJ from apartment led to knock-and-talk and exigency
Cell site location information that was sent to the police periodically that was tracking the defendant was not “real time” information when it was 5-7 minutes old when received. Thus, a warrant on probable cause was not required. State v. Perry, 2015 N.C. App. LEXIS 769 (September 15, 2015): Continue reading →
Posted inCell site location information|Comments Off on NC: CSLI that was 5-7 minutes old when received was not “real time” information, so PC and a warrant not required
Officers acting on a drug tip conducted surveillance of a home. They finally came for a knock-and-talk and were admitted by somebody with apparent authority. Once inside, officers were told the people they saw in the living room were all the ones there, but they saw a man peek around a corner. That caused a valid protective sweep of the rest of the house, and they found a little cocaine in the kitchen. Bradley v. State, 2015 Ind. App. LEXIS 631 (September 16, 2015).*
There was probable cause for defendant’s arrest for robbery, and an arrest warrant wasn’t required. Here, police put out that he was wanted for the robbery, and that justified his detention under collective knowledge. His arrest wasn’t unlawful so his statements aren’t suppressed. State v. Pate, 2015 Mo. App. LEXIS 937 (September 15, 2015).
Posted inArrest or entry on arrest, Protective sweep|Comments Off on IN: A protective sweep was justified when officers were told they were alone in a house and another man was glimpsed
In a child pornography investigation, DHS used investigative software named Torrential Downpour which is used to track file sharing on P2P computers looking for child porn for transfer and monitoring data flow. There is no reasonable expectation of privacy in P2P file sharing. “The material fact law enforcement was obligated to disclose was its use of investigative technology to track, identify, and download the files from Defendant’s computer. This fact was fully disclosed. More exacting details and disclosures simply were not required to establish probable cause.” United States v. Maurek, 2015 U.S. Dist. LEXIS 123449 (W.D.Okla. September 16, 2015).
There is no reasonable expectation of privacy in P2P file sharing. United States v. Carter, 2015 U.S. Dist. LEXIS 123690 (N.D.Ohio September 16, 2015).*
Responding to a 911 hangup call, the officer came upon a group of people at that address that split into two. He looked in a vehicle and saw a firearm, and he could ask about it and, under the circumstances, seize it to neutralize for exigency. “The Court finds Deputy Lowder’s testimony credible. When he retrieved the firearm, he and Deputy Reid were still in the process of securing the scene—at night—from which a 911 disturbance call had been made. It was reasonable for Deputy Lowder to believe that leaving a potentially loaded gun in the Tahoe posed a threat to his, Deputy Reid’s, and the numerous bystanders’ safety. Although Graham had been secured, a crowd of people remained within walking distance of the Tahoe, and any one of the bystanders could have known the location of the gun. Moreover, the officers had been dispatched in response to a 911 disturbance report, the precise cause of which remained unknown. Swift recovery of the gun was necessary to preserve the peaceful status quo of the scene, and the Court notes the scope of Deputy Lowder’s search did not exceed that required by the exigency of the situation.” United States v. Graham, 2015 U.S. Dist. LEXIS 122426 (D.S.C. September 15, 2015).
Posted inEmergency / exigency|Comments Off on D.S.C.: Gun in plain view in a car at a disturbance call could be seized to neutralize it
“[T]he officers’ belief that the fugitive was hiding in a home in Trinidad’s neighborhood consists of — to our knowledge — an imprecise, uncorroborated tip from a confidential informant whose reliability this court ignores. In fact, officer Negron readily admitted that he did not see the fugitive actually enter Trinidad’s home, but only crossing the street towards it. In this context, we find that the officers could not have formed a reasonable belief that Ramon Ortiz was inside Trinidad’s home some six to eight hours after Negron claims he saw the fugitive in that vicinity.” Thus, what was seen and seized inside is suppressed. United States v. Trinidad-Rivera, 2015 U.S. Dist. LEXIS 123234 (D.P.R. September 14, 2015).
The trial court erred in granting defendant’s motion to suppress. He was a passenger in a car stopped by a PIT maneuver and ended up struggling with officers attempting to catch him. The officer’s efforts were constitutionally valid. State v. Quarterman, 2015 Ga. App. LEXIS 537 (September 15, 2015).*
Posted inArrest or entry on arrest, Emergency / exigency|Comments Off on D.P.R.: 6-8 hour old information a fugitive was in a house was too old to be relied upon for entry into home; no exigency
As the debate over electronic communications privacy escalates in Congress and around the country, I testified this week before the Senate Judiciary Committee to discuss this very issue. The hearing provided a crucial opportunity to address users’ very reasonable expectations of privacy when it comes to the content in their email accounts and on their cell phones.
Posted inECPA|Comments Off on The Hill: Time for reform is now
The government had permission from a cell phone user to record conversations but needed assistance from the cell phone provider which declined to do it without a court order. First, Title III doesn’t apply because the user’s consent removes the situation from its coverage. The court finds authority in Rule 41 in general because the DEA agent’s affidavit in support shows probable cause for court ordered assistance of the provider. In the Matter of the Application of the United States of America for an Order Directing a Provider of Communication Services to Provide Technical Assistance to Agents of the U.S. Drug Enforcement Administration, 2015 U.S. Dist. LEXIS 123029 (D.P.R. August 27, 2015): Continue reading →
Posted inCell phones, F.R.Crim.P. 41|Comments Off on D.P.R.: Rule 41 provides authority on PC for cell provider to assist in recording calls phone owner has already consented to
The warrantless seizure of defendant’s computer for child pornography was reasonable. Officers using Ares P2P software found CP exchange at an IP address that came back to a Mrs. Oates who was a 60 year old grandmother with no criminal history. Officers deduced she was not likely the user. They did a knock-and-talk and saw the computer right inside the door when defendant answered running the Ares software. They had him come outside to discuss it and he agreed to come down to the police station. The computer was seized from the house. First, the computer was in plain view to them. “Even if we were unconvinced that law enforcement lawfully seized the computer under the plain view doctrine, exigent circumstances existed to seize it.” United States v. Oates, 2015 U.S. App. LEXIS 16444 (11th Cir. September 16, 2015).
Posted inEmergency / exigency, Knock and talk|Comments Off on CA11: Knock-and-talk for CP led to plain view of computer running the P2P software and exigent circumstances
“[W]e conclude that Webb’s girlfriend, Heather Upchurch, had actual and apparent authority to consent to the search of the house. She and their infant daughter lived in the house with Webb for six months. Upchurch had as much interest in the house as did Webb. Upchurch kept all of her belongings there. The fact that she believed Webb abused their daughter, as later proven at a criminal trial, and she could no longer stay at the house with Webb, did not result in the surrender of her authority over the house days after an abusive incident.” Webb v. Brawn, 2015 U.S. App. LEXIS 16315 (4th Cir. September 14, 2015).
Posted inApparent authority|Comments Off on CA4: Abuse against live-in girlfriend’s child and her planning to move doesn’t negate her apparent authority
Reaching into a house to effect a Terry stop without exigent circumstances violates the Fourth Amendment. “Dorothy may have said it best when she said, ‘There is no place like home.’ Though we are pretty sure that she was not talking about the Fourth Amendment, she may as well have been. Under the Fourth Amendment, the home is a sacrosanct place that enjoys special protection from government intrusion. The government may not enter a person’s home to effect an arrest without a warrant or probable cause plus either consent or exigent circumstances. For this reason, we hold today that, in the absence of exigent circumstances, the government may not conduct the equivalent of a Terry stop inside a person’s home. But because the law on this point was not clearly established in this Circuit before our decision today, we affirm the district court’s entry of summary judgment on qualified-immunity grounds to Defendant-Appellee Deputy Kevin Pederson, who reached into Plaintiff-Appellant Elvan Moore’s home to arrest and handcuff him when, in the course of what Pederson described as a Terry stop, Moore declined to identify himself in response to Pederson’s questioning.” Moore v. Pederson, 2015 U.S. App. LEXIS 17894 (11th Cir. Oct. 15, 2015) (substituted opinion).
A wiretap caught defendant’s conversations and provided probable cause for the search of his car, and that included closed compartments and containers. United States v. Boyd, 2015 U.S. App. LEXIS 16403 (3d Cir. September 15, 2015).
Driving with high beams on was an objectively reasonable basis for stop. State v. Lorenzo, 2015-Ohio-3737, 2015 Ohio App. LEXIS 3631 (5th Dist. September 14, 2015).*
Speeding caught on a calibrated radar device was an objectively reasonable basis for stop. State v. Willis, 2015-Ohio-3739, 2015 Ohio App. LEXIS 3634 (5th Dist. September 14, 2015).*
Posted inAutomobile exception|Comments Off on CA3: Wiretap provided PC for automobile exception search
Officers received a vague anonymous tip relayed through an apartment manager about a tenant having ten pounds of marijuana. They were able to somehow link it to defendant, and they did a knock-and-talk. Defendant admitted to being a medical marijuana user, had an MMJ card, and admitted to a personal amount. The officers went to get a search warrant, and the information they had clearly was not enough for a search warrant. Then, the search warrant was way overbroad in what it was looking for, including photographs and digital media when all they had was a vague and completely uncorroborated tip about possession of ten pounds. The motion to suppress was properly granted, and the good faith exception to the exclusionary rule cannot apply to a search warrant as lame as this one. [This case was so obvious that this opinion is unpublished.] United States v. Embry, 2015 U.S. App. LEXIS 16415 (9th Cir. September 15, 2015): Continue reading →
Posted inGood faith exception, Informant hearsay|Comments Off on CA9: Vague uncorroborated anonymous tip could not support warrant, which was also overbroad, and the good faith exception cannot apply
In response to a lawsuit brought by the ACLU, the Sacramento Sheriff has now admitted that it used intrusive cellphone surveillance technology – commonly known as a “StingRay” – without obtaining court approval. Days after this stunning admission, the Sheriff publicly announced a new policy for the use of StingRay technology. While having an actual policy in place is certainly a step in the right direction, the new policy raises serious concerns.
Posted inCell site simulators|Comments Off on ACLU of No. Cal.: Sacramento Sheriff’s New StingRay Surveillance Policy is Flawed
Google and other tech advocates accused federal agencies Wednesday of creating “distractions” during the years-long debate on updating an email privacy law from the 1980s.
“We certainly appreciate the concerns that have been raised in the rather long debate about this provision, but I’m afraid these are really just distractions,” said Richard Salgado, Google’s director of law enforcement and information security.
Posted inE-mail, ECPA|Comments Off on The Hill: Google: Government creating ‘distractions’ in email privacy debate
Where the drug dog arrived at the scene before the traffic ticket was written, the dog sniff did not extend the stop and was valid. State v. Mote, 2015-Ohio-3715, 2015 Ohio App. LEXIS 3616 (3d Dist. September 14, 2015).
A drug testing lab was nearby a state probation and parole office. Two men parked in their parking lot and walked to probation. The lab called probation. The two men regularly appeared at probation but neither had DLs. They both failed drug tests the previous week. This was sufficient for reasonable suspicion to conduct a search of the car. State v. Caulk, 2015 Del. Super. LEXIS 485 (September 14, 2015).*
One officer’s report said defendant consented and one didn’t mention it. This did not mean that defendant did not consent. State v. Glover, 2015 Ohio App. LEXIS 3610 (12th Dist. September 14, 2015).*
Posted inConsent, Dog sniff, Probation / Parole search|Comments Off on OH3: Where the drug dog arrived at the scene before the traffic ticket was written, the dog sniff did not extend the stop
It was reasonable for the officer to ask about defendant having a firearm in the car when responding to a 911 call without Mirandizing him under its “public safety exception.” When defendant admitted there was a gun, the officer had exigent circumstances to find it and neutralize it. United States v. Graham, 2015 U.S. Dist. LEXIS 122426 (D.S.C. September 15, 2015).
2255 petitioner’s conclusory allegations that defense counsel did not pursue a motion to suppress is denied. No facts or issues are identified. Irvin v. United States, 2015 U.S. Dist. LEXIS 122506 (N.D.Tex. September 15, 2015).*
The CI’s information about defendant’s current activities was corroborated by his five heroin deals with defendant. United States v. Altemus, 2015 U.S. Dist. LEXIS 122824 (E.D.Mo. March 9, 2015).*
A road rage incident was called into 911 twice by a woman involved who said the other driver was a man blocking her path, beating on her car window and shouting obscenities, and displaying a gun. When police arrived, they found the cars and a man fitting the description of the man with the gun. He had a bulge in his clothing which resulted in a patdown, but it was only a cell phone holder [make note of that for the future!]. The car door was left open, and the officer searched the car finding the gun. It turned out that the man was a felon in possession. “The suppression motion was properly denied. The officer had probable cause to search Charles’s car for a gun based on the 911 caller’s report and his own observations at the scene. As such, the search was permissible under the auto-mobile exception to the Fourth Amendment’s warrant requirement.” United States v. Charles, 2015 U.S. App. LEXIS 16352 (7th Cir. September 14, 2015).
The stories from separate CIs combined here are to be added up to probable cause under the totality standard. United States v. Malek, 2015 U.S. Dist. LEXIS 121948 (D.S.D. August 21, 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.
