“By leaving his crashed vehicle in a position that was blocking the roadway and fleeing in another vehicle [to another state], the defendant manifested through his own actions an intent to abandon the truck and its contents. As a result, the defendant maintained no reasonable expectation of privacy in the vehicle or the materials contained therein.” State v. Logan, 2015 Tenn. Crim. App. LEXIS 601 (July 27, 2015).
“Taking the evidence in the record in the light most favorable to Ramirez, we conclude that a reasonable jury could find that Burgess used excessive force as Ramirez contends.” Ramirez v. Judd, 2015 U.S. App. LEXIS 13025 (11th Cir. July 28, 2015) (three sentence affirmance; four if you include “AFFIRMED.”).*
There was reasonable suspicion for a parole search of defendant’s car, so defense counsel couldn’t be ineffective for not challenging it. State v. Gavin, 2015-Ohio-2996, 2015 Ohio App. LEXIS 2903 (4th Dist. July 13, 2015).*
But the wide implementation of body cameras is complex, fraught with privacy concerns and questions over whether or not the content is a matter of public record, not to mention laws that vary in their details from state to state.
Posted inBody cameras|Comments Off on Wired: Should Body-Cam Footage Always Go Public? It’s Complicated
Fifty-four police officers wear body cameras while on patrol in New York City. Their ranks will swell to roughly a thousand as part of a pilot program overseen by a court-appointed federal monitor. But before that expansion, some policy changes are in order, the inspector general for the New York Police Department said in a report released on Thursday.
Posted inBody cameras|Comments Off on WSJ: NYPD Urged to Use Body Cameras More Often
Cell site location information today is so specific that collection and analysis requires a search warrant. It is as specific as GPS, and it can now pinpoint locations in a house. GPS was on a car; cell phones are on the person, so it tracks the person with a tower ping every six minutes, even if not calling. Moreover, Justice Sotomayor’s Jones concurrence about prolonged tracking was cited by the majority in Riley. A fascinating look at how CSLI works, too. In Re: Application for Telephone Information Needed for a Criminal Investigation Case, 2015 U.S. Dist. LEXIS 99871 (N.D.Cal. July 29, 2015): Continue reading →
Posted inCell site location information|Comments Off on N.D.Cal.: Gov’t cell site location information collection and analysis requires SW
In United States v. Bah, [posted here] decided July 24th, the U.S. Court of Appeals for the Sixth Circuit handed down the first circuit ruling on whether skimming a credit card — swiping the card through a magnetic reader to find out the number and name stored inside — is a Fourth Amendment search. The court ruled that the answer is “no.” I think that’s wrong, and that the answer should be “yes.”
New Jersey plans to put body cameras on all state troopers who work in the field and is issuing guidelines on how local police forces statewide should use the devices.
Posted inBody cameras|Comments Off on AP: All New Jersey Troopers to Get Body Cameras Within a Year
Little about policing is ideal. But that’s why we have police officers, to handle non-ideal situations. These often involve people who are lost, mentally ill, criminals or victims. And, like Sandra Bland, nobody should die because police officers are more interested in absolute dominance than professional, moral and tactical discretion. Peaceful resolution isn’t just the right thing to do — it’s the very purpose of policing.
Posted inUncategorized|Comments Off on WaPo: Opinion: The complexities of traffic stops, from a police officer’s perspective
With every news story of a database breached comes a steady drum beat of demands for more cybersecurity. This demand has taken shape in the Senate as the Cybersecurity Information Sharing Act (CISA) and seems poised for a vote by the full Senate.
Posted inSurveillance technology|Comments Off on NACDL: A Surveillance Bill by Any Other Name: The Cybersecurity Information Sharing Act
Target of a SW has no right to see the warrant before execution [probably to prevent interference with it]. Even so, that’s not a ground to suppress. The inventory has to be prepared with a witness. It can be the defendant or another officer. United States v. Crippen, 2015 U.S. Dist. LEXIS 97476 (W.D. Mo. June 22, 2015), adopted 2015 U.S. Dist. LEXIS 97219 (W.D. Mo. July 27, 2015).
Multiple controlled buys from the defendant, and the pattern was the same: He’d leave the house and meet the CI. That shows nexus to the house for drugs. United States v. Joseph, 2015 U.S. Dist. LEXIS 97257 (W.D.Ky. July 22, 2015).
“Assuming without deciding that the search warrant lacked probable cause, the Court concludes that the evidence is nonetheless admissible under the good-faith exception to the exclusionary rule as articulated in United States v. Leon, ….” United States v. Reyes-Cordova, 2015 U.S. Dist. LEXIS 97477 (D.Minn. July 7, 2015),* adopted 2015 U.S. Dist. LEXIS 96739 (D. Minn., July 24, 2015).*
Posted inNexus, Warrant execution|Comments Off on W.D.Mo.: Target of a SW has no right to see the warrant before execution
A jail altercation in Ferguson, MO led to the arrestee getting injured and he sued. The district court dismissed on the narrow ground the injuries were “de minimus.” The Eighth Circuit says, no, that’s a jury question here. Davis v. White, 14-1722 (8th Cir. July 28, 2015): Continue reading →
Posted in§ 1983 / Bivens, Excessive force|Comments Off on CA8: Quantity of alleged excessive force against an arrestee based on extent of injury a jury question
Last week, federal prosecutors announced that former Georgia deputy Nikki Autry would be indicted on charges of making false statements to a judge in order to obtain a warrant to raid a home in Habersham County. During that raid, one deputy blindly deployed a flash grenade that landed in a playpen, critically injuring a toddler.
. . .
In a sane world, Georgia officials would have learned from this case that violent, confrontational, forced-entry police raids are a terrible way to serve search warrants on people suspected of low-level drug crimes.
Posted inWarrant execution|Comments Off on WaPo: Radley Balko’s ‘The Watch’ Blog: Lessons from the drug raid that burned a Georgia toddler
Analysts at the National Security Agency will no longer be permitted to search a database holding five years of Americans’ domestic calling records after Nov. 29, the Obama administration said on Monday.
Posted inNational security|Comments Off on NY Times: N.S.A. Will Not Be Allowed to Keep Old Phone Records
Search incident of defendant’s cell phone two and three years before Riley was decided was in Davis good faith based on Robinson [even though no state or Fourth Circuit case had said so]. Demby v. State, 2015 Md. LEXIS 490 (July 27, 2015); Spence v. State, 2015 Md. LEXIS 491 (July 27, 2015). [How can anybody say with a straight face that Robinson’s crumpled cigarette pack equates with a smartphone for search incident purposes? This court just did.]
Nexus was established between defendant, drug activity, and a hotel room where he was desperate to get something out of the room safe. United States v. Sutherland, 2015 U.S. Dist. LEXIS 97223 (D.Me. February 12, 2015),* adopted 2015 U.S. Dist. LEXIS 97223 (D.Me. July 22, 2015).*
Minnesota’s test-refusal statute does not violate the unconstitutional-conditions doctrine by imposing a criminal penalty on a person who has been arrested for DWI and has refused to submit to a breath test. State v. Bennett, 2015 Minn. App. LEXIS 55 (July 27, 2015).*
Defendant’s PO received a daily brief from the police that mentioned that defendant was in a car stopped and identified as a gang member. One of his conditions of parole was to avoid gang activity. That was justification for a parole search. United States v. Gay, 2015 U.S. Dist. LEXIS 97470 (W.D.Pa. July 27, 2015).*
Weighing the testimony, the court concludes that $337 was seized from the defendant, not $1,100 as he alleged, and he is entitled to return under Rule 41(g). United States v. Rodgers, 2015 U.S. Dist. LEXIS 97518 (E.D.N.C. July 27, 2015).*
“The affiant stated that he conducted multiple controlled buys from Joseph over the course of several months, and that the informant purchased a quantity of heroin from Joseph within two to three days prior to the applicant’s presentation of the application for search warrant.” This is a pattern of activity that shows the information wasn’t stale. United States v. Joseph, 2015 U.S. Dist. LEXIS 97257 (W.D.Ky. July 27, 2015).*
Last year, in Riley v. California, the Supreme Court required police to procure a warrant before searching a cell phone. Unfortunately, the Court’s assumption that requiring search warrants would be “simple” and very protective of privacy was overly optimistic. This article reviews lower court decisions in the year since Riley and finds that the search warrant requirement is far less protective than expected. Rather than restricting search warrants to the narrow evidence being sought, some magistrates have issued expansive warrants authorizing a search of the entire contents of the phone with no restrictions whatsoever. Other courts have authorized searches of applications and data for which no probable cause existed. And even when district and appellate courts have found these overbroad search warrants to be defective, they have almost always turned to the good faith exception to save the searches and allow admission of the evidence.
This article calls on courts to take the Fourth Amendment’s particularity requirement seriously before issuing search warrants for cell phones. Just as magistrates cannot authorize police to search for a fifty-inch television in a microwave, nor should officers be permitted to rummage through all of the files on a cell phone when a narrower search will suffice. In order to effectuate the privacy guarantee in Riley, this Article proposes two approaches to narrow cell phone search warrants. First, I argue that judges should impose search protocols that specify in advance exactly how police should execute warrants and sift through electronic data. Second, this Article challenges the common assumption that all cell phone searches require full forensic analysis. In many cases involving street crimes, magistrates should initially restrict warrants to a manual search of the particular functions or applications for which there is probable cause. These two ex ante restrictions on cell phone searches will protect privacy and prevent over-use of the good faith exception, while still permitting police to examine all data they have probable cause to investigate.
Posted inCell phones, Particularity|Comments Off on New law review article: The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches
Defendant was found with over 70 credit and gift cards. The court finds no reasonable expectation of privacy in the magnetic strips on the back. They are intended to be read when used, and they are not a constitutionally protected area. United States v. Bah, 2015 U.S. App. LEXIS 12817 (6th Cir. July 24, 2015): Continue reading →
Posted inReasonable expectation of privacy|Comments Off on CA6: No REP in magnetic strips on back of credit and gift cards lawfully seized
A domestic violence call from an hysterical woman at a hotel room justified a warrantless entry into the room when the police could finally locate her room. Commonwealth v. Caple, 2015 PA Super 159, 2015 Pa. Super. LEXIS 425 (July 24, 2015).
Where plaintiff made several erratic phone calls to 911 and officers entered his house, Tased him, and arrested him, the officers were entitled to qualified immunity as to his Fourth Amendment warrantless entry claim because it was not clearly established that no exigent circumstance existed when the officers entered a residence in response to multiple erratic 911 calls from there and when they believed that someone inside may have threatened the use of a gun. His excessive force claim survived because whether he resisted or not and whether he was given an opportunity to comply with commands before, and while, being Tased were material facts in dispute. Gradisher v. City of Akron, 2015 U.S. App. LEXIS 12814 (6th Cir. July 24, 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.
