A Franks challenge in Delaware requires an affidavit from the defendant, and there isn’t one. The Franks claim is, at best, only a conclusory statement that the officer had an ends-justifies-the-means mentality, but, as a whole, probable cause is shown. The particularity clause wasn’t overinclusive just because it listed “other items that may be stolen” when they came into the search with a specific list and kept to it. State v. Boyer, 2015 Del. Super. LEXIS 368 (June 23, 2015).
It was a reasonable inference the students stopped for drinking on campus and in public were under 21. “While neither Dunteman nor Officer Anderson knew the ages of the group members prior to obtaining their IDs, it was rational to infer that they were under 21 years old because the group members were on a college campus near a dormitory housing mainly freshman and sophomore students.” The stops were thus valid. State v. Meyer, 2015 SD 64, 2015 S.D. LEXIS 114 (July 22, 2015).*
Posted inOverbreadth, Reasonable suspicion|Comments Off on DE: Search warrant for some things and “other items that may be stolen” wasn’t overbroad where officers used a list
The officer here had probable cause the vehicle contained contraband and he could have searched under the automobile exception. Instead he got a warrant. “See Chambers v. Maroney, 399 U.S. 42, 52, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970) (‘For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.’).” State v. Diaz-Ortiz, 2015 Fla. App. LEXIS 11194 (Fla. 5th DCA July 24, 2015).
A traffic violation of any kind supports a stop. United States v. Cruz, 2015 U.S. Dist. LEXIS 96792 (E.D.Mo. June 25, 2015);* United States v. Jones, 2015 U.S. Dist. LEXIS 96684 (E.D.N.C. July 22, 2015).*
Officers heard a threat to kill defendant and they went looking for him to warn him. But, the court finds no sense of urgency, and they stopped defendant’s car, claiming the emergency exception. There was an emergency if they acted accordingly, but they didn’t. The stop, when it finally occurred, was not really based on an emergency, and it is suppressed. United States v. Toussaint, 2015 U.S. Dist. LEXIS 96847 (E.D.La. July 24, 2015): Continue reading →
Posted inEmergency / exigency|Comments Off on E.D.La.: Exigency had dissipated by the time this stop occurred, and it’s suppressed
Based on information that defendants’ car had drugs heading into Maine, the car was stopped and the occupants searched. It was all with probable cause, and Pringle controls the search of the passengers because it was reasonable to believe they were involved, too. State v. Martin, 2015 ME 91, 2015 Me. LEXIS 99 (July 23, 2015).
“Imposing liability upon the City and Police Commissioner for an alleged unconstitutional stop, frisk and cavity search by police officers requires more than a rote conclusory allegation the City failed to properly train after knowing of problems with its stop-and-frisk policies based on claims and a consent decree in other cases not involving the same officers or plaintiff. The aggrieved plaintiff must show disputed material facts showing a nexus between the alleged failure to train and the harm.” Lemar v. City of Philadelphia, 2015 U.S. Dist. LEXIS 94124 (E.D.Pa. July 20, 2015).*
The lesson imprinted by the experience was one I already understood, even if I had never thought much about it: Some of the scariest people are the ones who are supposed to keep us safe.
Posted inPolice misconduct|Comments Off on Chicago Tribune: When cops ignore the law
Through the end of June, the number of officers killed by gunfire has dropped 25 percent from last year, from 24 to 18.
Posted inUncategorized|Comments Off on WaPo: Radley Balko’s ‘The Watch’ Blog: So much for the “Ferguson effect”: Killings of cops are down 25 percent for the first half of 2015
A Los Angeles Police Department 18-year veteran was handed a three-year jail term Thursday, six weeks after being found guilty of striking a handcuffed female suspect in the crotch and throat. Much of the 2012 incident was captured on a police cruiser’s dashcam.
Officer Mary O’Callaghan, was convicted of felony assault under the color of authority. The 35-year-old victim, Alesia Thomas, died later that July evening. The medical examiner concluded that cocaine intoxication was a “major factor” in the death of the Los Angeles mother of two, so the officer was not charged in connection to the woman’s death.
Posted inExcessive force|Comments Off on ars technica: LAPD cop gets 3 years in jail for beating suspect caught on dashcam
U.S. Customs and Border Protection could decide whether to have its officers and agents use body-worn cameras by the end of 2015, said CBP Assistant Chief Donna Twyford during a press call this week.
Posted inBody cameras|Comments Off on Newsweek: U.S. Customs and Border Protection Weighs Using Body Cameras
Arizona’s First District Court of Appeals distinguishes Sisco from the Second District from four days earlier: The smell of burnt marijuana in a car is different, and the burden is on the defendant to show he’s a MMJ user. State v. Cheatham, 2015 Ariz. App. LEXIS 124 (July 23, 2015): Continue reading →
Posted inProbable cause|Comments Off on AZ: The smell of burnt marijuana in a car may be PC; burden on def to show MMJ card
Repeated questions to defendant when stopped about why he was avoiding the officers did not show consent. “Here, based upon the facts as presented by the officers, we cannot agree with the trial court that the officers’ encounter with Mr. Gilmore was consensual. Critical to our conclusion is the repeated emphasis that the officers placed on Mr. Gilmore purportedly attempting to evade them. The officers maintained that Mr. Gilmore, upon first seeing the officers, immediately attempted to avoid them. Thereafter, when they regained sight of Mr. Gilmore on a different street, they pulled alongside Mr. Gilmore, and both officers exited the car. Officer Hadbavny first confronted Mr. Gilmore by asking why he was trying to avoid the officers.” State v. Gilmore, 2015-Ohio-2931, 2015 Ohio App. LEXIS 2829 (9th Cir. July 22, 2015).*
“There was probable cause here that Defendant possessed a gun and that the gun was inside the vehicle. Again, multiple officers saw Defendant brandish a weapon in an attempt to evade law enforcement. Although Defendant’s motion states that he denies the claim that he pointed his gun at law enforcement, no evidence was offered to controvert the testimony that officers’ witnessed him pointing it at Torres’ head.” United States v. Ford, 2015 U.S. Dist. LEXIS 96101 (E.D.Tex. June 25, 2015).*
Posted inConsent|Comments Off on OH9: Repeated questions to defendant when stopped about why he was avoiding the officers did not show consent
In response to a request for consent, defendant’s answering “I guess” to a request to consent and then nodding yes to “So we’re good?” was consent. United States v. Ruiz, 2015 U.S. App. LEXIS 12866 (7th Cir. July 24, 2015).
“Finally, Smith failed to state a claim that Sergeant Owens retaliated against him for asking to speak to the supervisor by ordering him to be strip searched and then handcuffed for 20 to 30 minutes. Smith did not show that these allegedly retaliatory acts would ‘likely deter a person of ordinary firmness’ from complaining about the conditions of his confinement, as Smith himself made a second verbal request after the strip search and filed a grievance after the handcuffing. See Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008).” Smith v. Isreal, 2015 U.S. App. LEXIS 12610 (11th Cir. July 22, 2015).*
Posted inConsent|Comments Off on CA7: Saying “I guess” and nodding yes showed consent
Gaming machines outside casinos in Puerto Rico, Adult Entertainment Machines, are within a scheme of highly regulated businesses, as is gambling there in general, for the purposes of Burger. Therefore, the Commonwealth was within its power to inspect and seize when appropriate. Rivera-Corraliza v. Puig-Morales, 2015 U.S. App. LEXIS 12636 (1st Cir. July 22, 2015).
Defendant is indicted for possession and production of child pornography which came to officers’ attention through a website complaining that it was being used to harass young girls online. Officers raided defendant’s house, and there was no question there was probable cause for the raid. The suppression hearing also dealt with statements made while in custody. After the suppression hearing, however, the state officers involved told the AUSA that they had to recant significant parts of their testimony about how the raid on defendant’s house went down. They testified originally that everybody was free to leave the house. When they returned to their offices they had photographs not in their case files that showed all the people in the house were handcuffed. Still, the officers had probable cause to believe defendant committed a crime. Defendant ultimately consented to a search of his computers, which was essentially uncontestable because officers had a search warrant to seize them too. United States v. Mailloux, 2015 U.S. Dist. LEXIS 95295 (E.D.Pa. July 22, 2015).*
Posted inAdministrative search, Seizure|Comments Off on CA1: Gaming machines outside casinos also highly regulated industry by state law
It was not clearly established that confiscating weapons from a potential suicide even after he was removed to the hospital was unreasonable in 2010. Arden v. McIntosh, 2015 U.S. App. LEXIS 12725 (10th Cir. July 23, 2015): Continue reading →
The state neither preserved nor proved that a protective sweep was required of this house. They claimed to be looking for a “cohort” of defendant who was possibly there, but there was no indication that this person was violent or dangerous, only that he was a “convicted felon” with pending charges. State v. Holmes, 2015 N.H. LEXIS 70 (June 19, 2015): Continue reading →
Posted inProtective sweep|Comments Off on NH: State failed to prove basics of protective sweep here
Two weeks ago, I wrote about an important new decision by the US District Court for the District of Arizona, holding that the Fourth Amendment does apply to the cross-border shooting of a Mexican national in Mexico by a US border patrol agent standing on US soil in Arizona, and that, based on the facts as alleged in the complaint, the officer-defendant was not entitled to qualified immunity.
Press release here on the El Paso from the Fifth Circuit.
Posted in§ 1983 / Bivens, Qualified immunity|Comments Off on Just Security: Are Cross-Border Shootings Heading to the Supreme Court?
Officers had probable cause to arrest defendant for child pornography before the search warrant was executed on his place. The lack of an arrest warrant does not mean they didn’t have probable cause. United States v. Ruiz, 2014 U.S. Dist. LEXIS 184393 (W.D.Tex. August 25, 2014)
Even if defense counsel was deficient in not filing a motion to suppress in the face of significant evidence of third party consent, it was harmless error at the trial. “In light of the mountain of evidence put forth by multiple witnesses, the rather modest evidence seized from the apartment, was of little consequence.” Therefore, no prejudice. United States v. Solano-Fell, 2015 U.S. Dist. LEXIS 94629 (W.D.N.Y. July 21, 2015).*
Marijuana smoke coming from the car and paraphernalia and marijuana leaves in plain view was at least reasonable suspicion, and the officer could ask questions about it. United States v. Williams, 2015 U.S. Dist. LEXIS 94643 (N.D.Ga. March 13, 2015), adopted 2015 U.S. Dist. LEXIS 94666 (N.D.Ga. July 21, 2015).*
When Wisconsin Gov. Scott Walker announced his candidacy for the Republican presidential nomination on July 13, he peppered his 34-minute speech with a laundry list of deeply conservative policy prescriptions. Among them was a requirement — much like the one in the state budget he signed less than 24 hours before the event — that welfare recipients pass a drug test before collecting public assistance benefits.
. . .
According to USA Today, Arizona tested more than 87,000 welfare recipients in the three years after the program began. The total number of drug cheats caught was exactly one — a single positive result, which saved the state precisely $560.
Posted inDrug or alcohol testing|Comments Off on Policy Mic: Arizona Drug Tested Welfare Recipients — Here Are the Shocking Results [1 positive in 87,000 tests]
We’ve talked plenty about the value of body cameras and dashcams for police — in acting as a deterrent to bad behavior by police while supposedly acting as public servants. Of course, that only works if people trust the video not to be edited and doctored.
Posted inBody cameras|Comments Off on Techdirt: Police Cameras Are Valuable… But Not If They Can Alter The Videos
I’ve been asked a lot about the law of the Sandra Bland traffic stop, and in particular whether Bland had to put out her cigarette and get out of the car. Here are a few thoughts.
First, the cigarette question is pretty easy. The officer says, “Do you mind putting out your cigarette, please? If you don’t mind.” That’s a request, not an order. There’s no law requiring you to go along with an officer’s “do you mind” requests. Bland was free to say no.
Next, after Bland refuses to put out her cigarette, the officer says, “Well, you can step on out now.” Bland says that she doesn’t have to get out of the car, and the officer responds with a clear order: “Step out of the car,” which he then repeats a few times, getting louder and louder as Bland refuses and the exchange intensifies.
Posted inPolice misconduct|Comments Off on WaPo: The law of the Sandra Bland traffic stop
The other interesting note is that, so far, not a single case granted for next Term involves the Fourth Amendment. I can’t recall a prior Term where that was true at the end of the prior Term.
Posted inSCOTUS|Comments Off on SCOTUSBlog: Criminal law grants for the October Term 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.
