The officer’s testimony about exigent circumstances is credited. It was also reasonable for an officer to go upstairs for a sweep after hearing a voice, even though that voice turned out to be from a television set. United States v. Warren, 2015 U.S. Dist. LEXIS 88523 (W.D.Pa. July 7, 2015).
Defendant’s detention at work while a search of his house was going on was not barred by Bailey because officers had probable cause to arrest. United States v. Garden, 2015 U.S. Dist. LEXIS 88575 (D.Neb. June 29, 2015).
Defendant argued for a Franks violation over the use of the word a “torrent” file in a child pornography search warrant to describe more than what it was. The court does not find one. United States v. Palmer, 2015 U.S. Dist. LEXIS 88596 (M.D.Fla. May 18, 2015).*
Posted inFranks doctrine, Protective sweep|Comments Off on W.D.Pa.: A sweep upstairs was justified by voices, even though it turned out to be a TV set
The fact some things were seized beyond the face of the warrant does not state a § 1983 claim. “Although some of the personal property seized was not listed in the search warrants, we find no error in the district court’s dismissal of these claims. A commonsense but not hypertechnical review of the search warrants accounts for the items seized. The mere assertion, without more, that police seized some items not listed in the warrants does not render the seizures unconstitutional.” Bishop v. County of Macon, 2015 U.S. App. LEXIS 11825 (4th Cir. July 9, 2015).
Plaintiff stated an excessive force claim that officers came to his house after being called about his suicide threat. They encountered him on a bed with a gun in his lap, shot him twice, and then Tasered him while he was on the floor. Weiland v. Palm Beach County Sheriff’s Office, 2015 U.S. App. LEXIS 11750 (11th Cir. July 8, 2015).*
Posted inExcessive force, Warrant execution|Comments Off on CA4: Seizure of things not specified in the SW is not necessarily a constitutional violation; depends on wording of SW
A dog sniff at the front door of a specific apartment unit qualified for curtilage under Jardines. The policy reasons behind it still apply to a particular apartment’s door. Nonetheless, there was some other information on which the officers relied, and the good faith exception applies. United States v. Hopkins, 2015 U.S. Dist. LEXIS 88038 (N.D.Ga. July 6, 2015):
Here, the Court must determine if Officer Fear had an express or implied license to conduct a drug sniff in an area shared by only two residences. I don’t believe he did. As noted by the Court in Jardines, there may be an implied license for strangers such as Girl Scouts or trick-or-treaters — or police officers — to approach a front door and knock, “[b]ut introducing a trained police dog to explore the area around the house in hopes of discovering incriminating evidence is something else.” Id. at 1416. While not as grand, the cement slab in front of Defendant’s residence was, in effect, his “front porch.” The fact that the space is shared with one other unit does not expand the scope of the “implicit license” which has become the “habit of the country.” Furthermore, I cannot find on this record that an express license was granted by the complex’s management to conduct dog sniffs at the cracks of its residents’ front doors. I conclude this space is protected curtilage, there was no express or implied license to conduct a dog sniff, and the dog sniff constituted an unlawful Fourth Amendment search.
Posted inCurtilage|Comments Off on N.D.Ga.: Dog sniff at the front door of a specific apartment unit qualified for curtilage under Jardines
A federal judge ruled Thursday that a Mexican teenager was entitled to civil rights under the Fourth Amendment of the U.S. Constitution when he was killed in a 2012 cross-border shooting by a U.S. Border Patrol agent standing in Nogales, Ariz.
In the 21-page decision, U.S. District Court Judge Raner C. Collins wrote that under the facts alleged in the case, 16-year-old Jose Antonio Elena Rodriguez was covered under the Fourth Amendment when he was shot approximately 10 times while walking home from a basketball game in Nogales, Son.
Posted inExcessive force|Comments Off on Tucson Sentinel: Judge OKs suit by family of Mexican teen fatally shot by border agent
Some New York City police officers are stopping people for questioning but not documenting the encounters as required, calling into question the official accounting of a significant decline in stop-and-frisk activity, according to the first report of the federal monitor overseeing the city’s Police Department.
The finding is contained in an 87-page report that was filed on Thursday morning in Federal District Court in Manhattan, by the monitor, Peter L. Zimroth, who was installed as part of the court’s decision in 2013 that found the department’s stop-and-frisk tactics to be unconstitutional.
Posted inStop and frisk|Comments Off on NYTimes: Some New York Police Street Stops Are Going Undocumented, Report Says
Now that Congress has ended the National Security Agency’s controversial dragnet of Americans’ phone records, privacy advocates are pushing to curb a lesser-known surveillance power that allows the government to read the content of Americans’ emails, cellphone conversations and other electronic communication.
Posted inFISA|Comments Off on USA Today: New privacy debate focuses on government access to emails, texts, calls
Lost in the shuffle of Supreme Court commentary last week was Los Angeles v. Patel, a case that is ostensibly about unreasonable searches under the Fourth Amendment, but that is, more fundamentally, about the proper structure of judicial review.
Posted inSCOTUS|Comments Off on WaPo: Los Angeles v. Patel and the constitutional structure of judicial review
SWAT teams were once used only in emergency situations, when lives were in immediate danger. That is, they were primarily used to protect civilians. Today, they’re primarily used to protect police officers, often at the expense of the safety and civil liberties of civilians.
Posted inExcessive force|Comments Off on WaPo: Radley Balko’s ‘The Watch’ Blog: Documents show excessive use of Massachusetts SWAT teams
Despite defendant’s claim that he didn’t speak much English at all, being Russian speaking Ukranian, the court finds consent valid based on gestures on the video where his voice was largely inaudible. However, he clearly withdrew consent and told the officers to get out of the car. He was under mere investigative detention at the time of the stop, not under arrest, so the search incident doctrine cannot justify further search of the car under Gant. Moreover, the product of the search was used to justify it, so the motion to suppress is granted. United States v. Patiutka, 2014 U.S. Dist. LEXIS 184282 (W.D.Va. December 4, 2014).
The entry into the house apparently was premature, but a warrant was being issued, and that’s an independent source for the entry. A photocopy of the search warrant suffices at the hearing; an authenticated copy is not required under the 1003 of the Rules of Evidence. Brooks v. State, 2015 Tex. App. LEXIS 6915 (Tex.App.–Houston (14th Dist.) July 7, 2015).
The record supports the conclusion that, on the totality, defendant consented to a search of his phone for text messages about a suicide threat. The messages were gone, and the officer went to a folder looking for them and found child pornography. The search did not exceed the consent. State v. Kohlmeyer, 2015 Tenn. Crim. App. LEXIS 534 (July 7, 2015).
Defendant’s parent consented to entry into his bedroom. It had one locked door and one unlocked door, and they entered through the unlocked door. The officer was reasonable in concluding that there was apparent authority based on the parent’s actions in opening the door and permitting him in. United States v. Ortega-Gutierrez, 2015 U.S. App. LEXIS 11779 (9th Cir. July 8, 2015).*
Posted inApparent authority, Cell phones, Consent|Comments Off on TN: Def’s consent to look at cell phone for suicide threat text messages was not violated when officer opened up a folder looking for deleted TMs
A vehicle’s GPS device is not a container subject to search under the automobile exception. It contains personal data, and it is akin to a cell phone, and a warrant is required under Riley. Wertz v. State, 2015 Ind. App. LEXIS 505 (July 7, 2015): Continue reading →
The Quarles public safety exception for firearms did not permit a search of defendant’s car for a gun. He was outside his car, said he had a conceal carry permit and the gun was in the console, and officers searched for the gun. There was no threat to public safety at the time of the search. State v. Hancovsky, 2015-Ohio-2602, 2015 Ohio App. LEXIS 2641 (11th Dist. July 6, 2015): Continue reading →
Posted inReasonable suspicion|Comments Off on OH11: Quarles public safety exception for firearms did not apply where def no threat
One year ago — almost to the day — I predicted that the New York Police Department (NYPD) would adopt predictive policing technologies to shift focus away from the challenged stop-and-frisk policies of the past.
Today, Capital New York reported that that NYPD has contracted with HunchLab to offer predictive policing services in New York City. The future of the future is now.
The question remains whether this future is a good thing for New York.
Posted inReasonable suspicion|Comments Off on HuffPo: Predicting Predictive Policing in NYC
WASHINGTON — Now that Congress has ended the National Security Agency’s controversial dragnet of Americans’ phone records, privacy advocates are pushing to curb a lesser-known surveillance power that allows the government to read the content of Americans’ emails, cellphone conversations and other electronic communication.
Rep. Thomas Massie, R-Ky., said the power, which comes from Section 702 of the 2008 FISA Amendments Act, was supposed to be aimed at foreign nationals living outside the USA but has ended up being used to collect massive amounts of personal communication from Americans.
Posted inFISA|Comments Off on USA Today: New privacy debate focuses on government access to emails, texts, calls
Defendant could not be convicted of resisting a law enforcement officer by walking off when the officer wanted to talk to him, absent reasonable suspicion. [But it kind of sounds like reasonable suspicion in the opinion.] Jones v. State, 2015 Ind. App. LEXIS 503 (July 6, 2015): Continue reading →
Posted inReasonable suspicion|Comments Off on IN: You can walk off from an officer talking to you where no RS
Defendant was wanted for a recent shooting with a shotgun, and the USM fugitive squad was in on the manhunt. When they found him, they stopped the car and had him on the ground next to the car with the door open. At the same time he was about to be being restrained with handcuffs and officer was in the area where he was sitting finding a gun. This was a proper search incident under Gant. United States v. Lewis, 2015 U.S. Dist. LEXIS 87993 (S.D.Ga. July 1, 2015).
Where the Memphis PD had a tow in policy that allowed another person to drive the vehicle, the other person had to be there. United States v. Graham, 2014 U.S. Dist. LEXIS 184281 (W.D.Tenn. October 24, 2014).*
Posted inInventory, Search incident|Comments Off on S.D.Ga.: Search incident of car valid where def on ground being searched when officers looked for gun
Defendant’s purse was in her vehicle when a dog alerted on it. By the time the police were going to search her car, the purse was in her hands. The purse could be searched under the automobile exception because it was in the car at the time of the dog sniff when probable cause developed. State v. Easterday, 2015 Ida. App. LEXIS 57 (July 6, 2015):
However, under the automobile exception, there are no special containers, and it is immaterial where the container is located within the vehicle or whether the occupant exited the vehicle with the container. Ross, 456 U.S. at 825; Smith, 152 Idaho at 121, 266 P.3d at 1226. While a purse is a personal item akin to a billfold, precedent applying the automobile exception provides for search of all containers with the sole exception of the person, including their clothing. Accordingly, the district court did not err in concluding that the automobile exception to the warrant requirement justified the search of Easterday’s purse following the dog’s alert on the vehicle.
Posted inAutomobile exception|Comments Off on ID: Def’s purse was in car at time of dog alert, so it was subject to search under automobile exception
Defendant was charged as a first offender under Georgia law, and, if he completed probation successfully, his DNA sample would have been purged from the system. Here, the DNA was matched to another crime when he was still on probation. The state did not violate his Fourth Amendment rights in the taking of the sample or retaining it. United States v. Hinton, 2015 U.S. Dist. LEXIS 87736 (M.D.Ga. May 4, 2015).
Defendant was wanted for child pornography, and the initial seizure of his cell phone incident to his arrest in a car was reasonable under the search incident doctrine. The police already knew from a child that her video would be on the cell phone. The child’s mother had surreptitiously recorded defendant sexually abusing her. Even if the recording violated the state eavesdropping law, that didn’t govern its admissibility in federal court. United States v. Blank, 2015 U.S. Dist. LEXIS 87599 (D.Md. June 30, 2015).*
Posted inCell phones, DNA|Comments Off on M.D.Ga.: DNA taken under state law that was potentially purgable still could be used as evidence in a federal prosecution
"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.
