The woman driving defendant’s car with the keys in hand had apparent authority to consent to its search. That consent, however, did not extend to a digital camera in the car. “The consent the officers received to search the car did not extend to the camera’s contents. ‘Consent to search an area is distinguishable from consent to search an object or closed container located within that area.’ Turner, 23 F. Supp. 3d at 310. The Court must consider ‘the defendant’s expectation of privacy in the object apart from his expectation of privacy in the [area being searched].’ U.S. v. Haqq, 278 F.3d 44, 50 (2d Cir. 2002).” Riley essentially applies to searches of all digital media. United States v. Whiteside, 2015 U.S. Dist. LEXIS 84369 (S.D.N.Y. June 29, 2015).
A pre-enforcement challenge to whether parole conditions violate the state constitution’s privacy provision isn’t ripe. “Further factual development is needed, and Cates does not face a significant risk of hardship by our declining to review the merits in the absence of developed facts.” State v. Cates, 2015 Wash. LEXIS 697 (July 2, 2015).
Posted inComputer and cloud searches, Consent|Comments Off on S.D.N.Y.: Driver’s apparent authority to consent to search of car did not extend to a digital camera that belonged to another; Riley applies to digital camera
This Fourth of July, like the preceding weeks, will be painful, following the Charleston massacre — a devastating example of the lofty ideal of human equality’s failure to take root in a human heart. Many would say, as many have said to me, that taking the ideals of the Declaration of Independence too seriously is a mistake, because the men who signed it didn’t. These folks say that I should be more clear-eyed about revolutionary hypocrisy. I counter that we should be more clear-eyed about how the Declaration launched two political traditions in this country: one for broad equality, and one for an equality limited to whites.
But, many of the “truths [we hold] to be self-evident” become a part of the 1789 Constitution and the 1791 Bill of Rights. The hypocrisy “that all men are created equal …” meant white men; not blacks, and women were somewhere in between. As a school child reading that, I didn’t know, and wasn’t told all the history. After all, Thomas Jefferson was a slave owner who enslaved his own children he had with Sally Hemmings. In addition, Jefferson was also found to have written in detail on the economics of slave women and how their existence helped us win the Revolution.
And remember, prior to the civil rights amendments, blacks were 3/5ths of a person. (Thirteenth Amendment, 1865; Fourteenth Amendment, 1868; Fifteenth Amendment, 1870)
The declaration also wasn’t kind to Indians, from whom we stole land.
I used to wax poetic about the Declaration of Independence. Like everybody else, I pick and choose the parts I want to quote. The parts to keep swept under the rug are.
See also NPR: Scrapped Declaration Of Independence Passage Denounced Slavery. Jefferson wrote extensively on ending slavery, including in the proposed Virginia Constitution, but he was limiting it to children born in 1800. I guess he was a political realist. What he believed and did v. what he wrote still troubles me in its hypocrisy.
The two disturbing videos below depict the fatal police shooting of James Bushey, 47, of Elkhart, Tex. The videos are taken from the body cameras of two officers with the Palestine, Tex., police department.
Bushey was suspected of stealing some alcohol from a local Wal-Mart. The videos depict Sgt. Gabriel Green calmly and non-aggressively confronting Bushey in the bathroom of an Applebee’s restaurant. He and Officer Kaylynn Griffin then escort him outside the restaurant. Bushey then pulls a BB gun pistol from his pocket and points it at the officers. They then open fire and kill him. By all appearances, this shooting looks both justified and unavoidable. Judging by the local newspaper account of the shooting, Bushey was likely attempting suicide-by-cop. It’s really the only explanation for why he’d knowingly pull a non-lethal gun on two police officers armed with guns that shoot actual bullets.
Posted inBody cameras|Comments Off on WaPo: These videos of a Texas police shooting show how body cameras can vindicate good cops
Reasonable suspicion to believe a wanted parole fugitive is in a vehicle is reasonable suspicion for a stop. The decision to tow, and thus inventory, the car was reasonable because both occupants were arrested and there was a pitbull left behind. “Even if the officers had a subjective intent to conduct an investigatory search, such intent does not convert a permissible inventory search in accordance with a standardized policy into an impermissible, warrantless search.” United States v. Jeffreys, 2015 U.S. Dist. LEXIS 84740 (D.Mass. June 30, 2015).
Defendant’s arrest after the statute of limitations but only 31 days after issuance of the arrest warrant was not unreasonable. State v. Swebilius, 2015 Conn. App. LEXIS 251 (July 7, 2015).*
Defendant was 55 years old, of average intelligence, and, by all accounts, the consent was voluntary. It occurred in a relaxed conversational manner. United States v. Hardison, 2015 U.S. Dist. LEXIS 85055 (W.D.Mo. June 30, 2015).*
A tracking device was put on defendant’s vehicle via a court order under a statute that required only reasonable suspicion. Jones came later and required probable cause. Nevertheless, defendant’s speeding stop was justified by the intervening circumstance of the police seeing him speed. “So long as the ‘circumstance’ ‘intervenes’ between the inception of the primary illegality and the later discovery of evidence that is alleged to be ‘fruit of the poisonous tree,’ we hold that a reviewing court may appropriately regard it as an ‘intervening circumstance’ factor in the attenuation-of-taint analysis.” The police conduct was not flagrant. [This contorted path was required to be followed because Texas does not recognize the good faith exception to the exclusionary rule by statute.] State v. Jackson, 2015 Tex. Crim. App. LEXIS 756 (July 1, 2015) (concur; dissent): Continue reading →
Posted inAttenuation|Comments Off on TX: Observed speeding justified stop although pre-Jones GPS also showed def speeding
Defendant concealed her pregnancy and gave birth in a motel room, apparently drowning the baby in the bathtub and leaving the body in the trash can. There was a “do not disturb” sign on the door, but hotel housekeeping came in anyway and discovered blood on the carpet and in the bathroom. The housekeeper left and called management who called the police. The trial court held defendant had no reasonable expectation of privacy in the room because of her purpose, but the court concludes she did. The case is remanded for another suppression hearing where the state can develop a record on exceptions to the exclusionary rule such as inevitable discovery, community caretaking function, or private search. State v. Tyler, 2015 Iowa Sup. LEXIS 79 (June 30, 2015).
A UPS manager called the police, but the police made it clear that UPS couldn’t open the package for the police, but they could for themselves to satisfy UPS that it didn’t contain something noxious. The officer did smell burnt marijuana on the box, and told the manager. Still, it was a private search. United States v. Emile, 2015 U.S. App. LEXIS 11102 (11th Cir. June 29, 2015).*
Defendant’s girlfriend consented to an entry and search by the police. The trial court credited the police version that defendant revoked that consent when he was awakened. State v. Young, 2015-Ohio-2575, 2015 Ohio App. LEXIS 2493 (12th Dist. June 29, 2015).*
Defendant was arrested in his car, and the police conducted a search incident of it. A locked safe was in the car, and the police opened it without a warrant. The search of the safe was unlawful under the state constitution because it went far beyond what the search incident doctrine allows. [It’s fair to say the Fourth Amendment outcome would be the same.] State v. Gaskins, 2015 Iowa Sup. LEXIS 80 (June 30, 2015): Continue reading →
The officer here came to serve a summons at plaintiff’s house, and he looked through the window and saw the place was in disarray. He went to the door, and it was unlocked. He never knocked. He decided to perform a welfare check and entered with another officer with guns drawn and flashlights, finding the plaintiff asleep with a window air conditioner on near her head. There was no indication whatsoever that there was a need to enter. The fact there may have been guns inside was meaningless without some indication that they would be used. Plaintiff testified she felt “violated” by them rousting her from bed dressed as she was. No qualified immunity because nothing in the record supported exigent circumstances for the entry. McInerney v. King, 2015 U.S. App. LEXIS 11265 (10th Cir. June 30, 2015).
Turning too wide is a traffic offense that justifies a stop. State v. Rainier, 2015 Ida. App. LEXIS 56 (June 24, 2015).*
Defendant’s house was searched for stolen property and drugs. Instead of deciding that search incident supported the search of his person at the scene, the court goes with inevitable discovery that he would have inevitably been searched anyway. [Which is backdooring the same issue they wouldn’t decide.] State v. Rowland, 2015 Ida. App. LEXIS 55 (June 24, 2015).
(Reuters) – The 2nd U.S. Circuit Court of Appeals seems to be eager to decide when, if ever, the federal government has the right to retain and search computer records seized in one investigation but later found to be relevant in another. Continue reading →
Posted inComputer and cloud searches|Comments Off on Reuters: En banc 2nd Circuit to clarify when computer seizures are unconstitutional
It turns out that a fitness tracker can do more to betray you than showing your friends and families you’re a couch potato. It can also undermine your claims about being a victim of a crime.
In March, a Florida woman traveled to Lancaster, Pennsylvania where she stayed at her boss’s home, reports ABC 27. On a Tuesday, police were called to the home where they found overturned furniture, a knife and a bottle of vodka, according to Lancaster Online. Jeannine Risley told police she’d been sleeping and that she was woken up around midnight and sexually assaulted by a “man in his 30s, wearing boots.” However, Risley was wearing her Fitbit band at the time. She initially said that the Fitbit had been lost in the struggle, but police found it in a hallway and when they downloaded its activity, the device became a witness against her.
Posted inSurveillance technology|Comments Off on Fusion: Fitbit data just undermined a woman’s rape claim
The Foreign Intelligence Surveillance Court ruled late Monday that the National Security Agency may temporarily resume its once-secret program that systematically collects records of Americans’ domestic phone calls in bulk.
Posted inFISA|Comments Off on NY Times: Surveillance Court Rules That N.S.A. Can Resume Bulk Data Collection
Defendant didn’t raise standing but the court did on its own. And it denied the motion to suppress on the merits. Based on the plea colloquy, it’s evident that the product of the search didn’t contribute to the conviction, so it’s harmless. The contention that the absence of a clearly delineated path and a door knocker means that there was no implied right for the police to come to the door reads too much into Jardines. United States v. Jackson, 2015 U.S. App. LEXIS 11034 (11th Cir. June 29, 2015):
Jackson and Jones’ argument that, because there was no delineated path leading up to the door, and because the door did not have markings, a doorbell or knocker, or an adjacent mailbox, there was no implied invitation to enter is likewise unavailing. The appellants point to no authority stating that these attributes are necessary to find that an implied invitation to enter existed. Their reliance on Jardines is misplaced, as that case provides only that a door knocker serves as an implied invitation to knock, not that the absence of a knocker, or any other specific features, is necessarily a signal not to do so. See Jardines, 569 U.S. at __, 133 S. Ct. at 1415-16.
Posted inCurtilage|Comments Off on CA11: Absence of a clear path and a door knocker doesn’t mean police can’t come to the front door
Iowa applies the special needs doctrine to parole searches for the first time. It alluded to something like that in 1970, but the special needs doctrine hadn’t developed then. This parole search was reasonable under Griffin and the special needs doctrine. Knights and Samson were reasonableness cases. This case is a good short summary of the special needs doctrine. State v. King, 2015 Iowa Sup. LEXIS 75 (June 26, 2015).
Officers did not measurably extend the stop on a traffic offense in their presence to ask for and get consent. It happened in five minutes. United States v. Gomez, 2015 U.S. Dist. LEXIS 82974 (D.Conn. June 25, 2015).*
No hearing is required on this motion to suppress. On the admitted facts, the officers had probable cause to stop and search defendant’s vehicle under the automobile exception when he took possession of an air tank under longterm DEA surveillance that they knew had 19 kg of cocaine in it. United States v. Vasquez-Rodriguez, 2015 U.S. Dist. LEXIS 82984 (D.N.J. June 25, 2015).*
Although the search in this case started before the search warrant was actually issued, the court applies the inevitable discovery exception to sustain it. The house was secured by the police waiting for the warrant to arrive, the application for the warrant showed probable cause, and the fact that the search started a little too soon was not so egregious that the exclusionary rule should apply. The warrant inevitably would have arrived, so the motion to suppress is denied. State v. Lambert, 2015 Del. Super. LEXIS 318 (June 22, 2015).
On remand from the Texas Court of Criminal Appeals, defendant preserved his claim that his warrantless blood draw violated the Fourth Amendment. Leal v. State, 2015 Tex. App. LEXIS 6460 (Tex.App.–Houston (14th Dist.) June 25, 2015) on remand from 456 S.W.3d 567 (Tex. Crim. App. 2015).*
Plaintiff invited officers with an arrest warrant based on an indictment into his home to arrest him. Then he sued and lost and then appealed. He doesn’t file an intelligible brief on any issues that aren’t foreclosed on their face. James v. Schafer, 2015 U.S. App. LEXIS 10936 (5th Cir. June 24, 2015).*
“Based on the totality of the circumstances, Officer Vinson’s decision to deploy the SRT to execute the search warrant for Ms. Bullock’s residence did not constitute force excessive to the need, nor was it objectively unreasonable.” Bailey v. Lawson, 2015 U.S. App. LEXIS 10813 (5th Cir. June 23, 2015).
Defendant consented to removing drugs hidden in her vagina. Concealing drugs in one’s vagina is not evidence tampering [¶s 36-39]. State v. Crocker, 2015-Ohio-2528, 2015 Ohio App. LEXIS 2409 (4th Dist. June 16, 2015).*
One officer’s trial testimony that another officer said that he was searching the back seat area of a car because of furtive movements was not hearsay. [I don’t get it: the court just makes this one up]. State v. Moore, 2015-Ohio-2466, 2015 Ohio App. LEXIS 2368 (12th Dist. June 22, 2015).*
A Game and Fish Commission wildlife officer’s investigation into whether defendant was complying with the hunting laws, even if authorized [the court of appeals said it wasn’t: Pickle v. State, 2014 Ark. App. 726, 453 S.W.3d 157], continued on too long without reasonable suspicion and led to a search of his vehicle. The administrative search rationale was implicitly rejected. Pickle v. State, 2015 Ark. 286, 2015 Ark. LEXIS 496 (June 25, 2015): Continue reading →
Posted inReasonable suspicion|Comments Off on AR: Wildlife officers’ detention of defendant was without reasonable suspicion
After police in Pittsfield, Massachusetts, responded to the wrong address, they said they were greeted by an 88-year-old woman answering the door armed with a knife, who proceeded to slap an officer, after telling him there was no crime at her home.
Phyllis Stankiewicz, 88, was minding her own business and going about her day on Thursday afternoon around 3:50 p.m. when police began banging on her door and announcing themselves. The officers were responding to a call regarding a disturbance involving someone with a baseball bat, but they were a block away at the wrong home.
Posted inPolice misconduct|Comments Off on PINAC: Massachusetts Police Respond to Wrong Address; Charge 88-Year-Old Woman With Assaulting Officer
The state may obtain defendant’s blood draw for medical purposes by subpoena. Ferguson v. City of Charleston does not create a reasonable expectation of privacy from a subpoena, a form of legal process, for obtaining the results. Rodriguez v. State, 2015 Tex. App. LEXIS 6507 (Tex.App.–Houston (1st Dist.) June 25, 2015): Continue reading →
"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.
