The secretive federal court that oversees the nation’s spies is laying the groundwork for temporarily reauthorizing the National Security Agency’s (NSA) sweeping collection of U.S. phone records.
In an order released on Friday, the Foreign Intelligence Surveillance Court said that a brief lapse in some Patriot Act provisions would not bar the court from renewing the NSA’s powers. Although the court asserted its ability to renew the controversial NSA program, it has yet to issue an order giving a green light to the spy agency.
. . .
The court decided that a temporary lapse of Patriot Act powers did not handicap the NSA.
Posted inFISA|Comments Off on The Hill: Spy court clears path to renewing NSA powers
A retired judge has released dashboard camera video from a Chicago police car that shows a white officer repeatedly firing his handgun into a car full of black youths who had been pulled over for speeding and posed no apparent threat.
Posted inExcessive force|Comments Off on NYTimes: Illinois: Video of Shooting Released
A police officer stopping behind an already parked car isn’t a stop of the person who is free to walk away, United States v. Kim, 25 F.3d 1426 (9th Cir. 1994), but it is of the car. Here, officers had reasonable suspicion defendant was attempting to engage in drug transactions. “Here, the Government offers a list of particularized and objective reasons that the officers believed that a drug transaction was taking place. … The Court finds many of these reasons compelling. First, Millbrook was observed standing at the street corner waiving money and beckoning in a manner familiar to the officers as indicating a drug transaction. … Second, Sergeant Cowans reported that Millbrook ‘appeared rushed and anxious’ when waving the money at the intersection, ‘nervously looking up and down the street.’” United States v. Nunn, 2015 U.S. Dist. LEXIS 78675 (N.D.Cal. June 16, 2015).*
Three officers on patrol passed defendant wearing a long heavy coat on a nice day. When defendant saw the police car, he switched his cell phone to his other hand, and his free hand patted his hip, which the officers took as a “weapons check” and he “bladed” his body to hide the gun bulge, but the officers had already seen it. They stopped and talked to him on the street and asked whether he had a license for the gun. He said no, and that was reasonable suspicion for a patdown. United States v. Williams, 2015 U.S. Dist. LEXIS 79303 (E.D.Mich. June 18, 2015).*
Posted inReasonable suspicion, Seizure|Comments Off on N.D.Cal.: Waving money and looking nervous on a street corner was RS to a trained narcotics officer
“This court concluded that a Superior Court judge, in entering a judgment of contempt in a criminal case due to the refusal, by a third party who was not a suspect, to comply with an order compelling him to provide a buccal swab, erred in finding that the Commonwealth had met its burden of establishing that a sample of the third party’s deoxyribonucleic acid (DNA) probably would produce evidence relevant to the defendant’s guilt, where, weighing the seriousness of the charges against the defendant as well as the minimally intrusive nature of a buccal swab, the third party’s DNA was not so sufficiently relevant or important to the question of the defendant’s guilt as to outweigh the third party’s constitutional rights.” Commonwealth v. Kostka, 656, 471 Mass. 2015 Mass. LEXIS 393 (June 17, 2015): Continue reading →
Posted inDNA, Reasonableness|Comments Off on MA: Order for fraternal twin to give up DNA to eliminate him here was unreasonable for an inadequate showing; contempt reversed
Defendants were fishing 28 miles off Oregon for halibut in a fishing zone. One of them pulled up and released a yellow-eye rockfish which is a deep water fish that will die if released in shallow water, and that’s what happened, but that’s not a crime. State troopers in uniform in an unmarked boat with blue lights were watching and approached and asked to see their halibut tags which are required to be kept. At that point, the stop was not consensual. “Reduced to essentials, Canfield’s words told defendant, ‘get out your tag; we are going to inspect it.’ That is not a request for information or cooperation; it is a command. When an officer’s statement would be understood as “a command affirmatively communicating * * * that compliance [is] not optional,’ it constitutes a show of authority that effects a seizure. Backstrand, 354 Or. at 408.” State v. Paskar, 271 Ore. App. 826, 2015 Ore. App. LEXIS 745 (June 17, 2015), related cases State v. Anton, 271 Ore. App. 860 (June 17, 2015); State v. Ene, 271 Ore. App. 858 (June 17, 2015).
Defendant was stopped for an expired tag. The officer ran his name and saw he was on probation for drugs but didn’t tell defendant that he knew for what, and he told defendant to tell his PO about the stop. After saying defendant was free to go, he asked defendant if he could look in the car. Defendant had to know, or at least reasonably suspect, that the officer knew it was for drugs because the defendant certainly knew. The look was by voluntary consent. State v. Lamoreux, 271 Ore. App. 757, 2015 Ore. App. LEXIS 743 (June 17, 2015).*
Defendant consented to a warrantless breath test. State v. Lopez-Lopez, 271 Ore. App. 817, 2015 Ore. App. LEXIS 769 (June 17, 2015).*
Posted inConsent|Comments Off on OR: Encounter at sea to look at fish tags was not by consent
The officer unlawfully prolonged the duration of the stop when he interrupted his traffic citation preparation to conduct a dog sniff based on an unparticularized suspicion of criminal activity. There was no dispute that the dog sniff added time to the total duration of the stop at issue and the additional time was to conduct a check that was unrelated to this otherwise lawful traffic stop. Appellee’s consent did not transform this prolonged stop into a permissible seizure where appellant’s consent was acquired after the officer had explained that he was going to conduct a dog sniff. Suppression affirmed. People v. Pulling, 2015 IL App (3d) 140516, 2015 Ill. App. LEXIS 457 (June 17, 2015).
“Because the good-faith exception is applicable, we need not consider whether there was a substantial basis for concluding that probable cause existed.” Yet, the court practically did decide the probable cause question; it just didn’t want to. United States v. Gayfield, 2015 U.S. App. LEXIS 10139 (5th Cir. June 15, 2015).*
While doing a traffic stop, officers heard six gunshots about 100′ away around the corner. The detention of the people they believed were involved used guns, and handguns, and getting them on the ground. All things considered, it was all reasonable. United States v. Tyson, 2015 U.S. Dist. LEXIS 78503 (E.D.Wis. May 20, 2015).*
“Law enforcement trespassed on Johnson’s property without a warrant and thereby violated Johnson’s Fourth Amendment rights. But probable cause existed without the evidence from the trash pull to search Johnson’s red 1994 Cadillac DeVille and his person. Evidence discovered in that search was sufficient to support a search warrant for Johnson’s storage unit, and the evidence discovered in Johnson’s house would have inevitably been discovered through investigation independent of the Fourth Amendment violation. Even if probable cause did not exist for the warrants, law enforcement relied on those warrants in good faith. Thus, the report and recommendation is adopted as modified by this opinion.” United States v. Johnson, 2015 U.S. Dist. LEXIS 78618 (D.S.D. June 16, 2015).*
Implied consent continues to exist in Idaho, and defendant otherwise agrees that consent applies. State v. Smith, 2015 Ida. App. LEXIS 49 (June 15, 2015).*
House committee considering future of US airspace worries about unmanned aircraft systems (UAS) filming football games but silent on law enforcement use
Posted inDrones|Comments Off on The Guardian: Congress warned that drones present ‘a nightmare scenario for civil liberties’
2255 petitioner had no standing, even on his own allegations, so whether defense counsel was ineffective for not calling him to testify to standing was moot. “Because the Court finds that Campbell’s underlying claim to have had a reasonable expectation of privacy in the Praver house lacks merit, it is unnecessary to address whether Haine performed deficiently by not calling Campbell or certain others to testify at the suppression hearing. See Kimmelman, 477 U.S. at 375. As discussed above, even if the information about Campbell’s connection to the Praver house was true, it still would not establish a legitimate expectation of privacy. Moreover, Campbell has not overcome the strong presumption that Haine’s decision was strategic. Strickland, 466 U.S. at 689 ….” In addition, defense counsel had a strategic reason for not calling petitioner at the suppression hearing for fear he would be easily “tripped up” by the government. Campbell v. United States, 2015 U.S. Dist. LEXIS 78557 (M.D.Fla. June 17, 2015),* R&R 2015 U.S. Dist. LEXIS 77841 (M.D.Fla. April 24, 2015).*
The Herring exclusionary rule is not analogous to exclusion of evidence for a discovery violation. Here, it was a 911 call made during a brutal sex assault and murder on tribal lands. Exclusion here was an appropriate sanction, determined after a remand (United States v. Yepa, 572 Fed. Appx. 577 (10th Cir. 2014)). United States v. Yepa, 2015 U.S. App. LEXIS 10167 (10th Cir. June 17, 2015).*
Posted inIneffective assistance|Comments Off on M.D.Fla.: Def lacked standing in any event, so whether defense counsel was ineffective for not calling him as witness at suppression hearing is moot
This anticipatory warrant’s triggering condition was “accept[ance]” of a package, not opening it although there were devices on it to tell the police that, too. Mere acceptance of the package makes it overbroad and vests too much discretion in the police as to when to execute. People v. Harris, 2015 IL App (1st) 132162, 2015 Ill. App. LEXIS 456 (June 17, 2015): Continue reading →
Posted inAnticipatory warrant, Overbreadth|Comments Off on IL: Mere “acceptance” of a package for an anticipatory warrant is overbroad
After 9/11, 762 people were detained, some without the slightest probable cause. This case arose in 2002 after these plaintiffs were detained, held for months, sometimes in conditions sounding like they were war criminals, and later released. It’s a really long opinion with a dissent, but here’s the concluding paragraph: “For the foregoing reasons, we affirm in part and reverse in part the district court’s decision on Defendants’ Rule 12(b)(6) motions. More specifically, we conclude that: (1) the MDC Plaintiffs have plausibly alleged a substantive due process claim against the DOJ Defendants, against Hasty with regard to both official and unofficial conditions, and against Sherman with regard to official conditions only, and these Defendants are not entitled to qualified immunity on this claim; (2) the MDC Plaintiffs have plausibly alleged an equal protection claim against the DOJ Defendants, Hasty, and Sherman, and these Defendants are not entitled to qualified immunity on this claim; (3) the free exercise claim is dismissed as to all Defendants; (4) the MDC Plaintiffs have plausibly alleged their Fourth Amendment strip search claim against Hasty and Sherman, and these Defendants are not entitled to qualified immunity on this claim; (5) the MDC Plaintiffs have plausibly alleged the Section 1985(3) conspiracy claim against the DOJ Defendants, Hasty, and Sherman, and these Defendants are not entitled to qualified immunity on this claim; and (6) the MDC Plaintiffs have not plausibly alleged any claims against Zenk.” Turkmen v. Hasty, 2015 U.S. App. LEXIS 10160 (2d Cir. June 17, 2015).
Defendant argued on appeal that the “testimony of the police officers at the pretrial suppression hearing that he voluntarily opened his trunk was incredible and patently tailored to overcome constitutional objections.” The credibility determinations support the denial of the motion that it was consensual. The dissent says the state didn’t meet his “heavy burden” on consent. People v. Barnes, 2015 NY Slip Op 05200, 2015 N.Y. App. Div. LEXIS 5102 (2d Dept. June 17, 2015).*
Defendant was sued after he was fired to recover a laptop with trade secrets and company information on it. An order to produce was filed. His argument that this violated the Fourth Amendment is undeveloped and treated as waived. Teledyne Technologies, Inc. v. Shekar, 2015 U.S. Dist. LEXIS 78224 (N.D.Ill. June 17, 2015).*
Posted inUncategorized|Comments Off on CA2: Innocent 9/11 detainees arrested in 2002 stated a claim for relief for conditions of confinement in federal detention
Plaintiff alleged an Art. III “injury in fact” in his claim that he was framed for a crime he didn’t commit. “Because it is objectively unreasonable to frame an inmate, we reverse the district court’s judgment and hold that Price properly alleged that he suffered an injury-in-fact when government agents allegedly framed and maliciously prosecuted him for a crime that he did not commit.” Webb v. United States, 2015 U.S. App. LEXIS 10161 (6th Cir. June 17, 2015): Continue reading →
Posted in§ 1983 / Bivens, Police misconduct|Comments Off on CA6: “[I]t is objectively unreasonable to frame an inmate” for a crime he didn’t commit
Stone v. Powell bar and the full and fair litigation requirement survived adoption of the habeas limitations of AEDPA. Newman v. Wengler, 2015 U.S. App. LEXIS 10094 (9th Cir. June 16, 2015). [This may be the only case to ever argue this.]
The officer here had an anonymous tip defendant was driving impaired. No credence was even needed to be given the tip when defendant committed a lane violation, so the officer could stop him for that even if it was pretextual about the possible DUI. State v. Campanelli, 2015-Ohio-2332, 2015 Ohio App. LEXIS 2251 (7th Dist. June 11, 2015).
Defendant loaned his luggage to someone else, and drugs were found in it. They moved to suppress and it was granted. Defendant doesn’t show in this 2255 he had standing to contest the search of the luggage, and he doesn’t get the benefit of the suppression as to the others. Therefore, defense counsel couldn’t be ineffective. Sylvester v. United States, 2015 U.S. Dist. LEXIS 77932 (E.D.Mich. June 16, 2015).*
Posted inIneffective assistance, Informant hearsay|Comments Off on CA9: Stone v. Powell bar and the full and fair litigation requirement survived adoption of the AEDPA
The world of law enforcement is changing rapidly. In the last few years, technology has advanced by leaps and bounds altering the way police officers do just about everything. New technology being used in law enforcement includes body worn cameras, dashboard cameras, drones, smartphones, automated license plate readers and handheld radar devices.
Officials say these types of tools are critical to keeping officers safe while allowing them to do their job. Privacy advocates and judges have nonetheless expressed concern about the circumstances in which law enforcement agencies may be using the new technology— and the fact that they have done so with limited public scrutiny.
Posted inBody cameras|Comments Off on JD Supra: Law Enforcement in the 21st Century: How The Courts Are Responding
The Fourth Circuit wrestles with the appropriate standard for an “egregious Fourth Amendment violation” for immigration removal cases, and confirms and analyzes a conflict in the circuits and how to interpret SCOTUS’s Lopez-Mendoza. Here, the Fourth Amendment violations were not substantial, and the Fourth Amendment is not a bar to the evidence for removal. Yanez-Marquez v. Lynch, 2015 U.S. App. LEXIS 10107 (4th Cir. June 16, 2015): Continue reading →
Posted inReasonableness|Comments Off on CA4 notes conflict in circuits in applying “egregious Fourth Amendment violation” for immigration removal cases
Officers had reasonable suspicion for a stop when they saw defendant’s car parked on the sidewalk. When they got out of their car, defendant walked toward the back of his car then fled. In the process he tossed a gun. They caught him, and there was probable cause by that time. United States v. Shields, 2015 U.S. App. LEXIS 10058 (7th Cir. June 15, 2015).*
Defendant’s warrantless blood draw violated McNeely. Natural dissipation of blood is not an exigent circumstance. Commonwealth v. Myers, 2015 PA Super 140, 2015 Pa. Super. LEXIS 347 (June 15, 2015).*
The affidavit for the search warrant for child pornography here adequately showed probable cause based on evidence of file sharing. United States v. Pina, 2015 U.S. Dist. LEXIS 77114 (S.D.Ohio June 12, 2015).*
It was objectively reasonable for the officer to stop the defendant for speeding. The officer estimated 50-55 in a 35, and the majority goes along with that under Heien. The defense investigator used the video to conclude it was 35.8 at the most, and the dissent finds this whole thing “confounding.” United States v. Gaffney, 2015 U.S. App. LEXIS 10088 (8th Cir. June 16, 2015)*: Continue reading →
Posted inReasonable suspicion|Comments Off on CA8: Objectively reasonable to stop for speeding; dissent doesn’t buy it
Defendant’s stop was reasonably extended because defendant handed the officer an expired driver’s license. The totality of circumstances justified a frisk of defendant’s jacket. State v. Smith, 41661, 2015 Ida. App. LEXIS __ (June 15, 2015)*: Continue reading →
Posted inStop and frisk|Comments Off on ID: Defendant’s stop was reasonably extended because defendant handed the officer an expired driver’s license
"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.
