In a RICO conspiracy case, the affidavit for a search warrant for cell phones to look for evidence of defendant’s using cell phones to plan crimes adequately showed probable cause to believe evidence of their contact would be found on the cell phones. United States v. Jefferson, 2015 U.S. Dist. LEXIS 72743 (E.D.Mich. June 5, 2015).*
A nine year old girl at a sleep over at defendant’s house told her mother that she “dreamed” that defendant had taken off her pajama bottoms and photographed her. Defendant admitting going in the room but not to photographing her. A search warrant issued for child pornography, and some was found that defendant had created. The district court credited that this was a euphemism for describing something that actually happened. Granting the warrant the deference it deserves, it was issued with probable cause. United States v. Aleshire, 2015 U.S. App. LEXIS 9428 (7th Cir. June 5, 2015).*
A stopped motorist swinging at another motorist stated reasonable suspicion. The officer did not see contact being made, but there was still reasonable suspicion. State v. Evans, 2015 Ariz. LEXIS 189 (June 4, 2015).*
Posted inCell phones, Probable cause|Comments Off on E.D.Mich.: Affidavit for SW for cell phones in RICO conspiracy showed PC that phones were used for planning crimes
Riley on cell phone searches applies to computer searches. Defendant had a reasonable expectation of privacy in his files. He took his computer to Circuit City to have a DVD burner put on his computer, and the store technician decided to test it by opening video files, which wasn’t necessary, but he did, and child pornography was found. He called the police. When they arrived, the computer had to be reopened, and the file was clicked on again. The video file wasn’t in plain view, and the trial court properly granted the motion to suppress. [Private search doctrine not discussed.] Commonwealth v. Sodomsky, 2015 PA Super 133, 2015 Pa. Super. LEXIS 324 (June 5, 2015) (2-1, dissent here): Continue reading →
Once called the “library provision,” Section 215 of the Patriot Act forced libraries to become headliners in the battle waged to protect American freedoms. Producer Karen Duffin tells the origin story of the clash that began over a decade ago.
A call about a panhandler did not justify his frisk. While the call accurately described him, there was not crime at all. An accurate description alone isn’t corroboration of anything. The frisk was invalid. State v. Walter, 2015 SD 37, 2015 S.D. LEXIS 70 (May 27, 2015): Continue reading →
Posted inStop and frisk|Comments Off on SD: Frisk of an accurately described panhandler didn’t allege a crime and was invalid
Washington (CNN)–The Obama administration’s effort to save the government’s access to bulk records of phone calls for national security investigations is running into a new conservative court challenge.
Former Virginia Attorney General Ken Cuccinelli and the tea party-linked Freedom Works Foundation filed a legal motion Friday with the Foreign Intelligence Surveillance Court seeking to stop the government from restarting the program run formerly by the National Security Agency. The previous program expired June 1, along with certain authorities under the Patriot Act.
Posted inFISA|Comments Off on CNN: New conservative legal challenge to NSA phone data program
The district court made credibility determinations and found defendant’s wife consented to a search of their house, and defendant consented to a search of a safe. The fact the police did not leave a full copy of the search warrant at the house was not constitutional error. United States v. Durante, 2015 U.S. App. LEXIS 9242 (3d Cir. June 3, 2015).
The fact the officer cited the wrong statute number from memory was immaterial; the traffic offense was still there. The continued detention was justified by reasonable suspicion. United States v. Zuniga, 2015 U.S. App. LEXIS 9346 (6th Cir. June 1, 2015).*
Defendant consented to his blood draw. The word “officer” in the broad consent form was not limited to a police officer, and it included a phlebotomist working for the state police. Defendant’s argument that it couldn’t apply to the phlebotomist is “hypertechnical.” State v. Hobbs, 2015 Del. Super. LEXIS 261 (May 29, 2015).*
The community caretaking exception does not apply to homes, citing conflicting authorities. Here, defendant was believed by the police to have an excessive amount of mercury in his house, something not contraband. A firefighter trained in hazardous materials entered the house to look for it and found a small quantity of marijuana, and defendant was charged with that. The entry was unlawful. State v. Wilson, 2015 Ariz. LEXIS 188 (June 3, 2015), lower court op. 235 Ariz. 447, 333 P.3d 774 (App. 2014): Continue reading →
Posted inCommunity caretaking function|Comments Off on AZ: The community caretaking exception does not apply to homes
While pawnbrokers are regulated, they can’t be compelled to upload all their information about acquisitions into a database to make the NYPD’s job easier. What is to be uploaded is too broad, and that’s a general search. Collateral Loanbrokers Assn. of N.Y., Inc. v City of New York, 2015 N.Y. Misc. LEXIS 1903, 2015 NY Slip Op 50847(U) (Bronx Co. June 3, 2015): Continue reading →
Posted inAdministrative search|Comments Off on NY Bronx: Pawnbrokers can’t be compelled to upload all their acquisition information; becomes a general search without restraint
The continued detention of the defendant passenger in a car, incidental to the stop of the driver, pending the inventory of the car was reasonable. The trial court resolved a fact dispute and concluded that defendant consented to a search of his person. State v. Starks, 2015-Ohio-2137, 2015 Ohio App. LEXIS 2060 (9th Dist. June 3, 2015).
Three controlled buys from defendant’s house provided probable cause to believe that evidence would be found there. Trial court’s grant of the motion to suppress is reversed. State v. Myers, 2015-Ohio-2135, 2015 Ohio App. LEXIS 2058 (9th Dist. June 3, 2015).*
The trial court found that, under defendant’s version, he wasn’t stopped, and it made no credibility determination at all. Remanded for a consideration of whether he was, in fact, stopped. State v. Williams, 271 Or. App. 481 (June 3, 2015).*
Posted inProbable cause, Reasonableness, Seizure|Comments Off on OH9: Where the car in which defendant was a passenger was going to be inventoried, def’s detention for officer safety was reasonable
The use of forensic software to search a computer in a child pornography case does not exceed the scope of search defined in the warrant, and it does not constitute a general rummaging. United States v. Perez, 2015 U.S. Dist. LEXIS 71500 (E.D.Pa. June 2, 2015): Continue reading →
Posted inScope of search|Comments Off on E.D.Pa.: Use of forensic software to search a computer in a child pornography case is not a general rummaging
On remand from the Supreme Court, the state asserted an argument never made in the trial court, and it’s treated as waived since there was no factual development. The prior decision is adhered to. State v. Heater, 271 Or. App. 538, 2015 Ore. App. LEXIS 660 (June 3, 2015). Prior history: State v. Heater, 263 Or. App. 298, 328 P.3d 714, vac’d and rem’d, 356 Or. 574, 342 P.3d 87 (2014).
Defendant was an off-duty police officer arrested for DUI after backing into a car at a club he was kicked out of. The detention was not unreasonably long because there was a departmental policy to call a supervisor in such situations. Besides, there was reasonable suspicion. Alvarado v. State, 2015 Tex. App. LEXIS 5538 (Tex. App. – Houston (1st Dist.) June 2, 2015).*
Plaintiff, allegedly wearing provocative clothing, was detained for being in the presence of a pimp in a Las Vegas casino. She said she was there to meet her boyfriend, and her detention was guilt by association. She stated a claim for relief. Goodman v. Las Vegas Metro. Police Dep’t, 2015 U.S. App. LEXIS 9165 (9th Cir. June 2, 2015).*
The “stalking horse” theory of police involvement in probation searches is apparently no longer valid. United States v. Flowers, 2015 U.S. Dist. LEXIS 71673 (M.D.Pa. May 14, 2015): Continue reading →
Posted inProbation / Parole search|Comments Off on M.D.Pa.: “Stalking horse” theory of police involvement in probation searches is apparently no longer valid
Police received a 911 hang up call, and the call back was unanswered. They are treated as emergencies, and two officers responded. No one answered the door, so they went to a window to look in, and a marijuana plant was seen. The officer turned around and saw other plants outside. This was a community caretaking function entry onto the property, and it was reasonable. State v. Bennett, 2015 Ariz. App. LEXIS 80 (June 2, 2015).
An entry to make an arrest permitted a protective sweep. United States v. Bowen, 2015 U.S. Dist. LEXIS 70967 (W.D. Mo. April 20, 2015).*
The trial court’s suppression order of a fire scene search based on a joint venture theory between the insurance investigator and the sheriff’s officer was not appealable by the state pretrial in Arkansas because it was based on unique facts and not a general application of law. State v. Brashers, 2015 Ark. 236, 2015 Ark. LEXIS 391 (May 28, 2015).*
Defendant was on the premises of another when the search occurred, but he was a social guest at the moment, and not an overnight guest with stuff there. The case law grants higher standing to an overnight guest. While it might be possible that a mere social guest during the day may have standing in the right case with the right facts, this isn’t the one. United States v. Rose, 2015 U.S. App. LEXIS 9216 (3d Cir. June 3, 2015): Continue reading →
Posted inStanding|Comments Off on CA3: Social guest without belongings on premises for day lacked standing; leaving open standing question for better facts later
Defendant has the burden of establishing standing. At the hearing, the government contested standing, and defendant didn’t respond or brief it. Therefore, standing was waived. United States v. Tolbert, 2015 U.S. Dist. LEXIS 71047 (N.D.Ga. April 30, 2015).*
Probable cause was shown on the face of the affidavit. Moreover, “The Affidavit supporting the search warrant in this case was not a bare-boned statement of conclusory allegations characteristic of the affidavits found so lacking in indicia of probable cause that they fall outside the good faith exception.” United States v. Mobely, 2015 U.S. Dist. LEXIS 71046 (N.D.Ga. April 29, 2015).*
An anonymous tip from a “concerned citizen” that a person in a particular car was selling heroin from a casino hotel room was sufficiently corroborated for issuance of a search warrant, including what appeared to be persons coming and going from the room staying only a couple of minutes and leaving with a small object in hand. When the USDJ adopted the R&R: even if there was no probable cause, it was not so lacking in PC that the good faith exception could not be relied upon. United States v. Adkins, 2015 U.S. Dist. LEXIS 71821 (D.Minn. April 17, 2015),* adopted 2015 U.S. Dist. LEXIS 70184 (D. Minn. June 1, 2015).*
The USA Freedom Act, which the Senate approved Tuesday, still threatens the constitutional rights of Americans
This week President Barack Obama suffered a serious rebuke. Congress sent the president a bill that he signed that tells him his illegal bulk collection of phone records must end.
Apologists for collecting all the phone records of all Americans all of the time now belatedly say they are OK with ending the bulk collection program. They want you to know that your records are not really protected by the Fourth Amendment. They are only doing you a favor by granting you this reform.
Posted inFISA|Comments Off on Time: Sen. Rand Paul: Don’t Trust a Lying Government
The FBI won’t tell you how its drone usage affects your privacy. It has withheld every page of its Privacy Impact Assessment from FOIA requesters. In fact, it now claims it can’t even find the withheld document, so that avenue appears to be a dead end. The DOJ, which oversees the FBI, hasn’t offered any further insight into its assorted agencies’ drone usage (other than those forced out of its hands in relation to its justification for killing people with weaponized drones). It’s been almost a decade since the first reported use of (non-killing surveillance) drones under the DOJ’s watch, and only now do we get to see how it weighs citizens’ privacy against the needs of law enforcement.
Posted inDrones|Comments Off on techdirt: DOJ Releases Surveillance Drone Policy, Undercuts Accountability Claims By Exempting It From Use In Court
The U.S. Drug Enforcement Administration more than tripled its use of wiretaps and other types of electronic eavesdropping over the past decade, largely bypassing federal courts and Justice Department lawyers in the process, newly obtained records show. The DEA conducted 11,681 electronic intercepts in the fiscal year that ended in September. Ten years earlier, the drug agency conducted 3,394.
Posted inSurveillance technology|Comments Off on USA Today: DEA eavesdropping tripled, bypassed federal courts
● Missouri attorney general’s report finds that black drivers in the state are 75 percent more likely to be pulled over, although white drivers are more likely to be found with contraband.
Posted inUncategorized|Comments Off on WaPo: Afternoon links: Missouri AG’s report finds mass racial discrepancy in traffic stops
Plaintiff was detained too long after it was obvious that he was not the person they were looking for with the same last name during a familial dispute. That right was clearly established. There was no other independent justification. Martinez v. Mares, 2015 U.S. App. LEXIS 9126 (10th Cir. June 2, 2015).
The woman who called the police, who came outside to meet them, and invited them into the house had apparent authority, as far as they were concerned, to consent to the entry. She was not the primary tenant, but she was there visiting. When defendant came out of a room and found police inside his house, he never objected to the police presence, and that was a further sign of her apparent authority. United States v. Chavez, 2015 U.S. Dist. LEXIS 70514 (D.Nev. June 1, 2015).*
Defendant was stopped as a suspect in a Radio Shack robbery. After a few seconds, he ran away, and he was arrested. Eleven days later, police conducted a parole search of his house, and it was valid. Everything they could find listed his address at the place searched, and that was probable cause to believe he lived there. United States v. Velez, 2015 U.S. Dist. LEXIS 70635 (N.D.Cal. June 1, 2015).* His flight created reasonable suspicion on the totality even though this was not a high crime area. United States v. Velez, 2015 U.S. Dist. LEXIS 70640 (N.D. Cal. June 1, 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.
