Officers independently corroborated the CI and that made the CI reliable. The fact they were innocent were still significant things that proved correct. Their observations were also consistent with drug transactions. United States v. De La Torre-Casas, 2015 U.S. Dist. LEXIS 70361 (D.Neb. June 1, 2015).*
“The record amply demonstrated that the agents, upon confronting Defendant after he opened the door, identified themselves, never drew their weapons or threatened Defendant, observed Defendant to be calm, and obtained his voluntary consent to enter and search the premises.” “If a defendant does not limit the scope of his consent to a search, the limits of the search extend to what is objectively reasonable or what ‘the typical reasonable person [would] have understood by the exchange between the officer and the suspect.’ Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991).” United States v. Poom-Medina, 2015 U.S. App. LEXIS 9065 (9th Cir. June 1, 2015).*
The stop and its extension was with probable cause and consent, so Rodriguez didn’t apply. United States v. Baez, 2015 U.S. Dist. LEXIS 70256 (E.D. Mich. June 1, 2015).*
Posted inConsent, Informant hearsay|Comments Off on D.Neb.: CI’s significant information was corroborated, albeit innocent in itself
The court agrees that an entry into the curtilage to search a trash container would implicate Jardines, but it finds here that the entry onto the front part of the defendant’s property to the trash container was still the area open to visitors and the curtilage was not violated. United States v. Edwards, 2015 U.S. Dist. LEXIS 70109 (E.D.Pa. May 29, 2015).
In this child pornography case, the government notified the court that officers were mistaken in their testimony that occupants of the house were handcuffed during the raid. The court reconvened and took testimony, and finds that the handcuffing had nothing to do with the finding of child pornography because it would have inevitably been found based on the warrant. This was harmless error if error at all. United States v. Mailloux, 2015 U.S. Dist. LEXIS 70104 (E.D.Pa. May 21, 2015).*
Defendant didn’t show counsel was ineffective for not arguing Jones applied to GPS placement two years before it was decided, adopting Davis good faith based on Karo and Knotts, which the circuit has already done in criminal cases. Freeman v. United States, 2015 U.S. App. LEXIS 9027 (June 1, 2015).*
Defendant is charged with arranging the murder of her soldier husband on a military base, and a military judge issued a search warrant. The fact the warrant had a computer generated signature is not a constitutional error. There is no constitutional requirement of a handwritten signature as long as the issuing judge performs the neutral and detached review the Fourth Amendment requires. United States v. Eubank, 2015 U.S. Dist. LEXIS 69919 (S.D.Ga. March 31, 2015), adopted 2015 U.S. Dist. LEXIS 69890 (S.D. Ga. May 29, 2015): Continue reading →
Posted inF.R.Crim.P. 41|Comments Off on S.D.Ga.: Computer generated signature on a search warrant not Fourth Amendment violation
Don’t overlook one key feature of surveillance reform and the passage of the USA Freedom Act: It came from legislation, not the Fourth Amendment. A court had wrongly allowed the bulk surveillance program that Congress had not actually authorized. When the public became aware of the program, Congress restricted the program by passing a new law.
Note what wasn’t a significant influence on the reform: the Fourth Amendment. All but one of the judges who ruled on the issue concluded that the Fourth Amendment wasn’t implicated by the bulk telephony metadata law. …
Posted inFISA|Comments Off on WaPo: Surveillance reform without the Fourth Amendment
The Senate passed a significant remake of U.S. surveillance powers Tuesday, after an internal split among Republicans delayed consideration of the bill and caused the legal authority for key counterterrorism programs to temporarily expire.
The USA Freedom Act, a bill that would end the National Security Agency’s practice of collecting troves of call data from telephone companies, passed on a 67 to 32 vote. It would instead mandate a six-month transition to a system in which the data would remain in private hands but could be searched on a case-by-case basis under a court order.
Posted inFISA|Comments Off on WaPo: Bill ending NSA phone data collection heads to Obama
Taking defendant’s driver’s license back to the patrol car to run it is a seizure of the person and not de minimus under Rodriguez. Reasonable suspicion is required. State v. Leak, 2015 N.C. App. LEXIS 445 (June 2, 2015) (2-1): Continue reading →
Posted inReasonable suspicion, Seizure|Comments Off on NC: Taking defendant’s driver’s license back to the patrol car to run it is a seizure of the person and not de minimus under Rodriguez; RS required
A federal judge Monday dismissed conspiracy and illegal gambling charges against wealthy Malaysian businessman Paul Phua after prosecutors admitted their case had collapsed.
Prosecutors fought the dismissal in court, but U.S. District Judge Andrew Gordon said it was the proper decision after prosecutors told him they no longer had enough evidence to present at trial.
Assistant U.S. Attorney Cristina Silva said prosecutors were considering appealing the dismissal and Gordon’s decision last week to throw out the bulk of the evidence.
Posted inUncategorized|Comments Off on D.Nev.: FBI Internet repair ruse case dismissed after gov’t says it can’t proceed; hasn’t decided whether to appeal
LEGISLATION TO reform the National Security Agency’s surveillance of telephone metadata and put it on a firmer legal footing has passed the House with a huge bipartisan majority. President Obama backs it, as does a bipartisan majority in the Senate. The Senate would have passed the bill, too, but for the machinations of the majority leader, Mitch McConnell (R-Ky.), who favored an ill-considered perpetuation of the status quo.
Posted inFISA|Comments Off on WaPo Editorial: Rand Paul should stop stalling the USA Freedom Act
As most anyone interested now knows, Congress last night now allowed Section 215 of the PATRIOT Act to sunset. This expiration appears to be a short-lived symbolic victory for privacy advocates, as the Senate is poised to move forward to restart the programs in question.
The temporary lapse of Section 215 was primarily the result of Senate Republican leadership’s continued unpopular effort to preserve the mass surveillance status quo, most notably the bulk collection of phone records. The temporary expiration was aided by the floor maneuverings of the National Security Agency critic and Republican presidential candidate, Sen. Rand Paul, R-Ky. While able to force an expiration of the invasive programs, Paul was unable to get a vote on any of his proposed amendments geared to strengthen privacy protections.
Posted inFISA|Comments Off on R Street: A guide through Senate amendments to the USA FREEDOM Act
WASHINGTON — The government’s authority to sweep up vast quantities of phone records in the hunt for terrorists expired at 12:01 a.m. Monday after Senator Rand Paul, Republican of Kentucky, blocked an extension of the program during an extraordinary and at times caustic Sunday session of the Senate.
Still, the Senate signaled that it was ready to curtail the National Security Agency’s bulk data collection program with likely passage this week of legislation that would shift the storage of telephone records from the government to the phone companies. The House overwhelmingly passed that bill last month. Senators voted, 77 to 17, on Sunday to take up the House bill.
Posted inFISA|Comments Off on NYTimes: Key Parts of Patriot Act Expire Temporarily as Senate Moves Toward Limits on Spying
The legal authority for several national security programs expired at midnight Sunday and will not be renewed for at least two days, after Senate Republican leaders were unable to maneuver around Sen. Rand Paul (R-Ky.), a presidential candidate who followed through on a pledge to block an extension of the law.
The Senate closed a rare Sunday session without approving the only legislation that would have averted a lapse in the authority — a House-passed bill that would provide for an orderly transition away from the most controversial program authorized under the current law: the National Security Agency’s bulk collection of call records from telephone companies.
Posted inFISA|Comments Off on WaPo: Sun sets on some NSA surveillance powers as Rand Paul foils extension
Defendant’s distancing himself from ownership and control of the vehicle searched by the government “effectively has eviscerated his ability to challenge the warrantless search of it.” He has no standing to suppress what his wife had. United States v. King, 2015 U.S. Dist. LEXIS 69697 (W.D. Pa. May 29, 2015) (Treatise § 4.03 n.14).
There were no exigent circumstances for an entry. The police were called to a domestic situation about 8:30 pm but didn’t get to the hospital to meet the victim until 10:30 pm. They went to the house about 11:45 pm. She said there was a shotgun in the house. Defendant was removed from the house and questioned. There was probable cause for his arrest. They applied for a search warrant about 3 am. Nothing is suppressed, his statement outside the house was valid, and defendant’s Franks motion fails. United States v. Cooper, 2015 U.S. Dist. LEXIS 69801 (D. Nev. February 25, 2015).*
Posted inEmergency / exigency, Standing|Comments Off on W.D.Pa.: Distancing oneself from ownership and control over the vehicle searched “effectively has eviscerated his ability to challenge the warrantless search of it.”
Defendant’s 12 cell phones could be seized as instrumentalities of a drug crime under a search warrant. Calling a number the officers obtained during a wiretap to identify a phone was not an illegal search. Turning on the phones just to see if one answered was not a search, and there was no separate search of the phones. United States v. Pacheco, 2014 U.S. Dist. LEXIS 184000 (W.D. N.Y. September 22, 2014).
New Mexico declines to adopt a reasonable suspicion standard for border searches under the state constitution. State v. Sanchez, 2015 N.M. LEXIS 152 (May 28, 2015)* [That would also be an exercise in futility because all border search cases would go federal and some not sent to the state courts].
The arresting officer here was not “plainly incompetent” for arresting plaintiff for possession of marijuana based on seeing two marijuana leaves. They lab tested negative for THC, which is not unheard of. The officer still gets qualified immunity. “Because the Constitution ‘does not guarantee that only the guilty will be arrested,’ New’s assertion that he was not in possession of marijuana ‘is largely irrelevant.’ Baker v. McCollan, 443 U.S. 137, 145 (1979).” New v. Denver, 2015 U.S. App. LEXIS 8913 (8th Cir. May 29, 2015).*
Not every movement in a car is a “furtive gesture.” The defendant was quiet and compliant before the officer decided to search the back seat area for “officer safety” solely because defendant reached that way. No other reason for a search was given. Here it wasn’t enough. People v. Smith, 2015 IL App (1st) 131307, 2015 Ill. App. LEXIS 413 (May 29, 2015): Continue reading →
Posted inUncategorized|Comments Off on IL: “Officer safety” here didn’t justify a search because of an alleged “furtive gesture” where defendant was quiet and compliant
“Defendant, who had prior contacts with the criminal justice system, provided his consent to search both orally and in writing, and he acknowledged that he had been notified of his right to refuse consent …. Although a large number of officers were present when defendant’s car was stopped on the highway, and although defendant was initially handcuffed, the officers did not all remain with defendant throughout the encounter, and the handcuffs were removed at the time defendant consented to the search. Furthermore, defendant was very cooperative with the police, not merely in terms of lack of resistance, but in candidly disclosing the presence of drugs in his car and apartment …. [¶] Defendant’s consent was not invalidated by an investigator’s advice to defendant that if he did not consent to the search, the police could get a warrant, and that the circumstances of the execution of the warrant could lead to the arrest of defendant’s father, who also lived in the apartment. The investigator had valid legal and factual grounds for making these statements, which were not threats to arrest defendant’s father, but warnings of a possible, less favorable alternative scenario ….” People v. Yoneyama, 2015 NY Slip Op 04566, 2015 N.Y. App. Div. LEXIS 4491 (1st Dept. May 28, 2015).
Posted inConsent|Comments Off on NY1: Voluntariness shown by experience with criminal justice system and advice of right to refuse; handcuffs removed before consent granted
Lifetime GPS monitoring of a doctor convicted of criminal sexual contact with a patient under 13 was a search under Grady, but it was reasonable. It is reasonable on balancing the government’s interest in keeping up with sex offenders and the defendant’s right of privacy. Also, defendant would be monitored on parole for the first part of that, and parolees have a far lesser expectation of privacy. People v. Hallak, 2015 Mich. App. LEXIS 1133 (May 28, 2015): Continue reading →
Posted inGPS / Tracking Data, Probation / Parole search|Comments Off on MI: Lifetime GPS monitoring of a sex offender is a search, and it is reasonable on a balancing of interests
Officers came to a motel room to arrest a person named in an arrest warrant they suspected was inside. After 30 minutes of surveillance, they went to the door and a lady answered and said she’d rented the room. Inside asleep in the back bedroom was the person wanted. Another person was there, too. The lady’s consent to enter the room to arrest and then search the room did not include searching a backpack belonging to another. No apparent authority shown. State v. Westlake, 2015 Ida. App. LEXIS 44 (May 28, 2015): Continue reading →
Posted inApparent authority|Comments Off on ID: Where hotel room occupant consented to search, no apparent authority shown for backpack that belonged to another in the room
The search warrant was overbroad and potentially a general warrant, but it was, essentially, close enough for government work and it wasn’t entirely clear a search warrant was necessary at the time to search a cell phone. The remedy is to suppress that which exceeds the clear terms of the warrant, the overseizure. Also, it was still done within the good faith exception [which certainly seems counterintuitive; a general warrant should not be subject to good faith]. United States v. Walker, 2015 U.S. Dist. LEXIS 69389 (D. Del. May 29, 2015)*: Continue reading →
Posted inGood faith exception, Overbreadth|Comments Off on D.Del.: Even though this SW was a “general warrant,” it was relied on in good faith
"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.
