Defendant’s mother allowed him to store some boxes in her storage shed, and he didn’t have a reasonable expectation of privacy in the shed. When she consented to a search of the shed, that permitted the police to search closed boxes inside. Defense counsel thus wasn’t ineffective for not challenging the search. United States v. Goff, 2015 U.S. Dist. LEXIS 68463 (W.D. Va. May 27, 2015).*
Officers had probable cause to believe defendant was operating his Segway under the influence, so they had qualified immunity. Greenman v. Jessen, 2015 U.S. App. LEXIS 8807 (8th Cir. May 28, 2015).*
The evidence supported that the impoundment of defendant’s car after arrest was justified and conducted within policy. The car was stopped for equipment violations, and it shouldn’t be driven anyway. The record supports that the search was not a “general rummaging.” The state waived contesting standing by not arguing it below. Wilford v. State, 2015 Ind. App. LEXIS 423 (May 27, 2015).*
Sen. Rand Paul (R-Ky.) said on Saturday that he would block the Senate from passing an extension of the Patriot Act, which is set to expire at 12:01 a.m. Monday.
“Forcing us to choose between our rights and our safety is a false choice and we are better than that as a nation and as a people,” Paul said in a statement Saturday that was first reported by Politico. “So tomorrow, I will force the expiration of the NSA illegal spy program.”
Paul also opposes the USA Freedom Act, a bipartisan bill that passed the House. …
Posted inFISA|Comments Off on HuffPo: Rand Paul Vows To Block Patriot Act Extension
Despite the fact the officer called defendant’s mother about picking up his vehicle after his DUI arrest and gave her 15 minutes to get there, the officer could inventory the vehicle while waiting in case she didn’t show rather than wait for her then inventory. She did arrive, but the inventory was not suppressed. Jackson v. State, 2015 Tex. App. LEXIS 5360 (Tex. App. – Houston (14th Dist.) May 28, 2015).
Defendant’s car was backed into a parking space at night in a dimly lit parking lot and he quickly got out of the car when officers approached. The front license plate was missing, so it was suspected stolen. Concerns for the safety of the woman left in the car justified the intrusion. Then a weapon was seen in plain view. State v. Young, 2015-Ohio-2006, 2015 Ohio App. LEXIS 1934 (10th Dist. May 26, 2015).*
Defendant consented to an entry of his home for a welfare check for his missing girlfriend. Her keys were in his house, and he consented to their taking and being used. Her body was found in her trunk. State v. Bruce, 2015 S.C. LEXIS 194 (May 27, 2015).*
Seeing two pills in a small plastic baggie fall out of the glove compartment during a stop for expired tags when defendant was looking for his paperwork on the car was not subject to plain view. After all, pharmacy containers aren’t illegal, and that’s as consistent with innocent activity as criminal. Saying “what bag?” is not furtive. Also, statistical information not offered below couldn’t be considered on appeal [not mentioning judicial notice]. State v. Sanchez, 2015 N.M. App. LEXIS 57 (May 28, 2015): Continue reading →
Posted inPlain view, feel, smell, Reasonable suspicion|Comments Off on NM declines to find plain view supported seizure of two pills in a baggie that fell out of the glove compartment while driver looking for papers
In the Phua case, the FBI fake internet repair entry, the court also grants defendant’s motion to suppress other searches based on the product of the first illegal search because they depended on the first. United States v. Phua, 2015 U.S. Dist. LEXIS 69135 (D.Nev. May 28, 2015).
“[B]eing informed of the penalties under the State’s implied consent law making refusal to take a test a crime does not amount to coercion to take a chemical test. … We have likewise concluded that the implied consent advisory given prior to the onsite screening test alone is not coercive, merely by the reading of the advisory.” Rounkles v. Levi, 2015 ND 128, 2015 N.D. LEXIS 117 (May 27, 2015).*
Plaintiff’s illegal search claim was time barred. Puentes v. County of Santa Clara, 2015 U.S. App. LEXIS 8839 (9th Cir. May 28, 2015).*
Posted inConsent, Exclusionary rule|Comments Off on D.Nev.: Other searches in FBI fake internet repair entry case suppressed
Body cameras aren’t new, but since the spate of high-profile violent encounters between police and unarmed citizens — Michael Brown, Chris Lollie, Eric Garner, Marlene Pinnock and others — they’ve been at the center of our debate about how to reduce these types of incidents. Police in Washington and New York City have instituted body-camera pilot programs, Maryland Gov. Larry Hogan signed a law last month enabling their use in his state and Sen. Tim Scott is making a push for body-camera funding in Congress. These efforts can be effective, but they’re not a cure-all. Here are five myths about the power of body cams.
Posted inBody cameras|Comments Off on WaPo: Five myths about body cameras
Defendant NYPD police officer had no reasonable expectation of privacy in the department issued firearm allegedly misused in the line of duty. Defendant shot a fleeing man in the buttocks in a personal dispute and denied it in the initial report. In the course of the investigation, NYPD wanted the gun, and NYPD rules required production. People v. McLean, 2015 NY Slip Op 04512, 2015 N.Y. App. Div. LEXIS 4439 (2d Dept. May 27, 2015): Continue reading →
Posted inReasonable expectation of privacy|Comments Off on NY2: NYPD officer had no REP in recovery of service weapon used in a shooting per NYPD policy
Entry on a misdemeanor warrant was not unreasonable where an occupant said defendant was inside, following other authorities. State v. Schmidt, 2015 ND 134, 2015 N.D. LEXIS 132 (May 27, 2015): Continue reading →
Posted inArrest or entry on arrest|Comments Off on ND: Entry on a misdemeanor warrant was not unreasonable where an occupant said defendant was inside
DEEP in the desert in Utah, the National Security Agency (NSA), America’s signals intelligence branch, has built a $1.5 billion centre to scoop up and analyse data from the internet. The building includes its own water-treatment facility, electric substation and 60 back-up diesel generators. It will use over a million gallons of water a day. Its data-storage capacity would be enough, according to one estimate, to store a year of footage of round-the-clock video-recording of over a million people. At this centre, communications from across the globe are tapped directly from the fibre-optic backbone of the internet.
Posted inFISA|Comments Off on The Economist: Reviewing the surveillance state: America argues anew over how much snooping the NSA can do
Posted inBody cameras, Excessive force|Comments Off on Inside Edition: Cameras capture police throwing 8-month pregnant woman to the ground, handcuffing and arresting her
When legislators and governments introduce new national security measures, they often do so in the immediate aftermath of traumatic events. This means new surveillance tools are adopted hastily, with scant attention to important questions about whether the effectiveness of the measure justifies the associated financial costs and the intrusion into privacy and free expression rights.
The political dynamic is well-known and understandable: politicians across the spectrum feel pressure to act (or to be seen to act) decisively in the wake of such attacks. Might a rational, structured analysis of surveillance measures and their associated costs and benefits change this dynamic?
Posted inFISA|Comments Off on Center for Democracy and Technology: Can a Quantitative Approach Help Address Government Surveillance?
With debate about NSA spying continuing in the Senate, it’s worth looking at some of the historical and modern precedents for protecting our communications and communications data. A few highlights: …
Posted inFISA|Comments Off on Cato.org: Good Precedents against NSA Spying
Four states recognize the prohibitive collective knowledge. Texas does not. Even though some officers may know that reasonable suspicion has dissipated, the officer making the stop did not. O’Bryan v. State, 2015 Tex. App. LEXIS 5406 (Tex. App. – Ft. Worth May 28, 2015): Continue reading →
Posted inReasonable suspicion|Comments Off on TX2: Four states recognize the prohibitive collective knowledge but Texas does not
In a closely-watched case out of Miami [Davis], the Eleventh Circuit Court of Appeals redefined the zone of privacy for cell phone users. As the Tech World was focused on Miami for the second annual eMerge conference, the court issued an opinion permitting prosecutors to obtain records from mobile carriers—without a search warrant—allowing the tracking of an individual’s movements through his or her cell phone’s interaction with cell towers.
License plate scanners have become a fact of life. They’re attached to traffic lights, on police cars — even ‘repo’ staff use them. All those devices have created a torrent of data, raising new concerns about how it’s being stored and analyzed. Bryce Newell’s laptop is filled with the comings and goings of Seattle residents. The data comes from the city’s license plate scanner, acquired from the police through public disclosure requests. He plugs in a license plate number, uncovering evidence of long-forgotten errands.
Posted inSurveillance technology|Comments Off on NPR: Questions Remain About How To Use Data From License Plate Scanners
The informant hearsay in this was a mere uncorroborated statement with no basis of knowledge that the defendant was involved in creating a bogus Facebook account for another person as identity theft. A judge went ahead and signed off on the search warrant anyway. There was no probable cause, and the good faith exception did not apply because it was so obvious there was no probable cause. State v. Chesney, 2015 Miss. App. LEXIS 277 (May 19, 2015): Continue reading →
Posted inInformant hearsay|Comments Off on MS: Uncorroborated informant hearsay was so clearly deficient that the good faith exception did not apply
The community caretaking function applies to passengers, and here the passenger was standing half out of the sunroof of a car at 1:30 am. That was justification for a stop. State v. Rohde, 22 Neb. App. 926, 2015 Neb. App. LEXIS 95 (May 26, 2015).
Stipulated facts were offered in a DUI trial, but they were different for the motion to suppress. “Because the stipulated facts were not before the court at the motion to suppress and the parties assert different factual assumptions attendant to those facts, we do not consider them on review.” Failing to develop an argument on appeal is a virtual abandonment. State v. Valenzuela, 2015 Ariz. App. LEXIS 66 (May 26, 2015).*
The trial court credited that the officer smelled unburnt marijuana in the car, and that justified extending the stop. State v. Bourrage, 2015 Tenn. Crim. App. LEXIS 399 (May 26, 2015).*
Applying a sensitive analysis of Dunn and Jardines and “other societal norms establishing an objectively reasonable expectation of privacy,” the court concludes that a dog sniff outside the door of a motel room is not at all like that of a home. Essentially, there is no reasonable expectation of privacy in the common areas and walkways of a motel. Sanders v. Commonwealth, 2015 Va. App. LEXIS 179 (May 26, 2015) (Treatise § 17.02 n.2): Continue reading →
The trial court erred in quashing state AG subpoenas for business records that the businesses sought to protect for customer privacy. The state consumer protection civil investigative demands were valid under ECPA because it permits state subpoena. They were also valid under the Fourth Amendment and the state constitution because there is a judicial mechanism to challenge them before the records production. State ex rel. Koster v. Charter Communs., Inc., 2015 Mo. App. LEXIS 569 (May 26, 2015) (Treatise § 49.21): Continue reading →
Posted inSubpoenas / Nat'l Security Letters, Third Party Doctrine|Comments Off on MO: State AG civil investigative demands for third party records was valid under ECPA and Fourth Amendment; there is a remedy for overbreadth or burdensomeness
A second and third search of defendant’s computer for child pornography five years after the first one when defendant didn’t take a plea offer. That search was within the scope of the original warrant because the government still had the computer. United States v. Johnston, 2015 U.S. App. LEXIS 8620 (9th Cir. May 26, 2015) (see Treatise §§ 51.15 & 58.34).
During execution of a search warrant, the evidentiary value of other things was immediately apparent and the fact that others in the search team saw the same thing was not a violation of the warrant. United States v. Ogans, 2015 U.S. App. LEXIS 8676 (9th Cir. May 26, 2015).*
“The district court properly granted summary judgment on Khurana’s Fourth Amendment claims, because Khurana failed to raise a genuine dispute as to whether it would have been clear to reasonable inspectors that a warrantless search was unlawful, given prior written consent to unannounced inspections, and a subsequent verbal revocation of consent. See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (explaining two part test for qualified immunity).” Khurana v. North Central District Health Dept., 2015 U.S. App. LEXIS 8666 (9th Cir. May 26, 2015).*
Posted inQualified immunity, Warrant execution|Comments Off on CA9: CP search warrant authorized second and third searches five years after the first search because gov’t still had computer
"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.
