“Relying on DePeiza, we have held that collective factors, including the officer’s training and nine years’ experience in the district, the history of firearms in the neighborhood, the late hour, the defendant’s head movements, his continuous placement of his hand inside his pants, and his accelerating evasion of the police established reasonable suspicion of unlawful possession of a firearm. … The facts of this case support a conclusion that Commonwealth v. DePeiza is controlling and the officer had reasonable suspicion to stop the defendant.” Also, defendant was known to the officer for a prior arrest for an armed home invasion. Commonwealth v. Colon, 2015 Mass. App. LEXIS 54 (May 22, 2015).*
Defendant was detained for 50 minutes during execution of a search warrant, and it was reasonable. He was ultimately arrested and Mirandized. United States v. Laborin, 2015 U.S. Dist. LEXIS 67281 (E.D.Cal. May 22, 2015).*
Posted inReasonable suspicion|Comments Off on MA: Flight and furtive movement to pants like holding a gun of a known felon RS
Four men charged in federal court with attempted murder in the shooting of an Oakland, California, police officer in 2013 are seeking to have evidence-–including the officer’s gun, which was found at one defendant’s apartment–-thrown out because they claim it was obtained through the warrantless use of a StingRay, a controversial cellphone surveillance device. As local police departments expand their surveillance and technology tactics, the unusual defense in a Bay Area criminal court could test whether police have the right to scoop up thousands of cellphone records without seeking court approval.
Posted inCell site simulators|Comments Off on Center for Investigative Reporting: Criminal suspects challenge legality of warrantless cellphone tracking
Cameras are ubiquitous — from the ones in our cellphones to the security cams in parking lots and shops. And just when you thought it couldn’t get harder to hide, live-streaming video is raising new questions about privacy. Streaming video cameras aren’t new, but new apps have made it super easy to stream from a smartphone. Periscope is popular because it can be streamed on Twitter, which recently purchased the app.
Posted inSurveillance technology|Comments Off on NPR: With Live Video Apps Like Periscope, Life Becomes Even Less Private
The GPS device in this case was put on defendant’s vehicle three years before Jones. Karo and Knotts were strong enough an indication that it was lawful that the Davis good faith exception would be applied to save the search. [Note that other courts disagree; thus, there’s a conflict.] People v. Leflore, 2015 IL 116799, 2015 Ill. LEXIS 510 (May 21, 2015): Continue reading →
Posted inGood faith exception, GPS / Tracking Data|Comments Off on IL finds Karo/Knotts strong enough to invoke Davis good faith to a pre-Jones GPS installation (creating a conflict)
The stop here was overlong under Rodriguez, but, of course, happened before. Here, however, the defendant was told he was free to leave, but the court finds that “There is no doubt that the defendant did not feel he was free to leave.” The continued stop was 30 minutes long and far more than de minimus and was unreasonable. Motion to suppress granted. United States v. Englehart, 2015 U.S. Dist. LEXIS 67111 (D. Neb. May 22, 2015), R&R 2015 U.S. Dist. LEXIS 67693 (D.Neb. May 7, 2015).
Defendant’s excessive nervousness and being overly fidgety justified extending the stop for a drug dog to arrive under Rodriguez. State v. Brock, 2015 W. Va. LEXIS 683 (May 22, 2015).*
Because this state requires a motion to suppress and a trial objection, the trial objection only being made to a little bit of all the evidence admitted, there is no reversible search issue. State v. Hargett, 2015 N.C. App. LEXIS 419 (May 19, 2015).*
Posted inBurden of proof, Reasonable suspicion, Reasonableness|Comments Off on D.Neb.: Defendant was clearly not free to leave and his 30 minute questioning was unreasonable and not even de minimus as in Rodriguez
Defendant was arrested at his home on probable cause but without a warrant in 2011 for a 2007 double murder. (Every judge thereafter concluded that there was, in fact, no probable cause.) At the time of arrest, defendant came out and was shoeless. A protective sweep was conducted and a rifle case was seen, but it was erroneously put in the search warrant affidavit that an “AK-47” was seen. He asked for shoes, and the officers believed they had consent to re-enter to retrieve them, and, in that room, another gun case was seen. Defendant did not preserve at trial the legality of the arrest but he did argue the search was unreasonable. At the suppression hearing, the government conceded the viewing of the alleged gun didn’t happen and was unreasonable and should be struck from the affidavit for search warrant. Defendant consented to the entry into his bedroom for the shoes, and he forfeited the consent argument in the district court, too. United States v. McMillian, 2015 U.S. App. LEXIS 8567 (7th Cir. May 22, 2015).
Posted inBurden of proof|Comments Off on CA7: An unspecific motion to suppress led to forfeiture of arguments for appeal
Applying Summers and Bailey, defendant approached a four unit apartment building as police were executing a search warrant, and he was properly detained. The size of the apartment building and his proximity made it reasonable. It turned out that defendant had text messaged the occupant about a drug deal, and the officer making the initial stop didn’t even know that yet. State v. Davis, 2015 Ida. App. LEXIS 41 (May 22, 2015): Continue reading →
Posted inReasonable suspicion|Comments Off on ID: For stop of a person in proximity to searched premises, courts have to evaluate the layout, size of premises, and where it happened
In a child pornography case, the district court properly denied discovery of “law enforcement tools … [used] to assess information in connection with the particular GUID … associated with Mr. Pirosko’s computer equipment” to show how they found it and entered it when on a peer-to-peer network. All defendant had was a letter from an expert that mentioned that there was no indication that the government didn’t manipulate the data. This was also insufficient to even attempt to form the basis of a Franks challenge since it was all speculative. United States v. Pirosko, 2015 U.S. App. LEXIS 8364 (6th Cir. May 21, 2015): Continue reading →
Posted inBurden of proof|Comments Off on CA6: Motion to compel discovery of software used to search computer on P2P network properly denied
Cameras mounted inside patrol cars captured every moment.
With their guns drawn, Gardena, Calif., police officers screamed instructions at three men on the sidewalk. The officers warned them to keep their hands above their heads, mistakenly believing that they had been involved in a robbery.
Exactly what happened next is in dispute, but what is undisputed that the men were unarmed when police opened fire, killing one and seriously wounding another.
Afterward, the Gardena Police Department allowed the officers — over the objection of a sheriff’s investigator — to review video of the incident. But the department has refused to make the videos public, even after the city agreed to pay $4.7 million to settle a civil rights lawsuit over the shooting.
Posted inExcessive force|Comments Off on LATimes via MSN: Privacy often trumps transparency with police shooting videos
The Obama administration is weighing what the looming expiration of three counterterrorism laws — including the provision that has been cited to allow the National Security Agency to vacuum up logs of Americans’ phone calls — would mean for future operations, even as officials say the ‘wind-down process’ for the bulk calling data program has already begun.
Posted inFISA|Comments Off on NY Times: Obama Weighs Strategy as Data Laws Run Out
The GOP senators’ clash on surveillance suggests that Rand Paul’s 2016 hopes loom over the “tight” bond described by Senate Majority Leader Mitch McConnell. [And they are from the same state.]
Posted inFISA|Comments Off on WaPo: Kentucky conflict? Paul, McConnell start to clash [over NSA]
Defendant had a reasonable expectation of privacy as to his realtime cell phone location information, and the failure of the police to get a search warrant or show exigent circumstances requires suppression. Herring v. State, 2015 Fla. App. LEXIS 7750 (Fla. 1st DCA May 22, 2015) (see Treatise § 42.23 n. 3 & 3.2): Continue reading →
Posted inCell site location information|Comments Off on FL1: Failure to show exigency or get SW for realtime CSLI required suppression
Defendant was stopped for going 28 in what the officer fairly believed was a 20 zone, “‘more years than anyone knew.’” The officer was a life long resident of the city. In reality, the speed limit had been raised to 30, but the sign had been knocked down. The court concludes that it was all a reasonable mistake of fact and law and refused to suppress the fact defendant was found under the influence. City of Atwood v. Pianalto, 2015 Kan. LEXIS 352 (May 22, 2015): Continue reading →
Posted inReasonableness|Comments Off on KS: Reasonable mistake of fact found from speeding stop where defendant wasn’t actually speeding
The court grapples at length with whether a trailer hitch blocking a LPN is an offense and concludes that the statute is ambiguous, and the defendant can’t be convicted for that traffic offense. On the larger question, however, the court finds that the ambiguous nature of the statute made the officer’s mistake of law reasonable under Heien, which the court follows, despite the defense argument that Illinois applies its exclusionary rule more expansively than SCOTUS. People v. Gaytan, 2015 IL 116223, 2015 Ill. LEXIS 502 (May 21, 2015): Continue reading →
Posted inReasonableness|Comments Off on IL follows Heien in a stop under an ambiguous traffic code section; it was a reasonable mistake of law
Defendant was driving a stolen truck identified by a license plate reader. After his arrest, a black shaving kit in the truck was inventoried, and it should have been inventoried without opening it. Also, the state didn’t contest standing below, and the defense didn’t brief it on appeal. “Wisdom lacks notice that this court might consider his standing and thus has no opportunity to address the issue. ‘[T]here are obvious due process problems in affirming a trial court ruling in a criminal proceeding on an alternative theory against which the defendant has had no opportunity to present an argument.’ State v. Adamski, 111 Wn.2d 574, 580, 761 P.2d 621 (1988).” [Note that almost all other states would find no standing in a stolen vehicle, but apparently the prosecutor chose to waive this below.] State v. Wisdom, 2015 Wash. App. LEXIS 1054 (May 19, 2015) (decision under state constitution).
http://www.courts.wa.gov/opinions/pdf/318320.pub.pdf
A burned out license plate light is reason for a stop. The trial court’s credibility determinations underlying the conclusion of consent to search were binding on appeal. State v. Risius, 2015 Iowa App. LEXIS 430 (May 20, 2015).*
Posted inConsent, Inventory|Comments Off on WA does not permit inventory of a closed container not tied to offense
Defendant was asked for consent to enter his apartment, and he stepped to the side and waved his arm gesturing to come in. He manifested consent by his actions. United States v. Duran, 2015 U.S. Dist. LEXIS 65777 (D. Minn. April 21, 2015), adopted 2015 U.S. Dist. LEXIS 65999 (D. Minn. May 19, 2015).
Defendant’s 2255 claim over alleged illegal seizure of evidence is undermined by the guilty plea where the only information mentioned was not even the product of a search. Lewis v. United States, 2015 U.S. Dist. LEXIS 65951 (E.D. N.C. May 20, 2015).*
The officer in this case was cruising a Kroger parking lot using the license plate scanner. She approached defendant because he was suspicious, but, on cross, could not identify any potential crime at all. The stop was without reasonable suspicion, and the trial court correctly suppressed the evidence. [Not looking at a police officer was considered suspicious. ¶10. How many cases have said that staring at a police officer is suspicious? Apparently some form of acknowledgment is required in this city.] State v. Dickman, 2015-Ohio-1915, 2015 Ohio App. LEXIS 1835 (10th Dist. May 19, 2015).*
Defendant was stopped on the street in NYC because the officer thought that he was somebody else. Actually, it was fairly obvious that they didn’t look alike. Moreover, defendant produced a valid ID in his real name, and it was apparent that he wasn’t the man the officer was looking for. The officer frisked him anyway “uncovering a gun and 27 bags of crack.” Assuming reasonable suspicion, which isn’t at all apparent, the frisk was unreasonable. The government’s position would lead to the search of any black man when a black man is sought. United States v. Watson, 2015 U.S. App. LEXIS 8377 (2d Cir. May 21, 2015): Continue reading →
Posted inReasonable suspicion|Comments Off on CA2: Virtually intentional frisk of wrong man was manifestly unreasonable
"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.
