Denial of a suppression hearing is reviewed for abuse of discretion. Here, there were no contested facts, and the district court found that the use of a flashlight to illuminate defendant’s car seeing a gun in plain view was reasonable. United States v. Lake, 2015 U.S. App. LEXIS 8058 (9th Cir. May 15, 2015).*
Temporary seizure of a weapon may be necessary for officer safety. Then, when the police discover that the defendant is a convicted felon, the evidentiary value of the gun becomes apparent. United States v. Parker, 2015 U.S. Dist. LEXIS 61939 (E.D. La. May 12, 2015).*
Defendant’s 2255 was way off the mark; disjointed and rambling, including a purported Franks issue, and it failed to provide any basis for concluding that defense counsel was ineffective for not pursuing a losing motion. United States v. Tillage, 2015 U.S. Dist. LEXIS 62292 (E.D. Tenn. May 8, 2015).*
A few weeks ago, fellow Post blogger Orin Kerr put up a post arguing that contrary to what you may commonly read, on Fourth Amendment cases the Supreme Court usually is as likely to rule against the government as in favor of it.
He makes a convincing argument. But I think there’s another factor we need to consider: In the real world, the decisions that uphold Fourth Amendment rights often don’t matter.
Posted inSCOTUS|Comments Off on WaPo: The Supreme Court’s Fourth Amendment irrelevance
The EEOC issued an administrative subpoena to a Catholic hospital system that fired one employee under its no-fault attendance policy. The warrant, which demanded information of all terminations by the faith-based nonprofit healthcare provider, was upheld by a federal court under ridiculously non-existent Fourth Amendment standards. Continue reading →
Posted inSubpoenas / Nat'l Security Letters|Comments Off on American Thinker: EEOC’s judge-less warrant to Catholic hospital is sign of what’s to come [?]
The inspection requirement of 18 U.S.C. § 2257A on porn actors age records fails the Fourth Amendment because there is nothing in the language of the statute that makes manufacture of pornography “highly regulated” for administrative inspections. The record keeping requirement, however, is constitutional under the First Amendment. Free Speech Coalition v. Attorney General of the United States, 2015 U.S. App. LEXIS 7941 (3d Cir. May 14, 2015): Continue reading →
Posted inAdministrative search|Comments Off on CA3: The porn industry is not “closely regulated” to permit warrantless records inspections of ages of performers
Following other states, a university fraternity house is a “home” for Fourth Amendment purposes, not like a hotel or apartment building. The officer’s warrantless entry into the frat house was unreasonable. This started as a knock-and-talk, but nobody answered, so they entered through the door that was ajar. Milam v. Commonwealth, 2015 Ky. LEXIS 1617 (May 14, 2015): Continue reading →
Defendant’s refusal to consent to a search of her purse can’t even be a factor in reasonable suspicion. Moreover, information about past or even recent drug use isn’t reasonable suspicion of drug use at a later time. State v. Barker, 271 Or. App. 63, 2015 Ore. App. LEXIS 580 (May 13, 2015): Continue reading →
Posted inConsent, Reasonable suspicion|Comments Off on OR: Refusal to consent to a search of purse can’t even be a factor in reasonable suspicion
The court declines to adopt a per se rule that occupying a stolen vehicle means no standing. The defendant’s knowledge is integral to that question, and the case is remanded for that finding. State v. Taylor, 2015 N.J. Super. LEXIS 75 (May 12, 2015): Continue reading →
Posted inStanding|Comments Off on NJ: No per se rule on no standing in a stolen vehicle; knowledge required
Because defendant was known to have weapons and associated with violent persons, a protective sweep of his SUV was permissible under the Fourth Amendment and the state constitution. State v. Francis, 2015 N.H. LEXIS 38 (May 12, 2015).
Hand-to-hand drug sales from defendant’s car were probable cause for an automobile search. Under state law there must be substantial compliance with parole search regulations, but here there wasn’t. State v. Watson, 2015 Del. Super. LEXIS 235 (May 8, 2015).
“[T]he good faith exception to the exclusionary rule does apply to wiretap applications and orders according to United States v. Malekzadeh, ‘[855 F.2d 1492, 1497 (11th Cir.1988)].” United States v. Jackson, 2015 U.S. Dist. LEXIS 61618 (M.D.Ga. May 12, 2015).*
The Ohio legislature decided that open carry is permissible with a CCW. Plaintiff was stopped and handcuffed for thirty minutes and let go. He states a claim and qualified immunity is no defense. “Where it is lawful to possess a firearm, unlawful possession ‘is not the default status.’” Northrup v. City of Toledo Police Dep’t, 2015 U.S. App. LEXIS 7868 (6th Cir. May 13, 2015): Continue reading →
“Vehicles parked within the curtilage of a dwelling to be searched pursuant to a warrant may also be searched pursuant to that warrant,” so counsel couldn’t be ineffective for not challenging the searches. McLeod v. State, 2015 Ga. LEXIS 300 (May 11, 2015).
Defendant’s stop for not using a signal was reasonable, and the smell of marijuana in the car was probable cause for a search. United States v. Gadson, 2015 U.S. Dist. LEXIS 61210 (W.D. Mo. April 17, 2015).*
Defendant had his hands in a bag, and there was reasonable suspicion for a search of the bag for a weapon. United States v. Bryant, 2015 U.S. Dist. LEXIS 62599 (M.D. N.C. May 13, 2015).
Posted inCurtilage, Stop and frisk|Comments Off on GA: SW for house includes all vehicles on curtilage associated with it
Giving one’s cell phone over to another to use for drug dealing was a loss of any reasonable expectation of privacy in it. United States v. Brewer, 2015 U.S. Dist. LEXIS 62260 (M.D.Pa. May 12, 2015): Continue reading →
On a midsummer evening, Shawn and Denise Northrup went for a neighborhood walk with their daughter, grandson, and dog. Apparently in a happy-go-lucky mood, Shawn wore a t-shirt reading, “This Is The Shirt I Wear When I Don’t Care.” Shawn carried a cell phone, which he holstered on his hip — next to a black semiautomatic handgun.
A passing motorcyclist stopped to complain about Shawn’s visible firearm. The stranger, Alan Rose, yelled, “[Y]ou can’t walk around with a gun like that!” But “[O]pen carry is legal in Ohio!” Denise responded. As the Northrups walked away, Denise and Rose exchanged increasingly unprintable words until he was out of view (and earshot).
. . .
The police eventually arrived, ordered Northrup to stop, demanded that he turn over the gun, handcuffed him, and kept him handcuffed in a police car for 30 minutes. Eventually, they let him go, and all charges were dropped. Northrup sued, and the Sixth Circuit allowed the case to go forward:
Posted inReasonable suspicion|Comments Off on WaPo: The Fourth Amendment and open carry of guns (where such open carry is legal)
When only a patdown for weapons is authorized, manipulating the pockets to further discern the contents is an unreasonable search. Here, the video of the stop showed it all. Commonwealth v. Griffin, 2015 Pa. Super. LEXIS 256 (May 12, 2015): Continue reading →
Posted inStop and frisk|Comments Off on PA: When only a patdown for weapons is authorized, manipulating the pockets to further discover the contents is an unreasonable search
In explaining a guilty plea, it isn’t necessary for counsel to explain to the client all the legal theories for and against a search (among other issues) before discarding them. Counsel was not ineffective. Chrzaszcz v. United States, 2014 U.S. Dist. LEXIS 183824 (D.Ariz. December 17, 2014):
Any counsel evaluating a case may consider a myriad of potential legal issues, and ultimately conclude that they are not sufficiently applicable to warrant confusing an untrained client by raising them to the client and then dismissing them as untenable. For example, counsel does not avow that he explained a Fourth Amendment search and seizure defense, or an extradition defense, or a hearsay defense, only to dispose of them as untenable. Reasonable counsel does not engage in a pointless dissertation of legal theories with his client, but provides a cogent, understandable analysis based on factors relevant to his client evaluating a plea agreement. The record indicates that it was defense counsel did in this case.
Posted inIneffective assistance|Comments Off on D.Ariz.: In rejecting a search argument, defense counsel isn’t obligated to explain all the legal theories to the client to then discount them
Officers did not have actual authority to search a guest’s backpack during a consent search, but it wasn’t clear whose backpack it was, so the search here was lawful. State v. Jackson, 2015 Iowa App. LEXIS 400 (May 6, 2015).
Defendant not only happened upon execution of a search warrant, but he was mentioned in the affidavit as somebody who traded stolen guns for methamphetamine. It was, therefore, reasonable to draw down on him and handcuff him at the time. Defendant consented to a search of his own place then withdrew it. A search warrant was obtained. There was a typographical error inside as to the county involved, but that’s hardly a constitutional violation. It was apparent what was being searched. United States v. Franks, 2015 U.S. Dist. LEXIS 60962 (E.D. Tex. May 4, 2015).*
Posted inScope of search, Warrant requirement|Comments Off on IA: Search of guest’s backpack was reasonable when it wasn’t clear whose it was
An affidavit’s sufficiency is determined based on its actual contents, not what it allegedly lacks or could have been added, citing United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000) (en banc)). This is a forgiving standard. Here, there was sufficient corroboration of the CI to give probable cause. United States v. Ben, 2015 U.S. Dist. LEXIS 61200 (W.D.Ky. May 11, 2015).
A person with apparent authority consented to a search during a knock-and-talk, and defendant’s consent wasn’t required. United States v. Thompson, 2015 U.S. Dist. LEXIS 61201 (W.D.Tenn. May 11, 2015), R&R United States v. Thompson, 2015 U.S. Dist. LEXIS 62111 (W.D.Tenn. April 21, 2015).*
Parole officers had reasonable suspicion defendant had a gun in his apartment to justify a parole search. There was no factual basis to believe there were explosives, but discarding that from the equation still left enough. United States v. Vang, 2015 U.S. Dist. LEXIS 61099 (E.D. Pa. May 8, 2015).*
Posted inConsent, Probable cause, Probation / Parole search|Comments Off on W.D.Ky.: An affidavit’s sufficiency is determined based on its actual contents, not what it allegedly lacks or could have been added
Posted inSurveillance technology|Comments Off on Sputnik: Federal authorities have dropped their appeal of a ruling in Washington State against a police department that nailed a webcam to a utility pole to spy on a suspect’s house 24 hours a day, for weeks on end
Politico has put up a fascinating profile of Jim Pasco, executive director of the Fraternal Order of Police, which is the country’s largest police union.
More than anything, the profile highlights how law enforcement is politically positioned in a way that basically immunizes from criticism and oversight. Republicans have long been loathe to criticize police and police unions because they see themselves as the law-and-order party, despite the fact that deference to police ought to run afoul of their alleged dedication to limited government, and that Pasco’s group ought to animate the GOP’s distrust of public service unions.
Posted inPolice misconduct|Comments Off on WaPo: The increasing isolation of America’s police
Joseph Rivers was hoping to hit it big. According to the Albuquerque Journal, the aspiring businessman from just outside of Detroit had pulled together $16,000 in seed money to fulfill a lifetime dream of starting a music video company. Last month, Rivers took the first step in that voyage, saying goodbye to the family and friends who had supported him at home and boarding an Amtrak train headed for Los Angeles.
He never made it. From the Albuquerque Journal:
A DEA agent boarded the train at the Albuquerque Amtrak station and began asking various passengers, including Rivers, where they were going and why. When Rivers replied that he was headed to LA to make a music video, the agent asked to search his bags. Rivers complied.
The agent found Rivers’s cash, still in a bank envelope. He explained why he had it: He was starting a business in California, and he’d had trouble in the past withdrawing large sums of money from out-of-state banks.
The agents didn’t believe him, according to the article. …
Posted inForfeiture|Comments Off on WaPo: How the DEA took a young man’s life savings without ever charging him with a crime
"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.
