A federal appeals court ruling that the National Security Agency’s collection of millions of Americans’ phone records is illegal could undercut more than just that program.
The 2nd Circuit Court of Appeals ruled Thursday that the phone records program violated the law used to authorize it, the USA Patriot Act. The program had been approved by the secretive Foreign Intelligence Surveillance Court and was first reported on by USA Today in 2006, but documents from former government contractor Edward Snowden revealed the program continued under President Obama.
Posted inFISA, National security|Comments Off on WaPo: Why the ruling against the NSA’s phone records program could have huge implications
When the officer went to an apartment in response to a shots fired call, and defendant came running out knocking the officer over, that was reasonable suspicion to detain him. The crack in his hand was dropped. United States v. Torrence, 2015 U.S. App. LEXIS 7754 (3d Cir. May 11, 2015).*
Defendant had no standing in a co-conspirator’s apartment that was validly subjected to a protective sweep that produced defendant’s gun. United States v. Moten, 2015 U.S. App. LEXIS 7755 (3d Cir. May 11, 2015);* United States v. Stokes, 2015 U.S. App. LEXIS 7756 (3d Cir. May 11, 2015).*
Officers did not need probable cause to believe defendant would be at his address, just a reasonable belief to execute an arrest warrant. After the arrest, he refused repeatedly consent and insisted on a warrant. While officers were off getting one, an officer who knew defendant told him that if he had something to hide he should insist on a warrant, but if he had nothing to hide he should consent to show cooperation with officers. Finally, defendant voluntarily consented. United States v. Scott, 2015 U.S. Dist. LEXIS 61297 (D.Conn. April 10, 2015).
Defendant failed to make a showing for a Franks hearing. The second controlled buy from his house was alleged to be only sometime during a week, and defendant produced work records showing he was at work during the day all week. That’s not enough to cast doubt. In addition, work records was not enough of an offer of proof that he was at work. United States v. Kearse, 2015 U.S. Dist. LEXIS 61380 (M.D.Fla. March 13, 2015).*
Posted inConsent, Franks doctrine|Comments Off on D.Conn.: Consent finally given to show cooperation with LEOs was voluntary
Defendant’s motion to suppress did not put the state on notice that his primary issue was the qualifications of the drug dog and handler, so the issue was not preserved for appeal. State v. Matthews, 2015-Ohio-1750, 2015 Ohio App. LEXIS 1700 (2d Dist. May 8, 2015) (Treatise § 60.30 n.6).
The court concludes, with difficulty, that there was no probable cause for issuance of a search warrant for defendant’s storage building based on what it had. The law, however, was less than crystal clear on this. Accordingly, the good faith exception would be applied because the officers acted in good faith, the magistrate did not abandon her neutral and detached role, and the case law that there was no probable cause wasn’t obvious. State v. Perez, 2015-Ohio-1753, 2015 Ohio App. LEXIS 1699 (2d Dist. May 8, 2015). Note: At least the court did decide the probable cause question for the future. This search is saved by the good faith exception, but the next one won’t be.
Posted inGood faith exception, Motion to suppress|Comments Off on OH2: A general motion to suppress did not put state on notice to issue it wasn’t prepared to litigate; waiver found
Defendant lacked standing because the receiver of the business was the only one with standing. United States v. Cohen, 2015 U.S. Dist. LEXIS 60840 (D. Md. May 7, 2015) (Treatise § 12.52 n.1).
A drug dog’s alert on the passenger door of a car is sufficient to search the trunk, too. United States v. Morales, 2015 U.S. Dist. LEXIS 60486 (D.Kan. May 8, 2015).
The trial court misinterpreted a statute requiring a stop before crossing sidewalks and held the stop invalid. The stop led to a dog sniff. Reversed because the stop was valid. State v. Nelson, 2015 Fla. App. LEXIS 6843 (Fla. 5th DCA May 8, 2015).*
Defendant’s DNA was collected from him in the BOP in 2005 while he was there on another conviction out of D.C. It was 2009 before it was tested under the DNA Backlog Elimination Act. It matched a cold case in the District from 2003. Based on that match, the government sought a DNA warrant for confirmation. Even assuming all of defendant’s constitutional and statutory arguments are valid, the court declines to apply the exclusionary rule because it was apparent that everybody was acting in good faith. Blair v. United States, 2015 D.C. App. LEXIS 166 (May 7, 2015): Continue reading →
Posted inDNA, Exclusionary rule|Comments Off on DC: Cold case DNA hit confirmed by DNA SW would not be excluded even if original sample was taken wrongfully, which isn’t decided
Data collection and tracking are getting their fair share of scrutiny from the courts, though not all opinions are favorable for those who wish to preserve Fourth Amendment protections and privacy. Last week, the 11th U.S. Circuit Court of Appeals ruled that the police don’t need warrant to track the cellphones of suspected felons (WSJ):
Police don’t need a warrant to track the cellphones of criminal suspects, a federal appeals court ruled on Tuesday, reversing an early decision in a closely watched privacy case. …
OK, maybe it’s the WSJ’s line that leads to the misunderstanding, but that’s the problem with repeating without knowing and it’s manifestly not what the court says: The case is all about the third-party doctrine and your telephone company keeping records of where your phone has been, not the police tracking it. BIG difference. In Jones, the Court held GPS tracking of a car requires a warrant, and March 30th the Court held in Grady v. North Carolina that GPS tracking of a sex offender implicates the Fourth Amendment. Does that mean that SCOTUS will hold that real time tracking of a cell phone requires a warrant under the Fourth Amendment? What about the third-party doctrine and Big Data? We don’t know yet.
The moral to the story? Don’t talk about cases without reading the case. The Wall Street Journal’s filtered version is not what the case says.
Posted inUncategorized|Comments Off on TownHall.com: Federal Court: Why Yes, The Police Can Track Your Phone Without A Warrant // misleading headline
Thursday’s 2nd Circuit decision striking down 215 ends with a brief, and unresolved, rumination on the impact explicit congressional authorization might have on a 4th Amendment analysis—if and when such an analysis were actually to take place: … Continue reading →
Posted inNational security|Comments Off on LawFare: “Reasonable Search” or “Reasonable Expectation of Privacy:” A Brief Reply to Orin Kerr on the 2nd Circuit’s Decision
Defendant’s email account, shown on a website as a “contact” email address, was accessed by a search warrant for evidence of her being involved in a fraud against the government. Direct evidence that an email account actually contains evidence is not required: It is a “fair probability” that evidence would be found. More difficult is potential overbreadth, but the court concludes that the warrant could not be more specific, and the three years of emails from the conspiracy period could be word searched. Searching emails is not unlike searching files in paper cases. In any event, the clauses of search warrants are severable. United States v. Barnes, 2013 U.S. Dist. LEXIS 189631 (S.D.N.Y. October 21, 2013): Continue reading →
Posted inE-mail, Overbreadth, Probable cause|Comments Off on S.D.N.Y.: Email warrant need only show “fair probability” evidence would be found in it; all emails for three years not overbroad in conspiracy case
Michigan Hutaree militia members were indicted, tried, and acquitted. Their Bivens action for malicious prosecution fails. The indictment was not based on provably false testimony, and there was thus probable cause for the case to go forward. “The indictment in the criminal case against the Hutaree, which is not undermined by specific, plausible allegations of falsity, established the existence of probable cause. Therefore, the malicious-prosecution claims fail.” As for the search claim, “Plaintiffs-Appellants have not plausibly alleged that there are material falsehoods or omissions in the warrant affidavit or that the warrant is so lacking in probable cause as to render reliance upon it unreasonable. Therefore, the claims of unlawful search and seizure fail.” There is no discrete Second Amendment claim here because there already is a potential Fourth Amendment remedy, and they also sought return of their firearms under Rule 41(g) which at least is a potential remedy. Meeks v. Larsen, 2015 U.S. App. LEXIS 7591 (6th Cir. May 5, 2015).
DEA officers boarded a Greyhound Bus while it was stopped in Albuquerque and decided to talk to defendant who was wearing baggy clothes. There was another person on the bus with the same last name also going to Minnesota. The officer decided she was hiding something under her clothing and removed her from the bus. After describing the photographs, the court doesn’t see what the officer saw, and concludes that the investigation hadn’t developed enough information to make out probable cause, although it is “an extremely close case.” Motion to suppress granted. United States v. Cooper, 2015 U.S. Dist. LEXIS 59731 (D. N.M. April 3, 2015)
A juvenile with chronic behavioral problems was made to sign a contract for readmission to school that he was subject to random searches of his person. The court distinguishes Earls and Vernonia on school drug testing and an Oregon case (State ex rel. Juvenile Dep’t v. Stephens, 175 Ore. App. 220, 27 P.3d 170 (2001)) and concludes that there was a right to a public education, and access couldn’t be conditioned like that. In re L.A.W., 131 Nev. Adv. Op. 24, 2015 Nev. LEXIS 31 (May 7, 2015): Continue reading →
Posted inConsent, School searches|Comments Off on NV: School couldn’t condition student’s entrance into building on a full search
Defendant was stopped for a headlight being out in 2009. He ended up getting arrested and handcuffed for an open container and then possession of marijuana. The officer got his cell phone and scrolled through it asking about drug transactions. Kansas statute since 1970 closely followed Chimel. Even a one word amendment of the statute didn’t align Kansas with Belton. Search incident of the cell phone was unreasonable. And, of course, Riley was decided in the interim while the case was working through the courts. There also was no voluntary consent to search the phone. State v. James, 2015 Kan. LEXIS 239 (May 8, 2015), rev’g 48 Kan. App. 2d 310, 288 P.3d 504 (2012) (cited in Treatise at § 22.13 n.2).
Nearly 5½ years to decide a case? Justice delayed and all that? The Court of Appeals decision was November 2012. The Supreme Court 2½ years later.
Posted inCell phones, Search incident|Comments Off on KS statute tracks Chimel on search incident, and cell phone search was unreasonable (even before Riley was decided)
We now have the first decision from a court of appeals on the NSA’s mass surveillance program involving bulk collection of telephone records under Section 215 of the Patriot Act, and it’s a doozy. The U.S. Court of Appeals for the Second Circuit issued an opinion in ACLU v. Clapper holding that the NSA’s telephone records program went far beyond what Congress authorized when it passed Section 215 of the Patriot Act in 2001. The court completely rejected the government’s secret reinterpretation of Section 215 that has served as the basis for the telephone records collection program. EFF filed amicus briefs in this case in both the district and circuit courts, and we congratulate our colleagues at the ACLU on this significant victory.
The Second Circuit’s opinion stands as a clear sign that the courts are ready to step in and rule that mass surveillance is illegal. As we’ll discuss in a future post, it also marks a significant change in the context of the ongoing legislative debate in Congress about these issues. Above all, it is clear that Congress must do more to rein in dragnet surveillance by the NSA.
This post explains some highlights of the opinion.
Posted inFISA, National security|Comments Off on EFF Case Analysis: Appeals Court Rules NSA Phone Records Dragnet is Illegal
There is weighty interest of the state in preventing and prosecuting domestic violence. Accordingly, the court almost comes out and says that police get the benefit of the doubt for a warrantless entry under the emergency aid exception if any facts objectively support that an act of violence happened inside. Commonwealth v. Gordon, 87 Mass. App. Ct. 322 (May 5, 2015): Continue reading →
Posted inEmergency / exigency|Comments Off on MA: Any objective facts of domestic violence inside on a 911 call supports entry
A glass pipe in the pocket was subject to plain feel. Conyers v. State, 2015 Fla. App. LEXIS 6681 (Fla. 2d DCA May 6, 2015).
In isolation, defendant’s actions were likely innocent, but collectively they added up to reasonable suspicion. He consented to a search of his car, and nothing was found, but the officers suspected he had a trap (a concealed compartment) for hiding drugs. He consented to a further search after a drug dog was summoned, and the record supports consent. United States v. Ruiz, 2015 U.S. App. LEXIS 7645 (7th Cir. May 8, 2015).*
2255 petitioner’s 2255 waiver precluded challenging his search after guilty plea. Martinez-Carranza v. United States, 2015 U.S. Dist. LEXIS 60136 (E.D.Cal. May 6, 2015).*
Posted inUncategorized|Comments Off on FL2: A glass pipe in the pocket was subject to plain feel
Photography Is Not A Crime (PINAC) has been cited here before, but a link on the internet took me there again today, and I perused it for a while, finding many interesting citizen-made videos of cops going overboard. One from November has an officer slapping a man in the head after he refuses a consent search and taking the car keys. Nothing was found and he was allowed to leave. The transcript and updates:
“We’ll get a fucking search warrant, alright,” Glans said. “Wanna do that?””Let me see your fucking keys,” Glans said.
“Why?” Fitch responded.
“I’m going to search your fucking car, that’s why,” Glans replied.
“You can’t do that,” Fitch said.
“Wanna fucking resist?,” Glans said before striking him.
*****
“If you have nothing to hide in there, we’re just going to check and be on our fucking merry way. Understand? Asshole.”
Unfortunately, that slapping part was not caught on video, but the sound of the slap is loud and clear. But he followed it up by making more threats, proving to be the real asshole.
As they were searching the car, Firth showed them his receipt for the gun and they allowed him to leave.
UPDATE II: Deputy Glans was suspended without pay, according to a press release from the Saratoga County Sheriff’s Office. Good work, guys.
UPDATE III: The Times-Union reached out to Glans and got him to comment about the incident, saying he would do it all over again – but not if he knew he was being recorded. Not exactly the brightest of the bunch.
The videos on this website are virtually Exhibit A on why body cameras should be on every police officer, for everybody’s protection, including the cops from false claims, but more likely citizens for being mistreated or illegally detained or searched.
Plaintiff is a Rhode Island police officer whose wife installed a keylogger to track his computer usage about his potential infidelity. She turned it over to his department. He was suspended for two years with pay for the duration. Her actions violated the federal and state wiretapping law and the Stored Communications Act. It was not, however, inadmissible in his employment hearing. Williams v. Stoddard, 2015 R.I. Super. LEXIS 58 (February 11, 2015): Continue reading →
Posted inExclusionary rule, Private search|Comments Off on RI: LEO’s wife violated wiretap and SCA with keylogger, but his dept can use it in administrative proceedings
Defendant entered the Hall of Justice in Rochester, and he set off the metal detector. Three hand wandings showed metal in his crotch. He was handcuffed and taken to a more secure area. A search of his person revealed gold foil wrapped drugs. He consented to the search by entering the courthouse with signs warning of a search. People v. White, 2015 NY Slip Op 03963, 2015 N.Y. App. Div. LEXIS 3915 (4th Dept. May 8, 2015) (Treatise § 48.02 n.5): Continue reading →
Posted inConsent|Comments Off on NY4: Def consented to search of his person by entering a courthouse
Defendant is a Korean businessman who regularly flew between Korea and California. The government suspected that shipments back to China for his business were routed to Iran, so they seized his laptop as he was leaving in 2012 to search it. The court finds this exit border search was unreasonable because it completely lacked reasonable suspicion, based on four year old information and because Kim was long gone by the time it occurred. United States v. Kim, 2015 U.S. Dist. LEXIS 60276 (D.D.C. May 8, 2015) (see Treatise §§ 35.19 & 35.26): Continue reading →
Posted inBorder search|Comments Off on D.D.C.: Exit border search of computer without reasonable suspicion was unreasonable
There is overwhelming support to outfit the nation’s cops with body cameras. Theoretically, they promote accountability and transparency, but in practice it’s much more complicated.
Posted inBody cameras|Comments Off on On The Media: The Police Body Cam Conundrum
"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.
