The defendant and a guy named Bain didn’t like each other. Bain hunted on defendant’s property with permission and stumbled upon a few marijuana plants which he reported to the police. Other than defendant’s conclusory statement Bain was an agent of the police, not an iota of evidence even suggests that. It was open fields and a private search. The police installed a camera to record who came and went from the grow operation, and it apparently recorded defendant. Installation of the camera in the woods, clearly open fields where others had license to hunt was not a violation of any reasonable expectation of privacy. United States v. Apicelli, 2015 U.S. Dist. LEXIS 58086 (D.N.H. May 4, 2015).
Consent to enter shown from defendant’s actions. “Officer Kennedy knocked on the motel room door. When Circle Bear opened it, the officer identified himself and asked if he could enter. Circle Bear then pulled the door further toward him and waved the officer in. At no time did Circle Bear say or do anything to indicate he did not want the officer in the room.” United States v. Circle Bear, 2015 U.S. Dist. LEXIS 57795 (D.S.D. March 9, 2015).*
No special protocol required for a computer search warrant, but vigilance of the court is expected in review to protect against overreaching. Also, the least intrusive measures are required. United States v. Nessland, 2015 U.S. App. LEXIS 7360 (9th cir. May 4, 2015): Continue reading →
Plaintiff’s Fourth Amendment civil claim not barred by Heck v. Humphrey because it says nothing about, and doesn’t undermine, his false statement conviction. Hill v. Murphy, 2015 U.S. App. LEXIS 7351 (7th Cir. May 4, 2015) (concurrence): Continue reading →
Posted in§ 1983 / Bivens|Comments Off on CA7: No Fourth Amendment Heck bar in false statements case
Craig Patty asked his employee Lawrence Chapa to help take one of his two trucks to the garage, not realizing that Chapa was a DEA undercover planning to fill the truck with weed, which ended in a firefight with a Los Zetas hit squad that killed the driver, who was a DEA informant.
The DEA says it doesn’t owe Patty anything for the more than $100,000 in repairs that were required for the truck, and disclaim any responsibility for the death of Patty’s employee. Also, they won’t do anything about the fact that they led the Zetas to believe that Patty was a rival drug-runner.
A federal judge in Texas dismissed Patty’s lawsuit against the DEA, because when the DEA is undertaking a “clandestine” operation, it can operate with total legal impunity.
Posted inPolice misconduct, Qualified immunity|Comments Off on boingboing: Court says DEA is allowed to secretly fill your truck with weed, get into firefights with Zetas
The government doesn’t need a warrant to search cellphone tower location records, a federal appeals court in Atlanta has ruled.
In a potentially wide-ranging ruling, the court said that because cellphone owners technically “volunteer” their location to providers when they make phone calls, law enforcement agencies do not need a warrant to track an individual’s location.
The en banc Eleventh Circuit has ruled that historical cell-site records are not protected by the Fourth Amendment under the third-party doctrine. The case, United States v. Davis, also adds an alternative holding that is even more important: Even if cell-site records were protected, the en banc court holds, accessing them would trigger only minimal Fourth Amendment concerns and would not require a warrant or probable cause. My bottom line: I agree with court’s ruling that the third-party doctrine applies and there was no search, but I think the alternative holding is puzzling, inconsistent with precedent, and unnecessary. But stay tuned. It’s a long shot, but that second alternative holding might end up drawing Supreme Court review of both holdings.
This post will go through the majority’s reasoning and then offer my thoughts. There’s also lots of interesting stuff in the concurring and dissenting opinions, but in the interests of space and time I’ll stick with the majority opinion.
CSLI third party information accessed under the Stored Communications Act does not violate the Fourth Amendment. United States v. Davis, 2015 U.S. App. LEXIS 7385 (11th Cir. May 5, 2015) (en banc) (4 concurrences, 2 dissents): Continue reading →
Posted inCell site location information, Third Party Doctrine|Comments Off on CA11 (en banc): CSLI third party information accessed under the Stored Communications Act does not violate the Fourth Amendment
The stop was justified by a taillight violation, but the government failed in its burden of proof to show that the gun seized was actually in plain view. “It remains unclear if Officer Washington opened the door or not; however, it is clear that he needed the car door to be open in order to provide the angle or position needed to observe the weapon in plain view while remaining outside of the Towncar. Not knowing the status of the door leaves the Court completely guessing as to whether Officer Washington had a right of access to Cook’s Towncar. As such, the Government has failed to meet its burden of showing that Officer Washington had a right of access to Cook’s Towncar.” United States v. Cook, 2015 U.S. Dist. LEXIS 57792 (E.D.Pa. May 1, 2015).
The state didn’t make its burden in proving that the emergency aid exception applied to the entry into defendant’s home because there was no positive link to it and an assault where the victim was in the hospital being treated elsewhere. The inevitable-discovery exception to the exclusionary rule is limited to physical evidence and does not apply to statements obtained after an unlawful search. State v. McClain, 2015 Minn. App. LEXIS 22 (May 4, 2015): Continue reading →
Posted inEmergency / exigency, Inevitable discovery|Comments Off on MN: Exigency for entry unproved; inevitable discovery doesn’t apply to statements after an unlawful search
For years, the FBI and other federal, state, and local law enforcement agencies have been using invasive cell phone surveillance equipment, called Stingrays or cell site simulators, in secret and without abiding by the requirements of the Fourth Amendment. After sustained advocacy by the ACLU and others, that may be changing. The Wall Street Journal reports today that the “Justice Department will start revealing more about the government’s use of secret cellphone tracking devices and has launched a wide-ranging review into how law-enforcement agencies deploy the technology.” According to the Journal, “in recent months, the Federal Bureau of Investigation has begun getting search warrants from judges to use the devices,” an improvement over prior policy.
Posted inCell site simulators|Comments Off on ACLU: FBI Slow-Walking Toward End Of Illegitimate Stingray Secrecy
Thanks to increasing pressure from the public and from publications such as ARS Technica and the Wall Street Journal to disclose just how the Justice Department is obtaining and using their cell phone information, the DOJ announced that it will start, slowly, revealing more about its surveillance of Americans. Continue reading →
The Stingray — a fake cellphone tower that gathers identity/location information on everyone who passes it — is the worst-kept secret in law enforcement, but that doesn’t stop feds from going to absurd lengths to pretend they don’t use them. We know that police departments have to sign non-disclosure agreements when they buy Stingrays, and we’ve even seen them lie to judges about how they acquired their evidence to maintain their non-disclosure obligations. We’ve seen US Marshalls raid city cops to steal Stingray evidence before it could be introduced in court (even more dismaying — it worked, and the case against the cops collapsed because the evidence had been disappeared down the Marshalls’ memory hole). Since 2014, Muckrock has been firing out Freedom of Information Act requests about Stingrays to agencies at all levels of government, using crowdfunded dough to pay for it.
Posted inCell site simulators|Comments Off on boingboing: FBI replies to Stingray Freedom of Information request with 5,000 blank pages
A patdown of a runway juvenile before putting him in the patrol car was part of the community caretaking function. A complete search, however, was not. No weapon was found during the patdown, and the search of the pockets afterward finding methamphetamine and marijuana was unreasonable. State v. A.A., 2015 Wash. App. LEXIS 961 (April 30, 2015): Continue reading →
Posted inCommunity caretaking function, Search incident|Comments Off on WA: A patdown of a runway juvenile before putting him in the patrol car was reasonable, but the full search of the person was not
Defendant didn’t raise probable cause from the triggering event in an anticipatory warrant, but the suppression judge did. He directed the parties to litigate and brief it, so the issue was properly before the court. The triggering condition was acceptance of the package. When the delivering officer knocked, nobody answered, and the package stated it could be left. It was, and officers watched. Later, defendant picked up the package and took it inside. An actual hand-to-hand delivery is not required for the triggering condition. State v. Mullen, 2015 Kan. App. LEXIS 33 (May 1, 2015).
The CI made a call to the defendant about him bringing drugs, and the CI reported this to the officer. The CI could be credited. United States v. Silva, 2015 U.S. Dist. LEXIS 57609 (N.D.W.Va. April 10, 2015).*
Statements from witnesses that defendant was known to possess a sawed off shotgun did not even have to be coupled with a surveillance video and whether it was defendant or not. There was still probable cause. United States v. Evans, 2015 U.S. Dist. LEXIS 57371 (D.Minn. May 1, 2015),* R&R 2015 U.S. Dist. LEXIS 58005 (D.Minn. March 25, 2015).*
Posted inInformant hearsay, Probable cause|Comments Off on KS: Controlled delivery doesn’t have to be hand-to-hand; picking up package from porch and taking it inside is enough
There was good reason to credit the CI here: he was actually questioned by the issuing judge and the information clearly added up to probable cause. The court credits the officers that the search did not start until one hour after the warrant issued rather than the defendant’s version that it started 40 minutes before. There was evidence to support that v. defendant’s unsworn assertion in the papers. United States v. Figueroa, 2015 U.S. Dist. LEXIS 57625 (W.D. N.Y. February 3, 2015).
Pretrial defense counsel’s comments about possession of a firearm in an effort to establish standing to challenge the search that found the gun was not prejudicial to the trial where that never came before the jury. The search issue wasn’t appealed [and wasn’t presented as an IAC claim] so it couldn’t be argued in a post-conviction case as a substitute for appeal. Magness v. State, 2015 Ark. 185, 2015 Ark. LEXIS 303 (April 30, 2015).*
“Therefore, because of the great deference afforded to issuing judges, and due to the informant’s statements being sufficiently corroborated by Sergeant Matthews, the affidavit and complaint for a search warrant were based on probable cause and properly executed under the Fourth Amendment.” And, it “was far from ‘bare bones,’ and included sufficient detail and reasonable corroboration” of the CI such that good faith would apply, too. United States v. Dubrowski, 2014 U.S. Dist. LEXIS 183687 (W.D. W.Va. April 24, 2014).*
Posted inBurden of proof, Informant hearsay|Comments Off on W.D.N.Y.: CI actually questioned by judge issuing SW was entitled to more credit
We can win the war on terror today, or we can choose to keep losing it. The success or failure of any terror attack is dependent on the reaction of the group attacked. Thus far, we are losing the war on terror, and the latest failure was on display in the streets of Boston during this year’s marathon.
The surreptitious recording of a meeting with defendant and his counsel in a police interview room when defendant turned himself in was suppressed and contrary to clearly established law. It led to discovery of witnesses. The indictment is not dismissed, however, for police misconduct because no strategy about the case was disclosed. Defense counsel told defendant they maybe were being recorded, and played it close to the vest. State v. Mazzarisi, 2015 N.J. Super. LEXIS 68 (April 28, 2015): Continue reading →
Posted inReasonable expectation of privacy|Comments Off on NJ: Surreptitious recording of defendant and counsel in police interview room suppressed
Officers got an anonymous tip of drug activity in the backyard at a particular house. They could drive on the street near the house and see people in the backyard. They went to do a knock-and-talk and went to the backyard because of the people there. “In the present case, officers’ observations of several individuals in the backyard at the subject property corroborated the anonymous tip. This is less corroboration than the lights and cars observed in Wright. Nevertheless, Wright indicates police had investigatory authority to enter the property, even in the absence of corroboration, and go to the front door to investigate the tip. [¶] Here, police did not approach the front door but instead drove into the grassy area behind the residence where they had observed the individuals. While no South Carolina cases have addressed this point, the Fourth Circuit has adopted the position police may bypass the front door of a residence and proceed to the backyard or other entrance for a knock and talk provided they have reason to believe the person they are attempting to contact will be found there.” State v. Bash, 412 S.C. 420, 772 S.E.2d 537 (App. 2015), rev’d State v. Bash, 2016 S.C. LEXIS 412 (Dec. 21, 2016) (posted here).
Posted inCurtilage, Informant hearsay|Comments Off on SC: When responding to a tip of drug activity in the back yard for a knock-and-talk, it’s reasonable to go to the backyard where all the people seemed to be [Update: Rev’d 12/21/16]
"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.
