Defendant was in a car stopped for a traffic offense, and the driver got out agitated and crying that the passengers had drugs on them. They consented to searches of their persons and drugs were found. On the way to the station house, defendant was asked about other drugs and admitted having some, but that statement was suppressed for a Miranda violation. The strip search finding a package of drugs in his rectum was still valid because of everything else the police already knew even discarding the suppressed statement. People v. George, 2015 NY Slip Op 03574, 2015 N.Y. App. Div. LEXIS 3543 (3d Dept. April 30, 2015).
Tennessee’s mandatory DWI blood draw statute is not unconstitutional under McNeely because warrantless blood draws on exigent circumstances are still required. State v. Brown, 2015 Tenn. Crim. App. LEXIS 312 (April 30, 2015).*
The officer’s testimony and video of the traffic stop show that defendant consented to a search of the cigarette pack on him at the time of the stop. Walker v. State, 2015 Tex. App. LEXIS 4424 (Tex. App. – Tyler April 30, 2015).*
Location data is highly sensitive. It contains information about where we live, our daily habits and our network of friends. We discover new places to go; avoid traffic on the way there; swipe to meet new friends once we’ve arrived; and even turn up the thermostat before we get home. When data knows this much about us it requires careful protection. The U.S. 4th Circuit Court of Appeals is likely just weeks away from a major ruling on whether the Fourth Amendment protects a user’s data, and developers need to be prepared for whatever decision comes down.
Posted inCell site location information|Comments Off on TechCrunch: Protecting Users’ Location Data From An Unconstitutional Search
Posted inPolice misconduct|Comments Off on Politico: The Man Who Foresaw Baltimore: Nearly 40 years ago, the Kerner Commission warned us of all this. We didn’t listen.
WASHINGTON — For years after the attacks of Sept. 11, 2001, even as the National Security Agency fiercely defended its secret efforts to sweep up domestic telephone data, there were doubters inside the agency who considered the program wildly expensive with few successes to show for it.
So as Congress moves to take the government out of the business of indiscriminate bulk collection of domestic calling data, the agency is hardly resisting.
Posted inFISA|Comments Off on NY Times: Why the N.S.A. Isn’t Howling Over Restrictions
A tracking order was issued with probable cause, and there’s no special requirement that a GPS device can’t be placed at night, compared to the nighttime search requirements. United States v. Brock, 2015 U.S. App. LEXIS 7195 (9th Cir. April 30, 2015).
As officers approached defendant’s stopped vehicle, he was hunched over in the driver’s seat. When they got up to the window, they could see money and drugs in plain view. That justified more. United States v. Cruz, 2015 U.S. Dist. LEXIS 56756 (D.Minn. April 8, 2015).*
Warrant was not stale where there were multiple telephone calls about multiple drug transactions at the premises. United States v. Ward, 2015 U.S. Dist. LEXIS 56644 (D.Kan. April 30, 2015).*
Search incident cannot support a cell phone search under Riley. Riley came down between trial and appeal, so it applies here because the issue was preserved. Carter v. State, 2015 Tex. App. LEXIS 4271 (Tex. App. – Amarillo April 27, 2015).
Defendant had no standing to challenge the search of a car in which he was riding. The case he cites for standing involved standing to challenge a stop, and it’s simply inapplicable. State v. Massas, 2015 Del. Super. LEXIS 214 (April 24, 2015).*
The CI’s statement that he bought meth from the defendant at a trailer was corroborated by observations of the trailer which had all the appearances of a production site for methamphetamine rather than being a residence. The truck outside hadn’t been moved, there were multiple propane tanks and some were discolored. The Franks challenge about the tanks also fails. United States v. Dubrowski, 2015 U.S. Dist. LEXIS 56639 (N.D. W.Va. April 30, 2015).*
The Department of Justice plans to launch a pilot program aimed at expanding the use of body cameras worn by police officers across the country. These cameras are meant to help local and tribal law enforcement agencies improve relationships with the public, a goal that follows a year of protests across the country aimed at the way police officers use lethal force, particularly toward black men and boys.
Posted inBody cameras|Comments Off on WaPo: Justice Dept. will spend $20 million on police body cameras nationwide
Defendant was smoking in a car in a subdivision being developed, so it couldn’t be called a high crime area. A citizen informant called in that the case was suspicious, so an officer was dispatched to see. When defendant saw the police car, he was startled, and he then made a furtive gesture. While furtive gestures alone are not enough in Oregon, here there was more, and the stop was based on reasonable suspicion that there might be a gun. State v. Clink, 270 Or. App. 646 (April 29, 2015): Continue reading →
Posted inReasonable suspicion|Comments Off on OR: Furtive gesture alone in OR not enough, but here there was more
Defendant was a California parolee who had executed a “fourth waiver,” and he knew he was subject to a parole search at any time. The only question was whether the officers had probable cause to believe he was living there at the time, and they did, so the search was valid. United States v. Gutierrez, 2015 U.S. Dist. LEXIS 55606 (S.D.Cal. April 28, 2015): Continue reading →
Posted inProbation / Parole search|Comments Off on S.D.Cal.: Parolee executed a “fourth waiver” so only real question was whether there was probable cause to believe he lived in the place searched
Committee markups can be a dry affair, an opportunity for political showboating, or both. Yesterday’s markup of the USA Freedom Act in the House Judiciary Committee was neither. It was a rare and fascinating discussion among members wrestling with whether they should vote for an important amendment they all supported — and risk tanking a bill many support as well.
Here’s the background: the USA Freedom Act undertakes to end the bulk collection of Americans’ business records under foreign intelligence authorities. Although observers have differing views over how effectively it does that, a solid bipartisan majority of the House supports ending bulk collection. The bill, however, doesn’t address the other authorities or rules — like Section 702 of the FISA Amendments Act (FAA) and Executive Order 12,333 — under which the NSA conducts much larger surveillance programs that sweep in vast amounts of Americans’ communications and data.
Posted inFISA|Comments Off on Just Security: USA Freedom and the Surveillance Reform That Almost Was
A U.S. Congress committee has overwhelmingly approved legislation designed to stop the bulk collection of U.S. phone records by the National Security Agency.
The 25-2 vote in the House of Representatives Judiciary Committee sends the USA Freedom Act to the House floor for a vote. The two votes against the bill came from lawmakers who had argued for stronger protections for civil liberties.
Posted inFISA|Comments Off on ITWorld: House committee approves bill to end NSA phone records program
Secretary of Homeland Security Jeh Johnson, a man with sweeping power to invade the property rights and privacy of every American using judge-less warrants to search and seize records, has a Fourth Amendment problem: He doesn’t really know it.
As reported at Mediaite, Senator Rand Paul grilled Secretary Johnson at a hearing about government’s obtaining records from telephone companies without a warrant, which seems on its face to violate the Fourth Amendment:
“Right off the bat, Paul, a 2016 presidential candidate, asked Johnson if he believes the Fourth Amendment ‘applies to third party records,’ specifically those of telephone companies. Johnson said that question is ‘beyond my competence as secretary of homeland security’ to answer intelligently.”
Posted inThird Party Doctrine|Comments Off on American Thinker: Homeland Chief: Fourth Amendment ‘Beyond My Competence’
The affidavit for search warrant named defendant’s house but not his name. The probable cause was for drugs. Once inside, there was a woman visiting. Officers could search her purse as a part of the warrant. [The specification of name of occupants is dicta because it also talks about closed parts of premises that might belong to others, something not an issue here.] State v. Taylor, 2015 ND 100, 2015 N.D. LEXIS 95 (April 28, 2015).
All the officer here had was a hunch that the people in an SUV were involved in some crime. There had been a report of a fight with an SUV involved, but this wasn’t even the same color. The occupants of this one and another were talking to each other, but that doesn’t add anything. Reasonable suspicion is a low threshold, and it isn’t met here. United States v. Jones, 2015 U.S. Dist. LEXIS 55829 (D.Ore. April 16, 2015).*
Posted inScope of search, Warrant execution|Comments Off on ND: Visitor’s purse could be searched on execution of SW for house for drugs
Officers came to defendant’s house to do a knock-and-talk about a methamphetamine lab. “Then one of the troopers asked Appellant if he would consent to a search of the home. He refused to consent and informed the troopers they were going to need a warrant. In response, one of the troopers asked Appellant, ‘What are you worried about? What are you concerned with?’ J.A. 48. Appellant replied that there were ‘two jars upstairs that had been used for something.’ Id. Appellant explained that the jars contained ‘[t]hat stuff that everybody’s making.’ Id. at 49.” Considering all that they knew, along with “Appellant’s statements and criminal history, the troopers believed Appellant was referring to methamphetamine. With that, the troopers secured the home. Trooper Blake left to secure a warrant; Sergeant Dornburg, Trooper Baier, Appellant, and the boy stayed behind in Appellant’s kitchen.” All this was reasonable under these facts. United States v. Belt, 2015 U.S. App. LEXIS 6993 (4th Cir. April 28, 2015).
Posted inProbable cause, Seizure|Comments Off on CA4: Denial of consent to enter but admission of meth justified seizure of house to get a SW
Dog sniff in the common hallway of a condominium is different than Jardines’s porch. There is a much lesser reasonable expectation of privacy there, and the dog sniff was valid. (Among a split of authority.) State v. Williams, 2015 ND 103, 2015 N.D. LEXIS 103 (April 28, 2015): Continue reading →
Posted inCurtilage|Comments Off on ND: Dog sniff in condominium hallway was not curtilage
In United States v. Ganias, the United States Court of Appeals for the Second Circuit decided an important case that will have far-reaching implications for digital evidence in criminal cases. In Ganias, the court held that a defendant’s Fourth Amendment rights were violated when the government, under a valid search warrant, made copies of the defendant’s computer drives but then failed to delete the files which were outside the scope of the search warrant. This decision marks the first time a court has recognized a “right to deletion” under the Fourth Amendment of the United States Constitution.
Posted inComputer and cloud searches|Comments Off on Wyo.Law.: Digital Evidence and the Fourth Amendment: United States v. Ganias and Judicial Recognition of the ‘Right to Deletion’
The affiant negligently usurped the inference drawing authority of the magistrate [not to mention the magistrate not doing his or her job either in even signing this warrant], and that affects the probable cause finding. Defendant argued particularity for the search of his computer in the trial and appellate court and neither dealt with it. The warrant authorized a search of the computer without saying for what, and that was fatally overbroad. The good faith exception does not apply because reliance on this warrant was not objectively reasonable. State v. Castagnola, 2015-Ohio-1565, 2015 Ohio LEXIS 977 (April 28, 2015): Continue reading →
North Dakota statute on probation searches says: “Defendant shall submit to search of his person, vehicle, or place of residence by any probation officer at any time of the day or night, with or without a search warrant.” Even though it doesn’t explicitly say so, the court concludes that includes a cell phone on the person or in a vehicle or residence of a probationer. State v. Gonzalez, 2015 ND 106, 2015 N.D. LEXIS 91 (April 28, 2015): Continue reading →
Posted inCell phones, Probation / Parole search|Comments Off on ND: Probation search of cell phone permitted even though not specified in probation search statute
On a Navy ship, a crewmember accessing the ship’s LAN looking for a movie stumbled into defendant’s computer on the LAN and found child pornography. He reported what he found and that it came from MAYO-PC. They found the laptop and the child porn then returned it, ordering the child porn destroyed. Then a criminal investigation opened and NCIS got involved and they went to defendant four days later and asked for the laptop back and he gave it. That was consent and independent of any prior possible constitutional violation from the first seizure of defendant’s laptop. United States v. Mayo, 2015 CCA LEXIS 161 (N.-M. Ct. Crim. App. April 28, 2015).
Defendant’s mother’s consent to enter to arrest him was a credibility determination, and the evidence supports it. Matter of Gilbert M., 2015 NY Slip Op 03472, 2015 N.Y. App. Div. LEXIS 3447 (1st Dept. April 28, 2015).* Same here, except the defendant was the consenter. State v. Vaught, 2015 Conn. App. LEXIS 162 (May 5, 2015).
Posted inConsent, Independent source|Comments Off on N-MCCA: Def’s consent to recovery of laptop from him already searched and returned was independent source
"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.
