OLIVEHURST, Calif. — Two times, Gilberto Hernandez has been arrested and thrown in jail for crimes he didn’t commit — crimes that were allegedly committed by another man, who, to Hernandez’s dismay, shares his name.
That’s a good § 1983 case if the personal identifiers weren’t checked. I’ve settled a few and won one in a federal trial. That man was strip searched and jailed for two days before they checked the identifiers. He was 21. The man in the warrant was 43.
Posted inArrest or entry on arrest|Comments Off on CBS News: Innocent man arrested, jailed twice because of name
The Missouri Senate is moving on a bill that would limit the use of deadly force by police.
The measure, approved by a voice vote Tuesday, changes the state’s language to allow deadly force only when an officer “reasonably believes” the suspect has committed or will attempt to commit a felony that threatens or involves “serious physical injury” and “may otherwise endanger life or inflict serious physical injury to the officer or others unless arrested without delay.”
When I heard the DA explaining the grand jury charge in the Ferguson case, I immediately thought that Missouri law doesn’t comply with Tennessee v. Garner which was decided 30 years ago.
Posted inExcessive force|Comments Off on St. Louis Public Radio: Senate gives first approval to bill changing state’s deadly force law
I’ve given several talks in the last few weeks about recent developments in Fourth Amendment law, and how Fourth Amendment law may be changing in response to computers and new technology. Here are the details, with links to the video/audio, for interested readers.
They are: “The Fourth Amendment in the 21st Century,” a podcast on Rodriguez, and a panel at NACDL’s event on The Fourth Amendment in the Digital Age rebroadcast on C-SPAN.
Posted inSurveillance technology|Comments Off on WaPo: Recent Fourth Amendment talks by Orin Kerr
Any candidate seeking elected office in Texas would be required to take a drug test when he or she files to run, under a proposal that the state Senate approved Tuesday. But the idea may never take effect, since a U.S. Supreme Court ruling overturned a similar law in the 1990s.
This mere bailee didn’t have any right to control the package that was shipped, and he thus didn’t have standing to challenge its search, at least recognizing that some bailees might with better facts. More importantly, the government tracked the IP address of the person tracking the package on the USPS website. Unites States v. Bates, 2015 U.S. Dist. LEXIS 54599 (D. Mass. April 24, 2015).
Defendant was stopped for weaving, was given a warning, was handed back the papers, and then the officer asked about contraband. “The fact that Defendant was not told specifically he was free to leave does not mean he was detained.” Then the drug dog was walked around the car, the court relying on $404,905 (which was expressly rejected six weeks later by SCOTUS in Rodriguez). United States v. Bradley, 2015 U.S. Dist. LEXIS 54246 (W.D. Mo. March 11, 2015).
Defendant need not have agreed to a “reasonable basis” for a search condition on supervised release. Besides, there was consent. United States v. Majeroni, 2015 U.S. App. LEXIS 6946 (1st Cir. April 27, 2015).*
A huge report (747 pages) on the NSA’s Stellar Wind program has been turned over to Charlie Savage of the New York Times after a successful FOIA lawsuit. Stellar Wind has its basis in an order issued by George W. Bush shortly after the 9/11 attacks. Not an executive order, per se, but Bush basically telling the NSA that it was OK to start collecting email and phone metadata, as well as warrantlessly tap international calls into and out of the United States.
The extensive detailing of the program’s history contains some rather surprising elements. While much of it remains redacted, there’s still enough exposed that indicates the program was like many others the NSA has pursued: expansive, intrusive, done without oversight… and ultimately mostly useless.
Posted inFISA|Comments Off on techdirt: NSA’s Stellar Wind Program Was Almost Completely Useless, Hidden From FISA Court By NSA And FBI
Defendant was arrested as a parole absconder also known to be a forger and identity thief, and there was a printer in the backseat of his car. He was in a hotel room in Wisconsin, not registered in his name. Under the Wisconsin law of ejectment of hotel tenants, the hotelier was free to get them out after the arrest, and the police could be used to gather their stuff. In addition, the government’s use of an administrative IRS summons didn’t circumvent any constitutional rights. Defendant was known to be an identity thief, and this was reasonable at the time. United States v. Procknow, 2015 U.S. App. LEXIS 6942 (7th Cir. April 27, 2015): Continue reading →
When defendant during a traffic stop is told he is free to leave and the officer starts to go back to the patrol car, but returns to re-engage the driver, that is a second stop requiring reasonable suspicion. No reasonable person would believe they are free to leave at that point. Commonwealth v. Ngyuen, 2015 PA Super 98, 2015 Pa. Super. LEXIS 223 (April 27, 2015): Continue reading →
Posted inReasonable suspicion|Comments Off on PA: Re-engaging driver with questions after saying he’s free to leave is a second stop
In a medical marijuana state, a search warrant for a grow operation requires the state show that the target of the search is not a licensed grower. Grant of motion to suppress affirmed. Commonwealth v. Canning, SJC-11773 (April 28, 2015):
The central question presented is whether, with the act in effect, police may obtain a search warrant to search a property where they suspect an individual is cultivating marijuana by establishing probable cause that cultivation is taking place or are required to establish probable cause to believe that the individual was not registered, or licensed, to do so. In accord with cases relating to other types of license regimes, we conclude that, if police seek a warrant to search such a property for evidence of illegal marijuana possession or cultivation, they must offer information sufficient to provide probable cause to believe the individual is not properly registered under the act to possess or cultivate the suspected substance. In this case, a judge in the District Court allowed the defendant’s motion to suppress evidence seized by police during a search of the defendant’s property conducted pursuant to a warrant in May of 2013, after the act went into effect. We agree with the motion judge that the affidavit filed in support of the search warrant application demonstrated probable cause that the defendant was cultivating marijuana at the property, but that, in light of the act, the affidavit failed to establish probable cause to believe that the defendant was not authorized to do so and therefore was committing a crime. We affirm the order allowing the motion to suppress.
Posted inProbable cause, Warrant requirement|Comments Off on MA: In a MMJ state, SW for a grow operation must plead PC that target wasn’t a licensed grower
Litigation that began over a 2011 Executive Order (11-58) by Florida Governor Rick Scott requiring drug tests for all prospective employees and random tests for employees at all state agencies subject to gubernatorial control — about 85,000 (77 percent of all state workers) — appears to be ending. A notice of settlement has been filed by the parties in federal district court in Miami. The agreement applies to employees in union bargaining units.
Posted inDrug or alcohol testing|Comments Off on Nat’l Law Rev.: Florida Governor Settles Litigation Over Drug Testing of State Workers
Police departments around the country have been moving with unusual speed to equip officers with body cameras to film their often edgy encounters with the public. But the adoption of these cameras has created a new conflict over who has the right to view the recordings.
In Seattle, where a dozen officers started wearing body cameras in a pilot program in December, the department has set up its own YouTube channel, broadcasting a stream of blurred images to protect the privacy of people filmed.
Posted inBody cameras|Comments Off on NY Times: Downside of Police Body Cameras: Your Arrest Hits YouTube
A bill is set to go before the Texas State House of Representatives Monday that would protect individuals from body cavity searches by peace officers unless a search warrant has been issued by a magistrate. The bill, authored by Rep. Harold Dutton (D-Houston), is designed to address incidents in Texas where law enforcement officers conducted body cavity searches during a traffic stop. The bill, H.B. 324, defines “body cavity search” as an inspection that is conducted of a person’s anal or vaginal cavity in any manner.
Dash cam image from 2012 Irving, Texas roadside cavity search:
The Fourth Amendment already does. The Fourth Amendment doesn’t deter malicious, stupid, or overzealous cops, so why should this statute? And it took three years to get to the Texas legislature.
Posted inBody searches|Comments Off on Brietbart: Texas bill: Search warrant required before body cavity search at traffic stop
A Georgia county will randomly drug test students beginning in the 2015-2016 school year. The move has many asking if it is a constitutional violation. Based on previous Supreme Court rulings, though, the answer may be more complicated than it seems. It turns out the Supreme Court has visited random drug tests for students before, and that their conclusion was, some students’ privacy is less guaranteed than others.
Student athletes and maybe to those whom others would look up to is what the case law says, whatever the latter is? See “Mean Girls”? All of them? What about teachers? A drunk teacher ran into a student’s car coming to work last week in Central Arkansas.
Posted inDrug or alcohol testing|Comments Off on Inquisitr: Georgia County Will Randomly Drug Test Students
Delaware probation officers need reasonable suspicion for a search, and here they had it. Defendant had moved to a hotel without telling probation, and he’d switched rooms three times in a week. When they came to the room he was naked. He was pacing around the bed, and it was reasonable to handcuff him and search the bed for officer safety. State v. McNeill, 2015 Del. Super. LEXIS 204 (April 23, 2015).*
The 17 year old juvenile was walking with another at night and saw the police car. He tossed an L shaped object into a yard, which the officer correctly assumed was a gun. It was clearly abandoned property. (There hadn’t even been anything close to an effort to stop him.) J.B. v. State, 2015 Ind. App. LEXIS 366 (April 23, 2015).*
Despite using hotel staff to knock at the door of defendants’ room, the district court’s finding of consent to enter are clearly supported by the record. Yes, it might have been intimidating to have DEA agents at the door, but, on the totality, it was consensual. United States v. Johnson, 2015 U.S. App. LEXIS 6767 (11th Cir. April 24, 2015).*
Posted inAbandonment, Consent, Probation / Parole search|Comments Off on DE: Handcuffing naked probationer in hotel room was reasonable for officer safety because of the way he looked at pile of clothes on bed
Defendant’s Rule 41(g) motion was granted in part and denied in part. The district court did not err in refusing to reconsider the original search question. “[I]n the context of Rule 41, that after criminal proceedings are completed, ‘the legality of the search and seizure is no longer an issue.’” United States v. Reynolds, 2015 U.S. App. LEXIS 6807 (9th Cir. April 24, 2015).
Defendant was on a commercial bus that crossed the border and was stopped again at a checkpoint inside the border. When the CBP officer talked to her, she avoided eye contact and touched her midsection. He asked her to lean forward, and he could see a bulge. She was found with heroin taped to her back, and this was with reasonable suspicion. United States v. Molina, 2015 U.S. App. LEXIS 6755 (5th Cir. April 23, 2015).*
The seizure of defendant’s cell phone incident to his arrest was reasonable. Defendant was accused by an 11 year old boy of sexual conduct on Fort Campbell, and the FBI and Army CID investigated and got enough information to have probable cause to arrest. Part of that was text messages between defendant and the boy with instructions on how to delete them. The boy’s mother told the investigators that the number associated with the text messages to the 11 year old came from defendant. That was justification for seizure of the phone to get a search warrant. United States v. Lewis, 2015 U.S. Dist. LEXIS 53882 (W.D.Ky. April 24, 2015).
Defendant was walking, apparently intoxicated, in Toledo, and the search incident of his person producing six Oxys was reasonable. State v. Lentz, 2015-Ohio-1572, 2015 Ohio App. LEXIS 1501 (6th Dist. April 24, 2015).*
Posted inCell phones, Search incident|Comments Off on W.D.Ky.: Text messages to 11 year old boy for sex was justification for warrantless seizure of cell phone
“You’ve got to run somebody who is different. You’ve got to run somebody who says you know what, not only are we the party of the second amendment, we’re also the party of the fourth amendment. We’re going to be the party that respects your right to privacy,” Sen. Rand Paul said.
Posted inUncategorized|Comments Off on KCCI8: GOP presidential contenders talk social issues in Iowa
Defendant’s stop was objectively reasonable under the community caretaking function. He was driving 10 in 25 mph zone with seriously deflated tires causing the car to wobble on the highway, and it was in the middle of nowhere. Lollie v. State, 2015 Tex. App. LEXIS 4078 (Tex. App. – Houston (14th Dist.) April 23, 2015).
Defendant, an invitee, did not have standing to challenge police entry into a lot next to stables. He had no past history there, many people had access, and he had no right to control access himself. It was also an area essentially exposed to the public. United States v. Silva-Rentas, 2015 U.S. Dist. LEXIS 53545 (D.P.R. April 21, 2015),* adopted 2015 U.S. Dist. LEXIS 72620 (D.P.R. June 3, 2015.*
The Tenth Circuit has never held that flight from a vehicle that crashed during a police chase was abandonment. Every other circuit to consider the question has said this is abandonment, and that’s what the court holds. United States v. Russian, 2015 U.S. Dist. LEXIS 53350 (D.Kan. April 23, 2015).*
Posted inUncategorized|Comments Off on TX14: Driving slow on low tires in the middle of nowhere justified community caretaking stop
"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.
