Because an Alabama search and seizure case came through today, and they are so seldom seen, I went to their website to see if anything had changed, and it has: opinions are now free, and the link on the state opinions tab has been changed. I haven’t looked in a couple of years, I suppose, because, ever since I’ve been doing this site, Alabama was the only state to charge for access to its online opinions. No more.
And nobody told me. Apparently nobody in Alabama reads this blog. Probably because it’s too depressing to read Alabama’s search and seizure cases? As in this one:
Petition for review of an unpublished decision of the Court of Criminal Appeals is denied. According to the dissent, defendant did not waive a challenge to a search of a cigarette box during a frisk, which was apparently unjustified because it was an included subsidiary issue. In re T.G., 2015 Ala. LEXIS 49 (April 17, 2015) (Moore, C.J., dissenting).*
Posted inScope of search|Comments Off on Alabama appellate decisions now free; link changed
The USMJ issued her R&R on February 2d, and I posted the next day. Friday, the USDJ adopted the R&R, and the press goes wild, apparently oblivious to the news stories from February 2d. United States v. Phua, 2015 U.S. Dist. LEXIS 50856 (D.Nev. April 17, 2015). Just the summary:
This case tests the boundaries of how far the government can go when creating a subterfuge to access a suspect’s premises. Here, the government disrupted the internet service to the defendant’s hotel room in order to generate a repair call. Government agents then posed as repairmen to gain access to the defendant’s room and conduct a surreptitious search for evidence of an illegal sports betting operation. By creating the need for a third party to enter defendant’s premises and then posing as repairmen to gain entry, the government violated the defendant’s Fourth Amendment rights.
Click the link on the case name for the whole case.
The R&R: United States v. Phua, 2015 U.S. Dist. LEXIS 12626 (D.Nev. February 2, 2015). Interesting holding I won’t try to summarize: Continue reading →
Posted inComputer and cloud searches, Consent|Comments Off on D.Nev.: FBI internet ruse against USAO advice leads to suppression of entry by deception (R&R adopted)
The boy was defending his mother’s use of a drug that helps her deal with an awful condition.
Posted inUncategorized|Comments Off on WaPo: State seizes 11-year-old, arrests his mother after he defends medical marijuana during a school presentation
The affidavit for the search warrant included a no-knock request, but the fact that powder cocaine was sought wasn’t shown to be enough to justify a no-knock. Probable cause of a likelihood of destruction is required under Massachusetts law. Defendant doesn’t claim bad faith, and the officers were shown to otherwise have acted in good faith. Thus, the good faith exception also applies here to the knock-and-announce requirement. Commonwealth v. Perez, 2015 Mass. App. LEXIS 39 (April 15, 2015): Continue reading →
Under New Jersey law, the driver can per se be ordered out of the car under Mimms, but not so with the passenger. Here, the trial court’s initial findings didn’t resolve this, and it was previously remanded. After the remand, the court reverses because there was no showing of a reason for ordering the passenger out of the car. Having no seatbelt on and coming from Newark is not indicative of criminal activity or a risk to offer safety. State v. Bacome, 2015 N.J. Super. LEXIS 63 (April 16, 2015): Continue reading →
Posted inReasonable suspicion|Comments Off on NJ: No cause shown to order passenger out of car under state law
Nearly a million people will line the streets to watch the Boston Marathon on Monday, and someone else will be watching them. Bill Ridge with the Boston Police says video surveillance is a big part of the security plan.
Posted inSurveillance technology|Comments Off on NPR: Boston Marathon Surveillance Raises Privacy Concerns Long After Bombing
A power company stated an injury-in-fact for standing to contest the agency’s action on, inter alia, Fourth Amendment grounds that its request for production of records in an audit constituted a likely Fourth Amendment violation for an overbroad or oppressive subpoena. Entergy Servs. v. United States Dep’t of Labor, 2014 U.S. Dist. LEXIS 183517 (E.D. La. December 15, 2014).
The CI said that defendant and family were selling marijuana out of the house. “The informant’s 100 percent ‘track record’ [in seven prior cases] provided a strong indicia of his or her reliability.” There was probable cause for the search warrant for the house. Bellville v. State, 2015 Tex. App. LEXIS ___ (Tex. App. – El Paso April 15, 2015).*
The first search warrant in defendant’s child pornography case expired when it wasn’t timely served, so another was sought on the same affidavit. While staleness is always a potential issue, there is no mandatory requirement that a new affidavit be presented if the information remains timely. Here it was, and defense counsel wasn’t ineffective for not raising it. Self v. United States, 2014 U.S. Dist. LEXIS 183529 (D.Ariz. October 31, 2014), adopted 2015 U.S. Dist. LEXIS 50296 (D.Ariz. April 15, 2015): Continue reading →
Posted inStaleness, Warrant execution|Comments Off on D.Ariz.: When a SW expires before execution, a new affidavit is not required if timeliness can still be met
Defendant’s denial of ownership of a cell phone in his car was not determinative of his standing to challenge its search. Actually, he was loaned the phone because his was broken, and he was legitimately in possession. The question posed to him (“Do you own the phone?”) did not determine standing. His denial of ownership was thus not abandonment. The warrantless search of the cell phone at the secondary checkpoint area north of Nogales was unreasonable. Neither search incident nor the automobile exception apply because there was no exigency. Inevitable discovery does not apply just because there may be probable cause; some effort at a warrant is required, and here there was apparently no intention of applying for a warrant. United States v. Alonso-Castaneda, 2015 U.S. Dist. LEXIS 49547 (D. Ariz. April 14, 2015).
Officers had reasonable suspicion for defendant’s stop where he and a companion were walking in a high crime area, saw the police car, and were nervously looking at it. They ducked into a restaurant, but the officers could see that they weren’t there as patrons–they were hiding out there. If he’d been buying something, the officers wouldn’t have escorted him out. This was reasonable suspicion: “See State v. Barney, 97-777 (La. App. 5 Cir. 2/25/98), 708 So.2d 1205, where this Court found that presence in a high crime area, coupled with nervousness, startled behavior, flight or suspicious actions upon the approach of officers, is sufficient to justify an investigatory stop.” State v. Bradstreet, 2015 La. App. LEXIS 728 (La. App. 5 Cir. April 15, 2015).*
To search vehicles under a search warrant for real property, the vehicles must belong to a person named in the warrant to identify the place or things to be searched. Vehicles belonging to visitors are not subject to search under the warrant. “Generally, then, a search conducted pursuant to a warrant for the search of premises but encompassing a vehicle not particularly described in the warrant may be justified when the vehicle is: (1) located on the premises described; and (2) within the possession or control of persons named in the warrant.” An RV off the property but tethered to it by an electrical cord running from the house is subject to search. State v. Thompson, 2015 Tenn. Crim. App. LEXIS 272 (April 15, 2015): Continue reading →
Posted inParticularity, Scope of search, Warrant execution|Comments Off on TN: An RV parked off the property but connected by an electrical cord to the house was subject to search under a warrant for the house
The Fourth Amendment applies in mental commitment proceedings, and there must be probable cause for the seizure of the person the state seeks to commit. The fact that the criminal rules don’t apply to these proceedings does not mean that the constitution doesn’t. Commonwealth v. Fleet, 2015 PA Super 81, 2015 Pa. Super. LEXIS 183 (April 16, 2015) (dissent): Continue reading →
After this month’s police killing of Walter Scott in South Carolina, Americans were treated to another lesson in how police departments can spin such incidents. If not for a citizen’s cell phone footage, the public may never have known what really happened between Scott and Officer Michael Slager.
Posted inBody cameras|Comments Off on HuffPo: D.C. Mayor Doesn’t Want You To See Police Body Camera Footage
NPR’s Audie Cornish talks with the Seattle Police Department’s Chief Operating Officer Mike Wagers about the challenges that bodycams and dashcams present to the department. In addition to figuring out how to give the public access to the video evidence, police also have to decide the purpose of the cameras and how much control officers should have over them.
Posted inBody cameras|Comments Off on NPR: Seattle Police Body Camera Program Highlights Unexpected Issues
“I’m asking all the citizens of North Charleston to continue taping.”
That is what Councilwoman Dorothy Williams said in response to the shooting death of Walter Scott. She and others recognize that the story would have been very different without the video showing that a white police officer shot the unarmed black man several times in the back as he ran away from a traffic stop in North Charleston, South Carolina. Both NBC News and Huffington Post imagined the story absent the video.
Posted inBody cameras|Comments Off on EFF: Police Must Respect the Right of Citizens to Record Them
The injunction against the Maricopa County Sheriff’s Office for profiling Hispanics is affirmed as modified. Ortega v. Arpaio, 13-16285 (9th Cir. April 15, 2015). The summary from the court follows: Continue reading →
Posted inRacial profiling|Comments Off on CA9: Injunction against racially profiling Hispanics affirmed as modified
ST. LOUIS (CN) – A black man who claims he was charged with destruction of police property for bleeding on Ferguson police officers’ uniforms during a brutal jailhouse assault asked a federal appeals court Thursday to revive his case.
It will be five years this summer since Henry Davis sued Ferguson and police officers Michael White, John Beaird and Kim Tihen, claiming that the officers used excessive force by attacking him in his jail cell and that Beaird then falsified affidavits to charge Davis with the destruction of property.
Urging the 8th Circuit to revive due-process claims, attorney James Schottel told the panel Thursday that Beaird changed his story about the blood on the police uniforms several times amid an investigation into the officers’ affidavits.
Posted in§ 1983 / Bivens, Excessive force|Comments Off on Courthouse News Service: Ferguson Police Face Scrutiny of 8th Circuit
Defendant’s cell phone was lawfully seized at the time of his arrest. Two days later, the back of the phone was removed to get the IMSI number (serial number) to get a search warrant. The contents of the phone were never looked at. The removal of the back just to obtain the IMSI number was not a violation of any reasonable expectation of privacy. State v. Green, 2015 La. App. LEXIS 715 (La.App. 2 Cir. April 15, 2015). [Note: More fundamentally, I would say that having the phone number alone is reason enough to issue a search warrant for the phone already in hand, and the IMSI number adds nothing to the particularity question. “I have this phone. Its number is xxx-xxx-xxxx. I need a search warrant for the contents because ….” The IMSI is superfluous. Since the phone itself wasn’t searched without the warrant, no harm, no foul.] Continue reading →
Defendant was pulled over for possible speeding in a 25 mph zone, and he fled the car, tugging at his pants as he was running, strongly suggesting a gun in his pocket or waistband. One officer tackled him and had to wrestle with him to get handcuffs on. Another officer hit him on the muscular part of his legs three times with a police baton to get him to give up. The search after that produced a gun. All this was reasonable. United States v. Edmonds, 2015 U.S. App. LEXIS ___ (3d Cir. April 15, 2015).
The officer had reasonable suspicion to encounter defendant, and he got defendant to show his waistband to see if there was a gun. There wasn’t, but defendant admitted a gun in the car. The officer then handcuffed defendant. FIPF conviction affirmed. Fowler v. State, 2015 Ark. App. 232 (April 15, 2015).*
The search warrant was executed in good faith and the factual basis was close enough for probable cause on plain error review. “Because the execution of the search warrant in this case falls squarely within the good-faith exception to the exclusionary rule, we do not find facially substantial grounds to believe that a manifest injustice or miscarriage of justice has occurred. Accordingly, we need not proceed to the second step of plain error review to determine whether a manifest injustice or miscarriage of justice has actually occurred.” State v. Halliday, 2015 Mo. App. LEXIS 408 (April 14, 2015).*
Defendant fled from an officer reaching into his truck to stop him from leaving. Ultimately he wrecked his truck. Despite his desire to surrender, “he noticed a small retention pond and — for reasons he asserts are unknown even to him — waded into its center.” When he came out, he was “subdued” resulting in various injuries and being Tased while on the ground. Even on the summary judgment stage, they weren’t so unreasonable as to deny qualified immunity. Mobley v. Palm Beach County Sheriff Dep’t, 2015 U.S. App. LEXIS 6094 (11th Cir. April 15, 2015): Continue reading →
"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.
