When the police tried to stop defendant, he hesitated and then ran, leaving a duffle bag with a gun inside. He argued he was unconstitutionally stopped. No. “In order ‘to comply with an order to stop—and thus to become seized—a suspect must do more than halt temporarily; he must submit to police authority, for “there is no seizure without actual submission.”’ United States v. Baldwin, 496 F.3d 215, 218 (2d Cir. 2007) (quoting Brendlin v. California, 551 U.S. 249, 254 (2007)); see also United States v. Valentine, 232 F.3d 350, 359 (3d Cir. 2000) (‘Even if Valentine paused for a few moments and gave his name, he did not submit in any realistic sense to the officers’ show of authority, and therefore there was no seizure until Officer Woodard grabbed him.’); United States v. Washington, 12 F.3d 1128, 1132 (D.C. Cir. 1994) (‘[The defendant] initially stopped, but he drove off quickly before Officer Hemphill even reached the car. Because [the defendant] did not submit to Hemphill’s order, he was not seized.’); United States v. Hernandez, 27 F.3d 1403, 1407 (9th Cir. 1994) (‘Hernandez requests we find he submitted to authority and was seized, despite his subsequent flight, merely because he hesitated for a moment and made direct eye contact with Sadar. We decline to hold these actions sufficient to constitute submission to authority.’).” United States v. Huertas, 2015 U.S. Dist. LEXIS 43406 (D.Conn. April 1, 2015).
Defendant raised enough to get a hearing on his motion to suppress because the consent form is confusing and it’s undisputed that his mother was highly distraught when she signed the consent form. The hearing is postponed pending defendant’s mental exam. United States v. Bishop, 2015 U.S. Dist. LEXIS 44096 (S.D.Ala. April 3, 2015).*
Posted inAbandonment, Burden of proof, Consent|Comments Off on D.Conn.: In a stop, hesitation then flight is still no submission to authority
A warrant for taking blood presumes that it will be tested, too, and the warrant doesn’t need to specify. A Washington state case saying otherwise is not followed. In any event, it would be in good faith to have tested it. United States v. Williams, 2015 U.S. Dist. LEXIS 42342 (E.D.Wash. March 31, 2015).
Plaintiff’s 1983 false arrest case defense summary judgment is affirmed in part and reversed in part. There was probable cause for the stop and arrest as to some things but not others. The state malicious prosecution claim can proceed. Benavidez v. Cibola County, 2015 N.M. App. LEXIS 40 (March 31, 2015).*
Defendant’s motion to suppress the search for child pornography was unparticularized and denied by the USMJ and that’s adopted. United States v. Peterson, 2015 U.S. Dist. LEXIS 44253 (D.Minn. April 2, 2015),* R&R 2015 U.S. Dist. LEXIS 44366 (D.Minn. January 14, 2015).*
Defendant was followed to a stop with a flat tire. The officer noticed signs of intoxication, and defendant ended up arrested for DWI. The warrantless blood draw couldn’t be based on two prior DWIs as exigency. Moreover, “Accordingly, we decline to apply the ‘reasonable mistake of law’ reasoning from Heien to create a new exception inconsistent with the text of article 38.23. Because the warrantless, nonconsensual blood draw here violated Tercero’s Fourth Amendment rights, we conclude that the trial court did not err in suppressing the blood evidence.” State v. Tercero, 2015 Tex. App. LEXIS 3284 (Tex.App. – Houston (1st Dist.) April 2, 2015).
In a swerving stop, defendant consented to the search of his car producing cocaine. United States v. Davis, 2015 U.S. App. LEXIS 5376 (8th Cir. April 3, 2015).*
Attorney General Eric H. Holder announced new curbs Tuesday on the government’s use of civil asset forfeiture laws, saying that federal authorities will only seize bank accounts when serious illegal transactions have been documented.
The new policy amplifies an announcement in October by the Internal Revenue Service, which said its agents would use seizure authorities primarily in cases when accounts owners are clearly using the banking system for crimes.
Posted inForfeiture|Comments Off on WaPo: Holder announces new limits on civil asset forfeitures
Snapchat users think their photos are gone, but they’re not.
Snapchat, a popular mobile application, allows users to exchange “self-destructing” messages, pictures, or videos, making investigations involving the program difficult. This whitepaper provides an overview on the application along with search warrant language and techniques to use during investigations.
Posted inSurveillance technology|Comments Off on Police Technical: Snapchat: Investigating the ‘Self-Destructing’ App [free white paper]
The Department of Homeland Security is seeking bids from companies able to provide law enforcement officials with access to a national license-plate tracking system – a year after canceling a similar solicitation over privacy issues.
The prosecutor commented on defendant’s refusal to consent and defense counsel didn’t object. On this record, there was plenty of evidence of defendant’s knowledge of the drugs such that the error, if it was, was prejudicial to him. Jones v. State, 2015 Tex. App. LEXIS 3139 (Tex.App. – Houston (1st Dist.) March 31, 2015).
The court credits that defendant consented to the police entry but they retreated when his pit bull appeared after the dog was put away, then they reentered. Any constitutional violation was minimally flagrant. United States v. Wortham, 2015 U.S. Dist. LEXIS 42929 (E.D. Wis. February 6, 2015), prior op. 2014 U.S. Dist. LEXIS 183249 (E.D. Wis. December 5, 2014).*
Defendant’s car was parked partly on the street with somebody behind the wheel at 2:45 am, so the officer decided to conduct a welfare check and the use of emergency lights didn’t make it an arrest. State v. McCormick, 2015 Tenn. Crim. App. LEXIS 238 (April 2, 2015).*
In a pre-Jones GPS case, even though there was no authority from this circuit, two SCOTUS cases seemingly authorized warrantless GPS: Knotts (1983) and Karo (1984). Thus, the Davis good faith exception would be applied. “We also note that several of our sister circuits have held the good-faith exception applicable under similar circumstances. See, e.g., United States v. Holt, 777 F.3d 1234, 1258-59 (11th Cir. 2015); United States v. Taylor, 776 F.3d 513, 517-19 (7th Cir. 2015) (per curiam); Katzin, 769 F.3d at 173-77 (en banc); United States v. Stephens, 764 F.3d 327, 336-39 (4th Cir. 2014); United States v. Fisher, 745 F.3d 200, 203-06 (6th Cir.), cert. denied, 135 S. Ct. 676 (2014); United States v. Aguiar, 737 F.3d 251, 261-62 (2d Cir. 2013), cert. denied, 135 S. Ct. 400 (2014); United States v. Sparks, 711 F.3d 58, 62-68 (1st Cir.), cert. denied, 134 S. Ct. 204 (2013); United States v. Andres, 703 F.3d 828, 834-35 (5th Cir. 2013); United States v. Pineda-Moreno, 688 F.3d 1087, 1090-91 (9th Cir. 2012).” United States v. Hohn, 2015 U.S. App. LEXIS 5226 (10th Cir. April 1, 2015).
As collateral challenges to the mass surveillance programs disclosed by Edward Snowden like US v. Moalin, US v. Muhtorov, and US v. Mohamud are winding their way through the courts, a lower-profile case – U.S. v. Hailong – is raising the issue of whether a Chinese company’s plot to steal corn seed warrants the use of the Foreign Intelligence Surveillance Act (FISA). This case highlights the near impossibility of effectively challenging the use of these authorities, even in cases of targeted surveillance.
Posted inFISA|Comments Off on Just Security: How a Case of Stolen Corn Seeds Shows the Problem with the FISA Court
While the record isn’t clear, the apartment here appears to be small enough that a protective sweep validly covered all the space inside, including the balcony near where defendant was arrested. United States v. Washington, 2015 U.S. Dist. LEXIS 43617 (D.Nev. February 3, 2015). [It’s a heavy burden for the defense to show that any protective sweep that is just a look isn’t valid based on size of the dwelling. A ten room house is small enough. What about a 40 room house?]
Defendant’s argument isolated the parts of the officer’s testimony in an effort to show no reasonable suspicion, but the argument essentially ignores the totality of circumstances. “It is apparent from defense counsel’s cross-examination, as well as the briefs filed by defense counsel, that Mr. Johnson is arguing, in part, that Trooper Knott had already concluded that he had a drug trafficker when he first saw a black man driving a vehicle with a New Jersey license plate. Thus, Mr. Johnson argues that thereafter Trooper Knott’s conduct was entirely aimed at confirming the conclusion he had arrived at without any supporting information. As a result, Mr. Johnson argues that Trooper Knott had a distorted interpretation of Mr. Johnson’s otherwise innocent and explainable behavior. Seen in this light, Mr. Johnson’s argument is reasonable but still unconvincing.” The officer acted reasonably and professionally throughout. United States v. Johnson, 2015 U.S. Dist. LEXIS 40558 (W.D.Pa. March 30, 2015).*
Six month old information wasn’t stale in a child pornography investigation. Defense counsel informed the defendant that it was a frivolous motion, and defendant concurred not to file a motion to suppress that wouldn’t win anyway. Defendant’s computers were searched and he continued obtaining child porn and he was also convicted of interstate transportation of a minor for sex and was sentenced to life. United States v. Simons, 2015 U.S. Dist. LEXIS 42836 (N.D.Ala. January 6, 2015).*
“Sember has been indicted for stealing certain United States Air Force sensitive and proprietary technical, engineering and computer data and codes having a value in excess of $1,000 in violation of 18 U.S.C. § 641.” The seizure of some matter allegedly beyond the warrant was not per se unreasonable. Also, the court finds the search started at 6 am and not earlier. United States v. Sember, 2015 U.S. Dist. LEXIS 43035 (S.D. Ohio April 1, 2015): Continue reading →
Posted inWarrant execution|Comments Off on S.D.Ohio: Alleged overseizure was not shown to be unreasonable here
“The aphorism that ‘one man’s trash is another man’s treasure’ would certainly apply to the law enforcement officials who investigated this case.” Here, the city sanitation workers were seeing large amounts of marijuana debris coming in, and they called the police. The power company was not a government actor in revealing the defendant’s power usage to the police. “The very nature of marijuana cultivation conspiracies suggests, under some circumstances, that several year old information may not be stale. What’s more, the facts of the warrant affidavit give every reason to believe that such an extensive and long term conspiracy was present.” The warrant showed probable cause. United States v. Ly, 2015 U.S. Dist. LEXIS 40854 (D.Mass. March 30, 2015).
The patdown was with reasonable suspicion and the drug packets were found by plain feel. Defendant failed to assign error to the trial court’s findings on inevitable discovery, so he can’t appeal that ground. Pork v. Commonwealth, 2015 Va. App. LEXIS 105 (March 31, 2015).*
The stop was for speeding, 72/55. Nervousness alone is not enough for reasonable suspicion. An “oddity” in the rental contract, a third party renter not present, was enough to extend the stop. The dog sniff here occurred during the process of issuing the ticket. “Whether a seizure is reasonable is a question of law, which we review de novo.” “This is a close case,” but the court comes down on the side of reasonable suspicion on the totality. The court can’t dictate how the officers should conduct the inquiries, just whether they were wrong to do as they did. United States v. Winters, 2015 U.S. App. LEXIS 5143, 2015 FED App. 0057P (6th Cir. March 31, 2015): Continue reading →
Posted inReasonable suspicion|Comments Off on CA6: Court can’t dictate how officers conduct their reasonable suspicion inquiry, but there are some limits
Privacy advocates sued the Federal Aviation Administration for not addressing privacy issues in recent proposed rules for commercial drones, the latest dust-up over how to regulate unmanned aircraft as the devices become more prevalent in U.S. skies.
Posted inDrones|Comments Off on WSJ: Privacy Group Sues FAA Over Drone Rules
Pre-Jardines dog sniff at an apartment door not saved by Davis good faith exception where no case law authorized it at the time. [Appellee didn’t even file a brief.] People v. Brown, 2015 IL App (1st) 140093, 2015 Ill. App. LEXIS 226 (March 31, 2015).
Plaintiff was ratted out by his half-brother for threatening to kill him and having and making counterfeit bills in his apartment. Since plaintiff was on probation from New Jersey, officers had sufficient information to conduct a probation search based on the phone call. Forney v. Forney, 2015 U.S. Dist. LEXIS 40536 (E.D.N.Y. March 30, 2015).
The 14 page affidavit for search warrant shows probable cause and the warrant sufficient particularity. In any event, the good faith exception would save it. United States v. Byrd, 2015 U.S. Dist. LEXIS 41083 (E.D.Mich. March 31, 2015).*
Posted inUncategorized|Comments Off on IL: Pre-Jardines dog sniff at an apartment door not saved by Davis good faith exception where no case law authorized it at the time
In DL suspensions in Idaho, the burden is on the driver to show a lack of justification for the stop, not on the state to prove that it was valid. “The hearing officer properly concluded that Wernecke failed to prove the arresting officer lacked legal cause to stop Wernicke.” Wernecke v. State, 2015 Ida. App. LEXIS 20 (March 30, 2015). Since this is a civil case, should it matter? I say yes it does. The burden doesn’t change because warrantless anything is presumptively invalid, and the burden is on the state to justify. And, SCOTUS reminded everybody yesterday that the Fourth Amendment applies in civil cases. Civil tort cases helped create the Fourth Amendment, remember? Leach v. Money (1763) and Entick v. Carrington (1765).
Telephone calls to defendants from the undercover officers, passing $150,000 in cash for drugs, preparations for a second transfer of drugs, showing up at the appointed place, etc., was all probable cause for a search of the car they arrived in under the automobile exception. United States v. Deasis, 2015 U.S. Dist. LEXIS 39919 (E.D.N.Y. March 27, 2015).*
One has no standing to contest GPS on another’s vehicle. Green v. State, 2015 Ga. App. LEXIS 228 (March 30, 2015).
"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.
