The officer mistakenly believed that defendant was still on probation, but he wasn’t. The probation search was unlawful, and the good faith exception doesn’t apply in Georgia. State v. New, 2015 Ga. App. LEXIS 115 (March 12, 2015).
The officer searched defendant’s car “incident to arrest” for driving on a suspended DL, but there was no arrest for which a search incident was proper. Nevertheless, the search is valid under inventory as inevitable discovery because the vehicle would have to be towed anyway. United States v. Reed, 2015 U.S. Dist. LEXIS 30825 (S.D.Ind. March 12, 2015).*
Anonymous tip for a DUI stop was insufficient without corroboration. Cook v. State, 2015 Miss. LEXIS 130 (March 12, 2015), revg Cook v. Rankin County, 140 So. 3d 940 (Miss. App. Dec. 3, 2013) (unpublished): Continue reading →
Posted inInformant hearsay|Comments Off on MS: Anonymous tip for a DUI stop was insufficient without corroboration
Defendant had an interlocutory appeal of a search issue, and law of the case controls that. Jardines was, however, decided one month after the appeal, and defendant can raise it on appeal now because it was preserved, and it controls. “Although the officers had a license to approach Perez’s porch and front door to conduct a knock-and-talk, they did not have a similar license to conduct a warrantless search there, with a dog or otherwise. Consent to talk at one’s door does not provide consent to search the curtilage of one’s home. See id. at 1416. ‘The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose.’ Id. Thus, we hold that the warrantless canine sniff of Perez’s front door physically intruded onto the curtilage of his home and, therefore, was an unconstitutional search in violation of the Fourth Amendment.” Perez v. State, 2015 Ind. App. LEXIS 145 (March 11, 2015).
Defense counsel was not ineffective for not raising a Franks challenge based on what defendant proffered in the 2255. It was nothing more than a desire to cross examine that didn’t undermine the witness. The search issue was appealed; this was just another spin on it. United States v. Erickson, 2014 U.S. Dist. LEXIS 182721 (N.D.Fla. September 8, 2014).*
An airport encounter at LAX ended up as consensual searches of luggage. The search of defendant’s car in Pennsylvania was valid based on his abandonment: flight from it leaving the engine running. United States v. Mooty, 2015 U.S. Dist. LEXIS 30092 (E.D. Pa. March 10, 2015).*
Defendant was suspected of drug dealing because of intercepted telephone calls and the use of coded words. When he was stopped, officers found Vaseline, and they knew that was used to hide drug evidence in the rectum. They had enough for a strip search and a visual body cavity search. He pulled it out on his own, and that was consent. People v. Cogdell, 2015 NY Slip Op 02023, 2015 N.Y. App. Div. LEXIS 1974 (3d Dept. March 12, 2015): Continue reading →
Posted inConsent, Reasonable suspicion|Comments Off on NY3: Voluntarily removing drugs from rectum during visual body search was consent
Defendant made a call on a jail phone from the booking area that had no sign or warning on the call that the call was being recorded. The Fourth Amendment generally means that there is no reasonable expectation of privacy in a jail, but what about pre-jail? The court decides the case on Title III grounds that there had to be a warning that the call was being recorded. United States v. Houston, 2015 U.S. Dist. LEXIS 30428 (E.D. Tenn. February 18, 2015).
“[W]e decline Prusha’s invitation to craft a ‘per se’ requirement [under the state constitution] for police to inform an individual of their right to decline to consent to a search in the context of a community caretaking stop.” State v. Prusha, 2015 Iowa App. LEXIS 231 (March 11, 2015) (memorandum opinion).*
Entry into defendant’s home was justified after he threatened a fire marshal with a gun, was generally acting crazy, and going in and out of his house, and there was another person inside. When the police arrived, they could force entry into the home on exigent circumstances. State v. Laney, 2015-Ohio-852, 2015 Ohio App. LEXIS 815 (5th Dist. March 9, 2015).*
Defendant was a regular drug courier between NYC and Burlington VT. He was stopped first in Massachusetts and detained for 22 minutes because the paperwork on the rental car was suspect. The rental car company said there was no problem as long as they got the car back. The state trooper called her counterpart in Vermont and there was another stop based on another traffic stop, and this time defendant had apparent cocaine obvious in his nose hairs. That stop was 40 minutes long. The two consecutive stops are considered separately since there was a separate factual basis for both. United States v. Foreste, 2015 U.S. App. LEXIS 3766 (2d Cir. March 11, 2015): Continue reading →
Posted inDog sniff, Reasonableness|Comments Off on CA2: Successive stops in two states within minutes are individually evaluated; performance records of dog discoverable
After four months of random bag checks at more than 40 CTA stations, the results are in: Officers checked 2,600 bags, found zero explosives and made only one arrest. The bag-check initiative, which began Nov. 3 and had full support of Mayor Emmanuel, is funded by a grant from the Transportation Security Administration and currently has no end date.
The CTA announced it has not received any complaints from the public regarding the bag checks. But what about the one arrest made? Turns out, protestor Scott Davis, 43, told the RedEye he was acting in protest of the violation of his Fourth Amendment rights— which can be registered as a very public complaint, CTA— by refusing to have his bag checked and then attempting to board a Brown Line train. Davis was charged with criminal trespass to state land and disorderly conduct. According to policy, riders are able to refuse bag checks but must leave the CTA station or face arrest. However, refusing a bag check does not stop someone from entering the same station via another entrance, or boarding at a different stop.
So, are the bag checks actually against our Fourth Amendment rights?
Posted inReasonable expectation of privacy|Comments Off on Chicagoist: Are CTA Bag Checks Against Our Fourth Amendment Rights? [And NOBODY COMPLAINED?]
Just because the rent on an apartment hadn’t been paid and there had been no eviction process, his property was there and he was hiding after a murder, he did not abandon the home. The affidavit for search warrant was prepared on legal sized paper but copied on letter sized page, cutting off the signature line. There was no place for the officer to swear to the warrant, although he did sign it somewhere. Even if the first warrant was invalid under the strict state rules for issuance of a warrant, a second warrant had been issued on additional information and that was sufficient to sustain the second warrant. The processes that the state claimed were exigent were “glacial under the circumstances” and they clearly took their time. Exigent circumstances thus does not work for the state. The inevitable discovery rule, however, does. State v. Davidson, 2015 Tenn. Crim. App. LEXIS 164 (March 10, 2015). Are all dead bodies inevitably discovered? To some extent, they would be, as when decomp makes it ever so obvious to everybody within 200′ of the building. Here? Continue reading →
Posted inInevitable discovery|Comments Off on TN: Dead body here subject to inevitable discovery
Defendants were convicted of a murder in D.C. When one defendant was in the hospital, he feigned that he was the shooting victim, and that made the seizure of his clothing in a red biohazard bag as reasonable and in plain view. They could thus be tested for DNA. Sheffield v. United States, 2015 D.C. App. LEXIS 92 (March 12, 2015). The court made this observation: Continue reading →
Posted inPlain view, feel, smell, Reasonableness|Comments Off on DC: Feigning being a shooting victim made defendant’s clothes in ER reasonably subject to seizure
The good faith applies to the nexus argument here [which is also a probable cause question], so the question of probable cause for issuance of the warrant doesn’t even have to be decided [and how lazy is that?]. Here, there was an allegation of firearms and drugs, and defendant was a stable resident of the house, but the information was eight months old. It’s not stale as to the firearms because firearms are commonly kept [even though it would almost certainly be stale as to the drugs alone]. Also, defendant was a stable resident at the house and that heightened the likelihood the stuff would still be there. United States v. Powell, 2015 U.S. App. LEXIS 3816 (6th Cir. March 9, 2015): Continue reading →
Posted inGood faith exception, Nexus|Comments Off on CA6: Good faith exception overcomes a nexus argument, which is a form of PC
The one item an adult in 2015 never leaves home without is his or her cell phone. Pretty soon the same will be true for children as well.
But a controversial new surveillance technique brought to the public’s attention has many concerned for their mobile privacy. Regardless, the unprecedented accuracy and effectiveness of this device – known as a StingRay – may mean it could be coming to a neighborhood near you very soon.
That is, if it’s not there already.
Posted inCell site simulators|Comments Off on Marlin Finance: The rise of the cell phone ‘StingRay’
Defendant’s car was parked on the side of the road as the officer passed from the other direction. He thought it strange, so he turned around and came back. After he pulled up behind the car, off the pavement, the car was put in gear and started to pull away. He turned on his emergency lights, and the car stopped (“was seized”). The stop was without reasonable suspicion, just because it was “strange.” There was no suggestion of a crime at all. State v. Sellers, 2015 Iowa App. LEXIS 220 (March 11, 2015).
Police received a call to a disturbance involving a Troy McDowell. The officer assumed it was Jerome McDowell whom he knew. Driving to the scene, he saw Jerome’s green Cadillac going in the opposite direction and turned around and stopped him. He was OWI, and the stop was found valid because it was reasonable under the circumstances, and it turned out it was the same guy. State v. McDowell, 2015 Iowa App. LEXIS 210 (March 11, 2015).*
While no inventory policy was shown, it was testified to, and the officer complied. “On our de novo review of these facts and circumstances, we conclude the State provided the necessary evidence to support its claim the inventory-search exception applied in this case.” State v. Arellano, 2015 Iowa App. LEXIS 205 (March 11, 2015).*
Posted inInventory, Reasonable suspicion|Comments Off on IA: That it was “strange” a car was parked with lights on on side of road wasn’t RS for a stop
Officers received a call from a motel complaining of the smell of marijuana. Walking up the stairs, they encountered defendant coming down the stairs who reeked of marijuana and stopped him, asked about marijuana, and he produced a bag from his pocket. The stop was reasonable, considering that’s why the officers were called to the motel in the first place. Spradlin v. State, 2015 Ark. App. 166 (March 11, 2015).
“In this case, we consider whether there is a principled basis for interpreting Article I, Section 10, of the Minnesota Constitution to require greater protection than the Fourth Amendment to the United States Constitution in the context of a warrantless search of garbage set out for collection in an area accessible to the public. Applying the principles articulated in Kahn v. Griffin, 701 N.W.2d 815 (Minn. 2005), to the facts of this case, we do not have a ‘clear and strong conviction’ that there is a principled basis for interpreting Article I, Section 10, of the Minnesota Constitution to require greater protection than the Fourth Amendment to the United States Constitution. We therefore affirm.” State v. McMurray, 2015 Minn. LEXIS 113 (March 11, 2015).
Defendant did not show his own reasonable expectation of privacy in a grow operation he was arrested at in Northeast Connecticut out in the woods. The property belonged to another person, and defendant lived two hours away. There was some evidence of his connection to the property, including his getting some mail there, but it was all held not enough. The state found the grow with a helicopter and the coordinates were radioed to officers on the ground. State v. Houghtaling, 2015 Conn. App. LEXIS 89 (March 17, 2015): Continue reading →
Posted inStanding|Comments Off on CT: No guest standing in grow operation shown by defendant’s slim connection to property
A group of civil liberties, public interest and other groups are arguing that the government violated the Fourth Amendment by obtaining cellphone location data of two defendants without getting a warrant in a case being heard by the Sixth Court of Appeals.
The American Civil Liberties Union and its allies filed an amicus brief (pdf) March 9 with the court regarding United States v. Carpenter in which police obtained, without a warrant, four months of historical cellphone location records for defendant Timothy Carpenter and about three months of records for his brother, defendant Timothy Sanders, from their wireless carriers.
Posted inCell site location information|Comments Off on Fierce Mobile Gov’t: ACLU: Gov’t getting cellphone records without a warrant can reveal where you sleep, pray, love
Cell phone dump of records from seven providers to pinpoint one user captured on a video using his cell phone before committing a crime is granted. In re Cell Tower Records Under 18 U.S.C. § 2703(d), 2015 U.S. Dist. LEXIS 28208 (S.D.Tex. March 9, 2015): Continue reading →
Posted inCell site location information, Uncategorized|Comments Off on S.D.Tex. “constrained” to grant cell phone dump of records from seven providers to pinpoint one user captured on a video using his cell phone before committing a crime
Federal and state law enforcement entities across the country are using a powerful cell phone surveillance tool commonly referred to as a “StingRay.” These devices are capable of locating a cell phone with extraordinary precision, but to do so they operate in dragnet fashion, scooping up information from a target device, as well as other wireless devices in the vicinity. In addition, these devices can be configured to capture the content of voice and data communications. Although the federal government has been using these devices since at least 1995, and use by state and local governments is quite widespread, there are only a handful of published opinions addressing their use.
At this juncture, few criminal defense attorneys are aware of these highly intrusive but extremely common surveillance tools. This is entirely understandable because the federal government has a policy of not disclosing information about this device. The government appears to be withholding information from criminal defendants. It even appears to be providing misleading information and making material omissions to judicial officers when it seeks purported court authorization to use this device, inaccurately referring to it by some other name (such as a pen register device) and failing to alert courts to constitutionally material facts about the technology, such as the full breadth of information it obtains from a suspect and its impact on third parties. As a result, courts are probably not aware that they are authorizing use of this device and have not had an opportunity to rule on its legality, except in very rare instances.
Posted inCell site simulators|Comments Off on ACLU Stingray Report: Stingrays: The Most Common Surveillance Tool the Government Won’t Tell You About
In a warning to law enforcement agencies rushing to equip officers with body cameras after killings by police nationwide, a new report says the devices used by Denver officers during a trial period didn’t record most of the use-of-force incidents that occurred.
Denver’s independent police monitor, Nicholas Mitchell, also said police used force more often and citizens’ complaints against officers rose during the cameras’ six-month trial period in the city’s busy downtown district. Police officials repeatedly said they expected the cameras would drive down those numbers.
Posted inSurveillance technology|Comments Off on WaPo: Denver’s pilot program says very little about the effectiveness of police cameras
A parolee was staying in a hotel room between residences, and the officers had probable cause to believe that evidence of counterfeiting would be found there. Therefore, the hotel room qualified as a temporary residence subject to parole search. United States v. Eibeck, 2015 U.S. Dist. LEXIS 28825 (S.D.Cal. February 25, 2015).
In this case, a police officer was terminated for jamming his nightstick into a suspect’s mouth in violation of the department’s code of ethics: “Police officers will never employ unnecessary force or violence and will use only such force in the discharge of duty as is reasonable in all circumstances. While the use of force is occasionally unavoidable, police officers will refrain from applying the unnecessary infliction of pain or suffering and will never engage in cruel, degrading, or inhuman treatment of any person.” The excuse was that the suspect supposedly had ingested three rocks of crack. Then, they let him go without medical treatment. Melkowski v. Bd. of Police Comm’rs of Kan. City, 2015 Mo. App. LEXIS 264 (March 10, 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.
