A person in jail has no reasonable expectation of privacy in a cell phone found hidden in the cell, prison contraband, and a warrantless search of the cell phone is proper. United States v. Boyce, 2015 U.S. Dist. LEXIS 23129 (D.V.I. February 26, 2015).
No matter which version of the facts is credited, that defendant struggled with the officers during the stop or was merely uncooperative, the officer could smell marijuana and that furnished a basis to search the car. United States v. Hickman-Smith, 2015 U.S. Dist. LEXIS 22885 (D. Neb. January 15, 2015).*
It was objectively reasonable for the officer to conclude that defendant failed to signal at the red light when he turned right. State statute says 200′ out from the turn. He says he decided while he was sitting there to turn right. Either way, the signal wasn’t used, and his subjective intent doesn’t diminish the officer’s objective observation. Peak v. State, 2015 Ind. App. LEXIS 110 (February 25, 2015).*
Taking a DNA swab from a juvenile on probation violated the state statute on juvenile probation, but the court declines to suppress the evidence because probation officers cannot be deterred from committing such statutory violations. “Juvenile probation officers performing a supervisory function for the juvenile court have no stake in the outcome of criminal prosecutions and thus the threat of exclusion ‘cannot be expected significantly to deter them.’ Leon, 468 U.S. at 917; see Calandra, 414 U.S. at 347; Altman, 960 P.2d at 1168.” People v. Casillas, 2015 Colo. App. LEXIS 289 (February 26, 2015). Earlier in the opinion: Continue reading →
The CI’s statement here was uncorroborated and 3-4 months old. Thus, the search warrant lacked probable cause and it was so lacking in probable cause, that the good faith exception cannot apply. Cartwright v. State, 2015 Ind. App. LEXIS 107 (February 25, 2015): Continue reading →
The Republican Party needs to prove it values rights like freedom of speech and the right to a speedy trial as much as it values gun rights, Rand Paul said Friday.
“We do a great job defending the Second Amendment, and everybody knows that,” the Kentucky senator and potential presidential candidate said at the Conservative Political Action Conference (CPAC). “But we have to defend the whole Bill of Rights.”
“To defend the Second amendment, you have to defend the Fourth Amendment,” he continued. “You need the First Amendment to protect the Second Amendment… The Fifth, the Sixth — we should have speedy trials in our country.”
Posted inUncategorized|Comments Off on CBS: Rand Paul: GOP needs to care about more than gun rights [Stated another way: The Bill of Rights isn’t multiple choice]
A Honda owner’s car was stolen, and it was equipped with LoJack. LoJack directed the police to defendant’s garage, and the police, without a warrant, announced their presence. Inside they could hear power tools and tools dropping when they yelled out “Police.” Coming upon an active chop shop was exigency for a warrantless entry. The proof showed that a car could be dismantled in minutes and serial numbers removed. Commonwealth v. Ramos, 2015 Mass. LEXIS 100 (February 26, 2015): Continue reading →
Posted inEmergency / exigency|Comments Off on MA: Police brought to a working chop shop by a LoJack alert was exigent circumstance for warrantless entry
The Utah State Senate on a 27-0 vote has passed legislation to require law enforcement agencies to obtain a warrant before accessing the state’s controlled substance database.
Sen. Todd Weiler, sponsor of the legislation, tells Health Data Management that police search the database up to 11,000 times a year in what he believes are “fishing expeditions” to find individuals to prosecute, and they should have to show probable cause to access the database.
The legislation also enables an individual whose prescription records are in the database to obtain a list of persons who have had access to the records unless the records are subject to an investigation.
Posted inSubpoenas / Nat'l Security Letters|Comments Off on Health Data Mgmt: Utah Questions Police Access to Controlled Substances Database
Defendant’s consent to search a box when he was in custody in a holding cell in Seattle airport’s jail was shown to be voluntary. He said “Go ahead. It’s just helicopter parts.” Heroin and meth were found in a radio in a box. Officers had their attention drawn to him because he had a warrant for his arrest. [Reading between the lines, one might assume that TSA found the warrant since they get passenger lists, and he was taken into custody at the gate getting on a flight to Juneau.] United States v. Benedict, 2015 U.S. Dist. LEXIS 22808 (D.Alaska February 13, 2015).
There was probable cause for issuance of a search warrant for defendant’s house for child pornography on computers. United States v. Dorweiler, 2015 U.S. Dist. LEXIS 22540 (D.Minn. February 9, 2015).*
The only basis for using force during the stop of plaintiff’s car was if there was a man in it, and then against him. The use of force against her, driving alone, was apparently excessive, and qualified immunity was properly denied. Brown v. Lewis, 2015 U.S. App. LEXIS 2917 (6th Cir. February 26, 2015).*
The U.S. Supreme Court is set to meet privately on Friday to discuss whether Americans have a constitutional right against surreptitious collection of their DNA.
Glenn J. Raynor was convicted of rape in 2009 in Harford County Court; his DNA had been collected from a chair after he refused to voluntarily give police a sample.
The matter is now in the Supreme Court. Daily Record Legal Affairs Writer Steve Lash has written extensively about the issue.
Posted inDNA|Comments Off on Daily Record (Md.): Can police take your DNA without consent or a warrant?
Officers were called for a civil standby to assist a woman from moving out of a house where she feared trouble from her roommates. It was objectively reasonable to believe her based on her conversation and because she had a key to the house. A grow operation was seen and photographed, and defendant was interviewed two days later and admitted running the grow. Then a search warrant issued. State v. Urziceanu, 2015 MT 58, 2015 Mont. LEXIS 58 (February 24, 2015).
Trash out for collection can be searched. People v. Crump, 2015 NY Slip Op 01662, 2015 N.Y. App. Div. LEXIS 1663 (2d Dept. February 25, 2015).
No exigency justified defendant’s warrantless blood draw in an intoxication manslaughter case. Chidyausiku v. State, 2015 Tex. App. LEXIS 1750 (Tex. App.–Ft. Worth February 19, 2015).*
Police received multiple calls, some anonymous, about shots fired, and they were ultimately directed to defendant’s house which they approached from the rear. One caller said a gun was kept in a doghouse, and there were pit bulls in the backyard. There was a chain link fence and defendant refused to come to the fence to be frisked for weapons. When the door was opened, the officer smelled burnt marijuana coming from the house. The warrantless search of the house was unjustified based on smell of burning marijuana. State v. Samuell, 2015 N.J. Super. Unpub. LEXIS 363 (February 25, 2015): Continue reading →
Codefendant consented to a search of shared business premises. His general consent to search the basement did not extend to breaking open a safe that both said was defendant’s because he had no joint control over the safe. United States v. Abdullah, 2015 U.S. Dist. LEXIS 22621 (W.D.N.Y. February 25, 2015), R&R 2014 U.S. Dist. LEXIS 182405 (W.D. N.Y. October 31, 2014): Continue reading →
Posted inApparent authority|Comments Off on W.D.N.Y.: Co-owner of a business couldn’t consent to opening safe officers knew was owned solely by other co-owner
“Onlookers” reported hearing “strangulation sounds” during an argument in an apartment, and that was exigency. Defendant was an overnight guest who had standing under Olson. United States v. Harris, 2014 U.S. Dist. LEXIS 182312 (D.Mont. February 24, 2015) (note incorrect citation).
The undisputed facts show that the officer smelled “fresh” marijuana, and that justified a search under the automobile exception, so a hearing isn’t even necessary. United States v. Landry, 2015 U.S. Dist. LEXIS 21512 (N.D.Cal. February 23, 2015).*
Headlight out justifies a stop. State v. Lensgraf, 2015 Iowa App. LEXIS 162 (February 25, 2015).*
Posted inUncategorized|Comments Off on D.Mont.: “Onlookers” reporting hearing “strangulation sounds” during an argument in an apartment was exigency
Where the police attempt a knock and talk and it’s apparent to them that somebody is home but not coming to the door, it is not unreasonable to go to another door to attempt an answer. Thus, the curtilage may be invaded to that limited extent. The court notes that SCOTUS left this open in a qualified immunity case in November: Carroll v. Carman. The warrantless entry was based on exigency. “While Manning might be ungrateful that law enforcement intervened during his drug overdose, he is incorrect in asserting that they were unjustified in entering his home.” United States v. Manning, 2015 U.S. Dist. LEXIS 22202 (E.D.Ky. February 23, 2015), R&R 2014 U.S. Dist. LEXIS 182358 (E.D. Ky. November 6, 2014): Continue reading →
Posted inCurtilage, Emergency / exigency|Comments Off on E.D.Ky.: If police reasonably believe someone not answering, knock and talk can go from front door to another door; finding overdose victim justified entry
Violating the Fourth Amendment is not the president’s prerogative
What if the current massive spying on Americans began with an innocent secret executive order signed by President Reagan in 1986? What if Reagan contemplated that he was only authorizing American spies to spy on foreign spies unlawfully present in the United States?
What if Reagan knew and respected the history of the Fourth Amendment? What if the essence of that history is the colonial revulsion at the British use of general warrants? What if general warrants were issued by a secret court in London and authorized British agents in America to search wherever they wished and to seize whatever they found? What if the revulsion at this British government practice was so overwhelming that it led to the Revolutionary War against the king?
Posted inFISA|Comments Off on Washington Times: What if the government fears freedom?
Defendant here argues that the difference between a black or a dark gray Dodge Charger having been involved in a bank robbery was significant. It’s not, especially when the vehicle flees as the officer attempted to stop it shortly after the robbery. The first search warrant for defendant’s house was plainly invalid for a failure to particularly describe the things to be seized, but a second was issued on the same affidavit to correct the problem, and it was sufficient and was issued before they left the premises. It also included nothing observed during the first admittedly “warrantless” search. United States v. Gatlin, 2015 U.S. Dist. LEXIS 21840 (D.Minn. January 26, 2015). (The problem, of course, is that the first warrant obviously wasn’t even read by the issuing judge or that judge is completely obtuse, or that should have been caught. At least a sharper officer, Det. Slawson, at the scene caught the problem before it was incurable.): Continue reading →
Posted inParticularity|Comments Off on D.Minn.: Officer on scene noted SW facially deficient for lack of particularity and had another issued that cured the first
Backed by groups concerned about government intrusion on privacy, a criminal defense attorney on Tuesday asked a federal appeals court to put the brakes on the warrantless acquisition of cellphone company records that can help identify a phone user’s location.
Posted inCell phones|Comments Off on Daily Report: Full Eleventh Circuit Hears Cellphone Privacy Case
The chairman of the powerful House Judiciary Committee is sponsoring a bill that will prevent police officers from confiscating property without having proof that the owner was involved in drug law violations.
Posted inForfeiture|Comments Off on Maryland Reporter: Restrictions proposed on police seizure of property in drug trade
Even before the Federal Aviation Administration unveiled its proposed regulations for commercial drone flights in the United States last week, one company was already at work, using drones to collect data from unsuspecting citizens in Los Angeles.
The Chicago police department operates an off-the-books interrogation compound, rendering Americans unable to be found by family or attorneys while locked inside what lawyers say is the domestic equivalent of a CIA black site.
Posted inPolice misconduct|Comments Off on The Guardian: The disappeared: Chicago police detain Americans at abuse-laden ‘black site’
Revisiting the story of a man arrested at his job for “trespassing”—and the cops who paid no price for wrongly detaining him dozens of times.
The radio show This American Life recently broadcast a number of stories on policing. They’re collected in the episodes “Cops See It Differently,” Part One and Part Two.
The episodes illuminate why police and their critics often see the same events very differently. For example, one anecdote concerns a man in the back of a police car who told his arresting officers that he was having trouble breathing. They ignored him. He died. Many who watched the video saw callous cops who placed no value on a human being’s life. But police officers who watched the same tape saw two cops who thought that their seemingly healthy arrestee was faking, as so many people fabricate medical conditions to avoid being taken to jail.
These differences in perspective are useful to understand, even if one believes that a given incident is clearly the fault of the police or the person they’re arresting.
In that spirit, I’d like to focus on “Inconvenience Store,” the This American Life segment where the behavior of the police officers struck me as most difficult to comprehend. I’ll relay what happened to a man named Earl Sampson in Miami Gardens, Florida, and invite any willing police officers to write in with their thoughts.
Posted inPolice misconduct|Comments Off on The Atlantic: Asking America’s Police Officers to Explain Abusive Cops
"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.
