Without using the words “law of the case” or “res judicata,” the court declines to overturn a motion to suppress that had been litigated in a prior appeal in the same case. State v. Stipe, 2015 La. App. LEXIS 251 (La.App. 5 Cir. February 11, 2015); Ingram v. State, 2015 Del. LEXIS 74 (February 11, 2015).
The smell of marijuana at a traffic stop was reasonable suspicion for a longer detention. United States v. Travis, 2015 U.S. Dist. LEXIS 17943 (D.Minn. January 9, 2015).*
While other uses of a cell phone are lawful under state law, the record supports the officer’s reasonable belief that defendant was texting while driving as a basis for the traffic stop. United States v. Paniagua-Garcia, 2015 U.S. Dist. LEXIS 17830 (S.D.Ind. February 13, 2015).*
Posted inReasonable suspicion|Comments Off on LA5 & DE: Search issue resolved in prior appeal was law of the case
Officer’s testimony that he was a drug recognition expert didn’t support probable cause here that defendant was under the influence when driving because there was also no evidence of impairment. United States v. McAuley, 2014 U.S. Dist. LEXIS 181937 (W.D.N.Y. March 19, 2014): Continue reading →
Posted inDrug or alcohol testing, Probable cause|Comments Off on W.D.N.Y.: Dilated pupils without impaired driving seen by a DRE officer still not PC
A citizen’s report of a traffic offense occurring two days earlier did not support defendant’s stop. It’s not even reasonable suspicion. State v. Medrano, 2015 Iowa App. LEXIS 94 (February 11, 2015):
If given the opportunity to address the issue, we do not believe our supreme court will find that reasonable suspicion of a completed misdemeanor not observed by the officer is sufficient to effectuate a traffic stop amounting to a seizure. In such circumstances, the officer would not be able to arrest or issue a citation in lieu of arrest for the completed simple misdemeanor without probable cause that the person to be arrested committed the offense. See Iowa Code § 804.7(2) (an officer may make an arrest without a warrant “[w]here a public offense has in fact been committed and the peace officer has reasonable ground for believing that the person to be arrested has committed it”); Iowa Code § 805.1(1) (a citation in lieu of arrest may be issued by “a peace officer having grounds to make an arrest”). “Reasonable grounds” is synonymous with probable cause. State v. Freeman, 705 N.W.2d 293, 298 (Iowa 2005).
Posted inReasonable suspicion|Comments Off on IA: Citizen’s report of a traffic offense occurring two days earlier can’t support a stop
John Dougherty was the target of a sealed search warrant and affidavit that led to no indictment. Later, Donald Dougherty (no relation) was indicted and, in his case, the John Dougherty search warrant and affidavit were accidentally filed of record. The newspapers got their hands on it, and litigation ensued in state court. Under the Anti-Injunction Act, the federal court can’t order the state court to reseal the affidavit and warrant. United States v. Dougherty, 2015 U.S. App. LEXIS 2209 (3d Cir. February 12, 2015).
Officers had good reason to believe that a person named in an arrest warrant was in defendant’s house based on investigation and a CI. After officers entered, defendant lied about her presence. They learned that defendant was on probation, so they conducted a full search of the house finding a gun. United States v. Baker, 2015 U.S. App. LEXIS 2198 (11th Cir. February 12, 2015).*
Whether the affidavit for search warrant has any false information for Franks is essentially irrelevant here because of the plain view doctrine. In addition, the motion is not timely; it’s filed a year past the motions deadline on the eve of trial. United States v. Alcaraz, 2015 U.S. Dist. LEXIS 16135 (D.Nev. February 2, 2015).*
Posted inArrest or entry on arrest, Plain view, feel, smell|Comments Off on CA3: Federal court can’t enjoin state court to re-seal a SW affidavit accidentally released in a federal case and published by press
A federal judge in Arizona is planning a series of hearings to find out if Maricopa County Sheriff Joe Arpaio should be held in contempt of court for violating the court’s orders. It’s the latest twist in a lawsuit that found the sheriff’s exuberant crackdown on illegal immigration racially profiled Latino drivers.
Posted inArrest or entry on arrest|Comments Off on NPR: Arizona Sheriff Joe Arpaio Facing More Legal Troubles
The continuing fight for e-mail privacy and against terrible aspects of the Electronic Communications Privacy Act.
Ronald Bailey wrote on Reason earlier this month on one piece of encouraging legislation the Online Communications and Geolocation Protection Act, which would try to end the awful current practice of considering all email over six months old completely open to government search without a warrant.
Posted inECPA|Comments Off on Reason: Congress Trudges Ahead on Perhaps Honoring the Fourth Amendment
No one would ever say that it’s fun to go through a DUI checkpoint, at least in part because they slow people down from getting to their destination. However, there’s a general understanding that while the process isn’t ideal, the checks help keep impaired drivers off the roads. A Florida defense attorney is challenging that status quo by refusing to roll down his window or talk to police, and he’s advising other motorists to do the same.
Lawyer Warren Redlich created a slip of paper that says in bold letters, “I remain silent. No searches. I want my lawyer.” In a video, he shows how to get through a sobriety checkpoint without speaking to police or lowering the window. The driver simply displays the document along with his license, insurance and registration, and the cops wave him on.
Posted inDrug or alcohol testing|Comments Off on AutoBlog: Florida drivers are refusing to talk to police at DUI checkpoints… and taping it
The government’s typical seize first, search second normal search protocol doesn’t work with email. This search warrant for a Gmail account is denied. Try again. In re [Redacted]@gmail, 2014 U.S. Dist. LEXIS 181984 (N.D.Cal. May 8, 2014) (apparently under seal for a while). I can’t shorten this and do it justice. Here’s the whole opinion, and it isn’t that long:
ORDER DENYING APPLICATION FOR A SEARCH WARRANT
On most days, the undersigned joins the teeming masses of the Bay Area on Highway 101 or 280. Lengthy queues form at each exit in Mountain View, Sunnyvale and Cupertino. Double decker buses pulse with their Wi-Fi as they move past in the diamond lane. On other days, on the ride to the courthouse on Caltrain, passenger after passenger bears the access badges that similarly mark the proliferation of the technology worker. A similar scene plays out as much at the humble downtown San Jose taqueria as the overpriced Palo Alto cafe. The Technorati are, in short, everywhere. And yet too few understand, or even suspect, the essential role played by many of these workers and their employers in facilitating most government access to private citizen’s data.
Search warrant applications like the one presently before the court bring this role into view. Continue reading →
Posted inE-mail, Overbreadth|Comments Off on N.D.Cal.: The government’s typical seize first, search second normal search protocol doesn’t work with email
“First, Joubert argues that a nexus is lacking because the affidavit contains no allegations that he committed any offenses at the location being searched. But Joubert misidentifies the relevant inquiry. The question is whether evidence of the crime is likely to be found in the specific place being searched, not whether the crime occurred there. See Zurcher v. Stanford Daily, 436 U.S. 547, 556-57 (1978); … see also United States v. Kapordelis, 569 F.3d 1291, 1310 (11th Cir. 2009) (‘There need not be an allegation that the illegal activity occurred at the location to be searched, for example the home’). As we explain below in rejecting Joubert’s third argument, there was indeed such a likelihood.” United States v. Joubert, 2015 U.S. App. LEXIS 2127 (1st Cir. February 11, 2015).
Posted inNexus|Comments Off on CA1: Nexus is whether evidence will be found in the place searched, not whether a crime occurred there
Defendant left an unmarked flash drive in a university classroom. A teacher opened the drive to attempt to identify the owner and found papers with two names on it. She looked at the photos folder and found child pornography which she reported to university security. He was ultimately charged with it. “We conclude, like in Miller, that the trial court did not abuse its discretion in finding the circumstances did not rise to a level that any subjective expectation by Kane was objectively reasonable.” The search of the flash drive also did not violate the state computer security statute. Kane v. State, 2015 Tex. App. LEXIS 1291 (Tex. App. – San Antonio February 11, 2015): Continue reading →
Defendant was stopped in Nashville because his LPN didn’t match his old pickup truck, which the officer checked on a hunch because it was relatively common in that area of town with older vehicles. When the defendant produced paperwork showing that the vehicle was [supposedly] legally registered he argued that the officer should have let him go. The officer’s experience was that that happened only once in a great while, and the court relied on another case of his from 2003 with the same circumstances. The fact the computer might be wrong does not negate the probable cause for the stop. Defendant was indicted for and ended up pleading to being an habitual motor vehicle offender. [Which begs the question: if the vehicle was properly registered, why’d he plead?] State v. Meadows, 2015 Tenn. Crim. App. LEXIS 102 (February 10, 2015).
Posted inUncategorized|Comments Off on TN: Stop on computer check that LPN was wrong was valid, even if def had paperwork that said it was right
Defendants were convicted of manslaughter in the deaths of three tenants in a fire in their house converted to apartments. There were numerous code violations, including lack of smoke detectors and enough exits, discovered as a result of a tenant complaint just days before the fire. One of the defendants was told to fix it, and the inspector would be back, and he was the day before the fire. The hardwired smoke detectors had been disabled, and battery powered ones were nonfunctional. Finally there was a fire in the basement apartment, and the rest of the building was filed with smoke. The three who died were from smoke inhalation in the top floor. The fire was accidental, caused by an electrical short in a small appliance. The fire marshal entered the property as soon as the fire department let him in, and it was still smoking. The fire scene entry was reasonable, but it really didn’t matter because defendants’ liability for the deaths didn’t turn on that. They also raised that the fire marshal conducted an unreasonable search by staying too long, but that issue wasn’t presented to the trial court and is waived for appeal. Commonwealth v. Zhan Tang Huang, 2015 Mass. App. LEXIS 11 (February 11, 2015): Continue reading →
Posted inAdministrative search|Comments Off on MA: Fire scene search was moot point since issue was lack of smoke detectors found in inspections up to day before fire; changing argument on appeal is waiver
The department filed a two-page grant application in August 2013 with the California Office of Emergency Services requesting $300,000 for a new Stingray device. The sheriff’s department said it needed the new Stingray to replace one it purchased in 2006 that would soon be obsolete.
Posted inCell phones|Comments Off on ABC News 10 Sacramento: Sacramento Co. Sheriff’s Dept. updates its cell phone spying tools
Members of a House Judiciary subcommittee agreed Wednesday that legislative changes are needed to prevent local and state police from making cash and property seizures under federal law without clear evidence of criminal wrongdoing.
Posted inForfeiture|Comments Off on WaPo: House panelists say changes are needed to end civil forfeiture abuses
The military and the police, the institutions tasked with protecting us from outsiders and from ourselves, still rank as the first- and third-most-trusted groups in this society (small business is second).
Posted inDrones|Comments Off on NYTimes Magazine: What Our Paranoia About Drones Says About Us
“In this appeal, we are asked to determine whether the police lawfully searched defendant’s jacket, which was lying on the trunk of a police car, while defendant was sitting handcuffed in the vehicle and numerous police officers were present at the scene. We conclude that, at the time of the search, the jacket was not within defendant’s grabbable area, and there were no exigent circumstances justifying a warrantless search of the jacket incident to arrest. [citations omitted] The dissent’s contention that our decision will endanger the police and public is unsupported by the record, and cannot be reconciled with controlling precedent. We recognize the difficult job that police officers face when arresting suspects, but no one was in danger here once the suspect was subdued, and the officers had other legal means available to them to secure the jacket safely. Under these circumstances, the evidence recovered from the jacket should have been suppressed.” People v. Morales, 2015 NY Slip Op 01190, 2015 N.Y. App. Div. LEXIS 1198 (February 10, 2015).
Posted inSearch incident|Comments Off on NY1: Search incident of a jacket on the trunk of police car when def handcuffed and inside car was unreasonable
A homeless person’s temporary structure, a tarp over a crate and a shopping cart, was encroaching on the sideway, the right-of-way. Therefore, he had no reasonable expectation of privacy in it under the state constitution or the Fourth Amendment, and it could be removed. Entry into the enclosure was not unreasonable. State v. Tegland, 269 Or. App. 1 (February 11, 2015): Continue reading →
Summers, on detaining persons near the scene of search warrants, is applied, in an unreported decision, to arrest warrants, too. Gomez v. United States, 2015 U.S. App. LEXIS 2118 (11th Cir. February 11, 2015): Continue reading →
Posted inArrest or entry on arrest|Comments Off on CA11: Summers applies to arrest warrant execution, too
"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.
