Under Colorado’s statute requiring consent searches be preceded by a warning of a right to refuse consent, this consent was valid on the totality of circumstances. He was warned of the right to refuse orally and in writing in English and Spanish. People v. Munoz-Gutierrez, 2015 CO 9, 2015 Colo. LEXIS 69 (February 9, 2015):
[*P37] Thus, when considering the totality of the circumstances, we conclude that Munoz-Gutierrez provided voluntary oral consent to search his vehicle. Although the troopers did not explicitly comply with the factors in section 16-3-310(1)(b), other evidence, such as the fact that Munoz-Gutierrez and Trooper Biesemeier were able to communicate in Spanish, demonstrates that the troopers’ conduct did not overbear Munoz-Gutierrez’s exercise of free will because the conduct was not sufficiently coercive or deceptive to a person with his characteristics in his circumstances. While the trial court found that the written consent that Munoz-Gutierrez gave was improperly obtained, we need not reach that issue because the voluntary oral consent was sufficient. We conclude that Munoz-Gutierrez’s oral consent was voluntary.
Posted inConsent|Comments Off on CO statute on advice of right to refuse consent applied under totality standard
AOL’s TOS is a waiver of a reasonable expectation of privacy in images transmitted through AOL. They have the right to look at them and report suspected child pornography to NCMEC. United States v. Heleniak, 2015 U.S. Dist. LEXIS 15354 (W.D. N.Y. February 9, 2015): Continue reading →
Posted inConsent, E-mail|Comments Off on W.D.N.Y.: Declining to go as far as the S.D.N.Y., court orders hearing on whether def knew of AOL’s TOS that it reports child porn
A nine day wait to get a search warrant for a cell phone admittedly seized on exigent circumstances was not unreasonable, particularly where the defendant didn’t ask for it back. United States v. Winn, 2015 U.S. Dist. LEXIS 15240 (S.D. Ill. February 9, 2015): Continue reading →
Posted inCell phones, Warrant execution|Comments Off on S.D.Ill.: 9 day delay in getting SW for phone seized on exigent circumstances not unreasonable
Officers had an arrest warrant for Herman Smith at a particular address in Madison, Illinois. They obtained entry by consent. Once inside, they learned that what they thought was a single family residence was really three. They entered defendant’s separate quarters without consent or a warrant, and the entry was unreasonable. There was no reason to believe Smith was in there. There they found 500g of crack. United States v. Williams, 2015 U.S. Dist. LEXIS 15238 (S.D.Ill. February 9, 2015). This is an excellent opinion on the dearth of case law comparing arrest and search warrants (omitted below): Continue reading →
Posted inArrest or entry on arrest|Comments Off on S.D.Ill.: Arrest warrant for one person and consent entry didn’t authorize entry into separate apartment in house [excellent discussion of arrest v. search warrants]
Mr. Nelson, who paints buildings but is out of work, is among 15 residents of the St. Louis region who filed two lawsuits on Sunday evening, one against Ferguson and the other against Jennings, another suburb. The suits, which seek class-action status, were filed in the United States District Court for the Eastern District of Missouri.
Posted inArrest or entry on arrest|Comments Off on NYTimes: Ferguson One of 2 Missouri Suburbs Sued Over Gantlet of Traffic Fines and Jail
A cigarette butt at the crime scene had defendant’s DNA on it according to CODIS, and that supported a search warrant for defendant for confirmatory DNA. State v. Williams, 2015-Ohio-405, 2015 Ohio App. LEXIS 375 (6th Dist. January 30, 2015).
Defendant’s girlfriend’s statement that there was child pornography on his computer was so conclusory as to not provide probable cause for a search warrant. She, however, had sufficient common authority as a joint user of the computer to consent to its search, which she also did. State v. McGaffey, 2015-Ohio-392, 2015 Ohio App. LEXIS 361 (6th Dist. January 30, 2015).*
Defendant’s car was parked and under surveillance for drug dealing. An officer approached the car and could smell marijuana coming from it, and that was reasonable suspicion. State v. Chandler, 2015-Ohio-396, 2015 Ohio App. LEXIS 367 (6th Dist. January 30, 2015).*
When the contents of a storage unit are sold at auction for nonpayment of rent, the defendant loses his reasonable expectation of privacy in the unit. State v. Coopman, 2015-Ohio-457, 2015 Ohio App. LEXIS 414 (6th Dist. February 6, 2015): Continue reading →
Posted inAbandonment, Reasonable expectation of privacy|Comments Off on OH6: When the contents of a storage unit are sold at auction for nonpayment of rent, the defendant loses standing
In a neighborhood feud murder case, the known, albeit limited, facts strongly suggested that defendant was the shooter and thus the murder weapon would be found at his house. This was sufficient nexus. Also, citizen informants don’t have to be corroborated, and inconsistencies between them does not undermine probable cause. Fry v. State, 2015 Ind. App. LEXIS 68 (February 4, 2015).
At the time of defendant’s warrantless cell phone search, this court had held that a search incident was reasonable. Therefore, even though that authority was overruled by the state supreme court on further appeal, the good faith exception would be applied, and the phone’s contents would not be suppressed. State v. Carpenter, 2015 Fla. App. LEXIS 1461 (Fla. 1st DCA February 5, 2015).*
In a case involving several alleged rights of the homeless in Sacramento, the mere threat to arrest them was not coercive in violation of a state civil rights law. Allen v. City of Sacramento, 2015 Cal. App. LEXIS 116 (3d Dist. February 6, 2015).*
It was objectively reasonable for the officer here to stop the defendant for a parking pass hanging from the mirror which could have obstructed the driver’s view. Here, the driver was subjected to a consensual patdown for weapons that led to finding marijuana on him. That led to a search incident of the vehicle, and defendant was also charged with drugs. Mason v. Commonwealth, 2015 Va. App. LEXIS 35 (February 3, 2015), on rehearing en banc and reversing 63 Va. App. 587, 760 S.E.2d 831 (2014) (2-1): Continue reading →
Posted inReasonable suspicion|Comments Off on VA: Stop for parking pass hanging on mirror was objectively reasonable; subjective intent irrelevant
WaPo: Police accountability measures flood state legislatures after Ferguson, Staten Island by Reid Wilson:
More than a dozen states are considering new legislation aimed at increasing police accountability in the wake of incidents in Ferguson, Mo.; Staten Island, N.Y.; and Cleveland that left unarmed black men dead at the hands of officers.
Dozens of bills addressing body cameras for police have been filed in at least 13 states. Other proposed measures would change the way police departments report officer-involved shootings, racial profiling and the way courts deal with low-level offenders.
Posted inExcessive force, Police misconduct|Comments Off on WaPo: Police accountability measures flood state legislatures after Ferguson, Staten Island
Criminal justice reform is a contentious political issue, but there’s one point on which pretty much everyone agrees: America’s prison population is way too high. It’s possible that a decline has already begun, with the number of state and federal inmates dropping for three years straight starting in 2010, from an all-time high of 1.62 million in 2009 to about 1.57 million in 2012. But change has been slow: Even if the downward trend continues, which is far from guaranteed, it could take almost 90 years for the country’s prison population to get down to where it was in 1980 unless the rate of decline speeds up significantly.
Posted inUncategorized|Comments Off on Slate: Why Are So Many Americans in Prison? A provocative new theory
Defendant was validly stopped for a license plate sticker violation, but his detention for 25 minutes for a drug dog to arrive was without reasonable suspicion of wrongdoing. He refused to consent to a search of his car and he was nervous, but that’s not enough. State v. Young, 2015-Ohio-398, 2015 Ohio App. LEXIS 369 (6th Dist. January 30, 2015).
Defendant’s 81 minute detention after a traffic stop on probable cause led to reasonable suspicion of more criminal activity. The length of the stop was long, but it was diligently pursued. United States v. Rivera, 2015 U.S. Dist. LEXIS 13902 (E.D.N.Y. February 4, 2015).*
What ever deficiency there was in the FST, there was still probable cause for defendant’s arrest for DUI. State v. Hudgins, 2015 Del. Super. LEXIS 62 (January 16, 2015).*
Posted inProbable cause, Reasonable suspicion|Comments Off on OH6: 25 minute detention waiting for drug dog unreasonable; def had a right to refuse consent and was nervous, and that’s not enough
2009 consent was attenuated from 2007 search. Dawkins v. United States, 12-CO-1648, 2015 D.C. App. LEXIS __ (February 5, 2015), prior appeal 41 A.3d 1265, 1272-73 (D.C. 2012).
Considering in detail all the evidence in the case, the court finds defendant’s consent to search a computer in this child pornography case was voluntary and was not granted after the computer was already searched. United States v. Hunter, 2014 U.S. Dist. LEXIS 181731 (N.D.Ga. September 12, 2014), adopted 2015 U.S. Dist. LEXIS 14179 (N.D.Ga. February 6, 2015).*
Assuming a constitutional violation [which it likely isn’t], “[o]ur case law does not clearly establish that consent to a limited search is involuntary when given after the consenting party has had the opportunity to consult with an attorney. Cf. United States v. Wellins, 654 F.2d 550, 555-56 (9th Cir. 1981) (holding that a defendant’s consultation with his attorney was a ‘crucial factor’ in determining that the defendant validly consented to a search of his hotel suite).” Loudermilk v. Arpaio, 2015 U.S. App. LEXIS 1756 (9th Cir. February 4, 2015).*
Sheriff Joe Arpaio of Maricopa County is spending $1 million to buy 700 body cameras for deputies as part of a court ruling that found his office had racially profiled Latino drivers, the company selling the cameras said Friday.
Posted inUncategorized|Comments Off on NYTimes: Arizona: Maricopa Deputies Will Get Body Cameras
Defendant was wanted in a double murder, and police got a court approved ping order to locate his phone, and he was in Oklahoma. Defendant saw that he was being followed and led the police on a high speed chase and fled from the car. Even if the ping order was unlawful it’s an issue that does not have to be decided because defendant’s flight was an intervening act that would make the whole thing admissible. State v. Hosier, 2015 Mo. LEXIS 12 (February 3, 2015): Continue reading →
Posted inGPS / Tracking Data|Comments Off on MO: Even if ping order was unlawful, defendant’s flight from police was an intervening act
The Silk Road trial is over. A jury found Ross Ulbricht guilty on all seven charges, including money laundering, drug trafficking, and the “kingpin” charge. That’s not just bad news for Ulbricht, who faces life in prison. His trial could help establish a dangerous precedent, which could allow law enforcement to gather evidence illegally.
While many watching the trial were fascinated by all the ways that Ulbricht’s identity was definitively linked to the pseudonymous digital drug bazaar runner Dread Pirate Roberts, they overlooked something crucial. The FBI never had to explain how it located and infiltrated the Silk Road’s hidden servers. The fact that the evidence law enforcement provided from those servers was admitted despite the lack of clarity about their sources is troubling.
Posted inComputer and cloud searches|Comments Off on Gizmodo: How the Silk Road Trial Could Lead to a Dangerous Legal Precedent
The government had wiretaps on cell phones used inside a prison to conduct drug sales and collect “taxes” on those drug sales. There is no reasonable expectation of privacy in a cell phone conversation coming from inside a prison by an inmate, and Title III isn’t even applicable, an issue of first impression, because Congress passed the prison Cell Phone Contraband Act. If it does apply, Title III was complied with. United States v. Amador, 2015 U.S. Dist. LEXIS 13398 (S.D.Cal. February 2, 2015); United States v. Savala, 2015 U.S. Dist. LEXIS 13407 (S.D.Cal. February 2, 2015); United States v. Rodriguez, 2015 U.S. Dist. LEXIS 13405 (S.D.Cal. February 2, 2015); United States v. Ballesteros, 2015 U.S. Dist. LEXIS 13404 (S.D.Cal. February 2, 2015); United States v. Sotelo, 2015 U.S. Dist. LEXIS 13403 (S.D.Cal. February 2, 2015); United States v. Garibay, 2015 U.S. Dist. LEXIS 13408 (S.D.Cal. February 2, 2015); United States v. Delgado-Vidaca, 2015 U.S. Dist. LEXIS 13411 (S.D.Cal. February 2, 2015). [I’m arbitrarily putting Amador first because he’s the highest defendant (2) in the case. Ten are shown in each case.]
Search of a pill bottle incident to an arrest for driving without a license is found to be unreasonable under the Indiana Constitution. Garcia v. State, 2015 Ind. App. LEXIS 50 (February 3, 2015), but reversed: Garcia v. State, 2016 Ind. LEXIS 30 (Jan. 21, 2016).
Posted inScope of search, State constitution|Comments Off on IN: Search of a pill bottle incident to an arrest for driving without a DL is found to be unreasonable under the Indiana Constitution [reversed]
Egregious police conduct can confer target standing, but this case just doesn’t measure up. Commonwealth v. Santiago, 470 Mass. 574, 24 N.E.3d 560 (2015):
We reaffirm the view stated in Scardamaglia, 410 Mass. at 380, that in a case where the police engage in “distinctly egregious” conduct that constitutes a significant violation of a third party’s art. 14 rights in an effort to obtain evidence against a defendant, it may be appropriate to permit the defendant to rely on the standing of the third party to challenge the police conduct. For the reasons next discussed, however, we are not persuaded that the police in this case engaged in conduct that would warrant the adoption of such a target standing rule. Continue reading →
Posted inStanding, State constitution|Comments Off on MA: Egregious police conduct can confer target standing, but this case just doesn’t measure up
"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.
