Screen chat service that passed information to NCMEC was still a private actor. United States v. Ditomasso, 2015 U.S. Dist. LEXIS 9645 (S.D.N.Y. January 26, 2015):
On October 28, 2014, I ruled that DiTomasso had a reasonable expectation of privacy in the content of both his emails and his chats.2 I also ruled, however, that DiTomasso consented to a search by AOL in a law enforcement capacity when he agreed to its terms of use — defeating his suppression motion as to AOL.3 But the motion is still live as to Omegle, and now the Court must resolve the question explicitly reserved in the October 28, 2014 Opinion. Namely, was Omegle operating as an agent of law enforcement when it reviewed screen shots of DiTomasso’s chats and — believing that they contained evidence of child pornography — dispatched three reports to the National Center for Missing and Exploited Children (“NCMEC Reports”)?
2. See United States v. DiTomasso, No. 14 Cr. 160, 2014 U.S. Dist. LEXIS 152505, 2014 WL 5462467 (S.D.N.Y. Oct. 28, 2014).
3. See 2014 U.S. Dist. LEXIS 152505, [WL] at *9.
For the reasons set forth below, I conclude that the answer is no. Omegle’s [monitoring constituted a purely “private search,” beyond the reach of the Fourth Amendment. Accordingly, DiTomasso’s motion to suppress is DENIED.
The initial entry into defendant’s home was justified by hot pursuit, but other officers followed after the detention, and a protective sweep was conducted. Because it was reasonably feared defendant was armed and the gun hadn’t been located, a sweep to find it in the room was reasonable, even though defendant was handcuffed. United States v. Olson, 2015 U.S. Dist. LEXIS 9615 (D.S.D. January 23, 2015): Continue reading →
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Google has fought all gag orders preventing it from telling customers that their e-mails and other data were sought by the U.S. government in a long-running investigation of the anti-secrecy group WikiLeaks, which published leaked diplomatic cables and military documents, an attorney representing the tech firm said this week.
Posted inFISA|Comments Off on WaPo: Google says it fought gag orders in WikiLeaks case
As Major League Baseball’s top players took the field at the All-Star Game in Minneapolis in July, a covert radar system scanned the sky above the 40,000-seat stadium for what security experts said was an emerging threat to public safety: drones.
Posted inDrones|Comments Off on NY Times: Drones Spotted, but Not Halted, Raise Concerns
“In the Eighth Circuit, for the purposes of determining whether probable cause exists to search a computer [for child pornography], an IP address assigned to a specific user at the time illegal internet activity associated with that IP address occurs is a sufficient basis to find a nexus between the unlawful use of the internet at that IP address and a computer possessed by the subscriber assigned the address.” United States v. Reibert, 2015 U.S. Dist. LEXIS 9848 (D.Neb. January 27, 2015).*
Defense counsel wasn’t ineffective for not challenging an “anytime” state search warrant under state law when the case was indicted federally because a violation of state law doesn’t translate into a federal violation. Danner v. United States, 2014 U.S. Dist. LEXIS 181245 (N.D.Ala. December 29, 2014).*
Defense counsel wasn’t ineffective for not appealing denial of the motion to suppress because, based on the whole record, including the trial, there was reasonable suspicion for the stop. State v. Goldsmith, 2015-Ohio-261, 2015 Ohio App. LEXIS 220 (5th Dist. January 15, 2015).*
Posted inIneffective assistance, Probable cause|Comments Off on D.Neb.: IP address associated with CP enough to search computers at address where IP used
“Casing” the premises from the street as a prelude to a knock-and-talk does not violate the curtilage. United States v. Lubrin, 2015 U.S. Dist. LEXIS 9682 (D.V.I. January 28, 2015).
The officer had reasonable suspicion to continue the detention on the highway, and it was not unreasonable to put the defendant in the back of the police car during the dog sniff. State v. Stephenson, 2015-Ohio-233, 2015 Ohio App. LEXIS 200 (12th Dist. January 26, 2015).*
There was no plain error in the trial court’s holding on defendant’s arrest. This is not clearly a cite and release situation, as defendant admits, and it’s a case of first impression. (Essentially, if it’s of first impression, it’s not plain error.) State v. Pettie, 2015 Tenn. Crim. App. LEXIS 59 (January 28, 2015).*
Posted inCurtilage, Reasonable suspicion|Comments Off on D.V.I.: “Casing” the premises from the street as a prelude to a knock-and-talk does not violate the curtilage
Plaintiff led officers on a high-speed chase on a motorcycle through two counties, at times reaching 110 mph. In a city, “[i]ndeed, the video shows that he covered the 4.8 miles between the intersections of Z-Horse Charters and South East Avenue B in just 3 minutes and 3 seconds—at a blur-inducing average speed of 94.43 mph.” He crashed and sued the officers for chasing him and lost. Willis v. Mock, 2015 U.S. App. LEXIS 1231 (11th Cir. January 27, 2015): Continue reading →
At the pleading stage, plaintiffs adequately pled that officers told a 14 girl that they had to search the house, she ran upstairs with her brother, and the officers did so without a warrant. There is no consent on the face of the complaint. Vinson v. Vermilion County, 2015 U.S. App. LEXIS 1292 (7th Cir. January 27, 2015).
There was an agreement to copy defendant’s cell phone without searching it, but it was searched. The district court denied the motion to suppress without a hearing. In the officer’s trial testimony, the differences were shown, and the court of appeals remands for a suppression hearing. United States v. Aguilera, 2015 U.S. App. LEXIS 1278 (9th Cir. January 27, 2015).*
The defendant’s wife had apparent authority to consent to a search of their detached garage that he supposedly always kept the keys to. On the credibility determination, the court finds that he did not exclude the family except by his express permission. United States v. Mojica, 2015 U.S. Dist. LEXIS 8923 (N.D. Ill. January 26, 2015).*
Even assuming, without deciding, a constitutional violation in the length of defendant’s detention, his unsolicited offer to have the police search his cell phone dissipated any taint and attenuated the cell phone search from the detention. United States v. Montgomery, 2015 U.S. App. LEXIS 1291 (5th Cir. January 27, 2015): Continue reading →
Posted inAttenuation, Cell phones, Consent|Comments Off on CA5: Unsolicited consent to search cell phone dissipated taint of unlawful detention
This minor’s § 1983 suit alleges a Fourth Amendment violation when she was taken to a hospital and subjected to a mental health examination based a report from a school friend that she had attempted to kill herself. The police officer who went to the home where she was staying and detained her until a county sheriff’s deputy arrived did not violate her constitutional rights because information that the minor was suicidal supported his decision to maintain custody for a short time. As to the deputy, who ordered the minor into his police car over her protests and those of her father, took her to the hospital against her will, and signed hospital forms with incorrect information, further development of the record was required to determine if the officer’s actions were objectively reasonable and whether the deputy was entitled to qualified immunity. Bruce v. Guernsey, 2015 U.S. App. LEXIS 1184 (7th Cir. January 26, 2015).
This inventory was shown to be valid despite the argument that defendant’s wife could have been called to get the car. No Fourth Amendment case says that’s a requirement. United States v. Crane, 2015 U.S. Dist. LEXIS 8448 (N.D. Iowa January 26, 2015).
On the totality, defendant’s consent on video was shown by the government to be voluntary. He was smiling during the encounter, and he read a consent form in Spanish that said he had a right to refuse consent. United States v. Guevara-Miranda, 2015 U.S. Dist. LEXIS 9226 (W.D. La. January 20, 2015).*
Stopping defendant after he pulled into another person’s driveway at night was unreasonable. The area was not a high crime area, the officer was not responding to a call, and he had no suspicion of any traffic infraction or any other criminal activity. The community caretaking / emergency aid exception to the Fourth Amendment warrant requirement did not apply because there was no evidence that the officer had any reason to believe defendant was in imminent harm. State v. Dixon, 2015-Ohio-208, 2015 Ohio App. LEXIS 181 (11th Dist. January 26, 2015).*
For years CDT has been leading the charge to update the Electronic Communications Privacy Act (ECPA), the law that governs how police and government can access to our personal communications like emails and photos. We’ve consistently argued that these types of private communications should only be accessible with a warrant based on probable cause – the same standard used to search your postal mail or your home.
Today, Data Privacy Day, is a good day to talk about why. …
Posted inE-mail, ECPA|Comments Off on Center for Democracy and Technology: Data Privacy Day: A Reminder of the Need to Update ECPA
Did you lock your front door when you left for work this morning? Rest easy, then, knowing your papers are secure. But what about your emails? Not so much. Because right now, an outdated law threatens the Fourth Amendment protections of every American who uses the Internet. Whether you are a committee chairman or an unpaid intern, your digital privacy is currently at risk.
Wednesday is Data Privacy Day, and it’s as good a day as any to talk about the urgent unfinished task awaiting the new Congress — protecting Americans from unwarranted government intrusion into our private lives.
Posted inUncategorized|Comments Off on Roll Call: How Congress Can Protect Americans’ Email Privacy | Commentary
ICE raided and executed a search warrant on Soccer City in Albuquerque because of suspicion the operators were selling fake IDs. Defendant walked in carrying a box and he was accosted by the ICE agents and asked for his ID, too. They took it and ran it, and it came back that he’d been removed in the 1990s. He was charged with illegal entry after removal. His motion to suppress his ID and fingerprints was granted. The government relied on Michigan v. Summers and dealing with those who happen upon searches. While the initial encounter was consensual and he wasn’t blocked from leaving, keeping his ID too long made it a detention without reasonable suspicion. Delgado would make the initial stop valid, but there was no reason to continue as along as it did. Summers applies to the home when there is a drug warrant, not customers of a business when there is a fraud warrant. United States v. Lopez-Garcia, 2013 U.S. Dist. LEXIS 189297 (D.N.M. December 13, 2013): Continue reading →
Sheriffs are campaigning to pressure Google Inc. to turn off a feature on its Waze traffic software that warns drivers when police are nearby. They say one of the technology industry’s most popular mobile apps could put officers’ lives in danger from would-be police killers who can find where their targets are parked.
Posted inSurveillance technology|Comments Off on AP: Sheriffs want popular police-tracking app disabled
The Justice Department has been building a national database to track in real time the movement of vehicles around the U.S., a secret domestic intelligence-gathering program that scans and stores hundreds of millions of records about motorists, according to current and former officials and government documents.
Posted inSurveillance technology|Comments Off on Wall Street Journal: U.S. Spies on Millions of Cars
WASHINGTON — A federal judge ruled in 2007 that the U.S.A. Patriot Act empowered the National Security Agency to collect foreigners’ emails and phone calls from domestic networks without prior judicial approval, newly declassified documents show.
The documents — two rulings of the Foreign Intelligence Surveillance Court — fill in a chapter in the history of the N.S.A.’s warrantless surveillance program. They show the agency’s secret moves in the months before Congress authorized the spying by enacting the Protect America Act in August 2007.
Posted inFISA|Comments Off on NYTimes: Documents Show N.S.A.’s Moves on Surveillance Before Congress’s Approval
"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.
