In the Tenth Circuit, merely being the driver of a rented car without a showing of approval from the renter or the rental agreement is a lack of standing in the car. United States v. Flores, 2015 U.S. Dist. LEXIS 1615 (D. Utah January 7, 2015).
Defendant had a motion to suppress heard and denied in 2013. Then the government obtained a new indictment. The motion to suppress is the same as the earlier one, and it’s denied, too. United States v. Murray, 2015 U.S. Dist. LEXIS 2028 (N.D. Ga. January 7, 2015).*
Despite minor inconsistencies between the officer’s testimony and initial reports, the court finds him credible that he stopped defendant’s BMW for not having a valid license plate (a “Sovereign Nation” plate). United States v. Beck, 2014 U.S. Dist. LEXIS 179799 (D. Nev. November 14, 2014).*
Posted inUncategorized|Comments Off on D.Utah: Rental car driver without rental agreement approval had no standing in CA10
The state violated the nighttime search rule by executing this search warrant at 10:18 pm rather than before 10 pm, but the officers claimed not to know the exact time. There was no showing in the search warrant papers for a nighttime search. In any event, when they arrived, the occupants were fully clothed, awake, and up and about the house, and there was no prejudice to them. Essentially, the court finds that the good faith exception applies as well. State v. Deen, 2015 WY 5, 2015 Wyo. LEXIS 6 (January 8, 2015): Continue reading →
A law firm received a cell phone from a John Doe client under investigation. The state sought the cell phone by subpoena because of a state statutory prohibition against law office searches. Mass. G.L. c. 276, § 1. The phone in the hands of the law firm was still for the purposes of seeking legal advice. There is no indication, on this limited record, that the law firm will destroy the evidence or keep it indefinitely. The state cannot simply use a search warrant to obtain the phone, yet. [See Treatise §§ 26.02–26.09. particularly § 26.04] In re a Grand Jury Investigation, 470 Mass. 399, 22 N.E.3d 927 (2015): Continue reading →
Posted inReasonableness|Comments Off on MA: State can’t use an SDT to get a cell phone turned over to a law firm for providing the owner legal advice [state law limits law office searches]
Codefendants who did not live at the premises had no standing to contest the presence of a drug dog in the front yard to sniff. Codefendants’ brief presence at a grow operation, with other things, was still probable cause for a search warrant for their cars despite their having MMJ cards because state law does not immunize criminal plant growth. United States v. Zhiqiang Liu, 2015 U.S. Dist. LEXIS 1697 (E.D. Cal. January 6, 2015).
The Randolph veto and third-party consent doesn’t apply when defendant didn’t refuse consent. United States v. Ingram, 2015 U.S. App. LEXIS 278 (4th Cir. January 8, 2015).
Defendant’s car was not “mobile” for the automobile exception under the state constitution. It was parked at a bank, the officer saw defendant walking toward the car, talked to him, and surmised that he was really high on meth, and he requested that he not drive. Defendant acceded and walked away. After defendant was gone, the officer looked in the window of the car and saw a duffle bag with a small baggie of marijuana protruding from it. Defendant returned, asked the bank manager to drive him home, and the bank manager declined. He didn’t attempt to drive the car. It was not “mobile” for the automobile exception under state case law. State v. Baiz, 2014 Ore. App. LEXIS 1852 (January 7, 2015).* [Note that this Lexis citation will change when they notice it’s wrong.]
The plaintiff was a judge suspended by the state judiciary and a workplace search occurred in relation to that investigation. Her personal safe was searched, too. The search of the office was reasonable under O’Connor, but the search of her personal safe stated a claim for unreasonable search. It had nothing to do with the workplace search. James v. Hampton, 2015 U.S. App. LEXIS 384 (6th Cir. January 7, 2015).
There is no Fourth Amendment claim for a threatened arrest, here for nonpayment of child support. “He has alleged only that his ‘freedom from threatened arrest, seizure and search’ was infringed. A claim for threatened arrest, seizure or search is not cognizable under the Fourth Amendment. Further, Plaintiff has alleged no facts regarding the “threatened arrest, seizure, or search.’” Wilson v. Fla. Dep’t of Revenue, 2015 U.S. Dist. LEXIS 2126 (N.D. Cal. January 8, 2015).*
Posted inArrest or entry on arrest, Reasonableness|Comments Off on CA6: Search of suspended judge’s personal safe during judicial misconduct investigation stated a claim for relief
Officers investigating a noise complaint could go to the back door of the subject residence when nobody answered the front door and there was apparently somebody home. People v. Cannon, 2015 IL App (3d) 130672, 2015 Ill. App. LEXIS 9 (January 7, 2015): Continue reading →
Posted inCurtilage|Comments Off on IL: Officers investigating noise complaint at house could go to back door when nobody answered front door
Another case involving Stingray devices has made its way into the federal court system, prompting the ACLU to join the battle on behalf of the defendant. A murder-for-hire sting conducted by the Baltimore police and the FBI involved the use of a Stingray device, but the paperwork used to justify the deployment says nothing about an IMSI catcher. The order obtained by the Baltimore PD is for a pen register/trap and trace device. [pdf link] Uncharacteristically, the Baltimore PD disclosed its use of a Stingray device to locate a suspect’s phone during court proceedings. Even more uncharacteristically, the government is fighting to keep the evidence from being suppressed, rather than opting to protect its means and methods at the expense of collected evidence.
Posted inGPS / Tracking Data|Comments Off on techdirt: Baltimore PD Hides Its Stingray Usage Under A Pen Register Order; Argues There’s Really No Difference Between The Two
Leaders of the House and Senate Judiciary committees on Friday called on the Justice Department to end the sharing of civil seizure proceeds with local and state police, a change that with few exceptions would cut the flow of hundreds of million of dollars annually to departments in every state. In a letter to Attorney General Eric H. Holder Jr., the lawmakers said they think money from Justice’s Equitable Sharing Program, the federal government’s largest civil asset forfeiture initiative, may be encouraging heavy-handed tactics by local and state police agencies.
Posted inForfeiture|Comments Off on WaPo: Lawmakers urge end to program sharing forfeited assets with state and local police
Defendant parked his car in a residential area, saw the police, and ran. When they caught him, he laid prone on the ground and was patted down, finding no weapons. The following search of his pockets was without probable cause of any crime because it was simply lacking at that point, because the patdown revealed nothing. The search of his car was also unreasonable and without probable cause, and he did not abandon it by running away from it. He had stuff in the car he never disclaimed. The inventory of the car was tainted by the unlawful arrest. United States v. Williams, 2015 U.S. Dist. LEXIS 613 (D. Nev. January 4, 2015).
On a death penalty habeas appeal, defense counsel did pursue suppression of a murder-suicide note from his house. On the merits of the search, the Florida courts decided the entry was valid in response to his mother’s 911 call and her consent, and this was correct. “Together, those statements support the Florida Supreme Court’s factual determination that the police got Mrs. Lynch’s consent before entering the home. Lynch does not point to anything in the record that shows that determination was objectively unreasonable, which is his burden as a habeas petitioner. See Green, 595 F.3d at 1251. His failure to do so is fatal to his claim.” Lynch v. Sec., Fla. Dep’t of Corr., 2015 U.S. App. LEXIS 307 (11th Cir. January 8, 2015).*
Posted inAbandonment, Consent, Emergency / exigency, Stop and frisk|Comments Off on D.Nev.: Defendant did not abandon his car by running from it when he saw the police; the search of the car lacked any legal basis
Defendant’s BAC test should have been with a warrant under McNeely. Under the Texas exclusionary rule, good faith reliance on a statute, here the implied consent law, does not prevent suppression of evidence. Texas doesn’t follow Davis. Burks v. State, 2015 Tex. App. LEXIS 99 (Tex. App. – Ft. Worth January 8, 2015):
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=55f5637b-a135-4a97-ab5c-561ecd8faa94&MediaID=44d1f21b-4485-4b97-b2db-c7267fe28d00&coa=COA02&DT=Opinion Continue reading →
Posted inGood faith exception|Comments Off on TX2: Under the Texas exclusionary rule, good faith reliance on a statute does not prevent suppression of evidence
Defense counsel’s being unaware that suppression hearing testimony can’t generally be used at trial (the Simmons (1968) rule) was a failure of performance under Strickland and was not strategy. Defendant, however, would have lost the motion on the merits anyway, so the outcome of the trial wouldn’t be different, so no prejudice. United States v. Sain, 2014 U.S. Dist. LEXIS 179731 (E.D. Mich. October 23, 2014): Continue reading →
Posted inIneffective assistance|Comments Off on E.D.Mich.: Defense counsel was completely unaware of Simmons rule and didn’t pursue suppression motion to keep def off stand
Traffic stops of African Americans in 2013 accounted for 12.8 percent of all Portland police traffic stops, a disproportionately high rate considering they make up 6 percent of the city’s population age 16 and over. And once stopped, African Americans were twice as likely than whites to be searched by police.
Posted inProbable cause|Comments Off on The Oregonian: Portland police traffic stops still disproportionately involve African Americans, report shows
The two Cleveland police officers involved in the fatal shooting of Tamir Rice, a 12-year-old boy who was carrying a pellet gun, stood by without rendering medical aid as the boy lay wounded next to their patrol car, a newly released extended surveillance video shows.
Posted inExcessive force|Comments Off on NYTimes: Police Gave Boy No Aid After Shooting in Cleveland
Critics of New Jersey’s civil forfeiture law are calling for reform, contending that government seizures of cash, cars and other property lack due process protections and sometimes target the innocent.
Posted inForfeiture|Comments Off on NJLJ: Government Seizures of Cars, Cash Prompt Calls for Reform
This Arizona newspaper thinks that a background check is an unreasonable search. Consider this: If the third party doctrine is going anywhere, maybe the NRA can get off its ass and push this angle instead of just ranting about the Second Amendment. Politics makes strange bedfellows.
Posted inThird Party Doctrine|Comments Off on Payson Roundup: Editorial: Background Checks For Guns
The cell phone tracking order was issued by a state court judge and it complied with the Fourth Amendment. The fact it was an “order” and not a “warrant” is a meaningless argument. A warrant can be used to locate people, not just things under Warden v. Hayden under the Fourth Amendment. United States v. Patrick, 2014 U.S. Dist. LEXIS 179522 (E.D. Wis. September 30, 2014).
The credibility of the officer is judged by his testimony on the stand and not the prehearing brief submitted by the government. The officer is found credible despite the differences in that and the brevity of his initial reports. United States v. Short, 2014 U.S. Dist. LEXIS 179581 (E.D. Tenn. October 23, 2014).*
Just because defendant’s state court case was nolle prossed before he was federally charged, he wasn’t deprived of a forum to litigate his Fourth Amendment claim, so there is no due process violation. Moody v. United States, 2015 U.S. Dist. LEXIS 1974 (M.D. Fla. January 8, 2015).*
Posted inWarrant requirement|Comments Off on E.D.Wis.: CSLI under the 4A can be used to track people, not just things
The affiant officer’s merely identifying the premises as the residence of the defendant didn’t create standing. Defendant still had to show it. When the search warrant was executed, defendant wasn’t found there, but the codefendants were. United States v. Morris, 2014 U.S. Dist. LEXIS 179337 (E.D. Wis. December 16, 2014).
The search warrant for child pornography was not overbroad. United States v. Mercer, 2015 U.S. Dist. LEXIS 1215 (W.D. Okla. January 7, 2015).*
“[T]he IRS has met its burden by presenting evidence through its Verified Petition that the Summons was issued for a legitimate purpose, that the information sought may be relevant to that purpose; that the summoned information is not already in possession of the IRS; and that the proper administrative steps have been followed. Respondent has submitted no evidence to refute these facts.” United States v. Aggarwal, 2014 U.S. Dist. LEXIS 179606 (N.D. Cal. November 14, 2014).*
Posted inBurden of proof, Overbreadth|Comments Off on E.D.Wis.: Affidavit for SW didn’t create standing by identifying residence as being defendant’s when he wasn’t found there; he still had to show something
The operator of a small hospital corporation with at most 25 employees had no standing in the bank records of the corporation. Because they might have standing in their own offices doesn’t translate into standing over bank records. As to patient records, HIPAA confidentiality requirements don’t translate into standing to contest search of those records by search warrant. United States v. Novak, 2015 U.S. Dist. LEXIS 499 (N.D. Ill. January 6, 2015), corrected 2015 U.S. Dist. LEXIS 19074 (N.D.Ill. January 6, 2015): Continue reading →
The state’s seizure and two-year retention of computers during a criminal case did not amount to unlawful taking, a Fourth Department panel ruled, reversing a Court of Claims judge.
"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.
