It has become a familiar scene for New York police officers: the glow of tiny cellphone screens illuminating a nighttime struggle between them and people they want to arrest. But on the Brooklyn Bridge last Saturday night, the amateur videographers who converged on a scuffle between two police lieutenants and a group of protesters – seemingly poised to document another instance of police aggression – instead set off a weeklong search for seven people who the police say assaulted the lieutenants.
Posted inUncategorized|Comments Off on NY Times: In New York, Public’s Video Helps Police, for a Change
Two judges rebuked the FTC, which defends its practices….In 2014, the FTC won asset freezes coupled with temporary restraining orders in 29 cases naming 145 companies and 82 individuals, a 45 percent increase from 2013, according to an analysis by The National Law Journal.
Posted inForfeiture|Comments Off on NLJ: Asset Seizures Gone Wrong
A cell phone search in a DUI stop was suppressed under Riley, even though the search occurred long before Riley. The defendant was still litigating, and he hadn’t yet even been convicted. Also, no good faith exception for the muddled law on cell phone searches pre-Riley since there was no precedent at all in Georgia. Even Gant was applied retroactively in Georgia. Brown v. State, 2014 Ga. App. LEXIS 847 (December 16, 2014): Continue reading →
Posted inCell phones, Good faith exception|Comments Off on GA: Riley applied to a case not yet final; no GFE because no prior binding authority
Finding drugs in a car was probable cause to search other containers in the car, here a bag. United States v. Leal, 2014 U.S. App. LEXIS 23777 (5th Cir. February 7, 2014).*
Defense counsel was not ineffective for withdrawing a motion to challenge the legality of his arrest on two grounds: no legal basis for it, and strategy to embrace the statement made after the arrest to show a lesser-included offense. Both were reasonable. Brunner v. State, 2014 Tenn. Crim. App. LEXIS 1120 (December 15, 2014).*
Defense counsel was not ineffective for not pursuing a motion to suppress her stop because there was reasonable suspicion for the initial stop and continuing it, and it would clearly lose. State v. Stewart, 2014 UT App 289, 2014 Utah App. LEXIS 293 (December 11, 2014).*
Failure to raise a Fourth Amendment claim in a forfeiture case precluded a later § 1983 case over the same issue. Campbell v. City of Spencer, 2014 U.S. App. LEXIS 23700 (10th Cir. December 16, 2014): Continue reading →
Posted inUncategorized|Comments Off on CA10: Failure to raise a Fourth Amendment claim in a forfeiture case precluded a later § 1983 case
At hearing for years-old digital snooping case, EFF and DOJ lawyers face off
Source: Electronic Frontier Foundation
OAKLAND, Calif.—A federal judge spent over four hours on Friday questioning lawyers from the Electronic Frontier Foundation (EFF) and from the Department of Justice in an ongoing digital surveillance-related lawsuit that has dragged on for more than six years.
Posted inUncategorized|Comments Off on EFF: Feds can’t get around Fourth Amendment via automated data capture
On Monday, the Supreme Court ruled that police stops are legal when the officer has a ‘reasonable suspicion’ that a law is being broken-even if that law doesn’t exist.
Posted inReasonable suspicion|Comments Off on The Atlantic: When Cops Don’t Know the Law
German researchers have discovered security flaws that could let hackers, spies and criminals listen to private phone calls and intercept text messages on a potentially massive scale – even when cellular networks are using the most advanced encryption now available.
Posted inCell phones|Comments Off on WaPo: German researchers discover a flaw that could let anyone listen to your cell calls
Last week, the government quietly released a new cache of court filings and orders from late 2006 and early 2007 that together reveal a watershed moment in the government’s effort to secretly expand its authority to conduct surveillance on American soil—without ever asking Congress or the public. Instead, the government once again asked the Foreign Intelligence Surveillance Court (FISC) to belatedly bless certain aspects of the President’s Surveillance Program, which was initiated by President Bush without judicial or legislative approval in 2001.
Posted inFISA|Comments Off on Just Security: In 2007, One Judge Said No to the NSA
This story sure escalated in a hurry. Following all the news of the MPAA’s tight relationship with Mississippi Attorney General Jim Hood, Google has made a filing in a Mississippi federal court seeking a temporary restraining order and an injunction against Hood’s investigation. As the filing notes:
For the last eighteen months, the Mississippi Attorney General has threatened to prosecute, sue, or investigate Google unless it agrees to block from its search engine, YouTube video-sharing site, and advertising systems, third-party content (i.e., websites, videos, or ads not created by Google) that the Attorney General deems objectionable. When Google did not agree to his demands, the Attorney General retaliated, issuing an enormously burdensome subpoena and asserting that he now has “reasonable grounds to believe” that Google has engaged in “deceptive” or “unfair” trade practice under the Mississippi Consumer Protection Act (MCPA), which allows for both civil and criminal sanctions. The Attorney General did so despite having publicly acknowledged in a letter to Congressional leaders that “federal law prevents State and local law enforcement agencies from prosecuting” Internet platforms. The Attorney General took these actions following a sustained lobbying effort from the Motion Picture Association of America.
As Google explains, there is no legal basis for this investigation: …
Posted inInformational privacy|Comments Off on TechDirt: Google Files Legal Challenge To Attorney General Jim Hood’s Subpoenas
A motion for return of seized property can’t include a claim for damages; it’s only for return of property that the owner believes he or she is entitled to. A separate action has to be filed for that. Bord v. Baltimore County, 2014 Md. App. LEXIS 154 (December 17, 2014).
Officers had reasonable suspicion for stopping defendant because of a possible gun. “Moore disagrees, but only because he quibbles with the facts in this case.” United States v. Moore, 2014 U.S. Dist. LEXIS 173308 (D.D.C. December 15, 2014).*
Defendant was stopped carrying an open container in a high crime area. When confronted by the officer, he took a step back, was asked about having a gun, and he sighed and said “no.” Because it was “high crime area rife with gun and drug violence,” that was reasonable suspicion. State v. Bradford, 2014-Ohio-5527, 2014 Ohio App. LEXIS 5339 (10th Dist. December 16, 2014).*
Whenever drone policy is raised as a topic, privacy concerns follow close behind it as a discussion point. The idea of aerial surveillance that is cheaper, less time-intensive and requires fewer man hours to get off the ground leads immediately to concerns about the development of a surveillance state, where individuals can be monitored round the clock, and every public action can be recorded for posterity. Current Fourth Amendment jurisprudence indicates this might not be constitutionally problematic — the Supreme Court has twice held that the Fourth Amendment does not require police to obtain a warrant before observing what any other member of the public could with the naked eye, even when that observation takes place in the public airspace. Yet recent decisions indicate the law may be shifting to address the privacy concerns posed by drone technology.
Posted inDrones|Comments Off on JDSupra: Drone on Drones: New Court Decision Reflects Shifting Views on Privacy in Public
Regular readers will recall the mosaic theory of the Fourth Amendment introduced by the DC Circuit in United States v. Maynard, by which law enforcement steps that aren’t searches in isolation can become searches when aggregated over time. For the most part, judges have been pretty skeptical of the mosaic theory. For example, in the recent oral argument in the Fourth Circuit in United States v. Graham, on whether the Fourth Amendment protects historical cell-site data, the mosaic arguments didn’t gain a lot of traction for the defense.
In this post, however, I want to focus on two recent federal district court decisions that cut against this trend and adopted the mosaic theory. The first case is United States v. White (E.D.Mich. Nov. 24, 2014) (Lawson, J.), which held that the Fourth Amendment was violated when the government obtained a warrant to track a drug dealer’s cell phone continuously over 30 days. The second case is United States v. Vargas (W.D.Wash. Dec. 15, 2014) (Shea, J.), which suppressed video evidence from a camera set up on a public utility pole 100 yards away from the target’s rural house that showed what was happening on the target’s front lawn continuously for six weeks.
Posted inReasonable expectation of privacy|Comments Off on WaPo: Volokh: Two district courts adopt the mosaic theory of the Fourth Amendment
Officers had reasonable suspicion for a probation search of defendant’s house, and that included his gun safe. They could have peeled the door but didn’t, and defendant’s giving the combination was essentially moot because the officers could have broken in. Even though defendant’s statement was suppressed, the search wasn’t. United States v. Harris, 2014 U.S. Dist. LEXIS 173182 (M.D. Ga. December 16, 2014): Continue reading →
Posted inProbation / Parole search, Scope of search|Comments Off on M.D.Ga.: Def’s probation search of gun safe was with RS of drugs, even if door had to be peeled
Video shows Ohio detective accusing her of lying and threatening her with jail
Tasha Thomas only told of Crawford’s death after 90-minute interrogation
Officer who shot black man in Walmart lied, victim’s mother says
Ohio Walmart video reveals last moments before officer shot man Continue reading →
Posted inExcessive force|Comments Off on The Guardian: Video shows John Crawford’s girlfriend aggressively questioned after Ohio police shot him dead in Walmart
Last month, AT&T entered an amicus brief in the US v. Quartavious Davis case, arguing that law enforcement shouldn’t be allowed warrantless access to cell site location data. AT&T’s entry into the privacy battle comes after a lengthy silence during which it was very obliging of government requests for customers’ data. The crux of its argument was this:
Nothing in those [prior court] decisions contemplated, much less required, a legal regime that forces individuals to choose between maintaining their privacy and participating in the emerging social, political, and economic world facilitated by the use of today’s mobile devices or other location-based services.”
That’s where we are, as far as private citizens are concerned. The government, through its thorough exploitation of the Third Party Doctrine, has basically forced the public to choose between allowing warrantless access to tons of their data (and metadata) or living some sort of off-the-grid lifestyle that doesn’t involve generating “business records” via cell phone, internet service, etc.
Posted inCell phones, Informational privacy|Comments Off on TechDirt: DOJ Leans On Old Laws And Even Older Cases To Argue Against Privacy Expectations In Cell Site Location Data
This is a game warden stop of a duck hunter. The state argued, and the court agreed, that any confrontation between a game warden and the public amounted to a stop based on the Arkansas Game and Fish Commission Hunting Guidebook 18 (2012-13) available at any sporting goods store and online [2014-15 here]. A hunter cannot be confronted just to ask for his paperwork without reasonable suspicion. Hiibel is distinguished because that involved reasonable suspicion. Pickle v. State, 2014 Ark. App. 726 (December 17, 2014) (6-3): Continue reading →
This defendant has no reasonable expectation of privacy in somebody else’s cell phone or the records of its use. He never used it or claimed any interest in it. He also lacks any standing in an unsubscribed burner phone. The toll billing records were correctly obtained pursuant to § 2703(d). “Necessity” is an issue in a wiretap warrant, but it’s not in search warrants. “As an initial matter, Gatson’s claim that the affidavits underpinning the two search warrants at issue lacked ‘necessity’ is meritless on its face. While there is a necessity component when securing a Title III wiretap, a showing of necessity is not required to obtain a search warrant. And as explained below, Gatson’s other grounds for suppression also fail.” “Gatson’s request for an evidentiary hearing is denied, because he has not identified any issues of fact material to his motion.” United States v. Gatson, 2014 U.S. Dist. LEXIS 173588 (D.N.J. December 15, 2014).
"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.
