The Republican Party is so badly fractured that it is impossible to tell what steps it will take on domestic surveillance once it assumes control of Congress in January. Its rising libertarian wing wants to crack down on abuses of Americans’ privacy, but many of its leaders express full support for any action the intelligence agencies want to take.
That’s why it’s important that the Senate break a filibuster on the USA Freedom Act, which would reduce or end the bulk collection of telephone records, in a vote scheduled for Tuesday afternoon. If the bill doesn’t pass in the current lame-duck session of the Senate, still controlled by Democrats, it may never get past the 60-vote hurdle in the next session of Congress.
Posted inFISA|Comments Off on NYTimes Editorial: A Crucial Vote on the Surveillance Bill
By living with a probationer, one’s reasonable expectation of privacy is not completely lost and the entire house is not open to a probation search. The probationer can only consent to search of common areas. Here, the probationer let the cotenant run a grow operation in the locked basement which was found not to be a common area. State v. Norman, 2014-Ohio-5084, 2014 Ohio App. LEXIS 4936 (12th Dist. November 17, 2014): Continue reading →
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In a counterfeit sports jersey case, the defendant had no reasonable expectation of privacy in a box he opened and put on the counter of a store to sell. United States v. Gore, 2014 U.S. Dist. LEXIS 160497 (D. Minn. October 23, 2014).*
The officer had reasonable suspicion to continue the traffic stop: “Pence’s glassy, bloodshot eyes, the presence of a moderate odor of alcohol, Pence’s admission that he had earlier consumed two beers, Pence’s flush face, Pence’s inability to concentrate when the deputy asked for his driver’s license and registration, and Pence’s failure to turn off his vehicle before exiting it.” State v. Pence, 2014-Ohio-5072, 2014 Ohio App. LEXIS 4933 (2d Dist. November 14, 2014).*
When a rental car is stopped for a traffic offense, the officer is permitted to inquire into whether the person driving is an authorized driver. In this case, from stop to finding cocaine with a drug dog because of vague answers, the stop was 5-7 minutes. Williams v. State, 2014 Ga. App. LEXIS 759 (November 14, 2014): Continue reading →
Posted inReasonable suspicion|Comments Off on GA: With rental car stops, looking at rental agreement is permitted
A computer search warrant isn’t overbroad because it doesn’t specify the files to be searched with complete particularity. It isn’t feasible or reasonable to require it because file names and dates can be changed to hide things. United States v. Loera, 2014 U.S. Dist. LEXIS 160571 (D. N.M. October 20, 2014): Continue reading →
Pew has a new poll out on Americans’ attitudes toward privacy, and it is full of interesting findings. A New York Times blog piece on the poll focused on the so-called “privacy paradox”—people’s seeming willingness to share personal information despite their professed concern over privacy (more on that below). But for me the most striking finding is that Americans’ confidence in the privacy and security of electronic communications is very low, with over half thinking that email, text messages, chat, and social media are “not at all” or “not very secure.” In too many ways, these beliefs are well-founded, and yet these are the mediums that Americans are using more and more to communicate in their everyday lives.
Posted inCell phones, FISA|Comments Off on ACLU: Americans’ Confidence in Privacy of Electronic Communications is Very Low
Officers’ legitimate concerns that a person inside a house was in danger or restrained, although wrong, were reasonable, and that authorized an entry under the community caretaking function. The fact they were wrong doesn’t matter if their belief was reasonable. United States v. Smith, 2014 U.S. Dist. LEXIS 160199 (D. S.D. September 5, 2014), adopted 2014 U.S. Dist. LEXIS 160253 (D. S.D. November 13, 2014).
Defendant is accused of using the internet to arrange a sexual liaison with a minor via a false Facebook page in the name of a young girl attempting to arrange sex with her older boyfriend. The search warrant for the Facebook account was particular, and the police could get a search warrant for anything that would connect to the internet in defendant’s possession, including his cell phone and computer. There was probable cause, and, in any event, the good faith exception applies. United States v. Cyr, 2014 U.S. Dist. LEXIS 160118 (D. Vt. November 14, 2014).*
Defendant’s stop by officers approaching his car in a high crime area was valid, and the scale on the seat was cause to inquire further. United States v. Mundy, 2014 U.S. App. LEXIS 21584, 2014 FED App. 0844N (6th Cir. November 12, 2014).*
MIAMI – In a landmark move in the battle over privacy rights and new technologies, AT&T has filed a federal court brief arguing that courts must account for people’s Fourth Amendment rights before authorizing law enforcement to get phone location histories from their cell service companies.
The company’s filing is a friend-of-the-court brief in the appeal of a criminal case, U.S. v. Davis, in which the government obtained four people’s cell phone location records over a 67-day period for a robbery investigation. The American Civil Liberties Union, which has also filed a brief supporting the defendant, praised AT&T’s entrance into the case.
Posted inCell phones, GPS / Tracking Data|Comments Off on ACLU: AT&T Comes Out in Support of Stricter Standards for Police Cell Location Phone Tracking
Delousing male jail inmates by same sex guards was subject to qualified immunity as to them. As to injunctive relief against the agency, it is premature without further evidence being taken, and it appears reasonable as a strip search under Florence. Cantley v. W.Va. Regional Jail, 2014 U.S. App. LEXIS 21631 (4th Cir. November 14, 2014): Continue reading →
Many teachers say the ClassDojo app helps them automate the task of recording classroom conduct, but some critics say such apps are being adopted without enough consideration for data privacy and fairness.
Posted inCell phones, GPS / Tracking Data|Comments Off on NYTimes: Privacy Concerns for Tracking Apps for Schoolchildren
arstechnica: Judges impose rare, stricter requirement for “stingray” use by police by Cyrus Farivar
Washington judges: Locals cops must not collect data from innocent people.
Judges in Pierce County, Washington, have now begun requiring law enforcement agencies to ask for specific permission when using a cell site simulator, commonly known as a “stingray,” according to a Saturday report by the Tacoma News Tribune.
Previously, as is the case nearly everywhere else in the country, law enforcement would go to a judge asking for a “pen register, trap and trace” order, which in the pre-cellphone era allowed law enforcement to obtain someone’s calling metadata in near real-time. Now, that same data can be gathered directly by the cops themselves through the use of a stingray used against mobile phones. Stingrays, however, also can be used to intercept calls and text messages, and the stingray doesn’t only work against one target phone but also against other phones that may happen to be nearby.
Posted inCell phones|Comments Off on arstechnica: Judges impose rare, stricter requirement for “stingray” use by police
Law enforcement officers with probable cause do not need a search warrant to seize a cell phone, such as in a search incident situation where they know that the phone was used to arrange drug deals, but they most probably need a search warrant to search it, and that’s a separate question. “It is undisputed that the IMEI number on the phone seized from Adekoya was inscribed on the phone’s rear exterior, and that no protective case enclosed the phone, so that the IMEI number was visible to the naked eye. As such, it falls easily within the category of the phone’s ‘physical aspects’ [under Riley] that are subject to examination without a warrant.” United States v. Adekoya, 2014 DNH 236P, 2014 U.S. Dist. LEXIS 160218 (D. N.H. November 12, 2014).
The trial court’s ruling on lack of consent for a blood draw is supported by the evidence. The trial court erred, however, in concluding there was no probable cause, and the case is remanded. State v. Reynolds, 2014 Tenn. Crim. App. LEXIS 1024 (November 12, 2014).*
The district court discounted the officer’s credibility about the initial cause for following the defendant’s van for crossing the fog line and suppressed. The video, however, showed an independent basis for the stop for that same offense, and that made the trial court’s findings clearly erroneous. United States v. Rosales-Giron, 2014 U.S. App. LEXIS 21665 (5th Cir. November 14, 2014).*
Plaintiffs claiming they were tortured for a confession by an “infamous” Chicago cop and his “henchmen” who was later convicted of doing just that could not claim equitable tolling. They had to sue based on when it happened. The case also discusses the district court’s misapplication of the Heck bar. Moore v. Burge, 2014 U.S. App. LEXIS 21530 (7th Cir. November 13, 2014): Continue reading →
The officer’s lack of experience in getting a search warrant is not an “exigency” for a warrantless blood draw under McNeely. State v. Gardner, 2014 Tenn. Crim. App. LEXIS 1023 (November 12, 2014) (link not available when posted; go here to look later): Continue reading →
Posted inDrug or alcohol testing, Emergency / exigency|Comments Off on TN: Officer’s lack of experience in getting a search warrant is not an “exigency” for a warrantless blood draw
The plaintiff insurance company sued the California state comptroller claiming that an audit of records would violate, among other things, the Fourth Amendment. The Fourth Amendment claim fails comparing the audit to the requirements of an administrative subpoena and the administrative search doctrine. Fid. & Guar. Life Ins. Co. v. Chiang, 2014 U.S. Dist. LEXIS 159858 (E.D. Cal. November 12, 2014): Continue reading →
Posted inAdministrative search|Comments Off on E.D.Cal.: State insurance company audit complied with Fourth Amendment
The warrantless search of defendant’s cell phone had plenty of independent probable cause for later issuance of state and federal search warrants for it. “Additionally, the evidence relayed above was not obtained via any police misconduct but, rather, was obtained prior to the warrantless search of Somers’s phone. Furthermore, the probable-cause affidavits in support of the search warrants were not based on any information obtained during the warrantless search of the phone.” United States v. Somers, 2014 U.S. App. LEXIS 21548 (11th Cir. November 14, 2014).
Defendant’s car was stopped for speeding, and the smell of burnt marijuana was coming from it. The driver was glassy eyed and had slurred speech. There was reasonable suspicion for a continued detention. Defendant was a passenger and could not establish standing to contest the search. It was a rental car and the driver was the renter, and he wasn’t an authorized driver. Besides, the search of the car is valid under the automobile exception. United States v. Kennedy, 2014 U.S. Dist. LEXIS 159802 (W.D. Pa. November 13, 2014).*
Officers had a tip about a convicted felon in a car with a gun, and the car was seen and stopped after a turn violation. All four in the car were removed and handcuffed, and that was for safety purposes. A bench warrant was found on the driver. Defendant was Mirandized and admitted there was a gun in the car he was holding for a friend. That was probable cause. United States v. Uiagaleei, 2014 U.S. Dist. LEXIS 160142 (D. Nev. August 26, 2014).*
Exigent circumstances didn’t justify the warrantless blood draw. Neither the automobile exception nor the search incident doctrine can be used to search a person’s blood. Smith v. State, 2014 Tex. App. LEXIS 12372 (Tex. App.– Corpus Christi-Edinburg November 13, 2014): Continue reading →
A defense Rule 17 subpoena to the SFPD for its search and seizure procedure manuals is quashed. The Fourth Amendment question is objective reasonableness, and that stuff isn’t going to aid the court. United States v. Johnson, 2014 U.S. Dist. LEXIS 159788 (N.D. Cal. November 13, 2014): Continue reading →
Posted inBurden of proof, Reasonableness|Comments Off on N.D.Cal.: Rule 17 subpoena for police S&S manuals wasn’t relevant to suppression hearing
At the time the GPS was put on defendant’s car, SCOTUS authority at least “suggested” in Knotts and Karo, before GPS was even envisioned, that it was constitutional, and that’s good enough for government work. The Davis good faith exception thus applied [even though state not relying on any specific authority that was reversed, as was in Davis]. State v. Johnson, 2014-Ohio-5021, 2014 Ohio LEXIS 2918 (November 13, 2014).
Asleep in one’s car on the shoulder of an interstate about 1 am with a strong odor of intoxicants is reasonable suspicion. State v. Koss, 2014-Ohio-5042, 2014 Ohio App. LEXIS 4899 (10th Dist. November 13, 2014).*
Posted inGood faith exception, GPS / Tracking Data, Reasonable suspicion|Comments Off on OH: At the time the GPS was installed, SCOTUS authority at least “suggested” in Knotts and Karo that it was constitutional, and that’s good enough for government work
Vocativ reached out to police departments in the 100 biggest U.S. cities to determine who’s using body cam technology. While the numbers are increasing, cops still have to turn the cams on for them to work.
Posted inUncategorized|Comments Off on Vocativ: Is Your Police Force Wearing Body Cameras?
"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.
