This is the sixth installment in the “Stop and Seize” investigative series.
D.C. police have made plans for millions of dollars in anticipated proceeds from future civil seizures of cash and property, even though federal guidelines say “agencies may not commit” to such spending in advance, documents show.
The city’s proposed budget and financial plan for fiscal 2015 includes about $2.7 million for the District police department’s “special purpose fund” through 2018. The fund covers payments for informants and rewards.
Posted inForfeiture|Comments Off on WaPo: D.C. police plan for future seizure proceeds years in advance in city budget documents
Defendant’s warrantless blood draw was without exigent circumstances after he withdrew his consent. The motion to suppress should have been granted. Leal v. State, 2014 Tex. App. LEXIS 12286 (Tex. App. – Houston (14th Dist) November 13, 2014) (with dissent).*
Despite DUI implied consent statute, the state must still comply with McNeely. A driver’s license is not a blanket consent to a blood search. Gore v. State, 2014 Tex. App. LEXIS 12326 (Tex. App. – Houston (1st Dist.) November 13, 2014): Continue reading →
Email search warrants in a public corruption case were “particular” within the Fourth Amendment. They were time limited, and the providers deleted electronic information [header information] from the final production that was not specifically sought. The Fourth Amendment does not require a higher standard just because emails are sought. State v. Rindfleisch, 2014 Wisc. App. LEXIS 929 (November 12, 2014):
P7 The warrants issued to Google and Yahoo on October 20, 2010, were substantially similar. Both contained information identifying the statutory authority of the investigation (the John Doe proceeding), and the identifying email account information for the ISPs. Both warrants required:
RECORDS TO BE PRODUCED: For the time period of January 1, 2009, to the present, this warrant applies to information associated with the account identified as … stored at premises owned, maintained, controlled, or operated by [the ISP at their respective headquarters address]. This warrant requires, ON OR BEFORE NOVEMBER 22, 2010 the production of: Continue reading →
Posted inE-mail|Comments Off on WI decides important Email SW case: Fourth Amendment doesn’t require a higher standard for email warrants
Officers watched the porch of Apartment 122 and observed five men 10:00-10:30 pm, and five cars came up and one would go to the cars and do what appeared to be a hand-to-hand transaction. Finally, the officers moved to the porch and asked for IDs. Ultimately defendant was arrested. He failed to show that he had any standing in the apartment or its porch, so he couldn’t contest the police coming there. State v. Robinson, 2014 S.C. LEXIS 492 (November 12, 2014), aff’g as modified State v. Robinson, 396 S.C. 577, 722 S.E.2d 820 (App. 2012) (The court also explicitly decides burdens of proof: The state has to justify a warrantless search, but the defendant has to show standing.)
Defense counsel wasn’t ineffective for two reasons: First, no motion to suppress was filed to get the best plea deal possible. Second, the search was consensual and legal anyway. State v. Shelton, 2014 Ga. App. LEXIS 739 (November 13, 2014).*
Defendant’s motion to suppress on involuntary consent was denied before defendant’s plea, and defense counsel filed an Anders no merit brief. The appeal was without merit because there was no conditional plea. State v. Guinn, 2014 La. App. LEXIS 2730 (La.App. 3 Cir. November 5, 2014) (link unresponsive when posted).*
A computer is an “effect” under the Fourth Amendment, and the police conducted a warrantless search by telling a Best Buy employee to search the computer for child pornography, thereby exceeding the private search. People v. Gingrich, 2014 Mich. App. LEXIS 2149 (November 6, 2014): Continue reading →
Posted inPrivate search|Comments Off on MI: Police told Best Buy employee to search for CP, thereby exceeding private search
Pulling defendant’s bra out slightly by the bottom elastic not exposing her breasts was not a strip search in violation of state statute or the Fourth Amendment. State v. Murphy, 2014-Ohio-5002, 2014 Ohio App. LEXIS 4861 (3d Dist. November 10, 2014).
When the passenger was directed out of the vehicle, a joint was on the seat. That was cause for a further search. United States v. Miles, 2014 U.S. Dist. LEXIS 159673 (W.D. Mo. October 23, 2014).*
Pulling up behind a car already stopped to talk to the driver is not a stop. “In summary, coercion is implied in a traffic stop. If a stop is not to be considered an illegal seizure it generally requires an articulable reason for a belief that some kind of criminal activity is afoot. … Discourse initiated by law enforcement without a stop is not a seizure and does not usually require a suspicion of criminal activity. … The factual situation in this matter is of the latter type. Jimenez-Reyes was in his car but there was no traffic stop involved. The factual situation is comparable to a law enforcement officer approaching someone on the street and asking for his name and identification.” State v. Jimenez-Reyes, 2014 Iowa App. LEXIS 1090 (November 13, 2014).*
Posted inAutomobile exception, Seizure, Strip search|Comments Off on OH3: Slightly pulling out bra by bottom elastic exposed nothing and wasn’t a strip search
If you guessed “underage drinking,” stumble to the head of the class. And all of that doesn’t really even begin to describe all that went down in Damascus, Maryland. Here’s more from local newspaper editor Brian Karem: …
Posted inExcessive force, Police misconduct|Comments Off on WaPo: A raid, multiple tasings, two arrests, and a home “ripped apart”: Can you guess the suspected crime?
Defendant’s house had a circle drive and a front door and a back door. The back door was found a normal place of entry. At the suppression hearing, the officer testified that he’d been there before on official business and knocked at the front door, got no answer, then went to the rear door where he would get an answer. Thus, the officers did not violate the curtilage. Jones v. State, 2014 Ark. App. 649, 2014 Ark. App. LEXIS 923 (November 12, 2014).
Unmeritorious arrest and search claim not pursued by counsel can’t form the basis of an IAC claim. Sherman v. State, 2014 Ark. 474 (November 13, 2014).*
Defendant was repeatedly told that he was not under arrest, and he was not seized when he signed the consent to search his car which was voluntary. Alternatively, the search of his car was justified by the automobile exception. United States v. Ibrahim, 2014 U.S. Dist. LEXIS 159517 (D. Minn. October 9, 2014), adopted 2014 U.S. Dist. LEXIS 159019 (D. Minn. November 12, 2014).*
“Here, Officer Lane testified that when he passed the vehicle at approximately 11:40 P.M., he observed a rear passenger with a bandana covering the lower half of his face. The parking lot was in a high-crime area. Officer Lane thought the face covering at that time and place was ‘odd’ and ‘suspicious,’ and he wanted to investigate further. We agree with the trial court that wearing a bandana or cloth over one’s face is indicative that the person is trying to disguise himself, which should cause a reasonable police officer to conclude in light of his experience that criminal activity ‘may be afoot.’” State v. Spires, 2014 Mo. App. LEXIS 1265 (November 12, 2014).
Defendant failed in his burden of showing standing before the USMJ, but the court’s concerned enough about alleged factual disputes that it will let him reopen the record to put on more. United States v. Howell, 2014 U.S. Dist. LEXIS 159112 (E.D. Wis. November 12, 2014),* R&R 2014 U.S. Dist. LEXIS 159113 (E.D. Wis. March 6, 2014).*
During a traffic stop for no taillights, obvious on the dashcam video, the officer saw marijuana flakes on the driver’s shirt. That was at least reasonable suspicion. United States v. Johnson, 2014 U.S. Dist. LEXIS 159521 (D. Minn. September 11, 2014), R&R 2014 U.S. Dist. LEXIS 159729 (D. Minn. November 12, 2014).*
Posted inBurden of proof, Reasonable suspicion|Comments Off on MO: Bandana covering lower half of face in high crime area is reasonable suspicion
A bipartisan group of House members urged Congress on Thursday to stay out of the way of building momentum toward marijuana legalization in states around the country.
Posted inUncategorized|Comments Off on The Hill: Lawmakers: Don’t fight legalized pot
WASHINGTON (AP) – The Justice Department is collecting data from thousands of cellphones through high-tech gear deployed on airplanes that mimics communications towers, The Wall Street Journal reported Thursday.
The newspaper said the hunt for information about criminal suspects is also collecting data from many innocent Americans.
Citing sources familiar with the operations, the newspaper said the U.S. Marshal’s Service program, which became fully operational in 2007, operates Cessna aircraft from at least five metropolitan-area airports to collect the data. The airports were not identified in the Journal story.
In a recent court filing from Raymond ‘Shrimp Boy’ Chow, one of his attorneys, Curtis Briggs, states that included among the approximately seven million computer files, lies video surveillance footage, captured by a UAV monitoring one of the 29 defendants and their family.
Posted inDrones|Comments Off on San Francisco Appeal: FBI Might Have Used Drones To Spy On Defendant In Senator Leland Yee Corruption Case
The U.S. government now patrols nearly half the Mexican border by drones alone in a largely unheralded shift to control desolate stretches where there are no agents, camera towers, ground sensors or fences, and it plans to expand the strategy to the Canadian border.
Posted inDrones|Comments Off on AP Exclusive: Drones Patrol Half of Mexico Border
The Senate is poised to vote as early as next week on the USA Freedom Act, legislation that would end the National Security Agency’s bulk collection of records about Americans’ phone calls.
One of Congress’s jobs is determine public policy. What happens when Congress can’t do anything and the courts have to try to determine public policy on their own, something the conservatives say they aren’t supposed to do? Then the executive branch gets a pass?
Posted inFISA|Comments Off on WaPo: Senate poised to vote on USA Freedom Act as early as next week
Americans say they are deeply concerned about privacy on the web and their cellphones. They say they do not trust Internet companies or the government to protect it. Yet they keep using the services and handing over their personal information.
Posted inCell phones|Comments Off on NYTimes: The Upshot: Americans Say They Want Privacy, but Act as if They Don’t
Americas are angry with their politicians but nuanced in their political opinions. Voters in Alaska simultaneously ousted their Democratic Senator and legalized the use of marijuana. Floridians gave 505,000 more votes medical use of pot than they did in re-electing Republican Gov. Rick Scott.
Milton Friedman and William F. Buckley took their places on the pantheon of the Right while arguing against drug prohibition. The electorate appears to be moving their way.
Which makes sense. If you want to limit government and protect individual liberty, it’s impossible to ignore the ill consequences of arresting and imprisoning millions of people for using illicit substances. Drug use is bad. Arresting people for using drugs is worse.
But conservatives have another reason to abandon the drug war: federalism.
Posted inUncategorized|Comments Off on American Spectator: Will Federalism Trump the Drug War?
Sometimes that’s fully justified. Brave agents risk their lives to infiltrate terrorist cells, organized crime, and child-pornography rings. Subterfuge is vital to these operations, and needn’t harm the country if done correctly. But there are certain kinds of lies and untruths that the FBI should carefully avoid. FBI Director James Comey isn’t always able to identify them. Continue reading →
Officers obtained a warrant for a strip search to retrieve a baggie of suspected drugs hidden in defendant’s anus. The warrant did not authorize penetration, and the record supports that there was no penetration. The baggie protruded some, and it could be pulled out. The court compared the statute and cases on penetration in sex assault cases. State v. Huggins, 2014-Ohio-4999, 2014 Ohio App. LEXIS 4869 (3d Dist. November 10, 2014):
[*P26] While Huggins does not argue that the officers actually penetrated his anus to retrieve the baggie, he argues that their actions were still outside the scope of a strip search authorized by the warrant. “The kernel of the entire issue in this case comes down ultimately to where the Buttocks ends and where the anal cavity begins.” Appellant’s Br., p. 10. Huggins argues, and we do not dispute, that anal cavity is not defined in statute. As a result, as stated in his brief: Continue reading →
Posted inStrip search, Warrant execution|Comments Off on OH3: SW for strip search didn’t authorize anal penetration, and record supports there wasn’t any; “where [do] the buttocks end and … the anal cavity begin”
"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.
