Defendant’s consent to a DNA test in 1986 did not preclude a 2009 retest of the sample after technology improved. State v. Benefield, 2014 Conn. App. LEXIS 468 (November 18, 2014).
Based on a lot of information, including wiretaps, trash searches, searches elsewhere, controlled deliveries, and pole camera observations, the GPS installation warrant was clearly supported by probable cause. United States v. Scherrer, 2014 U.S. Dist. LEXIS 158783 (E.D. Mo. October 8, 2014).*
Child sexual abuse victim’s mother cooperating with the police secretly recorded the defendant’s admissions to what he’d done to her daughter, and that was not inadmissible under the Fifth Amendment. “We find no violation of the defendant’s constitutional right against compelled self-incrimination because the defendant merely misplaced his trust in a confidante to whom he voluntarily confessed.” State v. Sanders, 2014 Tenn. LEXIS 912 (November 10, 2014).
Posted inConsent, DNA|Comments Off on CT: 1986 consent to DNA sample didn’t bar 2009 retesting
“This appeal boils down to one question: whether a complaint states a constitutional claim when it alleges that defendant’s jail, instead of using less invasive procedures, compelled pretrial detainees who were being processed into the facility to undress in the presence of other detainees and to have their naked genitals sprayed with delousing solution from a pressurized metal canister. We hold that such allegations plausibly allege a violation of the Fourth Amendment. We therefore reverse the district court’s contrary conclusion and remand the case for further proceedings.” Williams v. City of Cleveland, 2014 U.S. App. LEXIS 21367, 2014 FED App. 0276P (6th Cir. November 10, 2014): Continue reading →
Posted inStrip search|Comments Off on CA6: Jail strip searches in front of other inmates alleges a cause of action; not barred by Florence
More than 90 percent of the 322 million cellular phones in use in the United States contain global positioning system (GPS) tracking devices that allow wireless carriers to obtain continuous, highly accurate information regarding the location and movement of users. The use of this technology in automobiles and cellular phones helps individuals navigate their daily travels with ease and provides innumerable benefits to consumers and emergency response units. However, in an effort to increase employee efficiency, productivity and accountability, an increasing number of employers are monitoring employees by tracking their location and movement through GPS technology contained in mobile devices.
The introduction of GPS technology into the modern workplace raises a myriad of statutory and constitutional concerns regarding the threat it poses to an individual’s right to personal privacy. Although courts have yet to address the issue of employer GPS monitoring through cellular phones, constitutional privacy protections and federal case law on privacy may lay a doctrinal foundation from which to guide employers looking to use this technology in the workplace.
Posted inCell phones, GPS / Tracking Data|Comments Off on Lexology: iSpy: tracking employees with GPS technology on mobile devices
Phil Williams of Nashville’s NewsChannel 5, WTVF-TV, one of the best TV investigative journalists in the country, has been doing particularly stellar work over the last several years on civil asset forfeiture in central Tennessee. He has continued that work with a series of reports this week.
Posted inForfeiture|Comments Off on WaPo: Policing for profit in Tennessee
The Fifth Circuit upheld GPS tracking without a warrant prior to Jones, so defendant wasn’t entitled to 2255 relief under Davis good faith. (The government also argued that Stone v. Powell applied, which would be true, but the court didn’t have to go there.) United States v. Hernandez, 2014 U.S. App. LEXIS 21325 (5th Cir. November 7, 2014).
The decision to frisk defendant after a traffic stop was reasonable based on his excessive nervousness, known gang affiliations, and the fact the officer had jailed him before. United States v. Sessoms, 2014 U.S. Dist. LEXIS 158402 (E.D. N.C. October 21, 2014).*
The owner of Bar & Grill complained to the police of regularly finding drug paraphernalia on his deck. Officers came to observe and one saw “multiple quick hand to hand transactions” by the defendant. As backup officers approached defendant attempted to flee. That all added up to reasonable suspicion. United States v. Jn-Baptiste, 2014 U.S. Dist. LEXIS 158778 (D. V.I. November 7, 2014).*
The stopping officer had a radio report of a recent robbery at 12:54 a.m. by three black males, with no further description. In the vicinity of the robbery, a high crime area, the officer encountered three men about 1 a.m. That was enough for a stop on the totality since there was nobody else out. United States v. Starkey, 2014 U.S. Dist. LEXIS 158149 (E.D. Pa. November 4, 2014)*: Continue reading →
Posted inStop and frisk|Comments Off on E.D.Pa.: 1 am robbery report by three men was enough to stop first three men seen in vicinity
How local law enforcement uses an invasive, unreliable surveillance tool.
From Ferguson to Senate hearings, the news of local police arming themselves with federal-grade equipment—tanks, riot gear, M16 rifles—has captivated everyone from civil libertarians to lawmakers. But in the national debate surrounding police militarization, the most effective weapons may have been overlooked: Beyond arming themselves like the federal government, local police are also spying on you like the federal government—using sophisticated surveillance technology without warrants.
One of the tools making it possible for Chief Wiggum to gather all your deets is known colloquially as a Stingray, a portable gadget about the size of a box of doughnuts. They’re also known as “cell-site simulators,” because, well, that’s exactly what they do: A Stingray mimics a cellphone tower and forces all nearby mobile phones or devices to connect to it. Every phone that connects to the Stingray reports its number, GPS location, and the numbers of all outgoing calls and texts. That’s every location and outgoing call and text log of every phone within a certain radius—up to several kilometers—of the Stingray, and that’s all without a warrant.
Posted inCell phones|Comments Off on Slate: Stingrays: Not Just for Feds!
The two men in the rented red Nissan Altima were poker players traveling through Iowa on their way to Las Vegas. The police were state troopers on the hunt for criminals, contraband and cash.
They intersected last year on a rural stretch of Interstate 80, in a seemingly routine traffic stop that would soon raise new questions about laws that allow police to take money and property from people not charged with crimes.
By the time the encounter was over, the gamblers had been detained for more than two hours. Their car was searched without a warrant. And their cellphones, a computer and $100,020 of their gambling “bankroll” were seized under state civil asset-forfeiture laws. The troopers allowed them to leave, without their money, after issuing a traffic warning and a citation for possession of marijuana paraphernalia that carried a $65 fine, court records show.
Posted inForfeiture, Police misconduct|Comments Off on WaPo: Unusual lawsuit challenges police seizure tactics
Mayor Bill de Blasio, who took office promising to reform the Police Department and repair relations with black and Latino communities, on Monday unveiled his plan to change the way the police enforce the law on marijuana possession.
Arrests for low-level marijuana possession have had an especially harsh impact on minority communities, and under the change announced on Monday, people found with small amounts of marijuana will typically be given a ticket and cited for a violation instead of being arrested and charged with a crime.
Posted inStop and frisk|Comments Off on MYTimes: Concerns in Criminal Justice System as New York City Eases Marijuana Policy
How would President Barack Obama’s Attorney General nominee Loretta Lynch approach a high-profile police controversy like the one that engulfed Ferguson, Mo., this summer? As Ms. Lynch awaits a confirmation vote by the Senate, her views on police-community relations are one area of curiosity. The issue was a big priority for outgoing Attorney General Eric Holder, whose civil rights investigation of the Ferguson, Mo., police force is among the high-profile cases Ms. Lynch would likely inherit. Ms. Lynch hasn’t talked about the Ferguson police shooting controversy. But remarks she gave during her first stint as U.S. Attorney for the Eastern District of New York in Brooklyn in 2000 shed light on her thoughts about the role of the federal government in the area of alleged police misconduct.
Posted inExcessive force, Police misconduct|Comments Off on WSJ: Lynch: Civil Actions Against Police Agencies Can Spur ‘Systemic Change’
If not for Sunbury, Ohio, officers’ new cameras, one case might have brought charges of police abuse, Fourth Amendment violations and a lengthy investigation.
The officers raced to the high-priority call, where parents were fighting and a young child was present.
Sunbury, Ohio, police officers quickly learned that a gun was in the kitchen and went in to get it. A tense situation was easily defused; that is, until the father accused the officers of illegally searching his home and seizing weapons and a knife.
If not for the officers’ eyeglass-mounted video cameras, the case might have brought charges of police abuse, Fourth Amendment violations and a lengthy investigation. Instead, video from the pencil-size cameras, downloaded back at the station, showed the officers simply doing their job.
Posted inUncategorized|Comments Off on Govt Tech: Eyeglass-Mounted Video Cameras Earn Police Respect
A pat frisk of a student as an alleged truant who missed a school bus an hour before the start of school was invalid because he wasn’t yet a truant. Even so, what’s the basis for a frisk for truancy. J.R. v. State, 2014 Fla. App. LEXIS 17907 (Fla. 4th DCA November 5, 2014).
Threat to obtain a warrant and kick in the door would have been entirely legal if that’s what was threatened. Here, defendant was believed to have child pornography on his computer, and his wife shut the door on the officers and talked to her husband before letting the police in based on the threat. This consent was not involuntary. People v. Rodriguez, 2014 Cal. App. LEXIS 1008 (6th Dist. November 6, 2014).
Officers of the N.H. State Police had qualified immunity for an alleged two hour detention of plaintiff state trooper at work who was having serious problems with his marriage, allegedly violated an order of protection obtained by his wife, threatened to resign although eight months from retirement, beat the wall with his fist, and other threatening behavior. Conrad v. N.H. Dep’t of Safety, 2014 N.H. LEXIS 130 (November 6, 2014).*
The New York Police Department, which has been arresting tens of thousands of people a year for low-level marijuana possession, is poised to stop making such arrests and to issue tickets instead, according to law enforcement officials.
People found with small amounts of marijuana would be issued court summonses and be allowed to continue on their way without being handcuffed and taken to station houses for fingerprinting.
The change would remake the way the police in New York City handle the most common drug offenses and would represent Mayor Bill de Blasio’s most significant effort since taking office to address the enduring effects of the department’s excessive stop-and-frisk practices.
Posted inReasonable suspicion|Comments Off on NYTimes: Marijuana May Mean Ticket, Not Arrest, in New York City
Officers didn’t go to the front door for a knock-and-announce and they didn’t anybody. The law was not clearly established at the time. The homeowner sued under § 1983. SCOTUS per curiam grants the officers qualified immunity without full briefing. Carroll v. Garman, 2014 U.S. LEXIS 7430 (November 10, 2014):
The Carmans later sued Officer Carroll in Federal District Court under 42 U.S.C. § 1983. Among other things, they alleged that Carroll unlawfully entered their property in violation of the Fourth Amendment when hewent into their backyard and onto their deck without a warrant. 749 F. 3d, at 196.
At trial, Carroll argued that his entry was lawful under the “knock and talk” exception to the warrant requirement. That exception, he contended, allows officers to knock on someone’s door, so long as they stay “on thoseportions of [the] property that the general public is allowed to go on.” Tr. 7 (Apr. 8, 2013). The Carmans responded that a normal visitor would have gone to theirfront door, rather than into their backyard or onto their deck. Thus, they argued, the “knock and talk” exception did not apply.
. . .
We do not decide today whether those cases were correctly decided or whether a police officer may conduct a “knock and talk” at any entrance that is open to visitors rather than only the front door. “But whether or not the constitutional rule applied by the court below was correct,it was not ‘beyond debate.’” Stanton v. Sims, 571 U. S. ___, ___ (2013) (per curiam) (slip op., at 8) (quoting al-Kidd, 563 U. S., at ___ (slip op., at 9)). The Third Circuit therefore erred when it held that Carroll was not entitled to qualified immunity.
Prior to deciding whether to re-authorize the bulk telephony metadata collection through the appended Primary Order, I considered with care the stated changes to the minimization procedures. As described, the first set of changes approved in the February 5 Order provide enhanced protections for the bulk telephony metadata. While the March 12 Opinion and Order allows the government to retain bulk telephony metadata beyond five years, it allows the government to do so for the sole purpose of meeting preservation obligations in civil litigation pending against it. Continue reading →
Posted inFISA|Comments Off on FISC: Another FISC case disagreeing with Klayman released
Decriminalization of marijuana in the future may change the probable cause calculus, but this search was based on the smell of marijuana and long predated that (April 2010). Butler v. United States, 2014 D.C. App. LEXIS 446 (November 6, 2014) (submitted October 25, 2012):
On appeal, appellant argues that the trial court erred in denying his motion to suppress the drugs found on his person because the police lacked probable cause to arrest him and could not search him incident to arrest based solely on the smell of marijuana emanating from his vehicle. Citing primarily Minnick v. United States, 607 A.2d 519 (D.C. 1992), the government argues that the identifiable aroma of a drug by itself provides probable cause to arrest and search an individual. While we are not persuaded by the government’s argument, and recognize that with the passage of the Marijuana Possession Decriminalization Amendment Act of 2014, effective July 17, 2014, see D.C. Council, Act 20-305 (Mar. 31, 2014), the calculus of probable cause in future cases such as this may change, we nonetheless conclude — albeit not without some pause — that the arrest and subsequent search of appellant in this case was not unconstitutional. Accordingly, we affirm.
Posted inProbable cause|Comments Off on DC’s new MJ decriminalization doesn’t affect a search from 2010
Illinois’s implied-consent statutory scheme did not unconstitutionally circumvent defendant’s Fourth Amendment rights by punishing him for refusing to take the chemical analysis by suspending his driver’s license and introducing his refusal against him at his criminal trial. A per se approach to warrantless blood draws had been rejected, and the dissipation of alcohol in the blood could support an exigency finding based on the totality of the circumstances. People v. Gaede, 2014 IL App (4th) 130346, 2014 Ill. App. LEXIS 772 (November 4, 2014).*
Defendant was not entitled to return of some of the property at issue under Rule 41(g) because it was evidence of the crime or a product of the financial crime. Coston v. United States, 2014 U.S. Dist. LEXIS 156536 (N.D. N.Y. November 4, 2014).*
Reasonable suspicion of a window tint violation was apparent, and probable cause wasn’t needed for a stop. State v. Scott, 2014-Ohio-4963, 2014 Ohio App. LEXIS 4839 (2d Dist. November 7, 2014).*
Defendant touched the fog line and wasn’t driving erratically. As he explained on the video during the stop, he was concerned that there was a police car staying in his blind spot and he was trying to stay away from it. “Even if Trooper Lee was mistaken in good faith about whether Wendfeldt’s driving violated NRS 484B.223(1), this does not transform the unlawful traffic stop into a lawful one.” Defendant’s alleged obvious nervousness wasn’t apparent on the video. When questioned by the officer he said: “I have no reason for standing here, and I don’t know what you’re doing.” The prolonged seizure was unreasonable. It was not “de minimus.” United States v. Wendfeldt, 2014 U.S. Dist. LEXIS 157764 (D. Nev. November 7, 2014).
Defendant’s curious movement of his pant leg in his apartment was furtive enough for a frisk. Officers had recovered a gun in the same apartment two days earlier. United States v. Loftin, 2014 U.S. Dist. LEXIS 157426 (D. Nev. March 13, 2014).*
Defendants’ stop away from the border was based on reasonable suspicion, but the officers had no probable cause or consent to search the car. United States v. Gonzales, 2014 U.S. Dist. LEXIS 157754 (D. Ariz. November 7, 2014).*
Posted inBorder search, Reasonable suspicion|Comments Off on D.Nev.: Touching the fog line when a police car is in one’s blind spot isn’t a traffic offense; stop unreasonable
A frisk was reasonable where the officer would have to turn his back on the defendant to deal with the passenger, even though the officer did not articulate specific reasonable suspicion he was armed. “As in Manjarrez, the deputy could not reasonably be expected to leave Fager in his patrol car, turn his back on Fager, insert his head into Fager’s car, and search the car or arrest the passenger without first checking Fager for weapons. Because of the presence of the passenger, the presence of more than one officer does not make the situation any less dangerous than the situation in Manjarrez. As in Manjarrez, the record shows that the deputy was concerned for his safety and wanted to conduct the search of Fager’s car without fear of violence.” United States v. Fager, 2014 U.S. Dist. LEXIS 156980 (D. Kan. November 6, 2014).
Defendant’s motion to reopen suppression hearing is denied because it wouldn’t matter, and there was a choice not to seek to introduce it until he lost. “Defendant argues that the hearing should be reopened so that I can consider evidence that ‘became relevant’ only after I issued my prior ruling, and that he had not located until after the hearing. I find that the evidence Defendant identifies relates directly to issues that were fully addressed at the hearing and was available to Defendant at the time, and that the mere fact that he did not then choose to locate or introduce it is not a sufficient basis to reopen the hearing now. Moreover, even were the hearing reopened, the evidence identified in Defendant’s motion would not alter my original ruling. Accordingly, I deny the motion.” United States v. Harris, 2014 U.S. Dist. LEXIS 157119 (D. Md. November 6, 2014).*
Posted inBurden of proof, Reasonable suspicion|Comments Off on D.Kan.: RS was shown for a frisk even though the officer didn’t articulate it
"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.
