Defendant’s cell phone found in a car searched under the automobile exception could be seized pending getting a search warrant for it. There was probable cause to believe evidence of the crime would be found there. United States v. Palermo, 2014 U.S. Dist. LEXIS 157619 (W.D. N.Y. November 6, 2014).*
The affidavit for the search warrant for child pornography by having taken nude pictures of a juvenile showed probable cause based on her statement to the police. Staleness wasn’t a viable issue either. United States v. Johnson, 2014 U.S. Dist. LEXIS 156491 (D. Minn. September 18, 2014),* adopted 2014 U.S. Dist. LEXIS 156734 (D. Minn. November 4, 2014).*
Defendant argued that evidence of prostitution would not be found in her home so nexus was lacking. The court disagrees because the charge is sex trafficking, and one of the girls involved lived in her home. Also, the warrant was not stale. United States v. Willis, 2014 U.S. Dist. LEXIS 157021 (W.D. N.Y. November 5, 2014).*
Posted inAutomobile exception, Cell phones, Nexus|Comments Off on W.D.N.Y.: Cell phone found in automobile exception search could be seized for SW
The court finds the officers’ testimony too embellished and padded to be believable. Their job is to testify factually and not embellish. [See Treatise § 60.47 n.2 (“Counsel should watch for testimony ‘tailored to nullify constitutional objections.’”)] United States v. Hill, 2014 U.S. Dist. LEXIS 156683 (N.D. Cal. November 5, 2014):
As applied here, the Court discounts the entirety of the deputy Scheuller’s and Miguel’s testimony because of the cavalier and over-reaching approach they employed in testifying. Due to the number and quality of the inconsistencies in the witnesses’ testimony, and the surrounding circumstances including that the precipitating event was a completed traffic violation with no immediate threat to the public shown or apparent, the Court does not find credible the testimony suggesting that the defendant’s movement to the backseat of the Mercedes Benz was “furtive,” and thus, a reasonable basis for the defendant’s seizure. The fact that a firearm was later found is not relevant to the analysis. Continue reading →
Posted inBurden of proof|Comments Off on N.D.Cal.: Officers’ testimony too embellished and padded to be believable
N.D.Cal. wrestles with 404(b) and the exclusionary rule. United States v. Felix, 2014 U.S. Dist. LEXIS 156232 (N.D. Cal. October 31, 2014). See Treatise § 9.02. A thoughtful opinion, without really resolving the issue, yet: Continue reading →
Posted inExclusionary rule|Comments Off on N.D.Cal.: 404(b) and the exclusionary rule
The affidavit for the search warrant showed probable cause, so the search can’t be suppressed. Moreover, the officer acted reasonably and gets qualified immunity. The search itself wasn’t as broad as the warrant was argued to allow, so the search was reasonable. Hart v. Gordon, 2014 U.S. App. LEXIS 21147 (3d Cir. November 6, 2014): Continue reading →
“The video also shows that Trooper Nicholas employed no coercive tactics during the encounter. He was the only officer on the scene and was at all times pleasant and respectful. He did not threaten or deceive the travelers. He never brandished his weapon or made any other show of force. And although the trooper leaned toward the car window during the traffic stop, he did so only to hear the travelers above the noise of interstate traffic. Under these circumstances, the Court concludes that the Government has met its burden to show that the encounter between Trooper Nicholas and the travelers was consensual and that Defendant’s consent to search was freely and voluntarily given.” United States v. Sanchez-Cruz, 2014 U.S. Dist. LEXIS 156202 (D. Kan. November 5, 2014).*
The smell of marijuana coming from a car validly stopped justified a search of the car. Drugs weren’t found, but a gun was, and defendant was a convicted felon. United States v. Hayes, 2014 U.S. Dist. LEXIS 156205 (N.D. Ind. November 5, 2014).*
Defendant was attempting to pass a semi truck on I-90, apparently saw the officer in the other lane, and backed off and pulled in behind the truck. The officer thought that was curious and made a U-turn. Following defendant, he got off at the next exit which said “no services,” and he drove down the road and then a gravel road and pulled in a driveway of an apparent unoccupied farm house. The officer followed and pulled in too but didn’t block him. The conversation with defendant led to reasonable suspicion criminal activity was afoot, and defendant’s consent thereafter was voluntary. United States v. Medina, 2014 U.S. Dist. LEXIS 156020 (D. Mont. November 4, 2014).*
I only discovered that there was one today because Lexis sent two cases from it, one of which is posted immediately below. By the looks of it, all the links were added in April so it likely was created about then. It’s not user friendly yet, but maybe it will be later.
Posted inUncategorized|Comments Off on Foreign Intelligence Surveillance Court added to sidebar
There is a reasonable expectation of privacy in medical records under Ferguson supported by McNeely. While statute may waive doctor-patient privilege, it does not waive the reasonable expectation of privacy. State v. Little, 2014-Ohio-4871, 2014 Ohio App. LEXIS 4743 (3d Dist. November 3, 2014) [accord: State v. Clark, 2014-Ohio-4873, 2014 Ohio App. LEXIS 4741 (3d Cir. November 3, 2014)]: Continue reading →
The right to have counsel present during a breathalyzer test doesn’t apply to blood draws under a search warrant. State v. Shepley, 2014 N.C. App. LEXIS 1124 (November 4, 2014):
“During the administration of a breathalyzer test, the person being tested has the right to ‘call an attorney and select a witness to view for him the testing procedures.’ This statutory right may be waived by the defendant, but absent waiver, denial of this right requires suppression of the results of the breathalyzer test.” State v. Myers 118 N.C. App. 452, 454, 455 S.E.2d 492, 493 (1995) (quoting N.C.G.S. § 20-16.2(a)(6), and citing McDaniel v. Division of Motor Vehicles, 96 N.C. App. 495, 497, 386 S.E.2d 73, 75 (1989), and State v. Shadding, 17 N.C. App. 279, 283, 194 S.E.2d 55, 57 (1973) (other citation omitted). However, as stated above, if a defendant refuses to submit to the test designated by the law enforcement officer, no blood alcohol tests “may be given under the provisions of this section, but the refusal does not preclude testing under other applicable procedures of law.” The plain language of the statute limits its application to situations in which a defendant consents to take a breathalyzer or other test designated by the officer.
Posted inDrug or alcohol testing, Warrant execution|Comments Off on NC: The right to have counsel present during a breathalyzer test doesn’t apply to blood draws under a search warrant
Mistake of law doesn’t support a stop. Here, it was for riding a bicycle on the sidewalk in a mixed use area with one or two operating businesses on the block that weren’t boarded up, and the ordinance applies only to commercial districts. Defendant was on a bicycle at walking speed talking to a woman who was walking when he was stopped. People v. Campuzano, 2014 Cal. App. LEXIS 1016 (App. Div. San Diego Co. October 9, 2014), Publication Status of this Document has been Changed by the Court from Unpublished to Published November 6, 2014: Continue reading →
Posted inReasonable suspicion|Comments Off on Cal. App.-San Diego: Mistake of law doesn’t support a stop
The developing story of the FBI’s impersonation of journalists is, in a way, really the story of Timberline high school in Washington State. In June of 2007 Timberline had received a series of bomb threats, prompting a week of evacuations. The FBI and local law enforcement traced the problem to an anonymous account on the MySpace social media site. But the trail seemed to stop there, as investigators were unable to ascertain the identity of the person or persons behind the account.
. . .
Given these fierce reactions to the Timberline episode, an important question has again been raised: What rules apply to this sort of law enforcement trickery? Below, I overview two potentially relevant constraints: policies employed within the FBI itself, as well as Fourth Amendment limits set by courts. (To be clear, I do not mean to canvass every legal issue raised by the episode.)
Posted inUncategorized|Comments Off on Lawfare: The FBI Impersonates the Media: Some of the Rules Governing Cyber-Subterfuge
The Chicago Police Department’s newly formed “mobile explosives screening team” swabbed the bags of some passengers entering a River North train station Thursday morning as a part of a new counterterrorism initiative.
Chicago police began conducting the pop-up screenings at CTA train stations Monday, joining cities like New York, Washington, D.C., and Los Angeles that have already implemented similar security strategies.
Posted inEmergency / exigency|Comments Off on Chicago Tribune: New ‘explosives screening team’ deploys to River North CTA station
Before May, Congress has no alternative but to endorse or end NSA spying on the phone calls of virtually every American. What does the new party in charge want?
Posted inFISA|Comments Off on The Atlantic: Now the GOP Must Choose: Mass Surveillance or Privacy?
The family of a man who died after being stunned up to 13 times with Taser devices during his arrest settled a lawsuit against East Point, an Atlanta suburb, and two police officers.
Posted inExcessive force|Comments Off on NYTimes: Georgia: Lawsuit Over Taser Death Is Settled
While there has been some progress towards a restoration of the nation’s Fourth Amendment rights, there have also been several steps back. A lot of this seems to be tied to a judicial reluctance to side with criminals. These Fourth Amendment issues generally boil down to law enforcement v. bad guys, usually delivered without nuance.
Earlier this year, the 11th Circuit Court of Appeals found that tracking suspects using phone location info required a warrant. This wasn’t a general ruling, however, and it was limited to several specifics in this case. The court found that cell phone location info carried an expectation of privacy despite also being a “business record” — something that is normally stripped of privacy expectations thanks to the Third Party Doctrine.
Posted inExclusionary rule|Comments Off on Techdirt: The Exception Is The Rule: How The Government’s ‘Good Faith’ Efforts Are Destroying The Fourth Amendment
“Arkansas State Police Trooper Stephen Briggs was inside the Valero convenience store on Colonel Glenn Road in Little Rock to get something to drink when he overheard a man on his cell phone say that he had lost $3200. The man also asked, ‘what was he supposed to do, go back and get his dope?’ Briggs bought his drink and went back to his vehicle, and, based on what he had overheard, he decided to watch the man, who subsequently went outside and got into a white Cadillac DeVille.” The officer watched and another car pulled up and the two men looked in the trunk of the Cadillac. The officer looked in the window of the Cadillac and saw a baggie of likely meth. That was a valid plain view. Moody v. State, 2014 Ark. App. 618 (November 5, 2014).*
In a traffic stop, “The marijuana odor emanating from appellant and the vehicle, alone, provided reasonable suspicion to detain appellant to determine the lawfulness of his conduct, to search the vehicle, and to arrest him, depending on the circumstances.” Blair v. State, 2014 Ark. App. 623, 2014 Ark. App. LEXIS 901 (November 5, 2014).*
The ACLU has freed up more NSA documents — again as the result of a FOIA lawsuit. Some of what’s been obtained provides a few more details on the NSA’s reliance on Executive Order 12333 to perform its data and communications harvesting. This Executive Order is, and always has been, the go-to authority for the NSA. This allows it to bypass nearly every form of oversight. There’s no FISA court involvement or input from Congressional oversight committees. The NSA relies almost exclusively on the good graces of the Executive Branch — something that has worked out in its favor for the past two presidencies.
Posted inFISA|Comments Off on Techdirt: Documents Obtained By The ACLU Show NSA’s Inability To Prevent Collection Of US Persons’ Data And Communications
WaPo: Magistrate issues arrest warrants for 17 years but is new to “probable cause” by Orin Kerr:
Here’s a remarkable case from the Ohio Supreme Court, State v. Hoffman, involving an unconstitutional arrest warrant. The defendant was arrested for a misdemeanor based on a defective arrest warrant, leading to the discovery of evidence of murder. The remarkable part is why the arrest warrant was defective. For at least 17 years, magistrates in Toledo, Ohio were instructed to issue arrest warrants without ever actually making a probable cause determination. Officers would just say that the suspect had committed an offense, and the magistrates would issue the warrant without ever hearing the factual basis for that conclusion. Here’s the testimony of the magistrate who issued the arrest warrant in this case: Continue reading →
Posted inProbable cause, Warrant requirement|Comments Off on WaPo: Magistrate issues arrest warrants for 17 years but is new to “probable cause”
Below you’ll find a recap of yesterday morning’s argument in Klayman v. Obama.
A three-judge panel of the D.C. Circuit yesterday considered a key challenge to the NSA’s bulk collection from telephone companies of subscribers’ call detail records, pursuant to Section 215 of the USA PATRIOT ACT. Earlier, U.S. District Judge Richard Leon concluded that the surveillance likely violated the Fourth Amendment, but stayed his entry of a preliminary injunction, pending appeal by the government. Plaintiffs followed with a cross-appeal of their own. While defending Judge Leon’s finding of likely unconstitutionality, plaintiffs also attacked Leon’s refusal to take up their claims under the First and Fifth Amendments.
Posted inFISA|Comments Off on Lawfare: Recap of Yesterday’s Argument in the Section 215 Case
"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.
