Today EFF filed our latest brief in Jewel v. NSA, our longstanding case on behalf of AT&T customers aimed at ending the NSA’s dragnet surveillance of millions of ordinary Americans’ communications. The brief specifically argues that the Fourth Amendment is violated when the government taps into the Internet backbone at places like the AT&T facility on Folsom Street in San Francisco.
As it happens, the filing coincides with the theatrical release of Laura Poitras’ new documentary, Citizenfour. The Jewel complaint was filed in 2008, and there’s a scene early in the film that shows the long road that case has taken. In footage shot in 2011, the United States Court of Appeals for the Ninth Circuit hears argument in Jewel, and an attorney from the Department of Justice tries to convince a skeptical court that it should simply decide not to decide the case, leaving it to the other branches of government.
Posted inE-mail, ECPA, FISA|Comments Off on EFF: Automated Mass Surveillance is Unconstitutional, EFF Explains in Jewel v. NSA
Forty-odd years on, my story probably seems like ancient history to most people, layered over with Hollywood legend. For me it’s not, since at the age of 78 I’m still deaf in one ear and I walk with a limp and I carry fragments of the bullet near my brain. I am also, all these years later, still persona non grata in the NYPD. Never mind that, thanks to Sidney Lumet’s direction and Al Pacino’s brilliant acting, “Serpico” ranks No. 40 on the American Film Institute’s list of all-time movie heroes, or that as I travel around the country and the world, police officers often tell me they were inspired to join the force after seeing the movie at an early age.
Posted inUncategorized|Comments Off on Politico: Magazine: The police are still out of control by Frank Serpico
Randolph requires an express refusal of consent. Defendant here refused to come to the door when the police arrived, and he let his girlfriend talk to them, and she consented to a search. He didn’t have to be asked. United States v. Moore, 2014 U.S. App. LEXIS 20413 (9th Cir. October 23, 2014).
Defendant was allegedly seen running from police with a black bag, which he steadfastly contended he did not possess when it was found abandoned, so he didn’t have standing to object to its seizure or search. United States v. O’Kelley, 2014 U.S. Dist. LEXIS 150900 (E.D. Tenn. October 24, 2014),* R&R 2014 U.S. Dist. LEXIS 151736 (E.D. Tenn. September 5, 2014).*
A pipe was in plain view during a traffic stop and a search of the person produced marijuana; the search of the car was valid under the automobile exception. State v. Evans, 2014-Ohio-4703, 2014 Ohio App. LEXIS 4611 (2d Dist. October 24, 2014).*
Withheld information about a search issue that would likely have been successful is Brady information. Here, the issue developed during trial. Biles v. United States, 2014 D.C. App. LEXIS 439 (October 23, 2014):
Turning to the merits, the government, again, identifies no reason Brady should not apply to the failure to disclose information material to suppression hearings, and we likewise find no basis in our case law. We have repeatedly held that information tending to show the inadmissibility of government evidence is “favorable” evidence that must be disclosed under Brady. In Gaither v. United States, 759 A.2d 655 (D.C. 2000), amended by 816 A.2d 791 (D.C. 2003), we remanded for findings on whether the government had withheld Brady information pertaining to suggestive identification procedures. In Smith v. United States, 666 A.2d 1216, 1224-25 (D.C. 1995), we held that the government violated Brady by failing to disclose a witness statement that undermined the admissibility of a government witness’s purportedly spontaneous utterance. And in James v. United States, 580 A.2d 636 (D.C. 1990), we similarly evaluated under Brady a late-disclosed witness statement that “cast[] serious doubt” upon the trial court’s finding that another statement it admitted “was truly spontaneous.” Id. at 638. Continue reading →
Posted inMotion to suppress|Comments Off on DC: Withheld information about a viable search issue was a Brady violation
Plaintiffs’ house was subject to a no-knock search warrant by the SWAT team with flashbang explosive set off inside. Once in, it was apparent that the place was not at all as described by the confidential informant. Plaintiff survives summary judgment because a question of fact remains on (1) whether probable cause was shown, (2) whether the police made material omissions from the affidavit for search warrant that they had information that this was not the right place, and (3) trashing the house in a vain effort to find drugs after it was apparent they had the wrong house. Edwards v. City of Mount Vernon, 2014 NY Slip Op 24319, 2014 N.Y. Misc. LEXIS 4602 (Westchester Co. October 23, 2014).
Defendant’s motion to suppress evidence found in his girlfriend’s apartment was denied because he had no Fourth Amendment right to prevent a search or seizure there. He failed to establish he had a legitimate expectation of privacy in the apartment because she consistently maintained he did not stay in the apartment and he did not show otherwise. Even if he had been staying overnight with the girlfriend, exigent circumstances justified the officers to enter the apartment to stop defendant from destroying evidence because, when defendant walked in on the interview with the girlfriend he ran to the bathroom, and it was reasonable for the officers to believe that defendant had run to the bathroom to destroy evidence. She consented to a search. McCoy v. State, 2014 Miss. App. LEXIS 594 (October 21, 2014).*
A California Highway Patrol officer is under investigation after he allegedly forwarded nude photos of a female suspect to his phone.
Officer Sean Harrington, 35, is accused of sending six explicit photos of the 23-year-old woman to himself after he discovered them on her phone while she was being booked on DUI charges in August. The photos show the woman in a bikini and various states of undress, according to the Contra Costa Times.
“We’ve been investigating this for quite some time, the investigation is coming to a conclusion and we expect to make a charging decision this week,” Deputy District Attorney Barry Grove told the newspaper on Wednesday.
Posted inCell phones, Police misconduct|Comments Off on HuffPo: CHP Officer Allegedly Steals Nude Photos From DUI Suspect’s Phone
During defendant’s DUI trial, the question of whether defendant was tested for resting nystagmus was raised because it wasn’t in the field notes. Then the state asked for and got a test for resting nystagmus of the defendant in front of the jury. That was a search, and the trial court’s handling of that issue before the jury was reversible. The motion for mistrial thus became moot. State v. McCrary, 2014 Ore. App. LEXIS 1487 (October 22, 2014): Continue reading →
Defendant called the police because he was the victim of a home invasion robbery. That investigation also turned into an investigation of defendant for drug possession. Officers returned the next day to talk about the home invasion, but they also had in mind defendant’s own potential offense. It was objectively reasonable to bring along the additional officer. And, they did, in fact, find an additional shell casing and took measurements of bullet holes, and drug packaging was found in a trash can. By calling the police about the home invasion, defendant essentially invited a full investigation into what happened. United States v. Grim, 2014 U.S. Dist. LEXIS 150436 (E.D. Mo. September 16, 2014).
Defendant’s arrest was with probable cause, so his post-arrest statements were properly admitted. United States v. Rucker, 2014 U.S. App. LEXIS 20298 (11th Cir. October 21, 2014).*
The driver of a vehicle, although not the owner, was shown to have objective apparent authority to consent to its a search. United States v. Helton, 2014 U.S. Dist. LEXIS 150563 (E.D. Tenn. October 23, 2014),* R&R 2014 U.S. Dist. LEXIS 151853 (E.D. Tenn. August 11, 2014).*
The increasing use of armed drones within domestic law enforcement risks depersonalizing the use of force and infringing upon the rights of individual citizens, a United Nations independent human rights expert warned today.
Posted inDrones|Comments Off on United Nations: Growing use of drones in law enforcement may violate human rights, warns UN expert
Officers use ‘StingRays’ to mimic a cell phone tower and intercept information from phones in a whole neighborhood. Versions of the devices have been around for years, but the federal government and local police have kept them under wraps.
Posted inCell phones|Comments Off on NPR: Should Police Be Able To Keep Their Devices Secret?
The New Jersey Attorney General’s Office, which in a memo leaked to the Law Journal in June said it was looking for a test case it could take to the Supreme Court for a ruling that would allow prosecutors to obtain phone records without a warrant, has found its case.
Posted inInformational privacy|Comments Off on NJLJ: AG Test Case Seeks Phone Records Without a Warrant
So it seems that a federal judge has issued an injunction to prevent California authorities from conducting marijuana searches without a warrant.
Yes, you read that correctly.
A United States District Court judge on Tuesday granted a group of medical marijuana patients a preliminary injunction against the county of Lake’s enforcement of marijuana cultivation rules through warrantless searches.
Posted inUncategorized|Comments Off on WaPo: Federal judge rules that the Fourth Amendment might be worth the parchment on which it’s written
Davis good faith exception applied to a pre-McNeely DUI warrantless blood draw. People v. Rossetti, 2014 Cal. App. LEXIS 950 (1st Dist. October 22, 2014).
911 call from a name eyewitness to shots fired did not need corroboration. “In general, eyewitness accounts of an ongoing emergency ‘do not need corroboration, or a history of other accurate reports, to be believed.’” The ID, specific down to one wearing an “Elmer Fudd-type hat,” was reasonable suspicion when they were seen. In the stop, the officer asked defendant whether he was carrying a gun, and defendant responded: “I’m dirty.” United States v. Bennett, 2014 U.S. Dist. LEXIS 149495 (N.D. Ind. October 22, 2014).*
In this civil forfeiture case bouncing around the Texas appellate courts since 2009, claimant’s motion for summary judgment on the question of reasonable suspicion and length of the stop was not conclusive, and the state presented a fact question for trial. State v. Ninety Thousand Two Hundred Thirty-Five Dollars & No Cents in United States Currency $90,235.00, 2014 Tex. App. LEXIS 11626 (Tex. App. – El Paso October 22, 2014).*
After a marijuana eradication flyover, officers entered defendant’s fenced back yard without a warrant to seize plants. The warrantless entry violated the Fourth Amendment. They had probable cause, but the state was seeking to have defendant disprove exigency when it has the burden of proof. Reversed. State v. Littell, 2014-Ohio-4654, 2014 Ohio App. LEXIS 4538 (9th Dist. October 22, 2014):
[*P19] While the deficiencies in the record in this matter are troubling, even more troubling is the State’s insistence that its officers were within their right to enter Mr. Littell’s backyard. According to the State, its officers did not need a warrant to knock on Mr. Littell’s back door because they “were in an area where any ‘reasonably respectful citizen’ was permitted to go.” It appears to be the State’s position that its officers, knowing full well that Mr. Littell had contraband in his backyard, could enter his backyard for the stated purpose of establishing contact and, as soon as they saw the contraband they knew to be there, could lawfully seize the contraband. The Fourth Amendment cannot possibly be construed to condone such a practice. Continue reading →
Posted inCurtilage|Comments Off on OH9: Flyover gave PC for marijuana grow in backyard, but police needed a warrant to enter
Over the past year, the Seattle police department has revised its policies on when police can use force, as part of a settlement with the Justice Department over findings that officers used frequent excessive, unconstitutional force on suspects.
But some 125 Seattle police officers responded by filing a lawsuit challenging the new laws. In their view, the new policies infringe on their rights to use as much force as they deem necessary in self-protection. They represent about ten percent of the Seattle Police Officers’ Guild membership. The police union itself declined to endorse the lawsuit.
This week, a federal judge summarily rejected all of their claims, finding that they were without constitutional merit, and that she would have been surprised if such allegations of excessive force by officers did not lead to stricter standards.
Posted inExcessive force|Comments Off on Think Progress: Seattle Cops Bring Lawsuit Claiming They Have A Constitutional Right To Use Excessive Force
A two-minute video of a traffic stop in Iowa shows how a police officer might try to obtain consent to search a car — and how a lot can happen in just a brief extension of a traffic stop. (video included) Continue reading →
Posted inReasonable suspicion|Comments Off on WaPo: Volokh: A lot can happen in a ‘de minimis’ extension of a traffic stop
For your “I can’t believe this stuff happens in America” files:
Calling their conduct “constitutionally abhorrent,” a federal judge recently chided government prosecutors for working in secret to keep millions of dollars in cash and assets seized from a Las Vegas gambler and his family in a decade-long bookmaking investigation.
In his 31-page opinion, U.S. Magistrate Judge Cam Ferenbach cast light on the little-known court process that allowed the government to file civil forfeiture actions against Glen Cobb, his 82-year-old parents and his stepdaughter under “super seal” with no notice to anyone — not even the family it targeted.
Posted inForfeiture|Comments Off on WaPo: Federal judge: Prosecutors’ attempt to secretly seize $13 million was ‘constitutionally abhorrent’
Police and animal control officers responded to dogs fighting on the street, and one was bloody and apparently injured and ran into a house through an open sliding glass door. The animal control officer corralled three dogs and requested the officer go retrieve the fourth. The officer knocked and got no answer at the front door or the sliding glass door. He entered and stumbled upon a grow operation. The entry into the house was not justified by exigent circumstances. Carpenter v. State, 2014 Ind. LEXIS 835 (October 21, 2014).
Police responded to a call that a man at a house had pointed a gun at a woman. Police arrived, and defendant got up from the porch of the house and placed a handgun inside the door, out of sight. It was reasonable for the officers under the exigent circumstances exception to open the door and retrieve the gun because the officers didn’t know who was inside. Harris v. State, 2014 Ind. App. LEXIS 506 (October 21, 2014).
Posted inEmergency / exigency|Comments Off on IN: Injured dog not exigency for warrantless entry into home
Defendant was arrested in pajamas outside her house. She asked to be able to change into other clothes before leaving, and the officers agreed. It was understood, without asking, that they would have to accompany her to the bedroom while she changed. The SKS rifle in the corner was thus in plain view. United States v. Reid, 2014 U.S. App. LEXIS 20135 (8th Cir. October 20, 2014): Continue reading →
Posted inArrest or entry on arrest, Consent|Comments Off on CA8: Implied consent given when arrested defendant asked to go in and change clothes
The trial court found the affidavit for the search warrant lacked a substantial basis for finding probable cause and that the officers acted in bad faith in exceeding the scope of a drug and paraphernalia warrant to seize BB gun stuff and a videotape. On appeal, the court affirmed finding the officers flagrantly disregarded the scope of the search warrant, and suppression was the remedy. State v. Lucas, 2014 Mo. App. LEXIS 1182 (October 21, 2014).
Defendant’s warrantless BAC test was reasonable under McNeely because defendant claimed a need for medical care then actively resisted the officer. He needed backup to deal with defendant and couldn’t leave him to get a warrant in a small town without a magistrate nearby at night. State v. McCrary, 2014 N.C. App. LEXIS 1081 (October 21, 2014).*
Consent to enter a house to get a shotgun was found to be voluntary. The conversation between the defendant and the officer was amicable and he was not under arrest, he had prior experience with the criminal justice system, and he told the officer where the gun was inside the house. He was not Mirandized because he wasn’t under arrest. United States v. Alder, 2014 U.S. Dist. LEXIS 149046 (E.D. Tenn. September 19, 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.
