In the Silk Road case, defendant can’t challenge the search and seizure of a computer server in Iceland in 2013 because he claims no interest in it or its information. United States v. Ulbricht, 2014 U.S. Dist. LEXIS 145553 (S.D.N.Y. October 10, 2014):
Defendant has not asserted a violation of the Fifth Amendment—nor could he. Defendant has, however, brought what he must certainly understand is a fatally deficient motion to suppress. He has failed to take the one step he needed to take to allow the Court to consider his substantive claims regarding the investigation: he has failed to submit anything establishing that he has a personal privacy interest in the Icelandic server or any of the other items imaged and/or searched and/or seized. Without this, he is in no different position than any third party would be vis-à-vis those items, and vis-à-vis the investigation that led U.S. law enforcement officers to Iceland in the first place. Continue reading →
The state’s affidavits filed in response to the motion to suppress say the search was by consent, but the defense didn’t controvert. Without there being a factual dispute, no hearing is required on the motion to suppress, and it’s a question of law. State v. Saunders, 2014 Del. Super. LEXIS 539 (August 6, 2014).
Based on controlled purchases and then information from a CI, officers had probable cause to believe that methamphetamine was in the backpack put into defendant’s SUV. A prior controlled delivery went down just like this one was. United States v. Wolfgramm, 2014 U.S. Dist. LEXIS 145877 (D. Haw. October 10, 2014).*
Defense counsel’s failure to challenge GPS tracking in 2008 was based on existing authority at the time, and any motion to suppress would have been denied. Therefore, defense counsel was not ineffective. United States v. Valdez, 2014 U.S. Dist. LEXIS 144034 (D. Idaho October 6, 2014).*
Intelligence Squared presented an excellent debate last week at the National Constitution Center in Philadelphia — “Resolved: Mass collection of U.S. phone records violates the Fourth Amendment.”
Posted inCell phones, FISA, Informational privacy|Comments Off on WaPo: Volokh: Intelligence Squared debate: Mass collection of U.S. phone records violates the Fourth Amendment
FBI Director James Comey speaks with Scott Pelley about our lives online and the need for government electronic surveillance, but only with a court order.
Posted inECPA, FISA|Comments Off on 60 Minutes: FBI director on privacy, electronic surveillance
A motion to suppress raised after the government rested in a jury trial is a waiver. The pretrial filing rule exists for important reasons of notice to the parties. United States v. Moore, 2014 U.S. App. LEXIS 19648 (4th Cir. October 10, 2014): Continue reading →
Posted inMotion to suppress|Comments Off on CA4: A motion to suppress raised after the government rested in a jury trial is a waiver; early notice is vital
Probation and parole services did not need reasonable suspicion to conduct home searches of a convicted sex offender for internet access. When released, he agreed to suspicionless searches. There is a state law prohibition on arbitrary or harassing searches, but this wasn’t shown to be either. State v. Bogert, 2013 VT 13A, 2014 Vt. LEXIS 117 (October 10, 2014): Continue reading →
Posted inProbation / Parole search|Comments Off on VT: Suspicionless parole searches for internet access and computer use of a SO was reasonable
Defendant was arrested outside his house and officers entered to conduct a protective sweep for protection of evidence. The protective sweep produced nothing. They brought him inside handcuffed and, unMirandized, told him they had probable cause for a warrant and would get one, but he could consent so they wouldn’t tear the place up. The consent was not voluntary. United States v. Watson, 2014 U.S. Dist. LEXIS 145429 (E.D. N.C. October 9, 2014).*
Defendant beat up and strangled his girlfriend and then fell asleep. She “snuck out of the house” and called police who came, observed her injuries, and then entered the place with her consent to arrest and search. The search incident of defendant’s person was valid. The further search of their place was with her consent, and a firearm was found that defendant appropriated from her as his own. A cell phone search warrant was properly issued, and a picture of a firearm was found on it. United States v. Lowe, 2014 U.S. Dist. LEXIS 145458 (D. Nev. October 10, 2014),* R&R 2014 U.S. Dist. LEXIS 145457 (D. Nev. August 11, 2014).*
Defense counsel was not ineffective for not pursuing a motion to suppress the search of an apartment the police were searching with a warrant when he arrived and attempted to enter and then fled when he saw the police. First, he had no standing [despite having a key?]. Second, the search was the product of a search warrant, not his arrest after he fled from the scene. Louis v. United States, 2014 U.S. Dist. LEXIS 145773 (M.D. Fla. October 10, 2014).*
Posted inCell phones, Consent, Ineffective assistance|Comments Off on E.D.N.C.: Consent after police entered for protective sweep after arrest outside was involuntary
Defendant was remanded for resentencing, and he sought to reopen his suppression hearing in light of Jardines. Agreeing that a “change in the law” can justify departure from the mandate of reversal, defendant loses on the Jardines argument because it is foreclosed already in this circuit by Davis. Circuit law authorized the police conduct prior to Jardines, so the search there was in good faith. United States v. Herman, 2014 U.S. App. LEXIS 19345 (7th Cir. October 10, 2014).*
During defendant’s police interrogation, he was asked if he’d consent to a search of his house. And, if he had more drugs and weapons there they wouldn’t pile more charges on. Defendant denied having more and consented, but drugs were found. The officer didn’t get consent by a false promise based on defendant’s denial. United States v. White, 2014 U.S. Dist. LEXIS 144307 (N.D. Ind. October 10, 2014), R&R 2014 U.S. Dist. LEXIS 145926 (N.D. Ind. July 16, 2014).*
Eyewitness information of defendant’s involvement plus CIs’ information plus defendant’s admission he was at the scene was sufficient to provide probable cause for defendant’s arrest. State v. Brown, 2014 Tenn. Crim. App. LEXIS 945 (October 9, 2014).*
Search at jail wasn’t shown to be necessary or inevitable, and state conceded error (decided under state constitution). Defendant likely would have been booked and released. State v. Moulton, 2014 Ore. App. LEXIS 1372 (October 8, 2014).*
Defendant’s refusal to take a preliminary alcohol screening test didn’t prevent being asked for a second test after arrest. The latter was by consent. City of Missoula v. Armitage, 2014 MT 274, 2014 Mont. LEXIS 616 (October 9, 2014).*
The driver of the car defendant was a passenger in consented to the search of the car, and defendant passenger has no standing to challenge the search. The search was valid as a search incident. State v. Black, 2014 Del. Super. LEXIS 517 (October 6, 2014).*
Officers were investigating an armed robbery and were looking for suspects. Defendant conceded in his motion to suppress that the stop was valid, so he can’t argue to the contrary on appeal. In his patdown, something rolled up was found, and defendant pulled out money saying he won it gambling. That was consent. The trial court erred in not considering the “length of the detainment” for Terry purposes, but, on the record the appellate court has, this was all valid as a search incident. Gales v. State, 2014 Miss. LEXIS 501 (October 9, 2014).
On New Years Eve, defendant, a known drug dealer, was seen driving erratically and was followed to a house. He got out of the car and walked to the house, glanced at his cell phone, knocked, and the occupants shook their heads “no.” Defendant turned to leave and saw the police car and went between the houses instead of back to his car. That evasion was reasonable suspicion for a stop. State v. Smith, 2014 Mo. App. LEXIS 1133 (October 9, 2014).*
A motion to suppress regarding the way the HGN test was conducted was not sufficient to put the state on notice as to defendant’s concern that the test was not in substantial compliance with NHTSA standards. Issue waived because it’s not based on the “particular grounds” being asserted. State v. Todd, 2014-Ohio-4489, 2014 Ohio App. LEXIS 4378 (5th Dist. October 9, 2014).*
The patdown here was by consent. A request doesn’t ipso facto make it a demand. “{¶23} The United States Supreme Court further noted, ‘[w]hile most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.’ I.N.S. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247(1984); Drayton, supra, 536 U.S. at 205, 122 S.Ct. at 2113.” State v. Camp, 2014-Ohio-4498, 2014 Ohio App. LEXIS 4407, 2014 Ohio App. LEXIS 4416 (5th Dist. October 9, 2014).* [note two Lexis cites]
Defendant was stopped because he pulled into the driveway of a state trooper’s house, and he was either lost or up to no good. Once stopped, his answers about where he was going made no “geographical sense.” His eyes were bloodshot and he admitted being at a bar. The continuation of the stop for suspicion of DUI was proper. State v. Todd, 2014-Ohio-4489, 2014 Ohio App. LEXIS 4411 (5th Dist. October 9, 2014).*
Search of car trunk issue was not “asserted with sufficient particularity” to preserve the issue for appeal. State v. Hackler, 2014-Ohio-4500, 2014 Ohio App. LEXIS 4419, 2014 Ohio App. LEXIS 4415 (5th Dist. October 9, 2014).*
Police agencies have used hundreds of millions of dollars taken from Americans under federal civil forfeiture law in recent years to buy guns, armored cars and electronic surveillance gear. They have also spent money on luxury vehicles, travel and a clown named Sparkles.
The details are contained in thousands of annual reports submitted by local and state agencies to the Justice Department’s Equitable Sharing Program, an initiative that allows local and state police to keep up to 80 percent of the assets they seize. The Washington Post obtained 43,000 of the reports dating from 2008 through a Freedom of Information Act request.
Caption for attached picture of 10 SWAT officers and their vehicle: “ABOVE: In Douglasville, Ga, population 32,000, an armored personnel carrier costing $227,000 was bought using money taken from Americans under civil forfeiture laws.”
Protect and serve? Serve whom?
Part 1: After Sept. 11, 2001, a cottage industry of private police trainers emerged to teach aggressive techniques of highway interdiction to thousands of local and state police. Part 2: One training firm started a private intelligence-sharing network and helped shape law enforcement nationwide. Part 3: Motorists caught up in the seizures talk about the experience and the legal battles that could take over a year.
Posted inForfeiture|Comments Off on WaPo: Asset seizures fuel police spending (4th in a series)
The area outside a tent campsite in a national forest was not defendant’s curtilage. Forest Service officers came upon the campsite and it was apparent that the occupants of the tent there were smoking marijuana. The officers did not enter the tent, but called the occupants out. State v. Beck, 2014 Ida. App. LEXIS 104 (October 8, 2014): Continue reading →
Posted inUncategorized|Comments Off on ID: The area outside a tent campsite in a national forest was not defendant’s curtilage
Defendant was handcuffed and a woman with him wasn’t. She was sitting on his jacket. The jacket was still subject to search incident because she could have done something to aid him. State v. Pedersen, 2014 Ida. App. LEXIS 106 (October 8, 2014): Continue reading →
Posted inSearch incident|Comments Off on ID: Jacket a companion was sitting on while def was handcuffed was subject to search incident
One who sends a text message to another cell phone has no privacy in that interest when it’s in the other phone. There is a privacy interest in the content of a telephone call, but not once it’s shared with another. State v. Carle, 2014 Ore. App. LEXIS 1366 (October 8, 2014): Continue reading →
There was arguable probable cause for plaintiff’s arrest, so the officers get qualified immunity. Trevino v. Benton County, Arkansas, 2014 U.S. App. LEXIS 19166 (8th Cir. October 8, 2014).*
The police obtained separate search warrants for marijuana and a cell phone. The timing of the discovery of the cell phone isn’t clear, but the inevitable discovery doctrine would apply based on the fact of the SW for the cell phone. United States v. Stile, 2014 U.S. Dist. LEXIS 144241 (D. Me. October 10, 2014).*
The government says it doesn’t intend to use the product of search warrants for defendant’s gmail and Facebook accounts, so that’s moot. United States v. Shoen, 2014 U.S. Dist. LEXIS 143870 (D. Minn. September 8, 2014).*
Defendant’s apartment was only accessible by a backdoor on the curtilage. The fact that the only way into defendant’s apartment was a backdoor was not implied consent for the police to enter the curtilage, and it was apparently his curtilage, too. State v. Coffman, 2014 Ore. App. LEXIS 1364 (October 8, 2014): Continue reading →
Posted inCurtilage|Comments Off on OR: The fact that the only way into defendant’s apartment was a backdoor was not implied consent for the police to enter the curtilage
There was reasonable suspicion for a Terry stop of defendant when the officers knew that suspects in a robbery and shooting were still at large, likely on foot, and presumably armed, when defendant matched the description given by a citizen informant, when he was found walking near the scene of the shooting, which had occurred several hours earlier, and when he gave a questionable explanation as to why he was at the residence where he was found. There was also reasonable suspicion to frisk defendant based on the officer’s observation of the money in his pocket when he approached him, the close proximity of defendant to the shooting, his torn and dirty clothes, which were consistent with him spending the night in the bush to elude police, and his failure to cooperate when instructed to place his hands on a fence. People v. Butler, 2014 V.I. LEXIS 83 (Super. Ct. October 3, 2014).
The officer here had a valid basis to perform a pat down search of defendant’s person where, during a traffic stop, the officer became suspicious of defendant’s exaggerated immobility. The officer accessed defendant’s criminal history by cell phone and learned that defendant was currently on probation for a possession of a handgun in a vehicle charge. When the officer reached for defendant’s right hand, defendant, perhaps instinctively, moved it to his right front pants pocket. Underwood v. State, 2014 Md. App. LEXIS 120 (October 7, 2014).*
Posted inReasonable suspicion, Stop and frisk|Comments Off on VI: Matching description of robber and near the scene with money sticking out of pocket was reasonable suspicion
On its third review of this case, having gone up twice, the court concludes that asking for defendant’s ID under the circumstances here was not a “stop” that required reasonable suspicion or probable cause when compared with other cases. All the cases cited by the court had more facts adding up to a “stop.” State v. Canfield, 2014 Ore. App. LEXIS 1363 (October 8, 2014). And, this is something I just can’t buy. A person cannot just ignore a request for production of an ID without risking arrest (or these days getting shot), and, once it’s produced, you’re not free to leave until it’s handed back (compare Mendenhall (except there the defendant was moved to a different location) and Place (seizure of suitcase of a traveler was seizure of the person)). Anyway, from the case at hand: Continue reading →
Defendant’s nervousness, exacerbated by the officer tailgating him for a long time, wasn’t enough to show reasonable suspicion to extend the stop as long as it was. All the government’s authorities are nervousness plus something else, and here there was nothing. United States v. Garcia, 2014 U.S. Dist. LEXIS 143834 (D.N.H. October 9, 2014):
I conclude that while the defendants were certainly nervous — under the circumstances described even the most innocent and self-confident person would be expected to exhibit clear signs of nervous anxiety — their nervous manifestations were not so remarkable under the circumstances as to warrant some particular suspicion of ongoing wrongdoing, especially, again, given that Trooper Gacek likely knew that his own conduct (extended tailing) would likely induce a fair measure of nervousness in any driver or passenger subsequently pulled over. Thus, defendants’ nervousness, without more, did not provide Trooper Gacek with reasonable articulable suspicion to extend the traffic stop for another 20 minutes after he issued the traffic warning fully resolving the ostensible purpose of the stop. See McKoy, 428 F.3d at 40-41.
Posted inReasonable suspicion|Comments Off on D.N.H.: Nervousness alone wasn’t enough to extend the stop 20 minutes
"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.
