Following defendant into his driveway did not violate curtilage. The officer walked around the truck to see if it matched one in a store surveillance video. United States v. Rojas, 2014 U.S. Dist. LEXIS 140708 (N.D. Iowa October 3, 2014), adopted 2014 U.S. Dist. LEXIS 144338 (N.D. Iowa October 10, 2014).
There was no exigency to dispense with a search warrant for defendant’s blood. A magistrate was on call at the jail 24 hours a day and the officer made no effort to get a search warrant for the blood draw, instead relying solely on the implied consent law. The implied consent statute is not unconstitutional because it does not mandate a blood draw in violation of McNeely. State v. Wells, 2014 Tenn. Crim. App. LEXIS 933 (October 6, 2014).
A lost original affidavit for a search warrant can still be proved by testimony that the warrant was otherwise validly issued. Thus, defense counsel wasn’t ineffective for not challenging it on appeal where the record was made on the lost affidavit. Prince v. State, 2014 Ga. LEXIS 754 (October 6, 2014).
“A parole officer’s search is unlawful, however, when the parole officer is “merely a conduit’ for doing what the police could not do otherwise” … Stated differently, “a parolee’s status ought not to be exploited to allow a search which is designed solely to collect contraband or evidence in aid of the prosecution of an independent criminal investigation” … [¶] Here, defendant’s contention that the parole officer was acting as an agent of the DEA is undermined by the uncontroverted testimony of the parole officer that she was informed by a DEA agent prior to the search that the federal prosecutor ‘will most likely not want to get involved’ in the case if an arrest were made, and by the fact that no federal charges were ever lodged against defendant. Rather, the parole officer testified that she conducted the search because she received credible information from law enforcement sources that defendant possessed a large quantity of cocaine in his apartment, which violated his parole conditions, and the court found her testimony in that regard to be credible.” People v Escalera, 2014 NY Slip Op 06700, 2014 N.Y. App. Div. LEXIS 6668 (4th Dept. October 3, 2014).*
“[T]he police may not ask an occupant of a lawfully stopped vehicle if he or she has any weapons unless they have a founded suspicion that criminality is afoot.” The search here was invalid. People v. Wideman, 2014 NY Slip Op 06698, 2014 N.Y. App. Div. LEXIS 6678 (4th Dept. October 3, 2014): Continue reading →
Posted inReasonable suspicion|Comments Off on NY4: “[T]he police may not ask an occupant of a lawfully stopped vehicle if he or she has any weapons unless they have a founded suspicion”
Was a defendant handcuffed face down potentially still enough of a risk of danger that a search incident of a closet four feet from him might have been reasonable? Pills were found instead of a weapon. This is a close issue, and the court decides instead that, if it was error, it was harmless in light of all the other evidence in the case. State v. Jordan, 2014 Conn. LEXIS 306 (October 14, 2014): Continue reading →
Posted inSearch incident|Comments Off on CT: Was SI of closet near def handcuffed face down within his reach? Close question, so harmless error applied
When Indiana State Trooper Brian Hamilton pulled over 60-year-old Ellen Bogan for some sort of supposed traffic violation in August, he asked for her license, registration — and whether she accepted Jesus Christ as her savior.
Now Bogan, who says she is not a churchgoer, is suing Hamilton in federal court, alleging that he violated her constitutional rights when he pressed her on whether she had a “home church” and handed her a brochure imploring her to “realize you’re a sinner,” all while his flashing lights were still on.
. . .
Hamilton’s “proselytizing and coercive questions” about her belief in Jesus violated Bogan’s freedom of religion under the Constitution’s First Amendment, while the fact that Hamilton detained her to preach about Jesus Christ after he had already ticketed her was a Fourth Amendment violation, the lawsuit, in which the American Civil Liberties Union is backing Bogan, alleges.
Posted inUncategorized|Comments Off on Inquistor: ‘Do You Accept Jesus Christ?’ Cop Asks Woman During Traffic Stop, Now She’s Suing Him
In an almost identical case, the Ninth Circuit previously held that impoundment of defendant’s car parked in his own driveway was unconstitutional. Using the community caretaking to seize defendant’s car from his driveway for safekeeping was unreasonable. State v. Gonzales, 2014 Ore. App. LEXIS 1315 (October 1, 2014).
The state failed to establish that exigent circumstances for Fourth Amendment purposes existed to justify the warrantless taking of defendant’s blood, so the suppression order is affirmed. State v. Kennedy, 2014 Tenn. Crim. App. LEXIS 930 (October 3, 2014).*
The first cell phone search warrant affidavit was presented to a state court judge who refused to sign it. The affidavit was revised and even mentioned the prior denial. With the added information, the revised affidavit showed probable cause to search the telephone when the warrant finally issued. United States v. Van Praagh, 2014 U.S. Dist. LEXIS 140581 (S.D. N.Y. October 1, 2014).
A search warrant for drugs doesn’t have to mention firearms to seize them. Firearms and drugs are usually linked, and there is a reasonable inference that the presence of firearms around drugs means they are related to each other. United States v. Phothisat, 2014 U.S. Dist. LEXIS 141753 (S.D. Ala. October 6, 2014):
Defendant asserts that the search warrant affidavit does not provide probable cause for the seizure of firearms. He correctly points out that the affidavit does not connect the dots between the illegal activity and the seizure of firearms. Specifically, the search warrant permits the seizure of firearms even though nothing in the affidavit connects firearms with the residence to be searched. Nevertheless, the seizure of the firearms was not unlawful. United States v. Prather, 279 Fed. Appx. (11th Cir. 2008), involved a similar situation. In that case, police executed search warrants on two separate occasions permitting searches for drugs and items related to the sale, manufacture or distribution of drugs. Firearms were not mentioned in either search warrant but were seized during each search. The defendant argued that the firearms should have been excluded from evidence because police exceeded the scope of the search warrant. The Eleventh Circuit disagreed, stating: “[T]he police did not err in confiscating weapons when they found them. When law enforcement officers stumble across hidden guns during a lawful search for drugs, they are allowed to draw the reasonable inference that the guns may be related to drug trafficking occurring at the location. That is precisely what the police did in this case.” Id. at 766. (citing United States v. Smith, 918 F.2d 1501, 1509 (11th Cir.1990)). The same is true here.
Posted inNexus, Probable cause, Warrant execution|Comments Off on S.D.Ala.: SW for drugs doesn’t need to mention firearms to seize them when found
A CI’s statement that a controlled buy occurred out of defendant’s apartment failed to show probable cause where there was no connection to the sale and the owner or tenant shown. It could have been a mere visitor. State v. Hall, 2014 Tenn. Crim. App. LEXIS 924 (October 3, 2014).
Towing the vehicle defendant drove to the scene of a burglary was not legally justified, and the observation of matching a decal at the scene of the burglary with the vehicle is suppressed. State v. Lambert, 2014 Ore. App. LEXIS 1322 (October 1, 2014), reconsidering State v. Lambert, 263 Or. App. 683, 328 P.3d 824 (2014).*
Defendant was walking between buildings in a housing project at 3:30 am, and it was a high crime area. The officer suspected defendant might be on the “no trespassing” list. There was no reasonable expectation of privacy from being approached to talk to him when defendant abandoned drugs. State v. McAlpin, 2014 Tenn. Crim. App. LEXIS 923 (October 2, 2014).*
A Brooklyn architect who was sentenced to 15 years in prison for admitting he tried to join a Pakistani terrorist group will be allowed to retract his guilty plea and have the controversial case reopened, Brooklyn court papers show. Judge John Gleeson permitted Agron Hasbajrami to recant because federal prosecutors belatedly revealed that they had used warrantless wiretaps in order to build a case against the Albanian-born US citizen.
Posted inUncategorized|Comments Off on NY Post: Terror suspect can retract guilty plea after feds admit warrantless wiretaps
WaPo: DEA created a fake Facebook profile in this woman’s name using seized pics – then impersonated her by Terrence McCoy:
At first glance, the Facebook profile is the perfect deception. Purportedly belonging to brown-haired woman named Sondra Prince, it shows her driving a car, splayed across a white BMW, hugging two young children. If someone were to stumble across the profile, which still exists, there would be little way for them to know the truth: The profile is a fake.
Posted inUncategorized|Comments Off on WaPo: DEA created a fake Facebook profile in this woman’s name using seized pics – then impersonated her
On Sept. 18, Sen. Orrin Hatch, R-Utah, along with Sens. Chris Coons, D-Del., and Dean Heller, R-Nev., introduced the Law Enforcement Access to Data Stored Abroad Act, or the LEADS Act, to amend the Electronic Communications Privacy Act and Stored Communications Act, 18 U.S.C. §§ 2701-2712, to, inter alia, require providers served with a search warrant to disclose the materials sought by a warrant “regardless of where such contents may be,” if the account holder at issue is “a United States person’ and such disclosure will not ‘violate the laws of a foreign country.”
Posted inWarrant execution|Comments Off on LegalIntelligencer.com: Extraterritorial Searches for Electronically Stored Information
The government search of defendant’s computer here exceeded the private search, going into the container within a container rationale. People v. Evans, 2014 Cal. App. LEXIS 887 (1st Dist. October 3, 2014): Continue reading →
Posted inComputer and cloud searches|Comments Off on Cal.1st: Govt search of computer exceeded prior private search
Defendant’s nervousness without any evasion and a past criminal record was not reasonable suspicion. The officer testified that he was concerned about four folding knives in the car as potential weapons, but he didn’t get around to doing a search of the car until consent was denied. Hebert v. State, 2014 Ala. Crim. App. LEXIS 77 (October 3, 2014).
The credibility determinations made by the district court at the suppression hearing are not the proper subject of a 2255. United States v. Dukes, 2014 U.S. Dist. LEXIS 137925 (E.D. Pa. September 30, 2014).*
Defendant attempted to flee and struggled with officers, and that offense allowed a search incident of his person. State v. Mobley, 2014-Ohio-4410, 2014 Ohio App. LEXIS 4329 (2d Dist. October 3, 2014).*
Posted inReasonable suspicion, Search incident|Comments Off on AL: Nervousness and a criminal record but without evasion is not reasonable suspicion
I attended the oral argument this morning in the Supreme Court’s first case of the new Term, Heien v. North Carolina. I had a long preview of Heien here. Here are some impressions of the argument.
On the whole, I thought the argument was puzzling. A large chunk of the argument time was spent on Justice Scalia’s insistence that the Court could not render a decision on the rights question alone without also ruling on whether the exclusionary rule was available. I found this odd for two reasons. First, the state had never argued the exclusionary rule. The state’s Brief in Opposition had argued that it would be better to review a different case in which the exclusionary rule issue was also part of the case, a position the Justices presumably weighed before granting cert on just the rights question.
Posted inReasonable suspicion|Comments Off on WaPo: Oral argument in Heien v. North Carolina
Defendant had an argument with his girlfriend and took her unlicensed car and drove off. She called the police. The responding officer knew the couple and saw the car immediately. The stop for driving a potentially stolen car was valid and the search was valid both under search incident to find proof of ownership and the automobile exception because it was allegedly stolen. United States v. Edwards, 2014 U.S. App. LEXIS 18985 (7th Cir. October 3, 2014).
“[T]he totality of the circumstances establishes that Mauk voluntarily consented to the blood draw.” State v. Mauk, 2014 Del. Super. LEXIS 498 (September 29, 2014).*
The officer well trained in narcotics investigation could reasonably conclude that a duffle bag of drugs was put in defendant’s car while it was under surveillance. State v. Mitchell, 2014 Mo. App. LEXIS 1109 (October 3, 2014).*
Defendant didn’t show standing to challenge the search of a car that produced some evidence and a digital camera. He was, however, the undisputed owner of a digital camera that the NYPD removed the memory card from and searched without a warrant. Analogizing this search to a cell phone search, it would appear that Riley might control. Since the government’s briefing was pre-Riley, it should rebrief. United States v. Whiteside, 2014 U.S. Dist. LEXIS 140439 (S.D. N.Y. September 30, 2014): Continue reading →
Posted inCell phones, Computer and cloud searches|Comments Off on S.D.N.Y.: NYPD warrantlessly searched a camera memory card; govt must brief whether Riley applies
A case before the Supreme Court asks whether police can stop drivers for doing something that isn’t a crime if the officers have misunderstood the law.
Posted inReasonable suspicion|Comments Off on The Atlantic: The ‘Barney Fife Loophole’ to the Fourth Amendment
Two different computer guys tell me it’s malware, so I scan for it. Hopefully the host server does, too. Sometimes I can’t get in with Chrome or Firefox but can with IE. Go figure. Patience.
The domain name is paid for past 2021, so that’s not the problem.
Posted inUncategorized|Comments Off on Having trouble getting in sometimes? I have been
Iowa requires a search warrant for a probation search. State v. Sacco, 2014 Iowa App. LEXIS 945 (October 1, 2014):
The State asserts the legality of the search at issue here is “controlled by Griffin.” In regard only to Sacco’s federal constitutional claim, we agree with the State that the search was supported by sufficient information to satisfy the United States Supreme Court’s lowered burden for searches of probationers and parolees. Griffin, 483 U.S. at 879-80.
However, because the Iowa Constitution provides superior protections for probationers than does the federal constitution, the State’s reliance on Griffin does not satisfy our state’s unique constitutional requirements. The Iowa Constitution required a warrant—and probable cause—for the search of Sacco’s home.
"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.
