“As the officers approached appellant’s car, appellant was passed out and slumped over the driver’s seat. Because appellant was not capable of deciding whether he was free to leave, the officers’ approach to his car cannot be considered a restraint of his personal liberty and, therefore, cannot be a seizure for Fourth Amendment purposes.” City of Columbus v. Ridley, 2014-Ohio-4356, 2014 Ohio App. LEXIS 4263 (10th Dist. September 30, 2014).
Defendants were in a rival gang’s area, and there was a traffic stop. Three of the five exhibited furtive movements, and that justified a patdown and frisk of them and the car. A gun was found under the passenger seat. Commonwealth v. Douglas, 86 Mass. App. Ct. 404, 2014 Mass. App. LEXIS 127 (September 30, 2014).*
Defendant’s guilty plea not contesting the search incident of his cell phone was not ineffective assistance considering the state of the law at the time of the plea in the Fifth Circuit that allowed it. Tucker v. United States, 2014 U.S. Dist. LEXIS 139768 (N.D. Tex. July 28, 2014).*
Posted inCell phones, Reasonable suspicion|Comments Off on OH10: Defendant passed out behind the wheel wasn’t stopped since he didn’t know it
Consent to enter to look for the defendant was granted by the lady who answered the door who put a finger to her lips, looked to a door, and said “He’s not here.” The officers reasonably concluded that was apparent authority to enter to arrest him. United States v. Bey, 2014 U.S. Dist. LEXIS 139581 (D. Mass. October 1, 2014).*
Defendant’s urinating on the side wall of a convenience store where others could see him was reasonable suspicion to detain him. State v. Alsup, 2014-Ohio-4403, 2014 Ohio App. LEXIS 4323 (2d Dist. October 3, 2014).*
Since the patdown was authorized by reasonable suspicion, the officer could ask the defendant whether he was armed, and defendant admitted he was. State v. Gill, 2014-Ohio-4309, 2014 Ohio App. LEXIS 4214 (11th Dist. September 30, 2014).*
Posted inConsent, Reasonable suspicion|Comments Off on D.Mass.: Implicit authority to enter was granted by the consenter’s actions not her words
Defendant’s van was legitimately impounded although he was not arrested. It was not constitutionally required to give him the opportunity to remove things from the van first. United States v. Gullo, 2014 U.S. Dist. LEXIS 140142 (E.D. La. October 2, 2014): Continue reading →
Posted inInventory|Comments Off on E.D.La.: No constitutional duty to give def opportunity to remove stuff before impoundment
“The validity of a warrant is not determined by ‘nit-picking’ discreet portions of the application. Rather, the test is whether, under the totality of the circumstances presented in the affidavit, the issuing judge had a ‘substantial basis’ for determining that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-39 (1983); …” This affidavit did not, however, show probable cause because the information was stale: “A magistrate reading the affidavit would not, from the face of the affidavit, be able to reasonably conclude that the requisite nexus between Walker and 1510 N. Vassar was present. United States v. Gonzales, 399 F.3d 1225, 1228 (10th Cir. 2005). Therefore, Walker’s drug activities in 2007, 2010 and March 2011 cannot support a finding that criminal activity was ongoing at the Vassar residence at the time Officer Henry applied for the search warrant.” So stale, in fact, that the good faith exception does not apply. United States v. Walker, 2014 U.S. Dist. LEXIS 139238 (D. Kan. October 1, 2014).
Controlled buys of synthetic cannabinoids was probable cause for issuance of a search warrant. Otherwise, it was done in good faith. United States v. Stephens, 2014 U.S. Dist. LEXIS 139145, 2014 U.S. Dist. LEXIS 139151 (W.D. Va. October 1, 2014).*
Defense counsel was not ineffective for not challenging defendant’s consent to search where it would have failed. Thompson v. United States, 2014 U.S. Dist. LEXIS 139435 (N.D. Ga. August 19, 2014).*
IMAGINE a world suddenly devoid of doors. None in your home, on dressing rooms, on the entrance to the local pub or even on restroom stalls at concert halls. The controlling authorities say if you aren’t doing anything wrong, then you shouldn’t mind.
Well, that’s essentially the state of affairs on the Internet. There is no privacy. If those creepy targeted ads on Google hadn’t tipped you off, then surely Edward J. Snowden’s revelations, or, more recently, Jennifer Lawrence’s nude selfies, made your vulnerability to cybersnooping abundantly clear.
You need only read George Orwell’s ‘1984’ or watch the film ‘Minority Report’ to understand how surveillance is incompatible with a free society. And increasingly, people are coming to understand how their online data might be used against them. You might not get a job, a loan or a date because of an indiscreet tweet or if your address on Google Street View shows your brother-in-law’s clunker in the driveway. But less obvious is the psychic toll of the current data free-for-all.
Posted inInformational privacy|Comments Off on NY Times: News Analysis: We Want Privacy, but Can’t Stop Sharing
The Des Moines Register has the story of William “Bart” Davis and John Newmerzhycky, two gamblers who had more than $100,000 seized from them after they were pulled over by Iowa state police.
Posted inPolice misconduct|Comments Off on WaPo: Another civil asset forfeiture outrage
The officer hit defendant’s door hard to announce his presence under the knock-and-announce requirement and the door swung open on its own. That was technically a “breaking” under § 3109, but it was reasonable to enter without announcement because of information the police had about danger inside. United States v. Martinez, 2014 U.S. App. LEXIS 18759 (4th Cir. October 1, 2014).
Officers received a call from a motel manager about drug use and sales going on from a room, so they went to the room. A man answered the door and they asked for consent to enter and search, and he gave it. The problem was that this man was not the renter. The trial court held the entry unlawful. Once inside, they found the renter and asked for permission to search his person, and there wasn’t yet probable cause or a warning of a right to refuse. The search of his person was unreasonable, and it should also have been suppressed but wasn’t. Brunson v. State, 2014 Fla. App. LEXIS 15255 (Fla. 4th DCA October 1, 2014).
The search of defendant’s car was with probable cause there was a weapon used in a crime inside it. United States v. Thompson, 2014 U.S. App. LEXIS 18763 (4th Cir. October 1, 2014).*
Defendant arrested by a forced entry disclaimed a backpack, and the court finds this alleged abandonment was involuntary. But he later consented to the search. United States v. Bey, 2014 U.S. Dist. LEXIS 139581 (D. Mass. October 1, 2014): Continue reading →
Posted inAbandonment, Consent|Comments Off on D.Mass.: Alleged abandonment of a backpack during forced entry to arrest was involuntary
Two dozen civil liberties activists, legal specialists and Capitol Hill staffers from across the political spectrum convened Thursday to discuss reforms for civil asset-forfeiture laws, which allow local and state police to take cash and property from Americans without proving a crime has occurred.
According to a court document released today, expert witness Joshua J. Horowitz, a lawyer and tech expert, believes the FBI is not telling the whole truth when it comes to how they found the back-end server owned by the alleged Silk Road mastermind Ross Ulbricht.
In the document, reproduced below, Horowitz says that his “practice is concentrated on criminal defense matters that require expertise in technology and computer software” and that he has extensive experience in Linux and open source server software – arguably a rare skill for those in the legal profession.
Posted inComputer and cloud searches, Franks doctrine|Comments Off on Tech Crunch: Expert Witness For Silk Road Suggests FBI Lied About How They Accessed Back-End Servers
The “CI” in this homicide case was a known eyewitness who knew the defendant. He was a citizen informant, not a mere snitch, and his version had a presumption of reliability. State v. Dotson, 2014 Tenn. LEXIS 694 (September 30, 2014).
Defendant drove himself to the hospital with a gunshot wound to the head. A police officer stationed outside with his car encountered a woman who identified herself as his wife who had already visited defendant in the hospital. She said they lived together and ran a business together. She had apparent authority to consent to a search. It turned out she was living with him but not married. State v. Portman, 2014-Ohio-4343, 2014 Ohio App. LEXIS 4245 (2d Dist. September 26, 2014).*
Defendant’s original motion did not mention facial invalidity of the search warrant, so that claim is waived. Considering the merits, however, it isn’t. United States v. Miller, 2014 U.S. Dist. LEXIS 138016 (E.D. Mich. September 30, 2014).*
Defendant agreed to suspicionless probation searches, and this one is sustained under Samson. United States v. Tessier, 2014 U.S. Dist. LEXIS 137301 (M.D. Tenn. September 29, 2014).*
A dog alert on a motorhome for drugs justified a search of it. State v. Cruz, 2014-Ohio-4280, 2014 Ohio App. LEXIS 4191 (12th Dist. September 29, 2014).*
The record supports that defendant consented to a blood draw at the hospital. He also talked about his drug use. State v. Brunty, 2014-Ohio-4307, 2014 Ohio App. LEXIS 4220 (11th Dist. September 30, 2014).*
The affidavit for the warrant failed to provide probable cause for the search, but the court of appeals erred in not attempting to apply the good faith exception. The case is remanded for that. McClintock v. State, 2014 Tex. Crim. App. LEXIS 1466 (October 1, 2014):
Having concluded that a Fourth Amendment violation occurred in this cause, the First Court of Appeals held that the trial court should have granted the appellant’s motion to suppress. The State now contends that the court of appeals should not have reversed the appellant’s conviction without first deciding whether the good-faith exception to the exclusionary rule applied. We granted the State’s petition for discretionary review in order to examine whether the court of appeals erred in that respect and also to determine whether the court of appeals erred in one of the questions it did decide, namely, whether after excluding (what it found to be) illegally obtained information from the search-warrant affidavit, the remaining information still served to supply probable cause to search. Concluding that the court of appeals did not err to hold that the balance of the warrant affidavit failed to provide probable cause, we will vacate the judgment of the court of appeals and remand the cause to that court to address the good-faith issue in the first instance.
Posted inGood faith exception|Comments Off on TX: Court of appeals erred in not considering GFE on a Fourth Amendment violation
This Court has held that, during an otherwise lawful traffic stop, asking a driver to exit a vehicle, conducting a drug sniff with a trained canine, or asking a few off-topic questions are “de minimis” intrusions on personal liberty that do not require reasonable suspicion of criminal activity in order to comport with the Fourth Amendment. This case poses the question of whether the same rule applies after the conclusion of the traffic stop, so that an officer may extend the already-completed stop for a canine sniff without reasonable suspicion or other lawful justification.
Posted inDog sniff, Reasonable suspicion|Comments Off on SCOTUS grants cert. on dog sniff after stop should be complete; the Eighth Circuit’s de minimus rule
A federal judge’s recent unsealing of a secret government request for electronic monitoring shines a light on how such applications are kept hidden from the public long after criminal cases that result from them are closed.
Posted inFISA|Comments Off on WSJ: Long-Term Secrecy Surrounds Electronic Monitoring
Narcs received an anonymous report of drug activity at 4:40 am in a trailer park, so they went and looked around. Going up to a window and peering in with a flashlight was an invalid trespass and search. This wasn’t even a knock and talk. State v. Popp, 2014 Wisc. App. LEXIS 791 (September 30, 2014): Continue reading →
Posted inCurtilage, Trespass|Comments Off on WI: Police came to a trailer park the subject of an anonymous complaint and looked in windows; it was an illegal trespass and search
Officers had probable cause to search defendant’s car for drugs under the automobile exception. They had a search warrant for his apartment but it didn’t include the car which was parked down the street. They had, however, plenty of information about him dealing drugs from the car, and then a dog alerted on the car parked on the street. United States v. Smith, 2014 U.S. Dist. LEXIS 136697 (N.D. Ill. September 26, 2014).*
Police received a domestic disturbance call from 11th Ave. and 10th St. and responded. At one house the officer approached, and the occupant, looking at him, hastily shut the door. The officer went to the door and knocked and got no answer. Going around to the side was by exigent circumstances. “By this point, the officers knew that at least one occupant was present in the home and that the address was associated with the telephone number of a caller who had just reported being assaulted in that geographic location. Again, it would have been unthinkable for the officers to simply return to their vehicles and drive away. One can only imagine the justifiable criticism they would have faced had it turned out that Chiesa was being harmed and/or held against her will inside the home.” Search of a duffle bag without a warrant was suppressed, however. United States v. Mosley, 2014 U.S. Dist. LEXIS 136911 (N.D. Iowa September 26, 2014),* adopted 2014 U.S. Dist. LEXIS 151619 (N.D. Iowa October 27, 2014).*
The USMJ’s factual finding that the registration sticker was unreadable is binding, and that was a proper basis for the stop. United States v. Cade-Gilson, 2014 U.S. Dist. LEXIS 136824 (N.D. Iowa September 29, 2014).*
A Georgia woman was held in jail for one month after cops mistook sauce from a can of SpaghettiOs for methamphetamine, the Gainesville Times reports.
Ashley Huff, a 23-year-old woman from the city of Commerce, was the passenger in a car that was pulled over on July 2. Police noticed she had a spoon in her bag that had “some residue” on it. Huff told them it was just SpaghettiO sauce, but they slapped her with a charge of possession of methamphetamine.
Two months ago, I had a client arrested for possession of a block of cocaine in a plastic bag. It field tested for cocaine. The crime lab said it was dishwasher soap. Arguable probable cause for qualified immunity?
Posted inPolice misconduct|Comments Off on HuffPo: Woman Spends A Month In Jail After Cops Mistake SpaghettiOs For Meth
PHILADELPHIA – The Third Circuit Court of Appeals ruled today that evidence derived from warrantless use of a GPS tracking device can be used in court, even though law enforcement’s failure to get a warrant before attaching the device to a car may have violated the Fourth Amendment.
The 8-5 decision in this case, U.S. v. Katzin, applies an expansive interpretation of the so-called “good-faith exception” to the Fourth Amendment’s exclusionary rule, holding that officers reasonably relied on decades-old cases dealing with primitive “beeper” tracking technology in concluding that no warrant was required for sophisticated GPS tracking. Continue reading →
California Gov. Jerry Brown on Tuesday signed a bill prohibiting the state from supplying “material support, participation, or assistance” in response to certain federal requests for metadata and electronic communications.
The so-called Fourth Amendment Protection Act, introduced with bipartisan sponsorship in January to combat National Security Agency surveillance programs, was heavily revised in the state legislature, limiting its punch.
The new law prohibits the state from helping federal authorities acquire “electronically stored information or metadata of any person if the state has actual knowledge that the request constitutes an illegal or unconstitutional collection.”
Brown, a Democrat, did not issue a signing statement and his office did not immediately provide comment. The final version of the bill passed both chambers of the legislature without opposition in August after an earlier version won near-unanimous approval in the state Senate in May.
Posted inECPA|Comments Off on news.gnom.es: California Governor Signs Anti-Surveillance Bill
"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.
