Dog sniff outside a door was permitted by circuit case law, so Jardines doesn’t apply, Davis good faith does. United States v. Burston, 2014 U.S. Dist. LEXIS 121732 (N.D. Iowa September 2, 2014):
Judge Scoles found that “[b]ecause the area where Marco sniffed is curtilage and because there was no license, explicit or implicit, for Marco to occupy the area where he sniffed, the dog sniff constitutes an unlawful warrantless search under the Fourth Amendment.” Report and Recommendation at 10. Because the court finds that Officer Fear was objectively reasonable in relying on binding circuit precedent when conducting the dog sniff, the court “need not determine whether Jardines controls the facts of this case.” United States v. Givens, No. 13-2713, ___ F.3d ___, ___, 2014 U.S. App. LEXIS 15691, 2014 WL 3973085, at *5 (8th Cir. Aug. 15, 2014) (footnote added).
Posted inCurtilage, Good faith exception|Comments Off on N.D.Iowa.: Pre-Jardines dog sniff permitted in circuit, so Davis GFE applies
The pre-Riley search of defendant’s cell phone was expressly permitted by California case law at the time of the search, so the good faith exception applies. People v. Macabeo, 2014 Cal. App. LEXIS 793 (2d Dist. September 3, 2014).
Based on observations of and conversations with the consenter, it was reasonable for the officer to believe that he had sufficient authority to consent to an entry into the premises. A frisk of two persons inside was permissible because their connection to the premises wasn’t known at the time and they were known to have past weapons convictions. Spann v. Commonwealth, 2014 Ky. App. LEXIS 149 (September 5, 2014).*
A motel clerk received three different complaints about the defendant in his room probably selling drugs, and he called the police. While it was all hearsay it was not inadequate for the police to come to the room. State v. Hunt, 2014 Ore. App. LEXIS 1191 (September 4, 2014).*
Raising a new issue on a motion to suppress in the reply brief is a waiver because the government didn’t get to address it at the hearing. United States v. Young, 2014 U.S. Dist. LEXIS 122221 (D. Me. September 1, 2014).
Petitioner’s raising the search issue as an offshoot of a Miranda issue is barred as a relitigation of the motion to suppress in the 2255. United States v. Bridgewater, 2014 U.S. Dist. LEXIS 122085 (N.D. Fla. April 24, 2014).*
Defense counsel was not ineffective for not raising a lack of probable cause for defendant’s arrest because there clearly was and the good faith exception would apply. Based on an issue discussed in the concurring opinion on the direct appeal (United States v. Wright, 739 F.3d 1160 (8th Cir. 2014)), the district court would have addressed that issue directly, too, and the outcome wouldn’t change. No COA will issue. United States v. Wright, 2014 U.S. Dist. LEXIS 122569 (E.D. Ark. September 3, 2014).*
A protective sweep had already occurred and defendant had been removed from his house in handcuffs and the house secured. A gun was suspected as unaccounted for, so they went back to look for it, and this was unreasonable. The defendant actually walked by the gun but he was under the officer’s control and he didn’t make a move toward it. The officers, however, did not see the gun. The exigent circumstances exception did not apply to re-entering the house to look for the gun. United States v. Mallory, 2014 U.S. App. LEXIS 17228 (3d Cir. September 3, 2014): Continue reading →
There was no probable cause for obtaining a buccal swab for DNA 15 months after defendant’s arrest to attempt to link him to a gun. The best that the officers could say was that there may be trace evidence that would link him. It was not stale. This arose as a motion to compel which was treated as an adversarial request for a search warrant. In addition, Maryland v. King on drawing DNA from arrestees didn’t apply. People v. Turnbull, 2014 V.I. LEXIS 69 (Super. Ct. September 4, 2014): Continue reading →
Posted inDNA|Comments Off on VI: DNA request 15 months later wasn’t stale, but it was speculative and denied
Kansas had a search statute [in effect from 2006-11] that was more restrictive on the police than Gant, and the trial court and court of appeals erred in not applying that statute. State v. Julian, 2014 Kan. LEXIS 500 (September 5, 2014): Continue reading →
Posted inSearch incident|Comments Off on KS former restrictive SI statute applied rather than Gant
The officer’s taking control of defendant’s and the passenger’s driver’s license was a seizure of them when he took the DLs back to the patrol car to run them. They were not free to leave. State v. Strom, 2014 MT 234, 2014 Mont. LEXIS 498 (September 2, 2014).
The trial court erred in finding the stop pretextual because it was, in fact, based on a traffic offense of some kind. On the totality, the court of appeals was correct that there was reasonable suspicion to continue the stop. Neat compartmentalization of the grounds are not required. State v. Jones, 2014 Kan. LEXIS 495 (August 29, 2014).*
Post-conviction petitioner’s search and seizure claim was merely a refinement of an argument already made and rejected on direct appeal. While the appellate brief on the post-conviction issue was arguably deficient, defendant cannot show prejudice because of default. State v. Jackson, 2014 Del. Super. LEXIS 451 (September 3, 2014).*
Posted inReasonable suspicion, Seizure|Comments Off on MT: Talking control of DL is a seizure when they are carried to the patrol car
It’s true that the devices could help some people lead healthier lives. The problem is that most of the medical and personal information collected by fitness trackers and apps is not protected by federal privacy laws.
Posted inComputer and cloud searches|Comments Off on NYTimes: Editorial: Smartwatches and Weak Privacy Rules
Texas’ warrantless blood draw statute has been challenged and in some cases declared unconstitutional by intermediate state appellate judges in the wake of the Supreme Court’s 2013 McNeely decision. Tyler’s 12th Court of Appeals became the latest to contend “the implied consent and mandatory blood draw statutory schemes found in the transportation code are not exceptions to the warrant requirement under the Fourth Amendment.”
Another pro-Fourth Amendment opinion from a Texas appellate court on the topic came in July from the Fourth Court of Appeals in San Antonio, ruling that “warrantless searches are presumed unreasonable and must be justified on a case by case basis.”
America is rushing to outfit cops with cameras, but even experts aren’t sure of the laws regulating the storage of the videos they capture—or determining who exactly has access.
In the aftermath of Ferguson, where the death of an unarmed teenager sparked weeks of protests, police departments across America are outfitting their officers with wearable cameras. The devices themselves raise plenty of legal and privacy questions, but ever bigger issues loom about what happens after they are shut off.
“We have repeatedly ruled that a police officer violates the Fourth Amendment, and is denied qualified immunity, if he or she uses gratuitous and excessive force against a suspect who is under control, not resisting, and obeying commands. See, e.g., Priester v. City of Riviera Beach, Florida, 208 F.3d 919, 927 (11th Cir. 2000); Slicker v. Jackson, 215 F.3d 1225, 1233 (11th Cir. 2000); Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002). Consistent with these decisions, we hold today that Oberist Saunders, who alleged that his head was ‘slammed’ against the pavement with ‘extreme force’ after he had been handcuffed and was lying prone on the ground, stated a valid Fourth Amendment claim for excessive force, and that the defendants—agents of the Florida Department of Law Enforcement and the Orlando Metropolitan Bureau of Investigation—were not entitled to qualified immunity. We therefore reverse the district court’s dismissal of Mr. Saunders’ Fourth Amendment claim.” Saunders v. Duke, 2014 U.S. App. LEXIS 17334 (11th Cir. September 8, 2014).
Plaintiff in this § 1983 case was a lawyer entering the Fulton County Courthouse. She put her briefcase and purse on the conveyor belt for the x-ray machine, but she set off the metal detector. She was instructed to take off her suit jacket and she declined because her undergarments would be visible. She asked for a supervisor and called her husband, a lawyer already in court waiting for her, to tell him she was delayed, and the defendant at the security checkpoint ordered her off the phone even though it wasn’t prohibited. She didn’t do so, and the defendant grabbed her arm to pull the phone away from her ear. A supervisor arrived and said to wand her instead. She was, and she passed and entered the courthouse. The district court improperly applied the “shock the conscience” test. The reasonableness test controlled, and this was a seizure, and a jury could find it unreasonable. Reversed. West v. Davis, 2014 U.S. App. LEXIS 17319 (11th Cir. September 8, 2014): Continue reading →
“We must decide whether a suspicionless roving automobile stop of commercial fishers made while they drive on a public highway to investigate compliance with Washington fish and game laws constitutes an unreasonable search and seizure within the meaning of the Fourth Amendment and, if so, whether this right was clearly established as of the time of the stop at issue in this case. Because we determine that this stop, which lacked any basis in suspicion of unlawful behavior or statutory authority that would render it permissible under the administrative search exception, violated Appellants’ clearly established Fourth Amendment rights, we reverse the district court’s grant of qualified immunity on Appellants’ Fourth Amendment claim and remand.” Tarabochia v. Adkins, 2014 U.S. App. LEXIS 17422 (9th Cir. September 9, 2014).
The court previously ruled that the search of one defendant’s premises was unlawful. It was established that this defendant had standing too, so it’s granted as to him as well. United States v. Castro, 2014 U.S. Dist. LEXIS 125623 (E.D. Pa. September 9, 2014).*
Defendant was not seized by officer who, based on an anonymous tip that defendant was armed, stopped near defendant and walked toward him saying “I need to talk to you.” Defendant backpadeled and reached for his waistband. The officer drew his weapon and advanced on defendant and then frisked him, finding a gun. “I need to talk to you” without any other show of force was not a seizure. State v. Carr, 2014 Mo. App. LEXIS 997 (September 9, 2014): Continue reading →
Posted inStop and frisk|Comments Off on MO: “I need to talk to you” is a request not a command
Defendant was transported to the police station in the caged back of a patrol car and the police had his ID. He was kept incommunicado, denied food and water, and escorted to the bathroom. He was seized, and it was without probable cause. United States v. Mendoza-Trujillo, 2014 U.S. Dist. LEXIS 124302 (D. Utah September 2, 2014): Continue reading →
Posted inStop and frisk|Comments Off on D.Utah: Defendant was clearly “seized” at the police station; couldn’t even go to bathroom without escort
Here, the search discovering defendant’s illegal firearms violated the Fourth Amendment, but the government argued for inevitable discovery, but the court lacks a “high level of confidence” that the officers would have inevitably discovered it. The government’s argument was essentially premised on assumptions that things might happen, particularly by the defendant, and that’s just speculation, not a high level of confidence. United States v. Guarino, 2014 U.S. App. LEXIS 17188 (2d Cir. September 5, 2014).
Defendant claimed that federal law enforcement officers seized his stuff with a federal warrant; the feds say it was the state with a state warrant. If it was federal, the defendant carries the burden on a Rule 41(g) motion for return of property, and he fails. Also, the feds indicate that they still need it as potential evidence, so the return is denied. United States v. Myers, 2014 U.S. Dist. LEXIS 123394 (D. Nev. September 4, 2014).
Court sounds like it’s applying the wrong burden of proof to a warrantless search but actually does apply the correct one on the voluntariness of consent. United States v. Lockhart, 2014 U.S. Dist. LEXIS 123807 (W.D. Tex. June 10, 2014) (“As the proponent of a motion to suppress, Defendant bears the burden of proving, by a preponderance of evidence, that the evidence in question was obtained in violation of his Fourth Amendment rights. United States v. Kelley, 981 F.2d 1464, 1467 (5th Cir. 1993).”)*
A cell phone is not per se subject to the plain view exception just because it contains information that the police might suppose conceivably has some relationship to the crime they are investigating. Commonwealth v. Wright, 2014 PA Super 189, 2014 Pa. Super. LEXIS 2886 (August 29, 2014): Continue reading →
Posted inUncategorized|Comments Off on PA: Cell phone not per se subject to plain view for seizure and search for its potential information
Posse Comitatus Act applied to NCIS investigation into child pornography anywhere in the State of Washington against civilians. Thus, the district court erred in not suppressing the evidence. United States v. Dreyer, 13-30077 (9th Cir. September 12, 2014) (summary by the court): Continue reading →
Posted inExclusionary rule|Comments Off on CA9: Posse Comitatus Act applies to NCIS investigation of CP cases against civilians
Over the long Labor Day weekend, the patrol ran a no-refusal DUI checkpoint in Oxford, home of the University of Mississippi. In a no-refusal checkpoint, a driver who refuses a sobriety test — either a breath test or a standard field sobriety test — could be compelled to undergo a blood test.
A judge is either on site or on call to rule on probable cause and can issue a warrant for the test. A certified phlebotomist is at the ready, and blood is drawn at the checkpoint.
Posted inDrug or alcohol testing, Roadblocks|Comments Off on Watchdog.org: Bloodletting could be in store for Mississippi drivers at DUI checkpoints
"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.
