A psychiatrist once told me that people tend to focus more on bad news because human beings are genetically wired to identify dangers they should thereafter avoid. If so, people following the rioting in the small Missouri town of Ferguson most likely came away sensing that the danger to avoid was not the rioters, angered by the police killing of an unarmed 18-year-old African-American, but the police confronting the demonstrators, decked out like Marines preparing to retake Falluja.
Posted inPolice misconduct|Comments Off on NYTimes: The Scary, the Sad, and the Just Plain Bizarre
Plain feel supported reaching in defendant’s pocket to remove marijuana during a frisk. In the officer’s experience, he knew exactly what a baggie of marijuana felt like. State v. Carey, 2014 Iowa App. LEXIS 807 (August 13, 2014).
Defendant’s girlfriend consented to the search of their place. Then defendant also gave unsolicited consent instead of repudiating it. Henderson v. State, 2014 Fla. App. LEXIS 12419 (Fla. 4th DCA August 13, 2014).*
Raising this search issue for the first time in a reply brief is waiver. State v. Brown, 2014 Ore. App. LEXIS 1082 (August 13, 2014).*
A defendant violating parole doesn’t lack all standing just because he crosses a state line violating his parole. United States v. Walton, 2014 U.S. App. LEXIS 15570 (7th Cir. August 13, 2014): Continue reading →
Posted inProbation / Parole search, Standing|Comments Off on CA7: A defendant violating parole doesn’t lack all standing just because he crosses a state line violating his parole
Defendant fully participated in the decision not to pursue a Fourth Amendment claim (that wouldn’t win anyway) with a full explanation, so he can’t complain now in a 2255. United States v. Wright, 2014 U.S. Dist. LEXIS 110991 (D. D.C. August 12, 2014).*
In a production of child pornography conviction, the defendant did not challenge a computer search condition as a part of his supervised release (n. 21). United States v. Ramos, 2014 U.S. App. LEXIS 15537 (1st Cir. August 13, 2014).*
This stop at the Sarita immigration checkpoint quickly developed into reasonable suspicion. United States v. Depaula, 2014 U.S. Dist. LEXIS 111559 (S.D. Tex. August 11, 2014).*
Defendant’s motion to suppress identifies nothing to be suppressed so it’s denied. United States v. De Jesus Sanchez, 2014 U.S. Dist. LEXIS 112219 (D. Minn. July 21, 2014).*
Defendant’s 2255 arguments about his alleged defective state search warrant that led to his federal prosecution would never prevail on the merits, so he’s denied relief. Schaff v. United States, 2014 U.S. Dist. LEXIS 111552 (S.D. Ga. March 24, 2014).*
Two defendants, two cell phones searched in March 2012. One on parole, one not. The parole search of the cell phone is valid. The other, however, wasn’t a search incident of the cell phone; it was downloaded two hours after his arrest when there was time to get a search warrant. The government’s Davis argument is unavailing here because this same court held that a delayed download of a cell phone was unlawful in 2012. Essentially, Riley gets retroactive effect on these facts. United States v. Martinez, 2014 U.S. Dist. LEXIS 112347 (N.D. Cal. August 12, 2014).
Officers attempted to stop defendant for overtinted windows, and he was deliberately slow to stop. When he did, the odor of marijuana was apparent, and this led to the search of the car being valid under the automobile exception. United States v. James, 2014 U.S. App. LEXIS 15638, 2014 FED App. 0613N (6th Cir. August 8, 2014).*
Defendant’s motion to dismiss for a Fourth Amendment violation is denied. The recourse is a motion to suppress. United States v. Rodriguez-Melendez, 2014 U.S. Dist. LEXIS 112997 (M.D. Pa. August 14, 2014).
Defendant’s 2255 for failure to move to suppress a search that he admits he consented to is denied. United States v. Alvarez-Lopez, 2014 U.S. Dist. LEXIS 112335 (D. Idaho August 13, 2014).*
The Texas implied consent statute mandating blood samples in certain types of cases is not facially unconstitutional because it does not mandate violating the Fourth Amendment. McGruder v. State, 2014 Tex. App. LEXIS 9022 (Tex. App. – Waco August 14, 2014): Continue reading →
Posted inDrug or alcohol testing|Comments Off on TX10: Implied consent law not unconstitutional; doesn’t mandate 4A violation
In a remarkable case, the police use really old information and a search warrant previously obtained apparently by perjury, which they disregard and attempt to use the consent of a person they already knew didn’t even live in the house to get in the front door. Then they wake up to interrogate the sleepy mentally disabled defendant on his porch. Everything suppressed. United States v. Blevins, 2014 U.S. Dist. LEXIS 111809 (S.D. Tex. August 12, 2014): Continue reading →
Posted inConsent, Warrant requirement|Comments Off on S.D.Tex.: “This protection is at its strongest when a man has retreated into his own home to be free from the expanding gunmen of the state.”
Standing found under the totality of the circumstances in a borrowed rented car, but then the defendant looses on the merits because there was probable cause. United States v. Warren, 2014 U.S. Dist. LEXIS 111690 (E.D. Mich. August 13, 2014):
…While courts do not refer to the issue as that of standing to challenge the search, Warren must nonetheless demonstrate she had a reasonable expectation of privacy in light of the surrounding circumstances. …
Here, Warren had a reasonable expectation of privacy in the rental car under the totality of the circumstances. She and Blakley participated in borrowing the car from his wife, who gave Warren permission to drive the car during the trip to Detroit. Moreover, she had a valid driver’s license, provided a copy of the rental agreement to Ziecina, and claimed possessory interest in everything in the vehicle. That the vehicle was past its return date and did not list her as a driver is not dispositive, just as in Smith, these facts merely demonstrate “a breach of the contract with the rental company[,]” as it is was legal for Warren to possess and drive the vehicle. Therefore, based on the totality of the circumstances, the Court concludes that Warren has standing to challenge the search.
And standing in a borrowed car: United States v. Alcaraz, 2014 U.S. Dist. LEXIS 112050 (D. Nev. June 3, 2014):
Here, the Court finds that Defendant has standing to challenge the search of the vehicle. Defendant had a possessory interest in the vehicle because he had permission from the vehicle’s owner, Pratti, to drive it. Indeed, Pratti testified that Defendant had permission to drive the vehicle for the entire month of February, that he had his own key, and that he maintained the vehicle. With such “joint control” or “common authority,” the Court finds that Defendant had a reasonable expectation of privacy that would permit his Fourth Amendment challenge to a search of the car. Thomas, 447 F.3d at 1198.
Posted inStanding|Comments Off on E.D.Mich.: Standing shown in a borrowed rental car
On night patrol, a Rochester officer and a probation officer decided to stop defendant because he had a paper bag in his hand that conceivably could have had an open container in it. The stop was without reasonable suspicion because there was nothing to support the belief. In addition, the fact defendant was less than cooperative with his illegal stop doesn’t add to reasonable suspicion either. United States v. Singletary, 2014 U.S. Dist. LEXIS 111436 (W.D. N.Y. May 20, 2014): Continue reading →
Posted inReasonable suspicion, Stop and frisk|Comments Off on W.D.N.Y.: Not cooperating with an illegal detention under Terry doesn’t add to reasonable suspicion
The defense satisfied the court of a reckless omission of information about living arrangements in the house searched under the warrant, but the omission only leads to suppression of evidence from one room because that’s all the omission related to. United States v. Wharton, 2014 U.S. Dist. LEXIS 110966 (D. Md. August 12, 2014): Continue reading →
Posted inFranks doctrine|Comments Off on D.Md.: Franks challenge successful but so limited it won’t help the defense much
Following the attempted bombing of a Detroit-bound plane on Dec. 25, 2009, the Obama administration considered whether it would be legal to target for killing Anwar Al-Awlaki, a US citizen and radical Muslim cleric who was linked to the attack, without a trial. (The U.S. would kill Awlaki in a drone strike in Yemen on Sept. 30, 2011.) In February 2010, the Justice Department’s Office of Legal Counsel signed the below memo concluding that killing Awlaki would be lawful. After discovering that it had overlooked certain legal issues, O.L.C. later replaced this with a second, longer memo. which was previously released. The government made both once-secret memos public, in redacted form, as a result of Freedom of Information Act lawsuits by the New York Times and the American Civil Liberties Union.
Posted inReasonableness|Comments Off on NYTimes: First Justice Department Memo on Killing Anwar Al-Awlaki
The FBI might be spying on you –– but before you start fighting back with methods your ninth grade copy of “1984” taught you, take a look at the embarrassing reason why the agency might have tapped your phone: National Journal reports typos have led to unintended American targets coming under the agency’s watch.
The Justice Department’s inspector general reportedly ” … found that the FBI’s corrective measures have not completely eliminated potential intelligence violations resulting from typographical errors in the identification of a telephone number, email address, or social security number.”
Although typos are not a malicious or deceitful source of wrongful spying, the issue is bringing the practice of National Security Letters back into the spotlight.
The use of National Security Letters, or NSLs, has been controversial since the Patriot Act loosened standards regarding the practice following 9/11.
Posted inFISA|Comments Off on AOL: Typing errors led FBI/NSA to spy on wrong people
Conviction for unlawful possession of a firearm was subject to reversal because police officers had good reasons to question the reliability of the 911 call, any suspicion of an exigent circumstance had dissipated by the time police officers inquired whether defendant had a shotgun in his house, and defendant’s admission that he had a shotgun in his home and his consent to police to retrieve the shotgun were beyond the scope of a valid Terry stop. State v. Saggers, 2014 Wash. App. LEXIS 1949 (August 11, 2014). Comment: So, resistance to the breadth of Navarette?
The question of whether defendant’s backpack became seized during a struggle with a police officer when it became caught on the officer’s legs was not presented to the district court and it’s deemed waived. The struggle itself was not a submission to the officer’s attempt to detain him. A brief seizure did occur, but defendant broke free and they fell down the stairs of the train’s upper deck where all this took place. United States v. Beamon, 2014 U.S. App. LEXIS 15495 (10th Cir. August 13, 2014).
Posted inInformant hearsay, Reasonable suspicion|Comments Off on WA: 911 call wasn’t reliable enough for a stop; there was reason to question its veracity
FERGUSON, Mo. — For four nights in a row, they streamed onto West Florissant Avenue wearing camouflage, black helmets and vests with “POLICE” stamped on the back. They carried objects that doubled as warnings: assault rifles and ammunition, slender black nightsticks and gas masks.
They were not just one police force but many, hailing from communities throughout north St. Louis County and loosely coordinated by the county police.
Comment: My view? The entire Ferguson PD is staffed with idiots pointing guns at people protesting with their hands up? Shades of Kent State. They were asking for trouble, or an excuse to shoot unarmed citizens. What have we become with the militarized police? War against our own citizens?
Posted inPolice misconduct|Comments Off on NYTimes: In Wake of Clashes, Calls to Demilitarize Police
Officers had an arrest warrant from events that occurred a year earlier involving drug sales from defendant’s home. On all the circumstances, it was reasonable for them to conclude that he would be found there because he had a real job besides that. When they got there, a vehicle registered to him was parked outside. That’s a reasonable belief. United States v. Jackson, 2014 U.S. App. LEXIS 15335 (11th Cir. August 11, 2014).
The evidence showed that the defendants were likely involved in a shooting report when they were seen on a deserted road in the condition they were found in. United States v. Wrensford, 2014 U.S. Dist. LEXIS 110474 (D. V.I. August 11, 2014).*
On the totality, this search was simply by consent. United States v. Chambers, 2014 U.S. Dist. LEXIS 110202 (E.D. Mich. August 11, 2014).*
Because of 1983’s Gates, it’s a rare case that doesn’t find probable cause, or at least good faith reliance on the finding of PC via Leon. Here’s one from New Mexico on a VIN switching scheme where the search warrant also failed particularity. Suspicious, maybe; probable cause, no. State v. Sabeerin, 2014 N.M. App. LEXIS 83 (August 11, 2014): Continue reading →
WASHINGTON — After President Obama delivered a speech in January endorsing changes to surveillance policies, including an end to the National Security Agency’s bulk collection of Americans’ domestic calling records, John Napier Tye was disillusioned.
A State Department official, Mr. Tye worked on Internet freedom issues and had top-secret clearance. He knew the Obama administration had also considered a proposal to impose what an internal White House document, obtained by The New York Times, portrayed as “significant changes” to rules for handling Americans’ data the N.S.A. collects from fiber-optic networks abroad. But Mr. Obama said nothing about that in his speech.
Posted inFISA|Comments Off on NYTimes: Reagan-Era Order on Surveillance Violates Rights, Says Departing Aide
Defendant didn’t have standing to challenge the search of a cell phone that he denied was his, but it was covered under the search warrant anyway and circuit authority authorized warrrantless searches before Riley. United States v. Brown, 2014 U.S. Dist. LEXIS 110330 (C.D. Ill. August 11, 2014).
The facts support the conclusion that the encounter between defendant and the officer was consensual when defendant first got out of the vehicle, and reasonable suspicion developed after that. State v. Knicely, 2014-Ohio-3437, 2014 Ohio App. LEXIS 3373 (6th Dist. August 8, 2014).*
Officers had probable cause to arrest defendant by the time he was seized because headlong flight while carrying a gun in a high-crime area where shots were heard within the last 3 minutes was sufficiently suggestive of wrongdoing to support probable cause. State v. Hill, 288 Neb. 767, 2014 Neb. LEXIS 128 (August 8, 2014).*
Defendant’s stop was justified by a window tinting violation, pretextual or not, so no IAC. Walden v. United States, 2014 U.S. Dist. LEXIS 110473 (E.D. Tenn. August 11, 2014).*
Being armed in Arizona is not reasonable suspicion for a frisk. There must also be reasonable suspicion that a crime might occur. Otherwise, law abiding armed citizens are always subject to a frisk without reasonable suspicion. State v. Serna, 2014 Ariz. LEXIS 140 (August 7, 2014): Continue reading →
Posted inReasonable suspicion|Comments Off on AZ: Being armed isn’t enough for a frisk; must still be RS crime is “afoot”
"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.
