This is not a drug advocacy blog, but so many cases involve dubious arrests for possession of marijuana and rousting people of color that this is relevant here. The New York Times started yesterday a six part series on legalization, starting here.
Intro, Our Position, July 26, 2014
Part 1, States’ Rights, July 27, 2014
Part 2, Criminal Justice, July 29, 2014
Part 3. History, July 30, 2014
Part 4, Health, Aug. 1, 2014
Part 5, Track Records, Aug. 3, 2014
From yesterday: “Only a minority of Americans now think it’s the government’s responsibility to discourage that behavior through the criminal justice system. A majority believe that the war on marijuana has failed and that it’s time to end it.”
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The Fourth Amendment does not prohibit taking a buccal swab for DNA to exclude a fraternal twin in an investigation. Commonwealth v. Kostka, 86 Mass. App. Ct. 69 (July 25, 2014): Continue reading →
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There was probable cause and nexus for a search involving $71k in unaccounted for money, even though the theft was four months earlier. United States v. Little, 2014 U.S. Dist. LEXIS 100795 (E.D. Pa. July 23, 2014).
Officers entered defendant’s apartment at 5 am when he didn’t answer the door about an alleged firearm transfer that had happened shortly before. He was asleep in bed and unresponsive until handcuffed. Meth found under him should have been suppressed because he shouldn’t have been arrested without a warrant in the first place. State v. Easton, 2014 Ore. App. LEXIS 994 (July 16, 2014) (decided under state constitution).*
The odor of marijuana coming from a person was enough to justify a detention and further search. State v. Smith, 2014 SD 50, 2014 S.D. LEXIS 65 (July 16, 2014).*
There was probable cause for the search warrant and the search of a dresser was reasonable. United States v. Johnson, 2014 U.S. Dist. LEXIS 100835 (E.D. Mich. July 24, 2014).*
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The testimony of the police officer in this case was neither impeached, contradicted, or implausible. It was error for the trial court to reject it and grant the motion to suppress. State v. Ojeda, 2014 Fla. App. LEXIS 11197 (Fla. 3d DCA July 23, 2014): Continue reading →
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Knocking on the window of a car to get the driver to roll the window down is not a seizure. The smell of alcohol was then lawfully discovered. County of Grant v. Vogt, 2014 WI 76, 2014 Wisc. LEXIS 490 (July 18, 2014): Continue reading →
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Federal law enforcement and intelligence authorities say they are increasingly struggling to conduct court-ordered wiretaps on suspects because of a surge in chat services, instant messaging and other online communications that lack the technical means to be intercepted.
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Defendant was stopped for possible impaired driving, but he didn’t show signs of alcohol intoxication. Instead, officers saw baggies that one would obviously associate with drugs and that supported the officer’s later actions. The motion to suppress should not have been granted. Commonwealth v. Fisher, 86 Mass. App. Ct. 48, 13 N.E.3d 629 (2014).*
Second entry on another warrant into defendant’s home was justified because the officers weren’t sure that they had the right guy. They didn’t have to wait or look around for a more positive ID since there were still questions. State v. Isbell, 2014-Ohio-3204, 2014 Ohio App. LEXIS 3133 (10th Dist. July 22, 2014).*
A furtive movement from a passenger wearing a shirt associated with a gang was reasonable suspicion. State v. Lee, 2014 Ore. App. LEXIS 998 (July 23, 2014).*
Journal Sentinel: State Supreme Court backs police in cellphone tracking by Bruce Vielmetti:
The Wisconsin Supreme Court on Thursday continued its recent string of Fourth Amendment decisions, this time in two divided rulings upholding warrantless searches to track suspects through their cellphone location.
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Federal law requires the FBI to assess its own surveillance technologies for potential privacy and civil liberties snags. While these technology assessments are typically prepared for public consumption, the FBI has refused to release its privacy reviews on drones.
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Officers had reasonable suspicion that defendant was involved in alien smuggling when she crossed the border at San Ysidro. When she was sent for secondary inspection, the five cell phones she had could be searched under Cotterman. United States v. Martinez, 2014 U.S. Dist. LEXIS 99705 (S.D. Cal. July 22, 2014).
In a state § 1983 case, police officers who ordered the towing of vehicles from a used-car lot without a court order or warrant under the belief that the vehicles posed environmental and fire hazards were entitled to qualified immunity, because there was no clearly-established law that prohibited the towing of vehicles under such circumstances. Dehn Motor Sales LLC v. Schultz, 2014 Md. LEXIS 436 (July 22, 2014).*
Search warrant affidavit failed to show probable cause and nexus. The attempted corroboration of the CI was with old information that proved really nothing. The good faith exception does not apply because no reasonable officer could rely on this search warrant with old information as corroboration. Sanchez v. State, 2011 Fla. App. LEXIS 21401 (Fla. 2d DCA July 23, 2014) [note year citation error].
Police conducted an unlawful sweep of defendant’s house, but the search warrant issued an hour later mentioned nothing of the sweep, and it was based entirely on separate information already known. Therefore, the search warrant was valid. Davila v. State, 2014 Tex. App. LEXIS 7912 (Tex. App. – Houston (1st Dist.) July 22, 2014).*
Officers had a drug and firearms search warrant, and found a surveillance system inside with a “control room.” They looked on the camera screen and immediately saw child pornography. They obtained a second warrant for that. The view of the screen in the control room was within the scope of the first warrant. United States v. Miller, 2014 U.S. Dist. LEXIS 100030 (E.D. Mich. July 23, 2014).
Defendant lacked standing in the apartment searched or the storage room to it across the hall from it. It wasn’t his place, he had no key, he kept nothing there. United States v. Goyette, 2014 U.S. Dist. LEXIS 100438 (D. Me. May 28, 2014).*
Defendant’s stop for no taillights was objectively reasonable, and he was found to have consented thereafter. United States v. Lisbon, 2014 U.S. Dist. LEXIS 99623 (D. Md. July 22, 2014).*
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President Barack Obama plans to issue an executive order to develop privacy guidelines for commercial drones operating in U.S. airspace, POLITICO has learned.
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The Obama administration and key U.S. senators are close to a deal on legislation that aims to end the National Security Agency’s collection of millions of Americans’ phone call logs for counterterrorism purposes.
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“The extraction of blood from a drunk driving suspect is a search. Testing the blood sample is a second search. It is distinct from the initial extraction because its purpose is to examine the personal information blood contains. We hold that the State may not conduct tests on a lawfully procured blood sample without first obtaining a warrant that authorizes testing and specifies the types of evidence for which the sample may be tested.” State v. Martines, 2014 Wash. App. LEXIS 1789 (July 21, 2014)
Officers had a warrant for one person’s arrest. After he came out, they determined that that was not the person named in the warrant. So, they tear-gassed the second floor and entered again. The second entry was justified. State v. Isbell, 2014-Ohio-3204, 2014 Ohio App. LEXIS 3133 (10th Dist. July 22, 2014).*
No expectation of privacy in a prison cell. Gross v. Normand, 2014 U.S. App. LEXIS 14025 (5th Cir. July 23, 2014).*
The officer in this case received word that defendant was a drug dealer, so he went around looking for defendant. He saw the defendant a couple of times but nothing was unusual or suggested a crime. Then he initiated a traffic stop and patted defendant down. The patdown lacked any reasonable suspicion of possession of a weapon, let alone wrongdoing. Dixon v. State, 2014 Ind. App. LEXIS 336 (July 22, 2014).
Defendant was stopped for not having a temporary tag. When the tag was seen, the stop should have ended, but defendant gave a false name and DOB and that justified extending the stop. State v. Ford, 2014 Mo. App. LEXIS 779 (July 22, 2014).*
The officer was likely mistaken in his detention of plaintiff, but it was with arguable probable cause, so the officer gets qualified immunity. Moreno v. Turner, 2014 U.S. App. LEXIS 13923 (11th Cir. July 22, 2014).*
The extortion case against Thomas DiFiore, a reputed boss in the Bonanno crime family, encompassed thousands of pages of evidence, including surveillance photographs, cellphone and property records, and hundreds of hours of audio recordings.
A cell phone user has no reasonable expectation of privacy in cell site location data records kept by the telephone company of a telephone that he was using that he was not the subscriber to. United States v. Woodley, 2014 U.S. Dist. LEXIS 99350 (W.D.Pa. July 21, 2014).
Defendant’s consent to search his motel room was not voluntary. He was handcuffed, surrounded by five officers, and merely acquiesced to their demands. United States v. Jackson, 2014 U.S. Dist. LEXIS 99319 (M.D. La. July 22, 2014).*
Defendant and the officer knew each other from prior nonarrest encounters and engaged in conversation when the officer saw him walking. The officer told him to stay while he got out of the car and then asked for consent to search defendant’s sea bag, which was given. Under state supreme court authority, the court has to find that the stop was not coercive [but suggesting it would otherwise]. State v. Cline, 264 Ore. App. __, 2014 Ore. App. LEXIS 962 (July 16, 2014).*
I’ve analogized a frisk of a car authorized under Long as a ‘protective sweep,’ which is usually of a dwelling. Here, a court does too: Officers responded to a use of force report that had been not completely defused. When they approached the house, they had reason to check defendant for weapons because they would have their back on him and he seemed to pose a danger. “The court concludes that the officers were justified in contacting Mr. Johnston to conduct a Terry stop if, for no other reason, than to ensure that he did not have a weapon or pose a danger to the officers as they approached the Vickerman residence with their backs turned to Mr. Johnston. Thus, the Terry stop in this case was much more akin to the doctrine of a ‘protective sweep.’” United States v. Johnston, 2014 U.S. Dist. LEXIS 98801 (D. S.D. May 29, 2014).
Plaintiff’s stop wasn’t over like he argues, so the officers could order him out of the car under Mimms. Wilson v. Los Lunas, 2014 U.S. App. LEXIS 13906 (10th Cir. July 22, 2014) .*
Defendant was observed buying a gun at a gun show, and he was a suspected felon. A traffic stop for following too close was made, and the gun was seen and inquired about. Defendant’s stop was valid. United States v. Law, 2014 U.S. App. LEXIS 13909 (10th Cir. July 22, 2014).*
"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.
