United States v. Jones GPS ruling is not retroactive on collateral review. United States v. Wineman, 2014 U.S. Dist. LEXIS 98665 (D. Nev. February 27, 2014).
Defendant’s stop was based on an unsubstantiated CI and there was no traffic offense. The stop was extended unreasonably, and it is suppressed. State v. Nyala, 2014 Del. Super. LEXIS 358 (July 17, 2014).*
“The Court concludes that Defendant’s consent to seizure of the cell phone, acknowledged by his printing (not signing) his name on the consent form, and providing his cell phone password, was a voluntary and knowledgeable consent, and that it was not tainted as “fruit of the poisonous tree” insofar as it followed the excluded in-car statements.” United States v. Quinney, 2014 U.S. Dist. LEXIS 98864 (E.D. Mich. July 21, 2014).*
Two men sitting at a vacant building in the daytime, but in an area known for burglaries, could be asked for identification and it written down. It was a mere encounter and not a detention. One defendant’s continued furtive conduct finally caused escalation of the encounter. Commonwealth v. Lyles, 2014 Pa. LEXIS 1806 (July 21, 2014): Continue reading →
Posted inReasonable suspicion|Comments Off on PA: Request for ID of two men sitting at a vacant building didn’t rise to a detention
One plaintiff’s complaint over his arrest was Heck barred, but third party Fourth Amendment claims were not. [This came up through a complex procedural issue.] Hayward v. Cleveland Clinic Found., 2014 U.S. App. LEXIS 13802, 2014 FED App. 0157P (6th Cir. July 21, 2014).
Defendant consented to taking his urine for BAC testing. State v. Ossege, 2014-Ohio-3186, 2014 Ohio App. LEXIS 3118 (12th Dist. July 21, 2014).*
The booking inventory policy in this case suffers the same defect as the one in State v. Davis, 262 Ore. App. 555, 325 P3d 790 (2014). Reversed. State v. Koloski, 264 Ore. App. __, 2014 Ore. App. LEXIS 960 (July 16, 2014).*
“‘Reliance on vague, conclusory allegations is insufficient’” to get a hearing on a motion to suppress. “Defendant correctly notes that the government bears the burden of justifying a warrantless search, but this does not relieve him of his burden of justifying a hearing.” United States v. Witzlib, 2014 U.S. Dist. LEXIS 98578 (E.D. Wis. July 21, 2014).
Entry into the backyard was justified by hot pursuit where the police were chasing three men who all bailed out of a still moving car and ran. United States v. Fuller, 2014 U.S. App. LEXIS 13810 (11th Cir. July 21, 2014).*
Defendant’s testimony that he doesn’t recall giving consent to search his cell phone doesn’t overcome the credible testimony of the officers that he did. United States v. Walia, 2014 U.S. Dist. LEXIS 98339 (E.D. N.Y. July 18, 2014).*
Posted inUncategorized|Comments Off on E.D.Wis.: “‘Reliance on vague, conclusory allegations is insufficient’” to get a hearing on a motion to suppress
The officer wrote a traffic ticket and then decided to run a computer check, and that unnecessarily prolonged the stop, making it unreasonable. State v. Allen, 2014 Ga. App. LEXIS 538 (July 16, 2014).
Monitoring a controlled buy with the CI corroborated his information. United States v. Cesario, 2014 U.S. Dist. LEXIS 97970 (D.Minn. June 30, 2014).*
There is no reasonable expectation of privacy in the common areas of the property of a storage building. State v. Michel, 264 Ore. App. __, 2014 Ore. App. LEXIS 963 (July 16, 2014).*
The nation’s top gun-enforcement agency overwhelmingly targeted racial and ethnic minorities as it expanded its use of controversial drug sting operations, a USA TODAY investigation shows.
The Bureau of Alcohol, Tobacco, Firearms and Explosives has more than quadrupled its use of those stings during the past decade, quietly making them a central part of its attempts to combat gun crime. The operations are designed to produce long prison sentences for suspects enticed by the promise of pocketing as much as $100,000 for robbing a drug stash house that does not actually exist.
Posted inPolice misconduct|Comments Off on USA Today: Investigation: ATF drug stings targeted minorities
WASHINGTON — The former National Security Agency contractor Edward J. Snowden said in a wide-ranging interview published on Sunday that the oversight of surveillance programs was so weak that members of the United States military working at the spy agency sometimes shared sexually explicit photos they intercepted.
Posted inFISA|Comments Off on NYTimes: Racy Photos Were Often Shared at N.S.A., Snowden Says
The judge issuing the search warrant here had, over six years earlier, as an ADA prosecuted one of the eight defendants in this case. He didn’t remember the case. When it was brought to his attention, he recused from the entire case. All the defendants moved to suppress and dismiss based on the “bright line” rule in State v. McCann, 391 N.J. Super. 542, 919 A.2d 136 (2007), a violation of judicial ethics can lead to that result. The defendants waited a year to raise the issue for strategic reasons, and there was no dispute that there was probable cause and, more notably, there was no allegation of actual bias by the judge because everybody agreed he didn’t remember the defendant. Noting “[t]he ‘overarching objective of the Code of Judicial Conduct is to maintain public confidence in the integrity of the judiciary,’” judicial conflicts of interest harm the public perception of the judiciary, the conflict here didn’t warrant suppression because of no memory of the one defendant. Under these facts, the “neutral and detached magistrate requirement” of the Fourth Amendment wasn’t violated, and the McCann “bright line” rule doesn’t govern this type of case. Also, no interests of the exclusionary rule would be served by suppression here. State v. Presley, 2014 N.J. Super. LEXIS 101 (July 17, 2014).
Posted inWarrant requirement|Comments Off on NJ: No violation of “neutral and detached magistrate” requirement where issuing magistrate didn’t remember prior prosecution of one defendant when an ADA
The officer stopped defendant because he swerved, and defendant claimed it was because he was avoiding a pedestrian. The government isn’t required to prove that it was true or not; the question is reasonable suspicion of bad driving, and it was. Then the odor of marijuana was detected. People v. Turnbull, 2014 V.I. LEXIS 46 (Super.Ct. June 23, 2014).*
Defendant’s blood was taken by search warrant and not by the implied consent law, so its taking was valid. Whitaker v. State, 2014 Miss. LEXIS 321 (July 17, 2014).*
The officer was justified in stopping the defendant’s car because of a cracked windshield. Then he was really nervous and he consented to a search of the car. State v. Herron, 2014-Ohio-3166, 2014 Ohio App. LEXIS 3083 (2d Dist. July 18, 2014).*
Disagreeing with a USMJ for the District Court for District of Columbia, a USMJ in the Southern District of New York held that an entire email account can be the subject of a search warrant, not just itemized files. The court finds it analogous to the seizure of an entire hard drive for later search, which Rule 41 specifically permits. In re A Warrant for All Content & Other Info. Associated with the Email Account xxxxxxx@gmail Maintained at Premises Controlled by Google, Inc., 2014 U.S. Dist. LEXIS 98008 (S.D. N.Y. July 18, 2014): Continue reading →
Posted inE-mail, Overbreadth|Comments Off on S.D.N.Y.: SW for email account can be for all emails, disagreeing with D.D.C.
On state constitutional grounds, Iowa refuses to follow SCOTUS on probation and parole searches. A search warrant is required without consent. “For the above reasons, we think Cullison remains good law. We decline to overrule it. The United States Supreme Court in Griffin, Knights, and Samson has engaged in innovations that significantly reduce the protections of the Warrant Clause of the Fourth Amendment. We decline to join the retreat under the Iowa Constitution. We hold that under article I, section 8, the warrant requirement has full applicability to home searches of both probationers and parolees by law enforcement. As a result, because evidence seized in this case was obtained unlawfully, the motion to suppress should have been granted. We again note that we do not address the legality of home visits or other types of supervision by probation officers pursuant to their ordinary functions, nor do we address the question of whether a probationer may validly consent to warrantless home searches.” State v. Short, 2014 Iowa Sup. LEXIS 86 (July 18, 2014). The court wrote many pages on why they were departing. Just part 4 here on the states being the primary protectors of privacy rights: Continue reading →
Officers came to defendant’s house looking for somebody else as a suspect because of a significant number of home burglaries in the area. They found a gate, a 120′ driveway, and opened the gate. About 15′ in they noticed that the door to the house was open, and they called out for whoever was inside to come out. Getting no answer, they sent in a dog. Nobody was home. Then they entered for a protective sweep and found a rifle leaning against the wall. They left and came back with a search warrant a week later, and defendant was arrested for the gun because he was a felon and meth they found. The entry into the house was valid under exigency because it was still possible somebody was inside committing a burglary and just hid. State v. Jacot, 2014 Ariz. App. LEXIS 120 (July 17, 2014).
The officer parked behind defendant, but he didn’t stop the car to begin with. When the officer approached to talk to defendant he could smell marijuana. That was not the product of an illegal stop or defendant’s acquiescence in a stop. State v. Gonzalez, 2014 Ariz. App. LEXIS 119 (July 15, 2014).*
There was a hearing on defendant’s motion to suppress. He raised multiple issues. That which were not briefed in the post-hearing brief are deemed abandoned. “Defendant has failed to perfect, delineate the arguments for, or otherwise expound upon the basis for the preliminary Motion to Suppress Evidence as it relates to the March 2, 2010 and August 15, 2012 encounters, either in his Post Hearing Brief or in his Reply Brief even after the Government noted Defendant’s omission to do so in its Opposition Brief. Accordingly, Defendant’s motion in relation to those subjects has been abandoned.” United States v. Walton, 2014 U.S. Dist. LEXIS 96749 (N.D. Ga. June 11, 2014).
Based on an email eavesdropping warrant, Homeland Security Investigations concluded that defendant was likely involved in importing controlled substances from China. That led to a valid extended border search of a package from there that came in through JFK headed to Buffalo. United States v. Reed, 2014 U.S. Dist. LEXIS 96793 (W.D. N.Y. July 14, 2014).*
Defense counsel was not ineffective for not challenging the search of defendant’s truck. The police had probable cause based on his comments, and then he validly consented. Bodenhamer v. United States, 2014 U.S. Dist. LEXIS 97295 (N.D. Ga. January 15, 2014).*
The protective sweep in defendant’s small home was not justified by the circumstances, but it did not taint the subsequent consent. United States v. Smallwood, 2014 U.S. Dist. LEXIS 96248 (N.D. Ga. June 27, 2014). Interesting discussion of Buie before turning to consent: Continue reading →
Posted inConsent, Protective sweep|Comments Off on N.D.Ga.: Buie in the real world; it’s not always clear
Defendant was riding a bicycle on the wrong side of the street, and the police recognized him from prior investigations, so they followed and attempted to stop him. He pedelled faster and went to house and entered a gate to the property. There he discarded a gun. He had no reasonable expectation of privacy in the curtilage when running from the police. He was a frequent guest there, but it wasn’t his house. United States v. Merricks, 2014 U.S. App. LEXIS 13674 (11th Cir. July 17, 2014).
In defendant’s 2255, he raised an illegal search issue foreclosed by Stone v. Powell, but it hadn’t been raised before. Assuming an IAC route to the claim, it would lose on the merits because the computer was taken to a computer shop for software cleanup, and the tech guy found child pornography and reported it, and the conviction followed. Wright v. United States, 2013 U.S. Dist. LEXIS 188248 (E.D. Mich. June 24, 2013).*
There was probable cause for searching defendant’s car seen at the scene of a 93kg drug delivery. The surveillance was extensive, the car seen earlier, and then at the drop. This case can’t be compared to just those of just being seen at a hand-to-hand drug deal. United States v. Macias, 2014 U.S. Dist. LEXIS 96314 (E.D. Ky. July 16, 2014).*
Posted inCurtilage, Ineffective assistance, Probable cause, Standing|Comments Off on CA11: Defendant lacked standing on the curtilage of a house he was often a guest in when he was fleeing police and stopped in front yard
Defendant was lawyer involved in a fraud, and the court of appeals finds that his office was “permeated with fraud” such that a broad records search was permitted. Attachment A to the warrant limited discretion, and he contended it was never left after the search to keep him from knowing the scope of the investigation. That was only a Rule 41 subject to the prejudice requirement, even if it was a fact, but the district court found that it was left. United States v. Sigillito, 2014 U.S. App. LEXIS 13729 (8th Cir. July 18, 2014).
An “any and all records” warrant was not overbroad, and the attachments restricted the officers’ seizing discretion. United States v. Ahmad, 2014 U.S. Dist. LEXIS 96244 (E.D. Va. July 15, 2014).
With this standard in mind, the Court agrees with the Government that the warrant in this case was sufficiently particular. Although the warrant contains language authorizing the police to seize “any and all records,” this language was limited in several ways, including directing officers to search for specific financial records and documents. (See Warrant, Aff., Attach B.) The circumstances of the search and the nature of the things to be seized also served to limit the discretion of the officers who conducted the search. Under these circumstances, the warrant “falls within the practical margin of flexibility.” Torch, 609 F.2d at 1089; see also Oloyede, 982 F.2d at 139; Ark. Chronicle v. Murphy, 183 F. App’x 300, 306 (4th Cir. 2006). In any event, even if the search warrant was overly broad, suppression of the items seized is not justified because, as discussed above, “the officers executing the search warrant acted in objectively reasonable good faith when they relied on the validity of the search warrant.” Atwell, 289 F. Supp. 2d at 629.
Posted inOverbreadth, Particularity|Comments Off on Two large records searches, not overbroad when read with the attachments
Defendant was charged in municipal court with an open container and was convicted after trial. He was also charged in circuit court with crack possession, and the state argued offensive collateral estoppel from losing the prior search claim. The court discusses the history of collateral estoppel and how it was applied without explanation in a criminal case first in 1942. “[E]ven if Hewins pled guilty to the open container violation, his plea would have constituted a waiver of any challenge he may have had to that offense but could not be extended to constitute a waiver of a challenge to the charge of possession of crack cocaine.” There are constitutional problems inherent in offensive collateral estoppel against a defendant. State v. Hewins, 2014 S.C. LEXIS 263 (July 16, 2014): Continue reading →
Posted inMotion to suppress|Comments Off on SC: Open container conviction wasn’t collateral estoppel to cocaine possession filed in different court from the same stop
Defendant as a passenger lacked standing in the GPS placement on another’s vehicle before Jones, never even having to discuss Davis good faith. United States v. Cabrera, 2014 U.S. Dist. LEXIS 96288 (D. Del. July 16, 2014).*
Defendant’s overbreadth challenge against a warrant for drug evidence such as drugs, paraphernalia, “drug ledgers reflecting drug transactions, financial transactions, suppliers and customers; photographs and video tapes that depict individuals involved in cocaine violations; and, bank records,” if there was any connection to a drug operation. “The warrant at issue in this case is precisely the type of warrant that courts routinely uphold against overbreadth challenges.” United States v. Pray, 2014 U.S. Dist. LEXIS 96792 (W.D. N.Y. July 14, 2014).*
All the facts in this case in the officer’s interaction with the defendant indicated that he was probably operating under the influence, and that justified his stop. Defense counsel was not ineffective for not filing a motion to suppress that wouldn’t succeed. State v. Waters, 2014-Ohio-3109, 2014 Ohio App. LEXIS 3039 (4th Dist. July 10, 2014).*
There is no reasonable expectation of privacy in IP subscriber information under the Ohio Constitution. Other Ohio courts and other state courts have so held. [In fact, no other court disagrees yet.] State v. Fielding, 2014-Ohio-3105, 2014 Ohio App. LEXIS 3030 (10th Dist. July 15, 2014)*:
[*P20] Beyond Ohio, “[f]ederal courts have uniformly held that ‘subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation’ because it is voluntarily conveyed to third parties.” United States v. Christie, 624 F.3d 558, 573 (3d Cir.2010), quoting Perrine at 1204. The court reasoned that “‘IP addresses are not merely passively conveyed through third party equipment, but rather are voluntarily turned over in order to direct the third party servers.'” Id. at 574, quoting Forrester at 510. See also United States v. Suing, 712 F.3d 1209, 1213 (8th Cir.2013) (defendant who chose to share pornographic files via a peer-to-peer network “‘had no expectation of privacy in [the] government’s acquisition of his subscriber information, including his IP address and name from third-party service providers'”). Id., quoting United States v. Stults, 575 F.3d 834, 842 (8th Cir.2009); Guest v. Leis, 255 F.3d 325, 336 (6th Cir.2001) (no Fourth Amendment privacy interest in subscriber information voluntarily communicated to systems operators); United States v. Sawyer, 786 F.Supp.2d 1352, 1355 (N.D.Ohio 2011) (no Fourth Amendment privacy interest in information made available on a public peer-to-peer filing sharing program, since the individual’s expectation of privacy in that shared information is not objectively reasonable).
"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.
