No reasonable officer could conclude on these facts that there was exigency for a warrantless entry. There was no evidence that actual violence was occurring or threatened. Therefore, qualified immunity was denied. Walters v. Freeman, 2014 U.S. App. LEXIS 13540 (11th Cir. July 16, 2014):
Freeman also contends that Florida’s “robust” domestic abuse investigation-and-reporting statute essentially required him to do whatever was necessary to visually verify and confirm Walters’s well-being after being dispatched to a domestic-disturbance call. See Fla. Stat. § 741.29.
This argument is unavailing. Although Florida’s statute imposes mandatory investigation obligations on law enforcement officials, see Fla. Stat. § 741.29(1), (2), it does so with respect to incidents of “domestic violence.” Id. The Florida statute’s definition of “domestic violence” encompasses a wide-array of physical conduct. See Fla. Stat. § 741.28. Freeman, however, did not encounter any evidence of physical violence, and the Florida statute did not impose any obligations on Freeman that justified a warrantless entry into Walters’s home under the facts of this case.
Defendant’s vehicle was seized for taking a whitetailed buck out of season. “¶17 The trial court understandably was concerned that by sequentially seizing property, the government could unreasonably deprive people of the use of their property by prolonging proceedings. However, the remedy for unlawful seizure is a motion for return of property rather than a hurried forfeiture process. CrR 2.3(e).” Dep’t of Fish & Wildlife v. One 1999 Ford F350 Diesel Pickup Truck, 2014 Wash. App. LEXIS 1714 (July 17, 2014).*
“The trial court did not err in denying defendant’s motion to suppress evidence found in defendant’s house because defendant gave officers consent to search his residence and the consent was not contaminated by the initial warrantless entry into the residence by an officer who was pursuing a woman who fled into the house at the sight of the officers arriving at the house and exited from the house. While the officer who entered the house drew his handgun from his holster when he was pursuing the woman into the house, he put his weapon into his holster upon encountering defendant in the house, asked defendant to step outside to talk with the officer, and obtained defendant’s consent to make a sweep of the house.” [Lexis overview] State v. Hammock, 2014 Tenn. Crim. App. LEXIS 679 (July 15, 2014).*
Small-town cops caught improperly seizing cars for minor traffic violations, then selling them to junkyards. Most of the transactions were off the books, and a lot of the money is still unaccounted for.
Nashville’s NewsChannel 5 — which does some fantastic investigative reporting — looks at police militarization in Tennessee. (Disclosure: NewsChannel 5 interviewed me as part of its investigation.
Posted inPolice misconduct|Comments Off on WaPo: Radley Balko: Cops caught improperly seizing cars, then selling them off the books
One unlit bulb in a taillight system that was otherwise visible 500′ was unreasonable. This is a mistake of law. State v. Brown, 2014 WI 69, 2014 Wisc. LEXIS 483 (July 16, 2014).
Driving 25 then 20 in a 50 mph zone was probable cause for a stop. City of Wilmington v. Lubbers, 2014-Ohio-3083, 2014 Ohio App. LEXIS 3013 (12th Dist. July 14, 2014).*
“We first note that several facts appear not to be in dispute. The defendant ran a stop sign; and, after being stopped by Officer Thomas, the defendant and his vehicle emitted a strong odor of alcohol. The defendant admitted to Officer Thomas that he had consumed ‘a couple of beers’ that evening. His speech was slurred, he was stuttering and swaying when he walked, and his eyes were bloodshot.” The trial court erred in concluding there was no probable cause. State v. Roscoe, 2014 Tenn. Crim. App. LEXIS 687 (July 11, 2014).*
Public debate about the bulk collection of U.S. citizens’ data by the NSA has focused largely on Section 215 of the Patriot Act, through which the government obtains court orders to compel American telecommunications companies to turn over phone data. But Section 215 is a small part of the picture and does not include the universe of collection and storage of communications by U.S. persons authorized under Executive Order 12333.
Posted inFISA|Comments Off on WaPo: Op-ed: Meet Executive Order 12333: The Reagan rule that lets the NSA spy on Americans
The question of whether the oversight of the federal government’s surveillance activities is effective came to a head on Capitol Hill on Friday as former National Security Agency general counsel Stewart Baker and representatives of technology industry and civil liberties interests butted heads.
Posted inUncategorized|Comments Off on BLT: Debating the Efficacy of NSA Surveillance Oversight
An ex parte order to compel a parent in a custody case to be drug tested was unreasonable. In the Interest of A.C., 2014 Iowa App. LEXIS 731 (July 16, 2014):
In sum, we find no statutory authority to support the district court’s ex parte pre-adjudication parental drug-testing order, nor do we find that the court had inherent authority to enter such an order. What was inherent was the prejudice to the father. Because the original order was entered ex parte, the father had no opportunity to raise the absence of authority to support drug testing at this stage. While he could have refused to comply with the order, he then would have faced immediate removal of the children. We conclude the probative value of those portions of the child protective assessment report making reference to the drug test and drug test result was substantially outweighed by the danger of unfair prejudice to the father. Those portions of the report should not have been admitted. The remainder of the report, including the summaries of the investigator’s interviews with the father and others and the department’s opinions and conclusions were admissible. See In re Long, 313 N.W.2d 473, 480-81 (Iowa 1981).
Posted inDrug or alcohol testing|Comments Off on IA: Ex parte order to drug test a parent in custody case was unreasonable
The consenter called 911 to say that her live-in boyfriend locked her out of the house and battered her. When they arrived, she was back in, and her children were there, along with her and clothes and kids’ toys. Based on their observations and her representations, she had apparent authority. United States v. Clinton, 2014 U.S. Dist. LEXIS 95947 (E.D. Wis. May 15, 2014):
In any case where there is evidence to support the conclusion that an individual lacked the actual authority to consent to a search it will always be possible to argue that officers could have discovered this additional information if only they had sought out certain information. But the question here is whether they were required to inquire further. The Fourth Amendment does not require police officers to doubt everything they see and their common sense tells them to be true; the standard under the Fourth Amendment is reasonableness. Here, the officers’ actions were reasonable and a reasonable person in the position of the officers would have concluded, just as they apparently did, that Kidd was a resident of Clinton’s home.
Posted inApparent authority|Comments Off on E.D.Wis.: Officers are not required to doubt what they see in determining apparent authority to consent
Three letters were mailed to President Obama, NYC Mayor Michael Bloomberg, and a gun control advocate by former actress Shannon Guess Richardson. Only the latter was opened because the others were caught in screening. The case was solved by the USPS imaging of all mail after the ricin was discovered. Ultimately, apparently a search warrant for her New Boston TX home revealed the letters on the family computer and internet history on how to make ricin. She tried to blame her husband, but he had an alibi for the times shown by the computer. She pled guilty in Texarkana TX federal court, first agreeing to an 18 year sentence, then seeking to lower it during the sentencing, which did not succeed. The charge was use of a biological agent as a weapon.
Posted inPlain view, feel, smell|Comments Off on USPS mail imaging helps solve ricin mailing case
Officer’s mistake of law that a driver had to stop only at a stop line and not before made the stop unreasonable. State v. Drushal, 2014-Ohio-3088, 2014 Ohio App. LEXIS 3020 (9th Dist. July 14, 2014).* [Will Heien v. North Carolina change that come next SCOTUS Term?]
One of the exigencies for a DWI warrantless blood draw here was that defendant was removed from the scene of the accident on a backboard, and he was likely going to be given pain medication at the hospital. The officer reasonably waited for the hospital staff to do their stuff first, and that consumed some of the time, and the two hour limit was approaching. State v. Granger, 2014 N.C. App. LEXIS 745 (July 15, 2014).*
Defendant was more than a transient visitor to the house in question. He owned it and his mother lived there, and he stayed there a lot, got his mail there, and he kept a lot of property there. His car was in the garage at the time of the raid. Given the standard of review of probable cause for search warrants, the search warrant was issued on probable cause. Moses v. State, 2014 Ga. App. LEXIS 525 (July 15, 2014).*
Minnesota finds no “unconstitutional conditions” in DWI BAC test. It is also “reasonable” under Skinner and satisfies a legitimate state interest. Stevens v. Comm’r of Pub. Safety, 2014 Minn. App. LEXIS 69 (July 14, 2014): Continue reading →
Posted inDrug or alcohol testing|Comments Off on MN: DWI BAC test is “reasonable” under Skinner and satisfies a legitimate state interest under McNeeley
Defendant was stopped, acted somewhat nervous, and the officer called in the license check, which was complete in 2½ minutes. He ignored dispatch calling him back to prolong the stop, and that made the stop unreasonable because, since defendant’s paperwork was in order, the stop had to end with that. Bodiford v. State, 2014 Ga. App. LEXIS 520 (July 14, 2014): Continue reading →
Posted inReasonable suspicion|Comments Off on GA: Officer’s ignoring dispatch that DL and paperwork were fine unreasonably extended stop
Court of Appeals Agrees to Expedite Case Over Telephone Records Collection
Coeur d’Alene, Idaho – The Electronic Freedom Foundation (EFF), the American Civil Liberties Union (ACLU) and the American Civil Liberties Union of Idaho have announced they will join Anna Smith’s legal team in her challenge of the government’s bulk collection of the telephone records of millions of innocent Americans.
Smith, an emergency neonatal nurse and pregnant mother of two, filed her suit against President Obama and several U.S. intelligence agencies shortly after the government confirmed revelations that the National Security Agency (NSA) was conducting bulk collection of telephone records under Section 215 of the Patriot Act. Smith, a customer of Verizon wireless, one of the companies that was ordered to disclose records to the NSA, argued the program violated her First and Fourth Amendment rights by collecting a wealth of detail about her familial, political, professional, religious and intimate associations.
Posted inFISA|Comments Off on eff.org: EFF, ACLU Join Idaho Mom’s Legal Challenge to NSA Surveillance
Life time satellite surveillance of a convicted sex offender was reasonably related to a valid governmental objective, and it doesn’t violate Jones (involving investigation) or substantive due process. State v. Williams, 2014 N.C. App. LEXIS 744 (July 15, 2014).
The motion to suppress was denied a month before trial, and when the evidence was offered at trial, defense counsel said there was no objection, thereby waiving the objection for appeal. It had to be renewed. State v. Loggins, 2014 Mo. App. LEXIS 761 (July 15, 2014).*
Defendant’s consent was voluntary, so his counsel wasn’t ineffective in not challenging it. United States v. Wright, 2014 U.S. Dist. LEXIS 95699 (E.D. Mich. July 15, 2014).*
Posted inUncategorized|Comments Off on NC: Lifetime satellite monitoring of convicted sex offender not unreasonable
The state’s reasonable suspicion argument that officers were concerned for officer safety at the time of the search was not made in the trial court, so it can’t be made on appeal. Commonwealth v. Jordan, 469 Mass. 134, 12 N.E.3d 371 (2014).
Defendant’s consent was to search his house for drugs and weapons. Officers were already in his house to arrest him for a drug trafficking conspiracy, and they could seize “notepads that appeared to be drug ledgers, plastic bags, and the $50,000 in U.S. currency.” They couldn’t just be expected to ignore them. United States v. Jaimez, 2014 U.S. App. LEXIS 13363 (11th Cir. July 11, 2014).*
The officer already had reasonable suspicion when he told defendant to interlace his fingers behind his head for a frisk. Then defendant fled. United States v. Thorne, 2014 U.S. Dist. LEXIS 95431 (E.D. Mo. June 20, 2014).*
Plaintiff was drunk in a tree with a gun after an altercation at a party. The police came and he refused to some down. He was Tasered twice, the second time falling headfirst eight feet and becoming a paraplegic. The police were entitled to qualified immunity for the use of force under the Fourth Amendment because the Tasering did not violate clearly established law. Harper v. Davis, 2014 U.S. App. LEXIS 13364 (11th Cir. July 11, 2014).
There was reasonable suspicion that defendant was engaged in smuggling activity near the Vermont-Canadian border, and his stop was reasonable. United States v. Cordero, 2014 U.S. Dist. LEXIS 95227 (D. Vt. July 14, 2014).*
There was probable cause, so the search of defendant’s car was valid either under the automobile exception or as a search incident. Therefore, inventory is moot. United States v. Aybar, 2014 U.S. Dist. LEXIS 94824 (C.D. Ill. July 11, 2014).*
Pre-Riley search incident of cell phone was valid in the Fifth Circuit under the Davis good faith exception. The defendant’s trial concluded eight days before Riley was decided, and he raised the issue. United States v. Spears, 2014 U.S. Dist. LEXIS 94968 (N.D. Tex. July 14, 2014):
At the time the Supreme Court decided Riley, Spears’s conviction was not final. Thus, the decision in Riley applies retroactively to his case. See Davis, 131 S. Ct. at 2431. As such, the Court concludes that the warrantless search of Spears’s cell phone incident to his arrest violated the Fourth Amendment. This raises the question of whether the evidence should have been suppressed. Continue reading →
Posted inCell phones, Good faith exception|Comments Off on N.D.Tex.: Pre-Riley search incident of cell phone saved by Davis GFE
You’re probably familiar with the weaselly way politicians tend to apologize when they’ve been caught red-handed. The most famous example is the use of the line, mistakes were made. Use of the passive voice in an admission of wrongdoing has become so common that the political consultant William Schneider suggested a few years ago that it be referred to as the “past exonerative” tense.
Posted inExcessive force|Comments Off on WaPo: The curious grammar of police shootings
"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.
