Manassas City police and Prince William County prosecutors are taking a unique approach to collecting evidence in a “sexting” case involving a 17-year-old male: Authorities want to take a photo of the teen’s erect genitalia to compare with a cellphone video allegedly sent to his girlfriend, his attorneys said.
The case has sparked anger from the boy’s family, local lawyers and legal observers, who say that the amount of time and resources spent by law enforcement on private messages between teens is excessive.
Posted inWarrant requirement|Comments Off on WaPo: In ‘sexting’ case, police want to take photo of teen’s erect genitalia, his lawyer says
In a defamation action against NBC’s Dateline for surreptitiously entering plaintiff’s brokerage seminar to record parts of it with the encouragement of Alabama state officials, there was no Fourth Amendment violation. There was no state action or coercion in facilitating the entry. The Fourth Amendment claim is dismissed, but the summary judgment on the defamation claim is reversed and can proceed. Brokers’ Choice of Am. v. NBC Universal, 2014 U.S. App. LEXIS 12922 (10th Cir. July 9, 2014): Continue reading →
Posted in§ 1983 / Bivens|Comments Off on CA10: No state action for Fourth Amendment claim against NBC’s “Dateline”
Plaintiff sued over his 2007 arrest to undermine his murder conviction. “As the district court correctly held, Mr. Williams’s complaint implicates the validity of his conviction and sentence and therefore is barred under Heck v. Humphrey, 512 U.S. 477 (1994). Further, any false arrest or false imprisonment claim based on the 2007 arrest not barred by Heck is otherwise barred under the two-year statute of limitations applicable to this case.” Williams v. Colorado Springs Police Dept., 2014 U.S. App. LEXIS 12924 (10th Cir. July 9, 2014).
Defense counsel was not ineffective in dealing with defendant’s arrest in Arizona that was a part of his Pennsylvania federal court conviction. There was plenty of reasonable suspicion to detain defendant during his stop for a truck equipment violation. United States v. Narcisse, 2014 U.S. Dist. LEXIS 93021 (M.D. Pa. July 9, 2014).*
The affidavit for the search warrant showed probable cause to connect defendant’s user names to access child pornography to him. United States v. De Foggi, 2014 U.S. Dist. LEXIS 93198 (D. Neb. June 9, 2014).*
The meth lab on defendant’s property was not on the curtilage. It was a separate building away from the house. State v. Schorr, 2014-Ohio-2992, 2014 Ohio App. LEXIS 2933 (5th Dist. July 2, 2014).*
The officer here was justified in getting defendant out of the vehicle and patting him down because of him stuffing something in his pants. State v. Moore, 2014-Ohio-2979, 2014 Ohio App. LEXIS 2917 (8th Dist. July 3, 2014).*
The protective sweep here was valid because the police knew defendant was in the company of another person who could have been inside the house. United States v. Shegonee, 2014 U.S. Dist. LEXIS 92402 (E.D. Wis. April 25, 2014).*
“Although a close call, the Court concludes that the trooper did not have reasonable suspicion that criminal activity was afoot and had no right to detain Medina for further investigation. Though reasonable suspicion is not meant to be an onerous standard, the totality of the handful of weak or valueless indicators here falls short of the relatively low bar. Notably, Tenth Circuit cases finding reasonable suspicion on similar facts turned on the driver’s prior criminal history, which is not alleged to be a factor here. On the facts of this case as a whole, the factors cited by the trooper collectively are insufficient to support a finding that reasonable suspicion existed to detain Medina after the lawful traffic stop concluded. The trooper’s suspicion here is more akin to a hunch that turned out to be accurate. For these reasons, the Court grants Medina’s motion to suppress.” United States v. Medina, 2014 U.S. Dist. LEXIS 92259 (D. Kan. July 8, 2014).
There was reasonable suspicion on the totality for the detention and then consent for the search. United States v. Burwell, 2014 U.S. Dist. LEXIS 92242 (W.D. Mo. July 8, 2014),* R&R 2014 U.S. Dist. LEXIS 93821 (W.D. Mo. May 30, 2014).*
Officers had qualified immunity on a probation search because they had at least arguable reasonable suspicion, if not actual. Leatherwood v. Welker, 2014 U.S. App. LEXIS 12813 (10th Cir. July 8, 2014).*
Add another body to the drug war pile. From the Tampa Bay Times, here is the story of the death of Jason Westcott.
A man who had partied at Westcott’s home was plotting to rob him. An itinerant motorcycle mechanic, Westcott didn’t have much — two televisions and a handgun that once belonged to his brother were perhaps the most valuable possessions in his 600-square-foot house in Seminole Heights — but he was terrified by his would-be intruder’s threats to kill him.
Police tracked down the suspect and warned him to stay away. Westcott, those close to him said, was left with a word of advice from the investigating officers: If anyone breaks into this house, grab your gun and shoot to kill.
On the night of May 27, as armed men streamed through his front door, Westcott grabbed his gun. But the 29-year-old didn’t have a chance to shoot before he died in a volley of gunfire. And those who killed him weren’t robbers.
They were police officers from the same agency he had enlisted to protect his home.
Posted inWarrant execution|Comments Off on WaPo: Meet Jason Westcott, your latest, needless, inexcusable drug war casualty
A closet was the proper subject of a protective sweep during a warranted arrest in a small apartment. It took defendant a while to answer the door, and there was a noise from the closet. Buie specifically recognizes this. United States v. Redrick, 2014 U.S. Dist. LEXIS 91059 (D.D.C. July 3, 2014).*
The state court’s finding of lack of standing and probable cause for the search warrant were litigated to conclusion and can’t be again under Stone. Marshall v. Rudek, 2014 U.S. App. LEXIS 12743 (10th Cir. July 7, 2014)* (order denying COA).
Defendant entered his estranged wife’s apartment in violation of a protective order issued because he cut her with a knife. Aside from his apparent lack of standing, exigent circumstances justified the entry. Taylor v. State, 2014 Ga. App. LEXIS 447 (July 7, 2014).*
Law360, New York (July 08, 2014, 10:44 AM ET) — Fourth Amendment law is anything but static. If one surveys the jurisprudential landscape over the last 50 years, there are three amendments that the U.S. Supreme Court cannot leave alone: the FIrst, the Fourth and the Fifth. This article concerns the Fourth Amendment and how the Supreme Court has manually swung the pendulum back to literal interpretation of securing warrants before a government search can begin.
A couple of cases is not a trend. Read the rest of the Fourth Amendment cases this year …
Posted inWarrant requirement|Comments Off on Law360: High Court Is Swinging Pendulum Back On 4th Amendment
Merely answering the door isn’t enough to be asked for consent. This guy was a casual visitor, he had no actual authority to consent, and the police made no effort to determine his apparent authority. If they asked, it would have been obvious there was none. Therefore, the entry was invalid. United States v. Flintroy, 2014 U.S. Dist. LEXIS 91488 (W.D. Ky. July 7, 2014): Continue reading →
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Defendant was arrested outside and asked to go inside to get warm. They all sat in the kitchen. There was no reason for one officer to decide to walk through the rest of the house because there was no proffered safety justification. Finding guns in the bedroom was thus illegal. United States v. Gregg, 2014 U.S. Dist. LEXIS 91892 (E.D. Tenn. June 19, 2014): Continue reading →
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Not filing a suppression motion was a valid strategic choice discussed on the record at the time it was waived with the USMJ. United States v. Latimore, 2014 U.S. Dist. LEXIS 91777 (N.D. Ga. May 29, 2014); United States v. Senegal, 2014 U.S. Dist. LEXIS 91887 (S.D. Tex. July 7, 2014).
Defense counsel withdrew his motion to suppress because it was hard to win and he feared that it would have improved plea bargaining position. Without post-conviction counsel showing how the motion to suppress would have won, the petition has to be denied. State v. Dillard, 2014 Del. Super. LEXIS 317 (June 30, 2014).
Police were investigating a string of burglaries occurring after midnight and surmised that the burglar was using a bicycle. When they found defendant on a bicycle with a lady’s handbag on the handlebars, he acted suspicious, and then he fled. State v. Parks, 2014 Del. Super. LEXIS 323 (May 30, 2014).*
Smell of marijuana around three men was reasonable suspicion as to all. “Defendant argues that, because Ploghoft only detected the odor of marijuana in the vicinity of the men, and could not trace it to defendant in particular, that was inadequate to create a reasonable suspicion as to defendant. We disagree. Here, the odor gave Ploghoft a reasonable suspicion that one or more of the three men was involved in illegal drug activity that warranted further investigation, particularly in light of the informant’s report. …” State v. Acuna, 264 Or. App. ___, 2014 Ore. App. LEXIS 913 (July 2, 2014). [Compare Maryland v. Pringle.]
d
The officer here had no reasonable suspicion of wrongdoing to stop and talk to a motorist parked on the side of the road on a wooded area. While there was a “suspicious” vehicle call, the shoulder of the road is where people are supposed to park, and the motorist decline officer assistance. That’s not suspicious. State v. Moore, 264 Or. App. ___, 2014 Ore. App. LEXIS 907 (July 2, 2014).*
Posted inReasonable suspicion|Comments Off on OR: Smell of MJ around three men was RS as to all
Many Missouri lawmakers think an amendment on the Aug. 5 ballot will bring privacy protection in the state into the 21st Century.
Amendment 9 would change the state constitution to add privacy protections for Missourians’ electronic data and communications, requiring police to get a warrant to search or seize cellphones, emails or other electronic data.
Posted inCell phones, E-mail, ECPA|Comments Off on KC Star: Question of electronic privacy on Missouri’s August ballot
There is no reasonable expectation of privacy in the contents of a telephone call with an informant who’s recording it. United States v. Deleon, 2014 U.S. Dist. LEXIS 90856 (E.D. Tenn. May 23, 2014): Continue reading →
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A color discrepancy from DMV on a vehicle alone is not a basis for a stop. Here, the car was bright green and DMV showed it to be blue. That’s not enough. State v. Van Teamer, 151 So. 3d 421 (Fla. 2014): Continue reading →
Posted inReasonable suspicion|Comments Off on FL: Color discrepancy in DMV record not enough for a stop
Defendant was convicted of a sex offense with a child, and he was ordered to be GPS monitored for life. GPS monitoring is a reasonable condition, but lifetime monitoring may not be. He can, however, raise that issue periodically with the sentencing court. State v. Nation, 2014 S.C. LEXIS 215 (July 2, 2014).
The search of defendant’s cell phone by consent that was almost certainly coerced was harmless error in light of all the other evidence in the case. United States v. Arrellano, 2014 U.S. App. LEXIS 12654 (7th Cir. July 2, 2014).*
The primary occupant of the home granted effective consent to enter to look for defendant. The police said they were looking for him, and she said he was upstairs and stepped back to allow entry. United States v. Green, 2014 U.S. Dist. LEXIS 90377 (M.D. La. July 1, 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.
