The stop was of reasonable duration before consent was sought. “Once Jaramillo consented to the search of the Tahoe, ‘the clock re-started for purposes of evaluating the reasonableness of the duration of the intrusion.’ Hernandez, 418 F.3d at 1210 (citation omitted).” United States v. Jaramillo, 2014 U.S. Dist. LEXIS 91027 (N.D. Ga. April 25, 2014).
Defendant’s stop would have been valid on reasonable suspicion on the totality, but the trial court erroneously required probable cause. Reversed. People v. Yanez, 2014 IL App (1st) 123364, 2014 Ill. App. LEXIS 475 (June 30, 2014).*
Defense counsel did, in fact, fully pursue the search issue before the district court, so he couldn’t be ineffective for not. United States v. Cephas, 2014 U.S. Dist. LEXIS 90675 (E.D. Pa. July 2, 2014).*
The stop was valid. “Whether Flores actually violated the law is immaterial. The question is only whether Deputy Broce had probable cause to suspect that Flores was committing a traffic violation.” The officer could ask defendant to produce what created the large bulge in his pocket, which was $6,000 in cash. United States v. Flores, 2014 U.S. Dist. LEXIS 89825 (E.D. Ky. July 2, 2014).*
Defendant was in an auto parts store and the clerk reported him as a possible DUI when he left. An officer encountered him and observed bad driving and stopped him. While Navarrette came down after this case was briefed, it doesn’t affect the outcome because here there was corroboration. State v. Burkett, 2014 SD 38, 2014 S.D. LEXIS 56 (June 25, 2014).*
A juvenile wearing baggy pants and looking at a police car is not reasonable suspicion. In re M.P., 2014-Ohio-2846, 2014 Ohio App. LEXIS 2863 (1st Dist. June 30, 2014).*
Posted inProbable cause, Reasonable suspicion|Comments Off on E.D.Ky.: Question is PC for a stop, not whether the defendant actually violated the law
Defense counsel was reasonable in not impeaching officer at suppression hearing with his disciplinary history considering the issue being tried. The issue for the suppression hearing was whether it was reasonable for the officers to believe defendant was where he was found, and the cross-examination was effective, although it ultimately did not succeed. Attacking just one officer’s credibility wouldn’t have mattered to the outcome. Golding v. United States, 2014 U.S. Dist. LEXIS 91073 (S.D. N.Y. July 2, 2014).
There was probable cause for issuance of the search warrant for the places and cars and effects listed. Defendant’s claim of omitted facts doesn’t undermine the PC. United States v. Hoey, 2014 U.S. Dist. LEXIS 91093 (S.D. N.Y. July 2, 2014).*
Defense counsel was not ineffective for not raising GPS tracking before defendant’s plea one year prior to Jones being decided. Ninth Circuit law permitted it at the time, and he’d lose under that and Davis good faith. O’Neill v. United States, 2014 U.S. Dist. LEXIS 91080 (D. Idaho July 1, 2014).*
Posted inIneffective assistance, Nexus, Probable cause|Comments Off on S.D.N.Y.: Considering suppression being tried, not attacking just one officer’s credibility wasn’t IAC
The National Security Agency (NSA) conducts warrantless surveillance of millions of people around the world and very little of it has anything to do with stopping terrorism.
Not that this is any sort of revelation to those who pay attention to the contraction of constitutional liberty, but recent reports from mainstream news outlets are highlighting not only the vacuuming up of metadata in violation of the Fourth Amendment, but the use of Section 702 of the FISA Amendments Act to justify untold spying operations carried out under cover of this federal statute.
FYI: There was a John Birch Society ad on the page when I opened it. Take it for what it’s worth.
Posted inFISA|Comments Off on The New American: So Much Warrantless Surveillance, Feds Can’t Keep Track
Police received a 911 call that plaintiff’s son was a schizophrenic threatening death or certain injury. They came to her house, and she denied that he was there, but pleaded for help for him because he refused to take his medication and was threatening all kinds of people. The law was not clearly established at the time of the entry, and qualified immunity protects the officers. Velasquez v. Audirsch, 2014 U.S. App. LEXIS 12616 (5th Cir. July 3, 2014):
The district court’s analysis was arguably correct in evaluating the merits of the Velasquezes’ underlying constitutional claim; however, this analysis misconstrues qualified immunity doctrine. As discussed above, the ultimate question is not whether the Officers’ actions were reasonable under the Fourth Amendment; the question is whether the law at the time of the Officers’ entry into the Velasquezes’ home clearly established that their actions were unreasonable. The Supreme Court’s decision in Ryburn v. Huff, 132 S. Ct. 987 (2012) (per curiam) leads us to the inescapable conclusion that the law was not clearly established in the circumstances here.
Posted in§ 1983 / Bivens, Qualified immunity|Comments Off on CA5: When qualified immunity is the issue, whether the 4A was violated isn’t even the “ultimate question”
Defendant was arrested for sexual assault on an Indian reservation. The warrantless entry into his hogan was justified by exigent circumstances. United States v. McCabe, 2014 U.S. App. LEXIS 12549 (9th Cir. July 2, 2014)*: Continue reading →
Posted inEmergency / exigency|Comments Off on CA9: Exigent circumstances justified warrantless entry into Navajo’s hogan
There was probable cause shown by the 16 page affidavit for search warrant. Potential issues of chain of custody are not an issue for a motion to suppress. That’s an issue for trial. United States v. Williams, 2014 U.S. Dist. LEXIS 89106 (W.D. Tenn. July 1, 2014).
Virtually the same: State v. Felts, 2014 Tenn. Crim. App. LEXIS 626 (June 25, 2014) (that stolen property was returned to the victims is not a ground to suppress the search).
Even hitting the fog line once is reasonable suspicion for a stop. The USMJ’s findings of consent, adopted by the district court, are not clearly erroneous. United States v. Salas, 2014 U.S. App. LEXIS 12387 (10th Cir. July 1, 2014).*
“Because the Court finds that AOL and the National Center for Missing and Exploited Children (‘NCMEC’), the parties who searched Defendant’s emails, are not state actors, the Fourth Amendment is inapplicable to their conduct in this case.” United States v. Ackerman, 2014 U.S. Dist. LEXIS 89243 (D. Kan. July 1, 2014).*
Posted inConsent, Warrant execution|Comments Off on W.D.Tenn. & TN: A chain of custody issue revealed at the suppression hearing is a trial issue
But don’t expect the Supreme Court’s limitations to impact all law enforcement, because, as Aaron Sankin detailed on the Daily Dot, the United States Customs and Border Protection (CBP) still don’t need to consult with a judge before browsing through your smartphone. In fact, there are very few limitations on CBP searches for both non-citizens and U.S. citizens crossing into the U.S.
In fact, the only limit behind CBP’s power to search your electronics comes from 2007 case law, according to Sankin, when a circuit court of appeals found that border agents had to have a “reasonable suspicion” of wrongdoing before conducting a thorough “forensic search,” of electronic devices — which could include breaking into password-protected parts of electronics.
Posted inBorder search, Cell phones|Comments Off on Latin Post: Despite Supreme Court Ruling, Smartphones Can Still Be Searched by Border Cops
10. Be a conscientious citizen and study up on which civil liberties you still have. Don’t worry, it won’t take long.
Left out: The freedom to call your GOP member(s) of Congress a f*cking moron for not doing a damn thing in the last three years. Yes, Tim Griffin, that’s you, posturing for votes as Arkansas Lt. Governor but passing nothing in Congress.
Posted inUncategorized|Comments Off on 19 ways to finally take your patriotism to the next level
It’s been nearly a year since a court ruling curtailed the New York Police Department’s controversial practice known as stop-and-frisk, but NYPD Commissioner William Bratton says the city can be just as safe without it.
Posted inStop and frisk|Comments Off on NPR: Top NYPD Cop: Stop-And-Frisk Is Not ‘The Problem Or The Solution’
The New York Times reports on a big investigation by the Manhattan District Attorney’s office into disability fraud by more than 100 New York City police officers and firefighters. All well and good. What’s troubling is how prosecutors investigated the case. Mike Masnick explains at Techdirt: …
Posted inInformational privacy|Comments Off on WaPo: Manhattan prosecutor issued sweeping, secret Facebook warrant
Leading technology and civil liberties groups are disappointed with a study [PDF] the U.S. government’s privacy watchdog released in support of a major U.S. foreign surveillance program that collects vast amounts of Internet user data.
Posted inFISA|Comments Off on BLT: NSA Privacy Report by Fed Watchdog Seen as Too Weak
Reading the Privacy & Civil Liberties Oversight Board’s rather tepid report on NSA surveillance under §702 of the FISA Amendments Act last night, I found myself thinking of the Supreme Court’s recent Riley opinion rejecting facile analogies between smartphones and other small personal objects subject to search—in particular Justice Roberts’ striking assertion that a search of a modern cell phone would expose to the government more private and intimate information than “the most exhaustive search of a home.”
Posted inFISA|Comments Off on Just Security: Cloud City: A Fourth Amendment Thought Experiment
An excerpt from the National Archives’ official transcript of the Declaration of Independence. A scholar is arguing that the period after “the pursuit of happiness” — shown in an 1823 engraving — does not appear on the 1776 parchment original.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
Posted inUncategorized|Comments Off on NYTimes: Pursuit of Punctuation; on the Declaration of Independence
The plaintiff stated a § 1983 claim for unlawful entry and excessive force, and the district court erred in granting summary judgment in favor of the officers. There was no showing of exigency for the entry or need for the use of force. Sandoval v. Las Vegas Metro. Police Dep’t, 2014 U.S. App. LEXIS 12395 (9th Cir. July 1, 2014).* [Record shows this was a kind of: Shoot now, ask questions later.]
Defendant’s arguments at the time of a search or arrest that it is incorrect do not have to be paid attention to by the officers. They can rely on the warrant and sort it out later. Stonecipher v. Valles, 2014 U.S. App. LEXIS 12384 (10th Cir. July 1, 2014).*
Hearsay is admissible at a suppression hearing, and this hearsay established voluntariness of consent. United States v. Collins, 2014 U.S. App. LEXIS 12409 (4th Cir. July 1, 2014).*
Posted inExcessive force, Warrant execution|Comments Off on CA9: SJ for officers revd; no showing of exigency for entry or need for excessive force
The Supreme Court gave a big victory to criminal defendants last week when it held in Riley v. California that the police need a warrant to search a cell phone incident to arrest. But now lower courts are turning to the remedy question: Who actually gets to benefit from the new case? For many defendants who had their phones illegally searched, the victory in Riley will be a symbolic one. They won’t get the benefit of the new case. And that may include Riley himself.
A protective sweep was not justified in this case. Defendant was being talked to about shooting a shotgun at a racoon, and the other person in the house was conceded at the time to be passive and known to be completely uninvolved. Defendant wasn’t even handcuffed until the gun was found. United States v. Gregg, 2014 U.S. Dist. LEXIS 89112 (E.D. Tenn. June 19, 2014).
Officers had an arrest warrant, and they found defendant at a hotel room. He wouldn’t open the door more than a couple of inches at first, and that concerned the officers. Once inside, there was a man in bed who kept his hands under the covers, and that also concerned the officers. A protective sweep was reasonable. State v. Johnson, 2014 S.C. App. LEXIS 162 (June 30, 2014).*
Posted inProtective sweep|Comments Off on E.D.Tenn.: A protective sweep wasn’t justified where the officers weren’t legitimately concerned about safety
Once the basis for the traffic stop was completed, the stop had to end. Defendant was asked for consent and refused, and the officer told him he was staying for a drug dog to arrive. The state argued for the de minimus rule, but it doesn’t apply where there was an additional wait for the drug dog. State v. Cottrell, 2014 N.C. App. LEXIS 678 (July 1, 2014).
Defendant was not “stopped” by the officer when the officer approached. He could smell alcohol on the defendant and saw an unopened beer in the vehicle. That was reasonable suspicion. State v. Veal, 2014 N.C. App. LEXIS 674 (July 1, 2014).*
Defendant lacks standing to challenge a subpoena to a third party for electric records. There was probable cause for the search warrant, and good faith would be sufficient in any event. United States v. Thomas, 2014 U.S. Dist. LEXIS 89310 (W.D. Ky. July 1, 2014).*
Defendant had no standing to contest law enforcement’s seizure of guns he pawned at a pawn shop.
United States v. Sanders, 2014 U.S. Dist. LEXIS 88788 (E.D. Tenn. May 19, 2014).*
The officer had reasonable suspicion defendant was driving under the influence, having been found asleep at the wheel with the engine running, surrounded by five open containers. Therefore, defendant could be convicted of refusing to get out of the car. The state doesn’t have to prove more intent. State v. Orr, 2014 Ida. App. LEXIS 64 (June 30, 2014).*
Defendant was accused of being involved in a shoplifting with other persons and stashed the stuff in their car. The car was impounded, and no suppression motion was filed. On plain error review, the appellate court can’t conclude that the impoundment and inventory holding of the trial court was error. State v. Jordan, 2014-Ohio-2857, 2014 Ohio App. LEXIS 2802 (9th Dist. June 30, 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.
