Search warrants are directed at places, and it doesn’t matter that several people live there. This was a single family dwelling, so the warrant wasn’t overbroad for identifying the whole home as a place to search in a child pornography case. United States v. Graham, 2014 U.S. Dist. LEXIS 88796 (N.D. Ga. May 28, 2014).
Even if the defense lawyer had provided the impound policy, the search result wouldn’t be different. United States v. Foskey, 2014 U.S. App. LEXIS 12232 (11th Cir. June 30, 2014).*
The officers collectively had sufficient knowledge of probable cause to search defendant’s car. United States v. Jenkins, 2014 U.S. Dist. LEXIS 88728 (S.D. Ill. June 30, 2014).*
Trial court’s finding of no consent from being confronted at night and having a flashlight shined in defendant’s eyes was not shown to be clearly erroneous, so it’s affirmed. State v. Purvis, 2014-Ohio-2865, 2014 Ohio App. LEXIS 2811 (9th Dist. June 30, 2014).*
Posted inInventory, Overbreadth, Probable cause|Comments Off on N.D.Ga.: Warrant for whole single family dwelling was not overbroad in a CP case
Alleged police misconduct in how the search was conducted because they were rude and cavalier in handling the evidence isn’t a ground to suppress. United States v. Samonek, 2014 U.S. Dist. LEXIS 88269 (E.D. Mich. June 30, 2014): Continue reading →
Posted inExclusionary rule, Police misconduct|Comments Off on E.D.Mich.: That police were rude during the search isn’t a ground to exclude
And it begins: What is the scope of Riley? When I was interviewed by the NYT last week about Riley, I mentioned that particularity was going to be the next real issue in cell phone searches, but that didn’t end up in the article. The District of Kansas held the day after Riley in a fascinating opinion that the standard search protocol of the government for cell phones provided in the search warrant application violated the particularity requirement of the Fourth Amendment and would result in a general search. In re Premises Known As: a Nextel Cellular Tel. with Redacted Unknown Assigned Tel. No. Belonging to & Seized from [Redacted], 2014 U.S. Dist. LEXIS 88215 (D. Kan. June 26, 2014):
In addition to the places to be searched, the warrant must also describe the things to be seized with sufficient particularity. This is to avoid a “general exploratory rummaging of a person’s belongings,” and was included in the Fourth Amendment as a response to the evils of general warrants.10 First, the description of the things to be seized must be “confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause.”11 Second, a warrant must describe the things to be seized with sufficiently precise language so that it informs the officers how to separate the items that are properly subject to seizure from those that are irrelevant.12 Stated another way: “As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.”13 Taken together, a warrant is overly broad if it does not contain sufficiently particularized language that creates a nexus between the suspected crime and the things to be seized.14
The Court remains concerned that, in its current form, the government’s Application violates both of these provisions. Continue reading →
Posted inCell phones, Particularity|Comments Off on D.Kan.: Standard govt cell phone search protocol violates particularity requirement and results in a general search
A Border Patrol agent in El Paso shot and killed a young man in Mexico who was playing with his friend, running down and touching the border fence and running back. The friend was lucky and captured; Hernandez was shot in the face without ever setting foot in the U.S. His estate sued the government and the shooter. The Fifth Circuit concludes that there is no extraterritorial Fourth Amendment Bivens claim, but there is a Fifth Amendment due process claim for the shooting. The FTCA and other claims are denied as well. Hernandez v. United States, 2014 U.S. App. LEXIS 12307 (5th Cir. June 30, 2014):
Finally, we address the practical obstacles and other functional considerations extraterritorial application would present. We recognized some of the practical concerns already: the national interest in self-protection; the constant need for surveillance, often with advanced technologies; and concerns over varying degrees of reasonableness depending on an agent’s location at any given time. While these practical concerns counsel against the Fourth Amendment’s application, they do not carry the same weight in the Fifth Amendment context because different standards govern the respective claims. Continue reading →
Posted inDue process|Comments Off on CA5: Border Patrol agent could be sued in federal court for shooting a kid across the border in Mexico
Federal and state law enforcement entities across the country are using a powerful cell phone surveillance tool commonly referred to as a “StingRay.” These devices are capable of locating a cell phone with extraordinary precision, but to do so they operate in dragnet fashion, scooping up information from a target device, as well as otherwireless devices in the vicinity. In addition, these devices can be configured to capture the content of voice and data communications. Although the federal government has been using these devices since at least 1995, and use by state and local governments is quite widespread, there are only a handful of published opinions addressing their use.
Posted inCell phones|Comments Off on ACLU: STINGRAYS: The Most Common Surveillance Tool the Government Won’t Tell You About (Download)
The FBI conducts a “substantial” number of warrantless queries for Americans’ e-mails and phone calls in a special database of intercepted communications, but it does not track exactly how often, an intelligence official said in a letter released Monday.
Posted inNational security|Comments Off on WaPo: Officials release data on ‘backdoor’ searches
Officers had reasonable suspicion to conduct a patdown of the defendant. Even if they didn’t, a bail condition of his would have permitted it. United States v. Drane, 2014 U.S. Dist. LEXIS 88729 (D. N.H. June 30, 2014): Continue reading →
New Mexico adopts the Greenwood dissent and holds that there is a reasonable expectation of privacy in trash left out for collection in an opaque bag, even in a communal dumpster. City ordinances on trash collection help create the expectation of privacy by regulating it. State v. Crane, 2014 N.M. LEXIS 245 (June 30, 2014): Continue reading →
ARIVACA, Ariz. — Every time Jack Driscoll drives the 32 miles from this remote outpost in southeastern Arizona to the closest supermarket, or to doctor’s appointments, or to a pharmacy to fill his prescriptions, he must stop at a Border Patrol checkpoint and answer the same question: “Are you a U.S. citizen?”
Sometimes, Border Patrol agents ask where he is going or coming from, the type of car he is driving, what is in that bag on the back seat or what brings him to these parts, even though he has lived here for more than a year. Lately Mr. Driscoll, a 75-year-old retired highway construction engineer, has taken to opening his window just a crack and yelling, “I’m American,” as he stops at the checkpoint, one of the ways he has found to protest.
He is not the only one in this community of 800 whose anger is boiling over. …
Posted inBorder search|Comments Off on NYT: Border Patrol Scrutiny Stirs Anger in Arizona Town
There was no Fourth Amendment violation from an officer coming into defendant’s hospital room to talk to him because it wasn’t a search. Even so, defendant consented to the officer’s presence. United States v. John, 2014 U.S. Dist. LEXIS 86369 (D. Ariz. June 24, 2014).*
There was probable cause for defendant’s stop and search incident to his arrest based on the detailed and corroborated information from the CI. His admissions led to a search warrant for his home. The trial court’s finding of no probable cause is reversed. People v. Nguyen, 2014 Mich. App. LEXIS 1213 (June 24, 2014).*
Posted inProbable cause, Warrant requirement|Comments Off on D.Ariz.: Police merely entering a hospital room to talk is not a “search”
A 4 a.m. knock-and-talk violated the implied license of curtilage, even though the officers did not identify themselves as officers at first. [Excellent discussion of Jardines curtilage and implied license to a 4 a.m. visit by anybody.] United States v. Lundin, 2014 U.S. Dist. LEXIS 88058 (N.D. Cal. June 26, 2014):
3. Conclusion
Although the purpose and timing of the officers’ visit were both inconsistent with a “knock and talk,” there is some evidence that pushes the other way. For example, officers did not identify themselves as police, and did not “demand that the occupants open the door.” United States v. Winsor, 846 F.2d 1569, 1573, n. 3 (9th Cir. 1988) (en banc); see also Cormier, 220 F.3d at 1109 (holding a “knock and talk” reasonable because, inter alia, the officer “never announced that she was a police officer while knocking nor did she ever compel Cormier to open the door under the badge of authority,” and “[b]ecause there was no police demand to open the door”). The officers also only knocked twice, and were not “unreasonably persistent in … [their] attempt to obtain access to” the resident of the dwelling. Cormier, 220 F.3d at 1109 (citing U.S. v. Jerez, 108 F.3d 684, 691-92 (7th Cir. 1997)).
But while these facts might tip the balance in a closer case, here they are insufficient to render the officers’ 4:00 a.m. visit constitutional. By entering onto Lundin’s curtilage at four in the morning for the purpose of locating him to arrest him, the officers engaged not in a lawful “knock and talk” but rather in a presumptively unreasonable search. Since the government has not demonstrated that any exception to the warrant requirement applies, the search was unconstitutional. Continue reading →
Posted inUncategorized|Comments Off on N.D.Cal.: 4 a.m. knock-and-talk violated the implied license of curtilage
The Indiana resisting law enforcement statute has to be construed to require the order to stop be lawful and be based on reasonable suspicion or probable cause. On its face, it requires a person to stop even for unlawful orders, and that condones Fourth Amendment violations to be litigated after the fact. Construing it this way preserves its constitutionality under the Fourth Amendment. Gaddie v. State, 2014 Ind. LEXIS 516 (June 27, 2014):
The Fourth Amendment to the United States Constitution provides that the right of the people to be secure in their persons against unreasonable search and seizure shall not be violated. U.S. CONST. amend. IV. At minimum, the government’s seizure of a citizen must rest on specific, articulable facts that lead an officer to reasonably suspect that criminal activity is afoot. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889, 911 (1968). The Supreme Court in Terry stressed that it had “always recognized” that:
No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.
Posted inUncategorized|Comments Off on IN: The resisting law enforcement statute has to be construed to require the order to stop be lawful and be based on RS or PC
There is no reasonable expectation of privacy in one’s IP address from discovery by the government. Here, it was by the use of a packet sniffer. Also, the software’s terms of service might create a subjective expectation of privacy, but they wouldn’t create one that society would find was reasonable. United States v. Hagood, 2014 U.S. Dist. LEXIS 88076 (N.D. Cal. June 26, 2014): Continue reading →
Facebook is locked in a legal battle over a court ruling that forced the site to hand over data from almost 400 profiles to authorities. The social media site argues the decision is unconstitutional and violates the Fourth Amendment.
Last summer, a New York court ordered Facebook to release data from the accounts of 381 people, who were suspected of being involved in a disability fraud case. The information included photos, private messages and other data.
The social media platform had previously been unable to go public about their legal struggle against the “largest data request” by a government body because of a court gagging order. However, Chris Sonderby, Facebook Deputy General Counsel published a blog post on Thursday speaking out about the case after a New York judge granted permission to go public.
Posted inInformational privacy|Comments Off on RT.com: Facebook fighting against ‘largest ever’ govt data request in court
“As an out of possession landlord and–subsequently–a former landlord, Mr. Walker would not have any expectation of privacy in any rental property he owned. That expectation of privacy would belong to the tenants at 637 Clymer Street. Further, Mr. Walker did not even own the property during the time in question.” Walker v. City of New Castle, 2014 Del. Super. LEXIS 307 (June 23, 2014).
Defendant consented to a search of his cell phone apparently as an act of cooperation. The district court did not clearly err in finding consent. United States v. Garrett, 2014 U.S. App. LEXIS 12184 (7th Cir. June 26, 2014).*
When the door to defendant’s hotel room was opened, his dive toward the floor was exigent circumstances where they already suspected he was armed. State v. Peck, 2014-Ohio-2820, 2014 Ohio App. LEXIS 2760 (2d Dist. June 27, 2014).
Officers came to a house looking for a man and had a description. They knocked and were leaving when the door opened and a man matching the description opened the door with what officers thought was a gun in hand. He saw the officers and shut and locked the door. Then there was a commotion inside. Officers entered without a warrant, and the trial court credited the one officer, the only witness, who testified that there was exigency. “He then heard commotion from which he concluded that that someone inside the house had been harmed or was at risk of harm.” [The defense called this “dubious,” but there wasn’t anything to contradict it.] State v. Berg, 2014-Ohio-2745, 2014 Ohio App. LEXIS 2697 (9th Dist. June 25, 2014).*
Posted inEmergency / exigency|Comments Off on OH2: Dive to floor on opening door was exigency
Plaintiff was a jail guard, and he was prosecuted for assaulting an inmate. Two years after the prosecution started he won. It was determined that the basis for the arrest was on knowing use of false evidence that he did not act in self-defense, so plaintiff stated a claim for false arrest and malicious prosecution. The statute of limitations started with the dismissal of the underlying case. Amobi v. D.C. Dep’t of Corr., 2014 U.S. App. LEXIS 12117 (D.C. Cir. June 27, 2014): Continue reading →
A child pornography warrant was not overbroad as to the computers and a Dropbox account. Even it if was, the offending portion would be severed. Here, nothing was seized under the allegedly overbroad phrase. And, even if it was, the good faith exception would apply. United States v. Darbouze, 2014 U.S. Dist. LEXIS 87059 (S.D. Fla. May 30, 2014): Continue reading →
WaPo: How accurate are historical cell-site records? by Orin Kerr:
Not very accurate, says Douglas Starr over at The New Yorker. An excerpt: If I make a cell call from Kenmore Square, in my home town of Boston, you might think that I’m connecting to a cell site a few hundred feet away. But, if I’m standing near Fenway Park during a Red Sox game, […]
If I make a cell call from Kenmore Square, in my home town of Boston, you might think that I’m connecting to a cell site a few hundred feet away. But, if I’m standing near Fenway Park during a Red Sox game, with thousands of fans making calls and sending texts, that tower may have reached its capacity. Hypothetically, the system might send me to the next site, which might also be at capacity or down for maintenance, or to the next site, or the next. The switching center may look for all sorts of factors, most of which are proprietary to the company’s software. The only thing that you can say with confidence is that I have connected to a cell site somewhere within a radius of roughly twenty miles.
Posted inCell phones|Comments Off on WaPo: How accurate are historical cell-site records?
In confidential legal documents unsealed on Wednesday, Facebook argues that Manhattan prosecutors last summer violated the constitutional right of its users to be free of unreasonable searches by demanding nearly complete account data on 381 people, ranging from pages they had liked to photos and private messages.
"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.
