Riley v. California: A search warrant is generally required for search of a cell phone. The search incident justifications do not apply to the wealth of personal information that likely will be there. Riley v. California, 2014 U.S. LEXIS 4497, 2014 WL 2864483 (June 25, 2014) (United States v. Wurie consolidated) (9-0, opinion by C.J. Roberts):
In No. 13–132, petitioner Riley was stopped for a traffic violation, which eventually led to his arrest on weapons charges. An officer searching Riley incident to the arrest seized a cell phone from Riley’s pants pocket. The officer accessed information on the phone and noticed the repeated use of a term associated with a street gang. At the police station two hours later, a detective specializing in gangs further examined the phone’s digital contents. Based in part on photographs and videos that the detective found, the State charged Riley in connection with a shooting that had occurred a few weeks earlier and sought an enhanced sentence based on Riley’s gang membership. Riley moved to suppress all evidence that the police had obtained from his cell phone. The trial court denied the motion, and Riley was convicted. The California Court of Appeal affirmed.
In No. 13–212, respondent Wurie was arrested after police observed him participate in an apparent drug sale. At the police station, the officers seized a cell phone from Wurie’s person and noticed that the phone was receiving multiple calls from a source identified as “my house” on its external screen. The officers opened the phone, accessed its call log, determined the number associated with the “my house” label, and traced that number to what they suspected was Wurie’s apartment. They secured a search warrant and found drugs, a firearm and ammunition, and cash in the ensuing search. Wurie was then charged with drug and firearm offenses. He moved to suppress the evidence obtained from the search of the apartment. The District Court denied the motion, and Wurie was convicted. The First Circuit reversed the denial of the motion to suppress and vacated the relevant convictions.
Held: The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. Pp. 5–28. Continue reading →
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Defendant was on a moped with another, and they were stopped at a sobriety checkpoint. The registration was years out of date, and they were directed aside for a more intense review. Defendant’s cigarette pack aroused suspicion because of the way he handled it after emptying his pockets shuffling it to his co-passenger, and its search revealed methamphetamine. Because it was a potentially custodial arrest situation, defendant’s search was valid as an inventory under inevitable discovery if not a search incident. “¶ 28 … Here, the search of the cigarette pack falls within the SITA exception’s scope because the pack could have contained a weapon, such as a razor blade or a pocketknife.” Commonwealth v. Fu Zhu Lin, 2014 MP 6, 2014 N. Mar. I. LEXIS 11 (June 25, 2014).
An inventory or automobile exception search can include the air filter container under the hood. United States v. Ball, 2014 U.S. Dist. LEXIS 85381 (N.D. Iowa June 24, 2014).
Because defendant wasn’t a sex offender or involved with contraband, a supervised released search condition of searches without reasonable suspicion was unreasonable. United States v. Farmer, 755 F.3d 849 (7th Cir. 2014):
“[W]e are … at a loss to see how this broad search and seizure authority is connected to [Farmer’s] offense, history, and personal characteristics, or how it is reasonably necessary to furthering the deterrence, public protection, and rehabilitative goals articulated in 18 U.S.C. § 3583(d)(2).” Goodwin, 717 F.3d at 523. The record does not indicate that contraband played any role in Farmer’s current or past offenses. “Although we stop short of stating that such restrictions could never be appropriate in these circumstances, our skepticism leads us to conclude that the district court must provide some justification for these particular conditions.” Id. The error here is not harmless, because the consistency of this condition with the statutory sentencing factors is far from plain: it is difficult to identify how this search condition is reasonably related to the nature of the offense, the characteristics of the defendant, or the need to deter, protect the public, or provide the defendant with rehabilitation. See 18 U.S.C. §§ 3583(d)(1), 3553(a); cf. Siegel, 2014 WL 2210762 at *7 (holding that a district court that did not give reasons for a condition it was imposing committed harmless error if “[t]he consistency of that condition with the statutory sentencing factors is plain, given the nature of [the underlying] crime”).
Accordingly, we vacate this condition of supervised release and remand for further consideration consistent with this opinion.
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The driver of the car was male, and he granted consent to search the car. It was unreasonable for the officer to believe that that consent extended to the woman passenger’s purse. State v. Daniels, 2014 ND 124, 2014 N.D. LEXIS 123 (June 24, 2014):
[¶18] In this case, the purse belonged to Daniels. According to testimony given at the evidentiary hearing, the driver never had permission to use Daniels’ purse, and Daniels never gave the driver authority to consent to a search of her purse. Thus, the driver had no actual authority, either exclusive or common authority, over the purse. Further, the deputy testified that he saw Daniels retrieve her identification “[f]rom her purse.” The deputy knew that Daniels had been sitting in the front passenger’s seat. When conducting his search, the deputy found Daniels’ purse on the floorboard in front of the passenger’s seat, where Daniels had been sitting. It was not just a possibility that the purse belonged to someone other than the driver; the deputy knew the purse belonged to Daniels.
[¶19] Based on these facts, we conclude no reasonable person would have understood the driver’s consent to the search of the vehicle to extend to a purse left in the vehicle, which the officer knew belonged to a third party. It would have been objectively reasonable for the deputy to obtain Daniels’ consent to search the purse. Although this requirement may pose an additional burden to law enforcement searching vehicles under the consent exception to the search warrant requirement, it is a justified burden. A warrantless search based solely on consent pits fundamental constitutional protections against an utter lack of legal justification for the search. It is expedient to narrow the scope of such searches and to require additional consent to search constitutionally protected areas that a reasonable person would understand did not fall within the scope of the original consent.
Posted inConsent, Scope of search|Comments Off on ND: Male driver’s consent doesn’t extend to female passenger’s purse in a car
“[¶24] As discussed, an individual’s consent is not coerced simply because an administrative penalty has been attached to refusing the test or that law enforcement recites that law to the driver. Here, examining the totality of the circumstances at the time McCoy agreed to take the chemical breath test, nothing exists in the record to support a claim that McCoy’s actual consent was involuntary, in that no evidence shows McCoy’s consent was the product of coercion by the officer. The record does establish that the officer read McCoy the implied consent advisory and asked McCoy to take a chemical test and that McCoy, when presented with the choice of either ratifying or withdrawing his implied consent, agreed to take the test.” McCoy v. N.D. DOT, 2014 ND 119, 2014 N.D. LEXIS 134 (June 24, 2014),* followed in Herrman v. N.D. DOT, 2014 ND 129, 2014 N.D. LEXIS 127 (June 24, 2014)*, State v. Smith, 2014 ND 152, 2014 N.D. LEXIS 162 (July 17, 2014), and State v. Boehm, 2014 ND 154, 2014 N.D. LEXIS 158 (July 17, 2014).
Defendant was not in custody in the hospital when he confessed. He had the option of not talking to the officers, and he agreed to. State v. Rogers, 2014 ND 134, 2014 N.D. LEXIS 131 (June 24, 2014).*
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That’s how one Fourth Amendment expert describes the manner in which search warrants were executed in a politically charged John Doe investigation into dozens of conservative groups.
“It seems to me somewhat absurd if what (investigators) were looking for were campaign finance violations,” Robert M. Bloom, professor of law at Boston College Law School, said of the predawn searches and seizures at the homes of targeted conservatives in a nearly two-year-old probe critics say is rife with civil rights violations.
UNREASONABLE SEARCH? A civil right lawsuit against prosecutors in a politically charged John Doe investigation has raised serious Fourth Amendment questions about raids on homes of conservative targets.
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“Cell phones and firearms are generally considered the ‘tools of the trade’ of drug traffickers, which the involved detectives fully understood and conveyed to the magistrate judge. … United States v. Jones, Cr. 2009 U.S. Dist. LEXIS 54575 (E.D. Pa. Jun. 26, 2009).” The affidavit for the search warrant for the cell phones where showed nexus to defendant’s alleged criminal activity of arranging drug deals. Also, the officer’s affidavit was in the nature of “expert-type” testimony about drug trafficking and cell phones, but it could be credited for a search warrant application. United States v. Gorny, 2014 U.S. Dist. LEXIS 84807 (W.D. Pa. June 23, 2014).
The officer here had reasonable suspicion to stop and detain defendant at 3 am after a car crash where ammunition was seen in the car suggesting the fleeing occupants were armed. One was described as having a white shirt and a blue hoodie. A man with a white shirt (a hoodie being easily discarded) was seen in the vicinity who acted suspiciously on seeing the police car. United States v. Quinn, 2014 U.S. Dist. LEXIS 85821 (W.D. Mo. May 15, 2014).*
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PORTLAND, Ore. — The U.S. government offers no adequate method for people to challenge their placement on its no-fly list, a federal judge ruled Tuesday in a case involving 13 Muslims who believe they’re on the list.
U.S. District Court Judge Anna Brown found people lack a meaningful way to challenge their placement on the list, and the 13 people who sued the government have been unconstitutionally deprived of their right to fly.
WASHINGTON — In two major Federal District Court rulings addressing trade-offs between government powers and individual rights, judges in Oregon on Tuesday upheld a 2008 law permitting warrantless surveillance but struck down a key aspect of the so-called no-fly list that blocks people suspected of terrorism ties from boarding planes.
The rulings were handed down on Tuesday afternoon at the same federal courthouse in Portland. Each resonated with the recurring theme of how to balance civil liberties and national security. But the outcomes, each of which may be appealed, cut in opposite directions.
No-fly list case: Latif v. Holder, 2014 U.S. Dist. LEXIS 85450 (D.Ore. June 24, 2014).
Warrantless surveillance case: United States v. Mohamud, 2014 U.S. Dist. LEXIS 85452 (D.Ore. June 24, 2014).
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A woman called police to report a Peeping Tom, but not the traditional kind. She says a drone was looking into her downtown Seattle apartment window at Stewart Street and Terry Avenue, and the people operating it had camera equipment.
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The Federal Aviation Administration restricted the unauthorized use of model aircraft and small drones near airports in a new interpretation of existing federal rules that was released Monday.
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“The United States of America (the ‘Government’) allege that Defendant Terry S. Johnson, in his official capacity as Sheriff of Alamance County, North Carolina, engaged in a pattern or practice of discriminatory law enforcement activities directed against Latinos, in violation of the Fourth and Fourteenth Amendments to the U.S. Constitution.” The government’s Fourteenth Amendment claim survives summary judgment; its Fourth Amendment claim is dismissed, including roadblocks. United States v. Johnson, 2014 U.S. Dist. LEXIS 84552 (M.D. N.C. June 20, 2014).*
The officer had probable cause to stop defendant’s vehicle because of something hanging underneath. Once stopped, it seemed like it was related to drug trafficking as part of a hidden compartment or trapdoor. Defendant’s consent to search was all encompassing, and there’s nothing to show that it wasn’t voluntary. United States v. Garcia, 2014 U.S. Dist. LEXIS 85171 (E.D. Ark. June 23, 2014).*
Defendant was seen surreptitiously photographing a young girl in a grocery store, and store employees called the police. The stop as he came outside the store was with reasonable suspicion. United States v. Vargas, 2014 U.S. Dist. LEXIS 84625 (D. P.R. June 18, 2014).*
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A search warrant that was specific but covered virtually the entire contents of a cell phone was not overbroad where the phone was alleged to be used in drug dealing because it would all be potential evidence. The good faith exception would also apply. United States v. Gorny, 2014 U.S. Dist. LEXIS 84807 (W.D. Pa. June 23, 2014):
Here, the challenged warrants authorized the search of “information stored within the body of the phone to include, but not limited to, the telephone number, direct connect number, carrier IP number, voice mail contents, incoming and outgoing text and picture messages, phonebook contents or contact list, incoming and outgoing call information, as well as any photos or videos.” … In this Court’s opinion, the warrants were not overbroad and suppression is not appropriate under this theory. Again, the detectives were aware that Gorny used cell phones to conduct drug deals and through their considerable experience investigating narcotics traffickers, the detectives understood the areas of cell phones where evidence of drug trafficking likely would be found, which included the areas set forth in the warrants for the two cell phones in this case. … Specifically, the detectives averred that:
Your affiants know that drug buyers and drug dealers alike store the phone numbers of other individuals involved in drug trafficking in their phones. Your affiants know that drug buyers and drug dealers use text messaging to arrange transactions. Your affiants have seen incidents where individuals involved with illegal narcotics have taken cell phone photographs and videos of illegal narcotics. Your affiants know that a cell phone is often a needed tool for individuals involved with buying and selling illegal narcotics.
… Accordingly, the Court finds that the scope of the warrants was not overbroad.
Posted inCell phones, Overbreadth|Comments Off on W.D.Pa.: SW for entire contents of cell phone was not overbroad in a drug case
Defendant has no standing to challenge the [consent] search of a cell phone of another person even though that cell phone was in his place where he would otherwise have a reasonable expectation of privacy. This case started with a 911 call over a battered child, and defendant made damaging and incriminating text messages to the mother of the child. It doesn’t matter that there’s an identical copy of the text messages on defendant’s phone, too, because he willingly sent them out, thereby losing control of them. State v. Patino, 2014 R.I. LEXIS 99 (June 20, 2014):
We hold, therefore, that defendant’s reasonable expectation of privacy in the text messages contained in Oliver’s phone, whether sent from or received by that phone, does not extend to the messages contained on another’s phone, despite the fact that there exists an identical copy of the messages on the challenger’s phone. As iterated above, this is chiefly due to control; a cell phone user retains control over what becomes of the content on his or her phone, but entirely loses control of the messages contained on the phone of another. When applied to the case at hand, therefore, we conclude that defendant had no reasonable expectation of privacy, and thus no standing to challenge the search and seizure of Oliver’s LG phone, its contents, and all derivatives therefrom.
Seeking to speed up government rule-making about the use of drones in newsgathering, CNN and the Georgia Institute of Technology said Monday that they would jointly study how to operate unmanned aerial vehicles (UAVs) safely and effectively.
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Drone use is becoming an issue as the unmanned aircraft become more popular, especially as a way for hobbyists to create videos. YouTube is filled with drone videos taking in the views of Yosemite, prompting rangers last month to issue a public notice saying the machines are banned. At the Grand Canyon recently, a drone crashed, stunning visitors who were there to take in the sunset.
Posted inDrones|Comments Off on LAT: As hobby drone use increases, so do concerns about privacy, security
A federal appeals court on Monday released a previously secret memo that provided legal justification for using drones to kill Americans suspected of terrorism overseas.
The memo concluded that the killing of an al-Qaida leader who had been born in the United States had legal justification. It said the authority to use lethal force abroad may apply in appropriate circumstances to a U.S. citizen who is part of the forces of an enemy organization. It said the killing was justified as long as it was carried out in accord with applicable laws of war.
The memo is here. Page 41 concludes that the Fourth Amendment seizure of a person by killing him under the circumstances presented would be reasonable under Garner and Scott.
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SCOTUS has four opinion days left this Term. And, of course, still pending are the two cell phone search cases argued April 29th: Riley v. California and United States v. Wurie. They are highly significant privacy cases, and certainly all the news outlets will have the decisions as soon as they come down. I’m in court on Monday, so I might be late with it.
Posted inCell phones|Comments Off on Four SCOTUS opinion days left this Term: today, 25th, 26th, 30th–cell phone warrant cases still pending
Defendant first gave express consent and then led them through the house. Defendant’s mother’s consent was also voluntary and she was warned by the consent form that she could refuse the search. Once officers were inside, defendant’s making a “bee line” for the kitchen and stuffing things in his pockets justified his patdown for officer safety. Marijuana and baggies were also in plain view. McIlquham v. State, 2014 Ind. LEXIS 513 (June 20, 2014).
Defendant’s parole officer had reasonable grounds defendant wasn’t abiding by the terms of parole when he entered defendant’s home. State v. Agbohla, 2014-Ohio-2659, 2014 Ohio App. LEXIS 2596 (10th Dist. June 19, 2014).*
There was reasonable suspicion for defendant’s traffic stop, and the specific arguments he makes on appeal weren’t the arguments he made in the trial court, so they’re waived. State v. Connelly, 2014-Ohio-2688, 2014 Ohio App. LEXIS 2636 (6th Dist. June 20, 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.
