Congress passed 42 U.S.C. § 14141 in an effort to combat police misconduct and incentivize proactive reform in local law enforcement agencies. The statute gives the U.S. Attorney General the power to initiate structural reform litigation against local police departments engaged in a pattern or practice of unconstitutional behavior. While academics initially praised the law’s passage, many have since worried that the Department of Justice (DOJ) has not effectively administered the measure. Little research has analyzed how the DOJ has used its authority to initiate structural police reform. Using a combination of qualitative and quantitative methods, I fill this gap in the available literature by detailing the DOJ’s use of structural police reform over time. I conclude that the DOJ has historically underenforced § 14141, due in part to resource limitations that prevent the agency from aggressively pursuing all reported cases of systemic misconduct. I also show that the DOJ has unevenly enforced § 14141 over time. Changes in leadership and internal policies have influenced the DOJ’s use of structural police reform. These changes affected both the breadth and depth of enforcement. In some cases where systemic police misconduct did appear to exist, a phenomenon I refer to as “political spillover” deterred the DOJ from turning to structural police reform. Based on these findings, I argue that the DOJ must adopt a more transparent internal case selection process that incentivizes proactive reform in local police agencies. And given the resource limitations facing the DOJ in enforcing § 14141, I contend that state and national policymakers should seek alternative routes to increase the number of structural police reform cases. Combined, these changes could ensure that structural police reform lives up to its potential as a transformative tool for combatting police wrongdoing.
[Law review articles are reviewed by Prof. Andrew G. Ferguson, UDC School of Law.]
Posted inPolice misconduct|Comments Off on New Law Review Article: Federal Enforcement Of Police Reform
Defendant’s backdoor was the common method of coming and going from his house, so the police did not violate curtilage by going to the back door. In defendant’s car in the driveway, however, was evidence from a burglary in plain view. There was probable cause to get a warrant for the car, and curtilage wasn’t violated. Cupe v. State, 2014 Ga. App. LEXIS 396 (June 19, 2014).
Under Texas law, ICE officer can make felony and misdemeanor arrests, and an off-duty ICE officer made a stop. “Facts known to Stone raised a potential for drug activity or criminal acts against children or law enforcement—felony offenses under Texas law—thus Stone, as a special investigator, had the powers of arrest, search, and seizure as to such felony offenses.” Guerra v. State, 2014 Tex. Crim. App. LEXIS 894 (June 18, 2014), aff’g Guerra v. State, 396 S.W.3d 233 (Tex. App.—Eastland 2013).*
Posted inArrest or entry on arrest, Curtilage|Comments Off on GA: Where backdoor is the one always used, it doesn’t violate curtilage for officers to go to backdoor
Ordering defendant out of his house for a FST was a “stop” and detention under the state constitution because it was a show of authority. State v. Charles, 263 Or. App. ___, 2014 Ore. App. LEXIS 804 (June 18, 2014).
“An administrative seizure, too, must be ‘specifically authorized’ by law. Unlike with inventory searches, police are allowed to use discretion when deciding whether to carry out an administrative seizure.” If a criminal search will follow, the administrative seizure is invalid, and that happened here. State v. Lambert, 263 Or. App. 683, 328 P.3d 824 (2014),* reconsideration granted State v. Lambert, 2014 Ore. App. LEXIS 1322 (October 1, 2014)* and posted here.
The particularity question was not preserved for appellate review where the suppression motion dealt almost entirely with whether the warrant should have issued under Franks v. Delaware. Rawls v. Commonwealth, 2014 Ky. LEXIS 241 (June 19, 2014).
Plaintiff was stopped for speeding and “perceived inconsistencies” in her story led to a request to search, her refusal, and then her two hour detention, drug dog and car search. No drugs were found. There was no probable cause for the car search, and one officer’s saying he had it didn’t immunize the other. That doesn’t make out a “good faith” defense. The statements that were allegedly false wasn’t enough either. Felders v. Malcom, 2014 U.S. App. LEXIS 11627 (10th Cir. June 20, 2014).*
Plaintiff’s suit against the police is both time barred and barred by Heck v. Humphrey. His suit against the judge and prosecutor are barred by absolute immunity. Jackson v. City of Erie Police Dep’t, 2014 U.S. App. LEXIS 11636 (3d Cir. June 20, 2014).*
Plaintiff was seen by an identified motorist waving a gun while he was driving, and she made it clear it wasn’t pointed at anybody in particular and didn’t know if it was real. The officer found plaintiff and detained him and found Airsoft replica guns. He was cited for disorderly and released, and the disorderly was ultimately dismissed. The officer gets qualified immunity because there was probable cause for the detention and citation. Gibbs v. Lomas, 2014 U.S. App. LEXIS 11688 (7th Cir. June 17, 2014).*
Backed by Google Inc. and other technology organizations, the House on Friday sent to the Senate legislation that would restrict National Security Agency ‘backdoor’ access to user data gathered through digital devices and services. Lawmakers are also seeking to compel intelligence agencies to get a warrant to search for personal data.
Posted inUncategorized|Comments Off on NLJ: Shutting NSA ‘Backdoor’ Access to User Data
Is the Wilmington Police Department using spy gear to trick your cell phone into giving away private info? That’s what the ACLU and New Hanover County’s Public Defender believe. The device, called StingRay, lets police turn cell phones into tracking devices sending officers right to who they are looking for, but it might violate your rights.
Posted inCell phones|Comments Off on WWAY ABC Wilmington: Investigation claims WPD uses spy gear to snoop on citizens
With the Border Patrol distracted by a surge of Central American migrants crossing into south Texas, Mexican cartels have had an easier time smuggling illegal drugs across the border, according to agents and state officials here.
Posted inBorder search|Comments Off on WaPo: Drug seizures down as migrant flow rises
Los Angeles law enforcement agencies’ attitude towards surveillance has usually been, ‘sure, why not?’ Whatever L.A. law enforcement can’t collect with Stingray devices or secretly-deployed aircraft carrying clusters of high-powered cameras, it hopes to obtain with crowd-sourced surveillance apps and predictive policing. (This is only true of public-facing surveillance, however. Recording devices targeting officers have been tampered with, removed and deliberately broken.)
Posted inDrones|Comments Off on techdirt: City Of Seattle Finds New Police Drones Might Be Too Invasive; Los Angeles Police Say, ‘Hey, We’ll Take Them!’
Commercial drone flights are set to become a widespread reality in the United States, starting next year, under a 2012 law passed by Congress. Drone flights by law enforcement agencies and the military, which already occur on a limited basis, are projected to surge. The documents obtained by The Post detail scores of previously unreported crashes involving remotely controlled aircraft, challenging the federal government’s assurances that drones will be able to fly safely over populated areas and in the same airspace as passenger planes. Military drones have slammed into homes, farms, runways, highways, waterways and, in one case, an Air Force C-130 Hercules transport plane in midair. No one has died in a drone accident, but the documents show that many catastrophes have been narrowly averted, often by a few feet, or a few seconds, or pure luck.
Posted inDrones|Comments Off on WaPo: When drones fall from the sky
I’ve been thinking more about the Eleventh Circuit’s decision last week in United States v. Quartavious Davis holding that the Fourth Amendment protects historical cell-site records. The more I think about Davis, the more radical a reinterpretation of the Fourth Amendment it seems to be. If we take its analysis seriously, I’m not sure I know what police investigations are still constitutional. In this post, I’ll explain why.
Posted inCell phones|Comments Off on WaPo: The Eleventh Circuit’s novel approach to the Fourth Amendment in the Davis case
In an unusual display of unity from the divided, do-nothing House, a bipartisan group of lawmakers pushed through a bill that basically says, yes, the Fourth Amendment applies to electronic communications, too.
The measure, whose chief sponsors are Jim Sensenbrenner, Republican of Wisconsin, Zoe Lofgren, Democrat of California, and Thomas Massie, Republican of Kentucky, passed by a vote of 293-to-123 late Thursday night. It bars the National Security Agency, the Central intelligence Agency and other spy agencies from examining without a warrant Americans’ emails and other communications that were swept up into databases created to target foreigners.
Posted inFISA|Comments Off on NYT Editorial: The House Actually Did Something About Warrantless Surveillance
To execute any search or seizure, a police officer must reasonably suspect that a crime has been or is being committed based on the facts available to him at the time he executes the search or seizure. Under this standard, searches can be lawful even if the officer is mistaken in his understanding of the facts before him, as long as his understanding led him to reasonably suspect criminal activity. But what if the officer is mistaken about whether a particular activity is actually criminal?…In a brief filed jointly with the National Association of Criminal Defense Lawyers, the ACLU, and the ACLU of North Carolina, Cato argues that the approach taken by the North Carolina Supreme is inconsistent with the logic that applies to factual mistakes committed by law enforcement and erodes civil liberties, all while undermining police authority and safety.
The ruling is a victory for the de Blasio Administration, a defeat for the former Bloomberg Administration, a triumph for civil rights groups and a setback for police unions and law enforcement advocates who claim the controversial measure will undermine public safety.
Posted inStop and frisk|Comments Off on NYLJ: Judge Rejects Suit by Police, Upholds Anti-Profiling Law
Defendant was a guest of a guest in a hotel room, and he was an absconder from supervision and had committed a new crime and was on the run. The question of guest standing is discussed at length, and there’s no doubt he was there for a few days with consent of the renter. The court finds, however, that his status as an absconder on the lam is not an expectation of privacy that society is prepared to find as reasonable. Alternatively, there was no reasonable expectation of privacy here because the group had been ejected by the hotel. United States v. Procknow, 2013 U.S. Dist. LEXIS 188029 (W.D. Wis. December 20, 2013).
On wiretaps, defendant, a convicted felon, was heard to be talking about taking two loaded guns to a CVS store parking lot and they’d be hidden under children’s costumes in the back seat. Officers got to the place, and defendant saw them and ran. In the back seat officers could see costumes. “The fact that Defendant ran only reinforced the probable cause to arrest that the officers already had.” While running, he locked the car with the key fob and threw it up on the roof of the CVS. The search of the car was justified under the automobile exception. “Further, while neither party disputes that Defendant threw his keys on the roof of the CVS, the Court notes that in discarding his keys into the public domain, Defendant may have forfeited any privacy interest he had in his vehicle or the contents therein, and in fact his actions indicate an intent to distance himself from the car.” United States v. Payne, 2014 U.S. Dist. LEXIS 83334 (N.D. Ill. June 19, 2014).*
The stop of defendant was based on the officer’s observations and the totality of circumstances. Its continuation was reasonable under the circumstances and largely extended because of defendant’s moving around in the car which the officer took as excessive nervousness and potentially concealing drugs or a firearm. United States v. Coker, 2014 U.S. Dist. LEXIS 83743 (E.D. Tenn. January 6, 2014).*
A gun was found in a backpack of defendant chased by the police fleeing from an arrest. There was no ground shown for search incident of the backpack. The state did not rely on possible presence of drug evidence in the backpack in the trial court. “[S]ince the People did not rely on that theory at the suppression hearing, and the hearing court did not address the theory, the People may not raise it for the first time on appeal.” People v. Thompson, 2014 NY Slip Op 04524, 2014 N.Y. App. Div. LEXIS 4445 (2d Dept. June 18, 2014).
Defendant gave consent to search a car that he couldn’t show standing in as an alleged owner; there was no paperwork of ownership. State v. Hindman, 2014 Mo. App. LEXIS 685 (Mo. App. June 17, 2014).*
Defendant’s flight from his vehicle on foot is a waiver of standing. United States v. Cox, 2014 U.S. Dist. LEXIS 82476 (D. Minn. May 19, 2014).*
Posted inSearch incident, Standing|Comments Off on NY2: State waived ground for search incident by not arguing it in the trial court
Although the state didn’t raise standing below, it gets to based on the theory of “affirming on any ground shown by the record.” The record here showed no standing in the defendant’s grandfather’s house where he was running a meth lab. Alternative to the standing argument, the entry was justified under the exigency of a working meth lab. Hawley v. Commonwealth, 2014 Ky. App. LEXIS 102 (June 13, 2014). [Note that Steagald v. United States (1981) holds that acquiescing in standing bars the prosecution from arguing against it on appeal.]
Defendant was asleep on his porch and an officer approached. There is an implied license to approach a person on his porch in public, and the entry onto the porch to talk to defendant didn’t violate Jardines. Maloney v. Commonwealth, 2014 Ky. App. LEXIS 101 (June 13, 2014).
Speeding and odor of alcohol is reasonable suspicion. Whether probable cause was shown for the FST hasn’t been decided, so the case is remanded. State v. Mossman, 2014-Ohio-2620, 2014 Ohio App. LEXIS 2560 (10th Dist. June 17, 2014).*
The trial court didn’t abuse its discretion in quashing the subpoena for testimomy from the issuing magistrate because it would add little or nothing to the suppression hearing. State v. McElfresh, 2014-Ohio-2605, 2014 Ohio App. LEXIS 2549 (5th Dist. June 16, 2014).*
The primary officer got another to get a warrant [sounds like a cop show on television: “go get a warrant”] and he executed it. While at the suppression hearing the affidavit wasn’t produced; the good faith exception means no suppression. [Without the affidavit, what about the “so lacking in probable cause” exception of Leon?] United States v. Drift, 2014 U.S. Dist. LEXIS 82635 (D. Minn. June 9, 2014).*
Entry into a woman’s college dorm room was justified by exigent circumstances where the police learned she was missing, didn’t answer her phone, and a man used her key card to get into the dorm and her room. Defendant didn’t have standing in her room when a jacket was seized from him in the room that matched one described by witnesses. Commonwealth v. Copney, 468 Mass. 405 (June 17, 2014).*
An officer on patrol saw a car parked in a driveway that he knew didn’t belong. He ran the LPN and it was not registered to the owner, so he approached the driver and saw him drinking behind the wheel. This was reasonable suspicion of possible DUI. State v. Gasser, 2014-Ohio-2569, 2014 Ohio App. LEXIS 2522 (9th Dist. June 16, 2014).*
The record supports the trial court’s finding that defendant was drifting around her lane and that was reasonable suspicion for a stop. State v. Hiyama, 2014 Tenn. Crim. App. LEXIS 558 (June 17, 2014).*
Defendant was arrested in somebody else’s house and the murder weapon was found with him. He had no standing to challenge the entry and search of the house because he raised nothing showing standing. Lowe v. State, 2014 Ga. LEXIS 495 (June 16, 2014).*
Posted inReasonable suspicion, Standing|Comments Off on OH9: Officer could inquire of car that obviously did not belong in the driveway where it was seen
Defendant’s shirt was lifted by the officer to look for a potential weapon. The court finds here that it was without reasonable suspicion. Considering various federal cases from circuit and district courts, there is a split of authority. The court here finds lifting one’s shirt to be a search requiring probable cause only after a frisk reveals a gun. United States v. Motley, 2014 U.S. Dist. LEXIS 81964 (W.D. Tenn. June 17, 2014): Continue reading →
Posted inProbable cause, Stop and frisk|Comments Off on W.D.Tenn.: Seeing a split of authorities, the court concludes lifting a suspect’s shirt is a search requiring PC
Defendant was pulled over for having no rear bumper. Reasonable suspicion developed for DUI based on the smell of alcohol, but when the officer called for a drug dog, he needed separate reasonable suspicion for that. The first detention and reasonable suspicion didn’t support that. State v. Casey, 2014-Ohio-2586, 2014 Ohio App. LEXIS 2536 (12th Dist. June 16, 2014):
[*P20] However, “if the circumstances give rise to a reasonable suspicion of some other illegal activity, different than that which triggered the stop, then the officer may detain the driver for as long as the new articulable reasonable suspicion exists.” State v. Elliott, 7th Dist. Mahoning No. 11 MA 182, 2012-Ohio-3350, ¶ 18, citing State v. Myers, 63 Ohio App.3d 765, 771, 580 N.E.2d 61 (2d Dist.1990); Grenoble at ¶ 29. The existence of reasonable and articulable suspicion is determined by evaluating the totality of the circumstances “through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.” State v. Popp, 12th Dist. Butler No. CA2010-05-128, 2011-Ohio-791, ¶ 13; see also State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, ¶ 13, 865 N.E.2d 1282.
"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.
