Judges are regularly deciding criminal constitutional issues based on changing societal values. For example, they are determining whether police officer conduct has violated society’s “reasonable expectations of privacy” under the Fourth Amendment and whether a criminal punishment fails to comport with the “evolving standards of decency that mark the progress of a maturing society” under the Eighth Amendment. Yet judges are not trained to assess societal values, nor do they, in assessing them, ordinarily consult data to determine what those values are. Instead, judges turn inward, to their own intuitions, morals, and values, to determine these matters. But judges’ internal assessments of societal standards are likely not representative of society’s morals and values — because judges, themselves, are ordinarily not representative of the communities that they serve. Juries, on the other hand, are constitutionally required to be drawn from a representative cross-section of the community. Further, because juries are composed of several different individuals, they may draw on a broader range of knowledge and expertise in making their decisions. The historically trusted body to protect defendants from an overbearing government, juries, rather than judges, should be the ones empowered to determine these criminal constitutional moral matters.
[Law review articles are reviewed by Prof. Andrew G. Ferguson, UDC School of Law.]
The Obama administration is far behind schedule integrating drones into the national airspace and lawmakers on Capitol Hill are struggling to move legislation governing the craft, but a dozen states already have enacted regulations and laid out in detail how drones can and can’t be used by law enforcement agencies and other entities.
Posted inDrones|Comments Off on Washington Times: States not waiting for feds on drone privacy
A recent neuroscience study from Harvard Medical School claims to have discovered brain differences between people who smoke marijuana and people who do not. Such well-intentioned and seemingly objective science is actually a new chapter in a politicized and bigoted history of drug science in the United States.
The study in question compared magnetic resonance imaging (MRI) scans of 20 “young adult recreational marijuana users” (defined as individuals 18 to 25 who smoke at least once a week but who are not “dependent”), to 20 “non-using controls” (age-matched individuals who have smoked marijuana less than five times in their lives). The researchers reported differences in density, volume, and shape between the nucleus accumbens and amygdala regions of the two groups’ brains—areas hypothesized to affect a wide range of emotions from happiness to fear, which could influence basic decision-making.
Posted inUncategorized|Comments Off on The Atlantic: How Neuroscience Reinforces Racist Drug Policy
Reps. John Conyers (D-Mich.) and Jerry Nadler (D-N.Y.) want to change the law that deprives emails of the Fourth Amendment protections afforded to paper documents. ‘As technology has advanced exponentially, our government has fallen short of upholding and extending [constitutional] privacy protections to the digital space,’ the pair wrote in a Huffington Post op-ed published Friday.
Posted inE-mail|Comments Off on The Hill: Nadler, Conyers tout email privacy reform
The parties in the stop-and-frisk litigation have asked Southern District Judge Analisa Torres (See Profile) to resolve motions to intervene by police unions who oppose a settlement between the plaintiffs and New York City.
Posted inStop and frisk|Comments Off on NYLJ: Parties Ask Judge to Resolve Stop/Frisk Motions
The use of a SWAT team and tactics with 40-50 officers with guns drawn surrounding property to execute a search warrant for business records of an economic crime against the Small Business Administration stated a claim for executing a search warrant in an unreasonable manner for excessive force and publicity. Officers corralled all employees and detained them and confiscated all their cell phones while holding them. While the Eighth Circuit hadn’t yet had a case like this, there are enough other cases like it that the officers were on notice that this was unreasonable in a document search. Mountain Pure LLC v. Roberts, 2014 U.S. Dist. LEXIS 80796 (E.D. Ark. June 13, 2014).
The detention in this case was reasonably related to the answers to questions justifying extending the stop for possible drug activity. Then the drug dog alerted. United States v. Hawkins, 2014 U.S. Dist. LEXIS 80406 (N.D. W.Va. June 13, 2014),* R&R 2014 U.S. Dist. LEXIS 80407 (N.D. W.Va. May 30, 2014).*
A former deputy public defender was now a judge. On his first day in office, he was presented with a search warrant affidavit that mentioned defendant’s name. The judge vaguely remembered the name from about five years earlier, but none of the specifics. Still, he was concerned, did research, and concluded he was still neutral and detached to issue the warrant and there was no appearance of impropriety and no bias. Oregon law is fairly well developed on this, and the court concludes that the judge was still neutral and detached. In a similar case, the court sustained a search warrant as issued by a neutral and detached magistrate when the judge was an ADA who’d gone to the scene of the same crime but which had gone cold by the time the search warrant was sought and issued and no person was associated with the killing when he was involved. State v. Pierce, 263 Or. App. ___, 2014 Ore. App. LEXIS 761 (June 11, 2014):
We observed that the requirement of a “neutral and detached” magistrate, under the Fourth Amendment, is illustrated in two, if not three lines of cases. Id. at 198 (citing U.S. v. Bowers, 828 F.2d 1169, 1174 (6th Cir 1987), cert den, 486 U.S. 1006 (1988) (positing lines of cases)). In one sort of case, the Fourth Amendment is violated by personal engagement in the investigation or prosecution. That happens, for example, when a state attorney general issues a search warrant, acting as a justice of the peace, then goes on to personally investigate and prosecute the case. Coolidge, 403 U.S. at 450; see also Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-27, 99 S Ct 2319, 60 L Ed 2d 920 (1979) (town justice assists officers at the crime scene with an open-ended warrant). In another sort of case, the Fourth Amendment is violated by personal financial interest in the outcome. That happens, for example, when a justice of the peace is paid a fee for warrants issued but not for warrants refused. Connally v. Georgia, 429 U.S. 245, 250, 97 S Ct 546, 50 L Ed 2d 444 (1977). Due process principles of the Fourteenth Amendment are implicated, too. Id. Continue reading →
Posted inWarrant requirement|Comments Off on OR: Judge who issued SW was former public defender who recognized def’s name was still “neutral and detached”
Defendant’s denial he was driving the vehicle the gun was found in had no standing. People v. Anderson, 2014 NY Slip Op 04269, 2014 N.Y. App. Div. LEXIS 4184 (3d Dept. June 12, 2014).
Defendant was on parole, and his PO showed up for a regular home visit and asked if defendant had anything illegal inside. Defendant said “No, go ahead and look.” That was consent. The search was otherwise authorized as a parole search. United States v. Lee, 2014 U.S. Dist. LEXIS 80110 (N.D. Ohio June 12, 2014).*
The automobile here was seized because it was potentially stolen, and that justified its search. United States v. Hankins, 2014 U.S. Dist. LEXIS 79634 (E.D. Wash. June 8, 2014).*
The Obama administration has been quietly advising local police not to disclose details about surveillance technology they are using to sweep up basic cellphone data from entire neighborhoods, The Associated Press has learned. Citing security reasons, the U.S. has intervened in routine state public records cases and criminal trials regarding use of the technology. This has resulted in police departments withholding materials or heavily censoring documents in rare instances when they disclose any about the purchase and use of such powerful surveillance equipment.
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This Article argues that the “subjective expectation of privacy” test is a phantom doctrine. The test exists on paper but has no impact on case outcomes. An empirical study of cases decided in 2012 indicates that majority of judicial opinions applying Katz do not even mention the subjective expectations test; opinions that mention the test usually do not apply it; and when courts apply it, the test makes no difference to the results.
The subjective test acts as a phantom doctrine because of an overlooked doctrinal shift. A close reading of Justice Harlan’s Katz concurrence suggests that it was originally intended to restate the holdings of the Supreme Court’s caselaw on invited exposure. Under those cases, an individual waived Fourth Amendment rights by inviting others to observe their protected Fourth Amendment spaces. In later cases, however, the Supreme Court misunderstood this original design and recast those holdings as part of the objective prong of the test instead of the subjective test. This doctrinal shift quietly eliminated the role of the subjective test. The Supreme Court should abolish the subjective expectations test to clarify and simplify Fourth Amendment law.
One who legitimately borrows a vehicle has standing to challenge its stop and search. Here, however, defendant fled from the van thereby abandoning it. The stop was reasonable, and flight added to the reasonable suspicion. Matthews v. State, 2014 Tex. Crim. App. LEXIS 820 (June 11, 2014):
We granted review to determine (1) whether a person who legitimately borrows a vehicle has standing to challenge its search, and (2) if appellant’s initial and continued detention was supported by reasonable suspicion. We conclude that, although appellant originally had standing to challenge the search of the borrowed van, he abandoned any expectation of privacy (and hence his standing) when he fled from the officers and the van. Second, the officers had reasonable suspicion to detain appellant that was not based solely on the anonymous tip, and appellant’s act of fleeing increased their suspicion and further justified his continued detention to await the arrival of a drug dog.
Posted inAbandonment, Standing|Comments Off on TX: There is standing in a borrowed vehicle
Search of a backpack for a sawed-off shotgun was justified by exigent circumstances. The officer was already investigating when the report was received that there likely was such a weapon involved. Requiring a search warrant at that point was completely impractical and could have provoked violence. State v. Kirby, 2014 Wisc. App. LEXIS 466 (June 11, 2014).*
There was reasonable suspicion for defendant’s stop and frisk when he showed up for a sale of stolen jewelry taken in a Craigslist robbery driving a vehicle matching the description of the vehicle involved in the robbery. State v. Radke, 2014 Iowa App. LEXIS 593 (June 11, 2014).*
A four month delay in a child pornography/child exploitation case was not stale. The federal courts have found longer delays not stale. [I daresay I’ve never seen a child porn warrant found stale.] State v. Ewing, 2014 Tenn. Crim. App. LEXIS 549 (June 11, 2014).*
Defendant was the roommate of a probationer, and their place was subjected to suspicionless probation search. Indiana, however, is a reasonable suspicion state, so the search was invalid. The search of defendant roommate’s space was unreasonable. State v. Vanderkolk, 2014 Ind. App. LEXIS 257 (June 11, 2014).*
The officer’s statements that defendant would no longer be processed out and it would take longer to be released if she didn’t consent to a BAC test were not misleading or deceptive. Humphries v. State, 2014 Ga. App. LEXIS 374 (June 11, 2014).*
This sobriety checkpoint was authorized by a supervisor at the office, and it was not a spur of the moment decision in the field. Johnson v. State, 2014 Ga. App. LEXIS 365 (June 10, 2014).*
Officer’s false statement of authority to search defendant’s car tainted the alleged consent and defendant’s admissions in response. United States v. Saafir, 2014 U.S. App. LEXIS 10847 (4th Cir. June 11, 2014).
Nexus was shown to seize a murder and kidnaping victim’s journals in his house because of the connection between defendant and her. Also, defendant’s announcing to the media that somebody else killed her would potentially have enabled them to find another person of interest. State v. Powell, 2014 Wash. App. LEXIS 1377 (June 10, 2014).*
Yes, there were some omissions from the affidavit for search warrant, but defendant’s Facebook exchanges showed probable cause without regard to them. United States v. Sweeney, 2014 U.S. Dist. LEXIS 79397 (E.D. Tenn. March 10, 2014).*
Posted inConsent, Franks doctrine, Nexus|Comments Off on CA4: False statement of authority to search defendant’s car tainted the alleged consent and defendant’s admissions
“The only facts that were independently corroborated by Detective Duquette were: (1) that Dixon lived at the Home, and (2) that he had previously been incarcerated in federal prison for selling illegal drugs and had been released in 2010.” “Here, where there were sufficient facts to indicate that CS1 was a reliable informant and Detective Duquette provided at least some corroboration of CS1’s tip, the Magistrate had a substantial basis on which to issue the warrant. In the alternative, the warrant will be upheld under the good-faith exception.” [In other words, corroborating obvious public facts is all it takes?] United States v. Dixon, 2014 U.S. Dist. LEXIS 79016 (E.D. Va. June 9, 2014).*
The record of the drug dog’s reliability is sufficient for probable cause. Defendant’s argument is essentially the “strict evidentiary checklist” that Florida v. Harris rejected. People v. Litwhiler, 2014 IL App (3d) 120431, 2014 Ill. App. LEXIS 386 (June 9, 2014).*
Encounter in a city park at 1:30 am started out as consensual and quickly escalated into more justifying backup. United States v. Fields, 2014 U.S. Dist. LEXIS 79447 (D. Mass. June 11, 2014).*
Using MoocherHunter software to see who was using another person’s wifi internet connection to download child pornography was not a search. After officers established that the signal was strongest from defendant’s apartment, they got a search warrant for his apartment and computer. United States v. Stanley, 2014 U.S. App. LEXIS 10833 (3d Cir. June 11, 2014):
The thrust of Stanley’s argument on appeal is that Erdely’s use of the MoocherHunter was an unlawful search under Kyllo. We disagree, and hold that Stanley’s expectation of privacy is not one that society is prepared to recognize as legitimate.
The New Jersey Attorney General’s Office is asking county prosecutors statewide for their help in overturning a 32-year-old state Supreme Court precedent that requires a warrant to obtain telephone billing records.
Posted inInformational privacy|Comments Off on NJLJ: N.J. Wants Warrantless Access to Phone Customers’ Billing Records
The presence of a new McLennan County indigent defense investigator has substantially reduced the number of requests for court-appointed, county-funded attorneys.
McLennan County Indigent Defense Coordinator Cathy Edwards said she has seen about a 40 percent drop in requests since sheriff’s office Detective Eric Carrizales began investigating them in November. Edwards said she received as many as 50 applicants in a week prior to Carrizales’ arrival. Now, she sees about 30.
Posted inUncategorized|Comments Off on In Waco, asking for a public defender could bring a sheriff’s investigator to your house
"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.
