Twice arrested within six months by a single Florida law enforcement agency, for crimes in which another individual with the same name is wanted, a Louisiana woman with no felony record is now planning to sue.
In a Monday letter (PDF), attorney Andrew Bonderud says his client, Ashley Nicole Chiasson, was in court for a hearing after being freed in the first mistaken-arrest case only to be mistakenly arrested a second time, by the same law enforcement agency.
His client had never been to Clay County, where the two felonies at issue occurred, before she was extradited there from Louisiana in January and jailed for nearly one month, Bonderud writes. Yet, even after the first mistaken arrest should have been apparent, Chiasson was arrested again, when she appeared in court in May for a status hearing in that case, for another crime in which the “real perp” was suspected.
I had a false arrest case about 20 years ago where two police agencies didn’t seem to care that the first and middle names were switched and the person arrested was 20 years old and the warrant was for a 45 year old man. Nice settlement for six hours in custody with a strip search and both police agencies. If the second arrest results in a search incident that finds something criminal, SCOTUS doesn’t seem to care.
Posted inPolice misconduct|Comments Off on ABAJ: Mistakenly arrested again, at court hearing in earlier mistaken-arrest case, woman plans to sue
After a bank robbery with shots fired, officers had a line on a suspect. With the picture from the surveillance video, they went to an apartment complex and encountered a man outside who fit the description of the robber including an earring. The suspect refused commands to put his hands up and made a motion toward his waist. The officers were justified in a frisk. It turned out that the defendant was not the wanted man, but he was a felon in possession. His frisk was valid and with reasonable suspicion. United States v. Goyer, 2014 U.S. App. LEXIS 10805, 2014 FED App. 0406N (6th Cir. June 6, 2014).
Orlando police were authorized to detain plaintiffs after a call from mall security of an armed man in battle dress escalated from an open carry dispute to an exchange of words. “In light of Hesselink’s 911 call reporting two ‘signal zeros’ in the mall, one of whom was openly carrying a firearm and wearing a battle dress uniform, the police officers had an objectively reasonable basis for concluding that they were facing a potentially life-threatening emergency, which justified the brief detention of Sykes and his companions until the officers could investigate the situation and allay any fears of a possible threat.” Bartley v. Kim’s Enter. of Orlando, 2014 U.S. App. LEXIS 10820 (11th Cir. June 11, 2014).*
The officer’s entry into the home on a domestic disturbance call where defendant was allegedly armed and wouldn’t come out was based on exigency and his wife’s consent. United States v. Avalos, 2014 U.S. Dist. LEXIS 78886 (D. Utah June 4, 2014).*
Two controlled buys with other information was probable cause for issuance of a search warrant. Defendant claims that the warrant was defective for allegedly misidentifying him as the owner of the premises. That, however, is irrelevant because this search warrant is directed at property, not the person. In addition, the good faith exception applies, too, not that it matters. United States v. Parker, 2014 U.S. Dist. LEXIS 78591 (W.D. Pa. June 10, 2014).*
The Court of Claims can’t hear Fourth Amendment or § 1983 claims. Slone v. United States, 2014 U.S. Claims LEXIS 493 (June 4, 2014).*
The officer had an outstanding arrest warrant for defendant for domestic violence. Defendant wasn’t at home, but he was found with the car parked elsewhere. After defendant’s arrest, even though the car was legally parked, the officer directed the car be impounded. The search of the car was thus valid[!], even though the court admits that the officer was looking for evidence of the past domestic dispute, bootstrapping looking for a gun into justification. State v. Leak, 2014-Ohio-2492, 2014 Ohio App. LEXIS 2425 (5th Dist. June 9, 2014)*: Continue reading →
Posted inInventory|Comments Off on OH5: Inventory was valid [even though it was a criminal search]
In an interesting and thorough analysis, the Eleventh Circuit, in an opinion by Judge Sentelle of the D.C. Circuit sitting by designation, “hold[s] that cell site location information is within the subscriber’s reasonable expectation of privacy.” The court also discussed, without applying, the “mosaic theory.” The court notes this is a case of first impression by any appellate court, but it seems to create a conflict. United States v. Davis, 2014 U.S. App. LEXIS 10854 (11th Cir. June 11, 2014): Continue reading →
Posted inCell phones, Reasonable expectation of privacy|Comments Off on CA11: In a case of first impression, “cell site location information is within the subscriber’s reasonable expectation of privacy.”
Microsoft is challenging the authority of federal prosecutors to force the giant technology company to hand over a customer’s email stored in a data center in Ireland.
Posted inUncategorized|Comments Off on NYT: Microsoft Protests Order to Disclose Email Stored Abroad
Officers received a call of a person pointing a long gun from a car, and they found the car and stopped it. The stop permitted a search of the trunk as well under the automobile exception. State v. Leticia T., 2014 N.M. LEXIS 171 (June 9, 2014).*
The officer had a tip that a particular vehicle was operated while drunk, and he passed that vehicle which “floored” it when next to the officer, further gaining his attention. Based on that the officer turned around and pursued the vehicle. The finding of reasonable suspicion for the stop is affirmed. State v. Wellington, 2014 Tenn. Crim. App. LEXIS 534 (June 9, 2014).*
In a referral for a secondary border search, defendant’s lack of eye contact was the primary factor, and other small things only added to that for the officer. The fact defendant claimed U.S. citizenship doesn’t prevent an immigration stop. United States v. March, 2014 U.S. Dist. LEXIS 78870 (D. Ariz. June 9, 2014).*
The failure of the officer to sign the affidavit after he was sworn did not void the warrant. It actually was issued on “oath or affirmation.” United States v. Williamson, 2014 U.S. Dist. LEXIS 77703 (D. Kan. March 18, 2014), adopted in part 2014 U.S. Dist. LEXIS 76663 (D. Kan. June 5, 2014).
On direct and cross, the best the officer could come up with was officer safety and a hunch of criminal activity to justify defendant’s frisk as an alleged drug courier. After “softball questions” from the court the officer still couldn’t get past his “hunch.” He was an officer with 22 years experience and should by now know what Terry requires. After a fifteen minute recess and an apparent effort at rehabilitation, the officer then came up with something real, but it isn’t good enough. “Accordingly, considering the totality of the circumstances in this case, with the reasonable inferences to be drawn therefrom, the numerous inconsistencies in the testimony and evidence, and the determinations of the credibility of the witnesses, the court concludes that Detectives Martinez and Cox did not have reasonable suspicion that criminal activity was afoot before detaining and patting down Williams.” [The court went to great lengths to explain why this testimony failed to measure up.] United States v. Berry, 2014 U.S. Dist. LEXIS 77980 (N.D. Tex. June 9, 2014).*
Warrantless entry was not “sanitized” by an ex post facto search warrant. “‘Good faith is not a magic lamp for police officers to rub whenever they find themselves in trouble.’” Leon involved no police misconduct; this case does. United States v. Long, 2014 U.S. Dist. LEXIS 78229 (D. S.D. February 3, 2014):
In Leon, the case that created the exception and that the Government seeks now to invoke, the police did not ever violate the law. They simply relied in good faith on a magistrate’s error. In Long’s case, however, there was (1) an illegal entry of his store and observations made of items in the interior of it; and (2) oral testimony, in support of a search warrant request, which relied exclusively on the prior entry and observations. Deterrence, Leon holds, is not needed to remedy judicial errors. But police misconduct must be deterred through the suppression of evidence.
“Good faith is not a magic lamp for police officers to rub whenever they find themselves in trouble.” Continue reading →
Posted inGood faith exception|Comments Off on D.S.D.: “Good faith is not a magic lamp for police officers to rub whenever they find themselves in trouble.”
The National Security Agency recently used a novel argument for not holding onto information it collects about users online activity: it’s too complex.
Posted inFISA|Comments Off on WaPo: NSA fights preservation of data sought for suit
DNA warrant for defendant that transposed month and day (11-01 v. 01-11) using military and international convention was still for him. “[T]the Fourth Amendment is not a bulwark against typos.” United States v. Clark, 2014 U.S. App. LEXIS 10613 (7th Cir. June 6, 2014):
The warrant issued for Clark’s DNA was not unconstitutionally vague. It correctly identified his name, race, sex, and the location where he was housed, and contained what is at most a transposition of the date and month of his birthday. This small error (if it was one, and not just a rendering of his birthday in the day-month-year order that is common throughout much of the world and used by the U.S. military) casts no doubt on the fact that Clark was the intended target. It did not give the officer discretion to search anyone but him, or to collect anything but Clark’s DNA by means of a buccal swab. There was no confusion about who was to be searched and what was to be collected; the Fourth Amendment is not a bulwark against typos.
Posted inWarrant requirement|Comments Off on CA7: “[T]the Fourth Amendment is not a bulwark against typos.”
False statement in an affidavit was testified to being a “mere mistake” in reporting information so the good faith exception still applies. If the officer testified it was a “mere mistake,” well, then, it can’t be wilfully false. Thus, the court does not have to disregard the information in finding the good faith exception applicable without regard to whether there is probable cause. United States v. Hall, 2014 U.S. Dist. LEXIS 76036 (E.D. Tex. May 1, 2014), adopted 2014 U.S. Dist. LEXIS 75726 (E.D. Tex. June 3, 2014).*
The affidavit contesting the facts for an evidentiary hearing on a motion to suppress in the Second Circuit has to be on the personal knowledge of the defendant, not counsel. Defendant doesn’t sufficiently dispute that he consented by saying “I don’t recall.” United States v. Walia, 2014 U.S. Dist. LEXIS 77429 (E.D. N.Y. June 5, 2014).*
2255 petitioner’s claim that defense counsel was ineffective for not raising a Franks claim fails on the merits, so it can be ineffective. United States v. Jennings, 2014 U.S. Dist. LEXIS 77439 (W.D. N.Y. April 29, 2014).*
Posted inFranks doctrine, Ineffective assistance|Comments Off on E.D.Tex.: Officer’s testimony the falsity in the SW affidavit was a “mere mistake” good enough to overcome Franks
Defendant’s blood draw in this DUI case violated the Fourth Amendment for lack of any exigent circumstances. Under McNeely, mere passage of time is no longer enough. There is no per se rule that the time to investigate an accident is an exigency. Douds v. State, 2014 Tex. App. LEXIS 6152 (Tex. App.-Houston (14th Dist.) June 5, 2014) (en banc) (concurring; dissenting):
3. The State’s evidence does not support an objectively reasonable conclusion that obtaining a warrant was impractical.
Applying this standard, we hold the State has not carried its burden to prove exigent circumstances here. As explained above, although all findings of historical fact supported by the record must be implied in favor of the trial court’s ruling that the blood draw should not be suppressed, whether those facts meet the legal standard of exigent circumstances is a legal question that we review de novo. We conclude the findings that can be implied on this record do not support an objectively reasonable conclusion that taking the time to obtain a warrant before drawing appellant’s blood would have significantly undermined the efficacy of a blood alcohol test. Continue reading →
Posted inEmergency / exigency|Comments Off on TX14: No per se rule on exigency for DUI blood draw; state carries burden
NEENAH, Wis. — Inside the municipal garage of this small lakefront city, parked next to the hefty orange snowplow, sits an even larger truck, this one painted in desert khaki. Weighing 30 tons and built to withstand land mines, the armored combat vehicle is one of hundreds showing up across the country, in police departments big and small.
Posted inUncategorized|Comments Off on NYT: War Gear Flows to Police Departments
A police car was stolen and left in a ditch apparently with blood and hair left on it. Three anonymous calls linked defendant to the theft. He first agreed to come in and give samples and then didn’t show. A search warrant for blood and hair was sought. The warrant had no factual basis to link to defendant, and the good faith exception could not be applied here. There was no corroboration, no nothing, and the issuing magistrate’s conclusion was based on an assumption that was a mere “rubberstamping” of the conclusion of the police prohibited in Aguilar. State v. Powell, 2014 Kan. LEXIS 269 (June 6, 2014).
The vehicle search incident in this case occurred two days before Gant was decided, and Kansas codified Belton. The good faith exception of reliance on a statute (Krull) applies to this case, and the search will not be suppressed. State v. Pettay, 2014 Kan. LEXIS 272 (June 6, 2014).
The search of defendant’s cell phone case felt during a patdown could not reasonably be shown to be a weapon or contraband that would justify it. The officer was predisposed because she testified she assumed everybody was armed. State v. Gorby, 2014-Ohio-2445, 2014 Ohio App. LEXIS 2373 (2d Dist. June 6, 2014).
A 2255 claim that defense counsel should have challenged the search warrants used in his case, waived by the guilty plea, doesn’t state grounds for relief because there’s no showing of a likelihood of success. Shuron v. United States, 2014 U.S. Dist. LEXIS 75804 (D. Md. June 4, 2014).*
Defendant had no reasonable expectation of privacy in the business area of the convenience store he ran on a reservation. He lived in a separate house, and he claimed he also lived there because he sometimes slept in a back room, but it was his business and open to the public and the common area was at issue. United States v. Long, 2014 U.S. Dist. LEXIS 77196 (D. S.D. June 6, 2014),* R&R 2014 U.S. Dist. LEXIS 78229 (D. S.D. February 3, 2014).*
Defendant’s housekeeper called child protective services to report that defendant’s minor daughter had discharge in her underwear consistent with sexual intercourse and that defendant was the suspected abuser. They had her seize the underwear and turn it over to the police who were actually now delaying a welfare check on the daughter to see what the underwear turned up. The seizure was thus state action because the state was encouraging it. State v. Sines, 263 Or. App. __, 2014 Ore. App. LEXIS 752 (June 4, 2014).
Defendant waived any search and seizure claim by pleading guilty, and he didn’t state grounds to set it aside. Campbell v. State, 2014 Fla. App. LEXIS 8626 (Fla. 2d DCA June 6, 2014).*
The officer received a dispatch of an African-American male just leaving a particular place that was a crime scene. Defendant didn’t match the height and weight of the suspect, but the officer said he didn’t even have that detail which, he added, are often inaccurate anyway. All he had was just one person of the same race at the time and place indicated in the call. The court finds that reasonable suspicion on the totality. State v. Greer, 2014-Ohio-2370, 2014 Ohio App. LEXIS 2311 (9th Dist. June 4, 2014).*
Posted inReasonableness, Stop and frisk|Comments Off on OR: Police encouraging housekeeper to seize child’s underwear was state action
Defendant was in his driveway when he unreasonably refused to identify himself when the officer had reasonable suspicion. That was not on the curtilage. When he retreated to his porch, he was on the curtilage, but this gun was in plain view and thus still properly seized. State v. Mitchem, 2014-Ohio-2366, 2014 Ohio App. LEXIS 2308 (1st Dist. June 4, 2014): Continue reading →
The reliability of the informant’s tale does not need to be decided here because the good faith exception applies [without a word of why]. United States v. Matthews, 2014 U.S. App. LEXIS 10522 (D.C. Cir. June 6, 2014).
Defendant in the gravel parking area outside a house was subject to detention under Summers and Bailey on execution of a warrant. United States v. Murray, 2014 U.S. Dist. LEXIS 77341 (N.D. Ga. April 14, 2014).*
Officer’s hitting and kicking a large man suspected of domestic abuse and to be armed who fled police was reasonable and qualified immunity applied. Other officers used Tasers on him, and that was not shown to be excessive as of the time of the occurrence. Smith v. City of Minneapolis, 2014 U.S. App. LEXIS 10538 (8th Cir. June 6, 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.
