A negligent dispatcher reported the vehicle the juvenile was in as stolen, and it was stopped and searched. The information turned out to be wrong. Still, the search of the car was in the officer’s good faith reliance on the negligent dispatcher, and that’s still good enough to deny exclusion. In re G.H., 2014-Ohio-2269, 2014 Ohio App. LEXIS 2212 (8th Dist. May 29, 2014):
[*P26] Here, the record reveals that, while Officer Cicero was discussing the traffic stop with Moore and before anyone was asked to leave the vehicle, the CMSD dispatch notified Officer Cicero that its system identified the vehicle as stolen. Ordinarily, a report of a stolen vehicle reasonably justifies a further detention to allow the officer to investigate. The question here, however, is whether Officer Cicero reasonably and in good faith relied on this information, which ultimately proved to be incorrect, to justify an exception to the exclusionary rule. We find that he did.
[*P27] In United States v. Leon, 468 U.S. 897, 918, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the court recognized that the exclusionary rule is aimed at police procedures and designed to produce systematic deterrence. State v. Scott, 8th Dist. Cuyahoga No. 99889, 2014-Ohio-392, ¶ 18. The court explained: … Continue reading →
Posted inGood faith exception|Comments Off on OH8: Negligent dispatcher reported car as stolen that wasn’t; dispatcher’s negligence not attributable to searching officer
A patient does not have a substantial enough state constitutional privacy right to overcome the public interest in making prescription controlled substances records inspections at pharmacies. Pharmacies are highly regulated, and there are sufficient other general protections of patient information. Reporting sales of controlled substances through the state database (CURES) is not, on balance, an unreasonable violation of patients’ privacy rights. Lewis v. Superior Court, 2014 Cal. App. LEXIS 471 (2d Dist. May 29, 2014).
Defendant’s criminal history, being on parole and out of the state of supervision, and having a faceless DL collectively was reasonable suspicion. Commonwealth v. Wright, 85 Mass. App. Ct. 380 (May 29, 2014).*
McGruff the Crime Dog and Nancy Reagan must have been busy. Two former federal prosecutors testifying at a House Judiciary hearing on Friday said the U.S. is winning the war on drugs and claimed to “represent” poor communities of color. One of them, confronted with data about how drug laws disproportionately impact blacks, pled ignorance and refused to change his mind, saying, “I cannot argue the statistics.”
Posted inStop and frisk|Comments Off on HuffPo: Prosecutor Tells Black Congressmembers The War On Drugs Isn’t Racist
Plaintiff’s grand jury indictment was sufficient probable cause to defeat a malicious prosecution claim. Plaintiff cannot show that the officer testified falsely or with reckless disregard for the truth before the grand jury. Robertson v. Lucas, 2014 U.S. App. LEXIS 9771, 2014 FED App. 0109P (6th Cir. May 28, 2014)*:
The crux of appellants’ argument is that Lucas’s testimony to the grand jury contained knowing falsehoods because he did not tell the grand jury that information obtained from the confidential informant, Bray, was suspect based on Bray’s criminal history, theft of drugs and money belonging to law enforcement, and fabrication of evidence through the use of stand-ins or staged drug buys to frame individuals other than the appellants here. Appellants have presented no evidence that Lucas falsely testified to the officers’ efforts to corroborate Bray’s information about them. That is, appellants cannot overcome the presumption of probable cause, see Mott, 524 Fed. Appx. 179, 2013 WL 1663219, at *7, and therefore cannot show that their own constitutional rights were violated.
Posted in§ 1983 / Bivens, Qualified immunity|Comments Off on CA6: Malicious prosecution claim fails where no false testimony before GJ
When does the simple digital tracking of your location and movements — the GPS bleeps from most of our smartphones — start to be truly revealing? When do the data points and inferences that can be drawn from it strongly suggest, say, trips to a psychiatrist, a mosque, an abortion clinic, a strip club or an AIDS treatment center?
The answer, according to a new research paper, is about a week, when the data portrait of a person becomes sufficiently detailed to qualify as an “unreasonable search” and a potential violation of an individual’s Fourth Amendment rights.
. . .
Justice Samuel Alito stated that four weeks of location data collection, without a warrant, was “surely too long,” in that it would be enough for a detailed portrait of a person’s behavior. But Justice Antonin Scalia noted in his majority opinion that “it remains unexplained why a four-week investigation is ‘surely too long.’ ”
“That’s a fair critique,” observed Ms. Hutchins, the University of Maryland law professor. “We wanted to see what the science showed.”
Since 1967, when it decided Katz v. United States, the Supreme Court has tied the right to be free of unwanted government scrutiny to the concept of reasonable expectations of privacy. An evaluation of reasonable expectations depends, among other factors, upon an assessment of the intrusiveness of government action. When making such assessment historically the Court considered police conduct with clear temporal, geographic, or substantive limits. However, in an era where new technologies permit the storage and compilation of vast amounts of personal data, things are becoming more complicated. A school of thought known as “mosaic theory” has stepped into the void, ringing the alarm that our old tools for assessing the intrusiveness of government conduct potentially undervalue privacy rights.
Mosaic theorists advocate a cumulative approach to the evaluation of data collection. Under the theory, searches are “analyzed as a collective sequence of steps rather than as individual steps.” The approach is based on the observation that comprehensive aggregation of even seemingly innocuous data reveals greater insight than consideration of each piece of information in isolation. Over time, discrete units of surveillance data can be processed to create a mosaic of habits, relationships, and much more. Consequently, a Fourth Amendment analysis that focuses only on the government’s collection of discrete units of data fails to appreciate the true harm of long-term surveillance—the composite.
In the context of location tracking, the Court has previously suggested that the Fourth Amendment may (at some theoretical threshold) be concerned with the accumulated information revealed by surveillance. Similarly, in the Court’s recent decision in United States v. Jones, a majority of concurring justices indicated willingness to explore such an approach. However, in general, the Court has rejected any notion that technological enhancement matters to the constitutional treatment of location tracking. Rather, it has decided that such surveillance in public spaces, which does not require physical trespass, is equivalent to a human tail and thus not regulated by the Fourth Amendment. In this way, the Court has avoided a quantitative analysis of the amendment’s protections.
The Court’s reticence is built on the enticingly direct assertion that objectivity under the mosaic theory is impossible. This is true in large part because there has been no rationale yet offered to objectively distinguish relatively short-term monitoring from its counterpart of greater duration. This article suggests that by combining the lessons of machine learning with the mosaic theory and applying the pairing to the Fourth Amendment we can see the contours of a response. Machine learning makes clear that mosaics can be created. Moreover, there are important lessons to be learned on when this is the case. Continue reading →
Posted inCell phones, GPS / Tracking Data, Informational privacy|Comments Off on news.gnom.es: Quantifying Privacy: A Week of Location Data May Be an “Unreasonable Search” & New Law Review Article: Mosaic Theory and Machine Learning
The top official at the federal border agency released on Friday for the first time the full text of its handbook on the use of force by border agents, as well as a 2013 report by an outside group that was sharply critical of the agency’s conduct in cases where agents’ force had resulted in deaths.
Police abuses in Miami Gardens, Florida, are staggering, but few Americans seem to care.
Last year, police in Miami Gardens, Florida briefly made headlines after surveillance video captured their harassment of a black clerk at a convenience store. They stopped and questioned the man, Earl Sampson, a ludicrous 258 times. On 62 occasions, they arrested him for trespassing at his place of employment, a pattern of abuse that confounded his employer, the store’s owner. After the Miami Herald exposed this story, it made national headlines at numerous journalistic outlets, then quickly faded into obscurity at the end of one news cycle. The scope of the abuse taking place in the police department remained unknown. The vast majority of outlets that covered the story cared too little to follow up.
Posted inPolice misconduct, Stop and frisk|Comments Off on The Atlantic: The City Where Blacks Suffer Under ‘Stop and Frisk on Steroids’
MANY AMERICANS are discovering the hard way that they live in a world of prying eyes. This is the underside of the digital revolution. Tens of millions of people have been harmed by the loss or compromise of their credit card and other personal information. Whether shopping online or in a store, whether using a mobile phone or browsing social media, more snooping goes on than most people realize.
Posted inInformational privacy|Comments Off on WaPo Editorial: Consumers should be able to see the data companies collect about them
A police chase that ended in a schoolyard with two unarmed suspects dying in a hail of 137 bullets is part of a broad federal investigation of the Cleveland Police Department’s use of deadly force and its pursuit policies.
Posted inExcessive force|Comments Off on WaPo: Cleveland police indictment part of wider deadly force investigation
The National Security Agency’s reliance on facial recognition technology has grown as it has used new software to exploit images in emails, text messages, social media, videoconferences and other communications.
“As to Defendant’s challenge of a single trash run at forming probable cause, there is no magic number of ‘trash runs’ to be conducted prior to the issuance of a search warrant.” Here, there was enough from one to make probable cause. United States v. Holley, 2014 U.S. Dist. LEXIS 72874 (E.D. Tex. May 21, 2014).
The continuing detention of defendant was proper because of two different IDs on him. The dog sniff during this time was reasonable. United States v. Lovelady, 2014 U.S. Dist. LEXIS 72816 (D. Utah May 28, 2014).*
Defendant claimed defense counsel was ineffective for not challenging the frisk of his person. Going to the merits of the frisk, the court finds it justified because he admitted having a knife and was under the influence of drugs. Since it was meritless, no IAC. State v. Riley, 2014 Iowa App. LEXIS 577 (May 29, 2014).*
When defendant’s clothes were seized by the police at the hospital, it was because he said he was a crime victim. When the police figured out he was lying and he was the shooter, they got a search warrant to inspect the clothes that had been seized, and the victim’s DNA was on them. Tuggle v. State, 2014 Ind. App. LEXIS 220 (May 22, 2014).
Defendant’s stop was justified by witnesses to a traffic accident saying she was involved. That’s an articulable basis. Wing v. State, 2014 Ga. App. LEXIS 339 (May 27, 2014).*
Officers were working a train station in Rutland, Vermont before the last stop of the NYC and Philadelphia trains looking for drug couriers. Defendant fit the profile and was picked up. She was followed to the house where they were going, and engaged her in conversation. It was arguably a detention and not consensual, but it was with reasonable suspicion on the totality, and her admission she had heroin and the consent search were valid. United States v. Allen, 2014 U.S. Dist. LEXIS 73146 (D. Vt. May 29, 2014).*
Thanks to a law that was written before “Robocop,” law enforcement agencies are allowed to poke around inside your e-mail inbox without a warrant. Messages from six months ago are fair game. So are e-mails you’ve already opened. Other types of content we typically store in the cloud these days — photos, videos, documents, contacts and the like — also lack the Fourth Amendment protections that would ordinarily accompany their real-world copies.
A bill to fix that law is inching steadily forward. But it’s been more than a year since the proposal, the Email Privacy Act, was introduced. If it takes much longer to wind its way through regular channels, one of its authors is vowing to invoke one of a number of shortcuts that would force his changes past the House.
Drawing a Taser on a suspect and ordering him to move his hands is a seizure. United States v. Coleman, 2014 U.S. Dist. LEXIS 70867 (M.D. La. May 23, 2014).
This defendant’s effort to adopt another defendant’s motion to suppress is denied for failing to comply with a pretrial order requiring he show his standing. United States v. Tomlinson, 2014 U.S. Dist. LEXIS 70070 (N.D. Ga. May 2, 2014).*
Defense counsel was not ineffective for not raising a search issue that wasn’t meritorious based on defendant’s admissions at the time of arrest. United States v. Beadles, 2014 U.S. Dist. LEXIS 71633 (D. Kan. May 27, 2014).*
Posted inIneffective assistance, Stop and frisk|Comments Off on M.D.La.: Drawing a Taser on a suspect and ordering him to move his hands is a seizure
It’s not clear that the executing officers entered defendant’s house before 6:00 am in violation of Rule 41(d). Even if they did, “[t]here is no evidence that if the agents had waited a few minutes more, the search would have been less abrasive. If the agents violated Rule 41(d), Logan was not prejudiced by that violation. The Court OVERRULES Logan’s fourth objection.” United States v. Luck, 2014 U.S. Dist. LEXIS 72448 (W.D. Tenn. May 28, 2014), R&R 2014 U.S. Dist. LEXIS 73323 (W.D. Tenn. January 27, 2014).
The officer here did not rely on just the CI’s tips: It was the beginning point of a two month investigation, that came to fruition with reasonable suspicion for defendant’s detention. United States v. Barnes, 2014 U.S. Dist. LEXIS 72556 (E.D. N.C. February 25, 2014).
This prisoner’s search and seizure claim is barred by Heck as attacking his conviction and barred by time as outside the statute of limitations. Schield v. Brawner, 2014 U.S. App. LEXIS 9865 (5th Cir. May 28, 2014).*
Man had standing in his live-in girlfriend’s car. They shared a residence, had a child together, and he always had access to the car, even though it was registered to her. United States v. Lopez-Ayola, 2014 U.S. Dist. LEXIS 72085 (D. Utah May 27, 2014):
Here, Mr. Lopez-Ayola presents facts establishing a reasonable expectation of privacy. Mr. Lopez-Ayola and Ms. Aranda shared a common residence, a child, and access to the Jetta, which Mr. Lopez-Ayola purchased for Ms. Aranda’s use. Although Ms. Aranda was the primary driver and registered owner, officers observed Mr. Lopez-Ayola driving the vehicle in the weeks prior to the search. Thus, the court concludes that Mr. Lopez-Ayola has a legitimate possessory interest and a reasonable expectation of privacy in the Jetta. See, e.g., United States v. Posey, 663 F.2d 37, 41 (7th Cir. 1981) (finding defendant had an expectation of privacy in an automobile owned by his wife where defendant had permission to use the vehicle).
Accordingly, Mr. Lopez-Ayola has standing to challenge the search of the Jetta.
Posted inStanding|Comments Off on D.Utah: Man had standing in live-in girlfriend’s car
A 19-month-old boy was sleeping in a Georgia home with his parents and three older sisters when police entered, looking for a drug suspect. Officers threw a stun grenade into the boy’s crib, critically injuring the toddler, his parents say. The family, visiting from Wisconsin, was not associated with the crime, and the suspect was arrested at a different house.
Despite that record, sheriff describes drug suspects are “terrorists.”
Posted inWarrant execution|Comments Off on NY Daily News: ‘He didn’t deserve any of this’: Toddler severely burned by stun grenade during police raid on Georgia home
PoliceOne: How to protect your career by writing better use-of-force reports by Matt Stiehm:
We must change our “less is more” mentality on UOF reports to a “more is more” mindset for the next generation of police officers
Law enforcement officers are trained to document every minute detail in every criminal investigation, incident, or traffic collision. But officers are too frequently failing to appropriately document the application of force — they too often fail to articulate the objective reasonableness of force they used on a subject.
As you know, law enforcement and the use of force is governed by the United States Constitution Fourth Amendment, appropriate state statutes. The reality is that the United States Supreme Court’s interpretation of the Fourth Amendment in Graham v. Connor provided clarity for what is objectively reasonable for the application of force.
Posted inExcessive force|Comments Off on PoliceOne: How to protect your career by writing better use-of-force reports
Plaintiff was subjected to a forced rectal search for drugs at a hospital. Police officers allegedly falsified the report to the hospital about defendant having a seizure to get the search done there when they had already concluded that plaintiff was faking a seizure. The search could be found to violate the Fourth Amendment because of the invasion of bodily dignity and the officers do not get qualified immunity. George v. Edholm, 2014 U.S. App. LEXIS 9798 (9th Cir. May 28, 2014):
The search here was at least as invasive as searches we and other courts have characterized as unwarranted intrusions on dignitary interests. In United States v. Cameron, a suspect underwent a digital rectal exam and two enemas before being forced to drink a liquid laxative. 538 F.2d at 258. In an opinion by then-Judge Kennedy, we held that search unreasonable. Id. at 258-60. In Ellis v. City of San Diego, 176 F.3d 1183 (9th Cir. 1999), we held that the plaintiff had alleged a clear Fourth Amendment violation when he claimed that doctors sedated him, took blood samples, and inserted a catheter into his penis. Id. at 1186, 1191-92; see also Booker, 728 F.3d at 547 (sedation, intubation, and anal probing are “an affront to personal dignity … categorically greater” than the surgery in Winston); Gray, 669 F.3d at 564 (proctoscopy is “a greater affront to … dignitary interest[s] than full-on exploratory surgery”); United States v. Husband, 226 F.3d 626, 632 (7th Cir. 2000) (sedation and reaching into suspect’s mouth “constitute a serious invasion of … personal privacy and liberty interests”); Rodriques v. Furtado, 950 F.2d 805, 811 (1st Cir. 1991) (vaginal inspection is “a drastic and total intrusion of … personal privacy and security”); Kennedy v. L.A. Police Dep’t, 901 F.2d 702, 711 (9th Cir. 1989) (visual inspections of body cavities are “dehumanizing and humiliating”), abrogated on other grounds by Hunter v. Bryant, 502 U.S. 224, 112 S. Ct. 534, 116 L. Ed. 2d 589 (1991) (per curiam); Tribble, 860 F.2d at 325 (digital rectal exam is “one of the most intrusive methods of detecting contraband”); Yanez v. Romero, 619 F.2d 851, 855 (10th Cir. 1980) (catheterization is a “gross personal indignity”); Huguez v. United States, 406 F.2d 366, 379 (9th Cir. 1968) (digital rectal exam was “a brutal invasion of privacy”); State v. Payano-Roman, 2006 WI 47, 290 Wis. 2d 380, 714 N.W.2d 548, 560 (Wis. 2006) (being forced to drink a laxative is a “significant intrusion”). Continue reading →
Posted inReasonableness, Strip search|Comments Off on CA9: Forced rectal search for cocaine was unreasonable for lack of exigency
In a child pornography case, defendant’s computer was held for 21 days before a search warrant was obtained, and he moved to suppress. On the totality, the court finds the delay reasonable and did not substantially interfere with defendant’s possessory interest. He was in jail on a parole violation and wouldn’t be using it anyway, so his possessory interest was actually minimal. United States v. Sullivan, 2014 U.S. App. LEXIS 9800 (9th Cir. May 28, 2014), withdrawn, sub. op. on rehearing 2015 U.S. App. LEXIS 13702 (9th Cir. July 29, 2015):
In applying this balancing test to the seizure of Sullivan’s laptop, we start by considering the extent of the intrusion on Sullivan’s possessory interests given the totality of the circumstances. We conclude they were minimal. During the entire time period when the laptop was retained by the government, Sullivan was in custody on eight parole violation charges. He does not claim that he could have made use of the laptop while incarcerated or that he sought return of his laptop to himself or a third party. Where individuals are incarcerated and cannot make use of seized property, their possessory interest in that property is reduced. See United States v. Segura, 468 U.S. 796, 813 (1984) (Burger, C.J.) (plurality opinion) (holding that defendants’ possessory interests in their apartment were “virtually nonexistent” when they “were under arrest and in the custody of the police throughout the entire period the agents occupied the apartment”); see also United States v. Clutter, 674 F.3d 980, 984-85 (8th Cir. 2012) (determining that when defendant was in jail at the time of the seizure of his computer, the seizure “did not meaningfully interfere with his possessory interests”). Moreover, an individual who did “not even allege[], much less prove[], that the delay in the search of packages adversely affected legitimate interests protected by the Fourth Amendment” and “never sought return of the property” has not made a sufficient showing that the delay was unreasonable. United States v. Johns, 469 U.S. 478, 487 (1985).
"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.
