A convoy of police arrive in an apartment complex because it’s a high crime area, and one walks up to defendant’s car and talks to him asking “where’s your gun?” He says he doesn’t have one. Then the officer asks for his DL, and he says he doesn’t have one. The officer opens the door and rousts him out of the car and frisks him unreasonably because there is no reasonable suspicion. United States v. Hill, 2014 U.S. App. LEXIS 9960 (5th Cir. May 29, 2014):
For the reasons hereinafter assigned, we conclude that the totality of the relevant circumstances, including the girlfriend’s brisk departure from Hill’s car and the circumstances that transpired during the seconds between her exit and the officer’s seizure of Hill, did not amount to articulable facts from which an officer could reasonably suspect that Hill was engaged in criminal activity. Thus, the seizure violated the Fourth Amendment under Terry v. Ohio, 392 U.S. 1 (1968), and the firearm and ammunition obtained from the seizure must be suppressed. Because Hill’s conviction was obtained with evidence that should have been suppressed, we vacate the conviction and sentence.
Posted inStop and frisk|Comments Off on CA5: Frisking rousted man who denied having gun was without reasonable suspicion
Appointment of a post-judgment collection receiver was not an unreasonable search and seizure or a Fourth Amendment issue. Besides, there was no sign anywhere that there would be a turning over of records to law enforcement. Arbor Farms v. Geostar Corp., 2014 Mich. App. LEXIS 979 (May 27, 2014).
During a traffic stop, the driver’s trembling hands, excessive nervousness, and breaking eye contact when asked about having a weapon was likely enough for a vehicle frisk for a weapon. Then there was a furtive movement with his hands. State v. Butler, 2014 La. App. LEXIS 1398 (La. App. 5 Cir. May 28, 2014).*
Delaying a frisk until backup arrived was reasonable. State v. Harris, 2014 La. App. LEXIS 1391 (La. App. 2 Cir. May 28, 2014).
Up until that point Gibson had not received so much as a postcard telling the company it might be doing something wrong. Thus began a five-year saga, extensively covered by the press, with reputation-destroying leaks and shady allegations that Gibson was illegally importing wood from endangered tree species. In the end, formal charges were never filed, but the disruption to Gibson’s business and the mounting legal fees and threat of imprisonment induced Juszkiewicz to settle for $250,000-with an additional $50,000 ‘donation’ piled on to pay off an environmental activist group.
Posted inWarrant execution|Comments Off on Forbes: Lumber Union Protectionists Incited SWAT Raid On My Factory, Says Gibson Guitar CEO
Defendant was suspected of a hand-to-hand drug transaction, and the police followed and called out to him, and he fled and his gun and magazine fell to the ground. It was in plain view when seen or abandoned. “The gun and gun magazine are not vulnerable to a Fourth Amendment challenge because they were not obtained as a result of any violation of Thomas’ Fourth Amendment rights.” People v. Thomas, 2014 V.I. LEXIS 28 (Super. Ct. May 19, 2014).
Defendants showed the legality of their detention of the plaintiff, so summary judgment is granted on that claim. The assault during the arrest claim states a claim. Scott v. City of New Rochelle, 2014 N.Y. Misc. LEXIS 2279, 2014 NY Slip Op 24131 (Westchester Co. May 21, 2014).*
Defendant’s stop was reasonable and not unreasonably delayed for 25 minutes while a drug dog arrived in a rural area. State v. Thiel, 2014 Minn. App. LEXIS 56 (May 27, 2014).*
May 27 — Denying a petition filed by the New York City police officers’ union, the U.S. Supreme Court May 27 declined to review a federal appeals court decision that the city doesn’t violate the Fourth Amendment by requiring an immediate, on-site Breathalyzer test of any police officer who fires his weapon in a shooting resulting in serious injury or death.
The justices left undisturbed the U.S. Court of Appeals for the Second Circuit’s ruling that the city police department’s “special needs” to ensure its officers comply with a ban on alcohol use while carrying their service revolvers and to maintain public confidence in the department outweigh any officer’s privacy interest in avoiding a minimally intrusive search after a shooting incident (737 F.3d 150, 37 IER Cases 1 (2d Cir. 2013)).
Posted inSpecial needs|Comments Off on BNA: Justices Won’t Review If Breathalyzer Tests Of New York City Officers Are Constitutional
During the recent oral argument in United States v. Wurie, the pending cell phone search case, Justice Alito asked an important question about the nature of the “reasonable expectation of privacy” test:
In determining whether the examination of information on a cell phone … constitutes a search, what do you think we we are doing? … Are we answering an empirical question, what is the reasonable expectation of privacy of a of a person in 2014 who has a cell phone on his or her person? Or are we legislating what we think is a good privacy rule?
Posted inCell phones|Comments Off on WaPo: Volokh: Answering Justice Alito’s question: What makes an expectation of privacy ‘reasonable’?
Two police officers came to defendant’s home to arrest her for DUI, and her husband arguably consented to an entry to arrest her. Her locking herself in the bathroom, however, was a rejection of consent and binding. The officer’s threatening to kick down the bathroom door to arrest her was unreasonable, and her act overrode her husband’s consent under Randolph. People v. Santovi, 2014 IL App (2d) 130075, 2014 Ill. App. LEXIS 356 (May 27, 2014): Continue reading →
Posted inApparent authority, Consent|Comments Off on IL: Def’s locking self in bathroom overcame husband’s consent to enter under Randolph
For a search and seizure IAC claim to succeed, the underlying claim must be meritorious, not just likely to succeed. Not filing a motion to suppress may be trial tactics, and, here, the question was whether there was probable cause, and there was. People v. Kornegay, 2014 IL App (1st) 122573, 2014 Ill. App. LEXIS 351 (May 23, 2014): Continue reading →
Posted inIneffective assistance|Comments Off on IL: For an IAC claim to succeed, the underlying claim must be meritorious, not just likely to succeed
Postal inspectors had probable cause to believe that there was evidence in defendant’s car, a postal worker suspected of identity theft from people on her route. Alternatively, the search incident doctrine supported the search. United States v. Adigun, 2014 U.S. App. LEXIS 9609 (11th Cir. May 23, 2014).*
Defendant “is a 26-year-old native English speaker who graduated magna cum laude from college with a degree in business administration,” and he consented to a search of his computer for child pornography, and the search did not exceed the scope of the consent. United States v. Colon-Gentile, 2014 U.S. Dist. LEXIS 71222 (E.D. N.Y. May 15, 2014).*
The smell of marijuana coming from defendant’s car was cause for a stop and search. The officers had stopped their car in front of defendant’s car parked in the driveway, but that became less important on the smell of marijuana. United States v. Alberty, 2014 U.S. Dist. LEXIS 71372 (N.D. Tex. May 23, 2014).*
Posted inAutomobile exception, Consent|Comments Off on CA11: PC of identity theft in def’s car was sufficient for automobile exception
Privacy is a core American value. For 235 years, the Fourth Amendment has protected us from unwarranted searches of our personal belongings. All the while, technology has been changing where and how we keep those belongings. On April 29, the Supreme Court held oral arguments in two cases, Riley v. California and United States v. Wurie. At question is whether the police can search the contents of a phone without a warrant during an arrest. At stake is whether technological advancements have rendered one of our most treasured civil liberties obsolete.
Today, many Americans keep their entire lives on their phones: family photos, emails, calendar appointments, Internet searches and even location history. Considered separately, each of these categories can reveal very private information. Taken together, they can present a pretty good picture of who you are, what you do, where you go, what you read and what you write. What protection does the Constitution offer them from suspicionless search by the government?
Deadly force used to stop this high-speed car chase was reasonable as a matter of law. The number of shots is not determinative (12) as long as the risk is apparent. Alternatively, the officers get qualified immunity because the law was not clearly established at the time of the shooting in 2004. (And, it became clearly established later that this was justified.) Plumhoff v. Rickard, 2014 U.S. LEXIS 3816 (May 27, 2014):
Donald Rickard led police officers on a high-speed car chase that came to a temporary halt when Rickard spun out into a parking lot. Rickard resumed maneuvering his car, and as he continued to use the accelerator even though his bumper was flush against a patrol car, an officer fired three shots into Rickard’s car. Rickard managed to drive away, almost hitting an officer in the process. Officers fired 12 more shots as Rickard sped away, striking him and his passenger, both of whom died from some combination of gunshot wounds and injuries suffered when the car eventually crashed. Respondent, Rickard’s minor daughter, filed a 42 U.S.C. § 1983 action, alleging that the officers used excessive force in violation of the Fourth and Fourteenth Amendments. The District Court denied the officers’ motion for summary judgment based on qualified immunity, holding that their conduct violated the Fourth Amendment and was contrary to clearly established law at the time in question. After finding that it had appellate jurisdiction, the Sixth Circuit held that the officers’ conduct violated the Fourth Amendment. It affirmed the District Court’s order, suggesting that it agreed that the officers violated clearly established law.
Posted in§ 1983 / Bivens, Excessive force, Qualified immunity|Comments Off on SCOTUS: Deadly force to stop this high-speed car chase was reasonable as a matter of law; alternatively, officers get qualified immunity
While unmanned aircraft could offer outstanding benefits to both the NYPD and the city’s fire department, these benefits may not outweigh the concerns of citizens and civil liberties groups.
Posted inDrones|Comments Off on MintPress News: NYPD Renews Push For Drones To Help Police The City
I’m in a drug conspiracy case with FIPF and use of a firearm in a drug trafficking crime starting today and ending Friday(?), Monday(?). Snitch heavy case: Government can’t prove much of anything without jury believing all three (who all refused to talk to us), all with fair to serious baggage and inconsistent statements: one a 50% sentence reduction; another’s wife not charged and 2 years off; one not charged then arrested in another state conspiracy occurring six weeks after she signed her immunity letter with the feds, the week before she testified before the grand jury, who told the grand jury some different things than what she told the cops three days after the occurrence. And we all know the government doesn’t have to clarify before the grand jury …
We exchanged exhibits Friday but no exhibit list from the government per the court’s pretrial order. We turned ours over (about 70 exhibits). It’s 4:48 am Tuesday of day one of trial and no email from the government over the weekend about an exhibit list. We have to be in the courtroom at 8:15. No DEA6’s yet either, although I did get to read one for three minutes last week.
So, postings will be when I can until Saturday.
Posted inUncategorized|Comments Off on Trial starts today
A warrantless entry to arrest on reasonable suspicion violates clearly established law of the presumption of invalidity of a warrantless entry, and the officers are denied qualified immunity. Morris v. Town of Lexington Ala., 748 F.3d 1316 (11th Cir. 2014)*:
Bradford and Bowers seek to overcome the presumption that their warrantless entry into the Morris residence was unreasonable with the argument that a warrant was not required at all; they had “reasonable suspicion” to detain Morris and, thus, to enter his house to do so. If not, the entry was not proscribed by clearly established law. We are not persuaded. Assuming for sake of argument that reasonable suspicion akin to that appearing in Terry v. Ohio would provide an exception to the Fourth Amendment’s warrant requirement, the officers lacked reasonable suspicion, or even arguable reasonable suspicion. As such, the officers’ entry into the Morris residence, without a warrant, exigency, or reasonable suspicion, was contrary to clearly established Fourth Amendment law.
Posted in§ 1983 / Bivens, Qualified immunity|Comments Off on CA11: Warrantless entry to arrest on reasonable suspicion violates clearly established law; officers denied qualified immunity
Consent to a BAC test overcomes McNeeley. State v. Padley, 2014 Wisc. App. LEXIS 414 (May 22, 2014).
Defendant’s not dimming his lights for a parked patrol vehicle was not a traffic offense, so his stop was invalid. State v. Witt, 2014 N.J. Super. LEXIS 72 (May 21, 2014).*
Defendant’s stop for apparent drug deal in front of convenience store was valid and with reasonable suspicion. State v. Jackson, 2014 N.C. App. LEXIS 497 (May 20, 2014).*
Before the 1989 case of Graham v. Connor, excessive force cases were pursued under either state law or the insuperable “shocks the conscience” test of the Fourteenth Amendment. Only after Graham did excessive force cases — now under the Fourth Amendment and 42 U.S.C. § 1983 — inundate the federal courts, which had by then granted far-reaching immunities to officers for their constitutional torts. As a result of federal qualified immunity doctrine, which many states have adopted for themselves, excessive force cases rarely get to trial, plaintiffs often cannot recover, and courts struggle to find principled distinctions from one qualified immunity case to the next.
Part II of this Article describes the evolution of this qualified immunity doctrine and demonstrates how common law immunities were traditionally held to have been incorporated into § 1983 by the Congress of 1871 as a matter of statutory interpretation. It claims that only when the Court began hearing federal Bivens actions and created an immunity doctrine untethered from statutory interpretation, the common-law approach was lost and the modern, nearly insurmountable qualified immunity doctrine was adopted.
Part II thus establishes the historical importance of common-law interpretation to § 1983 suits. Part III then shows how differently excessive force cases would have to be treated were the court to return to the common law interpretive methods in § 1983 cases. At common law, excessive force actions were quite common and more liberal toward plaintiffs seeking redress; officers were expected to pay damages for any unnecessary force; and it was the province of the jury to determine such questions. Parts IV-V then make the theoretical case under both constitutional and statutory interpretation for replacing modern qualified immunity doctrine with a return to its common law variety in excessive-force actions, an approach that would also be far more judicially workable than the current doctrine.
[Law review articles are reviewed by Prof. Andrew G. Ferguson, UDC School of Law.]
Posted inQualified immunity|Comments Off on New Law Review Article: Qualified Immunity and Statutory Interpretation
Sen. Rand Paul (R-Ky.) is facing widespread criticism over his foreign policy views and his zigzagging between eccentric libertarianism and a more mainstream center-right outlook. Yesterday he worsened his predicament with an attack on a judicial nominee, thereby emphasizing his objection to well-accepted constitutional principles and to mainstream views about the war against radical jihadism.
Posted inDrones|Comments Off on WaPo: Rand Paul links arms with ACLU vs. drone use
A line by line dissection of a search warrant affidavit is inappropriate; what does it say as a whole with a common sense reading. “Brummett’s interpretation strains linguistic reality.” It was not so lacking in probable cause that the exclusionary rule should apply. United States v. Brummett, 2014 U.S. Dist. LEXIS 70437 (E.D. Ky. May 2, 2014).*
There was probable cause for defendant’s arrest for being involved in a shooting based on his dress and location right after the call, his being out of breath, near a discarded hoodie that would have explained why his t-shirt was dry in the cold rain. In custody he confessed to the shooting. State v. McLemore, 2014-Ohio-2116, 2014 Ohio App. LEXIS 2058 (9th Cir. May 19, 2014).*
Asking about carrying weapons in Oregon requires that there be reasonable suspicion. State v. Jimenez, 263 Or. App. __, 2014 Ore. App. LEXIS 684 (May 21, 2014).*
Asking for consent to search during a traffic stop requires reasonable suspicion. State v. Pichardo, 263 Or. App. __, 2014 Ore. App. LEXIS 685 (May 21, 2014).*
The officer’s entry into the backyard curtilage allowed an unauthorized view into a window, and that view couldn’t be used to justify exigency. There were photographs in evidence of what was the front door and back door, and there was no exigency justification for violation of the curtilage. Arp v. State, 2014 Ga. App. LEXIS 333 (May 21, 2014).
If defendant was living with his mother, the entry to arrest on an arrest warrant for murder was valid. If he wasn’t living there, he didn’t have standing. When the officers arrived, they saw defendant outside at the rear of the property in open fields. Geiger v. State, 2014 Ga. LEXIS 398 (May 19, 2014).
No matter what the cause was for the defendant’s stop, he made a lane violation when the police car’s emergency lights came on, and that would justify the stop, too. State v. LeJeune, 2014 Ga. App. LEXIS 329 (May 20, 2014).*
This article revisits the emergence of stop and frisk law in the 1960s to make three points. One, the impetus for formalizing police stops arose midst confusion generated by Mapp v. Ohio, the landmark Warren Court opinion incorporating the exclusionary rule to the states. Two, police over-reactions to Mapp intersected with fears of urban riots, leading to a formalization of stop and frisk rules that aimed at better containing inner-city minority populations. Three, the heightened control of urban streets coupled with the heightened protection of the private home bore geographic implications, interiorizing liberty in ways that perpetuated a national narrative of expanding freedoms even as it contributed to black incarceration.
[Law review articles are reviewed by Prof. Andrew G. Ferguson, UDC School of Law.]
Posted inReasonable suspicion, Stop and frisk|Comments Off on New Law Review Article: “To Corral and Control the Ghetto”: Stop, Frisk, and the Geography of Freedom
"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.
