Defendant’s traffic stop was valid, and the officer smelled marijuana, and that was probable cause. The vehicle had 39kg marijuana and 13kg of cocaine in it. United States v. Davis, 2014 U.S. Dist. LEXIS 69170 (D. Nev. April 30, 2014), adopted 2014 U.S. Dist. LEXIS 69847 (D. Nev. May 19, 2014).*
Petitioner’s 2255 claim that defense counsel didn’t challenge the stop and search is belied by the record. He did. Whitlock v. United States, 2014 U.S. Dist. LEXIS 69325 (N.D. Ga. April 21, 2014).*
Defendant’s activity in a parked car at night was consistent with rolling a joint, and, when he saw the officers, he left the parking lot. He stopped on a crosswalk, and that justified the stop. United States v. Burrows, 2014 U.S. App. LEXIS 9442 (11th Cir. May 21, 2014).*
Dog sniff at door of a storage unit was used to get a “sneak and peak” warrant which was otherwise valid, and it did not violate Jardines which is limited to homes. A dog sniff like this does not violate any reasonable expectation of privacy. No binding precedent even suggests this search was illegal, so Davis good faith would apply to this warrantless search. The government conceded that it did not timely tell defendant of the “sneak and peak” warrant, but that violation of Rule 41(f)(3) is not subject to suppression of evidence. United States v. Parrilla, 2014 U.S. Dist. LEXIS 69225 (S.D. N.Y. May 13, 2014):
Finally, Parrilla also moves to suppress the evidence obtained through the subsequent September 28 search warrant to remedy the Government’s failure to comply with the warrant return procedures of Federal Rule of Criminal Procedure 41. Parrilla Mem. 9-10.2 This contention is without merit. Although the Government concedes that it violated Rule 41(f)(3) by failing to provide Parrilla with timely notice of the September 28 warrant, Gov. Mem. 44, a violation of Rule 41 does not warrant suppression “unless (1) there was ‘prejudice’ in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the Rule.” United States v. Burke, 517 F.2d 377, 386-87 (2d Cir. 1975) (footnotes omitted); see United States v. Dewar, 489 F. Supp. 2d 351, 365 (S.D.N.Y. 2007) (applying Burke). Parrilla has [*35] not offered anything more than a conclusory statement that “the violation caused prejudice,” Parrilla Mem. ¶ 23, and therefore has not provided any basis for suppression. Parrilla’s motion to suppress evidence from the garage searches is denied.
Posted inExclusionary rule, Warrant execution|Comments Off on S.D.N.Y.: Failure to comply with notice provision for “sneak and peak” warrant did not require suppression
The officer here had probable cause to stop plaintiff for an illegal lane change shown on the dashcam video. Plaintiff smelled of alcohol and there was probable cause for arrest. The fact he passed the BAC test didn’t vitiate the initial probable cause. Kinlin v. Kline, 749 F.3d 573 (6th Cir. 2014).*
The officer’s version of how the stop and search went down is credited because he was “calm and confident” in testifying, as was defendant, but defendant has an interest in the outcome. United States v. Ward, 2014 U.S. Dist. LEXIS 69076 (M.D. Fla. April 17, 2014), adopted 2014 U.S. Dist. LEXIS 69077 (M.D. Fla. May 20, 2014).* [Look, so do the cops. Many will say anyhing to arrest a drug offender. If that’s the USMJ’s standard, it would take a serious screw up for the officer’s testimony to not be credited.]
Defendant’s vehicle was not the exact one described and expected, but there was reasonable suspicion as to it anyway, and that justified the stop. United States v. Mally, 2014 U.S. Dist. LEXIS 69145 (D. Maine April 7, 2014).*
More than two hundred years ago, William Blackstone defined the right of property as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” This concept, commonly referred to as the Right to Exclude, has been arguably one of the most significant and essential elements in defining our understanding of what constitutes property in the United States. Since Blackstone’s description of property in the mid-eighteenth century, the right to exclude others has emerged as the single most important factor in determining the existence of private property. Historically, the right to exclude concerns the relationship between people with respect to things, “such that the so-called owner can exclude others from certain activities or permit others to engage in those activities and in either case secure assistance of the law in carrying out this decision.” But, from a present-day perspective, the right to exclude is so much more than a property right that defines the existence of private property and the relationships between owners and things. It is a right that has evolved beyond the legal constructs of traditional property law to also encompass legal entitlements and benefits possessed by one person over another irrespective of the legal relationship between such person and the thing in which the right is claimed. This Article explores the evolution of right to exclude beyond being an essential and fundamental property right associated primarily with interests in “things” (i.e., in rem conception of property rights) to also being the societal compass that helps form reasonable expectations of privacy that guide us in our dealings and relationships with one another (i.e., in personam conception of property rights). This Article also addresses how this new understanding of the right to exclude may be used to resolve expanding privacy concerns, particularly in the wake of advanced surveillance technology.
[Law review articles are reviewed by Prof. Andrew G. Ferguson, UDC School of Law.]
Posted inUncategorized|Comments Off on New Law Review Article: The Evolution of the Right to Exclude — More than a Property Right, a Privacy Right
WASHINGTON — The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.
The court can act quickly, as when Justice Antonin Scalia last month corrected an embarrassing error in a dissent in a case involving the Environmental Protection Agency.
But most changes are neither prompt nor publicized, and the court’s secretive editing process has led judges and law professors astray, causing them to rely on passages that were later scrubbed from the official record. The widening public access to online versions of the court’s decisions, some of which do not reflect the final wording, has made the longstanding problem more pronounced.
Posted inUncategorized|Comments Off on NYT: Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing
State lawmakers are pushing back against the surveillance alliance between the executive branch and law enforcement agencies at all levels of society.
According to data published by the privacy advocacy group, OffNow.org, lawmakers in 20 states battled over electronic privacy and the Fourth Amendment this past legislative session.
Posted inFISA, Informational privacy|Comments Off on BizPac Review: Electronic privacy battles taking place in 20 states
Defendant’s stepfather’s refusal to consent didn’t bar his mother’s consent under Randolph and Fernandez. State v. Lamb, 218 N.J. 300, 95 A.3d 123 (2014):
The focus of this appeal is whether the strenuously expressed statements by defendant’s stepfather that the police should remove themselves immediately from the premises overrides the later consent given by defendant’s mother. We conclude the rule announced in Randolph, supra, does not render the consent given by defendant’s mother nugatory and the search unreasonable. Continue reading →
Posted inConsent|Comments Off on NJ: Defendant’s stepfather’s refusal to consent didn’t bar his mother’s consent under Randolph and Fernandez
Despite the imbalance of power between police officers and citizens, courts rarely find that a search by a police officer based upon consent was involuntary. Modern courts condone this legal fiction when dealing with adults, but it is less clear what the law requires when courts weigh the voluntariness of consent to a search against the risk of coercion inherent in police encounters with minors — however subtle or overt it may be.
When considering the voluntariness of a minor’s consent to a search, courts are dramatically inconsistent about the role of a minor’s age in that decision. Close analysis reveals that courts struggle to create a meaningful standard and, more often than not, appear to simply ignore minor status. That courts may consider age is not up for debate — the Supreme Court included age as a relevant factor in its seminal case addressing the standard for legality of consent searches. Continue reading →
Posted inConsent|Comments Off on New Law Review Article: Consent Searches of Minors
Defendant’s initial stop for being involved in a robbery was valid, but it became unreasonable once the victim said he wasn’t the guy. At that point, the detention should have ended. Instead, the police repeatedly asked for and finally got consent from his aunt with whom he lived. The consent was invalid because of the unreasonable detention. State v. Coles, 218 N.J. 322, 95 A.3d 136 (2014): Continue reading →
Court documents unsealed Friday show Google, Yahoo, Facebook, and Microsoft are arguing that government gag orders that stop them from disclosing the number of national security requests they receive violate the companies’ First Amendment right to free speech.
Posted inFISA|Comments Off on WaPo: Google, Yahoo, Facebook and Microsoft say government has no right to suppress data request disclosures
You’ve likely noticed posts are behind. I’ve been in trial prep and have a week and a half drug, gun, and shooting conspiracy trial starting Tuesday. Today, we had to exchange and turn in exhibits and witness lists, and we have drafted two of the jury instructions. Will try to get caught up. I need to think about something else besides this trial.
As the Supreme Court continues to cut back on and perhaps eliminate Fourth Amendment suppression, the exclusionary rule has entered a new period of crisis. The rule’s greatest vulnerability today stems from the consensus that it can be justified only based on policy arguments from deterrence or atextual values like judicial integrity. Instead of pursuing those prevailing theories, the exclusionary rule’s defenders should draw on arguments centered on constitutional text and historical change. Under that approach, the exclusionary rule would spring not from the Fourth Amendment itself, but rather from the historically evolving interrelationship between the Fourth Amendment and the Due Process Clauses. By the mid-twentieth century, changes in law and practice had recast the Fourth Amendment as a source of pre-trial “process” analogous to in-trial procedural guarantees such as the Confrontation Clause. And when a criminal conviction is predicated on a violation of the Constitution’s criminal procedure requirements, including the Fourth Amendment, the conviction works an ongoing deprivation of liberty without due process. This approach has a number of advantages and implications. It provides a constitutional foundation for the harmless error doctrine, explains why the same exclusionary principles apply to different constitutional rights, clarifies the contested bounds of many exclusionary exceptions, and supplies a manageable framework for analyzing the remedial implications of newly emerging Fourth Amendment rules for digital surveillance technologies.
[Law review articles are reviewed by Prof. Andrew G. Ferguson, UDC School of Law.]
Posted inExclusionary rule|Comments Off on New Law Review Article: The Due Process Exclusionary Rule
Defendant was parked vehicle on a rural gravel road with bloodshot eyes and the presence of a statuette of the patron saint for drug traffickers, and that was reasonable suspicion. “The officer also noticed a Santa Muerte statuette on the dashboard of Perez-Jungo’s vehicle, which the officer testified was the patron saint of drug traffickers.” State v. Perez-Jungo, 2014 Ida. App. LEXIS 58 (May 20, 2014). [Since I have one of those statuettes in my office …]
Defendant was parked when he was approached and talked to by an officer. He never got out of the car. The officer told him to wait while a drug dog was obtained. That was not a detention [Ha!] and reasonable suspicion was not required. Defendant, however, drove off, got into a high speed chase and was tossing drugs out of the car in flight. That was reasonable suspicion. State v. Jackson, 2014 N.C. App. LEXIS 497 (May 20, 2014).* [Telling defendant to wait for a drug dog is a seizure, and the court was clearly wrong, but the point is moot because defendant fled.]
“As a passenger in a stolen vehicle, Mohammed lacks standing to challenge the search of the vehicle.” United States v. Mohammed, 2014 U.S. App. LEXIS 9534 (4th Cir. May 22, 2014).
Posted inAbandonment, Reasonable suspicion, Standing|Comments Off on ID: Statuette of patron saint of drug dealers on dashboard was a factor in reasonable suspicion
A year ago the school board passed the ground breaking measure, but it can’t be implemented without union approval. The Bangor Area School District would have been the first in the state with a random drug testing policy for teachers and staff, but union officials say the policy would violate their Fourth Amendment rights.
Posted inDrug or alcohol testing|Comments Off on WFMZ TV: Bangor Area School District teachers vote no to random drug testing
Body-worn video cameras are quickly becoming standard-issue for American police, especially at departments in the process of reform. And in New Orleans, the troubled police department is now requiring almost all officers to wear the cameras.
NYT: House Passes Restraints on Bulk Data Collection by Johathan Weisman and Charlie Savage:
In a rare moment of bipartisan agreement between the White House and Congress on a major national security issue, the House passed legislation on Thursday that aims to end the National Security Agency’s bulk phone records program that had prompted intense domestic debate about privacy and civil liberties.
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The move responds to complaints that the service’s privacy settings are too complicated and that people often don’t know who can see what they’re posting.
Posted inInformational privacy|Comments Off on NYT: Some Privacy, Please? Facebook, Under Pressure, Gets the Message
I’ve blogged several times about Magistrate Judge Facciola’s recent opinions denying government applications for warrants and court orders involving digital evidence. Here are three updates for readers who are following the story.
"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.
