Consent was found against the defendant, and it’s affirmed on appeal because “the record is devoid of any evidence that appellant was coerced into consenting.” Her alternative argument that the consent was obtained after the search was already started was not ruled on by the trial court, so it can’t be considered on appeal. Nance v. State, 2014 Ark. 201, 2014 Ark. LEXIS 281 (May 8, 2014).*
Defendant was found to have consented to both a protective sweep and a search. It started as a knock-and-talk, but he was excessively nervous and was handcuffed for safety reasons before the consent was sought. United States v. Ellis, 2014 U.S. Dist. LEXIS 62998 (E.D. Ark. May 5, 2014).*
In a kidnapping situation, the SWAT team finally entered, and one was trained in identifying meth labs. This meth lab was in plain view. Smith v. State, 2014 Ark. App. 289, 2014 Ark. App. LEXIS 341 (May 7, 2014).*
An exigent circumstances entry and search has to be limited by the exigency, and this one was. (In this case, there was a hearing on a motion to suppress in state court before, and then the case was indicted federally, and the transcript of the state hearing was used. [Such is the penchant for the federal districts in New York to avoid suppression hearings. A hearing probably would have been easier than ordering and reading the transcript.]) United States v. Ashburn, 2014 U.S. Dist. LEXIS 62656 (E.D. N.Y. May 5, 2014):
… As such, in view of the facts of this case, the court concludes that the exigencies of the moment, as they reasonably appeared to the officers, permitted them—and arguably compelled them—to enter Laurent’s bedroom immediately and without a warrant in order to ensure that nobody was injured inside. Continue reading →
Posted inEmergency / exigency, Scope of search|Comments Off on E.D.N.Y.: Exigent circumstances entry and search has to be limited by the exigency
An arrest and search and seizure outside of an officer’s territorial jurisdiction does not warrant exclusion. State v. Gates, 2014 La. LEXIS 1139 (May 7, 2014):
Even if we assume Officer Bell acted outside of his territorial jurisdiction in the detention of the defendant, suppression of the evidence obtained after Mr. Gates’ detention would not be warranted. The statutory rules which delineate the territorial zones of responsibility of various law enforcement agencies are not designed to prevent unreasonable invasions of privacy. There are no constitutional grounds present here to justify the suppression of evidence. “Exclusion of reliable evidence obtained in an otherwise legal and good faith seizure would not serve the administration of justice or the purpose of the legislative directive of territorial responsibility.” Bickham, 404 So.2d at 933. The exclusionary rule does not extend to “non-constitutional violations of statutes which are not designed to protect the privacy interests of citizens.” Durke, 2003-3174, p. 1; 885 So.2d at 514.
Posted inExclusionary rule|Comments Off on LA: Arrest and search and seizure outside of an officer’s territorial jurisdiction does not warrant exclusion
I’ve long proposed a simple rule: police officers who shoot unarmed innocents should have their guns taken away. They can work desk jobs or monitor meters. But if nothing else, they shouldn’t ever be in a position to put lives in danger again.
Applying that rule in Miami would have dramatic consequences.
The local CBS affiliate has investigated a police shooting that happened there last December. The results are jaw-dropping. A man who committed armed robbery and shot a police officer hours earlier was spotted in his automobile, along with a passenger who played no role in his crime. Police officers gave chase.
Posted inExcessive force|Comments Off on The Atlantic: 23 Police Officers Fire 377 Bullets at Two Men With Zero Guns
Key lawmakers in the House are nearing a bipartisan compromise on surveillance legislation that they believe can pass the full chamber and satisfy President Obama’s goal of ending mass collection of Americans’ phone data, aides said this week.
Posted inFISA|Comments Off on WaPo: House nears deal on bill to end mass collection of phone data
Plaintiffs showed enough to enjoin a criminal investigation punctuated by armed raids on plaintiff’s home for campaign finance records for interference with First Amendment political and free speech rights. O’Keefe v. Schlitz, 2014 U.S. Dist. LEXIS 63066 (E.D. Wis. May 6, 2014):
This case requires the Court to decide the limits that government can place on First Amendment political speech. It comes to the Court with more than the usual urgency presented by First Amendment cases because the defendants seek to criminalize the plaintiffs‘ speech under Wisconsin‘s campaign finance laws. Defendants instigated a secret John Doe investigation replete with armed raids on homes to collect evidence that would support their criminal prosecution. Plaintiffs move for a preliminary injunction to stop the defendants‘ investigation.
Posted in§ 1983 / Bivens, Excessive force, Warrant execution|Comments Off on E.D.Wis.: Armed raid for campaign finance records leads to enjoining investigation for First Amendment violation
Police came to defendant’s trailer on rural property looking for a wanted felon. He consented to an entry to look for the guy, and inside the officers smelled then saw raw marijuana and paraphernalia. Even if the entry onto the curtilage was unreasonable, defendant didn’t show that it was exploited by the police because of his consent [essentially] curing that issue. State v. Kapelle, 2014 Ida. App. LEXIS 49 (May 7, 2014), substitute opinion State v. Kapelle, 2014 Ida. App. LEXIS 72 (July 24, 2014). [The property was not completely rural because defendant was in an Internet chat room with his computer’s camera when the police knocked.]
A child pornography defendant who used LimeWire has no reasonable expectation of privacy in his computer files accessible from outside his home. United States v. Hill, 750 F.3d 982 (8th Cir. 2014).*
The officer had reasonable suspicion to extend the stop from furtive movements, excessive nervousness, and admission of drug use. Baker v. State, 2014 Ga. App. LEXIS 317 (May 6, 2014).*
A motion to suppress an FBI search over four years into later civil litigation where the same records were produced in civil discovery is academic and denied. In re 650 Fifth Ave. & Related Props., 970 F. Supp. 2d 204 (S.D. N.Y. September 9, 2013):
More than four years after the commencement of this litigation and the execution of a search warrant, two of the claimants to this in rem forfeiture action, the Alavi Foundation and 650 Fifth Ave. Co. (collectively, “Alavi”) have moved to suppress a wide swath of evidence seized from their offices on December 19, 2008. The motion comes on the eve of trial set to begin September 16, 2013. Prior to this motion, Alavi had not raised any concern regarding the search of its offices, apart from concerns that privileged materials had been seized. Continue reading →
Posted inReasonable expectation of privacy|Comments Off on S.D.N.Y.: FBI search 4 years earlier, where same records were disclosed in civil discovery, will not be suppressed
Consent to search a computer includes its external hard drive. United States v. Beckmann, 2014 U.S. Dist. LEXIS 62950 (E.D. Mo. May 7, 2014) R&R 2014 U.S. Dist. LEXIS 63156 (E.D. Mo. March 14, 2014).
Plaintiff admittedly refused successive requests to squat and cough for a jail book-in strip search, so officers shot her with a pepperball gun that broke the skin. That use of force was not excessive. “Measured force used on an arrestee who refuses immediately successive search orders cannot be deemed objectively unreasonable under our qualified immunity caselaw.” Also, laughing and taunting doesn’t make the search unreasonable. Dawson v. Anderson County, 2014 U.S. App. LEXIS 8515 (5th Cir. May 6, 2014).*
2254 petitioner had a “full and fair” opportunity to litigate his search claim in state court and did and lost, so it can’t form the basis of habeas relief. COA denied. Harding v. McCollum, 2014 U.S. App. LEXIS 8492 (10th Cir. May 6, 2014).*
Tennessee adopts the “second look” booking inventory search rule. Defendant had been arrested for DUI, but he was a suspect in a rape and robbery. Officers looked again at the contents of his pants and found jewelry from the victim, and it was validly seized. State v. Morris, 2014 Tenn. Crim. App. LEXIS 425 (May 6, 2014):
The question of whether a warrant is needed before a police officer can take a “second look” at items previously seized during an inventory search is one of first impression in this state. However, the consensus among jurisdictions that have addressed this issue appears to be that once a person has “been lawfully arrested and his property has been lawfully seized by law enforcement personnel pursuant to that arrest, the arrestee has no reasonable expectation of privacy in that property, and later examination of the property by another law enforcement official does not violate the Fourth Amendment.” Williams v. Commonwealth, 259 Va. 377, 527 S.E.2d 131, 136 (Va. 2000) (citing cases from various jurisdictions). This is because no “situation imaginable is as alien to the notion of privacy than an arrestee sitting in a jail cell, completely separated from his effects that are lawfully controlled and inventoried by the very police that are investigating him.” Oles v. State, 993 S.W.2d 103, 109 (Tex. Crim. App. 1999). Put another way, an “arrestee has no reasonable expectation that the police will not scrutinize closely those items that are in their legitimate custody, discovering evidence, perhaps, even where none was initially suspected.” Wallace v. State, 373 Md. 69, 816 A.2d 883, 894 (Md. 2003) (quoting Holland v. State, 122 Md. App. 532, 713 A.2d 364, 368 (Md. Ct. Spec. App. 1998)). Continue reading →
LAS VEGAS — Could police be playing favorites when it comes to getting search warrants signed by local magistrates? An I-Team investigation shows one judge has signed nearly twice as many warrants this year, as any other judge.
Scholarly discussion of the Fourth Amendment focuses narrowly on judicial enforcement and the exclusionary rule. This Article takes a different approach: recognizing that prosecutors have a co-equal responsibility to enforce the Fourth Amendment. More specifically, prosecutors have a constitutional and ethical duty not to use evidence that they conclude was unconstitutionally obtained even if that evidence is admissible — the duty of administrative suppression. Instead of analyzing whether evidence would likely be deemed admissible by a court, prosecutors should instead analyze whether the evidence in their cases was gathered unconstitutionally and act accordingly.
I’m not a fan of using puns in the titles of law review articles. But many authors writing about Fourth Amendment law seem unable to resist the lure of feline puns enabled by the Supreme Court’s seminal decision in Katz v. United States (1967). Here are examples of titles published just in the last two years, most (but not all) of which are from student notes: Continue reading →
Posted inUncategorized|Comments Off on WaPo: Volokh: A law review title pun that has run its course
A motion for new trial is not the place to relitigate a motion to suppress. Of course it was damaging: most searches are. “Defendant goes to great lengths in his Motion to explain how damaging the evidence seized at Franklin Street was to his defense. There is no question that the admission of drugs and guns seized pursuant to the warrant and offered at trial was damaging. However, whether he was damaged by the admission of this evidence at trial is not the issue. The issue to be determined is whether Defendant has demonstrated that the search violated his constitutional rights. Defendant has again failed to do so. Defendant’s request for a new trial based upon the search and seizure at Franklin Street will be denied.” United States v. Northington, 2014 U.S. Dist. LEXIS 62293 (E.D. Pa. May 6, 2014).
Defendant didn’t have standing in an underground apartment parking garage. He didn’t even live there. [why was this motion even filed?] United States v. Mohamed, 2014 U.S. Dist. LEXIS 62540 (D. Minn. April 10, 2014).*
Posted inMotion to suppress, Standing|Comments Off on E.D.Pa.: Motion for new trial is not the place to relitigate a motion to suppress
Knock-and-talk is a legitimate law enforcement technique, but other officers fanning out to enter the backyard, the curtilage, at the same time is not. The observations in the backyard lead to suppression of the search. State v. Morgan, 2014-Ohio-1900, 2014 Ohio App. LEXIS 1854 (5th Dist. May 1, 2014):
[*P31] In the instant case, while the knock and talk was taking place, other members of the SCRAP Unit entered onto the curtilage of appellant’s property. It was this entry which allowed officers to observe the marijuana and from which the rest of their investigative steps arose, including entry into appellant’s residence and request for a search warrant.
[*P32] The question, therefore, is whether the officers were lawfully in a position to view the marijuana plants on the rear elevated deck, thus setting into motion the remaining events resulting ultimately in the execution of a search warrant. We conclude they were not. Continue reading →
Posted inCurtilage, Knock and talk|Comments Off on OH5: Knock-and-talk doesn’t permit entry into backyard, too
Remedies influence rights, and rights apply across remedies. Combined together, these two phenomena produce the problem of spillover across remedies. The spillover problem occurs when considerations specific to one remedy affect the definition of a substantive rule that governs in other remedial settings. For example, the severe remedial consequences of suppressing incriminating evidence might generate substantive Fourth Amendment precedents that make other Fourth Amendment remedies (such as damage awards, injunctions, or ex ante denials of search warrants) more difficult to obtain. Or, the rule of lenity might yield a narrowed reading of a statutory rule in a criminal case, which then carries binding effect on subsequent attempts to secure civil relief under the same statutory provision. In these and other contexts, the cross-remedial scope of substantive rules can give rise to significant doctrinal distortions, with one remedy’s influence on a substantive norm dictating the outcome of cases that would otherwise implicate different remedial considerations. Continue reading →
Plaintiff’s prison visit questioning for 15-20 minutes about whether she had brought drugs into a prison was reasonable. Her strip search based on an anonymous tip was completely uncorroborated and was without reasonable suspicion. The law had been clearly established since at least 1996 that a prison visitor strip search had to be based on at least reasonable suspicion. Therefore, no qualified immunity. Hernandez v. Montanez, 2014 U.S. Dist. LEXIS 61335 (D. Mass. May 2, 2014).
After a traffic stop, the officer accumulated reasonable suspicion. After giving defendant his papers back, he asked defendant if he’d continue to talk to him, and defendant agreed. A drug dog arrived and alerted. The continuation was with consent, and the trial court erred in suppressing. State v. Knox, 2014 Ala. Crim. App. LEXIS 34 (May 2, 2014).*
Defendant contends that the search of his vehicle was without his consent, and defense counsel was ineffective for not raising that issue. The court finds as a fact that defendant never mentioned that to defense counsel, therefore, counsel couldn’t be ineffective. Shipp v. United States, 2014 U.S. Dist. LEXIS 61842 (E.D. Wis. May 5, 2014)* (effectively adopting contributory negligence).
Defendant clearly consented to these searches. “As to the search of his cell phone, vehicle, thumb drive and one email account, Russ consented to those searches. See Fernandez v. California, 134 S.Ct. 1126, 1132 (2014) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973) (“Consent searches are part of the standard investigatory techniques of law enforcement agencies and are a constitutionally permissible and wholly legitimate aspect of effective police activity.”). United States v. Russ, 2014 U.S. Dist. LEXIS 61978 (E.D. Tex. April 2, 2014).*
Posted inConsent, Ineffective assistance|Comments Off on E.D.Wis.: If defendant doesn’t tell his lawyer something, the lawyer can’t be ineffective about it
At worst, the officer’s omission of three things from the affidavit for search warrant was negligent, not reckless, and, even if the material was included, it doesn’t defeat the finding of probable cause. “Thus, because Mr. Simpson has failed to allege, much less make a substantial preliminary showing, that the agent deliberately omitted information from the affidavit in reckless disregard for the truth, nor has he demonstrated that with the omitted information would defeat probable cause, his request for a Franks hearing is denied.” United States v. Simpson, 2014 U.S. Dist. LEXIS 61558 (E.D. N.C. May 1, 2014).
Defendant consented to the search of his cell phone. He brought up the subject of the cell phone first. United States v. Stokes, 2014 U.S. Dist. LEXIS 60760 (E.D. Mo. April 11, 2014).*
The magistrate’s findings that the search of defendant’s email was reasonable is not objected to, so it is adopted. United States v. Russ, 2014 U.S. Dist. LEXIS 61677 (E.D. Tex. May 5, 2014).*
With my co-bloggers Randy Barnett and Stewart Baker debating Smith v. Maryland and the third-party doctrine, I figured I would offer some responses. I’ll start with a few links to my views, and then I’ll respond to Randy and Stewart.
First, I think Smith v. Maryland was correctly decided and offers a fundamentally sound principle for applying the Fourth Amendment in a networked world. For those who want the short version of my view, check out this debate with Greg Nojeim. For those who want the longer version, I make the basic argument in “The Case for the Third Party Doctrine,” and I respond to criticisms of my position in “Defending the Third-Party Doctrine: A Response to Epstein and Murphy.” I also develop the idea further in “Applying the Fourth Amendment to the Internet: A General Approach.”
Posted inUncategorized|Comments Off on WaPo: Volokh: My defense of the third-party doctrine, and a response to Randy and Stewart
"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.
