Defendant was stopped because the LPN didn’t match the car. His furtive movements at the time of the stop justified the officers drawing down on him, handcuffing, and searching the console. State v. Scheett, 2014 ND 91, 2014 N.D. LEXIS 93 (May 1, 2014).
Defendant was in the ER after a vehicle accident, and an officer came in and smelled alcohol on him. There was no reasonable expectation of privacy in that area from that, at least. Witnesses said the vehicle was driving at high speed at the time of a “horrendous” accident. That was enough to seek BAC results. State v. Lomax, 2014 Iowa App. LEXIS 461 (April 30, 2014).*
The Travis County sheriff’s office and other law enforcement agencies are being accused of violating attorney-client privilege after a private firm in Dallas installed a system at the jail that records inmate calls, according to a federal lawsuit filed Tuesday by defense attorneys.
Posted inReasonable expectation of privacy|Comments Off on Austin American-Statesman: Lawsuit: Travis County Jail inmates had calls to attorneys recorded, shared
Under the bill, testing could be required if authorities have a ‘reasonable suspicion’ of drug use. A person failing the test would temporarily lose benefits, although their children could receive assistance through another adult.
The Obama administration said it filed 1,655 applications with the Foreign Intelligence Surveillance Court in 2013, down from 1,856 the previous year. The court maintained its controversial record of virtually never rejecting a government surveillance request, doing so zero times in 2013. The last rejection of such an application was in 2009. The court did modify 34 applications for surveillance and/or physical searches, the Justice Department said in a letter sent to leaders of the House and Senate Intelligence and Judiciary committees.
Posted inFISA|Comments Off on Politico: Surveillance orders declined in 2013
The taking of defendant’s blood without a warrant violated McNeely. “In light of the United States Supreme Court’s remand of Aviles and in light of the reasoning in Villarreal and Sutherland, we conclude that, in the absence of a warrant or exigent circumstances, taking Reeder’s blood pursuant to Section 724.012(b)(3)(B) of the Texas Transportation Code violated his Fourth Amendment rights. See Villarreal, 2014 Tex. App. LEXIS 645, 2014 WL 1257150, at *11; see Schmerber, 384 U.S. at 767 (‘Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned.’). It was error, therefore, to deny Reeder’s motion to suppress.” Reeder v. State, 2014 Tex. App. LEXIS 4558 (Tex. App.–Texarkana April 29, 2014).
A protective sweep in an apartment when an arrest is going down was valid, including moving people from room to room for officer safety and preservation of evidence. United States v. Ocean, 2014 U.S. App. LEXIS 7978, 2014 FED App. 0324N (6th Cir. April 28, 2014).*
Excessive smoke from a vehicle is probable cause to stop it. Veerkamp v. State, 2014 Ind. App. LEXIS 185 (April 29, 2014).*
The district court’s findings on the search issue don’t support the conclusion, so its remanded for findings. State v. Juntunen, 2014 ND 86, 2014 N.D. LEXIS 88 (April 29, 2014),* later opinion 2014 ND 115, 2014 N.D. LEXIS 141 (June 18, 2014).*
A person has a right to refuse to answer a knock-and-talk, and that refusal isn’t exigent circumstances. Here, the police came to the juvenile’s house because of a noise complaint, found a store shopping cart in the back of a pickup truck, and they attempted a knock-and-talk. The occupants ignored them for a long time and the police entered the curtilage at the back of the fenced house in an effort to get them to open up. J.K. v. State, 2014 Ind. App. LEXIS 189 (April 29, 2014):
III. Knock and Talk and Unlicensed Physical Intrusion on Protected Curtilage
Next, J.K. contends the officers in this case violated J.K.’s Fourth Amendment rights by engaging in an unconstitutional knock and talk. J.K. maintains that the officers’ presence at the home and continually knocking for approximately one hour without an answer from an occupant exceeded their implied invitation to knock and talk. See Jardines, 133 S.Ct. at 1415-16. Essentially, we consider whether conduct that may begin as a valid knock and talk may devolve into an unlicensed physical intrusion on a protected area, resulting in an unconstitutional search. See id. at 1415-18; see also United States v. Jones, 132 S.Ct. 945, 949-53 (2012) (holding a physical intrusion—or “trespass”—on protected property may constitute an unconstitutional search).
Trying to imagine all of the things that an individual might keep stored on a cellphone, and trying to decide how much privacy – if any – each item ought to have, the Supreme Court on Tuesday reached for a new digital-age constitutional formula for police searches of those ubiquitous devices, but found that maddeningly elusive.
Two hours of argument, one each on two different generations of cellphone technology, left the strong impression that the Justices would stay away from flat rules: either that police can always search any such device that they take from an arrested person, or that they could not search its contents at all.
Holding that telephones are expressly exempt from the devices prohibited by the Pennsylvania Wiretapping and Electronic Surveillance Control Act regardless of how they’re used, the state Supreme Court has ruled that a state trooper did not violate the act when he instructed an informant to set up a drug deal with the defendant on speakerphone and then eavesdropped on the conversation.”)
Posted inUncategorized|Comments Off on Legal Intelligencer: State Justices Say Telephones Exempt From Wiretap Act
One of the downsides of all of the new gee-whiz identification technology law enforcement is adopting (usually with hefty federal subsidies) is that it never works quite as well as advertised. The FBI touts facial recognition software as the bad guy-tagging tool of the future, but you have to dig through documents to discover that the feds consider a false positive rate of 20 percent to be perfectly acceptable.
We don’t really know what the false positive rate for license plate scanners is, but we do know it has one. At least, Mark Molner, a Prairie Village, Kansas, attorney knows it, because a scanner misread his BMW’s license plate for that of a stolen Oldsmobile plate, and the next thing he knew, cops with guns in hand had him surrounded and wanted to know his business.
Posted inReasonable expectation of privacy|Comments Off on Reason.com: Man Rousted at Gunpoint After License Plate Scanner Misreads Plate
Pennsylvania declines to have broader state constitutional rights under the automobile exception. (No sign it was going to before.) Commonwealth v. Gary, 2014 Pa. LEXIS 1119 (April 29, 2014) (concurrence; dissent): Continue reading →
Posted inAutomobile exception, State constitution|Comments Off on PA declines to have broader state constitutional rights under the automobile exception
Officers came to plaintiff’s house with his former girlfriend who they contend consented to the entry. She, however, had no key to the house and they broke in through a window. Plaintiff stated a § 1983 claim because it wasn’t even possible for her to have apparent authority to consent on the undisputed facts. Webb v. Brawn, 2014 U.S. App. LEXIS 7918 (4th Cir. April 28, 2014): Continue reading →
The District Court gave specific reasons why it was subjecting defendant to a computer search condition on supervised release, and it is both valid and reasonable. (Distinguishing United States v. Inman, 666 F.3d 1001 (6th Cir. 2012) where there were no such findings.) United States v. Smith, 2014 U.S. App. LEXIS 7841, 2014 FED App. 0317N (6th Cir. April 24, 2014).
Officers arrested decedent for reason to believe he had a gun in a school zone. He was a big and, it turned out, mentally ill man, and it took several officers and three sets of handcuffs to restrain him. It was objectively reasonable to use a Taser twice on him, the second time zapping him four times because he never submitted or even showed signs it was working on him. It took great effort just to get him on the ground, and it was all reasonable under the circumstances. Sheffey v. City of Covington, 2014 U.S. App. LEXIS 7976, 2014 FED App. 0330N (6th Cir. April 28, 2014).*
Police responded to a 911 call and saw defendant, who appeared to be wearing body armor, throw a food wrapper on the ground. They arrested him for littering and took him in. The search incident of the body armor was justified. United States v. Herron, 2014 U.S. Dist. LEXIS 59309 (E.D. N.Y. April 29, 2014).*
Apartment building’s common hallway had no reasonable expectation of privacy. The apartment was searched by consent. United States v. Simmonds, 2014 U.S. Dist. LEXIS 58981 (D.Vt. April 25, 2014).*
Officers were surveilling a meth lab in the woods, and they stopped a motorcycle coming out for traffic infractions. The driver smelled of anhydrous ammonia used in methamphetamine manufacture. When defendant came out, he was stopped, too. Looking in his car with a flashlight to see what was in plain view was not a search [and thus not plain error]. State v. Francis, 2014 Mo. App. LEXIS 473 (April 29, 2014).*
WASHINGTON — The Supreme Court seemed wary Tuesday of allowing police unbridled freedom to search through cellphones of people they arrest, taking on a new issue of privacy in the face of rapidly changing technology.
The justices appeared ready to reject the Obama administration’s argument that police should be able to make such searches without first getting warrants.
A majority of the Supreme Court seems inclined to give Americans who are arrested some protection against warrantless searches of their smartphones, but there was no clear agreement among the justices about when and how those added safeguards should apply.
During lively arguments Tuesday about a pair of cases relating to phones seized during arrests, all the members of the court’s liberal wing expressed serious concerns about allowing police the same broad authority to search a smartphone that they have with other items an arrested person may be carrying or have nearby.
The U.S. Supreme Court on Tuesday appeared reluctant to give police sweeping authority to search the full contents of smartphones without first obtaining a search warrant from a judge.
Posted inUncategorized|Comments Off on Wurie and Riley: The two most important privacy cases of the decade; press is underwhelmed
Estranged wife still had enough connection to the home to consent to a search after she found bombs. United States v. Weaver, 2014 U.S. Dist. LEXIS 58384 (W.D. Pa. April 28, 2014):
In general, courts have found that an estranged spouse who resides somewhere other than the marital home may still possess authority to consent to a search of the marital home, if, under the circumstances, the consenting spouse retains a sufficient relationship to the marital home. See, e.g., United States v. Shelton, 337 F.3d 529, 534 (5th Cir. 2003); United States v. Backus, 349 F.3d 1298, 1305 (11th Cir. 2003); United States v. Gevedon, 214 F.3d 807, 811 (7th Cir. 2000); United States v. Trzaska, 859 F.2d 1118, 1120 (2d Cir. 1988); United States v. Crouthers, 669 F.2d 635, 642-43 (10th Cir. 1982); United States v. Long, 524 F.2d 660, 661 (9th Cir. 1975). “Mutual use of property, or joint access or control of property, is generally sufficient.” Trzaska, 859 F.2d at 1120.
Americans should take steps to protect their digital privacy. But keeping sensitive information on these devices is increasingly a requirement of normal life. Citizens still have a right to expect private documents to remain private and protected by the Constitution’s prohibition on unreasonable searches.
Posted inUncategorized|Comments Off on WaPo: Editorial: Supreme Court should begin laying out privacy protections for smartphones
“The Court need not discredit Parker’s theory of pretext in order to find it inconsequential: perhaps the detectives indeed stopped the car not because of a seat belt violation but because of the alleged firearm incident-but the stop remains constitutional. A traffic stop’s legality hinges upon ‘the validity of the officers’ objective explanation for making the stop, not on the subjective intentions of the officers in initiating the stop.’ United States v. Herbin, 343 F.3d 807, 809 (6th Cir. 2003). Even if the traffic offense is a minor one, an officer’s subjective intentions are extraneous to the Fourth Amendment analysis ….” United States v. Parker, 2014 U.S. Dist. LEXIS 58557 (W.D. Ky. April 28, 2014).*
Defendant’s stop for not using a turn signal was valid and led to a finding that his license was suspended and an impound of his vehicle. He contended his stop was for allegedly patronizing prostitutes, but it had a valid legal basis. Defendant was linked to multiple murders and sentenced to death. People v. Suff, 58 Cal. 4th 1013 (April 28, 2014).*
Posted inInventory, Reasonable suspicion|Comments Off on Two pretextual stop cases; one defendant found to be a serial killer
"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.
