Does the Trespass Theory of the Fourth Amendment Limit the Scope of Knock and Talks?

In United States v. Jones, 565 U.S. __ (2012), and Florida v. Jardines, 569 U.S. __ (2013), the Supreme Court announced a new, or perhaps revived an old, understanding of the Fourth Amendment that is closely tied to property rights and trespass. In Jones, the Court ruled that attaching a GPS tracking device to a … Read more

Returns and Inventories for Computer Search Warrants

More and more criminal investigations involve searches of computers and other digital devices. It is sometimes difficult to apply long-established search and seizure law to the practical realities of digital investigations. One example of this phenomenon concerns the preparation of the return and the inventory after the execution of a search warrant,  a topic of … Read more

How Should the Police Respond to a Report of a Man with a Gun?

Case study: the Neenah stop. Recently in Neenah, WI, a woman called the police to report a man with a gun strapped to his back walking down the street. The call was placed to the non-emergency police number and the caller didn’t report that the man was doing anything threatening, but she did suggest that … Read more

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Re-examining Implied Consent after McNeely, Part III

The first two posts in this series (here and here) discussed opinions from state supreme courts in Arizona and Minnesota considering, post-McNeely v. Missouri, 133 S.Ct. 1552 (2013), whether a suspect’s submission to implied consent testing was voluntary consent within the meaning of the Fourth Amendment. This post discusses why that sort of analysis is … Read more

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Re-examining Implied Consent After McNeely, Part II

Yesterday’s post discussed challenges to implied consent laws raised by defendants following the Supreme Court’s decision last spring in Missouri v. McNeely, 133 S.Ct. 1552 (2013). The post summarized the Arizona Supreme Court’s holding that, independent of the state’s implied consent law, the Fourth Amendment requires an arrestee’s consent to be voluntary to justify a … Read more

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Re-examining Implied Consent After McNeely, Part I

The United States Supreme Court held last term in Missouri v. McNeeIy, 133 S. Ct. 1552 (2013), that the natural dissipation of alcohol in a person’s bloodstream does not constitute an exigency in every impaired driving case sufficient to excuse the Fourth Amendment’s warrant requirement. McNeely’s holding comported with the analysis that the North Carolina … Read more

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Can I Get Some Relief Here?

That’s what I said to my husband during the breakfast hour this morning, while I was working as a short-order cook and waitress for three rather demanding customers (our children). To his credit, he complied and asked how he could help. As a result, I not only got relief, but I got to pick the … Read more

October Term 2013 Begins: Supreme Court Preview

Each year on the first Monday in October, the Supreme Court begins a new term. Today’s the first Monday in October 2013, so in this post, I’ll summarize several of the criminal cases that the Court will hear during the term that has just begun. This will be a selective preview rather than a comprehensive … Read more

Cell Phone Searches Headed to the Supreme Court?

In a post last week, I mentioned that it looks increasingly likely that Supreme Court will grant certiorari in a case considering cell phone searches. In this post, I’ll support that remark by describing two cases in which certiorari petitions have been filed and explaining why each is a strong candidate for Supreme Court review. … Read more

Can the Police Answer a Seized Cell Phone?

The Ninth Circuit recently decided a case that addresses a question I’ve been asked several times: may the police answer a seized cell phone? The answer may depend on the basis for, and circumstances of, the seizure. On the facts before the Ninth Circuit, the court answered no. The Ninth Circuit case. The case is … Read more