Four undercover officers followed defendant to the Post Office, and they approached him about Jordan being at his house. He said they could come to the house, and he consented to an entry into the house and the look for Jordan. Guns were validly found in plain view during the sweep. United States v. Fisher, 2019 U.S. Dist. LEXIS 196738 (E.D. Mo. Oct. 9, 2019).*
A Texas Ranger found defendant’s computer involved in P2P sharing of child pornography, and a search warrant was issued based on probable cause. Owens v. State, 2019 Tex. App. LEXIS 9897 (Tex. App. – Texarkana Nov. 14, 2019).*
The Court of Federal Claims has no jurisdiction for claims under the Fourth Amendment. Drake v. United States, 2019 U.S. App. LEXIS 33796 (Fed. Cir. Nov. 13, 2019).
Posted inConsent|Comments Off on E.D.Mo.: Def consented to four undercover officers who first met him at post office to search house for a wanted man
The entry into defendant’s house to search for a gun lacked exigent circumstances. There was nothing on which the officers could claim there was any risk. Moreover, defendant didn’t consent to their entry into the home. United States v. Mulato-Herrara, 2019 U.S. Dist. LEXIS 196530 (N.D. Ala. Nov. 13, 2019): Continue reading →
Posted inEmergency / exigency|Comments Off on N.D.Ala.: No exigency for entry into home to seize gun for alleged safety of children
Defendant was convicted of reckless driving with an accident. His dashcam would have a recording of it. The dashcam was reasonably seized without a warrant on exigent circumstances. And, it wasn’t unreasonable to wait three days before getting a search warrant. People v. Kien Tran, 2019 Cal. App. LEXIS 1127 (4th Dist. Oct. 24, 2019): Continue reading →
Posted inDigital Searches, Emergency / exigency|Comments Off on Cal.4: Warrantless seizure of def’s dashcam was reasonable on exigent circumstances; three days to get a SW wasn’t unreasonable
Officers received two anonymous calls about a dark pickup truck with a loud muffler on a residential street in the middle of the night. Once it stopped in the street for a few seconds and then pulled off and turned a corner. This was not a high crime area nor an area known for drug dealing. There was no reasonable suspicion for the stop. Allenbrand v. State, 2019 Fla. App. LEXIS 16910 (Fla. 2d DCA Nov. 13, 2019).*
The new crime exception to the exclusionary rule is well recognized under the Fourth Amendment, and the court adopts it under the state constitution, too. State v. Serrano, 2019 Ind. App. LEXIS 486 (Nov. 13, 2019).
The stop of defendant’s car at a McDonald’s drive through was reasonable because officers had an objectively reasonable belief that one Connor was driving the car. Instead, it was defendant who hit another car trying to elude the officers approaching him. United States v. Crosdale, 2019 U.S. Dist. LEXIS 196677 (W.D. Mo. Sept. 24, 2019).*
Posted inAttenuation, Reasonable suspicion, State constitution|Comments Off on FL2: Anonymous calls about a pick-up truck driving slowly around the block in the middle of the night in a residential low crime area wasn’t RS
The collective knowledge doctrine doesn’t require that the officers actually share the information. United States v. Devaugh, 2019 U.S. Dist. LEXIS 196059 (D.D.C. Nov. 12, 2019).
The use of a “court ordered subpoena” apparently not issued on probable cause was common in the jurisdiction prior to Carpenter, and there was no binding authority that was unconstitutional. Therefore, the CSLI would not be suppressed. State v. Tyler, 2019-Ohio-4661, 2019 Ohio App. LEXIS 4708 (9th Cir. Nov. 13, 2019).
The officer lacked reasonable suspicion to stop defendant that he was about to commit DUI. State v. Kreis, 365 Ore. 659 (Nov. 7, 2019).*
NY Daily News: Opinion: Unready for their closeup: The NYPD’s body camera problem (“Last month, outgoing Police Commissioner Jimmy O’Neill quietly released two pages of long-awaited guidelines outlining how and when video from body cameras all cops now wear shall be released. While we welcome some attempt to commit standards to paper, O’Neill’s crack at it falls far short of what is required.”)
Posted inBody cameras|Comments Off on NY Daily News: Opinion: Unready for their closeup: The NYPD’s body camera problem
Police received a 4 am burglary call, and an officer with a dog tracking smell and the officer seeing footprints in the dew on the ground led to defendant’s property. The officer knocked and defendant’s mother let the police in. Inside was defendant, and he had a watch that was from the burglary. The entry on the property was in hot pursuit and the entry into the house was by consent. State v. Ionescu, 2019 Wisc. App. LEXIS 610 (Nov. 13, 2019).
Granting the magistrate’s determination of probable cause the deference it is entitled to, the court finds probable cause for issuance of the search warrant. State v. Young, 2019-Ohio-4639, 2019 Ohio App. LEXIS 4677 (10th Dist. Nov. 12, 2019).*
Border searches of electronic devices are non-routine, and they require reasonable suspicion. Alasaad v. NielsenAlasaad v. Nielsen, 2019 U.S. Dist. LEXIS 195556 (D. Mass. Nov. 12, 2019): Continue reading →
Posted inBorder search, Reasonable suspicion|Comments Off on D.Mass.: Border searches of electronic devices are non-routine, and they require reasonable suspicion
Defendant’s being merely drunk in the lobby of the sheriff’s office wasn’t reasonable suspicion of a crime because the officers didn’t see how he got there (i.e., did he drive himself). State v. Mast, 2019-Ohio-4644, 2019 Ohio App. LEXIS 4698 (5th Dist. Nov. 8, 2019).*
The trial court’s findings of reasonable suspicion from defendant’s weaving within her lane and almost striking the curb was supported by the evidence, and it’s affirmed. State v. Folan, 2019-Ohio-4624, Ohio App. LEXIS 4672 (9th Dist. Nov. 12, 2019).*
“In considering all of these facts under the totality of the circumstances, and mindful of the deference given to a magistrate’s decision regarding the existence of probable cause, we find the search warrant affidavit established a sufficient nexus between the alleged criminal activity and the residence to be searched. … Accordingly, we conclude the magistrate had a substantial basis to conclude that probable cause existed for the issuance of a search warrant of Young’s residence, and the trial court thus did not err in denying Young’s motion to suppress.” State v. Young, 2019-Ohio-4639, 2019 Ohio App. LEXIS 4682 (10th Dist. Nov. 12, 2019).*
Posted inProbable cause, Reasonable suspicion|Comments Off on OH5: Merely being drunk in the Sheriff’s Office lobby isn’t a crime justifying a search
Defendant in his 2255 alleges a Franks violation, but he had the ability and method to do it in the district court before conviction and habeas isn’t the place. United States v. Youker, 2019 U.S. Dist. LEXIS 196001 (E.D. Wash. Nov. 12, 2019).
A collection of add-on claims, including Fourth Amendment, to a successor 2255 are barred. In re Wilson, 2019 U.S. App. LEXIS 33636 (6th Cir. Nov. 8, 2019).*
A police officer was in defendant’s mother’s house talking to him when he had enough to arrest. While waiting for a search warrant, he was in the living room and found a rifle in plain view, which was a permissible view. State v. Jones, 2019-Ohio-4649, 2019 Ohio App. LEXIS 4695 (11th Dist. Nov. 12, 2019).*
Posted inAbstention, Plain view, feel, smell|Comments Off on E.D.Wash.: Def’s Franks claim is barred on habeas where he knew of it all along
Defendant’s bank records cannot be equated with CSLI such that a search warrant is required rather than a subpoena. As Carpenter says: “Our decision today is a narrow one. … We do not disturb the application of Smith or Miller or call into question conventional surveillance techniques and tools, such as security cameras. Nor do we address other business records that might incidentally reveal location information.” United States v. Hall, 2019 U.S. Dist. LEXIS 195658 (M.D. Pa. Nov. 12, 2019).
When the police came to defendant’s place to investigate the death of a one-year-old in defendant’s sole care, they developed reasonable suspicion to detain him during the investigation. State v. Batiz, 2019 Tenn. Crim. App. LEXIS 721 (Nov. 1, 2019).*
Posted inThird Party Doctrine|Comments Off on M.D.Pa.: Bank records can’t be equated with CSLI in detail, and a subpoena is constitutionally sufficient
A Coast Guard port inspection of an incoming vessel led to reasonable suspicion for its more detailed search. United States v. Vastardis, 2019 U.S. Dist. LEXIS 195486 (D. Del. Nov. 12, 2019): Continue reading →
Posted inBorder search|Comments Off on D.Del.: Coast Guard port inspection of an incoming vessel led to RS for a full search
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me
“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
"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
"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]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"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)
