Defendant lacked standing to challenge the search of a cell phone taken off a co-defendant that didn’t belong him. Besides, the search of that cell phone was valid. United States v. Brewer, 2017 U.S. App. LEXIS 18003 (3d Cir. Sept. 18, 2017).
Defendant contends that the officer misled the court on whether defendant consented to the search that the affidavit for search warrant was attempting to establish probable cause for. Since a search warrant presupposes no consent, removing the issue of consent from the affidavit still leaves probable cause for issuance of the warrant. State v. Bryan, 2017 Mo. App. LEXIS 930 (Sept. 19, 2017).
The iPhone X moves us closer to a world in which, by simply walking outside or picking up a personal iPhone, we will be monitored but have no idea of the extent.
FRT has been around for a while, so its privacy implications are not new. What is notable about Apple’s iPhone X is that it will catapult FRT into mainstream societal norms of everyday life.
The trial court’s denial of the motion to suppress couldn’t be considered on appeal because the record of the hearing was never filed for the appeal. State v. Tscheiner, 2017-Ohio-7641, 2017 Ohio App. LEXIS 3962 (2d Dist. Sept. 15, 2017).
Defendant’s stop for speeding was unrebutted, and, thus, justified. United States v. Anderson, 2017 U.S. Dist. LEXIS 150465 (D.Ariz. Sept. 15, 2017).*
The trial court found that the stop was justified under the community caretaking function, but the supreme court finds that there was no “stop” and defendant was technically free to go. There were patrol cars on the side of the road and defendant stopped voluntarily. The officer subjectively intended to stop defendant, but defendant objectively stopped on his own. “Because no seizure occurred at the commencement of the encounter, it was not necessary to resort to the community caretaking exception. Although the lower courts began down the wrong path, they reached the correct result.” State v. Rivera, 297 Neb. 709, 2017 Neb. LEXIS 161 (Sept. 15, 2017).*
Officers heard gunshots and stopped the first person they saw. That essentially was a stop on a hunch and without reasonable suspicion. State v. Hairston, 2017-Ohio-7612, 2017 Ohio App. LEXIS 3934 (10th Dist. Sept. 14, 2017).
“Here, the team of investigating agents from the Drug Enforcement Administration and the Stanislaus Drug Enforcement Agency possessed collective knowledge sufficient to establish probable cause to believe that the vehicle in which Defendants Solorio and Barron were traveling was carrying illegal drugs.” United States v. Solorio, 2017 U.S. Dist. LEXIS 150288 (E.D. Cal. Sept. 15, 2017).*
United States v. Cervantes, 859 F.3d 1175 (9th Cir. June 19, 2017) (posted here) had a new opinion issued on rehearing, United States v. Cervantes, 2017 U.S. App. LEXIS 18017 (9th Cir. Sept. 11, 2017), coming to the same result on the probation search issue.
Plaintiff’s dog escaped and ran down I-29 and cars were swerving dodging the dog. The defendant officer attempted to capture the dog but the dog eluded capture. With the patrol car in the road keeping cars back, traffic quickly backed up a quarter-mile. Finally, the officer shot the dog. Under the circumstances presented, the use of force against the dog was objectively reasonable. Hansen v. Black, 2017 U.S. App. LEXIS 17986 (8th Cir. Sept. 18, 2017): Continue reading →
When an inmate has been booked into a jail and no judicial probable cause determination has been made, the Fourth Amendment governs the denial of medical care issue. Estate of Perry v. Wenzel, 2017 U.S. App. LEXIS 18010 (7th Cir. Sept. 18, 2017): Continue reading →
The New York Times reports tonight that search warrants were used for the first time in a Special Counsel’s investigation: Not in Watergate, not in Iran-Contra, not in Whitewater, not in the Valerie Plame investigations. With a Picked Lock and a Threatened Indictment, Mueller’s Inquiry Sets a Tone by Sharon Lafraniere, Matt Apuzzo & Adam Goldman. The others didn’t because they used grand jury subpoenas, and, in Kenneth Starr’s case, he blatantly violated F.R.Crim.P. 6 by putting the grand jury transcripts online. They could have used search warrants if they had probable cause. Why use grand jury subpoenas that take so long? In Whitewater, they had all the records. There was nothing to get a search warrant for. Apparently in none of the others, either. Continue reading →
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)
