An apartment of another was searched under a warrant, and a key to a storage unit was found. The storage unit was nearby but not in the apartment, and it was in defendant’s name. Searching the storage unit in another person’s name violated the Fourth Amendment. State v. Hill, 2018 Minn. App. LEXIS 423 (Sep. 24, 2018).
911 received a hang up call from a cell phone, and there was a man and a woman screaming. Based on GPS information alone, an officer was dispatched to defendant’s address. He knocked on the door, and fairly corroborated that this was the proper place. Enough information was presented to the officer to justify a warrantless entry for exigency and a protective sweep. State v. Lawrence, 2018-Ohio-3844, 2018 Ohio App. LEXIS 4161 (11th Dist. Sep. 24, 2018).
Posted inEmergency / exigency, Scope of search|Comments Off on MN: Another’s outside storage unit at an apartment building found because its key was found during a search of the apt couldn’t be searched under apt SW
Defendant’s DNA was unlawfully collected in a juvenile proceeding that was ultimately dismissed with deferral. It wasn’t removed from CODIS, and defendant was later linked to a carjacking from his DNA. The exclusionary rule is applied because the first search was unlawful and shouldn’t have happened. Casillas v. People, 2018 CO 78, 2018 Colo. LEXIS 813 (Sep. 24, 2018), rev’g People v. Casillas, 2015 COA 15, 2015 Colo. App. LEXIS 289 (2015).
Posted inDNA, Exclusionary rule|Comments Off on CO: Def’s DNA was unlawfully collected in a juvenile proceeding and entered into CODIS, and the exclusionary rule is applied
Plaintiff’s § 1983 case is a replay of his search issue he lost in state court, so it’s barred by Heck v. Humphrey. Wells v. Martin, 2018 U.S. Dist. LEXIS 162564 (W.D. Va. Sep. 24, 2018).
Because plaintiff’s decedent was using more and more force against the officer to resist arrest, the officer was also permitted to, and this did not violate clearly established law. The use of deadly force was justified when plaintiff’s decedent pinned the officer down and was beating his face, and the officer felt he was losing consciousness and shot him. Shumpert v. City of Tupelo, 2018 U.S. App. LEXIS 27263 (5th Cir. Sep. 24, 2018).*
Posted in§ 1983 / Bivens, Excessive force|Comments Off on W.D.Va.: § 1983 case over same search lost in state court is barred by Heck
Defendant’s motion changed from probable cause to arrest to whether there was an unreasonable search and seizure between the suppression hearing and the appeal. Thus, the issue for appeal wasn’t presented to the trial court, so it’s not preserved for appeal. State v. Howard, 2018 La. App. LEXIS 1786 (La. App. 1 Cir. Sep. 21, 2018).
A Dominican Republic wiretap’s product made it into a wiretap allegation in Massachusetts. Even if that was an unlawful wiretap, defendant doesn’t allege his own conversations were ever captured. Therefore, no standing. United States v. Marte, 2018 U.S. Dist. LEXIS 162581 (D. Mass. Sep. 24, 2018).*
Posted inBurden of pleading, Standards of review, Standing|Comments Off on LA1: Changing suppression issue on appeal from lack of PC to arrest to an unreasonable search is waiver of the issue
The exclusionary rule is not applicable to federal supervised release revocation hearings. United States v. Jones, 2018 U.S. Dist. LEXIS 162830 (S.D. N.Y. Sep. 24, 2018).
The government did, in fact, have a search warrant for defendant’s CSLI, so his claim they didn’t fails [never mentioning it was four years before Carpenter]. United States v. Nastri, 2018 U.S. Dist. LEXIS 162666 (D. Vt. Sep. 24, 2018).*
A traffic stop of plaintiff’s family led to calling a drug dog. While waiting for the drug dog, plaintiff had to use the bathroom, and the detaining officers called for a female officer to escort her to a nearby bathroom and handcuffed her and inappropriately searched her finding nothing. There is also a question to be left for a jury whether this officer was already aware that the drug dog found nothing. Telling plaintiff to “step over here” for the search cuts both ways on the question of consent to that search while she was handcuffed, and a jury will have to decide. Harris v. Klare, 2018 U.S. App. LEXIS 25139 (6th Cir. Sep. 5, 2018): Continue reading →
Posted inBody searches, Police misconduct|Comments Off on CA6: Alleged inappropriate search of 17-year-old girl before letting her go to bathroom during traffic stop that led to a drug dog and finding nothing gets to go to jury
Defendant’s claim he needs the CI’s name to attempt to come up with an alibi defense is essentially speculative and fishing for information without a real goal. It doesn’t overcome Roviaro. United States v. Noble, 2018 U.S. Dist. LEXIS 161139 (W.D. Pa. Sep. 21, 2018).
Plaintiff’s § 1983 false arrest case against police officers is time barred. Everybody else is absolutely immune or not subject to suit either. Kennedy v. City of Philadelphia, 2018 U.S. App. LEXIS 27081 (3d Cir. Sep. 21, 2018).*
Posted inInformant hearsay|Comments Off on W.D.Pa.: Request for CI’s identity was speculative venture here and denied
A warrantless entry into a house under the emergency aid exception does not permit a reentry for administrative tasks. Accurate record keeping can’t be a justification for a warrantless entry. Commonwealth v. Wilmer, 2018 Pa. LEXIS 4917 (Sep. 21, 2018) (dissent): Continue reading →
Posted inEmergency / exigency|Comments Off on PA: Emergency aid entry into home doesn’t permit reentry for accurate recordkeeping
Defendant’s CSLI case was GVR’d by SCOTUS after Carpenter. His SCA order was issued in 2011. “Prior to Carpenter, all six courts of appeal to have considered the question had held that the government acquisition of electronic data from third parties was not subject to the Fourth Amendment warrant requirement. See United States v. Ulbricht, 858 F.3d 71 (2d Cir. 2017); United States v. Thompson, 866 F.3d 1149 (10th Cir. 2017); United States v. Graham, 824 F.3d 421 (4th Cir. 2016) (en banc); United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016), rev’d, 138 S. Ct. 2206 (2018); United States v. Davis, 785 F.3d 498 (11th Cir. 2015) (en banc); In re Application of the United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013).” Davis good faith applies, and the CSLI is not suppressed. United States v. Chambers, 2018 U.S. App. LEXIS 27073 (2d Cir. Sep. 21, 2018). [By the opinion, the defense tried valiantly to overcome the good faith exception, but it was necessarily doomed.]
In a terrorism case, the government agreed that search warrant materials could be unsealed, but resisted disclosure of plea agreements and plea related materials. They were presumptively open records at common law and the First Amendment, but the government made a sufficient showing to keep them under seal because of national security concerns. The district court’s order not unsealing was not an abuse of discretion. United States v. Thomas, 2018 U.S. App. LEXIS 27079 (3d Cir. Sep. 21, 2018).
Defense counsel didn’t move to suppress a laptop that, in another case, he moved to suppress and the state dismissed. The appeals court doesn’t ascribe any meaning to the dismissal as being related. At the post-conviction hearing, defendant didn’t prove anything about the likelihood of success of the search. Moreover, he used part of the product of the search in his own case. The court finds no prejudice because of the strength of the evidence. Phillips v. State, 2018 Tenn. Crim. App. LEXIS 716 (Sep. 21, 2018).* [The defense using part of the evidence from the search could have been a strategic move on defense counsel’s part. Just because you can move to suppress doesn’t mean that you should.]
Posted inIneffective assistance|Comments Off on CA3: Govt agreed that SW materials could be released in terrorism case, but not plea agreement; no abuse of discretion in keeping plea papers sealed
California’s retroactive conversion of personal use felony marijuana convictions to civil infractions does not warrant removal of defendant’s DNA from the system. People v. Laird, 2018 Cal. App. LEXIS 841 (4th Dist. Aug. 30, 2018), ordered published Sep. 21, 2018.
Defendant didn’t have standing in a house under construction. The record was unclear who owned it, and it might have been his grandmother, but the condition of the house was such that nobody was living there at the time. On the merits, the search was with exigent circumstances of a burglary in progress. United States v. Womack, 2018 U.S. Dist. LEXIS 161537 (E.D. Pa. Sep. 19, 2018).*
Posted inDNA, Emergency / exigency, Standing|Comments Off on Cal.4th: Retroactive conversion of felony MJ conviction to civil infraction didn’t require lawfully collected DNA be purged from database
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)
