Law.com: The Old Particularity in New Digital Raids by Peter A. Crusco
In his Cyber Crime column, Peter A. Crusco addresses the particularity requirement as it relates to digital evidence seized by search warrant, reviews some of the recent cases, and highlights possible trends.
Forbes: Is Warrantless Access To Cell Site Info A Fourth Amendment Violation? A Primer On Carpenter v. US by John Villasenor
Driving back to one’s house after a drug sale establishes nexus to the house. United States v. Rich, 2017 U.S. Dist. LEXIS 173634 (E.D. Mich. Oct. 20, 2017).
Defense counsel wasn’t ineffective for not moving to suppress defendant’s stop which was clearly reasonable for not having headlights on at night. State v. Menchu, 2017-Ohio-8252, 2017 Ohio App. LEXIS 4624 (2d Dist. Oct. 20, 2017).*
Defendant’s car was going to be subjected to a dog sniff, and the handler wanted him out. The first officer directed defendant out of the car, which is reasonable in any traffic stop. At that point, a gun could be seen. State v. Benjamin, 2017 Fla. App. LEXIS 14900 (Fla. 5th DCA Oct. 20, 2017).
The officers here had reasonable suspicion to detain defendant’s express mail parcel. United States v. Zirkle, 2017 U.S. Dist. LEXIS 173863 (S.D. W.Va. Oct. 20, 2017):
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The seizure of defendant’s backpack for 20 days without seeking a search warrant was unreasonable. It infringed on defendant’s possessory interest, even though he did not seek return of the backpack. United States v. Uu, 2017 U.S. Dist. LEXIS 170636 (D. Haw. Oct. 16, 2017).
Officers had reasonable suspicion to continue the stop when defendant gave curious answers to questions. He said he just left a bar that the officers knew was closed and that he was driving between two towns but was 100 miles out of his way. He also had no license plate and was in an area known for smuggling. United States v. Milne, 2017 U.S. Dist. LEXIS 171533 (D. N.M. Oct. 16, 2017).*
“One of the findings could be based only on testimony from the officer: ‘Although [defendant's girlfriend] had not expressly stated that [the officer] could come into the house, he interpreted her action as inviting him in.’ There is no testimony from either witness that supports the last phrase of this finding — that the officer interpreted the girlfriend’s action as an invitation to enter. The finding is clearly erroneous.” State v. Allis, 2017 VT 96, 2017 Vt. LEXIS 118 (Oct. 13, 2017).
Defendant’s stop was based on reasonable suspicion, and defendant’s argument seeks to impose a definition of reasonable suspicion that’s not the law in the Eighth Circuit. United States v. Schwarting, 2017 U.S. Dist. LEXIS 170633 (D. S.D. Oct. 16, 2017).*
The showing of probable cause for defendant’s blood testing specified alcohol, but the warrant actually said alcohol or drugs could be tested for. This was not unreasonable considering defendant’s driving which was a part of the probable cause. Roberts v. State, 2017 Miss. App. LEXIS 610 (Oct. 17, 2017).
An officer on patrol saw a group of young men in Crips territory and a high crime area and recognized defendant as a member of the gang. He saw defendant walk behind a car and heard the sound of what he concluded was the dropping of a gun. That was reasonable suspicion to inquire further. United States v. Polite, 2017 U.S. Dist. LEXIS 173242 (D. Neb. Sept. 20, 2017).*
NY Times: Body Cameras Have Little Effect on Police Behavior, Study Says by Amanda Ripley and Timothy Williams:
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There is no reasonable expectation of privacy in a contraband cell phone found in a jail. Riley provides no protection in a jail cell phone. State v. Kisack, 2017 La. LEXIS 2314 (Oct. 18, 2017).
A traffic stop was based on probable cause of a traffic offense, and then the officer smelled marijuana which gave probable cause to search the vehicle. Martin v. State, 2017 Miss. LEXIS 424 (Oct. 19, 2017).*
Officers had probable cause for a search of defendant’s vehicle based on observations of a controlled buy and detailed information from a CI. United States v. Morales, 2017 U.S. Dist. LEXIS 172935 (D. S.D. Oct. 19, 2017).*
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
© 2003-17,
online since Feb. 24, 2003
WebPage Visits: real non-robot hits since 2010; approx. 20k posts since 2003
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"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
