Police went to do a knock-and-talk and nobody answered at the front door. Going to the back door, ostensibly as an extension of the knock-and-talk, violated curtilage under Jardines. What was seen went into a search warrant application, and it is suppressed. State v. Ellis, 2019 N.C. App. LEXIS 537 (June 18, 2019).
Defendant argued his due process rights under the Fourth Amendment were violated, but “there is no Fourth Amendment right to due process.” His traffic stop in a high-crime area resulted in officers seeing a gun under the seat. The search of the car was justified under the automobile exception or as a protective sweep for the gun. United States v. Williams, 2019 U.S. Dist. LEXIS 100691 (W.D.Ky. June 17, 2019) (The court erroneously refers to it as a “search incident” to an arrest with a protective sweep. It was valid under Michigan v. Long which is merely reasonable suspicion based. It was “incident” to a search, but that phrase should be avoided except where required.).
The owner of real property had no authority to consent to the search of a visitor’s backpack. State v. Holland, 2019-Ohio-2351, 2019 Ohio App. LEXIS 2456 (2d Dist. June 14, 2019).
The owner of real property could not consent to a search of the rented room of a co-tenant. State v. Hawks, 2019-Ohio-2350, 2019 Ohio App. LEXIS 2449 (2d Dist. June 14, 2019).
Posted inConsent|Comments Off on OH2: Owner of real property has no power to consent to search of visitor’s or co-tenant’s property
A court order doesn’t need to be titled “search warrant” to be considered one. The statute involved says a “search warrant” is required, but any court order issued on probable cause is valid. Whitlow v. Commonwealth, 2019 Ky. LEXIS 205 (June 14, 2019).
The court finds defendant consented to the search of his house. There also was justification for a protective sweep. United States v. Hernandez, 2019 U.S. Dist. LEXIS 100836 (W.D. Tex. June 17, 2019).*
Posted inWarrant requirement|Comments Off on KY: A court order doesn’t need to be titled “search warrant” to be considered one.
Defendant was convicted of DWI 4th by a jury. The evidence in the case was slim, and he had witnesses with him that night who testified he never drank any alcohol. The state’s comment on his refusal to take a test was prejudicial error. McCarthy v. Commonwealth, 2019 Ky. App. LEXIS 104 (June 14, 2019): Continue reading →
Posted inConsent|Comments Off on KY: State’s comment on refusal to consent to DUI test was prejudicial and error
“Walker argues there was no evidence supporting the third Burton premise. We disagree, as several of the ‘factors that help establish the required nexus between a defendant’s drug-dealing activities and his home’ are present in this case. … Walker conducted the drug transactions in a car parked in the driveway behind 6735 Woodstock, ‘rendering his home a more likely repository of his drug-related paraphernalia.’ … He was seen leaving the house immediately before selling drugs to the informant, supporting the inference that the drugs were being stored there. Finally, the affidavit provides that Weaver, an officer with substantial experience and specialized training in narcotics investigations, believed that the residence was being used for the storage and distribution of drugs.” United States v. Walker, 2019 U.S. App. LEXIS 18142 (3d Cir. June 17, 2019).
After defendant’s traffic stop, a search of the car’s interior was justified by his probation search waiver. United States v. Griffith, 2019 U.S. Dist. LEXIS 99686 (W.D. Mo. June 14, 2019).*
Posted inNexus, Probation / Parole search|Comments Off on CA3: Doing drug deals from the car parked behind the house was nexus
Defendant was arrested in an open wooded area, and the protective sweep of a shed near him was valid. United States v. Flanagan, 2019 U.S. Dist. LEXIS 100047 (N.D. Ala. May 29, 2019), adopted, 2019 U.S. Dist. LEXIS 99228 (N.D. Ala. June 13, 2019).
If there is probable cause, “the ‘automobile exception’ has no separate exigency requirement” under Maryland v. Dyson. United States v. Solis, 2019 U.S. Dist. LEXIS 99952 (D. Kan. June 14, 2019).*
CSLI obtained six months before Carpenter is subject to the good faith exception. United States v. Cooper, 2019 U.S. Dist. LEXIS 98929 (N.D. Ga. June 13, 2019).*
But only months after Zuckerberg first outlined his ‘privacy-focused vision for social networking’ in a 3,000-word post on the social network he founded, his lawyers were explaining to a California judge that privacy on Facebook is nonexistent.
Posted inSurveillance technology|Comments Off on The Intercept: In Court, Facebook Blames Users for Destroying Their Own Right to Privacy
State law enforcement officials here do not now employ the technology to scan those in the line of sight of officers. But some police officials oppose the bill on the grounds that a valuable tool could be lost.
Posted inSurveillance technology|Comments Off on USA Today: California could become first to limit facial recognition technology; police aren’t happy
Defendant claims his attorney was ineffective for failing to tell him about a possible motion to suppress, and, thus, he wouldn’t have pled guilty. The court, however, finds no facts anywhere in the case supporting even an inference there was a Fourth Amendment violation. Therefore, Strickland not met. Richardson v. United States, 2019 U.S. Dist. LEXIS 98968 (S.D. Ind. June 13, 2019).*
Defendant’s 2254 COA request is denied. His primary claim is that his state adjudicated search claim was wrong, but Stone bars review of that. Quezada v. Raemisch, 2019 U.S. App. LEXIS 17713 (10th Cir. June 13, 2019).*
In answering a certified question from federal court, an “all due care standard” would grant qualified immunity under Iowa law. Baldwin v. City of Estherville, 2019 Iowa Sup. LEXIS 78 (June 14, 2019).*
Defendant was the subject of a CSLI order issued without probable cause in 2016 to connect him to a murder. Carpenter was issued before he was sentenced and thus applies to his case. [Without even discussing the good faith exception exception,] The court finds the CSLI information harmless beyond reasonable doubt on the trial record. Motion for new trial denied. State v. Waters, 2019 Del. Super. LEXIS 283 (June 13, 2019).
DEA agents were surveilling defendants throughout the day. When they stopped their minivan, they had plenty of reason to know they were inside. United States v. Guzman, 2019 U.S. App. LEXIS 17743 (8th Cir. June 13, 2019).*
Posted inAutomobile exception, Cell site location information|Comments Off on DE: Def was subjected to a warrantless CSLI search in 2016, and Carpenter came before judgment was entered; CSLI was harmless BRD here
The issuing magistrate properly issued a search warrant for text messages on defendant’s cell phone for a particular date and thereafter by inference. Prior to that particular date is suppressed for lack of probable cause. United States v. Bowen, 2019 U.S. Dist. LEXIS 99200 (D. Ariz. June 12, 2019), adopting 2019 U.S. Dist. LEXIS 100150 (D. Ariz. April 16, 2019).
There is a statutory exclusionary rule on license suspensions if the officer makes a stop without jurisdiction. The court declines to extend it to any other situation where there is a problem with the stop. Westra v. Iowa DOT, 2019 Iowa Sup. LEXIS 77 (June 15, 2019).*
Posted inCell phones, Exclusionary rule|Comments Off on D.Ariz.: SW for text messages prior to date of offense suppressed, after date were proper
Failure to leave a copy of the search warrant does not require suppression. There is no prejudice. United States v. Robinson, 2019 U.S. Dist. LEXIS 99902 (E.D. Mich. June 14, 2019).
The CI was creditable because of admissions against interest and corroboration. The protective sweep prior to the warrant arriving was reasonable and resulted in no seizure. People v. Elder, 2019 NY Slip Op 04784, 2019 N.Y. App. Div. LEXIS 4775 (3d Dept. June 13, 2019).*
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)
