Defendant’s BAC was validly obtained by search warrant, despite the language in the implied consent statute that “no test shall be given” if there’s a refusal. That means breath test. McAllister v. State, 325 Ga. App. 583, 754 S.E.2d 376 (2014).*
On the defense’s concession there was reasonable suspicion for a stop and frisk, when a cigar package fell out of defendant’s pants on being handcuffed, it could be looked in for evidence. State v. Gayden, 133 So. 3d 173 (La. App. 4 Cir. 2014).*
Defendant consented to a UA under the state DUII statute. State v. Wieboldt, 260 Ore. App. 583, 2014 Ore. App. LEXIS 81 (January 23, 2014).*
Posted inUncategorized|Comments Off on GA: Refusal of breath test in DWI case doesn’t mean no SW for BAC
Unwarned interrogation of handcuffed defendant in police car led to discovery of methamphetamine in a fanny pack under the seat. Suppressed. State v. Delong, 260 Ore. App. 718, 2014 Ore. App. LEXIS 97 (January 29, 2014).*
Defendant’s stop was justified because of no headlights during rain, even if the officer wouldn’t have stopped other cars for the same infraction because he was interested in interdiction. United States v. Patterson, 2014 U.S. Dist. LEXIS 11014 (D. Conn. January 29, 2014).*
Defendant could have been subjected to a parole search at home at the time because he had a positive UA weeks earlier. But there was more timely reasonable suspicion, too. United States v. White, 2014 U.S. Dist. LEXIS 11044 (M.D. Pa. January 29, 2014).*
Comments Off on OR: Unwarned interrogation of handcuffed defendant in police car suppressed drugs admitted to
A handrolled cigarette over the ear is not probable cause to believe it’s marijuana. The subsequent search incident of defendant’s person was unreasonable. Aslinger v. State, 2 N.E.3d 84 (Ind. App. 2014).*
Defendant’s PO had reasonable suspicion he was using a computer in violation of the terms of probation, and that justified its search. United States v. Sluss, 2014 U.S. Dist. LEXIS 8091 (E.D. Tenn. January 16, 2014).* In another opinion, defendant also invited a search of the computers. United States v. Sluss, 2014 U.S. Dist. LEXIS 8088 (E.D. Tenn. January 14, 2014).*
Defendant was arrested at a flea market for possession of over 100 recordings as copyright violations that did not have the manufacturer’s name on them. The seizure from his booth and arrest was valid based on a felony being committed in the presence of the officers. State v. Pierson, 2014 Tenn. Crim. App. LEXIS 51 (January 23, 2014).*
Comments Off on IN: Handrolled cigarette over the ear is not probable cause to believe it’s marijuana
Defendant’s cell phone could not be searched in jail property storage without a search warrant. Even in custody, the defendant retains a reasonable expectation of privacy in his “cell [now ‘smart’] phone.” It can’t be justified as a search incident (too late and too far), a jail cell property search, or a jail property inventory. (The court suggests that a general search incident won’t work either.) State v. Granville, 2014 Tex. Crim. App. LEXIS 237 (February 26, 2014), affg State v. Granville, 373 S.W.3d 218, 227 (Tex. App.—Amarillo 2012):
An officer could not enter defendant’s home to execute an arrest warrant without a reasonable belief he was home at the time. Commonwealth v. Gentile, 466 Mass. 817, 2 N.E.3d 873 (2014).
To have standing in a vehicle, the driver has to be the owner or show he has permission of the owner to have possession at the time of the search. He has standing to challenge his own stop, and here there was reasonable suspicion. United States v. Santiago-Ramos, 2014 U.S. Dist. LEXIS 5233 (D. P.R. January 10, 2014).*
Where the officer had probable cause to believe that a burglary had just occurred on defendant’s property and the burglars were still there, they could enter to look for them. United States v. Sill, 2013 U.S. Dist. LEXIS 183580 (D. Nev. July 22, 2013).*
Comments Off on MA: Officer with arrest warrant could not enter defendant’s home to serve it without a reasonable belief he was home at time
The government’s motion to reconsider the grant of defendant’s motion to suppress is denied. The court still finds that the consent form to search his vehicle was signed after the search of the vehicle already started. United States v. Cisneros-Gonzales, 2013 U.S. Dist. LEXIS 94372 (N.D. Ill. July 8, 2013).
Defendant has the burden on a Franks issue, and mere speculation of a false statement does not get one a hearing. United States v. Wade, 956 F. Supp. 2d 638 (W.D. Pa. 2013).*
“Tackling a fleeing armed drug dealer does not an Eighth Amendment claim make …” [But what about the Fourth? That was the claim? It would be denied, too.] 2255 denied. Smith v. United States, 2013 U.S. Dist. LEXIS 94455 (D. S.C. July 8, 2013).*
Comments Off on N.D.Ill.: Consent granted after the search started invalid
Defendant who be significantly under the influence of Xanax and was not shown to be aware of his rights was not shown by the government to have validly consented. They said they required a search warrant, and the officers said they could stay but couldn’t leave until warrant arrived. United States v. Westcom, 2014 U.S. Dist. LEXIS 23348 (D. Vt. February 25, 2014):
Georgia v. Randolph doesn’t prohibit consent after objector arrested and removed. The objection isn’t continuing. Fernandez v. California, 2014 U.S. LEXIS 1636 (February 25, 2014) (6-3). Syllabus:
Defendant filed a motion to reopen the suppression hearing with an expert report that his signature on the consent form had been forged. After the expert reviewed the government’s expert’s report, the opinion was changed to “it’s ambiguous.” In light of this, the court declines to reopen. United States v. Pittman, 2014 U.S. Dist. LEXIS 22218 (M.D. Tenn. February 20, 2014).
The subpoena for email addresses responding to a Craigslist account did not ask for the emails themselves, and they were reasonable. There was no reasonable expectation of privacy in that information. A search warrant then issued with probable cause for the email address that the government concluded was involved with child pornography. United States v. Rudtke, 2014 U.S. Dist. LEXIS 22159 (S.D. Cal. February 20, 2014).*
Defense counsel refused to advance the meritless Franks argument defendant advances in his 2255 because there was no bearing on materiality of the probable cause at all. Therefore, no IAC. United States v. Scaife, 2014 U.S. Dist. LEXIS 22119 (E.D. Va. February 20, 2014).*
Comments Off on M.D.Tenn.: Claim consent form was forged fails without a hearing for lack of proof
Asking for and retaining a DL doesn’t per se mean a person isn’t free to leave. Alternatively, there was reasonable suspicion for the detention then consent. United States v. Cusick, 2014 U.S. App. LEXIS 3376 (11th Cir. February 24, 2014). The court couldn’t be content to decide this only on the alternative ground, instead showing its ineptitude:
“There are no shortage of cases wherein a man accused of assaulting and expelling his live-in girlfriend found himself in federal court arguing that she did not have apparent authority to consent to a search of the dwelling where he kept his drugs and guns. [¶] Further, a survey of those cases reveal that the Clay’s counterparts have found themselves in an uphill battle to make a showing that the women who they cohabitated with did not, in fact, have the apparent authority to consent to a search to the place from which they had been driven by their abusive boyfriends.” United States v. Clay, 2014 U.S. Dist. LEXIS 21109 (E.D. Ky. February 20, 2014), R&R 2013 U.S. Dist. LEXIS 185326 (E.D. Ky. December 31, 2013).
The officer got a radio call about a vehicle suspected of DWI. He saw the vehicle in a parking lot with defendant walking away from it, and defendant appeared and smelled under the influence. That was probable cause for his arrest. State v. Reese, 2014 Wisc. App. LEXIS 145 (February 20, 2014).*
Comments Off on E.D.Ky.: The hapless character with drugs or guns who beats up his wife or girlfriend and she calls the cops ….
Defendant’s refusal to remove his hands from his hoodie pockets in a late night encounter while the police were responding to a burglary report justified a frisk. United States v. Lowe, 2014 U.S. Dist. LEXIS 2801 (E.D. Pa. January 8, 2014).
Defendants lack standing to challenge seizure of bank records by subpoena. The government complied with the Right to Financial Privacy Act, but suppression is not a remedy if they did anyway. United States v. Frantz, 2013 U.S. Dist. LEXIS 182839 (D. Minn. December 23, 2013).*
Defendant sought review of the Fourth Amendment issue pro se in a letter, and it’s rejected both as undeveloped and incapable of IAC review at this point. United States v. Harris, 740 F.3d 956 (5th Cir. 2014).*
Comments Off on E.D.Pa.: Refusal to remove hands from pockets in late night encounter added to RS
A motion to suppress for lack of probable cause does not preserve a scope of search issue for appeal. State v. Zwick, 2014-Ohio-230, 2014 Ohio App. LEXIS 211 (2d Dist. January 24, 2014).
Defendant was at a local police station on an unrelated matter, and an officer found he smelled of marijuana. Defendant returned to his car and was questioned, and admitted to needles for meth in the car. Based on the findings of fact, the search was valid, and the court of appeals (State v. Dalland, 20 Neb. App. 905, 835 N.W.2d 95 (2013)) reversed. State v. Dalland, 287 Neb. 231, 842 N.W.2d 92 (2014).*
Pre-Jones GPS surveillance is valid under Davis good faith exception. And, in this case, as in United States v. Sparks, 711 F.3d 58 (1st Cir. 2013), the GPS tracking led the police to the scene of another crime. United States v. Ransfer, 2014 U.S. App. LEXIS 1669 (11th Cir. January 28, 2014).*
Comments Off on OH2: A motion to suppress for lack of probable cause does not preserve a scope of search issue
Defendant’s 9 plant marijuana patch was seen by the police from a neighbor’s yard. They claimed to have a warrant, and none was produced at the suppression hearing. The police entered his house when he didn’t answer the door. No legal justification for entry onto the curtilage or the house was shown, and the search and seizure is suppressed. Smith v. State, 324 Ga. App. 542, 751 S.E.2d 164 (2013).
At the time of defendants’ stops, officers had reasonable suspicion that both defendants had been involved in a robbery, and that supported the stops. Davis v. State, 2013 Ark. App. 658, 2013 Ark. App. LEXIS 665 (November 6, 2013)*; McBurrows v. State, 2013 Ga. App. LEXIS 883 (November 7, 2013).*
An apartment complex resident called 911 to complain that four men were “robbing” an apartment and making off with stuff. The car was described. Few cars were on the road at the time and the officer saw the likely car and stopped it. The stop was with reasonable suspicion. Johnson v. State, 324 Ga. App. 508, 751 S.E.2d 141 (2013).*
Comments Off on GA: Search under purported SW suppressed; no SW produced in court, no exceptions apply
Telephone number and subscriber name are sufficiently particular for a wiretap warrant. ESN is not required. United States v. Ortiz, 2013 U.S. Dist. LEXIS 181423 (N.D. Cal. December 27, 2013).*
Defendant certainly had standing to challenge his own stop in a car he was driving. The court decides he had standing on the search, too, arguendo, because it decides the merits against him on consent. Defendant immediately consented, so the request for consent didn’t extend the stop. United States v. Berkley, 2013 U.S. Dist. LEXIS 181706 (N.D. Ga. November 12, 2013), adopted 2013 U.S. Dist. LEXIS 181022 (N.D. Ga. December 30, 2013).*
Defendant’s car was seen twice in a high crime area, and it made a turn without using its signal light so it was stopped. The officers smelled marijuana, and that justified a search of the car. State v. Clark, 21 Neb. App. 581, 842 N.W.2d 151 (2013).*
Comments Off on N.D.Cal. Phone number and name particular enough for wiretap warrant
Jardines involved a drug dog sniffing on the porch at the door, and it doesn’t prevent an officer from coming to the door to arrest the defendant on a warrant. Defendant actually accompanied the officers off the porch to the sidewalk first. State v. Warrack, 21 Neb. App. 604, 842 N.W.2d 167 (2014).
There was probable cause for the search warrant of defendants’ house based on evidence from a trash search and other things. [Described almost as a slam dunk issue. “They argue that these papers depict only legal transactions. But the defendants are viewing this evidence through rose-colored glasses. Fairly read, it tied the defendants’ home tightly to” the fraud.] United States v. Floyd, 740 F.3d 22, 2014-1 U.S. Tax Cas. (CCH) P50,124 (1st Cir. 2014).*
Defendant was in a warehouse searched, but he couldn’t show any standing to contest the search. The officers first sought consent, then believed the consenter (who just worked there) might lack authority so they got a search warrant. State v. Rodelo, 2014 N.C. App. LEXIS 31 (January 7, 2014).*
Comments Off on NE: Jardines doesn’t prevent an officer from coming to the door to make an arrest
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“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
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"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, Let it Bleed (album, 1969)
"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]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"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)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
