I found out from a client this weekend that some used car dealers here are hardwiring GPS devices into the cars they sell so the car can be easily found to repossess. The client was offended because she lost her car while detained. My curiosity leaped over that to the larger question: what if the police know that the car came from this used car dealer. [Tip off? The DMV lienholder?] Can they then subpoena the GPS records of this car for the life of the buyer’s use of the car?
A motion to suppress would fail here on standing and no state action grounds. But, if the time is right, what about third party recordkeeping and intrusiveness and limited consent? If the records are kept solely for repossession purposes, is there at least a glimmer of an expectation of privacy in the information because the consent (if any) is strictly limited? Sounds a little Quixotic to me.
We are coming to the time when a property third party recordkeeping challenge can be made, but it’s still a few years away before it would be successful, I’m afraid. At a CLE to the Public Defender Commission here a month ago, I counseled them to wait to make it until it’s got a better chance of being accepted, rather than making it just to have it unceremoniously shot down.
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When the license plate being obstructed is a basis for the stop but the LPN can easily be read once the officer is out of the patrol car, the stop can’t continue. The trial court did not err in suppressing. State v. Jones, 2014-Ohio-496, 2014 Ohio App. LEXIS 483 (8th Dist. February 13, 2014).*
Defense counsel was not ineffective in this child pornography case for not filing a motion to suppress where the same issue was pending when the case was being prosecuted in state court and defendant lost. Then the case went federal. He could not win on the merits of the search claim. Moreover, not pursuing the search issue was part of an agreed strategy to get the lowest possible sentence. Guarascio v. United States, 2014 U.S. Dist. LEXIS 19093 (E.D. N.C. February 5, 2014).*
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Defendant’s continued stop was justified by his giving false identification. “In addition, it is permissible for a police officer to ask a person stopped for a traffic violation if he is armed, even in the absence of a reasonable suspicion that the person is armed and presents a danger to the officer or others.” Here, it was raised as an IAC claim and it was futile. State v. Siggers, 2014-Ohio-506, 2014 Ohio App. LEXIS 474 (4th Dist. January 31, 2014).
The citizen informant in this case called the police and then met them in the neighborhood as they approached defendant’s house. He identified himself and made himself accountable for what he said, and that made his story more believable. [But, the story sounds kind of like it was corroborated by the product of the search more than just the circumstances.] Barnes v. State, 2014 Tex. App. LEXIS 1721 (Tex. App. – Amarillo February 13, 2014).*
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Defendant’s consent to a patdown for weapons validly led to plain feel of syringe. State v. Burdick, 2014 UT App 34, 2014 Utah App. LEXIS 33 (February 13, 2014):
A joint fugitive task force had an arrest warrant for Yellow Eagle who was known to flee and attempt to hide. His exwife said he was living with defendant Quevedo elsewhere. At that house, their son said they were both home. They had the legal authority to enter to execute the warrant under federal and state law and Payton v. New York. The defendants were found with drugs in the bedroom. State v. Quevedo, 2014 SD 6, 2014 S.D. LEXIS 7 (February 12, 2014):
“The deputy here acknowledges that prior to the canine alert on the vehicle and his unrelated questioning of Defendant and Weeks, he only had an undefined suspicion that something was not quite right. He had no specific articulable suspicion—only a vague hunch. The vagueness of his hunch is understandable. All he knew was that the driver had followed another vehicle too closely, appeared to change lanes abruptly, and that both the driver and the passenger appeared nervous. These observations are simply insufficient to warrant an extension of a routine traffic stop to allow for questioning unrelated to the traffic offense and to permit a drug dog to sniff the car.” But, tossing the drugs in flight was a waiver of any reasonable expectation of privacy. United States v. Hickson, 2013 U.S. Dist. LEXIS 177626 (M.D. Ga. December 18, 2013),* reconsideration denied 2014 U.S. Dist. LEXIS 18101 (M.D. Ga. February 13, 2014).*
Officers had exigent circumstances for a warrantless entry into defendant’s apartment. He was armed and believed to have just been involved in a robbery, and there was a small child inside. United States v. Evans, 549 Fed. Appx. 397 (6th Cir. 2013).
2255 can’t be used to reargue the case, including the suppression motion. “Because both trial and appellate counsel did advance the type of arguments Gonzales complains about in this § 2255 proceeding, this ineffectiveness claim fails.” United States v. Gonzales, 2013 U.S. Dist. LEXIS 178082 (S.D. Tex. October 28, 2013).*
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Even though Jones is retroactive to cases on direct review, defense counsel never filed a motion to suppress on that ground so it’s waived. “Jones may have bolstered Johnson’s legal argument for suppression of the GPS evidence, but that cannot serve as a basis for a new trial.” United States v. Johnson, 537 Fed. Appx. 717 (9th Cir. 2013).*
Only reasonable suspicion was needed for defendant’s stop, but it’s apparent there was probable cause. The stop was valid. United States v. Goss, 2013 U.S. App. LEXIS 16634 (4th Cir. August 12, 2013).*
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Davis good faith means that the McNeely DUI warrant requirement won’t be applied to cases before it was decided, and McNeely isn’t retroactive. State v. Adkins, 433 N.J. Super. 479, 81 A.3d 680 (2013).
The affidavit for the search warrant was thin, but, considering the deference given warrants, it was enough under Ventresca and Gates. Here, however, there was more because it was undisputed that the officer gave additional information to the issuing magistrate, but couldn’t remember the details. What he remembered of those unrecorded details, however, were sufficient to get over the bar. [Lack of recordation should be a bigger deal; come on.] United States v. Jackson, 2013 U.S. Dist. LEXIS 178374 (E.D. Mo. November 15, 2013), adopted 2013 U.S. Dist. LEXIS 177619 (E.D. Mo. December 17, 2013).*
Officers had exigent circumstances for a warrantless entry into defendant’s apartment. He was armed and believed to have just been involved in a robbery, and there was a small child inside. United States v. Evans, 2013 U.S. App. LEXIS 25321, 2013 FED App. 1030N (6th Cir. December 16, 2013).
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A roadblock to stop a fleeing bank robber was reasonable: It stopped the one vehicle they had a description for, and it was placed based on reports from the beeper. United States v. Rodger, 521 Fed. Appx. 824 (11th Cir. 2013).
The trial court erred in holding that the police with an anonymous report of a methamphetamine lab should have gotten a search warrant. There wasn’t yet probable cause. They went to the house to corroborate it, and when the door was opened, they found an operating meth lab with a smoky haze in the room. That constituted an emergency to seize the apartment for an emergency search. State v. Lee, 2013 Ala. Crim. App. LEXIS 44 (June 7, 2013),* substituted opinion 2013 Ala. Crim. App. LEXIS 82 (October 4, 2013):
Conversely, the State has not demonstrated that the trial court erred in its finding that the January 7 search of the apartment lacked sufficient evidence of the existence of exigent circumstances. On January 7, Officers Taylor and Hall were unable to determine from which apartment the odor they were smelling was coming until Bailey opened the door to the apartment. Officer Taylor testified that he did not see any fire or smoke inside the apartment. In fact, Officer Taylor testified that the apartment appeared to be safe. Thus, based on Taylor’s testimony that the apartment appeared to be safe and the testimony that the officers were unable to determine from which apartment the odor they were smelling was coming, the trial court did not abuse its discretion in finding there was a lack of testimony about the existence of exigent circumstances on January 7, and the State has not shown that the trial court improperly granted the motion to suppress with regard to the January 7 search.
Gant’s “reasonable to believe” language applies to DUI cases for a search incident. State v. Ewertz, 49 Kan. App. 2d 8, 305 P.3d 23 (2013).*
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Defendant’s buying a one-way train ticket with cash is not probable cause to search his luggage. Cash was suppressed and forfeiture denied, and it was affirmed on appeal. People v. $280,020 in United States Currency, 2013 IL App (1st) 111820, 372 Ill. Dec. 691, 992 N.E.2d 533 (2013). [Yes, there still are drug courier profile cases. Just not as many as before.]
Defendant who sold drugs out of an apartment lacked standing to challenge its search where he was not the renter and not on the utility bills. It was a “stash house.” “While Jones may have spent some nights in the apartment, his primary activity was selling drugs, an illicit commercial function that society doesn’t value. Therefore, the court finds that Jones has not met his burden of proving he has standing to challenge the results of the Melville Street search.” Even if he had standing, he loses on the merits of probable cause for the warrant based on the sale from inside. United States v. Jones, 949 F. Supp. 2d 316 (D. Mass. 2013).*
“[T]he [implied] agreement between the PVPD and the LPD [for a drug buy operation in one city] constituted a ‘request for assistance’ under K.S.A. 2012 Supp. 22-2401a(2)(b) and, therefore, the PVPD’s drug buy was a lawful exercise of its law enforcement authority.” State v. Vrabel, 49 Kan. App. 2d 61, 305 P.3d 35 (2013).*
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NYPD and NYFD responded to a call about a house fire in Queens at a particular address and found nothing. They didn’t even smell smoke. They drove around and parked and went down defendant’s driveway and found him in his backyard in his car smoking a blunt. He also had a gun in the car. The backyard was curtilage, and the police had no emergency basis for the entry. The motion to suppress should have been granted. People v. Theodore, 2014 NY Slip Op 1025, 114 A.D.3d 814, 980 N.Y.S.2d 148 (2d Dept. 2014): Continue reading →
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"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.
