Under Florida v. Harris, the defense gets discovery of the dog at issue, not other dogs handled by the same handler. United States v. White, 2013 U.S. Dist. LEXIS 152019 (D. Me. October 22, 2013).
A frisk was justified by a movement at the waist and the sound of something metal hitting the ground. United States v. Starkie, 2013 U.S. Dist. LEXIS 152319 (W.D. N.C. September 30, 2013).*
While defendant was in custody in the police car, the search of the car was justified by inventory or probable cause to believe evidence would be found. United States v. Swallows, 2013 U.S. Dist. LEXIS 152651 (E.D. Tenn. October 24, 2013).*
Girlfriend’s consent to search by her probation officer was complete and to the whole premises. Bivens action properly dismissed. Dunn v. Mattivi, 535 Fed. Appx. 535 (8th Cir. 2013).*
Comments Off on D.Me.: Discovery under Florida v. Harris is of the dog, not the handler
When police have an arrest warrant, warning of a state right to refuse an entry into the home required in State v. Ferrier does not apply. Consent must still be shown to be voluntary under the totality of the circumstances. State v. Ruem, 179 Wn.2d 195, 313 P.3d 1156 (2013):
The officer knew that a car registered at the address he came to had been in a one car accident and airbags deployed. However, nothing at the house, no sounds, no indications, no nothing, that a person inside was in need of aid, so there was no justification for an entry. Defendant was found drunk inside. State v. Gibson, 2013 Tenn. Crim. App. LEXIS 900 (October 18, 2013).*
Defendant was entitled to a jury instruction on illegal search under Texas’s art. 38.23(a) so they could decide whether he abandoned the property or there was an illegal search. Gonzalez-Martinez v. State, 414 S.W.3d 906 (Tex. App. – Amarillo 2013).*
The fact defendant’s paper temporary plate number was not in the system was justification for a stop. Croom v. State, 996 N.E.2d 436 (Ind. App. 2013).*
Comments Off on TN: Nothing at house supported officer’s exigency claim so entry unjustified
A flyover of defendant’s property was not an unreasonable search under the Fourth Amendment or the state constitution. After that, defendant consented to a search of his property. State v. Harsh, 2014-Ohio-251, 2014 Ohio App. LEXIS 242 (12th Dist. January 27, 2014).
Defendant’s 2009 guilty plea waived any GPS search issue under 2012’s Jones. United States v. Glay, 550 Fed. Appx. 11 (D.C. Cir. 2014).*
Posted inUncategorized|Comments Off on OH12: Flyover not a search
Defendant was allegedly involved in a prison stabbing, and an RN on staff interviewed and examined him for injuries. That was not a governmental search under the Fourth Amendment. If it was, it was authorized under the special needs exception. United States v. Andrews, 2014 U.S. Dist. LEXIS 9748 (N.D. W.Va. January 17, 2014), earlier opinion, United States v. Andrews, 2014 U.S. Dist. LEXIS 9747 (N.D. W.Va. January 15, 2014)* (probable cause was shown for seizure of defendant’s DNA for testing to match to clothing seized from a crime scene).
The officer had reasonable suspicion for defendant’s stop and detention after an alleged drug deal. A CI gave specific information including the license number of a rental car, it was used in a high crime area for a deal from an alleged drug house, when stopped, defendant was extremely nervous, and a computer check then showed prior cocaine arrests. United States v. McCauley, 2014 U.S. Dist. LEXIS 9851 (M.D. N.C. January 23, 2014).*
Comments Off on N.D.W.Va.: Prison medical staff’s view of def’s body either not a search or was justified by special needs
The search warrant was issued by a state judge, but the feds searched the computer. There’s no reason why, once it was lawfully seized, it couldn’t be searched by somebody other than state authorities. United States v. Lackner, 535 Fed. Appx. 175 (3d Cir. 2013).
Defendant was stopped and her purse was examined for weapons, and none were found. It was placed on the car. During the stop she reached for the purse more than once and she was handcuffed. The purse was searched in detail, and marijuana was found. The officers had no objective basis to believe there was a weapon in it because they’d already looked for weapons, and the motion to suppress should have been granted. People v. Walker, 2013 IL App (4th) 120118, 2013 Ill. App. LEXIS 548 (August 13, 2013).
“Attempted urination in public” is not disorderly conduct, and defendant’s arrest for that purported crime was without probable cause. Ramsey v. United States, 73 A.3d 138 (D.C. 2013).*
Comments Off on CA3: No reason why feds can’t search a computer seized under state SW
Another staleness case: No reference to time in a 2012 drug search warrant application except that defendant was driving a 2006 car. So, it had to be between 2006 and 2012. Even the continuing course of conduct that can usually overcome staleness doesn’t work here. Thus, the court finds it stale and not saved by the good faith exception. United States v. Santiago, 950 F. Supp. 2d 361 (D. R.I. 2013):
Defendant was subject to a Colombian wiretap in Colombia on a DEA tip. The court declines to impress our Fourth Amendment standards into whether a due process violation occurred in Colombia. “Here, there is no evidence that the wiretapping of defendants’ phone calls undermines fundamental elements of fairness. Although the wiretap authorization procedures in Colombia are less rigorous than the requirements of Title III of the Omnibus Control and Safe Streets Act of 1968, 18 U.S.C. § 2510-2520 and would violate the Fourth Amendment, they are not ‘outrageous’ or ‘shocking.’” United States v. Clavijo, 950 F. Supp. 2d 324 (D. Mass. 2013):
An officer was responding to a noise complaint approaching a party in a garage. As he approached a woman shouted out about the defendant getting a “fat joint” out of his pocket so they could smoke it. When the officer got to defendant he said “Yeah, why don’t you get it out.” “We find Officer Garrison’s statement is tantamount to an order or command; therefore, constitutes a Fourth Amendment search. We do not find this to be a consensual search under the totality of the circumstances. We further find there was insufficient probable cause to justify a search.” The approach was valid because it was the common way to the garage, so there was no violation of curtilage. State v. Mechling, 2013 Ohio 3327, 2013 Ohio App. LEXIS 3395 (5th Dist. July 29, 2013).
Using a leg sweep to take down a fighting man high on cocaine during his arrest was not excessive force. He was peppersprayed and three sets of handcuffs were required just on his hands. He broke flex ties when kicking. When he stopped breathing, paramedics were called. He died from a cocaine intoxication. Summary judgment was properly granted the officers in this 1983 case. Gunter v. Twp. of Lumberton, 535 Fed. Appx. 144 (3d Cir. 2013).*
Comments Off on OH5: “Yeah, why don’t you get it out” of your pocket is a search
A knife in defendant’s pocket, once reasonable suspicion developed, justified a frisk. United States v. Brown, 2013 U.S. Dist. LEXIS 28752 (W.D. Mo. January 28, 2013).*
There was probable cause to arrest defendant and another for bank robbery. The bank robbers fled into woods, and the two were seen coming out of the other side of the woods stuffing stuff into bags. When they saw the police they ran. The fact there might have been homeless people living in the woods did not mean the officer should discount that. United States v. Burston, 2013 U.S. Dist. LEXIS 29018 (N.D. Ga. January 4, 2013).*
A police officer’s visual estimate of speed can be reasonable suspicion to warrant a traffic stop. State v. Dunham, 2013 VT 15, 193 Vt. 378, 67 A.3d 275 (2012).*
Defendant’s stop was justified by either too dark window tint or obscured license plate. As to the LPN, it didn’t matter that the officer could read it right next to it. United States v. Bates, 2013 U.S. Dist. LEXIS 28844 (E.D. La. March 4, 2013).*
Comments Off on W.D.Mo.: Reasonable suspicion and knife clipped in pocket justified frisk for weapons
Following Massachusetts cases, the smell of marijuana outside a house can still be PC for a warrant because the police are not required to assume the occupant has an affirmative defense of a medical marijuana permit. State v. Senna, 2013 VT 67, 2013 Vt. LEXIS 62 (August 2, 2013).
Defendant was taken to the police barracks for a strip search, and it was not consensual. The basis for the detention was unverified and vague information from an informant that did not add up to probable cause. The officer told defendant to come or he’d be handcuffed and a warrant would be obtained, but there wasn’t enough for one to issue. State v. Betts, 2013 VT 53, 75 A.3d 629 (2013).
Three cell phones were seized incident to arrest. It took the government three months to get a search warrant for the phones. The District Court erred in granting suppression for lack of reasonableness in the delay, and the case is remanded for consideration of the circumstances per United States v. Laist, 702 F.3d 608 (11th Cir. 2012). United States v. Shaw, 531 Fed. Appx. 946 (11th Cir. 2013).*
Comments Off on VT: Smell of MJ outside house doesn’t require police to assume occupant has an MMJ card
The judicial officer issuing a computer search warrant can impose preconditions (“ex ante conditions”) like in CDT on execution. Here, the conditions are upheld except for the state’s ability to discover things by a valid plain view which is a question of law that should not be abrogated by the warrant. In re Appeal of Application for Search Warrant, 2012 VT 102, 193 Vt. 51, 71 A.3d 1158 (2012):
In a child pornography search warrant, the warrant did not lack particularity for lack of computer search protocol. In addition, the same argument was made in virtually same warrant in another child porn case, and that case is noted. United States v. Brooks, 2013 U.S. Dist. LEXIS 184252 (M.D. Fla. October 18, 2013):
911 domestic violence call supported exigency even though last actual violence was two days earlier. The caller was hiding in the basement calling the police terrified if she came out. United States v. Gordon, 2014 U.S. App. LEXIS 1524 (10th Cir. January 27, 2014):
"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.
