“Considering the totality of the circumstances, I do not find that McAuley’s gesture of turning around and lifting his arms constituted an implied consent to search; rather, I conclude that the gesture merely reflected McAuley’s acquiescence to Marx’s articulated authority to conduct a weapons search without McAuley’s consent. In reaching this conclusion, I have considered caselaw upholding searches as lawful consent searches based upon an individual’s non-verbal conduct.” United States v. McAuley, 2014 U.S. Dist. LEXIS 7770 (W.D. N.Y. January 17, 2014).
Defendant’s stop for not using a turn signal was justified, and the finding of the gun was in plain view. United States v. Williams, 2014 U.S. Dist. LEXIS 8404 (D.N.J. January 23, 2014).*
Defendant was found to have no standing in a stolen vehicle, and he waived it on appeal by not raising it until the reply brief. United States v. Farmer, 553 Fed. Appx. 901 (11th Cir. 2014).*
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Defendant was stopped 70 miles from the border on I-5 with Baja California Mexico license plates on a clean pickup truck. He was speeding and weaving in and out of traffic and wouldn’t look at the officer who pulled up next to him. After he was stopped, he consented to a search and 8kg of cocaine was found. A panel of the court held the district court erred in not suppressing the search, and the court granted rehearing en banc, holding that there was reasonable suspicion for the stop on the “totality.” United States v. Valdes-Vega, 738 F.3d 1074 (9th Cir. 2013) (8-3). Summary by the court:
City of Los Angeles ordinance requiring hotel operators open their guest records to the police is an unreasonable search and facially invalid under the Fourth Amendment. Patel v. City of Los Angeles, 738 F.3d 1058 (9th Cir. 2013) (7-4). Summary by the court:
The use of a relatively innocuous ruse to gain entry to defendant’s room was not unconstitutional. The officers did not exploit a made up exigent circumstance; rather, it was asking for help locating a stolen cell phone and to look out the window. Therefore, the consent to enter was valid. United States v. Monzon-Luna, 2013 U.S. Dist. LEXIS 166735 (E.D. N.Y. November 22, 2013), reconsideration denied 2014 U.S. Dist. LEXIS 7415 (E.D. N.Y. January 21, 2014):
The exclusionary rule does not apply to a teacher discharge case. The teacher was a band teacher with 39 years on the job, and he left a gun in a locked classroom because he was leaving with students. He had had a concealed carry permit since he was 21 years old. A custodian found the gun and was told to bring it to the office. The rules were clear that a gun on campus could lead to termination. Even if there was a Fourth Amendment argument, the exclusionary rule did not apply. His Second Amendment argument is also rejected. Lambert v. Escambia County Bd. of Educ., 2013 Ala. Civ. App. LEXIS 229 (October 11, 2013).
GPS was install pre-Jones on defendant’s car in Arizona and it was tracked to Minnesota where defendant was arrested and indicted. The Davis good faith exception applies because the Ninth Circuit permitted it at the time it was installed. United States v. Maldonado, 2013 U.S. App. LEXIS 20690 (8th Cir. October 11, 2013).
Defendant sold crack on the street but went into his place to get it. That gave probable cause to believe he had it inside the house. When he was arrested outside and the door was left open, officers could do a protective sweep to be sure no others inside seeing the arrest could destroy drugs until they got a search warrant. Crack was lawfully seen in plain view. State v. Lewis, 126 So. 3d 652 (La.App. 4 Cir. 2013).
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Police were called to a domestic disturbance. Separating the two, one officer talked to the defendant who refused to provide his identity, was nervous, and refused to remove his hand from his pocket. That was enough to frisk, and defendant fled tossing a gun. United States v. Mouscardy, 722 F.3d 68 (1st Cir. 2013).*
There was probable cause for the warrant (all in one short paragraph). United States v. McDuffie, 533 Fed. Appx. 724 (9th Cir. 2013).*
Defendant didn’t challenge the district court’s finding of no standing in his opening brief on appeal, so he waived it. The consent finding was based on the evidence. United States v. Agli, 533 Fed. Appx. 733 (9th Cir. 2013).*
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A broad consent form authorized the police to seize “whatever documents or items of property whatsoever they deem pertinent to their investigation” has to be read in light of what the officers were investigating and the interactions between the suspect and the police. Police questioned defendant over his relationship with a 16 year old girl he’d been communicating with on the internet. It was limited enough in execution and did not lead to an overbroad seizure. United States v. Anderson, 533 Fed. Appx. 668 (7th Cir. 2013):
Comments Off on CA7: Consent to seize “whatever documents or items of property whatsoever they deem pertinent to their investigation” is what defendant was told
Defendant’s wife got a DVPO (domestic violence protective order) that provided that the police could enter defendant’s premises and seize any weapons. The DVPO was issued in a civil matter, and it did not make a reference to a finding of probable cause to believe that defendant was in possession of any weapons. The DVPO failed the standards of the Fourth Amendment because there was no showing of probable cause weapons would be found, and the guns found had to be suppressed. Moreover, there is not yet any good faith exception in the state, and that’s for the legislature. State v. Elder, 2014 N.C. App. LEXIS 66 (January 21, 2014):
Defendant was driving on a country road at night and a police officer was behind. An animal ran in front of her car, and she struck it. The officer turned on his blue lights and she stopped about a mile ahead. She was crying and the officer could smell alcohol. The stop on the totality was reasonable under the community caretaking function because, if she needed help, the area was too remote. State v. Smathers, 2014 N.C. App. LEXIS 60 (January 21, 2014):
Defendants were pulled over for going left of center, and the officer almost immediately put the drug dog on the car within two minutes of the stop, before the computer checks even came back. The traffic stop is abandoned for a drug investigation. The USMJ finds that the dog’s blank stare could not be found to be an alert. (The dog seemed “interested” in the passenger door but didn’t really alert.) United States v. Raymond, 2013 U.S. Dist. LEXIS 183929 (W.D. N.C. September 25, 2013), adopted in part and rejected in part [rejecting the part that the held the search of an apartment valid] 2014 U.S. Dist. LEXIS 7201 (W.D. N.C. January 20, 2014):
Burglar alarm report is an exigent circumstance for a warrantless police entry. State v. Miller, 2013 N.C. App. LEXIS 835 (August 6, 2013). [It still amazes me that people have dope in their house and a burglar alarm. What do they expect and want the alarm company to do with the report? I’ve represented two.]
Defendant had no standing to contest the stop [wrong!] and search of the vehicle he was a mere passenger in. He also did not have standing in the bags searched in the trunk because he never claimed them. Granted, if he did, he’d have an argument, but he never voiced any ownership or control over them. United States v. Shabazz, 533 Fed. Appx. 158 (3d Cir. 2013).*
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In a document search warrant, the government could seize and search six hard drives from defendant’s house and examine each to look for the sought after records. United States v. Brown, 2013 U.S. Dist. LEXIS 143689 (E.D. Pa. October 3, 2013).*
Two controlled buys corroborated the CI. The search warrant was issued more than a month after the second controlled buy and it wasn’t stale because this was an ongoing drug operation. United States v. Gragg, 2013 U.S. Dist. LEXIS 143411 (N.D. Iowa October 1, 2013).*
Officers had reasonable suspicion to stop the car because of being involved in a gang shooting with a shooting victim in the car and them looking for the shooters to retaliate. In the Interest of L. P., 324 Ga. App. 78, 749 S.E.2d 389 (2013).*
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Balkanization: State Capacities and the Fourth Amendment by Mark Graber (http://balkin.blogspot.com/2014/01/state-capacities-and-fourth-amendment.html):
"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.
