A search warrant for evidence of untaxed cigarette possession included a clause for seizing photographic evidence of possession of untaxed cigarettes. When executing the warrant, officers picked up a camera and looked at the screen and scanned photographs finding apparent child pornography. A common sense reading of “photographs” includes their digital or hard copy format. The search was valid because the warrant specifically included photographs, and it was in good faith. United States v. Miller, 2013 U.S. Dist. LEXIS 166618 (W.D. N.Y. August 16, 2013).
Defendant was arrested for bank robbery after his picture was picked out of about 1000 as the suspect. The video of the bank robbery is inconclusive, and it can’t be said that defendant was clearly not the robber. His wife consented to a search of their place, and a gun and ammunition were found, and he’s a felon in possession. United States v. Bartee, 2013 U.S. Dist. LEXIS 166366 (S.D. N.Y. November 12, 2013).*
Defendant “flipped his pickup truck” in the Great Smoky Mountains National Park, and it took the officer a while to get to do a field sobriety test. Some of the officer’s time was spent directing traffic around the scene. Based on the damage to defendant’s truck, the officer called EMS. He couldn’t do a field sobriety test until 25 minutes into it, and, all things considered, the officer acted reasonably. United States v. Lane, 2013 U.S. Dist. LEXIS 166339 (E.D. Tenn. November 5, 2013).*
Comments Off on W.D.N.Y.: “Photographs” in a SW includes their digital or hard copy format
The officer was patrolling in an area known for hunting from vehicles. Defendant was validly stopped because the inspection certificate appeared expired. It turned out that it wasn’t but the officer also had reasonable suspicion to believe that defendant was hunting from the car, which meant a firearm in the car and that meant potential dangerousness. United States v. Behrens, 2013 U.S. Dist. LEXIS 130537 (N.D. W.Va. September 12, 2013).*
Defendant argued that the CI and government violated his reasonable expectation of privacy in recording a conversation with defendant in his driveway. The court doesn’t have to decide that question because there was plenty of information supporting the search warrant that defendant doesn’t challenge. United States v. Scott, 731 F.3d 659 (7th Cir. 2013).*
Handcuffing and transporting a juvenile who appeared to be “beyond the control” of school officials was not clearly established to be a Fourth Amendment violation, so qualified immunity applies. C.B. v. City of Sonora, 2013 U.S. App. LEXIS 18931 (9th Cir. September 12, 2013).*
Comments Off on N.D.W.Va.: Officer had RS of hunting from car for stop
The Fourth Amendment warrant clause has no extraterritorial application; reasonableness does. Defendant was a teacher in Miami-Dade, and he was charged with sex offenses against young male students. He somehow moved to Thailand within a month, and he resumed sexual conduct there as a teacher. Thai authorities became interested in him, too. They executed a search warrant and recovered 6000 images on his computer, yet he wasn’t arrested for another three years. Then, the U.S. sought to extradite him for interstate or international travel for sex with children, which took another year. The warrant clause of the Fourth Amendment did not apply to the search of the computers in Thailand. ICE, however, was involved, so the reasonableness requirement of the Fourth Amendment applies, and this search was reasonable. United States v. Stokes, 726 F.3d 880 (7th Cir. 2013):
The government agents here, with the complicity of an ADA, made a conscious tactical choice to violate the constitution to be able to arrest defendant and question him without his lawyer being around. Inevitable discovery is a mixed question of law and fact reviewed de novo, and the government fails in its burden of proof. Inevitable discovery here was completely speculative. United States v. Stokes, 733 F.3d 438 (2d Cir. 2013):
The officer watched defendant walking and get into the passenger seat of a car. As the car drove off, he noticed the rear deck brake light was out. That justified a stop, and marijuana was smelled, and that led to a search and a gun. Smith v. State, 214 Md. App. 195, 75 A.3d 1048 (2013).*
Officers knew of a shooting two hours earlier, and defendant was seen by an officer with a weapon. That supported his stop, and it didn’t become an arrest until he was found to be a felon. United States v. Fountain, 2013 U.S. Dist. LEXIS 128873 (N.D. Fla. September 10, 2013).*
The several search warrants in this case were all issued with probable cause. United States v. Broulik, 2013 U.S. Dist. LEXIS 129176 (D. Minn. July 15, 2013).*
Comments Off on MD: Rear deck taillight out supports stop
When defendant was in custody, police saw blood on his finger. Exigent circumstances justified taking a DNA swab of the blood before it disappeared. As to the search of a second floor apartment, defendant asserted in his motion to suppress that it was his “home” but he put on no proof of that, so that was properly denied too. Also, nothing was identified as coming from the home. State v. Braswell, 145 Conn. App. 617 (September 10, 2013).
The CI’s story was reliable, and it was face-to-face with the police on the street. State v. Crespo, 145 Conn. App. 547, 76 A.3d 664 (2013).*
A fireman in a fire truck with lights and siren stopped defendant for DUI. The trial court suppressed, and the court remands. There are inadequate findings on whether the fireman was a “government actor” or private actor. The court also espouses on the law of citizen’s arrest. State v. Verkerk, 2013 N.C. App. LEXIS 931 (September 3, 2013).*
Comments Off on CT: Blood on finger seen at police station could be seized for DNA under exigent circumstances
Suspicionless searches of a convicted child pornography possessor while on supervised release is reasonable and related to the offense of conviction. The motion to modify the condition is denied. A search on supervised release is like a parole search, not a probation search. United States v. Tafelmeyer, 2013 U.S. Dist. LEXIS 63796 (D. Mont. May 3, 2013).
Defendant was seized by the officer’s partially blocking him in. The stop was based on reasonable suspicion, however, because the car was parked near others where the officer suspected vehicle break-ins. When the officer shined his flashlight in the car, he could see stereo equipment with loose wires. That was cause for a search. United States v. Williams, 525 Fed. Appx. 330 (6th Cir. 2013).*
Defendant’s consent to search a storage locker was a rational reasoned choice and was voluntary. United States v. Navarro-Gonzalez, 2013 U.S. Dist. LEXIS 63088 (W.D. N.Y. May 2, 2013), R&R 2013 U.S. Dist. LEXIS 63328 (W.D. N.Y. February 8, 2013).*
Comments Off on D.Mont.: Suspicionless searches on supervised release of convicted child porn possessor reasonable
Defendant was stopped for an equipment violation on his way home from being a bouncer in an adult entertainment club. There had been a serious crime in the vicinity. Nine patrol cars converged, but defendant wasn’t under arrest or handcuffed and no guns were on him. He’d consented to a search of his car and nothing was found. The officer asked for consent to search the glove box, and defendant handed over the keys. That was consent, and a gun was found. Defendant was a FIPF, and the consent was valid. United States v. Thurman, 525 Fed. Appx. 401 (6th Cir. 2013):
Defendant failed to object at the time to the scope of the consent search of his car going under the hood. The general consent was enough to go under the hood. United States v. Fletcher, 2013 U.S. Dist. LEXIS 76057 (D. Minn. May 29, 2013),* R&R 2013 U.S. Dist. LEXIS 76178 (D. Minn. May 3, 2013).*
COA on a 2255 IAC claim from a failed suppression hearing is denied. The defendant didn’t show anything that added up to IAC: defendant was validly stopped and previously conceded it, the radio log wouldn’t show no consent, and failure to call alleged witnesses to the traffic stop wouldn’t prove anything from a failure of an offer of proof. United States v. Polly, 525 Fed. Appx. 862 (10th Cir. 2013).*
Based on the undisputed testimony of the lone police witness at the suppression hearing, the trial court erred in granting the motion to suppress defendant’s stop for DUI. State v. Wagster, 2013 Tenn. Crim. App. LEXIS 441 (April 30, 2013).*
Comments Off on D.Minn.: General consent to search a car was enough to go under the hood
Texas statute permitted placement of a GPS device on reasonable suspicion prior to Jones, when this was one placed on defendant’s car. No court had ever held, prior to now, that the reasonable suspicion standard was too low and probable cause was required. Therefore, the good faith exception would be applied. It also did not matter that the vehicle would be driving to New Mexico. Taylor v. State, 410 S.W.3d 520 (Tex. App. – Amarillo 2013).
The consent to search was shown to be voluntary, and the owner as passenger gave it. The search did not exceed the scope of consent. $5,000 in United States Currency v. State, 2013 Tex. App. LEXIS 11118 (Tex. App. – Waco August 29, 2013).*
Officers’ entry into the common area of a University of Kentucky fraternity house to do a knock-and-talk on a single room did not violate defendant’s reasonable expectation of privacy. Milam v. Commonwealth, 2013 Ky. App. LEXIS 131 (August 30, 2013).
Comments Off on TX7: Pre-Jones GPS placement with only RS on court order held valid
Oregon rejects Florida v. Harris and requires the state show the reliability of the drug dog in its case, State case law already said that. State v. Farmer, 258 Ore. App. 693, 311 P.3d 888 (2013).
Seizure of an envelope from a car was without probable cause. Drugs were found in it, and it was suppressed. State v. Currin, 258 Ore. App. 715, 311 P.3d 903 (2013).*
Trial court’s failure to articulate reasons for court ordered drug test and lack of results in the record voided the contempt. State v. Stafford, 2013 Ohio 4356, 2013 Ohio App. LEXIS 4594 (7th Dist. September 26, 2013).*
Comments Off on OR rejects Florida v. Harris, and state must prove reliability of drug dog
Defendant’s residence was a place where co-conspirators met and a payment was made, so that makes nexus between the crime and that place. United States v. Jeremiah, 2013 U.S. Dist. LEXIS 165222 (D. R.I. November 19, 2013).*
The officer had reasonable suspicion to stop defendant’s vehicle in an active kidnaping investigation where the vehicle was the only one on the road in the area and he was directed to be on the lookout for it. United States v. Benais, 2013 U.S. Dist. LEXIS 165220 (D. Minn. October 18, 2013).*
Probable cause was shown for the tracking order on defendant’s cell phone GPS limited to 30 days. United States v. Gibbs, 547 Fed. Appx. 174 (4th Cir. 2013).*
Posted inUncategorized|Comments Off on D.R.I.: Nexus shown to def’s place for SW because conspirators met there
Defendant was standing in front of an apartment complex and saw the police come up. Officers saw him pull a gun and put it in the bushes and then run. They gave chase, and he ran into his apartment. In hot pursuit, they kicked in his door and found cocaine on him, and he consented to a search of his apartment. They had probable cause for carrying a concealed weapon. State v. Carter, 112 So. 3d 381 (La.App. 4 Cir. 2013).*
Defendant concedes that he was legally stopped for reasonable suspicion of heroin dealing from his car, and the officer testified he and his passenger leaned forward when stopped. That movement tied with the number of situations where firearms were found with drugs supported the frisk. State v. Magee, 110 So. 3d 680 (La. App. 4 Cir. 2013).*
Defendant on post-conviction claimed his attorney was ineffective for not challenging, among other things, his stop, but the court finds that waived by his Alford plea. [Actually, this is wrong because he’s alleging IAC prior to the plea which misinformed him, and that should be sufficient to overcome waiver. Whether he would have won the suppression motion is the issue. He was stopped by a Narcotics Task Force checkpoint, and that was a viable Fourth Amendment issue. No drug checkpoint has ever been sustained.] Jackson v. State, 122 So. 3d 1220 (Miss. App. 2013).* [This is typical of the short shrift post-conviction issues get.]
Comments Off on LA4: Carrying concealed weapon that was tossed justified hot pursuit
When two officers approach a parked car from both sides to talk to the driver, they don’t make a seizure where there was no evidence that the officers drew their guns, used a commanding tone of voice, or used their vehicle or bodies to block the vehicle from exiting. People v. Lopez, 2013 IL App (1st) 111819, 996 N.E.2d 212 (2013):
Defendant was convicted of a child pornography offense in state court and sought habeas which was denied by the district court which granted a COA. The court reached the merits of the Fourth Amendment claim before turning to the AEDPA standard of review and found the evidence supported the conclusion that the private search before the police received it was reasonably complete so the police did not exceed the private search without a warrant. Rann v. Atchison, 689 F.3d 832 (7th Cir. 2012).
Plaintiff’s decedent was in a one-car crash that required the “jaws of life” to extricate him, but he was hogtied and allegedly physically abused by officers while unconscious. He ultimately died. There was no qualified immunity for the officers, but there was as to the EMTs for lack of a settled constitutional right as to them. Brown v. Jenne, 122 So. 3d 866 (Fla. 4th DCA 2012), on rehearing from 2011 Fla. App. LEXIS 17766 (Fla. 4th DCA Nov. 9, 2011).*
The alleged Franks error, if it was, was not remotely material to the finding of probable cause. United States v. Gordon, 493 Fed. Appx. 617 (6th Cir. 2012).*
Comments Off on CA7: Reasonably complete private search was not exceeded by the officers
"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.
