With the defendant in custody in the back of a police car, a search incident of a purse in the passenger compartment was unjustified as a search incident. There also was no safety justification for its search or consent. The motion to suppress was properly granted. State v. Caulfield, 2013 Ohio 3029, 2013 Ohio App. LEXIS 3085 (2d Dist. July 12, 2013).
In the suppression hearing, the officer did not explain his impoundment of defendant’s car and inventory. The motion was denied. At trial, the officer elaborated. The appellate court is free to use the trial testimony to fill in the blanks, and the motion to suppress was properly denied. Tyre v. State, 323 Ga. App. 37, 747 S.E.2d 106 (2013).
Reasonable belief defendant was making bombs in his garage justifies emergency entry into the garage. State v. Griffin, 2013 Ohio 3036, 2013 Ohio App. LEXIS 3087 (2d Dist. July 12, 2013).
Comments Off on OH2: Purse in passenger compartment not subject to search incident with defendant in back of police car
A probate judge is not a judge authorized to issue a search warrant in Ohio, but the good faith exception still applies to a 2012 warrant, even though a 2009 case says that it couldn’t be done. The court notes that no record was made on good faith. So it must apply. State v. Kithcart, 2013 Ohio 3022, 2013 Ohio App. LEXIS 3065 (5th Dist. July 10, 2013).* [Read this case and see if it makes any sense whatsoever. The state carries the burden on good faith and it failed. Obviously, we have here three judges utterly clueless about the Fourth Amendment and the good faith exception. Hopefully counsel will take this up or ask for rehearing and resist the urge to refer to them as “completely Fourth Amendment- impaired.”]
Defendant’s stop was based on reasonable suspicion for a weight bench that was moving around as the vehicle was moving (unsecured load). It did not have to fall out of the truck to qualify. State v. Heard, 2013 Ohio 3037, 2013 Ohio App. LEXIS 3089 (2d Dist. July 12, 2013).*
Defendant and his car were linked to marijuana transportation, and the search of the car was valid under the automobile exception. Gant does not apply. Ross v. State, 323 Ga. App. 28, 747 S.E.2d 81 (2013).*
Comments Off on OH5: GFE exception still applies even though court said 3 years earlier they couldn’t do what they did
Defendant was encountered by an officer on the street who mentioned that the defendant matched the description of a guy wanted in a recent burglary. The discussion remained conversational and the officer asked for permission to do a patdown, which defendant agreed (acceded) to. A syringe was felt in his pocket and that was plain feel for more. State v. Ohlert, 2013 Ohio 2579, 2013 Ohio App. LEXIS 2547 (2d Dist. June 21, 2013).
Officers had detailed information that a red car was coming through Georgia with drugs in a hidden compartment. When the car was seen and stopped for a traffic offense, and also for reasonable suspicion of drug trafficking, the officers got consent and did not go directly to the hidden compartment to not burn their source. They found the opening mechanism hidden in the trunk. The stop was valid as was the consent. United States v. Diaz-Fonseca, 2013 U.S. Dist. LEXIS 87183 (S.D. Ga. May 14, 2013).*
In a state wiretapping case, the fact a federal wiretap application previously used was used in state court too doesn’t invalid it. State v. Harrell, 323 Ga. App. 56, 744 S.E.2d 867 (2013).*
Comments Off on OH2: Syringe could be seized by plain feel during patdown
Defendant’s stop coming out of a drug house as a search warrant arrived was reasonable under Summers and Bailey. State v. Burdette, 2013 Ohio 4395, 2013 Ohio App. LEXIS 4635 (2d Dist. October 4, 2013).*
Defendant characterized himself as an overnight guest in the place searched. He was asleep on the couch after a party and didn’t testify. “We find from this limited evidence appellant was not at the Blymyer residence as an “overnight guest” as contemplated by Olson.” State v. Grose, 2013 Ohio 4387, 2013 Ohio App. LEXIS 4625 (5th Dist. September 27, 2013).*
Reasonable suspicion existed from defendant’s recent purchase of more pseudoephedrine with an alert from a computer system of pseudo purchases. State v. Solis, 409 S.W.3d 584 (Mo. App. 2013).*
Comments Off on OH2: Defendant’s stop coming out of a drug house as a search warrant arrived was reasonable under Summers
Defendant’s stop in Georgia for a traffic offense was reasonable because the car came back stolen. There is no constitutional reason for requiring the state prove that the person reporting the car theft was a “citizen informant.” She was connected to a murder in Tennessee. State v. Norwood, 2013 Tenn. Crim. App. LEXIS 990 (November 15, 2013).
The officer had reasonable suspicion for detaining defendant who was parked the wrong way in a rest area and seemed a little hyped up. The 20 minute wait for a drug dog was not unreasonable. State v. Rice, 2013-Ohio-5056, 2013 Ohio App. LEXIS 5241 (2d Dist. November 15, 2013).*
If there was a factual basis for ordering defendant out of the vehicle to continue the stop, the fact the officer mentioned one that turned out to be untrue doesn’t void the stop. Any basis is sufficient. State v. Sarno, 2013-Ohio-5058, 2013 Ohio App. LEXIS 5246 (2d Dist. November 15, 2013).*
Comments Off on TN: No 4A requirement to prove validity of NCIC car theft report after a stop
On November 4th, 1952, a new federal agency was created in secret, chartered with spying on foreign adversaries around the world. There was no mention in the press. There was no discussion on the floor of Congress. The existence of the agency appeared nowhere in the Federal Register.
“I know the capability that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return.”
—Senator Frank Church on Meet The Press, 1975
Comments Off on The Verge: The edge of the abyss: exposing the NSA’s all-seeing machine
A stop based on a cracked windshield was not shown to be valid by the state. “The difficulty for the state’s position is that there is insufficient evidence about the nature of the crack to conclude that McKay’s observations made it objectively reasonable to believe that the windshield created the probable risk of harm or loss necessary to establish a violation of ORS 815.020. ‘[W]hether a windshield crack poses a danger depends on the characteristics of the crack.’ Stookey, 255 Ore. App at 499. The only information adduced about the crack at the motion to suppress hearing that distinguished this crack from the one in Stookey was that there was ‘some spiderwebbing’ of the crack.” [Apparently the state needs a picture of the cracked windshield.] The stop led to finding defendant’s DL was suspended. State v. Anderson, 2013 Ore. App. LEXIS 1368 (November 14, 2013).*
Comments Off on OR: Apparently the state needs a photograph of a cracked windshield to justify stop on that basis
Defendant did not support his claim of a Franks violation with an offer of proof. The affidavit said it did not include all facts (hardly any do). Even if he did make an offer of proof, he’d fail because there was probable cause. United States v. Ciotti, 2013 U.S. Dist. LEXIS 163134 (D.Vt. November 14, 2013).
Defendant’s search and seizure claim was waived by his guilty plea, so he can’t raise it in a 2255. United States v. Aleman, 2013 U.S. Dist. LEXIS 163095 (D. Minn. November 13, 2013).*
Defendant was stopped because of a man with a gun report at 4 am. When he was found with bullets but no gun, it was reasonable for the officers under Quarles’s public safety exception to ask about the gun. United States v. Smith, 2013 U.S. Dist. LEXIS 163009 (D. Mass. November 13, 2013).*
Comments Off on D.Vt.: Offer of proof for a Franks violation required
On Friday, SCOTUS granted cert. in Plumhoff v. Rickard, a Fourth Amendment reasonableness/qualified immunity case that essentially applies Scott v. Harris on the reasonableness of deadly force during a police chase that started in West Memphis, Arkansas and ended in Memphis, Tennessee, three years before Scott was decided. The issues:
The video of the stop does not support that defendant did not signal 100′ before his turn. State v. Hneidy, No. 04-12-00692-CR, 2013 Tex. App. LEXIS 7788, 2013 WL 3279743 (Tex. App. – San Antonio June 26, 2013), is virtually identical, and the motion to suppress is granted. United States v. Gipson, 2013 U.S. Dist. LEXIS 162079 (N.D. Tex. November 14, 2013).*
The question whether defendant was arrested when handcuffed is really moot because a frisk was justified and it produced marijuana. United States v. McCullough, 2013 U.S. Dist. LEXIS 162402 (E.D. Tenn. September 4, 2013),* adopted 2013 U.S. Dist. LEXIS 161411 (E.D. Tenn. November 13, 2013).*
Defense counsel was not ineffective for not filing a motion to suppress on the grounds stated because it would fail. Penton v. United States, 2013 U.S. Dist. LEXIS 162325 (M.D. Ala. September 19, 2013).*
Comments Off on N.D.Tex.: Video didn’t support reason for traffic stop
Because doing so would “require a greater invasion of that person’s privacy.”
Speaking before a senatorial subcommittee on Wednesday, the intelligence community’s top lawyer told senators that the National Security Agency is incapable of knowing how often Americans’ data is captured inadvertently. Robert Litt, general counsel at the Office of the Director of National Intelligence, told the Senate Judiciary Subcommittee on Privacy the problem is that it would be “very resource-intensive” to figure out whether foreign targets are communicating with Americans, according to The Hill.
Comments Off on Ars Technica: NSA has no idea when it spies on Americans, top lawyer says
Incorrect date on the search warrant was mere technicality that did not defeat probable cause or void search. It was actually issued before the search. United States v. Smith, 12-2948 (8th Cir. August 1, 2013).
Defendant denied ownership of a duffle bag that police picked up, so he abandoned it. United States v. Hammond, 2013 U.S. Dist. LEXIS 106201 (E.D. Tenn. June 19, 2013).*
Defendant’s “wife had actual and/or apparent authority to consent to a search of the laptop computer” because it was a joint purchase and they both used it. State v. Newman, 21 Neb. App. 29, 838 N.W.2d 317 (2013).*
Comments Off on CA8: Mere error in SW date did not defeat PC or void search
Wiretap information and a controlled buy ten days before the SW issued for a house was not stale. United States v. Gray, 2013 U.S. App. LEXIS 23120 (11th Cir. November 15, 2013).*
“While the officers did not have absolute certainty that the Defendant was on the premises on March 13, 2012, this Court finds that the officers had at least a reasonable belief that the Defendant was within the premises,” and that made execution of the warrant reasonable. United States v. Foster, 2013 U.S. Dist. LEXIS 162925 (M.D. La. November 15, 2013).*
Defendant contended that some of the information for the SW was illegally obtained. But, even if it was, the remainder establishes probable cause. United States v. Aguilar, 2013 U.S. Dist. LEXIS 162965 (N.D. Ill. November 12, 2013).*
Comments Off on CA11: Controlled buy 10 days earlier with wiretap info not stale
Consent tolls the 15 minute statutory stop and frisk rule. And, even if it didn’t developing probable cause obviates the stop and frisk statute’s application. People v. Taman, 2013 Guam 22, 2013 Guam LEXIS 22 (November 8, 2013):
The search of defendant’s cell phone was unreasonable. It could not be justified as a search incident because it wasn’t on him when he was first arrest. He asked if it could be brought with him. Then, he consented to give the password only so the officer could look at text messages. The search of photographs exceeded consent. United States v. Shanklin, 2013 U.S. Dist. LEXIS 161947 (E.D. Va. November 13, 2013):
"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.
