The totality of the circumstances (six are given) supported a stop and frisk of defendant during a traffic stop in a high crime area at 3:30 am with four in the car. Most importantly was defendant’s hiding his hands. United States v. George, 732 F.3d 296 (4th Cir. 2013).
“If a protective sweep occurred, it was not [factually] justified, but the other searches, or entries into the home, were based on valid consent. The government flatly states that nothing was taken or will be introduced into evidence that was taken from Smith’s home and Smith offered no evidence that any seizure occurred. The Motion to Suppress Evidence Because of Illegal Search and Seizure is denied because no illegal search was established and there is nothing to suppress.” United States v. Smith, 2013 U.S. Dist. LEXIS 148791 (D. Ariz. October 16, 2013).*
Defendant’s guilty plea waived his claim that defense counsel didn’t pursue a search claim. Dellere v. United States, 2013 U.S. Dist. LEXIS 148180 (N.D. Tex. July 3, 2013).*
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A claimant of cash had standing to challenge seizure for forfeiture even when he took the Fifth on possession. He clearly possessed, but he loses on consent. United States v. $304,980.00 in United States Currency, 732 F.3d 812 (7th Cir. 2013):
Planting a GPS device in 2010 (pre-Jones) without a warrant or court order was unconstitutional, and it isn’t saved by good faith exception. United States v. Katzin, 732 F.3d 187 (3d Cir. 2013):
You know your co-defendant’s become a snitch when his counsel won’t return or take your calls.
I’m supposed to be in trial this week, but …
I figured this on my own after three days of trying. Trial is Wednesday-Friday. Then the deputy prosecutor confirmed it Friday afternoon. Surprise! No; not really. I’m not new at this. It’s happened before; it will happen again. I guess that happens from being “the most likely to go to trial.”
And I know co-defendant’s counsel doesn’t read this blog. Not that curious a lawyer.
(One of these days I will write some of these down for posterity.)
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Defendant’s arrest was with PC, and thus the search incident of the cell phone was valid. “See United States v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009) (holding that officers may seize cell phones incident to an arrest and retrieve text messages and other information without a search warrant).” United States v. Graves, 545 Fed. Appx. 230 (4th Cir. 2013).*
The city sent plaintiff notice stuff growing in her yard was a nuisance, and she never appealed it. They later came around and seized. Her due process rights were satisfied under a 2004 case in the same circuit, and that’s enough to find the entry reasonable under the Fourth Amendment. Morrison v. Cox, 546 Fed. Appx. 770 (10th Cir. 2013).*
There was probable cause to arrest the defendant. The after-acquired information was not considered by the USMJ. United States v. Uriel, 2013 U.S. Dist. LEXIS 158939 (W.D. N.C. November 6, 2013).*
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Officers on bike patrol in Albuquerque saw a car on an apartment building parking lot with three men in it, so they approached to inquire. An abrupt movement of one of them made the first officer say “get out of the car,” and they did. This was a stop without reasonable suspicion and defendant surely didn’t feel free to leave. State v. Murry, 2013 N.M. App. LEXIS 116 (November 6, 2013):
After a lengthy suppression hearing in a child pornography case, the court concludes one of the government’s experts on protocols for finding hash values on a computer shouldn’t be credited, but, at bottom, it didn’t change the outcome. This was a computer left on in file sharing mode on a P2P network, and that was an invitation to enter. “Because there is no evidence that law enforcement’s use of automated software reached information on Defendants’ computers that was not made available for sharing by the public, Defendants’ motions to suppress on the basis of a warrantless search in violation of the Fourth Amendment must be DENIED.” United States v. Thomas, 2013 U.S. Dist. LEXIS 159914 (D. Vt. November 8, 2013).*
In a dissent from denial of rehearing en banc, one judge finds the panel essentially blew off an immigration case’s Fourth Amendment claim with no discussion whatsoever, and more is required. Gupta v. McGahey, 2013 U.S. App. LEXIS 22596 (11th Cir. November 7, 2013).*
Defendant’s guilty plea waived his alleged Fourth Amendment claim. United States v. Hernandez, 2013 U.S. Dist. LEXIS 160142 (D. Nev. November 7, 2013).*
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Officers drove past defendant, turned around, stopped, and got out of the car to talk to him, one in front and one to the side. “The act of blocking one’s path to leave is conduct which indicates that a seizure has occurred.” A reasonable person would think he’d been seized, and this was without reasonable suspicion. State v. Goodloe, 2013-Ohio-4934, 2013 Ohio App. LEXIS 5129 (10th Dist. November 7, 2013)*:
Despite the laments from most in the criminal defense bar, the Fourth Amendment is “not dead yet.”
The pace of decisions since August has increased. I get a document dump from Lexis every morning. For the last two months, Tuesday-Saturday averages (just a guess) 20-25 new cases a day from all court sources that post to Lexis: U.S. District Courts, some state trial courts (more notably MA, NY, DE, RI, VI), and all the appellate courts in the U.S. Civil cases at the trial level aren’t covered anymore because there are too many of them, and I have a day job. It’s hard enough covering the criminal cases, and some weekday mornings I have court to prepare for.
But the sheer number of cases that come out shows that lawyers and courts have not given up on the Fourth Amendment. Yes, the limiting of the exclusionary rule and the growth of the good faith exception and qualified immunity make it harder to win, but we keep trying, and we keep winning some. Once and awhile, something earthshaking occurs, like 2012’s United States v. Jones that creates new litigation possibilities. (See §§ 3.05–3.07 of the Fifth Edition) How many cases just die in the trial court because a suppression motion was granted and never appealed? Or the plea offer got really good after a losing motion to suppress where the prosecutor doesn’t want to defend an appeal? None of those end up in reported decisions. And I’ve had a few.
My hat’s off to American criminal defense lawyers: Keeping the Fourth Amendment alive through litigation. We’ve come so far since James Otis, Jr. argued Paxton’s Case, the Writs of Assistance case in Boston Superior Court, Tuesday, February 24, 1761 where he said: “[T]he liberty of every man [is] in the hands of every petty officer,” quoted in Boyd v. United States, 116 U.S. 616, 625 (1886). (See § 1.03 of the Fifth Edition) We can say that today about the NSA, or any traffic stop.
Everyday, somebody prevails on a Fourth Amendment claim because the government overreached. It’s how we as lawyers keep the government in check. It’s our calling; it’s our duty to the law. I figured that out in college in the late 60’s.
Flight in a high crime area was reasonable suspicion for a stop. State v. Garcia, 2013 Fla. App. LEXIS 17851 (Fla. 2d DCA November 8, 2013)*; State v. Garcia, 2013 Fla. App. LEXIS 17849 (Fla. 2d DCA November 8, 2013).*
The suppression hearing judge erred in concluding that the affidavit in support of the search warrant didn’t show probable cause. Suppression grant reversed. State v. McGill, 2013 Fla. App. LEXIS 17866 (Fla. 5th DCA November 8, 2013).*
From the stop to the dog walk-around was five minutes. The license on the rental car had expired, and it was still being checked out. State v. Brown, 2013-Ohio-4952, 2013 Ohio App. LEXIS 5147 (6th Dist. November 8, 2013).*
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Blatantly violating the jurisdictional requirement of Rule 41(b)(2) is not a mere “technical defect.” (Here, it arose in the context of a Title III warrant, too.) A USMJ cannot issue a warrant with no connection to his or her district. United States v. Glover, 2013 U.S. App. LEXIS 22667 (D.C. Cir. November 8, 2013):
A state court determination a 1983 plaintiff’s Fourth Amendment rights were violated in a criminal case ruled out at trial of the 1983 case under F.R.E 403 as more prejudicial than relevant and confusing to the jury. That was not an abuse of discretion. Thomas v. O’Brien, 2013 U.S. App. LEXIS 22664 (2d Cir. November 8, 2013).*
“[T]he Border Patrol agents identified ‘specific articulable facts, together with rational inferences from those facts, that reasonably warrant[ed] suspicion that the vehicle’s occupant [was] engaged in criminal activity.’ Brignoni-Ponce, 422 U.S. at 884.” United States v. Carranza, 2013 U.S. Dist. LEXIS 159340 (W.D. Tex. November 7, 2013).*
Defendant’s Michigan parole search was authorized by regulation and satisfied Griffin. United States v. Mills, 2013 U.S. Dist. LEXIS 159739 (E.D. Mich. November 7, 2013).*
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CI’s story was corroborated by his making a controlled buy from the defendant, and the controlled buy was PC for the search warrant. United States v. Mitchner, 2013 U.S. Dist. LEXIS 158520 (D. R.I. November 5, 2013).*
An FBI agent’s car was broken into and a duffle bag with his gun, ID, and wallet was stolen. His CC was shortly used and the police keyed on defendant’s car. When it was found, there was PC to search it for evidence of the break-in and theft. A search of a common storage area at defendant’s apartment was valid because he had no standing. United States v. Rucker, 2013 U.S. App. LEXIS 22491 (8th Cir. November 6, 2013).*
FedEx in Tulsa began opening a suspicious package before the police even got there. It was about opened when they arrived. Private search. United States v. Storey, 2013 U.S. Dist. LEXIS 158017 (N.D. Okla. November 5, 2013).*
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A single trash pull, without more, is not probable cause of possession of drugs. State v. Jones, 2013-Ohio-4915, 2013 Ohio App. LEXIS 5109 (8th Dist. November 7, 2013):
Police entering a locked restroom to arrest defendant invaded his privacy; “a restroom is his ‘bastion of privacy.'” State v. Holiday, 258 Ore. App. 601, 310 P.3d 1149 ( 2013):
Blood draw by hospital staff for medical treatment was subpoenaed by the state for prosecution, and that did not violate the Fourth Amendment. Owens v. State, 2013 Tex. App. LEXIS 13767 (Tex. App. – Houston (1st Dist.) November 7, 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.
