The search incident of the car defendant was a passenger in was invalid under Gant. The search was valid, however, under inevitable discovery because the officer also testified that he smelled marijuana coming from the car, and that independently supported the search. Foster v. State, 321 Ga. App. 118, 741 S.E.2d 240 (2013).*
The stop was based on reasonable suspicion the temporary paper tag had been altered. Hinton v. State, 321 Ga. App. 445, 740 S.E.2d 394 (2013).*
Defendant consented to a patdown. State v. Andrews, 320 Ga. App. 792, 740 S.E.2d 748 (2013).*
“When the officers approached defendant, asking if they could speak with him, defendant said in response, ‘Let me show you what I got.’” That was consent. People v. Ellison, 2013 IL App (1st) 101261, 987 N.E.2d 837 (2013).*
Comments Off on GA: While SI may be void under Gant, there was inevitable discovery with PC for search of car
The court rejects a broad search term on defendant’s supervised release because of his multiple arrests for driving on a suspended license. The search term doesn’t serve any governmental interest. United States v. Postell, 917 F. Supp. 2d 687 (S.D. Ohio 2012).*
The color of the vehicle the officers were looking for was close enough to the one stopped when they had reasonable suspicion; teal or green? Under the circumstances, they “would be remiss” if they didn’t stop it. United States v. Stile, 2013 U.S. Dist. LEXIS 58266 (D. Me. January 2, 2013)*:
In criminal investigations parlance, reasonable suspicion lies between “inarticulate hunches,” Terry, 392 U.S. at 22, which cannot justify investigatory stops, and probable cause, which can justify searches and arrests. Delaware v. Prouse, 440 U.S. 648, 661-63 (1979); Arvizu, 534 U.S. at 273-74. “Reasonable suspicion, then, is an intermediate standard—and one that defies precise definition.” Jones, 700 F.3d at 621 (quoting United States v. Chhien, 266 F.3d 1, 6 (1st Cir. 2001)). Much like the color teal, reasonable suspicion is best understood in reference to the more easily recognized standards it rests between.
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Address wrong only by the city the house was located in was not sufficient to void the search. There was only one possible place, and the police had been there before. United States v. Gordon, 2013 U.S. Dist. LEXIS 15272 (E.D. Mich. February 5, 2013).
The defendant’s premises were the subject of a search warrant and guns for sale were seized. Defendant here seeks a Rule 41(g) return of the guns, but the government claims them via a coming civil forfeiture. Therefore, defendant’s remedy will be there. United States v. Premises of 2nd Amendment Guns, 917 F. Supp. 2d 1120 (D. Ore. 2012).
Comments Off on E.D.Mich.: Wrong legal address, right house not a Fourth Amendment violation
Officers has exigent circumstances for a warrantless entry into defendant’s trailer. He as a suspected methamphetamine dealer, and they’d been tailing him for hours. At this trailer, they reasonably feared, based on what people were doing, that their cover was blown. United States v. Cruz-Romero, 2013 U.S. Dist. LEXIS 109432 (M.D. Ala. August 5, 2013):
Defendant lived with his parents and was dating a woman, and she came over to spend the weekend when his parents were gone. He specifically let her use his computer while he was at work, and she found child pornography, and she called the police. She had apparent authority to let them in the house and to search it. State v. Sobczak, 2013 WI 52, 347 Wis. 2d 724, 833 N.W.2d 59 (2013), affg State v. Sobczak, 2012 WI App 6, 338 Wis. 2d 410, 808 N.W.2d 730 (2011) (posted here):
New legislation would reform the FISA court, the secret court that rules on whether the government can pursue certain surveillance activities — including the NSA spying programs that have caused recent controversy. Host Rachel Martin speaks with Senator Tom Udall of New Mexico, who co-sponsored the bill.
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Defense counsel properly filed an Anders no-merit brief on an appeal of a consent issue. State v. Curbow, 2013 Ohio 3378, 2013 Ohio App. LEXIS 3455 (2d Dist. August 2, 2013).*
An officer had a car pull up next to him and tell him about a woman doing hand-to-hand drug sales he regularly complained about but the person was gone when the police arrived, and she was selling right then. She was described, and the officer drove the 1½ block there and saw her. Her stop was with reasonable suspicion based on the detailed information that panned out. While the officer didn’t wait around to get contact information on his citizen informant, that person should have reasoned that the officer would recognize him later or got his license number if he was lying. State v. Hinton, 2013 Ohio 3381, 2013 Ohio App. LEXIS 3459 (2d Dist. August 2, 2013).*
“Certainly, the facts in the affidavit as to Heath Kellogg and this residence are not overwhelming,” but they do show probable cause to believe he was involved in counterfeiting. United States v. Heath, 2013 U.S. Dist. LEXIS 109190 (N.D. Ga. June 14, 2013).*
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Defendant’s stop was valid based on reasonable suspicion from a wiretap. The question to defendant during a patdown whether there was anything on him that the officer should know about was valid under Miranda’s public safety exception. He was asking about weapons, and defendant admitted to cocaine. United States v. Gilchrist, 2013 U.S. Dist. LEXIS 108409 (D. Kan. August 1, 2013).*
2255 petitioner’s Terry claim was barred by his not filing a motion to suppress and then appealing it. [It was not raised as an IAC claim.] Alvardo v. United States, 2013 U.S. Dist. LEXIS 108152 (M.D. Fla. August 1, 2013).*
The independent source rule supports this search because the warrant application was already done when the entry occurred, and the warrant would have been granted. United States v. Munteanu, 2013 U.S. Dist. LEXIS 108670 (E.D. N.Y. August 1, 2013).*
2255 petitioner’s Fourth Amendment argument, even if validly presented, would not have prevailed nor changed the outcome. United States v. Richardson, 2013 U.S. Dist. LEXIS 109101 (E.D. Va. August 2, 2013).*
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Defendant showed no standing in his neighbor’s backyard. United States v. Casby, 2013 U.S. Dist. LEXIS 108266 (E.D. La. August 1, 2013).*
Defense counsel was not ineffective for not moving to dismiss his state indictment for lack of probable cause where there was probable cause. United States v. Waters, 2013 U.S. Dist. LEXIS 107771 (E.D. Pa. July 31, 2013).*
Defendant’s traffic stop for a defective headlight in daylight, a “gloomy day,” was valid under Michigan law. United States v. Dent, 2013 U.S. Dist. LEXIS 108379 (E.D. Mich. August 2, 2013).*
A night employee of Wal-Mart found a cell phone in a shopping cart, and she turned it on to try to ascertain the owner. Looking through pictures she found apparent child pornography. She took the phone to the police and showed them. They took the phone and got a search warrant based on what they were shown. It was all reasonable as coming from the private search. United States v. Johnson, 2013 U.S. Dist. LEXIS 108850 (M.D. Fla. August 2, 2013),* R&R 2013 U.S. Dist. LEXIS 108849 (M.D. Fla. February 8, 2013).
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Orders to a police officer by his superiors conceivably could amount to a Fourth Amendment seizure, but not here. Gwynn v. City of Phila., 719 F.3d 295 (3d Cir. 2013):
A Terry stop has to happen when the observations of criminal activity likely being “afoot” are made, not a week later. Defendant’s stop suppressed. Terry is premised on “swift action.” United States v. Valerio, 718 F.3d 1321 (11th Cir. 2013):
Nervousness, eccentric dress, and refusal to consent is not reasonable suspicion. Thompson v. State, 2013 Tex. App. LEXIS 9412 (Tex. App. – Austin July 31, 2013):
To have standing to challenge the search of a package, one must be either the sender or the addressee. Defendant was neither, so his lawyer was not ineffective for not challenging its search. Malone v. United States, 2013 U.S. Dist. LEXIS 106432 (N.D. Ala. July 12, 2013).
Consent was voluntary on the totality. “Given the lack of any coercive behavior on the part of the arresting agents and officers, the mere fact that the defendant was not informed of his right to refuse consent is insufficient to render his consent involuntary.” United States v. Hine, 2013 U.S. Dist. LEXIS 106056 (N.D. Ga. July 1, 2013).*
The information for the SW was not stale because there was an ongoing drug operation on defendant’s premises. United States v. Ross, 2013 U.S. Dist. LEXIS 105921 (S.D. Ohio July 29, 2013).*
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Trying to get around Hudson v. Michigan, defendant argued a knock-and-announce violation was the “but for” cause of finding his gun in plain view, arguing that, if the police waited longer, he could have hidden it. The court didn’t buy it. [One has to credit counsel for trying. I thought of this argument, too, and I just knew it would never fly.] United States v. Davis, 2013 U.S. Dist. LEXIS 106295 (D. Del. July 30, 2013). Interesting opinion, but just a part of it:
The judge overseeing the trial examining the constitutionality of the New York Police Department’s stop-and-frisk practices had a novel idea for how to reduce illegal police stops.
Comments Off on NYTimes: More Complaints Than Proposed Solutions at Trial Over Police Searches
The USMs were looking for a fleeing violent fugitive who cut off an ankle monitor, and they ended up at defendant’s house. There was no showing at all of a reasonable belief that the fugitive was even in defendant’s residence (Steagald). There was allegedly “a tip,” but no factual basis at all was given for it. The state also argued exigency because the USMs claimed to hear a window open and cocaine be thrown, but no facts support that because, admittedly, it was speculation, and not based on an observation. State v. Rodriguez, 2013 Ohio 491, 2013 Ohio App. LEXIS 435 (8th Dist. February 14, 2013).
Where defendant was unlawfully still on “post-release control,” he could not be lawfully subject to a search condition. The good faith exception does not permit that. State v. Fleming, 2013 Ohio 503, 990 N.E.2d 145 (2d Dist. 2013).*
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"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.
