The House is expected to vote today on the Fourth Amendment. The outcome is in doubt. How far we’ve drifted from the letter of the Constitution and the spirit of liberty!
Could it be that the Republican majority in the House has a one-item agenda: Repealing Obamacare? You should see the inane emails from my Congressman about it. I can’t believe he gets a salary. I write him about the Fourth Amendment issues, and he ignores me. Privacy he doesn’t care about.
Comments Off on Freedom Works: House to Vote on Fourth Amendment Today; Outcome in Doubt
Motions to reconsider denied motions to suppress are granted only for extraordinary circumstances and then sparingly. Here, the court’s conclusion on independent source was not argued by the government, and defendant did not get to address it. Therefore, the motion to reconsider is granted. “The Court agrees with the Defendant in that the Government has presented no evidence that the decision to seek the search warrant in this case was not prompted by what they had seen during the initial entry, as in Chaves. Id. Thus, the motion to reconsider on this issue is granted.” United States v. Srisanthia, 2013 U.S. Dist. LEXIS 102775 (M.D. Fla. July 23, 2013).
Police officers arrived at the scene of a home invasion, and found a two people shot, one of whom was the defendant. The door was open, and there was blood visible on the floor. The entry was justified by the obvious emergency of the shooting, blood, and more potential victims. Observations from that lawfully made it into a search warrant. United States v. Johnson, 2013 U.S. Dist. LEXIS 102936 (N.D. Ga. June 12, 2013).*
Comments Off on M.D.Fla.: Motion to reconsider denial of suppression granted because gov’t didn’t argue that ground and defendant didn’t get to respond
A child protective services official got an anonymous complaint that defendant parolee was growing marijuana in her house, so the CPS official brings along two police officers to conduct a search. The search fails every justification offered: “consent, special needs, exigent circumstances, community caretaking, or a general balancing of the governmental interests served by the search against the privacy interest of the parolee.” The search violated the state constitution. Also, this was not a true parole search. State v. Kern, 2013 Iowa Sup. LEXIS 61 (May 24, 2013).
Ferrier warnings of a right to refuse a search of the home applied to searches where the police were looking for another person in the home and lacked reasonable suspicion he was there. State v. Westvang, 174 Wn. App. 913, 301 P.3d 64 (2013) (decided under state constitution).*
Defendant was found to have voluntarily consented to a search of the premises after having been Mirandized. United States v. Jeronimo-Rodas, 2013 U.S. Dist. LEXIS 72970 (D.S.C. May 23, 2013).*
Comments Off on IA: Parole search by child protective services and two police officers invalid
Defendant agreed to a knock-and-talk at his gate, and the officers’ insistence on coming inside violated the curtilage and the scope of consent. Ferrer v. State, 113 So. 3d 860 (Fla. 2d DCA 2012):
We reject the State’s contention that once Ferrer opened the locked gate, general “knock-and-talk” principles authorized the deputies to proceed to the front door area. See, e.g., State v. Navarro, 19 So. 3d 370, 372-73 (Fla. 2d DCA 2009). The State argues that because the officers were free to proceed to the front door of the house to knock and talk, the evidence of marijuana was legally obtained under the “plain smell” doctrine. The flaw in this argument is that it does not recognize that the deputies’ encounter with Ferrer at the gate was a knock and talk encounter. Rather than leaving his property open for any member of the public to enter, Ferrer had taken steps to keep out uninvited visitors by fencing it and erecting an electric gate across his driveway, thereby demonstrating an expectation of privacy. Cf. Nieminski v. State, 60 So. 3d 521, 525-27 (Fla. 2d DCA 2011) (finding no violation of privacy where officers entered fenced property through a closed, but unlocked, gate). Thus, while officers were free to approach the gate to conduct a knock and talk—which they did—the area inside the fence fell under the same constitutional protections as the residence itself, and the officers were not at liberty, absent consent, to approach the residence. Compare Fernandez v. State, 63 So. 3d 881, 883-84 (Fla. 3d DCA 2011) (holding that the defendant had a reasonable expectation of privacy in the fenced yard adjacent to his residence and that the momentary opening of the gate to allow the defendant to leave was not an invitation for police to enter); with State v. Triana, 979 So. 2d 1039, 1045 (Fla. 3d DCA 2008) (finding no constitutional violation where the police had a consensual encounter with the defendant outside of the locked gate to the defendant’s property and the defendant agreed to a search and opened the gate to allow the police to enter). [¶] It is undisputed that the only thing Ferrer consented to was to speak to the officers “on the other side of the gate.” …
Comments Off on FL2: Defendant agreed to a knock-and-talk at his gate, but the officers’ coming inside violated consent and the curtilage
2255 petitioner’s claim that defense counsel didn’t raise the question of the searching deputy being later fired didn’t even attempt to show how it would change the outcome, so it’s denied. United States v. Elkins, 2013 U.S. Dist. LEXIS 101058 (W.D. Va. July 19, 2013).*
Consent was found valid. United States v. Slone, 2013 U.S. Dist. LEXIS 101198 (E.D. Ky. July 19, 2013) (R&R 2013 U.S. Dist. LEXIS 102042 (E.D.Ky. June 14, 2013))*:
Wrong address on search warrant doesn’t void it because there was no “reasonable probability” the wrong place was searched. United States v. King, 2013 U.S. Dist. LEXIS 98047 (E.D. Ky. July 15, 2013)f (R&R 2013 U.S. Dist. LEXIS 101842 (E.D.Ky. May 30, 2013)):
In the Florida state employees drug testing case, both sides lose on appeal. The case is remanded for more factfinding to narrow the injunction which included firearms-carrying employees, too. The state sought summary judgment that the testing was constitutional, and it loses because suspicionless drug testing of the rest is unconstitutional. The problem is the lack of a good record. American Federation of State, County and Municipal Employees Council 79 v. Scott, 717 F.3d 851 (11th Cir. 2013):
Defendant’s motion to suppress the gun found in his girlfriend’s purse was granted because it was found during a protective sweep, and the state appealed. Defendant had standing to challenge the search of the apartment. “[T]he order is affirmed insofar as appealed from,” suggesting what? That the defendant didn’t have standing in her purse even though he had standing in the apartment? Is this like Brendlin and the stop v. search of a car? If he had standing as to the whole apartment, is the entire excessive protective sweep invalid. What? People v Isaacs, 2012 NY Slip Op 9086, 101 A.D.3d 1152, 956 N.Y.S.2d 510 (2d Dept. 2012).*
Reasonable suspicion existed for defendant’s stop based on a 911 call that there was a man in black on a street with a gun. Officers came to the street and saw one man in black, and they saw a bulge looking like a gun. That was reasonable suspicion. United States v. Johnson, 509 Fed. Appx. 487 (6th Cir. 2012).*
Comments Off on NY2: Searching a purse during a protective sweep is excessive
Defendant was convicted in federal court of failure to register as a sex offender, and the special condition of searches of his computer has to be justified by the district court because computers played no role in his offense. United States v. Goodwin, 717 F.3d 511 (7th Cir. 2013).
Defendant was arrested on probable cause and interrogated. After he gave a statement, he was brought before a judicial officer for his first appearance. The delay was short and did not violate state statute which is more onerous than the requirements of Riverside or Gerstein which were also thus not violated. State v. Caudill, 2013 N.C. App. LEXIS 476 (May 7, 2013).*
Comments Off on CA7: Where computer played no role in sex offense, computer search condition needs justification by district court
A car was being shipped across the country on a truck, and an officer became suspicions of it and asked the truck driver about it. The paperwork was in the name of Castenada. The officer attempted to call Castenada at the numbers in the paperwork, and nobody knew him. The officer then asked the truck driver for permission to search the car, and, with a fiberoptic scope he found packages floating in the gas tank. One thing led to another, and defendant was arrested for 23 kgs of cocaine in the gas tank. He filed a motion to suppress but didn’t testify, and the district court held he never met his burden on “standing” to show that he was using a fictitious name or whatever. On appeal, the holding he didn’t have standing was affirmed. United States v. Castellanos, 716 F.3d 828 (4th Cir. May 29, 2013) (citing treatise in dissent n.17):
The defendant was indicted for attempting to ship a military grade gyroscope overseas without an export license. When government agents met up with him to discuss the sale, and then revealed themselves as LEOs he ultimately consented to a search of his house. His claimed ADD did not show the consent was invalid. Credibility call goes to the government. United States v. Modir Trading, 2013 U.S. Dist. LEXIS 100304 (N.D. Ill. July 18, 2013):
An officer was called to a motel because there was alleged to be an active methamphetamine cook going on in a room giving off a strong odor everybody could smell. When the occupants wouldn’t open the door, he kicked it in. An active meth cook is exigency. State v. Armbruster, 2013 Ohio 3119, 2013 Ohio App. LEXIS 3168 (9th Dist. July 17, 2013).
During prison visitation, defendant was seen likely removing something white from his child’s pants while the child was sitting on his lap and putting it in his mouth. The guards reviewed the video and couldn’t be sure. Nevertheless, they terminated the visitation. “Carlton was placed in a ‘dry cell’ and it was later determined that his feces contained fragments of white latex rubber as well as marijuana. Latex rubber balloons containing marijuana were found discarded in the lobby of the prison and in the interview room where Anderson had been interviewed.” The motion to suppress the stuff found in the lobby he hardly could object to. The search of his feces was reasonable. United States v. Carlton, 2013 U.S. Dist. LEXIS 99299 (W.D. La. March 6, 2013).
Defendant’s consent was valid. He signed four, not just one, consent forms, and he’d previously spontaneously said “That’s me” when shown an ATM photo of the suspected fraudster. United States v. Bazile, 2013 U.S. Dist. LEXIS 99780 (S.D. Fla. June 28, 2013).*
Comments Off on OH9: Active smelly meth cook in motel exigency to kick in door
The officer stopped defendant for a license plate issue, and the conflicting information he gave about the driver didn’t support calling a drug dog. The continued detention for that violated the state constitution. State v. Maciel, 254 Ore. App. 530, 295 P.3d 145 (2013).
Defendant’s girlfriend had apparent authority to consent to a search of his locked briefcase which he left with her. “That finding was supported by the evidence that, inter alia, Gonzales had been living at Duran’s apartment for about a month, keeping clothes and receiving mail there; that he kept the briefcase in a shared bedroom; that he had given Duran the combination to the briefcase; and that he left the briefcase at the apartment when he spent time away.” United States v. Gonzales, 508 Fed. Appx. 288 (5th Cir. 2013).*
Defendant consented to a search of his house when confronted on the street for drug trafficking. The only show of force was the officer holding a gun in his hand behind him when first encountering defendant. United States v. Garcia, 2013 U.S. Dist. LEXIS 6946 (E.D. Tenn. January 10, 2013).*
Comments Off on OR: LPN discrepancy didn’t justify calling a drug dog to stop
"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.
