Defendant leased the property and he and his live-in girlfriend got in a serious argument and he kicked her out, pulling her clothes out of the closets. He tried getting her keys from her and that led to an assault charge when they fought over the keys. Defendant adequately revoked his apparent authority to her for her otherwise having an ability to consent. The police were aware of enough of these circumstances to have to inquire further and didn’t. Therefore, she lacked apparent authority. United States v. Jackson, 910 F. Supp. 2d 1146 (E.D. Wis. 2012):
… Thus, before they commenced their search, the police knew that defendant had ordered King out and that she possessed a key only because she had fought off defendant’s effort to retrieve it. These facts do not suggest that King was authorized to consent to a search of defendant’s home.
The officers were also aware of other facts raising red flags. When Knight called King to ask her to look for the gun, she was not at defendant’s home. Nor did she find the gun. Likewise, when Johnson called King to set up a search, King was not at the residence. And when Johnson met King she did not come from inside the house; rather, she, Jamauri and Presha arrived in a car suggesting that the three of them were residing elsewhere. Cf. Ryerson, 545 F.3d at 485 (finding actual and apparent authority when the defendant’s girlfriend left their daughter and her belongings behind after she left). Further, the officers found boxes and bags on the porch and virtually nothing in the living room, indicating that someone had or was moving out.
Finally, it is important to note what the police did not know at the time King consented: they did not know how long King had lived at the residence, whether she was a co-owner or co-lessee, whether she paid any portion of the rent, or whether she performed any household chores. And they didn’t ask. Nor did they check King’s driver’s license or mailing address. Despite the many signs that King no longer lived at the residence, the police made no serious inquiry into her authority. Had they made such an inquiry, they would have discovered that defendant was the sole lessee and that he had a right to revoke her shared authority over the premises. King said nothing suggesting the contrary.
. . .
In the present case, conversely, the officers asked only if King lived at the residence. Despite the red flags raised by the circumstances leading to defendant’s arrest and the officers’ own observations, they asked King nothing about her connection to the premises. Nor did they conduct any independent investigation such as, for example, contacting the landlord or checking utility records. It is also worth noting that no exigency required the police to proceed as they did. The police could easily have obtained a warrant to search the house as they did for the Jeep parked outside. Cf. Ladell, 127 F.3d at 624 (noting that the officers obtained consent during an ongoing domestic violence incident in which the defendant’s sister and mother feared he would shoot someone). In sum, the government fails to meet its burden of showing by a preponderance of evidence that the facts were such that a person of reasonable caution would believe that King had authority to consent to a search of defendant’s residence.
Comments Off on E.D.Wis.: Defendant kicked live-in girlfriend out, and police were aware of most of it; no apparent authority shown
The woman who consented here testified that she did not have authority to consent, but was impeached with statements at the time of the search that she lived there and had a key. The court finds that she had actual authority, and, alternatively, apparent authority as far as the officers could ascertain at the time of the search. United States v. Brandon, 2012 U.S. Dist. LEXIS 182091 (E.D. Ill. December 27, 2012).
The officer’s failure to tell the judge issuing the search warrant that he had a medical marijuana authorization under Michigan law was not a false statement or omission under Franks because it was still a crime to cultivate marijuana in Michigan (see People v. Brown, No. 303371) and federal law. Probable cause was shown for the search warrant. United States v. Ellis, 910 F. Supp. 2d 1008 (W.D. Mich. 2012).*
Comments Off on E.D.Ill.: Two questions of third party consent: Actual authority or apparent authority?
Defendant was not seized just because an officer followed his car into a parking lot, and the trial court erred in so finding. State v. Collier, 2013 ME 44, 66 A.3d 563 (2013).
Defense counsel was not ineffective for not making a Franks challenge or not moving to suppress firearms seized during a drug raid on a warrant for drugs. He would lose on both issues, so defense counsel can’t be ineffective. Akens v. United States, 2013 U.S. Dist. LEXIS 66179 (E.D. Mo. May 9, 2013).*
Defendant didn’t show that his being a diabetic made his consent involuntary. United States v. Harrison, 2013 U.S. Dist. LEXIS 65737 (M.D. Ala. April 5, 2013).*
Comments Off on ME: Defendant was not seized just because an officer followed his car into a parking lot
The court concludes that the affidavit was lacking in probable cause for the search because it was conclusory. Nevertheless, the issuing magistrate did not abandon her judicial role, and the good faith exception would be applied to sustain the search. United States v. Farlee, 2012 U.S. Dist. LEXIS 175351 (D. S.D. October 9, 2012) (R&R), adopted 910 F. Supp. 2d 1174 (D. S.D. 2012)*:
Here, the issuing judge signed both warrants after she read the affidavits submitted by Detective LeBeau. Although probable cause did not exist based on the terse and conclusory nature of the affidavits, this Court cannot conclude Judge Jeffries abandoned her judicial role. …
[T]his is not one of those “unusual cases in which exclusion will further the purposes of the exclusionary rule” because the judge did not completely abandon her judicial role and the search was not objectively unconstitutional. Leon, 468 U.S. at 918. This Court adopts Judge Moreno’s Report and Recommendation in refusing to suppress the physical evidence because the good faith exception to the warrant requirement applies.
Comments Off on D.S.D.: While the affidavit for the search warrant was conclusory and lacking PC, it wasn’t so lacking that the GFE shouldn’t apply
Defendant went to a convenience store and was walking home. There were no sidewalks, so she was walking on the grass. She said 6′ from the road, the officer said 10′-15′. He could see from her license that she was 15 doors from home. He ran a wants and warrants check and it came up clean. Two other patrol cars arrived by that time. He held her license and asked for consent, and it was invalid consent. The stop should have ended. Horne v. State, 113 So. 3d 158 (Fla. 2d DCA 2013):
When a person lawyers up and invokes his right to counsel, a request for consent violates Edwards v. Arizona. United States v. Hutchins, 72 M.J. 294 (C.A. A.F. June 26, 2013):
Atlantic: The Problem With the ‘Privacy Moderates’ / Their lukewarm defense of civil liberties is more bewildering than outright rejection by Conor Friedersdorf:
Claimant gets past government’s motion for summary judgment on reasonable suspicion for his detention. Officer asked for consent, and it was refused, so he called for a drug dog which took 20-30 minutes to arrive. United States v. $102,836.00 in United States Currency, 2013 U.S. Dist. LEXIS 92813 (D. Nev. June 25, 2013)*:
Defendant was indicted for a marijuana grow operation in 2005. The search was not suppressed for a warrant time error, but it was reversed on appeal in 2009 because Tennessee finds that not a mere technical violation. In 2011 the legislature adopted “Exclusionary Rule Reform Act” to adopt the good faith exception, and defendant was reindicted. The state argued the statute was retroactive and validated the 2005 search, and the trial court did not agree. The state appealed, and the Court of Criminal Appeals found the statute not retroactive. State v. Hayes, 2013 Tenn. Crim. App. LEXIS 576 (July 1, 2013):
Officers had a 911 call that there was a domestic disturbance, and, at the scene, defendant came out of the house to talk with them and was calm and cooperative. Still, they had exigent circumstances for an emergency entry to check for injured persons. The “investigative detention of defendant and the sweep of his home turned into a lengthy and warrantless occupation of defendant’s house.” Consent finally granted was tainted. United States v. Warthen, 2013 U.S. Dist. LEXIS 93274 (N.D. Okla. July 3, 2013):
Comments Off on N.D.Okla.: “[I]nvestigative detention of defendant and the sweep of his home turned into a lengthy and warrantless occupation of defendant’s house”
Driving over the fog line was reason for a stop. The stop led to reasonable suspicion defendant was under the influence. State v. Devault, 2013 Ohio 2942, 2013 Ohio App. LEXIS 2984 (6th Dist. July 5, 2013).*
The officer noticed that defendant’s seat belt wasn’t fastened, so he ran the LPN before making a stop and saw the plate had been revoked. All that justified the stop. United States v. Hughes, 2013 U.S. Dist. LEXIS 93648 (W.D. N.C. May 29, 2013).*
Defendant’s guilty plea waived the search issues he presents in his 2255, none of which are jurisdictional or even remotely prejudicial enough to suppress the search: the officers allegedly seized guns from his house in a child pornography investigation and then didn’t list them in the inventory, one officer misdated a report, and the officers did not properly identify themselves at the beginning of the search. Reeves v. United States, 2013 U.S. Dist. LEXIS 93442 (E.D. Mo. July 3, 2013).*
Comments Off on OH6: Crossing fog line justifies stop
Defendant is a psychologist suspected of health care fraud, and Indiana law required him to keep seven years of records. Officers knew that he also had a home office, so it was reasonable for the search warrant to include his home for records. The period was 2005 to present for patient records, so it was not overbroad for that. The warrant didn’t include the bedroom or closets in the places to be searched, but officers looked there. United States v. Jones, 2013 U.S. Dist. LEXIS 91886 (S.D. Ind. July 1, 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.
