Defendant’s consent was found valid on the totality, and factor to consider is that the defendant is not a “newcomer to the law.” State v. Smith, 2012 Ohio 5962, 2012 Ohio App. LEXIS 5112 (12th Dist. December 17, 2012).*
Defendant’s stop for reckless driving was justified on the facts, so his identity as an illegal is not suppressed. United States v. Rosas-Herrera, 499 Fed. Appx. 249 (4th Cir. 2012).*
There was probable cause on the totality for the seizure of cash from the front seat of defendant’s car. He was on a known drug corridor driving a rental car he was not authorized to drive, with a prior drug conviction, going to a town where he had no address to meet somebody. United States v. Julian, 501 Fed. Appx. 869 (11th Cir. 2012).*
Comments Off on OH12: Factor in consent here was defendant was not a “newcomer to the law”
While the trial court erred in determining the probable cause question, the appellate court did not. Any error that allegedly qualified as a denial of a full and fair hearing for Stone v. Powell purposes was corrected by the appellate court. This case is an interesting attempt at explaining the law on denial of a full and fair hearing. Monroe v. Davis, 712 F.3d 1106 (7th Cir. 2013):
Rep. Bob Goodlatte (R-Va.) on Friday questioned whether the Justice Department lied on its warrant to secretly obtain a Fox News reporter’s email and phone records.
Goodlatte, the chairman of the House Judiciary Chairman, is investigating whether Attorney General Eric Holder perjured himself in testimony to Congress about the DOJ’s investigation of a leak of classified information to Fox reporter James Rosen.
It’s really obvious that Rep. Goodlatte has no clue how the search warrant process works, how probable cause is calculated, and what is a “lie” and what is an inference based on facts known to that time.
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New York City’s taxi commission was accused in a lawsuit of violating the constitutional rights of cabbies by using the global positioning system to track their movements.
The NYC Taxi and Limousine Commission uses GPS devices to gather information on cabbies in violation of their Fourth Amendment right against unlawful searches and to prosecute drivers for violations that can result in loss of cab licenses and the imposition of large fines, according to a complaint filed today in federal court in Manhattan. The case was brought against the commission’s chairman, David Yassky, by driver Hassan El-Nahal, who seeks to represent other cabbies in a class action, or group lawsuit.
Officers responded to a 911 hang up call, and they succeeded in entering. “Here, the officers saw nothing at the residence that signaled danger.” “The smell of marijuana meant that someone was smoking pot, not that someone needed to be rescued.” The emergency justification failed, and the government carried the burden. United States v. Shook, 2013 U.S. Dist. LEXIS 76111 (D. Ida. May 29, 2013):
When the police raid your house and handcuff you, a statement made when handcuffed and police in the house is inherently coercive. There was third party consent to his files in his company’s server. United States v. Williams, 2013 U.S. Dist. LEXIS 74547 (D.Minn. May 28, 2013), R&R 2013 U.S. Dist. LEXIS 75938 (D. Minn. March 27, 2013):
Three officers went to defendant’s mobile home for a knock-and-talk about his overpurchase of pseudoephedrine. Three went because they suspected a meth lab and they didn’t know what to expect. One officer went to the rear and called the others on the cell phone. When the knock and talk occurred, he could see scrambling inside hiding stuff in the kitchen. The unmistakable smell of the meth lab was exigency. [The court doesn’t mention the potential violation of curtilage, but it didn’t seem to matter anyway. They had exigency no matter what.] United States v. Richardson, 2013 U.S. Dist. LEXIS 52349 (N.D. W.Va. April 11, 2013), adopted 2013 U.S. Dist. LEXIS 75946 (N.D. W.Va. May 30, 2013).
Defendant was on supervised release, and he posted a naked picture of himself online portraying in a Santa hat. Five POs, local deputies, and a forensic examiner did a warrantless “parole search” (supervised release, actually) of his place and found pictures on his phone. The PO had reason to conduct the search, and it wasn’t arbitrary. United States v. Hilton, 2013 U.S. Dist. LEXIS 51777 (E.D. Mich. April 10, 2013).*
The consent to search here was limited to entering to retrieve a .410 shotgun. The officer also seized a 20 gauge shotgun, and that violated the terms of the consent and was not otherwise justified. United States v. Gillotti, 2013 U.S. Dist. LEXIS 52402 (D. Me. March 21, 2013).*
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Defendant’s revocation of his consent did not make the officers’ presence unlawful for purposes of his resisting arrest prosecution. People v. Kodlowski, 298 Mich. App. 647, 828 N.W.2d 67 (2012).*
There was [apparently] probable cause for plaintiff’s arrest and the impoundment of his car, so his Fourth Amendment claim fails. Philpott v. Weaver, 497 Fed. Appx. 667 (8th Cir. 2012).*
A Kansas ruse checkpoint led to a stop. The government argued that the defendants were not seized at the time of the stop, but the district court didn’t believe the trooper’s testimony because it was contradictory. Substantial evidence supported the district court’s findings of fact leading to suppression of the search. The stop was in Kansas and the indictment was in the Northern District of New York. United States v. Murphy, 703 F.3d 182 (2d Cir. 2012).*
Comments Off on MI: Defendant’s revocation of his consent did not make the officers’ presence unlawful
Defendant was subjected to a patdown, and it was unreasonable to open a closed container in his pocket under the specious theory it could have contained razor blades to be used as a weapon. State v. Howard, 2013 Ohio 2123, 2013 Ohio App. LEXIS 2024 (2d Dist. May 24, 2013).*
A motion to suppress that only dealt with the stop and not the interaction between the defendant and officer was a waiver of the latter. Nevertheless, the officer had reasonable suspicion here for a patdown for weapons. State v. Stonier, 2013 Ohio 2188, 2013 Ohio App. LEXIS 2094 (5th Dist. May 24, 2013).
There was probable cause for plaintiff’s indictment based on two witnesses testifying before the grand jury, and that eliminated his claim for false arrest, even though alleged exculpatory evidence was not presented to the grand jury. Rodgers v. City of New York, 2013 NY Slip Op 3826, 2013 N.Y. App. Div. LEXIS 3750 (2d Dept. May 29, 2013).*
Comments Off on OH2: Small container removed from defendant could not have a weapon inside
Defendant was found to have consented to a search of his car after the stop was based on knowledge of a warrant. He was at least twice told he could refuse consent. And “[h]e did not interview with the Pretrial Services Officer so the amount of his education is not available; he appears intelligent enough making a practice of not consenting to a search or refusing to speak to the Pretrial Services Officer; there was no problem with his language ability.” United States v. Capps, 2012 U.S. Dist. LEXIS 60054 (E.D. Mo. February 24, 2012).*
Defendant was found to have consented. Even if he hadn’t, the drugs would inevitably have been found by an inventory search on impoundment because the officers already knew that the LPN didn’t belong with the car. United States v. Capps, 2012 U.S. Dist. LEXIS 60055 (E.D. Mo. April 30, 2012).*
Defendant’s statutory argument that a city could not impose its city speed limit on unimproved land near the border is rejected. Peck v. State, 153 Idaho 37, 278 P.3d 439 (App. 2012).*
Defendant was detained for Miranda and Fourth Amendment purposes when he was found nearly dying in the desert and Border Patrol EMT’s questioned him. United States v. Vasquez-Corrales, 2012 U.S. Dist. LEXIS 59818 (D. Ariz. April 5, 2012).*
Comments Off on E.D.Mo.: Defendant was told he could refuse consent, and his claim he attempted to refuse to consent and his failure to talk to Pretrial Services suggests intelligence
Ohio probation decided that defendant’s release from probation was legally erroneous, so it continued to attempt to supervise him. State officers never legally sought to keep control over him–they just ignored the court order. Defendant’s probations search was thus illegal. United States v. Starnes, 501 Fed. Appx. 379 (6th Cir. 2012):
Where the officer at trial contradicted the affidavit for search warrant and suppression hearing testimony, and the prosecutor knew it was going to happen shortly after the jury was sworn, there was [arguably] a Brady violation, and defense counsel could have immediately moved for a continuance to develop the issue and potentially move for a mistrial because of Franks. (On this record, however, both the Brady and Franks issue fail on appeal because they are fully developed. At trial, the defense got full cross-examination of the contradictions.) United States v. Wilson, 501 Fed. Appx. 416 (6th Cir. 2012):
Because the government learned during trial that Officer Petrich’s testimony would not be consistent with the search warrant affidavit he signed under oath or with his report, the government violated Rule 16(c) by failing to disclose this development to the defense immediately. See United States v. Hardy, 586 F.3d 1040, 1043 (6th Cir. 2009). Two of the Zuern factors favor Wilson’s motion for a mistrial because the government solicited Officer Petrich’s trial testimony and the government’s line of questioning was not reasonable where the defense was not given previous notification of the changed testimony. The remaining three factors, however, favor the government. Wilson did not contemporaneously object or seek other relief, he did not prove that the government acted in bad faith, and the details concerning Wilson’s walk with the informant was only a small part of the trial evidence presented against Wilson.
Defense counsel did not ask to approach the bench when the changed testimony first came to light. Had counsel objected and asked for a sidebar, the district court might have granted Wilson a continuance to prepare to meet the changed testimony, or the court might have interrupted the trial to allow Wilson an opportunity to make a motion to suppress and challenge the search warrant and affidavit under Franks v. Delaware, 438 U.S. 154 (1978). See Fed. R. Crim. P. 16(d). If the district court had found a violation under Rule 16(c), Brady, or Giglio, the court might have excluded the evidence seized from 613 Thomson Apartment 2 as a sanction for the violation. But defense counsel did not object, ask for a continuance or sanctions, or request a Franks hearing.
Even if defense counsel had asked for a Franks hearing during trial, however, Wilson would not have prevailed. …
Comments Off on CA6: Officer’s trial contradiction of SW affidavit and suppression testimony was Brady and Franks information
GPS device placed after cert grant in Jones was still subject to the Davis good faith exception. United States v. Valles, 2013 U.S. Dist. LEXIS 62907 (D. Ariz. January 23, 2013),* adopted 2013 U.S. Dist. LEXIS 63732 (D. Ariz. May 1, 2013).*
Where defendant was arrested on a Wal-Mart parking lot, his car did not have to be left there. The city’s impoundment policy permitted it and was followed. The fact there was a potential motive for criminal search did not render this inventory unreasonable. United States v. Contreras, 2013 U.S. Dist. LEXIS 64431 (D. Neb. April 8, 2013).*
The lane usage statute, requiring one drive in one lane “as nearly as practicable” is inconsistent with the trial court’s findings. It does not require “absolute adherence.” The stop was unjustified. State v. Au, 285 Neb. 797, 829 N.W.2d 695 (2013).*
Comments Off on D.Ariz.: Placing GPS after Jones cert. grant not bad faith
Officers got an anonymous tip about a marijuana grow, and several came to defendant’s house to talk to him. He asked if they had a warrant, and “According to Schultz, Officer Wetzel said ‘that they didn’t need one,’” and the court credits that testimony. The government failed to show voluntary consent. United States v. Schultz, 2013 U.S. Dist. LEXIS 75049 (E.D. Mich. May 29, 2013):
Defendant owed taxes for a decade, and the IRS came to his house to look for assets. Traveling up his private road the IRS agent saw a forklift which he wanted to seize for taxes. The government agent’s traveling up the road, even past “no trespassing” signs, did not violate any reasonable expectation of privacy. United States v. Doyon, 2013 U.S. Dist. LEXIS 74956 (D. Me. May 29, 2013):
“This court has stated that in order to reach a jury on a claim of tight handcuffing, ‘a plaintiff must offer sufficient evidence … that: (1) he or she complained the handcuffs were too tight; (2) the officer ignored those complaints; and (3) the plaintiff experienced “some physical injury” resulting from the handcuffing.’ Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 401 (6th Cir. 2009).” Frodge v. City of Newport, 501 Fed. Appx. 519 (6th Cir. 2012).*
Officers had probable cause to approach a car for a completed drug deal after overhearing a cell phone conversation. United States v. Black, 2012 U.S. Dist. LEXIS 145234 (W.D. Pa. October 9, 2012).*
Officers watching a murder suspect had reasonable suspicion to stop him when they did because they feared he was following a detective with the intent to harm. United States v. Humphrey, 2012 U.S. Dist. LEXIS 145336 (E.D. Mo. September 11, 2012).*
Comments Off on CA6: Suspect must complain to officer handcuffs were too tight to sue
The fact the Chicago police officers were gang officers and not working traffic did not mean that they were constitutionally prohibited from conducting a traffic stop. Therefore, the pretext argument fails on that ground. United States v. Elkins, 2012 U.S. Dist. LEXIS 148668 (E.D. Mo. September 25, 2012).*
Even if the continued interrogation of the truck driver, on the appeal of the truck passenger, was overlong, there was justification for the initial stop, and the paperwork of the truck raised a reasonable suspicion that something else was going on, and that justified the continued detention. Finally, the record supports the finding that the search was with consent. United States v. Narcisse, 501 Fed. Appx. 142 (3d Cir. 2012).*
“Defendant’s claim that ‘trial counsel made no attempt to challenge the search warrants or warrantless searches,’ is contradicted by the record.” United States v. Martinez, 2012 U.S. Dist. LEXIS 149739 (D. Minn. October 18, 2012).*
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Last week, Tennessee became the latest state to pass legislation limiting unmanned aerial drone flights in its territory. Governor Bill Haslam signed the Freedom of Unwarranted Surveillance Act into law making it the fifth state to have passed legislation restricting drone surveillance by police and federal agencies.
Citing a tally published by the American Civil Liberties Union, CBS News reports this month that legislation aimed at limiting drone flights by police departments has been proposed in 41 states and enacted into law in five states.
Comments Off on Tennessee Becomes Latest State To Limit Drone Flights, Citing Fourth Amendment
Shooting of a dog during a raid was a seizure, but here it was reasonable because the jury could have concluded that no amount of training would have prevented shooting a dog coming at the police to attack them. Carroll v. County of Monroe, 712 F.3d 649 (2d Cir. 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.
