Defendant had standing to challenge a tracking warrant on his phone despite the state’s claim that wasn’t the cause for his arrest. He was tracked. These were not eavesdropping warrants. “Because the location information provided pursuant to the warrant did not ‘contain[] the human voice,’ the use of the warrants to obtain the location information in this case was not ‘wiretapping’ within the meaning of Penal Law § 250.00(1) and CPL § 700.05(1).” People v. Davis, 2021 NY Slip Op 21138, 2021 N.Y. Misc. LEXIS 2476 (Bronx Co. May 17, 2021)
Consent to search was obtained from the owner of the vehicle. (Whether defendant had standing as a repairman or not really doesn’t matter with this finding.) United States v. Santiago-De Jesus, 2021 U.S. Dist. LEXIS 94336 (D. P.R. May 17, 2021).*
Since plaintiff was resisting being handcuffed and he was larger than the two officers, it was reasonable for them to take him down to handcuff him. Qualified immunity found. Tucker v. City of Shreveport, 2021 U.S. App. LEXIS 14806 (5th Cir. May 18, 2021).*
techdirt: Defense Department Is Buying Domestic Internet Metadata From Data Brokers by Tim Cushing (“Joseph Cox broke the news for Motherboard late last year: the US military was also making use of location data purchased from data brokers, joining a host of other federal agencies that seemed to feel buying from brokers was an acceptable alternative to respecting the Fourth Amendment”)
Posted inDigital privacy|Comments Off on techdirt: DoD Is Buying Domestic Internet Metadata From Data Brokers
The defense moved for access to search warrant materials for a potential motion to suppress. The government moved to seal them. The government’s motion is denied. There is generally a right of access in search warrant materials by the defendant and the public. United States v. Campbell, 2021 U.S. Dist. LEXIS 93985 (S.D. Ohio May 18, 2021).
A gang officer saw what appeared to him to be a hand-to-hand transaction from a Jeep. He went to inquire and smelled fresh marijuana. That led to probable cause to search. People v. Moore, 2021 Cal. App. LEXIS 412 (3d Dist. Apr. 26, 2021)* (and California is a recreational marijuana state).
Qualified immunity applied to prison officials checking in on telephone calls between the plaintiff inmate and his civil attorney to confirm they were legal calls in 2008. It was not clearly established by then it was an unreasonable search. “Because we hold that Baker is entitled to qualified immunity, we decline to address the merits of Baker’s Fourth Amendment claim.” Evans v. Skolnik, 2021 U.S. App. LEXIS 14728 (9th Cir. May 18, 2021).
“Taylor contends that the description of ‘any and all cellular telephones’ contained in this warrant is overly broad and thus lacks the requisite particularity. Although a warrant allowing seizure of ‘any and all cellular telephones’ may be overbroad, this record supports a finding that the warrant was obtained and executed in good faith. The agent knew that Taylor had used cellphones in brokering controlled purchases of heroin, and that multiple cellphones are often used in drug trafficking operations. Based on this knowledge, the agent obtained a warrant for cellphones, and only two cellphones were seized from Taylor’s home. The conduct of the officers in obtaining and executing the warrant was objectively reasonable, and thus the good faith exception applies.” United States v. Taylor, 2021 U.S. App. LEXIS 14730 (3d Cir. May 18, 2021).
In the Fifth Circuit, it’s good faith first, probable cause second. United States v. Coleman, 2021 U.S. Dist. LEXIS 93812 (S.D. Miss. May 18, 2021).*
Posted inGood faith exception, Overbreadth|Comments Off on CA3: SW including “any and all cell phones” could be overbroad, but not here where there were only two
“[C]ounsel was not ineffective as it relates to the search warrants at issue because counsel filed motions to suppress raising multiple arguments, and Movant failed to show that counsel’s strategic choice to pursue certain arguments over others—such as the Fourth Amendment particularity requirement Movant now advances—was unreasonable.” Roy v. United States, 2021 U.S. Dist. LEXIS 93121 (S.D. Fla. May 17, 2021).
A traffic stop with an objective basis is valid, even if pretextual. The officer could stop defendant outside his jurisdiction under the citizen’s arrest authority. State v. Forest, 2021 Tenn. Crim. App. LEXIS 222 (May 18, 2021).
Defendant’s house was searched with a warrant. At the door, she had a pipe and a small amount of drugs on her person. Her purse was in the car, and that gave probable cause to search the car, too. United States v. Tuttle, 2021 U.S. Dist. LEXIS 93630 (D. Neb. May 14, 2021).*
Defendant’s arrest based on the officer’s two calls to dispatch insisting there was a warrant for defendant was reasonable reliance on a mistake of another under Herring. State v. Gilliland, 2021 Kan. App. LEXIS 21 (May 14, 2021).
The French government in its extradition request does not show probable cause to believe the extraditee committed an offense. United States v. Fraser, 2021 U.S. Dist. LEXIS 93583 (D. Ariz. May 17, 2021).
The totality of circumstances, including defendant’s proximity to a stolen vehicle and his interaction with others in and around the vehicle in a high-crime area, created reasonable suspicion that he was involved in an aggravated robbery. United States v. Thomas, 2021 U.S. App. LEXIS 14606 (5th Cir. May 17, 2021).*
Unverified belief there was an arrest warrant for defendant required that the arrest and search be suppressed. State v. Pines, 2021 Wash. App. LEXIS 1223 (May 17, 2021).
“Here, while the record is unclear as to when the outstanding warrant was discovered, we believe it sufficed to dissipate any taint that may have been caused by defendant’s prior detention and transportation from the hospital to the police station, where it is clear that she was restrained and not free to leave.” State v. Hebert, 2021 La. LEXIS 1148 (May 13, 2021).
The affidavit for the search warrant for defendant’s cell phone showed probable cause the phone was used to coordinate drug deals. United States v. Segovia-Landa, 2021 U.S. Dist. LEXIS 93271 (S.D. N.Y. May 17, 2021).*
Explaining the competing interests in nexus is United States v. Reliford, 2021 U.S. Dist. LEXIS 93053 (S.D. Ohio May 17, 2021). Probable cause to arrest doesn’t equal probable cause to search the suspect’s house, but where do people normally hide things?
A ShotSpotter alert was corroborated by talking to people on the street. That led to probable cause. United States v. Garcia, 2021 U.S. Dist. LEXIS 92945 (N.D. Ohio May 17, 2021).
Officers had probable cause to search a car under the automobile exception for evidence of a kidnapping when they saw zipties in it in plain view. United States v. Moore, 2021 U.S. Dist. LEXIS 92987 (D.D.C. May 17, 2021).*
Posted inAutomobile exception, Probable cause|Comments Off on D.D.C.: Videos referred to in criminal complaints in Capitol Riot Cases presumptively public records
“Detective Tuck’s affidavit omitted some information favorable to Martelli, but even if we assume that those omissions were intentional or reckless, the claim still fails. It fails because, even including all the omitted information, a reasonable officer in Tuck’s position could have believed that there was probable cause. We will start by recounting the information that should have been included in the affidavit but wasn’t, then discuss why there was arguable probable cause even when considering that information.” Martelli v. Knight, 2021 U.S. App. LEXIS 14444 (11th Cir, May 14, 2021).
“Here, the Affidavit contained information to support the CS’s reliability.” “And for good measure, the Affidavit also contains evidence of independent police corroboration. Investigators verified the CS’s story during the controlled buy, searching him both before and after the alleged buy, finding narcotics only when the CS came back from the Residence.” United States v. Sheridan, 2021 U.S. Dist. LEXIS 92902 (N.D. Ohio May 17, 2021).*
“Here, the affidavit contains detailed instances in May 2019 which provided more than ample probable cause for the issuing magistrate judge to conclude that evidence of drug dealing and firearms would be found at 151 Hartford Turnpike.” The good faith exception also applies. United States v. Melendez, 2021 U.S. Dist. LEXIS 92229 (D. Mass. May 13, 2021).*
Using a flashlight to look in a car was still a valid plain view. State v. Williams, 2021 La. App. LEXIS 767 (La. App. 5 Cir. May 13, 2021).
Where the alleged OWI offender was incapacitated, Mitchell applies to his blood draw, and the case is remanded to the trial court because it didn’t have the benefit of Mitchell when it heard the motion to suppress. State v. McGee, 2021 Iowa Sup. LEXIS 61 (May 14. 2021).
“Alone, the officers’ complaints and the tipster’s statement—even combined—would not cross the probable cause threshold. But, considering these pieces of evidence regarding activity at the residence against the backdrop of the traffic stop circumstances, Lawson’s criminal history, and Officer’s Salyer’s averments concerning his training and experience working on drug trafficking investigations, the affidavit established a sufficient nexus between Lawson’s ongoing drug activity and the Hays Fork Lane property.” “In any event, even if the affidavit did not establish probable cause as required, it is clear on this record that a reasonably well-trained officer could have believed that it did.” United States v. Lawson, 2021 U.S. Dist. LEXIS 92103 (E.D. Ky. Apr. 27, 2021).*
A government employee, like a private employee, has a reasonable expectation of privacy in his or her office. A co-worker at the insistence of the FBI gathered evidence from defendant’s office and violated the Fourth Amendment. But for these illegal searches that made it into the affidavit for the warrant, the search warrant would not have issued. United States v. Shelton, 2021 U.S. App. LEXIS 14340 (7th Cir. May 14, 2021).
There were no exigent circumstances permitting a warrantless search of defendant’s blood. There were multiple officers on the scene and none of them attempted to contact the on-call state’s attorney or the duty judge. Dusan v. State, 2021 Fla. App. LEXIS 6893 (Fla. 5th DCA May 14, 2021).*
The state established an exception to knock-and-announce because it was a certainty defendant knew the officers were outside. Commonwealth v. Bellamy, 2021 Pa. Super. LEXIS 300 (May 14, 2021).
Defendant had no reasonable expectation of privacy in the ICU while he was recovering there after surgery. Medical staff and law enforcement officers were coming and going, he talked to both freely, and defendant was passing notes to both. When officers saw notes to medical staff, it wasn’t private. Commonwealth v. Welch, 2021 Mass. LEXIS 290 (May 14, 2021).
Window tint violations require a stop to verify. “But the Supreme Court has said that ‘[t]o be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the community’s protection.’ Heien, 574 U.S. at 60-61 (internal quotation marks and citation omitted). ‘The limit is that the mistakes must be those of reasonable men.’ Id. at 61 (internal quotation marks and citation omitted). [¶] The court concludes that Budden’s mistake was that of a reasonable man.” United States v. Ochoa, 2021 U.S. Dist. LEXIS 91175 (E.D. N.C. May 13, 2021).*
Nexus was established between the facts known by the police in the investigation of a robbery and defendant’s home. He fled there afterward. The CI’s tip led the police to defendant and his home and observations corroborated the information. United States v. Freeman, 2021 U.S. Dist. LEXIS 91508 (W.D. Tenn. May 13, 2021),* adopted 021 U.S. Dist. LEXIS 92411 (E.D. Tenn. Mar. 30, 2021).*
Defendant who crashed his car in flight from the police and fled from it leaving it running abandoned it and had no reasonable expectation of privacy in it. United States v. Aron, 2021 U.S. Dist. LEXIS 91483 (N.D. Ind. May 13, 2021).*
“Because defendant’s [Franks] claim relates to an alleged omission, he bears a heavy burden, as a Franks hearing is rarely merited in the case of an omission of exculpatory information. See Graham, 275 F.3d at 506. The Court does not find that the circumstances here warrant a Franks hearing. The affidavit merely states that defendant and Turner ‘discussed plans to have pounds of meth shipped to addresses in the Eastern District of Tennessee’ …. The affidavit does not say that the methamphetamine was shipped to defendant or that defendant would sell the methamphetamine. Instead, the affidavit correctly summarizes the extent of defendant’s involvement—he discussed with Turner plans to have pounds of methamphetamine shipped to the Eastern District of Tennessee. That the affidavit omitted information about a third individual’s involvement in this incident does not merit a Franks hearing, as such information would not have been particularly relevant to the determination of whether probable cause existed to search defendant’s residence for evidence of drug trafficking. Ultimately, the affiant’s summary of defendant’s involvement in this discussion is not ‘false’ and the affiant’s omission of Hounshell’s involvement does not warrant a Franks hearing.” United States v. Stewart, 2021 U.S. Dist. LEXIS 91592 (E.D. Tenn. May 13, 2021).
The affiant had good reason to believe that the CI was wrong about an important detail, and the USMJ would certainly want accurate information. Nevertheless, removing that fact from the affidavit does not undermine the probable cause as a whole. United States v. Searcy, 2021 U.S. Dist. LEXIS 91314 (W.D. Pa. May 13, 2021).
The community caretaking function didn’t permit a warrantless entry into defendant’s home to secure his firearms after he left the home without them to get psychiatric help. He also asked that his guns not be seized when he left the house. “The very core of the Fourth Amendment’s guarantee is the right of a person to retreat into his or her home and ‘there be free from unreasonable governmental intrusion.’ Florida v. Jardines, 569 U.S. 1, 6. A recognition of the existence of ‘community caretaking’ tasks, like rendering aid to motorists in disabled vehicles, is not an open-ended license to perform them anywhere.” Caniglia v. Strom, 20–157, 2021 U.S. LEXIS 2582 (U.S. May 17, 2021). The syllabus:
Posted inCommunity caretaking function|Comments Off on SCOTUS: Community caretaking function didn’t permit entry into unoccupied home to secure firearms when occupant left at request of police
The fact the officers would have obtained a search warrant for defendant’s cell phone if one was sought here made the question of consent to search it moot. Inevitable discovery applies. This was at an immigration checkpoint. United States v. Reyes-Herrera, 2021 U.S. Dist. LEXIS 91397 (S.D. Tex. May 13, 2021):
Defendant with a “friends with benefits” relationship with his host still had standing during his short-term stays. Here, he was asleep in his underwear when the police entered at night. United States v. Brantley, 2021 U.S. Dist. LEXIS 91340 (D. N.J. May 13, 2021):
A broad consent to search a home includes the surveillance system. Hart v. State, 2021 Tex. App. LEXIS 3784 (Tex. App. – Houston (14th Dist.) May 13, 2021).
“Considering that knowledge of the ability to refuse consent is not a determinative factor, in conjunction with the fact that the remainder of the factors weigh in favor of voluntary consent, indicates to the Court that Defendant’s consent was voluntarily given.” United States v. Taylor, 2021 U.S. Dist. LEXIS 90604 (D. Nev. May 12, 2021).*
A significant amount of cash in defendant’s car coupled with his drug history help provide nexus to search his house for drugs. United States v. Lawson, 2021 U.S. Dist. LEXIS 90629 (E.D. Ky. May 12, 2021).*
The CI’s information was adequately corroborated by the officers and showed probable cause. United States v. Dozier, 2021 U.S. Dist. LEXIS 91288 (D. Kan. May 13, 2021).*
Posted inConsent, Nexus, Scope of search|Comments Off on TX14: Broad consent to search home included surveillance system
"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.
