In Ohio, a 911 hang-up call is treated as presumptively an emergency until shown otherwise. State v. Walter, 2020-Ohio-6772, 2020 Ohio App. LEXIS 4622 (5th Dist. Dec. 17, 2020).
A police officer’s property was searched under a warrant. The warrant was for his vehicle, but, at the scene of the search, the officers had probable cause to believe his wife’s car was searchable too. Therefore, the Fourth Amendment was not violated, and summary judgment was properly granted. Also, his detention during execution of the warrant was reasonable. Cronin v. Peterson, 2020 U.S. App. LEXIS 39752 (8th Cir. Dec. 18, 2020).*
On the facts of this case, the mere odor of marijuana wasn’t enough to show probable cause. The officers never explained why they believed that or what their training was. Bunnell v. State, 2020 Ind. App. LEXIS 538 (Dec. 18, 2020):
Defendant lived on the grounds of a 24/7 storage building company. At 2:30 am, officers investigating saw cars coming and going from the residence. They approached his building, and the approach way wasn’t curtilage under Dunn. United States v. Powell, 2020 U.S. App. LEXIS 39684 (10th Cir. Dec. 17, 2020).*
Defendant didn’t have standing as a vehicle passenger, so the question of consent is moot. United States v. Jones, 2020 U.S. Dist. LEXIS 237280 (E.D. Mich. Dec. 17, 2020).*
“Having accepted the district court’s findings of fact, we conclude Officers Tarwater and Whetro had probable cause to believe Holly had committed a traffic violation. Therefore, the stop of Holly’s vehicle was reasonable and not a violation of the Fourth Amendment. Even if one of the officers was mistaken about actually observing the violation, the surrounding circumstances—the speed of the SUV and its position relative to the patrol vehicle—could lead a reasonable officer to believe Holly had failed to stop as required by Missouri law.” United States v. Holly, 2020 U.S. App. LEXIS 39747 (8th Cir. Dec. 18, 2020).*
Posted inCurtilage, Reasonable suspicion, Standing|Comments Off on CA10: There was no violation of curtilage for def’s home on grounds of 24/7 storage company
Defendant ordered to stay away from his own marital home as a result of domestic violence no contact order had no standing in the house when he retreated inside to avoid the officer there to check on his violation of the order. State v. Rebo, 2020 Ida. LEXIS 242 (Dec. 16, 2020):
“Defendant retorts that, if in fact Sgt. Concepcion discovered the marijuana odor early in the traffic stop, he should have begun the search immediately rather than waiting for the arrival of Investigator Gould, citing no caselaw in support. The Court disagrees. See United States v. Anguiano, 791 F. App’x 841, 849 (11th Cir. 2019) (finding as reasonable officer’s decision to await backup before searching vehicle).” United States v. Barnes, 2020 U.S. Dist. LEXIS 237633 (S.D. Ga. Nov. 25, 2020), adopted, 2020 U.S. Dist. LEXIS 236631 (S.D. Ga. Dec. 16, 2020).
“Our review of the record leads us to conclude that the district court properly found the interaction between Fields and the officer amounted to nothing more than a brief encounter and was not a seizure for Fourth Amendment purposes.” United States v. Fields, 2020 U.S. App. LEXIS 39688 (4th Cir. Dec. 17, 2020).*
Posted inAutomobile exception, Seizure|Comments Off on S.D.Ga.: A vehicle search doesn’t have to happen as soon as PC develops; prudent to wait for backup
Defendant’s arrest violated the Fourth Amendment because it was the product of an illegal constructive entry without any exigency that occurred when armed police officers surrounded his trailer and ordered the occupants out. They could not have arrested defendant for the misdemeanor offense of brandishing a firearm under state law. “Trapp was not subject to arrest for anything he had done before the police arrived.” His resistance to arrest was therefore justified under state common law, so his conviction for resisting and obstructing a police officer had to be reversed. People v. Trapp, 2020 Mich. App. LEXIS 8478 (Dec. 17, 2020).
An identified CI who wanted her identity kept from the defendant isn’t an anonymous source. United States v. Brown, 496 F.3d 1070, 1075 (10th Cir. 2007). The information was corroborated on the scene and provided reasonable suspicion. United States v. Romero, 2020 U.S. App. LEXIS 39681 (10th Cir. Dec. 17, 2020).*
Posted inArrest or entry on arrest, Informant hearsay|Comments Off on MI: Ordering def out of his house for a misdemeanor arrest without showing of exigency unreasonable
The command authorization for a search of defendant’s iPhone was reasonable and limited to files of emails, text messages, and search history as to his extramarital affairs before and after his wife’s death. A video found in an email was properly seized. “Even assuming arguendo the TRNGCMD Commander lacked either control over the place where the phone was situated or probable cause to issue the CASS, we conclude the search and seizure of this evidence fall within the good faith exception to the exclusionary rule. Under this exception, evidence obtained as a result of an otherwise unlawful search or seizure may be used if: …. Mil. R. Evid. 311(c)(3). All three of these conditions are satisfied here.” “The CASS, while broadly worded in its technical approach, was nevertheless tailored to the specific crimes the investigation had brought to light, based on the involvement of cell-phone communications and cell-phone-based internet searches in connection with those crimes.” There is no deterrent value in exclusion here. United States v. Irvin, 2020 CCA LEXIS 452 (N.-M. Ct. Crim. App. Dec. 17, 2020).*
Defendant’s riding in a stolen car permits a patdown. “Further, to the extent Brooks argues questioning occurred before the frisk and exceeded the permissible scope of a Terry stop, we conclude that the officers were not required to give Miranda warnings prior to asking Brooks if he had a weapon.” United States v. Brooks, 2020 U.S. App. LEXIS 39628 (8th Cir. Dec. 17, 2020).
A 911 call reporting witnessing shots fired from a particularly described vehicle is a sufficient emergency to justify a stop, following Robinson v. Howes, 663 F.3d 819 (6th Cir. 2011), United States v. Jones, 2020 U.S. Dist. LEXIS 237280 (E.D. Mich. Dec. 17, 2020).
The USMJ did not apply complete deference to the affidavit for the search warrant because she considered the Franks issue, too, in rejecting the challenge. United States v. Knox, 2020 U.S. Dist. LEXIS 237510 (E.D. Tenn. Dec. 17, 2020).*
“Also, the fact that Gardea was questioned in the patrol car is of no consequence. ‘An officer making a traffic stop does not violate the Fourth Amendment by asking the driver his destination and purpose, checking the license and registration, or requesting the driver to step over to the patrol car.’ United States v. Linkous, 285 F.3d 716, 719 (8th Cir. 2002).” [Linkous was mine.] United States v. Gonzalez-Gardea, 2020 U.S. Dist. LEXIS 237158 (D. Neb. Dec. 17, 2020). [What if it’s cold or rainy?]
“Probable cause that a driver has committed any traffic violation, no matter how minor, provides sufficient justification under the Fourth Amendment to stop a vehicle and handcuff and arrest the driver. Atwater v. City of Lago Vista, 532 U.S. 318, 354-55 (2001). The officer’s subjective motivation is irrelevant. Brigham City v. Stuart, 547 U.S. 398 (2006). Even if the officer was influenced by an impermissible motive, a traffic stop does not violate the driver’s rights under the Fourth Amendment to be free from unreasonable seizures, as long as the circumstances, viewed objectively, justified the seizure. Id.; Whren v. United States, 517 U.S. 806, 813 (1996).” United States v. Neal, 2020 U.S. Dist. LEXIS 237144 (E.D. Ark. Dec. 17, 2020).*
Failure to signal a turn until after coming to a full stop justifies a stop under Indiana law. The trial court erred in finding not. State v. Torres, 2020 Ind. App. LEXIS 537 (Dec. 17, 2020).*
Failure to stay in one’s lane justifies a traffic stop. State v. Williams, 2020-Ohio-6755, 2020 Ohio App. LEXIS 4591 (5th Dist. Dec. 17, 2020).*
Posted inReasonable suspicion|Comments Off on D.Neb.: Roadside questioning in the patrol car doesn’t matter
Probable cause for arrest because of planning to commit a drug crime based on corroborated CI information without the drug transaction even happening. United States v. Kristopher, 2020 U.S. Dist. LEXIS 236421 (W.D. Ky. Dec. 16, 2020) [e.g., attempt, conspiracy].
Defendant’s post-conviction claim that a Franks challenge wasn’t made fails. “Here, the appellate ineffectiveness claim fails. The Movant concedes that counsel did not raise this challenge below. He has not shown that this claim of unpreserved error was plainly stronger than the issues that were raised on appeal.” Holt v. United States, 2020 U.S. Dist. LEXIS 236661 (S.D. Fla. Dec. 14, 2020.*
Posted inFranks doctrine, Probable cause|Comments Off on W.D.Ky.: PC to arrest for a drug crime doesn’t require a completed crime
There was an outstanding arrest warrant for defendant that justified the officer’s attempting to arrest him, and his flight justified his conviction for evading. The exclusionary rule doesn’t reach down to the actual validity of the warrant and the statute recognizes no exclusionary rule. The officer relied on it in good faith. Day v. State, 2020 Tex. Crim. App. LEXIS 1033 (Dec. 16, 2020):
NBC News: Bodycam footage of botched police raid in Chicago sparks outrage (“The video of the February 2019 raid shows police officers handcuffed a naked woman and searched her home for nearly an hour before realizing they raided the wrong home. Chicago police had no comment, citing an open investigation.”)
Posted inWarrant execution|Comments Off on NBC News: Bodycam footage of botched police raid in Chicago sparks outrage
Defense counsel waited past the pretrial motions deadline to file a motion to suppress complaining that he needed a state court transcript, but that hearing was long ago. The district court acted within its discretion in denying the motion for untimeliness. United States v. Fernetus, 2020 U.S. App. LEXIS 39533 (11th Cir. Dec. 16, 2020).
“In addition, none of the other situations precluding the good faith exception apply as there is nothing in the record that even hints that the Magistrate Judge who reviewed the affidavit and signed the search warrant engaged in any misconduct or abrogation of judicial responsibility. Moreover, the warrant is facially valid in that it describes in sufficient detail the things to be seized, the location for the search, and it is signed by a Magistrate Judge. … Accordingly, the agents executing the warrant were justified in believing in its validity, and evidence seized during the execution would not be subject to suppression under the good faith exception even if the warrant were found to lack probable cause.” United States v. Latorre, 2020 U.S. Dist. LEXIS 236111 (N.D. Ga. Nov. 23, 2020),* adopted, 2020 U.S. Dist. LEXIS 235118 (N.D. Ga. Dec. 15, 2020).*
“We concur with the trial court that Officer Sholl had a sufficient reasonable objective basis under the totality of the circumstances to frisk appellant for weapons. Appellant had a large fixed blade knife on his belt loop. A pat down for additional weapons was warranted. When asked if he had any additional weapons on his person, appellant was untruthful. It was reasonable for Officer Sholl to ask appellant what was inside the black pouch as it could have contained razor blades or a folded knife. Appellant volunteered that the pouch contained methamphetamine.” State v. Wheeler, 2020-Ohio-6720, 2020 Ohio App. LEXIS 4561 (5th Dist. Dec. 15, 2020).
“Probable cause only requires ‘a fair probability that contraband or evidence of a crime will be found.’ … By the time they surrounded the truck, the officers had a tip from a reliable informant that individuals in the truck were about to complete a drug sale and that they had drugs in the truck. No more was needed to justify the seizure of Garcia and the driver and the subsequent K-9 inspection.” United States v. Garcia, 2020 U.S. App. LEXIS 39529 (1st Cir. Dec. 16, 2020).*
Posted inProbable cause|Comments Off on OH5: Def’s large knife on his belt justified patdown for additional weapons
Basic questions about where defendant and his passenger were going were reasonable to put their trip into “context.” That led to reasonable suspicion. Pryce v. State, 2020 WY 151, 2020 Wyo. LEXIS 178 (Dec. 16, 2020). (And one could ask: What business of the officer is that?)
The search warrant for digital media was sufficiently particular to look for evidence of child molestation. Albrecht v. State, 2020 Ind. App. LEXIS 536 (Dec. 16, 2020).*
“[T]he Fourth Amendment governs social workers’ investigations of allegations of child abuse.” McCullough v. Herron, 2020 U.S. App. LEXIS 39522 (5th Cir. Dec. 15, 2020).*
A virtual suppression hearing that was a mixed question of law and fact didn’t require the actual presence of the accused under the Sixth Amendment’s confrontation clause, following United States v. Rosenschein, 2020 U.S. Dist. LEXIS 129889 (D.N.M. July 23, 2020). On the merits of the motion to suppress, defendant prevails because Probation and Parole didn’t show that this search was reasonable under state law. State v. Kolaco, 2020 Del. Super. LEXIS 2984 (Dec. 14, 2020).
“Here, the affidavit’s description of the positive dog sniff and its representation that Detective Irvin and Jackson were certified was, on its own, sufficient to support probable cause for the search warrant at issue.” United States v. Hussein, 2020 U.S. Dist. LEXIS 234205 (D. Minn. Oct. 21, 2020),* adopted, 2020 U.S. Dist. LEXIS 233289 (D. Minn. Dec. 11, 2020).*
Touching the yellow line was reasonably understood to be a violation of state law and that justified the stop. United States v. Cruz, 2020 U.S. App. LEXIS 39367 (10th Cir. Dec. 14, 2020).*
“A substantial basis existed for the court to determine probable cause existed on the face of the warrant affidavit.” It was, however, sloppy and partly misleading, but, on the totality there is no Franks violation. United States v. Johnson, 2020 U.S. Dist. LEXIS 234489 (N.D. Iowa Nov. 21, 2020), adopted, 2020 U.S. Dist. LEXIS 233243 (N.D. Iowa Dec. 11, 2020)*:
The rental agreement for defendant’s storage unit itself showed there was no reasonable expectation of privacy in the unit if the landlord suspected unlawful or unsafe use. Here, there was a dog sniff outside the door. “Because Defendant consented to the search under the terms of the rental agreement, he had no reasonable expectation of privacy in the storage unit.” United States v. Moore, 2020 U.S. Dist. LEXIS 234266 (M.D. Fla. Dec. 14, 2020).
Officers on patrol in Chicago saw a gun in defendant’s waistband with a large capacity magazine, and Chicago is not an open carry jurisdiction. He also was making furtive movements as he looked around and touched the gun. The stop was reasonable. United States v. Triplett, 2020 U.S. Dist. LEXIS 233269 (N.D. Ill. Dec. 11, 2020).*
"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.
