Police properly conducted a protective sweep for an AK-47 after a knock-and-talk did not gain entry. Police had an anonymous source, and defendant was an alleged felon in possession, and they went for a knock-and-talk. Defendant refused to consent, and the police smelled marijuana when the door was open. They decided to seek a warrant and one officer was to leave for that. The others decided on a protective sweep for safety and found the gun leaning against the wall in a bedroom. R&R rejected on this point. Defendant had standing as a frequent guest. United States v. Thurman, 2020 U.S. Dist. LEXIS 234033 (W.D. La. Dec. 11, 2020). And, with the search warrant, discovery would have been inevitable.
An application for a search warrant for child pornography in a cloud account at Microsoft was not stale. It is well known that child pornography collectors keep it for a long time. The application was for the child pornography itself and indicia information to identify and arrest the collector, and it was reasonable. United States v. Bohannon, 2020 U.S. Dist. LEXIS 233601 (N.D. Cal. Dec. 11, 2020).*
Error as to USPS tracking number in an anticipatory warrant wasn’t fatal and didn’t make the warrant not particular. All the other information was correct as to sender, recipient, description, and shipping location. This was a “mere technical error” that could be overlooked. “Indeed, the Search Warrant contained sufficient information for the executing officer (PI Corricelli) to identify the correct package and, having already executed the search warrant for the ‘4884 Parcel, there was no reasonable likelihood that the wrong item would be searched.” United States v. Santana, 2020 U.S. Dist. LEXIS 234104 (M.D. Pa. Dec. 14, 2020).
The affidavit for this search warrant on the totality shows a time frame, and isn’t general as to time. There are CIs who are both known and anonymous, and they were sufficiently corroborated. Finally, the corroboration showed nexus. State v. Jones, 2020-Ohio-6667, 2020 Ohio App. LEXIS 4523 (3d Dist. Dec. 14, 2020).*
Posted inAnticipatory warrant, Particularity, Staleness|Comments Off on M.D.Pa.: Error in USPS tracking number of parcel in SW was a “mere technical error” when it was readily apparent they had right package
On the totality under the state constitution, defendant had a reasonable expectation of privacy for a pair of wet boots hidden in a utility closet in an apartment building’s vestibule closet. He manifested the expectation of privacy by his actions, and disclaiming responsibility for a pair of boots when confronted with them didn’t result in a waiver of his expectation. State v. Gates, 2020 N.H. LEXIS 202 (Dec. 9, 2020):
A city inspector followed state statute and entered upon a homeowner’s property after he saw a deck and above ground pool being built in violation of the local housing code. The entry was reasonable and did not require a administrative search warrant since it was outdoor and not inside. Metro. Dev. Comm’n v. Powell, 2020 Ind. App. LEXIS 528 (Dec. 14, 2020).
“Here, when Officer Mack smelled marijuana coming from inside the residence he had probable cause to believe there was additional marijuana inside the home, justifying a warrant to search the premises. [¶] The Court further finds that Officer Mack’s act of briefly stepping into the subject residence to obtain a shirt for Defendant, before the obtaining the search warrant, was not itself a search.” United States v. Bailey, 2020 U.S. Dist. LEXIS 233779 (W.D. N.C. Dec. 11, 2020).*
In a criminal copyright infringement case, a search warrant issued, and the police seized an attorney memorandum in plain view. The court finds the attorney-client privilege was waived by prior disclosure to others. United States v. Dallmann, 2020 U.S. Dist. LEXIS 233640 (E.D. Va. Dec. 11, 2020):
Posted inPlain view, feel, smell, Privileges|Comments Off on E.D.Va.: Attorney memorandum could be seized in plain view during search; 5A privilege was waived
When the defendant moves to suppress a search warrant claiming only a lack of probable cause, a hearing isn’t required. It’s then a mixed question of law and fact (mostly law). State v. Holt, 2020-Ohio-6649, 2020 Ohio App. LEXIS 4515 (6th Dist. Dec. 11, 2020).
The omitted information would have added to probable cause, not detracted from it. The officers were not intentionally misleading in the affidavit. The photo identification was suggestive, but it was already corroborated by a lot and doesn’t detract from the ultimate probable cause finding. United States v. Johnson, 2020 U.S. Dist. LEXIS 233243 (N.D. Iowa Dec. 11, 2020).*
“ Officers conducting a traffic stop may only conduct investigation unrelated to that traffic stop if they have independent constitutional justification for further inquiries. Neither line of inquiry here (first, whether defendant had drugs, and second whether she illegally possessed a gun) was related to the basis of the traffic stop. The only remaining question is whether that nontraffic-stop-related inquiry was justified by reasonable suspicion of a crime. It plainly was not.” State v. Hallam, 307 Ore. App. 796, 2020 Ore. App. LEXIS 1514 (Dec. 9, 2020).
Defendant can’t challenge the search here without challenging the predicate steps to the ultimate search. He assumes the dog sniff was unreasonable in his argument, but it was ever litigated before the USMJ, so this claim fails. Besides, there was probable cause after all. United States v. Hussein, 2020 U.S. Dist. LEXIS 233289 (D. Minn. Dec. 11, 2020).
The CI’s track record wasn’t disclosed but the corrobation was. Probable cause was shown. “Here, Detective Shelton’s affidavit established probable cause. Shelton’s affidavit relayed the informant’s statement that Defendant Butts was manufacturing Fentanyl tablets using Drug Mart brand pain medication. Though Shelton’s affidavit did not describe the informant’s track record, the investigating officers, as detailed in the affidavit, verified the informant’s reliability through their corroborative police work.” United States v. Butts, 2020 U.S. Dist. LEXIS 232365 (N.D. Ohio Dec. 10, 2020).
Objections to the search raised for the first time in response to the R&R are waived. United States v. Redman, 2020 U.S. Dist. LEXIS 232306 (N.D. Iowa Dec. 10, 2020).*
Posted inInformant hearsay, Waiver|Comments Off on N.D.Ohio: Lack of CI’s track record can be overlooked with corroboration of the story
The district court erred in summarily dismissing plaintiff’s case at § 1915A screening for failure to state a claim, because he did in the attempted amended complaint. “Edwards alleged that Rice lacked a search warrant when she conducted an investigation of his property on March 15, 2018. He was arrested by constables who were with Rice, and, while he was being taken away, Edwards saw ‘all of them walking on to the property and sta[r]te[d] to look th[r]ough the [stuff] there and taking photos, and looking around.’” Rice also allegedly came in without a warrant and took photographs. Reversed. Edwards v. Rice, 2020 U.S. App. LEXIS 38585 (3d Cir. Dec. 10, 2020).
The affidavit for the search warrant for defendant’s property adequately showed nexus. United States v. Rosario, 2020 U.S. App. LEXIS 38586 (3d Cir. Dec. 10, 2020).*
FSTs require reasonable suspicion, and the officers had it here from the driving. State v. Curfman, 2020-Ohio-5632, 2020 Ohio App. LEXIS 4479 (5th Dist. Dec. 8, 2020).*
On post-conviction review, defendant didn’t call as a witness the person who consented to the entry to testify that she did so involuntarily. Therefore, he failed in his burden of proof. Defendant was properly subjected to a DV arrest, even though he claimed there was no evidence of injury within the last 2–3 days. Commonwealth v. Hawkins, 2020 PA Super 280, 2020 Pa. Super. LEXIS 967 (Dec. 10, 2020).
The officer’s running defendant’s LPN gave the officer probable cause to believe the vehicle was uninsured. He attempted to stop it but defendant fled, wrecking the car. Inventory after that was reasonable. People v. Coss, 2020 NY Slip Op 07431, 2020 N.Y. App. Div. LEXIS 7636 (3d Dept. Dec. 10, 2020).*
Posted inConsent, Inventory, Standards of review|Comments Off on PA: On PCR, def has to call the third-party consenter as a witness to attempt to show lack of consent
The search incident exception supported the search here because it was factually and legally appropriate except for the fact that the actual arrest didn’t occur until months later. The officers chose not to arrest at that moment. United States v. Schneiders, 2020 U.S. Dist. LEXIS 231819 (N.D. Iowa Dec. 10, 2020):
All the police had was the color of the sedan, its number of doors, and the race and gender of its driver to indicate that the sedan in the affidavit was the same sedan as the one seen in the neighborhood. Without any further information connecting the two vehicles, it was not reasonable to infer that they were one and the same in the third largest county in the United States. As to his cell phone, no facts tied it to the offense, and there were no facts showing that a cell phone was used during the crime or shortly before or after, which was usually required to support a finding of probable cause. The suppression order is affirmed. State v. Baldwin, 2020 Tex. App. LEXIS 9608 (Tex. App. – Houston (14th Dist.) Dec. 10, 2020) (en banc, 8-1), rev’g State v. Baldwin, 2020 Tex. App. LEXIS 6173 (Tex. App. – Houston (14th Dist.) Aug. 6, 2020). [So it might be particular in a small town with few cars matching the description.]
Posted inParticularity|Comments Off on TX14: SW for car with only color, 4 doors, and race and gender of driver in Houston was not particular
When defendant didn’t show up for his third controlled buy, police went to him and searched his car finding the drugs. They had probable cause for that search under the automobile exception. State v. Garza, 29 Neb. App. 223 (Dec. 8, 2020).
“Carson’s argument that Aurand’s investigation was unconstitutional because it was limited to her interview with S.W. is unavailing. ‘When a police officer has received a reliable identification by a victim of his or her attacker, the police have probable cause to arrest.’ …. Thus, S.W.’s identification of Carson was sufficient to provide probable cause. See Aurand Dep., ECF No. 32-6 at 25-26 (explaining that Aurand believed S.W. to be credible).” Carson v. Aurand, 2020 U.S. App. LEXIS 38330 (3d Cir. Dec. 9, 2020).
Posted in§ 1983 / Bivens, Probable cause|Comments Off on NE: Search of def’s car valid under automobile exception where he was late for third controlled buy
A seizure under a search warrant is not a Fifth Amendment taking. Woods v. Milwaukee Cty. Dist. Atty’s Office, 2020 U.S. Dist. LEXIS 231416 (E.D. Wis. Dec. 9, 2020).
Defense counsel was not ineffective for not raising defendant’s search issue on appeal because it would lose, and, even if it wouldn’t, the proof of guilt was overwhelming. Pickett v. Coursey, 2020 U.S. App. LEXIS 38388 (9th Cir. Dec. 9, 2020).*
“Detective Redding then asked Mason whether he had anything in the Vehicle that the officers should know about, and Detective Kent asked Defendant what he was doing, where he had been, where he was going, whether he had been previously arrested, and whether he was on probation or parole. ‘An officer’s inquiries into matters unrelated to the justification for the traffic stop . . . do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.’ Arizona v. Johnson, 555 U.S. 323, 333 (2009); …. Here, there is no evidence that either of these questions measurably extended the traffic stop; instead, the record only reflects that both Mason and Defendant provided brief answers and that the length of time from the traffic stop until the search began was between three and ten minutes.” United States v. Freeman, 2020 U.S. Dist. LEXIS 231322 (W.D. Tenn. Oct. 14, 2020), adopted, 2020 U.S. Dist. LEXIS 230234 (W.D. Tenn. Dec. 8, 2020).
Posted inReasonable suspicion|Comments Off on W.D.Tenn.: Asking a series of questions during a stop didn’t unreasonably lengthen it
“Although many reasonable people may agree that the stop at issue here was a highly technical, ‘ticky-tacky’ sort of traffic stop, there is no doubt that Florida law requires a driver to stop at a clearly marked stop line before entering a crosswalk or intersection.” United States v. Brown, 2020 U.S. Dist. LEXIS 231148 (M.D. Pa. Dec. 9, 2020).
The search warrant here was, in fact, based on an independent source and not a preliminary entry. The warrant would have issued anyway. The R&R is adopted. United States v. Whipple, 2020 U.S. Dist. LEXIS 230871 (E.D. Tenn. Dec. 9, 2020).*
“In the Eighth Circuit, the smell of marijuana constitutes probable cause for an officer to search a vehicle for drugs.” Defense counsel not challenging uncontested facts wasn’t IAC. United States v. Phillips, 2020 U.S. Dist. LEXIS 230866 (D. Neb. Dec. 9, 2020).*
The state conceded a lack of probable cause in the trial court when the automobile exception was at issue. On appeal, they argued against that concession, which they could not do. “Accordingly, the Supreme Court should not have denied the defendant’s suppression motion on a theory not argued by the People, nor may the People properly raise that theory as a ground for affirmance on the present appeal.” People v. Tates, 2020 NY Slip Op 07405, 2020 N.Y. App. Div. LEXIS 7624 (2d Dept. Dec. 9, 2020).
“The defendant’s contention that the search of his historical cellular telephone site location information (hereinafter CSLI) records obtained by means of an attorney subpoena violated the Fourth Amendment …. In any event, any error in the [trial] court’s admission of the defendant’s CSLI records was harmless, because the evidence of the defendant’s guilt was overwhelming, and there was no reasonable possibility that the error might have contributed to the defendant’s conviction ….” People v. Nelson, 2020 NY Slip Op 07400, 2020 N.Y. App. Div. LEXIS 7578 (2d Dept. Dec. 9, 2020).*
Posted inWaiver|Comments Off on NY2: State couldn’t concede no PC in trial court but argue there was on appeal
techspot: Schools are using FBI hacking tools to access students’ phones by Isaiah Mayersen (“A damning Gizmodo report has revealed that numerous school districts have purchased the digital tools the FBI use, and are leveling them against students. Even without student consent, school officers are able to access messages, files, and sometimes login keys to cloud services.”)
Posted inDigital privacy|Comments Off on techspot: Schools are using FBI hacking tools to access students’ phones
"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.
