Officers had probable cause defendant possessed child pornography on his computer from his roommate’s seeing him look at two pictures in succession of nude children. The longstanding principle is that probable cause is less than a preponderance, and the court declines to find either that there is a constitutional right to a preponderance standard or that a preponderance standard should be adopted under state constitutional law. State v. Sawyer, 2020 Conn. LEXIS 78 (Mar. 24, 2020).
Defendant consented to the entry of 8-10 officers into his house to read him an order suspension of his handgun permit. He consented to a search for the weapons, and one was regulated under the National Firearms Registration and Transfer Record and he had no federal license for it. The consent was voluntary. United States v. Elmowsky, 2020 U.S. Dist. LEXIS 48186 (S.D. N.Y. Mar. 19, 2020.*
Posted inBurden of proof, Consent|Comments Off on CT: That PC is less than a preponderance is well established in constitutional law; court declines to adopt preponderance standard here
This traffic stop led to defendant being cited for driving on a suspended DL, but the officers were going to let him get someone to come and retrieve the keys from their office. The officer turned it into a drug investigation by asking about other persons and their involvement with drugs and seeking consent to search the vehicle while the stop dragged on. The incidents of the traffic stop were not completed because the officers chose not to. State v. Nagel, 2020 VT 31, 2020 Vt. LEXIS 30 (Mar. 20, 2020):
Posted inReasonable suspicion|Comments Off on VT: Traffic stop devolved into drug investigation without RS; delay was because officers intentionally didn’t complete the tasks of the stop
“Police entered protected property to get to unprotected property to make an observation in open fields. That prior unlawful intrusion doesn’t justify exclusion. “Florida law is relatively clear whether to suppress evidence discovered on a person’s property during an officer’s unlawful intrusion onto that property. Likewise, adequate case law addresses the suppression of evidence located on property protected under the Fourth Amendment that was observed from a vantage point that was not on the protected property. But this case presents the opposite scenario, for which little case law exists: an officer unlawfully intrudes onto protected property, and from there proceeds onto unprotected property and discovers evidence there. In a detailed order, the trial court below suppressed such evidence. Because we find that Ware had no reasonable expectation of privacy in the area where the evidence was located, and because the officer could not have seen the evidence until he left the protected property, we find that, in the circumstances presented here, the evidence was not subject to the suppression, irrespective of the unlawful intrusion that preceded it. We reverse the order granting suppression.” State v. Ware, 2020 Fla. App. LEXIS 3727 (Fla. 1st DCA Mar. 20, 2020).
Posted inConstitutionally protected area, Open fields|Comments Off on FL1: Officers crossing protected lands to get to unprotected lands to make a plain view doesn’t justify exclusion
Defendant was stopped for failing to stop at a stop sign. When officers approached the car, “Officer Torrez saw a partially open bag, in plain view on the floor board, containing marijuana. This also provided the officers with probable cause to believe marijuana was in the vehicle.” This was not probable cause for a search warrant for his house. “In sum, the affidavit states that law enforcement arrested the Defendant in a vehicle near his residence with a quantity of marijuana that was likely for distribution. There was no evidence in the affidavit that the Defendant was a drug dealer, had dealt drugs from his home, or was even coming from his residence. No confidential informant told the police that the Defendant was engaged in drug distribution or that the residence was connected to drug distribution. In these circumstances, there was insufficient probable cause to support the warrant.” The good faith exception does not apply because the affidavit truly was totally lacking in probable cause. United States v. Woodley, 2020 U.S. Dist. LEXIS 48071 (E.D. Va. Mar. 19, 2020).
Posted inGood faith exception, Nexus, Probable cause|Comments Off on E.D.Va.: MJ in def’s car doesn’t, ipso facto, translate into PC he has drugs at his house nearby; GFE can’t apply
Defendant was held in contempt and sentenced to five months and 29 days for refusing to provide the passcode for his cell phone so it could be searched under a warrant. “However, whether a finding of contempt could have been supported solely by the trial court’s credibility determination that Agosto was lying about his inability to unlock the phone—without the corroborating evidence of unobserved conduct such as his previous refusal to provide the passcode at the jail—is not a question before this court. To reach its finding of contempt, the trial court relied on evidence of conduct that occurred outside the presence of the court. Because that is not permissible in direct criminal contempt proceedings, we reverse and remand for the lower court to vacate Agosto’s conviction for direct criminal contempt.” Agosto v. State, 2020 Fla. App. LEXIS 3699 (Fla. 2d DCA Mar. 20, 2020).
Posted inCell phones, Privileges, Warrant execution|Comments Off on FL2: Direct contempt for refusing to provide passcode for cell phone search reversed; out-of-court evidence couldn’t be considered
Two search warrants were issued May 28 & 29, 2019. They were both issued with probable cause, they weren’t stale, and the second did not supersede the first. No case supports this latter argument. United States v. Atkins, 2020 U.S. Dist. LEXIS 47459 (M.D. N.C. Mar. 16, 2020).
Defendant agreed to a parole search condition without cause. Officers had a tip. Coupled with his prior possession of a cutting agent for Fentanyl, curfew violations, and admission he had too much money to work was justification for the probation search. United States v. Dennis, 2020 U.S. Dist. LEXIS 48035 (D. Conn. Mar. 20, 2020).*
Reviewing the suppression hearing transcript, the court finds an objective observer would understand that the request for identification was not an order. [They never are.] State v. Cross, 2020-Ohio-1039, 2020 Ohio App. LEXIS 969 (2d Dist. Mar. 20, 2020).*
“The lack of a video under these circumstances is not a basis for rejecting the Magistrate Judge’s credibility finding.” Defendant’s becoming loud and obnoxious when asked to leave justified a frisk. United States v. Tymes, 2020 U.S. Dist. LEXIS 47638 (M.D. Ala. Mar. 19, 2020).
Aside from having developed probable cause as to the residence to be searched, the officers had reasonable suspicion from a CI that was corroborated as to defendant’s involvement which was omitted from the warrant application. That enabled them to stop defendant, and he was ordered from the car, which he failed to respond to and they pulled him out. Pulling him out didn’t still raise it to a de facto arrest. United States v. Cabrera-Vasquez, 2020 U.S. Dist. LEXIS 47866 (D. Neb. Feb. 10, 2020),* adopted, 2020 U.S. Dist. LEXIS 46477 (D. Neb. Mar. 18, 2020).*
Defendant argues the inventory was really investigatory. He doesn’t claim anything was missing or lost. He also was on someone else’s property at 5 am, so there was no need to leave it there because the owner couldn’t assent, assuming he would. The officers videoed the inventory rather than make a list. There was nothing wrong with the inventory. Alternatively, the search of the car was valid because of the smell of marijuana. United States v. Goldman, 2020 U.S. Dist. LEXIS 47589 (W.D. Mo. Feb. 4, 2020), adopted, 2020 U.S. Dist. LEXIS 46784 (W.D. Mo. Mar. 18, 2020).
The first stop was invalid because the officer failed to remember anything about the stop when he testified, and the video doesn’t show the violation. The second stop, however, had a factual basis, and the smell of marijuana supported the search. State v. Lask, 2020-Ohio-1037, 2020 Ohio App. LEXIS 966 (4th Dist. Mar. 6, 2020).*
Posted inUncategorized|Comments Off on W.D.Mo.: Video of contents of car satisfied inventory
Even if the officer presumed defendant was in legal possession of cannabis pursuant to Illinois MMJ Act, the facts established probable cause that evidence of a crime was in the vehicle. The officer saw a loose “bud” in the backseat and smelled a strong odor of cannabis which, together, indicated that cannabis was in the car and likely not in its proper container. People v. Hill, 2020 IL 124595, 2020 Ill. LEXIS 182 (Mar. 19, 2020).
There was a factual basis for stopping defendant for not using a headlight on his bicycle at night. The court does not find, however, defendant fled, so any search incident of his person for alleged flight is suppressed because it was not a valid search incident. United States v. Davis, 2020 U.S. Dist. LEXIS 47281 (S.D. W.Va. Mar. 19, 2020).*
Defendant makes a Franks challenge to events recounted from one day in the time line, which the court finds not material to the ultimate showing of probable cause. Therefore, there was an insufficient preliminary showing for a hearing. United States v. Chagoya, 2020 U.S. Dist. LEXIS 46749 (E.D. Wis. Jan. 29, 2020).
“Concerned that Alexander may have been tipped off by the Kia occupants, at approximately 8:30 p.m. task force officers executed so-called ‘hit-and-holds’ on Alexander’s residence and Nelson’s home, as Lawrence worked to finalize his affidavit and apply for search warrants. … That is to say, officers simultaneously entered both houses, performed protective sweeps, and handcuffed the occupants to assure the safety of law enforcement and prevent the destruction of evidence while search warrants were being obtained.” While they were seeking a search warrant, defendant consented to the search, and it was voluntary consent. United States v. Alexander, 2020 U.S. Dist. LEXIS 45853 (D. Del. Mar. 17, 2020).*
Posted inConsent, Franks doctrine|Comments Off on E.D.Wis.: Franks hearing denied; even if what def says is true, PC not undermined
Defendant rented a car in his name two weeks before the search. He had standing in the car when somebody borrowed it and was stopped. The court declines to find that the dog handler cued the dog. Audio of a surreptitiously recorded video is suppressed but the video is not. United States v. Cruz, 2020 U.S. Dist. LEXIS 46807 (D. Mass. Mar. 18, 2020).
Plaintiff’s Fourth Amendment claim was affirmed because he failed to identify any case that addressed whether law enforcement could tackle a non-compliant suspect and use additional force against him if he resisted arrest. [There should be because we see this all the time in criminal courts.] Thus, there was qualified immunity. There was also probable cause for his prosecution. Howse v. Hodous, 2020 U.S. App. LEXIS 8556 (6th Cir. Mar. 18, 2020).*
POs entered an apartment for a visit, and defendant visitor, not the one under supervision, was in the room with others where drugs were found. Under constructive possession rules, there was no probable cause to even arrest him so his search incident violated the Fourth Amendment. Tigner v. State, 2020 Ind. App. LEXIS 105 (Mar. 18, 2020).
“The stop was also lawful in its duration and scope. The matter lasted only a few minutes. The officers quickly discovered an open container of alcohol in the vehicle, and the driver was unable to produce a license. The officers directed the driver to step outside the vehicle, patted him down, and handcuffed him while they resolved the question of his identity. Stokes contends in his motion to suppress that this was an illegal arrest of the driver, thereby altering the nature of what had formerly been a Terry stop. To the extent Stokes claims that handcuffing the driver was unconstitutional, he lacks standing to make this argument.” United States v. Stokes, 2020 U.S. Dist. LEXIS 46637 (N.D. Ill. Mar. 18, 2020).*
Posted inProbable cause, Reasonable suspicion|Comments Off on IN: Person merely visiting during PO visit couldn’t be arrested when drugs found in common area; no showing of constructive possession
Defendant was detained pretrial for a murder for hire indictment, and he’d been moved around from one contract holding center to another for assaulting other inmates. A search warrant had been obtained for his cell for evidence of obstruction of justice. The search warrant was valid and he didn’t have a reasonable expectation of privacy in his cell from jail security searches. The affidavit for warrant was more than bare bones, so the good faith exception applied. United States v. Age, 2020 U.S. Dist. LEXIS 46558 (M.D. La. Mar. 18, 2020).
Defendant had already consented to a search, and her argument here was that she somehow revoked it, but she didn’t. United States v. Howard, 2020 U.S. Dist. LEXIS 46053 (D. Me. Mar. 17, 2020).*
The USMJ found defendant was an uninvited guest in the place searched who lacked standing. The evidence supports the findings. Hearsay is admissible in suppression hearings, but it doesn’t matter; if it were removed, it doesn’t change the outcome. United States v. Pea, 2020 U.S. Dist. LEXIS 46459 (W.D. La. Mar. 17, 2020)*:
The record only shows that the officer could not remember whether he gave a copy of the search warrant to the defendant. That doesn’t justify suppression of evidence because there is no Fourth Amendment right to have a copy of the search warrant left behind, even though it is common practice. State v. Petty, 2020-Ohio-1001, 2020 Ohio App. LEXIS 952 (5th Dist. Mar. 6, 2020).
The parole search of defendant’s car was with reasonable suspicion. “We conclude that reasonable suspicion supported the search based on the following: Poole’s possession of an active warrant for Meaux’s arrest on a charge of unauthorized use of a vehicle; a tip Poole received from detectives with the Crowley Police Department that Meaux was the suspect in a recent armed robbery; Poole’s knowledge of Meaux’s history of armed robbery charges and simple robbery convictions; Poole’s long relationship with Meaux and 15 years of experience as a parole officer; and Poole’s observation that Meaux was uncharacteristically nervous and unusually insistent that his girlfriend pick up her car immediately from the parole office when Poole arrested him on the warrant, which caused Poole to suspect that there was evidence of a crime in the car.” United States v. Meaux, 2020 U.S. App. LEXIS 8547 (5th Cir. Mar. 18, 2020).*
Posted inReasonable suspicion|Comments Off on OH5: No 4A right to have copy of SW left at scene of search
“Law enforcement officers executing a search warrant are permitted to detain the occupants or those in the immediate vicinity of the premises while a proper search is conducted. See Michigan v. Summers, 452 U.S. 692, 701-04, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981). This appeal calls on us to answer the question of how far is too far in determining whether an occupant is in the immediate vicinity of the premises to be searched. While we cannot answer the question with a definitive unit of measure, we can and do say that ‘a few blocks’ is too far under the circumstances of this case.” State v. Hunter, 2020 Iowa App. LEXIS 288 (Mar. 18, 2020).
The police had probable cause for the telephonic search warrant, and there were no material omissions or falsehoods. They were working with speed because the scene was frozen, and people were kept out of their own property. United States v. Martin, 2020 U.S. Dist. LEXIS 46296 (D.Nev. Mar. 17, 2020).*
Posted inProbable cause, Seizure|Comments Off on IA: Detention “a few blocks” from the place of the search is too far under Summers
Officer’s leaning into the open window of defendant’s car with a flashlight to get a better view was not a plain view. Statute “commands police officers, upon detaining a citizen in connection with the investigation or commission of any offense, to fully advise the detained citizen of the reason for the detention. It is a corollary that a citizen has the right to ask for a full explanation of why he is being detained. As a matter of law, the officers’ characterizations of Robinson’s requests for this explanation cannot serve as a basis for reasonable suspicion. The same is true of Robinson’s refusal to consent to a search of his truck, and his objection to Officer Hackett’s unconstitutional search of the truck.” There was no reasonable suspicion for a protective search of defendant’s vehicle, either. State v. Robinson, 2020 La. App. LEXIS 473 (La. App. 2 Cir. Mar. 18, 2020).
The person in defendant’s room caring for his child had apparent authority to consent to the search. She was the primary tenant of the property and had control over all of it. United States v. Howard, 2020 U.S. App. LEXIS 8505 (6th Cir. Mar. 16, 2020).*
There was no probable cause to arrest defendant just because he was the one nearest to the drugs when the police came in. There was no consideration of his relationship to the premises in the face of the law of constructive possession. J.J. v. State, 2020 Fla. App. LEXIS 3486 (Fla. 3d DCA Mar. 18, 2020):
Posted inArrest or entry on arrest, Probable cause|Comments Off on FL3: No PC for arrest of person closest to the drugs without knowing his relation to the property
"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.
