Defendant’s jacket was subject to search incident, and his handcuffing didn’t eliminate the officer’s ability to do so. United States v. Certain, 2020 U.S. Dist. LEXIS 42273 (E.D. Ky. Mar. 11, 2020), adopting, 2020 U.S. Dist. LEXIS 44077 (E.D. Ky. Jan. 30, 2020).
“Where the trial court found no credible evidence of obstruction, we cannot find that an objectively reasonable police officer would have believed that a violation of R.C. 4503.21 had occurred. Consequently, we hold that Kemper’s belief that Brown’s temporary license placard was obstructed was not objectively reasonable, and thus, Kemper lacked probable cause or a reasonable suspicion to stop Brown’s vehicle.” Citing Heien. State v. Brown, 2020-Ohio-896, 2020 Ohio App. LEXIS 826 (1st Cir. Mar. 11, 2020).
Posted inReasonableness, Search incident|Comments Off on E.D.Ky.: Def’s jacket was subject to search incident even though he was handcuffed and couldn’t reach it
Plaintiffs were police officers who had what they thought was a private conversation, but, due to a radio malfunction, it was transmitted on a channel they didn’t even use and was recorded. The conversation led to their termination. The defendants violated no reasonable expectation of privacy in the use of the call because they had no subjective expectation in the use of public property under these circumstance. Lawlor v. Metro. Water Reclamation Dist. of Greater Chicago, 2020 U.S. Dist. LEXIS 41984 (N.D. Ill. Mar. 11, 2020):
Posted inReasonable expectation of privacy|Comments Off on N.D.Ill.: Two police officers whose conversation was accidentally transmitted over radio had no REP in them
The government didn’t even show a connection between the defendant and the alleged crime to get access to his subscriber information. “While courts may find the good-faith exception to apply when an application is ‘thin,’ a showing of some connection between the information sought and criminal investigation is required. See e.g. United States v. Wright, 339 F. Supp. 3d 1057, 1062 (D. Nev. 2018) (thin factual summary showed the connection between defendant and the phone number known as co-defendant’s before, during, and after a robbery). Here, the application fails to meet even that low bar. The Court agrees with the magistrate judge that ‘[t]he good-faith exception does not apply because the supporting affidavit was so lacking that is was unreasonable for the agents to rely on the order stemming from it.’ R&R (Doc. 115, p. 5).” Motion to suppress granted. United States v. Moreno-Vasquez, 2020 U.S. Dist. LEXIS 42047 (D. Ariz. Mar. 10, 2020).
Defendant’s calls from pretrial detention from Rikers Island Correctional Facility were properly admitted as probative of defendant’s mental state, and it didn’t violate the Fourth Amendment to do admit the calls. People v. Chunn, 2020 NY Slip Op 01635, 2020 N.Y. App. Div. LEXIS 1668 (2d Dept. Mar. 11, 2020).*
The state Department of Environmental Quality inspectors did not violate respondent’s reasonable expectation of privacy by entering. His property was open “24/7” to the public. Idaho Dep’t of Envtl. Quality v. Gibson, 2020 Ida. LEXIS 48 (Mar. 11, 2020):
Posted inAdministrative search, Consent|Comments Off on ID: Dep. of Environmental Quality didn’t violate any REP by entering where it’s open to the public
There was a substantial basis for finding probable cause, and this didn’t even approach “bare bones.” “We must take care not to confuse a bare bones affidavit with one that merely lacks probable cause.” The motion to suppress was properly denied. United States v. Gilbert, 2020 U.S. App. LEXIS 7590 (6th Cir. Mar. 11, 2020):
Posted inGood faith exception|Comments Off on CA6: “We must take care not to confuse a bare bones affidavit with one that merely lacks probable cause.”
Substantial evidence supported the finding that defendant consented to his blood draw. After the officer instructed her that the implied consent law required her to undergo a blood draw, defendant did not object or refuse to undergo the test, did not resist any of the officers’ directions, and voluntarily placed her arm on the table to allow the phlebotomist to draw her blood. The result was not changed by the officer’s failure to relate the admonitions regarding the consequences of refusal. People v. Lopez, 2020 Cal. App. LEXIS 198 (3d Dist. Mar. 11, 2020).*
There were factual disputes that the defendant police officers shot a man not resisting precluding qualified immunity. Amador v. Vasquez, 2020 U.S. App. LEXIS 7675 (5th Cir. Mar. 11, 2020).*
Posted inPrison and jail searches, Privileges|Comments Off on ABAJ: Inmate wins [pretrial] release after jail recorded hundreds of attorney-client calls
The government’s use of specialized software to search peer-to-peer files didn’t create a reasonable expectation of privacy claim. “RoundUp, software with certain technological modifications to a public, open-source P2P network sharing client, is designed to access public files that individuals affirmatively place into the public sphere. Defendant had no reasonable expectation of privacy in the files he chose to upload to his eMule ‘shared’ folder for public download. Accordingly, the government’s use of RoundUp to access his public files did not constitute a Fourth Amendment ‘search.’” United States v. Arumugam, 2020 U.S. Dist. LEXIS 41563 (W.D. Wash. Mar. 10, 2020).
In an overprescribing case, defendant doctor challenged the search warrant of his practice claiming a Franks violation. Applications for warrants are seldom perfect. Here it included statements that his patients died after his treatment ended with no showing of context that the end of treatment was the cause, not the treatment. The question is probable cause, not certitude. United States v. Houdersheldt, 2020 U.S. Dist. LEXIS 41334 (S.D. W.Va. Mar. 10, 2020).*
Even if the supervised release search here was without reasonable suspicion, the purposes of the exclusionary rule aren’t served. “Even assuming [Officer] Dyckman acted unreasonably in failing to conduct further investigation before executing the search, this is not the kind of flagrant or abusive police misconduct that warrants application of the exclusionary rule. Bearing in mind that the exclusionary rule ‘applies only where it “results in appreciable deterrence,”’ Herring, 555 U.S. at 141 (alteration omitted) (quoting United States v. Leon, 468 U.S. 897, 909, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), and weighing the deterrent effect against the serious cost of ‘letting guilty and possibly dangerous defendants go free,’ United States v. Julius, 610 F.3d 60, 66 (2d Cir. 2010) (quoting Herring, 555 U.S. at 141), we conclude that, in the circumstances here, the substantial social costs of suppressing the evidence obtained during the search of Elder’s home outweigh the incremental deterrent value of granting it. Accordingly, we conclude that the district court did not err when it denied Elder’s motion to suppress.” United States v. Elder, 2020 U.S. App. LEXIS 7520 (2d Cir. Mar. 9, 2020).*
Posted inExclusionary rule, Probation / Parole search|Comments Off on CA2: Even assuming this supervised release search lacked RS, there were facts supporting it and the exclusionary rule will not be applied
NYTimes: How National Security Surveillance Nabs More Than Spies (“The case against Nassif Sami Daher and Kamel Mohammad Rammal, two Michigan men accused of food stamp fraud, hardly seemed exceptional. But the tool that agents used to investigate them was extraordinary: a secretive surveillance process intended to identify potential spies and terrorists.”)
Posted inFISA, National security|Comments Off on NYTimes: How National Security Surveillance Nabs More Than Spies
The trial court’s grant of suppression is reversed and remanded because of its inadequate findings of fact and conclusions of law for appellate review. State v. Peeks, 2020-Ohio-889, 2020 Ohio App. LEXIS 812 (10th Dist. Mar. 10, 2020).
Defendant officers had probable cause to arrest plaintiff for DUI, and that precludes suit against them for false arrest. Williams v. Seals, 2020 U.S. App. LEXIS 7358 (9th Cir. Mar. 5, 2020).*
Defendant gets a hearing on the lawfulness of his traffic stop. A later search of his dwelling was valid as a parole search, and there will be no hearing on that. United States v. Rivera, 2020 U.S. Dist. LEXIS 40822 (S.D. N.Y. Mar. 6, 2020).*
The defense sought murder victims’ social media account content, and the trial court refused to quash a subpoena which was challenged under the Stored Communications Act. The materials by statute would have to be produced in camera. As an alternative to the subpoena, the state cannot be forced to issue a search warrant to gather evidence for the defense. Facebook, Inc. v. Superior Court (Hunter), 2020 Cal. App. LEXIS 191 (1st Dist. Feb. 13, 2020), ordered published Mar. 6, 2020).
An office’s surveillance DVR likely had video of the crime, but it was missing. When a DVR was seen in a car on the property, there was probable cause to search the car to retrieve it. Commonwealth v. Silvia, 97 Mass. App. Ct. 151 (Mar. 10, 2020).*
Seven months after alleged download wasn’t stale in a child pornography investigation. State v. Owens, 2020 Tenn. Crim. App. LEXIS 176 (Mar. 9, 2020).* [Note: I don’t recall any case ever finding staleness when child porn is the subject of the warrant.]
Just because the government hasn’t yet accessed defendant’s iPhone because it can’t crack the code to unlock it doesn’t mean that defendant can get it back under Rule 41(g). It’s still potential evidence. United States v. Morgan, 2020 U.S. Dist. LEXIS 39884 (W.D. N.Y. Mar. 6, 2020).
A trash container search produced evidence of drugs likely associated with defendant’s home, and the search warrant was sufficiently particular. United States v. Hervey, 2020 U.S. App. LEXIS 7222 (10th Cir. Mar, 9, 2020).*
“[T]he Court finds that the confidential informant’s tip was sufficiently corroborated by law enforcement’s independent investigation. Thus, the Magistrate Judge had a ‘substantial basis’ within the four corners of the Wyrzykowski Affidavit for concluding that there was probable cause to find evidence of a marijuana grow operation at the Residence.” Besides, the good faith exception applies. United States v. Patterson, 2020 U.S. Dist. LEXIS 40378 (D.V.I. Mar. 9, 2020).*
Defendant had no reasonable expectation of privacy in the Nevada prescription drug database because he willingly provided the information to the doctor and the pharmacist, and the police need cause to get access. United States v. Motley, 2020 U.S. Dist. LEXIS 39974 (D. Nev. Mar. 6, 2020):
There is no reasonable expectation of privacy in child pornography uploaded to Facebook Messenger. Even treating it as email (Warshak), the email provider can turn child pornography over to law enforcement when it is transmitted. Then a further search warrant would be required. United States v. Bebris, 2020 U.S. Dist. LEXIS 39837 (E.D. Wis. Mar. 9, 2020).
Two officers’ different testimony about the basis for the stop doesn’t mean that the district court’s credibility findings won’t be followed on appeal. The district court credited the testimony of one over the other, and there’s no justification for finding that erroneous. United States v. Salazar, 2020 U.S. App. LEXIS 7096 (6th Cir. Mar. 6, 2020).*
The trial court’s conclusion that the trooper lacked reasonable suspicion to believe that defendant’s car contained drugs or that the driver and defendant were engaged in drug-related activity was supported by the evidence as was its finding that the driver’s and defendant’s “body language” and “inconsistent statements” did not rise to the standard of a reasonable suspicion. Thus, the detention for the drug dog was unreasonable. State v. Lawler, 2020-Ohio-849, 2020 Ohio App. LEXIS 776 (3d Dist. Mar. 9, 2020).*
One man under investigation for drug crimes was arrested outside a house when officers went there waiting for him to arrive. On the arrest, officers heard others inside “scurrying around” [how?]. This created exigency and justified a warrantless entry into the premises to prevent destruction of evidence. It was reasonable for the officers to conclude that because the person stopped coming home was a drug offender, so were the people he was living with. “Notwithstanding the trial court’s conclusion [of protective sweep], we conclude that, based on the totality of the circumstances of this case, exigent circumstances existed to justify the warrantless entry and limited search of the residence because competent, credible evidence exists in the record reflecting that it was reasonable for law enforcement to believe that the drug evidence was at risk of being destroyed if the officers did not immediately enter to secure the scene. See King, 563 U.S. at 457; Benvenuto, 2018-Ohio-2242, at ¶ 25; Johnson, 457 Fed.Appx. at 515; United States v. Waide, E.D.Ky CR No. 5:18-116-KKC, 2019 U.S. Dist. LEXIS 60014, 2019 WL 1521973, *7 (Apr. 8, 2019).” State v. Reilly, 2020-Ohio-850, 2020 Ohio App. LEXIS 777 (3d Dist. Mar. 9, 2020). [Note: So guilt by association of everyone inside? Police created exigency?]
Posted inArrest or entry on arrest, Emergency / exigency|Comments Off on OH3: Arrest of drug offender coming home outside his house led to officers hearing “scurrying about” inside, and that justified warrantless entry
Two hours of CSLI in 2012 to connect defendant to a capital murder was not subject to the exclusionary rule. Carpenter n.3 in 2018 left open this situation. Fuston v. State, 2020 OK CR 4, 2020 Okla. Crim. App. LEXIS 4 (Mar. 5, 2020).
The elected Sheriff wasn’t responsible under § 1983 for the sexual assault of an arrestee by his deputy. There was no failure to train or supervise issue under the Fourth Amendment or due process. McGuire v. Cooper, 2020 U.S. App. LEXIS 7032 (8th Cir. Mar. 6, 2020).*
Inconsistent versions of travel, past drug arrests, turning defensive and cursing when more questions were asked was found to be reasonable suspicion, and the evidence supports the district court’s conclusion. United States v. Flenory, 2020 U.S. App. LEXIS 7051 (5th Cir. Mar. 5, 2020).*
A passenger in a vehicle to be inventoried after a stop is entitled to notice to retrieve her personal belongings before it happens. Only this is consistent with the purpose of the inventory requirement. Other states are in accord, and this is decided under the state constitution. State v. Fulmer, 366 Ore. 224 (Mar. 5, 2020), rev’g State v. Fulmer, 296 Ore. App. 61, 437 P.3d 257 (2019).
Armed with a parole violation warrant, officers knew defendant was at his girlfriend’s house so they entered. The entry didn’t violate the Fourth Amendment. Once they were inside, the girlfriend consented to a search that revealed the firearm. United States v. Curry, 2020 U.S. Dist. LEXIS 38943 (S.D. N.Y. Mar. 5, 2020).*
Posted inArrest or entry on arrest, Inventory|Comments Off on OR: Mere passenger in vehicle can remove personal belongings before inventory
A person using a fictitious name to send or receive a package still has standing in the package, collecting cases on both sides. In this case, there was reasonable suspicion to divert the package in transit. United States v. Yodprasit, 2020 U.S. Dist. LEXIS 39316 (N.D. Iowa Mar. 6, 2020):
Officers attempted to stop defendant’s car but he drove to his driveway. There ultimately was a dog sniff of the car. The court finds that, by driving to his driveway with police behind him, his actions were consent for police entry into his curtilage. “Here, consent may be inferred because Defendant affirmatively led law enforcement to his driveway to conduct the stop. Under these circumstances, Defendant had no more Fourth Amendment protections in his driveway than he would have had in any of the open spaces he passed on the public roadway. Upon initiating the stop, Officer Friedrichs issued repeated commands to Defendant—including lights, siren, and a verbal directive—to stop his vehicle in the public road. Although the evidence establishes there were multiple places where Defendant could have stopped, Defendant ignored Officer Friedrichs’s commands and instead led him to Defendant’s property, even motioning out of the Tahoe’s window to indicate which direction he would turn.” United States v. Zabokrtsky, 2020 U.S. Dist. LEXIS 39056 (D. Kan. Mar. 6, 2020).
Defendant never specifically denied driving the car that police saw him get out of and put the keys in his pocket. He did try to distance himself from it by walking away from it. He called his girlfriend to retrieve the car. Defendant had standing. The officers had reasonable suspicion for a stop, and then the smell of marijuana was apparent from his person and the car, and that justified its search. United States v. Williams, 2020 U.S. Dist. LEXIS 38990 (S.D. Fla. Jan. 31, 2020),* adopted, 2020 U.S. Dist. LEXIS 37828 (S.D. Fla. Mar. 4, 2020).*
Posted inArrest or entry on arrest, Curtilage|Comments Off on D.Kan.: By not stopping before his driveway, def consented to police entry onto the curtilage
"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.
