Arrest for selling crack justified a search incident, and the district court erred in holding otherwise. United States v. Williams, 2020 U.S. App. LEXIS 6768 (2d Cir. Mar. 4, 2020).
The evidence supports the trial court’s conclusion the search was by consent. State v. Hill, 2020 La. App. LEXIS 365 (La. App. 2 Cir. Mar. 4, 2020).*
Defendant’s argument that defense counsel should have made a creative argument about advice of rights in a DUI investigation doesn’t show ineffective assistance of counsel. Schaul v. State, 2020 Iowa App. LEXIS 212 (Mar. 4, 2020).*
Conclusory objections to the R&R on this search issue are overruled. United States v. Wilson, 2020 U.S. Dist. LEXIS 36571 (E.D. Tex. Mar. 3, 2020).
Feeling a firearm during a patdown is plain feel. United States v. White, 2020 U.S. Dist. LEXIS 36483 (D.Minn. Mar. 3, 2020).*
Probable cause to arrest defeats a false arrest claim, and the officers had it. Moore v. Gwinnett Cty., 2020 U.S. App. LEXIS 6770 (11th Cir. Mar. 4, 2020).*
A controlled buy was probable cause. The claim that the CI lied isn’t cognizable under Franks. United States v. Sheridan, 2020 U.S. Dist. LEXIS 36163 (N.D. Ohio. Mar. 3, 2020).
There were disputed questions of fact on whether it was necessary for the officer to shoot at a passing car, so there was no basis for appeal. Gallmon v. Cooper, 2020 U.S. App. LEXIS 6696 (4th Cir. Mar. 3, 2020).*
The frisk of defendant’s fannypack was reasonable under Terry because of a police BOLO and he matched the description of a robber and a call from another officer about him. Search of the fannypack was also valid by inevitable discovery on his arrest. United States v. Cherry, 2020 U.S. Dist. LEXIS 36145 (N.D. Ga. Mar. 3, 2020).*
A report of gunshots from defendant’s backyard justified exigency entry into yard. “In response to Officer Gali’s statement that they could do it the easy way or get a search warrant, Pouncey responded, ‘go ahead, bro.’ The Court reviewed the bodycam footage and the audio and concludes that Pouncey is providing consent to a search.” Defendant argued the statement was ambiguous, but he didn’t object when the search started. United States v. Pouncey, 2020 U.S. Dist. LEXIS 36197 (N.D. Ill. Mar. 3, 2020).
There was a traffic stop, but a detective with reasonable suspicion for defendant showed up, and that justified extending it. United States v. Jordan, 2020 U.S. App. LEXIS 6706 (4th Cir. Mar. 3, 2020).*
Playpen warrant sustained because the good faith exception applied. United States v. Wagner, 2020 U.S. App. LEXIS 6691 (10th Cir. Mar. 3, 2020).*
Posted inCurtilage, Reasonable suspicion|Comments Off on N.D.Ill.: Shots fired call specifying def’s backyard was exigency permitting entry
Defense counsel didn’t file a motion to suppress evidence because defendant’s stop likely was without reasonable suspicion, and a motion to suppress might well have been granted. However, there was a legitimate strategic reason for not moving to suppress which was successful; that evidence ultimately stayed out of the factual basis for the plea. United States v. Scott, 2020 U.S. Dist. LEXIS 36140 (E.D. La. Mar. 3, 2020).
Defense counsel’s failure to move to exclude evidence wasn’t ineffective assistance because there was no basis. Here, it was the seizure of items in plain view during execution of a warrant. United States v. Snowden, 2020 U.S. Dist. LEXIS 35933 (D.Nev. Mar. 2, 2020).*
The CI’s story that defendant sold drugs from his house was corroborated, credible enough, and showed probable cause. State v. Blaess, 2020 Iowa App. LEXIS 234 (Mar. 4, 2020).*
Posted inIneffective assistance|Comments Off on E.D.La.: Despite apparent validity of motion to suppress never pursued, defense counsel kept evidence out of plea colloquy, so no IAC because of strategy call
Driver’s consent to search car did not extend to passenger’s backpack. The state’s reliance on inventory failed for not proving up the policy. State v. Pennington, 2020-Ohio-757, 2020 Ohio App. LEXIS 688 (5th Dist. Mar. 2, 2020).
“After considering the video evidence of Ms. Harris’s interactions with the police and the testimony at the pretrial motions hearing, I find that Ms. Harris’s consent for police to search her residence was knowing and voluntary.” All the factors favor voluntariness. United States v. Chapman, 2020 U.S. Dist. LEXIS 35843 (S.D.W.Va. Mar. 3, 2020).*
Posted inConsent, Inventory, Scope of search|Comments Off on OH5: Driver’s consent to search car doesn’t extend to passenger’s backpack
The police properly seized defendant’s home to preserve evidence of murder on exigent circumstances. There was also a reasonable protective sweep. Defendant didn’t object to the body cam video that had a refusal to consent to the house search, and it wasn’t plain error. The state never mentioned it in close. [The court, without saying it, finds it de facto harmless.] State v. Smith, 2020 Ida. App. LEXIS 12 (Mar. 3, 2020).*
Plaintiff sued over seizure of all the money from its bank account by a warrant, and it sought return under Rule 41(g). The warrant was particular. The claim of no probable cause didn’t come until appeal, so it was waived. Even so, there was probable cause. Alvix Labs., L.L.C. v. United States, 2020 U.S. App. LEXIS 6656 (5th Cir. Mar. 3, 2020).*
Tennessean: Opinion: Tennessee forfeiture laws have strayed away from original civil design by David Seal (“Civil forfeiture in Tennessee has strayed far from its original design, sweeping up thousands of people in small-scale seizures that are just not practical for innocent victims to fight in court. A far cry from the kingpins this was intended to target.”)
Posted inForfeiture|Comments Off on Tennessean: Opinion: Tennessee forfeiture laws have strayed away from original civil design
NPR: Genealogy Websites Help To Solve Crimes, Raise Questions About Ethics by Kate Payne (“An Iowa man has been found guilty of a 40-year-old murder after he was tracked down through a family genealogy website. Many privacy concerns have been raised, and politicians are weighing in.”)
Posted inDNA|Comments Off on NPR: Genealogy Websites Help To Solve Crimes, Raise Questions About Ethics
After the attacks on the Roger Stone jury, I persuaded the trial judge in my long criminal civil rights trial starting today to have the jury administrator play it after the AOC’s video.
Posted inUncategorized|Comments Off on National Constitution Center video on the importance of jury duty
Consent to seizure of defendant’s cell phone was voluntary: “There is no evidence in the record suggesting Thompson’s consent to turn over her phone was involuntary. The request for her phone occurred in a public place and the entirety of the interaction which led to the consent and retrieval of the phone occurred within twenty minutes. Thompson was told that she was not under arrest and that she was free to leave.” United States v. Thompson, 2020 U.S. Dist. LEXIS 35241 (D.Minn. Jan. 3, 2020),* adopted, 2020 U.S. Dist. LEXIS 34456 (D. Minn. Feb. 28, 2020).*
Defendant’s 2255 is meritless. Her lawyer didn’t raise a Fourth Amendment challenge for lack of standing and lack of merit. The codefendant lost at trial and in the Ninth Circuit on the merits and that same result would have happened here. United States v. Williams, 2020 U.S. Dist. LEXIS 34640 (D. Nev. Feb. 28, 2020).*
Posted inConsent, Ineffective assistance|Comments Off on D.Minn.: Consent to seize cell phone was voluntary; def wasn’t even seized
The scope of the search of defendant’s cell phone data was overbroad, but defendant consented: “However, Defendant consented to the search of ‘all digital contents’ of his cell phone. Based on the scope of this consent, the police were permitted to obtain the photograph.” State v. Blackwood, 2020 Del. Super. LEXIS 105 (Feb. 27, 2020).*
The state showed that the facts developed before defendant’s arrest supported it, not what they learned after. State v. Jordan, 2020-Ohio-689, 2020 Ohio App. LEXIS 650 (1st Dist. Feb. 28, 2020).*
Posted inCell phones, Scope of search|Comments Off on DE: Def’s consent overcame overbreadth issue; “all digital contents” includes photos
Officer’s prior knowledge of defendant’s violent past and criminal history, with reasonable suspicion, justified his patdown. United States v. South, 2020 U.S. Dist. LEXIS 35208 (N.D. W.Va. Mar. 2, 2020).*
Officers had a search warrant for the car defendant was riding in, and it was, of course, reasonable to order him out of the car. Baggies of marijuana fell from his person when he got out. The court notes that, by using a warrant for the car, the state shifted the burden to the defense to challenge the search. Eusebio v. State, 2020 Md. LEXIS 67 (Mar. 2, 2020).* (This citation may change; citation indicates wrong court.)
Posted inBurden of proof, Reasonable suspicion|Comments Off on N.D.W.Va.: Officers’ knowledge of def’s violent past justified patdown during stop
Courthouse News Service: San Francisco to Pay $369,000 for Police Raid of Journalist’s Home by Nicholas Iovino(“The city of San Francisco will pay $369,000 to settle claims over its police raid on a journalist’s home and office this past May, an action condemned by press advocates as chilling the ability of reporters to get information from anonymous sources.”)
Posted inUncategorized|Comments Off on CNS: San Francisco to Pay $369,000 for Police Raid of Journalist’s Home
Defendant was arrested in North Dakota on a warrant out of Ohio, and the search incident conducted on his arrest was in good faith. State v. Marcum, 2020 ND 50, 2020 N.D. LEXIS 48 (Feb. 27, 2020).*
Considering the factors articulated by the Eighth Circuit for voluntariness of consent, most of the factors favor consent. United States v. Thompson, 2020 U.S. Dist. LEXIS 34456 (D.Minn. Feb. 28, 2020),* adopting, 2020 U.S. Dist. LEXIS 35241 (D. Minn. Jan. 3, 2020).*
There was a showing of probable cause and not a mere hunch. Inferences here made it. United States v. Danos, 2020 U.S. Dist. LEXIS 34614 (W.D. La. Jan. 27, 2020),* adopted, 2020 U.S. Dist. LEXIS 34121 (W.D. La. Feb. 27, 2020).*
Pre-Jardines case law held that putting a key in a lock wasn’t a search. Here, the police did that to help establish probable cause. Whether Jardines changed that rule or not, it’s not decided here because the good faith exception applies to a warrant obtained in part on that information. United States v. Page, 2020 U.S. Dist. LEXIS 34441 (W.D. Ky. Feb. 28, 2020).*
“Espinoza-Reynosa contends the state court warrant was void, both because the issuing court lacked jurisdiction in Ramsey County and because law enforcement waited too long to execute it, each of which—if true—violates Minnesota state statutes. Accepting these arguments, Espinoza-Reynosa faces two problems: (1) he has not shown any privacy interest in the garage or the Range Rover and (2) such violations of state law do not mandate suppression of evidence under the exclusionary rule.” United States v. Espinoza-Reynosa, 2020 U.S. Dist. LEXIS 34427 (D. Minn. Jan. 6, 2020),* adopted, 2020 U.S. Dist. LEXIS 33660 (D. Minn. Feb. 27, 2020).*
Posted inCurtilage, Good faith exception, Reasonableness|Comments Off on W.D.Ky.: Even if putting key in lock violated Jardines, its use in SW application was in good faith
Defendant was stopped for reasonable suspicion of having communicated a threat to his girlfriend. During the patdown of the defendant, the officer felt a pill bottle and asked about it, and defendant gave an incriminating response. The single off-topic question didn’t unreasonably extend the stop. People v. Ashford, 2020 CO 16, 2020 Colo. LEXIS 187 (Mar. 2, 2020).
This stop occurred because of a random LPN check showing the driver’s DL suspended. There was no erratic driving. From the car he could smell alcohol and a passenger was passed out. They were five blocks from the bar they left. The driver wasn’t slurring her words. Getting her out, she walked fine, but she smelled of alcohol. A field sobriety test was based on reasonable suspicion. State v. A.C., 2020-Ohio-713, 2020 Ohio App. LEXIS 662 (9th Dist. Mar. 2, 2020).*
Posted inReasonable suspicion|Comments Off on CO: Off-topic question about pill bottle felt during patdown didn’t unreasonably extend stop
"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.
