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OR: Car owner had no REP from GPS installed by his company before he got the car from them

Posted on January 27, 2020 by Hall

Plaintiff worked for Toyota Motor Credit and Toyota Financial Services. When he severed his employment with them, he was allowed to keep the vehicle he used for them. Unbeknownst to him, Toyota Financial Services had a GPS device on the car. He found out and sued for invasion of privacy. He has no reasonable expectation of privacy on the open road, but he can get to a jury on a tort theory over installation of the device. Reed v. Toyota Motor Credit Corp., 301 Ore. App. 825 (Jan. 23, 2020) (pending for 20 months after argument):
Continue reading →

Posted in GPS / Tracking Data, Reasonable expectation of privacy, Third Party Doctrine | Comments Off

FL5: Appellate counsel in direct appeal was ineffective for not arguing automobile exception wasn’t applicable; if it had been argued, court would have reversed

Posted on January 27, 2020 by Hall

In defendant’s original appeal, appellate counsel argued only that the search incident doctrine applied and he failed on that issue. On post-conviction, however, new counsel argued that the automobile exception should have been argued and that it did not apply because the officer lacked any probable cause that the vehicle contained evidence of crime or contraband. He is correct. “The trial court erred in denying Jones’s motion to suppress, and Jones’s appellate counsel was ineffective in failing to argue that the automobile exception did not apply. Had counsel raised this issue on appeal, this Court would have been constrained to reverse. Accordingly, we grant Jones’s petition. Because a new appeal would be redundant, we reverse.” Jones v. State, 2020 Fla. App. LEXIS 725 (Fla. 5th DCA Jan. 24, 2020).

Defendant’s claim that the police hadn’t made a transcript of a CI’s conversation in a foreign language that they weren’t shown to have known of yet isn’t a Franks violation. United States v. Teyf, 2020 U.S. Dist. LEXIS 11219 (E.D. N.C. Jan. 23, 2020).*

Posted in Automobile exception, Franks doctrine, Ineffective assistance | Comments Off

CA1: Franks offer of proof didn’t show materiality or undermine PC

Posted on January 27, 2020 by Hall

Defendant’s appeal is based on his claim that the district court erred in not holding a Franks hearing. Defendant didn’t show enough in his allegations to show that the omissions were material to the showing of probable cause. United States v. Veloz, 2020 U.S. App. LEXIS 2290 (1st Cir. Jan. 24, 2020).

The search warrant for defendant’s car was properly issued with probable cause because FBI surveillance and pole camera observations showed that defendant drove from New York City to Revere and Boston, Massachusetts, and never stayed in Revere more than 30-40 minutes. There was also informant information these were drug runs and CSLI (from 2015) on his movements. United States v. Bregu, 2020 U.S. App. LEXIS 2288 (1st Cir. Jan. 24, 2020).*

Posted in Franks doctrine, Pole cameras | Comments Off

D.Mont.: Def was arrested for DUI; so, already detained, a dog sniff wasn’t unreasonable

Posted on January 27, 2020 by Hall

Defendant was arrested for DUI, and the court finds, based on United States v. Hunnicutt, 135 F.3d 1345, 1350 (10th Cir. 1998), that “detention of the driver at the scene to accomplish a canine sniff is generally reasonable where the driver is already under lawful arrest.” United States v. Lopez, 2019 U.S. Dist. LEXIS 225593 (D. Mont. Dec. 18, 2019).*

Because defendant’s arrest was lawful, so was finding his hotel key during a search incident. Then a search warrant was validly obtained for the room. United States v. Acevedo, 2020 U.S. Dist. LEXIS 12017 (D. Minn. Jan. 24, 2020).*

Posted in Dog sniff, Reasonableness, Search incident | Comments Off

WHYY: The Pa. State Police was warned about possible racial bias in car searches. The agency’s answer? End the research.

Posted on January 26, 2020 by Hall

WHYY: The Pa. State Police was warned about possible racial bias in car searches. The agency’s answer? End the research. By Daniel Simmons-Ritchie and Angela Couloumbis, Spotlight PA (“Last fall, under scrutiny for its decision years earlier to stop tracking the race of drivers who get pulled over, the Pennsylvania State Police pointed to a series of independent studies that officials said proved there was no consistent bias in the way troopers did their jobs. But a review of those studies reveals a far more nuanced picture of what was actually occurring, raising new questions about why the data collection was halted and how troopers are trained to prevent people of certain races from being unfairly targeted.”)

Posted in Pretext | Comments Off

PA: Realtime CSLI also subject to Carpenter; orders here under state wiretap act complied with 4A

Posted on January 26, 2020 by Hall

The state obtained realtime CSLI with court orders under the state wiretapping statute, and these orders were sufficiently like search warrants under Dalia v. United States. (Carpenter was decided while his case was on appeal.) The court finds that the logic of Carpenter and it’s historical CSLI applies equally to realtime CSLI, and the Fourth Amendment was complied with. Commonwealth v. Pacheco, 2020 Pa. Super. LEXIS 41 (Jan. 24, 2020).

Defendant’s claim that pre-Carpenter CSLI wasn’t admissible is neither preserved nor meritorious. United States v. Hamilton, 2020 U.S. App. LEXIS 2205 (9th Cir. Jan. 22, 2020).*

Posted in Cell site location information | Comments Off

OH6: Checking DMV records involves no 4A intrustion

Posted on January 26, 2020 by Hall

“[T]he law is clear that a police officer’s check of a person’s Bureau of Motor Vehicles records does not implicate Fourth Amendment rights, as it does not constitute an invasion as it involves no intrusion.” State v. Price, 2020-Ohio-220, 2020 Ohio App. LEXIS 189 (6th Dist. Jan. 24, 2020).

The affidavit for search warrant shows more than enough for probable cause to believe the computer in the home accessed child pornography. The warrant was also particular in seeking all computers. United States v. Corleto, 2020 U.S. Dist. LEXIS 11574 (D.N.H. Jan. 23, 2020).*

The government first resisted defendant’s motion for return of property, and then they entered into a stipulated settlement for return of most things. In re a Residence Located at 2067 Grant St., 2019 U.S. Dist. LEXIS 225532 (N.D. Iowa Dec. 22, 2019).*

Posted in Reasonable expectation of privacy, Rule 41(g) / Return of property, Third Party Doctrine | Comments Off

D.R.I.: Carpenter procedural and not substantive and not a “new rule” under Teague

Posted on January 26, 2020 by Hall

Carpenter is not entitled to retroactive application to post-conviction cases under Teague. It is procedural, not substantive. United States v. Sandoval, 2020 U.S. Dist. LEXIS 11281 (D.R.I. Jan. 23, 2020):
Continue reading →

Posted in Cell site location information | Comments Off

NYTimes: Have a Search Warrant for Data? Google Wants You to Pay

Posted on January 26, 2020 by Hall

NYTimes: Have a Search Warrant for Data? Google Wants You to Pay by Gabriel J.X. Dance and Jennifer Valentino-DeVries (“The tech giant has begun charging U.S. law enforcement for responses to search warrants and subpoenas.”):

Facing an increasing number of requests for its users’ information, Google began charging law enforcement and other government agencies this month for legal demands seeking data such as emails, location tracking information and search queries.

Google’s fees range from $45 for a subpoena and $60 for a wiretap to $245 for a search warrant, according to a notice sent to law enforcement officials and reviewed by The New York Times. The notice also included fees for other legal requests.

Posted in Warrant execution | Comments Off

OH8: Seat belt ordinance permissible under police power

Posted on January 26, 2020 by Hall

A seat belt ordinance (as well as state law on the subject) is a proper exercise of police power for which a traffic stop may occur when an officer sees an occupant without a seat belt on. City of South Euclid v. FortsonCity of South Euclid v. FortsonCity of South Euclid v. Fortson, 2020-Ohio-187, 2020 Ohio App. LEXIS 152 (8th Dist. Jan. 23, 2020).

Defendant was under an order of protection, and he retrieved nine firearms from the Phoenix PD. A search warrant was sought for the firearms, and they had specific descriptions of each, but they didn’t provide one. The motion to suppress is granted. United States v. Bachler, 2020 U.S. Dist. LEXIS 10312 (D. Ariz. Jan. 22, 2020).* [Query: If possessing any firearm is a crime, and they know he has nine, why is an itemization required? They know he has nine, and possession of any one is a crime, whether itemized or not. I predict reversal.]

Posted in Particularity | Comments Off

CA10: NM metropolitan courts can issue SWs; they’re not governed by Rule 41, just the 4A

Posted on January 26, 2020 by Hall

The New Mexico metropolitan court had jurisdiction to issue search warrants even though it had no general jurisdiction over felony cases. A state issued search warrant doesn’t need to comply with Rule 41; it only need comply with the Fourth Amendment. It was based on probable cause, and defendant’s Franks claim is rejected for lack of a proper showing. United States v. Sadlowski, 2020 U.S. App. LEXIS 2072 (10th Cir. Jan. 23, 2020).

Defendant’s claim he was moving from Las Vegas to Minnesota and was in a hurry was belied by his travel plans. “The district court identified those factors [of reasonable suspicion] as: (1) Berg was traveling in a rental car; (2) Berg had trouble expressing whether he lived in Las Vegas and what he did there; (3) Berg was nervous because his breathing was shallow and quick throughout the encounter; (4) Berg took an indirect route of travel; and (5) Berg said he was in a rush to get home, but his statements about his travel timeline, rental agreement, and travel route made that assertion implausible. We agree that Trooper Seiler had reasonable suspicion to prolong the stop while he waited for the drug dog.” United States v. Berg, 2020 U.S. App. LEXIS 2071 (10th Cir. Jan. 23, 2020).*

Posted in Reasonable suspicion, Warrant requirement | Comments Off

M.D.La.: Merely being a CI doesn’t make the CI a “participant” in the crime for disclosure

Posted on January 26, 2020 by Hall

Merely being a CI for the police doesn’t make the CI a participant in the crime to make his or her identity subject to disclosure. United States v. Westbrook, 2020 U.S. Dist. LEXIS 10563 (M.D. La. Jan. 22, 2020).

The record supports the redactions from the affidavit for search warrant to protect the identity of the CI. Probable cause was also shown. People v. Evans, 2020 NY Slip Op 00485, 2020 N.Y. App. Div. LEXIS 497 (1st Dept. Jan. 23, 2020).*

The exclusionary rule doesn’t apply to supervised release proceedings absent police harassment, which defendant does not allege. Defense counsel was thus not ineffective for not moving to suppress. United States v. Sanford, 2020 U.S. Dist. LEXIS 10440 (S.D. Miss. Jan. 22, 2020).*

Posted in Informant hearsay, Probation / Parole search | Comments Off

Iowa’s cases from Thursday

Posted on January 25, 2020 by Hall

There was probable cause based on the dashcam video for defendant’s stop for not having two functioning headlights. “Here, what the video evidence shows is unquestionably open to interpretation as to whether the headlight was inoperable or just dim. Whatever the case, the dash cam footage from Chia’s patrol car that was admitted as evidence at the suppression hearing, while not explicitly clear on whether the headlamp was unlit or merely ‘just dimmer,’ unquestionably shows the suspect headlamp was not functioning as designed to.” State v. Howard, 2020 Iowa App. LEXIS 85 (Jan. 23, 2020).*

Defendant’s stop occurred because, as they followed, officers saw the license plate not properly lighted. Defendant was also being evasive. A rifle was obvious in the back, and officers quickly determined it was an airsoft gun. However, two pistol magazines were then seen, too. Finally, through all this, marijuana was seen at the side of the road that wasn’t there shortly before. A search was reasonable. State v. Erdman, 2020 Iowa App. LEXIS 107 (Jan. 23, 2020).*

Defendant was in a car that was stopped because a license plate wasn’t visible, but it turned out there was one in the rear window. Once stopped, there were furtive movements, one tried to walk away, and a struggle ensued. It wasn’t unreasonable for the officer’s attention to be directed at defendant. State v. Tillman, 2020 Iowa App. LEXIS 86 (Jan. 23, 2020).*

Defendant’s pro se supplemental brief on appeal argues that the search of the back seat of the police car was unreasonable. That’s not preserved for appellate review [and it is hardly even remotely plausible because police don’t need a search warrant to look for abandoned property in a police car]. State v. Smith, 2020 Iowa App. LEXIS 90 (Jan. 23, 2020).*

Posted in Uncategorized | Comments Off

CA7: Ptf’s suit for arrest for possession and obstruction was barred by arguable PC

Posted on January 25, 2020 by Hall

Plaintiff was arrested for possession of cocaine and obstructing justice when he allegedly swallowed the baggie of drugs. He was taken to a hospital and drank charcoal and other liquids to pass it and he was x-rayed. Nothing was recovered. At jail he was put in a dry cell for a week and still didn’t pass it. Later he prevailed on the obstruction and possession counts by pleading to some other stuff he already apparently had. His suit was barred by arguable probable cause. The fact he never passed the baggie isn’t proof the officer was lying. Baker v. Fermon, 2020 U.S. App. LEXIS 2035 (7th Cir. Jan. 23, 2020).*

The officers here had collective knowledge that added up to reasonable suspicion, including defendant’s travels in that collective knowledge, which he lied about, and that added to the reasonable suspicion to lawfully extend the stop, here only seven minutes total. United States v. Howard, 2020 U.S. Dist. LEXIS 10554 (E.D. Tenn. Jan. 22, 2020).*

Posted in § 1983 / Bivens, Collective knowledge, Qualified immunity | Comments Off

W.D.Ky.: An open container doesn’t permit a search of an entire car under automobile exception or search incident

Posted on January 25, 2020 by Hall

An open container in a car doesn’t grant the police the authority to search the entire vehicle for another open container. It is implausible to believe that another would be found outside of the passenger compartment. United States v. Thomas, 2020 U.S. Dist. LEXIS 10560 (W.D. Ky. Jan. 21, 2020):
Continue reading →

Posted in Automobile exception, Search incident | Comments Off

CA9: Vacated and dismissed case on post-conviction doesn’t invoke Heck bar

Posted on January 25, 2020 by Hall

Three men convicted in Alaska state court got their convictions vacated and dismissed when someone else confessed to the crime. The lack of a criminal judgment rendered the Heck bar inapplicable. Roberts v. City of Fairbanks, 2020 U.S. App. LEXIS 1927 (9th Cir. Jan. 22, 2020)*:
Continue reading →

Posted in § 1983 / Bivens, Abstention | Comments Off

S.D.W.Va.: Reasonable mistake of fact def’s license was invalid doesn’t void the stop; smell of MJ led to search

Posted on January 25, 2020 by Hall

The officer’s reasonable mistake of fact defendant’s license was invalid doesn’t void the stop. “In sum, Detective Maniskas was sufficiently diligent in his investigation of Qualls’ licenses. The fact that Qualls’ license was actually valid has no impact on Maniskas’ reasonable suspicion that he was driving without a valid license. The initial stop of the van was therefore legitimate, and so the Court turns to an examination of its scope.” The officer smelled marijuana during the stop, and that led to a valid search. United States v. Davis, 2020 U.S. Dist. LEXIS 9804 (S.D. W.Va. Jan. 21, 2020).

Plaintiffs were involved in a street fight on Austin’s Sixth Street, and they got pepper sprayed along with a bunch of others. They claim that the officers used excessive force by not helping to decontaminate them. Aside from there being no clearly established law, their claims are belied by an officer’s bodycam. Hoke v. Anderson, 2020 U.S. App. LEXIS 1899 (5th Cir. Jan. 21, 2020).*

Posted in Qualified immunity, Reasonableness | Comments Off

OH5: Officer’s entry into garage following erratic driver was justified as a welfare check on condition of driver, even though she was helped into the house

Posted on January 25, 2020 by Hall

The officer’s entry into defendant’s garage after the car was parked askew and the door left open justified a welfare check at the door of the house. The officer responded to a 911 call about an erratic driver, and he saw defendant helped into the house. “Here, when viewed objectively, certainly there was a reasonable basis for Officer Wright to believe Street could be in need of assistance, and that a welfare check was prudent. Based on Gregorich’s report, Street’s driving was profoundly impaired. Street could have been intoxicated, or she could have been in need of medical assistance. We find Wright’s entry into the Street’s attached garage to check for occupants in the Honda Accord, did not violate Street’s Fourth Amendment protections.” State v. Street, 2020-Ohio-173, 2020 Ohio App. LEXIS 142 (5th Dist. Jan. 21, 2020).

Defendant’s 2255 Fourth Amendment claim that his phone records were obtained without a warrant is rejected because they clearly were with a warrant. Clark v. United States, 2020 U.S. Dist. LEXIS 10157 (N.D.Ga. Jan. 22, 2020).*

Posted in Community caretaking function | Comments Off

CA11: No justification is needed for a jail booking strip search

Posted on January 25, 2020 by Hall

No justification is needed for a jail booking strip search. [The court alludes to what might possibly be some factual justification but doesn’t say that it was.] Watkins v. Pinnock, 2020 U.S. App. LEXIS 1881 (11th Cir. Jan. 22, 2020).

Defense counsel was not ineffective for not filing a motion to suppress. There clearly was probable cause and the search warrant was particular. It would have failed. Hudson v. State, 2020 Del. LEXIS 28 (Jan. 21, 2020).*

Defendant’s guilty plea waives his motion to suppress. Rochester v. State, 2020 Del. LEXIS 26 (Jan. 21, 2020).*

Posted in Ineffective assistance, Prison and jail searches, Strip search | Comments Off

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by John Wesley Hall
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"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.

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