The affidavit for the search warrant creates only a slim inference at best, and no facts at all, showing a nexus to the place to be searched and the fraud crime under investigation. Therefore, the search warrant lacks probable cause for the search, and the Delaware Constitution does not permit a good faith exception here. State v. Lovell, 2019 Del. Super. LEXIS 659 (Dec. 17, 2019).
The court finds probable cause was lacking for real time pen register information on the use of defendant’s cell phone, but the court still applies the good faith exception to admit it. If the proof turns out better between now and the trial, the court will reconsider. United States v. Castillo, 2019 U.S. Dist. LEXIS 218452 (D.Md. Dec. 16, 2019).*
Defendant’s positive drug screens were reason for an unannounced home and cell phone text message parole search. State v. St. Cyre, 2019 La. App. LEXIS 2305 (La. App. 1 Cir. Dec. 19, 2019).
An officer found two people asleep in a car with the engine running, and he did a welfare check. Telling them to turn off the engine and open the window and door was reasonable, and then the burnt marijuana was apparent. State v. Brumelow, 2019 Fla. App. LEXIS 18931 (Fla. 1st DCA Dec. 20, 2019).*
It was ambiguous whether the images that officers believed were on defendant’s computer qualified as child pornography, but the question for probable cause is reason to believe and not sufficient evidence to convict. Even so, the good faith exception applies. United States v. Giddens, 2019 U.S. Dist. LEXIS 218453 (S.D. Ga. Oct. 29, 2019),* adopted, 2019 U.S. Dist. LEXIS 217676 (S.D. Ga. Dec. 18, 2019).*
Defendant’s CSLI was obtained eight years before Carpenter. His counsel can’t be faulted for not predicting Carpenter. Aside from failing to show deficient performance, defendant can’t show prejudice either. Baker v. United States, 2019 U.S. Dist. LEXIS 218411 (D. N.J. Dec. 18, 2019).*
There was probable cause for defendant’s seizure after an accident with erratic driving and the odor of alcohol. The decision below didn’t have the benefit of later decisions on exigency for dispensing with a warrant for the blood draw (since it took two years just to appeal from the state court of appeals to the supreme court) and the case is remanded for further consideration of that. State v. Chavez-Majors, 2019 Kan. LEXIS 351 (Dec. 20, 2019).*
Posted inIneffective assistance, Probable cause|Comments Off on S.D.Ga.: The fact it was ambiguous whether def’s images were CP or not doesn’t nullify PC for the search
Defendant argued that the officer delayed the process of issuing a traffic citation by extraneous questioning just to get a dog sniff in within the period before the traffic citation could be completed. Still, the entire process reasonably took ten minutes. Thus, reasonable suspicion isn’t an issue because the stop wasn’t prolonged. United States v. Torres, 2019 U.S. App. LEXIS 37969 (6th Cir. Dec. 19, 2019).
Defense counsel was not ineffective for not filing a motion to suppress cell phone call records held by the phone company because it was a losing issue under Smith v. Maryland. The third-party doctrine hasn’t changed. Howell v. State, 2019 Tenn. Crim. App. LEXIS 798 (Dec. 19, 2019).*
There was a typo in the affidavit for search warrant for emails, and the government procured another. The typo wasn’t even material because a “common sense” reading of the whole affidavit shows it was typographical error that could be overcome. And, the issue was mooted by the second warrant. United States v. Jain, 2019 U.S. Dist. LEXIS 218105 (S.D. N.Y. Dec. 18, 2019)*: Continue reading →
Posted inE-mail, Warrant requirement|Comments Off on S.D.N.Y.: Typo in SW for emails could be overlooked in “common sense,” nontechnical reading
The officer gave a wrong name to police communications, and then communications gave a wrong answer back. Two mistakes was too much for Herring, and the exclusionary rule is applied. One mistake may be attenuation; two is not. State v. J.R.D., 2019 Fla. App. LEXIS 18924 (Fla. 2d DCA Dec. 20, 2019).
The government carried its burden of showing consent was voluntarily given on the totality. The credibility determinations of the magistrate are affirmed. United States v. Michaels, 2019 U.S. Dist. LEXIS 218832 (N.D. W.Va. Dec. 20, 2019).*
Posted inConsent, Exclusionary rule|Comments Off on FL2: Herring permits one police mistake for good faith, but not two
Defendant’s cell phone search was not based on a logical nexus between defendant’s cell phone and the murder. Just because criminals communicate by cell phone isn’t enough here. State v. Johnson, 2019 Del. Super. LEXIS 661 (Dec. 18, 2019): Continue reading →
Posted inNexus|Comments Off on DE: Just because criminals communicate by cell phone isn’t enough to show nexus
“[T]he police did not ‘seize’ the package until after the dog alerted to the presence of drugs. It was not a seizure to remove the package from the FedEx conveyor belt, carry it 200 feet to the back of the warehouse, and subject it to a dog sniff. This was in accordance with FedEx’s established procedures and requirement that dogs not be around the conveyor belt. As a result, FedEx did not lose custody of the package until the police left with it, and it is apparent from the record that delivery would not have been delayed if the dog sniff had been negative.” United States v. Green, 2019 U.S. Dist. LEXIS 218043 (W.D. Mo. Dec. 19, 2019).
There was reasonable suspicion to stop defendant near the scene of a robbery. “Here, under the totality of the circumstances, Resendes had reasonable suspicion to stop and detain Rosser-Stewart. At the time of their encounter, Resendes was searching for a black male with long braided hair, about 5’8″ to 6′ tall, with a medium build and dark complexion, wearing a hooded sweatshirt. [Arrest Report at 2; Turret Tape at 8]. Resendes encountered Rosser-Stewart on Carl Avenue, approximately a quarter mile away from where the suspects’ vehicle had been abandoned roughly thirty minutes prior.” He closely matched the description. United States v. Rosser-Stewart, 2019 U.S. Dist. LEXIS 218078 (D. Mass. Dec. 17, 2019).*
The Daily Beast: The Surveillance State Quietly Lost a Major Court Case by Spencer Ackerman (“The feds have a habit of rifling without a warrant through NSA data warehouses to find dirt on American citizens. An appeals court ruling may finally start to break the addiction.”)
Posted inFISA, National security|Comments Off on The Daily Beast: The Surveillance State Quietly Lost a Major Court Case
WaPo: Authorities shot a woman during a botched raid at her home. The real suspect was already in jail. By Derek Hawkins (“Ann Rylee was curled up on her recliner, drifting back to sleep after seeing her fiance off to work, when a commotion startled her. Outside in the predawn dark, authorities from local and federal law enforcement agencies had surrounded the 20-year-old’s home in rural Wilmer, Ala. They were looking for her fiance’s uncle, who had outstanding warrants, according to police. But the man wasn’t there. Police had booked him in county jail the previous day, and family members would later say he hadn’t lived at the residence in more than a year.”)
Posted inArrest or entry on arrest, Police misconduct|Comments Off on WaPo: Authorities shot a woman during a botched raid at her home. The real suspect was already in jail.
NYTimes: Pentagon Warns Military Personnel Against At-Home DNA Tests by Heather Murphy and Mihir Zaveri (“The tests, from companies such as 23andMe and Ancestry, have become popular holiday gifts, but the military is warning service members of risks to their careers.”)
Posted inDNA|Comments Off on NYTimes: Pentagon Warns Military Personnel Against At-Home DNA Tests
Bloomberg Law: States Press Ahead With Privacy Laws Even as Congress Stalls (“States across the country will keep moving on privacy regulation next year as Congress struggles to come up with a broad federal law, lobbyists and privacy attorneys say. California’s new privacy law takes effect Jan. 1.”)
Alleged pretext doesn’t matter where the stop is objectively reasonable. “As the Court has determined there was probable cause to support the traffic stop, the Court does not reach the issue of whether Lt. Henry had reasonable suspicion that the occupants of the Suburban were engaged in criminal activity in order to make an investigative stop of the vehicle. Thus, the Court makes no determination as to the Magistrate Judge’s findings on reasonable suspicion.” United States v. Lewis, 2019 U.S. Dist. LEXIS 217864 (N.D. Ga. Dec. 19, 2019).*
“Jonathan McCoy Logan pled guilty to drug and gun related offenses in two criminal cases pursuant to a plea agreement, and was sentenced to an agreed-upon 147 months of incarceration. Several months after his sentencing, the government informed Mr. Logan that an FBI agent who was indirectly involved with his case had tampered with evidence in other cases.” The agent was at the search but wasn’t even in the chain of custody on anything. The government’s disclosure doesn’t do anything to help in his 2255. CoA denied, too. United States v. Logan, 2019 U.S. Dist. LEXIS 218099 (D.D.C. Dec. 17, 2019).*
Posted inPolice misconduct, Pretext|Comments Off on N.D.Ga.: Alleged pretext doesn’t matter where the stop is objectively reasonable and based on PC
Clearly exigent circumstances for a warrantless entry into a motel room: “Based on the facts in this case, the court finds that the officers had a reasonable basis to believe that there was an immediate need to protect the safety of Defendant. The officers’ knowledge included a report that a gun had been fired, Defendant was observed slumped against the glass door, Defendant was not responding to the officers banging on the glass, there was a gun on the floor by Defendant’s feet, and there was blood on Defendant’s pants. Based on these circumstances, it was reasonable for the officers to believe that Defendant may have been shot and that he was in need of medical assistance.” United States v. Payne, 2019 U.S. Dist. LEXIS 217889 (D.Kan. Dec. 19, 2019).* [How would it not be?]
The totality of circumstances showed that plaintiff was a threat to others when the police encountered him and used force. Therefore it was reasonable, and the officers get qualified immunity. Even if the officers did use excessive force, it wasn’t clearly established in cases like this. Reich v. City of Elizabethtown, 2019 U.S. App. LEXIS 37712 (6th Cir. Dec. 19, 2019).*
The officer’s failure to include in his affidavit for search warrant the inference that the CI might be under the influence of drugs at the time of the statement wasn’t material. “Similarly, the court concludes that Deputy Harmon’s failure to indicate in the affidavit that law enforcement agreed to assist Mr. Allen with an outstanding warrant in Wabaunsee County or suggested to Mr. Morgan that no charges would be filed against him stemming from his arrest does not constitute a reckless or material omission.” The court gave defendant a Franks hearing. United States v. Bivens, 2019 U.S. Dist. LEXIS 217892 (D.Kan. Dec. 19, 2019).* Observation: I don’t know why more courts don’t just give Franks hearings and then grill the lawyers about “How is this material? How does this undermine probable cause?” The defendant carries the burden of proof, and it is high because they are seeking to undermine a presumptively valid search warrant. I would think it would ease the court’s burden in rendering a decision and they could rule from the bench and follow with a short opinion.
Defendant seeks to show material omissions or falsity in an affidavit for a state search warrant premised on an unsworn letter from the person who originally talked to the police about who shot her. A Franks motion is a high burden, and the letter and the circumstances of its appearance do not undermine the initial showing of probable cause. It can’t be shown that the officer was aware of any of this when the warrant was obtained. “Regardless of whether the victim’s identification was accurate, Defendant has not shown that Detective Sutphin deliberately provided the issuing judge with false, material information, or that he recklessly did so. Detective Sutphin neither entertained serious doubts about the information the victim provided to Detective MacDonald, nor was there an ‘obvious reason to doubt the truth’ of the victim’s statement to Detective MacDonald.” United States v. Coats, 2019 U.S. Dist. LEXIS 218026 (N.D. Ind. Dec. 19, 2019).*
The trial court redacted a false statement [likely a cut and paste error] from the affidavit for the search warrant and it didn’t undermine the probable cause at all. It doesn’t matter whether it was intentional or negligent because probable cause still remains. There also were two addresses involved at the premises, but the police had no way of knowing it at the time they got the search warrant. The search was valid. State v. Saxton, 2019-Ohio-5257, 2019 Ohio App. LEXIS 5317 (10th Dist. Dec. 19, 2019): Continue reading →
Posted inFranks doctrine, Particularity|Comments Off on OH10: Fact premises had two addresses was unknown to officers; no suppression
NYTimes: Be Paranoid About Privacy by Kara Swisher (“We need to take back our privacy from tech companies — even if that means sacrificing convenience.”): Continue reading →
Posted inSurveillance technology|Comments Off on WaPo: Colleges are turning students’ phones into surveillance machines, tracking the locations of hundreds of thousands
Posted inSurveillance technology|Comments Off on Biometric Update: Federal, state court rulings on whether biometrics protected by Fifth Amendment get murky
“While at home on a cold November morning, William Wooden heard a knock at the door. Upon opening it, Wooden was greeted by a man asking to speak with Wooden’s wife. Wooden went to get her. And he allowed the man to enter the home, to stay warm while waiting for Wooden to return. [¶] But Wooden’s humane gesture soon became his undoing. As from there, things began to unravel. Wooden picked up a firearm. The man at the door turned out to be a plainclothes police officer. And the officer knew that Wooden was a convicted felon who could not lawfully possess a firearm. Wooden was thus taken into custody.” The officer never misrepresented his identity, and he did not enter by deception. Defendant consented to the entry. United States v. Wooden, 2019 U.S. App. LEXIS 37708 (6th Cir. Dec. 19, 2019).
The totality of circumstances showed that plaintiff was a threat to others when the police encountered him and used force. Therefore it was reasonable, and the officers get qualified immunity. Even if the officers did use excessive force, it wasn’t clearly established in cases like this. Reich v. City of Elizabethtown, 2019 U.S. App. LEXIS 37712 (6th Cir. Dec. 19, 2019).*
Posted inConsent, Qualified immunity|Comments Off on CA6: Def let a man into his house to talk to his wife; he was a plainclothes officer who didn’t ID himself and saw def handle a firearm, and def was a felon; no deception for entry
"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.
