Defendant allegedly had a motive to be violent, and, when officers asked him about whether he was armed, he dodged the question. The evidence supports the district court’s conclusion that there was reasonable suspicion for the intrusion. United States v. Farrington, 2019 U.S. App. LEXIS 36384 (6th Cir. Dec. 6, 2019).
Defendant succeeds in reversing district court’s denial of 2255 on the grounds that he was misadvised as to the Guideline range and that a conditional plea here cost him acceptance of responsibility. He gets to re-enter an unconditional plea on remand if that’s his choice. Medina v. United States, 2019 U.S. App. LEXIS 36370 (11th Cir. Dec. 9, 2019).*
“When Officer Hill entered Gates’s home, he held the reasonable belief that a violent domestic disturbance was ongoing, and that a woman was present in the residence and involved in the disturbance. This gave rise to a reasonable belief in a present emergency, justifying his warrantless entry. Once inside, Officer Hill held a warrant for Gates’s arrest. … Officer Hills’s search of Gates’s person, leading to the discovery the firearm, was appropriate under the Fourth Amendment. United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973) (‘It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment.’).” United States v. Gates, 2019 U.S. Dist. LEXIS 210993 (W.D. Va. Dec. 6, 2019).
Posted inEmergency / exigency|Comments Off on W.D.Va.: Ongoing DV disturbance is exigency for a warrantless entry
Off topic, but significant: A digital news blog is covered by the nearly 50-year-old Nevada statute on protecting news sources and under the anti-SLAPP statute. Relying on Kyllo, the court finds that new technology has to be recognized under existing law when it is logical to do so. Toll v. Wilson, 2019 Nev. LEXIS 74 (Dec. 5, 2019): Continue reading →
Posted inUncategorized|Comments Off on NV: OT: Relying on Kyllo, a digital blog is covered by the newpaperman’s privilege in confidential sources
Defendant was stopped and consented to a search of his truck. The consent search led to probable cause to believe the truck was transporting a lot of cash. Using a drill to find the cash was reasonable once there was probable cause. United States v. Martin, 2019 U.S. Dist. LEXIS 210573 (D. Kan. Dec. 6, 2019).
The court credits the officer that there was a traffic violation that required a stop. The officer developed reasonable suspicion for a patdown for weapons.“[W]hen Radford was turned around to face Corp. Maples, the vacuum-sealed package that he believed to be heroin, was visible in Radford’s jacket pocket. Because Corp. Maples had made a lawful traffic stop, and the incriminating nature of the package was immediately apparent, the search and seizure was lawful. Under the totality of circumstances, these facts are sufficient probable cause for the pat down and subsequent search and seizure of evidence.” United States v. Radford, 2019 U.S. Dist. LEXIS 210587 (S.D. Ind. Dec. 6, 2019).*
“Turning to the facts of this case, we also find the officer’s observation of defendant entering and exiting a residence that was reasonably suspected as being used for narcotics transactions to be insufficient to support a reasonable suspicion of participation in criminal activity.” Defendant’s patdown then was unreasonable. State v. Collins, 2019 La. App. LEXIS 2180 (La. App. 4 Cir. Dec. 4, 2019).
“Defendants contend that the Olsen Affidavit fails to establish probable cause to search the warehouse at 843 Main Street. Specifically, they argue that the Olsen Affidavit relies too heavily on statements made by CS1 and Employee 1, neither of whom is a credible source. Because other information in the affidavit independently corroborates each source’s statements, the Court rejects this argument.” Moreover, there was plenty of evidence of a marijuana grow operation and money laundering. United States v. Laverty, 2019 U.S. Dist. LEXIS 210456 (D. Mass. Dec. 5, 2019).*
About a year after the execution of the search warrant, the parties learned that an HBO documentary crew recording Meth Storm was along for the search. Citing Layne v. Wilson and Brady, the defense sought access to the video and out takes. By then, however, there were no out takes available. There was no discovery violation of the information about the search simply because the Prosecuting Attorney and the state didn’t have access to the materials, and the circuit court couldn’t order production of what they didn’t have. Harmon v. State, 2019 Ark. App. 572, 2019 Ark. App. LEXIS 614 (Dec. 4, 2019).
The search warrant did not lack particularity because the warrant’s phrase “any/all unnamed evidence related to the death of the victim” was preceded by a list of items, all of which were expressly tied to the specific crimes of aggravated murder, murder, and voluntary manslaughter. Thus, the search warrant did not authorize a wide-ranging, exploratory search for evidence of any crime. State v. Campbell, 2019-Ohio-5004, 2019 Ohio App. LEXIS 5077 (6th Dist. Dec. 6, 2019).*
Posted inParticularity, Warrant execution|Comments Off on AR: Prosecutor also didn’t know for a year that an HBO documentary crew was present at search; no discovery violation on SW materials
Defendant consciously was abandoning his property as he was trying to elude police who were chasing him on foot. He tossed everything, including his cell phone. Getting the CSLI for the abandoned phone without a warrant was reasonable, too. United States v. Small, 2019 U.S. App. LEXIS 36246 (4th Cir. Dec. 6, 2019): Continue reading →
“In total, we find that there was reasonable suspicion to block the white Saturn into the driveway. Taking together the smell of marijuana in an area known for drug violations, the person leaning into the car, and the car’s backing away as soon as the police car approached, Officer Oliver was reasonable in suspecting some drug-related activity. Thus, there was enough here to warrant a reasonable person in the belief that criminal activity was afoot, so Officer Oliver was justified in detaining the car to investigate further.” Defendant was in the backseat, and he got out and ran. His flight added to the reasonable suspicion despite his claim that his flight was reasonable under Michigan law. United States v. Bloodworth, 2019 U.S. App. LEXIS 36224 (6th Cir. Dec. 6, 2019).*
Defense counsel wasn’t ineffective for not raising a Fourth Amendment claim to the search of defendant’s girlfriend’s house because he lacked standing. State v. Barnhart, 2019-Ohio-5002, 2019 Ohio App. LEXIS 5075 (6th Cir. Dec. 6, 2019).*
CSLI can be obtained from a parolee’s cell phone without a search warrant. “However, the Court’s own research has found that every circuit court faced with the same question has sided with the Government and found that a warrant is not necessary to search the cell phone of a parolee. The Eighth, United States v. Jackson, 866 F.3d 982 (8th Cir. 2017), Ninth, United States v. Johnson, 875 F.3d 1265 (9th Cir. 2017), and Tenth Circuits, United States v. Pacheco, 884 F.3d 1031 (10th Cir. 2018), have all concluded that the totality of the circumstances, which include the existence of a parole search condition, render the warrantless search of a parolee’s cell phone reasonable under the Fourth Amendment.” Therefore, the same rule should apply to CSLI as well. United States v. Rogers, 2019 U.S. Dist. LEXIS 210247 (N.D. Ind. Dec. 4, 2019).
The nature of the probable cause and when it was found was justification for broad search warrant for records in a tax investigation. “But, unlike in Rickert, the investigation in this case began with broader data collected by the IRS SDC and analyzed by SA Pitzen, which suggested many tax returns filed through Number 1 Tax were falsified. SA Pitzen’s further investigation into four particular instances corroborated data that pointed to a broader scheme. The warrant was correspondingly broad, without being overly broad, to collect the relevant business files of Number 1 Tax.” United States v. Brown, 2019 U.S. Dist. LEXIS 209962 (D.Minn. Dec. 5, 2019).
Even if the first two search warrants were constitutionally infirm, nothing of evidentiary value was obtained by those searches, so they have no affect on the third search warrant for attenuation purposes. Failure to include something wasn’t material for Franks purposes. United States v. Elmore, 2019 U.S. Dist. LEXIS 210083 (W.D. Ky. Dec. 3, 2019).*
Posted inAttenuation, Overbreadth|Comments Off on D.Minn.: Broad SW in tax investigation on one false return justified breadth of SW because it was likely other taxes were not paid, too
Defendant seeks return of things of potential evidentiary value. The government opposes on the ground that a 2255 has not yet been filed, and the things might still have value. That’s reasonable for the court. United States v. Saldivar, 2019 U.S. Dist. LEXIS 210241 (E.D. Cal. Dec. 4, 2019).
“Whether, on the particular facts of this case, the deputy had reasonable suspicion that Pagoaga-Rios violated § 545.363, is not readily resolved by reference to Texas law. See Lopez-Moreno, 420 F.3d at 430; see also Delafuente v. State, 414 S.W.3d 173, 178 (Tex. Crim. App. 2013). [¶] However, we need not reach that question, because even if the deputy erred in determining that he had a legal basis to stop Pagoaga-Rios, his mistake of law can ‘give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment,’ if it was objectively reasonable. See Heien v. North Carolina, 135 S. Ct. 530, 534, 539 (2014).” United States v. Pagoaga-Rios, 2019 U.S. App. LEXIS 36154 (5th Cir. Dec. 4, 2019).*
“A federal grand jury indicted Corry Blue Evans and various members of his family on multiple offenses including extortion, money laundering, and bank fraud. Pending before the Court is the government’s motion for an order to compel Corry Blue Evans and his co-defendants, including Candy Evans, to provide samples of their DNA. The government seeks to take buccal swabs to compare defendants’ DNA to DNA discovered on two weapons: a revolver recovered during the execution of a search warrant at two of his co-defendants’ residences; and a shotgun recovered from another co-defendant’s residence by consent. Because the government lacks individualized suspicion that this search will lead to evidence of a crime committed by Corry Blue Evans or Candy Evans, the search is unreasonable under the Fourth Amendment. Therefore the government’s motion for an order requiring them to submit to a buccal swab is DENIED.” United States v. Evans, 2019 U.S. Dist. LEXIS 210486 (D.D.C. Dec. 6, 2019).
Posted inDNA, Probable cause|Comments Off on D.D.C.: Govt doesn’t show PC to connect defs to weapons to force DNA swabs
When reasonable suspicion evaporated with the fact that the driver of the vehicle was not the owner for whom there was a warrant out, the stop should have ended. State v. Brentlinger, 2019-Ohio-4989, 2019 Ohio App. LEXIS 5073 (5th Dist. Dec. 3, 2019): Continue reading →
Posted inReasonable suspicion|Comments Off on OH5: RS ended when the driver turned out not to be the wanted owner, and further detention was without RS
A private party recorded a telephone call with defendant admitting a criminal sex act. Proposition 8 on “Truth in Evidence” adopted by voters in 1982 made the exclusionary rule follow the Fourth Amendment exclusionary rule. The legislature amended it by a supermajority, but none of the amendments dealt with this issue. The court of appeals properly held the private party’s violation of the law wasn’t subject to the exclusionary rule. People v. Guzman, 2019 Cal. LEXIS 8937 (Dec. 5, 2019).
Posted inExclusionary rule, Private search|Comments Off on Cal.: Privately recorded conversation in violation of state law admissible in a criminal case under 1982’s Proposition 8
NYTimes: Strip-Searching of 8-Year-Old at Prison Leads Virginia to Halt the Practice (“Gov. Ralph Northam suspended the policy after a girl was strip-searched while trying to visit her father.”) And I lost a case similar to this about 18 years ago because the District Court and Eighth Circuit said the strip search of the little girl was “reasonable.” It was not, admittedly, as intrusive as this one.
Posted inPrison and jail searches, Strip search|Comments Off on NYTimes: Strip-Searching of 8-Year-Old at Prison Leads Virginia to Halt the Practice
The search warrant for the contents of defendant’s cell phone was overbroad because there was no justification for the breadth of search. This was a sex abuse case, but there was never any indication defendant possessed child pornography on the phone. People v Thompson, 2019 NY Slip Op 08772, 2019 N.Y. App. Div. LEXIS 8777 (1st Dept. Dec. 5, 2019). [He was sentenced August 24, 2017 to 2½-5 years, and it took 2¼ years to decide the appeal. Another NY case posted a couple of years ago took four years from sentencing to appeal.]
The trial court found that the tenants renting the property invited the police in and defendant lacked standing as a mere social visitor to object to the entry. People v. Pitman, 2019 NY Slip Op 08733, 2019 N.Y. App. Div. LEXIS 8810 (3d Dept. Dec. 5, 2019).*
Posted inCell phones, Consent, Overbreadth|Comments Off on NY1: SW for cell phone overbroad; no justification for searching photographs
“P1 Following a May 2017 hit and run in Indianapolis that left a pedestrian dead, Dennis Payne Jr. was convicted of Level 5 felony failure to remain at the scene of an accident resulting in death and Level 6 felony obstruction of justice. Payne now appeals, arguing that the police violated his Fourth Amendment rights when they seized his Toyota 4Runner—which matched the description of the SUV involved in the hit and run, had front-end damage consistent with a pedestrian strike, and was parked on a public street—without a warrant. Because Payne concedes that the police had probable cause to believe that his 4Runner was involved in the hit and run and the automobile exception to the warrant requirement applies to cars parked on property that is open to the public, we find no Fourth Amendment violation.” Defendant knew that the police were looking for him, and time was becoming of the essence. Likewise, no state constitutional violation either. Payne v. State, 2019 Ind. App. LEXIS 530 (Dec. 5, 2019): Continue reading →
Posted inAutomobile exception|Comments Off on IN: Seizure of def’s vehicle off the street when police found it after a hit and run was valid under the automobile exception
Telling defendant to put his hands against the wall and assume the position for a patdown was a seizure, and here it was without probable cause. It was not consensual. Dozier v. United States, 2019 D.C. App. LEXIS 495 (Dec. 5, 2019).
When an individual is interrogated in violation of Miranda, and the response to the questioning is itself a criminal act such as providing a false identity, Miranda’s exclusionary rule will not bar admission of the statement at a subsequent trial involving charges based on the criminal act. People v. Compos, 2019 COA 177, 2019 Colo. App. LEXIS 1841 (Dec. 5, 2019).*
Posted inExclusionary rule, Seizure, Stop and frisk|Comments Off on DC: Telling def to put his hands on the wall for a patdown was a seizure and wasn’t consensual
"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.
