Inevitable discovery applies: “The District Court based its decision to admit evidence from Restitullo’s apartment on three factors. First, police drafted the warrant application before Restitullo’s interrogation began. Second, ‘overwhelming’ probable cause existed to search Restitullo’s bedroom based on the interviews of his two purported victims—interviews that occurred even before officers took Restitullo into custody. And third, the police secured Restitullo’s apartment before Restitullo’s interrogation. Securing the apartment thus prevented any possible removal of the evidence.” United States v. Restitullo, 2019 U.S. App. LEXIS 35585 (3d Cir. Nov. 27, 2019).
Playpen search warrant sustained. United States v. Smith, 2019 U.S. App. LEXIS 35611 (5th Cir. Nov. 26, 2019).*
Posted inInevitable discovery|Comments Off on CA3: Inevitable discovery applies because govt was drafting SW and there was “overwhelming” PC
Defendant stored bags with a friend, and he ended up in jail. There was no actual or apparent authority shown for her to consent to search of the bags. The government carries the burden on both, and it fails. The government even relied on jail calls from defendant to the friend, and they didn’t support its conclusion, either. Conviction reversed. United States v. Moran, 2019 U.S. App. LEXIS 35574 (1st Cir. Nov. 27, 2019): Continue reading →
Posted inApparent authority, Consent|Comments Off on CA1: Mere fact friend had possession of def’s bags didn’t show actual or apparent authority to consent
It’s defendant’s burden in challenging a search warrant to raise both the defects in the warrant (such as a lack of probable cause) and inapplicability of the good faith exception. Raising the good faith exception in his reply brief is too late and waiver. Snow v. State, 2019 Ind. App. LEXIS 519 (Nov. 27, 2019): Continue reading →
“The knowing and voluntary guilty plea waived all alleged ineffective assistance of counsel which preceded it, including counsel’s alleged deficiencies with regards to Fourth Amendment issues.” Allen v. United States, 2019 U.S. Dist. LEXIS 205762 (W.D. N.C. Nov. 26, 2019).
The exclusionary rule doesn’t apply in civil proceedings. Matter of Omnamm L. (Kumar L.), 2019 NY Slip Op 08563, 2019 N.Y. App. Div. LEXIS 8589 (2d Dept. Nov. 27, 2019).
“[W]e agree with the State that there was no Fourth Amendment seizure when the deputy approached the car and initially questioned Williams about her reason for being there. The car occupied by Williams was already stopped, the deputy did not activate his lights, and his vehicle technically gave the defendant a path of egress.” State v. Williams, 2019 Iowa App. LEXIS 1081 (Nov. 27, 2019).*
Refusal to submit to a blood draw search warrant for BAC supports a conviction for obstruction of justice. Commonwealth v. Palchanes, 2019 Pa. Super. LEXIS 1186 (Nov. 27, 2019).
The CI’s basis of knowledge and reliability was adequately shown, and defendant was particularly described. People v. Cowan, 2019 NY Slip Op 53936, 2019 N.Y. App. Div. LEXIS 8575 (3d Dept. Nov. 27, 2019).*
Plaintiff had no reasonable expectation of privacy in his prison financial records. It’s even required to file for IFP status in a civil case. Talley v. Mazzocca, 2019 U.S. App. LEXIS 35562 (3d Cir. Nov. 27, 2019).*
Defendant filed a post-conviction petition alleging that a necessary witness hadn’t been called for the suppression hearing. He could not, however, provide any decent information about name, where she could be found, what she would say, or that it would change the outcome of the suppression hearing on the informant hearsay. Nothing defendant shows on appeal shows the trial court’s decision was clearly erroneous. Ferguson v. State, 2019 Tenn. Crim. App. LEXIS 760 (Nov. 26, 2019).*
Repeal of the part of a rental inspection ordinance made the Fourth Amendment controversy moot. Zaatari v. City of Austin, 2019 Tex. App. LEXIS 10290 (Tex. App. — Austin Nov. 27, 2019).*
Plaintiff’s § 1983 claim was filed five years out of time and was barred. Sease v. Darko, 2019 U.S. App. LEXIS 35540 (7th Cir. Nov. 27, 2019).*
Posted in§ 1983 / Bivens, Ineffective assistance|Comments Off on TN: Def can’t show prejudice for IAC claim for failing to call a witness he can’t identify or summarize testimony of
Appellant appeals the denial of his suppression motion, but a bunch of the exhibits are missing. The state relies on precedent that it’s the appellant’s obligation to bring up a record. The state, however, somehow got Exhibits 1-23 back and now they are missing, and they certified to the court that they looked and can’t find them. The fault for lack of a record isn’t attributable to the defendant. Reversed for a new trial. State v. Garcia, 2019-Ohio-4885, 2019 Ohio App. LEXIS 4928 (8th Dist. Nov. 27, 2019).
The officer’s statement that he’d try to get a search warrant if consent was informative was not coercive. The officer explained the process, and the consent was a free choice. State v. Mathis, 2019-Ohio-4887, 2019 Ohio App. LEXIS 4929 (8th Dist. Nov. 29, 2019).*
Posted inConsent, Suppression hearings|Comments Off on OH8: State’s losing exhibits from suppression hearing requires new trial
Four months of warrantless and continuous pole camera surveillance of defendant’s fenced-in back yard was unreasonable and violated his reasonable expectation of privacy under the Fourth Amendment. People v. Tafoya, 2019 COA 176, 2019 Colo. App. LEXIS 1799 (Nov. 27, 2019): Continue reading →
Posted inPole cameras|Comments Off on CO holds four months of pole camera surveillance of def’s fenced-in backyard was unreasonable and violated 4A
The Florida Supreme Court granted a certified question of public importance on whether a search warrant was required to draw blood from an unconscious motorist in the hospital. In the meantime, SCOTUS decided Mitchell v. Wisconsin. This court applies Mitchell and remands. McGraw v. State, 2019 Fla. LEXIS 2176 (Nov. 27, 2019), prior appeal McGraw v. State, 245 So. 3d 760 (Fla. 4th DCA 2018).
Defendant’s stop was justified by the officer passing him and seeing the seatbelt retracted. The trial court credited the officer’s version, not defendant’s that it was buckled when the officer got to the window. State v. Poehler, 2019 Minn. LEXIS 700 (Nov. 27, 2019).*
The exclusionary rule does not apply to supervised release proceedings. United States v. Elder, 2019 U.S. Dist. LEXIS 205407 (W.D. N.Y. Nov. 26, 2019).*
Officer’s reinitiating contact with driver, leaning on window and asking about asking more questions on the totality signaled to defendant he wasn’t free to leave. State v. Gonzalez, 2019 Kan. App. LEXIS 85 (Nov. 27, 2019): Continue reading →
Posted inSeizure|Comments Off on KS: Officer’s reinitating contact during stop and leaning into window with hands on door meant to driver he wasn’t free to leave
Defendant was a Peoria police officer being accused of sexual assault, and the Illinois State Police obtained a search warrant for his computer and other devices. The hard drives were copied with EnCase software. Defendant was tried on the sexual assault charges and acquitted. Defendant sought return of the data. After that, police searched the mirrored image again but without a separate search warrant, thinking that they didn’t need one. Once defendant’s case was over, the information should have been returned to him. The later search was unreasonable, and the good faith exception does not apply. People v. McCavitt, 2019 IL App (3d) 170830, 2019 Ill. App. LEXIS 922 (Nov. 26, 2019): Continue reading →
A brief meeting for what could only be described by the officer, in his experience, was likely a hand-to-hand sale in a high crime area reasonable suspicion for a stop. “Other suggested explanations by defendant, such as that defendant may have been worried about the high crime nature of the area, while possible, do not rule out the plausible explanation supported by the totality of the circumstances. See Navarette v. California, 572 U.S. 393, 403, 134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014) (“[R]easonable suspicion need not rule out the possibility of innocent conduct.”) (quotations omitted).” United States v. Branch, 2019 U.S. Dist. LEXIS 205474 (E.D. N.C. Nov. 26, 2019).
“Viewing Sergeant Krut and Detective Maritz’s testimony in the totality of the circumstances, and with appropriate deference to their knowledge and experience, there was more than enough reason for them to suspect that Cole possessed a weapon. See Mosley, 454 F.3d at 252; Rickus, 737 F.2d at 365. After all, Sergeant Krut did not need to be ‘absolutely certain’ that Cole had a weapon. Terry, 392 U.S. at 27. The factors articulated by Sergeant Krut are consistent with both Supreme Court and Third Circuit case law.” “In the same vein, as the Third Circuit has acknowledged: where there are drugs, there are often guns. See Davis, 726 F.3d at 440. So the information that Sergeant Krut received from Officer Frisk and Mr. Malik about suspected drug activity associated with Cole’s apartment building contributed to a reasonable fear that Cole may have a weapon.” United States v. Carter, 2019 U.S. Dist. LEXIS 205376 (W.D.Pa. Nov. 26, 2019).*
Posted inReasonable suspicion, Stop and frisk|Comments Off on E.D.N.C.: “[R]easonable suspicion need not rule out the possibility of innocent conduct.” Navarette
Daily Beast: Trump Is First to Use PATRIOT Act to Detain a Man Forever by Spencer Ackerman (“Never in 18 years has the government used Section 412 of the PATRIOT Act, which permits indefinite detention of resident aliens on national-security grounds. Until now.”)
Posted inArrest or entry on arrest|Comments Off on Daily Beast: Trump Is First to Use PATRIOT Act to Detain a Man Forever
Standing to contest a search and seizure issue is not jurisdictional, so the court doesn’t have to decide standing. Going to the merits, there was probable cause for the search warrant for the package arriving by mail, and the delay in getting the warrant was reasonable and explained in court at the suppression hearing. Similarly, the nine-day delay in getting the search warrant for defendant’s phone was reasonable because he was in custody and wouldn’t have possessed it anyway. United States v. Mesa, 2019 U.S. Dist. LEXIS 204662 (D. Guam Nov. 21, 2019).
“Appellant consented to the frisk. Where an individual voluntarily consents to a search, the Fourth Amendment is not implicated. Katz v United States, … n.22 …. Appellant responded with a clear and unequivocal ‘sure’ when the TPD officers asked to frisk him, and the record supports that his consent ‘was given “freely and voluntarily.”’” United States v. Brooks, 2019 U.S. App. LEXIS 35426 (9th Cir. Nov. 26, 2019).*
Defense counsel raised multiple search claims at trial but only appealed one. Defendant’s ineffective assistance of counsel claim requires a remand for an evidentiary hearing. Peden v. State, 2019 Tenn. Crim. App. LEXIS 757 (Nov. 26, 2019).*
The affidavit for this search warrant could have been more detailed, but it doesn’t necessarily show it to be weak. Nevertheless, the court doesn’t even have to decide probable cause because this case falls within the “heartland” of the good faith exception which clearly applies. United States v. Runyon, 2019 U.S. App. LEXIS 35359 (6th Cir. Nov. 26, 2019): Continue reading →
Posted inGood faith exception, Probable cause|Comments Off on CA6: SW’s PC doesn’t even have to be decided if affidavit falls within “heartland” of GFE
Alleged violation of a protective order on discovery authorized a search of defendant’s jail cell and a search warrant for his mother’s home after he mailed it to her to copy and disseminate. The protective order itself justified the search of his cell. He also had no standing in his mother’s home to contest that search. United States v. Carson, 2019 U.S. App. LEXIS 35361 (6th Cir. Nov. 26, 2019): Continue reading →
Posted inPrison and jail searches|Comments Off on CA6: Alleged violation of discovery order by unauthorized possession of Jencks material justifies search of jail cell, not that there’s a REP in it anyway
The warrant was sufficiently particular because the premises was apparently occupied by a single family. The city authorized it to be a multifamily dwelling, but there’s nothing at the suppression hearing that shows that it was used that way at the time of the search. People v. Duval, 2019 NY Slip Op 08542, 2019 N.Y. App. Div. LEXIS 8548 (1st Dept. Nov. 26, 2019).
Defendant’s Fourth Amendment claim was raised in previous habeas petitions, so it’s barred in a successor petition. In re Williams, 2019 U.S. App. LEXIS 35336 (11th Cir. Nov. 25, 2019).*
Appellant has moved a second time for a COA from his denial of habeas relief in the district court. It’s denied by law of the case doctrine. United States v. Akel, 2019 U.S. App. LEXIS 35330 (11th Cir. Nov. 25, 2019).*
Posted inParticularity|Comments Off on NY1: Def showed that multifamily use of premises was permitted, not that it was such at time of search
There was probable cause for defendant’s arrest for attempted sex trafficking a minor. He said during his post-arrest interview that he was confused by the internet ad that he was responding to, but that doesn’t undermine probable cause. United States v. Slim, 2019 U.S. Dist. LEXIS 205368 (D.S.D. July 30, 2019), adopted, 2019 U.S. Dist. LEXIS 204298 (D.S.D. Nov. 25, 2019).
The affidavit for the search warrant showed probable cause and nexus to the premises for narcotics and guns. Even if it was tenuous as to guns, guns follow drugs, and that would be enough. United States v. Meadows, 2019 U.S. Dist. LEXIS 204292 (E.D. Tenn. Oct. 18, 2019),* adopted, 2019 U.S. Dist. LEXIS 203062 (E.D. Tenn. Nov. 22, 2019).*
“Here, the petitioner provided no proof to support his assertion that a motion to suppress the Dollar Store receipt would have been granted.” Therefore, his ineffective assistance claim, if made, would have failed. Sexton v. State, 2019 Tenn. Crim. App. LEXIS 755 (Nov. 25, 2019).*
Posted inIneffective assistance, Probable cause|Comments Off on D.S.D.: Def’s claim at arrest that he was confused about the age of the person he was meeting was a trial question, not a PC question
"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.
