A “Brinks box” in the house being searched with a warrant for drugs was subject to the search. United States v. Simmermaker, 2019 U.S. Dist. LEXIS 199422 (N.D. Iowa Oct. 25, 2019), adopted, 2019 U.S. Dist. LEXIS 198379 (N.D. Iowa Nov. 15, 2019).
2255 petitioner didn’t show ineffective assistance of counsel from defense counsel’s failure to move to suppress the search warrant in his case. The affidavit for the warrant shows probable cause, and it’s also apparent the good faith exception applies. Moreover, petitioner can’t show prejudice: “Thus, even a successful challenge to the search would not have prevented the Government from charging Petitioner with up to 15 narcotics transactions, leaving Petitioner in potentially more legal jeopardy. Thus, in the absence of any prejudice from Petitioner’s supposed ineffectiveness, Petitioner’s claim fails.” Scott v. United States, 2019 U.S. Dist. LEXIS 198289 (S.D.N.Y. Nov. 14, 2019).*
Posted inIneffective assistance, Scope of search|Comments Off on N.D.Iowa: A “Brinks box” in the house being searched with a warrant for drugs was subject to the search
Failure to include the search warrant and affidavit in the record on appeal waives the search issue. State v. Parks, 2019 Tenn. Crim. App. LEXIS 740 (Nov. 13, 2019).
The officer gets qualified immunity because there was probable cause for plaintiff’s arrest. There was history between plaintiff and his wife over custody, and that underlies the probable cause. Also, the force used was not excessive, and only escalated as the force against him escalated. Defrates v. Podany, 2019 U.S. App. LEXIS 34160 (5th Cir. Nov. 14, 2019).*
The citizen informant’s story was detailed as to innocuous facts (like in Gates), but it was corroborated by two controlled buys. United States v. Reed, 2019 U.S. App. LEXIS 34131 (4th Cir. Nov. 15, 2019).*
Defendant showed a substantial enough question for appeal on the legality of a protective sweep that led to a plain view, so he gets bail pending appeal. United States v. Roark, 2019 U.S. Dist. LEXIS 198264 (W.D. Tex. Nov. 15, 2019): Continue reading →
Posted inUncategorized|Comments Off on W.D.Tex.: Def shows a “substantial question” of the legality of his search for bail pending appeal of his conviction
Probation officers could rely on a three-month-old list that showed defendant’s brother lived there and he was on probation. The list was not stale because there was no suggestion the brother’s tenancy was transitory. Defendant’s claim the probation search as a whole was unreasonable was waived for raising it the first time on appeal. United States v. Ped, 2019 U.S. App. LEXIS 34092 (9th Cir. Nov. 15, 2019).
The FDA search of a box of Botox was at the international border as incoming mail, and it was reasonable. United States v. Connor, 2019 U.S. Dist. LEXIS 198118 (N.D. Okla. Nov. 15, 2019).
A valuable opinion from the Middle District of Alabama on privacy v. property, mosaic theory or not, reasonable expectations of privacy on the open road. The court is constrained to find one day’s GPS tracking was reasonable under Knotts. United States v. Howard, 2019 U.S. Dist. LEXIS 198081 (M.D. Ala. Nov. 15, 2019): Continue reading →
Wisconsin permits warrantless probation and parole searches on reasonable suspicion by any law enforcement officer. Officers had it here based on uncorroborated informant hearsay. The record also supports the trial court’s conclusion that the officer knew of the search condition before the search. State v. Anderson, 2019 WI 97, 2019 Wisc. LEXIS 545 (Nov. 15, 2019).
Defendant’s BAC level was properly obtained from the hospital where he was treated after a fatal accident by search warrant. His admissions to paramedics he’d been drinking before the crash were includable. State v. Smith, 2019-Ohio-4706, 2019 Ohio App. LEXIS 4776 (2d Dist. Nov. 15, 2019).*
Defendant did not properly preserve for appeal the issue whether there was probable cause to arrest him. Second, even if he had, there was probable cause. State v. Bradley, 2019-Ohio-4698, 2019 Ohio App. LEXIS 4773 (2d Dist. Nov. 15, 2019).*
The officer was called to a convenience store for a welfare check of a woman inside who apparently was sick. When she finally came out, she was fine and appeared fine, but the officer, for no apparent reason, escalated the encounter to ask for her ID so he could run it for warrants. “The law does not permit the State to use the information potentially available from NCIC to rationalize an otherwise unlawful search or seizure.” “Officer Kent’s investigatory detention of Ellis exceeded the scope of the welfare check-the only constitutionally authorized encounter in this case. As such, the encounter violated Ellis’ rights under the federal and Kansas Constitutions.” State v. Ellis, 2019 Kan. App. LEXIS 81 (Nov. 15, 2019).
The evidence supports the trial court’s conclusion that defendant consented to taking a surveillance recording. State v. Shakhmanov, 2019-Ohio-4705, 2019 Ohio App. LEXIS 4770 (2d Dist. Nov. 15, 2019).*
Rule 41 requires that a copy of the search warrant be left at the premises, but it grants no constitutional right to the target of the search to supervise the search. Moreover, failure to leave a copy of the warrant doesn’t justify suppression of evidence. United States v. Welburn, 2019 U.S. Dist. LEXIS 197727 (M.D. Ala. Oct. 29, 2019).
Posted inF.R.Crim.P. 41, Warrant execution|Comments Off on M.D.Ala.: No 4A right via Rule 41 to have copy of SW at scene; no exclusion for failure to timely leave it
Defendant was the subject of warrantless CSLI pre-Carpenter, and he petitioned for cert while Carpenter was pending. After Carpenter was decided, his case was GVR’d back to the state court of appeals. Reed v. Virginia, 138 S. Ct. 2702 (2018). The defendant argued the good faith exception was waived by the state, which this court rejected and held the good faith exception applied. Reed v. Commonwealth, 69 Va. App. 332, 819 S.E.2d 446 (2018). The state supreme court reversed to allow defendant to further argue waiver. On remand, the court holds that the state gets to argue the good faith exception by analogy to the “right result, wrong reason” doctrine because it didn’t have the benefit of Carpenter when it filed its original briefs. Reed v. Commonwealth, 2019 Va. App. LEXIS 263 (Nov. 12, 2019).
Posted inCell site location information, Good faith exception|Comments Off on VA: State gets to argue GFE after a Carpenter remand even though it never raised the question before Carpenter was decided
A passenger’s flight from a car during a traffic stop is reasonable suspicion. United States v. Goines, 2019 U.S. Dist. LEXIS 197656 (D. Kan. Nov. 14, 2019).
The search warrant for defendant’s home was particular because it referenced Attachment B, and that included the description. They were looking for automatic weapons or parts to convert guns to automatic weapons. United States v. Ray, 2019 U.S. Dist. LEXIS 197503 (N.D. Ind. Nov. 14, 2019).*
Defendant’s stop for following too close was factually justified despite the fact defendant claimed that traffic was just bad and jammed up. United States v. Willis, 2019 U.S. Dist. LEXIS 197662 (W.D. La. Sept. 25, 2019).*
The officers had reasonable suspicion to believe there was a weapon in the car justifying a “protective sweep” of the car under Michigan v. Long. United States v. Alexander, 2019 U.S. Dist. LEXIS 197653 (D. Kan. Nov. 14, 2019).
Defendant apparently lied about his name and the officer also smelled burnt marijuana, and that led to a dog sniff and that was probable cause for a search. United States v. Wright, 2019 U.S. Dist. LEXIS 197601 (D. Me. Nov. 14, 2019).*
USPO officers had reasonable suspicion for a search of defendant’s home and person. First, defendant tested positive in a UA. When they went to his house, he was fidgety and unusually nervous, and they had him step outside. A lump in his pocket was $300 in cash and blue latex gloves. That was reasonable suspicion for a search of the house. United States v. Wimer, 2019 U.S. Dist. LEXIS 197609 (N.D. W.Va. Nov. 1, 2019).*
A “fare sweep” on an MTA train in Baltimore led to defendant being detained. Officers ran his name and found a record. At a station, a scuffle ensued, one of the officers shouted “gun” and defendant was wrestled to the ground by three officers. A gun was found on the tracks. A search of his person produced drugs. When the group of officers entered the train, this was a seizure because none of the passengers could avoid their encounter. Implied consent does not apply. Seizing defendant required reasonable suspicion. The attenuation doctrine does not apply. Carter v. State, 2019 Md. App. LEXIS 977 (Nov. 14, 2019).
Defendant has his third successor petition claiming that a cell simulator was used on his phone, and this too is barred. Jones v. United States, 2019 U.S. Dist. LEXIS 197191 (E.D. Mo. Nov. 14, 2019).*
Defendant was suspected of being a serial bank robber in the Houston area, and the government obtain CSLI by an SCA § 2703(d) order without a showing of probable cause. Two months before trial, Carpenter was decided, and, that same day, the government obtained an order on probable cause for an even greater period of time. Defendant moved to suppress, and the district court granted it. Reversed. The good faith exception applies to the information obtained prior to Carpenter. United States v. Beverly, 2019 U.S. App. LEXIS 33977 (5th Cir. Nov. 14, 2019).
When detained at the NYC Port Authority Bus Terminal for not leaving a business establishment there, defendant made statements that were threats to the well-being of an out-of-state former college professor of his, and he was arrested, and then later indicted in federal court in the Eastern District of New York after his apartment was searched. The fact the state dismissed his misdemeanor counts arising during his arrest has no affect on the legality of his initial arrest. “That there are differences between the offenses cited in the federal complaint, the state arrest report, and the state misdemeanor complaint is of no consequence to the probable cause analysis.” The search of his computer will be addressed in a separate order. United States v. Segui, 2019 U.S. Dist. LEXIS 196242 (E.D. N.Y. Nov. 12, 2019).*
Four undercover officers followed defendant to the Post Office, and they approached him about Jordan being at his house. He said they could come to the house, and he consented to an entry into the house and the look for Jordan. Guns were validly found in plain view during the sweep. United States v. Fisher, 2019 U.S. Dist. LEXIS 196738 (E.D. Mo. Oct. 9, 2019).*
A Texas Ranger found defendant’s computer involved in P2P sharing of child pornography, and a search warrant was issued based on probable cause. Owens v. State, 2019 Tex. App. LEXIS 9897 (Tex. App. – Texarkana Nov. 14, 2019).*
The Court of Federal Claims has no jurisdiction for claims under the Fourth Amendment. Drake v. United States, 2019 U.S. App. LEXIS 33796 (Fed. Cir. Nov. 13, 2019).
Posted inConsent|Comments Off on E.D.Mo.: Def consented to four undercover officers who first met him at post office to search house for a wanted man
The entry into defendant’s house to search for a gun lacked exigent circumstances. There was nothing on which the officers could claim there was any risk. Moreover, defendant didn’t consent to their entry into the home. United States v. Mulato-Herrara, 2019 U.S. Dist. LEXIS 196530 (N.D. Ala. Nov. 13, 2019): Continue reading →
Posted inEmergency / exigency|Comments Off on N.D.Ala.: No exigency for entry into home to seize gun for alleged safety of children
Defendant was convicted of reckless driving with an accident. His dashcam would have a recording of it. The dashcam was reasonably seized without a warrant on exigent circumstances. And, it wasn’t unreasonable to wait three days before getting a search warrant. People v. Kien Tran, 2019 Cal. App. LEXIS 1127 (4th Dist. Oct. 24, 2019): Continue reading →
Posted inDigital Searches, Emergency / exigency|Comments Off on Cal.4: Warrantless seizure of def’s dashcam was reasonable on exigent circumstances; three days to get a SW wasn’t unreasonable
Officers received two anonymous calls about a dark pickup truck with a loud muffler on a residential street in the middle of the night. Once it stopped in the street for a few seconds and then pulled off and turned a corner. This was not a high crime area nor an area known for drug dealing. There was no reasonable suspicion for the stop. Allenbrand v. State, 2019 Fla. App. LEXIS 16910 (Fla. 2d DCA Nov. 13, 2019).*
The new crime exception to the exclusionary rule is well recognized under the Fourth Amendment, and the court adopts it under the state constitution, too. State v. Serrano, 2019 Ind. App. LEXIS 486 (Nov. 13, 2019).
The stop of defendant’s car at a McDonald’s drive through was reasonable because officers had an objectively reasonable belief that one Connor was driving the car. Instead, it was defendant who hit another car trying to elude the officers approaching him. United States v. Crosdale, 2019 U.S. Dist. LEXIS 196677 (W.D. Mo. Sept. 24, 2019).*
Posted inAttenuation, Reasonable suspicion, State constitution|Comments Off on FL2: Anonymous calls about a pick-up truck driving slowly around the block in the middle of the night in a residential low crime area wasn’t RS
The collective knowledge doctrine doesn’t require that the officers actually share the information. United States v. Devaugh, 2019 U.S. Dist. LEXIS 196059 (D.D.C. Nov. 12, 2019).
The use of a “court ordered subpoena” apparently not issued on probable cause was common in the jurisdiction prior to Carpenter, and there was no binding authority that was unconstitutional. Therefore, the CSLI would not be suppressed. State v. Tyler, 2019-Ohio-4661, 2019 Ohio App. LEXIS 4708 (9th Cir. Nov. 13, 2019).
The officer lacked reasonable suspicion to stop defendant that he was about to commit DUI. State v. Kreis, 365 Ore. 659 (Nov. 7, 2019).*
NY Daily News: Opinion: Unready for their closeup: The NYPD’s body camera problem (“Last month, outgoing Police Commissioner Jimmy O’Neill quietly released two pages of long-awaited guidelines outlining how and when video from body cameras all cops now wear shall be released. While we welcome some attempt to commit standards to paper, O’Neill’s crack at it falls far short of what is required.”)
Posted inBody cameras|Comments Off on NY Daily News: Opinion: Unready for their closeup: The NYPD’s body camera problem
Police received a 4 am burglary call, and an officer with a dog tracking smell and the officer tracking footprints in the dew on the ground led to defendant’s property. The officer knocked and defendant’s mother let the police in. Inside was defendant, and he had a watch that was from the burglary. The entry on the property was in hot pursuit and the entry into the house was by consent. State v. Ionescu, 2019 Wisc. App. LEXIS 610 (Nov. 13, 2019).
Granting the magistrate’s determination of probable cause the deference it is entitled to, the court finds probable cause for issuance of the search warrant. State v. Young, 2019-Ohio-4639, 2019 Ohio App. LEXIS 4677 (10th Dist. Nov. 12, 2019).*
"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.
