Defendants were passengers on the cruise ship MSC Seaside which arrived at Miami from Carribean ports. The passenger cabins were subject to search under the border search exception. When they knocked at the cabin door and it opened, they could smell marijuana, and that gave them at least reasonable suspicion to enter, too. United States v. Ellis, 2019 U.S. Dist. LEXIS 193115 (S.D. Fla. Oct. 15, 2019).
The evidence supports the trial court’s finding that defendant consented on the totality to the police entry. Defendant came to the police station with clothing which appeared to have dried blood on them, and seizure of the clothing was justified. Hedvall v. State, 2019 Fla. App. LEXIS 16751 (Fla. 3d DCA Nov. 6, 2019).*
Officials with the defendant school district passed on information to the police that resulted in a search warrant being executed at plaintiff’s house apparently for drugs. Nothing was found. Plaintiff doesn’t undermine the probable cause for the issuance of the warrant, and a 12(b)(6) motion to dismiss is granted. McGinnis v. Harris Cty., 2019 U.S. Dist. LEXIS 193190 (S.D. Tex. Nov. 6, 2019).*
Posted inBorder search, Consent|Comments Off on S.D.Fla.: Cruise ship cabins are subject to border search
Defendant’s government work emails were searched without a warrant, and it’s clear, based on warnings on the computer at every sign in and regular training, that he was well aware everything on the computer has no reasonable expectation of privacy. He may have had a subjective expectation, but there wasn’t any objective reasonable expectation of privacy. United States v. Caputo, 2019 U.S. Dist. LEXIS 192511 (D. Ore. Nov. 6, 2019): Continue reading →
NCMEC was a private entity and not a government actor. The government didn’t exceed the private search. United States v. Kendall, 2019 U.S. Dist. LEXIS 192442 (E.D. Ky. Nov. 6, 2019).
Defendant had no reasonable expectation of privacy in an alleyway where he hid something. United States v. Davis, 2019 U.S. Dist. LEXIS 192633 (W.D. Mo. Nov. 6, 2019).*
Defendant’s CSLI argument wasn’t preserved in the trial court. People v. Lanham, 2019 NY Slip Op 07905, 2019 N.Y. App. Div. LEXIS 7934 (2d Dist. Nov. 6, 2019).*
The search warrant for files and things on defendant’s phone permitted full extraction. United States v. Sepulveda, 2019 U.S. Dist. LEXIS 192363 (S.D. N.Y. Nov. 5, 2019).
Defendant’s online comments that amounted to a terroristic threat against law enforcement officers and his online posts of having a gun justified the search warrant of his house for the computer on which the threat was made and for the firearm. United States v. Jones, 2019 U.S. App. LEXIS 33182 (4th Cir. Nov. 6, 2019).*
For those who find Moylan opinions entertaining, or even too biting, consider Myers v. State, 2019 Md. App. LEXIS 939 (Nov. 6, 2019), where defense counsel was chided for a Fourth Amendment that didn’t matter.
Posted inCell phones, Probable cause|Comments Off on S.D.N.Y.: SW for files on cell phone also permitted data extraction
Officers exceeded the scope of defendant’s consent, but, by the time they did, they had probable cause under the automobile exception to search further. People v. Davis, 2019 IL App (1st) 160408, 2019 Ill. App. LEXIS 875 (Sept. 23, 2019),* modified on denial of rehearing (Oct. 28, 2019).*
Defendant argued that the affidavit for the search warrant was recklessly misleading because it omitted information that defendant had been cleared of having a gun during a domestic call. “Further, Defendant does not show that, if the affidavit is supplemented by the omitted information, probable cause does not exist for the issuance of the warrant. Although Defendant claims the initial 911 call was unsubstantiated and the presentation of the incident as a pending report in the affidavit was false, neither of these claims are true.” Any other omitted information did not negate probable cause. United States v. Smith, 2019 U.S. Dist. LEXIS 192317 (S.D. Iowa Oct. 15, 2019).*
Shaking defendant’s fanny pack to see if there was a weapon rather than opening it was reasonable as a part of stop and frisk. United States v. Elenes, 2019 U.S. App. LEXIS 33067 (9th Cir. Nov. 5, 2019).
Officers could approach the residence defendant lived in for a knock-and-talk based on information they had he dealt drugs to somebody who overdosed. They were let in by the roommate. A protective sweep was justified by hearing noises that somebody else was inside. United States v. Hancock, 2019 U.S. Dist. LEXIS 191941 (E.D. Mo. Oct. 16, 2019),* adopted, 2019 U.S. Dist. LEXIS 190778 (E.D. Mo. Nov. 4, 2019).*
On the totality of circumstances, defendant consented to the search of his car, and he wasn’t in custody at the time. State v. Genet-Morlan, 2019-Ohio-4553, 2019 Ohio App. LEXIS 4599 (9th Dist. Nov. 6, 2019).*
In a trade secrets theft case, reliance on double hearsay in the affidavit for search warrant was not unreasonable. The source was the company defendant worked for. Defendant relies on the elements of the trade secrets theft law and argues that the affidavit failed to show probable cause. Without needing to decide whether the government had to show probable cause for each element, it did. Even so, the good faith exception clearly applies, too. United States v. Minh Hoang, 2019 U.S. Dist. LEXIS 191834 (D. Utah Nov. 4, 2019).
Officers responded to a domestic disturbance at defendant’s address. He’d opened the door for them to talk, but then shut the door, attempting to end the encounter. The officer put his foot in the door, and this was with exigency based on what the officer had on the dispatch call and what he’d learned there. United States v. Daniel, 2019 U.S. Dist. LEXIS 191923 (D. Mont. Nov. 5, 2019).*
The officer approached defendant’s vehicle pursuant to a 911 call to request a welfare check on the driver, but he did not have particularized suspicion to conduct a DUI investigation at the time he was assured defendant was not in peril or in need of assistance. City of Missoula v. Metz, 2019 MT 264, 2019 Mont. LEXIS 740 (Nov. 5, 2019).
The search warrant for defendant’s property was justified from observations from a protective sweep or a parole officer’s search. United States v. Wingrove, 2019 U.S. Dist. LEXIS 191764 (S.D. W.Va. Nov. 5, 2019).*
Defendant’s open consent to search a vehicle included the spare tire compartment because it’s known that people secrete things there. United States v. Stevens, 2019 U.S. Dist. LEXIS 191954 (W.D. Ky. Sept. 29, 2019), adopted, 2019 U.S. Dist. LEXIS 190842 (W.D. Ky. Nov. 4, 2019).
The affidavit for this search warrant does not adequately describe why the police need a search warrant and what it is for: an investigation into child abuse and neglect, drugs, or firearms and why they are illegally possessed. Nevertheless, after a lengthy discourse on the four Leon factors, the court finds the good faith exception applies. United States v. Maynes, 2019 U.S. Dist. LEXIS 191502 (D.N.M. Nov. 5, 2019).*
In an immigration appeal, failure to argue an egregious Fourth Amendment violation in the opening brief was waiver. Hernandez-Romero v. Barr, 2019 U.S. App. LEXIS 33069 (9th Cir. Nov. 5, 2019).*
Posted inConsent, Good faith exception|Comments Off on W.D.Ky.: Consent to search a vehicle includes the spare tire compartment
During a no-knock entry with a battering ram by plain-clothes officers for marijuana, plaintiff heard a commotion from the back of his house, reached for a gun, and was shot at 29 times, hit 9 times, and paralyzed. The officer who shot him claimed that plaintiff fired first, but it turned out his gun was never fired. That officer then changed his story. Plaintiff survives summary judgment and gets a trial for excessive force because the law was clearly established at the time. Merely holding a firearm pointed down at one’s side is not a threat. Betton v. Belue, 2019 U.S. App. LEXIS 33034 (4th Cir. Nov. 5, 2019): Continue reading →
The affidavit for the search warrant, reformed after a Franks hearing, did not establish probable cause to search defendant’s home. The affidavit did not set forth facts showing defendant had a history of drug dealing to permit an inference that he would keep drug related evidence in his home. There was no affidavit evidence as to the time defendant was engaged in drug trafficking, facts connecting his residence to drug activity, or evidence that defendant had left or returned to the residence in connection with drug activity. The fact that defendant was seen near a car with a weighted bag did not suggest that this car was the one parked at the home or that it contained drugs. Suppression order affirmed. United States v. Roman, 2019 U.S. App. LEXIS 33060 (1st Cir. Nov. 5, 2019): Continue reading →
Posted inFranks doctrine, Nexus|Comments Off on CA1 affirms suppression order; reforming affidavit after Franks hearing shows no nexus to def’s house
An LA ordinance requires certain information from hotel and motel renters which survives analysis under Patel. The information is not private information, and it’s not even a search. If it was, it would be a valid administrative search. City of L.A. AIHM Hotel/Motel Ass’n v. City of L.A., 2019 U.S. Dist. LEXIS 191232 (C.D. Cal. Nov. 1, 2019): Continue reading →
The Crime Report: Pre-Arrest Diversion: Where You Live Can Determine Whether You Go to Jail (“Alternatives to detention are now widely available across the U.S. to justice-involved individuals who pose no risk to public safety. But a new survey shows that how they are implemented and who benefits from them can depend on a ‘stunning variety’ of state statutes and practices.”)
Posted inArrest or entry on arrest|Comments Off on The Crime Report: Pre-Arrest Diversion: Where You Live Can Determine Whether You Go to Jail
The extension of the stop wasn’t based on reasonable suspicion; it was the officer trying to determine why defendant’s license was revoked and whether defendant was who he said he was. “Under these circumstances, it is clear that the mission of the stop was incomplete up to the point that Stevens consented to the search of his vehicle. Thus, the length of the stop did not violate Stevens’s rights in any way.” United States v. Stevens, 2019 U.S. Dist. LEXIS 190842 (W.D. Ky. Nov. 4, 2019).
Defendant wasn’t under arrest nor was it even suggested to him that he was, so how could he flee arrest? Moreover, the police had no cause for an arrest. The claim that the officers said they smelled marijuana to justify the arrest of a nearby car that briefly stopped and drove off, a fact never noted in any paperwork or a search warrant application, “strains credibility.” United States v. Howard, 2019 U.S. Dist. LEXIS 190999 (M.D. Tenn. Nov. 4, 2019).
Defendant claimed a lack of consent due to a language barrier. The court finds one officer was proficient enough in Spanish to effectively communicate the request for consent. United States v. Molina-Lopez, 2019 U.S. Dist. LEXIS 191087 (W.D. Mo. Sept. 24, 2019).
Plaintiff was ordered by family court to do a drug test. Abstention prevents federal court from review. Leave to amend is granted, if he can. Bro Bashiri Coleman-Bey v. Childrens Aid Soc’y, 2019 U.S. Dist. LEXIS 191013 (S.D. N.Y. Oct. 30, 2019).*
Posted inAbstention, Consent|Comments Off on W.D.Mo.: Officer’s limited knowledge of Spanish still enabled her consent
After child pornography was found exchanged on a peer-to-peer connection from a specific IP address, government agents got a search warrant for that home address in apartment 242. Once there, they determined that no devices there were involved. They found, instead, that someone else was using the home’s wireless from outside without authorization. With a Moocherhunter device and using a wireless antenna, they were able to determine the person accessing 242’s wireless was likely in 243. They waited for that person to access the P2P network again, which was about a week later. “Based on the Moocherhunter data, Special Agent Phirippidis obtained a search warrant for Apartment 243. When Special Agent Phirippidis and his colleagues executed the search warrant, they discovered evidence of child pornography.” First, while defendant’s wireless signal emanated from his home, it reached outside the home to another home. There was no physical intrusion into his home. Thus, no subjective reasonable expectation of privacy. Second, the court concludes that society is not willing to recognize a reasonable expectation of privacy in defendant’s actions. United States v. Norris, 2019 U.S. App. LEXIS 32890 (9th Cir. Nov. 4, 2019): Continue reading →
Posted inReasonable expectation of privacy|Comments Off on CA9: Use of another’s wireless router was not protected by any REP; police tracked def with Moocherhunter
When one defendant wanted to leave the encounter with the police, there was no reasonable suspicion for his patdown and he should have been allowed to leave without the patdown. United States v. Steffens, 2019 U.S. Dist. LEXIS 190597 (N.D. Iowa Nov. 4, 2019).*
Defendant did a conditional plea, but the search was valid under the automobile exception. United States v. Whittingslow, 2019 U.S. App. LEXIS 32916 (8th Cir. Nov. 4, 2019).*
Posted inAutomobile exception, Reasonable suspicion|Comments Off on N.D.Iowa: There was no RS as to def who was talking with another for whom there was; def should have been allowed to leave
"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.
