Officers had specific and articulable facts of persons that might be in the house, so a protective sweep was permitted. This included opening a closet door where an assault rifle was found. United States v. Solano-Mendoza, 2019 U.S. App. LEXIS 30021 (11th Cir. Oct. 7, 2019).*
In a USDJ review of a USMJ’s ruling on probable cause, the evidence supports the USMJ’s credibility determination. Thus, no second hearing is required. The defendant’s overly generous reading of one officer’s report that they could see in the car before the door was opened isn’t supported by the record. United States v. Quintin, 2019 U.S. Dist. LEXIS 173304 (E.D. Ky. Oct. 7, 2019).*
Posted inUncategorized|Comments Off on CA11: There was RS others were in the house to justify a protective sweep which includes opening a closet
WRAL.com: Border Patrol agent accused of ‘textbook racial profiling’ by David Sharp (“The U.S. Border Patrol’s suspicions about a family were aroused because they appeared to be of “Central-American origin” and because they spoke Spanish while shopping at a store in Maine, an advocacy group complained Monday. An attorney for the American Civil Liberties Union of Maine described the agent’s comments, outlined in a Border Patrol affidavit in federal court, as ‘textbook racial profiling.'”)
Posted inRacial profiling|Comments Off on WRAL.com: Border Patrol agent accused of ‘textbook racial profiling’
Defendant was not in custody for Miranda purposes. The officers went back and forth between him and his victim in his own house. He wasn’t restrained. The trial court erred in suppressing his statement. People v. Davis, 2019 CO 84, 2019 Colo. LEXIS 1031 (Oct. 7, 2019).*
Defendant wasn’t in custody when CBP talked to her as she picked up her luggage after customs. United States v. Salinas, 2019 U.S. Dist. LEXIS 173592 (D. Haw. Oct. 7, 2019).*
Posted inSeizure|Comments Off on Two on Miranda custody
“The evidence at best suggests that Young was securing the information he eventually turned over to the FBI from NWTM as a form of personal insurance against any action he suspected might be taken against him. There is no evidence that at the time he was securing this information that he was doing so at the direction of the FBI or any other law enforcement entity.” United States v. Hansen, 2019 U.S. Dist. LEXIS 173838 (W.D. Wash. Oct. 7, 2019).*
Defendant’s conviction for possession of drugs was improper because the trial court erred by not suppressing evidence found during a warrantless search of a backpack that was sitting behind her at the time of her arrest. The State failed to establish that she had actual and exclusive possession of the backpack at, or immediately preceding, her arrest. Defendant’s backpack was merely sitting behind her at the time of her arrest and the State pointed to no evidence that she was holding, wearing, or carrying the backpack at any time during her contact with the officer; the officer himself testified that no one had reported seeing defendant carrying the backpack at any earlier time. State v. Alexander, 2019 Wash. App. LEXIS 2555 (Oct. 7, 2019).*
Posted inAdmissibility of evidence, Private search|Comments Off on W.D.Wash.: A private actor who stole evidence as “insurance” was not an agent of the state for 4A purposes
Defendant was on a parole and drew her PO’s suspicion when she said she was putting money on a card at CVS since she was unemployed. They made a home visit and smelled methamphetamine cooking. They had reasonable suspicion for an entry into her home. She was under a warrantless search condition. United States v. Swisher, 2019 U.S. Dist. LEXIS 173123 (D. Neb. Sept. 20, 2019).*
Defendant’s claim defense counsel was ineffective for not filing a motion to suppress his social media accounts is denied because there’s nothing in the record to show that it would have been granted if made. People v. Thomas, 2019 NY Slip Op 07204, 2019 N.Y. App. Div. LEXIS 7199 (4th Dept. Oct. 4, 2019).*
Plaintiff sought a preliminary injunction against wildlife checkpoint stops that included nonhunters and fishers. The court finds that there is little likelihood of success on the merits. The state’s interest in protection of wildlife is high, and, on balance, the intrusion on those not involved in hunting and fishing is minimal, limited to one question. If they answer no to the question where they’d been hunting or fishing, and it isn’t otherwise apparent, they are on their way. Their seizure is minimal and not sufficiently unreasonable on the totality to merit injunctive relief. Tanner v. Idaho Dep’t of Fish & Game, 2019 U.S. Dist. LEXIS 172950 (D. Idaho Oct. 3, 2019): Continue reading →
Posted inAdministrative search|Comments Off on D.Idaho: Idaho fish and game checkpoints that minimally detain nonhunters and fishers isn’t likely a violation of 4A
U.S. Probation was supervising defendant and they suspected child pornography on his cell phone. They enlisted HSI to search the phone. This did not violate federal law; USPO can get assistance to conduct a search. United States v. Johnson, 2019 U.S. Dist. LEXIS 173063 (D. Idaho Oct. 4, 2019).
The “district court properly dismissed plaintiffs’ Fourth Amendment and Fourteenth Amendment claims, and claims brought pursuant to Monell v. Department of Social Services … which alleged that defendants interviewed the minor children while they were at school without Capp’s consent. The panel held that the first amended complaint contained no facts as to whether the interviews were conducted without either parent’s permission, the length of the interviews, or the specific circumstances of the interviews. Moreover, the panel held that even if plaintiffs had pleaded a plausible Fourth Amendment claim, defendants would be entitled to qualified immunity because the right of minor children to be free from unconstitutional seizures and interrogations by social workers had not been clearly established.” Capp v. Cty. of San Diego, 2019 U.S. App. LEXIS 29928 (9th Cir. Oct. 4, 2019),* withdrawing and superseding 936 F.3d 899 (9th Cir. Aug. 30, 2019).*
At a probable cause determination, the legality of the arrest for an attempt at applying the exclusionary rule isn’t appropriately litigated. That comes after the charges land in Superior Court. Barajas v. Appellate Div. of the Superior Court, 2019 Cal. App. LEXIS 975 (2d Dist. Oct. 4, 2019): Continue reading →
Posted inArrest or entry on arrest, Exclusionary rule|Comments Off on Cal.2: The exclusionary rule doesn’t apply in PC determations for arrest; that’s to be litigated later
This is a second appeal from the Vanderbilt dorm rape cases. (The first is here.) The search warrant for defendant’s room and person allowed for seizure of his cell phone, but it wasn’t there. The police found it later and searched it without a separate warrant, using 23 images at trial. On the totality of the evidence, the illegal search was harmless error in light of the proof at trial. State v. Banks, 2019 Tenn. Crim. App. LEXIS 626 (Oct. 4, 2019): Continue reading →
Posted inCell phones|Comments Off on TN: Illegal warrantless search of cell phone was harmless error on this record
“In conjunction with these [in the totality of] circumstances, Houser and Williams’ statements against their penal interest were sufficient to reasonably assure the magistrate that the information they provided was reliable.” While the fact defendant was dealing drugs from a motel would suggest the transient nature of the occurrence and support staleness, the quantity of drugs alleged to be there overcame that. United States v. Bennerson, 2019 U.S. Dist. LEXIS 172483 (E.D. Tenn. Oct. 4, 2019), adopting 2019 U.S. Dist. LEXIS 173101 (E.D. Tenn. Aug. 26, 2019).
There was probable cause to arrest street vendors for being too close to the curb in violation of NYC law, and the district court erred in granting summary judgment. Crescenzi v. City of New York, 2019 U.S. App. LEXIS 29670 (2d Cir. Oct. 3, 2019).*
Posted inStaleness|Comments Off on E.D.Tenn.: Alleged quantity of drugs can help overcome a staleness argument
“‘A search warrant affidavit need not allege that unlawful activity occurred at the place to be searched; the affidavit need only establish a nexus between the place and the criminal activity.’ United States v. McCown, 762 F. App’x 732, 734 (11th Cir. 2019) (citations omitted).” Having a substantial quantity of drugs in the car after just leaving one’s house shows nexus. United States v. Vazquez, 2019 U.S. Dist. LEXIS 172736 (M.D. Fla. Oct. 4, 2019).
Defendant’s stop was justified by his speeding, and the officer said on the video he smelled marijuana, and defendant admitted 20 minutes into the stop that he smoked in the car. That was probable cause. United States v. Maurstad, 2019 U.S. Dist. LEXIS 172166 (D. Minn. Aug. 21, 2019).*
Posted inNexus, Plain view, feel, smell|Comments Off on M.D.Fla.: Possession of a large quantity of drugs in car after just leaving house shows nexus to house for drugs
“The Probation Department employees’ alleged threat to send Repotski back to jail does not state a constitutional violation cognizable under § 1983. See McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983) (noting that mere threats do not amount to constitutional violations). Furthermore, to the extent that Yoder alleged that the Probation Department employees violated her Fourth Amendment rights, her claim is not ripe, as there has been no search of a place in which Yoder has a reasonable expectation of privacy. See Texas v. United States, 523 U.S. 296, 300 (1998) (stating that a claim is not ripe for adjudication if it rests on some contingent future event).” Yoder v. District Attorney of Montgomery County, 2019 U.S. App. LEXIS 29909 (3d Cir. Oct. 4, 2019).
Plaintiff’s decedent was shot by an officer during a buy-bust operation when he didn’t move his hands to plain sight fast enough. The court finds enough fact disputes that the officer does not get qualified immunity. Brown v. Nocco, 2019 U.S. App. LEXIS 29572 (11th Cir. Oct. 2, 2019).*
WaPo: US, UK reach deal to make it easier to get electronic data by Eric Tucker (“The United States and United Kingdom signed an agreement Thursday that officials say will speed up dozens of criminal and national security investigations and make it easier for law enforcement to obtain the electronic evidence they need. The deal would let American and British authorities seek electronic data in investigations directly from technology companies based in the other country, instead of the time-consuming process of going through the government.”)
Posted inComputer and cloud searches|Comments Off on WaPo: US, UK reach deal to make it easier to get electronic data
The officer gave advice of DUI rights as required by state law later held unconstitutional. Under Illinois v. Krull, the court finds the officer acted in good faith, and the BAC test is not suppressed. State v. Perkins, 2019 Kan. LEXIS 331 (Oct. 4, 2019).
At least the good faith exception saved this search even if there was no probable cause, a question the court doesn’t even decide because it instead decides on the good faith exception alone that there was a fair basis for crediting the information and executing the warrant. United States v. Forrester, 2019 U.S. Dist. LEXIS 172068 (M.D. Tenn. Oct. 3, 2019).*
Posted inExclusionary rule, Good faith exception|Comments Off on KS applies Krull for GFE to statutory DUI advice of rights later held unconstitutional
Defendant was a part owner of a business with computer access cards to get in doors. He still didn’t have a sufficient reasonable expectation of privacy in the computer storage system of a surveillance video system showing where he committed an assault. He claimed a search warrant was required for the video. The state also raised consent of another person with an interest, but that’s now moot [which they should have decided in case the first argument is challenged]. State v. Koch, 2019-Ohio-4099, 2019 Ohio App. LEXIS 4175 (2d Dist. Oct. 4, 2019): Continue reading →
Posted inReasonable expectation of privacy, Standing|Comments Off on OH2: Part owner of a business didn’t have standing to challenge seizure of surveillance DVR with video of him committing assault
Plaintiff states a claim for a visual strip in a stationhouse search forbidden for a misdemeanor. There are fact questions for trial as to what the officers knew about alleged possession of contraband. Beauvoir v City of New York, 2019 NY Slip Op 07149, 2019 N.Y. App. Div. LEXIS 7160 (1st Dept. Oct. 3, 2019).*
The jury’s failure to return damages for plaintiff’s broken nose when he was struck during the raid with an officer’s ballistic shield jammed in his face is reversed. Shimukonas v City of New York, 2019 NY Slip Op 07147, 2019 N.Y. App. Div. LEXIS 7153 (1st Dept. Oct. 3, 2019).*
Posted inStrip search|Comments Off on NY1: Ptf stated claim for unreasonable strip search at stationhouse for a misdemeanor
“Though Defendant may have had an ‘ongoing and meaningful connection to [Zotigh’s] home as a social guest’ at certain times prior to the searches, Zotigh’s termination of their relationship, her refusal to allow Defendant to stay in her mobile home while she was away, and her decision not to give him a permanent key to the mobile home illustrate that Defendant could not claim an objectively reasonable expectation of privacy in Zotigh’s mobile home as a social guest at the time the warrantless searches occurred.” United States v. Bullcoming, 2019 U.S. Dist. LEXIS 172300 (W.D. Okla. Oct. 3, 2019).
Officers executing a search warrant seized prescription drugs, but it turned out that plaintiff had valid prescriptions. The officers got summary judgment which is affirmed, essentially without meaningful comment. Jones v. Eder, 2019 U.S. App. LEXIS 29755 (5th Cir. Oct. 2, 2019).*
Posted inReasonable expectation of privacy, Standing|Comments Off on W.D.Okla.: Def’s on-again off-again relationship with decedent didn’t give him standing in a search of her premises when they were off-again; he had no key
"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.
