Police had no duty to let defendant call somebody to come and get his car rather than it be inventoried. “But WPD’s policy and practice plainly do not dictate that officers affirmatively inquire about the availability of a third-party driver. Nor does the law impose such a requirement. The First Circuit has clearly stated that ‘law enforcement officials are not required to give arrestees the opportunity to make arrangements for their vehicles when deciding whether impoundment is appropriate.’” United States v. Hardy, 2019 U.S. Dist. LEXIS 147076 (D. Mass. Aug. 29, 2019).
The parties are directed to brief whether defendant’s privacy settings on his Facebook account give him standing he wouldn’t otherwise have. United States v. Chavez, 2019 U.S. Dist. LEXIS 147023 (W.D.N.C. Aug. 29, 2019).*
Posted inInventory|Comments Off on D.Mass.: Police had no affirmative duty to allow def to call for help to remove car to avoid inventory
“The facts here indicate that a reasonable person in the officers’ position would indeed believe that entry was necessary to prevent physical harm. The reasonableness standard of the Fourth Amendment requires us to examine the officers’ actions in response to the information they had been given. When those officers arrived at the house, they had only the information they received from the dispatcher. Based on that information, they could have reasonably believed that Ms. Baker was inside with Kyle, that he was armed in some fashion, with the knife or the shotgun, or both, and that he was threatening her. We have previously considered similar cases.” Baker v. City of Trenton, 2019 U.S. App. LEXIS 26207 (6th Cir. Aug. 29, 2019).*
Posted inEmergency / exigency|Comments Off on CA6: Officers acted reasonably in entering house based on dispatcher’s call of young man threatening mother with knife or gun or both
EMTs who assessed plaintiff for mental issues and took her away were entitled to qualified immunity. No case could be cited that they violated the Fourth Amendment. Ellison v. Hobbs, 2019 U.S. App. LEXIS 26263 (11th Cir. Aug. 29, 2019).*
Social workers don’t get qualified immunity at the pleading stage because it has been settled for a decade in this circuit that their actions were a potential violation of due process and the Fourth Amendment. Romero v. Brown, 2019 U.S. App. LEXIS 26249 (5th Cir. Aug. 29, 2019).*
The district court suppressed one of defendant’s searches that led to his arrest. While in jail, he made incriminating phone calls about the location of drugs. Assuming that the call from the jail was a fruit of the unreasonable search, the court refuses to suppress under Strieff finding it attenuated. United States v. Reed, 2019 U.S. App. LEXIS 26282 (5th Cir. Aug. 29, 2019).
2255 petitioner made conclusory claims without factual support that his attorney failed to provide effective assistance of counsel in a search claim. He didn’t overcome the presumption of effective representation. James v. United States, 2019 U.S. Dist. LEXIS 147043 (E.D. Tenn. Aug. 29, 2019).*
Posted inAttenuation, Ineffective assistance|Comments Off on CA5: Assuming def’s suppressed search led to custody and his incriminating jail call, the call was attenuated under Strieff
Probable cause was shown for a search warrant for defendant’s house. “The complaint in Gacy did not cite to a specific crime; like this case, it was concerned with a missing person. Gacy, 103 Ill. 2d at 19-20. Since the complaint and affidavit indicated more than the defendant was the last person to see Carrie alive—also that he had her car and her debit card, and that she was not dropped off at home as he claimed—there was probable cause for the warrant.” That was nexus. People v. McVay, 2019 IL App (3d) 150821, 2019 Ill. App. LEXIS 727 (Aug. 30, 2019).
Officers had good reason to talk to defendant because he was with a woman who passed out from OD’ing in a restaurant–he needed to know what was going on. The conversation resulted in reasonable suspicion for further detention and then probable cause for a search of his car. United States v. Beverly, 2019 U.S. Dist. LEXIS 147411 (S.D. W.Va. Aug. 29, 2019).*
Posted inCommunity caretaking function, Nexus|Comments Off on IL: PC was shown for the SW for def’s house; he was not just the last person to see her alive, he had her car and credit cards
The Terms of Service of Yahoo! email provide defendant no reasonable expectation of privacy in child pornography that was transmitted by its service. In addition, Yahoo!’s search was a private search. United States v. Wolfenbarger, 2019 U.S. Dist. LEXIS 148822 (N.D. Cal. Aug. 31, 2019): Continue reading →
The state failed to show exigency for hot pursuit. Defendant fled to a dwelling where he was a frequent guest. There was no indication of a risk of destruction of evidence. State v. Foreman, 2019 Del. Super. LEXIS 416 (Aug. 29, 2019): Continue reading →
Posted inUncategorized|Comments Off on DE: State failed to show exigency for “hot pusuit,” or even pursuit
After an accident where defendant was alleged to have killed a motorcyclist, defendant waited for the police at a gas station. They took him to the scene and then arrested him. This was followed by a warrantless blood draw. The trial court suppressed and it is affirmed. There were no exigent circumstances under Texas law for the warrantless arrest or the blood draw. State v. McGuire, 2019 Tex. App. LEXIS 7955 (Tex. App. – Houston (1st Dist.) Aug. 29, 2019).*
“In the present case, the affidavit states that the informant placed phone calls to Defendant in the presence of officers and arranged to meet with Defendant to purchase marijuana. Officers observed Defendant arrive at the location the informant and Defendant had arranged to meet. Officers listened to the controlled drug buys via electronic surveillance. [Defendant in the recordings said more marijuana was coming to him.] Following the controlled drug buys, officers took possession of several pounds of marijuana. Considering the totality of the circumstances, we conclude that the information in the affidavit is sufficient to establish probable cause for issuance of the search warrants.” State v. Allison, 2019 Tenn. Crim. App. LEXIS 537 (Aug. 29, 2019).*
The trial court did not err by granting defendant’s motion to suppress blood evidence obtained in violation of the Fourth Amendment. The State failed to prove that the warrantless blood draw was justified by exigent circumstances: the collision did not result in serious injuries, there were procedures in place that enabled judges to sign search warrants by fax, and nothing in the record suggested that evidence-destroying medical treatment was imminent. Also, it was not objectively reasonable for the trooper to decide that in the time it would take to secure a warrant, the efficacy of a search would be significantly undermined. State v. Couch, 2019 Tex. App. LEXIS 7867 (Tex. App. – Austin Aug. 29, 2019).
Probable cause was shown for issuance of a GPS warrant for defendant’s vehicle. The CI was corroborated by other parts of the investigation. United States v. Bradley, 2019 U.S. Dist. LEXIS 145739 (W.D. Ky. Aug. 26, 2019).
USM’s fugitive task force has the power to arrest state offenders by federal statute, 28 U.S.C. § 564, and the AG can delegate them whenever to assist in arresting state fugitives. 34 U.S.C. §§ 41503-04. Therefore, they were authorized to conduct a search of the person on arrest. [Virginia v. Moore would say so, too, where the only question is reasonableness.] Defendant was on probation and was subject to warrantless searches, so his car search was valid, too. United States v. Tolley, 2019 U.S. Dist. LEXIS 145726 (D. Mont. Aug. 28, 2019).
Even if the challenged paragraph was removed from the affidavit, probable cause still exists. United States v. Saunders, 2019 U.S. Dist. LEXIS 145921 (E.D. Va. Aug. 28, 2019).*
Defendant’s CSLI was obtained under a state statute that had a probable cause requirement, and the state showed it. There were two statutes involved, and the wrong one was cited, but the state nonetheless met the standards of both. The court finds the statutes satisfied. Carpenter was also complied with because there was a probable cause finding. State v. Harvey, 2019 Minn. LEXIS 533 (Aug. 28, 2019).
Defendant’s 2255 claim of ineffective assistance of counsel for failing to file a motion to suppress is rejected as belied by the record. “In light of Hill’s sworn statements during the Rule 11 proceedings, absent extraordinary circumstances, Hill’s instant statements to the contrary are ‘palpably incredible.’ Lemaster, 403 F.3d at 222 (citation omitted).” Moreover, he couldn’t be prejudiced because it would be harmless on the totality. United States v. Hill, 2019 U.S. Dist. LEXIS 145940 (E.D. Va. Aug. 28, 2019).*
It took nearly six months to search defendant’s cell phone after he consented to it because of other important matters the officer was working on. “The Mitchell court acknowledged that officer workload considerations could justify a delay in seeking a warrant. Mitchell, 565 F.3d at 1353. Given Bradley’s diminished possessory interest in the Subject Phone and the diligence of Harmon to pursue this case, the Court finds that the Mitchell decision does not apply. In this case, under these circumstances, the balance of the competing interests weighs in favor of finding that the delay in securing the warrant did not violate Bradley’s Fourth Amendment rights.” United States v. Bradley, 2019 U.S. Dist. LEXIS 146533 (C.D. Ill. July 17, 2019), adopted, 2019 U.S. Dist. LEXIS 145762 (C.D. Ill. Aug. 26, 2019).
There was probable cause shown to the state trial judge for issuance of the search warrant. The IP address at the home was associated with child pornography, and defendant, one of the known residents there, was known to have had prior association with child pornography. United States v. Vandyck, 2019 U.S. App. LEXIS 26045 (9th Cir. Aug. 28, 2019).*
Posted inCell phones, Warrant execution|Comments Off on C.D.Ill.: Six month delay in searching cell phone wasn’t unreasonable considering how busy the officer was, which the government proved
Defendant’s motion to suppress a FISA was properly denied because his Fourth Amendment facial challenge failed given his concession that the emergency provision could be constitutionally applied in some circumstances. Even if the provision had to be narrowly construed, he failed to argue that the government could not have met that standard. Also, his motion to suppress evidence obtained from the search of his electronic devices was properly denied because the warrant was most naturally read to contemplate the off-site search of his devices after their seizure based on an attachment. The court notes he “does not make a clear argument as to how his challenge to the District Court’s denial of each of these motions to suppress relates to each of his convictions,” but the court decides the merits anyway. United States v. Wright, 2019 U.S. App. LEXIS 25965 (1st Cir. Aug. 28, 2019).
Playpen warrant sustained. United States v. Taylor, 2019 U.S. App. LEXIS 25950 (11th Cir. Aug. 28, 2019).*
Posted inCell phones|Comments Off on CA1: Common sense reading of SW and attachment contemplated off-site search
Defendant’s cell phone search was based on a statement in violation of Miranda, and it must be suppressed. When the affidavit for the search warrant for defendant’s CSLI has the information removed that was the product of that search, there is no nexus for the cell phone or the CSLI information. Commonwealth v. Vasquez, 2019 Mass. LEXIS 505 (Aug. 28, 2019).
“Here, defense counsel’s assertion of an inappropriate argument in support of the belated suppression motion, and counsel’s complete failure to challenge the admissibility of physical evidence seized from the defendant’s home based on the Miranda violation … prejudiced the defendant and rendered counsel’s representation ineffective ….” People v. Corchado, 2019 NY Slip Op 06408, 2019 N.Y. App. Div. LEXIS 6391 (2d Dept. Aug. 28, 2019).*
A request for consent within 20 seconds of handing the tickets to the defendant did not unreasonably extend the stop. The court finds the consent voluntary. United States v. Perez-Almeida, 2019 U.S. Dist. LEXIS 144705 (E.D. Va. Aug. 26, 2019).
Defendant claims that the seized drugs were not his. Therefore, his counsel couldn’t be ineffective for not filing a motion to suppress that would not prevail. Doss v. United States, 2019 U.S. Dist. LEXIS 146609 (N.D. Ohio Aug. 28, 2019).*
“Petitioner cannot re-litigate these claims in a § 2255 motion. … Petitioner’s Fourth Amendment claims also fail on the merits because no constitutional violation occurred.” Ingram v. United States, 2019 U.S. Dist. LEXIS 146508 (W.D. N.C. Aug. 28, 2019).*
A city code enforcement officer entering plaintiff’s curtilage to have towed two cars in the front yard implicated the Fourth Amendment. There was no right to be heard about the basis of the seizure, so due process is implicated. The law on due process in this situation was settled, and the state actor doesn’t get qualified immunity. The private actor doesn’t get qualified immunity as a matter of law either because that’s only for public officials. McDonald v. Keahey, 2019 Ala. Civ. App. LEXIS 113 (Aug. 23, 2019).
Defendant disclaimed ownership of a bag so he abandoned it. Even so, its search was valid as a probation search. United States v. Cuthbert, 2019 U.S. Dist. LEXIS 146567 (D. Ida. Aug. 26, 2019).*
Defendant retained new counsel and moved to reopen his suppression hearing alleging former counsel was ineffective for not raising a better argument. The motion is denied because this claim doesn’t satisfy the standard for reopening. The issue was available and waived. United States v. Somerville, 2019 U.S. Dist. LEXIS 144934 (W.D. Pa. Aug. 27, 2019), prior opinion, 2019 U.S. Dist. LEXIS 47485 (W.D. Pa. Mar. 22, 2019).
HSI installed GPS on a package in Queens (E.D.N.Y.) and it was followed to and delivered in the Bronx (S.D.N.Y.). Assuming there was a technical violation of Rule 41, the court doesn’t find that alone enough to suppress under Herring because it’s certain the officers were acting in good faith at all times. United States v. Rico, 2019 U.S. Dist. LEXIS 144647 (S.D. N.Y. Aug. 26, 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.
