Defendant argued that the search of his cell phone violated the Fourth Amendment because more was seized than the warrant allowed. Since none of the excess was offered by the state, he wasn’t prejudiced, and the over seizure didn’t void the entire warrant. State v. Haithcox, 2019 MT 201, 2019 Mont. LEXIS 375 (Aug. 20, 2019).
Trial counsel wasn’t ineffective for not raising an objection CSLI information at trial because case law didn’t support it at the time. Walker v. State, 2019 Ga. LEXIS 509 (Aug. 19, 2019).*
The affidavit for search warrant misstated that defendant was the person selling drugs out of the house. Even removing that fact from the affidavit, there still remains probable cause to believe that drugs would be found in the house. Those parts of the affidavit are now shown to be wholly false. State v. Bingham, 2019-Ohio-3324, 2019 Ohio App. LEXIS 3404 (3d Dist. Aug. 19, 2019).
Defendant complained that the affidavit for search warrant omitted that no drugs were seen during a sweep before the warrant was obtained. This is not material. Even if it was added it, probable cause still exists. United States v. Porter, 2019 U.S. App. LEXIS 24562 (6th Cir. Aug. 19, 2019).*
Posted inFranks doctrine|Comments Off on OH3: Removing falsity from SW affidavit that def sold drugs from house still leaves PC that someone did
Defendant’s wife opened a thumb drive in defendant’s briefcase looking for pictures of herself and his housekeeper when he was overseas. She found a picture of her daughter asleep unclothed from the waist up, and took it to the police who also searched it. Their search exceeded the private search. The court rejects the notion that opening the thumb drive was a total loss of a reasonable expectation of privacy in it. The motion to suppress everything that exceeded the private search should have been granted. The case is remanded for consideration of whether the private search alone provided probable cause to search the thumb drive. State v. Terrell, 2019 N.C. LEXIS 784 (Aug. 16, 2019).
The state had probable cause to believe that the juvenile was involved in a robbery of the victim and her death. A search warrant for his house produced his clothing with the victim’s DNA on it, and his phone and which showed that it had connected to the victim’s wifi network putting him in or near the house. State v. O.E.W., 2019 Ind. App. LEXIS 378 (Aug. 19, 2019).*
Posted inPrivate search, Probable cause|Comments Off on NC: Police exceeded private search of thumb drive, and it’s suppressed
The officer’s warrantless entry into the common area of a rooming house, even though the door was unlocked, intruded into a private area where defendant retained a reasonable expectation of privacy. This was not an area open to the public. State v. Williams, 2019 N.J. Super. LEXIS 130 (Aug. 19, 2019).
Defendant is charged with being a felon in possession. The circumstances were suspicious, and then defendant fled when he saw a police car. He was finally captured, and only then was he seized. The gun was reasonably found. United States v. Woods, 2019 U.S. Dist. LEXIS 139832 (D. Nev. Aug. 19, 2019).*
Courts have been expanding privacy protections for law enforcement access to real-time cell tower data, a trend attorneys say eventually could include other location-based information.
. . .
Courts also may look to extend similar Fourth Amendment protections to law enforcement access to sensitive data that offers a window into private habits, such as internet protocol addresses and biometric trackers, attorneys say. Courts are likely to continue to limit government access to cell-site location information (CSLI), attorneys say.
Looking in the porch window is a violation of the curtilage and a search. Here, however, it was justified by the exigency of officer safety. United States v. Macdowell, 2019 U.S. Dist. LEXIS 139432 (W.D. Va. Aug. 19, 2019). As to the look itself: Continue reading →
Posted inCurtilage, Emergency / exigency|Comments Off on W.D.Va.: Looking through porch window was a search, but justified by officer safety
Officers had a right during a traffic stop to check criminal history, and that legitimately led to finding defendant’s search waiver. The Georgia search waiver is not complete, however, and more stringent than the one in Samson. He was handcuffed for officer safety and unMirandized. His statement about the gun, however, was custodial and must be suppressed. United States v. Williams, 2019 U.S. Dist. LEXIS 139438 (M.D. Ga. Aug. 19, 2019).
Based on the totality, the officer had reasonable suspicion to continue the stop of a tractor-trailer that had no license plate on the trailer, two occupants in the cab, fresh paint on the trailer, and inconsistent stories about their travels. The ultimate dog sniff was reasonable. United States v. Henderson, 2019 U.S. Dist. LEXIS 139853 (D. Neb. Aug. 19, 2019).*
Posted inReasonable suspicion, Seizure|Comments Off on M.D.Ga.: Def handcuffed for officer safety was unMirandized, and his statement admitting to gun that led to search for it suppresses both
Defendant challenges his wiretap because the investigators could have conducted more searches with warrants. Search warrants, however, are known to the targets: “However, the Court also credits the Government’s concern that isolated search warrants might have alerted the organization to the investigation and left the Government with limited evidence as to the larger conspiracy. Accordingly, the Government adequately explained how this traditional method would hinder investigative objectives.” United States v. Castaneda-Ontiveros, 2019 U.S. Dist. LEXIS 139504 (D. Kan. Aug. 19, 2019). Somewhat similar is United States v. Hawkins, 2019 U.S. App. LEXIS 24719 (11th Cir. Aug. 20, 2019) (but not mentioning the notoriety of conducting a search).*
When defendant was stopped, a warrant from California came up, and the officer was trying to confirm he was the guy and whether California would extradite. Defendant was told he wasn’t under arrest. While waiting, 46 minutes into the stop, a drug dog arrived and alerted on the vehicle. The officer was acting to resolve the issues as fast as he could, and the stop wasn’t unreasonably extended. United States v. Guzman, 2019 U.S. Dist. LEXIS 139901 (N.D. Ga. July 31, 2019).*
Posted inReasonable suspicion, Warrant execution|Comments Off on D.Kan.: In a wiretap case, resort to SWs would tip off the targets to the investigation, so they need not be relied upon first
A felony arrest without a warrant on probable cause is reasonable under the Fourth Amendment. “Legal process” doesn’t “kick in” until the first appearance before a judge or a warrant is prepared for statute of limitations purposes. [This is important to nonlawyers because I get an inmate letter about every other week stating that their arrest was unlawful because they were arrested without a warrant, a question that is moot after conviction, unless it led to an invalid confession.] Garcia v. San Antonio, 2019 U.S. App. LEXIS 24574 (5th Cir. Aug. 19, 2019): Continue reading →
Posted in§ 1983 / Bivens, Arrest or entry on arrest|Comments Off on CA5: “Legal process” for false arrest starts with the first appearance before a judge, not on actual arrest
The district court misapplied the Heck doctrine by assuming the search of plaintiff’s car was reasonable. The real question is whether the suit is to challenge the legality of the search. “On remand, the judge will need to resolve the parties’ dispute about the reasonableness of Kazmierski’s seizure of Brown (the impermissibility of which could also invalidate the search incident to it).” Brown v. Racine County, 2019 U.S. App. LEXIS 24774 (7th Cir. Aug. 20, 2019).
There was probable cause for the search warrant for defendant’s cell phone for alien smuggling and that which he claims was omitted from the search warrant affidavit doesn’t undermine probable cause at all. United States v. Navarro, 2019 U.S. Dist. LEXIS 140116 (D. Ariz. July 12, 2019).*
Posted in§ 1983 / Bivens, Abstention|Comments Off on CA7: USDC misapplies Heck by assuming challenged search was reasonable
The government seeks a subpoena to photograph defendant’s tattoos in an effort to corroborate gang membership. The motion to suppress is denied. “The Court is persuaded that the Government search contemplated by the description in the August 7 Letter is reasonable and permissible. Photographing Owens’s face, arms, torso, hands, and lower legs is a minimal invasion of privacy for a currently incarcerated individual like Owens. Moreover, the Government represents that it has reason to believe that the photographs will be probative of the violations it seeks to prove at trial. Therefore, the subpoena does not violate the Fourth Amendment.” It also doesn’t violate the Fifth Amendment. United States v. Owens, 2019 U.S. Dist. LEXIS 138392 (S.D. N.Y. Aug. 8, 2019).
Defendant wasn’t prejudiced by defense counsel’s failure to file a motion to suppress that would not have been granted. The search warrant was for marijuana and firearms. Following up on the CI’s report, officers saw marijuana there. Six assault weapons were also found, and defendant argued unfair prejudice from that because only a handgun was cited in the gun specification. Even if there was, it was harmless on this record considering the drug evidence and handgun came in. State v. Riffle, 2019-Ohio-3271, 2019 Ohio App. LEXIS 3362 (8th Dist. Aug. 16, 2019).*
Officers conducted a raid on hotel rooms for human trafficking evidence. Defendant’s name on a receipt was found in the room from 17 days earlier. He admits that he wasn’t a guest the night before or regularly before the raid. He lacks standing to challenge the search. United States v. Bell, 2019 U.S. Dist. LEXIS 138578 (E.D. Mich. Aug. 16, 2019).
Ohio’s drug overdose immunity statute protects defendant from what he had on him when he was treated for an overdose, including immediately thereafter in transport to the jail and being searched there. That which was discovered by a search before the overdose isn’t immune. State v. Miller, 2019-Ohio-3294, 2019 Ohio App. LEXIS 3378 (2d Dist. Aug. 16, 2019).*
Posted inStanding|Comments Off on E.D.Mich.: Def lacked standing in a hotel room he occasionally frequented but hadn’t been in for 17 days
The officer’s warrantless entry into defendant’s house was reasonable based on exigency of the potential for destruction of drugs. Once he was in the basement on a protective sweep, he found a firearm. Defendant argues his delay in the basement was for the purpose of searching. The court finds the delay was to await backup because the fear the risk was heightened was reasonable. United States v. Beazel, 2019 U.S. Dist. LEXIS 139126 (N.D. W.Va. July 8, 2019).
The district court credits that defendant didn’t want to file a motion to suppress, and he doesn’t show that one would be granted if it had been filed. Dailey v. United States, 2019 U.S. Dist. LEXIS 138613 (W.D. Mo. Aug. 16, 2019).*
Posted inIneffective assistance, Protective sweep|Comments Off on N.D.W.Va.: Delay in initiating protective sweep was reasonable because officer was waiting for backup
Officers had a search warrant for defendant’s car, but he also had a community corrections search waiver on file. (The latter wasn’t even acknowledged by the parties.) Defendant was suspected of an ongoing operation of drug selling, so the older information in the affidavit wasn’t stale. Defendant also argues that admission of the search warrant affidavit into evidence was error as hearsay. Based on all the evidence in the record, it’s harmless at best. In addition, the record isn’t clear that the jury ever saw it: all other exhibits say that they were published to the jury, but this one wasn’t. Bailey v. State, 2019 Ind. App. LEXIS 367 (Aug. 16, 2019).
Police responding to a disturbance at a trailer park encountered a woman. While talking to her, defendant walked up. The officer shined his flashlight to see defendant’s face, but lowered it when requested. Defendant was seen standing on a bag of methamphetamine. He was arrested for that, and his encounter was not an investigative stop. United States v. Turner, 2019 U.S. App. LEXIS 24491 (8th Cir. Aug. 16, 2019).*
Posted inSeizure|Comments Off on IN: Even if admitting SW affidavit at trial was error, it was harmless based on all the evidence
California law enforcement will need to justify use of force as necessary, rather than reasonable, when a bill is expected to be signed into law Monday. It will be among the country’s strictest.
Posted inExcessive force|Comments Off on NPR: Calif. Gov. Newsom Expected To Sign Bill Limiting Police Use Of Deadly Force
Defendant had previously been convicted of child pornography, and he had lifetime supervision with a “reasonable” search condition. Despite that, officers got a search warrant for his house and computers for another such offense. First, there was justification for a warrantless search of his house and computers under the release condition. Second, there was probable cause for the warrant. The images that caused the warrant were child pornography. Third, the search of his attic and seizure of a story he wrote was within the warrant. United States v. Scanzani, 2019 U.S. Dist. LEXIS 138697 (D. Mass. Aug. 16, 2019).
The request for consent to search defendant’s truck came while the officer was waiting for defendant’s ID to come back, so it didn’t prolong the stop. United States v. Forget, 2019 U.S. Dist. LEXIS 138634 (M.D. Fla. Aug. 16, 2019).
Posted inProbation / Parole search, Reasonable suspicion|Comments Off on D.Mass.: Def was on supervised release with a reasonable searches condition, and his CP search was reasonable with that and a SW
"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.
