DYS obtained an inspection order to enter petitioner’s house, but it was issued without specific probable cause to believe any specific acts were occurring inside. Probable cause was required for the order to enter. In the Interest of D.R., 2019 PA Super 230, 2019 Pa. Super. LEXIS 741 (July 26, 2019).
As a mere passenger, defendant has no standing in the car he was riding in that a quarter of a million in cash was seized from. United States v. Villa-Guillén, 2019 U.S. Dist. LEXIS 124799 (D.P.R. July 24, 2019).*
The mere fact the car was rented provided no indication to the officer that the defendant wasn’t permitted to drive it, thus no reasonable suspicion from that. Thus, the stop was unreasonably extended without reasonable suspicion. When the detention is unreasonably prolonged, it affects the passengers, too. Thus, the state’s standing argument misses the mark. The impoundment of the vehicle was thus unjustified and unreasonable. Commonwealth v. Tavares, 2019 Mass. LEXIS 430 (July 26, 2019).
Defendant had no reasonable expectation of privacy in a cell phone seized off another person. United States v. Hamlett, 2019 U.S. Dist. LEXIS 125248 (D. Conn. July 26, 2019).*
In an open carry state, more is required for reasonable suspicion, and here it was present. “The Court finds that, by the time Officer Gohn saw the firearm in plain view on the floorboard of the Chevy Cobalt and verbally confronted the Defendant about it, he had reasonable, articulable suspicion to justify a Terry stop of Defendant. To be sure, in states like Virginia where individuals are permitted to openly carry firearms, ‘the exercise of this right, without more, cannot justify an investigatory detention.’ United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013). But here, there were several articulable facts – beyond the mere presence of the unconcealed firearm – that were within Officer Gohn’s knowledge that justifiably aroused his suspicion that criminal activity was afoot.” United States v. Brown, 2019 U.S. Dist. LEXIS 125141 (E.D. Va. July 26, 2019).
Posted inReasonable suspicion|Comments Off on E.D.Va.: In an open carry state, more than presence of a gun is required for RS, and here the officers had it
There was probable cause for a search of defendant’s person, but there’s no evidence of exigency to justify it. A frisk produced no weapons, a drug dog didn’t alert on the car. Ultimately, he was made to empty his pockets, and there were drugs in a folded piece of paper next to cash. State v. Morgan, 2019 Tenn. Crim. App. LEXIS 445 (July 25, 2019).
Defendant didn’t stop his car immediately and drove two miles before pulling over where he didn’t speed up or evade. There was no evidence that defendant was a threat to the officer to justify a frisk. There also wasn’t any probable cause for a search. State v. Martinez, 2019 N.M. App. LEXIS 91 (July 25, 2019).*
Posted inSearch incident, Stop and frisk|Comments Off on TN: There was PC for a search of the person but no exigency
The USMJ denied an order to compel the target to use the “Touch ID” feature of his cell phone to open it. On appeal to the USDJ, surveying the cases, the court orders the target to use his finger because that involves no thought process involving the Fifth Amendment. In re a White Google Pixel 3 Xl Cellphone in a Black Incipio Case, 2019 U.S. Dist. LEXIS 125243 (D. Idaho July 26, 2019): Continue reading →
Posted inCell phones, Privileges|Comments Off on D.Idaho: Def can be forced to use finger on Touch ID feature to open phone
The trial court erroneously applied collateral estoppel from a forfeiture case to defendant’s criminal case. Brown v. State, 2019 Del. LEXIS 363 (July 22, 2019).
“I conclude that Trial Counsel’s strategy did not prejudice Lambert in any way. Lambert also claims that his refusal to take a plea agreement somehow bolsters his self-serving claim that he wished his Trial Counsel to contest that he was the owner of the firearm. This argument is specious since had Lambert pled guilty he would have lost his right to contest the search warrant and thus his only possible hope.” State v. Lambert, 2019 Del. Super. LEXIS 358 (June 27, 2019).*
Posted inIneffective assistance|Comments Off on DE: Collateral estoppel erroneously applied from a forfeiture case to a criminal case
Another case on inevitable discovery finds two of the three Brown factors satisfied. “Here, the officer discovered an arrest warrant that predated his encounter with Tatro. And Tatro has not argued the warrant was tainted, invalid, or related to the reasons the officer initiated the stop. Upon learning of the warrant, the officer had an independent duty to arrest Tatro entirely unrelated to the reasons for the initial stop. In other words, the arrest was lawful even if the initial seizure was not. And once the officer made a lawful arrest based on the warrant, he had the authority to search Tatro and her purse under the search incident to lawful arrest exception to the warrant requirement. The second factor strongly favors the State. See 136 S. Ct. at 2062-63. Again, however, no single factor controls and all factors must be considered. See Brown, 422 U.S. at 600-04.” The court remands to the trial court for more findings on the flagrancy question. State v. Tatro, 2019 Kan. LEXIS 198 (July 26, 2019).* Similar is State v. Christian, 2019 Kan. LEXIS 197 (July 26, 2019), decided at the same time.
Posted inInevitable discovery|Comments Off on KS: Inevitable discovery not fully developed and remanded
“The panel held that assuming the consent was voluntary and defendants exceeded the scope of the consent by shooting tear gas into the house, they were still entitled to qualified immunity. The panel held that given that defendants thought they had permission to enter plaintiff’s house to apprehend a dangerous, potentially armed, and suicidal felon barricaded inside, it was not obvious, in the absence of a controlling precedent, that defendants exceeded the scope of plaintiff’s consent by causing the tear gas canisters to enter the house in an attempt to flush the suspect out into the open. Officers Seevers and Winefield were therefore entitled to qualified immunity on this claim. [¶] Addressing the reasonableness of defendants’ search, the panel held that given the unusual circumstances, the need for specificity of precedent in the Fourth Amendment context, and controlling cases establishing that officers can sometimes damage a home during a search without violating the occupant’s Fourth Amendment rights, this was not an obvious case in which to deny qualified immunity without any controlling precedent clearly establishing that defendants violated plaintiff’s rights. Defendants were therefore entitled to qualified immunity on this claim as well.” (Summary by the court). West v. City of Caldwell, 2019 U.S. App. LEXIS 22184 (9th Cir. July 25, 2019).*
Posted in§ 1983 / Bivens, Qualified immunity|Comments Off on CA9: Use of tear gas to enter house, even where consent given, was not clearly unreasonable considering a dangerous, potentially armed, and suicidal felon was barricaded inside
The officer supposedly had reasonable suspicion early into the stop, but he delayed 24 minutes before even attempting to locate a drug dog and it was then found that a drug dog couldn’t get there for quite a while. The stop was thus not reasonable. State v. Arrizabalaga, 2019 Kan. App. LEXIS 51 (July 26, 2019).
This was not a case of “forced abandonment” caused by unlawful police conduct. The officer’s actions were all reasonable and lawful. Canfield v. State, 2019 Ind. App. LEXIS 333 (July 25, 2019).*
Posted inAbandonment, Reasonable suspicion|Comments Off on KS: If the officer had RS, he waited 24 minutes to call for a drug dog and then couldn’t get one for hours; stop too long and unreasonable
All the factors of inevitable discovery favor suppression of the evidence, even under Strieff. Moreover, for the state to claim inevitable discovery, it has plead it in the trial court and allow a record to be made. State v. Sanders, 2019 Kan. LEXIS 196 (July 26, 2019).
The question of good faith exception was raised in the district court for the first time on appeal from the lower court (which becomes the lowest appellate court level) but the record is incomplete. The parties here admit that it was briefed below although the briefs aren’t in the record. The admission is enough to show that it was raised below. State v. Kruse, 303 Neb. 799 (July 26, 2019).*
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Posted inBurden of pleading, Inevitable discovery|Comments Off on KS: The state has to plead inevitable discovery and allow a record to be made or it defaults it
Posted inFranks doctrine, Police misconduct|Comments Off on WaPo: Two people were killed in a botched drug raid. Investigators say the official story was a lie.
Respondent is a lawyer accused of (aggressively) pursuing a sexual relationship with a divorce client during the representation and succeeding. When it came out, the state bar opened an inquiry. The lawyer filed an affidavit flatly denying any inappropriate conduct claiming that the relationship pre-dated the representation. The bar, however, had text messages. A search warrant was sought for his cell phone, and the bar complaint proceeded to an order of disbarment effective 12 days later, apparently to give time to wind down his practice. The court notes the search warrant affidavit still remained under seal. [It may be inferred, however, that the false affidavit to the state bar led to the search warrant to attempt to prove perjury. There’s no indication the lawyer was charged with that, but he admitted everything after that.] Board of Professional Responsibility, Wyoming State Bar v. Knudsen, 2019 WY 68, 2019 Wyo. LEXIS 69 (July 3, 2019).
Posted inCell phones|Comments Off on Lawyer’s false affidavit in disciplinary investigation apparently leads to SW for his cell phone and ultimate disbarment
It was objectively unreasonable for a SWAT team to break in a door and use a flashbang device to search a house for a cell phone where the suspect was already in custody and they knew it, they were at the wrong house, and the homeowner was trying to unlock the door. The justifications proffered for the use of force to enter were speculative and unsupported by any evidence. Z.J. v. Kansas City Bd. of Police Comm’rs, 2019 U.S. App. LEXIS 22205 (8th Cir. July 25, 2019): Continue reading →
Posted inExcessive force, Qualified immunity|Comments Off on CA8: SWAT team’s use of a flashbang device to search a house for a cell phone was unreasonable (it was also the wrong house because the suspect hadn’t been there in two years)
The trial court erred in granting the motion to suppress a gun, essentially conflating the probable cause inquiry and sufficiency of evidence to convict the defendant at trial of possession. State v. LangState v. LangState v. Lang, 2019 La. App. LEXIS 1304 (La. App. 4 Cir. July 22, 2019).
The 2017 use of an administrative investigation started with questions back in 2000 that went nowhere was a pretext for a criminal investigation. United States v. Madrid-Quezada, 2019 U.S. Dist. LEXIS 122185 (D. N.M. July 23, 2019).*
Posted inPretext, Standards of review|Comments Off on LA4: Constructive possession to convict isn’t the test for PC; suppression order reversed
The officer continued to hold defendant’s driver’s license, and that meant to him he sure wasn’t free to leave. United States v. Steffens, 2019 U.S. Dist. LEXIS 122096 (N.D. Iowa July 23, 2019).
Defendant was stopped for a muddy license plate, which was found justified. The continuation of the stop, however, was not. The normal incidents of the stop were complete in three minutes. However, the officer went off into other inquiries, and the court finds them justified by reasonable suspicion. United States v. Rosian, 2019 U.S. Dist. LEXIS 123393 (N.D. Ala. July 24, 2019).*
Posted inReasonable suspicion, Seizure|Comments Off on N.D.Iowa: Holding def’s driver’s license shows he’s not free to leave
The actions of the plaintiff didn’t reasonably rise to the level of obstruction of an officer, and her arrest and throwing her to the ground was unjustified. Qualified immunity is denied. Hupp v. Cook, 2019 U.S. App. LEXIS 22208 (4th Cir. July 25, 2019).*
Applying Nevada case law that state probation officers must have reasonable suspicion for a probation search, the court finds there was. Officers did a home visit and found in plain view things that concerned them, and that added up to reasonable suspicion justifying a more detailed search. United States v. Buenrostro, 2019 U.S. Dist. LEXIS 124327 (D.Nev. July 25, 2019).*
Posted inSurveillance technology|Comments Off on 10News (KGTV San Diego): Home surveillance company Ring teams with local law enforcement agencies, leading to privacy concerns
"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.
