An unlawful arrest is not per se with excessive force under the Fourth Amendment or state statute. People v. Perry, 2019 Cal. App. LEXIS 555 (5th Dist. June 18, 2019).
The trial court’s finding that the police didn’t search defendant’s hotel room prior to obtaining a search warrant is supported by the evidence. People v. Henry, 2019 NY Slip Op 05024, 2019 N.Y. App. Div. LEXIS 5038 (3d Dept. June 20, 2019).*
Plaintiff sued Texas officials in the U.S. Claims Court for an illegal search, which has no jurisdiction either over them or search claims. Ramirez v. United States, 2019 U.S. Claims LEXIS 683 (June 19, 2019).*
Posted inExcessive force, Warrant execution|Comments Off on Cal.5: An unlawful arrest is not per se with excessive force under the 4A
A 911 call reported a potential drunk driver. When the car was found, the officer’s observations were at least reasonable suspicion justifying a stop. Indreland v. Mont. DOJ, 2019 MT 141, 2019 Mont. LEXIS 226 (June 18, 2019).
Defendant was alleged to have uploaded an image of known child pornography to ChatStep which uses software to scan all images against known child porn. That image was forwarded to NCMEC. He had no reasonable expectation of privacy in that image. That led to a search warrant for his computers. Morales v. State, 2019 Fla. App. LEXIS 9666 (Fla. 1st DCA June 20, 2019).*
Here the court considers a post-verdict motion to suppress. The court noted that there were kernels of cause for a motion to suppress, albeit a private search of an office, but the complete picture didn’t develop until trial. Giving he defendant the benefit of the doubt, the court goes to the merits, and he had no reasonable expectation of privacy in his open office space from which no one was excluded. United States v. Shelton, 2019 U.S. Dist. LEXIS 103267 (N.D. Ind. June 20, 2019): Continue reading →
Posted inPrivate search, Reasonable expectation of privacy|Comments Off on N.D.Ind.: No REP in an open office where others were free to come and go and document was taken at police insistence
Plaintiff absconded parolee was subjected to an unannounced entry into his hotel room about 6 am for a parole search. He was in bed with his girlfriend and a gun. The Arkansas Supreme Court held the entry violated the Fourth Amendment but refused to apply the exclusionary rule under Hudson v. Michigan. Lane v. State, 2017 Ark. 34, 513 S.W.3d 230, 233 (2017). So, he filed a pro se § 1983 complaint against the officers. The district court denied qualified immunity because no case said that such an unannounced entry was valid. Reversed: The fact some cases say the entry was a violation of the Fourth Amendment and they aren’t in disagreement still isn’t a “robust consensus of cases of persuasive authority” under D.C. v. Wesby. Lane v. Nading, 2019 U.S. App. LEXIS 18524 (8th Cir. June 20, 2019).
Disclaimer: I was appointed by the Eighth Circuit for the appeal. The first case saying this entry without announcement was a Fourth Amendment violation was about 1963, and LaFave has made this assertion about parole search knock-and-announce since 1978. Still not enough. Literally no case could be found on Lexis or Westlaw holding that knock-and-announce was excused for parole searches, and that’s still true. So, what is a “robust consensus of cases of persuasive authority”? There is no fixed number.
“A Superior Court judge erred in granting a criminal defendant’s pretrial motion to suppress evidence seized by police from the defendant’s home and place of business, where the affidavit in support of the search warrants contained sufficient information to justify the search of both locations, including powerful evidence of an ongoing criminal enterprise that researched its targets, replenished its burglary tools, and operated for extended periods at both locations.” (Syllabus by the court) Commonwealth v. Murphy, 95 Mass. App. Ct. 504 (June 19, 2019).
Defendants are accused of a complex financial fraud. The several search warrants were challenged on Franks grounds and they all failed. The alleged misstatements were neither material nor anything more than minor misstatements. United States v. Lewis, 2019 U.S. Dist. LEXIS 103397 (M.D. Fla. June 20, 2019).*
Posted inFranks doctrine, Probable cause|Comments Off on MA: SW in ongoing criminal enterprise was based on “powerful evidence”
“To what extent does the Fifth Amendment right against self-incrimination protect a suspect in a criminal case from the compelled disclosure of a password to an electronic communications device in the state’s possession? Courts differ in their legal analysis of this question, resulting in no consensus in state and federal courts; indeed, different approaches currently exist between two Florida appellate courts on the topic. In this case, we conclude that the proper legal inquiry on the facts presented is whether the state is seeking to compel a suspect to provide a password that would allow access to information the state knows is on the suspect’s cellphone and has described with reasonable particularity.” Here they did not, and the order is quashed. Pollard v. State, 2019 Fla. App. LEXIS 9667 (1st Dist. June 20, 2019).
Posted inCell phones, Privileges|Comments Off on FL1: Recognizing conflict in many courts on compelled password production, court takes a middle ground: state must show what it wants with “reasonable particularity”
An officer’s identification made wholly as a result of a warrantless search renders that identification tainted and inadmissible. If, however, eyewitness identification of a defendant occurred prior to illegal conduct by law enforcement may be admissible, if based on observations that are independent of the taint of the subsequent unconstitutional search. Commonwealth v. Santiago, 2019 Pa. LEXIS 3287 (June 18, 2019).
Defendant’s name was not on the Comcast IP account, although he lived at the address. He offers nothing to show standing in the account other than an attorney’s assertion that they all used it with knowledge of the other, but that’s not evidence. Moreover, he had no standing in the Comcast account third-party information. United States v. Barnes, 2019 U.S. Dist. LEXIS 102006 (W.D. Wash. June 19, 2019).*
Posted inIndependent source, Standing, Third Party Doctrine|Comments Off on PA: ID made as a result of warrantless search suppressed, but that which was seen before may be testified to
“[F]ailure to affirmatively provide the Court with support for the motion as it relates to the warrant is a sufficient basis for denial of the motion.” Even so, the court goes to the merits and finds probable cause. United States v. Myhre, 2019 U.S. Dist. LEXIS 102657 (D. Minn. June 19, 2019).
Defendant’s allegedly brandishing a firearm at people on his street and then retreating to his home with it is probable cause and nexus. United States v. Thompson, 2019 U.S. Dist. LEXIS 102338 (E.D. Mich. June 19, 2019).*
Text messages and tracking information provided probable cause and nexus that defendant was dealing drugs from his home. United States v. Congo, 2019 U.S. Dist. LEXIS 102291 (D. Me. June 19, 2019).*
Posted inBurden of pleading, Nexus|Comments Off on D.Minn.: A generic motion to suppress should be denied for telling the court nothing
FTCA doesn’t provide a damages remedy for how a search warrant is executed. Lopez v. United States, 2019 U.S. Dist. LEXIS 102516 (D. Ariz. June 19, 2019)
The officer’s body camera video showed one of the passengers wasn’t wearing a seat belt, and that was reasonable suspicion for the stop. United States v. Perez, 2019 U.S. Dist. LEXIS 101119 (W.D. Tex. June 18, 2019).*
“Defendants’ earlier-filed motions fail to raise any specific deficiencies in the warrants, but rather generally allege that the warrants lack probable cause. Defendants have similarly failed to point to any specific shortcomings in the affidavits in support of each warrant. After review of each warrant and affidavit (Gov’t Exs. 6, 7, 8), the Court is satisfied that each included ample factual and background information to establish a fair probability that evidence would be found in each location. This conclusion is further supported by the R&R’s extensive analysis, which need not be repeated here. The search warrants were supported by probable cause, and Defendants’ objections are overruled.” United States v. Detloff Mktg. & Asset Mgmt., 2019 U.S. Dist. LEXIS 101611 (D. Minn. June 18, 2019).
Posted inBurden of pleading|Comments Off on D.Minn.: A vague allegation of no PC for SW is insufficient to get even a hearing; specifics needed
(FYI: I don’t subscribe to Law360 so I can’t give more; it costs enough to post all this stuff because I pay for hosting and accept no advertising. I hate advertising.)
Posted inSurveillance technology|Comments Off on Law360: Digital Data Privacy One Year After Carpenter
Defendant took his computer in for repair. The computer tech determined the hard drive was failing, and he consented to replacement and moving the files. The tech found child porn and told the police. They came and their view of the computer hard drive didn’t exceed that of the tech. The Superior Court relied on abandonment, but the issue was properly private search. His reasonable expectation of privacy was not implicated. Commonwealth v. Shaffer, 2019 Pa. LEXIS 3280 (June 18, 2019) (concurring & dissenting; dissenting).
Telling defendant he’d be held in jail while a search warrant for his blood was obtained was informational only and not coercive. Sigerfoos v. State, 2019 Ga. App. LEXIS 327 (June 14, 2019).
The findings of the district court don’t support the conclusion, so the case is remanded for more findings. The police followed the alleged drunk driving defendant into his house. They had probable cause independent of the illegal entry. People v. Haack, 2019 CO 52, 2019 Colo. LEXIS 523 (June 17, 2019).*
“The trial court in this case erred by failing to enter a written order stating its reasons for denying an evidentiary hearing. We are unable to review the present issue because the parties did not argue it below and the record provides no detail about the officers’ bases for the initial stop or impoundment of the DeVille.” State v. Kitt, 2019 Wash. App. LEXIS 1545 (June 18, 2019).*
Posted inSuppression hearings|Comments Off on Two reversed for lack of findings on suppression issues
Police went to do a knock-and-talk and nobody answered at the front door. Going to the back door, ostensibly as an extension of the knock-and-talk, violated curtilage under Jardines. What was seen went into a search warrant application, and it is suppressed. State v. Ellis, 2019 N.C. App. LEXIS 537 (June 18, 2019).
Defendant argued his due process rights under the Fourth Amendment were violated, but “there is no Fourth Amendment right to due process.” His traffic stop in a high-crime area resulted in officers seeing a gun under the seat. The search of the car was justified under the automobile exception or as a protective sweep for the gun. United States v. Williams, 2019 U.S. Dist. LEXIS 100691 (W.D.Ky. June 17, 2019) (The court erroneously refers to it as a “search incident” to an arrest with a protective sweep. It was valid under Michigan v. Long which is merely reasonable suspicion based. It was “incident” to a search, but that phrase should be avoided except where required.).
The owner of real property had no authority to consent to the search of a visitor’s backpack. State v. Holland, 2019-Ohio-2351, 2019 Ohio App. LEXIS 2456 (2d Dist. June 14, 2019).
The owner of real property could not consent to a search of the rented room of a co-tenant. State v. Hawks, 2019-Ohio-2350, 2019 Ohio App. LEXIS 2449 (2d Dist. June 14, 2019).
Posted inConsent|Comments Off on OH2: Owner of real property has no power to consent to search of visitor’s or co-tenant’s property
"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.
