The officer’s consulting a prosecutor on the search warrant isn’t conclusive on good faith, but it is an important factor. United States v. Anderson, 2019 U.S. Dist. LEXIS 90265 (E.D. Ky. May 29, 2019).
There was probable cause for the initial stop and the first extension of the stop while defendant was looking for his proof of insurance. A second extension of the stop was not with reasonable suspicion because the court doubts the credibility of the officer’s observations and claims that there was reasonable suspicion of drug possession. State v. Frost, 2019 Del. Super. LEXIS 258 (May 28, 2019).*
A federal-state joint task force isn’t required to use a Rule 41 search warrant. United States v. Williams, 2019 U.S. Dist. LEXIS 89133 (S.D. Ohio May 29, 2019).
“Defendant bears the burden of showing beyond mere speculation that the disclosure of informants and cooperating individuals would be material and helpful to her case.” United States v. Brito-Arroyo, 2019 U.S. Dist. LEXIS 89408 (D. Minn. May 29, 2019), adopted, 2019 U.S. Dist. LEXIS 92764 (N.D. Ga. June 4, 2019).
Defendant invited officers into his house and consented to a search. United States v. Kessel, 2019 U.S. Dist. LEXIS 90415 (W.D. Mo. May 8, 2019).*
Posted inConsent, F.R.Crim.P. 41, Informant hearsay|Comments Off on S.D.Ohio: A federal-state joint task force isn’t required to use a Rule 41 search warrant
Under the “four corners rule,” only the content of the affidavit for search warrant can be considered, but what about unrecorded oral testimony in support? New York procedural law requires the issuing magistrate who considers oral representations in further support of the application keep notes. While the Fourth Amendment doesn’t incorporate state procedural requirements, it is appropriate to consider the judge’s notes in evaluating whether probable cause exists. United States v. Lucas, 2019 U.S. Dist. LEXIS 89234 (W.D. N.Y. May 29, 2019): Continue reading →
Posted inInformant hearsay, Warrant requirement|Comments Off on W.D.N.Y.: State judge’s notes of oral testimony for SW may be considered in federal court
A protective sweep can occur after an arrest at the threshold even though defendant’s girlfriend said nobody else was there. United States v. Villanueva, 2019 U.S. Dist. LEXIS 89450 (D. S.D. May 29, 2019).
The defendant being armed when the police enter on a search warrant, but he fled out the back with his marijuana in hand leaving the gun behind still committed a crime of violence against the police under state law. People v. Calloway, 2019 IL App (1st) 160983, 2019 Ill. App. LEXIS 371 (May 29, 2019).*
Providing defendant with the inventory of what was taken in the search, a normal practice usually required by law, was not designed to elicit an incriminating response. Therefore, the statement was voluntary and not subject to Miranda. United States v. Glenn, 2019 U.S. Dist. LEXIS 89507 (C.D. Ill. May 29, 2019).
Defendant’s stop for having briefly left his car with the engine running was not an offense against the Topeka Municipal Code despite the government’s argument to the contrary. Therefore, the stop was unjustified and not based on a reasonable mistake of law under Heien, and the stop is suppressed. United States v. Brock, 2019 U.S. Dist. LEXIS 89562 (D. Kan. May 29, 2019).*
Posted inReasonableness, Warrant execution|Comments Off on C.D.Ill.: Providing the inventory of the SW execution wasn’t designed to elicit an incriminating response
There was probable cause for issuance of the search warrant for defendant’s house. The possibility of another explanation doesn’t mean there isn’t probable cause. “The defendant argues that the facts are equally consistent with the possibility that the narcotics were stored not at Tucker’s home but somewhere else and that Tucker had taken small amounts to his home—or kept them in his car—in each instance. But whether there might be an alternative explanation for the facts alleged is not the standard.” United States v. Tucker, 2019 U.S. Dist. LEXIS 89787 (W.D. N.Y. May 29, 2019).
“The passage of 12 days between the robbery and the date of the supporting affidavit is ‘not such a long period that it is likely that [Hughes] would have disposed of the gun,’ clothes, or other evidence sought in the warrant.” United States v. Hughes, 2019 U.S. Dist. LEXIS 88388 (E.D. Pa. May 23, 2019).* The gun and clothes are likely to be kept and still be there, even if proceeds of the robbery are not.
Posted inProbable cause, Staleness|Comments Off on W.D.N.Y.: PC was shown in the affidavit; the possibility of another innocent explanation doesn’t undermine PC
Defendant claimed he never knew about any search warrants in his case, but he was served with one when he was arrested and his place searched. Even so, there is no indication that he would have prevailed on any search issue if one had been presented. State v. Martre, 2019-Ohio-2072, 2019 Ohio App. LEXIS 2130 (3d Dist. May 28, 2019).* This sounds almost like a Catch-22; I didn’t see a search warrant, I don’t know its basis, I can’t allege it was unreasonable if I don’t know what it said. But he’s not asserting innocence, so what difference does it make?: Continue reading →
Posted inUncategorized|Comments Off on OH3: Def’s failure to show actual innocence defeats his claim he never saw SW to challenge it
Defendant “cannot simply state general legal principles and expect the Court or the Government to figure out what he means to argue. Burciaga bears the burden here, and this ‘argument’ does not satisfy it. Accordingly, the Court will not inquire into the staleness of the warrant.” United States v. Burciaga Andasola, 2019 U.S. Dist. LEXIS 88441 (D. Colo. May 28, 2019).
Officers “had good reason to believe that Mr. Rush was the victim of a domestic assault, that Defendant was the abuser, and that she was in the home she and Mr. Rush shared.” He had the authority to consent to entry. United States v. Smith, 2019 U.S. Dist. LEXIS 88655 (M.D. Ga. May 28, 2019).*
Posted inBurden of pleading, Emergency / exigency|Comments Off on D.Colo.: To just say a SW is “stale” in a motion to suppress says nothing; def has to show how or why it is stale
A D.C. police car stopped, backed up, and four officers got out of the car, walked over to defendant, and told him to “get up.” A reasonable person would not have believed he was free to leave, and this stop was without reasonable suspicion. The result of the stop should have been suppressed. Heien provides the government no relief: The government argued that there was a reasonable mistake of law, but there was nothing shown that the law attempted to be mistakenly applied was even close to being satisfied. Hooks v. United States, 2019 D.C. App. LEXIS 199 (May 30, 2019).
Petitioner’s 2255 for ineffective assistance of counsel in not filing a motion to suppress fails because he fails to show how the Fourth Amendment was violated in his case. Bowman v. United States, 2019 U.S. Dist. LEXIS 90710 (N.D. Ohio May 30, 2019).*
Defendant’s post-conviction petition alleges he didn’t ever see a search warrant, but this tell the court nothing about whether the search was unreasonable. United States v. Rhodes, 2019 U.S. Dist. LEXIS 88692 (W.D. Pa. May 28, 2019).*
Posted inGood faith exception, Ineffective assistance, Reasonableness|Comments Off on DC: To get the benefit of Heien mistake of law, there has to be something that shows the law mistakenly applied actually applied, and here it didn’t
Issue preclusion would not be applied to preclude defendant officers from litigating the legality of a search that defendant prevailed upon in state court. Applying state law on issue preclusion, it would be unfair to apply it to officers who were not parties to the suppression order. Halliburton v. Hockaday, 2019 U.S. Dist. LEXIS 88681 (C.D. Ill. May 28, 2019).
The 62 page affidavit for this search warrant was manifestly not “bare bones.” There were multiple addresses to be searched under the search warrant, and defendant did not even allege standing as to two of them. United States v. James, 2019 U.S. Dist. LEXIS 88894 (M.D. La. May 28, 2019).*
Posted inStanding|Comments Off on C.D.Ill.: Issue preclusion doesn’t fairly apply to officers in § 1983 case after suppression in state court
A search warrant for a house gives police the ability to search the curtilage, too. Hardin v. State, 2019 Ind. App. LEXIS 234 (May 29, 2019).
Navajo Nation police officers had implied license to approach the front door of a residence and do a knock-and-talk. The occupant voluntarily consented to a search of the house. The search of his car, however, was not within the consent and there was no probable cause for it. The car search is suppressed. United States v. Trimble, 2019 U.S. Dist. LEXIS 88927 (D. Ariz. May 28, 2019).*
Defendant was believed to have dismembered the mother of his children and the children couldn’t be found. Police got an address and went there but didn’t get an answer. They went to her parents’ house who sent them back to her house. The entry into the home was with exigent circumstances to check on the safety of the children. Payton v. State, 2019 Ala. Crim. App. LEXIS 30 (May 24, 2019).
The trial court’s grant of the motion to suppress defendant’s cell phone in a child pornography case for exceeding the search warrant was a mixed question of law and fact. Therefore, the issue wasn’t appealable under state law. State v. Reynolds, 2019 Ark. 154, 2019 Ark. LEXIS 169 (May 23, 2019).*
Posted inEmergency / exigency|Comments Off on AL: Children missing after mother’s murder was exigency for entry of house
Apple says, ‘What happens on your iPhone stays on your iPhone.’ Our privacy experiment showed 5,400 hidden app trackers guzzled our data — in a single week.
Posted inSurveillance technology|Comments Off on WaPo: Perspective: It’s the middle of the night. Do you know who your iPhone is talking to?
The search warrant for defendant’s home authorized a search of defendant’s garden because, under Jardines, the curtilage is considered part of the house itself. State v. Daggett, 2019 Mo. App. LEXIS 843 (May 28, 2019).
A state court’s 2017 cell phone tracking order was issued with probable cause and was valid and met the good faith exception. United States v. Gibson, 2019 U.S. Dist. LEXIS 88769 (S.D. Ind. May 28, 2019).*
“There is no requirement that police supply corroboration for every element of information provided by confidential informants, particularly when the informant is known to them, and has demonstrated him or herself to be trustworthy and accurate in their tips.” United States, 2019 U.S. Dist. LEXIS 88257 (E.D. Mich. May 24, 2019).*
Cert. granted: Hernández v. Mesa, No. 17-1678 (ScotusBlog)
Issue: Whether, when the plaintiffs plausibly allege that a rogue federal law-enforcement officer violated clearly established Fourth and Fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.
The Court previously remanded: Hernández v. Mesa, 137 S. Ct. 2003, 198 L. Ed. 2d 625 (June 26, 2017) (per curiam) (remanded in light of Ziglar v. Abbasi to determine whether Bivens applies) (ScotusBlog)
Posted in§ 1983 / Bivens|Comments Off on Cert. granted: Hernández v. Mesa: Whether the cross-border murder of a Mexican citizen states a Bivens claim
Nieves v. Bartlett, 17–1174 (May 28, 2019): Probable cause to arrest defeats a First Amendment retaliation claim except where there otherwise would not have been an arrest (maybe a really hard standard to meet).
Posted in§ 1983 / Bivens, Probable cause|Comments Off on SCOTUS: Nieves v. Bartlett: Probable cause to arrest defeats a First Amendment retaliation claim except where there otherwise would not have been an arrest
“During a lawful strip search of the defendant following his arrest, police officers observed a plastic bag protruding from the cleft between his buttocks and caused him to remove it; it was revealed to contain individually wrapped plastic bags of both heroin and cocaine.” This was a strip search and not a body cavity search. Commonwealth v. Jeannis, 2019 Mass. LEXIS 297 (May 24, 2019).
Defendant’s counsel didn’t file a motion to suppress but codefendants did. Theirs were denied, but they were re-urged at trial after the proof supported it more, and they then prevailed. Defendant’s counsel sought to join the motion to suppress, but it was denied as untimely, and his standing was questioned. The district court did not abuse its discretion in denying the motion to suppress as to defendant. On plain error review, the court doesn’t find it because of defendant’s standing. Defendant’s attempt to pursue it as an ineffective assistance of counsel claim is postponed to his 2255. United States v. Williams, 2019 U.S. App. LEXIS 15534 (5th Cir. May 24, 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.
