The judge issuing the Facebook warrant in this case was within her discretion in recusing from determining the merits. Besides, there was probable cause, and the search warrant was particular. People v. Grose, 2019 NY Slip Op 03808, 2019 N.Y. App. Div. LEXIS 3742 (2d Dept. May 15, 2019).*
Defendant was a mere passenger in the car with no standing to challenge its search. Even so, the search of the car was justified under the automobile exception. United States v. Cruz-Mercedes, 2019 U.S. Dist. LEXIS 81619 (D. Mass. May 15, 2019).*
Posted inStanding, Suppression hearings|Comments Off on NY2: Judge issuing SW had discretion to recuse from suppression hearing
Just because hearsay can be used to get a search warrant, that doesn’t make that same hearsay admissible at trial without violating the Confrontation Clause. United States v. Jones, 2019 U.S. App. LEXIS 14550 (5th Cir. May 16, 2019).
“Here, contrary to the People’s contentions, the detective’s on-the-scene observations during the two controlled drug buys fell short of probable cause without the information provided to him by the CI. Although the detective observed the CI enter and exit the building, the detective was unable to confirm that the CI had actually purchased the narcotics from the subject apartment ….” Remanded for an evidentiary hearing. People v. Nettles, 2019 NY Slip Op 03816, 2019 N.Y. App. Div. LEXIS 3762 (2d Dept. May 15, 2019).*
Posted inInformant hearsay|Comments Off on CA5: Hearsay to get a SW isn’t necessarily admissible at trial
Defendant’s three purchases of pseudoephedrine in one day was reasonable suspicion that he had a meth lab to support a protective sweep because, when the dwelling door was opened, the smell of ammonia was overwhelming. State v. Kotowski, 2019 S.C. App. LEXIS 45 (May 16, 2019).*
A USFS officer had reasonable suspicion to contact defendant for an alleged illegal campfire during a period of restriction on campfires. The smell of marijuana allowed the officer to extend the stop. United States v. Eaton, 2019 U.S. Dist. LEXIS 82648 (D. Ariz. May 16, 2019).*
Posted inProtective sweep, Reasonable suspicion|Comments Off on SC: Three psuedo buys in one day was RS, and the smell of ammonia at his house justified a protective sweep
It was apparent the officer wanted to search defendant’s car, so he devised a way to seize it, but it was without justification. Thus, the inventory was unreasonable. United States v. James, 2019 U.S. Dist. LEXIS 82527 (D. N.M. May 16, 2019): Continue reading →
Posted inInventory|Comments Off on D.N.M.: Inventory was unjustified
The search of a car’s fuse box was reasonable under the inventory search exception. The body cameras were on when the inventory started and then were turned off. The court declines to find that this showed bad faith because everything up to that point was reasonable, and even defendant admits that everything to that point was normal and “performative.” United States v. Miller, 2019 U.S. Dist. LEXIS 80652 (E.D. N.Y. May 14, 2019).*
Defendant’s car was subjected to a reasonable inventory. The police talked about him getting somebody to come and get it, but that didn’t happen. Defendant was driving with a long suspended license and well knew it. The decision to tow the car came before the search occurred, and not as a rationale for it. Johns v. United States, 2019 U.S. Dist. LEXIS 80650 (E.D. Tenn. May 14, 2019).*
Posted inInventory|Comments Off on E.D.N.Y.: Search of car’s fuse box reasonable in an inventory
Posted inSurveillance technology|Comments Off on Biometric Update: Opinions roll in on whether to ban, regulate, or hardly regulate biometric facial recognition
An in camera submission of materials to rebut defendant’s Franks claim required a hearing. Defendant was entitled to see it and then respond. United States v. Lewis, 2019 U.S. Dist. LEXIS 81937 (E.D. Wis. May 15, 2019), reconsideration denied, 2019 U.S. Dist. LEXIS 115328 (E.D. Wis. July 11, 2019). Which begs the question of Franks hearings in the first place: This court spent so much time [or the law clerk did] dealing with the Franks issue after the R&R that it would have been better to have just summarily ordered a Franks hearing and be done with it.
On post-conviction, the court considers the merits of the search claim and whether there was prejudice to the defendant. While the court is troubled by the police handling of the search, on balance, there was probable cause for the search, and the search warrant would have issued anyway. Also, the “two issue” rule applies: defendant’s challenge of one issue of support for the warrant doesn’t undermine another, so no error. Pierce v. State, 2019 Iowa App. LEXIS 513 (May 15, 2019).*
Posted inUncategorized|Comments Off on Anthony G. Amsterdam’s legendary Perspectives on the Fourth Amendment (1974) finally available online for free, after 45 years
Posted inBorder search, Digital Searches|Comments Off on EFF: Seventh Circuit Dodges an Opportunity to Protect Travelers from Invasive Border Searches of Electronic Devices
Probable cause is not “more likely than not.” It was present here. “[A]s the Seventh Circuit has explained, ‘[p]robable cause * * * does not require evidence sufficient to support a conviction, nor even evidence demonstrating that it is more likely than not that the suspect committed a crime. So long as the totality of the circumstances, viewed in a common sense manner, reveals a probability or substantial chance of criminal activity on the suspect’s part, probable cause exists.’ United States v. Angle, 234 F.3d 326, 335 (7th Cir. 2000) (quoting United States v. Sawyer, 224 F.3d 675, 679 (7th Cir. 2000)) (internal quotation marks omitted). Furthermore, ‘issuing judges may draw reasonable inferences about where evidence is likely to be found based on the nature of the evidence and the offense.’ Carroll, 750 F.3d at 703-04. Looking at the totality of the circumstances, the Court concludes that substantial evidence supported Judge Kim’s finding of probable cause. The Court therefore denies Defendant’s motion to suppress for lack of probable cause.” In addition, there was good faith. United States v. Mixon, 2019 U.S. Dist. LEXIS 80480 (N.D. Ill. May 14, 2019).
Posted inProbable cause|Comments Off on N.D.Ill.: PC is not “more likely than not”
The search warrant was for a package found right inside the front door. That did not preclude the officers from searching further in the house. Also, a protective sweep incident to execution of the search warrant was proper. Searching inside a shoebox on a dresser under the protective sweep would be inappropriate, but there was a search warrant, and that validated the search. United States v. Green, 2019 U.S. Dist. LEXIS 80528 (W.D. Mo. May 14, 2019).
The jury could conclude that the person who hid the cocaine in the outbuilding as the police approached to execute a search warrant was defendant, and that supports his conviction. United States v. Napolis, 2019 U.S. App. LEXIS 14234 (11th Cir. May 14, 2019).*
Posted inProtective sweep, Warrant execution|Comments Off on W.D.Mo.: Primary object of SW found right inside front door, but that didn’t preclude larger search
CSLI order issued 3½ months before Carpenter was valid under good faith exception. Officers were not expected to know what SCOTUS would do. United States v. Turner, 2019 U.S. Dist. LEXIS 81011 (M.D. Fla. May 14, 2019), adopted, 2019 U.S. Dist. LEXIS 89376 (M.D. Fla. May 29, 2019).
The law supported the state’s exigent circumstances claim for defendant’s warrantless blood draw at the time it happened, so the good faith exception applies. Hamrick v. State, 2019 S.C. LEXIS 42 (May 15, 2019).*
Defendant’s post-conviction search claim says nothing about why it wasn’t raised on direct appeal, so it is defaulted. State v. Hall, 2019-Ohio-1848, 2019 Ohio App. LEXIS 1925 (11th Dist. May 13, 2019).*
When a hotelier finds something in a room that justifies calling the police, the third-party intervention doctrine doesn’t give the police the authority to enter. They should use the information to get a search warrant. “We therefore reject the State’s argument and decline to extend the private search doctrine to hotel and motel rooms. The third-party intervention doctrine cannot excuse law enforcement’s search of a motel room from the warrant requirement. To reiterate the guidance we provided in Wright, where a motel owner or employee finds contraband in a guest’s room, ‘the police can use that information to obtain a search warrant and then conduct a search.’” State v. Shaw, 2019 N.J. LEXIS 601 (May 13, 2019): Continue reading →
Posted inConsent|Comments Off on NJ: Hotel operator who finds stuff in a hotel room can’t grant consent; police should use info to get SW
Two tipsters and an officer’s observations of hand-to-hand deals led to a GPS warrant for defendant’s vehicle. It was issued with probable cause. Defendant wasn’t entitled to a Franks hearing over the CIs. United States v. Bradley, 2019 U.S. App. LEXIS 14136 (8th Cir. May 13, 2019).*
Defendant’s house was inferentially connected to his drug dealing because he went back there after the drug deals. Therefore, probable cause was shown. United States v. Banks, 2019 U.S. Dist. LEXIS 80006 (M.D. Pa. May 13, 2019).*
Posted inGPS / Tracking Data, Nexus|Comments Off on CA8: Two CIs and officer’s observations provided PC for GPS tracking
While executing a computer fraud search warrant on defendant’s computers they happened upon child pornography on CDs during the onsite search. They took the computers and the CDs with the child pornography. A later search warrant was issued for the CDs. When officers executing a search warrant for one thing happen on evidence of another crime, they can seize it. The second search was unlawful because it exceeded the scope of the first warrant where it was directed at uncovering evidence of child pornography, and the plain view and foregone conclusion exceptions to the warrant requirement did not apply. The third search pursuant to the second warrant was proper, however, because the materials fell within the inevitable discovery doctrine where the materials would have been found within a lawful execution of the first warrant. United States v. Loera, 2019 U.S. App. LEXIS 14163 (10th Cir. May 13, 2019).
Defendant bought a Lexus from a used car dealer that had a GPS installed to track it, apparently to repossess it if necessary. He was warned on the purchase contract. Still, the government needed a search warrant to get access to the GPS information, and warrantlessly obtaining the GPS data from the provider in 2017, five years after Jones, was illegal. The lack of a trespass on the car, as in Jones, wasn’t material. In addition, the fact others drove the car on occasion didn’t matter. United States v. Diggs, 385 F. Supp. 3d 648 (N.D. Ill. 2019), reconsideration denied, 2020 U.S. Dist. LEXIS 5853
(N.D. Ill. Jan. 14, 2020).
Defendant had no reasonable expectation of privacy in another person’s email account after he sent the emails. Apparently because it was easier to decide the merits than 2255 procedural default, the court finds there was no reasonable expectation of privacy. Handlon v. United States, 2019 U.S. Dist. LEXIS 80112 (M.D. Fla. May 13, 2019).*
Posted inGPS / Tracking Data|Comments Off on N.D.Ill.: Warrantless downloading GPS from an installed device on a car violated Jones
“Here, there is no evidence that Defendant had possession of, or any subjective privacy interest in, Mr. Daniels’ cell phone. Law enforcement did not observe Defendant using the tracked cell phone, and the cell phone was not registered to Defendant. Nor has Defendant articulated any basis showing that he had an expectation of privacy in the information from Mr. Daniels’ cell phone. The fact that the cell phone was allegedly tracked to Room #113 where Defendant happened to have a privacy interest is immaterial. ‘A defendant bears the burden of proving that he has a legitimate expectation of privacy in an object such that he can claim the protection of the Fourth Amendment in challenging the government’s search of that object.’ Dore, 586 F. App’x at 46. Defendant has failed to satisfy this burden as it relates to the search of Mr. Daniels’ cell phone, and therefore his motion is denied.” United States v. Lucas, 2019 U.S. Dist. LEXIS 80157 (W.D. N.Y. May 13, 2019).
Defendant was retired military working as a contractor in Afghanistan. Child pornography was traced to him by his email address. That gave the magistrate issuing the search warrant reason to believe that child pornography would be found on his digital devices with nexus to his quarters. United States v. Miller, 2019 CCA LEXIS 218 (Army Ct. Crim. App. May 13, 2019).
The court held at the hearing defendant lacked standing in the car searched. “[A]fter he was properly Mirandized, body camera footage reveals that Ford waived his right to remain silent and specifically disavowed any ownership in the car or its contents.” Then an inventory search occurred, and defendant couldn’t challenge that. United States v. Ford, 2019 U.S. Dist. LEXIS 80301 (N.D. Ohio May 13, 2019).*
Posted inNexus, Standing|Comments Off on Army: Email address link to CP provided nexus to def’s devices and quarters
"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.
