The search warrant for defendant’s cell phones had inserted “no charge at this time” for the crime under investigation. The phone was seized without a warrant from a traffic stop, then searched under the warrant, but you can’t tell what the government was looking for because nothing was attached to limit the search. Finally, the warrant is so deficient that the good faith exception doesn’t apply. United States v. Etienne, 2019 U.S. Dist. LEXIS 77256 (N.D. Cal. May 8, 2019).
The search warrant was particular under the affidavit for the warrant. People v. Crupi, 2019 N.Y. App. Div. LEXIS 3612 (2d Dept. May 8, 2019).*
Posted inCell phones, Overbreadth, Particularity|Comments Off on N.D.Cal.: Govt can’t show PC for search of cell phone, and GFE doesn’t apply either
The affidavit for search warrant here fails to show nexus to defendant’s property. Moreover, it can’t even be inferred from the CI’s statements. “The affidavit presently before this Court offers no such supplemental information. The affidavit does not describe a pattern of activity consistent with drug trafficking, nor does it indicate any surveillance had been conducted on Moore. Additionally, the affidavit does not refer to any preexisting records linking Moore or his vehicle to drug activity.” The lack of nexus here is fatal even to the good faith exception. United States v. Moore, 2019 U.S. Dist. LEXIS 77413 (W.D. Ky. May 8, 2019).
Post-conviction petitioner already raised his suppression issue in his direct appeal. State v. Acevedo, 2019 La. App. LEXIS 795 (La. App. 5 Cir. May 8, 2019).*
Posted inGood faith exception, Nexus|Comments Off on W.D.Ky.: Complete failure of nexus was no PC and even GFE won’t save it
When child pornography is the subject of a search warrant for a cell phone, search of the entire cell phone is permitted. As to a computer, even spreadsheets are subject to search because it’s possible to hide images there. United States v. Sullivan, 2019 U.S. Dist. LEXIS 77446 (W.D. Wash. May 7, 2019): Continue reading →
Posted inScope of search|Comments Off on W.D.Wash.: In CP case, even spreadsheets on a computer can be searched for images
Defendant wasn’t entitled to the name of the CI because the CI was only used to get the search warrant and wasn’t a witness in the state’s case in chief. Coleman v. State, 2019 Tex. App. LEXIS 3802 (2d Dist. May 10, 2019).*
Plaintiff sued a single John Doe for a Fourth Amendment violation within the statute of limitations. New defendants were time barred. Wheeler v. Buckley, 2019 U.S. Dist. LEXIS 77526 (S.D. N.Y. May 8, 2019).*
CLEVELAND, Ohio — The city of Cleveland’s new police search and seizure policies should be approved by a judge so officers can be trained on them, the city’s police monitor said Friday.
Posted inStop and frisk|Comments Off on Cleveland.com: Cleveland police must detail why officers stop and search suspects under new policies
Defendant’s cell phone was pinged based on exigency. Defendant claims that it was false. “However, the salient facts on which Sgt. O’Rourke based his request are clearly borne out by the evidence.” United States v. Andrews, 2019 U.S. Dist. LEXIS 77767 (D. Minn. May 8, 2019).*
eBay is not a government actor, and it provided third-party information. United States v. Schaefer, 2019 U.S. Dist. LEXIS 77860 (D. Ore. May 8, 2019).*
Plaintiff’s § 1983 case over probable cause and particularity for the search warrant is dismissed on qualified immunity and the merits. Baeza v. Munro, 2019 U.S. Dist. LEXIS 77854 (D. N.M. May 7, 2019).*
2255 petitioner’s claim that his Fourth Amendment rights were violated was waived by his unconditional plea. His claim defense counsel was ineffective was conclusory. On the merits, the search warrant was constitutionally particular. Buford v. United States, 2019 U.S. Dist. LEXIS 78528 (E.D. Tenn. May 9, 2019).*
Defendant pled guilty before his suppression motion could be decided, so that is waived for appeal. People v. Munroe, 2019 NY Slip Op 03669, 2019 N.Y. App. Div. LEXIS 3683 (1st Dept. May 9, 2019).*
Defendant waived objection to the search warrant by not objecting. People v. Webb, 2019 NY Slip Op 03633, 2019 N.Y. App. Div. LEXIS 3589 (2d Dist. May 8, 2019).*
Posted inUncategorized|Comments Off on Three on waiver
Defendant came to the site of execution of a search warrant and was justifiably detained. “First, the court found that Deputy Robison was justified as part of his efforts to secure a safe search site because Collins arrived on the property during the search and then stayed in the vicinity, parked on the neighboring property. The trial court found that Collins’s position on the neighboring property was close enough to the search site to pose a safety concern for the officers. See Michigan v. Summers, … as limited by Bailey v. United States, …. Second, after talking with Collins and the neighbors on whose property Collins was parked, Deputy Robison had reasonable suspicion that Collins was engaged in criminal trespassing, which provided a separate justification for his stop and pat-down of Collins. See Terry v. Ohio, ….” State v. Collins, 2019-Ohio-1724, 2019 Ohio App. LEXIS 1806 (4th Dist. Apr. 25, 2019).
Posted inReasonable suspicion|Comments Off on OH4: Def’s coming to site of execution of SW and then hanging around next door justified a detention and frisk
When probable cause and the good faith exception are both decided by the district court, both must be argued on appeal or the whole issue of the validity of the warrant is waived for appeal. “We note initially that Huerta has not addressed the district court’s alternative ruling that even if probable cause had been insufficient, the evidence should not be suppressed because law enforcement acted in good faith reliance on the search warrant. Accordingly, Huerta has abandoned this issue on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).” Not arguing both leaves one as an independent basis, and that makes the issue moot. United States v. Huerta, 2019 U.S. App. LEXIS 13624 (5th Cir. May 7, 2019).
Posted inStandards of review|Comments Off on CA5: When both PC and GFE are appealed, both have to be argued on appeal or both are waived
Franks doesn’t apply to grand jury testimony and resulting subpoenas. United States v. Tolbert, 2019 U.S. Dist. LEXIS 76939 (D. N.M. May 7, 2019): Continue reading →
Posted inFranks doctrine|Comments Off on D.N.M.: Franks doesn’t apply to grand jury testimony and resulting subpoenas
Defendant didn’t raise the constitutionality of satellite-based monitoring in the trial court, so it’s waived for appeal. He also can’t bring it up by certiorari. State v. DeJesus, 2019 N.C. App. LEXIS 384 (May 7, 2019).
Reasonable suspicion developed at the scene when the officer was confronted with the overwhelming odor of air freshener emanating from defendant’s car which, coupled with the officer’s observations, taking into account his training and experience, suggested criminal activity. State v. Nelson, 2019 N.J. LEXIS 598 (May 8, 2019).*
The inventory search of defendant’s car was lawful, and his § 1983 Fourth Amendment claim is rejected. Crockett v. City of Gresham, 2019 U.S. Dist. LEXIS 76730 (D. Ore. May 7, 2019).*
Petitioner’s 2255 fails for speculation and then lack of showing of prejudice. “First, Mathis asserted that counsel was ineffective for failing to fully investigate the forensic evidence to discover that his cell phone had been accessed by law enforcement prior to obtaining the search warrant. To establish a successful claim of ineffective assistance of counsel, a defendant must show both that (1) his counsel’s performance was deficient, and (2) the deficient performance resulted in prejudice. … [¶] Here, reasonable jurists would not debate the district court’s denial of this claim. Even assuming that trial counsel was ineffective for failing to discover that law enforcement accessed his cell phone prior to obtaining a search warrant, Mathis cannot establish that he was prejudiced by counsel’s performance. As this Court concluded on the appeal from the denial of Mathis’s motion for a new trial, the search warrant application did not contain any information gained from the alleged illegal access, and, thus, the evidence from Mathis’s cell phone would not have been suppressed at trial. Therefore, Mathis is not entitled to a COA on this claim.” Mathis v. United States, 2019 U.S. App. LEXIS 13679 (11th Cir. May 8, 2019).*
Posted inIneffective assistance|Comments Off on CA11: Petitioner’s 2255 fails for speculation and then lack of showing of prejudice
Posted inCell site simulators|Comments Off on Shawdowproof: Detroit Police Spent More than Half Million Dollars on Cell-site Simulator to Track People’s Locations
The owner of the car was in it but not driving, and she consented to a search of her car. A passenger in the car refused consent for her personal belongings also in the car. The passenger had the ability to place that particular limit on the consent search of her stuff in the car. There was no independent probable cause for search of her belongings in the car. Reversed. Sossaman v. State, 2019 Ark. App. 262 (May 8, 2019).
Plaintiff’s § 1983 illegal search and excessive force claims were filed one month past the statute of limitations for the claims. Birch v. Atchison Police Dep’t, 2019 U.S. Dist. LEXIS 76824 (D. Kan. May 7, 2019).*
Posted in§ 1983 / Bivens, Consent|Comments Off on AR: Driver couldn’t consent to search of objecting passenger’s stuff
Briefly detaining a package in transit at least on reasonable suspicion for a dog sniff was reasonable and not a seizure of the package. They were staying at a local B&B and received two FedEx packages there, one under an assumed name, which was suspicious in itself. State v. Valenzuela-Pena, 2019-Ohio-1701, 2019 Ohio App. LEXIS 1789 (12th Dist. May 6, 2019).
Defendant’s 2254 that DNA couldn’t be taken from his victim’s baby was denied in the state courts on the merits for lack of standing. Therefore, it’s barred in a 2254 by Stone v. Powell. Hannan v. Ryan, 2019 U.S. Dist. LEXIS 77027 (D. Ariz. May 6, 2019).*
Police get a tip that plaintiff was a mental health danger to himself or others, and they entered his house with a mental health professional to examine him. That person found plaintiff in need of involuntary commitment. “All of those facts, taken together, suggest that Defendant Officers lawfully entered Plaintiff’s home by means of exigent circumstances. Despite the liberal construction required of pro se complaints, the facts alleged in the Complaint and the November 2017 Letter are consistent with an exception to the Fourth Amendment and thus fail to state a Fourth Amendment violation.” Keefe v. Settembrino, 2019 U.S. Dist. LEXIS 76558 (D. N.J. May 7, 2019).
Defendant resisting extradition back to the U.S. voluntarily gets access to search warrants. In re Extradition of Ameen, 2019 U.S. Dist. LEXIS 76408 (C.D. Cal. May 6, 2019).*
Posted inEmergency / exigency|Comments Off on D.N.J.: Entry to deal with mental health crisis was with exigent circumstances
There was no nexus shown at all between the affidavit for the search warrant between the evidence sought and the place to be searched. The good faith exception doesn’t rescue the search here because the affidavit is, in fact, so lacking in probable cause nobody could rely on it. United States v. Lussier, 2019 U.S. Dist. LEXIS 75969 (D. Minn. May 6, 2019).
“The CS provided no information that there would be drugs in the BMW or the apartment – that information came from the on-going operation. Wade’s argument that asking for two of the usual could mean a table for two, or that asking for white girl could refer to legal escort businesses in Las Vegas, ignores Agent Nestor’s DEA training and experience interpreting terms used by the CS and Wade during the telephone calls. Police are not “required to eliminate all innocent explanations for a suspicious set of facts to have probable cause ….” Pennsylvania v. Dunlap, 555 U.S. 964 (2008).” United States v. Wade, 2019 U.S. Dist. LEXIS 75916 (D. Nev. Mar. 7, 2019).*
Posted inGood faith exception, Nexus, Probable cause|Comments Off on D.Minn.: No nexus whatsoever between offense and evidence sought and place to be searched; therefore, no GFE
The Philadelphia P.D.’s DUI consent form is facially valid and doesn’t violate Birchfield. Commonwealth v. Geary, 2019 PA Super 149, 2019 Pa. Super. LEXIS 440 (May 6, 2019).*
State law provides a mechanism to challenge an alleged illegal search by a motion to suppress. That remedy need only be available to provide for Stone’s full and fair opportunity to litigate it. Smith v. Bucanan, 2019 U.S. Dist. LEXIS 75979 (S.D. Ohio May 6, 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.
