Typographical error in the search warrant (648 South 21st Street rather than 748 South 21st Street) would be overlooked under the good faith exception where the correct property was searched. United States v. Carey, 2019 U.S. Dist. LEXIS 74140 (M.D. Pa. May 2, 2019).
Defendant’s car was left parked at a gas station with engine running, the radio too loud, and unattended. The officer waited, looked in, then waited for defendant to come back. “In this case, the initial stop was reasonable because Officer Huckaby had a particularized and objective basis for suspecting a traffic violation had occurred when he heard loud music coming from Hall’s vehicle and observed that the vehicle was idling and unattended, both of which are traffic violations under Louisiana law. Further, once he smelled the marijuana coming from the vehicle and observed the bag of marijuana inside the vehicle, Officer Huckaby had additional reason to suspect criminal activity, making it reasonable to extend the stop. Accordingly, the traffic stop did not violate Hall’s Fourth Amendment rights.” United States v. Hall, 2019 U.S. Dist. LEXIS 73522 (W.D. La. Apr. 15, 1, 2019),* adopted, 2019 U.S. Dist. LEXIS 72936 (W.D. La., Apr. 30, 2019).*
Defendant was seen at 1 am in a high crime area on the street in the Bronx talking with three others. The officer claimed he could see him adjusting his waistband, suggesting a gun. Collectively, the court simply doesn’t believe the officer’s testimony was more than a hunch of potential criminal activity because of vagaries in where he was sitting in the unmarked car to make observations then contradictions in the testimony of following defendant. The government has the burden of proof it was more than a hunch, and it fails to convince the court. United States v. Jarvis, 2019 U.S. Dist. LEXIS 73435 (S.D. N.Y. Apr. 30, 2019).
Defendant’s accepting a package subject to an anticipatory search warrant was sufficient possession for the triggering event. State v. Bronson, 2019 Tenn. Crim. App. LEXIS 288 ( May 2, 2019).*
Posted inAnticipatory warrant, Stop and frisk|Comments Off on S.D.N.Y.: Govt fails its burden of proof to show RS for a stop and frisk based on credibility of the officer; it was a hunch at best
“The court correctly denied, on the ground of lack of standing as well as on the merits, defendant’s motion to controvert two search warrants. Defense counsel’s equivocal, vague and conclusory statements that defendant had standing to challenge the searches of two separate locations based upon information and belief that defendant resided in both of those premises failed to allege facts sufficient to demonstrate a reasonable expectation of privacy in either place ….” There was also probable cause. People v. Wilson, 2019 NY Slip Op 03452, 2019 N.Y. App. Div. LEXIS 3457 (1st Dept. May 2, 2019).
“Regardless of whether defendant made a valid waiver of the right to appeal, we find, based on our in camera review of the sealed search warrant documents, that there was probable cause for the issuance of both warrants.” People v. Pena, 2019 NY Slip Op 03448, 2019 N.Y. App. Div. LEXIS 3441 (1st Dept. May 2, 2019).*
This was not a warrantless search because the search warrant had been issued just prior to the entry. And there was probable cause for the warrant. People v. Oliver, 2019 N.Y. App. Div. LEXIS 3423 (3d Dept. May 2, 2019) (conviction date Dec. 1, 2014: 53 months to decide this appeal in a memorandum).*
Posted inBurden of pleading, Standing|Comments Off on NY2: “Defense counsel’s equivocal, vague and conclusory statements that defendant had standing to challenge the searches” has no offer of proof or facts
The standard for abandonment is objective. What do the facts show? Here, defendant left his backpack in a place where he could not keep an eye on it. Disclaiming ownership alone is not the test. Patton v. State, 2019 Del. LEXIS 220 (Apr. 30, 2019): Continue reading →
Posted inAbandonment|Comments Off on DE: The standard for abandonment is objective; actual disclaiming ownership not required
Defendant’s argument on lack of probable cause misses the mark because it’s cast in terms more like beyond a reasonable doubt of criminal activity and not merely probable cause. There was probable cause. United States v. Milliner, 2019 U.S. Dist. LEXIS 73024 (E.D. Pa. Apr. 29, 2019): Continue reading →
Posted inProbable cause|Comments Off on E.D.Pa.: Def’s argument that cast PC for SW more as BRD “misapprehends the import and purpose of search warrants in two fundamental ways”
An improperly certified police officer was still competent as a witness at a suppression hearing because all witnesses are generally competent to testify to what they saw. Rule of Evid. 601, 602. Under the totality of circumstances, there was probable cause for issuance of the search warrant for defendant’s vehicle. State v. Robertson, 2019 MT 99, 2019 Mont. LEXIS 158 (Apr. 30 2019).
Defendant’s parole search was valid under Samson. United States v. Massengill, 2019 U.S. App. LEXIS 13142 (6th Cir. May 1, 2019).*
Posted inProbation / Parole search, Suppression hearings|Comments Off on MT: An improperly certified police officer was still competent as a witness at a suppression hearing under Rule of Evid. 601, 602
While defendants were in pretrial detention on a RICO indictment, the government apparently surreptitiously recorded conversations between them because there were legitimate witness safety concerns. The court finds no reasonable expectation of privacy in that situation. United States v. Ross, 2019 U.S. App. LEXIS 13039 (9th Cir. Apr. 30, 2019): Continue reading →
Posted inPrison and jail searches|Comments Off on CA9: Recording pretrial detention inmates’ conversations for witness safety was reasonable
The protective sweep here was invalid: “Here, the officers had no articulable basis to believe that anyone was in King’s house as King sat on the front porch.” However, his later consent search was valid. “Defendant claims that he did not voluntarily give his consent to the home search because an officer had threatened to obtain a warrant to search his home if Defendant did not consent. Although an officer’s baseless threat to obtain a warrant may render a consent involuntary, the threat here was a stretch but was not completely baseless.” United States v. King, 2019 U.S. Dist. LEXIS 72013 (N.D. Ohio Apr. 27, 2019).
Posted inConsent, Protective sweep|Comments Off on N.D.Ohio: Sitting alone on porch doesn’t justify a protective sweep; but consent was still valid
“The address is shown as ‘106 Melwood Street’ nine times in the affidavit and one time as ‘106 Melwood Drive.’ Based on the totality of the information contained in the affidavit, we determine that the use of the word ‘drive’ was an innocent mistake that is ‘insufficient to invalidate the search warrant.’” State v. Martin, 2019 Tenn. Crim. App. LEXIS 282 (Apr. 30, 2019).
Michigan adheres to its prior cases that a person convicted can reject probation and take incarceration if he objects to the search condition. Accepting probation is a waiver. People v. Bensch, 2019 Mich. App. LEXIS 1496 (Apr. 30, 2019).
Posted inParticularity, Probation / Parole search|Comments Off on TN: One reference to address as “Drive” not “Street” hardly makes the SW without PC or otherwise invalidate it
The search warrant was challenged as a general warrant, but the court finds that it specified the crime under investigation, and that limited it. “Although the specific electronics recovered were not part of [one] burglary, those devices were nevertheless well within the scope of the search warrant.” United States v. Thomas, 2019 U.S. Dist. LEXIS 72340 (E.D. Va. Apr. 24, 2019).
Pre-Carpenter warrantless obtaining of CSLI is admissible, but the court doesn’t like it: “Though this is a close case and this Court finds compelling the logic of Beverly, this Court is constrained to find that the good faith exception applies in this case, and the CSLI will not be suppressed even though obtained without a warrant. Law enforcement officers followed the procedure set out by a statute and complied with Sixth Circuit law at the time. Krull and Davis establish that the good faith exception applies in such circumstances.” United States v. Sands, 2019 U.S. Dist. LEXIS 72228 (S.D. Ohio Apr. 30, 2019).*
While tribes generally do not have criminal jurisdiction over non-Indians, tribal officers can stop people for apparent offenses on tribal lands. Defendant’s pretextual stop argument is rejected because there was an objective basis for it. United States v. Santistevan, 2019 U.S. Dist. LEXIS 72263 (D.S.D. Apr. 30, 2019): Continue reading →
The Michigan Medical Marijuana Act does not create immunity from a search when an officer has probable cause to believe that a vehicle has marijuana in it. United States v. Hinds, 2019 U.S. Dist. LEXIS 72379 (E.D. Mich. Apr. 30, 2019): Continue reading →
The data, published Tuesday by the Office of the Director of National Intelligence (ODNI), revealed a 28% rise in the number of targeted search terms used to query massive databases of collected Americans’ communications.
Posted inNational security|Comments Off on TechCrunch: NSA says warrantless searches of Americans’ data rose in 2018
Appellant was an ABC officer terminated for not following agency search and seizure protocols which are more protective of constitutional rights than the Fourth Amendment. The court considers the exceptions argued, including the highly regulated business exception, plain view, exigency, and consent, and finds his argument unpersuasive. The state seeks to provide more protection to its citizens and the regulatory officers have to respect it, and the hearing officer’s determination that the exceptions were not shown by him to apply is not contrary to law. Taylor v. Va. Alcoholic Bev. Control Auth., 2019 Va. App. LEXIS 106 (Apr. 30, 2019).
Posted inAdministrative search|Comments Off on VA: ABC officer validly terminated for not following agency S&S protocol more protective than 4A
Defendant’s Miranda rights were violated, but it had no effect on the search. United States v. McAdams, 2019 U.S. Dist. LEXIS 71772 (S.D. Fla. Apr. 14, 2019).*
Defendant wasn’t in custody at the time of his statement. Thomason v. State, 2019 Fla. App. LEXIS 6487 (Fla. 1st DCA Apr. 29, 2019).*
Posted inUncategorized|Comments Off on S.D.Fla.: Lack of Miranda warning had no effect on search
An arrest warrant doesn’t give authority to search a cell phone with the arrest. After a search warrant was issued for the phone for the crime of auto burglary, there is no nexus to the crime, and the search warrant is suppressed. And, if that’s not enough, the search for all things on the cell phone is fatally overbroad, following United States v. Winn, 79 F. Supp. 3d 904, 919 (S.D. Ill. Feb. 9, 2015), which comports with Fifth Circuit authority. There is no legitimate basis for such a broad search. United States v. Oglesby, 2019 U.S. Dist. LEXIS 71238 (S.D. Tex. Apr. 26, 2019).
Defendant didn’t ask in his motion to suppress for the CI’s identity to attempt to prove he was falsely set up. Thus, he waived that issue. State v. Yetts, 2019-Ohio-1203, 2019 Ohio App. LEXIS 1668 (7th Dist. Mar. 29, 2019).
Posted inCell phones, Nexus, Overbreadth, Particularity|Comments Off on S.D.Tex.: SW for entire cell phone in auto burglary is suppressed as both without nexus and overbroad
The protective sweep went far beyond the requirements of Buie, searching the entire house, and it is ordered suppressed. As to “the inevitable discovery analysis, the Court finds that the Government has failed to demonstrate, by a preponderance of the evidence, that the handgun would have been inevitably discovered by lawful means,” so that alternative fails, too. United States v. Rodriguez, 2019 U.S. Dist. LEXIS 71628 (D. N.J. Apr. 29, 2019).
Defendant’s car was subject to search under the automobile exception where officers watching him in a credit card and identity theft operation saw him put boxes in the car. Inevitable discovery also applies because a later search warrant was issued for the car independent of the first search. United States v. Delva, 2019 U.S. App. LEXIS 12856 (11th Cir. Apr. 29, 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.
