Age is a factor in the voluntariness of consent. Here, it was a juvenile and the evidence supports the finding of consent. People in interest of B.D., 2019 COA 57, 2019 Colo. App. LEXIS 553 (Apr. 18, 2019).
The only evidence was that defendant turned without signaling, and that was a basis for his stop. Sanchez v. State, 2019 Tex. App. LEXIS 3089 (Tex. App. – San Antonio Apr. 17, 2019).*
“Gladden failed to establish that suppressing evidence recovered from the Range Rover would have successfully undermined the substantial evidence connecting Gladden to the conspiracy.” Therefore, no ineffective assistance of counsel for not moving to suppress the search. It likely would have failed anyway. Gladden v. United States, 2019 U.S. Dist. LEXIS 65139 (S.D. N.Y. Apr. 17, 2019).*
Posted inConsent, Ineffective assistance|Comments Off on CO: Age is a factor in the voluntariness of consent; here a juvenile
The CLSI search warrant was obtained 3½ years before Carpenter, and assuming for the sake of argument that a warrant was required. It clearly showed probable cause to get the information. United States v. Johnson, 2019 U.S. Dist. LEXIS 65896 (E.D. Mo. Mar. 11, 2019), adopted, 2019 U.S. Dist. LEXIS 64774 (E.D. Mo. Apr. 16, 2019).*
“[T]he Court recommends the District Court find that the stop, though pretextual, was a valid Terry stop, and the continuation of the stop was supported by probable cause upon two officers’ detection of the plain smell of marijuana.” The frisk of defendant’s person was reasonable in its inception and scope. United States v. Sleet, 2019 U.S. Dist. LEXIS 64854 (E.D. Ky. Mar. 25, 2019).*
The warrantless blood draw here was without exigent circumstances. The state instead relies on state statute, which the court finds a warrantless blood draw from an unresponsive person violates the Fourth Amendment. State v. Osborn, 2019 Mo. App. LEXIS 542 (Apr. 17, 2019) [this is the issue in Mitchell v. Wisconsin being argued April 23d in SCOTUS]: Continue reading →
Posted inEmergency / exigency, SCOTUS|Comments Off on MO: Warrantless blood draw from unresponsive person requires SW [issue also pending in SCOTUS]
Posted inCell phones, Cell site location information|Comments Off on EFF: Google’s Sensorvault Can Tell Police Where You’ve Been [It’s essentially CSLI but held by Google]
Defendant’s presentation of a fake driver’s licenses to recover his car would not be suppressed. The argument that it is connected to defendant’s alleged unlawful seizure of the car fails because it was attenuated. United States v. Minaya, 2019 U.S. Dist. LEXIS 64793 (D.N.J. Apr. 16, 2019).*
In a probation revocation proceeding, a probable cause affidavit containing hearsay was properly authenticated and admissible under state law. Votra v. State, 2019 Ind. App. LEXIS 168 (Apr. 16, 2019).*
Posted inAttenuation, Burden of proof|Comments Off on D.N.J.: Presentation of fake driver’s license to get car from impound after alleged unlawful seizure was new crime and attenuated
The court of appeals erred in dismissing defendant’s case rather than reversing for a new trial after cell phone evidence was suppressed. There was other untainted evidence the state could use to try to convict on a retrial. State v. McKee, 2019 Wash. LEXIS 269 (Apr. 18, 2019), rev’g 3 Wn. App. 2d 11, 413 P.3d 1049 (2018).
Defendant was alleged to run a tax fraud business from his home. The affidavit for search warrant effectively provided for an “all persons” warrant of those found there as potentially being involved. State v. Shoults, 2019-Ohio-1400, 2019 Ohio App. LEXIS 1497 (12th Dist. Apr. 15, 2019).*
Posted inExclusionary rule, Scope of search|Comments Off on WA: Reversal for unreasonable search of cell phone was required, not dismissal
The state didn’t deny due process by telling defendant he could bring his phone with him to the precinct to talk with the officers because he would “probably be coming back.” Instead, they seized his phone then obtained a search warrant for it. The search warrant was valid, and there was no due process violation. People v. Simmon, 2019 NY Slip Op 02952, 2019 N.Y. App. Div. LEXIS 2959 (1st Dept. Apr. 18, 2019)*: Continue reading →
Posted inCell phones|Comments Off on NY1: No due process violation in telling def he could bring cell phone to precinct house where it was ultimately seized
Defendant was staying at the house of another when a search warrant for the premises was executed. He argued that his particular bedroom wasn’t subject to search under the warrant because he had a separate expectation of privacy in the room. The argument is rejected. The warrant and the probable cause was for the whole house. State v. Muilenburg, 2019 Iowa App. LEXIS 420 (Apr. 17, 2019): Continue reading →
Posted inOverseizure, Scope of search|Comments Off on IA: SW for premises includes whole house, and bedroom of a visitor with a separate REP is still subject to search
Two prior salmonella occurrences satisfied to justify probable cause for an administrative search. The motion for contempt for not providing passwords for the computers is premature. In re Admin., Establishment Insp. of Spa & Organic Essentials of Pa., LLC, 2019 U.S. Dist. LEXIS 65476 (M.D. Pa. Apr. 17, 2019)*: Continue reading →
Posted inAdministrative search|Comments Off on M.D.Pa.: Administrative PC shown for administrative search warrant
Prosecutors ordered a prison cell search of a murder defendant’s cell, and legal materials and trial strategy materials were seized. It started with a search to see if a protective order was violated, but it ended up being quite broad. Attorney-client and work product materials were seized. Defense counsel moved to dismiss the case as a sanction, and the trial court granted it. The state appealed. The Supreme Court reversed the dismissal order as too great a sanction. Instead, it disqualified everybody in the prosecution team involved with the search and seeing the materials for the Sixth Amendment violation. The trial court’s finding of actual prejudice is supported by the evidence and affirmed. State v. Robinson, 2019 Del. LEXIS 194 (Apr. 16, 2019).
Posted inPrison and jail searches, Privileges|Comments Off on DE: Jail cell seizure of trial and A-C privileged materials requires disqualification of entire prosecution team; dismissal order reversed
The affidavit for search warrant for CSLI for defendant’s phone was issued with probable cause. Defendant’s phone allegedly talked to the murder victim shortly before the murder, and it was reasonable to attempt to determine where the defendant’s phone was at the time of the murder. United States v. Johnson, 2019 U.S. Dist. LEXIS 65896 (E.D. Mo. Mar. 11, 2019), adopted, 2019 U.S. Dist. LEXIS 64774 (E.D. Mo. Apr. 16, 2019).
A package in the mail was intercepted at the border on a truck and it contained Xanax hidden in vitamins. Further investigation by Homeland Security revealed many similar packages sent in the past. The package and the past history was a valid basis for an anticipatory warrant. United States v. Green, 2019 U.S. Dist. LEXIS 64953 (D. Mont. Apr. 16, 2019).*
Carpenter doesn’t apply retroactively, and, even if it did, the good faith exception applies. United States v. Henderson, 2019 U.S. Dist. LEXIS 64918 (W.D. Tenn. Apr. 16, 2019).*
The entry to defendant’s back porch was reasonable because he was there with an arrest warrant. On the back porch he saw some potential equipment for a meth lab. When the police applied for a search warrant, the product of the view on the back porch never was related to the applying officer so it didn’t even make it into the search warrant application. Thus, the Fourth Amendment was not violated. United States v. Reed, 2019 U.S. App. LEXIS 11084 (8th Cir. Apr. 16, 2019).
The search warrant for defendant’s cell phone included using defendant’s finger to unlock the phone. United States v. Hood, 2019 U.S. App. LEXIS 11094 (4th Cir. Apr. 16, 2019).
A frisk at 4 am in a high crime area was not only justified, it produced one round of ammunition and an empty holster by plain feel. That led to a search of the ground that produced the firearm. The frisk was valid. United States v. Johnson, 2019 U.S. App. LEXIS 11118 (11th Cir. Apr. 16, 2019) (en banc).
The trial court erred in suppressing the product of defendant’s stop for DUI because there was plenty of evidence supporting that he was in control of the vehicle and was under the influence at the time. State v. Brewer, 2019 Tenn. Crim. App. LEXIS 239 (Apr. 15, 2019).*
Posted inPlain view, feel, smell, Stop and frisk|Comments Off on CA11 (en banc): Frisk in high crime area at 4 am produced ammunition and empty holster by plain feel
Posted inDrug or alcohol testing, SCOTUS|Comments Off on ScotusBlog: Argument preview: Justices to weigh constitutionality of state law allowing blood test of unconscious drivers without a warrant
IP information is not governed by Carpenter. “Obtaining information from Kik, Sprint, and Comcast did not allow law enforcement to track Defendant Jenkins’s physical location over an extended period. At most, it allowed them a lead in identifying him — giving possible usernames or addresses at which someone communicated with the two young girls.” United States v. Jenkins, 2019 U.S. Dist. LEXIS 62776 (N.D. Ga. Apr. 12, 2019).
“The officers were justified in initially stopping the car for a legitimate civil violation. Also, the officers had probable cause to continue the stop after they smelled marijuana.” Then reasonable suspicion developed for a patdown. United States v. Sleet, 2019 U.S. Dist. LEXIS 64147 (E.D. Ky. Apr. 15, 2019).*
Defendant can’t get back seized property he agreed in his plea agreement would be kept by the state. Roberts v. State, 2019 Ala. Civ. App. LEXIS 44 (Apr. 15, 2019).*
“Because the affidavit is not part of the record and because the Defendant includes no argument regarding the validity of the search warrant, we consider any challenge to the search conducted pursuant to the search warrant waived.” State v. Green, 2019 Tenn. Crim. App. LEXIS 240 (Apr. 15, 2019)
A search warrant was not required to install a beeper on an incoming package, so defense counsel wasn’t ineffective for not pursuing it. United States v. Irby, 2019 U.S. Dist. LEXIS 64228 (N.D. Ohio Apr. 15, 2019).*
This 2255 petitioner seeks to depose a member of defense counsel’s staff to prove that defense counsel committed fraud or perjury about not litigating his search claim back in the beginning. This is a successor petition and denied. United States v. Williams, 2019 U.S. Dist. LEXIS 64187 (D. Minn. Apr. 15, 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.
