Defendant waived his suppression motion by not seeking review of the USMJ’s R&R. United States v. Pugh, 2019 U.S. App. LEXIS 9254 (11th Cir. Mar. 28, 2019).
“The Court need not determine whether any of these facts alone would be sufficient to support a Terry stop because, when viewed together, they provide ample basis for Detective LaFave to have continued questioning Defendant even if he no longer felt free to leave.” Reasonable suspicion was building. United States v. Smith, 2019 U.S. Dist. LEXIS 51085 (S.D. Ind. Mar. 26, 2019).*
Defendant’s argument that his single old and faded “No Trespassing” sign was enough to revoke any implied license to approach his house is rejected. The court leaves open the possibility in a factually more stark case one sign could be enough, but, here, the sign was hard to read in the after-the-fact photographs, on a power pole a distance from the house, and partially blocked by bushes. The officer did not even remember the sign and believed he never saw it (which is possible) but conceded it could have been there. It wasn’t prominent enough to revoke license to enter. State v. Albertson, 2019 Ida. LEXIS 69 (Mar. 28, 2019).
Posted inCurtilage|Comments Off on ID: Old faded “no trespassing” sign that was apparently not prominent wasn’t notice officer couldn’t enter curtilage
Defendant’s phone has been in the hands of the government for many months, but defendant refused to provide the password to access the phone. That justifies the delay in the government accessing the phone. The motion for return of property or to stop attempting to get into the phone is denied. United States v. Cantoni, 2019 U.S. Dist. LEXIS 50722 (E.D. N.Y. Mar. 27, 2019).
Plaintiff claimed a clear misstatement of fact to obtain a search warrant for his house which the District Court found a factual dispute for and denied summary judgment. This is not a proper basis for an interlocutory appeal. Brubaker v. City of Tucson, 2019 U.S. App. LEXIS 9130 (9th Cir. Mar. 27, 2019).*
Posted in§ 1983 / Bivens, Cell phones, Reasonableness|Comments Off on E.D.N.Y.: Govt’s possession of cell phone for nine months waiting to decrypt password isn’t unreasonable
Defendant’s ineffective assistance of counsel claim about defense counsel’s handling of an alleged defective search warrant claim couldn’t be considered on appeal where nobody put the search warrant in the appellate record. Holland v. State, 2019 Tenn. Crim. App. LEXIS 191 (Mar. 28, 2019).
The defense reargued a motion to suppress, which was granted, and then didn’t put any necessary exhibits into the record. The case is remanded to get the record complete so the state can appeal. State v. Leggitt, 2019 La. App. LEXIS 519 (La. App. 5 Cir. Mar. 27, 2019).
Posted inSuppression hearings|Comments Off on If the SW or other exhibits are a potential issue for appeal, they needs to be in the record
Even if Carpenter applies to cell phone tower dumps, which isn’t a certainty, the good faith exception applies. United States v. Pendergrass, 2018 U.S. Dist. LEXIS 222190 (N.D. Ga. Sept. 11, 2018), later opinion on reconsideration, 2019 U.S. Dist. LEXIS 51751 (N.D. Ga. Feb. 6, 2019), adopted, 2019 U.S. Dist. LEXIS 51362 (N.D. Ga. Mar. 27, 2019).*
Defendant’s taillight was out, and that justified his stop. When looking in the car, the officer saw a clear prescription bottle with what appeared to be marijuana in it, and that justified a further search. United States v. Williams, 2019 U.S. Dist. LEXIS 51406 (W.D. La. Mar. 11, 2019),* adopted 2019 U.S. Dist. LEXIS 50906 (W.D. La. Mar. 26, 2019).*
There is no reasonable expectation of privacy in a police interrogation room where defendant was left and was recorded talking to his wife about the shooting. State v. Paige, 2019-Ohio-1088, 2019 Ohio App. LEXIS 1162 (7th Dist. Mar. 27, 2019)
“The evidence indicated that he stopped it for about one minute while the officer entered the license plate in a computer. But considering the totality of the circumstances, Defendant never manifested submission to the implied directive to speak to the officer, and he was thus never effectively seized.” And, “[b]ased on the totality of the circumstances, the court concludes Sgt. Mitchell had a particularized and objective basis to suspect that the occupants of the pickup truck were involved in criminal activity, such that a brief investigative detention was warranted.” United States v. Silcott, 2019 U.S. Dist. LEXIS 51499 (D. Kan. Mar. 27, 2019).*
Defendant could have standing in a storage unit she had another person rent to store her records and stuff. A hearing is required. United States v. Bronfman, 2019 U.S. Dist. LEXIS 49508 (E.D. N.Y. Mar. 26, 2019): Continue reading →
Posted inStanding|Comments Off on E.D.N.Y.: One can have standing in stuff put in a storage unit of another
Prolonged GPS monitoring for punishment for child pornography, a non-contact offense, was unreasonable under Grady v. North Carolina because the state’s interest was only marginal compared to the interest of the offender. Commonwealth v. Feliz, 481 Mass. 689 (Mar. 26, 2019).
Doesn’t involve a search issue, but remarkable nonetheless: This child pornography conviction is reversed for insufficient evidence because the government didn’t exclude others as possible users of the computer. United States v. Pothier, 2019 U.S. App. LEXIS 9003 (1st Cir. Mar. 26, 2019).*
Posted inGPS / Tracking Data|Comments Off on MA: Prolonged GPS monitoring as punishment for CP conviction was unreasonable under Grady
Defendant was on probation and had GPS monitoring as a condition. It was reasonable for the state to access the historical GPS data later when defendant was suspected of a crime. Commonwealth v. Johnson, 481 Mass. 710 (Mar. 26, 2019).
The time for bringing a Rule 41(g) claim runs from the expiration of the statute of limitations for filing the criminal or civil forfeiture case. If criminal proceedings were filed, the time runs from the end of the criminal proceedings. United States v. Ioane, 2019 U.S. Dist. LEXIS 49619 (E.D. Cal. Mar. 26, 2019).*
Defendant’s ineffective assistance of counsel claim about defense counsel’s handling of an alleged defective search warrant claim couldn’t be considered on appeal where nobody put the search warrant in the appellate record. Holland v. State, 2019 Tenn. Crim. App. LEXIS 191 (Mar. 28, 2019).
Defendant’s 2255 for alleged ineffective assistance of counsel for failure to file a suppression motion is denied because he didn’t allege and can’t show that suppression would have happened.
Overman v. United States, 2019 U.S. Dist. LEXIS 50135 (E.D. Tex. Mar. 26, 2019),* adopting 2019 U.S. Dist. LEXIS 50135 (E.D. Tex. Feb. 15, 2019).*
Posted inIneffective assistance|Comments Off on TN: IAC claim re SW fails because SW isn’t in appellate record
The search warrant for defendant’s cell phone was still particular enough for photographs that could be tied to text messages in a murder case. Even deleted photographs were subject to recovery. State v. Page, 2019 N.H. LEXIS 53 (Mar. 19, 2019): Continue reading →
Posted inCell phones, Particularity|Comments Off on NH: Cell phone SW for pictures and texts in a homicide case was particular
“The Fourth Amendment does not have a time limit; it protects individuals from unreasonable seizures, no matter how brief.” The brief detention here wasn’t based on reasonable suspicion and implicated the Fourth Amendment. Commonwealth v. Adams, 2019 Pa. LEXIS 1734 (Mar. 26, 2019): Continue reading →
Posted inReasonable suspicion, Seizure|Comments Off on PA: “The Fourth Amendment does not have a time limit; it protects individuals from unreasonable seizures, no matter how brief.”
When a defendant claims standing based on another’s right to possess, he has to prove the other person had standing, too. Reasonable suspicion for this stop was based on a traffic violation and suspicion the occupants in the vehicle were involved in a domestic dispute. United States v. Samaniego-Villa, 2019 U.S. Dist. LEXIS 50381 (D. N.M. Mar. 26, 2019).
During a traffic stop of a rental vehicle, it was within the bounds of the stop for the officer to call the rental company to determine whether defendant was an authorized renter of the car and for backup. The officer was going to be able to order defendant out of the car. United States v. Woods, 2019 U.S. Dist. LEXIS 50260 (N.D. Ala. Mar. 26, 2019).*
Posted inStanding|Comments Off on D.N.M.: When standing depends on permission to drive another’s car, the standing of the other has to be shown, too
Perhaps no state has unrolled and rolled up a welcome mat set out for a federal guest faster than Utah. What was once a shiny new installation with 5-10,000 jobs attached swiftly became a PR black eye after Ed Snowden exited the NSA and sprung a leak.
Posted inThird Party Doctrine|Comments Off on techdirt: Utah Senate Passes Bill That Would Lock The Government Out Of Warrantless Access To Third Party Records
"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.
