A parole search of the trunk of a car is still an area under the control of the defendant and subject to the search. And, CSLI before Carpenter is admissible. United States v. Korte, 2019 U.S. App. LEXIS 7672 (9th Cir. Mar. 15, 2019).
“In his final claim, Mr. Gladden argued that appellate counsel should have challenged the search warrant. The state post-conviction court already denied this ineffective assistance claim, and this decision was supported because counsel testified at the state evidentiary hearing that he pursued stronger arguments on appeal, the DNA results and their late admission, and counsel was not deficient for presenting better arguments. See Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011) (holding that this Court’s review of an ineffective assistance claim under § 2254(d) is ‘doubly’ deferential to counsel’s performance). The district court correctly denied this claim, and no COA will issue.” Gladden v. Phillips State Prison, 2019 U.S. App. LEXIS 7482 (11th Cir. Mar. 14, 2019).*
A child pornography knock and talk was conducted in Louisiana, and defendant consented to seizure and search of his hard drives. The first encounter with defendant was outside the house. Any illegality was attenuated. When police attempted to search the hard drive, it was password protected. They called defendant and he gave the password over the phone. Child porn was found on the hard drive of defendant having sex with a three year old recorded on a Google glass. United States v. Smith, 2019 U.S. App. LEXIS 7691 (1st Cir. Mar. 15, 2019).
There was probable cause for defendant’s search warrant, including police observation he went into his home and came out to hand drugs to the CI. United States v. Davison, 2019 U.S. App. LEXIS 7500 (6th Cir. Mar. 14, 2019).*
Posted inConsent, Probable cause|Comments Off on CA1: Def consented to seizure of his hard drives, including providing password over the phone
Citizen informants are presumed reliable. Coupled with trash pulls and the informants’ reports of repeated short term stays at defendant’s house, there was probable cause. State v. Laverdure, 2019 ND 72, 2019 N.D. LEXIS 59 (Mar. 15, 2019).
Officers had probable cause from observation of defendant’s activities to search his truck under the automobile exception. United States v. Rios, 2019 U.S. Dist. LEXIS 41211 (D. Me. Mar. 14, 2019).*
Trial court’s order to reveal the CI’s identity is reversed as improvident. No showing of need. Hill v. City of New YorkHill v. City of New YorkHill v. City of New York, 2019 NY Slip Op 01839, 2019 N.Y. App. Div. LEXIS 1861 (1st Dept. Mar. 14, 2019).*
Where there were two bank robberies allegedly attributable to defendant (September 2 and October 23, 2014). The search warrant issued after the latter could seek information and evidence from the former because it was apparently an ongoing operation. Even if there was no probable cause as to the latter, the court finds the affidavit for the search warrant still not stale. United States v. Lang, 2019 U.S. Dist. LEXIS 42599 (D. V.I. Mar. 15, 2019).
Defendant is found to have abandoned a cell phone found on a roof of a building that he claimed the police planted there, a fact the court rejects. He also abandoned the vehicle he was with so he lacks standing in it, too. United States v. Robinson, 2019 U.S. Dist. LEXIS 41892 (E.D. N.Y. Mar. 15, 2019).*
Posted inAbandonment, Staleness|Comments Off on D.V.I.: Nearly two month old information for a bank robbery SW wasn’t stale
Defendant is accused of a coercion of a minor for sex that was revealed during a FISA warrant. The AG having certified that revealing the source would harm national security, the defense doesn’t get to see the papers submitted in camera and ex parte. United States v. Kokayi, 2019 U.S. Dist. LEXIS 40783 (E.D. Va. Mar. 14, 2019): Continue reading →
Posted inSuppression hearings, Warrant requirement|Comments Off on E.D.Va.: Child sex offense revealed during FISA warrant doesn’t entitle defense to see the papers to attempt to suppress
There is no statutory definition of ‘normal speed of traffic.’ And, Officer Anderson did not testify that the SUV was driving less than the ‘normal speed of traffic’ as required by the statute. Rather, he stated that the SUV was going below the speed limit. In articulating the basis for his stop, Officer Anderson conflated ‘the normal speed of traffic as equal to the posted speed limit. … Because driving below the speed limit is not a statutory violation, that did not provide reasonable suspicion to believe the statute had been violated.” United States v. Martinez-Beltran, 2019 U.S. Dist. LEXIS 41497 (D. Ariz. Mar. 14, 2019).*
Defendant’s window tint violation supported the stop, and then reasonable suspicion developed. United States v. Detter, 2019 U.S. Dist. LEXIS 41363 (D. Kan. Mar. 14, 2019).*
There was probable cause supporting the search warrant for defendant’s property. State v. Perez, 2019 Ga. App. LEXIS 194 (Mar. 14, 2019).*
Posted inSeizure|Comments Off on D.Ariz.: Driving below “normal speed of traffic” is undefined and couldn’t form basis for stop
A temporary protective order issued on a citizen’s complaint cannot substitute for a search warrant to permit entry into defendant’s property to seize firearms. State v. Burgess, 2019 Ga. App. LEXIS 191 (Mar. 14, 2019): Continue reading →
Posted inWarrant requirement|Comments Off on GA: A temporary protective order is not a substitute for a SW; they’re also issued on a citizen complaint
A blood sample in a lab is not “information” within the physician-patient privilege statute. The state sought a search warrant for the blood sample. State v. Atwood, 2019 Minn. LEXIS 122 (Mar. 13, 2019).
“[B]y the time Defendant complied with Officer Dolan’s instructions and was seized, Officer Dolan had amassed reasonable suspicion to justify Defendant’s detention.” United States v. Manson, 2019 U.S. Dist. LEXIS 41610 (N.D. Ga. Mar. 14, 2019).*
Defense counsel didn’t pursue the motion to suppress, and it was futile anyway, so there was no ineffective assistance of counsel. State v. NewlinState v. NewlinState v. Newlin, 2019-Ohio-865, 2019 Ohio App. LEXIS 936 (8th Dist. Mar. 14, 2019).*
A strip club was subjected to a raid with 36 officers, including the SWAT team. People were manhandled during the raid. The plaintiff club stated a claim sufficient to overcome summary judgment that the raid and search was unreasonable. WBY, Inc. v. Dekalb County, 2019 U.S. App. LEXIS 7356 (11th Cir. Mar. 13, 2019): Continue reading →
Posted inAdministrative search, Reasonableness|Comments Off on CA11: Strip club survives summary judgment on unreasonable search claim when it was raided by 36 officers including SWAT team
Admission of defendant’s jail call here was more prejudicial than relevant because it omitted context. The jury was at a loss as to what arrest was being talked about. People v. Robinson, 2019 NY Slip Op 01799, 2019 N.Y. App. Div. LEXIS 1724 (2d Dept. Mar. 13, 2019).
An employee of the State Board of Equalization sought to inspect records of the wrong business. An altercation ensued, and he came back with CHP officers with a search warrant for evidence of the altercation [which would be what?]. He participated in the CHP search. He gets no qualified immunity because it is clearly established that his participation was not authorized under the Fourth Amendment. Advanced Bldg. & Fabrication v. Cal. Highway Patrol, 2019 U.S. App. LEXIS 7364 (9th Cir. Mar. 13, 2019).*
“In affirming, we reject his arguments that there was error in the issuance of precise location information warrants (‘PLI warrants’) by a magistrate judge in Maine on a finding of probable cause, which allowed monitoring of the locations of Ackies’s two cell phones. We hold that the PLI warrants were properly issued under the Stored Communications Act (SCA), 18 U.S.C. §§ 2701 et seq. Our holding on this issue is like those of the Seventh and Third Circuits. … [¶] We reject the argument that the cell phones were tracking devices under 18 U.S.C. § 3117, and that the PLI warrants violated Rule 41(b) of the Federal Rules of Criminal Procedure. We also hold, in accord with our decision in United States v. Levin, 874 F.3d 316 (1st Cir. 2017), and the views of four other circuits, that the good-faith exception to suppression could apply in any event.” United States v. Ackies, 2019 U.S. App. LEXIS 7384 (1st Cir. Mar. 13, 2019).
Defendant’s habeas claim that state law wasn’t followed in issuing a search warrant doesn’t state a 2254 claim. [Aside from Stone v. Powell, of course.] Roland v. Sec’y, Dept. of Correction, 2019 U.S. Dist. LEXIS 40581 (N.D. Fla. Mar. 13, 2019).
There was probable cause for the state search warrant based on the officer’s own information and observations. Moreover, there was a citizen informant whose information was corroborated. “ On the basis of that surveillance, Furlong prepared an affidavit and application that was reviewed by the county attorney and approved by a state judge. Under these circumstances, Furlong acted in good-faith when he carried out a search pursuant to the warrant.” Therefore, the good faith exception applied. United States v. StewartUnited States v. StewartUnited States v. Stewart, 2019 U.S. App. LEXIS 7344 (8th Cir. Mar. 13, 2019).*
Posted inProbable cause|Comments Off on N.D.Fla.: 2254 doesn’t give jurisdiction over state law search and seizure claims
There was reasonable suspicion for defendant’s detention for a drug dog. It also helped expedite matters that a drug dog was across the street from the stop. United States v. Rodriguez, 2019 U.S. App. LEXIS 7236 (11th Cir. Mar. 12, 2019)*: Continue reading →
Posted inReasonable suspicion|Comments Off on CA11: Nearby drug dog helped expedite and detention was reasonable
2255 argument that defense counsel was ineffective for not arguing a search issue fails for not elaborating on what that argument should have been and for not including the search warrant materials. Byrd v. United States, 2019 U.S. Dist. LEXIS 39332 (M.D. N.C. Mar. 12, 2019).*
“[A]s a stand-alone ground for relief, the petitioner’s challenge to the search of his vehicle qualifies as having been previously determined and, as such, he cannot raise it in a post-conviction petition. … Moreover, because nothing suggests that the validity of the search was anything other than fully and fairly litigated, the ‘presentation of the merits of the cause’ would not ‘otherwise be subserved’ by the trial court’s refusal to allow the addition of this issue couched in terms of ineffective assistance of counsel.” Carter v. StateCarter v. StateCarter v. State, 2019 Tenn. Crim. App. LEXIS 162 (Mar. 12, 2019).*
Posted inIneffective assistance|Comments Off on M.D.N.C.: Lack of explanation of how IAC search claim would have prevailed is insufficient
Officer Minard stopped the plaintiff for a minor traffic offense, and he let her off with a warning. Despite the break, she “flipped him the bird,” and the officer blue lighted her again and this time ran into her trying to stop her. The second stop violated the Fourth Amendment, and Minard should have known it: this was protected speech. Therefore, he gets no qualified immunity. Cruise-Gulyas v. Minard, 18-2196 (6th Cir. Mar. 13, 2019): Continue reading →
(CNN)Brent Oxley, an Immigration and Customs Enforcement deportation officer in Little Rock, Arkansas, was happy in his work, which he says “gave me the feeling that I was helping protect my country.” A big part of his job: Look through rosters from local jails for people who might be deportable, ask for them to be held for ICE to pick up, then go get them.
"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.
