“Similarly, in this case, Charles Williams was discovered with a large amount of narcotics immediately after leaving the Target Apartment. … This incident alone is enough to establish a nexus to the Apartment to justify a warrant to search the Apartment.” United States v. Watts, 2019 U.S. Dist. LEXIS 25672 (W.D. Ky. Feb. 19, 2019).
Defendant’s weaving in his lane was reasonable suspicion for stop of his car. State v. Lobo, 2019 Iowa App. LEXIS 185 (Feb. 20, 2019).*
Defense counsel wasn’t ineffective for not challenging a search that would have lost. Saul v. State, 2019 Iowa App. LEXIS 193 (Feb. 20, 2019).*
Posted inNexus|Comments Off on W.D.Ky.: A customer leaving def’s house with a lot of drugs was nexus to def’s house
Defendant proved ineffective assistance of counsel from defense counsel’s failure to object to the search warrant application coming into evidence full of informant hearsay that wasn’t admissible in the case in chief. People v. Newman, 2019 NY Slip Op 01263, 2019 N.Y. App. Div. LEXIS 1302 (3d Dept. Feb. 21, 2019) [Not to mention the DA arguing it when he or she should have seen this coming. Admittedly, unobjected to hearsay is “evidence,” but the DA should have played it closer to the vest and mitigated the mistakes of defense counsel to avoid this.]: Continue reading →
Posted inUncategorized|Comments Off on NY3: Def counsel was ineffective for not objecting to SW affidavit coming into evidence full of inadmissible informant hearsay
Defendant was subjected to a command authorized search under Mil.R.Evid. 315(d). He argues that the definition of who is in control to authorize the search isn’t clear. Well, it isn’t, but that doesn’t mean that multiple people might not fit the definition. In any event, the good faith exception applies. United States v. Seerden, 2019 U.S. App. LEXIS 4891 (4th Cir. Feb. 20, 2019): Continue reading →
Posted inMilitary searches|Comments Off on CA4: More than one person can have authority to issue command authorized search under Mil.R.Evid. 315(d)
Officers were unaware of defendant’s mental illness when they talked to him and secured his consent. On the totality, it is found voluntary. United States v. Merrill, 2019 U.S. Dist. LEXIS 25763 (D. Me. Feb. 19, 2019) [it seems to me that the court stresses too much the officers’ knowledge of mental illness and not enough on his vulnerability]: Continue reading →
Posted inConsent|Comments Off on D.Me.: Officers’ lack of awareness of def’s mental illness a factor in def’s consent to search
Posted inSurveillance technology, Uncategorized|Comments Off on The Verge: Privacy advocate held at gunpoint after license plate reader mistake, lawsuit alleges
Excising that which was allegedly illegally obtained from the affidavit for this search warrant, probable cause still remains. United States v. Fleur, 2019 U.S. App. LEXIS 4899 (11th Cir. Feb. 20, 2019).
There was no independent probable cause for the juvenile’s arrest because the information the police were relying on was innocuous, and there was no attenuation. In re K.M., 2019 IL App (1st) 172322, 2019 Ill. App. LEXIS 88 (Feb. 20, 2019).*
The trial court properly applied a reasonable suspicion standard for whether a backpack found during a probation search belonged to the probationer. The argument was over whether it was to be a reasonable belief or reasonable suspicion. State v. Garnett, 2019 Ida. LEXIS 32 (Feb. 20, 2019),* substitute opinion 2019 Ida. LEXIS 98 (June 10, 2019)
Posted inIndependent source, Probation / Parole search|Comments Off on CA11: When information in a SW affidavit comes from an illegal source, it is purged; here, PC remains
Waymack is a doctor in the U.S. who also has business in Israel. Israel sought assistance from the SEC under an international MOU for a securities investigation there. Waymack has a Fifth Amendment privilege to not provide information in the U.S. and that can’t be used against him here, but it can be under Israeli law. The court concludes that the SEC’s subpoena here is overbroad as to emails because, as written, if requires production of a huge number of emails. The SEC is ordered to redraft the subpoena to narrow it. United States SEC v. Waymack, 2019 U.S. Dist. LEXIS 25507 (D.D.C. Feb. 19, 2019).*
Defendant doesn’t get discovery on whether Torrent Downpour software used in child pornography searches and investigations is flawed. United States v. Gonzales, 2019 U.S. Dist. LEXIS 26061 (D. Ariz. Feb. 19, 2019).*
Posted inSubpoenas / Nat'l Security Letters|Comments Off on D.D.C.: SEC subpoena aiding Israel securities dept is overbroad and must be narrowed
The District Court disagrees with the USMJ that there was probable cause and nexus for a search warrant for defendant’s Facebook page. But, reasonable judges disagree, and that is enough for the court to conclude that the good faith exception should apply because the officer’s reliance on the search warrant wasn’t unreasonable. United States v. Propps, 2019 U.S. Dist. LEXIS 25789 (N.D. Ga. Feb. 19, 2019): Continue reading →
A 14 month delay between seizure and search of defendant’s cell phone was not unreasonable because the phone would not have been returned to defendant in any event. Plus, he was in jail and couldn’t possess it. United States v. Taylor, 2019 U.S. Dist. LEXIS 25262 (W.D. Wash. Feb. 16, 2019).
The CI was named and gave information against penal interest, and it was detailed and corroborated and it gave probable cause. The state’s good faith exception argument is moot. State v. Foster, 2019 N.C. App. LEXIS 155 (Feb. 19, 2019).
Part of the motion to suppress isn’t timely, and it is therefore waived. United States v. Johnson, 2019 U.S. Dist. LEXIS 26097 (S.D. N.Y. Feb. 19, 2019).*
Sex, publishing, and quasi-legal theft collide in the Backpage prosecution.
Prosecutors are ignoring the Constitution and legal precedent in their zeal to punish the founders and former staff of Backpage, by seizing money and other assets that stem from protected speech and legal activity.
Posted inForfeiture|Comments Off on Reason.com: How the Feds Are Using Civil Asset Forfeiture to Threaten Free Speech
The government had digital evidence that defendant tracked a package on the USPS. His motion to suppress this third-party evidence is denied. First, anybody could track a package on the USPS website if they had the tracking number, and, second, the USPS and Comcast records of use of the website were third-party records. United States v. Felton, 2019 U.S. Dist. LEXIS 25400 (W.D. La. Feb. 16, 2019): Continue reading →
Even though the officer’s entry into the hotel room was unlawful, the officer had probable cause before that. So, even ignoring the observations in the room, the warrant will not be suppressed. United States v. Sandoval, 2018 U.S. Dist. LEXIS 221342 (D. Neb. Dec. 31, 2018).*
This case turns on the validity of the initial stop. The court saw the video, and credits the officer. When confronted with an inconsistency, she candidly clarified and admitted a mistake. The court finds that “to be more of a slight mistake given the speed of the events, and not a willful untruthfulness.” The stop was valid. United States v. McCoy, 2019 U.S. Dist. LEXIS 24493 (E.D. Cal. Feb. 15, 2019).*
Posted inIndependent source|Comments Off on D.Neb.: Initial entry into hotel room was unlawful, but affidavit for SW showed PC before that happened, and SW not suppressed
There’s no reasonable probability defense counsel was ineffective for not filing a motion to suppress defendant’s BAC because it wouldn’t have been granted. State v. Olsen, 2019-Ohio-568, 2019 Ohio App. LEXIS 588 (2d Dist. Feb. 15, 2019),*
Petitioner’s ineffective assistance of counsel on a search claim was raised and rejected in state court. On habeas, it’s treated as not an unreasonable application of federal law under 2254(d)(1) ignoring the bar of Stone v. Powell which isn’t even cited. [Right result, wrong reason.] Virgil v. Inch, 2019 U.S. Dist. LEXIS 24342 (S.D. Fla. Feb. 14, 2019).*
Defense counsel allegedly not investigating the search warrant returns for exculpatory evidence is a speculative 2255 claim because there’s no showing that anything would help the defense if counsel had. White v. United States, 2019 U.S. Dist. LEXIS 24315 (M.D. Fla. Feb. 14, 2019).*
Under the Georgia constitution, the state privilege against self-incrimination prevents the state from using refusal to submit to a BAC test against the accused in a DUI trial. Elliott v. State, 2019 Ga. LEXIS 112 (Feb, 18, 2019).
This search boils down to a credibility contest between defense witnesses and the officers over a consent, and the court details several reasons why credibility was lacking on the defense witnesses because of inconsistencies in their testimony about critical things. United States v. McElroy, 2019 U.S. Dist. LEXIS 25488 (N.D. Ala. Feb. 18, 2019).*
Posted inConsent, Drug or alcohol testing, Privileges|Comments Off on GA: State privilege against self-incrimination prevents the state from using refusal to submit to a BAC test at trial
Plaintiff’s indictment by a Texas grand jury cuts off his malicious prosecution claim. There was no evidence the grand jury was misled. Curtis v. Sowell, 2019 U.S. App. LEXIS 4666 (5th Cir. Feb. 15, 2019).
Defendant was encountered by police officers, and he had something in his hand which concerned them. The officers were 5’10” and 5’4″ and defendant was 6’4″ and 300 pds. When he moved his hand behind his back apparently to hide it, the officer went for his hand for officer safety and brushed against a gun in defendant’s back waistband. It was legitimate to frisk him. United States v. Fredericks, 2018 U.S. Dist. LEXIS 221247 (M.D. Fla. Dec. 18, 2018).*
Posted in§ 1983 / Bivens, Stop and frisk|Comments Off on CA5: Ptf’s indictment by a Texas grand jury cuts off his malicious prosecution claim
Defendant was stopped for a traffic offense, and his tinted windows were way too dark and the officer couldn’t see inside. Defendant was told to lower the window, and he did. The officer could immediately see a knotted plastic bag sticking out of defendant’s waistband at above his groin. The officer, by training and experience, immediately suspected it was drugs, and he ordered defendant of the car. And it was. The search was premised on a plain view, and then a search incident of the car was permitted, and a gun was found. United States v. Belton, 2019 U.S. Dist. LEXIS 24995 (D.D.C. Feb. 15, 2019).
Defendant was convicted of RICO murder. The use of CSLI to place him at the scene of the murder in 2009 wasn’t barred by Carpenter decided nine years later. United States v. Herron, 2019 U.S. App. LEXIS 4679 (2d Cir. Feb. 14, 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.
