A traffic stop based on a recalled warrant was still reasonable under the good faith exception of Evans and Herring. When she was arrested, her purse was subject to search incident: “Accordingly, because [her] purse was voluntarily brought outside the car by Hinerman who was then placed under arrest, we find the search of Hinerman’s purse was pursuant to her arrest.” State v. Hinerman, 2019-Ohio-15. 2019 Ohio App. LEXIS 14 (5th Dist. Jan. 4, 2019).
Defendant suppression issue wasn’t raised in the trial court and thus can’t be considered on appeal. Reyes-Hernandez v. State, 2019 Del. LEXIS 4 (Jan. 3, 2019).*
“¶ 84. In sum, we conclude that a direct private right of action for damages based on alleged flagrant violations of Article 11 is available against the State. The common law doctrine of sovereign immunity does not preclude such an action, even though the VTCA is not applicable. A plaintiff must show either a violation of clearly established law, which the actor knew or should have known he or she was violating, or bad faith, which may take the form of discriminatory animus. In this particular case, we conclude that the stop and seizure of plaintiff’s car constituted violations of Article 11. Accordingly, we reverse the superior court’s summary judgment ruling in favor of the State. Because the parties heretofore have not had the opportunity to address the elements of a direct action under Article 11 as established in this opinion, we remand the matter to give them an opportunity to file renewed motions for summary judgment, if they so choose. We make no pronouncement at this juncture as to whether the facts of this case are sufficient or insufficient to survive a renewed motion for summary judgment.” Zullo v. State, 2019 VT 1, 2019 Vt. LEXIS 1 (Jan. 4, 2019). Also:
The seizure, aimed at immobilizing the plaintiff’s vehicle while the officer sought a search warrant, was essentially based solely on the trooper’s initial detection of the faint odor of burnt marijuana, which did not, in and of itself, create fair probability that marijuana would be found in the vehicle.
Posted in§ 1983 / Bivens, Racial profiling|Comments Off on VT: No sovereign immunity for flagrant search and seizure violations; implied right of action under state constitution
Defendant’s post-conviction claim on the 2012 search of his cell phone fails because it wouldn’t have been granted back then. Blunkall v. State, 2019 Tenn. Crim. App. LEXIS 11 (Jan. 4, 2019).*
The CI’s information was significantly corroborated by observations of the officer, including a discussion by the defendant about drug sales. State v. Dunning, 2019 Del. Super. LEXIS 1 (Jan. 2, 2019).*
On remand from the Fourth Circuit, the court determines that Byrd applies and defendant had a reasonable expectation of privacy in the car he rented. As for the good faith exception, the court finds that it is bound by circuit law that said that there was no standing, despite other circuits holding that he did. Motion to suppress denied. United States v. Houston, 2019 U.S. Dist. LEXIS 1735 (W.D. N.C. Jan. 4, 2019).
Defendant’s conclusory arguments that the CI in the controlled buy wasn’t credible for issuance of a search warrant doesn’t undermine the presumption of validity of the warrant. United States v. Colon, 2019 U.S. Dist. LEXIS 581 (M.D. Pa. Jan. 3, 2019).*
Posted inGood faith exception, Informant hearsay|Comments Off on W.D.N.C.: Defendant has standing in rental car under Byrd but loses under GFE under binding circuit law
Posted inSurveillance technology|Comments Off on National Law Review: City Attorney of Los Angeles Sues Popular Weather App Claiming Deceptive Collection and Sharing of Geolocation Data
Defendant crossed into the U.S. at a pedestrian border crossing. A dog sniff of the person was conducted. “The Court finds that the intrusiveness of the canine search did not rise to the level of a non-routine search, which would require reasonable suspicion. Further, the Court believes Kelly is particularly instructive and finds that the canine search is less intrusive than a pat-down search and requires no individualized suspicion at the international border.” United States v. Javalera-Hernandez, 2019 U.S. Dist. LEXIS 1053 (D. Ariz. Jan. 3, 2019).
Automobile exception search justified by officer smelling marijuana and defendant’s admission there was 4-5 pounds in the car. United States v. Valdes, 2019 U.S. Dist. LEXIS 796 (D. Me. Jan. 3, 2019).*
A state case worker who photographed a partially unclothed child at school gets qualified immunity for a special needs search of the child. No SCOTUS or circuit case says that the special needs doctrine does or does not apply here. The closest might be Ferguson on drug testing a pregnant woman in coordination with the police where the Supreme Court held the search was unreasonable. In other circuits, the case law is split 4-2 on whether a “search” like this is reasonable under special needs. Therefore, qualified immunity applies. The court also finds a Fourteenth Amendment due process right in familial associations lacking here because of the child abuse nature of the government action rather than it being wanton or gratuitous. Doe v. Woodard, 2019 U.S. App. LEXIS 112 (10th Cir. Jan. 3, 2019).*
House sitter and dog watcher had no reasonable expectation of privacy in the house he was watching. Officers at the door could also see drugs on the table from the door. He had no standing: “In sum, it is not clear that defendant exhibited an expectation of privacy in his activities inside Barry’s house at all. And even if he did exhibit some such expectation, it was a very slight, attenuated one.” People v. McCauley, 2018 IL App (1st) 160812, 2018 Ill. App. LEXIS 1020 (Dec. 28, 2018).
Claimants consented to searches of their backpacks and rolling bags. The dispute was whether the consent was limited to the backpacks. A written consent form would be good, but it’s not mandatory. United States v. Funds in the Amount of $830,000 in United States Currency, 2019 U.S. Dist. LEXIS 853 (N.D. Ill. Jan. 2, 2019).*
Tribal officers at a casino near El Paso watched on surveillance video defendant touch a rifle in his car but not pull it out when he was being harassed on the parking lot. They had reasonable suspicion to encounter him but not probable cause. His arrest in the casino after he came back in was unreasonable, and involved excessive force. Everything after that was suppressed, including his statement in the hospital and the warrantless search of his vehicle in the casino parking lot. United States v. Ramirez, 2019 U.S. Dist. LEXIS 1092 (W.D. Tex. Jan. 2, 2019).*
Officer’s affidavit that there was substantial evidence defendant was streaming child porn showed probable cause. This was not a single image which would not have been probable cause. Five months wasn’t stale. United States v. Manning, 2019 U.S. Dist. LEXIS 104 (D. Minn. Jan. 2, 2019).*
Posted inAutomobile exception, Probable cause|Comments Off on W.D.Tex.: Def’s warrantless arrest in a casino by tribal officers was without PC; warrantless search of his car in parking lot suppressed
Google and NCMEC did not conduct Fourth Amendment searches when they encountered child pornography tied to his email account. They did private searches for their own purposes, and NCMEC did not expand Google’s private search. United States v. Ringland, 2019 U.S. Dist. LEXIS 311 (D. Neb. Jan. 2, 2019).
The defense doesn’t get the informant’s name just on a desire to talk to the informant in the hopes of getting exculpatory information. United States v. Mills, 2019 U.S. Dist. LEXIS 23 (E.D. Mich. Jan. 2, 2019).* Similar is information on a “tipster.” United States v. Clayborne, 2019 U.S. Dist. LEXIS 70 (E.D. Wis. Jan. 2, 2019).*
Posted inInformant hearsay, Private search|Comments Off on D.Neb.: Google’s email search was a private search and NCMEC didn’t expand it
Assistant prosecutors involved in an investigation do not get prosecutorial immunity for silence in the face of an alleged Fourth Amendment violation in their presence they allegedly condone.
Fogle v. Pa. State Police, 2018 U.S. Dist. LEXIS 217701 (W.D. Pa. Dec. 28, 2018).
A weapons frisk of passengers in the car was based on reasonable suspicion from previous knowledge of them including a prior incident with violence and backseat passengers who were reaching for things. State v. Hitsman, 2018-Ohio-5315, 2018 Ohio App. LEXIS 5632 (9th Dist. Dec. 31, 2018).*
Posted in§ 1983 / Bivens, Reasonable suspicion|Comments Off on W.D.Pa.: Asst prosecutors at an investigation don’t get immunity for 4A violation they observed and allegedly condoned
Defendant’s driving alleged nearly caused an accident with a state trooper and another car, so he stopped it. The smell of marijuana was coming from the car, and that was probable cause for a search of the car. State v. Seckinger, 301 Neb. 963 (Dec. 28, 2018).*
Controlled buys from defendant then a search based on the controlled buys doesn’t permit consecutive sentences under Indiana law. It’s all part of the same investigation. Cannon v. State, 2018 Ind. App. LEXIS 495 (Dec. 28, 2018).*
Posted inPlain view, feel, smell|Comments Off on NE: Smell of MJ from a car is PC to search it
Drug testing of substitute teacher applicants was reasonable. School employment is different and protection of the environment of children is paramount. Friedenberg v. School Board of Palm Beach County, 2018 U.S. App. LEXIS 35905 (11th Cir. Dec. 20, 2018): Continue reading →
Defendant claims a Franks violation because the CI is believed to be Rudnick, and Rudnick has credibility problems. Defendant doesn’t allege what is false to even get a hearing. Besides, Rudnick is the CI and not the affiant. Denied. United States v. Lopez, 2018 U.S. Dist. LEXIS 217281 (D. Nev. Dec. 28, 2018).
Officers had probable cause for search of defendant’s vehicle based on controlled telephone calls between defendant and CI where a drug delivery was discussed. United States v. Thomas, 2018 U.S. Dist. LEXIS 217236 (S.D. Ind. Dec. 28, 2018).*
Posted inFranks doctrine, Informant hearsay|Comments Off on D.Nev.: CI’s alleged (and unsupported) false statement isn’t a Franks violation; has to be the affiant’s
A secondary search at the border can still be “routine” depending on its intensity. In this district, “routine” deals with searches of the person. Here, it was a search of a letter in the car that was a basically love letter to a juvenile along with clothes for a juvenile female. “In short, Ramsey expressed the Supreme Court’s determination that a search of an envelope and its contents at the border is a routine search for purposes of the border-search exception to the Fourth Amendment. Thus, the search of Blackwell’s envelope and letter was lawful, whether or not the CBP agents had reasonable suspicion of contraband or evidence of criminal activity.” Defendant was attending a function at the Peace Garden at the border, and DHS checked with those in charge there and found there was a juvenile there matching the name of the person in the letter. He refused to talk and they got a search warrant for his stuff, and child pornography was found. United States v. Blackwell, 2018 U.S. Dist. LEXIS 217283 (D. Minn. Oct. 30, 2018), adopted, 2018 U.S. Dist. LEXIS 216489 (D. Minn. Dec. 27, 2018).
Posted inBorder search|Comments Off on D.Minn.: Border search of love letter in car led to more inquiries and then finding CP
As defendant’s prosecution in this state case was proceeding to trial, a federal search warrant was also issued in a spinoff investigation. After conviction, a motion for new trial was filed based on alleged newly discovered evidence from the federal search warrant. This not newly discovered, and it was speculative, and the trial court did not err in denying the motion for new trial without a hearing. State v. Laurent, 2018-Ohio-5304, 2018 Ohio App. LEXIS 5610 (5th Dist. Dec. 28, 2018).*
A Texas grand jury indictment cuts off a malicious prosecution claim. Curtis v. Sowell, 2018 U.S. App. LEXIS 36700 (5th Cir. Dec. 28, 2018).*
Posted inArrest or entry on arrest|Comments Off on OH5: Separate federal SW against def didn’t warrant new trial; all too speculative
"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.
