Defendant failed to appear for his suppression hearing, and the trial court denied the motion based on that. He has a constitutional right to be present, and the court could not deny the motion solely on that ground. Reversed. If there had been an affirmative waiver of his presence, the court could have proceeded without him. State v. Benner, 2018-Ohio-4788, 2018 Ohio App. LEXIS 5123 (5th Dist. Nov. 26, 2018).
Defendant failed to show that he was misled by the officers who wanted to search his phone under any kind of promise he wouldn’t be prosecuted. “There was no deceit by the police officers here. Perry simply misunderstood and misjudged his liability for possessing a firearm as a convicted felon, and Perry cites no authority that required the police officers to advise him of the potential legal ramifications of allowing them to search his phone.” United States v. Perry, 2018 U.S. App. LEXIS 33812 (6th Cir. Dec. 3, 2018).*
Posted inSuppression hearings|Comments Off on OH5: Suppression motion cannot be denied solely for def’s nonappearance at hearing
Defendant’s calls on a contraband cell phone in jail were wiretapped. He doesn’t even have standing because the phone was unlawful. “The cases concerning the precise question at issue—a prisoner’s ability to challenge the introduction of intercepted communications from his contraband cell phone—are unanimous in rejecting the argument Allen advances here. Such challenges are not sanctioned by Title III, particularly when it is read in conjunction with the federal statute criminalizing inmates’ possession of cell phones.” United States v. Allen, 2018 U.S. Dist. LEXIS 202503 (S.D. Ga. Nov. 30, 2018).
Defendant can’t get an order for return of property where he can’t show that the government even has it. United States v. Tziu-Uc, 2018 U.S. App. LEXIS 34105 (9th Cir. Dec. 4, 2018).
Self-represented defendant claimed ineffective assistance of counsel from former counsel’s failure to file a motion to suppress, but he alleges nothing from which the court could see that it had any merit at all. People v. Shareef, 2018 NYLJ LEXIS 3961 (App. Term 2d Dept. Dec. 3, 2018).*
Defendant has no standing in an email account that was opened by somebody else that he disavows is even connected to him. United States v. Lewis, 2018 U.S. Dist. LEXIS 202501 (S.D. N.Y. Nov. 29, 2018).
Reconsideration of prior denial of suppression motion is denied. Whether the CIs knew they were engaged in controlled buys isn’t material to the outcome. United States v. Bacon, 2018 U.S. Dist. LEXIS 203613 (N.D. Ind. Nov. 30, 2018).*
The exclusionary rule does not apply to searches of people on supervised release. Even if it did, there was plenty of cause for the search. United States v. Campbell, 2018 U.S. Dist. LEXIS 203444 (W.D. N.Y. Nov. 30, 2018).*
A person on supervised release was subject to a search condition of his residence. That did not include places he was visiting. Search of his backpack suppressed; a search warrant was required to even enter the premises of a third party. United States v. Roehr, 2018 U.S. Dist. LEXIS 202549 (D. Mont. Nov. 30, 2018).
Seven co-defendants join in one defendant’s motion to suppress the search of his car. They don’t have standing. United States v. Gonzalez, 2018 U.S. Dist. LEXIS 202985 (D. Nev. Nov. 30, 2018).*
On a detention motion, the court considers the search issue as well, and nothing is apparent that the search is bad. The weight of the evidence is great. United States v. Ramos-Castillo, 2018 U.S. Dist. LEXIS 202970 (D. N.M. Nov. 30, 2018).*
Posted inProbation / Parole search, Standing|Comments Off on D.Mont.: Probation search of place probationer was merely visiting unreasonable
“The defendant’s boilerplate claim that the ‘information used to obtain the search warrant from the Circuit Court judge was flawed with false allegation….’, … does not meet the Franks test for a hearing.” “While defendant did not explicitly argue that there was no probable cause to support the authorization to search for cell phones or electronic devices, the Court will consider this issue given defendant’s general arguments concerning the lack of probable cause.” There clearly is. United States v. Brown, 2018 U.S. Dist. LEXIS 202866 (W.D. Mo. Nov. 30, 2018).
Defendant’s arrest in a public place on probable cause required no arrest warrant. United States v. Segura-Gomez, 2018 U.S. Dist. LEXIS 203189 (E.D. N.C. Nov. 30, 2018).*
Peter Sean Brown, who was born in Philadelphia, was detained by Florida authorities and flagged for deportation after a request from ICE, according to a lawsuit.
The CI had a recorder and GPS tracking device placed on him for his safety while he was riding with the defendant. This is not a “tracking device” under state statute or Jones because it wasn’t planted on defendant’s property, and it is not prohibited by the Fourth Amendment. Commonwealth v. Glass, 2018 PA Super 328, 2018 Pa. Super. LEXIS 1301 (Dec. 3, 2018).
2255 petitioner claims the government directed illegal private searches and defense counsel was ineffective for not pursuing it. The record shows that search warrants were used, so there is no claim. Luzula v. United States, 2018 U.S. Dist. LEXIS 202778 (S.D. Fla. Nov. 30, 2018).*
Pro se inmate’s request to amend his complaint that he was framed with false testimony from an officer to get search warrant, corroborated by action by the state’s attorney, stated enough to get over the pleading hurdle of 28 U.S.C. § 1915A(b)(1). Wooden v. Armenteros, 2018 U.S. App. LEXIS 33817 (11th Cir. Dec. 3, 2018)*: Continue reading →
Posted in§ 1983 / Bivens|Comments Off on CA11: Supported claim of false testimony to frame ptf satisfied pleading requirement of § 1915A(b)(1)
A search warrant was executed on defendant’s jail cell on the eve of trial and produced writings that refuted defendant’s claim of incompetence to understand the proceedings. They were admissible. People v. Buenrostro, 2018 Cal. LEXIS 9384 (Dec. 3, 2018).*
The CI was not involved in defendant’s crimes, so he or she is not a material witness. United States v. Reed, 2018 U.S. Dist. LEXIS 203358 (D. Minn. Nov. 30, 2018).*
Defendant’s guilty plea waived his search and seizure claim. United States v. Bethel, 2018 CCA LEXIS 552 (A.F. Ct. Crim. App. Nov. 29, 2018).*
Search warrant papers are discoverable to the defense and the unredacted parts are public records that must be disclosed. “The state asks us to prevent the disclosure of information that it had redacted from search warrants and warrant applications related to this pending criminal prosecution. We deny the petition and require an unredacted disclosure of the search warrants and applications to the defendant. Due process mandates it.” State v. Wooten, 2018 Fla. App. LEXIS 17002 (Fla. 4th DCA Nov. 29, 2018).
The officer accurately reported what information he received, and that’s no basis for a Franks claim. The search warrants were for that, not just arrest warrants. United States v. Brown, 2018 U.S. Dist. LEXIS 203266 (W.D. Mo. Nov. 30, 2018).*
Maybe the third time will be the charm, and the Supreme Court will finally decide an important issue in civil rights litigation: Does the existence of probable cause for an arrest preclude a First Amendment claim that government officers acted impermissibly in retaliation against speech? In Nieves v. Bartlett, argued on Nov. 26, the court returns to this issue, which it twice before ducked.
Posted inSCOTUS|Comments Off on ABAJ: How retaliatory-arrest claims relate to the First and Fourth Amendments
Posted inSeizure|Comments Off on Orin Kerr: “At what point is a driver asleep in an electric car that is on autopilot ‘seized’ by the police slowing down and stopping the car by getting in front of it?”
Pro se plaintiffs just don’t seem to get this: “The Fourth, Sixth, Ninth, and Fourteenth Amendments lack money-mandating provisions, thereby precluding this court’s jurisdiction. Insofar as the Fourth Amendment protects against searches and seizures, it is not money mandating.” Darling v. United States, 2018 U.S. Claims LEXIS 1592 (Nov. 30, 2018).
The state searched defendant’s jail cell while he was in pretrial detention and seized attorney-client privileged information. The state has the burden of proving that it did not affect the case against him, and the case is remanded for further hearings on that and whether the DA’s office should be disqualified. State v. Robins, 2018 Ida. LEXIS 212 (Nov. 30, 2018) (substitute opinion for opinion of August 2, 2018): Continue reading →
Posted inPrison and jail searches, Privileges|Comments Off on ID: Seizure of A-C materials from def’s jail cell violated privilege; remanded for remedy and possible recusal of DA
A search waiver condition “without a warrant and without probable cause” still requires reasonable suspicion. Jarman v. State, 2018 Ind. App. LEXIS 445 (Nov. 30, 2018).
Window tinting that covered the back window brake light was a traffic violation justifying the stop. United States v. Meadows, 2018 U.S. Dist. LEXIS 201565 (D. Utah Nov. 27, 2018).*
The district court credited that defendant was speeding, and the officer then learned the person who he’d stopped was a major player in the Ohio heroin market. The stop led to a valid search warrant for defendant’s house issued on probable cause. United States v. Davis, 2018 U.S. App. LEXIS 33468 (6th Cir. Nov. 29, 2018).*
Defendant’s reasonable detention pre-dog sniff was at a gas station and not on the side of the road. That doesn’t change the constitutional calculus. State v. Ferguson, 301 Neb. 697 (Nov. 30, 2018).
“Here, the Court finds the warrant described with sufficient[] particularity the place to be searched and the things to be seized. The area to be searched was relatively small—a Honda automobile (not an entire house)—and the things to be seized were those items related to ‘armed robberies or assaults.’ While the warrant contains a boilerplate list of items to be seized, it also specifies a ‘black hoodie with a possible bullet hole, Smith and Wesson 9mm handgun black and silver in color (unknown serial number), financial documents or personal information belonging to the following victims (June Thomas Marley, Hazel Burton and Mark Greulach), a black in color wallet, dark in color bandana/do-rag, gray sweatshirt, cash money, tennis shoes with reflective surface, a Verizon flip cell phone, women’s purse and a dark semi-automatic handgun.’ In short, the warrant satisfies the particularity requirement.” United States v. Hayes, 2018 U.S. Dist. LEXIS 203302 (D. S.C. Nov. 30, 2018).
Posted inDog sniff, Particularity, Reasonable suspicion|Comments Off on NE: For Rodriguez purposes, it doesn’t matter that the stop was at a gas station and not on the side of the road
Defendant’s consent was voluntary on the totality. “There is no evidence that the detectives coerced the defendant into signing the consent form and the defendant offered no evidence to the trial court that conflicted with Lombardi’s testimony regarding the facts and circumstances surrounding the defendant’s ultimate decision to consent to a search of his person. Thus, his request to consult an attorney does not weigh against a finding of a voluntary consent.” State v. Sachdev, 2018 N.H. LEXIS 229 (Nov. 29, 2018).
Defendant’s guilty plea waived his Fourth Amendment claim, and it wasn’t brought as an ineffective assistance of counsel claim. United States v. Wilkens, 2018 U.S. Dist. LEXIS 202105 (E.D. Pa. Nov. 29, 2018).*
Posted inConsent|Comments Off on NH: Request to consult with counsel doesn’t weigh against finding voluntary consent
Defendant’s trial objection was based on Miranda and the Fifth Amendment. No Fourth Amendment claim was made so it is waived and post trial briefing is too late. United States v. Horton, 2018 U.S. Dist. LEXIS 201898 (E.D. N.C. Nov. 29, 2018).
Reasonable suspicion for a patdown: “(1) the location of the stopped vehicle was near a high-crime area; (2) the stop was conducted in the early morning hours after over-night surveillance of a location where “short-term” drug trafficking activity was prevalent and where suspicious activity of an over-night move was taking place; (3) Officer Marah knew that Defendant Yackel had been involved with drug sales and assault charges in the past; (4) the passenger in the vehicle (Olson) was a person wanted on several warrants and who was “highly involved in criminal activity, particularly stolen vehicles and narcotics” …; (5) the vehicle was registered to someone else; and (6) when Officer Marah approached the driver’s side of the vehicle, Yackel was ‘breathing very heavy, his hands were shaking and … [he] was visibly nervous.’” United States v. Yackel, 2018 U.S. Dist. LEXIS 201991 (D. Minn. Nov. 29, 2018).*
Posted inReasonable suspicion, Standards of review|Comments Off on E.D.N.C.: Trial objection was 5A and Miranda; 4A claim waived and can’t be raised post-trial
"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.
