Police get a 911 call that a man was yelling and screaming at and threatening somebody, and they come to the house. At the door, defendant admits that he was because he was stressed out about “issues.” He also admitted that there was another person inside. Entry was justified under the emergency exception. The district court’s denial of a hearing on the voluntariness of consent is moot. United States v. Guillen, 2018 U.S. App. LEXIS 33482 (9th Cir. Nov. 29, 2018).*
The officer conducting a traffic stop and a report from other officers that defendant was likely carrying methamphetamine, and it was based on fairly detailed information. When a traffic stop occurred, the officer was concerned that the occupants were “too stiff” to conceal their true emotions. There was reasonable suspicion for a dog sniff. United States v. Ballard, 2018 U.S. Dist. LEXIS 202286 (C.D. Ill. Oct. 25, 2018).*
Posted inEmergency / exigency, Reasonable suspicion|Comments Off on CA9: Police get a 911 call that def is yelling and threatening somebody in house; exigency based entry justified after talking to him
No search issue here; just a cautionary tale for police:
A female CI came in for a controlled buy on defendant. He feared she was wired and made her strip to her underwear, and she did. Then he told her to take her underwear off, and he placed his fingers in her vagina looking for a recorder, apparently. He scratched her vagina, and she bled. She reported it back to the police, and he was charged with rape on the CI. This appeal is a on a bail issue. Johnson v. State, 2018 Ind. App. LEXIS 443 (Nov. 29, 2018).*
Posted inInformant hearsay|Comments Off on IN: Female CI doing a controlled buy is allegedly digitally penetrated by def looking for recorder, and he’s charged with rape
Giving plaintiff a notice to appear in court is not a seizure for false arrest purposes. Leon v. Summit County, 2018 U.S. App. LEXIS 33349 (10th Cir. Nov. 28, 2018).
The information from the CI was detailed, down to a pink Glock with camo grips, and the CI was an observer of the facts related. This, coupled with the officer’s prior knowledge of the defendant, was reasonable suspicion. United States v. Lagrange, 2018 U.S. Dist. LEXIS 200958 (N.D. Iowa Nov. 28, 2018).*
Defendant’s 2255 claim that defense counsel was ineffective for not challenging the search of his car fails both Strickland prongs. There was probable cause based on defendant’s admissions. Officers got a search warrant when he refused consent. Perry v. United States, 2018 U.S. Dist. LEXIS 202474 (D.N.J. Nov. 29, 2018).*
The sound of multiple people inside a house before anybody came to the door then seeing armor piercing ammunition inside the door justified a protective sweep. Commonwealth v. Hall, 2018 PA Super 319, 2018 Pa. Super. LEXIS 1266 (Nov. 28, 2018).
Good faith first, probable cause second. The search warrant was executed in good faith. None of the four Leon exceptions applies. As to probable cause, the affidavit shows probable cause that child pornography would be found. United States v. Gonzalez, 2018 U.S. Dist. LEXIS 200577 (S.D. Tex. Nov. 7, 2018),* adopted, 2018 U.S. Dist. LEXIS 199672 (S.D. Tex. Nov. 28, 2018).*
Posted inProtective sweep|Comments Off on PA: Protective sweep justified by sounds of multiple people inside and delay in answering door
TENSION HAS EXISTED for decades between law enforcement and privacy advocates over data encryption. The United States government has consistently lobbied for the creation of so-called backdoors in encryption schemes that would give law enforcement a way in to otherwise unreadable data.
Posted inSurveillance technology|Comments Off on wired: Deputy AG Rod Rosenstein Is Still Calling for an Encryption Backdoor
Defendant’s thumb print on a beer can found in a burglarized house was a reasonable inference he was involved. The search warrant for his house for stolen property wasn’t stale because it was reasonable to believe he would still be in possession of stolen property a month later. United States v. Kirkland, 2018 U.S. App. LEXIS 33360 (9th Cir. Nov. 28, 2018).
Officers had reasonable suspicion based on witness statements and locating defendant’s car near the scene of the crime. United States v. Green, 2018 U.S. Dist. LEXIS 201107 (M.D. Pa. Nov. 28, 2018).*
Posted inReasonable suspicion, Staleness|Comments Off on CA9: SW for stolen property in def’s house wasn’t stale despite it being a month
An anonymous crimestoppers report was uncorroborated and did not provide probable cause for a search. United States v. Allgood, 2018 U.S. Dist. LEXIS 200729 (W.D. Tenn. Nov. 28, 2018): Continue reading →
Posted inProbable cause|Comments Off on W.D.Tenn.: Anonymous crimestoppers report was uncorroborated and did not provide probable cause
Texas follows the possession test for searches of personal belongings of visitors found during a search of premises. Thus, defendant’s purse was not in her actual personal possession at the time of the entry and searches, so it was not exempt from a search of the premises. State v. Merritt, 2018 Tex. App. LEXIS 9654 (Tex. App.–San Antonio Nov. 28, 2018).
911 calls as reasonable suspicion are determined on a case-by-case basis. Here, a 911 call about an intoxicated driver was fairly quickly corroborated in significant part, and that was reasonable suspicion. United States v. Coleman, 2018 U.S. Dist. LEXIS 201308 (E.D. Tex. Nov. 28, 2018).*
Posted inReasonable suspicion, Scope of search, Warrant execution|Comments Off on TX4: Visitor’s property searched during SW for premises is governed by possession test: was the person in actual possession at the time?
Consent to “look around the home” is broad consent. “Here, Special Agent Kovach asked Defendant if he minded if the ATF agents looked around the Home, to which Defendant replied, ‘No.’ … Special Agent Kovach’s search request was broad, and Defendant’s answer indicated consent without any caveat or limitation as to where the ATF agents could search in the Home. The Court thus concludes that Defendant’s initial consent to search the home permitted the ATF Agents to search the entire Home until consent was withdrawn. Up to the point of the seizure of the clothing at issue, none of the relevant testimony suggests that Defendant withdrew his consent. Accordingly, the Court also concludes that up to Special Agent Kovach’s seizure of the sweatshirt, hat, and gloves, Defendant did not withdraw his consent to search the Home.” United States v. Morales, 2018 U.S. Dist. LEXIS 199662 (M.D. Pa. Nov. 27, 2018).
Posted inConsent, Scope of search|Comments Off on M.D.Pa.: Consent to “look around the home” is broad consent
The fact AOL is a mandated reporter of child pornography that it discovers does not make AOL a state actor in its discovery of child pornography. Thus, AOL’s search of the email was a private search. Then there was a search warrant issued. In any event, the officers acted in good faith. State v. Ryan, 2018-Ohio-4739, 2018 Ohio App. LEXIS 5064 (5th Dist. Nov. 28, 2018).
The USMJ’s finding stated that defendant’s trash containers were off the curtilage at the time of the trash pull. In addition, the trash pull occurred just before that day’s trash collection by the city. United States v. Warren, 2018 U.S. Dist. LEXIS 199913 (E.D. N.C. Nov. 27, 2018).*
Posted inCurtilage, Private search|Comments Off on OH5: A mandated CP reporter isn’t a state actor
The search warrant for information was based on probable cause, but it lacked a temporal limitation. That, however, doesn’t lead to suppression of the whole; just suppression of that which was obtained that predates the probable cause. State v. Anderson, 2018 Del. Super. LEXIS 1326 (Nov. 5, 2018).
A Brady claim of an internal affairs investigation of one of the officers involved in the search of defendant’s house doesn’t get him relief. That officer searched one room with another officer and it wasn’t material to the question of much of anything, considering the weight of evidence in the case. United States v. Waldron, 2018 U.S. App. LEXIS 33221 (10th Cir. Nov. 27, 2018)
Posted inFranks doctrine, Particularity|Comments Off on DE: Lack of temporal limitation in data search only results in suppression of the excess, not all
The government gets to use the affidavit for search warrant but partially redacted to show defendant’s consciousness of guilt. United States v. Zhong, 2018 U.S. Dist. LEXIS 199848 (E.D. N.Y. Nov. 26, 2018).
A firearm found in a search of defendant’s girlfriend’s apartment three months after the crime was admissible at least as 404(b) evidence that defendant had knowledge of and access to firearms. It was a question of weight for the factfinder rather than admissibility. People v. Birkett, 2018 NY Slip Op 08072, 2018 N.Y. App. Div. LEXIS 8009 (1st Dept. Nov. 27, 2018).*
Posted inUncategorized|Comments Off on E.D.N.Y.: Partially redacted aff for SW admissible to show consciousness of guilt
Defendant’s co-tenant consented to a police entry for a domestic abuse investigation, and then defendant later objected. Randolph does not limit the ability of the police to protect domestic abuse victims. Once inside, a protective sweep was permissible, too. Police also obtained a search warrant for the premises and a drug dog came along. The dog alerted on a car in the driveway and within the warrant, so that search wasn’t invalid under Collins v. Virginia. United States v. Coleman, 2018 U.S. App. LEXIS 33199 (8th Cir. Nov. 27, 2018). As to the consent: Continue reading →
Obtaining defendant’s CSLI six years before Carpenter was lawful, and it doesn’t form a basis for relief now. Osiomwan v. United States, 2018 U.S. Dist. LEXIS 200033 (D. Md. Nov. 27, 2018).*
Defendant’s statements to the police were voluntary despite not being told that a search warrant had been executed. After defendant learned about that he kept talking. United States v. Tangtong, 2018 U.S. Dist. LEXIS 200000 (W.D. Va. Nov. 27, 2018).*
Posted inCell site location information|Comments Off on D.Md.: Obtaining defendant’s CSLI six years before Carpenter was lawful; no 2255 relief
It was a reasonable inference for the USMJ that persons who possess firearms usually do so at home. Therefore, there was probable cause for the search warrant. United States v. Bland, 2018 U.S. Dist. LEXIS 199111 (E.D. Mich. Nov. 26, 2018).
The merits of defendant’s Fourth Amendment claim were determined on direct appeal, and defendant isn’t entitled to relief via post-conviction review over how it could have been better argued. Aguilar v. State, 2018 Tenn. Crim. App. LEXIS 863 (Nov. 27, 2018).*
Posted inProbable cause|Comments Off on E.D.Mich.: It was a reasonable inference for the USMJ that persons who possess firearms usually do so at home
A search warrant must be executed reasonably, and it depends on which side has knowledge of what for the burden of proof. Here, the issue involves a blood draw at a hospital, and defendant has access to that information, and he carries the burden. He failed to prove that the warrant wasn’t executed unreasonably. People v. Fish, 2018 Cal. App. LEXIS 1078 (2d Dist. Nov. 27, 2018).
Defendant contended that a factual predicate for probable cause for issuance of an anticipatory search warrant was missing. Nevertheless, it wasn’t that critical, and the good faith exception would otherwise apply. United States v. Escobar, 2018 U.S. App. LEXIS 33097 (8th Cir. Nov. 26, 2018).*
Probable cause for two tracking warrants was so completely lacking that it was unreasonable to rely on them, and the good faith exception does not apply. United States v. Lopez-Zuniga, 2018 U.S. App. LEXIS 33096 (8th Cir. Nov. 26, 2018): Continue reading →
"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.
