There is no reasonable expectation of privacy in a contraband cell phone possessed by a sex offender in a halfway house. The phone was subject to search like any other personal property, and defendant had a prohibition against possession of pornography. Child pornography was found on the cell phone in a cursory search. This search of the phone did not offend Riley. Howard v. State, 2018 Tex. App. LEXIS 9616 (Tex. App. – Houston (1st Dist.) Nov. 27, 2018).
After Carpenter, defendant filed a motion for new trial. “The Court agrees that Carpenter applies retroactively to her case. But the question of whether a constitutional right is retroactive is distinct from the question of whether an individual is entitled to a remedy from any constitutional violation.” Under Davis good faith, the evidence would have come in anyway. United States v. Leyva, 2018 U.S. Dist. LEXIS 199327 (E.D. Mich. Nov. 26, 2018).*
Question about defendant’s telephone number prior to his Miranda warning wasn’t covered by Miranda. The phone number linked defendant to a dropbox account with child pornography. United States v. Chilaca, 2018 U.S. App. LEXIS 33136 (9th Cir. Nov. 26, 2018).
“The defendant’s statements that [the officer] ‘mitted’ or ‘concealed’ the informant’s background, without more, are just unsupported allegations.” R&R adopted. United States v. Lewis, 2018 U.S. Dist. LEXIS 199469 (E.D. Wis. Nov. 26, 2018).*
Posted inArrest or entry on arrest, SCOTUS|Comments Off on SCOTUSBlog: Argument analysis: “Contempt of cop” — Justices search for compromise standard for First Amendment retaliatory arrests
Defendant mailing packages from South Carolina to the Virgin Islands under an alias has standing because the government alleges the alias on the package is defendant. The sealed packages have Fourth Amendment protection and a reasonable expectation of privacy. The court holds that V.I. status as a territory of the United States means that the border search exception does not apply to packages sent from the mainland. The court analyzed the status of the V.I. from purchase from the Dutch in 1917, and the package remained within the U.S. United States v. Baxter, 2018 U.S. Dist. LEXIS 199234 (D. V.I. Nov. 26, 2018): Continue reading →
Posted inMail and packages, Standing|Comments Off on D.V.I.: Package shipped from SC to VI did not cross “border”
Yahoo conducted an extensive internal investigation with public source information and its own records to identify accounts trafficking in child pornography from the Philippines. They reported twice to law enforcement and to NCMEC, and then law enforcement got involved. Yahoo’s own investigation was purely a private investigation and search of its own customers’ information, and it was never instigated or urged on by the government. United States v. Rosenow, 2018 U.S. Dist. LEXIS 198054 (S.D. Cal. Nov. 21, 2018).
According to the state, defendant’s cell phone has evidentiary value through his appeal and post-conviction proceedings, so it was not required to return the phone until proceedings were exhausted. State v. Thompson, 2018-Ohio-4690, 2018 Ohio App. LEXIS 5015 (2d Dist. Nov. 21, 2018).
Posted inPrivate search, Rule 41(g) / Return of property|Comments Off on S.D.Cal.: Yahoo’s intensive internal investigation into CP trafficking reported to NCMEC and then law enforcement was purely private search
Police conducted an unreasonable warrantless search of defendant’s purse for her DL when she was taken from the scene of an accident by ambulance. No exception to the warrant requirement applies. State v. Evans, 2018 Kan. LEXIS 580 (Nov. 21, 2018).
“Thomas did not argue that the consent was inadequate for any reason, but merely argued that the government should have been required to get a search warrant. Consent is an established exception to the search warrant requirement. … A search without a warrant does not violate the Fourth Amendment where someone with authority gives voluntary consent. … Accordingly, challenging the search would have been futile, and Thomas cannot make the requisite showing of prejudice because the results of the proceeding would not have been different. Strickland, 466 U.S. at 694. No COA is warranted on this issue.” Thomas v. United States, 2018 U.S. App. LEXIS 32750 (11th Cir. Nov. 19, 2018).
Posted inIneffective assistance, Search incident|Comments Off on KS: Searching purse of driver taken away by ambulance from a car wreck was unreasonable
The government argued that a person on supervised release had no reasonable expectation of privacy in his own apartment, which the court roundly rejects. Yet, the government lacked probable cause to believe that defendant was residing in the home at the time of the search. “Possession of a key alone is not enough to establish probable cause as to residency, Grandberry, 730 F.3d at 979, and, as in Grandberry, the police’s limited surveillance and failure to investigate Dixon’s other possible addresses, even coupled with the fact that Dixon possessed the key, does not rise to the level of probable cause. See id. at 979-80.” The search of his vehicles, however, was valid because of his search condition. United States v. Dixon, 2018 U.S. Dist. LEXIS 198043 (N.D. Cal. Nov. 21, 2018).
Posted inProbation / Parole search|Comments Off on N.D.Cal.: Supervised release search of home unreasonable because govt lacked PC he lived there
Alaska State Troopers had a search warrant for a computer in a house. While there, they find a computer that belonged to another who was the target’s tenant, so they decided to seize that computer, too, and search it. The search of a computer not named in the search warrant and clearly not belonging to the target of the search was unreasonable. Pohland v. State, 2018 Alas. App. LEXIS 265 (Nov. 23, 2018): Continue reading →
Posted inUncategorized|Comments Off on AK: Search of tenant’s computer found during SW for landlord’s computer was unreasonable
On remand from Byrd v. United States, 138 S.Ct. 1518 (2018), CA6 sends the case back to the district court to resolve the three issues that still need factual development. Was there probable cause, does the strawman rental actually deprive him of standing, and what about consent? United States v. Byrd, 2018 U.S. App. LEXIS 32933 (3d Cir. Nov. 21, 2018): Continue reading →
Posted inSCOTUS|Comments Off on CA6 on remand of Byrd remands to trial court for more factfinding on three issues
When police had a search warrant for a package that included cash for drug purposes in the particular description, the seizure of only cash wasn’t justified. Nothing showed that the money was related to crime. Hodges v. State, 2018 Ind. App. LEXIS 431 (Nov. 21, 2018): Continue reading →
Posted inForfeiture, Overseizure|Comments Off on IN: Seizure of only cash under SW for drugs and cash from drug sales was unreasonable and without PC
Drug-sniffing dogs that are trained to detect marijuana are complicating searches where pot has been legalized. That’s forcing some into early retirement.
Posted inDog sniff|Comments Off on NYTimes: Marijuana Legalization Threatens These Dogs’ Collars
Alaska State Troopers developed information that two men were involved in burglaries and travelled far to arrest them, albeit without a warrant. They ordered the men out of their rented cabin, and that would have been an illegal arrest, but they didn’t come out and a standoff ensured. During the standoff, they engaged in banter with the AST which is admissible. The product of the entry into the cabin is not excluded because of inevitable discovery. They got another warrant which was inevitable after the standoff. Indellicati v. State, 2018 Alas. App. LEXIS 263 (Nov. 21, 2018): Continue reading →
Posted inArrest or entry on arrest, Inevitable discovery|Comments Off on AK: Initial warrantless entry after attempted warrantless arrest, standoff, then arrest was saved by inevitable discovery with later warrant
Defendant’s motion for rehearing of the motion to suppress is denied. Defense counsel was interrupted during the witness examination, but it was because the questioning was repetitive and beating a dead horse. She lost on the merits and lack of facts on her side, and not because counsel was interrupted wasting time. United States v. Hill, 2018 U.S. Dist. LEXIS 198344 (N.D. Fla. Nov. 21, 2018).
Defendant’s arrest for threatening telephone calls was justified by the facts, and that included his own corroboration for being abusive to the officer on the telephone. The good faith exception doesn’t need to be considered; but it is, and there is. United States v. Anaya, 2018 U.S. Dist. LEXIS 197711 (D. N.M. Nov. 20, 2018).*
Posted inSuppression hearings|Comments Off on N.D.Fla.: Rehearing denied; interruptions of counsel during suppression hearing were because counsel was wasting time asking repetitive questions; she lost on merits, not because of interruptions
There was a two month delay between the seizure of defendant’s storage unit and the search warrant for it. There was no bad faith here. At worse, getting a search warrant fell through the cracks. The officers had probable cause for the search warrant at the time of the seizure, and they obviously had more by the time of the search, but this delay wasn’t in bad faith and didn’t prejudice defendant. United States v. Bravo, 2018 U.S. Dist. LEXIS 198352 (D. Mass. Nov. 21, 2018): Continue reading →
Posted inWarrant execution|Comments Off on D.Mass.: Two month delay in getting SW for def’s storage unit wasn’t with bad faith and didn’t prejudice him
Probable cause is a close call here. The USMJ found probable cause and that the good faith exception applied. On review of the R&R, the court applies only the good faith exception to find the search valid. United States v. Williams, 2018 U.S. Dist. LEXIS 198760 (W.D. N.Y. Nov. 21, 2018): Continue reading →
Police obtained defendant’s CSLI in 2001 by subpoena and without a court order contrary to statute. Defendant argued a search warrant was required. Then Carpenter was decided in 2018 requiring a warrant. The state violated the statute requiring a court order, and that’s enough to overcome the good faith exception. Ferrari v. State, 2018 Fla. App. LEXIS 16689 (Fla. 4th DCA Nov. 21, 2018): Continue reading →
One of defendant’s 2255 claims was that defense counsel was ineffective for not filing a motion to suppress when he doesn’t allege anything about it and he plead guilty. Pullu v. United States, 2018 U.S. Dist. LEXIS 197809 (S.D. Fla. Nov. 20, 2018).*
Defendant was convicted of child pornography offenses, and he filed a 2255 over defense counsel’s failure to file a motion to suppress. “Taylor raises several specific arguments why the evidence against him would have been susceptible to suppression, which the Court addresses below [in fair detail]. These arguments warrant consideration but fall short of undermining the judge’s finding of probable cause.” Taylor v. United States, 2018 U.S. Dist. LEXIS 197295 (S.D. Ind. Nov. 20, 2018).*
Defense counsel wasn’t ineffective for not pursuing a motion to suppress the search of a hotel room that, by all accounts, would have failed on the merits. United States v. Baughman, 2018 U.S. Dist. LEXIS 198775 (W.D. Ark. Nov. 22, 2018).*
Posted inIneffective assistance|Comments Off on Three 2255s alleging IAC for no motion to suppress fail
Defendant had no expectation of privacy in a police interrogation room that had a camera and microphone hidden in its smoke detector. He was overheard talking to his sister admitting that there was a gun linked to the crime. The police never told him it was a private place or that he could talk in private, and no case says that it is. United States v. Lattner, 2018 U.S. Dist. LEXIS 197270 (E.D. Mich. Nov. 19, 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.
