A search warrant for financial crimes on a computer didn’t authorize opening picture files. Child pornography was found. The lack of sophistication of the searching officer is no excuse. State v. Harris, 2018 N.J. Super. LEXIS 160 (Nov. 15, 2018).
Defense counsel wasn’t ineffective for a conglomeration of things that resulted in defendant’s guilty plea, including the search. That sole issue is not elaborated on. Ex parte Ting-Huei Kung, 2018 Tex. App. LEXIS 9293 (Tex. App. – Waco Nov. 14, 2018) (memorandum).*
There is no reasonable expectation of privacy in a jail call to defendant’s wife. State v. Ducote, 2018 La. App. LEXIS 2297 (La. App. 3 Cir. Nov. 15, 2018).*
No reasonable suspicion for extending a stop for no proof of insurance based on: a messy vehicle, a nervous driver with an unlit cigarette, daylight use of a Montana highway, using a borrowed vehicle, and the fact newlyweds did not travel together after their wedding, since none of this objectively indicated illegal drug activity. State v. Wilson, 2018 MT 268, 2018 Mont. LEXIS 382 (Nov. 14, 2018).*
Defendant’s forced disclosure of his iPhone password didn’t violate the Fifth Amendment because his knowledge of that information was a foregone conclusion on this record. State v. Andrews, 2018 N.J. Super. LEXIS 159 (Nov. 15, 2018): Continue reading →
Posted inCell phones, Privileges|Comments Off on NJ: Cell phone password not 5A privileged on this record
“Given the existence of articulable facts and inferences to support a reasonable belief that an additional person on the scene could pose a danger to them, the protective sweep of the house was constitutional. ‘[T]hough hindsight reveals that the officers had already encountered the only two individuals present in [the defendant’s] residence, the … officers were justified in conducting the protective sweep.’ Alatorre, 863 F.3d at 815.” United States v. Hanuman, 2018 U.S. Dist. LEXIS 194996 (D. Minn. Nov. 15, 2018).
Disclosure of the CI that provided information that helped get a wiretap is denied. There is no material evidence for trial. United States v. James, 2018 U.S. Dist. LEXIS 194054 (M.D. La. Nov. 14, 2018).*
Posted inProtective sweep|Comments Off on D.Minn.: RS supported a protective sweep even though it turned out that all people there were accounted for
Police received a shots fired call involving a duplex. When defendant opened his door, they could see a shell casing and smelled gunpowder from a fired gun. A protective sweep occurred finding nothing. The exigency was over. Defendant gave a limited consent to search which the officers exceeded. There is a lengthy discussion of the consent and voluntariness, but the court concludes the fact finding binds the court of appeals, and the state failed in its burden to show search was within the scope of the consent. Aguilar v. State, 2018 Fla. App. LEXIS 16263 (Fla. 2d DCA Nov. 14, 2018).
In a case involving ATM skimming, there was probable cause shown for searches of the defendant’s hotel rooms based on hotel surveillance piecing together who was where and when. The search warrant for an email account was also with probable cause based on assertions that the fraud would require email accounts to communicate. The electronic information from the door lock on one room was found unreliable by the USMJ, and that was justified. The officer was in the process of getting a search warrant for the room when it was allegedly entered, and nothing from the alleged entry ever made it into the search warrant application. United States v. Bitere, 2018 U.S. Dist. LEXIS 193175 (D. Nev. Nov. 13, 2018).*
The knock-and-talk turned into a full scale raid, and the parties agree it was unreasonable. The R&R is rejected that defendant didn’t have standing. “The Court finds that defendant has standing to challenge the police conduct in and near the areas of ingress and egress of Unit A, regardless of his status as an overnight guest. The Court declines to accept the more expansive standing recommended by the Report and Recommendation, or its reliance on defendant’s status as an overnight guest.” United States v. McSwain, 2018 U.S. Dist. LEXIS 193943 (M.D. Fla. Nov. 14, 2018).
“Officer Perdomo testified that he knew he needed a warrant to get evidence out of the house, but that evidence included a zip lock baggie with powder in it. Further, based on their surveillance and a tip, law enforcement believed that there were guns in the house. Consequently, it seems likely that law enforcement would have obtained the warrant regardless of whether Office Perdomo had found the gun during the protective sweep. Thus, the gun would have been discovered through an independent source.” United States v. Brown, 2018 U.S. Dist. LEXIS 193025 (S.D. Fla. Nov. 13, 2018).*
Posted inIndependent source, Knock and talk, Standing|Comments Off on M.D.Fla.: Def was given guest standing to challenge a knock-and-talk that both sides agree was unreasonable
After defendant fired an assault rifle in his house, the police were called. A protective sweep to see if anyone was injured was reasonable. Commonwealth v. Coughlin, 2018 PA Super 304, 2018 Pa. Super. LEXIS 1221 (Nov. 14, 2018).
“‘Probable cause “is not a high bar.”’ District of Columbia v. Wesby, 138 S.Ct. 577, 586, 199 L. Ed. 2d 453 (2018) (quoting Kaley v. United States, 571 U.S. 320, 338, 134 S. Ct. 1090, 188 L. Ed. 2d 46 (2014)).” The affidavit for the search warrant reaches that low bar. “Lockwood’s assertion that the affidavit fails to establish criminality on his part is immaterial. Probable cause is a flexible standard, requiring a ‘“practical, nontechnical’ probability that incriminating evidence is involved.” United States v. Cantrell, 2018 U.S. Dist. LEXIS 192655 (E.D. Ky. Nov. 12, 2018).*
The consenter doesn’t need actual authority; it only requires apparent authority. She said she was the owner of the car, and she acted like the owner of the car. United States v. Wright, 2018 U.S. Dist. LEXIS 192546 (M.D. La. Nov. 12, 2018).*
Officers came to an apartment with an arrest warrant. When the door inside was opened, they could see drugs in plain view within five feet of the door. It was reasonable for them to open the screen door to preserve the evidence because it was obvious defendant knew they saw it. State v. Garrett, 2018-Ohio-4530, 2018 Ohio App. LEXIS 4846 (2d Dist. Nov. 9, 2018): Continue reading →
Opening a small metal box that was apparently a cigarette case was unreasonable because there was no reasonable suspicion that it contained a weapon. State v. Luther, 2018-Ohio-4568, 2018 Ohio App. LEXIS 4887 (11th Dist. Nov. 13, 2018).
Defendant’s guilty plea waived his Carpenter claim that he then attempted by a 2255. [And the GFE would doom it anyway.] United States v. Turner, 2018 U.S. App. LEXIS 32220 (7th Cir. Nov. 14, 2018).*
Plaintiff’s § 1983 case is a de facto habeas seeking dismissal of his state case, which is barred by Younger v. Harris. Simon v. United States, 2018 U.S. Dist. LEXIS 192702 (S.D. Fla. Nov. 12, 2018).*
First search warrant probably violated the Fourth Amendment, but another was sought that omitted everything about the first search warrant, including what was found. The second was valid, and the good faith exception applied. United States v. Eggerson, 2018 U.S. Dist. LEXIS 194267 (D. Minn. Sept. 27, 2018), adopted, 2018 U.S. Dist. LEXIS 194059 (D. Minn. Nov. 14, 2018): Continue reading →
The government reviewed attorney-client materials and failed to uphold the standards of DOJ to protect them from review by investigators. Nevertheless, it doesn’t rise high enough to require dismissal of the indictment. The government concedes that it won’t use some pieces of evidence. United States v. Esformes, 2018 U.S. Dist. LEXIS 193190 (S.D. Fla. Nov. 13, 2018).
Defense counsel wasn’t ineffective for not challenging the use of a his parole tracking device to put him at the scene of a crime. United States v. Blake, 2018 U.S. Dist. LEXIS 191829 (D. Neb. Nov. 9, 2018).*
The CIs weren’t well supported, but they were well corroborated enough for probable cause, and the good faith exception applied. United States v. Stewart, 2018 U.S. Dist. LEXIS 191669 (W.D. La. Sep. 20, 2018),* adopted, 2018 U.S. Dist. LEXIS 191158 (W.D. La. Nov. 6, 2018).*
Posted inIneffective assistance, Overseizure, Privileges|Comments Off on S.D.Fla.: Govt oversearched and violated A-C privilege; but it wasn’t really bad enough to warrant sanctions, and govt not using it
When defendant was stopped, the officer asked whether he had a firearm, which should have been obvious because there was a rifle case visible in the car. Defendant looked at the gun and reached to the case. The court finds this was not an adverse move to the officer, and the officer’s safety was not in jeopardy. Defendant kept his hands on the steering wheel when directed, and he did nothing wrong. Searching the gun case was unreasonable. Cardenas v. State, 2018 Alas. App. LEXIS 254 (Nov. 9, 2018): Continue reading →
Posted inReasonable suspicion|Comments Off on AK: Search of def’s rifle case was unreasonable; he was doing nothing wrong
Failure to mention the CI’s criminal history is less important when the affidavit shows extensive corroboration. The Franks challenge fails. United States v. Martinez, 2018 U.S. Dist. LEXIS 192181 (D. N.M. Nov. 9, 2018).
Defendant had standing to challenge the stop of his car, but not its search: “In fact, the record is devoid of any connection between the Defendant and the vehicle other than he was riding in it, which is insufficient to establish a passenger’s standing to challenge a search of the vehicle.” United States v. Johnson, 2018 U.S. Dist. LEXIS 192140 (W.D. Tenn. Sept. 12, 2018).*
Posted inInformant hearsay, Standing|Comments Off on D.N.M.: Failure to mention the CI’s criminal history is less important when the affidavit shows extensive corroboration
A CI gave emails to government investigators about health care fraud. They and other information provided probable cause for more emails. The warrants were particularized by being limited to eight categories. United States v. Mathieu, 2018 U.S. Dist. LEXIS 192281 (S.D. N.Y. Nov. 10, 2018): Continue reading →
Illegally obtained evidence cannot be used to establish probable cause. United States v. Gordon, 2018 U.S. Dist. LEXIS 190782 (E.D. Mich. Sept. 12, 2018): Continue reading →
Posted inProbable cause|Comments Off on E.D.Mich.: Illegally obtained evidence cannot be used to establish probable cause
At the time of the search, officers believed defendant had standing in the place searched, but that’s not relevant to the court’s determination. “Federal agents were aware of Defendant and believed that he lived in the residence in question. But what the agents and police officers may have subjectively believed about Defendant’s connections to the residence is not what matters. Even if the agents and officers believed that Defendant lived in the residence, a third party’s subjective belief has no bearing on the legal question of whether Defendant had an expectation of privacy in the property.” United States v. Haywood, 2018 U.S. Dist. LEXIS 190970 (W.D. La. Nov. 8, 2018).
The search warrant for defendant’s vehicle was supported by a plain view of drugs, as was the search warrant for his hotel room. That was probable cause. His flight added to it. United States v. Cantrell, 2018 U.S. Dist. LEXIS 191870 (E.D. Ky. Nov. 9, 2018).*
Posted inProbable cause, Standards of review|Comments Off on W.D.La.: Officers’ subjective belief in def’s standing at time of search isn’t material to the court’s determination on objective facts
A search warrant can be issued for evidence in mitigation of the death penalty. Defendant was charged with murder of a prison guard, and it was information in his prison cell of books, documents, and medical reports. The state law of privacy in medical records does not make them immune from a search warrant. State v. Scherf, 2018 Wash. LEXIS 823 (Nov. 8, 2018).
Information from another police officer who personally observed defendant provided reasonable suspicion for her stop. State v. Van De Gejuchte, 2018 Tenn. Crim. App. LEXIS 834 (Nov. 9, 2018).*
Defendant’s phone was lawfully seized incident to his arrest and then geting a search warrant. “We agree with the district court that the evidence obtained from Thomas’s phone is admissible under Leon. Our precedents make clear that in assessing an officer’s objective good faith in executing a search warrant, we may consider facts known to the officer, but inadvertently omitted from a warrant affidavit. And under all the circumstances presented here, Coleman had a reasonable basis to believe there existed probable cause to search Thomas’s phone. Accordingly, we affirm the judgment of the district court.” United States v. Thomas, 2018 U.S. App. LEXIS 31691 (4th Cir. Nov. 8, 2018).*
Posted inGood faith exception|Comments Off on CA4: Info known by officer but not included in affidavit can be considered in applying GFE
Police “froze” a house and searched the second floor for evidence of alleged prostitution; couldn’t be justified on this record. What physical evidence would there be? Commonwealth v. Owens, 480 Mass. 1034 (Nov. 7, 2018).
There was a mistake in the affidavit but it wasn’t shown to be any more than negligent, and it wasn’t material to the finding of probable cause. United States v. Gonzalez-Arreola, 2018 U.S. Dist. LEXIS 191435 (N.D. Ga. Sept. 27, 2018).*
A traffic stop plus an open beer can was probable cause. State v. Jackson, 2018 N.C. App. LEXIS 1086 (Nov. 8, 2018).*
Posted inEmergency / exigency, Franks doctrine|Comments Off on MA: “Freezing” house for alleged prostitution for alleged exigency was unreasonable
“May a police officer, without reasonable suspicion of criminal activity, run a license plate check on a passing vehicle? The federal courts, interpreting the U.S. Constitution, have answered this question in the affirmative. Jennifer Oryall, who was found to be driving under the influence of drugs after an officer checked her license plate and detained her, asks us to conclude that law enforcement officers violated the Utah Constitution by performing such a check without reasonable suspicion that Oryall was engaged in criminal activity. The district court was not persuaded by Oryall’s arguments, and neither are we. Accordingly, we affirm.” State v. Oryall, 2018 UT App 211, 2018 Utah App. LEXIS 227 (Nov. 9, 2018).
Posted inState constitution|Comments Off on UT: State const doesn’t require RS to run an LPN
"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.
