Defendant satisfied his burden of proof that defense counsel was ineffective because his codefendant prevailed on his motion to suppress. If he’d timely moved to set aside the plea it would have almost certainly been granted. Perez v. United States, 2018 U.S. Dist. LEXIS 190010 (S.D. Fla. Nov. 7, 2018).
Defendant was detained during a search of the premises per Muehler v. Mena, and his statement he was the only person living in the house was not the product of a custodial interrogation. United States v. Arrington, 2018 U.S. Dist. LEXIS 190266 (S.D. Ohio Nov. 7, 2018).*
The search warrants here were particular because the affidavits and attachments were incorporated by reference and present at the time of the search. The temporal limitations on the warrant were not vague and stale. It was limited in scope otherwise. There was also no standing as to a search warrant for an email account of another. United States v. Evans Landscaping, 2018 U.S. Dist. LEXIS 190267 (S.D. Ohio Nov. 7, 2018): Continue reading →
Posted inParticularity, Staleness, Standing|Comments Off on S.D.Ohio: Warrant was still particular because attachments were present at time of search
Technical defect in the oath in the search warrant application doesn’t warrant suppression of evidence. State v. Parker, 2018 La. App. LEXIS 2256 (La. App. 1 Cir. Nov. 10, 2018).
A Rule 41(g) motion from pre-2000 seizure wasn’t timely in 2018. United States v. Dotstry, 2018 U.S. Dist. LEXIS 190653 (D. Minn. Nov. 7, 2018).
A state court judge issued a ping order and the phone crossed state lines. Was it a tracking order or an SCA order? “The Court sees no need to venture further into the quagmire of tracking devices, the SCA, and jurisdictional authority to issue warrants because even if the warrants were issued contrary to law, the good faith exception applies. See Leon, 468 U.S. at 913. ‘[T]he exclusionary rule does not apply when the police conduct a search in “objectively reasonable reliance” on a warrant later held invalid.’ Davis v. United States, 564 U.S. 229, 239, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011) (quoting Leon, 468 U.S. at 922).” United States v. Gutierrez, 2018 U.S. Dist. LEXIS 191259 (M.D. Fla. Nov. 8, 2018).
Defendant didn’t show that the third party’s consent was invalid or that the plain view didn’t apply. Stuart-Holt v. United States, 2018 U.S. Dist. LEXIS 191268 (D.N.H. Nov. 8, 2018).*
Posted inGood faith exception, Tracking warrant|Comments Off on M.D.Fla.: Whether a state court judge could issue a ping order that crossed state lines is governed by GFE
Defendant’s suppression argument five months after conviction is too late. Besides, it doesn’t allege anything of substance anyway. United States v. Alahmedalabdaloklah, 2018 U.S. Dist. LEXIS 189719 (D. Ariz. Nov. 6, 2018).*
Defendant’s search claim is denied without even telling us what it is, it apparently was that insubstantial. United States v. Christian, 2018 U.S. App. LEXIS 31340 (10th Cir. Nov. 6, 2018).*
Defendant’s PO [clearly] had reasonable suspicion for a probation search: smell of marijuana in the house and a snapchat picture of defendant with a firearm. United States v. McGregor, 2018 U.S. Dist. LEXIS 189051 (S.D. Fla. Oct. 10, 2018),* adopted, 2018 U.S. Dist. LEXIS 187976 (S.D. Fla. Nov. 2, 2018).*
Defendant’s means and opportunity to commit this bank robbery and carjacking in flight was probable cause. Video showing him at a motel was nexus to his room. United States v. Evans, 2018 U.S. App. LEXIS 31326 (8th Cir. Nov. 6, 2018).
“[T]he record indicates that the Government made significant, successful efforts to corroborate CS-1’s statements. Throughout the investigation of the DTO, CS-1’s statements were corroborated by conversations intercepted pursuant to the Wiretap Orders, evidence obtained during arrests, and physical surveillance by government agents. Far from demonstrating reckless disregard for the truth, the evidence gathered throughout the investigation supported the Government’s belief that CS-1 was credible.” United States v. Guillen, 2018 U.S. Dist. LEXIS 189789 (S.D. N.Y. Nov. 6, 2018).*
Posted inInformant hearsay, Probable cause|Comments Off on CA8: Means and opportunity to commit bank robbery and carjacking in flight was PC
Marital privilege doesn’t apply to jail telephone calls defendant knew would be recorded because of the lack of a confidential communication. United States v. Ayala, 2018 U.S. App. LEXIS 31345 (6th Cir. Nov. 6, 2018).
The Pennsylvania Wiretap Act is strictly construed to protect privacy. The state’s discovery violation of a wiretap mandates suppression. Commonwealth v. Shreffler, 2018 PA Super 302 (Nov. 5, 2018).*
Defendant’s vehicle was stopped and several garage door openers were found. Using them to try to find defendant’s stash house was a search and it was reasonable, although close to the edge. United States v. Correa, 2018 U.S. App. LEXIS 31204 (7th Cir. Nov. 5, 2018): Continue reading →
Posted inReasonableness, Search|Comments Off on CA7: Using several garage door openers in def’s vehicle to locate his stash house was a reasonable search
Lawyers for a California woman asked a state judge Thursday to order Greyhound Lines to stop allowing federal immigration agents to board its buses and demand identification and proof of citizenship from passengers.
Posted inImmigration arrests|Comments Off on WaPo: Lawsuit targets Greyhound over warrantless stopping of buses by border agents
Perhaps you’ve noticed that the postings have been a bit behind. That’s because I’ve spent the last two weeks reading 2600 pages of page proofs for Trial Handbook for Arkansas Lawyers 4th. Today I have to drive two hours to a detention hearing.
I’ll get caught up this weekend, I hope.
Posted inUncategorized|Comments Off on We’re back, catching up
Confidential spousal communications obtained by a search warrant do not lose their privileged character. People v. Gliniewicz, 2018 IL App (2d) 170490, 2018 Ill. App. LEXIS 818 (Nov. 2, 2018).
The state seized text messages but didn’t disclose them in discovery because they considered it rebuttal. After the opening statements, the state decided that they needed them in its case in chief. The trial court granted a mistrial that wasn’t barred by double jeopardy. State v. Vogt, 2018-Ohio-4457, 2018 Ohio App. LEXIS 4785 (4th Dist. Oct. 29, 2018).* [If they were obtained by a search, why wasn’t discovery disclosure mandated before trial?]
Posted inPrivileges|Comments Off on IL: Marital communications obtained by SW remained privileged
Defendant’s cross examination of the officer who authored the affidavit for the search warrant to attack his credibility by the affidavit “opened the door” to defendant’s other crimes which were admitted under 404(b) on the government’s request on redirect. United States v. Birchette, 2018 U.S. App. LEXIS 31513 (4th Cir. Nov. 7, 2018).
The trial court’s review of the magistrate’s determination of probable cause should have been deferential and not de novo. There was a substantial basis for probable cause. People v. Cox, 2018 CO 88, 2018 Colo. LEXIS 905 (Nov. 5, 2018).
Defendant claimed he had a reasonable expectation of privacy in the screen of his cell phone because it was in his pocket up until he was arrested. When the phone was removed from his pocket, a message appeared on the screen, and that could be viewed by the police and testified to. United States v. Brixen, 2018 U.S. App. LEXIS 31512 (7th Cir. Nov. 7, 2018): Continue reading →
Posted inArrest or entry on arrest, Cell phones|Comments Off on CA7: Message on cell phone screen when phone was seized could be testified to by officer
After a nationwide class-action lawsuit against Motel 6, the chain agreed to pay as much as $7.6 million to guests who said their private information was given to U.S. immigration agents, according to court records.
Posted inImmigration arrests, Third Party Doctrine|Comments Off on WaPo: Motel 6 agrees to pay up to $7.6 million to settle claim it helped ICE target Latino guests
A car is not abandoned by the defendant merely because, when he fled, a confederate stayed behind. United States v. Gibbs, 2018 U.S. Dist. LEXIS 187572 (N.D. Ga. Nov. 2, 2018).
The audio recording of the police-citizen interaction has enough, along with its gaps, to make the Franks preliminary showing, and a hearing will be set. United States v. Perry, 2018 U.S. Dist. LEXIS 188320 (N.D. Cal. Nov. 3, 2018).*
Posted inAbandonment, Franks doctrine|Comments Off on N.D.Ga.: Car not abandoned by fleeing def because a co-def stayed with it
The officer articulated no reason for the officer safety exception for searching defendant’s pockets. A bulge in defendant’s clothing was not enough. State v. Leach, 294 Ore. App. 639 (Nov. 2, 2018).
“[W]e have held that the lawfulness of the order does not depend on the lawfulness of the initial encounter. And, as previously noted, most recently, in Wilson, we explicitly held that it was unnecessary to determine the lawfulness of an initiating encounter in addressing whether an order was permissible based on officer-safety concerns that included the defendant’s behavior in refusing to comply with simple requests.” State v. Kreis, 294 Ore. App. 554 (Nov. 2, 2018).
Posted inReasonable suspicion|Comments Off on OR: A bulge in def’s pocket was not RS for a patdown without more
The statute requiring search warrant papers be filed with the circuit clerk is merely procedural, and it confers no substantive rights for its violation. Heroin in the car was visible from outside and thus in plain view, and that was probable cause. Daniels v. Commonwealth, 2018 Va. App. LEXIS 304 (Nov. 6, 2018).
The house was described with particularity, but the things to be searched for and seized was not, except by incorporating the affidavit for the search warrant by reference. In any event, the search was limited, and the good faith exception applies. United States v. Gutierrez, 2018 U.S. Dist. LEXIS 186607 (S.D. Tex. Nov. 1, 2018).*
Posted inWarrant execution, Warrant requirement|Comments Off on VA: Statute on filing warrant papers in court is procedural and suppression not the remedy
The Crime Report: Does the Fourth Amendment Block Cops from Using Artificial Intelligence? by J. Gabriel Ware:
The constitutional prohibition against unreasonable searches and seizures could prevent law enforcement from using the sophisticated surveillance technology made possible by artificial intelligence, according to a University of California-Davis law professor.
Posted inSurveillance technology|Comments Off on The Crime Report: Does the Fourth Amendment Block Cops from Using Artificial Intelligence?
A FISA application that led to a prosecution may be reviewed ex parte and in camera and remain under seal, and this complies with due process. “Here, having reviewed the FISC’s probable cause determinations while affording these findings the requisite due deference, the Court concludes that the FISA application(s) readily meet FISA’s probable cause standard and do so with clarity and specificity. ‘The Court cannot say more without the risk of divulging classified information.’ Medunjanin, 2012 WL 526428, at *11. Accordingly, the Court finds that there was sufficient probable cause to establish that the FISA information in this case was lawfully acquired.” United States v. Ho, 2018 U.S. Dist. LEXIS 188185 (S.D. N.Y. Nov. 3, 2018).
Posted inFISA|Comments Off on S.D.N.Y.: FISA application may be reviewed ex parte and in camera and still comply with due process; probable cause shown
Basic questions about defendant’s cell phone as a prelude to asking for consent to search it is an exception to Miranda. United States v. Okparaeke, 2018 U.S. Dist. LEXIS 188191 (S.D. N.Y. Nov. 3, 2018): Continue reading →
Posted inConsent|Comments Off on S.D.N.Y.: Basic questions about def’s cell phone as a prelude to asking for consent to search it is an exception to Miranda
"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.
