Defendant for the first time on appeal raised a state constitutional argument that Caballes on dog sniffs as searched should be rejected. The court declines to go there on plain error review. Bradley v. State, 2018 Del. LEXIS 477 (Oct. 24, 2018).
Defendant claimed in his 2255 that defense counsel failed to challenge his GPS tracking. The government had a CI that also gave information including that defendant had a weapon in the car, and that’s an independent source: “The Government presented evidence that law enforcement discovered the guns based on information from a cooperating witness that was independent from the GPS placement and monitoring. This independent evidence would have defeated Petitioner’s motion to suppress based on the allegedly illegal GPS even if counsel proved standing.” Coleman v. United States, 2018 U.S. Dist. LEXIS 183957 (W.D. N.C. Oct. 26, 2018).*
A minor was in juvenile court for being in an accident under the influence. The police wanted the contents of his cell phone. The juvenile court’s order for him to disclose the password to his cell phone is quashed because it’s testimonial. The trial court’s conclusion the contents of the phone was known was a “foregone conclusion” was rejected. G.A.Q.L. v. State, 2018 Fla. App. LEXIS 15240 (Fla. 4th DCA Oct. 25, 2018): Continue reading →
Posted inCell phones, Privileges|Comments Off on FL4: Order to juvenile to produce cell phone passcode quashed
Defendant was stopped on a motorcycle and had a backpack. An arrest warrant was found for defendant, and his backpack was subject to a search incident. State v. Crager, 2018 Ind. App. LEXIS 385 (Oct. 25, 2018).
There was no objective basis for the police to conclude there was an emergency and the alleged protective sweep with it was all unreasonable. The exclusionary rule applies in NY probation searches. People v. Sears, 2018 NY Slip Op 07197, 2018 N.Y. App. Div. LEXIS 7171 (3d Dept. Oct. 25, 2018).
The officer declined to put the CI’s inconsistent statements in that he thought were false. This didn’t violate Franks, and there was probable cause anyway. United States v. King, 2018 U.S. App. LEXIS 30122 (11th Cir. Oct. 25, 2018): Continue reading →
Posted inFranks doctrine|Comments Off on CA11: Affiant’s not putting what he thought from CI was false didn’t violate Franks
“The affidavits supporting the searches of Sullivan’s apartment and vehicle overwhelmingly established probable cause to believe that Sullivan committed voyeurism, burglary, and possession of criminal tools.” “The search warrants for Sullivan’s vehicle, apartment, and computer were all sufficiently particular. The warrants for the vehicle and apartment authorized seizure of equipment that could store digital photos taken at the state park, like digital cameras, CDs, DVDs, SD cards, thumb drives, and portable hard drives. At the time of their issuance, Souders only knew that the suspect used a digital camera and did not have any information about where the photos taken by the suspect might be stored. Because Souders could not have been any more specific in his descriptions of the equipment and storage devices, the descriptions in the warrants were proper.” United States v. Sullivan, 2018 U.S. App. LEXIS 29939 (6th Cir. Oct. 24, 2018).*
There was probable cause in part from trash pulls, and the good faith exception applied. United States v. Morton, 2018 U.S. App. LEXIS 29970 (4th Cir. Oct. 24, 2018).*
This case was GVR’d after Carpenter, and the court remands to the district court to make further findings. United States v. Thompson, 2018 U.S. App. LEXIS 29949 (10th Cir. Oct. 24, 2018).
Defense counsel can’t be ineffective for not filing a meritless motion to suppress. Allen v. State, 2018 Mo. App. LEXIS 1298 (Oct. 24, 2018) (summary opinion).*
Defendant had an opaque privacy fence and allegedly had no trespassing signs. His mailbox was outside the fence and there were security cameras. The officer passed both to come to the door to knock, and then he could smell marijuana. The record is inadequate on whether the record supports defendant had a reasonable expectation of privacy in his curtilage even against that type of entry. Cases are on both sides of the question: signs or fence allow not necessarily enough but both could be. Remanded. State v. Lohse, 2018 Ariz. App. LEXIS 167 (Oct. 25, 2018).
Defendant’s Fourth Amendment claims should have been raised before plea, not in a 2255. Even if it had been, he’d lose on a lack of standing. Tucker v. United States, 2018 U.S. Dist. LEXIS 181328 (W.D. N.C. Oct. 23, 2018).*
Posted inCurtilage, Reasonable expectation of privacy|Comments Off on AZ: Opaque fence, no trespassing signs, and security cameras might bar entry to curtilage; remanded for more findings
The state showed by a preponderance of the evidence that there were exigent circumstances for a warrantless blood draw. Natural dissipation of alcohol alone is not an exigency under McNealy. The first blood draw was potentially contaminated, so a second became necessary but it was getting late. State v. Martin, 2018 ME 144, 2018 Me. LEXIS 149 (Oct. 23, 2018).
The 2255 claim was based on defense counsel not properly handling the motion to suppress, “These arguments are contradicted by the record.” “Petitioner contends that his trial counsel did not ‘properly handle the Motion to Suppress evidence’ and erred by 1) ‘not focusing on the failure of the agents to get a search warrant for [Petitioner’s] apartment prior to seizing [his] computer[,]’ 2) failing to ‘investigate’ the search warrant, and 3) not ‘impeach[ing] Agent White’s testimony at the Motion to Suppress hearing after he changed his testimony about what the search warrant commanded.’” Oates v. United States, 2018 U.S. Dist. LEXIS 181452 (M.D. Ga. Oct. 23, 2018).*
A Network Investigative Technique (NIT) warrant (“Playpen” warrant) issued by a magistrate judge in the Eastern District of Virginia exceeded the general territorial scope identified in Fed. R. Crim. P. 41(b)(1) and was thus void ab initio because it authorized a search of an activating computer in California. The NIT mechanism is not a “tracking device” under Rule 41(b)(4). The good faith exception, however, did not require suppression of evidence. United States v. Henderson, 2018 U.S. App. LEXIS 29848 (9th Cir. Oct. 23, 2018); United States v. Hammond, 2018 U.S. App. LEXIS 29880 (9th Cir. Oct. 23, 2018).
The devices generally attach to dogs’ backs on a vest and transmit video to a handler watching from a screen, possibly on their wrist or around their necks. It’s so the officers can better assess what they are up against before they go into a situation.
Posted inBody cameras|Comments Off on AP: Some police dogs now have cameras, too
Amazon.com pitched its facial-recognition system in the summer to Immigration and Customs Enforcement officials as a way for the agency to target or identify immigrants, a move that could shove the tech giant further into a growing debate over the industry’s work with the government.
Posted inSurveillance technology|Comments Off on WaPo: Amazon met with ICE officials over facial-recognition system that could identify immigrants
The body camera video shows defendant’s mother consented to the search of the premises, and it is noticeably less allegedly coercive sounding than the transcript. United States v. Morris, 2018 U.S. App. LEXIS 29830 (10th Cir. Oct. 23, 2018).
The officers had plenty of probable cause that defendant had 10 lbs of methamphetamine in his vehicle. A CI provided information about defendant receiving the drugs, and defendant challenged the affidavit for search warrant for not mentioning the CI’s whole criminal history. It did mention the CI had a forgery warrant out. When the vehicle was surveilled, officers observed an attempted delivery of part of the load, and the vehicle using counter surveillance measures to avoid the police. On the totality, there was probable cause to stop the vehicle. [Thus, the CI was corroborated by defendant’s actions.] United States v. Alderete, 2018 U.S. App. LEXIS 29831 (10th Cir. Oct. 23, 2018).*
Posted inBody cameras, Consent, Informant hearsay, Probable cause|Comments Off on CA10: Body camera video showed consent, and it was a far more congenial sounding conversation than the transcript read
Police received a call from a liquor store operator that a man was passed out in a car behind the store. When they got there, the man was getting in the car. The community caretaking function still applied because of the possibility the man was under the influence if he was passed out or asleep shortly before. And, this was behind a liquor store, not just anywhere. Therefore, the stop was justified, and they didn’t have to let him go on his way just because he was now awake. Defendant ultimately consented to a breath test. State v. Henry, 2018 Tenn. Crim. App. LEXIS 790 (Oct. 23, 2018).
Defendant argues against the logical and fairly strong inferences that supported issuing a search warrant for her home. Still, on the totality, probable cause was clearly shown. United States v. Ejiofor, 2018 U.S. App. LEXIS 29832 (10th Cir. Oct. 23, 2018).*
Posted inCommunity caretaking function, Probable cause|Comments Off on TN: Police get a call about a passed out parked car driver, but when they get there he’s out of the car; under community caretaking function they can still inquire what’s going on
Defendant was in a car wreck that killed another at 1 am, New Years Day 2014. There were three blood draws: one for medical purposes at the hospital, one directed by the police at the hospital, and one after a search warrant was issued. The warrant application did not mention the prior blood draws. This is not a Franks issue because it isn’t material and the search warrant would have issued anyway. Islas v. State, 2018 Tex. App. LEXIS 8614 (Tex. App. – Houston (14th Dist.) Oct. 23, 2018).
Defendant’s 2255 argument that defense counsel failed to challenge the alleged consent search of his home is rejected. Defense counsel did. There was a suppression hearing, and defendant lost. Lee v. United States, 2018 U.S. Dist. LEXIS 181524 (E.D. Mo. Oct. 23, 2018).*
Posted inFranks doctrine, Inevitable discovery|Comments Off on TX14: Two prior searches for blood constitutionally or statutorily didn’t need to be mentioned in affidavit for third
Defendant was a reported drug overdose, and police and EMTs responded. With a dose of Narcan, she came to, talked, and was taken to the hospital. Meanwhile, there was a plain view, and it was valid. Defendant’s credibility argument that the officer is not to be believed is foreclosed by the standard of review of findings of fact. State v. Frazier, 2018-Ohio-4291, 2018 Ohio App. LEXIS 4630 (5th Dist. Oct. 23, 2018).*
The officer testified that the search of defendant’s luggage was by consent. Defendant didn’t testify, so the record is left with that as unrefuted testimony. United States v. Lucas, 2018 U.S. Dist. LEXIS 181722 (W.D. N.Y. Oct. 23, 2018).*
Posted inConsent, Standards of review|Comments Off on Unrefuted findings of fact on consent are binding on appeal
As with every other circuit, the Seventh Circuit affirms a Playpen warrant on probable cause and good faith exception. United States v. Kienast, 2018 U.S. App. LEXIS 29887 (7th Cir. Oct. 23, 2018).*
Probable cause for the search warrant for defendant was shown. There were omissions from the affidavit that he claims undermines the probable cause finding, but they don’t. [Franks isn’t cited but doesn’t have to be.] United States v. De La Torre, 2018 U.S. App. LEXIS 29626 (8th Cir. Oct. 22, 2018).*
The reasonable suspicion for defendant’s stop was based on a CI’s story that was corroborated enough, and then there was a traffic violation, too. The reasonable suspicion going in allowed the stop to be extended under Rodriguez. United States v. Andrade, 2018 U.S. Dist. LEXIS 180791 (D. Neb. Oct. 22, 2018),* adopted, 2018 U.S. Dist. LEXIS 180366 (D. Neb. Oct. 22, 2018).*
Defendant’s 2018 post-conviction claim that the officer lied about the existence of a CI in 2010 wasn’t cognizable now because he doesn’t claim actual innocence. Edmonson v. United States, 2018 U.S. Dist. LEXIS 181045 (S.D. N.Y. Oct. 19, 2018): Continue reading →
Posted inInformant hearsay|Comments Off on S.D.N.Y.: PCR claim that officer lied about CI eight years earlier wasn’t actual innocence claim
A no-knock entry to prevent destruction of evidence was justified by the fact defendant’s apartment was on the third floor and police had to navigate a locked first floor door before they got to his apartment. Commonwealth v. Silva, 2018 Mass. App. LEXIS 145 (Oct. 22, 2018).
Defendant’s Franks challenge doesn’t rise to the required “substantial preliminary showing.” Omission of reference to a largely inaudible record wasn’t material to the probable cause issue. Moreover, the officer limited his observations in the affidavit. There were gaps of time in the information provided, but the court finds probable cause on the whole of the affidavit because the things sought in the search warrant are likely to be kept, and this overcomes the staleness challenge. United States v. Essing, 2018 U.S. Dist. LEXIS 180376 (N.D. Iowa Oct. 22, 2018).*
Posted inFranks doctrine, Knock and announce|Comments Off on MA: Justification for no-knock shown by risk of destruction of evidence because def’s apartment on 3d floor with locked outside door
The Right to Know Act, in effect as of October 19, 2018, is made up of two components. The first outlines New York City Police Department (NYPD) officers’ obligation to identify themselves, including by providing their name, rank, command, and shield number to civilians at the beginning of certain interactions. The law also requires officers to have business cards that contain this information. These business cards direct civilians to where they can comment or complain about an encounter with an officer and where they may request any body-worn camera footage of their interaction. Under the Right to Know Act, civilians may always ask an officer for this business card but officers are only required to offer the card in certain circumstances, such as during a frisk, searches of your person, property, vehicle, or home, or at sobriety checkpoints.
The second component of the law addresses situations in which officers seek to perform a search and do not have legal justification to do so without a person’s consent. In these circumstances, the Right to Know Act requires that officers explain that searches will not be conducted if a person refuses to provide consent to the search. In addition, the law requires officers to document these requests. As is required in all encounters, including when seeking consent for a search, officers are instructed to use language interpretation services pursuant to the NYPD’s language access plan prior to the search. This can include the use of bilingual officers and telephonic interpretation.
h/t Orin Kerr
Posted inUncategorized|Comments Off on NYC Civilian Complaint Review Board: Right to Know Act
"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.
