Defense counsel’s decision not to pursue a motion to suppress was reasonable under the circumstances. Defendant was already facing a 60 month minimum. The government made clear that they had additional counts they could bring but wouldn’t if the defense would forego a motion to suppress which wasn’t at all a certainty. United States v. Beeman, 2018 U.S. Dist. LEXIS 180188 (W.D. Va. Oct. 18, 2018).
Police had probable cause for defendant’s arrest based on citizen observations of child nudity on his cell phone, and that makes any possible mistake about an arrest warrant for him irrelevant. United States v. Diaz, 2018 U.S. Dist. LEXIS 177838 (S.D. Tex. Oct. 16, 2018).*
Posted inIneffective assistance, Probable cause|Comments Off on W.D.Va.: Def counsel’s decision not to pursue a motion to suppress was reasonable and designed to prevent superseding indictment with higher MM
Defendant’s argument that the police must show only that they had a motive to investigate a traffic offense and not any criminal offenses that they already know about is foreclosed by Whren. A mixed motive is not unconstitutional. United States v. Beachem, 2018 U.S. Dist. LEXIS 178858 (N.D. Ind. Oct. 18, 2018).
Based on a collection of factors, the officer had probable cause for an automobile exception search at the time he sought a search warrant for the car and before a dog sniff. Therefore, the dog sniff is irrelevant. United States v. Wright, 2018 U.S. Dist. LEXIS 178176 (W.D. Va. Oct. 17, 2018).*
Posted inAutomobile exception, Pretext|Comments Off on N.D.Ind.: Mixed motive for traffic stop isn’t 4A violation as long as there is objective basis for RS
Motion for return of cell phones is denied. The government intends to keep them pending the outcome of defendant’s 2255 or the running of the statute of limitations, which ever occurs first. That’s sufficient need to deny the motion. United States v. Latimer, 2018 U.S. Dist. LEXIS 178876 (W.D. Wash. Oct. 18, 2018).
Officers were flagged down by a householder complaining of his guests and his wanting them out. The officer went to the place and talked to all three. The householder changed his mind. Shortly thereafter, he called from his bathroom saying he’d locked himself in there because he was being threatened with harm by the guests. The police got there and listened at the door because they wanted to know more about what was going on. Then the defendant came to the door and opened it, saw the officers, and slammed the door. They immediately came in, and defendant tossed down a bag of drugs. The entry was justified by exigency or emergency, and the actions of slamming the door on seeing the officers raised concerns for officer safety. State v. Owens, 2018-Ohio-4225, 2018 Ohio App. LEXIS 4551 (5th Dist. Oct. 15, 2018).*
The officer had reasonable suspicion that defendant was armed, and he attempted to perform a frisk, which defendant refused. This led to a warrantless strip search which was justified by the Fourth Amendment exigency exception and by state statute and rule. State v. Brown, 2018 N.J. Super. LEXIS 143 (Oct. 17, 2018).
Defendant was on probation and the state requirement was reasonable suspicion for a violation of conditions for a search. Officers received information that defendant had a firearm in his house, and he kept it in his daughter’s room, unbeknownst to her. When officers came for a compliance check, the search of his daughter’s backpack in her room was reasonable. United States v. McGuire, 2018 U.S. Dist. LEXIS 178652 (D. Utah Oct. 18, 2018).*
Defendant’s immigration stop 56 miles from the border was without reasonable suspicion under Brignoni-Ponce. He was alone and stopped and checked his phone and pulled into a car wash. Defendant’s actions were more consistent with innocence than criminal conduct. United States v. Aguilar-Garza, 2018 U.S. Dist. LEXIS 178779 (S.D. Tex. Oct. 18, 2018)*: Continue reading →
Posted inImmigration arrests|Comments Off on S.D.Tex.: Immigration stop 56 miles from border was without RS
The seizure of the cell phone was within the time prescribed in the search warrant, but the actual search of the phone didn’t occur until after the time prescribed. This did not violate the Fourth Amendment. Off-site analysis was expected and is what usually happens. United States v. Cleveland, 2018 U.S. App. LEXIS 29505 (6th Cir. Oct. 19, 2018).
Defendant’s CSLI was obtained pre-Carpenter under existing law, and the good faith exception would be applied. United States v. Wright, 2018 U.S. Dist. LEXIS 179013 (D. Nev. Oct. 18, 2018).
Three former Florida police officers were sentenced to prison this week for conspiring to falsely arrest people to improve the department’s crime statistics – at the instruction of their police chief.
Posted inPolice misconduct|Comments Off on NYTimes: Three Florida Police Officers Are Sent to Prison for False Arrests
Defendant had no expectation of privacy in a stolen travel trailer that was found and searched that wasn’t his. United States v. Deckert, 2018 U.S. Dist. LEXIS 178036 (E.D. Tex. Oct. 10, 2018), adopted, 2018 U.S. Dist. LEXIS 178038 (E.D. Tex. Oct. 16, 2018).
Officers had at least reasonable suspicion that defendant was out of compliance with his parole conditions for having moved without permission. That justified their coming to his house. United States v. Daniels, 2018 U.S. Dist. LEXIS 179410 (D. Mont. Oct. 18, 2018).*
Statements against penal interest by CIs that are already in trouble are logically going to hurt the CI more if they turn out to be false, so the CI has an interest in being truthful. Reliability may thus be inferred because of the consequences of falsity, and probable cause was shown. As to a Franks challenge, the trial court assumed the falsity of some assertions, disregarded them, and retested the showing finding probable cause. That finding is also affirmed. State v. Finkle, 2018 VT 111 (Oct. 19, 2018): Continue reading →
Posted inInformant hearsay|Comments Off on VT: A CI who is already in trouble with the police has an interest in truthfulness, and thus is likely more reliable
Defendant’s consent to two officers to conduct a search of his car didn’t extend to a dog sniff, too, because there wasn’t a dog there at the time, and that would be the common understanding. Commonwealth v. Valdivia, 2018 Pa. LEXIS 5467 (Oct. 17, 2018) (Todd & Mundy concurring and dissenting): Continue reading →
Posted inConsent, Dog sniff, Scope of search|Comments Off on PA: Request for consent to search by two officers with no dog present was not consent to a dog sniff
This search warrant in bank robbery case wasn’t stale when it was issued about seven weeks after the robbery for defendant’s home. Defendant had been identified as the robber, and the affidavit showed a reasonable probability, based on officer experience, that the proceeds of the robbery or clothing worn during the robbery would likely still be found there [which is true]. United States v. Smialek, 2018 U.S. Dist. LEXIS 178574 (D. Minn. Oct. 17, 2018): Continue reading →
Posted inStaleness|Comments Off on D.Minn.: Officer’s affidavit showed PC that clothing or proceeds of robbery would be at def’s home seven weeks after robber
The CI was corroborated and the totality gives probable cause. The fact that the drugs were not tested prior to the search warrant doesn’t undermine the probable cause or good faith because the officer could tell what it probably was. “Given the experience and corroboration of the affiant, the Court is not persuaded that probable cause did not exist because the substance purchased was not tested.” United States v. Green, 2018 U.S. Dist. LEXIS 179113 (E.D. Mich. Oct. 18, 2018).
The automobile exception applies to a stopped vehicle parked on the highway because it is still mobile [and subject to removal]. A dog alerted on the vehicle, the vehicle was seized, and a search warrant issued [even though not necessary under the Fourth Amendment]. State v. Bowen, 2018-Ohio-4220, 2018 Ohio App. LEXIS 4550 (5th Dist. Oct. 15, 2018).*
Posted inAutomobile exception, Probable cause|Comments Off on E.D.Mich.: Drugs don’t have to be forensically tested after a controlled buy for there to be PC
The affiant’s allegation that defendant left his house to conduct drug deals then returned there right afterward creates a reasonable inference that drugs are kept in the house. Thus, there was probable cause for the search warrant. State v. Pettaway, 2018-Ohio-4241, 2018 Ohio App. LEXIS 4577 (6th Dist. Oct. 19, 2018).
Indiana’s more stringent constitutional requirement for car searches didn’t impose any higher standard on inventory searches after seizure for forfeiture. Ector v. State, 2018 Ind. App. LEXIS 376 (Oct. 19, 2018).
Posted inForfeiture, Inventory, Nexus|Comments Off on OH6: Leaving house to do a drug deal and going back home right after is inference drugs at home
The officer here found an outstanding misdemeanor arrest warrant for defendant, and a probable address where she may be living with her boyfriend. The address was an apartment building with 5-6 apartments, and the officer asked around and went to an apartment with the door open and hanging off the hinges. He knocked on the door frame to get the attention of the occupants. A man came to the door and said just him and his girlfriend were there. He provided a different name for the girlfriend. The officer persuaded him to go get her, and she came out. She matched the picture or the person in the warrant downloaded to the officer’s cell phone. The boyfriend remarked, “that’s her.” Then she admitted that she was the person named. The entry did not violate the Fourth Amendment. The court finds no reason to distinguish between felonies and misdemeanors under Steagald. State v. Hinshaw, 2018-Ohio-4226, 2018 Ohio App. LEXIS 4557 (2d Dist. Oct. 19, 2018): Continue reading →
Posted inArrest or entry on arrest|Comments Off on OH2: Misd arrest warrant permits reasonable entry under Steagald
IL refuses to differentiate between homes and apartment buildings for dog sniffs at the door because an apartment is still a “house” under the Fourth Amendment, and a different rule is unfair. An apartment dweller’s curtilage is his or her door threshold. People v. Bonilla, 2018 IL 122484, 2018 Ill. LEXIS 1022 (Oct. 18, 2018): Continue reading →
Posted inCurtilage, Dog sniff|Comments Off on IL refuses to differentiate between homes and apartment buildings for dog sniffs at the door
Stolen tools were described in the search warrant by color and make, and this was not unconstitutionally vague in the description just because other brands might have the same color scheme. “In this case, the search warrants identified the items to be seized with as much particularity as was possible under the circumstances.” State v. Winchester, 2018 ME 142, 2018 Me. LEXIS 147 (Oct. 18, 2018). [Compared to others I’ve seen for stolen property, this was really specific.]
Defendant’s initial encounter with officers was to just ask him questions, and he couldn’t believe it was custodial or that he wasn’t free to leave. Defendant happened to drive up to a house being searched. Then he gave implausible stories about why he was there. “Moreover, Defendant’s false claims that he had not been driving the truck and trailer and his change in demeanor as he was being questioned about his identity—breathing rapidly and sweating profusely—increased Majors’ suspicions that Defendant was involved in the drug trafficking for which the agents were investigating the residence where Defendant parked the truck and trailer and that he might run or attack the officers as Majors had experienced with other suspects who behaved similarly.” This justified further restraint. United States v. Best, 2018 U.S. Dist. LEXIS 177684 (N.D. Ga. Sep. 17, 2018),* adopted, 2018 U.S. Dist. LEXIS 177403 (N.D. Ga. Oct. 16, 2018).*
Posted inParticularity, Reasonable suspicion|Comments Off on ME: Describing stolen tools by color and make was certainly particular as it could get
Defendant was on the state sex offender registry, and he was subject to compliance checks. Six officers from two agencies came to his house for his compliance review and they talked to him. They were lawfully on the premises under Jardines. Defendant consented to a search of his cell phone, but the record doesn’t say he consented to a forensics search on site. Vacated for more findings. Martinez v. State, 2018 Ga. App. LEXIS 584 (Oct. 19, 2018).
Defendant was in the Air Force, and he was arrested for patronizing a prostitute in Minot, ND. A search authorization for defendant’s camera was issued, but the court of appeals finds that it was without probable cause that any evidence relevant to an investigation for alleged child pornography would be found. Instead, they found pictures of defendant with adult women, one of whom might be a prostitute. The court also finds that the good faith exception and harmless error do not apply. United States v. Toledo, 2018 CCA LEXIS 497 (A.F. Ct. Crim. App. Oct. 16, 2018)* (memorandum).
Posted inConsent, Military searches, Scope of search|Comments Off on GA: Remanded for findings on whether def consented to forensics search of his cell phone
Once a civil forfeiture proceeding has started, the court loses jurisdiction to consider a Rule 41(g) motion for return of property. United States v. Paulino, 2018 U.S. Dist. LEXIS 176893 (S.D. N.Y. Oct. 16, 2018).
The seizure of defendant’s cell phones was reasonable under the automobile exception. The delay in getting a search warrant for them was not unreasonable. United States v. Covington, 2018 U.S. Dist. LEXIS 177407 (N.D. Ga. Oct. 16, 2018).*
Defendant had a reasonable expectation of privacy in her backpack in a city work vehicle despite a city policy that city work vehicles can’t be used for illegal purposes. Consent to search the backpack could not be given by defendant’s supervisors. The anonymous tip the city received didn’t rise to the level of probable cause to search the backpack. Motion to suppress granted. United States v. Williams, 2018 U.S. Dist. LEXIS 177439 (E.D. Mich. Oct. 16, 2018).
One of defendant’s post-conviction claims that defense counsel failed to fully litigate a motion to suppress admissibility of a recorded jail call when defendant was incarcerated in California. California law was more restrictive than Tennessee law on the question, and the conversation would be admissible in California in prosecution for a violent crime, which the Tennessee prosecution was. In any event, defendant pled guilty and waived the search and seizure claim, and he didn’t show defense counsel was ineffective. Townsend v. State, 2018 Tenn. Crim. App. LEXIS 774 (Oct. 16, 2018).*
Posted inConsent, Probable cause|Comments Off on E.D.Mich.: City DPW employee had REP in backpack in a city work vehicle; city couldn’t consent to its search
The application for the search warrant could have been more clear, but it was still apparent that the attachments were incorporated, and they completed the probable cause showing. Moreover, the attachments were used in the pre-search briefing of the officers so they were aware of the limits of the warrant. Prior circuit cases found it important that the attachments were present. These attachments were clearly referred to by all the officers involved before the search. United States v. Weber, 2018 U.S. Dist. LEXIS 176709 (D. S.D. Oct. 15, 2018).
The DoD IG’s investigative subpoena to Facebook for subscriber information was reasonable and within the scope of the IG’s investigative power. An affidavit of one with knowledge is enough to satisfy the government’s burden at this stage. Humphrey v. U.S. Department of Defense, 2018 U.S. Dist. LEXIS 177672 (D. Haw. Oct. 16, 2018).*
"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.
