Travelers have a reasonable expectation of privacy that their luggage will not be manipulated in a way to effectively search it. That does not mean that officers can’t perform a dog sniff or move it without manipulating it. Here, the officer picked up a bag left in the overhead rack to look for a name tag, and the bag’s heft was suspicious. That alone was not unreasonable. United States v. Fernandez, 2018 U.S. Dist. LEXIS 173287 (D. N.M. Oct. 9, 2018).
“Courts have repeatedly found that the presence of armed officers at the search location and requiring a suspect to be accompanied around the premises does not escalate an interrogation to a degree that makes it custodial.” United States v. Blank, 2018 U.S. Dist. LEXIS 173470 (M.D. Fla. Oct. 9, 2018).*
Posted inSearch|Comments Off on D.N.M.: Lifting a bag on an empty bus’s overhead rack to see the name tag was not a search
The statute of limitations for an illegal search is from when it happens, not when a court declares it unreasonable. Nguyen v. Pennsylvania, 2018 U.S. App. LEXIS 28524 (3d Cir. Oct. 10, 2018).
Off topic but important: “Egregious” Brady and Giglio violations reversing all but three counts of conviction on post-conviction. Prosecutor passed off witnesses with cooperation agreements as just good citizens. Reversed almost every count, and that will certainly be the appeal. United States v. Anderson, 2018 U.S. Dist. LEXIS 173659 (D. Mont. Oct. 9, 2018)*:
1. Anderson’s amended motion under 28 U.S.C. § 2255 (Doc. 472) is GRANTED as to Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, and 30 and those convictions are vacated.
2. Anderson’s amended motion under 28 U.S.C. § 2255 (Doc. 472) is DENIED as to Counts 11, 16, and 24.
Posted in§ 1983 / Bivens|Comments Off on CA3: Statute of limitations is from the search, not when a court holds it unreasonable
Or so they say. It took a long time to recreate because of the 20,000+ posts that were there.
And, the posts from October 5-8 were lost in the crash. I guess I’ll have redo those.
This will stay at the top of the page for a couple of days. The current posts will be right below.
I hate this way more than any of you. I’ve been doing this every day for nearly 16 years, and I was really perturbed by it. We all hate being at someone else’s mercy.
Posted inUncategorized|Comments Off on Website been down 44 hours because of server failure in Chicago server farm
Defendant’s possession of a cool open beer can in his cup holder and an empty can and other full cans in the back seat permitted a search under the automobile exception of the glove compartment for more open containers [like an open beer can would be there]. State v. Daily, 2018 Ida. App. LEXIS 43 (Oct. 9, 2018).
Posted inAutomobile exception|Comments Off on ID: Open container violation permits automobile exception of passenger compartment search for more
Officers put a video camera in defendant’s back neighbor’s house to look at defendant’s back yard over the long term. This was similar to a pole camera, except that its view was the same as the back neighbor’s, and it did not violate the Fourth Amendment. United States v. Kubasiak, Oct 05, 2018 2018 U.S. Dist. LEXIS 172514 (E.D. Wis. Oct. 4, 2018), R&R 2018 U.S. Dist. LEXIS 172972 (E.D. Wis. Aug. 23, 2018).
The government obtained two orders for CSLI: The first by an order under the SCA. After Carpenter, without referring to the prior result, the government got a search warrant for the CSLI. Based on that representation, defendant withdrew his motion to suppress. United States v. Reizin, 2018 U.S. Dist. LEXIS 172909 (E.D. N.Y. Oct. 3, 2018).
Posted inCell site location information, Pole cameras|Comments Off on E.D.Wis.: Govt planting video camera in neighbor’s house aiming at def’s backyard didn’t violate 4A
From stop-and-frisk to driving while black to wrongful murder convictions, African American men have always endured the suspicion that President Trump now fears on behalf of all men.
Posted inPretext|Comments Off on WaPo: Opinion: Black men–not white guys–face false allegations and a presumption of guilt
Animal control officers in Delaware have the authority to obtain arrest warrants for animal control laws. Smith v. First State Animal Center, 2018 Del. Super. LEXIS 423 (Oct. 4, 2018).*
Excessive window tinting justified the stop, and the officer didn’t need a tint meter to do it; he could see it (so he credibly said). “The Court concludes that, based upon the lawfulness of the traffic stop and Defendant’s suspicious behavior, including his belligerence and failure to comply with the officers’ instructions, the law enforcement officers’ conduct in asking Defendant to place his hands on the vehicle so that he could be frisked was justified.” United States v. Lucas, 2018 U.S. Dist. LEXIS 172931 (W.D. N.Y. Oct. 5, 2018).*
Defendant has no right to counsel before being asked for consent to a DRE. Pirtle on advice of rights before obtaining consent from a person in custody doesn’t apply here. Dycus v. State, 2018 Ind. LEXIS 564 (Oct. 3, 2018): Continue reading →
Officer’s deception defendant was the victim of online identify theft did not make his consensual encounter with the officers involuntary. Then they told him it was about child pornography. United States v. Dates, 2018 U.S. App. LEXIS 27983 (10th Cir. Oct. 3, 2018): Continue reading →
Posted inConsent|Comments Off on CA10: Deception def was victim of ID theft didn’t make encounter less consensual; officers really wanted to talk about CP
Defendant was arrested for bank robbery, and an open envelope on his person containing the bank robbery note was subject to search incident even though it was removed from him and not searched for maybe five minutes after the arrest. United States v. McLaughlin, 2018 U.S. App. LEXIS 27929 (5th Cir. Oct. 2, 2018): Continue reading →
Posted inSearch incident|Comments Off on CA5: Search incident of open envelope on person of arrestee for bank robbery was valid; it had the note
The affiant on a child pornography search warrant doesn’t have to personally view the material. He can relate what another officer said who did see it under the collective knowledge doctrine. Mardosas v. State, 2018 Fla. App. LEXIS 14012 (Fla. 1st DCA Oct. 3, 2018).
Another Playpen warrant is sustained. A staleness challenge is also rejected. United States v. Krisnik, 2018 U.S. Dist. LEXIS 170158 (D. Minn. Oct. 2, 2018).*
The affidavit for the search warrant “plainly shows” that evidence of hacking would be found at defendant’s house. Knowing defendant was a convicted felon going in made the firearms found subject to plain view. United States v. Davis, 2018 U.S. Dist. LEXIS 169697 (W.D. Pa. Oct. 2, 2018).*
A search warrant with a nighttime search authorization can be executed in the daytime, too. State v. Flores, 2018-Ohio-3980, 2018 Ohio App. LEXIS 4307 (6th Dist. Oct. 1, 2018) [Daytime warrant execution is just safer. That’s why there’s a high requirement for a nighttime warrant.]
The USMJ’s finding of consent is entitled to deference on appeal to the USDJ. United States v. Harris, 2018 U.S. Dist. LEXIS 170494 (N.D. Ind. Oct. 3, 2018).*
Defense counsel was not ineffective for not forecasting McNeeley before defendant’s guilty plea. “When a defendant waives the right to have a jury determine guilt or innocence and admits or does not contest guilt, the defendant does so under the law existing at the time of the plea. The fact that Briggs’s attorney did not anticipate subsequent changes in [Fourth Amendment] law does not impugn the truth or reliability of Briggs’s plea. We reverse the decision of the court of appeals and affirm the judgment of the trial court.” Briggs v. State, 2018 Tex. Crim. App. LEXIS 924 (Oct. 3, 2018).
Posted inIneffective assistance|Comments Off on TX: No IAC for def counsel not forecasting change in 4A law
"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.
