Legal professionals are warning the Apple Watch could open owners up to criminal liability due to a new feature that automatically dials 911 if it senses the wearer has fallen and no action is taken. Due to the “community caretaking” exception to the Fourth Amendment, police could legally enter someone’s home without a warrant after receiving an emergency alert. They would then be free to scope the surroundings out for potential criminality.
Defendant doesn’t lose standing to contest a Facebook warrant because he’s a sex offender and the Facebook terms of service state that sex offenders can’t have accounts. He had an account, and he had standing. While this court has found a diminished expectation of privacy in Facebook accounts, it’s not nonexistent. He had messenger and private settings. The crime under investigation was whether he had an unlisted Facebook account as far as the SO registry was concerned. The search warrant, however, wanted everything in his account, and there was no need for it. It was vastly overbroad on its face. So broad, that the good faith exception did not apply. The first warrant failing means the second warrant based on the product of the first fails, too. United States v. Irving, 2018 U.S. Dist. LEXIS 167088 (D. Kan. Sep. 28, 2018): Continue reading →
Posted inOverbreadth, Social media warrants|Comments Off on D.Kan.: All SW needed to prove was that def had a Facebook account, but the police sought the entire contents of the account; suppressed as overbroad
Defendant didn’t get ineffective assistance of counsel from defense counsel not challenging warrantless CSLI production without a warrant before Carpenter. United States v. Lewisbey, 2018 U.S. Dist. LEXIS 165566 (N.D. Ill. Sep. 27, 2018).
Defendant claimed for the first time on appeal that state officers had no authority to arrest except for crimes in their presence, and that’s waived. [It would have lost on the merits anyway under Virginia v. Moore: The Fourth Amendment doesn’t care about state laws.] On the question of third party consent, the evidence supports the district court’s findings, so there is no clear error. United States v. Kellam, 2018 U.S. App. LEXIS 27673 (3d Cir. Sep. 28, 2018).*
The named CI’s statement she’d been buying heroin from defendant for three years was probable cause. United States v. Haqq, 2018 U.S. Dist. LEXIS 165936 (W.D. Ky. Sep. 27, 2018).*
Probable cause here was based on the CI’s statement and police observing two controlled buys. United States v. Jones, 2018 U.S. Dist. LEXIS 165931 (E.D. Ky. Sep. 27, 2018).*
Defendant here attempts to use F.R.C.P. 60 to allege a “fraud on the court,” which if anything was a fraud on the state court way back at the investigative stage of the case when the search warrant was issued. Yet, he’s already had a 2255, so this is treated as a successor habeas petition. Finally, it’s a collateral attack waived by the plea agreement. Dorsett v. United States, 2018 U.S. Dist. LEXIS 165679 (E.D. Pa. Sep. 27, 2018).*
Posted inInformant hearsay, Probable cause|Comments Off on W.D.Ky.: CI’s been buying heroin from def for 3 years, and that’s PC
Defendant was tried in 2011. He was scheduled to be sentenced in 2018. He filed a motion to reopen the suppression hearing of his CSLI obtained under the SCA because of Carpenter. Denied; good faith exception applies. United States v. Williams, 2018 U.S. Dist. LEXIS 165813 (E.D. N.Y. Sep. 27, 2018).
“A person has a legitimate expectation of privacy in a motel room in which he is an overnight guest, Minnesota v. Olson, 495 U.S. 91 (1990); however, Petitioner does not aver that, at any time during the events in question, he rented the motel room or even entered the motel room. Therefore, he has not met his burden to show he had a legitimate expectation of privacy in the motel room in question. He cannot show that his counsel’s failure to file a motion to suppress evidence seized from the motel room was deficient in any respect or prejudicial to him. Petitioner’s argument has no foundation.” Dais v. United States, 2018 U.S. Dist. LEXIS 167265 (E.D. Tenn. Sep. 28, 2018).*
Posted inGood faith exception, Standing|Comments Off on E.D.N.Y.: CSLI obtained 7 years before Carpenter was in good faith
Defendant claimed that she did not abandon her cell phone; she willingly left it behind so her partner couldn’t track her. Still, the password was known and that’s how the private search occurred which revealed sex acts with children on the phone. In Texas, one can attempt to try a search question to the jury (Tex. Code Crim. Proc. Ann. art. 38.23(a)) if there are contested facts for the jury to find; otherwise it’s a question of law for the court. “Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012); see Madden v. State, 242 S.W.3d 504, 517-18 (Tex. Crim. App. 2007). Further, the factual dispute must be related to how the evidence sought to be suppressed was obtained. Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012).” Here, the trial court did not abuse its discretion in denying a jury instruction on the search question because of the lack of a material fact dispute. Kelso v. State, 2018 Tex. App. LEXIS 7930 (Tex. App. – Texarkana Sep. 28, 2018).
Posted inAbandonment|Comments Off on TX6: Intentionally leaving phone behind to avoid tracking was still abandonment
Defendant juvenile was in a Walgreens with his stepfather, and the sales clerk suspected he’d robbed them two weeks earlier wearing the same clothes. The Walgreens reward number of the father was used to track the address of the juvenile. The police developed probable cause. “Although this eyewitness identification alone might not be enough to get a search warrant because the suspect’s face was partially covered at the time of the January 2017 robbery of the Walgreens, this fact when combined with the other facts detailed in the application for a search warrant establish probable cause and show that the police had more than a ‘generalized suspicion’ that Respondent was responsible for the Walgreens robbery. For example, Respondent lives in the sub-division where the suspect fled on foot following each robbery, his physical appearance is similar to that described by the witnesses, and he was surveilled, on several occasions, wearing clothes similar to those worn by the suspect. Furthermore, the similarities between the facts of the robberies are sufficient to link Respondent to each robbery due to the geographic proximity of the stores to each other, the suspect’s use of demand notes and disguises, the suspect’s physical appearance, and his fleeing on foot in the same general direction after each robbery.” State v. C. B. M., 2018 Del. Fam. Ct. LEXIS 30 (Sep. 25, 2018).*
Posted inProbable cause|Comments Off on DE: Police corroborated masked juvenile robber’s identity enough to get SW for his place
The excessive force faction of the Fourth Amendment does not apply to property damage claims. Quality Care Daycare Bup, LLC v. Jones, 2018 U.S. Dist. LEXIS 166292 (D. Md. Sep. 27, 2018). [Plead unreasonableness]
In a scheme involving fraudulently obtaining government benefits over an 18 month period, the warrant wasn’t stale just because four months had passed since the last known act. The scheme was ongoing. United States v. Joseph, 2018 U.S. Dist. LEXIS 166667 (S.D. Fla. Sep. 27, 2018).
Posted inExcessive force, Staleness|Comments Off on D.Md.: Excessive force faction of 4A does not apply to property damage claims
“Based upon the totality of the circumstances and the Court’s assessment of the credibility of the parole officers, the Court finds that the [parole authority] lacked reasonable suspicion to search Neff’s cell phone. The results of the search, therefore, must be suppressed.” The reports generated at the time were direct without any of the color the parole officers put in their testimony. Therefore, the court finds against them on the credibility question and finds no reasonable suspicion. United States v. Neff, 2018 U.S. Dist. LEXIS 166595 (N.D. Ohio Sep. 27, 2018).
Defendant sat through the suppression hearing, so he was aware of the strength of the government’s case, and he can’t fault defense counsel for not expressing it more vehemently. Hendricks v. United States, 2018 U.S. Dist. LEXIS 166020 (D. V.I. Sep. 27, 2018).*
Defendant was a suspect in a series of bank robberies, and a court order was obtained for his CSLI in 2016. Defendant’s argument that Riley foretold Carpenter is rejected. It wasn’t enough to forecast a clear outcome. The good faith exception applies. United States v. Boyle, 2018 U.S. Dist. LEXIS 166096 (E.D. Pa. Sep. 17, 2018).
The government’s 11 month delay in extracting information from a cell phone doesn’t warrant dismissal, but it does warrant a continuance. United States v. Crable, 2018 U.S. Dist. LEXIS 166454 (D. Kan. Sep. 27, 2018).
The arrest of the codefendant inside house permitted a protective sweep. United States v. Jones, 2018 U.S. Dist. LEXIS 166347 (N.D. Okla. Sep. 27, 2018).
“These nine ineffective assistance of counsel claims are properly evaluated under the Strickland standard, meaning the Court may resolve the claim based on lack of sufficient prejudice without addressing deficiency of performance. Strickland, 466 U.S. at 697. Mr. Brindley did in fact argue many of these issues (numbers 3, 5, and 9 above), and Petitioner has failed to show that he had a reasonable likelihood of success on the remainder, nor a reasonable probability that they would have changed the outcome of the proceedings. Several of the arguments Petitioner claims his counsel was ineffective for failing to raise—the assertions that the Fifth Amendment requires uniform response behaviors in all drug-sniffing dogs across the country and uniform canine proficiency tests, and that a dog sniffing the exterior of a car during a lawful traffic stop violates the Fourth Amendment—have no basis in law.” Bentley v. United States, 2018 U.S. Dist. LEXIS 166362 (C.D. Ill. Sep. 27, 2018).*
A tin can in defendant’s hand and dropped as she was handcuffed was “associated with the person” for search incident purposes. Texas recognizes larger items may not be “associated with the person” v. smaller items more easily held. State v. Drury, 2018 Tex. App. LEXIS 7910 (Tex. App. – Ft. Worth Sep. 28, 2018): Continue reading →
Posted inSearch incident|Comments Off on TX2: A tin can in hand was “associated with the person” for search incident purposes
Defendant was arrested in Nebraska, and Iowa authorities sought his DNA there to connect him to an Iowa crime. Nebraska’s standard for obtaining DNA is less demanding. He can’t show on post-conviction that defense counsel was ineffective for not challenging the Nebraska standard in Iowa because he can’t show any probability of a different outcome. Armstrong v. State, 2018 Iowa App. LEXIS 875 (Sep. 26, 2018). It doesn’t say that the conflict of laws determination wouldn’t matter, just that he can’t show prejudice.
Posted inConflict of laws, Ineffective assistance|Comments Off on IA: No IAC for not challenging evidence obtained in another state where state law was more defense favorable; can’t show outcome would be different
After a few bizarre sexual Aol chat sessions, defendant was seeking communication from minors for sex. The police were informed and did a knock-and-talk, and he admitted the communiques and that the laptop in the room was the one involved. The police seized the computer fearing possible destruction of evidence, and then they obtained a search warrant for it. The motion to suppress is denied. United States v. Stroke, 2018 U.S. Dist. LEXIS 164459 (W.D. N.Y. Sep. 25, 2018).
The defense argument that text messages were obtained by subpoena not search warrant was not preserved for review when the defense waited until the next day to object. Even if it had been preserved, the argument wasn’t fully developed, and the court won’t make the party’s arguments for him. State v. Duck, 2018 Ark. 267, 2018 Ark. LEXIS 263 (Sep. 27, 2018). [And if it had been preserved, the state would have won on good faith reliance on lack of binding precedent to the contrary. The murder was 2011 and defendant developed as a suspect in 2013, and that’s when the “search” occurred.]
Posted inBurden of pleading|Comments Off on AR: Argument that SW was required not subpoena for text messages that came day after admission into evidence was waived
Defendant’s Franks request for an evidentiary hearing without attaching the affidavit for the search warrant is denied without prejudice. The court has nothing to compare. United States v. Carswell, 2018 U.S. Dist. LEXIS 165132 (N.D. Ind. Sep. 26, 2018).
The record supported the finding of consent. The fact officers decided to get a search warrant after the consent search started to be safe in what they were doing didn’t undermine the consent. State v. Lewis, 2018 La. App. LEXIS 1836 (La. App. 2 Cir. Sep. 26, 2018).*
Posted inFranks doctrine|Comments Off on N.D.Ind.: Franks requires attaching affidavit to the motion to suppress
“Even if we were to excise the complained of information–the information obtained from anonymous tipsters and the references in the warrant application concerning sightings of Gully at the residence in previous years–the issuing magistrate still had a substantial basis for concluding there was probable cause that Gully resided with Prince and the evidence sought in relation to the early morning shooting could be located in the place to be searched, Prince’s residence.” State v. Gully, 2018 Iowa App. LEXIS 884 (Sep. 26, 2018).
There was probable cause for the search warrant for defendant’s house. The officers had no information other than that he lived at that address, and he was seen coming and going from there. More importantly, the defendant himself referred to it as his address two months prior to the search. The search was alternatively valid as a probation search. There was both reasonable suspicion and warrants out for defendant’s arrest. United States v. Cotton, 2018 U.S. Dist. LEXIS 164608 (S.D. Cal. Sep. 24, 2018).*
Posted inProbable cause|Comments Off on IA: Even removing the CI’s information from the affidavit, there was still PC for the search
“Eason’s counsel was not ineffective for failing to allege that the search warrant was not signed by the affiant because the Court’s records clearly demonstrate that it was. Had that not been the case, the Court who carefully examined the certified, unredacted copy used an exhibit at the hearing would have surely noticed that omission. Since this contention is clearly not supported by the record, this allegation is dismissed without the necessity of an evidentiary hearing. (See Document 1 in cause 1:13 MJ 4076 LMB, the original signed affidavit)” Eason v. United States, 2018 U.S. Dist. LEXIS 164802 (E.D. Mo. Sep. 26, 2018). The court appears to be taking judicial notice of its own records to show that the search warrant was, in fact, signed.
Posted inIneffective assistance|Comments Off on E.D.Mo.: Of course the SW was signed, so def counsel wasn’t ineffective for not raising it
Defendant minor’s electronic probation search condition challenge was forfeited. In re L.O., 2018 Cal. App. LEXIS 863 (1st Dist. Sep. 26, 2018).*
Defendant was on supervised release, and there was reasonable suspicion for his probation search: A CI said he was dealing heroin, defendant had a second cell phone not listed with the probation office, and he’d tested positive for marijuana and morphine. United States v. Jordan, 2018 U.S. Dist. LEXIS 164350 (W.D. Mo. Sep. 25, 2018).*
Posted inProbation / Parole search|Comments Off on Cal.1: Electronic probation search condition challenge forfeited
"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.
