CIs gave information that they bought drugs from a guy with a burner phone, and the phone was ultimately linked to defendant. Based on collective knowledge, the police had sufficient information for reasonable suspicion to stop and detain defendant. Defendant wasn’t legally under arrest until the burner phone rang during the detention showing again that he was really the guy. United States v. Conley, 2018 U.S. Dist. LEXIS 160511 (D. Conn. Sep. 20, 2018).
Defendant was stopped for 55 in a 30 and that was a basis for his stop. Dispatch advised he was a chronic FTA. Under the department policy, an inventory was required, and there were firearms seized from the vehicle. United States v. Edmisten, 2018 U.S. Dist. LEXIS 160977 (E.D. Tenn. Sep. 20, 2018).*
2255 COA denied. Defense counsel did in fact argue a Fourth Amendment issue and lost because it was meritless. Reasonable jurists wouldn’t disagree. Hudson v. United States, 2018 U.S. App. LEXIS 26831 (11th Cir. Sep. 19, 2018).*
Defendant shipped packages by Federal Express using his deceased brother’s name as an alias. He had no standing to contest the search of the packages at the Greensboro NC hub. He had no ability to retrieve the packages in transit because his name didn’t match the names on the packages. Once received, he claimed them. United States v. Faruqrose, 2018 U.S. Dist. LEXIS 160805 (E.D. N.C. Sep. 20, 2018): Continue reading →
Posted inMail and packages, Standing|Comments Off on E.D.N.C.: Def who shipped FedEx packages under an alias had no standing to contest a search in transit since it was impossible for him to claim them
A prosecutor and state investigator subpoenaed plaintiff’s work emails from Penn State. They get qualified immunity because there was no clearly established law that the subpoena was invalid. Plaintiff argues the evolving standards of the reasonable expectation of privacy in work emails, but case law from other jurisdictions doesn’t carry the day in light of qualified immunity. Plaintiff seeks to amend to plead the Stored Communications Act, and the case is remanded for that. Walker v. Coffey, 2018 U.S. App. LEXIS 26864 (3d Cir. Sep. 20, 2018): Continue reading →
The police had a defective search warrant to bring them to defendant’s house to search the car in the driveway. The Pennsylvania Supreme Court held the year before Collins v. Virginia that the automobile exception didn’t apply in one’s driveway, so the state doesn’t get that fall back argument. Commonwealth v. Chesney, 2018 PA Super 262, 2018 Pa. Super. LEXIS 1042 (Sep. 20, 2018).
The court can’t determine whether defendant is an “aggrieved person” for standing on a wiretap order because there’s no hard evidence it’s his voice and he won’t admit that it was his voice for standing. Turning to the merits, there was probable cause and nexus for the wiretap. United States v. Montemayor, 2018 U.S. Dist. LEXIS 160966 (N.D. Ga. Sep. 20, 2018).*
Posted inAutomobile exception, Curtilage, Standing|Comments Off on PA: The automobile exception doesn’t apply in def’s own driveway; PA SCt held that before Collins
Defendant was the subject of a CSLI warrant in January 2018. After he filed a motion to suppress under Carpenter decided in June, the state sought the same information by a search warrant in August 2018. Carpenter applies here. The state pleads the independent source doctrine, but the court can’t decide that now. State v. Rone, 2018 Del. Super. LEXIS 396 (Sep. 20, 2018).
Defendant’s stop for trespassing again on the victim’s property was with reasonable suspicion, and the reasonable suspicion escalated the longer the stop went on. United States v. Marin, 2018 U.S. Dist. LEXIS 161080 (N.D. Iowa July 26, 2018).*
Making a constitutional argument about the implied consent law in opening statement and closing argument without a motion or briefing it is insufficient. Yet, remanded so he can do it again. [Not in most states; it would be denied and not remanded.] Bloom v. State, 2018 La. App. LEXIS 1770 (La. App. 1 Cir. Sep. 20, 2018): Continue reading →
Posted inBurden of pleading|Comments Off on LA1: Not filing a motion and putting on proof on suppression issue gets it denied; but we’ll let you try it again
The use of a Stingray cell site simulator to find defendant to find him to arrest him didn’t violate the Fourth Amendment. Even if it did, the good faith exception makes it valid here. Andres v. State, 2018 Fla. LEXIS 1707 (Sep. 20, 2018): Continue reading →
Posted inWarrant execution|Comments Off on WaPo: Pr. George’s police thought they were bursting into home of a drug dealer. They were at an innocent man’s door instead.
During a protective sweep, a firearm and cell phones were seen, and a search warrant was later issued for the firearm. His cell phone was in plain view and seized when defendant was arrested. The officers came back for the firearm with the warrant, and this was valid. United States v. Felton, 2018 U.S. Dist. LEXIS 159443 (S.D. N.Y. Sep. 19, 2018).*
Defendant wasn’t entitled to a hearing on her post-conviction petition alleging that her plea was involuntary because it was based on an illegal search. For all it appears, she wouldn’t prevail because the search was by consent. Stragliati v. State, 2018 Mo. App. LEXIS 1108 (Sep. 18, 2018).*
Probable cause was shown for a search warrant for a cell phone for taking video of defendant’s daughters changing clothes under a door. The independent source doctrine permitted police to get a second search warrant for the phone after the first was suppressed for failing to accurately describe how the police came into possession of the phone. The contents of the prior search didn’t make it into the affidavit. Johnson v. State, 2018 Ark. App. 429, 2018 Ark. App. LEXIS 524 (Sep. 19, 2018).
Police were called about a trespasser at 2:45 am and defendant was stopped after officers saw him driving erratically and on the wrong side of the road. Defendant’s fast speech and explanation that he was on the other person’s property looking for a vehicle title at 2:45 am and his driving on the wrong side of the road supported reasonable suspicion that defendant was driving under the influence of drugs. The stop was reasonable in length. Defendant wasn’t handcuffed when the officer was talking to him, and that here means he was not in custody. The government concedes that some of the evidence can be suppressed, so that’s as far as it’s granted. United States v. Marin, 2018 U.S. Dist. LEXIS 159967 (N.D. Iowa Sep. 19, 2018).*
The affiant left out adverse information about the CI including felony convictions, that he was on probation, and that he was paid. Still, the information from the CI was fresh, detailed, and significantly corroborated, and probable cause still existed. United States v. Bradford, 2018 U.S. App. LEXIS 26638 (7th Cir. Sep. 19, 2018): Continue reading →
Posted inInformant hearsay|Comments Off on CA7: Affiant’s omission of adverse info on CI that he had priors, was on probation, and paid didn’t undermine fresh, detailed, and corroborated info
The search of defendant’s purse was by consent. She was stopped at the Albuquerque Greyhound station by the DEA and asked twice for consent to search her purse, and he asked why. Finally, the DEA agent asked if she could just open it so he could look inside, and defendant agreed and she moved it around, and the officer didn’t reach inside. Considering the totality, the court finds it was by consent. United States v. Ramos-Burciaga, 2018 U.S. Dist. LEXIS 159685 (D. N.M. Sep. 19, 2018).*
Defendant in his 2255 raised an illegal search ineffective assistance claim. He makes a prima facie showing of standing in his girlfriend’s apartment because he spent a lot of time there and had a key. On the merits of the search, there was exigency for the entry, and there was no ineffective assistance of counsel because a motion to suppress would have failed. Bloch v. United States, 2018 U.S. Dist. LEXIS 159544 (N.D. Ind. Sep. 19, 2018).*
Posted inConsent, Emergency / exigency|Comments Off on D.N.M.: Def rejected consent twice but consented on the third non-coercive request
A newer issue raised in a post-hearing brief on the motion to suppress was a part of the motion when it was decided by the trial court. A padlock on a door and a fan running inside does not support the conclusion that there was a grow operation inside. The odor of marijuana in the air wasn’t enough. Wingate v. State, 2018 Ga. App. LEXIS 515 (Sep. 19, 2018).*
Any motion to suppress would have been fruitless, so there was no ineffective assistance of counsel, for lack of standing and because the protective sweep for a shotgun was justified. Lee v. United States, 2018 U.S. Dist. LEXIS 159910 (D. N.J. Sep. 19, 2018).*
Posted inBurden of pleading, Ineffective assistance|Comments Off on GA: An issue briefed but not heard at the suppression hearing was fairly presented and preserved
Defendant’s theoretical possibilities that more could have been done to investigate doesn’t undermine the probable cause that already existed. The police didn’t have to investigate all the alternatives to what could have been when they had probable cause as to defendant. United States v. Bacon, 2018 U.S. Dist. LEXIS 159542 (N.D. Ind. Sep. 19, 2018).
The motorist was arrested at the stationhouse, not the Walgreens where the stop started. There was probable cause for the arrest. Mannino v. Dir. of Revenue, 2018 Mo. App. LEXIS 1117 (Sep. 18, 2018).*
Posted inArrest or entry on arrest, Probable cause|Comments Off on N.D.Ind.: Once the police see PC, they don’t have to investigate alternative theories to dispel it
A controlled buy was probable cause to arrest. United States v. Jackson, 2018 U.S. Dist. LEXIS 158445 (M.D. Pa. Sep. 18, 2018).*
Plaintiffs’ claim that an administrative code violation search was a pretext for a criminal search fails on the merits on summary judgment. Newberry v. County of San Bernardino, 2018 U.S. App. LEXIS 26420 (9th Cir. Sep. 18, 2018).*
“The affidavit thus establishes the following: (1) a specific sale of marijuana by the defendant to a confidential informant; (2) the reliability of the informant; (3) based on the informant’s reliability, the defendant’s ongoing practice of selling marijuana (not a one-time sale); (4) the common practice of drug dealers keeping drugs, weapons, business records and large sums of cash secured someplace; (5) the common practice of drug dealers using their residences for these purposes; and (6) the common practice of drug dealers making sales away from their residences precisely because evidence (including proceeds) of their illegal activity is kept there. The defendant makes no challenge to the accuracy, reliability or weight of items (2) – (6); instead, he ignores them.” United States v. Hill, 2018 U.S. Dist. LEXIS 158928 (S.D. Ala. Sep. 18, 2018).*
Defendant was validly stopped for a turn signal violation. During the stop, reasonable suspicion developed starting with defendant volunteering he was a DEA informant. United States v. Jackson, 2018 U.S. Dist. LEXIS 158598 (E.D. Ky. Sep. 18, 2018).*
Defendant argued his request for a breath test was for a “breathalyzer” not for an “Intoximeter,” but he refused so a search warrant for blood was obtained. “[T]he right to a pre-arrest chemical analysis is a purely statutory right that is invoked only by a defendant’s ‘request’ for that test, we affirm the trial court’s denial of Defendant’s Motion to Suppress on the grounds that ‘[n]o violation of N.C. Gen. Stat. 20-16.2(i) occurred[.]’” State v. Thabet, 2018 N.C. App. LEXIS 908 (Sep. 18, 2018).*
BIA suppression wasn’t warranted because regulations weren’t violated and the detention was reasonable. Onofre-Rojas v. Sessions, 2018 U.S. App. LEXIS 26450 (9th Cir. Sep. 18, 2018).*
Defense counsel wasn’t ineffective for not objecting to the alleged overseizure of marijuana. Once police were on the property with a validly issued warrant, all the marijuana was seizable because it was in plain view. Green v. United States, 2018 U.S. Dist. LEXIS 158995 (E.D. Tenn. Sep. 18, 2018).*
Defendant didn’t provide any support that the R&R was wrong on probable cause or the good faith exception. United States v. Brown, 2018 U.S. Dist. LEXIS 158867 (N.D. W.Va. Sep. 18, 2018).*
Posted inOverseizure, Plain view, feel, smell|Comments Off on E.D.Tenn.: There was no overseizure of marijuana on the search; it was in plain view
Wisconsin follows the uniform rule from all other courts and holds that there is no reasonable expectation of privacy in computer files available on eDonkey P2P network under either the Fourth Amendment or the state constitution. State v. Baric, 2018 Wisc. App. LEXIS 764 (Sep. 18, 2018).*
“As a result, even if I assume the magistrate judge lacked the authority to issue the NIT Warrant, I conclude the officers executing the NIT Warrant objectively acted in good faith, and deny Sutter’s motion to suppress based upon the NIT Warrant.” The Playpen warrant led to a search warrant for defendant’s house. Because the good faith exception applies, defendant doesn’t get a hearing on what the officer knew about Playpen warrants in general and whether some other court once held that a Playpen warrant was unreasonable. United States v. Sutter, 2018 U.S. Dist. LEXIS 159124 (N.D. Ohio Sep. 18, 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.
