A parole arrest wasn’t in violation of the Fourth Amendment just because a parole officer got a law enforcement officer to do it. There also was probable cause for the arrest. State v. Ayala, 2018 Ida. App. LEXIS 41 (Sep. 18, 2018).
Defense counsel wasn’t ineffective for not objecting to the government’s use of the video of defense arrest. There was no mention of the crime of the arrest and there was no apparent prejudice. United States v. Needham, 2018 U.S. Dist. LEXIS 158885 (W.D. La. Sep. 13, 2018).*
Defendant was accused of staying in a motel with a 15-year-old runaway apparently listed with the hotel as his likely wife, and the facts presented to the officers, as in other courts in similar cases, provided exigent circumstances. Probable cause is still required for an arrest on entry, and it was present here. United States v. Carmona, 2018 U.S. Dist. LEXIS 158515 (D. Kan. Sep. 18, 2018): Continue reading →
Posted inArrest or entry on arrest, Emergency / exigency|Comments Off on D.Kan.: Having a 15-year-old runaway in a motel room falsely implying a marital relationship is exigency for entry
Defendant’s girlfriend reported to police that he had a firearm and used it to break a window in her car and strike her when she was trying to leave. There was probable cause for the warrant for the firearm, and the good faith exception applied. United States v. Brown, 2018 U.S. Dist. LEXIS 158205 (N.D. W.Va. Sep. 17, 2018).*
The search warrant for CSLI had a factual basis and defense counsel wasn’t ineffective for not challenging it. State v. McKee, 2018-Ohio-3741, 2018 Ohio App. LEXIS 4044 (11th Dist. Sep. 17, 2018).*
A police supervisor’s post-hoc alleged acquiescence that he didn’t participate in an alleged illegal search doesn’t state a claim against the supervisor. Hunt v. Davis, 2018 U.S. App. LEXIS 26265 (9th Cir. Sep. 17, 2018).
The officers corroborated enough of the CI’s information to show probable cause. Defendant’s Franks claim doesn’t allege or show falsity to undermine it, let alone that it was included recklessly. United States v. Adams, 2018 U.S. Dist. LEXIS 157719 (D.S.C. Sep. 17, 2018).*
Drug courier profile evidence has its place (“Drug-courier profile evidence suggests that a defendant possesses one or more behavioral characteristics typically displayed by persons trafficking in illegal drugs. See State v. Haskie, 242 Ariz. 582, 585 ¶ 14, 399 P.3d 657 (2017); State v. Lee, 191 Ariz. 542, 544 ¶ 10, 959 P.2d 799 (1998).”) but it is fundamental error to use it at trial to convict defendant for what others have done in the past. State v. Escalante, 2018 Ariz. LEXIS 329 (Sep. 14, 2018).
Posted inUncategorized|Comments Off on AZ: The drug courier profile has its place in supporting RS, but it doesn’t have any place at trial
Defendant’s vehicle had been burglarized and USB drives were also stolen. The police report omitted them. Later, another guy acquired the USB drives when he was buying drugs. When he was busted, he turned them over to the police telling them how he acquired them and “He told the officers that this was the ‘mother lode’ and that the drives contained ‘some sick shit.’” The officers didn’t know that the USB drives were stolen. In investigating the USB drives, the police determined from other things on them that they likely were defendant’s. The searches of the USB drives were valid because they were done with apparent authority of the apparent owner who acquired them for drugs. Duke v. State, 2018 Fla. App. LEXIS 13050 (Fla. 1st DCA Sep. 14, 2018).).
Posted inApparent authority|Comments Off on FL1: Possessor of USB drives who acquired them trading for drugs had apparent authority to consent
This case started with hotel housekeeping coming in to clean a room and seeing obvious drug paraphernalia. The police were called, and they were shown. A search warrant was prepared showing probable cause to connect defendants to the room by video of them entering the room (the hotel was connected to a casino so there was video). Defendants proposed to the district court a particular approach for applying the independent source doctrine in Murray. After the district court denied the motion to suppress, defendants appeal arguing that the district court misapplied Murray. This is invited error, and they can’t argue now the district court misapplied it. United States v. Amador, 2018 U.S. App. LEXIS 26061 (10th Cir. Sep. 14, 2018).
A search warrant included a tablet’s memory card for images (still and moving) of possible drug transactions. When officers searched the memory card they found child pornography. The motion to suppress only challenged moving images and not still images, so the argument still images were unconstitutionally obtained isn’t supported for appeal. In addition, the argument was conclusorily presented and the court won’t make the argument for him. Applegate v. Commonwealth, 2018 Ky. App. LEXIS 239 (Sep. 14, 2018).
A broad Facebook warrant for electronically stored information was not unconstitutionally overbroad. “Particularity is not to be confused with breadth — they are ‘related but distinct concepts.’” A Facebook warrant can be issued in New York and served on Facebook’s headquarters in California under the SCA. United States v. Purcell, 2018 U.S. Dist. LEXIS 156648 (S.D. N.Y. Sep. 14, 2018): Continue reading →
Posted inOverbreadth|Comments Off on S.D.N.Y.: “Particularity is not to be confused with breadth — they are ‘related but distinct concepts.’”
Reasonable suspicion for continuing a traffic stop can be based on a violation of probation conditions, as was this one. United States v. Durr, 2018 U.S. Dist. LEXIS 157472 (D. Idaho Sep 15, 2018).
Petition for writ of error coram nobis doesn’t lie for alleged Fourth Amendment claim as a basis for claiming defendant’s plea was involuntary. United States v. Mann, 2018 U.S. Dist. LEXIS 156643 (W.D. Va. Sep. 14, 2018).*
Defendant worked for an apparent convenience store with a drive through. A tobacco control undercover operation was being run for sales to minors. Defendant’s backpack was behind the counter with him, and the officer could see marijuana visible in the backpack from outside the cashier area. The plain view was valid. State v. Gary, 2018-Ohio-3696, 2018 Ohio App. LEXIS 4000 (2d Dist. Sep. 14, 2018).*
The trial court suppressed because the stop was overly extended. Defendant was stopped for alleged failure to signal, and it dragged on for 13 minutes without the officer ever starting on writing a ticket. Conceding the stop was likely valid, the trial court suggested it was pretextual. “Nothing observed by any of the officers warranted detaining Lewis beyond the unproductive search of his vehicle. His continued detention beyond the vehicle search was not based on any articulable facts giving rise to a suspicion of some illegal activity justifying an extension of the detention, and thus was an illegal seizure.” State v. Lewis, 2018-Ohio-3681, 2018 Ohio App. LEXIS 3962 (5th Dist. Sep. 13, 2018).
Posted inReasonableness|Comments Off on OH5: Stop became unreasonable where officer extended stop 13 minutes and never started on ticket for failure to signal
The officer’s objective reliance on pre-Birchfield law meant the good faith exception applied. State v. Nielsen, 301 Neb. 88, 2018 Neb. LEXIS 158 (Sep 15, 2018).
Pre-Carpenter CSLI by SCA order without probable cause was the law prior to Carpenter, and the good faith exception applied. United States v. Lightfoot, 2018 U.S. Dist. LEXIS 156860 (W.D. La. Sep. 14, 2018).
Posted inGood faith exception|Comments Off on NE: Reliance on pre-Birchfield law meant GFE applied
Defendant did not abandon his car. He parked it at his house and went inside. His dog was still inside. The entry into his car was reasonable under the community caretaking function because it was left in gear, and a gun could be seen in plain view from outside. United States v. Chavez, 2018 U.S. Dist. LEXIS 157092 (D. N.M. Sep. 14, 2018).
CI’s information of prior sales and then two controlled buys showed the warrant wasn’t stale. United States v. Leachman, 2018 U.S. Dist. LEXIS 157284 (E.D. Mo. Sep. 14, 2018),* adopted, 2018 U.S. Dist. LEXIS 156700 (E.D. Mo. Sep. 14, 2018).*
Posted inAbandonment, Staleness|Comments Off on D.N.M.: Def parked car near his house but left it in gear with the key in the ignition; it was not abandoned
Officers responded to a call about shots fired hitting a car, and, at defendant’s apartment building, defendant and his cohort fled when the police approached. Possible blood was found on his doormat, and the door had a boot mark that looked like it had been kicked in. The entry was reasonable to look for possible victims. State v. Castellanos, 26 Neb. App. 310, 2018 Neb. App. LEXIS 222 (Sep. 13, 2018).
North Dakota amended its implied consent statute after Birchfield, but the way it was presented to the defendant here was misleading so it is suppressed. Schoon v. N.D. DOT, 2018 ND 210 (Sep 15, 2018).*
Posted inDrug or alcohol testing, Emergency / exigency|Comments Off on NE: Shots fired at car led to officers seeing likely kicked in door and blood on doormat and that was exigency
Alleged violation of a state regulation that led to defendant juvenile’s identity didn’t warrant suppression. Suppression would require the statute align with a constitutional requirement. Moreover, there was no police misconduct; indeed, the police did good work here in locating him as a suspect. Commonwealth v. Demetrius D., 2018 Mass. App. LEXIS 121 (Sep. 14, 2018): Continue reading →
Posted inExclusionary rule|Comments Off on MA: Violation of a state regulation leading to identifying def juvenile doesn’t warrant suppression
Defense counsel didn’t file a motion to suppress because she didn’t see a reason for it until testimony at trial revealed the issue. Therefore, the defense made a mid-trial motion to suppress. The trial court denied it on two grounds: untimeliness and based on the testimony at trial. The court can’t say on what it has before it that a pretrial motion to suppress would be granted to satisfy the prejudice prong. Raising the issue mid-trial is just too different, and a lot more evidence is in. State v. Oliver, 2018-Ohio-3667, 2018 Ohio App. LEXIS 3966 (8th Dist. Sep. 13, 2018): Continue reading →
Posted inIneffective assistance|Comments Off on OH8: Hard to show prejudice for IAC on not raising a motion to suppress until mid-trial
It was not error to deny a continuance in a suppression hearing after it started because one officer was unavailable due to a death in the family. The defense didn’t even know what he would testify to when asked, but he was in on the stop. At the trial there were minor differences in the testimony, but they agreed on the essentials that led to the justification for the stop. Therefore, his testimony was cumulative at best. People v. Maxey, 2018 IL App (1st) 130698-B, 2018 Ill. App. LEXIS 729 (Sep. 13, 2018, corrected Sep. 28, 2018).
Plaintiff’s pro se complaint against Apple for responding to a state court order to unlock defendant’s phone is dismissed for failing to state a claim. Apple didn’t seize it. In the underlying proceedings, he challenged the search, and it was denied without prejudice and then he pled guilty. McFadden v. Apple Inc., 2018 U.S. Dist. LEXIS 155805 (E.D. Pa. Sep. 13, 2018).*
Posted inCell phones, Suppression hearings|Comments Off on IL: Not error for court to decline to continue suppression hearing for what would have been merely cumulative evidence having no affect on outcome
“Mr. Glasscox, [an apparently elderly man] who lives with Type 1 diabetes, suffered a severe hypoglycemic episode while driving his pickup truck on Interstate 59 South near the City of Argo, Alabama. His condition caused him to begin driving erratically. After other drivers on the interstate reported his erratic driving, the Argo City Police dispatched Officer Moses to the scene. What followed was captured on Officer Moses’s body camera.” When plaintiff stopped, the officer tased him five times in quick succession, not even giving him time to respond or get out of the truck. Even assuming the first two may have been justified, the other three were not because he was clearly unarmed and trying to comply. Qualified immunity is denied. Glasscox v. City of Argo, 2018 U.S. App. LEXIS 25839 (11th Cir. Sep. 12, 2018): Continue reading →
Posted in§ 1983 / Bivens, Excessive force, Qualified immunity|Comments Off on CA11: Tasering elderly man suffering a severe hypoglycemic episode five times and while trying to comply was excessive
The FTC sued defendants for injunctive relief and sought an order for production of cell phones and laptop computers. On the first issue of preservation of the Fourth Amendment claim in addition to the clearly asserted Fifth Amendment, the court finds they said that a search warrant was required while not citing the Fourth Amendment, and that’s preservation enough. As to the Fifth Amendment claim, the question is surrender, not testimony, and they have no Fifth Amendment privilege against surrender of the devices. As to the Fourth Amendment claim, the court finds that the FTC stated probable cause in its application for injunctive relief. FTC v. Pointbreak Media, 2018 U.S. Dist. LEXIS 157209 (S.D. Fla. Sep. 14, 2018).
Posted inCell phones, Computer and cloud searches, Privileges|Comments Off on S.D.Fla.: The FTC sought an order of production of cell phones and laptops for search in an action for injunction; production not testimonial and PC shown
"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.
