Prosecutors had no absolute immunity for disposing of a firearm after defendant’s conviction when others had a legal interest in the firearm because it was an administrative function. Ownership and possession are different concepts, and forfeiture of others’ interests were at issue. Kennedy v. Specht, 2018-Ohio-3629, 2018 Ohio App. LEXIS 3934 (11th Dist. Sep. 10, 2018).*
There is probable cause on the totality: “Under that deferential standard, the state judge’s decision in this case survives review. Roberts’ detailed account of the events gained immediate credibility because certain portions of it fit together with information already developed by the police. True, Roberts could have been lucky or clever enough to have concocted a story that just happened to match up with facts independently known to the police. But the police are not required to rule out every possibility that an informant is lying before crediting his information, particularly where, as here, certain important details of his story have been verified by independent police work. Again, common-sense judgements are what are called for.” United States v. Kimble, 2018 U.S. Dist. LEXIS 152245 (S.D. Ga. Aug. 16, 2018),* adopted, 2018 U.S. Dist. LEXIS 151768 (S.D. Ga. Sept. 4, 2018).*
Posted inForfeiture, Probable cause|Comments Off on OH11: DAs get no immunity for forfeiture of a firearm others had an interest in
The entry into defendant’s home was with exigent circumstances. A neighbor of defendant repeatedly called the police to say that defendant was repeatedly pointing a laser-sighted rifle at him from the house. Police came to the house to inquire. Defendant concedes there was probable cause. At the house, they talked to a person on the porch, but they hadn’t determined whether he was the perpetrator and no gun had been found. They didn’t have to rely on the denials of the person on the porch until the gun and the perpetrator were found. People v. Pappan, 2018 CO 71, 2018 Colo. LEXIS 746 (Sep. 10, 2018): Continue reading →
Posted inEmergency / exigency|Comments Off on CO: Def was accused of pointing a laser-sighted rifle from his house at a neighbor; police arrived and exigency justified the entry
Defendant had standing as a guest in Commonwealth subsidized housing. The record wasn’t clear on how long he stayed there in total, but clearly at the time of the search. The occupant’s lease prohibited extended stay guests, but it also isn’t clear what that means or that defendant even knew there was a limit. But, despite his standing, he loses on the merits of the search. He was a wanted dangerous person, and they knew he was there. The entry was reasonable. United States v. Torres-Viruet, 2018 U.S. Dist. LEXIS 153256 (D. P.R. Sep. 7, 2018).*
Citizen call to police of a man with a gun in his lap at a strip mall “with loud behavior” was reasonable suspicion when the vehicle was seen. State v. Laster, 2018-Ohio-3601, 2018 Ohio App. LEXIS 3898 (2d Dist. Sep. 7, 2018)*
During an IRS criminal search, an IRS supervisory officer insisted that she watch plaintiff urinate in plaintiff’s own bathroom. This was sufficient to show an unreasonable invasion of privacy and overcome qualified immunity. Ioane v. Hodges, 2018 U.S. App. LEXIS 25569 (9th Cir. Sep. 10, 2018).
“Petitioner has not identified any non-frivolous basis for seeking suppression of this evidence, so counsel cannot be deemed ineffective for failing to pursue that claim. Nothing in the record suggests that the actions of the law enforcement officers were so inconsistent with the Fourth Amendment that suppression would be required.” Augustin v. United States, 2018 U.S. Dist. LEXIS 153749 (E.D. Tenn. Sep. 10, 2018).*
A woman came to a motel office to hide because the man she was staying with had a gun. The police were called, and they ended up at the room, entered, and saw two guns and drug paraphernalia. They left the room and procured a search warrant. The court analyzed the probable cause affidavit and struck out in the opinion the alleged offending portions. The remainder still gave probable cause, and the warrant was not suppressed. United States v. Brown, 2018 U.S. App. LEXIS 25409 (6th Cir. Sep. 7, 2018): Continue reading →
Posted inProbable cause|Comments Off on CA6: Even if part of affidavit for SW was illegally obtained, after purging it, the remainder still shows PC
The independent source doctrine applies to officers’ aerial surveillance alone. If the officers had only mentioned their aerial surveillance seeing marijuana plants, that alone was probable cause. “The district court credited the agents’ testimony that they would have sought a search warrant based on the aerial observation alone, and nothing in the record conflicts with that conclusion.” United States v. Wideman, 2018 U.S. App. LEXIS 25384 (11th Cir. Sep. 7, 2018).
Defendant essentially renews a Franks challenge by 2255, but he fails to allege anything more than what was presented in the district court back in the beginning of the case that was already rejected and affirmed on appeal. United States v. Brackett, 2018 U.S. Dist. LEXIS 152804 (D. Neb. Sep. 7, 2018).*
Defendant seeks to raise an illegal search claim in a successor 2255 without Fifth Circuit approval. Dismissed. United States v. Felice, 2018 U.S. Dist. LEXIS 152701 (W.D. La. July 25, 2018),* adopted, 2018 U.S. Dist. LEXIS 152153 (W.D. La. Sep. 7, 2018).*
Posted inIndependent source|Comments Off on CA11: Aerial surveillance alone was independent source for SW
Arresting middle school girls for alleged bullying and fighting at school violated the Fourth Amendment and was unreasonable: “After concluding that the girls were unresponsive and disrespectful, the deputy arrested the girls ‘to prove a point’ and ‘make [them] mature a lot faster.’” Scott v. County of San Bernardino, 16-55518 (9th Cir. Sep. 10, 2018). Summary by the court: Continue reading →
Posted inArrest or entry on arrest, School searches|Comments Off on CA9: School resource officer’s arrest of alleged bullying middle school girls ‘to prove a point’ and ‘make [them] mature a lot faster’ was unreasonable under T.L.O.
Defendant was arrested for impersonating a DEA officer and using his car to do it. That gave probable cause to search the car. Defendant’s argument that there was an unreasonable inventory are off the mark. United States v. Wade, 2018 U.S. Dist. LEXIS 151247 (E.D. Wis. Sep. 6, 2018).*
The CI was adequately corroborated, and he connected defendant to keeping drugs in the premises. The search warrant was thus valid. United States v. Reed, 2018 U.S. Dist. LEXIS 153041 (D. Minn. Sep. 7, 2018).*
The USDJ rejects the USMJ’s recommendation that defendant was seized by the police parking so close to him and approaching him such that he couldn’t leave if he wanted to. Then the officers smelled marijuana and then there was probable cause. United States v. Knights, 2018 U.S. Dist. LEXIS 151829 (M.D. Fla. Sep. 6, 2018).*
The court can’t determine from the record whether defendant’s actions in his hotel room justified the hotel locking him out and seizing the room, so the court goes to an alternative argument: The rental period expired at 11 am with no renewal and his stuff was still there. This was valid as a private search. United States v. Barnes, 2018 U.S. Dist. LEXIS 152650 (E.D. Mich. Sep. 7, 2018).*
Plaintiff stated a claim for relief for the police entering his house to seize him for alleged child endangerment without probable cause. Maric v. Alvarado, 2018 U.S. App. LEXIS 25344 (9th Cir. Sep. 6, 2018).*
Remanded for an evidentiary hearing on whether defendant consented to an evidentiary blood test. State v. Edelman, 2018 VT 100, 2018 Vt. LEXIS 136 (Sep. 7, 2018).*
Posted inPrivate search|Comments Off on E.D.Mich.: Being in hotel room past checkout time justified hotelier locking him out
A suppression hearing is a critical stage, and defendant’s being forced to go through a suppression hearing without counsel violated the Sixth Amendment. Shabazz v. State, 2018 Ark. App. 399, 2018 Ark. App. LEXIS 499 (Sep. 5, 2018).
Defendant’s consent to search a bedroom was voluntary. He inserted himself into the police activity and one thing led to another. One officer wore a mask during the entry, but he was working undercover at the time. United States v. Carmona-Aybar, 2018 U.S. Dist. LEXIS 151571 (D. Mass. Sep. 6, 2018).*
2255 is not the place to argue that the District Court failed to grant a motion to reopen defendant’s suppression hearing. Rose v. United States, 2018 U.S. Dist. LEXIS 151559 (S.D. Ohio Sep. 6, 2018).*
Posted inConsent, Suppression hearings|Comments Off on AR: Suppression hearing is a critical stage requiring counsel
The City of Chicago seized a car for a forfeiture, and the owner filed bankruptcy. The city refused to give the car up to the bankruptcy court, and the court holds the city violated the bankruptcy stay. In re Shannon, 2018 Bankr. LEXIS 2730 (N.D. Ill. Bankr. Sep. 8, 2018).
Defendant admitted to multiple violations of probation. His argument that the state constitution should recognize the exclusionary rule as to probation searches doesn’t have to even be reached because of all the alternative arguments. Edge v. State, 2018 Del. LEXIS 411 (Sep. 5, 2018).*
Posted inForfeiture|Comments Off on N.D.Ill. Bankr.: A bankruptcy filed after seizure can defeat an attempted forfeiture
The CI was known to the Fayetteville NC PD, and he provided information there that panned out and led to arrests. Information was provided for North Myrtle Beach SC, and the CI was unknown in SC. Still, there was some corroboration, and the good faith exception would apply, too. United States v. Rodriguez, 2018 U.S. Dist. LEXIS 151880 (D.S.C. Sep. 6, 2018).
Whether the officer unreasonably lengthened the stop was forfeited for failure to raise in the district court. On plain error review, it’s not. Reviewing what facts there are, the stop was reasonable in its length. United States v. Stewart, 2018 U.S. App. LEXIS 25134 (7th Cir. Sep. 5, 2018).*
Posted inInformant hearsay|Comments Off on D.S.C.: NC CI provided information for SC search; PC shown and GFE would apply
The collective knowledge doctrine applies to reasonable suspicion, too. Here, there is argument whether defendant actually violated the requirement of staying in his lane by touching the lane marker or crossing it. Either way, the court finds that this qualifies as a reasonable mistake of law under Heien. United States v. Cruz, 2018 U.S. Dist. LEXIS 151907 (D. N.M. Sep. 6, 2018).
The USMJ credited that the officer smelled marijuana when defendant was stopped, and that’s probable cause for a search of the car. United States v. McKinney, 2018 U.S. Dist. LEXIS 151891 (E.D. Tenn. Sep. 6, 2018).*
Posted inReasonableness|Comments Off on D.N.M.: Whether the maintaining one’s lane statute was violated is subject to Heien and the reasonable mistake of law
It was reasonable to patdown men found in the backyard of a house searched under a warrant. Ybarra distinguished. There was virtually reasonable suspicion as to anybody associated with the property. United States v. Cargill, 2018 U.S. Dist. LEXIS 152038 (N.D. Ohio Sep. 6, 2018): Continue reading →
Defendant is a criminal defense lawyer, and his office was subjected to a search and some client files were seized. When a criminal defense lawyer is the target of the search, there are clear Sixth Amendment concerns. While courts often “take[ ] a skeptical view” of taint teams for privilege review, the situation here supported use of a taint team. And, no, the defendant doesn’t get to do his own privilege review. United States v. Gallego, 2018 U.S. Dist. LEXIS 152055 (D. Ariz. Sep. 6, 2018): Continue reading →
Posted inPrivileges|Comments Off on D.Ariz.: When a criminal defense lawyer’s office was the target of a SW, a special master was appropriate
The court finds the search warrant issued without probable cause as to the informant hearsay under New York law, and a hearing will be scheduled to determine whether to exclude. [Considering that state law violations generally have no affect on Fourth Amendment considerations, this case appears to wrongly apply state law.] United States v. Chatmon, 2018 U.S. Dist. LEXIS 152007 (W.D. N.Y. Aug. 29, 2018): Continue reading →
Posted inExclusionary rule, Informant hearsay|Comments Off on W.D.N.Y.: Violation of state law on informant hearsay [erroneously] imported into federal prosecution
With apparent reluctance, the court grants the government’s motion to reconsider the grant of a motion to suppress a gun found in a backpack in the trunk of defendant’s car now linked to two homicides. The government could have raised inevitable discovery to begin with and didn’t. But it raises “manifest injustice” here. United States v. Chavez, 2018 U.S. Dist. LEXIS 150293 (N.D. Cal. Sep. 5, 2018). Sort of: “Oh, it’s a gun in a murder case, not just pot. Well, that’s different.” Prior opinion United States v. Chavez, 2018 U.S. Dist. LEXIS 107695 (N.D. Cal. June 26, 2018).
Officers were explaining search warrant procedures while they were waiting for one to come, and defendant made voluntary admissions without being questioned. United States v. Foxx, 2018 U.S. Dist. LEXIS 150558 (E.D.Ky. Sep. 5, 2018).*
Posted inAutomobile exception|Comments Off on N.D.Cal.: Reconsideration granted of suppression order to admit gun in a murder conspiracy
Police found a car stopped with the engine running and the driver unconscious or asleep with a gun in his lap. That justified further inquiry, and the officer’s actions were with reasonable suspicion. The fact his hands came up without the gun doesn’t mean a thing. The frisk of his person was reasonable. United States v. Edmond, 2018 U.S. Dist. LEXIS 149652 (W.D. La. Sep. 4, 2018).*
A park ranger searched defendant’s car and found hash oil and a baggie that strongly smelled of marijuana and an alcohol prep pad for injecting. Defendant was overly protective of letting the officer in his backpack, and the court finds nexus from the car to the backpack. The search warrant for a backpack specifically expecting marijuana wasn’t unreasonable because it sought controlled substances in general. United States v. Hanson, 2018 U.S. Dist. LEXIS 150938 (E.D. Tenn. Sep. 5, 2018).*
CSLI obtained in January 2017 via the Stored Communications Act were admissible after Carpenter via the good faith exception. United States v. Pleasant, 2018 U.S. Dist. LEXIS 150406 (E.D. Pa. Sep. 5, 2018).*
Defendant argued that the affidavit for the search warrant didn’t support the allegation that defendants conspired under 18 U.S.C. § 371 to support it. It did. United States v. Jean-Pierre, 2018 U.S. Dist. LEXIS 150095 (D. Colo. Sep. 4, 2018).*
Defendant was riding a bicycle the wrong way on a street, and that was an objective basis for the stop, even if the officer was looking for an alleged shooter. Ultimately, the officer had to strike defendant with the patrol car to get him to stop and he fled. United States v. Smith, 2018 U.S. Dist. LEXIS 149891 (E.D. Pa. Sep. 4, 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.
