“Here, the last purchase was made one week before the application for the search warrant. By itself, this does not render the information from the CI stale. … Besides, ‘even if a significant period of time elapsed, it is possible the magistrate judge may infer that a search would uncover evidence of wrongdoing.’ United States v. Pinson, 321 F.3d 558, 565 (6th Cir. 2003). [¶] Such an inference could easily be made in this case. Three purchases were made from two individuals in the residence in a four month period. This suggests not a ‘chance encounter in the night,’ but rather purchases from ‘a secure operational base.’” United States v. Abdalla, 2018 U.S. Dist. LEXIS 148321 (M.D. Tenn. Aug. 30, 2018).
Defendant’s pro se 2255 was based on a claim of failure to investigate whether the search warrant was not particular. Defense counsel actually did and rejected that argument as frivolous.
United States v. Thomas, 2018 U.S. Dist. LEXIS 147880 (D. Vt. Aug. 30, 2018).*
Posted inStaleness|Comments Off on M.D.Tenn.: A delivery one week before the SW was supported by 3 known prior sales in 4 months
Defendant moved to suppress a Facebook search warrant for an account ostensibly in his name. A total of ten Facebook warrants were issued. Defendant did not file an affidavit claiming the Facebook account was his, and he cannot rely on the allegations in the affidavit for the search warrant to establish his standing. Even if he had standing, the warrants were issued on probable cause and were particular. United States v. White, 2018 U.S. Dist. LEXIS 146444 (S.D. N.Y. Aug. 29, 2018): Continue reading →
Posted inStanding|Comments Off on S.D.N.Y.: Def has to show standing, and he can’t rely on affidavit for SW to do it
Stopping plaintiff merely for giving a police officer the finger violates clearly established Fourth Amendment law. Clark v. Coleman, 2018 U.S. Dist. LEXIS 136749 (W.D. Va. Aug. 14, 2018): Continue reading →
Plaintiffs in the stop-and-frisk litigation against the New York City Police Department said that a federal monitor’s proposed confidentiality order would hide key data, such as how often officers are stopping subjects, under a blanket of secrecy.
Posted inStop and frisk|Comments Off on NYLJ: NYPD Stop-and-Frisk Litigation Plaintiffs Say Confidentiality Order Would Erode Transparency
A probation search does not require probable cause, so staleness is not an issue. State v. Ward, 2018 Tenn. Crim. App. LEXIS 666 (Aug. 30, 2018).
Defendant had a GPS put on his vehicle and thermal imaging of his building, both with warrants, and then search warrants to look for a grow operation. Each warrant was based on probable cause. State v. Stock, 2018-Ohio-3496, 2018 Ohio App. LEXIS 3803 (8th Dist. Aug. 30, 2018).*
Defendant argues that the execution of the arrest warrant on him in his own house was invalid because he had an alibi for the time of the crime. That’s not up to the executing officers. The warrant was facially valid. United States v. Baker, 2018 U.S. Dist. LEXIS 146806 (W.D. Ky. Aug. 29, 2018).
At trial, plaintiff disavowed an illegal search claim and pressed only excessive force. After losing at trial, plaintiff advanced the illegal search claim, and it was waived. Campbell v. Ackerman, 2018 U.S. App. LEXIS 24564 (1st Cir. Aug. 29, 2018).*
Defendant’s jacket was still associated with her when she was arrested, and it was properly subject to a search incident even though she was handcuffed and sitting on it. The validity of the search incident, however, did not translate into a valid automobile exception search of the car she was away from. There was no probable cause as to the car. State v. Pagnani, 2018 ME 129, 2018 Me. LEXIS 132 (Aug. 30, 2018).
Defendant was arrested with probable cause for disorderly conduct for inciting a crowd that seemed to be getting potentially dangerous. His car was reasonably towed under the community caretaking function of the police. After it was deposited at the tow yard, then the police got a valid search warrant for it. United States v. Marshall, 2018 U.S. App. LEXIS 24550 (4th Cir. Aug. 29, 2018).*
The place of arrest at the threshold, the layout of the house as seen from the front door, the size of the house, and the speed with which the protective sweep (one minute and 15-30 seconds) shows that it was reasonable. United States v. Murrell, 2018 U.S. Dist. LEXIS 147299 (M.D. Ala. Aug. 16, 2018), adopted, 2018 U.S. Dist. LEXIS 146698 (M.D. Ala. Aug. 29, 2018): Continue reading →
Posted inProtective sweep|Comments Off on M.D.Ala.: The apparent layout and size of house and speed with which a protective sweep was conducted shows it reasonable
To get a search warrant for home surveillance equipment, the affidavit for the warrant has to show some inference or fact that there is, in fact, one to be found there. The mere fact they are a lot cheaper these days isn’t enough to get one. Foreman v. State, 2018 Tex. App. LEXIS 7264 (Tex. App. – Houston (14th Dist.) Aug. 31, 2018): Continue reading →
Posted inProbable cause|Comments Off on TX14: The fact home surveillance systems are cheap now isn’t PC to get a SW for one in a home without some fact or inference one will be found
Nexus was shown for defendant’s house by his leaving the house to go a controlled buy. A frisk of defendant when he was home for the execution of the search warrant is valid. Commonwealth v. Kemp, 2018 PA Super 237, 2018 Pa. Super. LEXIS 934 (Aug. 29, 2018).
Nexus was shown to the place searched by surveillance that showed defendant going there before deliveries of heroin and fentanyl, stay a brief time, and then head to the delivery. United States v. Romero, 2018 U.S. Dist. LEXIS 147372 (D. Mass. Aug. 29, 2018).
Posted inNexus|Comments Off on PA: Nexus to house shown by def leaving home for a controlled buy
Plaintiff is a doctor running a clinic dispensing opiods, and the Texas medical board got a forthwith administrative subpoena out for him and seized records. The defendants get qualified immunity. It’s not clear that doctors are a closely regulated industry and nothing really says that they are in this context. The unlawfulness of the defendant’s actions was not clearly established at the time of the search. Moreover, the court finds that there is enough doubt that the board’s subpoena was pretextual for purely criminal investigative purpose. “The Board’s purpose is demonstrated by the subsequent administrative action against Dr. Zadeh. The search was not performed ‘solely to uncover evidence of criminality.’ See Burger, 482 U.S. at 698. Thus, the search was not pretextual.” Zadeh v. Robinson, 2018 U.S. App. LEXIS 24914 (5th Cir. Aug. 31, 2018).
Defendant didn’t make a showing to get the CI’s identity under Roviaro. The CI was merely the source of information to get the search warrant and he wouldn’t be a witness at trial. There wasn’t even a sufficient showing to get a hearing. United States v. Bell, 2018 U.S. App. LEXIS 24335 (4th Cir. Aug. 28, 2018).*
Because defendant challenges probable cause and application of the good faith exception, the court goes to GFE first. “Our review of the record demonstrates that the affidavit in this case bears many of the indicia of a strong search warrant application.” Therefore, reliance on it was justified. United States v. Jones, 2018 U.S. App. LEXIS 24363 (4th Cir. Aug. 28, 2018).*
Posted inGood faith exception, Informant hearsay|Comments Off on CA4: Where CI only provided info for SW, he wasn’t a material witness for trial so no reason for disclosure shown
Defendant was accused of robbing a Zaxby’s restaurant with a probationer wearing a GPS monitor. The probationer pled. Defendant went to trial, and the probation officer was used to authenticate the GPS information. It was inadequate. However, the court applies harmless error to affirm. State v. Brown, 2018 S.C. LEXIS 109 (Aug. 29, 2018).
Defendant’s denial of ownership of the evidence at the time of the search denies him standing to challenge it even after it was determined to be his. United States v. Alexander, 2018 U.S. Dist. LEXIS 145854 (W.D. N.C. Aug. 28, 2018).*
Posted inGPS / Tracking Data, Standing|Comments Off on SC: GPS on a probationer has to be properly authenticated, and PO isn’t the way
Police responded to a call and found defendant on the street, and he’d apparently been involved in an altercation. He and his hands were bloody and he was highly agitated. Ultimately, the police handcuffed him until he calmed down while they sorted out what was going on. They decided to transport him to a safer place rather than just leave him, and a patdown was ultimately conducted finding brass knuckles for which he was charged. “We find that the government did not exceed the permissible scope and duration of a Terry stop and that Shiffermiller’s continued detention was appropriate under the circumstances because it was undertaken with the goal to protect the safety of Shiffermiller and the public. A search of Shiffermiller’s person was justified because it was undertaken to ensure officer safety during Shiffermiller’s transport. The search which yielded the brass knuckles was not a violation of Shiffermiller’s Fourth Amendment rights. Therefore, we affirm the conviction and sentence for possession of a deadly weapon by a prohibited person.” State v. Shiffermiller, 26 Neb. App. 250 (Aug. 30, 2018).
Posted inReasonable suspicion|Comments Off on NE: Def was stopped on street bloody and highly agitated; he was detained and then officers were going to transport him away from area but not arrest him; patdown validly produced brass knuckles
Defendant was arrested after the police observed a buy and defendant fled and was arrested. Officers took his phone off of him but hadn’t searched it. While the officer was at the police station, the phone received a text message, and the officer picked up the phone and saw the text message on the screen which was about another drug deal. The phone was not searched, and the text message was admissible. Commonwealth v. Alvarez, 480 Mass. 1017 (Aug. 29, 2018): Continue reading →
Posted inCell phones, Plain view, feel, smell|Comments Off on MA: Officer’s observation of text message just received on a screen of seized cell phone was admissible
The search warrant could have been way more clear that it was seeking child pornography. It did say that it was looking for evidence of coercion and enticement of a minor and transfer of obscene materials. Taken as a whole, however, the court finds the warrant sufficient and severable so it is not a general warrant. United States v. Walling, 2018 U.S. App. LEXIS 24521 (6th Cir. Aug. 29, 2018): Continue reading →
Posted inOverbreadth, Probable cause|Comments Off on CA6: Potential overbreadth issue is severed from SW and it’s still sufficient
"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.
