Defendant’s case was GVR’d after Byrd. On remand, the court finds that the government’s good faith reliance on prior precedent makes this search valid, and the court notes that the same thing happened to Byrd on remand. United States v. Houston, 2018 U.S. Dist. LEXIS 145855 (W.D. N.C. Aug. 28, 2018).
The first protective sweep of defendant’s property was unjustified because, “there [wasn’t] any indication that more than one person was inside the residence, let alone any indication that an individual posing a danger to officers was inside the residence on either occasion.” The second, however, was valid because the officer merely looked in the closet adjoining where the arrest occurred, and that was a place from where an attack could be launched. United States v. Porter, 2018 U.S. Dist. LEXIS 146251 (M.D. Ala. Aug. 8, 2018),* adopted, 2018 U.S. Dist. LEXIS 145143 (M.D. Ala. Aug. 27, 2018).*
Defendant sought return of the electronic storage media containing child pornography. Denied. State v. Van Tielen, 2018-Ohio-3421, 2018 Ohio App. LEXIS 3715 (12th Dist. Aug. 27, 2018).
The officer opened defendant’s van door because he was justifiably looking for a missing girl he reasonably suspected was there and he smelled marijuana. That gave probable cause for a further search. United States v. Parks, 2018 U.S. App. LEXIS 24677 (8th Cir. Aug. 30, 2018).*
The court finds that “the good faith exception to the exclusionary rule does not apply here. Contrary to the government’s assertion, this case directly fits the Supreme Court’s admonition in Leon that ‘[s]uppression … remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.’ Leon, 468 U.S at 923; see also id. at 926 (‘[S]uppression is appropriate … if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.’).” There was nothing to support probable cause except the officer’s experience. No facts, no nothing. United States v. Roman, 2018 U.S. Dist. LEXIS 145893 (D. Mass. Aug. 28, 2018).
In a theft case, 20 days between the theft of someone’s personal belongings and a search warrant for defendant’s house was not too stale. “Yet not too much time had passed to raise staleness concerns.” State v. Barboza-Cortes, 2018 Wash. App. LEXIS 2046 (Aug. 30, 2018): Continue reading →
Posted inStaleness|Comments Off on WA: 20 days not too long for staleness in a theft case
During a fire in a house, a grow operation was seen and reported to the police. By the time the police came in, the fire was out, the power was off, and the property was secure. The warrantless fire scene search was unreasonable because there no longer was any exigency. State v. Smith, 2018-Ohio-3436, 2018 Ohio App. LEXIS 3724 (5th Dist. Aug. 24, 2018).
The identified victim of a crime is not treated the same as a CI for probable cause. United States v. Serrano-Ramirez, 2018 U.S. Dist. LEXIS 146401 (M.D. Tenn. Aug. 28, 2018).*
Posted inEmergency / exigency, Informant hearsay|Comments Off on OH5: Warrantless fire scene search after fire out, power off, and property secured was unreasonable
The initial drawing of weapons at the beginning of a stop was not unreasonable under all the facts. Doing it again gratuitously without apparent justification was unreasonable. Wilson v. Lamp, 2018 U.S. App. LEXIS 24386 (8th Cir. Aug. 28, 2018).
There was probable cause for installation of a GPS on defendant’s car. United States v. Neal, 2018 U.S. App. LEXIS 24376 (9th Cir. Aug. 28, 2018).*
The arrest warrant didn’t have a sworn narrative because it wasn’t signed. The warrant was issued and entered into the state database. Officers executing the arrest warrant acted in good faith, and the arrest would not be suppressed. State v. McRae, 2018-Ohio-3435, 2018 Ohio App. LEXIS 3720 (3d Dist. Aug. 27, 2018).
There was probable cause for a search of defendant juvenile’s house after a CI provided information about past drug parties at his house and another one coming up shortly. There was no preliminary showing for a Franks hearing. State v. A.P., 2018-Ohio-3423 (12th Dist. Aug. 27, 2018).*
Posted inGood faith exception, Probable cause|Comments Off on OH3: Arrest warrant issued without required sworn narrative was executed by other officers in good faith so no suppression
A rape victim’s claim that defendant took her to his house and raped her then took her to school was probable cause for a search warrant for the house. Whittaker v. State, 2018 Miss. App. LEXIS 409 (Aug. 28, 2018).
The evidence supports the trial court’s finding that the statement and consent to search were voluntary. State v. Brickle-Hicks, 2018 ND 194 (Aug. 28, 2018).*
Posted inConsent, Probable cause|Comments Off on MS: Victim’s claim she was raped at def’s house justifies SW for it
Plaintiff was a bombing victim and property was taken from her by consent. She wanted some of it back and brought an action under equitable jurisdiction for return of the property. “A district court’s exercise of equitable jurisdiction over a cause of action for the return of property initiated before criminal charges are filed is proper only if the movant establishes that (1) the respondent acted with a callous disregard of the Fourth Amendment, (2) the movant will suffer irreparable injury if relief is not granted, and (3) the movant lacks an adequate remedy at law. ;.. The district court also may consider whether the movant has an individual interest in and need for the property. … It is the movant’s burden to demonstrate that the relevant factors are satisfied.” Only the last favors her. So, three out of four favor the government, and the action is dismissed without prejudice. Wilansky v. United States, 2018 U.S. Dist. LEXIS 144958 (D. Minn. Aug. 27, 2018).
Posted inRule 41(g) / Return of property|Comments Off on D.Minn.: Ptf was a bombing victim seeking return of property under equitable jurisdiction; 3 of 4 factors weigh against her, so denied
“The grandmother merely acquiesced to the authority of the officers, as the record reflected that, after the child was pronounced dead, numerous members of law enforcement responded to the residence in order to investigate the death of the child without probable cause, without a search warrant, and without even a suspicion that a crime had been committed. The officers admitted at the hearing that they did not ask the grandmother for consent to search the home, to take photographs or video, or to remove any items from the residence.” They just said that they were there to do their job and barged in. State v. Turner, 2018 Ga. LEXIS 583 (Aug. 27, 2018).
The affidavit for search warrant showed probable cause to search defendant’s phone, and that all provided nexus to his house. United States v. Koech, 2018 U.S. Dist. LEXIS 145371 (D. Minn. Aug. 27, 2018).*
Posted inConsent|Comments Off on GA: Police entry here was not by consent but by acquiescence to claim of authority
Plaintiff stated a claim for invasion of privacy that a private drug tester had to observe their genitals in a drug test. Lunsford v. Sterilite of Ohio, 2018-Ohio-3437, 2018 Ohio App. LEXIS 3725 (5th Dist. Aug. 27, 2018).
“Failure to comply with the requirement in Minnesota Statutes section 171.177, subdivision 1 (Supp. 2017), that ‘[a]t the time a blood or urine test is directed pursuant to a search warrant …, the person must be informed that refusal to submit to a blood or urine test is a crime’ does not justify suppression of the test results in a criminal prosecution for driving while impaired.” (Syllabus by the court.) State v. Mike, 2018 Minn. App. LEXIS 376 (Aug. 27, 2018).
Defendant filed a motion to suppress and that put the state on notice that it had to prove the ordinance under which it prosecutes. The state failed to prove it up, but its backup argument was that the officer relied on the smell of marijuana, and the trial court erred in suppressing without addressing that. Remanded. State v. Alford, 2018 Ga. App. LEXIS 488 (Aug. 24, 2018).
Summary by the court: “We conclude that the police officer conducting the traffic stop had reasonable suspicion to extend the stop when Santillan and the driver appeared nervous and were unable to provide information about where they were coming from. The stop did not ripen into a de facto arrest because the police officer used reasonable methods and intrusions to confirm or dispel his suspicions. Although certain evidence was improperly seized during a frisk, the physical evidence would have inevitably been discovered and thus suppression was not warranted. While accompanying statements should have been suppressed, the error was harmless.” United States v. Santillan, 2018 U.S. App. LEXIS 23962 (2d Cir. Aug. 24, 2018).*
The USMJ who issued the search warrant doesn’t need to recuse from deciding on a motion to suppress that warrant. “The Court also concludes that Strieff controls the analysis of Defendant’s challenge to his stop in Rock Island, Illinois. In Strieff, the United States Supreme Court held ‘that the evidence the officer seized as part of the search incident to arrest is admissible because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.’ 136 S. Ct. at 2059. A hearing on the constitutionality of the stop is therefore unnecessary because even assuming the stop was unconstitutional, the cell phones collected from Defendant during the arrest are admissible as evidence seized incident to arrest.” There was probable cause to seize the phones. United States v. Mathis, 2018 U.S. Dist. LEXIS 145380 (D. Minn. Aug. 27, 2018).
Defendant claimed standing in the car he was in by claiming a possessory interest. Only he didn’t. United States v. Dixon, 2018 U.S. App. LEXIS 23951 (11th Cir. Aug. 24, 2018).*
“To the extent that the statements identified by Defendant are inaccurate, most are exaggerations of the truth. While the Government, and this Court, lament that the affidavit was written in terms of absolutes, the removal of the statements identified by Defendant does not prevent a finding of probable cause. ‘Probable cause … is not a high bar: It requires only the kind of fair probability on which reasonable and prudent [people,] not legal technicians, act.’ The 96-page affidavit includes sufficient information to support a finding of probable cause, including: 18 undercover patient visits that revealed the prescription of controlled dangerous substances without medical reason or without a meaningful physical examination, as well as cash payments for office visits between $325.00 and $250.00; structuring activities and the deposit of more than $414,000.00 in cash into ten accounts over 11 months; surveillance of Celestine’s clinic that revealed unusually long lines and wait times; an analysis of the Louisiana and Mississippi prescription monitoring programs that revealed that patients were traveling to Celestine’s clinic from Alabama, Georgia, Mississippi, and Texas; the identification by Louisiana Blue Cross Blue Shield of 65 patients who used insurance to fill a prescription for controlled substances written by Celestine but did not use insurance for the office visit to see Celestine; the clinic’s willingness to allow a third-party to pick up a patient’s prescription by paying an office visit fee; and audio recordings of Celestine’s interactions with undercover patients. Notwithstanding the overstatements in the affidavit relating to the operation of Defendant’s practice, the remaining information was more than sufficient to establish probable cause.” United States v. Celestine, 2018 U.S. Dist. LEXIS 143990 (E.D. La. Aug. 24, 2018).
Posted inFranks doctrine|Comments Off on E.D.La.: The statements in the affidavit were exaggerations rather than outright falsehoods, but PC was there on the totality
“The parties’ briefing and the testimony at the hearing further suggest that the house was abandoned and that any search occurred away from Defendant’s ‘residence of record’ or an ‘additional residence on Osceola Street.’ … Contrary to a suggestion in Defendant’s post-hearing brief …, it is his burden to establish standing once it is challenged. … The fact that Kennedy knocked on the door of the house does not inform whether Defendant had in the house an expectation of privacy that society might recognize as reasonable. … For the foregoing reasons, the Court agrees with the Government that Defendant has failed to show standing, at least with respect to the search of the house and the seizure of contraband from it.” United States v. Myles, 2018 U.S. Dist. LEXIS 144028 (M.D. La. Aug. 24, 2018).
“Nowak failed to make a preliminary showing that Agent Bottjer deliberately or recklessly omitted in his warrant affidavit knowledge that cash deposits in Nowak’s bank account were attributable to gambling winnings from 2006 through 2009. … Additionally, Nowak’s gambling winnings were not material to the magistrate judge’s finding of probable cause. … Even assuming Nowak received all of his gambling winnings in cash, a substantial portion of his cash deposits remained unaccounted for. Nowak also suffered net gambling losses of nearly $65,000 during the relevant time period.” United States v. Nowak, 2018 U.S. App. LEXIS 24022 (9th Cir. Aug. 24, 2018).*
Posted inAbandonment, Franks doctrine|Comments Off on M.D.La.: The govt alleged the house was abandoned, and def had the burden to prove standing and failed
When a criminal case is over, the defendant is entitled to return of non-contraband seized property from the court with jurisdiction over the criminal case. In an IFP case, the court declines to say that he pled wrong in seeking replevin. Nebraska is a notice pleading state. Dortch v. City of Omaha, 26 Neb. App. 244 (Aug. 24, 2018): Continue reading →
Posted inRule 41(g) / Return of property|Comments Off on NE: Court with jurisdiction over criminal case has jurisdiction to return property seized
An investigative detention at gunpoint isn’t per se unreasonable. Here, defendant was told to stay in the car and he didn’t, and the officer justifiably drew his weapon for self-protection. This wasn’t unreasonable under the circumstances. “In addition, over the course of the five minute conversation, defendant refused to comply with every one of the officers’ requests and commands. Officer Ramsey asked defendant to come towards him, yet defendant refused to do so. Officer Ramsey explained that he was conducting an investigation and asked defendant to speak to him, but defendant refused and, instead, repeatedly made profane verbal and gesticular protestations. Officer Ramsey commanded defendant to put his hands up numerous times, yet defendant refused to do so.” Thus, the use of handcuffs wasn’t unreasonable. Then, an outstanding warrant surfaced on defendant, and he was arrested. Then he consented to a search of the car. United States v. Phillips, 2018 U.S. Dist. LEXIS 144015 (N.D. Okla. Aug. 24, 2018).
Posted inReasonable suspicion|Comments Off on N.D.Okla.: Investigative detention at gunpoint isn’t per se unreasonable
“Defendant’s argument that 1335 Geyer Avenue was indeed his home, but that police did not know it was his home, thus fails. Additionally, ‘search warrants are directed, not at persons, but at property where there is probable cause to believe that instrumentalities or evidence of a crime will be found.’ United States v. Tehfe, 722 F.2d 1114, 1117 (3d Cir. 1983). The three undercover buys, not whether Defendant owned the property, are what provided probable cause to believe that evidence of a crime would be found. No Franks hearing is required on this basis.” As to a Franks challenge, defendant actually asserts that the officers made up the controlled buys and the text messages about them. He fails on his offer of proof. United States v. Richardson, 2018 U.S. Dist. LEXIS 144165 (W.D. Pa. Aug. 24, 2018).
“Petitioner argues that the IRS’s summonses to Bank of America and Regions Bank violate his Fourth Amendment rights. … The Eleventh Circuit recently considered and rejected a Fourth Amendment challenge to an IRS summons directed towards a bank because the third-party doctrine precludes any argument that the taxpayer has a reasonable expectation of privacy in those records. Presley v. United States, 895 F.3d 1284, 1291 (11th Cir. 2018). Likewise, Petitioner’s Fourth Amendment challenge to the summonses at issue here fails.” Belcik v. United States, 2018 U.S. Dist. LEXIS 144269 (N.D. Ala. Aug. 24, 2018).
Defendants lack standing as to CSLI on others’ phones, and they lose under Davis as to their own. Carpenter was from the Sixth Circuit, and these four CSLI requests were from 2017 under established circuit precendent. United States v. Woods, 2018 U.S. Dist. LEXIS 146030 (E.D. Mich. Aug. 28, 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.
