Dog sniff in the common hallway of an apartment building wasn’t unreasonable because it’s not curtilage under Jardines. State v. Edstrom, 2018 Minn. LEXIS 446 (Aug. 15, 2018).
There was nexus: “Here, the investigating officer had significant experience. The officer identified Logan as a resident of the single-family home to be searched. The investigating officer knew Logan had a history of drug use. The investigating officer personally observed activity in the home consistent with drug use and trafficking. The officer conducted a trash pull from trash left outside the residence and found paraphernalia, marijuana, and methamphetamine. The application for the warrant was submitted immediately after the trash pull was conducted. These facts, in addition to the remainder of the facts set forth in the application, when considered together and not in isolation, provide a substantial basis for the issuing judge to find probable to issue the warrant.” State v. Logan, 2018 Iowa App. LEXIS 746 (Aug. 15, 2018).*
Posted inCurtilage, Dog sniff, Nexus|Comments Off on MN: Apt building common hallway not curtilage under Jardines for dog sniff
Defendant was stopped, and the officer gave a warning. He continued asking questions which led to a consent search finding cash. The officer then arrested defendants for possession of the proceeds of a drug transaction. Only there were no probable cause for such an offense under Kansas law, which was clearly established at the time. The motion to suppress is granted, and the exclusionary rule should be applied. United States v. Kurtis, 2018 U.S. Dist. LEXIS 137654 (D. Kan. Aug. 15, 2018).
The CI’s information was corroborated by the police and it led to a prior search before defendant’s arrest. There was probable cause for defendant’s arrest based on it. State v. Journet, 2018 ME 114, 2018 Me. LEXIS 117 (Aug. 14, 2018).*
Posted inExclusionary rule, Informant hearsay, Probable cause|Comments Off on D.Kan.: Arrest for possession of cash wasn’t even reasonably valid under state law; exclusionary rule applies in federal court
Defendant admits that he was validly stopped and patted down. The only question is whether the pill bottle removed from his pocket was subject to plain feel, and the court concludes it was not. It was obviously not a weapon, and case law shows that pill bottles don’t per se contain contraband. Young v. State, 2018 Tex. App. LEXIS 6424 (Tex. App. – Houston (1st Dist.) Aug. 16, 2018): Continue reading →
Posted inPlain view, feel, smell|Comments Off on TX1: Pill bottle in pocket wasn’t presumed to contain contraband; plain feel not valid
Posted inComputer and cloud searches, Surveillance technology|Comments Off on WaPo: Google refused an order to release huge amounts of data. Will other companies bow under pressure? [Govt seeking tracking information from phone apps]
Defendant did not consent to a patdown by raising his arms–it was merely acquiescence to a claim of authority. State v. Frost, 2018 Iowa App. LEXIS 759 (Aug. 15, 2018): Continue reading →
Posted inConsent|Comments Off on IA: Raising arms on request for patdown was “acquiescence to a claim of authority”
The use of a smart meter to collect energy consumption in homes is a search under the Fourth Amendment under Kyllo. It is, however, a reasonable search because it is purely for the use of the power company and city in monitoring overall consumption and not a part of a criminal investigation. The court notes that if the intervals were shorter or the information was being collected for criminal investigation, the outcome might well be different. Also, the third party doctrine provides no refuge for the city because there is no third party. Naperville Smart Meter Awareness v. City of Naperville, 2018 U.S. App. LEXIS 22834 (7th Cir. Aug. 16, 2018): Continue reading →
Posted inSearch, Surveillance technology, Third Party Doctrine|Comments Off on CA7: City’s use of “smart meter” is a search, but it is reasonable because it’s not for criminal purposes and law enforcement never knows
Defendant and his girlfriend shared a closet where they were staying, and she had apparent authority to consent to a search of the whole closet, not just her side of it. United States v. Lawson, 2018 U.S. Dist. LEXIS 137966 (D. Me. Aug. 15, 2018).
The area behind defendant’s and other houses was open fields, and the police could search there. Defense counsel couldn’t be ineffective for not raising this in a motion to suppress. McDonald v. United States, 2018 U.S. Dist. LEXIS 136474 (S.D. Ga. Aug. 13, 2018).*
Motion to reconsider denial of a suppression motion is denied because it’s just a rearguing of what happened before. United States v. Salaam, 2018 U.S. Dist. LEXIS 137970 (S.D. Ohio Aug. 15, 2018).*
Posted inApparent authority, Open fields|Comments Off on D.Me.: Where a couple shared a closet, her apparent authority extended to whole closet, not just his side
The search warrant affidavit said August 3, 2015, but August was typed and the 3 written in. It’s clear from all the testimony that it was issued September 3, and the “August” wasn’t corrected. Therefore, defense counsel wasn’t ineffective for not raising this issue because the trial court would have found this a mere typographical error that can be overlooked because there was no prejudice to the defendant. State v. Daniels, 2018 Del. Super. LEXIS 347 (Aug. 9, 2018).
The only prolonging of the stop was because of computer difficulties, and the officer proceeded as expeditiously as possible. “While shortly thereafter the prosecution of the traffic stop was abandoned and a drug investigation was begun, this was justified by the discovery of drug contraband on Bratcher’s person—particularly when viewed in the light of the other observations of a possible attempted burglary, nervousness of the occupants, and possession of a large quantity of currency. These observations provided reasonable suspicion warranting the further detention and investigation of the Vehicle and its occupants.” State v. Palmer, 2018 Del. Super. LEXIS 348 (Aug. 13, 2018).*
Posted inReasonable suspicion, Warrant requirement|Comments Off on DE: Def counsel was not ineffective for not arguing obvious typo on date justified suppression because it didn’t
(CNN)An 87-year-old grandmother using a knife to cut dandelions in the woods near her rural Georgia home last week was taken down by a police Taser and arrested, according a police report.
Posted inExcessive force|Comments Off on cnn.com: Police use Taser on 87-year-old woman cutting dandelions with a knife
This court held six weeks before the government obtained its SCA order for defendant’s CSLI that was the legal way to do it. Therefore, the good faith exception applied. “Here, the Government complied with the requirements of the SCA in obtaining the orders to compel cell site records, and when they did so in June 2015, that warrantless procedure was, under this Court’s precedent, within the bounds of the Fourth Amendment. Thus here, as in Davis, under the Leon exception to the warrant requirement, the district court’s denial of the motions to suppress is not reversible error.” United States v. Joyner, 2018 U.S. App. LEXIS 22513 (11th Cir. Aug. 14, 2018).
A dog sniff of a car on a motel parking lot was reasonable and didn’t require reasonable suspicion because there was no stop. State v. Bryner, 2018-Ohio-3215, 2018 Ohio App. LEXIS 3473 (9th Dist. Aug. 13, 2018).
Police had a tracking order on somebody else’s cell phone that ended up in defendant’s car with that person, and it ended up tracking defendant’s car, and this was not unreasonable under the Fourth Amendment. United States v. Peters, 2018 U.S. Dist. LEXIS 135794 (D. Vt. Aug. 13, 2018).
Posted inDog sniff, Tracking warrant|Comments Off on OH9: Dog sniff of a car in motel parking lot not a search
Defendant attempted to reopen his suppression hearing based on alleged ineffective assistance by former counsel. The trial court denied the motion based on a credibility determination of the witnesses. The place to bring the IAC claim is in post-conviction. The denial of the motion to reopen was within the discretion of the trial court. United States v. Person, 2018 U.S. App. LEXIS 22448 (2d Cir. Aug. 14, 2018).
Defendant stop at the Albuquerque Greyhound station turned nonconsensual. “SA Perry and TFO Davis attempted to conduct a consensual encounter. The Court has considered that the agents used non-aggressive tone, did not show their weapons, and that the interaction took place in an open, public space. However, several aspects of the encounter lead the Court to conclude that a reasonable person would not have felt free to leave. Accordingly, the Court finds that Mr. Garcia-Garibay’s consent to a dog sniff was not voluntary and obtained in violation of the Fourth Amendment. The methamphetamine seized must be suppressed.” United States v. Garcia-Garibay, 2018 U.S. Dist. LEXIS 136888 (D.N.M. Aug. 14, 2018).*
Posted inConsent, Ineffective assistance|Comments Off on CA2: Motion to reopen suppression hearing for alleged IAC was subject to abuse of discretion; not abused here
“Officer Myers’ instruction to ‘hang tight’ while he ran Defendant’s driver’s license [and had it in hand], would lead a reasonable person in Defendant’s shoes not to feel free to leave. Thus, the consensual encounter became a seizure under the Fourth Amendment, and the Court next turns to whether the police officers had reasonable suspicion to justify that seizure.” The officer then ran warrants, and an arrest warrant was found. The fact that took three minutes is not constitutionally unreasonable because the officer was entitled to at least check defendant’s record. That led to a valid search incident to arrest. United States v. Morgan, 2018 U.S. Dist. LEXIS 136835 (E.D. Va. July 2, 2018), adopted, 2018 U.S. Dist. LEXIS 136527 (E.D. Va. Aug. 13, 2018).
After police stopped a car suspected in drug deals, they learned that the drugs came from a particular address which was used as a distribution point. They developed probable cause for the house. They were two hours away from a magistrate who could issue a search warrant. An entry to freeze the situation as a “warrantless protective seizure” was reasonable while a search warrant was obtained. United States v. Perez, 2018 U.S. Dist. LEXIS 137217 (W.D. N.C. Aug. 14, 2018).
The Oregon automobile exception applies to vehicles lawfully stopped for traffic offenses where probable cause develops. State v. Bliss, 363 Or. 426, 2018 Ore. LEXIS 612 (Aug. 9, 2018).
Posted inReasonableness, Seizure|Comments Off on W.D.N.C.: When they had PC for rural house, entry to freeze situation was reasonable when magistrate was two hours away
Defendant’s cell phone was first the subject of a private search, and then a police search. The police search exceeded the scope of the private search, and that led to a state issued search warrant. The state search warrant was looking for child pornography through defendant’s IP address. The warrant didn’t say “cell phone” and it easily could have, but the court declines to suppress based solely on that. Moreover, there is no indication of bad faith or that the good faith exception should not apply. Then, a federal search warrant was issued for the same phone. Even if the state warrant was subject to suppression here, the federal search warrant was based on an independent source. United States v. Suellentrop, 2018 U.S. Dist. LEXIS 137190 (E.D. Mo. July 23, 2018), adopted, 2018 U.S. Dist. LEXIS 136136 (E.D. Mo. Aug. 13, 2018): Continue reading →
Posted inCell phones, Independent source|Comments Off on E.D.Mo.: Federal SW for cell phone after private search then state SW was on independent source
Officer’s failure to follow inventory policy here created the strong inference the inventory was really a pretext for a criminal search, and the inventory is suppressed. United States v. Davis, 2018 U.S. Dist. LEXIS 137083 (N.D. Iowa Aug. 14, 2018) (Judge Bennett): Continue reading →
Posted inInventory|Comments Off on N.D.Iowa: Inventory appears only a pretext for criminal search
Police got a call about a man wielding a sword, and they stopped defendant. There was probable cause for him possessing a concealed long sword [how?]. Even if the officer was wrong, it wasn’t really wrong. “Short contends that Officer Armstrong did not make a mistake based on good faith, but fails to indicate why this is so. In light of the above discussion, Officer Armstrong’s conduct, even if mistaken, would not fit within the requirements for excluding the evidence.” State v. Short, 2018-Ohio-3202, 2018 Ohio App. LEXIS 3460 (2d Dist. Aug. 10, 2018).
Comment: And the good faith exception, originally intended only for searches under a warrant in Leon,* applies to warrantless searches in Ohio based on good faith mistakes of fact which the defendant cannot show are unreasonable; not the state show are reasonable. Thus, the Fourth Amendment burden of proof for proving reasonableness of warrantless searches in Ohio is placed on the defendant, contrary to all Fourth Amendment precedent. This case could and should have been decided for the state without even getting into the Fourth Amendment, but the court’s zeal to gut the exclusionary rule is palpable and drives the court to bad law. This needs to go up. Not that the Ohio Supreme Court would do anything about it ….**
___________
* United States v. Leon, 468 U.S. 897, 924 (1984): “The good-faith exception for searches conducted pursuant to warrants is not intended to signal our unwillingness strictly to enforce the requirements of the Fourth Amendment, and we do not believe that it will have this effect.” And remember that Herring was based on a mistaken arrest warrant. Both had a judicial imprimatur.
** When I was a kid I used to hear about “close” only applies to horseshoes and hand grenades. McGraw-Hill Dictionary of American Idioms and Phrasal Verbs (2002). It also applies to the exclusionary rule.
Posted inExclusionary rule, Good faith exception|Comments Off on OH2: Officer’s good faith mistake, if it was one, that def possessed a concealed weapon (a long sword), bars application of the exclusionary rule [court erroneously shifts burden]
Police came to defendant’s motel room door and knocked without saying who they were. They asked about a stolen truck defendant had, and he turned and went in to get paperwork, and the officer followed him. Defendant never objected to his following, and the trial court’s finding of implied consent is supported by the record. State v. Allen, 2018-Ohio-3240, 2018 Ohio App. LEXIS 3498 (11th Dist. Aug. 13, 2018).*
Defendant litigated the search and seizure pretrial and appealed on that and lost. It was not a proper claim for post-conviction. Davis v. State, 2018 Tenn. Crim. App. LEXIS 607 (Aug. 13, 2018).*
Posted inConsent|Comments Off on OH11: Not objecting to police officer following def into hotel room to retrieve paperwork was implied consent
This § 1983 case over a state court search warrant and search essentially seeks to relitigate in federal court the issuance of the warrant, which is not the prerogative of a federal court. Instead, the court finds corroboration of the CI who was well known to the police and exposing herself to criminal liability for even talking to them wasn’t constitutionally required. “The reports of known, accountable persons who claim to be victims of or participants in crime (Doe was both) may establish probable cause without corroboration; the police may leave to the judicial process the sorting of truth from fiction.” Summary judgment for the officers was proper. Walker v. Weatherspoon, 2018 U.S. App. LEXIS 22347 (7th Cir. Aug. 13, 2018).*
Posted inInformant hearsay|Comments Off on CA7: CI was a co-conspirator, and corroboration was required
"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.
