Defendant didn’t object in the trial court to his satellite monitoring condition of his sentence as a violation of the Fourth Amendment, so it can’t be reviewed on appeal. State v. Lindsey, 2018 N.C. App. LEXIS 747 (Aug. 8, 2018).
Defense counsel did challenge the search warrant precisely as defendant in his 2255 says he didn’t. Moreover, he doesn’t allege a viable alternative with another way to do it that would have produced a better outcome. United States v. Romo, 2018 U.S. Dist. LEXIS 133591 (D. Mont. Aug. 8, 2018).*
“We also conclude that trial counsel’s performance was not deficient for failing to file a motion to suppress Petitioner’s phone records. Trial counsel made a tactical decision to not file a motion to suppress because the motion had no legal basis. As the post-conviction court noted, Petitioner failed to present a legal basis under which trial counsel could have filed the motion. Petitioner is also not entitled to relief under this ground.” Carter v. State, 2018 Tenn. Crim. App. LEXIS 591 (Aug. 8, 2018).*
On remand from Byrd v. United States, 138 S. Ct. 1518, 200 L. Ed. 2d 805 (May 14, 2018), the Third Circuit applies the good faith exception to standing because the law at the time in the circuit was that there was no standing, and Davis forecloses relief. United States v. Byrd, 2018 U.S. App. LEXIS 22058 (3d Cir. Aug. 8, 2018): Continue reading →
Race may be relevant to determining whether defendant consented to a search, but it isn’t determinative. The record as a whole, however, shows that consent was completely voluntary. State v. Bartlett, 2018 N.C. App. LEXIS 775 (Aug. 8, 2018): Continue reading →
Posted inConsent|Comments Off on NC: Race may be relevant to determining whether defendant consented to a search, but it isn’t determinative; record shows consent
Defendant shared a bedroom with his girlfriend, and another person lived in the house. He was subject to reasonable parole searches, and the court concludes that it applies to everything in the room he shared with his girlfriend. It did not, however, apply to the other non-parolee staying in a separate room. State v. Stanfield, 2018 Tenn. LEXIS 396 (Aug. 8, 2018).
The officer told defendant that he was going to pat him down, and defendant fled. There was, therefore, no seizure for the patdown. His being Tasered was part of attempting to restrain him, and he still wasn’t seized at that point. Defendant’s trench coat had been abandoned at the time it was seized and searched. United States v. Sanchez, 2018 U.S. Dist. LEXIS 132291 (D. N.M. Aug. 7, 2018).*
Posted inAbandonment, Probation / Parole search|Comments Off on TN: Parole search applied to bedroom def shared with girlfriend but not to another bedroom in the house occupied by a non-parolee
Without considering probable cause, the affidavit is not so “bare bones” that it couldn’t be relied upon. [Again, this court too subliminally decides the probable cause question while disavowing that it is doing so.] It was for child pornography and the information was more than a year old, but that’s never too old for a CP case. Defendant was known by police to frequent CP sites, and that’s enough to suggest he has it on his computer. United States v. Blyshak, 2018 U.S. Dist. LEXIS 132091 (S.D. Tex. Aug. 7, 2018).*
“In sum, there was ample evidence to support a finding of probable cause. Henry did not merely rely on an anonymous tip—he and other agents corroborated it through repeated surveillance. Although the surveilling agents did not observe identical events at the two houses, agents observed what appeared to be drug deals at both. And even so, the vehicles often traveled from one house to the other following the purported transactions, thus supporting a search of both homes. The motions will be denied.” United States v. Clements, 2018 U.S. Dist. LEXIS 132133 (E.D. Mich. Aug. 7, 2018).*
The showing of nexus to defendant’s house for drug dealing was wholly insufficient: (1) a suspected drug dealer once parked there, (2) the owner had a 17 year old conviction for drugs, and (3) a four month old uncorroborated tip. Therefore, the good faith exception does not apply. United States v. Tucker, 2018 U.S. App. LEXIS 21915 (6th Cir. Aug. 7, 2018): Continue reading →
Posted inNexus, Staleness|Comments Off on CA6: Nexus not shown by old and speculative information
In a 2-1 decision, the Ninth Circuit held Bivens permitted an action against a US Border Patrol agent who shot from the U.S. into Mexico and killed a Mexican teenager. In addition, there was no qualified immunity. Rodriguez v. Swartz, 2018 U.S. App. LEXIS 21930 (9th Cir. Aug. 7, 2018). Syllabus by the court: Continue reading →
Posted in§ 1983 / Bivens, Excessive force|Comments Off on CA9: Bivens permits cause of action against Border Patrol agent for shooting a Mexican citizen across the border who posed no threat
Defendant was validly stopped for a suspected traffic violation and the officer couldn’t see the state on the temporary tag. Once he stopped the car he could see it. Still, the officer could inform the motorist of the reason for the stop, and all that was within the basis of the original stop. Thereafter, the stop is determined from that point, and the officer delayed the stop in violation of Rodriguez. The good faith exception does not apply. All the government did was cite it and not how it would apply. The court doesn’t see it. United States v. Lujan, 2018 U.S. Dist. LEXIS 132668 (E.D. Tenn. June 15, 2018),* adopted 2018 U.S. Dist. LEXIS 132229 (E.D. Tenn. Aug. 7, 2018).*
Defendant left the motel he was staying at when the police came and searched it by consent of the cotenant. The question isn’t his standing; it’s because the cotenant consented. He’s not being penalized for not being present to object under Randolph. United States v. Keene, 2018 U.S. Dist. LEXIS 130342 (N.D. Okla. Aug. 3, 2018).*
The affidavit for the search warrant identified the suspects and what was to be searched for, but it said nothing about nexus to defendant’s house. Yet, the court finds that the search warrant was not bare bones based on supposition, so the good faith exception applies. State v. Lair, 2018-Ohio-3112, 2018 Ohio App. LEXIS 3345 (5th Dist. Aug. 6, 2018).* Compare today’s post from the Sixth Circuit to the contrary.
The state showed enough to get a search warrant for defendant’s cell phone for possible evidence of sexual imposition on his stepdaughter. The phone allegedly only had adult pornography on it, but its existence corroborated the alleged victim. In addition, text messages may corroborate her version. That was probable cause. State v. Moore, 2018-Ohio-3122, 2018 Ohio App. LEXIS 3352 (12th Dist. Aug. 6, 2018).*
“Johnson argues that ‘if a search warrant was required then the 10th Amendment requires the Department of Justice to obtain subject matter jurisdiction because the administration of criminal justice under our federal system has rested with the States.’ Pro Se Supp. Br. 26. However, Johnson cites only Fourth Amendment case law, and cites no authorities to support his reading of the Tenth Amendment. We note that ‘[t]he FBI is authorized “to detect and prosecute crimes against the United States.”’ United States v. Rodgers, 466 U.S. 475, 481, 104 S. Ct. 1942, 80 L. Ed. 2d 492 (1984) (quoting 28 U.S.C. § 533(1)).” United States v. Johnson, 2018 U.S. App. LEXIS 21909 (3d Cir. Aug. 7, 2018).*
Another Playpen warrant sustained. United States v. Tagg, 2018 U.S. Dist. LEXIS 132660 (E.D. Mich. Aug. 7, 2018).*
Posted inUncategorized|Comments Off on CA3: FBI doesn’t need permission from the states under 10A to get a SW in a bank robbery
The Drug Enforcement Unit’s de facto policy not to properly knock-and-announce as a municipal policy survive defendants’ motion for summary judgment. Plaintiff was rendered a paraplegic during the no-knock entry. Plaintiff alleged that the DEU essentially failed to knock-and-announce at will, without regard to legal requirements. The city let the DEU to decide what to do and didn’t control them. Betton v. Knowles, 2018 U.S. Dist. LEXIS 132263 (D.S.C. Aug. 7, 2018): Continue reading →
Posted in§ 1983 / Bivens, Knock and announce|Comments Off on D.S.C.: Delegating to Drug Enforcement Unit how it executes no-knocks was municipal policy, MSJ denied
In a prison group strip search, “Defendant has failed to properly support her motion for summary judgment with relevant evidence showing the existence of a legitimate penological need for the group strip search and why her presence inside the Chapel was necessary at the time of the search.” Cavin v. Belfry, 2018 U.S. Dist. LEXIS 131713 (W.D. Mich. Aug. 6, 2018).
Even if the probable cause is deficient, the good faith exception may be relied upon if it was reasonable to believe in probable cause. Then, the court talks about what makes it reasonable thereby proving that there was probable cause, which it was not deciding. [And, once again, the probable cause requirement is read out of the Fourth Amendment.] United States v. Tharps, 2018 U.S. App. LEXIS 21573 (4th Cir. Aug. 3, 2018).
The good faith exception applies to the particularity of this search warrant. It was reasonably narrow, and even if it could be narrowed more, it wasn’t obviously overbroad. United States v. Alford, 2018 U.S. App. LEXIS 21581 (11th Cir. Aug. 3, 2018): Continue reading →
In this § 1983 case, the officer provided false information in the affidavit for the search warrant that was critical to the finding of probable cause. Without that information, there was no probable cause. The district court’s finding that qualified immunity was overcome by the plaintiff is affirmed. McCallum v. Geelhood, 2018 U.S. App. LEXIS 21688 (6th Cir. Aug. 6, 2018).
Franks 2255 fails for lack of offer of proof. “Petitioner’s conclusory claim that his counsel was deficient for failure to investigate exculpatory evidence cannot prevail because he does not provide the court with more specific details regarding what the investigation would have revealed, including how the Government’s witnesses were not credible or why the search warrant was invalid. Petitioner does not even identify any of the alleged contradictions between the witnesses or their respective testimonies.” D’Amico v. United States, 2018 U.S. Dist. LEXIS 130436 (D. Md. Aug. 3, 2018).*
Not a Fourth Amendment case, but a relevance issue in drug cases: Was there prejudice from testimony about a Jesus Malverde statute? United States v. Valencia, 2018 U.S. App. LEXIS 21659 (8th Cir. Aug. 6, 2018)*: Continue reading →
Posted inUncategorized|Comments Off on Relevance of a Jesus Malverde statute
The Fourth Amendment protects against unreasonable searches and seizures, and under various court rulings that means government agents must first get warrants before listening in on private conversations in situations in which people have a reasonable expectation of privacy. But being locked up isn’t one of those situations.
Posted inPrison and jail searches, Privileges|Comments Off on LA Times: Editorial: Bugging conversations between criminal defendants and their lawyers is bad news
Discord, which was started in 2015 as a secure chat app for videogamers, also happened to be conducive for white supremacists, white nationalists, neo-Nazis and other members of the alt-right movement who sought to keep their identities secret.
And a subpoena is all it takes with the Freedom of Association. But compare Zurcher v. Standford Daily where a search warrant was reasonably issued for a college newspaper for photographs of alleged violent protesters when the newspaper refused a subpoena.
Posted inThird Party Doctrine|Comments Off on Washington Post: Subpoena for app called ‘Discord’ could unmask identities of Charlottesville white supremacists
Defendant raised a Franks IAC claim, and the Seventh Circuit deals with the merits of the claim to determine that there was no Fourth Amendment violation, therefore no IAC. The district court concluded there was no probable cause but the good faith exception applied. The Seventh Circuit holds there was probable cause on the totality, and the good faith exception applied. The officer in the affidavit didn’t detail the history of the CI, but it was reasonable under the circumstances, and it was clear that it wasn’t to hide information from the issuing magistrate. Edmond v. United States, 2018 U.S. App. LEXIS 21583 (7th Cir. Aug. 3, 2018): Continue reading →
"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.
