The district court did not err in enforcing the IRS summons under 26 U.S.C.S. § 7602 to the taxpayers’ bank because the taxpayers did not have a reasonable expectation of privacy in the financial records held by the bank. The taxpayers were not entitled to relief under the Right to Financial Privacy Act, 12 U.S.C.S. §§ 3401-3422 because, even if they had not presented the argument too late, the statute in 12 U.S.C.S. § 3413(c) explicitly excluded the Internal Revenue Code provisions. The summons were reasonable under the Fourth Amendment because they sought relevant information and were narrowly tailored. The IRS was not required to issue John Doe summons under 26 U.S.C.S. § 7609(f) where the subjects of the investigation were named and received notice. Presley v. United States, 895 F.3d 1284 (11th Cir. 2018). See Daily Report: 11th Circuit: IRS May Demand Law Firm’s Escrow, Trust Account Info.
While defendant was handcuffed and in a police car, all the other factors of lack of intimidation etc. show that defendant voluntarily consented to a search of his backpack. United States v. Carr, 2018 U.S. App. LEXIS 20202 (8th Cir. July 20, 2018).*
Posted inConsent, Subpoenas / Nat'l Security Letters, Third Party Doctrine|Comments Off on CA11: IRS summons to bank would be enforced; the summons was reasonable under the 4A: info sought was reasonable and narrowly tailored, and it was to a bank
The Ninth Circuit recognizes judicial abandonment under the neutral and detached magistrate requirement, but defendant here still loses. The officers arresting him on the warrant weren’t there when the judicial officer failed to read the papers, and they had no knowledge the magistrate wasn’t neutral and detached. United States v. Barnes, 2018 U.S. App. LEXIS 20007 (9th Cir. July 19, 2018): Continue reading →
“Dismissal of the indictment and suppression of evidence are not appropriate remedial measures for a violation of Article 36 [of the Vienna Convention] in this case.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 350 (2006). United States v. Castillo, 2018 U.S. App. LEXIS 19839 (3d Cir. July 18, 2018).
Government’s offer to not use any evidence from a search moots the need for a Franks hearing. United States v. James, 2018 U.S. Dist. LEXIS 121557 (D. Nev. July 20, 2018).*
On remand from United States v. Harris, 642 Fed. Appx. 713 (9th Cir. 2016), the district court had a hearing on application of inevitable discovery. “At the supplemental hearing, the district court made three findings in determining that the inevitable discovery doctrine applied, none of which we find to be clearly erroneous. First, the two officers responding to the reported domestic violence incident would have discovered Harris’s parole and searchable probation status by following routine police procedures applicable to such a situation. Second, the officers would then have inevitably developed probable cause that Harris resided at the apartment. Third, the officers would have inevitably searched the apartment after making the two previous determinations.” United States v. Harris, 2018 U.S. App. LEXIS 20249 (9th Cir. July 20, 2018).*
Posted inInevitable discovery|Comments Off on CA9: On remand for a hearing on inevitable discovery, the district court found it applied three ways
According to court documents filed Thursday, Special master Barbara Jones found that 1,452 out of the 4,085 items designated privileged by the lawyer’s legal team are not privileged. Jones “agrees with the plaintiff” that 2,633 of the documents or records meet attorney-client privilege standards.
Posted inPrivileges|Comments Off on The Hill: Special master in Cohen case rejects more than a third of legal team’s privileged items
Northeastern University researchers Dave Choffnes and Christo Wilson (mostly) debunk the internet’s favorite conspiracy theory on the latest Too Embarrassed to Ask.
Posted inSurveillance technology|Comments Off on Recode: Your phone is not secretly spying on your conversations. It doesn’t need to.
Defendant’s calls from the police station after he was arrested admitted the marijuana in this case was his. The calls were admitted at trial, defense counsel challenging authentication. Defendant pro se argued a Fourth Amendment violation, but that is defaulted as not within in the objection. Even if not, there was no reasonable expectation of privacy in the phone calls. Jackson v. State, 2018 Miss. App. LEXIS 329 (July 17, 2018).
The officer’s stop of defendant’s car was based on reasonable suspicion, and then probable cause developed. People v. Madera, 2018 NY Slip Op 05378, 2018 N.Y. App. Div. LEXIS 5292 (3d Dept. July 19, 2018).*
Petitioner filed two motions to return property: one under Rule 41(g) and another under 18 U.S.C. § 983. The former isn’t ripe; the later deserves a response. In re One 2018 Forest River Forester 2391 Rec. Vehicle “RV”, 2018 U.S. Dist. LEXIS 119984 (S.D. Ill. July 18, 2018).*
By posting to Facebook, even with a friends only setting, defendant waived his reasonable expectation of privacy in his postings. On the merits of the search warrant for Facebook, probable cause was shown. United States v. Westley, 2018 U.S. Dist. LEXIS 118571 (D. Conn. July 17, 2018),
Police getting defendant to walk to his apartment manager’s office about “a problem” was not a seizure. If a ruse had been used, maybe; but that’s not the case. Ramos v. State, 2018 Alas. App. LEXIS 136 (July 18, 2018) (memorandum).*
“The defendant’s valid waiver forecloses appellate review of the denial of that branch of his omnibus motion which was to suppress his statements made to law enforcement officials, the denial of his motion to controvert a search warrant and suppress the physical evidence recovered …, and his excessive sentence claim ….” People v. Rivera, 2018 NY Slip Op 05338, 2018 N.Y. App. Div. LEXIS 5223 (2d Dept. July 19, 2018).*
Posted inSeizure, Social media warrants|Comments Off on D.Conn.: Posting things to Facebook is a waiver of any REP, even in a “friends” setting
The Seventh Circuit held in dicta in 2014 that CSLI didn’t need a warrant. United States v. Thousand, 558 Fed. Appx. 666, 670 (7th Cir. 2014). The search here was two years before Carpenter. Davis good faith applies, and the exclusionary rule does not apply. United States v. Reyes, 2018 U.S. Dist. LEXIS 118808 (S.D. Ind. July 17, 2018).
Defendant was stopped because his windshield was tinted. When the officer got to the driver’s window, he could smell burnt marijuana. This led to a search of the person that produced drugs, and the motion to suppress is denied. United States v. Conway, 2018 U.S. Dist. LEXIS 118931 (E.D. Ky. July 17, 2018).*
Defendant crossed the border in July 2012, and his phone was seized and somewhat analyzed. On the eve of trial in July 2018, the government did a full search without a warrant. Defendant moves to suppress, and it’s granted. The second search six years later cannot be justified by the border search or any other exception. United States v. Gandy, 2018 U.S. Dist. LEXIS 118540 (S.D. Tex. July 17, 2018): Continue reading →
Posted inBorder search, Cell phones|Comments Off on S.D.Tex.: Warrantless search of cell phone six years after border crossing violated 4A
Trial court’s deciding to suppress based on an argument not made by defendant was error. Commonwealth v. Jones, 2018 PA Super 208, 2018 Pa. Super. LEXIS 815 (July 17, 2018).
Defendant argues in post-conviction proceedings against the trial court’s ruling on a motion to suppress. Then defendant pled to the charge. The claim was sort of described as an ineffective assistance of counsel claim, but not quite, at least as described. At any rate, defendant loses because defense counsel was well prepared and defendant pled. State v. Curtis, 2018-Ohio-2822, 2018 Ohio App. LEXIS 3041 (5th Dist. July 16, 2018).*
“Upon reviewing Agent Taylor’s affidavit, we find that it provided a clear nexus between appellant’s alleged drug trafficking and his hotel room, and thus contained sufficient evidence to support a probable cause finding justifying the issuance of the search warrant.” State v. Nelson, 2018-Ohio-2819, 2018 Ohio App. LEXIS 3039 (12th Dist. July 16, 2018).*
“A jury could reasonably find that the Kovacics suffered no actual damages from an unreasonable search of the home. See George v. City of Long Beach, 973 F.2d 706, 708-09 (9th Cir. 1992). Although Jared Kovacic was detained for 20 minutes, a jury could reasonably find that this brief deprivation of liberty does not amount to a per se actual injury, unlike the 100 days of incarceration that we deemed to be an actual injury in Hazle v. Crofoot, 727 F.3d 983, 991-92 (9th Cir. 2013).” Kovacic v. County of L.A., 2018 U.S. App. LEXIS 19692 (9th Cir. July 17, 2018).
Defendant’s objections to the USMJ’s R&R denying the suppression motion are preserved, and he doesn’t get another hearing. United States v. Lewis, 2018 U.S. Dist. LEXIS 117588 (N.D. Ind. July 16, 2018).*
Posted in§ 1983 / Bivens|Comments Off on CA9: Nominal damages for 20 min detention supported by evidence
The issue of inevitable discovery was treated as an aside by the government, although it bore the burden of proof on it. It seeks the use of hearsay on inevitable discovery that was hard to credit considering the posture of the case. United States v. Ansah, 2018 U.S. Dist. LEXIS 117417 (N.D. Ga. July 16, 2018): Continue reading →
Posted inBurden of proof, Inevitable discovery|Comments Off on N.D.Ga.: Govt bore burden of proof on inevitable discovery and failed; weak hearsay not credited
The officer continued the stop without reasonable cause and testified he decided to search the car only because he was concerned about officer safety and not getting shot. But, the search didn’t occur until well into the stop [and was an ad hoc justification]. If that was his intention, it should logically have been earlier, and even then would lack a basis. Motion to suppress firearm granted. United States v. Wilson, 2018 U.S. Dist. LEXIS 117617 (N.D. Ala. July 16, 2018).
Defendant lived with his grandfather, and grandfather consented to the search. The claim from a witness other than the grandfather than he consented only because he was told he’d lose his apartment is rejected as not credible at all. Grandfather didn’t testify, but an affidavit was presented on him. United States v. Tirado, 2018 U.S. Dist. LEXIS 117901 (S.D. N.Y. July 16, 2018).*
Posted inConsent, Reasonable suspicion|Comments Off on N.D.Ala.: Def’s continued detention in traffic stop without RS required suppression
“Hill argues Agent Fulmer’s affidavit omitted information previously obtained during the investigation and which was contained in an affidavit submitted with a wiretap application filed in the Eastern District of Michigan in December 2016. Hill, however, does not explain how the omitted information, even if I were to assume it is material, would have had any impact on Judge Zouhary’s probable cause finding. Hill does not contend the information is exculpatory — in fact, the omitted information was cumulative and would have supported the probable-cause determination. I conclude Hill is not entitled to an evidentiary hearing.” United States v. Hill, 2018 U.S. Dist. LEXIS 118075 (N.D. Ohio July 16, 2018).*
“Here, Special Agent Sweeney’s affidavit in support of the warrant [for defendant’s cell phone] goes well beyond what is required to demonstrate probable cause.” And the details are …. United States v. Carton, 2018 U.S. Dist. LEXIS 117242 (S.D. N.Y. July 13, 2018).*
Posted inFranks doctrine, Probable cause|Comments Off on N.D.Ohio: Under Franks, materiality of the omitted info to PC is required, not just that it was omitted
“First, Fails argues that his First and Fourteenth Amendment rights were violated when he was arrested because he was never read his Miranda rights and never signed a card waiving those rights. Second, he argues that his Fourth and Fourteenth Amendment rights were violated because he was never served a warrant before his arrest and never notified of the items that were to be seized under a search warrant. Finally, he argues that the state’s material witness never signed a sworn witness statement before the arrest warrant was validated, as required under Florida law and Fed. R. Crim. P. 3. In support of his claims, Fails cites Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975).” In re Fails, 2018 U.S. App. LEXIS 19470 (11th Cir. July 16, 2018).
Based on everything provided by the CI, defendant doesn’t get a Franks hearing as to the existence of probable cause or a potential (at worst, and probably not) negligent reference to address. United States v. Thrasher, 2018 U.S. Dist. LEXIS 117299 (D. Ore. July 14, 2018).*
Posted inInformant hearsay|Comments Off on CA11: Def’s 4A challenge doesn’t satisfy successor habeas standard; not even habeas standard
“Here, the totality of the circumstances reveals enough to get the Government over the goal line, though perhaps not with a lot of breathing room. First, O’Bryan was a known informant. That means that O’Bryan “would [have been] subject to prosecution for making a false report,” and thus that his statements are “entitled to far greater weight than those of an anonymous source.” … That is one factor in the Government’s favor-and a major distinction between this case and cases like J.L. (which Stokes cites, see Appellant’s Br. at 12; Reply Br. at 4) that instead featured anonymous tips.” Moreover, the CI had proved reliable in the past. United States v. Stokes, 2018 U.S. App. LEXIS 19442 (6th Cir. July 16, 2018).*
“The instant motion asks that the Court suppress 280 bags of heroin seized from Defendant Mr. Vaquiz’s person during a search incident to arrest on January 29, 2016. Mr. Vaquiz specifically argues that officers lacked probable cause to arrest him because they relied upon the unreliable and suspect information of informant, J.F. However, because the factual record demonstrates that J.F. proved her reliability on numerous occasions and that the information provided by her was often independently corroborated by the officers in this case, I disagree. My reasoning follows.” United States v. Vaquiz, 2018 U.S. Dist. LEXIS 115709 (M.D. Pa. July 12, 2018).*
Posted inInformant hearsay|Comments Off on CA6: CI’s past reliability supported reliability here
Four years ago today, Eric Garner tried to raise a few extra dollars by selling individual cigarettes. His day and his life would end not — as so many similar cases before and since — in a hail of police bullets.
Posted inExcessive force|Comments Off on NY Daily News: A chokehold on justice: The NYPD is right to lose patience with the feds
Defendant posited much information that was omitted from the affidavit for the search warrant, but that would have created an implausible scenario that didn’t even make sense to the appeals court. “Even if we assume that the challenged statements and omissions were either deliberate or reckless — a matter that we need not reach — it is clear that correcting the defendant’s weight and adding in the omitted information would not have vitiated the finding of probable cause. Neither the alleged misstatement about the defendant’s weight nor the omitted information was critical to the finding of probable cause.” United States v. Barbosa, 2018 U.S. App. LEXIS 19498 (1st Cir. July 16, 2018).
“Despite the R&R’s correct conclusion that probable cause supported each of the warrants, the Defendant’s Objections attempt to attack the existence of probable cause through speculation and supposition.” Defendant’s Franks challenge because of omission of details about the CI essentially is speculation. United States v. Crawford, 2018 U.S. Dist. LEXIS 116159 (E.D. Ky. July 12, 2018).*
Posted inFranks doctrine|Comments Off on CA1: Franks challenge fails to undermine PC; alternative scenario was “implausible”
Defendant counsel was not ineffective for not pursuing a Fourth Amendment claim that the name in the arrest warrant was included by mistake. Officers told the magistrate as soon as they discovered it. Defendant’s arrest was still on probable cause. United States v. Alexa, 2018 U.S. Dist. LEXIS 115728 (E.D. Pa. July 12, 2018): Continue reading →
Posted inArrest or entry on arrest|Comments Off on E.D.Pa.: Arrest warrant for wrong name still had PC for def, and his arrest was based on PC
"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.
