Officers came to defendant’s house because a couple of drug suspects had visited him. The officers’ knock-and-talk didn’t gain them entry into the house, and a knock-and-talk can’t be used to create exigent circumstances. A protective sweep was unjustified because officers didn’t even think there was somebody else in the house. An entry into the backyard was also unjustified. State v. Cowans, 2018 La. App. LEXIS 1315 (La. App. 5 Cir. July 6, 2018); State v. Salinas, 2018 La. App. LEXIS 1316 (La. App. 5 Cir. July 6, 2018).
Defendant was arrested inside his home without a warrant in violation of Payton, and he was Mirandized and made a statement in transit to the police station. That statement was not suppressed under Harris v. New York. The gun used against him was found during a search with a warrant independent of his statement. United States v. Cooper, 2018 U.S. App. LEXIS 18450 (9th Cir. July 6, 2018).*
The USPS developed probable cause that defendant was shipping drugs by mail with his own mini mailing service, creating his own mailing labels and having acquired plenty of USPS envelopes and postage to do it. When another suspicious package came through, it was reasonably detained for further investigation. In the investigation, they obtained a GPS warrant to track defendant’s phone real time and followed him around, and that warrant was issued with probable cause. The search of his cell phone and its browser history was reasonable and authorized by a warrant. United States v. Okparaeke, 2018 U.S. Dist. LEXIS 112687 (S.D. N.Y. July 6, 2018).*
Defense counsel wasn’t ineffective for not filing a motion to suppress a search of defendant’s apartment. There was plenty of probable cause before the dog sniffed near the door of the apartment hallway, so it doesn’t matter because of the independent source. Salinas v. United States, 2018 U.S. Dist. LEXIS 112213 (N.D. Tex. July 6, 2018).*
The smell of marijuana coming from defendant’s car was at least reasonable suspicion to continue the stop. State v. Beller, 2018 Iowa App. LEXIS 617 (July 5, 2018).*
To have standing to challenge a home search, a guest must show a degree of acceptance into the household or an ongoing and meaningful connection to the host’s residence so that the guest has a reasonable expectation of privacy in the host’s residence. Here, defendant was a close friend of the host and stayed at the house regularly, often sleeping on the couch but not spending the night. He had a substantial enough connection to the house to justify standing. The fact he wasn’t there and wasn’t an overnight guest when the search occurred doesn’t matter. State v. Dannebohm, 2018 Kan. LEXIS 356 (July 6, 2018): Continue reading →
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“First, even assuming that Flinn had no lawful basis to stop and talk to Plaintiff in the first place, Plaintiff’s argument is not viable in a § 1983 claim. In a 2016 Ninth Circuit case, the court noted that the exclusionary rule prohibits the government from relying on evidence seized during an unlawful search in a criminal trial. Lingo v. City of Salem, 832 F.3d 953, 957 (9th Cir. 2016). The “fruit of the poisonous tree” doctrine extends the exclusionary rule to require suppression of other evidence that is derived from the illegal search or seizure. Id. at 957-58. … The Ninth Circuit joined at least four other circuits in rejecting this argument, explaining that unlike in criminal cases where the purpose of the rule is to remove the incentive for police to violate the Fourth Amendment and incriminate a suspect, the need for deterrence was minimal in § 1983 cases. Id. at 958; see also id. at 959 (joining the other federal courts of appeals which have ‘widely held that the exclusionary rule does not apply in § 1983 cases’). Lingo forecloses Plaintiff’s contention that an allegedly unreasonable stop tainted his subsequent arrest.” Freitag v. Alaska Airlines, 2018 U.S. Dist. LEXIS 112396 (D. Ore. July 6, 2018).
Posted in§ 1983 / Bivens, Exclusionary rule|Comments Off on D.Ore.: Even if ptf’s 4A violated in stop at Portland airport, exclusionary rule doesn’t apply in § 1983 case
“In this case, it is a close question whether the warrant was supported by probable cause. Although a close call, we need not resolve this issue because even if the warrant lacked probable cause, the good faith exception to the Fourth Amendment’s exclusionary rule applies in this case. United States v. Hove, 848 F.2d 137, 139 (9th Cir. 1988) (holding that the good faith exception applies when ‘the affidavit was sufficient to “create disagreement among thoughtful and competent judges as to the existence of probable cause”’) (quoting United States v. Leon, 468 U.S. 897, 926 (1984)).” Defendant’s Franks claim fails for no offer of proof. United States v. Thrift, 2018 U.S. App. LEXIS 18306 (9th Cir. July 5, 2018).*
There was no emergency basis for entry into defendant’s apartment, a probationer. The police understood that another person might be there who they were curious about. Still, there was no justification for the warrantless entry with gun drawn at midnight. She said she was alone, and then the officer swept the premises finding the other person. “Further, even had Carmichael’s initial entry been lawful, his subsequent search of defendant’s apartment was not. A protective sweep is justified only when the police ‘have articulable facts upon which to believe that there is a person present who may pose a danger to those on the scene’.” “Evidence that is unlawfully seized cannot be used as a basis for revoking a probationary sentence … and, as we have concluded, the search of defendant’s apartment was unlawful.” People v. Sears, 2018 NY Slip Op 04980, 2018 N.Y. App. Div. LEXIS 4945 (3d Dept. July 5, 2018).
“During a sixth-grade choir class, an assistant principal allegedly ordered a mass, suspicionless strip search of the underwear of twenty-two preteen girls. All agree the search violated the girls’ constitutional rights under Texas and federal law. Even so, the district court dismissed the girls’ lawsuit against the school district for failure to state a claim. We reverse.” The search was obviously unconstitutional under clearly established law. There was a policy, but the employees were never trained in it, and this exposes the defendant school district to liability. This case is the hypothetical from Justice O’Connor’s opinion in City of Canton v. Harris, 489 U.S. 378 (1989). Littell v. Houston Independent School District, 2018 U.S. App. LEXIS 17659 (5th Cir. June 27, 2018): Continue reading →
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Petitioner alleged enough to get a hearing on his 2255 that defense counsel didn’t call a material witness at the suppression hearing that would have created a credibility dispute with the officers as to the nature of the entry. Defense counsel claimed he was never told of the witness; petitioner said that he did. A hearing will be scheduled to resolve the credibility issue. Hill v. United States, 2018 U.S. Dist. LEXIS 110705 (D. Md. July 3, 2018).*
Defendant counsel wasn’t ineffective for not moving to suppress defendant’s blood search because there were exigent circumstances under Birchfield, and no motion to suppress would have been granted. State v. Dalton, 2018 WI 85, 2018 Wisc. LEXIS 311 (July 3, 2018).*
Posted inIneffective assistance|Comments Off on D.Md.: Credibility question shown on whether def counsel failed to call material witness at suppression hearing; hearing ordered
The DEA asked the Michigan State Police to stop defendant. A trooper followed him and he was driving the speed limit and violating no laws. The officer pulled up next to him to get a look, then slowed to pull in behind him. Defendant then slowed to 53 where 55 is posted as the minimum speed, only that’s not a legal minimum–it’s only suggested. More importantly, by following, pulling up next to defendant, then following again, the court finds the trooper caused the traffic violation. There was no other reasonable suspicion for the stop. United States v. Belakhdhar, 2018 U.S. Dist. LEXIS 110514 (E.D. Mich. July 3, 2018): Continue reading →
Posted inReasonableness|Comments Off on E.D.Mich.: By following def and causing him to slow down, the officer created the alleged violation of driving under the minimum speed; stop unreasonable
First, knock and announce was complied with. The officers testified credibly they announced repeatedly as they approached. Second, even if they didn’t, exigency or futility would be an exception–futile because defendant was well aware of their presence. There was also probable cause for the warrant. United States v. Westley, 2018 U.S. Dist. LEXIS 109909 (D. Conn. July 2, 2018).
Defendant was obviously drunk and staggering with slurred speech. There was probable cause to arrest him for public intoxication. State v. Saunders, 2018-Ohio-2624, 2018 Ohio App. LEXIS 2825 (5th Dist. July 2, 2018).*
Posted inKnock and announce|Comments Off on D.Conn.: Knock-and-announce was complied with, but def also well knew they were there and what for
Defendant was on a shuttle bus referred for secondary inspection at the I-19 immigration checkpoint in Arizona. About 50 come through there a day, and all are stopped and the occupants ordered off. Defendant slipped away and wouldn’t make eye contact, so the officer confronted her. She was a citizen and consented to a search. The stop of the vehicle was reasonable. United States v. Rodriguez, 2018 U.S. Dist. LEXIS 109842 (D. Ariz. July 2, 2018).*
Playpen warrant sustained. Defendant’s Franks claim is rejected as unsupported in the pleadings. United States v. Trahan, 2018 U.S. Dist. LEXIS 110631 (D. Mass. July 3, 2018).*
Posted inImmigration checkpoints|Comments Off on D.Ariz.: Def on a shuttle bus stopped at I-19 immigration checkpoint consented to search
A Kansas court issued a pick-up order for ten children from one family for various allegations. At the time the family was found, they were in Colorado, and the order was executed there. There was no statutory or constitutional duty to register the order in Colorado before execution, and it was valid on its face under Colorado’s family services policies. N.E.L. v. Douglas County, 2018 U.S. App. LEXIS 18129 (10th Cir. July 3, 2018).
Plaintiff’s pro se § 1983 action fails on every front (failed to show a conspiracy or due process violation or that parties were subject to suit), and the court doesn’t even have to address whether there is a Heck bar. Wilk v. St. Lucie County Fla. Sheriff Office, 2018 U.S. App. LEXIS 17994 (11th Cir. July 2, 2018).
Posted in§ 1983 / Bivens, Reasonableness|Comments Off on CA10: A KS child welfare pick-up order was valid on its face in CO and didn’t need to be registered to satisfy 4A
Defendant was in a fatal accident and taken to the ER. The state trooper there tried to get him to consent to a blood test, and he declined. While the officer went to get a search warrant for this blood, a nurse in the ER took his blood for medical treatment purposes. The blood draw taken by the hospital was admissible at his trial. Substantial compliance with the DWI blood draw statute isn’t required if a hospital does the testing for medical purposes. State v. Bugg, 2018-Ohio-2544, 2018 Ohio App. LEXIS 2763 (9th Dist. June 29, 2018).
The GPS tracking warrant was issued with probable cause. Defendants assert that a more comprehensive investigation was required before doing so, but still there was probable cause. A telephonic tracking warrant was issued under California law, and it was valid from its authorization despite the lack of a written document at the time it was started. United States v. Takatsy, 2018 U.S. Dist. LEXIS 110071 (D. Ariz. July 2, 2018).*
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“We conclude that Mitchell voluntarily consented to a blood draw by his conduct of driving on Wisconsin’s roads and drinking to a point evidencing probable cause of intoxication. Further, through drinking to the point of unconsciousness, Mitchell forfeited all opportunity, including the statutory opportunity under Wis. Stat. § 343.305(4), to withdraw his consent previously given; and therefore, § 343.305(3)(b) applied, which under the totality of circumstances herein presented reasonably permitted drawing Mitchell’s blood. Accordingly, we affirm Mitchell’s convictions.” State v. Mitchell, 2018 WI 84, 2018 Wisc. LEXIS 310 (July 3, 2018).
Having been read the implied consent forms for suspected DWI, defendant consented to a blood draw, and this was valid. State v. Lemeunier-Fitzgerald, 2018 ME 85, 2018 Me. LEXIS 91 (July 3, 2018).*
Posted inConsent, Drug or alcohol testing|Comments Off on WI: Drinking and driving until unconsciousness obviates def’s chance to withdraw implied consent
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Carpenter doesn’t apply under Davis good faith exception where circuit law didn’t require a warrant before. Besides, here it was harmless at best. United States v. Chavez, 2018 U.S. App. LEXIS 18022 (4th Cir. July 2, 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.
