Warrantless administrative seizure of taxicabs without a proper PPA TLD sticker violates the Fourth Amendment and due process for denial of a predeprivation hearing. Rosemont Taxicab Co. v. Phila. Parking Auth., 2018 U.S. Dist. LEXIS 106322 (E.D. Pa. June 26, 2018).
This is a civil case over fraudulent billing practices. Defendants move for a stay of discovery. A search warrant had been executed a year earlier, and nothing else had happened on the criminal front besides the search warrant. That counsels against a stay to protect Fifth Amendment rights, but the stay question can be revisited if the facts change. State Farm Mut. Auto. Ins. Co. v. Mittal, 2018 U.S. Dist. LEXIS 106100 (E.D. N.Y. June 26, 2018).*
Posted inAdministrative search|Comments Off on E.D.Pa.: Warrantless admin seizure of taxicabs for lack of proper permit violates 4A and due process
Defendant was arrested outside his house, and a firearm expected to be on him was not found during his search incident. There was expected to be another person in the house, and that, coupled with the unaccounted for gun, was exigency for an entry while the police were waiting for a warrant. [Note: Protective sweep isn’t mentioned, but that doesn’t answer the initial question: the legality of the entry and then the look.] United States v. Mitchell, 2018 U.S. Dist. LEXIS 106563 (W.D. Mo. May 15, 2018).
Defense counsel was not ineffective for not filing a motion to suppress the officer’s entry into his backyard with his wife’s consent to look for a dead dog. Once the officer was there, the dog was in plain view. State v. Curll, 2018 Tenn. Crim. App. LEXIS 470 (June 26, 2018).*
The defendant’s affidavit that he lived at the address searched and he was on release there wasn’t sufficient to establish his standing in this circuit. United States v. Pennick, 2018 U.S. Dist. LEXIS 106456 (W.D. N.Y. June 26, 2018).*
Defendant’s traffic stop was unreasonable because there was no objective, let alone good faith, basis for the stop. There were conflicting traffic signs at the intersection, but they didn’t apply to appellant in his lane. Also, the state could not rely on the attenuation doctrine when it didn’t raise it in the trial court so the trial court could rule and the defense could contest it. State v. Barnett, 2018-Ohio-2486, 2018 Ohio App. LEXIS 2675 (7th Dist. June 26, 2018).
After the traffic stop, the officer saw marijuana shake in the car. Further observations provided reasonable suspicion to continue the stop, and ultimately it added up to probable cause. State v. Anderson, 2018-Ohio-2455, 2018 Ohio App. LEXIS 2667 (11th Dist. June 25, 2018).*
Posted inProbable cause, Standards of review|Comments Off on OH7: State can’t raise alternative argument on appeal not presented to trial court
“Considering these factors and the totality of the circumstances, the Court concludes that Defendant’s consent to search his residence was voluntary. Defendant is a mature adult who served in the Marines and is familiar with law enforcement procedures. While Defendant was not given the full Miranda warning, Miranda does not apply to requests for consent to search and Defendant signed a consent to search form that advised him of his right to refuse consent and that he could speak with an attorney. Defendant had been detained for less than two hours when he gave consent, at the end of a cordial, professional thirteen minute interview with officers in which no physical coercion was used. The officer’s threat to obtain a warrant did not vitiate consent, because the evidence supported an objectively reasonable belief that there was probable cause to obtain a warrant. Nor did the officer’s agreement not to involve Defendant’s girlfriend or housemates render his consent involuntary, because Seventh Circuit precedent does not prohibit a defendant from negotiating a commitment to keep third parties out of the proceedings in exchange for his consent to search. Santiago, 428 F.3d at 705.” United States v. Santiago, 2018 U.S. Dist. LEXIS 105495 (N.D. Ill. June 25, 2018).*
Posted inConsent|Comments Off on N.D.Ill.: Threat to get a SW wasn’t coercive where the officers already had PC but were seeking consent to speed it up
Nonmaterial error in inclusion of an erroneous fact in a wiretap application and search request for house didn’t require a Franks hearing. United States v. Osborne, 2018 U.S. App. LEXIS 17142 (2d Cir. June 25, 2018).*
Defendant’s post-conviction claim defense counsel didn’t file a motion to suppress was wrong because the lawyer did. It wasn’t meritorious and was (apparently) part of the Anders brief defense counsel filed. State v. Wilson, 2018 Del. Super. LEXIS 265 (June 19, 2018).*
Posted inFranks doctrine, Ineffective assistance|Comments Off on CA2: Nonmaterial error of fact in Title III application and SW for house didn’t merit Franks hearing
Defendant’s motion for return of property was facially sufficient for a hearing, and the circuit court erred in denying it without a hearing. Peterson v. State, 2018 Fla. App. LEXIS 8861 (Fla. 5th DCA June 22, 2018).
Defense counsel wasn’t ineffective for not challenging an alleged unlawful entry that produced nothing used at trial. Gonzalez v. State, 2018 Fla. App. LEXIS 8896 (Fla. 1st DCA June 22, 2018).
Defendant has applied under 18 U.S.C. § 3624(c)(1) for recommendation for early placement in community confinement. “In his official capacity as a police officer, whose duty is to ‘protect and serve’ the public, defendant instead violated the trust of the very individuals he swore to protect and serve.” “He has shown no effort at rehabilitation while in prison.” Denied. United States v. Jones, 2018 U.S. Dist. LEXIS 106621 (N.D. Ohio June 26, 2018).
Three armed robberies showed a pattern of activity that allowed a broader period in the application for the warrant, and thus overcame a staleness challenge. The affidavits for search warrant provided a substantial basis for finding probable cause, especially considering the deferential standard of review. And, of course, the good faith exception would apply in any event. United States v. Ross, 2018 U.S. Dist. LEXIS 103341 (M.D. Pa. June 20, 2018).
A farm worker lived on the farm’s property, and police were called to a disturbance. The owner and a cotenant gave consent to the police to enter the common area, and they did. The body camera shows the officer never entered the private bedrooms. The entry into the common area was lawful. United States v. Garcia, 2018 U.S. Dist. LEXIS 103683 (E.D. Ky. June 21, 2018).*
Posted inApparent authority, Consent, Staleness|Comments Off on M.D.Pa.: Three robberies was a pattern sufficient to allow a broader search period and thus overcame this staleness challenge
One innocently driving a stolen vehicle generally doesn’t have standing in it. If, however, he innocently buys a stolen vehicle and then he’s stopped in it, it’s his burden to show that he was an innocent purchaser to acquire standing. Here, he failed. The court relies on United States v. Cates, 641 F. Supp. 2d 613, 615 (N.D. Tex. 2009), which is similar. United States v. Austin, 2018 U.S. Dist. LEXIS 104556 (D. S.C. June 22, 2018).
Defendant’s motion for return of his cell phone is granted because the government doesn’t need it as evidence any more. United States v. Spraggins, 2018 U.S. Dist. LEXIS 103815 (E.D. Mich. June 21, 2018).*
Posted inRule 41(g) / Return of property, Standing|Comments Off on D.S.C.: One innocently driving a stolen vehicle generally doesn’t have standing in it, but he has to show his innocent status
Once officers were in defendant’s computer with a search warrant looking for drug evidence, they could cursorily look at each file, and, in the process found child pornography. [This is akin to a plain view.] With that, the search stopped, and another search warrant was sought for child pornography. This was all legal. United States v. Grinder, 2018 U.S. Dist. LEXIS 104117 (D. Md. June 21, 2018): Continue reading →
A Tornado bus was stopped in Arkansas, and the Arkansas State Trooper was looking for unmarked bags that could be considered abandoned because unmarked bags on Tornado buses were being used to ferry drugs. While searching the bag, the officer found a false bottom and then a name tag. He stopped the search and the drug dog was there. He put the bag back on the bus and had the dog sniff all the bags. The dog alerted on this bag. Stopping the search and putting the bag back on the bus for the sniff showed the officer’s good faith, and the exclusionary rule would not be applied. United States v. Tuton, 2018 U.S. App. LEXIS 17176 (8th Cir. June 25, 2018): Continue reading →
Posted inExclusionary rule, Good faith exception|Comments Off on CA8: Prior unlawful search of bag on bus was corrected by good faith actions of officer and exclusionary rule wouldn’t be applied
The victim here was robbed of his iPhone and backpack, and it happened under a streetlight so he got a good look at the perpetrators. The victim told the officer his cell phone number, and the officer tracked it with the “Find My iPhone” app. There was reasonable suspicion for the stop besides the cell phone ping which was but one factor under the totality. Commonwealth v. Milburn, 2018 PA Super 178 (June 22, 2018). [In today’s local paper here, a robber took a cell phone three miles before discarding it. It was tailed the same way.]
“The State argues Stopper had reasonable suspicion to detain Schooler based on: (1) the air freshener odor; (2) the multiple cell phones; (3) Schooler’s vague, evasive, and inconsistent statements about his travel plans and criminal history; and (4) his actual criminal history.” The court agrees there was reasonable suspicion, and the appellate court is reversed. State v. Schooler, 2018 Kan. LEXIS 346 (June 22, 2018).*
Posted inReasonable suspicion|Comments Off on PA: Victim was robbed of his iPhone and police tracked it to def by “Find My iPhone” app
Defendant claims in his 2255 that defense counsel was ineffective for not filing a motion to suppress a search but does not even allege the grounds for it or that he would have had standing, and it appears he didn’t. “As a result, his claim could be dismissed as inadequately developed.” Branham v. United States, 2018 U.S. Dist. LEXIS 105676 (E.D. Tenn. June 25, 2018).
Defendant essentially admits in pleadings that he voluntarily consented to talk to officers while not in custody and they were serving a search warrant on his house for child pornography. Therefore, counsel can’t be faulted for not filing a motion to suppress. Ashlin v. United States, 2018 U.S. Dist. LEXIS 105772 (E.D. Tex. June 25, 2018).*
Posted inIneffective assistance|Comments Off on E.D.Tenn.: IAC claim has to allege facts and law that the unfiled motion to suppress would have been granted
A field sobriety test is not a search. Even if it was, this was shown to be by consent. City of Leawood v. Puccinelli, 2018 Kan. App. LEXIS 35 (June 22, 2018).
This heading in the too long opinion explains it all: “Mann was adequately apprised of the nature of the special search condition governing his parole, and specifically was cognizant of the diminished expectation of privacy he enjoyed as a condition of his parole when officers conducted the parole home compliance check at issue here.” United States v. Mann, 2018 U.S. Dist. LEXIS 102449 (E.D. Mich. June 20, 2018).*
“When an application for a search warrant includes both tainted and untainted evidence, ‘the warrant may be upheld if the untainted evidence, standing alone, establishes probable cause.’” Excising the challenged information here still yields probable cause on the totality. United States v. Jones, 2018 U.S. App. LEXIS 16892 (2d Cir. June 19, 2018).
“The district court properly dismissed Todd’s unreasonable search and seizure claim against defendants Skrah and Klamath County Sheriff’s Department on the basis of claim preclusion because Todd’s claim was raised, or could have been raised, in a prior action between the parties or those in privity with them, and the prior action resulted in a final judgment on the merits.” Todd v. Skrah, 2018 U.S. App. LEXIS 17241 (9th Cir. June 25, 2018).*
The Georgia Animal Protection Act has provision for impoundment and return of animals seized by the state. When a search warrant is used, as here, that provision doesn’t apply. Bramblett v. Habersham County, 2018 Ga. App. LEXIS 399 (June 21, 2018).
“Although there was testimony that the tag light may have started working at some point during the stop (possibly after the deputy slammed the trunk shut during the search), such evidence does not demand a finding that there was no legal basis for the stop. Instead, it was for the judge to decide, based on the testimony presented and the dashcam video-recording, whether the stop was authorized due to the deputy’s observation of a traffic violation, i.e., a nonfunctioning tag light.” Partlow v. State, 2018 Ga. App. LEXIS 410 (June 21, 2018).*
Posted inAdministrative search, Standards of review|Comments Off on GA: SW obviates need to follow the hearing provisions of the Georgia Animal Protection Act which has provision for impoundment and return of animals seized under the Act
BOP IG issued an administrative subpoena for respondent to produce her BOP owned cell phone, and she refused claiming a reasonable expectation of privacy in it. First, the standard of review is narrow and limited, and the subpoena is enforceable. The subpoena is not too indefinite, and it is narrowly tailored to gather relevant information. Second, as to a reasonable expectation of privacy, assuming she has one, it isn’t reasonable. She was knew the phone was BOP owned and that she had no REP in it. United States v. Hill, 2018 U.S. Dist. LEXIS 102637 (D. D.C. June 20, 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.
