“The body camera recording clearly shows that Defendant denied any ownership interest in the duffel bag at the time of the stop. As such, the Court finds that Defendant voluntarily abandoned the duffel bag and therefore lost any reasonable expectation of privacy he had in it at the time of his denial. Accordingly, Defendant is precluded from seeking to suppress the firearms recovered during Sgt. Napier’s search of the duffel bag on these grounds.” Facts were otherwise developing during the traffic stop that became reasonable suspicion for extending the stop. United States v. Chafin, 2018 U.S. Dist. LEXIS 93129 (S.D. W.V. June 4, 2018).*
A warrant can become stale between issuance and execution, but this one for marijuana usage in the blood isn’t. “Therefore, evidence of Defendant’s drug use between August 22, 2017 and August 30, 2017 would be useful as evidence that Defendant regularly used drugs at the time of his alleged firearm possession.” United States v. Leick, 2018 U.S. Dist. LEXIS 93025 (N.D. Iowa June 2, 2018).*
Posted inStaleness, Standing|Comments Off on S.D.W.Va.: Def’s admissions on body camera duffle bag wasn’t his denies him standing
Defendant’s stop started with speeding 85 in a 50, and the reasonable suspicion progressed to probable cause he was under the influence. “The Court also finds that Mr. Kamwani’s performance on the field sobriety tests, the odor of alcohol, the glassy eyes, the speeding violation, and the PBT test failure constituted probable cause that Mr. Kamwani had committed a DUI offense. Reviewing the warrant, the Court finds that the Justice of the Peace Judge had a ‘substantial basis’ for concluding that probable cause existed. Accordingly, the Court holds that the warrant to draw blood is valid.” State v. Kamwani, 2018 Del. Super. LEXIS 237 (June 1, 2018).*
Federal convict’s pro se complaint alleging illegal search, among other things, was time barred and properly dismissed. A defendant’s denials is not a continuing violation extending limitations. Sensi v. State of Florida Officers of the Court, 2018 U.S. App. LEXIS 14604 (11th Cir. June 1, 2018).*
Despite officers’ deposition testimony that they announced before entry shooting plaintiff nine times (with $6-17M in medicals over his lifetime), the plaintiff’s own surveillance video of the door shows nobody’s lips moving. Announcement is a question for the jury. Moreover, defendants show nothing to support their claim of exigent circumstances for not announcing as an alternative argument. There are also fact questions for trial on whether plaintiff was armed as the officers said. First they said he fired at them, but his gun hadn’t been fired. Then they said he pointed the gun at them. The officers do not get qualified immunity for the alleged failure to knock-and-announce which is fact dependent. The city’s indifference overcomes Monell for city liability. Betton v. Knowles, 4-15-CV-04638-AMQ-KDW (D. S.C. May 21, 2018) (R&R).
Posted inKnock and announce, Qualified immunity|Comments Off on WaPo: ‘The Watch’ Blog: A South Carolina anti-drug police unit admitted it conducts illegal no-knock raids
Defendant was stopped for having studded tires after May 1st, and another warrant surfaced when checking on him. Despite the officer’s discretion to issue a summons or arrest, he still had the authority to conduct a patdown if there was reasonable suspicion. Here, defendant admitted having a knife on him [it is, after all Alaska]. The search here is not limited by Knowles. McGuire v. State, 2018 Alas. App. LEXIS 111 (June 1, 2018).
Defendant wasn’t yet seized when he was asked about a blood test. There was reasonable suspicion for the field sobriety test. Hurlburt v. State, 2018 Alas. App. LEXIS 110 (June 1, 2018).*
Posted inReasonable suspicion|Comments Off on AK: Def’s admission he had a knife during traffic stop justified a further patdown
It is difficult for law enforcement officers to describe in the search warrant a protocol for searching electronic data from a cell phone, whether it be a mechanical search or an electronic search. In fact, Cellebrite didn’t work on one of the phones. The fact significant amounts of personal information not related to the crime under investigation are seen isn’t determinative, and sometimes it has to be at least cursorily examined to determine whether it is within the warrant. United States v. Gatto, 2018 U.S. Dist. LEXIS 92142 (S.D. N.Y. June 1, 2018).
There was probable cause for the search warrant for defendant’s DNA for interstate transportation of his own daughters for illicit sex. “The critical question … of course was not whether defendant was guilty of abusing his daughter; the question was whether there was probable cause to believe defendant’s DNA sample would help to confirm this allegation.” United States v. Flucas, 2018 U.S. Dist. LEXIS 92308 (E.D. Cal. June 1, 2018).*
Posted inCell phones, Warrant execution|Comments Off on S.D.N.Y.: Cell phone search protocol can’t be described in SW in advance
There must be nexus to search a drug defendant’s car. There is no automatic right to search it without some indication the car was involved in drugs. State v. Valentin, 2018 Del. Super. LEXIS 236 (May 29, 2018): Continue reading →
Posted inNexus|Comments Off on DE: Nexus applies to vehicles; no showing car was involved in drugs, and no automatic search of drug def’s car
2255 petitioner filed a successor petition alleging that a civil case he filed developed impeachment material that would undermine the original probable cause finding. This isn’t new evidence of innocence for a successor petition. In re Mohammed, 2018 U.S. App. LEXIS 14526 (6th Cir. June 1, 2018).
Playpen warrant sustained. United States v. Jean, 2018 U.S. App. LEXIS 14590 (8th Cir. June 1, 2018).*
Defense counsel was not ineffective in arguing the motion to suppress. There was probable cause for the search warrant and the good faith exception would have applied in any event. Khan v. United States, 2018 U.S. Dist. LEXIS 91535 (D. N.M. May 31, 2018).*
Posted inIneffective assistance, Probable cause|Comments Off on CA6: New evidence in civil case to impeach officers’ prior suppression hearing testimony isn’t ground for a successor 2255
The police ping request to locate defendant’s phone to locate him was based on clear exigent circumstances. Thus, it did not violate the Stored Communications Act, 18 U.S.C. § 2702(c)(4). State v. Malveaux, 2018 La. App. LEXIS 1082 (La. App. 3 Cir. May 30, 2018).
Defendant had no reasonable expectation of privacy in the stolen car he was driving. Commonwealth v. Roden, 2018 Ky. App. LEXIS 154 (June 1, 2018).
A typographical error in a date of an occurence in the affidavit for search warrant for the year (2013 instead of 2014) could be overlooked in context of the affidavit as a whole which showed it a mere typo. Commonwealth v. Leed, 122 MAP 2016 (Pa. June 1, 2018). Following Greenstreet v. State, 898 A.2d 961 (Md. 2006): Continue reading →
Posted inStaleness, Warrant requirement|Comments Off on PA: Date typo in affidavit for SW could be corrected in context of totality
In this article on Criminal Law and Procedure, Barry Kamins looks at criticism of ‘People v. DeBours,’ the case establishing the level of intrusion allowed during police encounters with citizens. Continue reading →
Posted inReasonable suspicion, Seizure|Comments Off on NYLJ: ‘DeBour’ Faces Increased Criticism: Where Do We Go From Here?
“The district court also did not err in granting summary judgment in favor of the individual defendants on Strong and Byers’ claims that the detention violated their Fourth Amendment rights. Officers may detain all persons present when a warrant is executed and during the search. Muehler v. Mena, 544 U.S. 93, 98 (2005). Moreover, Strong and Byers cite no evidence in support of their argument that their detention was unconstitutionally prolonged. See id. at 102.” Strong v. City of Eugene, 2018 U.S. App. LEXIS 14375 (9th Cir. May 31, 2018).
The entry into defendant’s hotel room without a search warrant to freeze the location did not violate the Fourth Amendment. The decision to seek a search warrant had essentially already made, and the observations in the room did not enter into the application for the warrant. United States v. Gomez, 2018 U.S. Dist. LEXIS 88989 (N.D. W.Va. May 29, 2018).* Substantially in accord: United States v. Porter, 2018 U.S. Dist. LEXIS 92009 (M.D. Tenn. June 1, 2018).*
Voluntariness of consent in Colorado is proved by a preponderance of the evidence, not by clear and convincing evidence. People v. Delage, 2018 CO 45, 2018 Colo. LEXIS 435 (May 30, 2018).
The CI gave probable cause to stop defendant under the collective knowledge doctrine. United States v. Edwards, 2018 U.S. App. LEXIS 14348 (8th Cir. May 31, 2018).*
2255 petitioner’s claim officers didn’t have a search warrant was just wrong. And his admissions he had meth on him at the time of arrest led to his consent. United States v. Tafoya, 2018 U.S. Dist. LEXIS 89928 (D. N.M. May 30, 2018).*
Posted inBurden of proof, Consent, Probable cause|Comments Off on CO: Voluntariness of consent is proved by a preponderance of the evidence, not by clear and convincing evidence
Drug raid at a “narcotics” house with MRAP vehicle and SWAT team turns up nothing; gets viewed 3.4m times. Police raids consistently show up on social media or on the local news for the police agencies involved to prove they are doing their jobs and keep us in fear of “drug dealers.” The fact it was Facebook is an example, and this isn’t new. Continue reading →
Posted inWarrant execution|Comments Off on Sputnik News: US Sheriff Wildly Exaggerates Drug Bust for Social Media Fame (VIDEO) [raid turns up nothing]
The specific argument the search warrant was defective on its face wasn’t encompassed within the motion to suppress, so it’s waived for appeal. United States v. Robinson, 2018 U.S. App. LEXIS 14097 (9th Cir. May 29, 2018).
The basis of the search warrant was electronic sexual solicitation of a child, and defendant’s own text messages provided a substantial basis for searching his home for further evidence of the crime. State v. Gundy, 2018 Minn. App. LEXIS 263 (May 29, 2018).*
Habeas petitioner can’t show ineffective assistance of counsel for counsel’s failure to file a motion to suppress search of his cell phone. First, it was searched with a search warrant and there was probable cause or at least good faith. Second, it wouldn’t have affected the outcome because of other evidence. Pigg v. Kelley, 2018 U.S. Dist. LEXIS 89436 (E.D. Ark. May 30, 2018).*
ARLINGTON, Texas — The mother of a black Texas man whom police fatally shot last year said Wednesday that sheriff’s deputies recently turned up at her mother’s home to serve a warrant for the dead man’s arrest.
Dee Crane told The Associated Press that Tarrant County deputies came to the house in Arlington this month, upsetting her family “all over again.”
Posted inUncategorized|Comments Off on WaPo: Texas woman says warrant presented for son killed by police
"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.
