“Police officers interrupt what they reasonably believe to be a residential burglary and detain two suspects just outside the house. Having done so, can the officers thereafter lawfully enter the home—without a warrant, and without further suspicion of wrongdoing—to briefly search for additional perpetrators and potential victims? We hold that they can. In particular, we hold that the suspected burglary presents an “exigent circumstance” that justifies a warrantless entry and search.” Montanez v. Carvajal, 2018 U.S. App. LEXIS 12146 (11th Cir. May 9, 2018).
Defendant had no reasonable expectation of privacy in a union hall where he was found after a one vehicle accident. State v. Teeple, 2018-Ohio-1767, 2018 Ohio App. LEXIS 1905 (3d Dist. May 7, 2018).
Defendant was seen speeding by a VMI police officer who followed him. The actual stop was off the campus. There was probable cause for the stop and arrest, and, even if the officer was outside his jurisdiction, suppression is not the remedy. Martin v. Commonwealth, 2018 Va. App. LEXIS 128 (May 8, 2018) (unpublished): Continue reading →
Five anonymous callers claimed defendant was selling drugs. “The Government’s argument is unavailing because, as [USM] Judge Brisbois observed, ‘[i]t is objectively unreasonable for an officer with over 10 years of experience to present a search warrant affidavit to a judge when that affidavit contains only uncorroborated information from anonymous callers.’” United States v. Loud, 2018 U.S. Dist. LEXIS 77561 (D. Minn. May 7, 2018).
CI’s information that defendant would start a meth cook that evening was probable cause when it was coupled with information that defendant had amassed the materials, including a lot of pseudoephedrine, including from the state’s “meth check” system. State v. Craw, 2018-Ohio-1769, 2018 Ohio App. LEXIS 1906 (3d Dist. May 7, 2018).*
Posted inInformant hearsay|Comments Off on D.Minn.: 5 uncorroborated anonymous callers wasn’t PC
The defendant contended that the judge’s signature on the search warrant was false. The only testimony at the suppression hearing was that the judge signed it at home. The evidence supports the trial court’s finding. State v. Clayton, 2018-Ohio-1777, 2018 Ohio App. LEXIS 1910 (12th Dist. May 7, 2018).*
Defendant’s effort to show a Franks violation from omission of the officer’s knowledge of the CI fails. On the totality, the court doesn’t find a Franks violation, and probable cause would exist without it. United States v. Walker, 2018 U.S. Dist. LEXIS 76196 (E.D. Pa. May 4, 2018).*
Posted inBurden of proof, Franks doctrine|Comments Off on OH12: Def’s claim judge didn’t sign SW has zero evidentiary support
The questioning threw her off guard. She explained she had legally earned the money and she was alone. Nwaorie, who lives in Katy, Tex., became a U.S. citizen in 1994. She showed her passport, thinking perhaps they were questioning her legal status. The agents took her to a room to search her and her luggage anyway. Then they seized all $41,377 dollars.
Posted inBorder search, Forfeiture|Comments Off on WaPo: She saved thousands to open a medical clinic in Nigeria. U.S. Customs took all of it at the airport.
“[T]he common hallway of the apartment building, including the area in front of Makell’s door, was not within the curtilage of his apartment” under Jardines. United States v. Makell, 2018 U.S. App. LEXIS 12016 (4th Cir. May 8, 2018).
There was probable cause on the totality (without telling us what it was). United States v. Saunders, 2018 U.S. App. LEXIS 12015 (4th Cir. May 8, 2018)*; People v. Brooks, 2018 NY Slip Op 03319, 2018 N.Y. App. Div. LEXIS 3267 (1st Dept. May 8, 2018) (likely informant hearsay).*
Posted inCurtilage, Probable cause|Comments Off on CA4: Common hallway of apartment building not curtilage under Jardines
Defendant’s brief detention and moving him from a public area to a private area was not a seizure, even though his hands were held behind his back as he walked. United States v. Torres, 2018 U.S. App. LEXIS 11897 (9th Cir. May 7, 2018).
“Here, the transcript of the suppression hearing is devoid of any specter of coercion, threat, or force.” Consent was voluntary on the totality. United States v. Frye, 2018 U.S. Dist. LEXIS 76242 (W.D. N.Y. May 4, 2018).*
Defendant’s post-conviction claim challenging his search and seizure is barred by Stone v. Powell and his opportunity to litigate in the state courts. COA denied. Quintana v. Hansen, 2018 U.S. App. LEXIS 11848 (10th Cir. May 7, 2018).*
The search warrant for defendant’s dwelling included vehicles and “appurtenances” on the land. Defendant’s vehicle and camper were about 100′ from the dwelling, and the court finds they were not on the curtilage of the dwelling. Moreover, the good faith exception does not apply to their search. United States v. Gerdon, 2018 U.S. Dist. LEXIS 76787 (W.D. Okla. May 2, 2018).
Defense counsel wasn’t ineffective for not challenging the search that seized his guns allegedly in “violation of his God given right to bear Arms” if he chooses because he’s a felon in possession. While they weren’t on the search warrant, they were in plain view and the incriminating value was immediately apparent. Nóbrega v. United States, 2018 U.S. Dist. LEXIS 76406 (D. Me. May 7, 2018).*
The officer conducted a valid plain view. When he come up to the car window, he saw defendant gripping a TEC-9. United States v. Ziegler, 2018 U.S. Dist. LEXIS 76630 (D. Alas. May 7, 2018).*
Posted inCurtilage, Plain view, feel, smell|Comments Off on W.D.Okla.: SW for vehicles and “appurtenances” didn’t include a car and camper 100′ from house off the curtilage
Officers had an arrest warrant and took defendant into custody. A protective sweep was done and plain view observations were made, including cash in envelopes. The plain view, but without mention of the cash, was used to get a search warrant for the premises. The manipulation of the envelopes wasn’t unreasonable because their outward appearance for plain view purposes suggested drug proceeds. United States v. Sosunov, 2018 U.S. Dist. LEXIS 76796 (S.D. N.Y. May 7, 2018): Continue reading →
The government got consent to search a package for drugs. That consent did not include cutting a candle in half to find the drugs. Consent to search doesn’t include destruction of property. United States v. Swenton, 2018 U.S. Dist. LEXIS 75131 (D. Alas. May 3, 2018).
The possibility of an alleged Franks violation making its way to the grand jury testimony for the indictment isn’t enough to dismiss the indictment. “The Supreme Court has long held that ‘an indictment valid on its face’ is not subject to a challenge based on ‘the reliability or competence of the evidence presented to the grand jury.’ Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988) (citing Calandra, 414 U.S. at 344-45); …” Moreover, the motion doesn’t allege that the prosecutors had any knowledge of that. United States v. James, 2018 U.S. Dist. LEXIS 76560 (D. Nev. May 7, 2018).
Posted inFranks doctrine, Scope of search|Comments Off on D.Alas.: Consent to search doesn’t include destruction of property in the search
This search warrant was for steroids and misbranded drugs and included computers and defendant’s home. The warrant was issued with probable cause and was as particular as possible. As to the computer search, there was no constitutional requirement for a search protocol in advance. United States v. Mesika, 2018 U.S. Dist. LEXIS 76643 (N.D. Ga. May 7, 2018): Continue reading →
NYTimes: In Fight Against Violent Crime, Justice Dept. Targets Low-Level Gun Offenders. In my district, through the end of March, 200 cases were filed. Normally, 100. Granted, there are many multi-defendant cases, but the AUSAs told me that they’re taking all felon in possession cases, even dispensing with state drug charges in the process which are dumped between jurisdictions. Continue reading →
Posted inUncategorized|Comments Off on NYTimes: In Fight Against Violent Crime, Justice Dept. Targets Low-Level Gun Offenders
A verbal judicial order to enter a house to take a child into custody is the equivalent of a warrant. Duran v. Muse, 2018 U.S. App. LEXIS 11481 (10th Cir. May 3, 2018).
Motion to suppress was untimely and denied for that reason alone. In case that’s found an abuse of discretion, it would be denied on the merits, too. It was based on probable cause. United States v. Spencer, 2018 U.S. Dist. LEXIS 75499 (S.D. Ohio May 4, 2018).*
Posted inBurden of pleading, Warrant requirement|Comments Off on CA10: A verbal judicial order to enter a house to take a child into custody is the equivalent of a warrant
Defendant was suspected of making a pressure cooker bomb, which was found. (1) A protective sweep was proper to determine whether there were others in the house. (2) The house was owned by defendant’s father, and defendant merely lived there. Even crediting their testimony that defendant could lock his door and keep others out and that his parents never went in there uninvited, the presumption is that the parent has apparent authority to consent. United States v. Guillen, 2018 U.S. Dist. LEXIS 75832 (D. N.M. May 4, 2018). As to body camera: Continue reading →
Posted inApparent authority, Protective sweep|Comments Off on D.N.M.: Protective sweep valid to look for other pressure cooker bombs; parent has presumptive apparent authority to consent to search of adult child’s room
Defendant was stopped for passing on a double solid line. The officer called out through the vehicle PA for him to get out of the car, but he first fished around moving things. When the officer got to the window, he asked “what do you have there?” [“Just some weed.”] wasn’t subject to Miranda under Berkemer. People v. Registe, 2018 V.I. LEXIS 48 (May 4, 2018).
Considering video and comparing testimony, the reference to blasting caps allegedly being in defendant’s home was false, but not intentionally or recklessly so. [This was discussed at fair length.] Even so, it wasn’t material to the probable cause finding. United States v. Ray, 2018 U.S. Dist. LEXIS 75391 (W.D. Okla. May 4, 2018).*
Posted inFranks doctrine, Seizure|Comments Off on VI: In a traffic stop, def delayed in getting out and made furtive movements; officer asked “what do you have there?” Answer [“Just some weed.”] wasn’t 5A violation under Berkemer
Officers did not violate defendant’s privacy rights in looking under the door from 5′ away to see that he was masturbating and ordering him out. The officers’ look violated no “social norms or [did it] significantly impair defendant’s interest in freedom from scrutiny.” State v. Wilson, 291 Ore. App. 581, 2018 Ore. App. LEXIS 533 (May 4, 2018): Continue reading →
Posted inReasonable expectation of privacy|Comments Off on Or: Officers didn’t violate def’s privacy by looking under bathroom stall door to see him masturbating
The narcs timed execution of a search warrant for when defendant’s heroin dealer would arrive. He was near the front door when the police arrived, and he could be detained under Summers and Bailey. United States v. Jones, 2018 U.S. Dist. LEXIS 75932 (E.D. Va. May 4, 2018).
Nothing was seized in the search warrant for defendant’s property that was used at his trial. Therefore, counsel couldn’t be ineffective for not challenging the probable cause for the search warrant. United States v. Fuentes, 2018 U.S. Dist. LEXIS 75314 (W.D. Wash. May 4, 2018).*
"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.
