A later issued search warrant doesn’t retroactively justify a stop the defense showed to be without a legal basis. The state carried the burden of proof throughout, and it could not shift the burden to the defense by the issuance of the search warrant. State v. Atwood, 2018 N.J. LEXIS 356 (Mar. 29, 2018).
Defense counsel’s not pursuing a suppression motion about defendant’s cell phone was a reasonable strategic choice and essentially didn’t matter because of the other evidence the government had connecting defendant to the cell phone that had nothing to do with its seizure. Barnes v. United States, 2018 U.S. Dist. LEXIS 53306 (S.D. Fla. Mar. 29, 2018).
Defense counsel’s failure to refile a motion to suppress after one had already been denied wasn’t ineffective assistance of counsel because it was futile to file it. Loughry v. United States, 2018 U.S. Dist. LEXIS 52915 (S.D. Ind. Mar. 29, 2018).*
Posted inBurden of proof, Ineffective assistance|Comments Off on NJ: Vehicle SW doesn’t sanitize the prior illegal stop or shift the burden to defense
A state AG’s subpoena was issued for a prisoner’s medical records, but not in a criminal investigation. Enough cases, especially in this circuit, hold there is a reasonable expectation of privacy in medical records to overcome qualified immunity. In addition, the AG apparently issued the subpoena without lawful authority in the state because there was no investigation going on. The issue is serious enough to require additional briefing. In addition, the parole law’s consent search provision doesn’t apply. Kurtenbach v. Jackley, 2018 U.S. Dist. LEXIS 53208 (D. S.D. Mar. 29, 2018): Continue reading →
Posted inSubpoenas / Nat'l Security Letters|Comments Off on D.S.D.: Issuance of a state’s prosecutor’s subpoena for an ulterior motive states a claim
Defendant was visiting a friend when the friend’s PO showed up for an unannounced search. Defendant was detained, too. His detention was unreasonable. People v. Gutierrez, 2018 Cal. App. LEXIS 282 (5th Dist. Mar. 29, 2018).
This defendant challenged the search warrant for his cell phones as issued without probable cause. Instead, “We decide this case on Leon grounds. Even if the warrant here never should have issued-a question we express no opinion on-the affidavit here is ‘not so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’” United States v. Merriweather, 2018 U.S. App. LEXIS 7727 (6th Cir. Mar. 28, 2018).* (The good faith exception now is relegated to unpublished opinions.)
Two officers on bike patrol rode through an apartment complex and smelled burning marijuana. They followed their noses and sniffed at defendant’s place and knocked. The district court erred in suppressing because it read too much into Jardines. The officers did no more than any passersby could have done. “Just as law enforcement officers are not compelled to ‘shield their eyes’ from plainly visible criminal activity, Ciaraolo, 476 U.S. at 213, Officers Lyons and Marshall were not required to plug their noses as they passed Mitchell’s apartment. Because the officers’ sniff outside Mitchell’s apartment was not a search, we must reverse.” United States v. Mitchell, 2018 U.S. App. LEXIS 7765 (4th Cir. Mar. 28, 2018).
Defendant lived in the house with his sister-in-law for two months prior to the search, and he got mail there. He had standing. People v. Sweat, 2018 NY Slip Op 01786, 2018 N.Y. App. Div. LEXIS 2127 (4th Dept. Mar. 16, 2018).*
Posted inStanding|Comments Off on CA4: Jardines didn’t bar officers from following burnt marijuana smell to def’s apartment
The police were in defendant’s house and observed guns. They didn’t realize that he was a felon in possession until two weeks later. Then they sought a warrant 23 days after seeing the guns. That wasn’t unreasonable considering the fact that guns are kept “and are of continuing utility to the owner.” (This arose in the context of an IAC claim. Since defendant would have lost on the merits, there’s no IAC.) State v. Ash, 2018-Ohio-1139, 2018 Ohio App. LEXIS 1226 (7th Dist. Mar. 15, 2018).
The totality here supported exigent circumstances warrantless taking of defendant’s blood. State v. Zalcberg, 2018 N.J. LEXIS 354 (Mar. 27, 2018).*
The search warrant in this case did not authorize a search of a vehicle that arrived at the premises during the search. There was, however, independent probable cause for a search of the vehicle under the automobile exception. United States v. Garcia, 2018 U.S. Dist. LEXIS 51406 (D. Me. Mar. 28, 2018).
The decision to tow a “motorcycle was made on the basis of safety,” and “the inventory search of the motorcycle was conducted pursuant to standardized police procedures and that it was not done in bad faith or for the sole purpose of investigation.” Thus, the officer “may keep his eyes open for potentially incriminating items that he might discover in the course of the inventory search. Officer Cooney’s discovery of a plastic bag containing a large amount of money of which defendant Nevatt denied any knowledge certainly appears potentially incriminating and warranted Officer Cooney’s call to Detective Miller.” United States v. Nevatt, 2018 U.S. Dist. LEXIS 51957 (W.D. Mo. Mar. 8, 2018).*
Posted inInventory, Scope of search|Comments Off on D.Me.: SW didn’t authorize search of visitor’s cars arriving after search started
The delay in getting a search warrant for defendant’s cell phones was caused in part by the parties’ negotiations over pre-indictment resolution, and it was reasonable. United States v. Boudreau, 2018 U.S. Dist. LEXIS 48686 (D. R.I. Mar. 24, 2018).*
The egregious violation of the Fourth Amendment standard for suppression in civil deportation cases wasn’t met in this case. There was a factual basis here for further inquiry after the stop because the damage to the steering column of the car strongly suggested it was a stolen car. Sanchez v. Sessions, 2018 U.S. App. LEXIS 7623 (4th Cir. Mar. 27, 2018).*
Posted inExclusionary rule, F.R.Crim.P. 41|Comments Off on D.R.I.: Delay in getting cell phone SW as attributed to parties’ settlement discussions
Defendant is a Nigerian who was living in Kuala Lumpur, Malaysia. He was arrested on an extradition warrant from the United States for computer hacking of the Georgia Tech computer system. His computers and media were seized at the time of his arrest. Royal Malaysian Police (RMP) acting on an extradition warrant doesn’t make this a joint venture in the search, and the Fourth Amendment does not apply. United States v. Olaniyi, 2018 U.S. Dist. LEXIS 50592 (N.D. Ga. Feb. 15, 2018): Continue reading →
Posted inForeign searches|Comments Off on N.D.Ga.: Malaysian police seizing evidence on execution of an extradition warrant to the U.S. wasn’t a “joint venture” with U.S.
Defendant’s cross-examination of officers on the alleged lack of quality of their investigation opened the door to why they were there, the CI’s story. The trial court mitigated the prejudice by a limiting instruction. People v. Brown, 2018 NY Slip Op 02134, 2018 N.Y. App. Div. LEXIS 2013 (1st Dept. Mar. 27, 2018).
Police were investigating a heroin overdose, and the arrival of a car at the scene gave reasonable suspicion to believe that a crime had occurred. That turned into probable cause. United States v. McCrackin, 2018 U.S. Dist. LEXIS 51827 (S.D. Ohio Mar. 28, 2018).*
Defense counsel wasn’t ineffective because the search warrant wasn’t unlawful. Coleman v. United States, 2018 U.S. Dist. LEXIS 51231 (D. Md. Mar. 28, 2018).*
Posted inIneffective assistance, Informant hearsay|Comments Off on NY1: Cross-exam of police officers’ alleged deficient investigation opened door to CI’s information
The City sought a subpoena to HomeAway to produce records of people that arrange occasional rentals of their homes or apartments for purposes of collecting sales taxes. HomeAway contends that it merely enables people to connect with each other and they don’t arrange transactions through them. The City’s request complies with the Stored Communications Act, and no emails are sought. Merely names, addresses, and other identifiers so the City can follow up. HomeAway doesn’t have standing to assert the rights of its customers to the information. City & County of San Francisco v. HomeAway, 2018 Cal. App. LEXIS 274 (1st Dist. Mar. 28, 2018).
A Playpen warrant where the district court suppressed is reversed. 20,000 child pornography images were found in the search of defendant’s computer. United States v. Tagg, 2018 U.S. App. LEXIS 7603 (6th Cir. Mar. 27, 2018).*
A “catch all” phrase that permitted seizure of that which was found in the course of a valid search was merely a restatement of the plain view doctrine, and that doesn’t justify suppression. Defendant’s other scope of search claim was waived by not presenting it to the trial court. Jones v. State, 2018 Miss. App. LEXIS 142 (Mar. 27, 2018).
Claim that defendant’s cell phone was searched without a warrant wasn’t presented to the trial court and can’t be raised on appeal. Britton v. State, 2018 Miss. App. LEXIS 139 (Mar. 27, 2018).*
There was probable cause for issuance of the search warrant based on statements of children that defendant had shown them pictures of other naked children. Lowe v. State, 2018 Miss. App. LEXIS 141 (Mar. 27, 2018).*
Posted inBurden of pleading, Plain view, feel, smell, Probable cause|Comments Off on MS: “Catch all” phrase in SW that permitted seizure of that which was found in plain view was merely a restatement of the plain view doctrine
Police received a call about an emergency at defendant’s house. Once there, defendant came outside and promptly lied about anybody else being inside because they’d seen somebody just enter, and there were shell casings in the front yard corroborating that a gun had been fired. The entry was justified. United States v. Ward, 2018 U.S. App. LEXIS 7651 (9th Cir. Mar. 27, 2018).*
Defendant waived any Fourth Amendment claim by pleading guilty. Even if the search claim had gone to the merits he would have lost because there was probable cause for the stop and search. Boyd v. United States, 2018 U.S. Dist. LEXIS 50550 (W.D. N.C. Mar. 27, 2018).*
Posted inEmergency / exigency, Ineffective assistance|Comments Off on CA9: Shell casings in front of house corroborated shooting call police received then def “blatantly lied” about somebody else in house
A probable isolated heroin sale at a house doesn’t show probable cause to believe that defendant was a “high volume” heroin dealer as alleged in the affidavit. The reference to the prior delivery doesn’t allege whether the choice of location was the defendant’s or the CI’s, and that’s critical to whether defendant was a dealer or not. Reversed. State v. Van Osdol, 290 Ore. App. 902, 2018 Ore. App. LEXIS 350 (Mar. 24, 2018)
Officers seized a knife off defendant during a stop. Nothing in the facts or case law suggests that taking the knife for the time being led him to admit to possession of drugs. State v. Rhyne, 290 Ore. App. 827, 2018 Ore. App. LEXIS 343 (Mar. 24, 2018).*
Posted inProbable cause|Comments Off on OR: The affidavit for warrant described def as “high volume” heroin dealer; in PC determination, whose idea was it to deal at house was important: CI or def? That’s important
Where the computer child pornography warrant required the electronic media be searched in 14 days and it was searched in two days there was no prejudice. The warrant was not general. The tendency in the cases is to permit broader more general warrants where child pornography is the subject of the search because they can be in hidden folders. United States v. Koutsos, 2018 U.S. Dist. LEXIS 50387 (S.D. Miss. Mar. 27, 2018).*
The court finds defendant clearly consented to the search of his premises without having to decide whether it was valid as a parole search. United States v. Frye, 2018 U.S. Dist. LEXIS 48379 (W.D.N.Y. Mar. 23, 2018).*
Based on a detailed CI’s tip, the officer had reasonable suspicion defendant was involved in a recent robbery and was armed, and that justified the frisk. United States v. Ferriera, 2018 U.S. Dist. LEXIS 47905 (D. Minn. Mar. 23, 2018).*
The fact the City of Schenectady’s rental building inspection code says that the inspectors may get a warrant instead of shall doesn’t state a Fourth Amendment violation. There’s no evidence that the city has applied it unconstitutionally yet. Hafez v. City of Schenectady, 2018 U.S. Dist. LEXIS 49918 (N.D. N.Y. Mar. 27, 2018).
It was reasonable for the police to believe that defendant’s wife consented to a search over his non-consenting daughter. Even if it was error, it was harmless. State v. Bowens, 2018 Mo. App. LEXIS 312 (Mar. 27, 2018).*
Posted inAdministrative search, Apparent authority|Comments Off on N.D.N.Y.: Rental inspection code use of may not shall to get admin. warrant not 4A violation
The government didn’t get consent to enter. The officers pounded on the door and entry was by acquiescence. The defendant was photographed. “In both photographs, she is wearing a sheer nightgown. Her jaw is slack and her eyes are wide open in a classic ‘deer-in-the-headlights’ pose. In the Court’s view, she appears frightened and overwhelmed.” United States v. Marchi, 2018 U.S. Dist. LEXIS 46616 (D. Conn. Mar. 21, 2018): Continue reading →
Posted inConsent|Comments Off on D.Conn.: Def didn’t consent; in police photographs “Her jaw is slack and her eyes are wide open in a classic ‘deer-in-the-headlights’ pose. In the Court’s view, she appears frightened and overwhelmed.”
The search authorization was valid for text messages between defendant and a supposed 14-year-old girl. The AFOSI investigator found child pornography in what was thus found to be plain view. Even if, arguendo, the officer was looking for child pornography, the search wasn’t invalid. “As to the application of the inevitable discovery exception, the military judge was ‘satisfied that the Magistrate would have granted the expanded Search Authorization’ based on the image or description provided. Again, we agree.” United States v. Maske, 2018 CCA LEXIS 144 (A.F. Ct. Crim. App. Mar. 25, 2018).
A janitor working in an office building hid a camera in the women’s bathroom, and actually captured video of many women. The camera was found, it was narrowed to him, and his house was searched and video seized. He bailed out and fled the country. Those who couldn’t prove their images were captured could still maintain an intrusion on seclusion claim, following other states. The tort of intrusion of seclusion derives from the Fourteenth Amendment and common law. Friedman v. Martinez, 2018 N.J. Super. LEXIS 49 (Mar. 23, 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.
