Defendant’s vehicle matched the description of a bank robbery suspect’s truck in terms of the color, size, make, and model, and the defendant matched the suspect’s description in terms of his gender, race, and clothing. That was reasonable suspicion. State v. Wilson, 2018-Ohio-902, 2018 Ohio App. LEXIS 964 (11th Dist. Mar. 12, 2018).
The CI here was identified and had a record. That information corroborated information already collected by the police. “Moreover, Gamble’s conduct upon officers’ arrival at his residence prior to his detention (lying to law enforcement about not being home, and then exiting the residence approximately 45 minutes after officer’s initial arrival) represents a reasonable and articulable suspicion for law enforcement to detain Gamble.” State v. Gamble, 2018-Ohio-895, 2018 Ohio App. LEXIS 945 (3d Dist. Mar. 12, 2018).*
Posted inInformant hearsay, Reasonable suspicion|Comments Off on OH11: Def’s vehicle and occupants matching description of bank robbery getaway car and suspects was RS
The court declines to extend the state’s constitution to prohibit trash searches permitted by the Fourth Amendment. While other state courts have done so, this state has not yet, and that’s for the state supreme court. Another district had also declined. State v. Frye, 2018-Ohio-894, 2018 Ohio App. LEXIS 949 (3d Dist. Mar. 12, 2018).*
Defense counsel’s failure to pursue a Franks motion wasn’t ineffective assistance of counsel. Viewing the merits of the claim in detail, he’d have lost on the merits. Therefore, no Strickland prejudice. Price v. United States, 2018 U.S. Dist. LEXIS 42012 (S.D. Fla. Mar. 13, 2018).*
Officers received detailed information in May 2017 of several being involved in the drug trade in April 2017. This resulted in a search warrant of others. Another CI provided information about June 2017. “In addition to Defendant being seen in the possession of drugs and large amounts of cash in recent months, Officer Lepinski conducted an ‘Ion Scan’ swab on Defendant’s door knob 72 hours before applying for the search warrant, which tested positive for the presence of cocaine. (Ex. 1 at 3.) This information suggests that the drug enterprise was still ongoing, and as a result, establishes a ‘fair probability’ that evidence of drug trafficking would be found in Defendant’s apartment. If the other information in the affidavit was stale due to the passage of time, this new information refreshed the existence of probable cause.” Moreover, the good faith exception would apply. United States v. Kline, 2018 U.S. Dist. LEXIS 41033 (D. Minn. Feb. 23, 2018),* adopted 2018 U.S. Dist. LEXIS 39619 (D. Minn. Mar. 12, 2018).* [What about officers being on the curtilage to scan the door knob? How is this different than the dog sniff in Jardines?]
Posted inStaleness|Comments Off on D.Minn.: Older information about drugs confirmed by an ion scan of door knob 72 hours before SW not stale
New Draft Article: “Cross-Enforcement of the Fourth Amendment” by Orin Kerr on SSRN.
The surprising uncertainty when the Fourth Amendment meets federalism. From Volokh Conspiracy: Continue reading →
Posted inUncategorized|Comments Off on New Draft Article: “Cross-Enforcement of the Fourth Amendment”
Defendant was a suspect in having a stolen pop-up camper on his property. The victim saw it and called the police. The police entered to look at the serial number on the camper, but it was curtilage under Dunn. The officer’s entry on the property violated Jardines because he entered to search first and not to go to the door as any other visitor would. Thus, he violated the implied license granted by Jardines. State v. Chute, 2018 Minn. LEXIS 105 (Mar. 14, 2018): Continue reading →
Posted inCurtilage|Comments Off on MN: Officer’s entry on def’s property to look at serial number of an allegedly stolen camper violated curtilage; entry suppressed
The CSO shooting plaintiff’s decedent in the courtroom was reasonable under all the circumstances as a matter of law, shooting him four times in quick succession after he came over the rail around the witness box. Decedent grabbed defense counsel’s pen and ran to the witness box and lunged for the shackled witness testifying against decedent in a case involving crimes of violence. He actually fell into the witness box, but the witness got away from his reach. The shooting was in 2014, and the video was released after the motion to dismiss was granted. Angilau v. United States, 2018 U.S. Dist. LEXIS 39379 (D. Utah Mar. 9, 2018): Continue reading →
Posted inExcessive force|Comments Off on D.Utah: Shooting of def in court attempting to stab witness on stand with a pen was reasonable use of force
Defendant was detained and being interviewed at the local DA’s office. She’d rummaged in her purse without restriction, and it was open on the table. She looked at her cell phone for the time and commented that she had to go pick up her daughter that afternoon. They wouldn’t let her go because of two outstanding warrants for something else. When she said she was considering lawyering up, they took her purse and inventoried it. The “inventory” of her purse was unreasonable. State v. Hummel, 2018 N.J. LEXIS 273 (Mar 13, 2018). Summary by the court: Continue reading →
Posted inInventory|Comments Off on NJ: Def was interrogated in DA’s office; inventory of her purse after lawyering up was unreasonable
“Examining the facts in the light most favorable to plaintiff, the non-moving party on summary judgment, the panel assumed that the police officer did indeed point his gun at plaintiff’s head and threatened to kill him. The panel held that under the circumstances, defendant’s use of force in arresting plaintiff was not objectively reasonable. The panel held that where, as in this case, officers have an unarmed felony suspect under control, where they easily could have handcuffed the suspect while he was sitting on the squad car, and where the suspect is not in close proximity to an accessible weapon, a gun to the head constitutes excessive force under the Fourth Amendment. [¶] The panel nevertheless held that although the use of excessive force violated plaintiff’s constitutional rights, defendant was entitled to qualified immunity because plaintiff’s right not to have a gun pointed at him under the circumstances was not clearly established at the time the events took place.” [Summary by the court.] Thompson v. Rahr, 2018 U.S. App. LEXIS 6191 (9th Cir. Mar. 13, 2018).
Defendant’s cell phone was seized at the border then accidentally destroyed by the government while getting a search warrant. No bad faith; no due process violation under Arizona v. Youngblood. United States v. Manjarrez, 2018 U.S. App. LEXIS 6225 (9th Cir. Mar. 13, 2018).*
Posted inDue process, Excessive force, Qualified immunity|Comments Off on CA9: Officer putting gun to head of handcuffed compliant suspect and threatening to kill him was excessive force, but QI applied
Defendant worked for a tree service that had a rural place where they burned tree debris. There was a broken down trailer on the property that had missing walls, partially missing roof and a rotting floor where defendant changed clothes. The trailer had water once, but not in a while. Defendant was accused of having a meth lab inside, and the police came upon it, and people fled. “We are not persuaded of a societal expectation of privacy in a partially collapsed, uninhabited, and dilapidated trailer which is not used as a residence or for legitimate commercial purposes and is also wholly unsecured and left open to the public and the elements. This finding is even stronger when, as here, the party claiming the privacy interest does not have a personal proprietary, residential, or occupational interest in the building.” State v. Stufflebean, 2018 Mo. App. LEXIS 258 (Mar. 13, 2018).
The officers had reasonable suspicion on the totality for detaining defendant long enough to get a drug dog there. United States v. Thompson, 2018 U.S. Dist. LEXIS 39906 (E.D. La. Mar. 12, 2018),*
Posted inReasonable expectation of privacy|Comments Off on MO: No REP in a dilapidated broken down trailer on rural property without any secure walls, roof, or floor
Plaintiff had a conversation near a malfunctioning Motorola handheld radio that transmitted their conversation to the Illinois State Police that was recorded in due course, and then the conversation was passed on resulting in job discipline. The recipients did not violate any Fourth Amendment rights in recording it in the first place and then passing it on. Lawlor v. Metro. Water Reclamation Dist. of Greater Chi., 2018 U.S. Dist. LEXIS 40716 (N.D. Ill. Mar. 13, 2018): Continue reading →
Posted inSearch|Comments Off on N.D.Ill.: Accidentally transmitted private conversation wasn’t a search
Texas’s sanctuary cities law (SB4) is not enjoined pending trial. Plaintiffs do not show that the law is unconstitutional in all its applications. City of El Cenizo, Texas v. State of Texas, 17-50762 (5th Cir. Mar. 13, 2018): Continue reading →
Posted inImmigration arrests|Comments Off on CA5: TX sanctuary cities law is not enjoined pending trial; law not shown unconstitutional in all its applications
The 2008 CSLI warrant here was based on a “conclusory statement” of witness statements being credible and “bereft of the factual details required to establish probable cause.” It had to be suppressed. (Based on Fourth Amendment and state constitution.) Commonwealth v. Fredericq, 2018 Mass. App. LEXIS 29 (Mar. 12, 2018): Continue reading →
An alternative interpretation of a witness’s testimony at a suppression hearing not drawn by the judge hearing the motion doesn’t permit reversal. Commonwealth v. Gonzalez, 2018 Mass. App. LEXIS 28 (Mar. 12, 2018).*
Plaintiff’s complaint against a judge for an alleged false arrest caused by a nonjudicial report of an alleged crime survives a claim of absolute judicial immunity. Cossio v. Tourtelot, 2018 U.S. App. LEXIS 6080 (7th Cir. Mar. 12, 2018).*
Not filing a motion to suppress is not ineffective assistance of counsel per se. Here, [analyzing it backwards,] the good faith exception would have applied despite petitioner’s argument the affidavit for search warrant was so lacking in probable cause that reliance on it was unreasonable. Because, after all, there was great detail in the affidavit. Therefore, it was not lacking. [In other words, determining probable cause is too hard, so I default to the good faith exception.] Dunnng v. United States, 2018 U.S. Dist. LEXIS 39551 (S.D. Ala. Mar. 12, 2018) (R&R).*
Defendant challenged the search for lack of probable cause of the search history of his computer that produced evidence he searched for violent pornographic videos that matched how the victim was killed. There was direct evidence he was involved in the murder, DNA put him there, and he made a jail house confession. “Finally, in addition to the physical evidence and the confession, there was considerable circumstantial evidence establishing Kidder had both the motive and the opportunity to commit the crimes.” This was harmless error if error at all. State v. Kidder, 299 Neb. 232, 2018 Neb. LEXIS 42 (Mar. 10, 2018).* [Besides: Between the “soft standard” of probable cause and the good faith exception, lack of probable cause isn’t an issue one can ever expect to prevail on. People do, but hardly ever.]
Defendant framed the issue that the drug dog alerted inside his car, but there was evidence that the dog alerted outside first. Crediting that finding, the car was searched with probable cause, and the court does not have to consider the entry into the car. Harbaugh v. State, 2018 Ind. App. LEXIS 91 (Mar. 10, 2018).*
Posted inDog sniff, Standards of review|Comments Off on NE: Because of direct evidence def was involved in crime, computer search history was harmless error, if error at all
Defendant lacked standing in the car a gun was found in. He was free to use the car when he wanted, but he wasn’t at the time of the search. It was his grandfather’s car, there was one key, and he had to borrow the key to use it. At the time of the search, he’d returned it and the key to his grandfather and he had no right to exclude others from the car when it was searched. (When the car was last occupied by him, he didn’t even drive it.) United States v. Carter, 2018 U.S. Dist. LEXIS 39374 (M.D. La. Mar. 10, 2018).
Posted inStanding|Comments Off on M.D.La.: Where def shared a car with one key, he had no standing when it was searched when he was out of possession
"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.
