The officer pulled up behind defendant’s parked car. “[T]he Court concludes that the officers pulling up behind the parked vehicle constituted a mere encounter that did not ripen into a seizure for Fourth Amendment purposes until Sergeant Spangler ordered Defendant to stay seated in the vehicle.” It was, however, with reasonable suspicion the occupants were involved in some drug offense. “[T]he officers observed in plain view a crack pipe on the passenger seat where Defendant was seated and a backpack containing a large amount of United States currency. As such, the officers were able to perceive the immediately apparent incriminating nature of both items.” United States v. Bowra, 2018 U.S. Dist. LEXIS 38797 (W.D. Pa. Mar. 9, 2018).
Defendant’s traffic stop was based on at least reasonable suspicion, and it was not unreasonably extended. Even if the Utah criminal record privacy act had been violated in leading to defendant’s arrest, there’s no remedy of exclusion for it. United States v. Mayville, 2018 U.S. Dist. LEXIS 38305 (D. Utah Mar. 7, 2018).*
Posted inExclusionary rule, Reasonable suspicion|Comments Off on W.D.Pa.: Ordering occupants to stay in parked car officer pulled up behind was a seizure, but with RS
“Cody failed to state a Fourth Amendment claim for relief. He claimed that the defendants violated his Fourth Amendment rights by removing property from his cell during routine searches. But Cody was in prison, and ‘the Fourth Amendment proscription against unreasonable searches [and seizures] does not apply within the confines of the prison cell.’ Hudson, 468 U.S. at 526.” Cody v. Slusher, 2018 U.S. App. LEXIS 5940 (6th Cir. Mar. 9, 2018).*
The Alaska State Trooper’s affidavit for search was not materially false, so the Franks allegation fails. The tipster was corroborated, too, by finding that defendant did, in fact, travel to Mexico several times. The officer also said in the affidavit that he believed the x-ray image of the package showed heroin because he’d seen it several times before. United States v. Blodgett, 2018 U.S. Dist. LEXIS 38448 (D. Alaska Mar. 8, 2018).*
Posted inPrison and jail searches|Comments Off on CA6: 4A doesn’t apply to removal of stuff from an inmate’s cell after a shakedown search
More was shown than just that defendant was a drug dealer. He was the driver for a man who regularly did drug deals and he watched them all go down. He was seen leaving a house attributed to him in a car belonging to somebody else. A trash pull showed evidence of drug trafficking going on there. This was enough for nexus. United States v. Johnson, 2018 U.S. Dist. LEXIS 38362 (S.D. Ohio Mar. 8, 2018).
The government says it won’t use the product of a pen register against the defendant, so it’s moot. The defendant’s statutory claim on the merits would fail: “The Court finds that defendant has no basis to challenge the admissibility of the pen register data under federal law, because the use of a pen register or trap and trace device is not a search under the Fourth Amendment.” United States v. Tate, 2018 U.S. Dist. LEXIS 38658 (N.D. Okla. Mar. 9, 2018).*
Another Playpen warrant sustained. United States v. Stamper, 2018 U.S. Dist. LEXIS 38689 (S.D. Ohio Mar. 9, 2018).*
Posted inNexus, Search|Comments Off on S.D.Ohio: Def was driver for drug dealer selling from car; a trash pull from his house was sufficient to show nexus
Being a drug trafficker is not enough to search defendant’s home. The government had to show nexus, and it never did anywhere in the affidavit for search warrant. The affidavit for the search warrant was, in fact, so lacking in nexus and probable cause that no reasonable officer could rely on it. United States v. Zamudio, 2018 U.S. Dist. LEXIS 36838 (S.D. Ind. Mar. 7, 2018): Continue reading →
Posted inGood faith exception, Nexus|Comments Off on S.D.Ind.: The sole fact of being a drug trafficker doesn’t provide nexus to house; something has to be shown, and it wasn’t and GFE doesn’t apply
The juvenile court did not abuse its discretion in ordering hair follicle testing of the father because of his admissions he’d used heroin. Hatfield v. Cornell, 2018-Ohio-798, 2018 Ohio App. LEXIS 840 (12th Dist. Mar. 5, 2018).
Defendant’s Franks challenge is rejected because the omitted things don’t undermine the probable cause. A reference to “it” on a jail telephone call was reasonably inferred by the police to be a handgun. Common sense is a part of finding probable cause. United States v. Anaya, 2018 U.S. Dist. LEXIS 37519 (D. N.M. Mar. 7, 2018).*
Posted inDrug or alcohol testing|Comments Off on OH12: Father’s admission of using heroin justified hair follicle testing in custody matter
“We hold that when a probationer gives a false name to a police officer, and a record check of that name fails to reveal that the probationer is in fact subject to a search condition, the probationer is estopped from challenging the legality of an ensuing search or seizure that would have been authorized had the officer been aware of the condition.” People v. Mathews, 2018 Cal. App. LEXIS 195 (1st Dist. Mar. 9, 2018).
The search warrant for defendant’s house for cruelty to children for locking them in and not caring for them was issued with probable cause. Wimbush v. State, 2018 Ga. App. LEXIS 174 (Mar. 8, 2018).*
Posted inExclusionary rule, Probation / Parole search|Comments Off on Cal.1: Def’s false name was intended to avoid probation search condition; he’s estopped to argue exclusionary rule
The officers stopping defendant received a call from the DEA to stop him because he was involved with a place they were searching, having just left with a backpack as the DEA was arriving. The stop was based on their knowledge and was with reasonable suspicion. People v. Wheeler, 2018 NY Slip Op 01509, 2018 N.Y. App. Div. LEXIS 1485 (3d Dept. Mar. 8, 2018).*
Defense counsel wasn’t ineffective for not pursuing defendant’s Fourth Amendment claims on the appeal that were essentially frivolous. Williams v. United States, 2018 U.S. Dist. LEXIS 36737 (S.D. Cal. Mar. 6, 2018).*
The Fourth Amendment does not require the search warrant be presented to the person whose premises were to be searched before it occurred. Thus, accidently presenting the wrong search warrant at the time of the search doesn’t constitutionally matter. Also, even if the tipster was not credible and the wife’s criminal history was irrelevant, the warrant was issued upon probable cause. Prior cases support probable cause here. The two trash pulls taken a week apart, both testing positive for marijuana, were sufficient standing alone to establish probable cause for a search warrant. The identity of the informant was irrelevant to defendant’s case and not essential to the fair determination of any case. United States v. Leonard, 2018 U.S. App. LEXIS 5861 (7th Cir. Mar. 8, 2018).
Posted inWarrant execution|Comments Off on CA7: No 4A right to see SW before search; therefore, accidentally showing wrong warrant doesn’t violate 4A either
“Nevertheless, Petitioner’s arguments for suppression do not succeed. [¶] This is because police ultimately found the firearm and ammunition from an independent source, thus defeating the need for suppression. Under the independent source doctrine, evidence that was ‘initially discovered during police officers’ illegal entry of private premises’ need not be suppressed ‘if that evidence is also discovered during a later search pursuant to a valid warrant that is wholly independent of the initial illegal entry.’ [¶] That is exactly what happened here. …” Coleman v. United States, 2018 U.S. Dist. LEXIS 36697 (N.D. Ohio Mar. 6, 2018).
Retroactivity of Birchfield needs better record preservation. Remanded. Parshall v. State, 2018 ND 69 (Mar. 8, 2018).* [Why is it that the only Fourth Amendment cases from the Dakotas for the last few years are DWI cases?]
Defendant was stopped for a traffic offense, and it came back that there might be a warrant for him. Under state practice, the police then seek confirmation of the warrant before acting on it. Here, however, defendant was frisked incident to that and a baggie of methamphetamine was found on him. Then the warrant came back as still outstanding and there was a second search finding another. The attenuation doctrine doesn’t apply to the first but it does to the second, so the first is suppressed and the second isn’t. On appeal, the state argued search incident, but that was waived by not raising it below. The court also rejects inevitable discovery. State v. Fairchild, 2018 Ida. App. LEXIS 10 (Mar. 7, 2018).
“[P2] When officers stopped Binks’s vehicle, they had at least reasonable suspicion to investigate two traffic violations and possible drug possession. And when the officers approached the vehicle they gained reasonable suspicion of another offense—driving under the influence. The officers were entitled under Terry v. Ohio, 392 U.S. 1 (1968), to detain Binks for a reasonable time while they investigated these offenses. We affirm on that basis without reaching the other two grounds asserted by the State for defending the search—that police were justified in searching Binks based on the warrant for the apartment Binks had just visited and that Binks was within the vicinity of the residence covered by the search warrant and thus a proper subject of the warrant under Bailey v. United States, 568 U.S. 186 (2013).” State v. Binks, 2018 UT 11, 2018 Utah LEXIS 33 (Mar. 7, 2018).*
Defendant was in the backseat of a car stopped in Queens for speeding. The officer decided he was a little too nervous and had him get out and asked him what he had. Defendant said “I have a piece.” Based on the totality, the officer didn’t have reasonable suspicion to get him alone out of the car and question him. People v. White, 2018 NY Slip Op 01492, 2018 N.Y. App. Div. LEXIS 1451 (2d Dept. Mar. 7, 2018).
The motion to suppress defendant’s cell phone search is denied as moot because the government couldn’t unlock it, and it now won’t search it. The motion to suppress his Facebook account is denied because probable cause was shown in the affidavit for the warrant and the search warrant was reasonably relied upon under the good faith exception. United States v. Willis-Dass, 2018 U.S. Dist. LEXIS 35673 (D. Minn. Mar. 5, 2018).*
Posted inReasonable suspicion|Comments Off on NY2: Def ordered out of backseat of car during speeding stop resulted in admission of gun; suppressed for lack of RS
Defendant relied on the affidavit for search warrant as showing his standing, but it didn’t resolve the question, so he fails in his burden of proof and lacks standing. The government showed nexus in the 61 page affidavit for residences as a base of operation. The affidavit certainly satisfied the good faith exception. United States v. Bell, 2018 U.S. Dist. LEXIS 36402 (N.D. Ohio Mar. 6, 2018): Continue reading →
Posted inBurden of proof, Nexus, Standing|Comments Off on N.D.Ohio: Affidavit for SW didn’t support def’s claim of standing
Search incident did not justify seizure of defendant’s cell phone when he was arrested because he’d been separated from the cell phone. The government’s claim that officers seizing the cell phone were proceeding under “direction of” defendant’s PO is rejected because the PO left the premises before all that happened. Still, however, the seizure of the phone was valid as a parole seizure because of the special needs exception. A state search warrant was issued for the cell phone in Kansas City, Kansas, and it was actually searched by a computer lab in Kansas City, Missouri. The good faith exception sustains that search. United States v. Pacheco, 2018 U.S. App. LEXIS 5717 (10th Cir. Mar. 7, 2018).
“[W]hen police search a home pursuant to a warrant obtained after a warrantless search, evidence obtained pursuant to the warrant need not be suppressed so long as: (1) a neutral magistrate would still have issued the warrant ‘even if not presented with information that had been obtained during [the] unlawful search;’ and (2) the first, illegal, search did not prompt the officers to obtain the search warrant. United States v. Herrold, 962 F.2d 1131, 1144 (3d Cir. 1992); see Stabile, 633 F.3d at 243; United States v. Perez, 280 F.3d 318, 339 (3d Cir. 2002). Both prongs are satisfied here.” United States v. Combs, 2018 U.S. App. LEXIS 5634 (3d Cir. Mar. 6, 2018).
Psychotherapist’s alleged violation of confidentiality and his reasonable expectation of privacy in their conversations in ratting out defendant about his child pornography use was not state action. The report would not lead to suppression. Ravn v. State, 2018 Alas. App. LEXIS 45 (Mar. 5, 2018) (memorandum).
Researchers at the Georgetown Center of Privacy and Technology have filed suit against the NYPD for more details on the department’s highly secretive face recognition program.
Posted inSurveillance technology|Comments Off on Gizmodo: Georgetown Lawyers Sue NYPD to Reveal Its Secret Face Recognition Programs
In a case that may have significant implications for Seattle’s fast-growing homeless population, a King County Superior Court judge ruled on Friday that the pickup truck a man was living in was his home.
The affidavit for the arrest warrant was based on three CIs who corroborated each other and which were independently corroborated by the police. A Franks challenge was included that a prior search resulted in finding drugs that were not mentioned to have been hidden from defendant’s view. That doesn’t matter because the warrant would have issued anyway because it’s not material to the probable cause finding. A state court ping order to locate defendant was issued on exigent circumstances of a threat to harm someone. The state court’s exigent circumstances ping order mooted the other ping order that the phone company said it couldn’t process fast enough. United States v. Banks, 2018 U.S. App. LEXIS 5647 (10th Cir. Mar. 6, 2018).
Defendant filed a motion to suppress on a Franks issue within the motion deadline. Then he withdrew that motion and filed a second motion outside the deadline seeking a challenge of the sufficiency of the four corners of the affidavit. That’s denied as untimely. United States v. Gulley, 2018 U.S. Dist. LEXIS 35600 (N.D. Ohio Mar. 6, 2018).*
On appeal defendant conceded the lawfulness of the seizure of his iPhone. Army investigators allegedly illegally seized a computer as well. All the trial court litigation never raised the question of the use of the computer, too, so that’s waived. Even if not waived, there’s sufficient evidence of good faith reliance on a search authorization to affirm on an alternative ground, too. United States v. Smith, 2018 CCA LEXIS 108 (Army Ct. Crim. App. Mar. 6, 2018).
“First, we find appellant’s wife lawfully authorized the search of appellant’s cellphone. Second, we hold the military judge did not abuse his discretion in determining appellant’s request that his cellphone be returned did not amount to withdrawal of consent to search based on the totality of the circumstances. Third, we find, even if consent had been withdrawn, the inevitable discovery doctrine would apply. We therefore affirm.” United States v. Eugene, 2018 CCA LEXIS 106 (Army Ct. Crim. App. Mar. 6, 2018) (unpublished).*
The state obtained text messages by legal process and admitted them at trial, arguing that the Verizon service agreement was a waiver of any reasonable expectation of privacy in third party records. It is not a waiver of spousal privilege in text messages. Sewell v. State, 2018 Md. App. LEXIS 212 n. 8 (Mar. 6, 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.
