The trial court found the stop was reasonable for shooting from a car and driver consented based on the testimony of the stopping officer. Defendant’s claim that the driver’s consent was hearsay and inadmissible was rejected. All other exceptions for vehicle search were rejected. In the Interest of T.L., 2018 La. App. LEXIS 297 (La. App. 5 Cir. Feb. 21, 2018).
State parole seized defendant’s cell phone for safekeeping, but didn’t search it. Then defendant was indicted. The phone is not returned yet. United States v. Robinson, 2018 U.S. Dist. LEXIS 27943 (E.D. N.Y. Feb. 21, 2018) (R&R).*
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Deleting the detective’s false statement from the affidavit that he had seen a black male with short dreadlocks in an SUV, the affidavit nonetheless provided probable cause to issue the warrant based on a controlled buy from defendant. The remainder gave probable cause evidence would be found in defendant’s apartment because defendant went into his residence immediately before traveling directly to the controlled buy. There was sufficient evidence to create a reasonable belief that drugs might be in defendant’s residence 11 days after the controlled buy because the affidavit alleged ongoing sale of drugs. Briscoe v. State, 2018 Ga. App. LEXIS 77 (Feb. 20, 2018).
Defendant’s motion to exclude his jail calls from his trial is denied. It’s clear no jail inmate has a reasonable expectation of privacy in nonprivileged jail telephone calls. United States v. McMillan, 2018 U.S. Dist. LEXIS 29239 (M.D. Pa. Feb. 23, 2018).*
Defendant’s claim of lack of consent misses the point because there was a search warrant. Winn v. State, 2018 Ga. App. LEXIS 114 (Feb. 21, 2018).*
Defendant’s 2255 claim that defense counsel didn’t sufficiently cross-examine the government’s witnesses in the suppression hearing didn’t allege ineffective assistance of counsel. Also, defendant didn’t appeal the denial of the suppression motion and pled guilty instead. Thorne v. United States, 2018 U.S. Dist. LEXIS 29427 (S.D. W.Va. Jan. 2, 2018): Continue reading →
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The stop was unreasonably extended by waiting several minutes to run a criminal history which was not for safety reasons. While the criminal history check was being run, a drug dog was run around the car. The exclusionary rule applies to civil forfeiture actions. State ex rel. Geary County Sheriff’s Dep’t v. One 2008 Toyota Tundra,2018 Kan. App. LEXIS 10 (Feb. 23, 2018): Continue reading →
Today is the 15th anniversary of this blog. Today is also the 257th anniversary of James Otis’ 1761 argument at the Boston Old State House against the writs of assistance in Paxton’s Case. Transcripts of the argument are here. (It was reargued Nov. 16, 1761.)
Thank you, readers. Thank you Lexis for free access to support this and the Treatise. Thank you ABA for finding this blog in the top 50 of 14,000 legal blogs.
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Being a criminal defense lawyer is a great privilege and an opportunity. It was obvious to me early in law school 48 years ago that the law of American privacy is made by criminal defense lawyers raising and litigating issues. Over 90% of all Fourth Amendment cases are criminal cases argued by criminal defense lawyers. My 45th anniversary as a lawyer is in August, and it’s still always fun and a challenge. I really love my job. Everyday is something new.
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Police use of a license plate reader that led to finding a warrant on the owner violated no reasonable expectation of privacy. Traft v. Commonwealth, 2018 Ky. LEXIS 68 (Feb. 15, 2018).
In a state wiretapping case over the legal authority of the applicant, the state’s good faith exception argument was waived by failure to raise it in the trial court. People v. Allard, 2018 IL App (2d) 160927, 2018 Ill. App. LEXIS 70 (Feb. 21, 2018).
Defendant’s car was subject to the automobile exception because it was mobile, despite being parked and not running. “The scope of the warrantless search of an automobile is not defined by the nature of the container in which the contraband is secreted, but rather, is defined by the object of the search and the place in which there is probable cause to believe it may be found. … Once probable cause for the search of a vehicle exists, a police officer has the authority to search those places in the vehicle in which there is probable cause to believe the object searched for may be found.” State v. Brown, 2018 La. App. LEXIS 269 (La. App. 5 Cir. Feb. 21, 2018).
The officer here was running LPNs to see if cars passing through an intersection were insured. Defendant’s car came back uninsured based on the state database. Once stopped, however, defendant showed an app on his phone that showed he obtained insurance a week earlier. The trial court found that the vehicle should not have been impounded at that point. “Applying the appropriate standard of review, we must accept the trial court’s finding that Lewis provided the officer with valid proof of insurance at the outset of the traffic stop.” Thus, while the stop was with reasonable suspicion, the court has to find a lack of probable cause to seize and inventory the car. State v. Lewis, 2018 Ga. App. LEXIS 113 (Feb. 21, 2018).
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Playpen search warrant violated Fourth Amendment, but the good faith exception saves it. “For the reasons discussed below, we hold that the NIT warrant violated Rule 41(b). As a result, the magistrate judge not only exceeded her authority under the Rule as then drafted, but also under the Federal Magistrates Act, rendering the warrant void ab initio and raising the magnitude of the infraction from a technical one to a Fourth Amendment violation. On the other hand, we also hold that the good-faith exception applies to such warrants, which, given the circumstances of this case, precludes suppression. We therefore will affirm on alternative grounds the District Court’s decision to deny Werdene’s suppression motion.” United States v. Werdene, 2018 U.S. App. LEXIS 4089 (3d Cir. Feb. 21, 2018).
Defense counsel wasn’t ineffective for not filing a motion to suppress the search warrant for defendant’s cell phones for a typographical error on the date of the alleged offense in the application for the warrant. The affidavit was clear what was to be searched. “He has not alleged, other than in conclusory terms, that he was prejudiced by his attorney’s failure to attempt to suppress the evidence obtained under the search warrants.” There is no prejudice. Dent v. State, 2018 Ga. LEXIS 98 (Feb. 21, 2018).
Civil detainees have limited Fourth Amendment rights for the purpose of institutional security. Johanneck v. Ahlin, 2018 U.S. Dist. LEXIS 28004 (E.D. Cal. Feb. 21, 2018).*
“A Superior Court judge properly denied a criminal defendant’s pretrial motion to suppress evidence discovered following a police officer’s warrantless entry into an open garage through which the officer followed the defendant after observing him standing inside it during a drug trafficking investigation, where exigent circumstances justified the entry and the resulting search and seizure, in that the police had probable cause and reason to believe that the defendant would remove evidence and escape apprehension if not pursued; and where the exigent circumstances were not foreseeable and were not deliberately created by the police.” (Summary by the court) Commonwealth v. Polanco, 2018 Mass. App. LEXIS 19 (Feb. 20, 2018).
The prosecutor is absolutely immune for actions in obtaining a [valid] search warrant the same as the judge that signed it and the clerks who handled it. Matthews v. Hillegass, 2018 U.S. Dist. LEXIS 26354 (D. N.J. Feb. 20, 2018).
Powering on a cell phone to see the screen was the first of three warrantless searches of defendant’s cell phone, all of which violated the Fourth Amendment. They were not harmless, so reversed. Commonwealth v. Fulton, 2018 Pa. LEXIS 982 (Feb. 21, 2018): Continue reading →
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"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.
