The trooper who stopped defendant had no independent recollection of defendant’s stop, but looking at the video and reading the reports was past recollection refreshed, and the officer’s testimony was then credited by the trial court. The stop was found justified. State v. Brown, 2018 Tenn. Crim. App. LEXIS 119 (Feb. 20, 2018).*
Some factual assertions in the affidavit for search warrant were incorrect, but this was negligence at best and wasn’t material overall to the finding of probable cause. State v. Hartsfield, 2018 Tenn. Crim. App. LEXIS 118 (Feb. 20, 2018).*
Posted inFranks doctrine, Suppression hearings|Comments Off on TN: Officer’s recollection refreshed was credited by trial court and followed on appeal
An officer with a package and an anticipatory search warrant did not violate the curtilage by entering through defendant’s screen door to approach the front door when he could see that there were other packages on a table by the door. It was reasonable to approach the front door to knock. When defendant accepted the package on the patio, the triggering condition for entering the house was satisfied without the package actually going into the house. United States v. Matthew, 2018 U.S. App. LEXIS 3998 (9th Cir. Feb. 20, 2018).
Defendant’s 2254 claim of defense counsel’s failure to investigate a Franks challenge is defaulted for not having presented it to the state court first. Simmons v. Sec’y of the Fla. Dep’t of Corr. & Fla. Ag, 2018 U.S. Dist. LEXIS 26360 (M.D. Fla. Feb. 20, 2018).*
Posted inAnticipatory warrant|Comments Off on CA9: Officer could enter door of screened in porch to knock on house door with package and anticipatory warrant
The search warrant was for “drugs, drug paraphernalia, owe sheets, cell phones, firearms, stolen merchandise, or other evidence of distribution of a controlled substance.” That permits a search of defendant’s pockets, and the cash found there was subject to potential forfeiture or was evidence of drug trafficking. United States v. Burrows, 2018 U.S. Dist. LEXIS 26523 (W.D. Pa. Feb. 20, 2018).
Defense counsel raised the search issue before trial and lost and it wasn’t appealed. In his 2255, he apparently rephrased the argument a bit, but it still fares no better. Defense counsel wasn’t ineffective not pursuing an appeal of a losing issue. Rhodes v. United States, 2018 U.S. Dist. LEXIS 26587 (E.D. Mo. Feb. 20, 2018).*
The trial court’s satellite based monitoring order is reversed for lack of findings. State v. Moore, 2018 N.C. App. LEXIS 150 (Feb. 20, 2018).*
“‘Courts must allow law enforcement “officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.”’ Estrada, 459 F.3d at 632 (quoting Arvizu, 122 S.Ct. at 750-51) (internal quotations omitted). Hill’s testimony established his experience with narcotics trafficking along I-10, and he gave a highly credible account as to how, due to his training and experience, all of the factors he cited worked together to increase his suspicion. Because of the criminal histories for both defendants (particularly Wilbon), their inconsistent stories, travel from out-of-state on a known drug-trafficking corridor, nervous demeanors, and the change in Wilbon’s mood — from laughing to cursing — once confronted about the discrepancies in their stories, a suspicion of criminal activity certainly seems reasonable at the time that Hill extended the detention for the K-9 search. Therefore the government has carried its burden as to the extension of the traffic stop, and there is no basis for suppression under this claim.” United States v. Wilbon, 2018 U.S. Dist. LEXIS 26777 (W.D. La. Feb. 20, 2018).
Posted inReasonable suspicion|Comments Off on W.D.La.: Giving officers the benefit of their training and experience there was RS for continuing the stop
A Terry stop doesn’t automatically include the ability to conduct a frisk because they have separate justifications. Here, defendant was wearing a motorcycle gang jacket, but nothing else came close to providing reasonable suspicion, and the motion to suppress is granted. United States v. Cisneros 2018 U.S. Dist. LEXIS 26645 (D. Nev. Feb. 20, 2018).
Persons on federal supervised release have a lesser expectation of privacy than mere probationers, and defendant’s home was subject to search on reasonable suspicion, which the officers had. United States v. Robinson, 2018 U.S. Dist. LEXIS 26773 (M.D. Ala. Feb. 20, 2018).
Defendant argued that his confession to murder transformed his status from a voluntary appearer at the police station to a person in custody. No; it’s but a factor in custody. “We therefore conclude that although an admission of guilt to a serious crime is a factor to consider in a custody analysis, Bartelt’s admission to attacking M.R. was not enough to transform his status to that of ‘in custody’ given the totality of the circumstances. Because Bartelt was not in custody when he asked about counsel, his Fifth Amendment right to counsel did not attach.” State v. Bartelt, 2018 WI 16, 2018 Wisc. LEXIS 72 (Feb. 20, 2018).
Posted inArrest or entry on arrest|Comments Off on WI: Def’s confession alone wasn’t enough to turn voluntary questioning into detention
When Wilson Rodriguez Macarreno called 911 after hearing an intruder outside his family home, the last thing he expected was that he would be the one taken away in handcuffs.
Posted inImmigration arrests|Comments Off on Newsweek: Police Who Help ICE Detain Undocumented Immigrants Could Be ‘Violating Fourth Amendment,’ Experts Say
Defendant stopped at a DUI checkpoint, officers could see marijuana through the window, and then defendant fled the checkpoint. Officers gave chase. They found the car at an apartment complex, seemingly abandoned, parked with the door open and engine running. Another officer saw the marijuana and searched. Evidence of drug trafficking was found, and a loaded revolver was lying next to the open door. Inside the car were plenty of documents identifying defendant as the owner of the car, and that he was on probation. There was probable cause and nexus in that probable cause for search of his apartment. The fact officers waited five days to obtain the search warrant, without explanation, does not make the search warrant stale. Going in, the court described defendant’s concerns with the search “legitimate,” but unavailing. United States v. Hodges, 2018 U.S. Dist. LEXIS 25575 (S.D. W.Va. Feb. 16, 2018).* [This, of course, begs the question of why he didn’t get rid of the stuff in his apartment before they came back.]
Posted inNexus, Staleness|Comments Off on S.D.W.Va.: SW for apartment five days after car was found nearby with PC inside it wasn’t stale
The exclusionary rule does not apply to revocation of supervised release. United States v. Phillips, 2018 U.S. Dist. LEXIS 25603 (C.D. Ill. Feb. 16, 2018).
Defendant’s 2255 Fourth Amendment IAC claim wasn’t timely: “Petitioner’s motion to vacate was not filed until October 20, 2014; this is more than one year after his conviction became final. Petitioner has not asserted an argument for equitable tolling. Therefore, Petitioner’s motion is untimely and must be dismissed.” Loper v. United States, 2018 U.S. Dist. LEXIS 25651 (E.D. Mo. Feb. 16, 2018).*
Even if the GPS evidence was illegally obtained (it wasn’t), there was independent probable cause for defendant’s arrest. The CI was independently corroborated. United States v. Goode, 2018 U.S. Dist. LEXIS 25547 (S.D. N.Y. Feb. 16, 2018).*
Posted inExclusionary rule|Comments Off on C.D.Ill.: Exclusionary rule does not apply to revocation of supervised release
A search warrant under ECPA to Airbnb was granted. Through its website and app, Airbnb allows messaging, and that makes it subject to ECPA. The government needs to determine which part of this can be unsealed to not compromise an investigation, and it was. In re Application of the United States for an Order Pursuant to 18 U.S.C. § 2705(b), 2018 U.S. Dist. LEXIS 19556 (D.D.C. Jan. 29, 2018).
The exclusionary rule does not apply in child welfare proceedings. State in Interest of A.J., 2018 UT App 29, 2018 Utah App. LEXIS 30 (Feb. 16, 2018) (dicta; recognizing rule).*
Posted inECPA, Exclusionary rule|Comments Off on D.D.C.: Messages through Airbnb’s website and app are governed by ECPA
While extending the stop violated Rodriguez, inevitable discovery applies and the evidence is not suppressed. United States v. Conteh, 2018 U.S. Dist. LEXIS 25542 (D. S.D. Feb. 16, 2018): Continue reading →
Posted inInevitable discovery|Comments Off on D.S.D.: Inevitable discovery cures a Rodriguez violation
The search warrant specifically stated that police would search for items that might have biological and/or forensic material and any other evidence tending to establish rape, but it didn’t specify a towel. The towel seized fell under the scope of the search warrant because it was an item that could contain biological and/or forensic material or could be other evidence tending to establish the crime of rape which is what the search warrant sought. State v. Harris, 2018-Ohio-578, 2018 Ohio App. LEXIS 603 (8th Dist. Feb. 15, 2018).*
Another Playpen warrant sustained. United States v. Stepus, 2018 U.S. Dist. LEXIS 25853 (D. Mass. Feb. 16, 2018).*
Posted inParticularity|Comments Off on OH8: SW for “biological and/or forensic evidence” in a sex crime permitted seizure of a towel
The government has applied for a Google search warrant stored overseas. Rather than wait for United States v. Microsoft to be decided, the court reviewed all the briefing in that case and decides that the search warrant will issue. In re Contents & Records Relating to the Google Accounts Google Plus, Gmail, Google Drive Related to the E-Mail Addresses: Which Are Stored at Premises Controlled by Google, 1600 Amphitheatre Parkway, Mt. View, CA 94043, 2018 U.S. Dist. LEXIS 25296 (S.D. Ohio Feb. 16, 2018).
Defendant wanted additional discovery on the reliability of the drug dog in this case to pursue a motion to reconsider, but that’s denied. There’s also a Franks challenge that’s insufficient. United States v. Harris, 2018 U.S. Dist. LEXIS 24705 (D. Haw. Feb. 15, 2018).*
Defendant was found to have abandoned property on the common area of the duplex. The privacy of the curtilage is reduced when there are others on the joint property of a duplex. United States v. Lucero, 2018 U.S. Dist. LEXIS 24972 (D. Utah Feb. 15, 2018).
A controlled buy on a recording was sufficient to support the CI. People v. Palin, 2018 NY Slip Op 01092, 2018 N.Y. App. Div. LEXIS 1095 (3d Dept. Feb. 15, 2018).*
The government contended in its brief on the motion to suppress that the search warrant was supported by controlled buys and didn’t otherwise support the CI. That requires a hearing. Corrections whiting out the address and changing it is enough to have a hearing about how and why that happened. United States v. Barber, 2018 U.S. Dist. LEXIS 24950 (S.D. Ala. Feb. 15, 2018).
Defendant had no standing to challenge Facebook search warrants for accounts of others. As to his own account, the search warrants were particular as to time period and scope. His Franks challenge fails because, when the affidavit for the search warrant was stripped of the alleged falsities, probable cause remains. United States v. Johnson, 2018 U.S. Dist. LEXIS 26125 (D. Ore. Feb. 16, 2018).*
Posted inStanding, Warrant requirement|Comments Off on S.D.Ala.: Handwritten corrections on SW required a hearing as to how and why
Defendant was convicted of wire fraud, and the district court imposed a condition of suspicionless searches for supervised releases. He complains that the court didn’t adequately explain the justification. No case says that the district court needed to, and there is no plain error. Defendant’s criminal history likely was enough. United States v. Oswald, 2018 U.S. App. LEXIS 3769 (11th Cir. Feb. 15, 2018).
Defendant alleges a Franks violation, but he doesn’t show anything was false or material. The motion to suppress was properly denied. Smith v. State, 2018 OK CR 4, 2018 Okla. Crim. App. LEXIS 4 (Feb. 16, 2018).*
Posted inFranks doctrine, Probation / Parole search|Comments Off on CA11: District court didn’t commit plain error by imposing suspicionless supervised release condition
The potential that the informant “may reveal” information helpful to the defense isn’t good enough to get the informant’s identification. United States v. Reed, 2018 U.S. Dist. LEXIS 25448 (S.D. Ala. Feb. 16, 2018).
The entry was based on observation of a marijuana grow. United States v. Christian, 2018 U.S. Dist. LEXIS 23892 (D. V.I. Feb. 14, 2018).*
The government had consent to enter, and found a working meth lab and a child in the house. The entry into a padlocked bedroom was justified. Defense counsel wasn’t ineffective because a motion to suppress wouldn’t have been granted and the search wouldn’t change the outcome. “The likely outcome of a suppression motion if it had been filed would not have impacted the trial evidence.” McKinney v. United States, 2018 U.S. Dist. LEXIS 23992 (E.D. Mich. Feb. 14, 2018).*
Posted inIneffective assistance, Informant hearsay|Comments Off on S.D.Ala.: That ID’ing informant “may reveal” information helpful to the defense isn’t good enough
Exigent circumstances existed which justified the warrantless draw of defendant’s blood. “The accident occurred at approximately 1:30 a.m. on May 8, 2016. After his initial contact with Appellant, Officer Lewis was unable to investigate further due to Appellant’s condition. Emergency medical personnel at the scene assumed care of Appellant, who was transported to Ohio State University Medical Center in Columbus. Officer Lewis then assisted with the accident investigation. When Officer Lewis arrived at the hospital at 3:00 a.m., Appellant was in triage. Appellant was not conscious; therefore, the officer was unable to obtain her consent for the blood draw.” State v. Kiger, 2018-Ohio-592, 2018 Ohio App. LEXIS 611 (5th Dist. Feb. 15, 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.
