Officers had a parole absconder warrant to retake defendant. At his motel room door, they could smell marijuana inside. After the entry, the government could rely on protective sweep, plain view, and plain smell doctrines to expand the entry. Finally, the also had consent from defendant’s wife. United States v. Wheeler, 2018 U.S. Dist. LEXIS 24030 (D. Kan. Feb. 14, 2018).*
The government having obtained defendant’s Facebook records by search warrant, the court grants the government’s motion to authenticate them. United States v. Giron, 2018 U.S. Dist. LEXIS 24743 (D. Md. Feb. 15, 2018).*
The government applied for a search warrant for a urine sample to show that defendant was a daily user of marijuana, but it waited eight days after seizure of a gun from defendant do seek it. Because the government knew that defendant was a daily user, the search warrant wasn’t stale. United States v. Leick, 2018 U.S. Dist. LEXIS 23832 (N.D. Iowa Feb. 14, 2018).*
It’s not prosecutorial misconduct to present evidence allegedly unlawfully seized to a grand jury. That was settled in Calandra in 1974. United States v. Boston, 2018 U.S. Dist. LEXIS 23751 (E.D. Mich. Feb. 14, 2018).
“Accordingly, the court finds that the officers lacked probable cause to arrest Defendant prior to any pat down of his person and seizure of the cellular telephones. The record also does not support a search of Defendant’s person and seizure of the cellular telephones on any other grounds. For these reasons, the court finds that Defendant’s Fourth Amendment rights were violated by his arrest and the subsequent search of his person and the seizure of his cellular telephones. Defendant, therefore, seeks suppression of the cellular telephones and the evidence obtained from the subsequent search of the telephones. [Doc. 57].” And that is granted. United States v. McRoy, 2018 U.S. Dist. LEXIS 24176 (N.D. Ga. Jan. 22, 2018) (R&R).*
Posted inExclusionary rule, Probable cause|Comments Off on E.D.Mich.: It’s not prosecutorial misconduct to present evidence allegedly unlawfully seized to a GJ
Time and time again, courts remind officers of the law don’t actually have to know the law to enforce the law. Yes, that’s how it all works out for citizens, who are just as frequently reminded ignorance of the law is no excuse. This has led to the prevalence of pretextual stops where minor traffic violations (that may not even be violations) are used to initiate long conversations with law enforcement officers with the end goal of obtaining consent for a search or to bring a drug dog onto the scene.
Posted inQualified immunity, Reasonableness|Comments Off on techdirt: Appeals Court: Handcuffing A Compliant Ten-Year-Old Is Unreasonable But Deputy Had No Way Of Knowing That
The affidavit for the search warrant alleged the house was defendant’s house. The government was judicially estopped from claiming otherwise in the proceeding without real evidence the affidavit was wrong. [I’ve been arguing this for years; see Treatise § 4.03.] Moreover, defendant’s guilty plea in state court on the same affidavit for the search warrant after a motion to suppress was filed and abandoned was not collateral estoppel because there was final resolution on the merits. United States v. Black, 2018 U.S. Dist. LEXIS 24199 (S.D. Ohio Feb. 14, 2018): Continue reading →
Plaintiffs alleged a Fifth Amendment taking because the government took their truck to do a drug operation. The claim survives a motion to dismiss. “Because plaintiffs do not challenge the legality of the government’s action, we deny the jurisdictional challenge. Because plaintiffs sufficiently allege actions which are inconsistent with the exercise of police power, we also deny the motion to dismiss under Rule 12(b)(6).” Craig Thomas Expeditors LLC v. United States, 2018 U.S. Claims LEXIS 94 (Feb. 16, 2018).
The order denying defendant’s motion for return of property was not shown to be a final order and thus not yet appealable. Whitney v. State, 2018 Ark. App. 128, 2018 Ark. App. LEXIS 121 (Feb. 14, 2018).*
Posted inRule 41(g) / Return of property|Comments Off on Ct.Claims: Motion to dismiss denied: “plaintiffs sufficiently allege actions which are inconsistent with the exercise of police power”
Officer’s knowledge that defendant possessed a firearm was not reasonable suspicion in itself because one could possess a firearm in the VI, albeit with a license. When officers observed bullet holes in the car and defendant was nervous and evasive, there was reasonable suspicion. The search of defendant’s vehicle, however, was unreasonable for lack of exigency. Defendant as in the back of a police car. The government tried to justify the search as an inventory, but the vehicle was not taken into custody for there to be an inventory. People v. Freeman, 2018 V.I. LEXIS 15 (Super. Ct. Feb. 7, 2018).
Posted inAutomobile exception, Inventory|Comments Off on VI: Govt couldn’t rely on inventory to justify search when the vehicle wasn’t impounded
The government adequately showed nexus to search defendant’s house because it showed probable cause to believe he was an active drug dealer that likely was keeping his stash at home. United States v. Rosario, 2018 U.S. Dist. LEXIS 23164 (E.D. Pa. Feb. 13, 2018): Continue reading →
Posted inNexus|Comments Off on E.D.Pa.: Govt adequately showed nexus that drugs were in def’s house
Defendant did not violate the traffic statute that the officer stopped him for. Therefore, Heien’s reasonable mistake of law and good faith doesn’t apply. Moreover, there is no good faith exception in Georgia. Harris v. State, 2018 Ga. App. LEXIS 67 (Feb. 14, 2018).
The circuit court erred in granting a defendant’s motion for return of property based on two attached documents where the state didn’t even get a chance to respond. The facts were in dispute on whether the money was evidence or forfeitable. The state claimed it was evidence for defendant’s drug trial. Clayton v. State, 2018 Fla. App. LEXIS 2235 (Fla. 2d DCA Feb. 14, 2018).
Being in a high crime area and then becoming defensive only when the officer asked defendant where his mother lived when it came up was not reasonable suspicion. Defendant’s frisk was unreasonable on the totality. Suppressing the gun found on him necessitates vacating his firearms conviction. United States v. Heard, 2018 U.S. App. LEXIS 3447 (11th Cir. Feb. 12, 2018).
“Although defendant was the driver and sole occupant of the Buick, and undoubtedly had a subjective expectation of privacy, he has not established a reasonable expectation of privacy in the vehicle. Defendant had not been authorized by the owner of the vehicle to drive the Buick, and did not have a valid license to drive any vehicle. Such an unauthorized driver does not have a reasonable expectation of privacy in the vehicle.” United States v. English, 2018 U.S. Dist. LEXIS 23011 (M.D. Fla. Feb. 13, 2018).*
Posted inReasonable suspicion, Standing|Comments Off on CA11: Becoming defensive about some questioning during stop didn’t rise to RS
A federal suit to have the Guam Superior Court revisit its probable cause determination in a criminal case is barred by Rooker-Feldman doctrine. Santos v. Superior Court of Guam, 2018 U.S. App. LEXIS 3433 (9th Cir. Feb. 14, 2018).
Posted in§ 1983 / Bivens|Comments Off on CA9: Federal civil suit seeking to revisit Guam Superior Court PC determination barred by abstention
Defendant was more than reasonably suspected of committing a homicide in Indiana, and police got a line on him heading to Kentucky. A vehicle matching the description of his was seen on the nearest bridge to Kentucky shortly thereafter and Indiana law enforcement pursued him to Kentucky and arrested him. His arrest in Kentucky did not violate the Fourth Amendment because there was sufficient cause. It also did not violate the state constitution which the Indiana courts will interpret more broadly. Whitt v. State, 2018 Ind. App. LEXIS 56 (Feb. 14, 2018). As to the state constitution: Continue reading →
The stop was for a traffic offense, and two detectives stopped to participate. Their questions about smelling marijuana didn’t unreasonably extend the stop. Commonwealth v. Buckley, 2018 Mass. LEXIS 87 (Feb. 14, 2018): Continue reading →
Posted inReasonable suspicion, Reasonableness|Comments Off on MA: Two detectives joining into a traffic stop didn’t make it unreasonable or extend it
“Although the factors [on CI reliability] go both ways, on balance they support the CI’s reliability. Most significantly, the deputies corroborated the CI’s story with their own investigation by conducting surveillance and executing a controlled buy.” United States v. Haynes, 2018 U.S. App. LEXIS 3380 (7th Cir. Feb. 14, 2018).*
Plaintiff’s Bivens claim for excessive force in roughly handcuffing a completely compliant arrestee by a park ranger in Death Valley stated a claim for relief. Motion to dismiss denied. Knickerbocker v. United States, 2018 U.S. Dist. LEXIS 23603 (E.D. Cal. Feb. 13, 2018).*
Posted inComputer and cloud searches, E-mail|Comments Off on wccftech: Sony Starts Sharing PlayStation 4 Data with the FBI – Begins with a Terror Investigation
A Franks challenge that is nothing more than an argument about inferences doesn’t plead enough to get a hearing. United States v. Defilippo, 2018 U.S. Dist. LEXIS 22784 (S.D. N.Y. Jan. 31, 2018): Continue reading →
Posted inFranks doctrine|Comments Off on S.D.N.Y.: A Franks challenge that is nothing more than an argument about inferences doesn’t plead enough to get a hearing
A facial challenge to a search warrant is a question of law, and no hearing is required. On the application, probable cause was shown along with the CI’s reliability. Defendant’s claim the search exceeded the search warrant is defaulted for failure to raise in the trial court. People v. Navarro, 2018 NY Slip Op 00938, 2018 N.Y. App. Div. LEXIS 948 (4th Dept. Feb. 13, 2018).
Which officer was operating a police car’s computer terminal during a traffic stop is really irrelevant to any issue. United States v. Buchheim, 2018 U.S. Dist. LEXIS 23330 (N.D. Iowa Feb. 13, 2018).*
Plaintiff in his indigent § 1983 case claims the search that led to his arrest was unreasonable, but he pleads no standing to contest the search. In addition, “The court takes judicial notice of the case action summary for Heiken’s criminal cases as maintained on the Alabama Trial Court System, hosted at www.alacourt.com. See Keith v. DeKalb Cnty., 749 F.3d 1034, 1041 n.18 (11th Cir. 2014) (holding that a federal court may ‘take judicial notice of [the State’s] Online Judicial System’).” That was necessary to ferret out facts of the underlying state case. Heiken v. Meeks, 2018 U.S. Dist. LEXIS 23429 (M.D. Ala. Feb. 13, 2018).*
“After reviewing this record, we find that the issue of ineffective assistance of counsel is not adequately developed in the record and would be more properly raised in an application for PCR. The defendant’s contention that the recording is inadmissible is based upon his assertion that it was recorded while he was being held in the patrol car without probable cause. Whether the defendant was being detained without probable cause is a fact-intensive inquiry and such an inquiry is missing from the record in this case. See State v. Miller, 2000-1657 (La. 10/26/01), 798 So. 2d 947.” State v. Wooten, 2018 La. App. LEXIS 232 (La. App. 2 Cir. Feb. 13, 2018).
Defendant’s 2255 ineffective assistance of counsel claim that the warrantless search of his home while he was on federal supervised released was raised on the merits before conviction, he lost, and he appealed. It can’t be raised again. United States v. Hilton, 2018 U.S. Dist. LEXIS 22952 (E.D. Mich. Feb. 13, 2018).*
Posted inIneffective assistance|Comments Off on LA2: IAC claim was fact intensive and denied w/o prejudice to pursue in post-conviction
The officer’s subjective belief in implied consent was unreasonable. There was no implied consent, and the motion to suppress is granted, despite the R&R. “Here, it is undisputed that neither Officer Tackett nor Officer Stevens asked for permission to enter the Defendants’ home. … Rather, in response to and in compliance with the officers’ demand for the Defendants’ identification and the social workers’ request for a ‘pill count,’ Defendants walked into their home to retrieve the requested items. … The officers simply followed behind them.” United States v. Blackaby, 2018 U.S. Dist. LEXIS 22204 (E.D. Ky. Feb. 12, 2018): Continue reading →
Posted inConsent|Comments Off on E.D.Ky.: Subjective belief in implied consent to enter was unreasonable; motion to suppress granted
"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.
