Defendant consented to the blood test. “At the suppression hearing the district court heard testimony from both Sergeant Stoltz and Montgomery as well as listened to the audio recording of the arrest. The district court noted an extended dialogue between Sergeant Stoltz and Montgomery, leaving Montgomery ample opportunity to ask questions before he volunteered to take a blood test. The district court denied the motion to suppress after finding Montgomery gave voluntary consent.” State v. Montgomery, 2018 ND 20, 2018 N.D. LEXIS 31 (Jan. 22, 2018).*
“A holistic review of the Affidavit reveals that Defendant’s involvement in his nephew’s drug trafficking organization was continuous and ongoing,” so there was probable cause and it wasn’t stale. Even so, the affidavit was not so lacking in probable cause that the good faith exception wouldn’t apply. United States v. Woods, 2018 U.S. Dist. LEXIS 10915 (E.D. Pa. Jan. 22, 2018).*
The government had detailed facts connecting defendant to a bank robbery and traced his movements, some with surveillance video. This was probable cause, and his arrest was in a public place, the stairwell in a hotel. United States v. Peeples, 2017 U.S. Dist. LEXIS 215922 (W.D. N.Y. Dec. 4, 2017).*
“As long as the stop is lawful in its inception, ‘an officer is entitled to some chance to gain his bearings and to acquire a fair understanding of the surrounding scene. Just as the officer may ask for the identification of the driver of a lawfully stopped vehicle …, so he may request identification of the passengers also lawfully stopped.’” United States v. Soriano-Jarquin, 492 F.3d 495, 500 (4th Cir. 2007). This did not unlawfully extend the stop. United States v. Parks, 2018 U.S. Dist. LEXIS 9911 (W.D. N.C. Jan. 22, 2018).*
ABAJ: Traveling lawyers get new protections in device searches at border by Lee Rawles. The ABA is meeting soon in Vancouver. What about protecting privileged information at Customs when they return: Continue reading →
In a jail call, marital privilege succumbs to the lack of a reasonable expectation of privacy because defendant knew his calls were being recorded. As to a letter to his wife in his cell, it disclosed a request to her to commit a crime that wasn’t privileged. United States v. Sutton, 2018 U.S. Dist. LEXIS 11109 (E.D. Ky. Jan. 24, 2018): Continue reading →
Posted inReasonable expectation of privacy|Comments Off on E.D.Ky.: Jail call to wife that def knew would be recorded not privileged
Defendant was on federal supervised release, and the reasonable suspicion of Knights applies, and the officers had it here because defendant admitted a violation of his internet usage agreement with the PO. United States v. Kuhnel, 2017 U.S. Dist. LEXIS 215883 (D. Minn. Nov. 28, 2017).
There was no error in the trial court’s conclusion that the officer read defendant the implied consent notice before the blood sample was obtained, as the officer testified he had done so and the nurse who obtained the blood sample testified she never drew a patient’s blood for law enforcement purposes unless she personally observed an officer read the implied consent notice to the patient. Defendant’s written consent to the blood test was voluntary, as he was alert and understood what was going on, responded appropriately to questions, and was not threatened or promised anything. Diaz v. State, 2018 Ga. App. LEXIS 22 (Jan. 23, 2018).*
“In his motion to suppress, Davison did not identify any false information included in the affidavit. Rather, Davison alleged only that he believed the CI could have been paid for information and that fact had been omitted from the affidavit. Davison offers only conclusory speculation in support of his allegation. Accordingly, the undersigned finds that Davison failed to meet his burden of making a substantial preliminary showing that any critical information was intentionally or recklessly omitted from the affidavit was false, or that allegedly omitted information, if included, would have deprived the affidavit of probable cause.” United States v. Davison, 2017 U.S. Dist. LEXIS 215838 (E.D. Mo. Dec. 6, 2017).
Even if defense counsel was ineffective for not challenging the search in this case, it would only cause 6.9g of cocaine to go out of the case, and it would not change the outcome. United States v. Pearson, 2018 U.S. Dist. LEXIS 10694 (D. Mont. Jan. 23, 2018).
Posted inFranks doctrine, Ineffective assistance|Comments Off on E.D.Mo.: Claim that Franks applies because the CI must have been paid and it was omitted is insufficient as speculative
The court declines to adopt the R&R that defendant abandoned or had no reasonable expectation of privacy in a shopping bag by defendant setting it down on gym bleachers while he was in the gym playing basketball. United States v. Copeland, 2018 U.S. Dist. LEXIS 9474 (N.D. Ga. Jan. 22, 2018).
“Based on the totality of the circumstances, the Defendants voluntarily consented to a search of their residence and cars. The Defendants were informed of their right to refuse. Prior to obtaining consent and conducting the search, PSP officers provided Defendants with a consent form. The consent form specifically stated, in bold and capitalized font, ‘I have been told that I do not have to give my consent. I have the right to refuse this request, and that the police may not be able to conduct this search without a search warrant unless I give my consent.’ (Trans., at 49:4-18.) Such warning was sufficient to notice Defendants of their right to refuse and weighs heavily in favor of finding that the consent was voluntary.” United States v. Valentine, 2018 U.S. Dist. LEXIS 9481 (M.D. Pa. Jan. 22, 2018).*
Posted inAbandonment, Consent|Comments Off on N.D.Ga.: Def didn’t abandon shopping bag by putting it down while he played basketball
“Here, the officers’ search of the container attached to Mr. Nichols’s keys was within the time, control, and place constraints for the search of an arrestee’s personal property incident to arrest. Mr. Nichols had the keychain in his exclusive control when he got outside the truck he had been driving. He then was handcuffed and the keys dropped to the ground. Within two minutes of Officer Long handcuffing Mr. Nichols, Sergeant Green picked up the keychain with the container and searched the container. … Sergeant Green searched the container, Mr. Nichols was less than 10 feet away. Using the principles established by Chadwick and amplified by Herrera, the court concludes that the container on Mr. Nichols’s keychain was ‘immediately associated’ with him. And so, the search of the container was a valid search incident to arrest. For this reason, the court overrules the motion to suppress the evidence found during the search of the container.” United States v. Nichols, 2018 U.S. Dist. LEXIS 9306 (D. Kan. Jan. 22, 2018).
The officer in a drug investigation misidentified A as B in a grainy convenience store video based on comparing it to a DL photograph. At worst it was negligence and not even reckless disregard for the truth. “Even if we found that Agent Lewis’s misidentification was made in reckless disregard for the truth, Defendant would nevertheless fail to establish entitlement to a Franks hearing because the misidentification of Bacot was not material to a finding of probable cause.” United States v. Jackson, 2018 U.S. Dist. LEXIS 9473 (E.D. Pa. Jan. 22, 2018).*
Posted inFranks doctrine, Search incident|Comments Off on D.Kan.: Search of a small container on a key chain was reasonable as search incident
A grand jury has indicted a Baltimore Police officer on charges of misconduct and fabricating evidence in connection with a body camera video that surfaced last year that the public defender’s office said showed him planting drugs.
Posted inBody cameras, Police misconduct|Comments Off on WaPo: Baltimore Police officer who turned off body camera charged with tampering with evidence
A Queens jury on Wednesday convicted a detective of lying under oath in a trial that raised troubling questions about the prevalence of false statements by police officers in routine cases.
When Arizona state social workers removed plaintiffs’ children from the home without judicial authorization and without a reasonable belief they were in danger or exigency, they violated plaintiffs’ rights to family unity and the Fourth Amendment. The right was clearly established and defendants get no qualified immunity. Walmart reported to CPS having developed some pictures of the children nude, but not being sexually exploited. The defendants had no evidence of sexual abuse in the family and no justification for taking the children without a court order. Demaree v. Pederson, 2018 U.S. App. LEXIS 1625 (9th Cir. Jan. 23, 2018).*
The Alaska State Trooper had probable cause to seize defendant’s bag at the Nome airport to obtain a search warrant. Defendant was flying to Stebbins, a local option community in Alaska that bans alcohol. An airline employee reported hearing a sloshing sound from the bag indicative of it carrying liquid. When asked, defendant said there was only clothes in the bag. Defendant had previously been convicted of providing alcohol to a minor and consumption as a minor. Importation to a local option community is a state offense. Pete v. State, 2018 Alas. App. LEXIS 29 (2018 Alas. App. LEXIS 29 (Jan. 24, 2018).*
Posted inWarrant requirement|Comments Off on techdirt: Disrupting The Fourth Amendment: Half Of Law Enforcement E-Warrants Approved In 10 Minutes Or Less
Defendant was on probation for a state drug offense, and he was a good probationer, so his PO was working toward early termination of probation. Then the DEA calls the PO that they suspect him of being involved in drug dealing. Considering the new information with his criminal history, a story during a visit at work about cash on his person that came from a substantial drug dealer when they frisked him at work, allegedly for buying cars, a search of his residence was reasonable under the terms of his probation. United States v. Williams, 2018 U.S. App. LEXIS 1795 (5th Cir. Jan. 24, 2018).*
Defendant was in a car at the time of finding backpacks in the car. He denied ownership, and thus he had no reasonable expectation of privacy in them. State v. Adams, 2018 ND 18, 2018 N.D. LEXIS 10 (Jan. 22, 2018).*
Posted inAbandonment, Probation / Parole search|Comments Off on CA5: PO’s information from DEA plus additional facts was RS for probation search
When the government wants a company in the United States to turn over private data stored in another country, which country’s laws apply? The Supreme Court is set to consider that question in a case that raises a novel legal question about warrants, borders, and the Fourth Amendment.
The California Supreme Court has taken up a case that could determine if, how and when Facebook must turn over private user information about third-party witnesses in criminal cases.
Defense counsel isn’t ineffective for not appealing a conviction when the only real remedy he seeks is for return of property which would be by a Rule 41(g) motion which hasn’t been filed. Dismissed without prejudice. Green v. United States, 2018 U.S. Dist. LEXIS 10353 (D. Conn. Jan. 23, 2018).*
Defendant’s case was not “removed” from state court. A state court judge issued a search warrant based on application of a DEA task force officer, but the initial complaint was filed in federal court. This is the third successor petition dismissed for lack of certification from the circuit and utter lack of merit. Skinner v. United States, 2018 U.S. Dist. LEXIS 10418 (S.D. Miss. Jan. 23, 2018).*
“Finally, Petitioner contends that post-conviction discovery will demonstrate that counsel was ineffective for failing to challenge the legality of the search warrant. [¶] This claim is facially insufficient because Petitioner fails to set forth its legal or factual basis. He does not specify any factual or legal foundation upon which counsel could have challenged the search warrant, let alone a foundation so strong that no competent counsel would have overlooked it. Nor does he allege any fact that, if true, would establish a reasonable probability that a challenge to the search warrant would have been successful and resulted in a different trial outcome. Accordingly, this claim is denied as too vague and conclusory to support relief.” Hamilton v. United States, 2018 U.S. Dist. LEXIS 10165 (W.D. N.C. Jan. 23, 2018).*
The Ohio Precious Metals Dealers Act (PMDA) authorized warrantless records searches to locate stolen property, and the court finds that the limitations in the statute served as constitutionally adequate warrant substitutes. They applied only to licensed precious metals dealers, and together they carefully limited the scope of the warrantless searches to only a narrow subset of information – purchasing records and the precious metals themselves, and ensured that searches would take place only at the licensed location. The used precious metals business is closely regulated under Ohio law, and it has been regulated longer than the junk car business was at the time of New York v. Burger. The language in other parts of the PDMA purporting to authorize warrantless searches was facially unconstitutional because the search provisions were not necessary to furthering the state’s interest in recovering stolen jewelry and coins, and were overly broad. Liberty Coins, LLC v. Goodman, 2018 U.S. App. LEXIS 1370 (6th Cir. Jan. 22, 2018).
Posted inAdministrative search|Comments Off on CA6: Precious metals dealers are “closely regulated business” for administrative inspection of records of purchases
Apple’s high-profile 2016 fight with the FBI, in which the company challenged a court order commanding it to help unlock the iPhone of one of the San Bernardino terrorists, exemplifies how central the question of regulating government surveillance has become in U.S. politics and law. But scholarly attempts to answer this question have suffered from a serious omission. Scholars have ignored how government surveillance is checked by surveillance intermediaries: companies like Apple, Google, and Facebook that dominate digital communications and data storage and on whose cooperation government surveillance relies. This Article fills this gap in the scholarly literature, providing the first comprehensive analysis of how surveillance intermediaries constrain the surveillance executive: the law enforcement and foreign-intelligence agencies that conduct surveillance. In so doing, it enhances our conceptual understanding of, and thus our ability to improve, the institutional design of government surveillance. 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.
