“According to the defendant’s motion, he was using the rental car with permission from its authorized driver. (Doc. No. 16: Motion at 1). However, he has not alleged that he was listed as an authorized driver on the rental agreement with the car’s owner, Enterprise Rent-A-Car.” “n.2. The defendant is hopeful for a change in the law, (Doc. No. 16-1: Memorandum at 5); however, this inferior Court is obliged to follow published, controlling law in this Circuit.” Denied. United States v. Derrick, 2018 U.S. Dist. LEXIS 3115 (W.D. N.C. Jan. 3, 2018). [And Byrd v. United States on that issue is argued today.]
Defendant’s 2255 is denied. One of his claims is that defense counsel was ineffective for not calling a witness at the suppression hearing. He does not, however, show that the witness’s testimony has any relevance to the issuance of the warrant or would change the outcome. United States v. Fennell, 2018 U.S. Dist. LEXIS 2685 (W.D. Va. Jan. 8, 2018).*
Posted inIneffective assistance, Standing|Comments Off on W.D.N.C.: Def doesn’t have standing in a rental car, and the court is bound by existing authority
To justify a protective sweep, the mere possibility others might be on the premises is not reasonable suspicion under Buie and would essentially cause a protective sweep in every case. United States v. Yarbrough, 2018 U.S. Dist. LEXIS 2883 (N.D. Ala. Jan. 8, 2018): Continue reading →
Posted inProtective sweep|Comments Off on N.D.Ala.: The mere possibility others are on the premises isn’t RS for Buie
The totality of circumstances that the government presents fails to show reasonable suspicion. Defendant was subjected to a dog sniff by the stopping officer without it, and the motion to suppress is granted because it prolonged the stop. United States v. Wrobel, 2018 U.S. Dist. LEXIS 2512 (D. Idaho Jan. 3, 2018).
Posted inDog sniff, Reasonable suspicion|Comments Off on D.Idaho: Dog sniff by stopping officer prolonged the stop; effort to show RS fails
While “Defendant does not challenge the trial court’s further determination that the affidavit contained sufficient information to establish the CI’s reliability and credibility,” he faults the trial court for not having the CI produced for in camera review. The identity of the CI is privileged unless he or she is a material witness, and the trial court didn’t err in denying this discovery request. State v. Robertson, 289 Ore. App. 703, 2018 Ore. App. LEXIS 35 (Jan. 5, 2018).
Defendant’s furtive movements in the car around the console justified a protective frisk of the car for weapons. People v. Colon, 2018 NY Slip Op 00062, 2018 N.Y. App. Div. LEXIS 68 (1st Dept. Jan. 4, 2018).*
Posted inInformant hearsay, Protective sweep|Comments Off on OR: CI privilege doesn’t require production of CI for in camera review if there is PC
Defendant’s car had a police placed GPS on it. When defendant traveled outside of his normal paths, an alert was sent to the officer’s phone. He conducted a traffic stop which he admitted was pretextual because he’d known for quite some time that defendant was driving on a suspended license, and he was just biding his time to make a stop when it was likely to be more productive. The stop was valid despite it being pretextual. This didn’t affect two search warrants for his RV and other stuff that police obtained two days earlier. United States v. Parr, 2017 U.S. Dist. LEXIS 214309 (N.D. W.Va. Jan 06, 2018).
Posted inPretext|Comments Off on N.D.W.Va.: Officer’s admittedly pretextual stop for def’s driving on a suspended DL was still valid
Asking the same question three times within five minutes during a traffic stop prolonged the stop, but it was all with reasonable suspicion. United States v. Brooks, 2018 U.S. Dist. LEXIS 1691 (D. Mont. Jan. 4, 2018).
Defendant’s stop wasn’t unlawfully extended, and likely not extended at all, because the computer response to the inquiry during his traffic stop said that his PO should be called by any officer stopping him. Defendant was nervous and sweaty with needle track marks on his arm. The call was made while the ticket was being written, and then the officer went to ask defendant whether there was anything in the car. The trial court’s findings are supported by the record. State v. Urig, 289 Ore. App. 693, 2018 Ore. App. LEXIS 41 (Jan. 5, 2018).*
Defendant’s withholding a key pending a state court order was reasonable under the Fourth Amendment and not state action. Velazquez v. Logan, 2018 U.S. App. LEXIS 243 (9th Cir. Jan. 4, 2018).*
Posted in§ 1983 / Bivens, Seizure|Comments Off on D.Mont.: Asking the same question three times within five minutes during a traffic stop prolonged the stop, but with RS
The trial court considered the dashcam and the officer’s and defendant’s testimony because the dashcam wasn’t conclusive: “But I think it just goes to show you really need to review the video in every case. And in this case, after reviewing the video, I truly find the truth somewhere in between both positions.” These findings are still entitled to deference. State v. Martinez, 2018 N.M. LEXIS 3 (Jan. 5, 2018).
Exigent circumstances justified seizure of defendant’s cell phone in a case of sex trafficking of a minor pending getting a search warrant for it. United States v. Acosta, 2017 U.S. Dist. LEXIS 214107 (N.D. Ga. Dec. 19, 2017),* adopted, 2018 U.S. Dist. LEXIS 2285 (N.D. Ga. Jan. 5, 2018).*
Defendant’s search claim, among other claims, were decided by the direct appeal, so they can’t be brought in a 2255 petition. United States v. Merrell, 2018 U.S. Dist. LEXIS 1735 (D. Minn. Jan. 3, 2018).*
Posted inEmergency / exigency, Standards of review|Comments Off on NM: Trial court found truth between dashcam video and the testimony of the officer and the def; still entitled to deference on appeal
Defendant’s search issue is arguable and substantial and a question of first impression in this circuit, and the search claim is determinative of the conviction. This counsel’s in favor of granting release pending sentencing. United States v. Wilson, 2018 U.S. Dist. LEXIS 1744 (S.D. Cal. Jan. 4, 2018): Continue reading →
Posted inUncategorized|Comments Off on S.D.Cal.: Def’s substantial search claim was determinative of his conviction and bail would be granted pending sentencing
Defendant’s actions (his “encounter”), whatever it is isn’t described, with law enforcement officers when they executed the search warrant on his property are admissible to show consciousness of guilt. United States v. Hitt, 2018 U.S. Dist. LEXIS 1856 (E.D. Cal. Jan. 5, 2018).
Defense counsel wasn’t ineffective for not challenging the search that led to defendant’s conviction for lack of standing or abandonment of the property. And, it was a parole search that appeared reasonable. Perkins v. Kelley, 2017 U.S. Dist. LEXIS 214194 (E.D. Ark. Dec. 4, 2017),* adopted, 2018 U.S. Dist. LEXIS 221 (E.D. Ark. Jan. 2, 2018).*
Playpen warrant sustained. United States v. Hall, 2017 U.S. Dist. LEXIS 213465 (W.D.N.C., Dec. 7, 2017),* adopted, 2017 U.S. Dist. LEXIS 213000 (W.D. N.C. Dec. 29, 2017).*
Posted inWarrant execution|Comments Off on E.D.Cal.: Def’s actions and words during execution of warrant admissible to show consciousness of guilt
There was reasonable suspicion to detain a package in the mail for a dog sniff because of the way it was packaged and labeled suggested that it contained drugs. After the dog alert, there was a necessary delay in obtaining a search warrant. Defendant’s own motion to suppress suggests no standing: “The Defendant’s possessory interest was minimal, because he declined to pick up Parcel 1 after being told he could do so. Indeed, the Defendant’s own Motion skeptically refers to Parcel 1 as ‘allegedly address[ed] to Fernando Garcia.’ The government had a strong interest holding the property as evidence, because it had already probable cause to believe it contained narcotics, based on the canine alert. Having reviewed the evidence, the Court finds that the delay in seeking the search warrant was reasonable.” United States v. Garcia-Geigel, 2018 U.S. Dist. LEXIS 2171 (M.D. Fla. Jan. 5, 2018).*
Posted inDog sniff, Mail and packages, Standing|Comments Off on M.D.Fla.: There was RS for a dog sniff of a package in the mail, and the alert was PC for a SW; def’s motion to suppress suggested no standing
Defendant spent two weeks living in the apartment of another. “A king or a criminal may assert a violation of the Fourth Amendment.” He had a bedroom to himself. “The district court erred in finding that Allen did not have a reasonable expectation of privacy in the bedroom.” The primary tenant consented to the initial search. “Whether or not Allen had a reasonable expectation of privacy, the evidence would have been discovered. Whether or not Hindy’s consent was valid, the evidence would have been discovered. The evidence would have been discovered and admitted against Allen at trial whether or not the initial search of the bedroom occurred. Accordingly, the district court did not err in denying Allen’s motion to suppress.” United States v. Allen, 2018 U.S. App. LEXIS 272 (6th Cir. Jan. 5, 2018).
Posted inIndependent source, Standing|Comments Off on CA6: “A king or a criminal may assert a violation of the Fourth Amendment.” But def loses on the merits
The officer’s reasonable but mistaken belief that defendant’s picture was in a database of wanted persons made the arrest valid. “Additionally, the seizure of a person based on a reasonable mistake as to that person’s identity is constitutional. State v. Lynch, 94 N.C. App. 330, 333, 380 S.E.2d 397, 399 (1989) (‘[A]n arrest based upon a reasonable mistake as to the arrested individual’s identity is valid.’ (citing Hill v. California, 401 U.S. 797, 91 S. Ct. 1106, 28 L. Ed. 2d 484 (1971))).” “We find that the officer’s belief that defendant matched a photograph based on direct comparison was reasonable. Since the man whose photograph appeared in CJLEADS did not have a valid driver’s license, the officer had reasonable suspicion that defendant was driving without a valid driver’s license. Further, we find that pulling alongside defendant’s vehicle to get a second look at him, rather than relying on a single observation, was a reasonable step in an attempt to confirm defendant’s identity.” State v. Moore, 2018 N.C. App. LEXIS 10 (Jan. 2, 2018).
Posted inArrest or entry on arrest, Reasonableness|Comments Off on NC: Officer’s reasonable but mistaken belief that def’s picture was in a database of wanted persons made the arrest valid
Police came to defendant’s house because he was alleged to have stabbed somebody. They entered the curtilage without a warrant to look for evidence, and they found a bent bloody knife out in the rain. The warrantless entry was not shown to be with exigent circumstances because there was no need to worry about destruction of evidence from the beginning of the foray onto the property and there was no safety concern. The destruction of evidence rationale for exigency is more compelling in drug cases, but this isn’t. There was no readily foreseeable evidence to be destroyed before a warrant could be obtained. The assault didn’t happen at defendant’s house, the officers knew it, and that’s a big difference on what they’d expect to find. United States v. Neadeau, 2018 U.S. Dist. LEXIS 1975 (D. Minn. Jan. 5, 2018): Continue reading →
Posted inCurtilage, Emergency / exigency|Comments Off on D.Minn.: Def was a suspect in a stabbing, and police entered his property without a warrant claiming exigency; there was no exigency
Defendant, a sovereign citizen, indicted for willful failure to file tax returns, when booked by the U.S. Marshal refused to be fingerprinted, photographed, or have a DNA sample taken because they were “copyrighted.” He relented as to fingerprinting and photographing but not DNA. While defendant was pro se, the court asked for briefs. The court applies the Fourth Amendment and not copyright law. In a searching and comprehensive opinion, the court notes, that Maryland v. King is not limited in its language to serious crimes, and noting Scalia’s dissent. The rationale for DNA testing in the statutes and case law applies equally to misdemeanors and felonies. Other courts (see, e.g., People v. Lancaster, 373 P.3d 655 (Colo. App. 2015)) agree. The court urges an appeal and stays the taking of the sample pending appeal. United States v. Buller, 2018 U.S. Dist. LEXIS 2202 (D.S.D. Jan. 5, 2018): Continue reading →
Posted inDNA|Comments Off on D.S.D.: 4A permits taking DNA on booking from misdemeanor defendants
A shots fired call led to the stop of defendant’s car. The officer’s seeing spent shell casings inside was probable cause, and the reasonable suspicion calculus of extending the stop doesn’t apply. United States v. Cooper, 2018 U.S. Dist. LEXIS 1571 (E.D. Ky. Jan. 4, 2018).
Defendant’s traffic stop for no seat belt was probable cause for a stop. Defendant’s actions during the stop gave reasonable suspicion for more. Finally, the record supports the conclusion he consented to a search of the vehicle. People v. Cummings, 2018 NY Slip Op 00043, 2018 N.Y. App. Div. LEXIS 48 (3d Dept. Jan. 4, 2018).*
There was a GPS tracker on defendant’s RV placed by court order. The traffic stop was based on a suspended DL and a search warrant for the vehicle already issued. United States v. Parr, 2018 U.S. Dist. LEXIS 1534 (N.D. W.Va. Jan. 4, 2018).*
Posted inProbable cause|Comments Off on E.D.Ky.: Shots fired call led to stop on RS but seeing empty shell casings in car was PC
Posted inDog sniff, Reasonable suspicion|Comments Off on Salt Lake Tribune: Trooper who thought man’s Mormon music was suspicious and searched his car violated Fourth Amendment, judge says
"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.
