Defendant was driving in a high crime area and engaging in activity suggesting a drug transaction. When officer stopped his vehicle, he acted suspiciously and made furtive movements. The Michigan v. Long protective sweep of a car includes lifting the floor mats. Goodwin v. State, 2017 Md. App. LEXIS 1271 (Dec. 21, 2017).
A “bait car,” one left to see if it would get stolen, was, and it was found on property near defendant. Defendant never touched the car or got in it or placed anything in it or took anything out of it. He merely looked in twice. Another car arrived, and he got in it and left with the others. Stopping the car was without reasonable suspicion of criminal activity. A.M. v. State, 2017 Fla. App. LEXIS 19466 (Fla. 5th DCA Dec. 22, 2017).*
Posted inProtective sweep, Reasonable suspicion|Comments Off on MD: Michigan v. Long protective frisk of a car includes looking under floor mats
Defendant argued that the search warrant was overbroad because the property was a multi-family unit. Actually and factually, his argument boils down to: I can lock my door, so I have a separate privacy interest. The officers looked at the house, and it has one main entrance and a side entrance off the driveway with one street number, and a picture is in the opinion from the government’s filing that the assessor’s office shows it as a single family dwelling. Objectively, this was still a single family dwelling. Defendant offered undated pictures from different angles into evidence six months after the fact that showed two mailboxes and two satellite dishes. The photograph in the opinion from the assessor’s file shows one mailbox, and the satellite dishes aren’t visible (likely because they are on the back roof). If the searching officers discover that they have a multifamily dwelling after entry, they have to limit the search. There was nothing indicating that to them here, and the search warrant was particular to this defendant. It’s not like he was the victim of somebody else’s search warrant. United States v. Reddick, 2017 U.S. Dist. LEXIS 209968 (D. Conn. Dec. 21, 2017).
Posted inScope of search|Comments Off on D.Conn.: Police research before the search showed this was a single family dwelling, and it essentially was; remedy for that wouldn’t help def anyway
Despite the fact the Clark County DA announced they were no longer prosecuting ½ ounce or less marijuana cases along with voters adopting decriminalization of recreational marijuana, defendant’s detention for sleeping in his car in the middle of the Flamingo Boulevard in Las Vegas was a justifiable stop. Getting him out of the car was reasonable when the officer could smell burnt marijuana. It’s still illegal to operate while impaired. United States v. Hylton, 2017 U.S. Dist. LEXIS 210208 (D. Nev. Nov. 15, 2017), adopted, 2017 U.S. Dist. LEXIS 208932 (D. Nev. Dec. 20, 2017).
Posted inPlain view, feel, smell, Reasonable suspicion|Comments Off on D.Nev.: Despite legalization of recreational marijuana, smell of burnt marijuana in car is RS for detention for impaired driving
Police came to a disturbance call, and they talked to two people. Defendant was in a bedroom where he allegedly stayed and he was accused of pointing a gun at the owner. An officer asked him for consent and he said that he didn’t live there and couldn’t consent, although he said that his stuff was in the room. It was reasonable, then, for the officer to ask the homeowner for consent. State v. Bradley, 2017-Ohio-9224, 2017 Ohio App. LEXIS 5664 (2d Dist. Dec. 22, 2017).
Defendant was in a lock down residential facility for sex offender treatment when, as a part of therapy, he admitted to there being other child victims. He was not “in custody” for Miranda purposes at the time. State v. Stephens, 2017-Ohio-9230, 2017 Ohio App. LEXIS 5670 (2d Dist. Dec. 22, 2017).*
Posted inConsent, Scope of search|Comments Off on OH2: Def was in his bedroom and refused consent saying it wasn’t his house, so homeowner’s consent covered his room
A search warrant affidavit based entirely on hearsay is not unconstitutional for that reason alone. The hearsay has to be credible and the collective knowledge doctrine is one way to do so. If probable cause is shown on the totality, it would be sufficient. State v. Morris, 2017 Del. Super. LEXIS 672 (Dec. 19, 2017): Continue reading →
Posted inUncategorized|Comments Off on DE: SW affidavit based entirely on hearsay is not unconstitutional for that reason alone
Officers obtained a search warrant for defendant’s house for evidence of drug dealing for his being involved with a gang for years. The affidavit was detailed except that it only suggested defendant’s and another’s incarceration for eight years in the course of the conspiracy without explicitly stating it, other than that defendant had been arrested with a substantial quantity of drugs, and that was the allusion to pen time. Defendant made a Franks challenge, and it fails. First, the affidavit is not bare bones. Second, the affidavit referred to keeping money on the prison books of incarcerated co-conspirators. At worst, this was a negligent oversight. The Leon “generous standard” is satisfied, and the search warrant is not suppressed. United States v. Ingram, 2017 U.S. App. LEXIS 26325 (10th Cir. Dec. 22, 2017): Continue reading →
Posted inFranks doctrine, Nexus|Comments Off on CA10: SW affidavit was detailed, and Franks challenge targeted def’s being in pen during conspiracy; not shown reckless under Franks and GFE applies
The Salem inventory policy requires inventory of closed containers that might have something valuable in them. In defendant’s backpack was a nylon case which the officer believed might contain a computer harddrive or a computer gaming device. The inventory was reasonable, and the fact there is some discretion in the seizing officer as what to inventory does not make an inventory policy unreasonable. State v. Cleland, 289 Ore. App. 379, 2017 Ore. App. LEXIS 1581 (Dec. 20, 2017) (decided under state constitution, but its language is applicable to Fourth Amendment).
The codefendant let the police in the house, and they made a plain view. The evidence supports the finding of consent and plain view. United States v. Bourne, 2017 U.S. App. LEXIS 25718 (2d Cir. Dec. 20, 2017).*
Posted inInventory, Plain view, feel, smell|Comments Off on OR: The fact there is some officer discretion in conducting an inventory doesn’t make it violate 4A
Defendant was stopped on a bicycle for a headlight violation of what was likely a mixed motive stop because he was carrying a pillow case and that suggested residential burglary. The stop was conceded to be valid, but the continuation was not, and that put the burden on the state to show reasonable suspicion to continue it, and it didn’t satisfy its burden. State v. Blackstone, 289 Ore. App. 421, 2017 Ore. App. LEXIS 1583 (Dec. 20, 2017).
A federal defendant cannot appeal denial of his motion to suppress before judgment. United States v. Gillispie, 2017 U.S. App. LEXIS 26323 (6th Cir. Dec. 21, 2017) (order).*
Posted inBurden of proof|Comments Off on OR: When the state argues a stop was continued with RS, it has the burden of proof and here it failed
The exclusionary rule applies to forfeiture actions (One 1958 Plymouth Sedan) despite the state’s argument. The dog sniff during the normal processing was part of the stop. “Police may conduct a canine sniff during the time that it takes to issue a traffic citation ‘so long as the duration of the traffic stop is not extended beyond what is reasonably necessary to resolve the issue that led to the stop and issue a traffic citation.’” In re $75,000.00 United States Currency, 2017-Ohio-9158, 2017 Ohio App. LEXIS 5604 (8th Dist. Dec. 21, 2017).
Defendant’s car was parked with the rear end in the street partially blocking traffic. An officer stopped and he said he was out of gas. Defendant wanted help pushing the car, and the officer said he couldn’t because it was contrary to department policy. With that, defendant became verbally abusive, so the officer called for backup. Two others arrived, and one had stopped defendant earlier that night and smelled alcohol but not enough for a FST or an arrest. Defendant remained abusive, and he submitted to handcuffing after being told he was going to be Tasered. In plain view sticking from under the seat was a machete, and defendant was a prohibited person. The stop and view were permissible. State v. Botts, 25 Neb. App. 372, 2017 Neb. App. LEXIS 252 (Dec. 19, 2017).*
Posted inDog sniff, Plain view, feel, smell|Comments Off on OH8: Dog sniff that didn’t extend traffic stop at all because it was done by another officer was reasonable
Defendant’s girlfriend called the police because he’d threatened suicide in a phone call, and she consented to a search of their house. In the house the police found a notebook with a suicide note inside, and it was properly seized and read. “Upon a further search of the residence, an officer read the suicide note in its entirety, wherein defendant indicated that he had been raping and sexually abusing the victim for six years, that he had impregnated her and subsequently killed the baby.” The consent did not expire just because defendant was found in the back yard. Defendant was convicted of repeated rape of his daughter and murder in the death of a baby she had with him that was born alive and killed after he twice slammed its head on the floor immediately after birth. People v. Robinson, 2017 NY Slip Op 08906, 2017 N.Y. App. Div. LEXIS 8986 (3d Dept. Dec. 21, 2017).
The trial court took an unreasonable time (168 days) to rule on defendant’s motion to suppress, so the speedy trial clock restarted and speedy trial was violated. State v. Morgan, 2017-Ohio-9142, 2017 Ohio App. LEXIS 5589 (5th Dist. Dec. 18, 2017).*
Posted inConsent, Suppression hearings|Comments Off on NY3: Call about attempted suicide led to def’s girlfriend’s consent which included reading the suicide note which admitted to repeated rape and murder
Adding a third person to a jail call after the initial recording was played saying that calls were recorded was not a wilful interception of that person’s call under the state wiretap act. The only other state to deal with that question is Massachusetts which twice held that the state wiretap law wasn’t implicated by third party calls. Boston v. State, 2017 Md. App. LEXIS 1268 (Dec. 20, 2017).
The search of defendant’s cell phone led to 404(b) evidence of another drug transaction an hour before the one he was arrested for. It was not unduly prejudicial. Even so, it was harmless at best. State v. Brown, 2017 La. App. LEXIS 2378 (La.App. 5 Cir. Dec. 20, 2017).*
Defendant was at a conservation club he was a member of, and, during a party at the club, members were shooting at a pizza box made into a target. Because it was a weeknight and late, a neighbor was disturbed by the continued noise and called the police about the possibility animals were being shot. Forty-five minutes later, officers arrived and the shooting was over. The property was marked by a locked gate, and one of those leaving had to wait for the gate to be unlocked. “Under these circumstances, the officers could have either: (1) waited for the gate to be unlocked and stopped persons on their way out, or (2) obtained a warrant. There was no reason to ignore a locked gate.” “The officers did not need to jump over a locked gate in order to investigate what amounted to a noise complaint.” Under the state constitution, the state carries the burden of proof of reasonableness of a search under the totality of the circumstances, and the state did not carry it. Conn v. State, 2017 Ind. App. LEXIS 871 (Dec. 20, 2017): Continue reading →
Cyber Crime columnist Peter A. Crusco analyzes the issues raised in ‘Carpenter’ and compares them with those in ‘Weaver’ to shed new light on this evolving and often confusing area of privacy, third-party digital records and Fourth Amendment jurisprudence.
Defendant’s claim that reasonable suspicion for his continued detention would have dissipated is rejected. Defendant was driving a car where the front plate didn’t match the rear plate, and that strongly suggests it was a stolen car, and stolen cars are used to commit other crimes. A mail box key was the first thing in his lap. “On the facts here, even without the key, it is inconceivable that the officers would have paid no attention to the mail, checks, credit cards, and driver’s licenses that Chong had begun dropping as he got out of a car with mismatched plates. They effectively seized these items even before the frisk, and the simple act of the officers gathering the items would have begun to reveal their suspicious nature and suggested the need for closer inspection. There is no counterfactual version of this story reflecting what Chong implies (but does not state): that the officers would have simply handed the materials back to him without some kind of examination.” United States v. Chong, 2017 U.S. App. LEXIS 25528 (9th Cir. Dec. 18, 2017).*
Posted inReasonable suspicion|Comments Off on CA9: RS here didn’t dissipate during the stop when def got out of car and all kinds of identity theft stuff fell out of his lap
Defendant shot at a cop and committed other felonies. He was sentenced to 66-132 years. He was arrested as a prohibited person with a firearm blocks from his home. The state showed no nexus to the house for other evidence of firearms for a search warrant of the house. The good faith exception under the Pennsylvania Constitution is more scrupulously applied than under Leon. Commonwealth v. Torres, 2017 PA Super 408, 2017 Pa. Super. LEXIS 1083 (Dec. 22, 2017): Continue reading →
Posted inGood faith exception, Nexus, State constitution|Comments Off on PA: Nexus not shown for house, and no GFE under state law: def arrested blocks from home with firearm, and that doesn’t mean more at home
Haven uses the smartphone’s many sensors – microphone, motion detector, light detector, and cameras – to monitor the room for changes, and it logs everything it notices. Continue reading →
Police departments across the country have adopted body cameras to counter claims of abuse. But as they become more routine, cameras are turning into key tools for prosecutors.
Posted inBody cameras|Comments Off on NPR: In Practice, Police Accountability Is Not The Main Function Of Body Cameras
Grievances over lost privacy run through a trove of roughly 250 complaints by people whose laptops and phones were searched without a warrant as they crossed the United States border. Filed with the Department of Homeland Security since 2011, mostly during the Obama administration, these stories add a personal dimension to a growing debate over rights, security and technology.
The search authorization here was for text messages on a servicemember’s cell phone. The searchers, however, looked for pictures, too. The military good faith exception, Mil. R. Evid. 311(c)(3), specifically addresses the scenario when officers rely on a subsequently invalidated search warrant. The good faith exception to the exclusionary rule, however, does not extend to situations involving the unlawful execution of a valid warrant. The pictures must be suppressed. United States v. Morales, 2017 CCA LEXIS 757 (Army Ct. Crim. App. Dec. 13, 2017) (Treatise § 52.08 on GFE; § 52.39 on scope of authorization of searches under Mil. R.Evid. 315(c)).
A blank rental agreement was produced for the car defendant was driving. This doesn’t confer standing. Defendant was arrested and taken into custody for driving on a suspended driver’s license, and the vehicle was towed and inventoried within policy. United States v. White, 2017 U.S. Dist. LEXIS 208703 (W.D. Mo. June 19, 2017).*
Posted inOverseizure|Comments Off on Army Ct.Crim.App.: Search authorization for cell phone text messages did not permit looking at pictures
Defendant claimed standing in his girlfriend’s house because he regularly spent the night there. Her testimony was rejected because it sounded “scripted” and inherently unreliable because she claimed she didn’t smell 100 pounds of marijuana in her basement even though she did laundry down there every night. Moreover, the court doubts she even lived there because the lease agreement didn’t make sense, and she admitted there was a problem with it. United States v. Black, 2017 U.S. Dist. LEXIS 209507 (S.D. Ohio Dec. 20, 2017) (Treatise § 60.47 n.3).
Defendant was stopped for speeding, driving a rental car rented by another. He gave a false name and social security number. The stop was extended two hours for the drug dog, and there was reasonable suspicion. United States v. Pinex, 2017 U.S. App. LEXIS 25681 (9th Cir. Dec. 19, 2017).*
https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/12/19/16-30050.pdf
Defense counsel wasn’t ineffective for not further litigating a Playpen warrant that was doomed to fail. Gray v. United States, 2017 U.S. Dist. LEXIS 210998 (N.D. Ohio Dec. 22, 2017).*
Posted inStanding, Suppression hearings|Comments Off on S.D.Ohio: Def’s girlfriend’s standing testimony rejected because it sounded “scripted” and because she didn’t smell the 100 pds of MJ she was standing near regularly for days
"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.
