The state failed to prove exigent circumstances for a warrantless blood draw from the defendant. There were other officers around and a warrant could have been sought. State v. Sanders, 2017 Tex. App. LEXIS 11674 (Tex. App. – Ft. Worth Dec. 14, 2017).
The affidavit for the state search warrant showed probable cause and the good faith exception would also apply. United States v. Panky, 2017 U.S. Dist. LEXIS 205123 (N.D. Ga. Dec. 13, 2017).*
Defendant’s furtive movements in the car, which weren’t denied, justified a patdown of the defendant and a protective frisk of the car. United States v. Vaccaro, 2017 U.S. Dist. LEXIS 204625 (E.D. Wis. Dec. 13, 2017).*
The officer had reasonable suspicion to frisk defendant, and the drugs in his pocket were discovered by plain feel. United States v. Graves, 2017 U.S. App. LEXIS 25157 (3d Cir. Dec. 13, 2017).
Smell of marijuana during a traffic stop was probable cause for the automobile exception. People v. Singletary, 2017 NY Slip Op 08699, 2017 N.Y. App. Div. LEXIS 8783 (2d Dept. Dec. 13, 2017).*
A CI provided information about defendant, and the location information was corroborated by the officer; then a hand-to-hand buy was arranged with the CI, which the officer observed. That’s probable cause. United States v. Hogan, 2017 U.S. Dist. LEXIS 204831 (M.D. Pa. Dec. 12, 2017).*
Exigency supported the police entry into defendant’s home because of concern for safety of the children and a domestic dispute. After the entry and the abatement of the exigency, defendant’s wife consented to the officers staying in the house. United States v. Scott, 2017 U.S. App. LEXIS 25120 (8th Cir. Dec. 13, 2017).
Petitioner’s 2255 asserted on his Fourth Amendment claim that documents were obtained by an illegal search, but he fails to tell what documents and how he was prejudiced by their admission. Moreover, there are vague assertions witnesses must have perjured themselves for the search warrants to have issued. There is no offer of proof. “In his supplemental brief, Wilkes admits he has never seen the warrants, supporting affidavits, or inventory lists, that he was told the warrants were sealed, and that he has no facts or evidence to support his claim.” United States v. Wilkes, 2017 U.S. Dist. LEXIS 204408 (S.D. Cal. Dec. 12, 2017).*
Defendant did not make the required showing that the search warrant affidavit misstatement that a black Volvo with the key license plate number was seen in the area of the fifth robbery was made intentionally rather than merely out of carelessness as the district court found. Even if the affidavit had made clear that the Volvo with the license plate registered to the black Volvo was not reported to be present at the scene of the fifth robbery, there would still have been plenty of evidence on which a search warrant would issue. The supporting affidavit also provided probable cause for the warrants for the installation of the GPS tracker. “We thus agree with the District Court that Patterson’s arguments about the lack of evidence to support a finding of probable cause ‘strain[] credulity.’” United States v. Patterson, 2017 U.S. App. LEXIS 25163 (1st Cir. Dec. 13, 2017).
Posted inFranks doctrine|Comments Off on CA1: SW affidavit’s misstatements were careless at worst and not material to finding of PC
Defendant was riding a Greyhound bus from Denver to Indianapolis, and it had a bus change in Omaha. Luggage was pulled off the bus, and an interdiction officer noticed the new bag with defendant’s name on it. He also detected the smell of a masking agent. The officer had to communicate in Spanish with a translation app on the phone. The defense called a court certified translator that the translation could have been confusing to defendant. Nevertheless, the court finds the consent in Spanish off a smartphone app voluntary on the totality. The colloquy had been recorded. United States v. Garcia-Garcia, 2017 U.S. Dist. LEXIS 204049 (D. Neb. Oct. 17, 2017), adopted, 2017 U.S. Dist. LEXIS 203189 (D. Neb. Dec. 11, 2017): Continue reading →
Posted inConsent|Comments Off on D.Neb.: Consent derived from smartphone app Spanish translation was voluntary on totality
Defendant refused to consent to a search so the officers made the choice to impound his car. It was a reasonable choice, although with a mixed motive to search and not just inventory. Nevertheless, it’s valid. State v. Gray, 2017 Iowa App. LEXIS 1184 (Nov. 22, 2017).
The victim’s story here provided the probable cause to believe that defendant had a gun in his car. United States v. Buckman, 2017 U.S. Dist. LEXIS 202929 (D. S.C. Dec. 8, 2017).*
The interaction with police was by consent on defendant’s porch and he volunteered to show them phone records and pictures on his phone. He also invited them in to the house to show them a dark room and computer room. United States v. Johnson, 2017 U.S. Dist. LEXIS 203147 (E.D. Mo. Oct. 12, 2017) (R&R).
There were two search warrants authorizing the search of defendant’s computers for child pornography. He challenged the second but not the first, and that makes his argument moot. State v. Cato, 2017 Mo. App. LEXIS 1298 (Dec. 12, 2017).
A parole search requires the parole officer assigned to defendant be present. The court won’t go so far as to say that’s required for a probation search. Besides, this wasn’t presented to the trial court, and it’s waived. State v. Sinegal, 2017 La. App. LEXIS 2330 (La.App. 3 Cir. Dec. 13, 2017).*
Defendant showed potential for prejudice for defense counsel’s failure to file a motion to dismiss a jail search that recovered materials the defendant was preparing for defense counsel and thus protected by attorney-client privilege. Remanded for a hearing. In re Pers. Restraint Of Amos, 2017 Wash. App. LEXIS 2818 (Dec. 12, 2017).
Defendant’s cell phone was apparently legally searched without a warrant after his August 2007 arrest. He couldn’t argue on post-conviction that Riley applied to him when it wasn’t decided until 2014, and defense counsel couldn’t be faulted for not arguing it. Fusco v. State, 2017 Tenn. Crim. App. LEXIS 1022 (Dec. 11, 2017).
Posted inIneffective assistance|Comments Off on WA: Def counsel likely ineffective for not moving to suppress seizure of attorney-client materials from jail cell
More than two years into his tenure, a court-appointed monitor overseeing changes to the New York Police Department’s stop-and-frisk policies has found that some officers are still failing to document the encounters as required, according to a report released on Wednesday.
Posted inStop and frisk|Comments Off on NYTimes: City Police Officers Are Not Reporting All Street Stops, Monitor Says
Where one defendant didn’t file a motion to suppress but joined in a renewed motion to suppress of a codefendant, the motion is treated as waived. The procedure attempted circumvents Rule 12. Moreover, he doesn’t even have standing. United States v. Thompson, 2017 U.S. Dist. LEXIS 203129 (E.D. La. Dec. 11, 2017).
The probation supervision condition on defendant might have been unlawful under state law, but not clearly so. Besides, it was relied on in good faith to search defendant, and defendant’s arrest was clearly attenuated from the allegedly invalid arrest warrant under Herring. United States v. Wade, 2017 U.S. Dist. LEXIS 202971 (D. Ore. Dec. 11, 2017).*
Email search warrant is not suppressed. It clearly showed probable cause for a bribery scheme.
United States v. Percoco, 2017 U.S. Dist. LEXIS 203580 (S.D. N.Y. Dec. 11, 2017).*
Posted inE-mail, Motion to suppress, Reasonableness|Comments Off on E.D.La.: Not filing motion to suppress but joining in codef’s renewed motion to suppress was waiver
In a domestic dispute where the police were called, “The warrantless entry was justified by a legitimate and objectively reasonable concern for the safety of Christina Bak and the officers. They had information that Quarterman was making Christina Bak move out, he was armed, and he had been in a heated verbal altercation with her mother that morning. After Christina Bak opened the door, Quarterman made quick movements as if reaching toward the couch or getting up. Unable to see the gun from the doorway and aware that domestic disputes can turn violent, the officers decided to enter and control the situation.” United States v. Quarterman, 2017 U.S. App. LEXIS 24993 (8th Cir. Dec. 12, 2017).
“Regardless of whether defendant Robinson was merely ‘joking around,’ the Court finds that the officers reasonably believed that they had just witnessed an assault, thus, giving the officers the authority to conduct a Terry stop. Defendant Robinson’s actions in motioning towards his waistband with his hand gave the officers a reasonable, articulable suspicion that Robinson may be armed and presently dangerous. Therefore, the officers were justified in frisking defendant Robinson for the protection of themselves and others nearby while conducting the stop.” United States v. Robinson, 2017 U.S. Dist. LEXIS 203146 (W.D. Mo. Oct. 11, 2017),* adopted, 2017 U.S. Dist. LEXIS 202310 (W.D. Mo. Dec. 8, 2017).*
A San Jose bus driver thought that a passenger on a bus was a person there was a BOLO out on for having committed a lewd act on a child on a bus that was captured on the bus video. Defendant seemed to match the description. He called the police and they got defendant off the bus, determined that he was subject to a probation search condition and drugs were found on him. After a clear picture was obtained from the bus video and compared to defendant, they determined that he wasn’t the guy. Based on the citizen informant’s report and the closeness of the description, the search was valid, and the trial court erred in suppressing. People v. Stanley, 2017 Cal. App. LEXIS 1105 (6th Dist. Nov. 20, 2017), published Dec. 12, 2017.
Posted inInformant hearsay, Probation / Parole search|Comments Off on Cal.6th: Citizen informant’s report def matched a BOLO of a sex offender justified talking to him, and his probation search condition justified search
With no transcript of the suppression hearing, there’s nothing to contradict the trial court’s findings. State v. Harding, 2017-Ohio-8930, 2017 Ohio App. LEXIS 5373 (12th Dist. Dec. 11, 2017).
Defense counsel’s failure to file a motion to suppress wasn’t ineffective assistance of counsel where defendant didn’t show that it would have been successful. State v. Willis, 2017-Ohio-8924, 2017 Ohio App. LEXIS 5365 (6th Dist. Dec. 8, 2017);* State v. King, 2017-Ohio-8910, 2017 Ohio App. LEXIS 5333 (2d Dist. Dec. 8, 2017).*
The traffic stop for not signaling was justified, as shown by the dashcam video. State v. Bizzell, 2017-Ohio-8902, 2017 Ohio App. LEXIS 5326 (2d Dist. Dec. 8, 2017).*
The inventory in this case “deviated greatly” from the impoundment policy. When a gun was found, it turned into a criminal investigation and the officer ignored the inventory. No inventory was made. Sansbury v. State, 2017 Ind. App. LEXIS 804 (Dec. 11, 2017): Continue reading →
Posted inInventory|Comments Off on IN: Officer didn’t follow inventory policy and made this a criminal search; suppressed
An illegal stop and search that led to an outstanding warrant wasn’t attenuated by the finding of the warrant, even when the stop was not purposeful or flagrant. In re Jarrell C. (People v. Jarrell C.), 2017 IL App (1st) 170932, 2017 Ill. App. LEXIS 762 (Dec. 11, 2017): Continue reading →
Posted inAttenuation|Comments Off on IL: Illegal stop and search not fixed under Strieff by finding outstanding warrant after
It is not uncommon for federal prosecutors to use grand jury subpoenas to force banks to produce their customers’ financial records—while barring the banks from telling their customers. Is that constitutional?
Posted inGag orders|Comments Off on California Lawyer: Gag Orders on Grand Jury Subpoenas to Banks: The Next First Amendment Frontier?
Defendant arrived at a hospital ER after he was shot. His clothing was cut off him and on the floor, and the officer’s seizure was valid because it was in plain view and had clear evidentiary value from blood and bullet holes. It was also alternatively valid as an emergency seizure. United States v. Pugh, 2017 U.S. Dist. LEXIS 203387 (S.D. Ga. Oct. 19, 2017), adopted, 2017 U.S. Dist. LEXIS 202529 (S.D. Ga. Dec. 8, 2017): Continue reading →
Posted inEmergency / exigency, Plain view, feel, smell|Comments Off on S.D.Ga.: Def shooting victim’s clothes could be seized from ER floor as plain view or because of exigency
A CI’s reference to guns in defendant’s house in Dec. 2016 was not stale by April 2017. Defendant’s arguments about a Franks violation are rejected for lack of materiality to the finding of probable cause. United States v. Wilson, 2017 U.S. Dist. LEXIS 202541 (D. Mont. Dec. 8, 2017).
Birchfield was decided just before defendant’s trial, and he was permitted “in the interest of justice” to file an additional motion to suppress based on that. Commonwealth v. Torres, 2017 PA Super 381, 2017 Pa. Super. LEXIS 994 (Dec. 8, 2017).*
Defendant was properly convicted of false arrest as a deprivation of civil rights. He argued the attenuation doctrine that there was an independent source of information. There wasn’t, and the independent source doctrine is for the exclusionary rule not a defense to the crime of false arrest under color of law. United States v. Blakeney, 2017 U.S. App. LEXIS 24883 (8th Cir. Dec. 11, 2017).
Defendant’s search and seizure claims were resolved in the direct appeal and couldn’t be raised in post-conviction. State v. Salasky, 2017 Del. Super. LEXIS 636 (Dec. 5, 2017).*
The stop was based on speeding that was at least partially corroborated by the dashcam video. The video also supported defendant’s consent to search. State v. Johnson, 2017-Ohio-8909, 2017 Ohio App. LEXIS 5332 (2d Dist. Dec. 8, 2017).*
Posted inAttenuation, Independent source|Comments Off on CA8: The independent source rule doesn’t apply to a civil rights conviction for false arrest
"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.
