Defendant was hostile and aggressive toward officers, and a second patdown was conducted after he was handcuffed finding a gun. His actions continued and heightened concern that he had a weapon on him. J.R. v. State, 2017 Ind. App. LEXIS 799 (Dec. 8, 2017).
Officers had reasonable suspicion to detain defendant, and whether his obstruction was sufficient to charge him is a question for trial. The motion to dismiss should not have been granted. State v. Gaines, 2017-Ohio-8906, 2017 Ohio App. LEXIS 5327 (2d Dist. Dec. 8, 2017).*
Defendant was convicted of robbery, and one of the things taken was an iPhone that was tracked by “find my iPhone” to capture defendant and his co-conspirators. Despite DNA and lack of an ID from the victim, the possession of the phone and other of the victim’s propertly shortly thereafter was sufficient evidence to convict. State v. Bybee, 2017-Ohio-8869, 2017 Ohio App. LEXIS 5299 (8th Dist. Dec. 7, 2017).*
Probable cause to search defendant’s vehicle existed based on officers’ collective knowledge, including a tip from an informant who had recently been found with cocaine, identified defendant as his primary supplier, and described how she hid cocaine under her car’s bumper. Defendant’s phone calls and text messages with the informant arranging for the sale and delivery of cocaine, and indicating to the informant that she was coming to meet him, also contributed to probable cause. United States v. Sullivan, 2017 U.S. App. LEXIS 24497 (11th Cir. Dec. 5, 2017).
Collective knowledge for a stop also was found in United States v. Carrera, 2017 U.S. Dist. LEXIS 199966 (N.D. Ind. Nov. 1, 2017),* adopted in part 2017 U.S. Dist. LEXIS 198530 (N.D. Ind. Dec. 4, 2017)* (there was reasonable suspicion independently so collective knowledge not important).
Defendant’s medical records from the state he was extradited from were not unlawfully obtained under HIPAA or the Uniform Act for Obtaining Witnesses from Without State. A “subpoena” under the act includes subpoenas duces tecum. Moreover, even if HIPAA had been violated, there is no private right of action under HIPAA and thus no exclusionary remedy. Commonwealth v. Williams, 2017 PA Super 382, 2017 Pa. Super. LEXIS 997 (Dec. 8, 2017).
2255 COA is denied. The Kansas courts resolved one Fourth Amendment claim on its merits, and that’s entitled to AEDPA deference. The second claim is waived for failure to have brought it in the state courts because he had a “full and fair opportunity” to litigate it (Stone v. Powell). Walker v. Schnurr, 2017 U.S. App. LEXIS 24709 (10th Cir. Dec. 7, 2017).*
The taillight on defendant’s car was out and that justified the stop. The video doesn’t tell, but the witnesses, including the wrecker driver, do, and that’s what the district court relied on. United States v. Roberts, 2017 U.S. App. LEXIS 24720 (10th Cir. Dec. 7, 2017).*
In this child custody case, the father put a recording device in the child’s backpack to record the child’s interactions with the mother. While the recording violated state law, the trial court did not abuse its discretion in permitting an expert to have the recording to assist in the custody matter. Abm v. Abid, 133 Nev. Adv. Rep. 94, 2017 Nev. LEXIS 123 (Dec. 7, 2017).
In Hawai’i, failure to rule on a motion to suppress is reversible error. [In my state, the defense has to get the ruling or it’s waived.] State v. Tokunaga, 2017 Haw. App. LEXIS 481 (Dec. 6, 2017)* (memorandum).
Whether a state court had the power to reconsider a motion to suppress is a state law question not cognizable in habeas. Craighead v. Bear, 2017 U.S. App. LEXIS 24710 (10th Cir. Dec. 7, 2017).*
Posted inExclusionary rule, Motion to suppress|Comments Off on NV: Illegally recorded conversation by recorder in child’s backpack can be used by expert in child custody proceeding
During the knock-and-talk at defendant’s apartment, he was not “in custody” for Miranda purposes, and his statements could be used against him. United States v. Butler, 2017 U.S. Dist. LEXIS 201765 (W.D. Mo. Nov. 16, 2017), adopted, 2017 U.S. Dist. LEXIS 201766 (W.D. Mo. Dec. 7, 2017).
A child shooting victim lived in apartment 101. After the shooting, there was evidence at the scene the child was taken to the apartment before the hospital. No gun had been recovered and there was at least some indication it was self-inflicted. There was probable cause for a search of the apartment for evidence of the shooting such as blood, fibers, the gun, and other things related to it. United States v. Cannon, 2017 U.S. Dist. LEXIS 201487 (E.D. Mich. Dec. 7, 2017).*
Posted inKnock and talk, Probable cause|Comments Off on W.D.Mo.: During the knock-and-talk def was not “in custody” for Miranda purposes
Defendant claimed he lost an SD card, and it ended up stuck to his girlfriend’s leg, and she discovered it when she wasn’t around him. He didn’t abandon it, so he had standing. The girlfriend put the SD card in her phone and discovered child pornography. She took it to a friend who also looked at it, and then he called the LVMPD. His look wasn’t state action. It is unclear whether the police exceeded the private search before getting a search warrant, but that doesn’t matter because there was independent probable cause before that. United States v. Ditirro, 2017 U.S. Dist. LEXIS 200683 (D. Nev. April 17, 2017), adopted, 2017 U.S. Dist. LEXIS 199627 (D. Nev. Dec. 5, 2017).
Probable hand-to-hand buy from a car was justification for a stop, and defendant had false information about himself which justified his handcuffing. “Further, the detective’s protective pat down for weapons (none were found) was justified given defendant’s extreme nervousness and erratic movements.” People v. Martin, 2017 NY Slip Op 08555, 2017 N.Y. App. Div. LEXIS 8678 (3d Dept. Dec. 7, 2017).*
Posted inAbandonment, Reasonable suspicion|Comments Off on D.Nev.: Def’s losing an SD card with CP on it wasn’t abandonment; but he loses because there was PC for SW
Defendant had a long driveway, and officers drove up the driveway. It was not part of the curtilage. A gate at the end, however, did mark the curtilage. After that, consent to enter was granted. United States v. Smith, 2017 U.S. Dist. LEXIS 201063 (D.N.H. Oct. 18, 2017).
Defendant was told he had a right to refuse consent but he testified he felt coerced to sign it. He asked for a lawyer, but he didn’t have a right to have one before consenting. State v. Riedel, 2017-Ohio-8865, 2017 Ohio App. LEXIS 5301 (8th Dist. Dec. 7, 2017).*
Posted inConsent, Curtilage|Comments Off on D.N.H.: Long driveway was not curtilage; that was marked by the gate nearer the house
Citizen complaint defendant’s vehicle was trespassing was a valid basis for a stop a few days later. United States v. Arredondo, 2017 U.S. Dist. LEXIS 199737 (D. Neb. Nov. 18, 2017),* adopted, 2017 U.S. Dist. LEXIS 199357 (D. Neb. Dec. 5, 2017).*
Defendant’s physically shaking when asked for ID was reasonable suspicion. People v. Jones, 2017 NY Slip Op 08557, 2017 N.Y. App. Div. LEXIS 8691 (3d Dept. Dec. 7, 2017).*
Driving too close and following too close justified defendant’s stop. United States v. Vasquez, 2017 U.S. Dist. LEXIS 200766 (E.D. Tex. Dec. 6, 2017).*
Posted inReasonable suspicion|Comments Off on D.Neb.: Citizen’s complaint of trespassing with a vehicle days earlier was RS for a stop
Defendant was alleged to have left the address his car was registered at to go to a controlled buy. That showed nexus to the house. United States v. Goldsberry, 2017 U.S. Dist. LEXIS 199446 (D. Md. Dec. 4, 2017).
Defendant had been investigated by the Kodiak police for seven years prior and had a wealth of information that defendant was a dealer. When an anonymous caller called with detailed information about defendant’s activities, it fit with everything they already knew, and it provided probable cause because of the pattern of conduct. Matthews v. State, 2017 Alas. App. LEXIS 198 (Dec. 6, 2017) (memorandum) (Alaska still applies Aguilar-Spinneli and not Gates).*
Posted inInformant hearsay, Nexus|Comments Off on D.Md.: Nexus shown by def’s car driven to drug deal was registered at his house and he left there to do the deal
Defendant told someone in a recorded jail call that he knew was being recorded his Facebook ID and password so it could be changed. That was a waiver of his reasonable expectation of privacy in the information on his Facebook account that AFOSI could access. Defendant was awaiting court martial in a county jail. United States v. Langhorne, 2017 CCA LEXIS 746 (A.F. Ct. Crim. App. Dec. 5, 2017):
Defendant was indicted for attempting to provide material support to a terrorist organization, and the government notified the defense that it also had FISA-gathered information. The court concludes that there was probable cause and the defense doesn’t get t see it. The court noted it viewed the materials in camera as a “skeptical” defense lawyer would and concludes there was a factual basis for the warrant and that a Franks hearing isn’t permitted. United States v. Shafi, 2017 U.S. Dist. LEXIS 201894 (N.D. Cal. Dec. 7, 2017): Continue reading →
Posted inFISA|Comments Off on N.D.Cal.: Court reviews FISA materials in camera and concludes PC exists and the defense doesn’t get to see it
CSLI was obtained by a warrant with probable cause defendant was involved in drug dealing, and that’s nexus between the cell phone and the crime. When the car was stopped, there was at least reasonable suspicion and the stop was not unreasonably extended. The officer’s turning off the video when the dog arrived was “concerning” but not fatal to the dog search. United States v. Hunt, 2017 U.S. App. LEXIS 24499 (6th Cir. Dec. 5, 2017): Continue reading →
Posted inCell site location information, Dog sniff|Comments Off on CA6: Turning off dashcam when drug dog arrived “concerning” but not fatal to the dog sniff
When the defendant challenges probable cause for arrest, hearsay is admissible to show it. People v. Horine, 2017 IL App (4th) 170128, 2017 Ill. App. LEXIS 743 (Dec. 5, 2017): Continue reading →
“Defendant lacks standing to challenge the sweep of Ms. Wells’ home. At best, Defendant was a frequent visitor to the home where he babysat children and worked on cars in the yard. Those limited connections to the home are insufficient to confer standing on Defendant.” On the merits, officers had an emergency ping order to locate defendant as a suspect in a drive-by shooting, and then a protective sweep was justified. Also, defendant’s girlfriend consented to the entry. United States v. Hanwood, 2017 U.S. Dist. LEXIS 201280 (E.D. La. Oct. 26, 2017), adopted, 2017 U.S. Dist. LEXIS 200946 (W.D. La. Dec. 5, 2017): Continue reading →
A court-approved receiver acting on behalf of a creditor is not a state actor for Fourth Amendment purposes. Wechsler v. Wechsler, 2017 Ida. LEXIS 332 (Dec. 6, 2017): Continue reading →
Posted inPrivate search, Search|Comments Off on ID: Court-approved receiver acting on behalf of a creditor is not a state actor for 4A purposes
Trial court erred in denying defendant’s pro se motion to suppress solely because he was represented by counsel. At least as a matter of state law, it’s up to defense counsel to assess the motion and decide what to do about it. State v. Thibodeaux, 2017 La. LEXIS 2815 (La. Dec. 6, 2017): Continue reading →
Posted inMotion to suppress|Comments Off on LA: Automatic denial of pro se motion to suppress filed by represented defendant was error; counsel needs to review
In this § 1983 case there was probable cause for issuance of an animal abuse warrant. To argue the probable cause was tainted by omission of information, plaintiff carries the burden, and here she failed. Kanciper v. Lato, 2017 U.S. App. LEXIS 24487 (2d Cir. Dec. 5, 2017).
Even though defendant’s arrest was held invalid, he’s not entitled to equitable expungement, following seven other circuits. United States v. Mettetal, 2017 U.S. App. LEXIS 24449 (4th Cir. Dec. 4, 2017).*
Posted in§ 1983 / Bivens, Burden of proof, Franks doctrine|Comments Off on CA2: In a § 1983 case alleging lack of PC from omission of information to issuing magistrate, it’s ptf’s burden
Petitioner’s habeas case was based on his alleged illegal arrest and search. Dismissed under Stone v. Powell. Keys v. Faulk, 2017 U.S. App. LEXIS 24509 (10th Cir. Dec. 5, 2017).
Throwing a lit cigarette from a car which hit police car was a valid basis for the stop. The stop was not unreasonably extended. United States v. Shuler, 2017 U.S. Dist. LEXIS 200520 (N.D. Ga. Dec. 6, 2017).*
Posted inExclusionary rule|Comments Off on CA10: 4A claim (not IAC) can’t be raised in habeas [this still comes up? Yes, because pro se inmates don’t know]
The fact the issuing magistrate didn’t question the tribal officer to supplement the affidavit doesn’t make the magistrate a “rubber stamp” for the police conclusion. The affidavit showed probable cause and it was not unreasonable to rely on it. Defendant didn’t show that he had a reasonable expectation of privacy in the place searched to have standing. United States v. Waln, 2017 U.S. Dist. LEXIS 199684 (D. S.D. Dec. 5, 2017): Continue reading →
Posted inNeutral and detached magistrate|Comments Off on D.S.D.: Issuing magistrate wasn’t a “rubber stamp” for the police by failing to question affiant where PC otherwise shown
"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.
