There was a typo on the warrant when created by the Magistrate. It said it had to be executed by “June 13” but it was issued after that and obviously should have said “July 13.” The error was caught by the affiant officer and the USMJ corrected before it left the courthouse. Defendant argued that it made the warrant void as a matter of law, but it isn’t. There’s no dispute from the defense there was probable cause. “Thus, the minor technicality does not, as a matter of law, render the search warrant defective.” United States v. Patterson, 2017 U.S. Dist. LEXIS 196490 (E.D. Va. Nov. 29, 2017). [There is nothing wrong with handwritten changes on the papers when the warrant leaves for execution. If anything, it proves that the issuing magistrate did his or her job.]
Defendant stopped his car because he was having a “medical episode” because of diabetes. When the door of the car was opened, the smell of marijuana was obvious. That justified a search of the car and then its impoundment, and a gun was found and defendant was a felon in possession. State v. Perdue, 2017-Ohio-8762, 2017 Ohio App. LEXIS 5198 (2d Dist. Dec. 1, 2017).*
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Defendant failed to preserve his Fourth Amendment claims for appeal. You don’t get a hearing just by asking. He didn’t make a proffer in his Franks motion which was enough to deny it. Then, whatever issue was left, the defense agreed to consider the motion later in the trial, and then it wasn’t because the defense didn’t bring it up again. That was waiver. “Counsel cannot stand silent and invite error. The right to a ruling on a pending motion ‘carries with it a commensurate responsibility [to bring the motion] to the attention of the trial court.’ … Appellant had to remind the court if he still desired a hearing on his motion, because failing to object to a court’s decision not to rule on a motion waives the right to appeal that motion.” Young v. State, 2017 Md. App. LEXIS 1188 (Dec. 1, 2017): Continue reading →
Posted inBurden of pleading, Burden of proof, Franks doctrine|Comments Off on MD: Def agreed to postpone suppression hearing until trial and then didn’t bring it up; invited error and not preserved
Defendant’s cell phone was subjected to a pre-Riley search incident. Defendant preserved the issue, and now he prevails. The state’s reliance on Davis good faith exception fails because the case the state relies on to support good faith reliance on prior authority isn’t on point. People v. Folsom, 2017 COA 146, 2017 Colo. App. LEXIS 1542 (Nov. 30, 2017), on rehearing 2017 COA 146M, 2017 Colo. App. LEXIS 1683 (Nov. 30, 2017).
Defendant’s motion to suppress was not submitted with an affidavit of his standing, and it is denied for that reason alone. On the merits, it’s denied because the probable cause is contained in an indictment. United States v. Johnson, 2017 U.S. Dist. LEXIS 195411 (W.D. N.Y. Nov. 3, 2017).
Posted inBurden of pleading, Cell phones|Comments Off on CO: Pre-Riley cell phone search incident not saved by GFE because no prior case on point
Police could enter a commonly used residence to look for a probationer they had probable cause to believe committed a violent crime, over the protests of the primary occupant, her mother. They entered over the mother’s objection but didn’t find the daughter. She sued, and lost because the entry was reasonable. Smith v. City of Santa Clara, 2017 U.S. App. LEXIS 24307 (9th Cir. Nov. 30, 2017). Summary by the court: Continue reading →
Defendant’s conclusory motion to suppress that states no law or fact is denied without a hearing.
State v. Dunson, 2017 Del. Super. LEXIS 616 (July 7, 2017): Continue reading →
A threshold arrest of defendant in his underwear justifies a protective sweep because he’d have to get his clothes. United States v. Rodriguez-Madera, 2017 U.S. Dist. LEXIS 196636 (D. P.R. Nov. 28, 2017): Continue reading →
This case will not be decided in a vacuum, and it appears that the justices appreciate both the magnitude of the moment and the complex nature of the problem that they have taken on. To understand the significance of this case, it is helpful to consider the history leading up to Carpenter and the points raised at the Court on Wednesday.
Posted inSCOTUS, Third Party Doctrine|Comments Off on The Hill: SCOTUS justices are ready to tackle privacy rights in the digital age
By withholding evidence of warrantless spying, the government avoided a court challenge to controversial mass surveillance – which is now before Congress.
Posted inFISA|Comments Off on The Intercept: NSA Secretly Helped Convict Defendants in U.S. Courts, Classified Documents Reveal
Posted inSCOTUS, Third Party Doctrine|Comments Off on WaPo: ‘The Volokh Conspiracy’ Blog: Thoughts on property and positive law after the Carpenter oral argument
“The mere filing of a motion [to suppress] is not proof that a search occurred.” Defendant first failed to prove that he was the subject of the search. Second, even if it was assumed, the hospital took the blood draw in the ER when he came in for diagnostic purposes, and it was not a governmental search. No officer requested the blood draw be done. The trial court erred in granting the motion to suppress and the appellate court in affirming. People v. Brooks, 2017 IL 121413, 2017 Ill. LEXIS 1294 (Nov. 30, 2017).
Defense counsel wasn’t ineffective for not challenging the consent search of the owner of the house where he maintained a bedroom because there was little chance of success. [The court does not specifically mention whether the owner could consent to a search of his bedroom; it’s implicit.] People v. Brewer, 2017 NY Slip Op 08411, 2017 N.Y. App. Div. LEXIS 8474 (3d Dept. Nov. 30, 2017).
“Despite the decriminalization of possession of less than ten grams of marijuana, a law enforcement officer who has reason to believe that an individual is in possession of marijuana has probable cause to effectuate an arrest, even if the officer is unable to identify whether the amount possessed is more than 9.99 grams. A requirement that law enforcement has to be absolutely sure that the amount of marijuana involved is more than 9.99 grams before they have probable cause to arrest is inconsistent with the concept of probable cause, which requires only facts sufficient to warrant a prudent person in believing that an individual is committing a crime.” Also, with probable cause, a search incident may precede the arrest. Barrett v. State, 2017 Md. App. LEXIS 1185 (Nov. 29, 2017) (summary by the court).
Posted inProbable cause, Search incident|Comments Off on MD: With decrim of <10 g. MJ, officer doesn't have to be absolutely sure of quantity to have PC
For Rule 41(g) motion to return property: “Flemming has failed to prove that he is a ‘person aggrieved by an unlawful search and seizure.’ In his motion, Flemming does not challenge the legality of the search and seizure in question. Flemming has also failed to prove that he is ‘lawfully entitled to possess the property,’ and does not make any showing as to why the plans should be returned to him rather than to Carlos Powell, from whom the plans were seized.” United States v. Flemming, 2017 U.S. Dist. LEXIS 195523 (E.D. Mich. Nov. 29, 2017).
The growing acceptance of biometric data as a form of identification for employees means that many employers will likely have to face either these or similar issues in the immediate future.
Posted inSurveillance technology|Comments Off on Law.com: The Impact of the Surge of Biometric Data Privacy Lawsuits Against Employers
The state didn’t raise the good faith exception in the trial court, but the court applies the “we can affirm on any ground” rule to apply it anyway. State v. Weakland, 2017 Ariz. App. LEXIS 202 (Nov. 28, 2017): Continue reading →
The state had the burden and failed to prove attenuation between the stop and unreasonable search and finding the evidence. It did not raise the issue to preserve it. [This was submitted 33 months ago after remand from Oregon Supreme Court. Why did this take so long?] State v. Knapp, 289 Ore. App. 139, 2017 Ore. App. LEXIS 1453 (Nov. 29, 2017).
Defendant’s motion to suppress evidence from a storage unit is denied as moot where nothing was seized from it. United States v. Bird, 2017 U.S. Dist. LEXIS 195396 (S.D. Ga. Sept. 27, 2017).*
Justices found common ground in asserting the relevance of the Fourth Amendment in the electronic age, even as they cited sharply different rationales.
Posted inCell site location information, SCOTUS|Comments Off on The Atlantic: A Liberal-Conservative Alliance on the Supreme Court Against Digital Surveillance
"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.
