Defendant was a sex offender on probation after prison, and he had a search condition. The police and probation had information that he had child pornography on his computer. A probation search of an SD card revealed the child pornography. A suspicionless search was lawful. Even if reasonable suspicion were required, the police had it. United States v. Coffin, 2017 U.S. Dist. LEXIS 193246 (D. Me. Nov. 22, 2017).
Based on a CI, officers suspected that defendants would be doing a heroin deal in a McDonald’s parking lot, and they watched them. “But, to the Court, law enforcement reasonably assessed this amalgamation of circumstances and reasonably suspected Bernal and Perez of criminal activity. The above facts, in the Court’s view, combine to form a particularized and objective basis for suspecting Defendants of criminality. Thus, Bernal and Perez, driving a vehicle with an Illinois plate, arrived at the exact location at the approximate time that law enforcement anticipated a heroin delivery with those specifics. They lingered, with no obvious explanation, inside the McDonald’s for 45 minutes after concluding their meal, after 10:00 p.m., while Bernal periodically looked out a window to monitor the Element and otherwise sat inside clutching a cell phone.” United States v. Bernal, 2017 U.S. Dist. LEXIS 193809 (E.D. Ky. Oct. 26, 2017),* adopted, 2017 U.S. Dist. LEXIS 193172 (E.D. Ky. Nov. 22, 2017).*
After defendant’s arrest, the landlord evicted him and gathered up his stuff. The police got the paperwork from the apartment from the landlord, and some of it was incriminating. Because the police didn’t instigate the landlord evicting him other than by the mere fact of arrest, the landlord was a private searcher. United States v. Doss, 2017 U.S. Dist. LEXIS 190967 (D. N.M. Nov. 18, 2017).
“Specifically, Louis’s slow, erratic turn, the odor of alcohol that was strong enough for Dole to smell immediately upon approaching Louis’s vehicle, the open bottle within Louis’s reach, and Louis’s confused demeanor were sufficient to provide Dole with a reasonable suspicion of intoxication.” State v. Louis, 2017-Ohio-8666, 2017 Ohio App. LEXIS 5097 (2d Dist. Nov. 22, 2017).*
Posted inPrivate search, Reasonable expectation of privacy|Comments Off on D.N.M.: Def was evicted once arrested and couldn’t go back to apt; landlord’s gathering stuff was a private search, and papers were made available to police
ABAJ: Welcome to the 2017 ABA Journal Web 100 by Andrew Lefkowitz, Sarah Mui and Stephen Rynkiewicz. For the last ten years, it was called the ABA Journal’s Blawg 100. The name was changed this year to include podcasts, twitter feeds, and other internet content to expand.
Thank you, ABA. My 15th anniversary is February 24, 2018. WordPress tells me there are 17,200 posts in this format, and this is the third.
I’m in a murder trial this week.
Posted inUncategorized|Comments Off on FourthAmendment.com named to ABA Journal’s Web 100 top law blogs for third year
It could also seal the fate of our lack of right to privacy in information unless Congress acts. Considering all the FISA posturing and lack of action, we can’t be encouraged about that. Twenty-five years ago:
There’s a war out there, old friend. A world war. And it’s not about who’s got the most bullets. It’s about who controls the information. What we see and hear, how we work, what we think… it’s all about the information!
–Cosmo (Ben Kingsley) in “Sneakers” (1992)
Posted inSCOTUS, Third Party Doctrine|Comments Off on NYTimes: How a Radio Shack Robbery Could Spur a New Era in Digital Privacy
In a marijuana decriminalization state, merely finding evidence of marijuana usage, not trafficking, wasn’t probable cause for a search warrant even under Gates or the good faith exception. United States v. Lyles, 2017 U.S. Dist. LEXIS 193030 (D. Md. Nov. 20, 2017): Continue reading →
Posted inProbable cause|Comments Off on D.Md.: Because of state decrim, a trash pull that merely shows def was a user isn’t PC of trafficking
Defendant is quibbling rather than making a bona fide Franks argument that he was arraigned 11 times not 10 on other drug cases and that he was a “drug trafficker” when he insists he is just a “drug dealer.” One other thing was material, but it didn’t vitiate probable cause. United States v. Fletcher, 2017 U.S. Dist. LEXIS 191514 (D. Mass. Nov. 20, 2017).
Report of two men, one holding an AR-15, dragging a screaming woman into a house was exigency. United States v. Cox, 2017 U.S. Dist. LEXIS 191029 (W.D. Tex. Nov. 20, 2017).*
Posted inEmergency / exigency, Franks doctrine|Comments Off on D.Mass.: Def’s quibbling in a Franks challenge is insufficient: “I’m just a ‘drug dealer’ not a ‘drug trafficker.’”
Whether a stop was too long for Rodriguez can be fact-bound. Here, while it was all 24 minutes for the criminal history check with the delay in getting information back, the officer wasn’t talking to or questioning the defendant. “The Court concludes that Mayo was not ‘dilatory in [his] investigation,’ Sharpe, 470 U.S. at 687, and the wait for the results of the criminal background check was not a police tactic designed to obtain incriminating information.” United States v. Steele, 2017 U.S. Dist. LEXIS 191126 (D. Neb. Nov. 20, 2017).
Surveillance at 4 am “form[ed] the requisite ‘particularized and objective basis’ for suspecting that Bradford was involved in a narcotics transaction, which, in turn, justified any delay associated with conducting the dog sniff.” United States v. Bradford, 2017 U.S. Dist. LEXIS 190977 (D. Idaho Nov. 14, 2017).*
Posted inReasonable suspicion|Comments Off on D.Neb.: 24 minutes for a stop wasn’t unreasonable under Rodriguez where officer didn’t do anything other than wait for a response on his criminal history check request
“Our court granted Pryor a COA on one issue: whether the district court abused its discretion in denying Rule 60(b) relief from the denial of his § 2255 motion, by refusing to consider pages missing from his affidavit in opposition to counsel’s affidavit, and not holding an evidentiary hearing on his claim counsel rendered ineffective assistance regarding the voluntariness of consent to a premises search that resulted in the introduction of evidence seized in that search.” He didn’t however, brief the issue in the COA. Affirmed. United States v. Pryor, 2017 U.S. App. LEXIS 23298 (5th Cir. Nov. 20, 2017).*
There was a factual basis for this traffic stop, and then the officer smelled marijuana and defendant was stammering. United States v. Hutchins, 2017 U.S. Dist. LEXIS 188021 (E.D. Mo. Oct. 23, 2017),* adopted, 2017 U.S. Dist. LEXIS 187557 (E.D. Mo. Nov. 14, 2017).*
Posted inIneffective assistance, Reasonable suspicion|Comments Off on CA5: COA granted on whether District Court should have held a hearing on IAC claim, but pet’r didn’t brief it. Affirmed.
Right now, a murky web of federal and state statutes determine how easily cops can access data on Americans’ cell phones. While the Fourth Amendment requires a probable cause warrant to search personal property, the law hasn’t caught up with the ever-evolving nature of technology.
“[P]arole agents have the authority to conduct a protective Terry frisk of non-parolees within the course of executing their statutorily imposed duties, so long as reasonable suspicion supports the agents’ conduct.” Here, POs entered the parolee’s house for a visit and saw defendant there. He made them a little nervous, and ultimately there was a patdown based on reasonable suspicion he was armed. The court relied on State v. Barnes, 1996 Ohio App. LEXIS 3847 (2d Dist. Sept. 6, 1996) and People v. Rios, 193 Cal. App. 4th 584, 122 Cal. Rptr. 3d 96 (5th Dist. 2011). They tried to get him to leave so they wouldn’t have to search him, too. Commonwealth v. Mathis, 2017 Pa. LEXIS 3194 (Nov. 22, 2017) (dissent1, dissent2)
Under Terry, reasonable suspicion alone is enough for a frisk. Other analogous rationales for reasonable suspicion are protective sweep under Maryland v. Buie and protective weapons search under Michigan v. Long.
Collateral estoppel applied where defendant lost on his search issue in state court so he could not litigate it in federal court. Also, he claimed a Franks violation that the officers misled the issuing magistrate, but that was not factually developed to help him. Spencer v. County of Huron, 2017 U.S. App. LEXIS 23756 (6th Cir. Nov. 22, 2017).
A Yosemite National Park Ranger stopped defendant for traffic violations but suspecting DUI. “Defendant’s failure to comply literally with traffic rules and traffic control devices and erratic use of turn signals justified the initial stop to investigate the possibility Defendant was under the influence of drugs or alcohol or both. As part of their investigation they asked if Plaintiff would consent to FSTs. She did; she did not have to; but she did. She performed poorly enough to justify her being detained further to investigate the cause of the poor performance.” United States v. Bisso, 2017 U.S. Dist. LEXIS 189277 (E.D. Cal. Nov. 15, 2017).*
Posted in§ 1983 / Bivens, Reasonable suspicion|Comments Off on CA6: Litigating and losing a search issue in state court estops a federal claim over same issue
In a traffic stop, the officer saw credit cards with a male name but a female operating the car. “Upon asking the owner about the person named on the cards, the owner denied knowing that person or being the owner of the cards. Unprompted, she then emptied her purse onto the passenger seat, stated that she did not have any credit cards, and told the trooper, ‘you can check my car, you can check me.’” This was consent. People v. Hayden, 2017 NY Slip Op 08213, 2017 N.Y. App. Div. LEXIS 8267 (3d Dept. Nov. 22, 2017).
Defendant initiated contact with the police, and that led to reasonable suspicion something was awry and the officer had defendant empty his pockets. Then he got consent to search defendant’s vehicle, and things belonging to a woman were found. Defendant claimed the vehicle had been rented by his sister from whom he’d borrowed the car. He was sent on his way. Later, the officer learned that the woman whose stuff was in defendant’s car had been murdered. The search of the car was by consent. People v. Davis, 2017 NY Slip Op 08214, 2017 N.Y. App. Div. LEXIS 8278 (3d Dept. Nov. 22, 2017).*
Posted inConsent|Comments Off on NY3: Emptying purse on seat and saying ‘you can check my car, you can check me’ was consent
A citation or summons is not an “arrest” in common usage or in the single arrest situations in application of the U.S. Sentencing Guidelines. United States v. Ley, 2017 U.S. App. LEXIS 23637 (3d Cir. Nov. 22, 2017).
Defendant didn’t even attempt to show that the search warrants in this case were issued without probable cause or executed unreasonably. Therefore, he can’t succeed on his ineffective assistance of counsel claim. United States v. Chappell, 2017 U.S. Dist. LEXIS 187982 (D. Minn. Nov. 14, 2017).*
Posted inArrest or entry on arrest, Burden of proof|Comments Off on CA3: Citation or summons is not an “arrest” in common usage or in the single arrest situations in application of the U.S.S.G.
Posted inComputer and cloud searches, Private search|Comments Off on WaPo: Man investigated after Best Buy technicians tipped off FBI has child pornography case dismissed
"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.
