There was probable cause for issuance of a search warrant for defendant’s computer for child pornography, which defendant doesn’t contest, except for quibbling over a word in the affidavit about how the officer came upon defendant’s laptop because, even if true, that’s not material. The search is not void for not leaving the affidavit for warrant at the scene of the search. United States v. Senke, 2017 U.S. Dist. LEXIS 146903 (M.D. Pa. Sept. 12, 2017).
The state argues that the trial court’s findings were insufficient to preserve error on reasonable suspicion for a stop. The court goes to the merits and finds there was. State v. Turner, 2017 Iowa App. LEXIS 903 (Sept. 13, 2017).*
Posted inWarrant execution|Comments Off on M.D.Pa.: Search under SW not void for failure to leave affidavit in support at scene
A probation search of “property, personal effects” reasonably includes a cell phone and its data. There are no limits on what “personal effects” means in the search condition paperwork. And, this was misdemeanor probation, and the search of the phone included text messages. People v. Sandee, 2017 Cal. App. LEXIS 791 (4th Dist. Sept. 13, 2017): Continue reading →
Defendant was stopped for driving erratically through a construction zone, and when stopped, he was acting strange and officers ordered his hands up. He slowly raised them with a cell phone in hand. Hands on guns, officers approached and saw a shotgun on the front seat near him and ammunition and other ammunition “brass.” Defendant was quickly found to be a SVP from his records check, thus a felon. The seeing and seizure of the gun was “within the boundaries contemplated in a search incident to arrest: it was laying on the front passenger seat right next to Thum and within his immediate control.” United States v. Thum, 2017 U.S. Dist. LEXIS 147488 (D. Mont. Sept. 11, 2017). Note: Plain view is not mentioned, but that applies too. The gun was a clear safety threat which enables the officers to enter the car to separate the gun from the occupant. Thus, a protective weapons search under Michigan v. Long was authorized. Running defendant’s DL number almost certainly flagged him as an SVP immediately, which means he was a felon, and then the arrest follows.
Similar: The search of defendant’s car was valid as a search incident because there was specific information cash for a drug deal was in the car. The court expressly declines to separately decide the search under the automobile exception. United States v. Chambers, 2017 U.S. Dist. LEXIS 147219 (D. Del. Sept. 12, 2017).*
Defendant was staying at a Comfort Inn, and the hotel quickly concluded defendant was dealing drugs from the room. He didn’t respond to their entries to get out, so they called the police who came to remove him. When defendant didn’t respond to their knocks on the door, the hotel manager provided a key to the room, and the officer unlocked the door. The inside safety latch was in place, and the door wouldn’t open all the way. The officer could see defendant standing there with a bag of pills in his hand saying “wait a minute.” He didn’t open the door, so they forced their way in. “Appellant acknowledges a hotel employee can consent to law enforcement’s entry into a hotel room if the guest has been evicted.” The motion to suppress was denied [his concession seems to make the argument moot]. State v. Nickelson, 2017-Ohio-7503, 2017 Ohio App. LEXIS 3819 (7th Dist. Aug. 30, 2017).
Posted inApparent authority|Comments Off on OH7: “Appellant acknowledges a hotel employee can consent to law enforcement’s entry into a hotel room if the guest has been evicted.” He was
The Court of Appeals erred in reversing defendant’s conviction because of an alleged Fourth Amendment error where the uncontested evidence demonstrated beyond a reasonable doubt that a rational juror would have found him guilty without the disputed evidence, because that evidence played a limited role at trial, and other evidence of his guilt was overwhelming. Commonwealth v. White, 293 Va. 411, 799 S.E.2d 494 (June 1, 2017) [yes, just came through]
2254 petitioner is denied a COA on his habeas claim. His ineffective assistance of counsel claim against counsel on the search fails as a matter of law because the search was based on a telephone call between defendant and the victim in a child pornography case, not on his custodial interrogation that allegedly led to the search warrant. Reasonable jurists would not find merit in this claims. Rightmire v. Florida, 2017 U.S. App. LEXIS 17623 (11th Cir. May 15, 2017).*
Posted inStandards of review|Comments Off on VA: CoA erred in reversing conviction for 4A error where it didn’t contribute to verdict
Defendant could not show he had a reasonable expectation of privacy in the premises of a third person, although he was the person being looked for. The court discusses Steagald and the Ninth Circuit’s en banc Underwood (1983, Treatise §§ 29.03 n.13 and 29.15 n.8), and concludes that defendant can’t win on any Steagald theory for lack of standing. In addition, the state could not object to the specificity of the motion to suppress after the hearing. The court and state knew the issues, and that’s waived. State v. Martin, 2017-Ohio-7556, 2017 Ohio LEXIS 1689 (Sept. 13, 2017): Continue reading →
Defendant’s cell phone was subjected to a search incident for it’s data between the cert grant in Riley and the decision. Riley was a new rule and retroactive. There was no binding authority in Kentucky at the time, so the Davis good faith exception does not apply. Kamphaus v. Commonwealth, 2017 Ky. App. LEXIS 493 (Sept. 8, 2017).
Defendant stopped his car a car length into an intersection, albeit one without a crosswalk. His argument that this was a mistake of law is rejected. He clearly violated the statute. State v. Johnson, 2017-Ohio-7515, 2017 Ohio App. LEXIS 3828 (2d Dist. Sept. 8, 2017).*
Posted inUncategorized|Comments Off on KY: Search incident of a cell phone between Riley cert grant and decision was unreasonable; no binding authority in state, so no GFE
A Los Angeles lawmaker says he’ll pursue a bill in January that would bar federal immigration agents from arresting or questioning undocumented immigrants in state courthouses unless they first obtain a warrant.
Posted inUncategorized|Comments Off on Recorder: This California Bill Would Restrict Immigration Enforcement in State Courts
The nation’s top law enforcement leader and top spy on Monday urged Senate and House leadership to permanently renew a widely used but controversial U.S. surveillance law scheduled to sunset at the end of the year.
Posted inUncategorized|Comments Off on The Hill: Sessions, Coats push for permanent renewal of controversial surveillance law
After becoming addicted to opiods for treatment from a injury, defendant went on a crime spree committing over 40 offenses. His attorney worked out a favorable global resolution of the case. Once in the pen, with buyer’s remorse, defendant decided to challenge the effectiveness of defense counsel. He challenged 11 different searches. One of his challenges was to one police department’s inventory policy that didn’t become law until after the plea. It wasn’t clear to anyone, let alone defense counsel, that any of the motions to suppress would have been meritorious. Moreover, the plea worked out was all clearly to defendant’s benefit, and pursuing any motion to suppress prior to plea negotiations might well have made his favorable plea agreement impossible. Owen v. Taylor, 287 Ore. App. 639, 2017 Ore. App. LEXIS 1042 (Sept. 7, 2017): Continue reading →
Posted inUncategorized|Comments Off on OR: Global plea agreement to dispose of 40 charges from a crime spree wasn’t IAC where no motions to suppress were shown plausible and plea clearly favored defendant
2254 petitioner’s habeas claim was based solely on the Fourth Amendment and wasn’t at all a due process claim as he says. Thus, it’s bared by Stone v. Powell, and the COA is denied. Hoffman v. Harris, 2017 U.S. App. LEXIS 17599 (6th Cir. April 5, 2017).
Defendant’s frisk was reasonable: “Williams’s nervousness, odd movements, refusal to exit the automobile, and repeated attempts to access his pants pocket provided Cpl. Caffey reasonable suspicion that Williams was involved in criminal activity and was armed.” State v. Williams, 2017 Ala. Crim. App. LEXIS 60 (Sept. 8, 2017).*
The consenter voluntarily consented, and she had apparent authority to consent as a co-occupant of the premises. State v. West, 2017-Ohio-7521, 2017 Ohio App. LEXIS 3829 (2d Dist. Sept. 8, 2017).*
Posted inUncategorized|Comments Off on CA6: Habeas claim was truly 4A based and barred by Stone v. Powell
Under the totality of circumstances, there was probable cause to search defendant’s truck under the automobile exception. Judge Kozinski dissents, finding nothing remotely approaching probable cause and finding this a dangerous case for the citizenry. United States v. Faagai, 2017 U.S. App. LEXIS 17287 (9th Cir. Sept. 7, 2017): Continue reading →
Posted inUncategorized|Comments Off on CA9: “What is probable cause?” “What do you want it to be?”
The Hill: Motel 6: We aren’t sending customer lists to ICE anymore\ by John Bowden
Motel 6 announced it will stop sending customer lists to Immigration and Customs Enforcement (ICE) on Wednesday after its corporate office was made aware of the practice at some locations.
Posted inUncategorized|Comments Off on The Hill: Motel 6: We aren’t sending customer lists to ICE anymore
All the posts since 8/29 disappeared since 9 am. I made ten today. Just gone.
Update: Remember we were down two days? A new version of WordPress, and on new server with better security. The information is available on the old server. What you see now is what was transferred to the new version and tested. The data will be restored over the next couple of days when it’s transferred back from the other server. {Patience. That’s for me.}
* Another update: Holy crap [I hate OMG, and I shouldn’t use the real one], I just realized I’m conditioned by the internet to use “click bait.” Forgive me. Can I forgive myself?
Posted inUncategorized|Comments Off on Well, something’s wrong, but the answer is*:
"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.
