The CSLI warrant here was based on probable cause from a CI. “In sum, the Affidavit was not required to contain a statement regarding the confidential informant’s reliability and its absence is not dispositive of the reliability determination or the probable cause assessment. Magistrate Judge Eddy could reasonably infer that the CI provided accurate information based on its consistency with facts already known to law enforcement and because agents directly supervised the CI’s cooperation. Thus, there is no merit to Defendant’s claim that the CI was unreliable or that the warrant was not supported by probable cause. Under the totality of the circumstances, the information contained in the Affidavit established probable cause for issuance of the “ping” warrant to track the target telephone used by Defendant.” United States v. Brown, 2017 U.S. Dist. LEXIS 132848 (W.D.Pa. Aug. 21, 2017).
Two Playpen warrants sustained. United States v. Wheeler, 2017 U.S. Dist. LEXIS 133211 (N.D. Ga. June 12, 2017),* adopted, 2017 U.S. Dist. LEXIS 133317 (N.D. Ga. Aug. 21, 2017)*; United States v. Caswell, 2017 U.S. Dist. LEXIS 133212 (M.D. Fla. July 11, 2017).*
Defendant’s wife did not voluntarily consent to the police entry into the basement of her bar. First, they detained defendant behind the bar. Then police came to the bar in great numbers (6-15, depending on the witness) while the bar was open to investigate a bar fight that occurred a week earlier. She showed them that the surveillance cameras were dummy cameras and recorded nothing. They wanted to look in the basement. She wanted to de-escalate the situation and get them out of the bar. Her taking them to the basement was mere acquiescence to authority (Treatise § 12.15). The government’s argument of good faith exception does not apply to this warrantless search (Treatise § 8.22). United States v. Mallicone, 2017 U.S. Dist. LEXIS 133235 (N.D. W.Va. July 18, 2017), adopted, 2017 U.S. Dist. LEXIS 132023 (N.D. W.Va. Aug. 18, 2017).
As a passenger, defendant had standing to challenge the vehicle stop, which was appropriate. “Brown also challenges the subsequent search of the vehicle’s trunk. Brown does not have standing to challenge the search of the trunk because he had no reasonable expectation of privacy therein. In any event, the search of the trunk was based on probable caused and therefore, did not violate the Fourth Amendment.” United States v. Brown, 2017 U.S. Dist. LEXIS 130195 (E.D. Va. Aug. 14, 2017).*
Posted inGood faith exception, Standing|Comments Off on N.D.W.Va.: GFE generally doesn’t apply to warrantless searches
The discretionary decision to impound defendant’s RV was reasonable under the Fourth Amendment. The officer’s primary concern was arresting the driver for an outstanding warrant, not searching the vehicle. It would have been left on a rural road and posed a safety hazard as well as there being a risk it would be broken into. The fact defendant’s husband was an over-the-road truck driver and who just got into town off a road trip and was thus available by phone wasn’t determinative. Less intrusive measures to impoundment are not constitutionally required. United States v. Morris, 2017 U.S. Dist. LEXIS 129749 (N.D. Iowa Feb. 10, 2017), adopted, 2017 U.S. Dist. LEXIS 129317 (N.D. Iowa Aug. 15, 2017): Continue reading →
Posted inInventory|Comments Off on N.D.Iowa: Less intrusive measures to impoundment are not constitutionally required
A US Fish and Wildlife officer “interviewed Josh Monceaux who revealed that Williams fishes for and catches alligator snapping turtles in Texas and then sells them from his home in Elton, Louisiana. Monceaux also reported that Williams [G]oogle [E]arth* image of Williams’ property. [sic]” The officer went to the property, and he found the turtle tanks 40 meters from defendant’s house on the property. “The open fields doctrine allows searches based upon only visual observation.” Using a board to probe a tank for turtles was an unreasonable warrantless search under Hicks, but the plain view of turtle shells and seizure of bones was reasonable. United States v. Williams, 2017 U.S. Dist. LEXIS 130611 (E.D. Tex. July 27, 2017), adopted, 2017 U.S. Dist. LEXIS 130132 (E.D. Tex. Aug. 15, 2017): Continue reading →
Posted inOpen fields, Search|Comments Off on E.D.Tex.: “The open fields doctrine allows searches based upon only visual observation.” Using a board to stir a tank was a search
The stop and frisk all happened here within seconds, and the court finds that, while the question is close and not free from doubt, the evidence supports the district court’s conclusion that there was reasonable suspicion for the stop and then frisk. Defendant was encountered by an officer to ask him questions, and he stopped, but the encounter quickly had the officer touching defendant’s arm and then the frisk. The government didn’t argue certain facts to the district court and they are rejected for not having presented them before, but, still, there was reasonable suspicion. United States v. Belin, 2017 U.S. App. LEXIS 15992 (1st Cir. Aug. 22, 2017).*
The Milwaukee PD fired appellant for violating a citizen’s rights under the stop and frisk statute and Terry that led to the former officer’s use of deadly force on the citizen. The Board hearing the firing appeal applied the correct objective standard of law of Terry and the judgment is affirmed. There also need be no reasonable belief in multiple weapons. Manney v. Bd. of Fire & Police Comm’rs for Milwaukee, 2017 Wisc. App. LEXIS 616 (Aug. 22, 2017).*
Defendant was in the Navy, and, due to a potential rape allegation against him, a pretext text message was sent to him by NCIS on behalf of the alleged victim. Defendant was stationed in San Diego, but he was in training on a base in the Eastern District of Virginia. A Command Authorization for Search and Seizure (CASS) of his cell phone was sought and obtained from his superiors in San Diego for the search in Virginia. Child porn was found on the phone. Court finds that under Mil. R. Evid. 315, that commander lacked authority to issue the CASS. Still, the searches were with probable cause and the good faith exception will apply. The court relies on the Playpen cases of the good faith exception still applying. United States v. Seerden, 2017 U.S. Dist. LEXIS 130046 (E.D. Va. Aug. 14, 2017): Continue reading →
Posted inGood faith exception, Military searches|Comments Off on E.D.Va.: While def’s Navy commander in CA couldn’t authorize military search on a base in VA, GFE applies
911 was called because defendant had just beaten an alleged prostitute and people heard glass breaking and her yelling for help. Defendant admitted beating her. He failed to include a copy of the record of the suppression hearing in his appellate record. Looking to the trial testimony about the entry, the court finds it reasonable in response to an emergency call and a protective sweep. That which was found was in plain view from that entry. People v. Ramsey, 2017 IL App (1st) 160977, 2017 Ill. App. LEXIS 541 (Aug. 22, 2017).
The officer wasn’t “fluent” in the specifics of the county’s inventory policy at the time of the inventory, but his testimony and actions showed he was close enough to not violate the constitution. The vehicle was an RV left on the side of the road. United States v. Morris, 2017 U.S. Dist. LEXIS 129317 (N.D. Iowa Aug. 15, 2017).*
Posted inEmergency / exigency, Inventory|Comments Off on IL: 911 call about a beating in a house supported emergency entry and plain view; without record of suppression hearing, trial testimony can be used on appeal
The cases that apply to plaintiff’s Terry stop don’t necessarily apply to plaintiff’s frisk. Here, the precedents were too dissimilar, and defendants are entitled to qualified immunity for the frisk. Plaintiff was a “suspicious person” believed to be casing a store for a robbery, and that strongly suggests he is armed. Green v Newport, 2017 U.S. App. LEXIS 16011 (7th Cir. Aug. 22, 2017): Continue reading →
Posted inQualified immunity, Stop and frisk|Comments Off on CA7: RS man was casing a store for robbery made it reasonable to believe he was armed for a frisk
A search target has a common law right of access to the search warrant materials, but the case is remanded to the district court for more factual findings of why the target can’t get access. [The target did not raise a First Amendment right of access.] United States v. Sealed Search Warrants, 2017 U.S. App. LEXIS 15905 (5th Cir. Aug. 23, 2017) (see Treatise § 59.08): Continue reading →
Posted inWarrant execution|Comments Off on CA5: There is a common law right of access in SW materials by the target of the search
In the last budget, the state Legislature approved a measure requiring able-bodied adults with no dependents to be screened for illegal drug usage in order to receive state food assistance.
Posted inDrug or alcohol testing|Comments Off on Wisconsin Public Radio: Wisconsin Department Of Health Services Gets Input On Drug Testing For Food Stamp Applicants
The district court’s order to Apple to unlock defendant’s iPad was reasonable and appropriate under the All Writs Act and United States v. New York Telephone Co. Also, seizing an entire Facebook account wasn’t “open and shut” a general warrant, and the government gets the benefit of the good faith exception. United States v. Blake, 2017 U.S. App. LEXIS 15891 (11th Cir. Aug. 21, 2017): Continue reading →
The search of defendant’s car under a probation search condition was unreasonable but harmless error. The officers didn’t know of the waiver before the search. United States v. Job, 851 F.3d 889 (9th Cir. March 14, 2017), amended on rehearing and rehearing denied, 2017 U.S. App. LEXIS 15873 (9th Cir. Aug. 21, 2017) (reaching same result). Summary by the court: Continue reading →
Posted inProbation / Parole search|Comments Off on CA9: Officers have to know of probation search waiver before the search to rely on it
First, the search warrant in this drug conspiracy case wasn’t stale, although a long time had elasped during and between the times recorded in the affidavit of things that happened. While the evidence wasn’t strong, the deference accorded the issuing judge’s finding supports probable cause. Second, the particular USMJ that issued this search warrant in Nebraska was from the Northern District of Iowa but was not the one cross-designated to work in both districts. The good faith exception applied to that. A violation of Rule 41 isn’t necessarily a constitutional violation. Still the good faith exception applies. United States v. Ortiz-Cervantes, 2017 U.S. App. LEXIS 15818 (8th Cir. Aug. 21, 2017): Continue reading →
Posted inF.R.Crim.P. 41, Good faith exception, Staleness, Warrant requirement|Comments Off on CA8: (1) In drug conspiracy case, the govt overcame staleness because of ongoing crime; (2) Issuance of SW in D.Neb. by non-cross designated USMJ in N.D.Iowa was subject to GFE
The state showed probable cause for DUI and exigency to dispense with a warrant. Defendant crashed his motorcycle in a park parking lot, and the bike hit a pedestrian. The officer arrived more than 10 minutes after it happened was there alone dealing with two seriously injured people and had to reconstruct the accident. By the time EMS arrived 15-20 minutes after he called for them, it was getting on in time, and he felt he was unable to complete all his tasks quick enough to get a warrant. Also, he had no electronic devices to get an electronic warrant. State v. Chavez-Majors, 2017 Kan. App. LEXIS 62 (Aug. 18, 2017).
The evidence does not show that defendant was in custody or told that he would be restrained prior to a frisk. [Indiana case law requires a warning of right to counsel if in custody before a search.] Hammond v. State, 2017 Ind. App. LEXIS 352 (Aug. 17, 2017).*
Posted inDrug or alcohol testing|Comments Off on KS: Delay from police and EMS attending rural motorcycle accident was exigency to dispense with BAC warrant
The state seized cash in a package for mailing for forfeiture and then sought to turn it over to the federal government. The owners sought to recover the cash. The court finds that the seizure of the cash was without probable cause because the dog alert conceivably proved nothing other than that a handler of the package could have used or handled marijuana even legally before the package was shipped. The money is ordered returned. Bowman v. State, 2017 Ind. App. LEXIS 349 (Aug. 16, 2017): Continue reading →
Posted inDog sniff, Probable cause|Comments Off on IN: A dog alert on a package wasn’t PC because it only proved the package could have been handled by somebody who might have used MJ legally
Defendant was driving on a snowy evening and pulled out from a traffic light and fishtailed, the rear of his truck heading for a sidewalk, but he regained control without going off the road. The trial court found reasonable suspicion for the stop, and the Court of Appeals reversed. This court finds reasonable suspicion because it was reasonable for the officer to believe that a violation occurred, not that one actually be proved to have occurred. State v. Johnson, 2017 N.C. LEXIS 552 (Aug. 18, 2017), rev’g 784 S.E.2d 633 (N.C. App. 2016): Continue reading →
Posted inReasonable suspicion|Comments Off on NC: Question is RS for a traffic violation, not that one actually occurred
They already are yanking defendants awaiting trial and deporting them without conviction. I’ve had two already. And how is contracting your duty avoiding the Fourth Amendment?
Posted inImmigration arrests|Comments Off on NYTimes: Trump Administration Moves to Expand Deportation Dragnet to Jails
There’s no point in quibbling here over the basis of the traffic stop because the officer had reasonable suspicion of drug trafficking, too. United States v. Mejia-Palacio, 2017 U.S. Dist. LEXIS 128922 (E.D. Ky. July 25, 2017), adopted, 2017 U.S. Dist. LEXIS 127851 (E.D. Ky. Aug. 11, 2017).
Defendant was suspected of dealing in firearms without a license. ATF agents went to his house and talked to him, and he had receipts for 93 guns sold in the previous three years. Four were awaiting pickup at a gun dealer. The seizure of the guns from the gun dealer qualified for plain view because their evidentiary value was immediately apparent. United States v. Kennemer, 2017 U.S. Dist. LEXIS 132433 (D. Ariz. July 14, 2017),* adopted, 2017 U.S. Dist. LEXIS 131417 (D. Ariz. Aug. 16, 2017).* [How about just “no standing” because he wasn’t legally entitled to possession yet?]
Defendant was suspected of shipping firearms to Trinidad from Atlanta. “The nature of the criminal conduct in which Defendant was engaged, purchasing firearms for the unlawful export to Trinidad and involving utilizing third parties to make the unlawful firearms purchases and to assist with the unlawful export — all of which required record keeping and communication and coordination with his co-conspirators nearby and in Trinidad — is of the type that it is reasonable to infer that evidence of this activity would be maintained by Defendant in a readily accessible place, that is, his residence. And, due to the need to communicate with individuals in Trinidad, the Magistrate Judge quite reasonably concluded that Defendant did so electronically — either utilizing a telephone or computer. Furthermore, along with drawing his own reasonable inferences regarding where evidence of Defendant’s firearms trafficking and export would be stored, Magistrate Judge Anand was entitled to rely on Affiant’s opinion as to the probable location of this evidence. Affiant, based on his training and experience, opined that individuals engaged in the type of criminal conduct in this case maintained records, ledgers and other documents, such as, money orders and receipts, both on paper and by use of cellular telephones and computers, and that – with respect to the export of firearms – individuals are required by law to maintain records.” United States v. Alfred, 2017 U.S. Dist. LEXIS 132437 (N.D. Ga. July 18, 2017),* adopted, 2017 U.S. Dist. LEXIS 131894 (N.D. Ga. Aug. 17, 2017).*
Posted inProbable cause|Comments Off on N.D.Ga.: It’s reasonable to infer that def’s shipping firearms to Trinidad would have records in residence and on computers and cell phones there
"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.
