On deciding reasonable suspicion for following too close, “[d]eciding the issue presented by these motions does not require the court to decide whether Mr. Acevedo violated [the statute]. Instead, it requires the court to decide whether Lt. Stopper had an articulable, reasonable suspicion that Mr. Acevedo had violated [it].” One second behind another car is reasonable suspicion for following too close because the circuit had already established two seconds behind was. United States v. Acevedo, 2017 U.S. Dist. LEXIS 126630 (D. Kan. Aug. 10, 2017) (“The court does not perceive the two-second rule as a talisman. That is, it does not, when invoked, provide law enforcement officers with a foolproof rationale for justifying a traffic stop. Instead, the Tenth Circuit’s cases explain that the officer’s basis for suspecting a violation of the rule must be a ‘reasonable’ one. Salas, 756 F.3d at 1200-01.”).*
The officer here had reasonable suspicion that defendant was potentially involved in mail theft, in an area known to the police to be rife with it, by the way he was acting and juggling many packages. Defendant’s claim he was waiting for an Uber to pick him up is found not credible because he never looked at his phone which would have told him where the Uber car was. United States v. Karapetyan, 2017 U.S. Dist. LEXIS 128124 (C.D. Cal. Aug. 11, 2017).*
Posted inReasonable suspicion|Comments Off on D.Kan.: The question is not whether following too close statute was violated; it’s whether there was RS it was violated
Crimestopper’s anonymous tip that was not corroborated and had only generic information identifying the suspect had “virtually no indicia of reliability.” The stop violated the Fourth Amendment. United States v. Little, 2017 U.S. Dist. LEXIS 125664 (D. N.J. Aug. 8, 2017).
The only evidence the court has shows that the consent to search defendant’s cell phone was voluntary. United States v. Roberts, 2017 U.S. Dist. LEXIS 128034 (M.D. Tenn. Aug. 10, 2017).*
Posted inConsent, Reasonable suspicion|Comments Off on D.N.J.: Anonymous Crimestopper tip was too generic to be RS
Arguing that one’s arrest violated the Fourth Amendment didn’t preserve his lack of probable cause claim on appeal. Doremus v. State, 2017 Tex. App. LEXIS 7702 (Tex. App. – Houston (14th Dist.) Aug. 15, 2017).
The affidavits in support of the search of defendant’s iPhone supported probable cause that the phone was being used to communicate about destruction of evidence, including remote wiping of defendant’s iCloud account. United States v. Shipley, 2017 U.S. Dist. LEXIS 127924 (D. Ariz. June 29, 2017),* adopted, United States v. Shipley, 2017 U.S. Dist. LEXIS 127412 (D. Ariz. Aug. 10, 2017).*
Posted inBurden of pleading, Burden of proof, Nexus|Comments Off on TX14: Argument that arrest violated 4A wasn’t specific enough to preserve lack of PC
A digital camera, like a cell phone, can be seized incident to an arrest, but it can’t be searched without a warrant. While SCOTUS hasn’t applied Riley to digital cameras, the state constitution here affords the same protection to digital cameras as cell phones. The state did not argue standing below, and it can’t now on appeal. Commonwealth v. Mauricio, 2017 Mass. LEXIS 609 (Aug. 14, 2017).
Officers had reasonable suspicion to stop defendant’s car when the car and its operator had come up in the factual scenario supporting the affidavit for search warrant that was being executed. United States v. Clayton, 2017 U.S. Dist. LEXIS 125708 (W.D. Ky. Aug. 8, 2017).*
Posted inComputer and cloud searches|Comments Off on Mother Jones: Justice Department Accused of Breaching Constitution by Seeking Info on Visitors to Anti-Trump Website
Even though CSLI is before SCOTUS in Carpenter, this court had sustained seizure of CSLI before, so, even if Carpenter reverses, the Davis good faith exception will sustain this seizure. United States v. Brown, 2017 U.S. Dist. LEXIS 126504 (C.D. Cal. Aug. 7, 2017): Continue reading →
The district court’s findings of consent were supported by the evidence. Defendant provided a claimed expert witness that testified that the signature on the consent form appeared to be forged. The government’s cross examination attacked the witness’s methodology and qualifications, and the district court’s rejection of the opinion was within its discretion. Otherwise, the district court found the consent voluntary based on defendant’s recorded admissions at the scene and in a jail call. United States v. Lebeau, 2017 U.S. App. LEXIS 15021 (8th Cir. Aug. 14, 2017).
Defendant’s stop was justified by speeding, but also by detailed information from a CI that defendant would come by at that time carrying drugs. United States v. Harry, 2017 U.S. Dist. LEXIS 125061 (N.D. Iowa Aug. 8, 2017).*
Posted inConsent, Informant hearsay|Comments Off on CA8: Def consented by his admissions on two recordings and rejecting expert witness saying consent form was forged
The stop was justified by a seatbelt violation, but defendant didn’t have standing because the car was stolen. United States v. Joseph, 2017 U.S. Dist. LEXIS 123893 (M.D. La. Aug. 7, 2017).
The landing in front of an apartment is the same as curtilage. The officer’s presence there was justified by the emergency doctrine because of an alleged domestic dispute. United States v. Pelayo, 2017 U.S. Dist. LEXIS 124146 (D. Nev. June 13, 2017),* reconsideration denied, 2017 U.S. Dist. LEXIS 123488 (D. Nev. July 25, 2017).*
The trial court properly granted defendants’ motion to suppress evidence seized as a result of a warrantless search of their house. The information possessed by the officers at the time of the search, including a conclusory statement from a confidential informant and an unsuccessful attempt at a controlled buy at the home, was insufficient to establish that the female defendant, who was on probation, was engaged in illegal drug-related activity at the home. Moreover, there was no reasonable suspicion to support the search as a probation search, because the officers admitted they received vague information that defendants might be involved in drug activity and the officers were unsuccessful in an attempt to buy drugs. State v. Hamm, 2017 Tenn. Crim. App. LEXIS 711 (Aug. 11, 2017).
Posted inInformant hearsay, Probation / Parole search|Comments Off on TN: Conclusory statement from CI defs had drugs and unsuccessful controlled buy was neither PC for warrant nor RS for probation search
Application for a COA on a 2255 appeal for failing to timely file a motion to suppress is denied. Arrest warrants don’t get stale like search warrants, and such a staleness argument would fail. Also, the record shows that the motion to suppress would have failed because the protective sweep was valid and the search warrant was with probable cause. Therefore, no prejudice, and reasonable jurists could not disagree. Guadarrama v. United States, 2017 U.S. App. LEXIS 14975 (6th Cir. Feb. 13, 2017) (order).
In a DUI case, the state did not show exigent circumstances to enter defendant’s home to take him into custody to then have to seek a search warrant for his blood anyway. State v. Ritz, 361 Ore. 781, 2017 Ore. LEXIS 549 (Aug. 10, 2017), reversing 270 Ore. App. 88, 347 P.3d 1052 (2015): Continue reading →
Posted inDrug or alcohol testing, Emergency / exigency|Comments Off on OR: No exigency for warrantless entry into home for BAC when another warrant required for that anyway
The district court did not err in finding the inevitable discovery doctrine applied where officers responded to an assault call and saw defendant, believed to be a felon, with a gun. It was inevitable that police would have lawfully discovered his name. United States v. McDaniel, 2017 U.S. App. LEXIS 14787 (4th Cir. Aug. 10, 2017).*
The CI’s statement was probable cause on the totality, and it was corroborated. “The known facts and circumstances here support a finding of probable cause. Coleman’s description of the activities at Johnson’s condo was detailed and based on firsthand knowledge. He specified that he purchased 150-200 grams of heroin from Johnson on a weekly basis. He described to agents the manner in which he paid for the heroin and how much it cost. He told agents the location where he purchased the heroin, and he specified the unit number of the condo. He told agents that his most recent purchase of 200 grams of heroin at Johnson’s condo was on April 10, 2011, merely two days before agents obtained and executed a search warrant at the condo.” United States v. Johnson, 2017 U.S. App. LEXIS 14860 (7th Cir. Aug. 11, 2017).*
“As previously noted in [the first appeal of this case,] Tpr. Sharbono’s testimony provided the articulable facts that raised his suspicions of other illegal activity: (1) Manning had no driver’s license or paperwork for the vehicle he was driving; (2) upon questioning, Manning related a suspicious account regarding his travel; (3) a criminal background check revealed Manning’s extensive criminal history; (4) Manning did not know his passenger’s last name; and, (5) Manning’s passenger also had a criminal record.” That was reasonable suspicion. State v. Manning, 2017 La. App. LEXIS 1455 (La.App. 2 Cir. Aug. 9, 2017).*
The motion for new trial or acquittal is denied. One ground was suppression of evidence, and it had already been determined there was probable cause for the search before the four month trial, and the court hasn’t seen anything that changes the ruling. United States v. Chester, 2017 U.S. Dist. LEXIS 124914 (N.D. Ill. Aug. 8, 2017).*
The Playpen warrant is sustained. The R&R recommending granting the motion predates United States v. Horton, 2017 U.S. App. LEXIS 13333 (8th Cir. July 24, 2017), which upheld Playpen warrants. United States v. Carlson, 2017 U.S. Dist. LEXIS 124452 (D. Minn. Aug. 7, 2017).*
Posted inComputer and cloud searches, Reasonable suspicion|Comments Off on LA2: A host of RS: (1) no DL or paperwork on car; (2) suspicious travel plans; (3) extensive criminal history of driver and passenger; (4) not knowing passenger’s name
It is too easy for an email warrant to be a general warrant because there has to be an articulation of what the government is looking for. Moreover, all the emails may be seized so they can be searched looking for ones that are pertinent to the investigation. Here, the scope of the search was limited by enumerated crimes and a starting time for the emails. Finally, the government has a duty to protect against privileged emails being read by the search team. United States v. Patel, 2017 U.S. Dist. LEXIS 125072 (S.D. N.Y. Aug. 8, 2017): Continue reading →
Posted inE-mail, Overbreadth, Overseizure, Scope of search|Comments Off on S.D.N.Y.: The email SW here was limited by time and crime and that made it reasonable and not a general warrant
Defendant’s stop for an abrupt lane change and then driving 45 in a 55 was justification for the stop. There was an objective basis for the stop, so defendant’s racial profiling claim is rejected. The driver was obviously extremely nervous with a pulsing artery and shaking hands. The stories of the two occupants didn’t match, and this ripened to reasonable suspicion. State v. Dukes, 2017-Ohio-7204, 2017 Ohio App. LEXIS 3374 (4th Dist. Aug. 7, 2017).*
Defendant’s stop was justified for improper use of a transporter tag. After defendant pulled over, he took off again before the officer could get to him. Then the DL was out of date. The search of the person and car was valid. United States v. Garrette, 2017 U.S. Dist. LEXIS 123806 (N.D. Fla. Aug. 4, 2017).*
Defendant’s opposition to home walk throughs by his probation officer added to reasonable suspicion. When he spent $20,000 on Christmas gifts with a $1,500 a month income, they had cause to do one. United States v. Rogers, 2017 U.S. Dist. LEXIS 124726 (M.D. Fla. Aug. 8, 2017): Continue reading →
Posted inProbation / Parole search|Comments Off on M.D.Fla.: Def’s public opposition to PO walk throughs of his residence added to RS
Defendant drove up to a known drug house that was about to be searched by a SWAT team, and reasonable suspicion quickly developed for his stop. United States v. Clayton, 2017 U.S. Dist. LEXIS 128041 (W.D. Ky. June 13, 2017).*
There was probable cause that defendant was selling illegal spice out of his car, and that supported a search under the automobile exception. United States v. Nahmani, 2017 U.S. App. LEXIS 14924 (11th Cir. Aug. 11, 2017).*
Defendant’s weaving and slow speed was reasonable suspicion he was under the influence. Then it turned out his tags didn’t match the vehicle. Defendant challenged when the latter was known, but that doesn’t even matter as a justification for the stop. United States v. Franklin, 2017 U.S. Dist. LEXIS 124344 (S.D. Ga. July 11, 2017),* adopted, 2017 U.S. Dist. LEXIS 124120 (S.D. Ga. Aug. 7, 2017).*
Defendant was subjected to an intense search of all his belongings by attempting to enter a Social Security office in eastern Washington by private security contractors working the metal detector and x-ray machine. There was inadequate notice and consent of what would happen, and the search was too intensive for an administrative search considering all the technology available. United States v. Kerr, 2017 U.S. Dist. LEXIS 124378 (E.D. Wash. July 18, 2017): Continue reading →
Posted inAdministrative search, Consent|Comments Off on E.D.Wash.: An administrative search to enter a govt building has to be reasonable, too, with a warning of consent and this was far too intrusive
"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.
