Ohio’s rule that a search warrant be executed in three days doesn’t include weekends. State v. Seaburn, 2017-Ohio-7115, 2017 Ohio App. LEXIS 3241 (3d Dist. Aug. 7, 2017).
Defendant’s jaywalking stop didn’t justify a patdown where defendant wasn’t even asked his name and there was no articulable reasonable suspicion. State v. Ewing, 2017-Ohio-7194, 2017 Ohio App. LEXIS 3382 (2d Dist. Aug. 11, 2017).*
In this DUI case, defendant consented to a search of her stuff when she retrieved it from her wrecked car and got into the police car. Even if not, it was harmless beyond a reasonable doubt based on the evidence of her swerving, accident, and admission she took prescription drugs. Daniel v. State, 2017 Tex. App. LEXIS 7579 (Tex. App. – Eastland Aug. 10, 2017).*
In this § 1983 action against a former deputy sheriff, which alleged excessive force in violation of the Fourth Amendment, the factual issues identified by the district court on summary judgment were immaterial in light of undisputed filmed facts of the fatal shooting recorded on video. A reasonable officer in the deputy’s position could have concluded that the decedent posed a threat of serious harm. The deputy’s credibility was immaterial because the video offered irrefutable proof that he was justified in believing that the decedent presented a threat at the time of the shooting. In seeking to identify a violation of clearly established law, in the course of opposing the deputy’s claim of qualified immunity, the plaintiffs applied a standard that was inconsistent with the proper standard of objective reasonableness. Guerra v. Bellino, 2017 U.S. App. LEXIS 14611 (5th Cir. Aug. 8, 2017).
The scope of a parole search has to be based on at least reasonable suspicion that the place to be searched was under the control of the parolee. There was no evidence available that showed he had joint control of the bedroom. In the bedroom was somebody else’s stuff, not defendant’s. United States v. Patterson, 2017 U.S. Dist. LEXIS 124381 (S.D. Cal. Aug. 4, 2017): Continue reading →
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Defendant raised a colorable claim of a Fourth Amendment violation and ineffective assistance in not pursuing it. Therefore, the district court erred in just assuming defendant would lose on any motion to suppress without a hearing. Reversed. Spriggs v. United States, 2017 U.S. App. LEXIS 14676 (11th Cir. Aug. 9, 2017).
Defendant’s conclusory allegation in this 2255 that defense counsel failed to adequately litigate the motion to suppress fails with that and the waiver of non-jurisdictional defects by the plea. Owens v. United States, 2017 U.S. Dist. LEXIS 123777 (N.D. Tex. Aug. 4, 2017).*
Posted inIneffective assistance|Comments Off on CA11: Def stated enough to get a hearing on a 4A IAC claim in his 2255 action
Noting pendency of Carpenter, the Tenth Circuit finds CSLI third-party records and they are bound to apply the third-party doctrine. United States v. Thompson, 2017 U.S. App. LEXIS 14551 (10th Cir. Aug. 8, 2017).
Defendant had a warrantless search condition on his release from confinement as a part of his sentence, and reasonable suspicion wasn’t required, although they did have it. State v. Summers, 2017 Tenn. Crim. App. LEXIS 698 (Aug. 8, 2017).*
The officers had knowledge of defendant’s probation search condition before the search, and the “probation compliance search” was reasonable. United States v. King, 2017 U.S. Dist. LEXIS 124383 (S.D. Cal. Aug. 7, 2017).*
Defendant lacked standing in his own backpack in a vehicle that was subject to search for impoundment for having no valid LPN under People v. LaBelle, 478 Mich. 891, 732 N.W.2d 114 (2007). The motion to suppress was properly denied. The backpack was in his lap when the car was stopped, and he got out and left it on the floorboard. People v. Mead, 2017 Mich. App. LEXIS 1252 (Aug. 8, 2017).
In the investigation of the murder of defendant’s wife on a military base, defendant wasn’t in custody for Fourth or Fifth Amendment purposes when interrogated. United States v. Walker, 2017 U.S. Dist. LEXIS 123766 (D. Haw. Aug. 3, 2017).*
Supported by the video of the stop, the court finds the officer did not have reasonable suspicion to continue questioning of defendant outside the incidence of the traffic stop. There is no de minimus exception to the reasonable suspicion requirement. The gun is suppressed. United States v. Clark, 2017 U.S. Dist. LEXIS 124295 (D. N.J. Aug. 7, 2017).*
Posted inReasonable suspicion, Standing|Comments Off on MI: Leaving backpack in car def was ordered out of was a lack of standing when the car got searched
The USMJ’s requirement of a taint team to review the materials seized in execution of the search warrant is unnecessary in this case and not required by the Fourth Amendment, and it is set aside. United States v. Sealed Search Warrant, 2017 U.S. Dist. LEXIS 125792 (N.D. Ala. Aug. 8, 2017): Continue reading →
Posted inWarrant execution, Warrant requirement|Comments Off on N.D.Ala.: Taint team not required for this document and ESI search, and that part of process vacated
Defendant was driving a rental car with permission of the renter, and that gives him standing in this circuit. There is a three way circuit split, and this court can’t resolve that. United States v. Bettis, 2017 U.S. Dist. LEXIS 125294 (D. Minn. June 19, 2017),* adopted, 2017 U.S. Dist. LEXIS 124451 (D. Minn. Aug. 7, 2017).*
Defendant’s refusal to take a breath test was admissible and subject to comment. Szopinski v. State, 2017 Ga. App. LEXIS 373 (Aug. 9, 2017).*
At this Arizona immigration checkpoint, “Even though Agent Renteria’s brief questioning regarding citizenship revealed that Sam is a member of the Tohono O’odham Nation, Sam’s suspicious demeanor justified further detention.” United States v. Sam, 2017 U.S. Dist. LEXIS 121310 (D.Ariz. Aug. 2, 2017).*
Posted inImmigration checkpoints, Standing|Comments Off on D.Minn.: The gov’t cites a three-way circuit split on standing in a rental car; the circuit authority controls
Defendant and his passenger ran out of gas on a freeway, and an officer came along to help. He was going to take them to the next gas station, and he planned to frisk them before putting them in the patrol car. When he asked about weapons, the companion denied any and looked the officer in the eye. When defendant was asked, he looked down and defeated and said no. That made the officer frisk him first. “Moreover, Fowles was by himself and was going to escort two individuals—at least one of whom Fowles had reason to believe was armed and may have just lied to him about that fact. With no protection from a second law enforcement officer and no bulletproof glass separating Fowles from his passengers, a reasonably prudent officer would be concerned for his or her safety.” Under these “unique facts” there was reasonable suspicion defendant was armed. State v. Nesbit, 2017 Wisc. App. LEXIS 588 (Aug. 9, 2017).
Posted inReasonable suspicion|Comments Off on WI: While RS might not have existed for a pro forma patdown, the officer had RS when this one happened
Although an arrestee adequately alleged that members of a parish council and sheriff’s office maliciously conspired to prosecute him under an unconstitutional statute in retaliation for online comments about council members, his right was not clearly established because there was conflicting authority as to whether his voluntary submission to arrest warrants constituted a “seizure” under the Fourth Amendment. The arrest warrants did not insulate defendants from liability because their false and misleading affidavits tainted the magistrate’s deliberations. Issuance of the arrest warrants was a show of authority which the arrestee submitted to by voluntarily surrendering at the sheriff’s office. Because the plaintiff arrestee failed to plead a violation of a clearly established constitutional right, defendants were entitled to qualified immunity. McLin v. Ard, 2017 U.S. App. LEXIS 14617 (5th Cir. Aug. 8, 2017).
Defendant’s cell phone was subject to search when he resided at a residential reentry program after release from an FCI. Child porn was found on the phone. Defendant’s reliance on Riley’s warrant requirement is misplaced. Yes, this is a cell phone, but it’s a Samson-like parole search. United States v. Jackson, 2017 U.S. App. LEXIS 14762 (8th Cir. Aug. 10, 2017).
A patdown revealed a gun hidden in defendant’s groin area. His strip search on the street produced the gun hidden in his underwear. The record doesn’t show whether others saw the strip search, a factor in reasonableness, but it certainly was possible because it was well-lit and next to a busy six lane highway. But, all things considered, particularly that a gun was involved and not just drugs, after what can only be called a highly sensitive inquiry into the totality of circumstances and all the factors from the caselaw, the court finds this reasonable. United States v. Meyers, 2017 U.S. Dist. LEXIS 122133 (D. S.C. Aug. 3, 2017): Continue reading →
Posted inStrip search|Comments Off on D.S.C.: Strip search for gun in groin was reasonable on the totality: “the search was less than ideal, but so were the circumstances”
When Ross Compton had a pacemaker installed, he had a constitutional right to remain silent. One would expect his body to have the same. But when the 59-year-old’s Middletown, Ohio, home erupted in flames last September, the electronic data stored in his cardiac device eventually led to his arrest and subsequent indictment on charges of arson and insurance fraud. And despite his attorney’s arguments to the contrary, earlier this month Butler county judge Charles Pater held that the functioning of Compton’s own body – heartbeat included – could be used against him at the upcoming trial.
Posted inSurveillance technology|Comments Off on WIRED: Your Own Pacemaker Can Now Testify Against You In Court
"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.
