Defendant’s arrest was without probable cause for violating a no trespassing ordinance. It was a public place, open for business, defendant briefly entered and did nothing wrong. The search incident to the arrest thus fails too. Mistake of law as to probable cause here was unreasonable. People v. Maggit, 2017 Mich. App. LEXIS 884 (May 30, 2017) (not citing Heien).
The facts showed reasonable suspicion for a stop for avoiding a fixed immigration checkpoint on a thinly traveled road where a car with out-of-state plates sought to avoid the checkpoint by making a U-turn. In the officers’ experience, a U-turn almost always meant there were people being smuggled in the car. United States v. Cerecer-Fraire, 2017 U.S. Dist. LEXIS 82455 (D.N.M. May 30, 2017).*
JetBlue Airways will soon begin testing technology at Boston’s Logan International Airport that will use facial-recognition in lieu of a boarding pass to clear passengers to board their flights, the airline said [yesterday].
Posted inSurveillance technology|Comments Off on ABC News: JetBlue testing facial-recognition boarding system in Boston
Viewing defendant’s public Facebook is [hardly] a Fourth Amendment or Stored Communications Act claim. United States v. Khan, 2017 U.S. Dist. LEXIS 82493 (N.D. Ill. May 31, 2017): Continue reading →
In the Silk Road “drug kingpin” conviction, whether the third party doctrine succumbs to technology is going to have to come from SCOTUS since the doctrine came from it. The search warrant for defendant’s computer was sufficiently particular. Broad for computers is not necessarily unparticular. United States v. Ulbricht, 2017 U.S. App. LEXIS 9517 (2d Cir. May 31, 2017): Continue reading →
“Urrea has not explained how his being directed to exit his vehicle while the deputy conducted a records check illegally prolonged the stop.” Even so, his coming back to the patrol car to talk about it was by consent. [Really?] This was not a custodial detention for Miranda. State v. Urrea, 2017 Ariz. App. LEXIS 105 (May 30, 2017).
Posted inReasonableness|Comments Off on AZ: Being directed to get out of the car alone doesn’t extend the stop
Police received an anonymous tip that a man matching defendant’s description had a gun in a bar. The officer arrived right after the call and saw defendant. Under state case law, that alone wasn’t enough for a frisk without more. Defendant gave more by fleeing. Redfield v. State, 2017 Ind. App. LEXIS 227 (May 30, 2017).
Posted inInformant hearsay, Stop and frisk|Comments Off on IN: Anonymous report of man with gun wouldn’t alone support frisk, but def fled
Defense counsel wasn’t ineffective for not raising a challenge to the officer’s failure to knock-and-announce before entering defendant’s home on a search warrant for drugs. She had priors, there were controlled buys, and guns often go with drugs. The knock-and-announce question under the state constitution is reasonableness on the totality, and the court can’t say that its not. Ware v. State, 2017 Ind. App. LEXIS 229 (May 31, 2017) [Note that the court does not mention Hudson and the exclusionary rule. This is significant.]
Product bar codes found in plain view in defendant’s car were seized with probable cause. Officers experienced in investigating retail theft from a Best Buy were investigating thefts that involved altered bar codes. “Immediately apparent” for plain view really means “probable cause,” and they had probable cause when they saw them. People v. Petty, 2017 IL App (1st) 150641, 2017 Ill. App. LEXIS 347 (May 30, 2017): Continue reading →
Posted inPlain view, feel, smell|Comments Off on IL: “Immediately apparent” for plain view really means “probable cause”
Defendant had a subjective reasonable expectation of privacy in a rental vehicle he was driving with permission of the renter and potentially the implicit permission of the rental company because he was seen in it by them. [Whether they knew the details isn’t given.] However, his having a suspended license is determinative. The rental company could have taken it back. United States v. Everett, 2017 U.S. Dist. LEXIS 81628 (M.D. Fla. April 19, 2017), adopted, 2017 U.S. Dist. LEXIS 81039 (M.D. Fla. May 26, 2017).
Plaintiffs sued over state court actions, and the District Court found that the Younger exception for harassment and bad faith were not proved. Nothing in the record supports the exception. Schwab v. Kansas, 2017 U.S. App. LEXIS 9187 (10th Cir. May 26, 2017).
Posted in§ 1983 / Bivens, Reasonable expectation of privacy|Comments Off on M.D.Fla.: Unauthorized driver of rented car with suspended DL had no REP in car even if driving with permission of renter
The request to defendant to produce his ID when the police were investigating a potential trespass doesn’t constitute a seizure per se. Here, the defendant volunteered to take the officer to where he was going. That was all consent. People v. Hill, 2017 NY Slip Op 04236, 2017 N.Y. App. Div. LEXIS 4170 (1st Dept. May 30, 2017): Continue reading →
Posted inConsent, Seizure|Comments Off on NY1: A request to produce ID isn’t always a seizure
Relying on United States v. Beene, 818 F.3d 157 (5th Cir. 2016) (posted here), defendant’s car parked on the driveway in front of his home was subject to a dog sniff as if it was on the street. Because of the positive alert, a seizure and impoundment of the car was thus reasonable. United States v. Moody, 2017 U.S. Dist. LEXIS 81633 (W.D. Mo. March 20, 2017), adopted, 2017 U.S. Dist. LEXIS 81037 (W.D. Mo., May 26, 2017): Continue reading →
There is no constitutional basis for the Ninth Circuit’s “provocation” rule that an officer’s conduct that provokes a violent response is a separate Fourth Amendment claim. County of Los Angeles v. Mendez, 2017 U.S. LEXIS 3396 (U.S. May 30, 2017). Syllabus: Continue reading →
Posted in§ 1983 / Bivens, Excessive force|Comments Off on SCOTUS: Co. of LA v. Mendez: No constitutional basis for the Ninth Circuit’s “provocation” rule that an officer’s conduct that provokes a violent response is a separate Fourth Amendment claim
If the probation search condition applies on its face, and even if the search is for general law enforcement purposes, it’s not for the searching officer to inquire into the details of whether there might be some argument behind the scenes that might otherwise make the search unreasonable. Here, it was defendant’s claim he was a non-violent offender and was doing all that he was supposed to do on probation. Even if true, the search condition still applies. United States v. Aviles, 2017 U.S. Dist. LEXIS 81567 (N.D. Cal. Jan. 11, 2017): Continue reading →
Posted inProbation / Parole search, Reasonableness|Comments Off on N.D.Cal.: It’s not for LEO to second guess a probation search condition’s validity or application
“Here, the officers arrived to a chaotic scene. The Defendant was severely injured after being hit by a bottle. There were at least two other individuals present. The Police were told the assailant, who had demonstrated his violent nature, was not present. Based on these facts, along with rational inferences, the Court finds that it was reasonable for the officers to believe that an individual who may pose a threat may have been in the house. Thus, the protective sweep did not violate the Fourth Amendment. [¶] Moreover, the marijuana discovered in the living room was in plain view when the officers entered the premises and was not discovered during the protective sweep. And there was no testimony presented at the hearing that the protective sweep discovered any evidence. Thus, assuming arguendo that the protective sweep did violate the Fourth Amendment, there is no evidence to suppress.” United States v. Park, 2017 U.S. Dist. LEXIS 81143 (N.D. W.Va. May 3, 2017).*
Posted inEmergency / exigency, Protective sweep|Comments Off on N.D.W.Va.: Officers arrived at an injured person call, and the assailant wasn’t around; protective sweep permissible
Obtaining defendant’s blood draw without consent was a practice authorized by binding appellate precedent at the time it occurred. Therefore, the denial of defendant’s motion to suppress was appropriate because the officer was acting under a good faith belief that he was abiding by the law and not violating any rights of defendant. State v. Wilson, 2017 Tenn. Crim. App. LEXIS 434 (May 24, 2017) (without citing Davis).
The search warrants of defendant’s property were based on wiretaps. The wiretaps were valid, so the search warrants were issued with probable cause. Even excising the wiretap information from the affidavit for the search warrant, the affidavit still shows probable cause United States v. Aguirre-Benitez, 2017 U.S. Dist. LEXIS 80360 (N.D. Ga. April 21, 2017).*
Posted inGood faith exception|Comments Off on TN: Blood draw without consent was valid at the time it happened; therefore valid
In a 2255 case, it wasn’t ineffective assistance for defense counsel to fail to make a Franks challenge to a misstatement of crack v. powder cocaine in a search warrant application. United States v. Moyer, 2017 U.S. Dist. LEXIS 79279 (W.D. Va. May 23, 2017).
Reasonable suspicion: “Here, based on Hamilton’s non-compliance with the officer’s repeated commands to stop, his rapid walking away from the officer, and the gripping movements Hamilton made at his waistband, a reasonably prudent man in the circumstances in which Sergeant Soriano found himself would be warranted in the belief that his safety or that of others was in danger.” Pulling his service weapon for protection still didn’t make it an arrest. United States v. Hamilton, 2017 U.S. Dist. LEXIS 79657 (S.D. N.Y. May 24, 2017).*
"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.
