Extending an immigration stop: “The Court finds that Agent Gonzalez’s questions related to Garcia’s citizenship, documents proving citizenship, and his travel plans and thus were within the scope of an immigration stop. Further, the Court finds that the questioning was brief, about two minutes. Based on Garcia’s nervous behavior, the Agent developed reasonable suspicion of criminal activity and then requested and received permission to pat down Garcia. The Court finds that the immigration checkpoint stop was not impermissibly prolonged. The motion to suppress is denied in this respect.” United States v. Garcia, 2017 U.S. Dist. LEXIS 79256 (S.D. Tex. May 24, 2017)
Defendant consented to a search of only his bedroom, as evidenced by the limitation written on the consent form. The court finds consent was not withdrawn, based on a credibility determination. United States v. Williams, 2017 U.S. Dist. LEXIS 79331 (M.D.La. May 24, 2017).*
The government failed to prove common authority by the consenter, defendant’s mother, for a search of the adult defendant’s separate bedroom. Common authority is far more readily found when the child is a minor, but not when the child is an adult. Also, a warrant for defendant’s arrest permitted an entry and there was reasonable suspicion for a protective sweep. United States v. Gonzalez-Espinal, 2017 U.S. Dist. LEXIS 81376 (D.P.R. May 26, 2017).
Asleep at the side of the highway with no one else in the car justified the inference defendant drove there on his own, and he was found under the influence. That led to his arrest and search of the car. United States v. Rolley, 2017 U.S. Dist. LEXIS 81186 (W.D. Ky. May 25, 2017).*
Posted inUncategorized|Comments Off on D.P.R.: Parents lacked apparent authority to consent to adult child’s room
“The defendant now appeals, arguing among other things that Iowa’s search warrant statutes do not authorize anticipatory warrants. We agree, but hold that where the federal government conducts a search pursuant to a valid federal search warrant for purposes of a federal investigation, the mere fact that such a warrant would not have been statutorily authorized in Iowa does not compel the results of the search to be suppressed in the Iowa courts. For this reason, and because we also find the defendant’s other claims of error to be without merit, we affirm the defendant’s conviction and sentence.” State v. Ramirez, 2017 Iowa Sup. LEXIS 57 (May 25, 2017).
Posted inAnticipatory warrant, Conflict of laws|Comments Off on IA: While Iowa doesn’t recognize anticipatory warrants by statute, a federal anticipatory SW that ended up in state court was valid
U.S. intelligence agencies conducted illegal surveillance on American citizens over a five-year period, a practice that earned them a sharp rebuke from a secret court that called the matter a “very serious” constitutional issue.
The criticism is in a lengthy secret ruling that lays bare some of the frictions between the Foreign Intelligence Surveillance Court and U.S. intelligence agencies obligated to obtain the court’s approval for surveillance activities. Continue reading →
Posted inFISA|Comments Off on FISA judge finds five years of illegal surveillance of some U.S. persons, but it wasn’t willful; remedial measures required; still, 4A not violated
Defendant’s actions of having a sign and warning people of a sobriety checkpoint did not amount to obstruction of official business, so his arrest was unjustified. Ohio practice requires the police to warn of sobriety checkpoints, too. City of Parma v. Odolecki, 2017-Ohio-2979, 2017 Ohio App. LEXIS 2008 (8th Dist. May 25, 2017).*
The officer here was on foot patrol and he heard a gunshot and then defendant appeared in front of him on foot. The officer drew his weapon and told defendant to get on the ground, and he didn’t. Defendant fled, and his flight justified a frisk when he was captured. State v. Wheeler, 2017-Ohio-4013, 2017 Ohio App. LEXIS 2064 (2d Dist. May 26, 2017).*
Posted inStop and frisk|Comments Off on OH8: Citizen’s warning of sobriety checkpoints in Parma, Ohio was protected speech and not obstruction of governmental business
Defendant’s friends saw a police officer coming and all walked away. Defendant did not. That did not mean that when the encounter started, defendant was free to leave. On this record, he was not, and it was a detention without reasonable suspicion. Quoting Collins v. State, 115 So. 3d 1040, 1043 (Fla. 4th DCA 2013), “‘the arresting officer testified that the [d]efendant was not free to leave after the officer told him to stand by while he investigated.’ Id. We held that ‘a person’s mere presence on a property is not sufficient to give rise to a reasonable suspicion that the crime of trespass is being committed and cannot be the basis for an investigatory stop.’” N.S. v. State, 2017 Fla. App. LEXIS 7546 (Fla. 4th DCA May 24, 2017)
Posted inReasonable suspicion, Seizure|Comments Off on FL4: Just being on somebody else’s property is not RS of a crime without more; telling def to “stand by” is a seizure
Defendant consented to police entry by stepping aside and gesturing for police to enter. United States v. Faler, 2015 U.S. Dist. LEXIS 188840 (S.D. Iowa April 28, 2015).*
During a traffic stop, defendant was the passenger, and he was fidgety. The officer ordered him out of the car, and he consented to a patdown. Sticking out of one pocket was a baggie with drug residue that was lawfully found. State v. Diluzio, 2017-Ohio-2988, 2017 Ohio App. LEXIS 2021 (8th Dist. May 25, 2017).*
Posted inConsent|Comments Off on S.D.Iowa: Stepping aside and gesturing for officer to enter house was consent to enter
First undercover officers and then other officers entered plaintiff’s strip club to investigate alleged misdeeds inside. No warrant was needed under Macon because the parts of the club entered by the officers were open to the customers. ABECE Operating v. City of Detroit, 2017 U.S. Dist. LEXIS 80163 (E.D. Mich. May 25, 2017).
The odor of alcohol coming from defendant after his automobile accident essentially was enough to have breath test. (Other factors were discussed, but they don’t amount to much.) State v. Barger, 2017-Ohio-4008, 2017 Ohio App. LEXIS 2029 (2d Dist. May 26, 2017).*
Law enforcement’s use of body-worn cameras has expanded around the country, largely in response to high-profile civilian deaths at the hands of officers and calls for sweeping changes and accountability. But as more police departments have adopted the cameras, they have also begun to cannily take advantage of a tool that they once distrusted. They are releasing video clips of officers carrying out impromptu acts of heroism.
Posted inBody cameras|Comments Off on NYTimes: Body Cameras, Long Distrusted, Now Help Show ‘Human Side of the Badge’
Child pornography was able to be downloaded from plaintiff’s IP address, so Minot police got a search warrant for plaintiff’s address, which appeared to be a single family dwelling. When they got there, however, they learned that 11 people lived there as subletting tenants, and all had access to the wireless internet. No child pornography was found there. They went to defendant’s work and interrogated him and to seek to search his computer in his car in the parking lot. They got a search warrant for his computer and nothing was found. He was fired from his job and was forced to move out of his home. The officers get qualified immunity because there’s no allegation of deliberate falsehood. The omission of information that there was no direct connection between him and child pornography isn’t a misleading omission. Doe v. Olson, 2017 U.S. App. LEXIS 9086 (8th Cir. May 25, 2017). Dissent: Continue reading →
Defendant had consented to a search of his cell phone in writing. He’d been Mirandized and then was asked for the passcode, which he gave. The request (not an order) for the passcode, was not an interrogation. United States v. Robinson, 2017 CCA LEXIS 378 (A.F. Ct. Crim. May 15, 2017): Continue reading →
Posted inCell phones|Comments Off on A.F.Ct.Crim.App.: Request for phone password after signed consent to search phone after Miranda warning not interrogation
Transfer of a gun on the street which appeared to be prearranged suggested criminal activity, and thus was reasonable suspicion. Commonwealth v. Suriel, 2017 Mass. App. LEXIS 73 (May 26, 2017). (This is Massachusetts. In an open carry state, this certainly wouldn’t mean anywhere near as much. Also, it’s reasonable suspicion, not probable cause.)
Another Playpen warrant sustained. United States v. Hernandez-Cuellar, 2017 U.S. Dist. LEXIS 80804 (E.D. Tex. May 26, 2017).*
Posted inReasonable suspicion|Comments Off on MA: Transfer of gun on the street was RS
The USPS Postal Inspector did not act reasonably in determining that the package with methamphetamine was abandoned. The recipient disclaimed any interest in it, and the investigation into the sender, who would still have an interest in it, was woefully incomplete. There was a typo in the address. The government ascribes that to an attempt to be misleading, but that helps show probable cause, not abandonment. The government also fails on showing inevitable discovery. United States v. Vang, 2017 U.S. Dist. LEXIS 77429 (E.D. Wis. March 31, 2017), adopted, 2017 U.S. Dist. LEXIS 77428 (E.D. Wis. May 22, 2017): Continue reading →
Posted inAbandonment, Burden of proof|Comments Off on E.D.Wis.: Gov’t didn’t show abandonment of package by sender because of error in address where recipient refused it
The taking of plaintiff’s photograph and fingerprints after an apparently valid arrest was not a clearly established violation of the Fourth Amendment where he was innocent of a crime. Plaintiff did not contest his arrest, but he contended that the taking of photographs and fingerprints were racially discriminatory based on the fact that 75% were African-American but the population of the city was 20%. Johnson v. VanderKooi, 2017 Mich. App. LEXIS 861 (May 23, 2017).
The Franks challenge in this case was somewhat “troublesome” because officers relied on a pill bottle in the house to get a search warrant. In photographs, the pill bottle wasn’t visible, but officers testified it was there. At bottom, however, the issuing magistrate relied on the affidavit and not the photographs, and it was apparent that the pill bottle was in the house; where was the issue. Therefore, the Franks violation, if there was one, wasn’t material. State v. Trapp, 2017 S.C. App. LEXIS 46 (May 24, 2017).*
Plaintiff couldn’t state a Fourth Amendment claim for malicious prosecution where she was not arrested by the officer. He presented his findings to the prosecutor who filed a charge. Fisher v. Koopman, 2017 U.S. App. LEXIS 8940 (10th Cir. May 23, 2017)
2254 petitioner claimed, inter alia, that he was arrested and searched without probable cause. The case was dismissed on limitations grounds without mention of the Stone v. Powell bar. Faircloth v. Raemisch, 2017 U.S. App. LEXIS 8941 (10th Cir. May 23, 2017).*
Posted inSeizure|Comments Off on CA10: 4A claim not stated for malicious prosecution where no arrest
There is no higher nexus requirement involving cell phones. A ping order of a cell phone may be used to collect “mere evidence,” rejecting United States v. Powell, 943 F. Supp. 2d 759 (E.D. Mich. 2013). United States v. Christian, 2017 U.S. Dist. LEXIS 80251 (E.D.Va. May 24, 2017): Continue reading →
Defendant was on probation out of Utah and supervised in Louisiana. His PO received information that he might have child pornography on his cell phone. During a PO visit, he was told to get his cell phone and computer out of his vehicle, and he did. He’d signed a blanket search waiver in Utah and that applied in Louisiana. State v. Haley, 2017 La. App. LEXIS 942 (La.App. 2 Cir. May 24, 2017).
The named CI was corroborated by the independent observation and work of the officer leading up to a drug transaction. There was probable cause, especially when defendant discarded the drugs. State v. Williams, 2017 La. App. LEXIS 956 (La.App. 3 Cir. May 24, 2017).*
“In his motion to suppress, he asserted only that he was ‘associated’ with the truck. We find an ‘association’ with the vehicle gives no greater rights than a mere passenger. Therefore, we agree with the state that appellant could not assert his Fourth Amendment rights were violated by the search of the truck.” State v. Tilman, 2017-Ohio-2908, 2017 Ohio App. LEXIS 1948 (6th Dist. May 19, 2017).
The trial court’s findings that the officer could not have seen what he claimed to have seen is not supported by the record, and the grant of the motion to suppress is reversed. State v. Essad, 2017-Ohio-2913, 2017 Ohio App. LEXIS 1945 (9th Dist. May 22, 2017).*
Posted inStandards of review, Standing|Comments Off on OH6: Merely being “associated” with a vehicle doesn’t confer standing
A stop was reasonably extended by the officer because the LPN didn’t come back to the vehicle. Browder v. State, 2017 Ind. App. LEXIS 212 (May 22, 2017).*
The affidavit for search warrant was not bare bones, and the search warrant was issued with probable cause. A car parked on and relating to the premises could be searched under the warrant even though not mentioned in the warrant. United States v. Ortega, 2015 U.S. Dist. LEXIS 188768 (W.D. Tex. April 13, 2015).*
The USMJ “reasonably determined that although there was probable cause to stop the car in which Linaman was traveling for possible traffic violations, …, Deputy Tadlock prolonged the stop beyond the time reasonably required to investigate those violations and without reasonable suspicion of unrelated criminal activity and, thus, exceeded the constitutional limitations on such stops.” Neither party objected, and the motion to suppress the 20 lbs of methamphetamine in defendant’s backpack is granted. United States v. Linaman, 2017 U.S. Dist. LEXIS 77238 (N.D. Iowa May 22, 2017).*
The driver of the vehicle had a suspended DL. The officer got both the driver and passenger out and frisked them both without inquiring into whether the passenger could drive the car. There was no reasonable suspicion for the frisk and the searches are suppressed. United States v. Johnson, 2017 U.S. Dist. LEXIS 78035 (D. Md. May 22, 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.
