Nexus to the premises was shown by the observation of five pounds of methamphetamine being picked up there. United States v. Barron-Celis, 2017 U.S. Dist. LEXIS 73083 (D. Minn. April 4, 2017),* adopted, 2017 U.S. Dist. LEXIS 72250 (D. Minn. May 11, 2017).*
“Defendant’s considerable similarity to the description of the shooter, his presence in the vicinity of where the shots were fired, and the closeness in time of these events to the report of shots fired are sufficient to lead a reasonable person to believe that Defendant was the man who fired the shots near the bar. Even before Officer Korus spotted the magazines and handgun in the red car that Defendant was standing next to, there was probable cause to arrest Defendant.” United States v. Perry, 2017 U.S. Dist. LEXIS 73087 (D.Minn. April 12, 2017).*
Posted inNexus, Probable cause|Comments Off on D.Minn.: Delivery of meth to house in past was nexus
Reasonable suspicion doesn’t require certainty of facts. Here, the factual belief was that defendant’s DL had been suspended weeks earlier. Williams v. State, 2017 Ark. App. 291, 2017 Ark. App. LEXIS 301 (May 10, 2017).
Defendant’s plea waived his potential suppression issue. In his 2255, he doesn’t say how the suppression issue has any merit. Courtney v. United States, 2017 U.S. Dist. LEXIS 73576 (S.D. Fla. May 12, 2017).*
Posted inReasonable suspicion|Comments Off on AR: Reasonable suspicion doesn’t require certainty of facts
Defendant’s attempt to reach into his own pocket did not constitute an unequivocal withdrawal of the consent to search he had given to the officer. Defendant’s conduct appeared to have been an attempt to help facilitate the search, not to prevent it. Thus, a heroin capsule found in his pocket was not subject to suppression. No Fourth Amendment violation arose from the officer’s act of telling defendant to “keep his hands out of his pockets” while the officer “checked for him.” State v. Wehner, 2017-Ohio-2788, 2017 Ohio App. LEXIS 1815 (2d Dist. May 12, 2017).
The search warrant for defendant’s possession of firearms was not stale considering there was evidence that it was a pattern and the fact guns are usually kept. United States v. Serrano, 2017 U.S. Dist. LEXIS 72739 (D.Ariz. March 14, 2017),* adopted, 2017 U.S. Dist. LEXIS 72740 (D. Ariz. May 10, 2017).*
Posted inSeizure, Staleness|Comments Off on OH2: Direction to def to not reach into his own pocket for a consent search wasn’t a seizure
The Texas state court search warrant authorized a search for evidence on a cell phone of any crime, and that’s problematic. The affidavit, however, specifically referred to home invasion robberies, and that gave context. The search warrant was thus particular. The question of nexus of the cell phone to the crimes is based on reasonable inferences. There were three people involved in planning and executing three home invasions in three days, and it was entirely reasonable to believe that they communicated with each other by cell phones. The FBI’s later comprehensive search of the cell phones without a separate warrant was not considered an extension of the first. A search warrant can only be executed once. United States v. Olaya, 2017 U.S. Dist. LEXIS 72520 (E.D. Mich. April 19, 2017): Continue reading →
Posted inNexus, Warrant execution|Comments Off on E.D.Mich.: Texas state SW was used to search cell phones, but FBI later searched by downloading contents w/o warrant so latter search suppressed; conspiracy to rob infers nexus
Defendant was convicted of restraint of her child by taking him contrary to a court order across state lines. GPS monitoring as a condition of probation was imposed. Defendant allegedly violated the condition and appealed. GPS monitoring was a reasonable condition to prevent her from going around her own child. “Moreover, defendant’s status as a probationer and her awareness of the electronic monitoring condition diminished her expectation of privacy. Thus, although we acknowledge that continual GPS monitoring may be particularly intrusive, under these circumstances, we conclude that Condition 32 is reasonable under the Fourth Amendment and that no error occurred in its application. See United States v. Miller, 530 F. App’x 335, 338 (5th Cir. 2013) (‘In light of [defendant’s] background, any impairments of [defendant’s] privacy due to the GPS monitoring are outweighed by the condition’s benefits. These include effective verification of compliance with the other conditions of supervised release, deterrence of future crimes, and protection of the public.’).” State v. Kane, 2017 VT 36, 2017 Vt. LEXIS 56 (May 12, 2017).
Posted inGPS / Tracking Data|Comments Off on VT: GPS monitoring as a probation condition for interference with custody was reasonable
The search warrant affidavit showed defendant’s standing in two cell phones that were seized. The phones were referred to as belonging to defendant, and she claimed them when asked about them but disclaimed ownership in others. Finally, she proffered that there was indicia of ownership on the phones. United States v. Castro, 2017 U.S. Dist. LEXIS 72518 (E.D. Mich. April 20, 2017), adopted, 2017 U.S. Dist. LEXIS 72519 (E.D. Mich. May 1, 2017).
Defendant sought to modify his search conditions and supervised release, and the motion is denied based on his history. United States v. Taylor, 2017 U.S. Dist. LEXIS 72475 (N.D. N.Y. May 3, 2017),* adopted, 2017 U.S. Dist. LEXIS 72470 (N.D. N.Y. May 12, 2017).*
Posted inProbation / Parole search, Standing|Comments Off on E.D.Mich.: Affidavit for SW and other things showed def’s standing in two cell phones
The warrantless draw of defendant’s blood was justified on the basis of exigent circumstances. The officer acted reasonably by authorizing a warrantless blood draw so as to prevent a delay of over three hours before defendant’s blood could be preserved as evidence of DUI. The officer performed his work as efficiently as he could under the circumstances, and seeking a search warrant for defendant’s blood would have taken considerable additional time, thereby significantly undermining the efficacy of the criminal investigation. State v. Martin, 2017 Tenn. Crim. App. LEXIS 365 (May 11, 2017).
Subpoenas to two AUSA’s to testify as adverse character witnesses to a government witness on a motion to suppress are quashed. There are other sources of the information. United States v. Flores, 2017 U.S. Dist. LEXIS 72926 (C.D. Cal. May 8, 2017),* reconsideration denied, 2017 U.S. Dist. LEXIS 77628 (C.D. Cal. May 22, 2017).*
Posted inDrug or alcohol testing|Comments Off on TN: Warrantless blood draw was exigent; seeking a warrant would delay it beyond 3 hours
Considering that the vehicle defendant was stopped in matched the description of a stolen car, it was reasonable for the officer to handcuff him. People v. Richardson, 2017 IL App (1st) 130203-B, 2017 Ill. App. LEXIS 314 (May 12, 2017).
There was no authorized driver to drive off the rental car defendant was arrested in, so it was towed and the contraband was inevitably found. United States v. Alexis, 2017 U.S. App. LEXIS 8297 (11th Cir. May 10, 2017).*
Posted inInevitable discovery, Stop and frisk|Comments Off on IL: Because def’s car matched description of a stolen car, it was reasonable to handcuff def
The affidavit for search warrant here failed to show nexus between defendant’s house and drug dealing. There was some suspicion involving others and a stale anonymous tip never corroborated. Nothing implicated defendant except that one co-defendant was driving defendant’s van on one trip. The warrant was literally so bare bones that the good faith exception did not apply. The search warrant also lacked particularity. United States v. Tucker, 2017 U.S. Dist. LEXIS 72080 (N.D. Ohio May 11, 2017): Continue reading →
Posted inGood faith exception, Nexus, Particularity|Comments Off on N.D.Ohio: SW affidavit was so bare bones it never showed nexus or particularity; no GFE
The search warrant was for a multitude of things in defendant’s house, including cell phones and clothing worn during the crime. A clothes pile could be searched without first determining whose clothes were apparently there. The pockets could be searched, too. State v. Workman, 2017-Ohio-2802, 2017 Ohio App. LEXIS 1838 (12th Dist. May 15, 2017).
Defendant wrote to the court 13 months after his guilty plea expressing regret for cooperating. He wanted to challenge the search by a motion to suppress. Denied: Defendant’s letter is no more than regret in cooperating and doesn’t show grounds to overturn the plea for manufacturing child pornography. United States v. Lander, 2017 U.S. Dist. LEXIS 72384 (W.D. N.Y. May 11, 2017).*
Posted inScope of search|Comments Off on OH12: Police with SW for clothes didn’t need to determine whose were in a clothes pile before searching it
Prior to the police coming to the door, they knew that six figures in cash had been removed from the place in a plastic bag. When they knocked, they heard running and the door was sealed shut. “Given the totality of what they knew and what they reasonably suspected, the agents had reason to think — as the district court found — that the unseen individual was trying to destroy evidence. The agents knew that drugs can be flushed down a toilet or washed down a drain in the blink of an eye. See King, 563 U.S. at 461; …” United States v. Almonte-Báez, 2017 U.S. App. LEXIS 8472 (1st Cir. May 12, 2017)
Posted inArrest or entry on arrest, Emergency / exigency|Comments Off on CA1: Police had good reason to know drug dealing before knock and talk; they knocked, heard running, and door was sealed; breaking in was reasonable
The defendant can’t show bad faith just because the government lost the cell phone of a CI. Defendant contended that there was exculpatory information or photographs on it but couldn’t define what it was. Negligence is not bad faith. United States v. Kloszewski, 2017 U.S. Dist. LEXIS 72134 (S.D. N.Y. May 11, 2017)*: Continue reading →
Posted inUncategorized|Comments Off on S.D.N.Y.: Losing CI’s cell phone after search was not gov’t bad faith
A couple was arrested, and their infant was going with child protective services. An entry into the house with the CPS worker to recover the infant’s diaper bag was reasonable.United States v. Wright, 2017 U.S. Dist. LEXIS 72738 (N.D. Ala. March 13, 2017), adopted, 2017 U.S. Dist. LEXIS 72506 (N.D. Ala. May 12, 2017): Continue reading →
Posted inProtective sweep, Reasonableness|Comments Off on N.D.Ala.: Entry with CPS worker to retrieve diaper bag was reasonable
“[A]n admission per se is inherently reliable evidence” sufficient to establish probable cause to arrest, but holding that “an admission transmitted through an informant is only as reliable as its conduit is trustworthy.” Commonwealth v. Stokes, 480 Pa. 38, 389 A.2d 74, 78 (1978). Commonwealth v. Young, 2017 PA Super 142, 2017 Pa. Super. LEXIS 334 (May 11, 2017)
Defendant can relitigate his search and seizure claim through a 2255 IAC claim. Dockery v. United States, 2017 U.S. Dist. LEXIS 72690 (M.D. N.C. May 12, 2017).*
Posted inIneffective assistance, Informant hearsay|Comments Off on PA: A def’s “admission transmitted through an informant is only as reliable as its conduit is trustworthy”
The officer executing a warrant that should not have been issued by the court in the first place for plaintiff’s failure to perform his community service had qualified immunity. Beckham v. City of Euclid, 2017 U.S. App. LEXIS 8453 (6th Cir. May 10, 2017).
Even without consideration of field sobriety tests, the probable cause to arrest defendant for DUI was supported by the trooper’s observation of defendant’s driving, defendant’s bloodshot and glassy eyes, odor of alcohol, admission that he had been drinking and a PBT. State v. Tipple, 2017-Ohio-2774, 2017 Ohio App. LEXIS 1766 (May 11, 2017).*
Posted inDrug or alcohol testing, Qualified immunity|Comments Off on CA6: Officer arresting on warrant for failure to perform community service that was mistakenly issued had QI
Reasonable suspicion doesn’t require certainty of facts. Here, the factual belief was that defendant’s DL had been suspended weeks earlier. Williams v. State, 2017 Ark. App. 291, 2017 Ark. App. LEXIS 301 (May 10, 2017).
There was enough probable cause for the search warrant that it was not issued with no probable cause whatsoever such that the good faith exception would not apply. There were two CI’s, one a first timer, trash pulls, and two trips to Colorado allegedly for resupply of marijuana. State v. Zwickl, 2017 Kan. LEXIS 140 (May 5, 2017).*
“Based on the facts of this case, we hold that the school’s protocol requiring searches of unattended book bags—to determine ownership and whether the contents are dangerous—furthers the compelling governmental interest in protecting public-school students from physical harm. We further hold that the school employees’ search of the unattended book bag belonging to appellee, Whetstone High School student Joshua Polk, was limited to furthering that compelling governmental interest and was reasonable under the Fourth Amendment to the United States Constitution.” State v. Polk, 2017-Ohio-2735, 2017 Ohio LEXIS 810 (May 11, 2017).
Posted inSchool searches|Comments Off on OH: School protocol to search unattended book bags made this search reasonable
Following United States v. Barnes, 126 F. Supp. 3d 735, 740 (E.D. La. 2015), the Franks doctrine applies only to factual misstatements, not legal conclusions. United States v. Tabares, 2016 U.S. Dist. LEXIS 186540 (N.D.Ga. June 3, 2016), adopted, 2017 U.S. Dist. LEXIS 71090 (N.D. Ga. May 10, 2017).
Probable cause was shown for taking defendant’s DNA. State v. White, 2017 Del. Super. LEXIS 224 (May 8, 2017).*
Posted inDNA, Franks doctrine|Comments Off on N.D.Ga.: The Franks doctrine applies only to factual misstatements, not legal conclusions
Police had the discretion under the inventory policy to conduct the inventory and then allow the car to go back to Enterprise car rental rather than the police impound lot. Also, a disturbed panel in the car permitted the inventory to go farther. United States v. Petit, 2017 U.S. Dist. LEXIS 72737 (N.D. Ala. March 19, 2017).
Defendant’s vehicle was validly impounded even though his wife was present and she could have driven it away before the inventory, if they’d have let her. Because the search was within policy, the pretext argument fails. United States v. Simpson, 2017 U.S. Dist. LEXIS 70493 (W.D. Mo. April 20, 2017),* adopted, 2017 U.S. Dist. LEXIS 70246 (W.D. Mo. May 9, 2017).*
Posted inInventory|Comments Off on N.D.Ala.: Police had discretion to return car to rental company after inventory search
Defendant was a suspect in a murder, and the police had probable cause for a search warrant for his house to look for the victim’s bank card. They did not find the bank card, but they took 150 photographs of plenty of things and some serial numbers. Some of those photos were used at trial. Because the object of the search was the bank card, a fairly intense search was permitted. The police department’s policy was to video record searches. The use of photographs at the trial was not unreasonable nor did it exceed the scope of search. Davis v. State, 2017 Fla. LEXIS 1055 (May 11, 2017).
Posted inScope of search|Comments Off on FL: Photographs of house interior taken during search for bank card could be used at trial
"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.
