Police responded to a panic alarm at defendant’s home. He was defensive and really didn’t want them around. They could smell burnt marijuana coming from the house. A sweep was conducted, and then the police obtained a search warrant. The warrant was valid based on probable cause from the response to the panic alarm. Even if the sweep was unreasonable, enough other information justified the warrant. United States v. Cooper, 2017 U.S. Dist. LEXIS 60945 (W.D. Ky. April 21, 2017).*
The affidavit showed probable cause for heroin sales coming from defendant’s house. At the least the search is protected by the good faith exception. The search of defendant’s car depends on the house search, so it is valid, too. United States v. Strong, 2017 U.S. Dist. LEXIS 61012 (E.D. Mo. March 23, 2017),* adopted, 2017 U.S. Dist. LEXIS 60257 (E.D. Mo. Apr. 20, 2017).*
Posted inEmergency / exigency, Probable cause|Comments Off on W.D.Ky.: Police responding to a panic alarm developed PC for a SW from MJ smell
Defendant consented to a search of his cell phone. “Defendant expressly directed Officer Rudolph to look in Defendant’s cellular telephone when Officer Rudolph informed Defendant that the telephone would be seized as evidence. The statement that ‘[t]here’s not going to be anything in there’ reinforces the lack of limitation with respect to the scope of consent.” United States v. Denton, 2017 U.S. Dist. LEXIS 61014 (E.D. Mo. Mar. 29, 2017), adopted, 2017 U.S. Dist. LEXIS 60260 (E.D. Mo. April 20, 2017)
Defendant can’t raise a search claim in a 2255 where he pled guilty and he doesn’t allege IAC. Ogunleye v. United States, 2017 U.S. Dist. LEXIS 61628 (N.D. Tex. March 31, 2017).*
Posted inCell phones, Consent|Comments Off on E.D.Mo.: Agreeing that officers could look in his phone and that “nothing would be found” is broad consent
Defendant drove up to an entrance to Kirtland AFB one morning. When asked for his ID, he said he was being followed, he was filled with demons, his thoughts were being intercepted by others’ phone calls, and that he’d recently smoked meth. The guard at the gate had him stop. Others arrived and told him he had to consent to a blood draw. He was told there were criminal penalties associated with refusal, but that wasn’t true. The consent for the blood draw wasn’t voluntary and there were no exigent circumstances for it. United States v. Becenti, 2017 U.S. Dist. LEXIS 61597 (D. N.M. April 24, 2017).*
Another Playpen warrant upheld. United States v. Taylor, 2017 U.S. Dist. LEXIS 61417 (N.D. Ala. April 24, 2017).*
Posted inConsent|Comments Off on D.N.M.: No voluntary consent to blood draw given by hallucinating man at AFB entrance
Defendant was not seized beyond this being a traffic stop. Defendant’s volunteering information extended the stop. There was no other show of authority. State v. Evans, 284 Ore. App. 806, 2017 Ore. App. LEXIS 505 (April 19, 2017).
Defendant can’t raise a search claim in a 2255 where he pled guilty and he doesn’t allege IAC. Ogunleye v. United States, 2017 U.S. Dist. LEXIS 61628 (N.D. Tex. March 31, 2017).*
Posted inSeizure|Comments Off on OR: Def not seized other than traffic stop; statements admissible
Off-duty police worked at a Kansas City motel that had a rash of crime, trying to clean the place up. Defendant was being evicted from a motel because he was driving a stolen car – his companion had already been arrested in it. The off-duty officer and management went to the room and knocked and got no answer. They entered and found defendant on the bed with a gun. He was a felon. The eviction from the motel was lawful. Stoner v. California is distinguished because that entry was just to conduct a search, not do an eviction of a tenant for committing a crime on hotel property. United States v. Peoples, 2017 U.S. App. LEXIS 7098 (8th Cir. April 24, 2017).
Posted inPrivate search|Comments Off on CA8: Eviction from motel by off-duty officer working motel security led to FIPF charge; entry was lawful
Swabbing a car door handle for DNA was a trespass against the plaintiff’s vehicle under Jones. A trespass to land is governed by the Fourth Amendment under Jardines and trespass to chattels is under Jones. Damage doesn’t have to occur for it to be a Fourth Amendment issue. In a civil action, however, the rule wasn’t well established on facts similar to this, and the officers get qualified immunity. Schmidt v. Stassi, 2:16-cv-15902-LMA-JCW (E.D. La. April 19, 2017). (Noted in and h/t to WaPo: Swabbing a car door handle in a public lot to collect DNA is a Fourth Amendment trespass search by Orin Kerr)
Posted inTrespass|Comments Off on E.D.La.: Swabbing car door handle for DNA without a SW is a trespass to chattels and barred by Jones
Defendant was on parole-like Colorado community supervision with a GPS ankle monitor. One of the POs, not his, was cross-assigned to a federal task force. When defendant was suspected of being involved in robberies, the federally assigned PO looked up his location, and the location put him near the scene of the robberies, and the PO turned it over to federal investigators. State law on the subject all predated Samson and Knights. The court concludes defendant had no reasonable expectation of privacy in his GPS data held by the state. It was turned over without his knowledge. United States v. Mathews, 2017 U.S. Dist. LEXIS 60348 (D.Colo. April 20, 2017): Continue reading →
Posted inGPS / Tracking Data, Probation / Parole search|Comments Off on CO: Parolee on ankle monitor had no REP in his GPS data that linked him to robberies and was turned over to feds
Posted inCell phones, School searches|Comments Off on techdirt: Legislators, School Administrators Back Off Cellphone Search Bill After Running Into ACLU Opposition
Oregon requires hospitals to report persons who show up for treatment who the hospital reasonably believes were involved in driving under the influence. Here, the hospital also reported defendant’s BAC to the police. “[W]e reject defendant’s invitation to overrule Gonzalez and consequently conclude that, even assuming that the hospital staff’s disclosure of defendant’s BAC to Dunlap pursuant to ORS 676.260(1) was state action, it did not violate a privacy interest protected by Article I, section 9.” The hospital was not a state actor under the Fourth Amendment. State v. Miller, 284 Ore. App. 818, 2017 Ore. App. LEXIS 507 (April 19, 2017): Continue reading →
Posted inPrivate search|Comments Off on OR requires hospitals report suspected DUIs, and this is private action although mandated by statute, or there is no REP
There were two grounds on which defendant’s suppression motion could have been denied. The fact the court didn’t give defendant an opportunity to respond to one was a moot point. In addition, even if the motion had been granted, the outcome wouldn’t be different, so it’s harmless error. United States v. Cislo, 2017 U.S. App. LEXIS 6907 (9th Cir. April 20, 2017).
The state didn’t prove a justification for the search of defendant’s person, so the motion to suppress is granted. As to the search of a building, defendant raised that at the last minute, and there was no showing he had any reasonable expectation of privacy in the place searched. State v. Hall, 2017 Del. Super. LEXIS 193 (April 21, 2017).*
Posted inBurden of proof|Comments Off on CA9: Where there are two grounds to support the search, appeal of only one means affirmance
An arrest for loitering justified a search incident. Defendant’s actions were concerning to the officer about his criminal intent. United States v. Pick, 2017 U.S. Dist. LEXIS 59287 (C.D. Cal. Feb. 28, 2017).
Defendant’s saying “go ahead in look in the phone” is consent. United States v. Denton, 2017 U.S. Dist. LEXIS 61014 (E.D. Mo. March 29, 2017),* adopted, 2017 U.S. Dist. LEXIS 60260 (E.D. Mo. Apr. 20, 2017).*
Posted inConsent, Search incident|Comments Off on C.D.Cal.: Arrest for loitering justified a search incident
It did not deny defendant a fair trial for the state to refer to defendant’s refusal to take a breath test. State v. Lemberger, 2017 WI 39, 2017 Wisc. LEXIS 227 (April 20, 2017): Continue reading →
Posted inConsent|Comments Off on WI: State didn’t violate due process or fair trial by commenting on def’s refusal to submit to a breath test
Defendant consented to the search of her purse. The video clearly shows that, and it contradicts the defendant’s testimony. United States v. West, 2017 U.S. Dist. LEXIS 58892 (E.D. Tenn. Jan. 6, 2017),* adopted, 2017 U.S. Dist. LEXIS 58672 (E.D. Tenn. Apr. 18, 2017).*
There were four CIs, and their reliability was established sufficient to show probable cause. There was probable cause for issuance of a GPS warrant for a vehicle. There was at least good faith, too. United States v. Petruk, 2017 U.S. Dist. LEXIS 60608 (D. Minn. Feb. 15, 2017),* adopted, 2017 U.S. Dist. LEXIS 60927 (D.Minn. April 20, 2017).*
Posted inConsent, Informant hearsay|Comments Off on E.D.Tenn.: Video showed clear consent and contradicted def’s testimony
Just because the officer had “unquestioned command of the situation” during a traffic stop doesn’t preclude the officer from conducting a frisk for weapons. Here, the stop was at night, in a high crime area, there were only streetlights, and there were furtive movements in the car. That was sufficient for a frisk. United States v. Jackson, 2017 U.S. Dist. LEXIS 59642 (N.D. Iowa March 6, 2017).
Defendant’s vehicle was already stopped when the officer approached. There was a search of the car and her purse by consent, and it was offered where the Drano was hidden. There was no objection so, on plain error review, no plain error found. State v. Nelson, 2017 W. Va. LEXIS 276 (April 21, 2017)* (memorandum).
Posted inReasonable suspicion, Standards of review, Stop and frisk|Comments Off on N.D.Iowa: Just because the officer had “unquestioned command of the situation” during a traffic stop doesn’t preclude conducting a frisk for weapons
Defendant’s frisk was justified by reasonable suspicion. The search of his person, however, was not justified: Some pills in the car that weren’t easily identified as controlled substances does not mean that defendant was committing a crime. United States v. Richardson, 2017 U.S. Dist. LEXIS 59403 (M.D. La. April 18, 2017).
Any motion to suppress would have been meritless, so defendant did not receive IAC. United States v. Williams, 2017 U.S. Dist. LEXIS 58801 (N.D. Ind. April 17, 2017).*
Posted inIneffective assistance, Probable cause|Comments Off on M.D.La.: A couple of pills in the car not easily identifiable as controlled substances didn’t justify a search
Mass hacking seems to be all the rage currently. A vigilante hacker apparently slipped secure code into vulnerable cameras and other insecure networked objects in the “Internet of Things” so that bad guys can’t corral those devices into an army of zombie computers, like what happened with the record-breaking Mirai denial-of-service botnet. The Homeland Security Department issued alerts with instructions for fending off similar “Brickerbot malware,” so-named because it bricks IoT devices.
And perhaps most unusual, the FBI recently obtained a single warrant in Alaska to hack the computers of thousands of victims in a bid to free them from the global botnet, Kelihos.
On April 5, Deborah M. Smith, chief magistrate judge of the US District Court in Alaska, greenlighted this first use of a controversial court order. Critics have since likened it to a license for mass hacking.
Posted inComputer and cloud searches|Comments Off on ars technica: FBI allays some critics with first use of new mass-hacking warrant
Defendant lost any reasonable expectation of privacy in his laptop computer. It was in somebody else’s house, and he was missing for three months as far as they were concerned, but he was in jail. He could have asserted control over the laptop by communicating with them to put it away or something. In fact, he sent his mother to get his pickup truck from there, but not the computer. United States v. Zacherle, 2017 U.S. App. LEXIS 6901 (9th Cir. April 20, 2017).
Defendant’s extreme physical nervousness was reasonable suspicion. Finding a gun on his passenger after a frisk was justification for search of the car. United States v. Brooks, 2017 U.S. App. LEXIS 6735 (4th Cir. April 19, 2017).*
Posted inAbandonment, Reasonable suspicion|Comments Off on CA9: Def’s conduct showed abandonment of laptop at another’s house while he was in jail
The affiant swore to the affidavit for search warrant before the issuing magistrate, but it inadvertently wasn’t signed. That’s an error cured by testimony, even if the magistrate has to testify too. State v. Angel, 2017 Iowa Sup. LEXIS 41 (April 21, 2017).
Out-of-court ID of defendant suppressed because of illegal search, and exclusionary rule applies because of need for deterrence. In-court ID not suppressed. Commonwealth v. Santiago, 2017 PA Super 116, 2017 Pa. Super. LEXIS 275 (April 20, 2017).*
Posted inWarrant requirement|Comments Off on IA: Failure to sign SW affidavit when sworn can be cured by testimony
Defendant’s car was parked at a gas station pump too long while one of them went for gas money. The police showed up, asked for IDs and found a warrant on the passenger. The passenger got out of the car, and he smelled of marijuana. That did not create probable cause to believe the whole car had marijuana. State v. See, 2017 Iowa App. LEXIS 374 (April 19, 2017).
Officers approached a vehicle with four occupants parked near a bar in a high crime area. As they approached, they could smell burnt marijuana coming from the vehicle. Shining a flashlight in they could see a baggie of marijuana. The front seat occupant tried to crawl into the back. The officers had probable cause for a search of the car. Commonwealth v. Runyan, 2017 PA Super 114, 2017 Pa. Super. LEXIS 273 (April 20, 2017).*
Even though the government conducted an illegal warrantless search of defendant’s cell phone, they later obtained a search warrant based on previously acquired information, so the independent source doctrine applies. United States v. Keel, 2017 U.S. Dist. LEXIS 58895 (N.D. Ga. Feb. 8, 2017),* adopted, 2017 U.S. Dist. LEXIS 57983 (N.D. Ga. Apr. 17, 2017).*
Prison inmates alleged a Fourth Amendment violation because a laptop was stolen with medical information on it. This isn’t a Fourth Amendment claim. Puryear v. Cal. Corr. Health Care Servs., 2017 U.S. Dist. LEXIS 61245 (E.D. Cal. April 20, 2017)*; Martell v. Cal. Corr. Health Care Servs., 2017 U.S. Dist. LEXIS 61249 (E.D. Cal. April 20, 2017).*
Posted inIndependent source, Search|Comments Off on N.D.Ga.: Prior illegal search of cell phone was moot by SW based on prior acquired info
"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.
