Third party cell phone information is not protected by the Texas Constitution. It grants no greater rights than the Fourth Amendment. If the drafters wanted it broader, they could have said so. The information was available to law enforcement under the third party doctrine. Hankston v. State, 2017 Tex. Crim. App. LEXIS 379 (April 12, 2017).
The search warrant for defendant’s bedroom in his shared dwelling included child pornography and child erotica, which would not be illegal. There was no suggestion there was the latter, but “The inclusion of child erotica in the warrant as well as child pornography did nothing to vitiate the validity of the warrant in this case.” United States v. Hassell, 2017 CCA LEXIS 247 (A.F. Ct. Crim. App. March 2, 2017).*
Officers had a levy for unpaid court costs, and it wasn’t uncommon for drug officers to come along for the seizure. The record supported the conclusion that defendant did not affirmatively and expressly disclaim or relinquish his privacy interest in his girlfriend’s home, even though defendant said he did not live there. His leaving on foot after answering the deputies’ questions and after they told him he was free to leave was of no consequence. Defendant was locked out of the home and did not possess keys to any of the vehicles parked in the driveway, so he had standing to challenge the subsequent search of the residence. Because the state did not challenge the trial court’s determinations regarding the deputies’ exceeding the scope of a valid levy by entering the curtilage, the trial court did not err by granting defendant’s motion to suppress and by dismissing the case. State v. Watson, 2017 Tenn. Crim. App. LEXIS 262 (April 10, 2017).
Posted inCurtilage, Standards of review|Comments Off on TN: State’s failure to challenge trial court’s findings entry to curtilage was unreasonable is waiver
The Tennessee turn signal statute is clear and unambiguous, unlike the brake light statute in Heien. Officer “Garrison did not have a reasonable suspicion that Pate had violated the traffic laws. Thus, the stop was unlawful. As a passenger, Fortune had the right to challenge the stop. Brendlin v. California, …” United States v. Fortune, 2017 U.S. Dist. LEXIS 55064 (E.D. Tenn. March 24, 2017), adopted, 2017 U.S. Dist. LEXIS 55730 (E.D. Tenn. April 11, 2017).
The affidavit for search warrant provided probable cause on the totality. Moreover, the CI made a controlled buy 72 hours earlier from the house. United States v. Norton, 2017 U.S. Dist. LEXIS 55369 (S.D. Ga. March 20, 2017),* adopted, 2017 U.S. Dist. LEXIS 55347 (S.D. Ga. Apr. 11, 2017).*
Posted inReasonableness|Comments Off on E.D.Tenn.: Turn signal statute is unambiguous, and officer’s mistake wasn’t objectively reasonable under Heien
Officers entered with an arrest warrant. Defendant’s attempt to flee to the back of the house justified a protective sweep of that area because of the possibility there might be others back there. United States v. Thompson, 2017 U.S. Dist. LEXIS 55601 (M.D. Fla. April 12, 2017).
The trial court credited the officer’s testimony that defendant crossed the fog line, and that was justification for the stop. State v. Phillips, 2017-Ohio-1312, 2017 Ohio App. LEXIS 1334 (9th Dist. April 10, 2017).*
Posted inProtective sweep|Comments Off on M.D.Fla.: Attempted flight to back of house from arrest in the home justified protective sweep
The officer had reasonable suspicion for a patdown based on a BOLO for defendant that he was armed and dangerous. Defendant wasn’t in custody when he was asked about where the gun was. United States v. Hogan, 2017 U.S. App. LEXIS 6118 (11th Cir. April 10, 2017).
Of course this is probable cause: “Defendant had sexually graphic conversations with a presumably fourteen-year-old girl, talked about having sexual contact with her (and other minor girls), and sought to coerce or entice her for sex. Moreover, Defendant indisputably sent a picture of his penis to the presumably fourteen-year-old girl. The affidavit established the necessary nexus between the conversation and image and Justin Walling, and the affidavit established Walling’s devices at his residence as the origin of those conversations.” United States v. Walling, 2017 U.S. Dist. LEXIS 54250 (W.D. Mich. April 10, 2017).*
Posted inStop and frisk|Comments Off on CA11: “Armed and dangerous” report on def was enough for a patdown
Plaintiff was a “recidivist transit violator” stopped for moving between cars. Taking him off the train outside the turnstiles was a reasonable detention under the state constitution. Vargas v. City of New York, 2017 NY Slip Op 27116, 2017 N.Y. Misc. LEXIS 1247 (N.Y. Co. April 11, 2017).*
All of defendant’s search claims are waived by his guilty plea. State v. Kendrick, 2017-Ohio-1306, 2017 Ohio App. LEXIS 1328 April 7, 2017).*
Posted inSeizure, State constitution|Comments Off on NY Co.: Taking a “recidivist transit violator” outside the turnstiles was a reasonable detention
“As in Brock, the record on appeal in the instant case shows that the mission of the traffic stop was not completed at the time the dog sniff occurred. Officer Boggess testified that he was only approximately ‘three-quarters of the way through writing a citation’ when the canine unit arrived. Further, neither petitioner nor her co-defendant passenger had valid driver’s licenses, which, as the circuit court correctly found, ‘meant that neither was going to drive the vehicle’ away from the scene. As such, there was no unreasonable extension of an “otherwise completed traffic stop.” Therefore, we find no merit to petitioner’s arguments on appeal.” State v. Hill, 2017 W. Va. LEXIS 241 (April 10, 2017) (memorandum).
Posted inDog sniff, Reasonable suspicion|Comments Off on WV: Drug dog arrived and worked before ticket was finished; neither occupant had DLs, so the dog didn’t lengthen the stop
Officers approaching defendant’s house could smell marijuana. When the door was opened, the smell got stronger, and that justified a warrantless entry. State v. Ott, 2017 W. Va. LEXIS 256 (April 10, 2017) (memorandum).
The CI never said he was 100% sure about the facts he passed on, and he qualified the second-hand information. He was texting the officer, and the information was contemporaneous eyewitness information. United States v. Palmer, 2017 U.S. Dist. LEXIS 53496 (E.D. Pa. April 7, 2017).*
In a school, one student who was a suspected marijuana dealer handed something to another student. That was reasonable suspicion as to the recipient. “Here, Mr. Gaddies observed K.L. receive something from a student known to have issues with marijuana. Further, K.L. was evasive when asked to empty his pockets. Therefore, Mr. Gaddies’ search of K.L. was reasonable under all circumstances. Because we find that Mr. Gaddies’ search of K.L. was reasonable, the marijuana found pursuant to the search was legally seized and usable as evidence against K.L. during his delinquency proceeding.” State ex rel. K.L., 2017 La. App. LEXIS 608 (La.App. 4 Cir. April 10, 2017).
Posted inReasonable suspicion, School searches|Comments Off on LA4: In school handoff from suspected MJ dealer to another student was RS as to the latter
A T-Mobile store was robbed, and their policy is to do a data dump including CSLI of any T-Mobile phone number potentially linked to the robbery. That does not make them a government agent in the data dump. United States v. Adkinson, 2017 U.S. Dist. LEXIS 54104 (S.D. Ind. April 7, 2017).
Based on the findings of fact at the hearing, “Sergeant Barbaro Hernandez obtained consent from Gisela Lima, the owner of the residence, to enter into the bedroom where he observed in plain view a taser, gloves and radio on a shelf.” United States v. Mustelier, 2017 U.S. Dist. LEXIS 52970 (S.D. Feb. 27, 2017),* adopted, 2017 U.S. Dist. LEXIS 52969 (S.D. Fla. Apr. 5, 2017).*
Posted inCell phones, Cell site location information, Search|Comments Off on S.D.Ind.: T-Mobile’s policy to do a data dump on any T-Mobile phone linked to a robbery of one of its stores doesn’t make it a government agent
Seizure of defendant’s cell phone found near him when he was arrested was reasonable to preserve evidence until a search warrant could be obtained. United States v. Hamilton, 2017 U.S. Dist. LEXIS 54953 (E.D. Mich. April 11, 2017): Continue reading →
Posted inCell phones, Search incident, Seizure|Comments Off on E.D.Mich.: Seizure of cell phone to preserve its evidence for a SW was reasonable
Defendant was stopped for window tint, and the drug dog arrived within one minute. The dog sniff did not delay the stop because no response had yet been received from dispatch. State v. Wade, 2017-Ohio-1319, 2017 Ohio App. LEXIS 1340 (3d Dist. April 10, 2017).
“Probable cause to conduct a search of the vehicle began to build almost immediately. As the deputies approached the windows of the vehicle, they both smelled the strong perfume of raw marijuana. This ‘plain sniff’ was enough to authorize the deputies to extend the traffic stop to conduct an investigation of the source and cause of the smell of marijuana.” United States v. Flippo, 2017 U.S. Dist. LEXIS 55832 (N.D. Ala. March 23, 2017).* adopted, 2017 U.S. Dist. LEXIS 54996 (N.D. Ala. Apr. 11, 2017).*
Officers had probable cause to look in defendant’s car under the automobile exception: “We conclude that law enforcement had probable cause to believe that the silver Honda Civic contained contraband. Kern was shot at from a silver Honda Civic and Kern recognized the Honda Civic as belonging to the Parsons family. There is a tumultuous history between Kern and Parsons. Although Kern could not see who was driving the silver Honda Civic at the time of the shooting, Kern saw Parsons driving the Honda Civic shortly before the shooting incident. Johnson saw the silver Honda Civic parked in the Parsons’s driveway with its doors open. Parsons exhibited suspicious behavior when law enforcement arrived at his residence—that is, as Bodenbender pulled into Parsons’s driveway, he observed Parsons throw something while running from behind a large pine tree toward Bodenebender’s vehicle.” State v. Parsons, 2017-Ohio-1315, 2017 Ohio App. LEXIS 1338 (3d Dist. April 10, 2017).*
Posted inAutomobile exception|Comments Off on OH3: That def’s car probably was involved in a shooting was PC for an automobile exception search
“In the future, drones will likely provide routine automated supplemental patrol functions by following an algorithm to take off, patrol a specific area, and return to its base, dock and then charge to be ready to go again,” said Master Sgt. Adam B. Ringle, director of Wilmington Police Department’s drone program.
Posted inDrones|Comments Off on Delaware News Journal: Drones finding different ways to help public safety
The rapid makeover of the court has caused a noticeable and nearly instantaneous shift in its ideology – a shift that a growing number of criminal defense attorneys say threatens the civil liberties of Tennesseans both guilty and innocent. Concern among members of the criminal defense bar has been bubbling up for a few years, but it came to a head last week following two decisions by the Tennessee Supreme Court.
Posted inUncategorized|Comments Off on Nashville Scene: The Tennessee Supreme Court keeps reversing itself, and criminal defense attorneys are worried
In light of the uncertainty, I thought I would point out the latest decision on the Fourth Amendment implications of ‘no trespassing’ signs: State v. Christensen, from the Tennessee Supreme Court.
In a newsworthy case in which retail giant Amazon and social media developer Foursquare Labs, among others, submitted friend of the court briefs, the New York Court of Appeals on April 4, 2017, affirmed the decisions of the Supreme Court and the Appellate Division, First Department, which denied Facebook’s motion to quash warrants issued to it by the Manhattan District Attorney’s Office and denied Facebook’s motion to compel disclosure of the district attorney’s supporting affidavit to its warrant application.
Posted inSurveillance technology|Comments Off on NYLJ: Court of Appeals’ ‘Facebook’ Decision Leaves Many Questions Open
WaPo: Border agents can look at everything on your cell phone. Congress should change that (editorial):
PRETTY MUCH everyone can agree that Customs and Border Protection (CBP) agents should be able to freely search travelers’ bags at the border. Their job is to stop everything from illegal weapons to illicit drugs to invasive species from entering the country. But searching through every last email on your cellphone? That’s much less defensible.
Even so, CBP has the legal authority to thumb through every personal detail on Americans’ electronic devices without meeting any standard of suspicion, as though practically bottomless digital storage devices were the same as under-seat suitcases. …
"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.
