Defendant was reported to have pointed a gun at a woman, and the police showed up. The gun was suppressed as far as his involuntary consent was concerned, but the state’s reference to the gun was not cause for a mistrial because seeing it happened before the illegal search. Commonwealth v. Baldwin, 2017 PA Super 95, 2017 Pa. Super. LEXIS 239 (April 10, 2017).
The defendant and his vehicle were linked by a tip off surveillance footage on TV to be involved in an arson two years earlier. Further investigation developed to link him to the arson. Defendant was then pulled over in an otherwise legitimate traffic stop and the vehicle looked in. The officer’s motivation to look in the vehicle was irrelevant, and he’d already developed enough cause to seek a warrant for the vehicle, so he had an independent source for searching the vehicle before the alleged illegal stop. United States v. Williams, 2017 U.S. Dist. LEXIS 53584 (W.D. N.Y. April 6, 2017).*
Posted inPretext|Comments Off on PA: Even though gun suppressed from unconsensual search, prior observation of gun by victim still admissible
The district court erred in not granting summary judgment to the officer in this § 1983 case for his use of handcuffs on the plaintiff in his mid-60’s. There was reasonable suspicion for his stop as a suspect in a road rage incident involving discharge of a gun. The officer was not aggressive or abusive in handcuffing plaintiff until he could figure out what was going on. After no gun was found, and the reasonable suspicion dispelled, plaintiff was unhand cuffed and allowed on his way. He had prior surgeries on his shoulder, and the handcuffing aggravated his condition. Nevertheless, the officer’s actions did not violate the Fourth Amendment. Howell v. Smith, 2017 U.S. App. LEXIS 6111 (7th Cir. April 10, 2017).
Defendant was running from the police and he tossed a Crown Royal bag that had a gun in it. That was an abandonment. United States v. Corn, 2017 U.S. Dist. LEXIS 52942 (W.D. Mo. March 20, 2017),* adopted, 2017 U.S. Dist. LEXIS 51775 (W.D. Mo. Apr. 5, 2017).*
Defendant’s North Carolina probation search was conducted at a reasonable time and in a reasonable manner, as required by statute, and it was for probation purposes. It was not quite a nighttime search. United States v. Lynch, 2017 U.S. Dist. LEXIS 53581 (E.D. N.C. April 6, 2017): Continue reading →
Posted inProbation / Parole search|Comments Off on E.D.N.C.: Def’s probation search was done at a reasonable time and in a reasonable manner, as required by state statute
The border patrol has almost tripled the number of people it demands turn over their cell phones coming into and leaving the U.S. Some in Congress now want to require a warrant first.
Posted inBorder search, Cell phones|Comments Off on NPR: U.S. Border Patrol Agents Step Up Cell Phone Searches
Omission from the affidavit for search warrant that five prior searches at defendant’s residence for drugs had proved fruitless was not material where there was a separate showing of probable cause for this search warrant. The good faith exception also applies. United States v. Webb, 2017 U.S. Dist. LEXIS 52704 (E.D. N.C. April 6, 2017): Continue reading →
Posted inFranks doctrine|Comments Off on E.D.N.C.: Omission from affidavit that 5 prior searches of def’s home found nothing wasn’t material where PC was shown yet again
Defendant in his 2255 could not show that defense counsel was ineffective for not moving to suppress drugs that never formed the basis of a charge against him. He was arrested for prior offenses, and then he gave up drugs in his house claiming that the officers used scare tactics on him. He wasn’t even charged with those drugs, and they didn’t even factor into his sentencing guidelines because he was a career offender. United States v. Entsminger, 2017 U.S. Dist. LEXIS 53477 (W.D. Va. April 6, 2017).
Posted inIneffective assistance|Comments Off on W.D.Va.: Not moving to suppress wasn’t IAC where he wasn’t charged with the stuff from the alleged illegal search
The affidavit for the search warrant completely failed to show probable cause for defendant’s house. The fact he drove somebody to a stash house isn’t probable cause to believe he’s involved in the stash house and its drug trafficking organization. The good faith exception does not apply because the affidavit was truly bare bones. United States v. Miller, 2017 U.S. Dist. LEXIS 53511 (E.D. Mich. April 7, 2017).
The officers had developed reasonable suspicion by the time consent was sought. They already had probable cause by the time the dog was called for, so defendant gave them up. “He also remarked to Trooper Honesto, ‘you guys are f—ing good.’ Trooper Honesto then read Salazar his Miranda rights because of the statements Salazar was making.” United States v. Salazar, 2017 U.S. Dist. LEXIS 53170 (N.D. Tex. April 6, 2017).* [How can you disbelieve an officer with the name Honesto?]
Posted inProbable cause, Reasonable suspicion|Comments Off on E.D.Mich.: Driving somebody to a stash house isn’t probable cause for your house
Defendant arrived at O’Hare on a flight from the Philippines. The government described how they took the passenger manifest of incoming flights and looked for likely candidates for a secondary search of computers and cell phones. Defendant had been there twice in the previous two years, and he had no business or family purpose for going there. When he was in the queue at Customs, he was acting nervous and was sweating, although it wasn’t hot. In the secondary inspection area, they found receipts that contradicted his story about his travels. They directed he unlock his phone and computer to do a quick forensic examination and released him into the airport. They found child pornography. (They also looked at his Facebook page as a part of their investigation, for whatever that’s worth.) After finding those images, a search warrant was sought although more wasn’t found. The border search was reasonable. If reasonable suspicion is required, they had it. United States v. Wanjiku, 2017 U.S. Dist. LEXIS 53370 (N.D. Ill. April 7, 2017).
Defendant agreed to GPS monitoring as a condition of pretrial release in another case. Thus, his motion to suppress the monitoring is denied when he’s accused of a burglary, and the GPS puts him there. His argument was that he didn’t think that he’d be monitored “all the time,” just when he was not going around the person in the no contact order. [How that would work is hard to see.] Commonwealth v. Johnson, 2017 Mass. App. LEXIS 41 (April 7, 2017).
Police had information that defendant was selling drugs from his car. When he was stopped and told to get out, officers could see Suboxone on the front seat. That led to a reasonable search of the car. United States v. Silva, 2017 U.S. Dist. LEXIS 52990 (D. Mass. April 6, 2017).*
Posted inGPS / Tracking Data, Probable cause|Comments Off on MA: Def was on pretrial GPS monitoring, and it can be used as evidence in another case
60 years ago today was the first screening of the classic Twelve Angry Men. Although only a little over a minute of the movie occurs while the judge instructs the jury, the rest occurs in the jury room, albeit about 40 seconds at the end when two jurors introduce themselves as they leave the courthouse. In 2008 it was #2 on the Best Courtroom Drama list. It also has an informative Wikipedia page with this:
Speaking at a screening of the film during the 2010 Fordham University Law School Film festival, Supreme Court Justice Sonia Sotomayor stated that seeing 12 Angry Men while she was in college influenced her decision to pursue a career in law. She was particularly inspired by immigrant Juror 11’s monologue on his reverence for the American justice system.
Posted inUncategorized|Comments Off on Twelve Angry Men first showed 60 years ago today
“In each of the foregoing decisions, the stop at issue was upheld either because of independent observation by law-enforcement officers or because the tip itself demonstrated the informant’s basis of knowledge for alleging criminal conduct. In this case, the report Deputy Kriese received ‘did not articulate any facts describing illegal conduct or any conduct that would otherwise give rise to an inference of criminal activity. [Deputy Kriese] did not corroborate the report’s conclusory assertion by personal observation of [Stanage].’ Id. ¶ 13, 864 N.W.2d at 785 (emphasis added). Thus, under Navarette, Scholl, and the other authorities discussed above, the totality of the circumstances in this case did not provide a reasonable suspicion of criminal activity.” State v. Stanage, 2017 SD 12, ¶18, 2017 S.D. LEXIS 33 (April 5, 2017).
Last month, the federal government issued a summons ordering Twitter to hand over information about an anonymous account that had posted messages critical of the Trump administration. Now, the government has blinked. Customs and Border Protection on Friday withdrew its demand that Twitter unmask the anonymous account, a day after the social media company sued the government to block the summons.
Shades of Richard Nixon. “Those who cannot remember the past are condemned to repeat it.” George Santayana, Life of Reason, Vol. I, Reason in Common Sense (1905).
Posted inSubpoenas / Nat'l Security Letters|Comments Off on NYTimes: U.S. Blinks in Clash With Twitter; Drops Order to Unmask Anti-Trump Account
Nebraska law enforcement agencies continued to report racial disparities in traffic stops in 2016. In Douglas County, for example, black drivers accounted for 28.5 percent of traffic stops by all local agencies, though blacks represent 11 percent of the county’s population. Meanwhile, whites accounted for 56 percent of Douglas County stops and 71 percent of the population. Similar disparities have shown up for years. The latest data from the annual report, provided by law enforcement agencies to the Nebraska Crime Commission as required by law, break down traffic stops by race, reason for the stop, outcome and whether officers conducted searches.
Posted inUncategorized|Comments Off on Omaha World-Herald: Nebraska law enforcement report shows racial disparity in traffic stops
Citing numerous cases, the Tennessee Supreme Court holds that officers passing “no trespassing” signs has no talismanic authority to make a knock-and-talk unreasonable. The overwhelming weight of authority so holds. Police came to defendant’s front door, knocked, and he opened it and came out and locked the door. The officers could smell a meth lab inside. They asked for consent, and it was refused, so they entered anyway, finding a working lab and other inactive production stuff. The warrantless entry into the house was reasonable. State v. Christensen, 2017 Tenn. LEXIS 195 (April 7, 2017), aff’g 2015 Tenn. Crim. App. LEXIS 357 (May 14, 2015) (see Treatise § 16.05 n.3): Continue reading →
Posted inBurden of proof, Knock and talk|Comments Off on TN: Police passing “no trespassing” signs on rural land doesn’t prevent a knock-and-talk
The CI led to another case, but the information here wasn’t corroborated and easily could have been. “We acknowledge that this is a close case. However, the police had every opportunity to pursue more substantial corroboration prior to preparing the affidavit of probable cause, but failed to do so. We simply do not believe that, without more, the CI’s reliability was established solely by the fact that he had provided a tip leading to one still-pending prosecution, the details of which were not included in the affidavit of probable cause.” The trial court acknowledged it was thin, and the court of appeals recognizes it’s close. [No mention of good faith exception.] Commonwealth v. Manuel, 2017 PA Super 94, 2017 Pa. Super. LEXIS 227 (April 7, 2017), § 16.05 .
Patrol officers have a duty to respond to 911 calls, and that leads to consensual encounters. Based on the totality, “Officers Henderson and Brown were justified in making such a stop and conducting a protective frisk for officer safety based on their reasonable suspicion that criminal activity was afoot.” The frisk produced a gun. United States v. Clark, 2017 U.S. Dist. LEXIS 51943 (E.D. Mo. March 1, 2017),* adopted, 2017 U.S. Dist. LEXIS 50902 (E.D. Mo. Apr. 4, 2017).*
Posted inInformant hearsay|Comments Off on PA: CI isn’t corroborated solely because he helped make another case
As long as post-conviction proceedings or a federal prosecution are possible, the state has the ability to keep the evidence without return to the defendant. The state statute says “may” not shall. State v. Buttercase, 296 Neb. 304, 2017 Neb. LEXIS 54 (April 7, 2017).
“Petitioner has not identified any grounds which counsel might have relied on in challenging the warrants or consents, nor has he pointed to any exculpatory evidence which counsel might have obtained.” Therefore, he can’t show defense counsel was ineffective. Tyson v. United States, 2017 U.S. Dist. LEXIS 52981 (S.D. Ohio April 6, 2017).*
Posted inRule 41(g) / Return of property|Comments Off on NE: Return of property not required until after post-conviction is concluded
"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.
