Defendant’s cell phone was seized from his car after a stop. If an inventory is otherwise valid, it doesn’t matter that it also had an investigative purpose. A search warrant was sought for the cell phone. The affidavit for the warrant showed probable cause based on facts that members of the gang defendant was affiliated with used cell phones to arrange criminal activity, and they took photographs of the loot with cell phones. United States v. Perry, 2017 U.S. Dist. LEXIS 53510 (E.D. Mich. April 7, 2017).
The stop was for impeding traffic, and the defendant was ordered out of the vehicle. Then, defendant was grabbing for his waistband and then fled on seeing another officer arrived. The frisk was justified. During the frisk, his legs were clenched together and he intentionally fell to the ground, heightening the officers’ concern. United States v. Mitchell, 2017 U.S. Dist. LEXIS 52833 (M.D. La. April 5, 2017).*
Posted inInventory, Stop and frisk|Comments Off on E.D.Mich.: If an inventory is otherwise valid, it doesn’t matter that it also had an investigative purpose
Officers approached a group of men standing in a high crime area, and one of them flinched on seeing the police. That was reasonable suspicion as to him and at least permitted a brief detention of the others in the group for officer safety. United States v. Turner, 2017 U.S. App. LEXIS 5882 (11th Cir. April 5, 2017): Continue reading →
Posted inReasonable suspicion, Stop and frisk|Comments Off on CA11: When one in a group in a high crime area flinches on seeing the police, others with him are subject to investigative detention
Defendant was a reputed Boston mobster on the lam in Idaho with a different name. Police were tipped off to his location, interviewed neighbors learning about guns, and then allegedly went to his house and peeked in the window. Even assuming they did that, which would have been a violation of the Fourth Amendment, as both the district court did and this court does, there was probable cause for issuance of the search warrant. The information was obtained from interviews with neighbors about his having guns four months earlier, guns have enduring value and use and are kept in the home, and it was likely they were still there.There also was a separate search claim rejected as untimely. United States v. Ponzo, 2017 U.S. App. LEXIS 6058 (1st Cir. April 7, 2017): Continue reading →
Posted inNexus, Staleness|Comments Off on CA1: SW for guns on 4 mo old information wasn’t stale
Defendant was charged as a co-conspirator in a drug conspiracy involving a warehouse. He makes no effort to show his individual standing, and being a co-conspirator isn’t enough. United States v. Galecki, 2016 U.S. Dist. LEXIS 185667 (D. Nev. Sept. 19, 2016) (see Treatise § 4.18 n.22).
“To be sure, the Affidavit could have been more explicit about the link to John Avenue. But, as indicated, the Affidavit need not be a model of perfection to pass constitutional muster. The Affidavit recounts an extensive investigation linking the defendants to cocaine distribution. The issuing judge was entitled to infer from the Affidavit that contraband would be found at the John Avenue residence, a location that was frequented by Enixae and the other defendants. [¶] Even if the search warrant were not supported by probable cause, this would not end the inquiry. Deterrence “is not achieved through the suppression of evidence obtained by ‘an officer acting with objective good faith,'” pursuant to a search warrant issued by a judicial officer.” This was all in good faith. United States v. Villapando, 2017 U.S. Dist. LEXIS 51698 (D. Md. April 5, 2017).*
Posted inNexus, Standing|Comments Off on D.Nev.: There is no co-conspirator standing
When the Obama administration launched a sweeping policy to reduce harsh prison sentences for nonviolent drug offenders, rave reviews came from across the political spectrum. Civil rights groups and the Koch brothers praised Obama for his efforts, saying he was making the criminal justice system more humane.
But there was one person who watched these developments with some horror. Steven H. Cook, a former street cop who became a federal prosecutor based in Knoxville, Tenn., saw nothing wrong with how the system worked — not the life sentences for drug charges, not the huge growth of the prison population. And he went everywhere — Bill O’Reilly’s show on Fox News, congressional hearings, public panels — to spread a different gospel.
Posted inUncategorized|Comments Off on WaPo: How Jeff Sessions wants to bring back the war on drugs
The confrontation clause is a trial right, so does not apply to suppression hearings. So the use of a deceased police officer’s recorded statement at a suppression hearing did not violate the confrontation clause. State v. Zamzow, 2017 WI 29, 2017 Wisc. LEXIS 168 (April 6, 2017), aff’g 2016 WI App 7, 366 Wis. 2d 562, 874 N.W.2d 328 (2015) (see Treatise § 60.51 n. 2,5)
Posted inBurden of proof|Comments Off on WI: Confrontation clause does not apply to suppression hearings
Defendant abandoned his gun by putting it in his friend’s attic in a shoebox after he was told the gun was not welcome in the house. Heyne v. State, 2017 Fla. LEXIS 748 (April 6, 2017).
The PO had reasonable suspicion for a parole search based on her knowledge of defendant from his admissions during her interviews with him then a CI’s tip about illegal activity. The CI’s tip may have been enough alone, but the totality certainly was. United States v. Taylor, 2016 U.S. Dist. LEXIS 185625 (D. S.D. Dec. 29, 2016),* adopted, 2017 U.S. Dist. LEXIS 48623 (D. S.D. Mar. 31, 2017).*
Posted inAbandonment, Probation / Parole search|Comments Off on FL: Def abandoned gun by storing it in attic of friend’s house where friend said gun wasn’t allowed in house
Defendant did not freely and voluntarily give his actual consent because he was pulled over by police officers, ordered out of his car at gun point, read the implied consent form, and informed that officers would hold him down and take a sample of his blood by force if he refused to consent to the blood draw. The state implied consent law did not satisfy the consent exception. The officers, however, obtained defendant’s blood sample in objective reasonable good-faith reliance on binding precedent at the time. Therefore, the exclusionary rule did not apply under Davis. State v. Carter, 2017 Tenn. Crim. App. LEXIS 246 (April 5, 2017).
The officer had probable cause to believe that defendant had just completed a drug transaction and left a bar with drugs for sale when he stopped and searched him. Lamb v. Commonwealth, 2017 Ky. LEXIS 92 (Feb. 16, 2017).*
Posted inGood faith exception, Voluntariness|Comments Off on TN: No consent to blood draw where def pulled out of car at gun point and told his blood was being taken
After rejecting Gates in 1989 and retaining Aguilar-Spinelli as a matter of state constitutional law, Tennessee finally adopts the totality of circumstances test of Gates. State v. Tuttle, 2017 Tenn. LEXIS 190 (April 5, 2017) (see Treatise § 6.36 n.4): Continue reading →
Posted inProbable cause, State constitution|Comments Off on TN finally rejects Aguilar-Spinelli for Gates under state constitution
The American judiciary is currently engaged in a vigorous debate that can be summed up in one question: Can you diminish your Fourth Amendment rights by exercising your Second Amendment rights? The Fourth Amendment protects individuals against “unreasonable searches and seizures”; the Second Amendment safeguards the right “to keep and bear arms.” What happens, then, if police officers search or seize a person solely because he is carrying a firearm? Is that “unreasonable” under the Fourth Amendment and therefore illegal?
Posted inReasonable suspicion|Comments Off on Slate: The Second Amendment vs. the Fourth Amendment
One of the happiest moments in my life was the day in 1999 when I became an American citizen. Studying for the citizenship test, I had learned to appreciate the Bill of Rights, including the 4th Amendment, which guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
More recently I was made to wonder: Does the 4th Amendment apply to Muslim citizens at LAX? Continue reading →
Posted inBorder search|Comments Off on LATimes: Op-Ed My phone was searched at LAX, which apparently is the new normal
A protective sweep wasn’t justified because the arrest was outside the apartment building away from view. Exigency also didn’t exist because there was no justification for thinking that there might be an injured person inside. Pace v. Commonwealth, 2017 Ky. LEXIS 91 (March 23, 2017): Continue reading →
Posted inProtective sweep|Comments Off on KY: Arrest outside away from door did not justify protective sweep inside
Defendant was not detained when officers asked him to keep his hands out of his pockets and to step onto the sidewalk. The encounter did not become a detention until the officers used force to grab defendant’s arm and told him to place his hands behind his back. The officers had reasonable suspicion because they saw the car rolling backwards, defendant exit the driver’s side and attempt to jump start the car, and learned from dispatch that his license was suspended. A frisk was justified because officers feared that defendant was armed after it was confirmed he did not have a license and he physically resisted two attempts to handcuff him. People v. Parrott, 2017 Cal. App. LEXIS 305 (1st Dist. April 4, 2017).
Defense counsel was not ineffective for not challenging a child pornography search warrant on staleness grounds since it obviously would have failed. Simons v. United States, 2017 U.S. App. LEXIS 5648 (11th Cir. April 3, 2017).*
Defendant’s car was stopped because the passenger didn’t have his seatbelt on. A criminal background check was run, and it was part of the stop and did not require separate justification. That was enough to order defendant out of the car. United States v. Sanders, 2017 U.S. Dist. LEXIS 50816 (D. R.I. April 3, 2017): Continue reading →
Posted inReasonable suspicion|Comments Off on D.R.I.: Running a criminal background check during a traffic stop is reasonably part of the stop; RS not required
Cell phone search warrant failed to show nexus between the phone and the alleged crime. In considering remedy, the court decides not to apply the good faith exception and instead goes with inevitable discovery. Defendant was on probation and there was at least reasonable suspicion for a search of the phone. United States v. Bishop, 2017 U.S. App. LEXIS 5647 (11th Cir. April 3, 2017): Continue reading →
Posted inCell phones, Inevitable discovery, Nexus|Comments Off on CA11: No nexus shown for cell phone SW, but def was on probation, so inevitable discovery applies
A search warrant for 320 CR 401 did not objectively include 320A CR 401, a different address and building 200 yards away with a separate electric meter, so summary judgment was improperly granted the police. In addition, a telephone warrant was used and Mississippi case law six years earlier said you couldn’t do that. There was no record of what was discussed in getting the warrant. Rogers v. Lee County, 2017 U.S. App. LEXIS 5747 (5th Cir. April 3, 2017) (see Treatise § 55.14 on telephone warrants).
Posted inScope of search, Warrant requirement|Comments Off on CA5: SW for 320 CR 401 didn’t include 320A; telephonic warrant fails for lack of a record of what caused to issue
The court assumes without deciding that defendant had standing to challenge the search of his sister’s house because, although he was kicked out because of an arrest warrant for him, she let him back in to take a shower, charge his phone, gather his belongings, and call for a ride. She consented to the search. Once inside, the defendant’s cell phone was in plain view, and the officers were looking for it because they suspected it had information about defendant being in an armed robbery on it. United States v. Gillom, 2017 U.S. Dist. LEXIS 51375 (D. Kan. April 4, 2017).*
A prison medical provider’s allegedly negligent care is not a Fourth Amendment claim. Amey v. Cal. Med. Corr. Health Care Servs., 2017 U.S. Dist. LEXIS 50799 (E.D. Cal. March 31, 2017).*
Defendant was stopped for improper lane usage and an obstructive LPN. Literally within seconds, reasonable suspicion was developing based on where the defendant was coming and going based on his familiarity with the area he’d worked in so long. United States v. Newton, 2017 U.S. Dist. LEXIS 50916 (S.D. Ala. April 4, 2017).*
Posted inPlain view, feel, smell, Reasonable suspicion|Comments Off on D.Kan.: Officers on consent search saw cell phone in plain view and they knew it would have evidence on it; seizure proper
The affidavit for the state search warrant for defendant’s cell phone established that cell phones were used in the drug offenses, so that establishes probable cause to search them. The fact the phones were searched in a county other than the one where the search warrant was issued is not a Fourth Amendment claim. United States v. Saunders, 2017 U.S. Dist. LEXIS 50382 (N.D. W.Va. March 3, 2017), adopted, 2017 U.S. Dist. LEXIS 50381 (N.D. W.Va. April 3, 2017).
The suppression hearing had officers testifying to what they observed, and defendant contradicting it. Defendant is not credited at all because of what else he claimed not to know or remember (the description of the house his children lived in that he was supposedly heading to plus other false testimony) makes him not credible at all. His stop and arrest were based on probable cause. United States v. Rule, 2017 U.S. Dist. LEXIS 50015 (N.D. Ill. April 3, 2017).*
Posted inWarrant execution|Comments Off on N.D.W.Va.: Fact a cell phone is searched in a county other than where the SW issued isn’t a 4A issue
On defendant’s motion to reconsider the prior denial of the motion to suppress, the new evidence that defendant has doesn’t change the outcome. United States v. Thayer, 2017 U.S. Dist. LEXIS 51255 (D.N.M. April 3, 2017).* The motion to reconsider in criminal cases is implied and well established in the Tenth Circuit: Continue reading →
Posted inBurden of proof|Comments Off on D.N.M. allows motion to reconsider under implied authority and denies it
"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.
