In a civil action for return of property: “In the specific context of the disposition of property, district courts have found that the government acts appropriately when it disposes of property in a manner consistent with actions or representations made by the defendant’s attorney, having apparent authority to act on behalf of the defendant.” That’s what happened here: plaintiff’s attorney was his agent and received his property. Garcia v. O’Kelley, 2017 U.S. Dist. LEXIS 37321 (W.D. Ark. March 15, 2017).
But for the threat (or even strong suggestion) during transportation in for questioning that defendant’s children might get taken away if she didn’t cooperate, the interrogation would not be coercive. This one was. United States v. Barraza-Rocha, 2016 U.S. Dist. LEXIS 184947 (D. N.M. Aug. 17, 2016),* adopted, 2017 U.S. Dist. LEXIS 32771 (D.N.M. Mar. 8, 2017).*
Posted inRule 41(g) / Return of property|Comments Off on W.D.Ark.: Def counsel has apparent authority to receive property returned after arrest
The police flagrantly violated the Fourth Amendment by placing a GPS device on a car without a warrant. Defendant was the target, but he’d sold and relinquished control of the car to another days later by the time of the stop where he was just a passenger. Therefore, despite the flagrant Fourth Amendment violation, defendant has no standing. The stop was justified by speeding. United States v. Terry, 2017 U.S. Dist. LEXIS 37630 (S.D. W.Va. March 16, 2017): Continue reading →
Posted inExclusionary rule, Standing|Comments Off on S.D.W.Va.: Flagrant violation of 4A with warrantless GPS on def’s car doesn’t get suppressed because of def’s lack of standing at time of search
The officer testified that the reason for this stop was that the passenger wasn’t wearing a seatbelt. The court credits the officer, and nothing, including the video, disproves it. “Given Posey’s vast experience detecting seatbelt violations, it is entirely plausible that he observed Defendant’s violation. Posey credibly explained that he has made hundreds of seatbelt violation stops, has experience in detecting such violations, and had a better vantage point to see the seatbelt violation at issue than the vantage point reflected in the dashboard recording. The recording also supports Posey’s testimony that, in spite of the slight tint on the Trailblazer’s windows, he could see the seatbelt violation through the windows. Posey’s observation is corroborated by Dockery who also testified that he observed the same seatbelt violation.” United States v. Blakemore, 2017 U.S. Dist. LEXIS 36152 (E.D. Tenn. Jan. 27, 2017),* adopted, 2017 U.S. Dist. LEXIS 35922 (E.D. Tenn. Mar. 14, 2017).*
Despite the number of officers at his house, defendant was outside and not in custody when he was talking to the FBI about child pornography. Therefore, Miranda warnings were not required. United States v. Blanchard, 2017 U.S. Dist. LEXIS 37224 (W.D. La. Feb. 17, 2017),* adopted, 2017 U.S. Dist. LEXIS 37399 (W.D. La. Mar. 14, 2017).*
Posted inReasonable suspicion|Comments Off on E.D.Tenn.: Passenger’s seatbelt violation supports stop
A general motion to suppress a DUI roadblock on a military base is denied for lack of content of fact or law. United States v. Jefferson, 2017 U.S. Dist. LEXIS 37096 (S.D. Ga. March 15, 2017): Continue reading →
Posted inBurden of pleading, Roadblocks|Comments Off on S.D.Ga.: A general motion to suppress a DUI roadblock is denied; that “Something must be wrong here” doesn’t cut it
The collection of officers from several law enforcement agencies for a probation “compliance check” shows that it wasn’t a bona fide probation search. “Given the totality of the circumstances, the compliance check was unreasonably pretextual. Agents Bertrand and Hardy should not have been in Mr. Julien’s bedroom and thereby able to view the ammunition in plain sight. The legality of the search conducted thereafter was vitiated by the fact that neither Agent Bertrand, nor Hardy was assigned as Mr. Julien’s probation officer, which triggered La. C.Cr.P. art. 895(A)(13)(a). Once implicated, La. C.Cr.P. art. 895(A)(13)(a) requires that the warrantless search be conducted by the probation officer assigned to Mr. Julien. It is undisputed that the probation officer assigned to Mr. Julien was not present.” State v. Julien, 2017 La. App. LEXIS 430 (La.App. 4 Cir. March 15, 2017).
Another Playpen warrant sustained. United States v. Hachey, 2017 U.S. Dist. LEXIS 34192 (E.D. Pa. March 7, 2017).*
Posted inProbation / Parole search|Comments Off on LA4: Probation search unreasonable because PO not there; clearly pretext for criminal search
Posted inComputer and cloud searches, Warrant execution|Comments Off on Kerr: Oregon AG’s Office argues to State SCT that ex ante search restrictions on computer warrants not ok.
Police received a 911 call about a road rage incident and flashing of a gun. They found the vehicle described in the call in a strip mall parking lot. They finally found the driver and detained him, ultimately handcuffing him. A search of the car for the gun in the road rage incident was reasonable as a search incident under Gant because the gun wasn’t accounted for. United States v. Stegall, 2017 U.S. App. LEXIS 4347 (8th Cir. March 13, 2017): Continue reading →
Posted inSearch incident|Comments Off on CA8: Search of def’s car for gun was reasonable as a SI even though def was arrested away from the car
A cell phone can be searched at the border with reasonable suspicion, and the facts of this case rise to this standard. The court doesn’t have to decide whether the search could occur without in the Ninth Circuit. United States v. Mendez, 2016 U.S. Dist. LEXIS 184969 (D. Ariz. Nov. 29, 2016), adopted, 2017 U.S. Dist. LEXIS 33924 (D. Ariz. Mar. 9, 2017): Continue reading →
Posted inBorder search, Cell phones|Comments Off on D.Ariz.: Cell phone border search valid, here with RS
An anticipatory search warrant was issued for 1921 but was delivered to 1911 because of the use of false addresses. The police entered to seize the package. Defendant doesn’t show he has standing in either the package or the place searched; he was neither the addressor nor addressee on the package. Installing the GPS on the package wasn’t a “search.” Monitoring the GPS device wasn’t a search until the package went into the house. United States v. Rosario, 2017 U.S. Dist. LEXIS 32995 (D. Alaska Feb. 17, 2017), adopted, 2017 U.S. Dist. LEXIS 32085 (D. Alaska Mar. 7, 2017): Continue reading →
NYTimes: Door-Busting Drug Raids Leave a Trail of Blood by Kevin Sack:
Using SWAT officers to storm into homes to execute search warrants has led time and again to avoidable deaths, gruesome injuries and costly legal settlements. (with video)
Several federal circuits have ruled that there is no Fourth Amendment reasonable expectation of privacy in historical cell-site location information. The 9th Circuit held argument on the question this morning in United States v. Gilton before a strong panel of Judges Wallace, McKeown and Bybee. Thanks to the 9th Circuit’s open access policies, you can watch the video here on YouTube: …
Please: Watch it.
Posted inCell site location information|Comments Off on WaPo: 9th Circuit oral argument on historical cell-site information
Officers had a wealth of probable cause from consensually monitored conversations to stop the vehicle defendant was riding in. Therefore, defense counsel couldn’t be ineffective for not making a meritless motion to suppress for lack of PC. United States v. Popoca, 2017 U.S. Dist. LEXIS 34138 (N.D. Fla. Jan. 23, 2017),* adopted and COA denied, 2017 U.S. Dist. LEXIS 34074 (N.D. Fla. Mar. 9, 2017).* On showing prejudice: Continue reading →
Posted inIneffective assistance|Comments Off on N.D.Fla.: No IAC for failure to challenge stop when there was plenty of PC
Defendant never filed a motion to suppress prior to trial, so the search and seizure claim is waived. Proctor v. United States, 2017 D.C. App. LEXIS 55 (March 16, 2017), amended 2017 D.C. App. LEXIS 331 (Oct. 26, 2017).
The passenger didn’t have standing for the search of the car. Reasonable suspicion developed from numerous plastic baggies on the console. The 25 minute wait for the drug dog wasn’t unreasonable. State v. Brown, 2017 W. Va. LEXIS 164 (March 13, 2017) (memorandum).*
Eight factors, innocent in themselves, were recounted as adding up to reasonable suspicion on the totality. United States v. Johnson, 2017 U.S. Dist. LEXIS 33859 (D.Neb. March 9, 2017).*
Defendant moved to suppress the cell phone data from a phone he sporadically used during a conspiracy, but he has no standing. The date was 334 days worth, and his use was occasional. This is no different that a sporadic user of a car. Even if he had standing, while an open question in this circuit, the majority rule is that it isn’t a “search” to get that information, and the court agrees. United States v. Walker, 2017 U.S. Dist. LEXIS 38102 (S.D. N.Y. March 8, 2017): Continue reading →
Defense counsel not subpoenaing the drug dog’s records wasn’t prejudicial where defendant can’t show that the drug dog’s use would be disallowed in the case. “There is no reason to believe that any additional information would have altered the probable cause determination or resulted in the suppression of evidence.” United States v. Mathews, 2017 U.S. Dist. LEXIS 34121 (D. Minn. March 9, 2017).
The informant hearsay here (analyzed under Aguilar-Spinelli under state law) was sufficient to provide probable cause for defendant’s arrest and search incident. Everything else flowed from that, and inevitable discovery even applies. State v. Smith, 2017 Tenn. Crim. App. LEXIS 190 (March 14, 2017).*
A partially obscured license plate because of a license plate bracket with an eagle on top that covered “Alabama” but not “God Bless America” on the bottom was a violation of Alabama law justifying the stop. The license plate couldn’t be properly read by the automatic reader. United States v. McCullough, 2017 U.S. App. LEXIS 4527 (11th Cir. March 15, 2017):
Posted inReasonable suspicion|Comments Off on CA11: Partially obscured LPN justified stop when LPN reader couldn’t read it
Plaintiffs stated a Fourth Amendment claim against the City for warrantless seizure of its motorized three-wheeled vehicles. The fact one plaintiff rented them to another in exchange for a share of the profits, and they were seized from the latter, didn’t deprive it of standing to sue. Adventure Trikke & Tours Corp. v. City of Miami Beach & Miami Beach Police Dep’t, 2017 U.S. Dist. LEXIS 36367 (S.D. Fla. March 13, 2017). Continue reading →
Posted inSeizure, Standing|Comments Off on S.D.Fla.: Co. that rented vehicles to another for rental to public had standing to sue over seizure
A mere visitor, albeit a frequent one, is not subject to search as an occupant of the premises under a probation search waiver. He has an insufficient connection to the property to be subject to the occupant’s waiver. State v. Kaul, 2017 ND 56, 2017 N.D. LEXIS 56 (March 13, 2017): Continue reading →
Posted inProbation / Parole search|Comments Off on ND: Even a frequent visitor isn’t sufficiently connected to a probationer’s property to be subject to his probation search waiver
Omitting the fact defendant was subject to a search waiver wasn’t material to a wiretap application. It’s omission from the wiretap affidavit didn’t matter. United States v. Rodriguez, 2017 U.S. App. LEXIS 4429 (9th Cir. March 14, 2017).
Defendant couldn’t raise his Fourth Amendment claim in a 2255 without showing that he had no full and fair opportunity to raise that claim originally in the district court. Here there was a motion to suppress that touched on this issue, so defendant fails his burden. Sermon v. United States, 2017 U.S. Dist. LEXIS 35412 (W.D. Tenn. March 13, 2017).*
Posted inProbation / Parole search|Comments Off on CA9: Omission of 4A probation search waiver from wiretap application didn’t mean anything
"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.
