“The dash-cam video shows that Bourn was travelling at highway speed and there was moderate traffic on the highway. There is no evidence regarding the speed of the truck or other vehicles or the distance between Bourn’s vehicle and the truck. DeLeon only testified that he would not have stopped Bourn unless she was at an unsafe distance. He admits to not considering factors such as speed or traffic conditions. Thus, DeLeon’s testimony is conclusory and does not establish specific, articulable facts to warrant the traffic stop.” Motion to suppress granted. United States v. Bourn, 2017 U.S. Dist. LEXIS 24388 (S.D. Tex. Feb. 22, 2017).
Defense counsel wasn’t ineffective for not challenging time in the child pornography search warrant application where it was apparent it was relatively recent and time doesn’t matter in child pornography search warrants. United States v. Gumbs, 2017 U.S. Dist. LEXIS 23382 (D.V.I. Feb. 18, 2017).*
Posted inReasonable suspicion|Comments Off on S.D.Tex.: Dashcam video doesn’t support the conclusory basis for stop; suppressed
Handcuffing the defendant and transporting him to the FBI office was an arrest under Kaupp v. Texas. The fact that’s policy is irrelevant. “The fact that it is FBI policy to handcuff defendants being transported in FBI vehicles is irrelevant. Kaupp, 538 U.S. at 632. The test for whether, and to what extent, a defendant has been seized under a Fourth Amendment analysis is objective. See Michigan v. Chesternut, 486 U.S. 567, 574, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988). The Fourth Amendment does not bend to ‘law enforcement practices—even practices set by rule.
Virginia v. Moore, 553 U.S. 164, 172, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008).” United States v. Saelee, 2017 U.S. Dist. LEXIS 22867 (D. Alaska Feb. 15, 2017).
Posted inUncategorized|Comments Off on D.Alaska: Handcuffing def to take to FBI office for interview an arrest, no matter what the policy says
Posted inCell site simulators|Comments Off on New Law Review Article: A Modern Major Statute: Illinois Raises the Bar in Protecting Citizen Privacy from Cell Site Simulators
The search of defendant’s truck was not sufficiently regulated by standardized police procedures and therefore was pretextual, as the vague, conflicting inventory regime of the police department was not capable of sufficiently regulating the search. Even if it was, the officers’ major deviation from that regime gave rise to an inference of pretext confirmed by other evidence and not overcome by the State. Sams v. State, 2017 Ind. App. LEXIS 70 (Feb. 21, 2017).
Defendant’s objection two years after a hearing to change the record to include something about the consent to search is denied. The existing record was correct. Sandlain v. United States, 2017 U.S. Dist. LEXIS 21685 (E.D. Mich. Feb. 8, 2017).*
Posted inInventory|Comments Off on IN: Inventory not sufficiently regulated to be valid; also, officer’s deviation from inventory showed pretext
“More to the point, the assertions in the affidavit in this case contain no specific facts showing any connection between drug-related activity and 120 River Street after February 2009. See Tench, 353 S.C. at 534, 579 S.E.2d at 316; Kinloch, 410 S.C. at 616, 767 S.E.2d at 155. And we find the non-specific statement in the affidavit—that in the past six months law enforcement observed Thompson stop at 120 River Street ‘just before making cocaine deliveries throughout Spartanburg County’—is insufficiently specific to provide a fair probability the evidence sought by the search warrant would be located there.” State v. Thompson, 2017 S.C. LEXIS 39 (Feb. 22, 2017), rev’g State v. Thompson, 413 S.C. 590, 776 S.E.2d 413 (App. 2015).
Posted inProbable cause|Comments Off on SC: No specific facts showed PC that drugs would be found at def’s house; CoA reversed
Defendant was accused of using his cell phone to take naked pictures of other soldiers in the shower and latrine. Defendant’s cell phone was on his rack with his laptop. The search authorization included defendant’s laptop, but there was no probable cause whatsoever for the search of the laptop. Moreover, the good faith exception and inevitable discovery don’t apply either. United States v. Nieto, 2017 CAAF LEXIS 124 (C.A. A.F. Feb. 21, 2017): Continue reading →
Posted inComputer and cloud searches|Comments Off on CAAF: Military search authorization for laptop based on PC for cell phone was without PC or GFE
See prior posts starting here: February 24, 1761, Old State House in Boston, second floor. The argument here.
About 20,000 posts, which is 3.9 per day. I can’t give the real number because this is the third platform, and some early posts were lost in being dumped or in transition. In the early days I did posts from a dial up connection at Chena Hot Springs, Alaska and posted in the evenings when I was in trial in Sierra Leone from my hotel’s one internet connection or from the court property which had satellite internet.
The date? Purely coincidental. I bought the URL in 1999, and I had to talk myself into the commitment this is.
Posted inUncategorized|Comments Off on Today is the 14th anniversary of this blog and the 256th of the argument in Paxton’s case, the Writs of Assistance case
The plaintiff’s daughter, a juvenile, was in a fight at school and was taken to juvenile detention. She was strip searched and subjected to a body cavity search yet was released fairly quickly. Partial summary judgment was granted the county for the search under Florence v. Board of Chosen Freeholders because it should apply to juvenile detention as well. Mabry v. Lee Cnty., 2017 U.S. App. LEXIS 3092 (5th Cir. Feb. 21, 2017): Continue reading →
Posted inStrip search|Comments Off on CA5 joins CA3: Florence strip search rule on jail intake applies to juveniles
Defendant arrived at the Malheur National Wildlife Refuge in January 2016. After arrests and the killing of one, he decided to leave and encountered a roadblock where he was briefly searched. Officers asked if he would go back to the refuge building and urge others to leave. Anybody without an arrest warrant would be allowed to pass through. Defendant came back through and his truck and horse trailer were searched again. The searches were reasonable as a protective sweep for weapons. United States v. Ehmer, 2017 U.S. Dist. LEXIS 22100 (D.Ore. Feb. 16, 2017).
The officer here came to defendant’s motel room because defendant was tied to stolen boat. Defendant consented to entry, and the situation escalated and the first officer in drew his weapon and shouted to “get on your knees.” Another officer entered because he perceived exigency. The entry wasn’t by consent, but it was justified by exigency. United States v. Larosa, 2017 U.S. Dist. LEXIS 22205 (D.Alaska Feb. 8, 2017),* adopted, 2017 U.S. Dist. LEXIS 20577 (D. Alaska Feb. 14, 2017).*
Posted inEmergency / exigency, Protective sweep, Roadblocks|Comments Off on D.Ore.: Def stopped at roadblock from Malheur National Wildlife Refuge could be searched again after he went back to talk others into leaving
A shots fired call is not carte blanche exigency–the totality of circumstances must still be examined. Here, the court finds no exigency for the warrantless entry or protective sweep and that the exclusionary rule should be applied. The costs aren’t substantial compared to the deterrent effect. United States v. Calhoun, 2017 U.S. Dist. LEXIS 21708 (D.Conn. Feb. 16, 2017), and reconsideration denied, 2017 U.S. Dist. LEXIS 40210 (D. Conn. March 21, 2017): Continue reading →
Defendant successfully argues his prior experience with the criminal justice system led him to believe that objecting to consent was futile, and suppression is granted. United States v. Sanchez, 2017 U.S. Dist. LEXIS 22807 (S.D. Tex. Feb. 17, 2017): Continue reading →
Posted inConsent|Comments Off on S.D.Tex.: Def persuades court his prior arrests led him to believe objecting to consent was futile; suppressed
Amazon is resisting an effort by Arkansas prosecutors to obtain possible recordings from a slaying suspect’s Amazon Echo device, saying authorities haven’t established that their investigation is more important than a customer’s privacy rights.
Posted inSurveillance technology|Comments Off on AP (via Ark. Democrat-Gazette): Amazon resists yielding data in slaying inquiry
“Examining defendant’s conduct objectively I find that he abandoned the duffel bag containing the heroin before the warrantless search he challenges. He left the bag unattended in plain view without an identification tag to show an ownership interest, He deliberately walked away leaving the bag on a public street where any passerby would have access to it. I am satisfied that his actions are objectively inconsistent with a continued expectation of privacy in the property. Nordling, 804 F.2d at 1470. [¶] I reject defendant’s argument that an express verbal disclaimer of possessory interest is necessary to find that he abandoned the duffel bag. Defendant’s actions alone provide an adequate objective basis to conclude that he intended to disavow any interest whatsoever in the bag and the heroin it contained. [¶] I also reject defendant’s argument that his actions showed an intent to retain a possessory interest in the bag by hiding it for later retrieval. …” United States v. Mamani-Vidal, 2017 U.S. Dist. LEXIS 21279 (D.Ore. Feb. 15, 2017).
Posted inAbandonment|Comments Off on D.Ore.: Def leaving his duffle bag on a public street and walking away from it was abandonment
“After a thorough review of the record, which consists of undisputed facts pertaining to the motion, we hold that notwithstanding California’s implied consent law, which we recognize is a factor to be considered in the totality of the circumstances, the People failed to establish that Mason freely and voluntarily consented to the blood draw, as was their burden. While Mason was driving and using the state’s roads, whatever ‘deemed consent’ she had given to a blood draw in advance by virtue of the implied consent law and her use of the public roads did not amount on these facts to actual free and voluntary consent for purposes of the Fourth Amendment. And even if the scope of any advance express consent given under the implied consent law extended to a waiver of Fourth Amendment rights in a criminal prosecution, a conclusion we find doubtful, there was also a total absence of proof in the suppression hearing that Mason was licensed to drive in California or of the advance express consent she, in particular, is urged to have provided through obtaining a license. This absence of proof precludes the position posited by the People: that she had, in fact, provided advance express consent, subject to her showing that consent was withdrawn. Moreover, under Penal Code section 1538.5, the burden of proof remained with the People to affirmatively show actual free and voluntary consent as an exception to the warrant requirement. While the implied consent law ‘deems’ consent by drivers to a chemical test to have been given, it does not shift the burden in a suppression motion to require a defendant to show that advance ‘deemed’ consent, falling short of actual free and voluntary consent under the Fourth Amendment, has been withdrawn. Accordingly, we reverse and remand with directions to the trial court to grant Mason’s motion to suppress the results of the warrantless blood draw.” People v. Mason, 2016 Cal. App. LEXIS 1171 (App. Div. – Santa Clara Dec. 29, 2016) (released Feb. 21, 2017).
Posted inConsent|Comments Off on Cal.App.–Santa Clara: Even with implied consent, statute requires state carry burden of proof and they failed here
The anonymous tip involving a man matching defendant’s description having a gun alone was not enough to make reasonable suspicion. Defendant’s flight on seeing the police, however, was. United States v. Acosta, 2017 U.S. Dist. LEXIS 21657 (M.D.Fla. Feb. 16, 2017).
Birchfield is not retroactive to apply for defendant to file a post-conviction petition out of time. State v. Davies, 2017-Ohio-621, 2017 Ohio App. LEXIS 613 (11th Dist. Feb. 21, 2017).*
Posted inReasonable suspicion|Comments Off on M.D.Fla.: Anonymous tip of man with gun alone wasn’t RS, but his flight on seeing police then was
Defendant had no reasonable expectation of privacy in a rental car rented by another and loaned to him when the rental company didn’t authorize him as a driver. United States v. Dorsey, 2017 U.S. Dist. LEXIS 21112 (D.S.C. Feb. 15, 2017).
An observed apparent drug transaction outside a house was probable cause on the totality of circumstances for the house. The seizure of the house pending a warrant and protective sweep were valid. State v. Donley, 2017-Ohio-562, 2017 Ohio App. LEXIS 582 (2d Dist. Feb. 17, 2017).*
Posted inProtective sweep, Seizure, Standing|Comments Off on D.S.C.: No REP in a rental rented by another and loaned to def where he wasn’t on the rental contract
The car defendant was in was owned by a G.B. who lent it to a Tanisha because she needed a car. Unbeknownst to G.B., Tanisha loaned it to the defendant, and G.B. had no knowledge of him. Defendant attempted to show standing, but he failed to show that he had permission from anybody to be using the car. “While Defendant arguably could have had a possessory interest in the car under Thomas if he could establish that he had permission from the registered owner (‘G.B.’) or an authorized person in control of the car (‘Tanisha’), see 447 F.3d at 1198, Defendant never identifies the person who loaned him the car, (see Dkt. 50-1). There is no evidence establishing that ‘Tanisha’ gave him permission to use it.” United States v. Browne, 2017 U.S. Dist. LEXIS 20181 (C.D. Cal. Feb. 10, 2017).
“Nothing in the Wiretap Act or its history convinces us the Legislature intended to adopt the Aguilar-Spinelli test for determining probable cause in support of wiretap authorization. Therefore, the trial court correctly applied the Gates totality-of-the-circumstances test.” People v. Camel, 2017 Cal. App. LEXIS 142 (3d Dist. Feb. 21, 2017).*
Posted inStanding|Comments Off on C.D.Cal.: The second hand borrower of a car without knowledge of owner has no standing in it
The government’s search warrant application also seeks fingerprints from any persons found there on execution if any iPhones are found. That part of the warrant application is denied. The cases permitting fingerprint production predated Riley and the issues it presents. “The considerations informing the Court’s Fourth Amendment analysis of a cell phone’s role in modern day life, we believe raise Fifth Amendment concerns as well. We do not believe that a simple analogy that equates the limited protection afforded a fingerprint used for identification purposes to forced fingerprinting to unlock an Apple electronic device that potentially contains some of the most intimate details of an individual’s life (and potentially provides direct access to contraband) is supported by Fifth Amendment jurisprudence.” In re A Search Warrant, 2017 U.S. Dist. LEXIS 23861 (N.D.Ill. Feb. 16, 2017): Continue reading →
Posted inCell phones|Comments Off on N.D.Ill.: SW for fingerprints if iPhone is found is rejected as to fingerprints; Riley also informs and narrows the 5A concerns
Defendant consented to a search for weapons, and lifted his shirt, and the officer saw a baggie of marijuana sticking out of his pants. The view was valid, and the seizure did not exceed the scope of consent. State v. Bonilla, 2017 Ida. App. LEXIS 19 (Feb. 17, 2017).
Defendant filed a motion for new trial to relitigate the motion to suppress. Five witnesses testified that defendant wanted to cooperate when he was arrested, and he consented. Now, “Thurman fails to present any meaningful argument; therefore, there is no reason to revisit the ruling on the motion to suppress.” United States v. Thurman, 2017 U.S. Dist. LEXIS 21497 (N.D.Ill. Feb. 15, 2017).*
Posted inBurden of proof, Consent|Comments Off on ID: Def consented to search of person and lifted shirt revealing baggie of MJ
One officer running a dog around a car while the license was being checked was reasonable. The dog, of course, alerted. United States v. Dominguez-Villa, 2017 U.S. Dist. LEXIS 20949 (S.D. N.Y. Feb. 14, 2017).
“Between the female passenger’s attempt to act as if she was asleep during the stop, the male passenger’s state of petrification, the clothing worn by the Chevrolet’s occupants, and Garcia’s manifestation that the purpose of the trip was to drop the male passenger off in Naples, Captain Hedrick was alerted almost immediately to the possibility of criminal activity. His suspicions were further heightened when the male passenger provided him with a different name than that which Garcia provided.” United States v. Garcia, 2017 U.S. Dist. LEXIS 21066 (M.D. Fla. Feb. 14, 2017).*
Posted inDog sniff, Reasonable suspicion|Comments Off on S.D.N.Y.: One officer nearly immediately running dog around car while second dealt with stop was reasonable
"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.
