“There was little evidence regarding the floppy disks, CDs, and Rolodex, but the burden was on Webber to demonstrate that she was entitled to their return. Upon review of the record, the evidence before the trial court supported a conclusion that the seized items were either contraband, proceeds, or instrumentalities, and that they constituted evidence to be used by the State in the prosecution of Moreno.” Petitioner’s argument about an alternative method of dealing with it wasn’t raised in the trial court so it’s not considered. State v. Moreno, 2017-Ohio-479, 2017 Ohio App. LEXIS 477 (2d Dist. Feb. 10, 2017).
Defendant’s patdown was reasonable and the plain feel of the pipe in his pocket was reasonable. United States v. Edwards, 2017 U.S. Dist. LEXIS 21214 (D.Neb. Feb. 14, 2017).*
Plain feel was of a small baggie of drugs. United States v. Mitchell, 2017 U.S. Dist. LEXIS 19367 (D.Kan. Feb. 10, 2017).*
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The knock-and-announce rule applies to parole searches, and violation of the rule is a substantial violation of the Fourth Amendment and the state constitution. The court adopts Hudson, however, and finds that the exclusionary rule should not be applied. Lane v. State, 2017 Ark. 34, 2017 Ark. LEXIS 33 (Feb. 16, 2017) (4-3, with the dissenters not even willing to say that the Fourth Amendment applies to parolees at all).
The State Police obtained a search warrant for defendant’s arrest for FIPF after a menacing claim. They didn’t even need it because defendant was on parole and his parole officer was there, too. United States v. Harris, 2017 U.S. Dist. LEXIS 19136 (E.D. Ky. Feb. 10, 2017).* [The motion to suppress was filed the Friday before Monday’s start of trial. Why waste time on that motion and not be preparing for trial?]
Defendants had standing in packages shipped to them under assumed names. As to the affidavit: “In terms of any omissions, neither the omission of the statistics on the “profile,” nor the omission of information on the dogs’ reliability, warrants the conclusion that the good-faith exception should not apply. This follows because there would still be probable cause even if the information were included.” “The same is true for any omitted information regarding the drug-detecting dogs’ reliability. The affidavits both note that the dogs, Boris and Spike, were trained to alert to the presence of drugs and have been certified within a year of the search.” United States v. Bogen, 2017 U.S. Dist. LEXIS 16716 (E.D. La. Feb. 7, 2017).
Posted inProbable cause|Comments Off on E.D.La.: Not every detail needs be included in affidavit; omissions here only would bolster PC
There were two justifications for defendant’s stop. Defendant only challenged one, so it’s moot. State v. Swartz, 2017 Mo. App. LEXIS 74 (Feb. 14, 2017).
The sound of defendant’s car apparently hitting another car constituted a hit and run, and that was reasonable suspicion for the stop. United States v. Holmes, 2017 U.S. Dist. LEXIS 17635 (M.D. Pa. Feb. 8, 2017).*
Posted inBurden of proof|Comments Off on MO: Where there are two justifications for a stop, challenging only one does not provide relief
While impoundment was statutorily permitted, state law requires alternatives be explored before impoundment. Here it wasn’t, so the impoundment is suppressed. State v. Froehlich, 2017 Wash. App. LEXIS 366 (Feb. 14, 2017): Continue reading →
Posted inInventory|Comments Off on WA: While impoundment was permissible, state law required reasonable alternatives be considered first
In a rental unit inspection ordinance case, the court declines to grant a preliminary injunction. The tenants have rights, of course, but state law permits the landlord to conduct inspections on his or her own and, most importantly, there is a 21 day warning period to the landlord and tenant before the inspection occurs. Winnebago Apt. Ass’n v. City of Oshkosh, 2017 U.S. Dist. LEXIS 19906 (E.D. Wis. Feb. 13, 2017).
Posted inAdministrative search|Comments Off on E.D.Wis.: Rental unit inspection ordinance not violation of 4A where 21 day notice given
Defendant was Sandra Bullock’s stalker arrested in her house. He lawyered up but the police kept questioning and got consent which was held involuntary by the trial court. The state appealed. They tried inevitable discovery, and that was rejected. Finally, the state argued that defendant’s failure to comply with a firearms relinquishment order justified the search, but that wasn’t even stated as a basis of the warrant. People v. Superior Court, 2017 Cal. App. LEXIS 114 (2d Dist. Feb. 14, 2017): Continue reading →
Posted inInevitable discovery|Comments Off on Cal.2d: Sandra Bullock’s stalker’s home search remains suppressed
“Neither the United States Constitution nor the Minnesota Constitution requires police to obtain a search warrant before entering a third party’s home to execute a lawfully issued arrest warrant for a guest.” State v. deLottinville, 2017 Minn. LEXIS 55 (Feb. 15, 2017): Continue reading →
Posted inArrest or entry on arrest|Comments Off on MN: Arrest warrant permits entry into home of third party for arrest of guest
These classes are getting increasingly popular at a time when the dominant political party seems to believe police officers should be given more latitude, get less oversight and not be subject to second-guessing. That seems like a potentially dangerous combination.
Posted inExcessive force|Comments Off on WaPo: ‘The Watch’ Blog: A day with ‘killology’ police trainer Dave Grossman
Protections for non-citizens against unreasonable government searches and seizures could be an area of disagreement between President Donald J. Trump and his nominee to the U.S. Supreme Court.
Judge Neil M. Gorsuch is known for his hard-nose, originalist approach to interpreting the Fourth Amendment—which protects people from unreasonable government searches and seizures—and has been likened to the late Justice Antonin Scalia, whom he would replace if confirmed by the U.S. Senate, according to an evidence professor.
Posted inSCOTUS|Comments Off on Criminal Law: White House, Gorsuch Could Clash on Search and Seizure
In a remarkable opinion, the court finds the officer’s testimony just too convenient and, thus, incredible and suppresses the seizure by an alleged plain view. Also, the plain view required manipulation, and that’s not plain view. United States v. Mata-Peña, 2017 U.S. Dist. LEXIS 19342 (D. P.R. Feb. 10, 2017): Continue reading →
Defendant was arrested without probable cause for using a school track for exercise. Despite a school no trespassing sign, there were signs inviting public use of the track and every school patron, neighbor, and police officer apparently knew it except the arresting officer. State v. Rand, 2017 Fla. App. LEXIS 1634 (Fla. 1st DCA Feb. 10, 2017).* [The real question is why the state wasted its time on an appeal.]
Defendant was pulled over for staying in the passing lane on an Interstate highway too long as he passed two trucks, that he could [or should] have pulled in between then before passing the second. “[A]lthough the traffic violation at issue seemingly was minor, a stop based on the perceived violation passes constitutional muster.” The video didn’t help on the fact issue at all, so the officer gets credited with reasonable suspicion for the stop. Then the officer found out defendant was in a rental car that wasn’t his or he wasn’t a driver of, so the district court held had no standing in the car. The court of appeals gets to the merits. The offense was minor, but the stop was not constitutionally unreasonable. Reasonable suspicion developed from aliases and demeanor. The stop was reasonable in length and the officer was diligent on the totality. United States v. Byrd, 2017 U.S. App. LEXIS 2406 (3d Cir. Feb. 10, 2017).*
The smell of marijuana coming from a car and then defendant’s person when he got out is probable cause to search both. Defendant said he smoked all the marijuana five hours before the stop. Then he was found chewing it, so he was charged with tampering with evidence, too. Deleon v. State, 2017 Tex. App. LEXIS 1176 (Tex. App. – Eastland Feb. 10, 2017).
Defense counsel declined to challenge the probable cause for defendant’s arrest because he determined there clearly was a basis for it. Moreover, defendant said at the plea he was satisfied with defense counsel. State v. Johnson, 2017 Del. Super. LEXIS 59 (Feb. 7, 2017).*
“Simply put, the odor of marijuana emanating from a group cannot, by itself, form the basis of a lawful detention of any particular member of that group. Nor can the fact that each member of the group engulfed in ‘billowing smoke,’ as the officer testified, smelled equally of marijuana. Therefore, when the officer detained the entire group, including B.G., based on the odor of marijuana coming from the group, the officer was not engaged in the lawful execution of a legal duty, and that detention was illegal. And because the detention was illegal, B.G.’s refusal to be searched could not support a charge of obstructing an officer without violence. … Therefore, the trial court should have granted B.G.’s motion for dismissal on the resisting charge.” B.G. v. State, 2017 Fla. App. LEXIS 1671 (Fla. 2d DCA Feb. 10, 2017).
Posted inProbable cause|Comments Off on FL2: Cloud of smoke coming from a group gives PC as to no one person without more
Obtaining consent before Mirandizing the defendant is not a violation of self-incrimination. Defendant’s experience with the criminal justice system supports the voluntariness of his consent. United States v. Lopez-Fernandez, 2017 U.S. Dist. LEXIS 17791 (D. P.R. Feb. 6, 2017).
Careless driving supported the stop and the smell of marijuana the search. United States v. McDaniel, 2017 U.S. Dist. LEXIS 17807 (W.D.Mo. Jan. 9, 2017),* adopted, 2017 U.S. Dist. LEXIS 17474 (W.D. Mo. Feb. 8, 2017).*
Another Playpen warrant sustained. United States v. Jones, 2017 U.S. Dist. LEXIS 16445 (S.D. Ohio Feb. 1, 2017).*
Posted inConsent, Plain view, feel, smell|Comments Off on D.P.R.: Consent before Mirandizing is not a violation of self-incrimination
Defendant stated enough to get a hearing on his post-conviction claim that his defense counsel didn’t properly pursue a motion to suppress a package shipped to him under an assumed name, giving him standing in the package, on the ground the drug dog wasn’t shown to be reliable. Sanchez v. State, 2017 Fla. App. LEXIS 1685 (Fla. 2d DCA Feb. 10, 2017).
Defendant was pulled over for driving 66 in the passing land on I-80 and cars were passing him on the right. The officer had an objectively reasonable justification to stop him for impeding traffic. Thereafter, defendant consented to a search of the car. State v. McCrickert, 24 Neb. App. 496, 2017 Neb. App. LEXIS 30 (Feb. 7, 2017).*
The Verge has a story about the recent border-crossing experience of a U.S. citizen, Sidd Bikkannavar, who is an employee at NASA’s Jet Propulsion Laboratory. On a return flight from a personal trip to Chile on Jan. 30, Bikkannavar was allegedly detained by employees of the U.S. Customs and Border Patrol (CBP) and “not allowed to leave” until he told CBP the passcode to the government-issued smartphone he used for work that he carried with him. Continue reading →
Posted inBorder search, Cell phones|Comments Off on WaPo: Can federal agents detain citizens at border checkpoints until they disclose their smartphone passcodes?
"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.
