Drugs on an occupant of a vehicle supports a search of the trunk and other compartments. United States v. Brown, 2017 U.S. App. LEXIS 1720 (4th Cir. Jan. 31, 2017).
Defendant appeals a supervised release search term that does not require reasonable suspicion. Under plain error review, the court can’t say that the error is plain in light of the fact that Samson and this court have upheld suspicionless probation search terms. United States v. Erwin, 2017 U.S. App. LEXIS 1775 (5th Cir. Feb. 1, 2017).*
A typographical error as to defendant’s internet provider did not undermine the probable cause for the search warrant for his child pornography on his computer. It has nothing to do with the probable cause. State v. Shiell, 2016 La. App. LEXIS 2489 (La.App. 5 Cir. Dec. 7, 2016).
There was reasonable suspicion to patdown the defendant who was in a group in a high crime area where at least one was smoking marijuana, and he made a move toward his waistline like he was checking a gun. State v. Miguel, 2017 La. App. LEXIS 129 (La.App. 4 Cir. Feb. 1, 2017).*
Rooker/Feldman abstention didn’t bar plaintiff’s action against state officials enforcing a court order allegedly unconstitutionally, here against SVP. Brown v. Taylor, 2017 U.S. App. LEXIS 1742 (5th Cir. Jan. 31, 2017) (see Treatise § 64.02): Continue reading →
Posted in§ 1983 / Bivens|Comments Off on CA5: Rooker/Feldman abstention doesn’t bar action by SVP against how state handled a court order
Defendant was a lawyer who took his computer in to have the data on the hard drive switched to a new computer. The service guy doing the job noticed file names suggestive of child pornography and he saw at least one video file of child pornography. He reported it to DoJ which already had defendant on their radar as a child pornography consumer. They looked too. Then a search warrant was obtained for his house. Defendant didn’t meet his burden to show that the good faith exception didn’t apply but citing a case that doesn’t even say that. The case also involved alleged misstatements and false statements in the affidavit for the search warrant, and he failed on that burden, so maybe that’s what the court was really thinking when used such sloppy language about the good faith exception instead. There certainly appears to be probable cause so the good faith exception should be completely moot. The search took longer than normal, but it wasn’t unreasonable. Because defendant was a lawyer, the computer files were reviewed by a taint team to protect defendant’s attorney-client communications on the computer. United States v. Jarman, 2017 U.S. App. LEXIS 1813 (5th Cir. Feb. 1, 2017).
Defendant rented a hotel room for a week through one Heid because he didn’t have an ID, and he paid Heid for it. The contract Heid signed allowed entry by the hotelier into the room up to once a week to check for safety and health issues. Inside, he found marijuana, and he called the cops who he admitted to see it for themselves. They procured a search warrant. Defendant had no reasonable expectation of privacy in the room as to the hotelier’s entry and the express consent in the contract. In addition, the contract created no landlord-tenant relationship, and the occupant was a transient occupant. Salahuddin v. Commonwealth, 2017 Va. App. LEXIS 18 (Jan. 31, 2017): Continue reading →
Defendant’s general statement of the search and seizure in his state mandated “certified question of law” was insufficient for lack of what it was and what was sought to be suppressed, and the appeal is dismissed. State v. Forest, 2017 Tenn. Crim. App. LEXIS 69 (Jan. 31, 2017)*: Continue reading →
Posted inBurden of proof|Comments Off on TN: General statement of “certified question of law” requires dismissal of appeal
Defendant was found to have consented to a search of his apartment. On appeal, he changed it to a claim that it was a violation of Miranda to get consent, but there is no record of that claim having been presented and ruled on. On plain error review, it is denied. State v. Burgos, 2017 Conn. App. LEXIS 26 (Feb. 7, 2017)
Because defendant was not illegally detained, suppression of his statements given to the detectives during the course of their investigation on the basis that they were fruit of an illegal arrest was not warranted; his presence at the police station was voluntary and became a custodial arrest only after there was probable cause to suspect he murdered his roommate following a detective’s interview with a witness. Although this was a “question first, warn later” interrogation, defendant was warned before the third one and that made this one independent. People v. Soto, 2017 IL App (1st) 140893, 2017 Ill. App. LEXIS 39 (Jan. 31, 2017).*
Posted inConsent|Comments Off on CT: Adding “Miranda” to a consent argument changed the nature of the argument on appeal
Posted inSurveillance technology|Comments Off on Tenth Amendment Center: Michigan Ballot Measure Would Help Protect Electronic Data from Warrantless Spying
Defendant’s IAC claim here was that defense counsel didn’t argue more vigorously the motion to suppress such that he would have won it it had been better argued. How to argue is “strategy.” In light of his lack of standing, that argument fails. Entwisle v. State, 2017 Ga. App. LEXIS 25 (Feb. 1, 2017): Continue reading →
Posted inIneffective assistance|Comments Off on GA: Def counsel wasn’t ineffective for not arguing more strenuously an issue raised and rejected
Google has to turn over e-mails stored overseas under a search warrant received here, disagreeing with Second Circuit. The court also notes that seeing an email might not be a seizure, contrary to Rule 41 and Jones protecting “information.” In re Search Warrant No. 16-960-M-01 to Google, 2017 U.S. Dist. LEXIS 15232 (E.D. Pa. Feb. 3, 2017): Continue reading →
Posted inE-mail|Comments Off on E.D.Pa.: Google must turn over e-mails stored offshore, disagreeing with CA2
Posted inReasonable expectation of privacy|Comments Off on Law Review: The Forgotten Residents: Defining the Fourth Amendment House to the Detriment of the Homeless
Posted inProbation / Parole search|Comments Off on Law Review: Fourth Amendment Rights of Probationers: The Lack of Explicit Probation Conditions and Warrantless Searches
Defendant’s girlfriend was sitting bent over in the front yard of their apartment building (actually a rooming house with numbered and locked doors with a common hallway). She was under the influence of something and was going to the hospital. She called out defendant’s name, but he didn’t respond. The officers went through the commonly open front door into the hallway to tell defendant in Room 1 that his girlfriend was going to the hospital. The entry into the hallway was reasonable and violated no reasonable expectation of privacy. Jardines was not violated. The officer was not there for an investigative purpose. State v. Smith, 2017 N.H. LEXIS 5 (Jan. 31, 2017).
Defendant was a Canadian citizen who lived in both Canada and the Phillippines. He was indicted in the U.S. for selling prescription drugs from overseas without proper authority. He was arranging his surrender through the FPD in Minnesota when Canada revoked his passport and the Phillippines arrested him and held him in immigration detention. The DEA was there and observed the arrest. Defendant offered an inoperable hard drive to the DEA because he believed it would help him. When it was delivered, there were two others that worked with it, and he assented to the DEA having them, too. When he arrived at LAX he was arrested, and he consented further to searches of the hard drives and computers. There was probable cause for a search warrant for defendant’s email accounts, too. United States v. Lachlan, 2016 U.S. Dist. LEXIS 183199 (D. Minn. Dec. 23, 2016),* adopted, United States v. Lachlan, 2017 U.S. Dist. LEXIS 13283 (D.Minn. Jan. 30, 2017).*
When a DUI suspect is unconscious, the state must still prove at least implied consent to medical treatment to get a blood draw from the medical care provider. State v. Nissley, 2017 Ariz. LEXIS 24 (Feb. 1, 2017), vacating 238 Ariz. 446, 362 P.3d 493 (App. 2015): Continue reading →
Review granted: Commonwealth v. Valdivia, 2017 Pa. LEXIS 234 (Feb. 1, 2017), from Commonwealth v. Valdivia, 2016 PA Super 181, 145 A.3d 1156 (2016):
Whether, in a case of first impression, the Superior Court erred in holding that a reasonable person would have understood that their consent to a roadside search of their vehicle would encompass a canine sniff of all of the packages contained inside the vehicle, and that said consent was knowing, intelligent, and voluntary where the police officers withheld pertinent information about the forthcoming search from Petitioner, including that the canine search would not start any sooner than an hour from when Petitioner’s consent was given?
When defendant was frisked, $1,188 was removed from him, and the officer put it on the trunk then thought to put it through the window so it wouldn’t blow away. The officer then acted reasonably going back into the unlocked car to retrieve the money for safekeeping, and then seeing cocaine in plain view was reasonable. State v. Johnson, 2017 Fla. App. LEXIS 995 (Fla. 1st DCA Jan. 31, 2017).
Alleged violation of the 180 day requirement in subpoenaing email records under § 2703 has no suppression remedy. Even if it did, the evidence was overwhelming, so it would be harmless error. Thus, defense counsel wasn’t ineffective. United States v. Aguiar, 2016 U.S. Dist. LEXIS 182703 (D. Vt. Aug. 12, 2016),* adopted, 2017 U.S. Dist. LEXIS 8640 (D. Vt. Jan. 23, 2017).*
Posted inE-mail, Plain view, feel, smell, Reasonableness|Comments Off on FL1: Officer was reasonable in reentering car to retrieve money he took off def and put in car seat; plain view sustained
Defendant was a passenger in a rental vehicle rented by his girlfriend but being driven by a third person. He was not on the rental agreement as a driver or a co-renter. He had no standing. United States v. Russell, 16-1700 (8th Cir. Feb. 1, 2017): Continue reading →
Posted inStanding|Comments Off on CA8: Passenger in his gf’s rented car driven by yet another had no standing
A defendant lacked a reasonable expectation of privacy in a storage unit with a wire mesh “ceiling” where the officer used a ladder and looked over the wall. There was insufficient effort to maintain privacy from others just looking. United States v. Khan, 2016 U.S. Dist. LEXIS 182723 (N.D. Ga. Aug. 19, 2016), adopted, 2017 U.S. Dist. LEXIS 9231 (N.D. Ga. Jan. 23, 2017): Continue reading →
Posted inReasonable expectation of privacy|Comments Off on N.D.Ga.: A wire mesh “ceiling” over a storage unit doesn’t provide a REP from someone climbing a ladder and looking
"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.
