Defendant’s back porch was not curtilage. [Wrong! It is. We’ll just pretend the court didn’t say that.] Marijuana growing in the back yard was visible from the next door neighbor’s property, and that brought the officers to the house to inquire, and entry onto the property was reasonable. State v. Diaz, 2017-Ohio-262, 2017 Ohio App. LEXIS 260 (5th Dist. Jan. 23, 2017).
The record supports that defendant consented to a search of his truck. United States v. Smith, 2017 U.S. App. LEXIS 1393 (5th Cir. Jan. 26, 2017).*
Posted inCurtilage, Plain view, feel, smell|Comments Off on OH5: MJ grow in back yard visible from next door permitted officers to come to house to inquire
“In any event, it is clear that Officer Carter failed to remove the license plates and registration receipt before impounding the car. Because the officer overlooked the legislatively imposed requirements for the impoundment, it appears he was motivated solely by an investigatory purpose. See Huisman, 544 N.W.2d at 439. We therefore conclude the impoundment was invalid and, accordingly, the inventory search was invalid.” State v. Juarez-Martinez, 2017 Iowa App. LEXIS 65 (Jan. 25, 2017).
The state’s proffer of the inventory exception fails: “We conclude the conflicting testimony of the officers, as well as the timeline of events surrounding the search of the truck, indicate the officers searched the truck for the sole purpose of investigating for suspected criminal activity beyond the scope of the search warrant. Thus, we find the inventory exception does not apply to overcome the Fourth Amendment warrant requirement due to the vague impound policies and improper motive.” However, the search was otherwise valid with probable cause under the automobile exception. Defendant’s motion to extend time on the motion to suppress should have been granted because some of the facts were revealed late to him. State v. Baudler, 2017 Iowa App. LEXIS 63 (Jan. 25, 2017).
Posted inInventory, Motion to suppress|Comments Off on IA: Two finding defective inventory due to police investigative motive
A commission established by lawmakers to help end the conviction of the innocent says field tests are too unreliable to be trusted without lab confirmation.
Posted inDrug or alcohol testing, Probable cause|Comments Off on Pro Publica: Texas Panel on Wrongful Convictions Calls for Ending Use of Unverified Drug Field Tests
An unsolved Queens killing has led to calls for widening DNA searches to include relatives of possible suspects. But the method, a frontier in forensic science, has critics.
Posted inDNA|Comments Off on NYTimes: Family DNA Searches Seen as Crime-Solving Tool, and Intrusion on Rights
The defendant juvenile took pictures of his having sex with a girl he was in school with and then he blackmailed her. He was found delinquent under the juvenile law for possession of child pornography and extortion. The broad probation electronic search condition was reasonable based on the offense. It’s up to him to tell those he communicates with that their messages to and from him would be captured. In re Q.R., 2017 Cal. App. LEXIS 60 (6th Dist. Jan. 27, 2017): Continue reading →
An “issue of fact as to probable cause for [an] arrest precludes summary dismissal of [an] assault and battery claim”. Burgos-Lugo v. City of New York, 2017 NY Slip Op 00534, 2017 N.Y. App. Div. LEXIS 536 (Jan. 26, 2017).*
Petitioner’s guilty plea waived his Fourth Amendment claim, and he couldn’t bring it on habeas. Converse v. Kirkegard, 2016 Mont. LEXIS 1131 (Nov. 22, 2016).*
Defense counsel wasn’t ineffective for not challenging the probable cause for his arrest in his own room with drugs. Raymond v. United States, 2017 U.S. Dist. LEXIS 8966 (S.D.Fla. Jan. 20, 2017).*
Plaintiff had a claim under the Tom Bane Civil Rights Act, even if officers had probable cause for an arrest, because he alleged roadside body cavity searches which necessarily amounted to intentional conduct separate and independent from a lawful arrest for being in a park after it closed, riding a bicycle in the dark without a headlight, or for resisting by fleeing when officers approached. Officers’ body camera video created a triable issue as to whether officers searched plaintiff’s rectum showing the officers manipulating plaintiff’s underwear using their hands in the vicinity of his partially exposed buttocks. Simmons v. Superior Court, 2016 Cal. App. LEXIS 1170 (4th Dist. Dec. 29, 2016), ordered published Jan. 25, 2017.
Posted inStrip search|Comments Off on Cal.4th: Public strip search of ptf stated claim: He was in a park arrested for being there after it closed, on a bike without a headlight, and fled when officers approached
Defendant had waived his challenge to the denial of motions to suppress where he failed to point to any findings in the record demonstrating how the district court erred or why a wiretap application lacked probable cause. Even if defendant had not waived the argument, denial of the motions to suppress was proper where the affidavit underlying the wiretap application for a co-defendant’s phone established probable cause and necessity, probable cause existed for the search of defendant’s residence, and there was no error in denying a Franks hearing. United States v. Young, 2017 U.S. App. LEXIS 1396 (6th Cir. Jan. 26, 2017): Continue reading →
Posted inBurden of proof, Standards of review|Comments Off on CA6: Without record references to where the facts are, the court finds the 4A argument waived; counsel blames word limits on briefs
One is not entitled to use excessive force against a police officer unlawfully in the home. The officer must also be using excessive force. Defendant’s proffered jury instruction that merely recited the state constitutional provision on search and seizure was not a proper instruction because it explained nothing to the jury. Tingey v. State, 2017 WY 5, 2017 Wyo. LEXIS 6 (Jan. 23, 2017).
Officers who arrested plaintiff for harassment under New York law had qualified immunity in the face of plaintiff’s First and Fourth Amendment claims because the law was not so facially unconstitutional that they couldn’t rely on it. Plaintiff pled to a traffic ticket then, mailed in paying it, and “Barboza crossed out ‘Liberty,’ the name of the town, and substituted ‘Tyranny,’ and wrote in capital letters “FUCK YOUR SHITTY TOWN BITCHES.’” Also, a judge reviewed the arrest and found probable cause. The clerk’s employees were upset. Barboza v. D’Agata, 2017 U.S. App. LEXIS 819 (2d Cir. Jan. 18, 2017).*
Posted in§ 1983 / Bivens, Excessive force|Comments Off on WY: Jury instruction on the state version of the 4A wasn’t proper in case involving use of force against officer in his house
The affidavit for arrest warrant failed to include information that would undermine the credibility of the police informant, but the court finds that the omission was not material and there was other information that supported probable cause. Therefore, the officer gets qualified immunity in a civil Franks claim. Davis v. Strain, 2017 U.S. App. LEXIS 1148 (5th Cir. Jan. 23, 2017).
The district court properly denied the officer summary judgment on plaintiff’s Fourth Amendment excessive force claim because no reasonable officer could have concluded that it was lawful to forcibly pull plaintiff, a cooperative, non-aggressive driver suspected of having a suspended license, from the driver’s seat and slam him against his car. Folks v. Petitt, 2017 U.S. App. LEXIS 1348 (6th Cir. Jan. 23, 2017).*
Posted inFranks doctrine, Qualified immunity|Comments Off on CA5: Ptf loses on his civil Franks claim because of a lack of materiality to PC
Court ordered DNA testing for paternity is a search under the Fourth Amendment, but it is reasonable. L.J.D. v. M.V.S, 2017 La. App. LEXIS 107 n.8 (La.App. 1 Cir. Jan. 25, 2017).
The police knew three weeks ahead of time that defendant was dealing heroin from a hotel room, and they took their time raiding the room. By the time they did, it was with exigent circumstances. The delay is pertinent to the inquiry, but not absolute. State v. Massua, 2016 N.H. LEXIS 261 (Oct. 17, 2016).*
Posted inDNA, Emergency / exigency|Comments Off on LA1: DNA testing for paternity testing is governed by the 4A
Pen register information collected outside the time period of the pen register order would not be suppressed under the Fourth Amendment because its collection is not even a “search.” Defendant has no standing in search warrants issued for two cell phones, neither of which were his. His effort to bootstrap standing by claiming his privacy was violated would “swallow” standing and is contrary to authority. United States v. Woodside, 2017 U.S. Dist. LEXIS 8852 (S.D. W.Va. Jan. 23, 2017).
Posted inSearch|Comments Off on S.D.W.Va.: Pen register information collected beyond time limit of register not suppressed under 4A because it’s not a search
The government seized documents in a computer search that are outside the warrant because it didn’t comply with a Comprehensive Drug Testing computer search protocol, but it declines to remove them from its computer image file because it would taint the forensic integrity of the image. Then copy it and remove it from the copy. Those documents are suppressed. United States v. Cutting, 2017 U.S. Dist. LEXIS 9186 (N.D.Cal. Jan. 23, 2017).
Defendant does not have a right to return of seized property under Rule 41(g) as long as there is potential evidentiary value, including through appeal. Defendant does not claim that his iPad and iPhone weren’t illegally seized to begin with; just that the whole process has taken too long. United States v. Habash, 2017 U.S. Dist. LEXIS 5721 (E.D.Cal. Jan. 13, 2017).
Defendant’s stop was for a broken taillight lens because the officer could see white light. The video isn’t any help because of glare from the police car headlights, and the trial court’s credibility call went with the officer. The stop was justified. State v. Kordich, 2017-Ohio-234, 2017 Ohio App. LEXIS 235 (9th Dist. Jan. 23, 2017).*
Squeezing a baggie of suspected marijuana to sense its feel was not unreasonable, if that is part of defendant’s argument, which isn’t obvious. It was at arms length when seized, and its appearance was marijuana anyway. United States v. Barnes, 2017 U.S. Dist. LEXIS 8519 n.2 (E.D.Mich. Jan. 23, 2017).
Defendant did not show that defense counsel was ineffective for not calling an expert witness to more specifically define where defendant was at the time of the GPS coordinates in evidence when there was no offer of proof as to what that would prove or that it would change the outcome and have made him not plead guilty. “Counsel’s decision not to call an expert to testify that one could access email without searching a particular computer was within the wide range of reasonable professional assistance. In particular, counsel could reasonably expect that the Court understood this fact and that her argument that the warrant was overbroad adequately raised this issue. Counsel’s failure to call an expert on the ability to remotely access email was not deficient.” United States v. Ellis, 2017 U.S. Dist. LEXIS 7064 (D.Kan. Jan. 18, 2017).*
“[T]he Court does not consider the exhibits that Smith attached to his post-evidentiary hearing brief. These documents presumably were in Defendant’s possession at the time of the evidentiary hearings and could have been used to cross-examine the witnesses. Smith does not proffer why he could not have utilized these materials at the evidentiary hearing. Although authored by law enforcement agents, the submission and consideration of these documents at this time would be without affording the Government the opportunity to further examine the authors.” Even if the court did, they don’t change the outcome because there was reasonable suspicion to stop and detain defendant because of four prior drug transactions at the same place observed by officers. United States v. Smith, 2016 U.S. Dist. LEXIS 182261 (N.D.Ga. Dec. 28, 2016), adopted, 2017 U.S. Dist. LEXIS 6591 (N.D. Ga. Jan. 18, 2017).
When a law enforcement officer is in a bar that is prone to gun violence, and he sees the slide to a semi-automatic fall out of defendant’s pants leg, it is reasonable to conclude that the rest of the gun is elsewhere on his person. Terry frisk for rest of gun was reasonable. United States v. Santiago, 2017 U.S. Dist. LEXIS 5747 (D.V.I. Jan. 16, 2017).*
Posted inBurden of proof, Reasonable suspicion|Comments Off on N.D.Ga.: Police reports attached to post-hearing brief not in evidence would not be considered
“[O]fficers went to Mr. Owens’ residence to conduct a probationary check. After knocking on the door, officers were told by Mr. Owens’ girlfriend, Ms. Haqq, that he was not present and that she was the only adult at the residence. Officers then stated that they wished to see Mr. Owens’ room and Ms. Haqq, who also resided at 937 Hepburn Street, consented to the officers entering the home. Once they lawfully gained access, officers entered, expecting no other adults in the home. When the officers encountered two other adults, including Mr. Owens, they naturally performed a protective sweep. The fact that Ms. Haqq was either untruthful or unaware that there were others in the home led the officers to conclude that other individuals who may pose a danger to the officers may be present. Accordingly, the officers’ search [protective sweep] of the property was lawful and not in violation of the Fourth Amendment.” United States v. Owens, 2016 U.S. Dist. LEXIS 182358 (M.D.Pa. May 16, 2016).*
Posted inProbation / Parole search, Protective sweep|Comments Off on M.D.Pa.: Girlfriend’s misstatement about presence of other persons in house during probation search justified protective sweep
Additionally, unfettered access to private emails does not seem to comport with the Fourth Amendment protections against search and seizure without a duly sworn warrant.
Congress is attempting to fix the problem by restoring the Fourth Amendment. The Email Privacy Act, just re-introduced in the new Congress by Reps. Kevin Yoder (R-Kansas) and Jared Polis (D-Colo.) would force the government to obtain an individualized warrant before searching anyone’s email.
Posted inE-mail|Comments Off on The Hill: Congress must restore 4th Amendment protections for email privacy
By analyzing case law, we can glean constitutional guidance concerning when the use of a TASER is lawfully appropriate and when it is constitutionally excessive
Posted inExcessive force|Comments Off on Police One: What cops need to know about TASER use, the Fourth Amendment and excessive use of force
"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.
