The trial court erred in denying defendant’s motion to suppress under the protective sweep exception to the warrant requirement because the trial court’s finding that the detective’s intrusion onto the curtilage was justified for officer safety was not supported by competent, substantial evidence because there are no facts giving rise to a reasonable or articulable suspicion that a sweep was necessary to ensure officer safety or to prevent the destruction of evidence. The anonymous tip the police received did not create probable cause for the search warrant because the tip was not shown to be reliable. The mere fact that readily ascertainable details such as defendant’s location were verified did not show that the tipster had knowledge of concealed criminal activity. Daniels v. State, 2017 Fla. App. LEXIS 418 (Fla. 2d DCA Jan. 18, 2017).
A probation and parole residence check resulted in finding defendant in the back room of his house with a joint. The residence search was conducted with cause based on intel from another law enforcement agency. Nobody at the suppression hearing inquired into the quality of the information [so that’s essentially waived], and the search was not overly intensive because the marijuana was in plain view. State v. Brignac, 2017 La. App. LEXIS 75 (La.App. 4 Cir. Jan. 18, 2017).*
Failure to file a pretrial motion to suppress is a waiver of a Fourth Amendment claim. State v. Gibson, 2017-Ohio-102, 2017 Ohio App. LEXIS 107 (8th Dist. Jan 12, 2017).
Defendant was stopped for swerving on the highway. When he was stopped, he almost fell over when he got out of the car. There were also furtive movements hiding things before the officer got to the car door. There was cause for detention for DUI. City of Parma Heights v. Owca, 2017-Ohio-179, 2017 Ohio App. LEXIS 171 (8th Dist. Jan. 19, 2017).*
The officer here needed a search warrant for defendant’s blood for suspicion of DUI. When the warrant was issued, a photograph of it was sent to his cell phone. Defendant objected to the form of the warrant claiming that it wasn’t served on him. A cell phone picture of the warrant served the purposes under the statute to inform the officer of the scope of the search. The actual warrant was in existence and in the record, too. The statute permits “transmission” of the warrant, and this suffices. Taylor v. State, 2017 Ind. App. LEXIS 15 (Jan. 17, 2017): Continue reading →
Posted inWarrant requirement|Comments Off on IN: Cell phone photograph of SW sent to officer’s phone satisfied the statute for officer to have warrant for search
Users of Sony’s PlayStation3 communicate with each other through Sony’s PlayStation Network, like email. Sony in its terms of service prohibits transfer of illegal things, and it reserves the right to monitor. Also, 18 U.S.C. § 2258 makes Sony a mandatory reporter of child pornography it discovers. Suspicious transmissions led Sony to monitor defendant’s account until it finally found messages relating to child pornography. Sony reported all the location information on defendant’s account to NCMEC. This was a private search. [See comment at end about misleading headlines about this case on the Internet.] United States v. Stratton, 2017 U.S. Dist. LEXIS 6372 (D.Kan. Jan. 17, 2017): Continue reading →
Posted inPrivate search|Comments Off on D.Kan.: Sony’s reports of CP on def’s Playstation3 to NCMEC was a private search
Defendant’s next door neighbor called 911 to report shots fired at defendant’s house. When they arrived, officers set up a perimeter and entry into the curtilage was valid based on exigency, and a cartridge case was seen in plain view. Defendant’s name was run, and it turned out he was a felon. Somebody had a video of him firing a gun out his back door, too. [Then the search claim is harmless error, if anything?] United States v. Hale, 2017 U.S. Dist. LEXIS 7513 (W.D.Mo. Jan. 4, 2017), adopted, 2017 U.S. Dist. LEXIS 7207 (W.D.Mo. Jan. 19, 2017).
The trial court apparently didn’t accept that defendant was speeding, but the stop was alternatively justified by the overtinted and broken windshield. The smell of marijuana coming from the car “flowered into probable cause.” State v. Baugh, 2017 La. App. LEXIS 74 (La.App. 4 Cir. Jan. 18, 2017).*
Posted inCurtilage, Emergency / exigency|Comments Off on W.D.Mo.: Entry into the curtilage was justified by exigency of a shots fired call
Defendant was stopped for his tag light being out, and it resulted in finding that his DL was suspended. That meant that his vehicle would be towed. The inventory by all appearances was starting, because a video showed the inventory form in the hands of one of the officers, and a gun was found in the first opening of the trunk. United States v. Killblane, 2015 U.S. Dist. LEXIS 184506 (E.D.Okla. Oct. 9, 2015), adopted, 2015 U.S. Dist. LEXIS 184461 (E.D. Okla. Nov. 3, 2015). [Note: This case ultimately decides that a proper inventory would have occurred so the gun was essentially inevitably found. Here, I’ll credit that it would have been done correctly because the appearances were that the officers took inventory seriously. They had the form in hand, and it is not improper to inventory at the scene and not follow the vehicle to impound. I’ve seen, however, usually they don’t even bother with a form. They just call it inventory because they know that courts will often give them cover for that. Defense counsel should never concede that a valid inventory would follow because too many police departments trivialize inventory as a Fourth Amendment rights nullifier where the Fourth Amendment ceases to apply to a vehicle as long as they can get “inventory” out of their mouth or on paper. It’s not that simple, but those ill-trained officers, prosecutors, and judges don’t know it.]
The police had reasonable suspicion to stop defendant when he was first approached, but a seizure didn’t occur until defendant was actually handcuffed. The officer may have believed that defendant wasn’t free to leave, but it wasn’t objectively communicated to defendant until he was actually seized by the handcuffing. United States v. Serrano, 2015 U.S. Dist. LEXIS 184588 (S.D.N.Y. July 20, 2015).*
Posted inInventory, Seizure|Comments Off on E.D.Okla.: Search of vehicle on roadside not unreasonable because it started as a proper inventory
The CI provided detailed information that all proved to be true involving a shipment of drugs, down to the packaging. While the automobile exception would have supported the search, the police obtained a warrant on the probable cause from the CI. The warrant for defendant’s premises was also based on probable cause because the CI’s information, without completely bolstering basis of knowledge, still provided enough information. Finally, of course, the good faith exception applies. United States v. Oliver, 2016 U.S. Dist. LEXIS 182103 (D.Minn. Dec. 28, 2016),* adopted, 2017 U.S. Dist. LEXIS 6516 (D. Minn. Jan. 17, 2017).*
The affidavit for the search warrant in this case was supported by probable cause in informant hearsay with an informant disclosed to the issuing magistrate [what about the “four corners” rule?]. It was also not so lacking in probable cause that the good faith exception should not apply. Defendant argues this conclusorily, which the court simply rejects. United States v. Bradley, 2016 U.S. Dist. LEXIS 181797 (E.D. Oct. 17, 2016),* adopted, 2017 U.S. Dist. LEXIS 4037 (E.D. Tenn. Jan. 11, 2017).*
Defendant abandons his argument that there was no reasonable suspicion for his stop by providing no argument on reasonable suspicion and instead focusing on probable cause. Going to the record, however, the court finds reasonable suspicion for the stop because of an apparent hand-to-hand transaction at 4 am in a “drug corridor” between defendant’s car and a pedestrian who walked up to it. State v. Evans, 2017 N.C. App. LEXIS 18 (Jan. 17, 2017): Continue reading →
An arrest of a juvenile for even the minor offense of a curfew violation justified a search incident when the juvenile was placed in the police car. State ex rel. R.M., 2017 La. App. LEXIS 68 (La.App. 4 Cir. Jan. 11, 2017) (dissents here and here).
Defendant’s cell phone was seized in an extortion/blackmail investigation and a search warrant issued for it. There was also an issue of blanket consent through defense counsel. In the course of the search, alleged child pornography was found, and the search stopped, and another search warrant was sought for the alleged CP, which was found. There was probable cause for the search warrant aside from the consent. Denied. United States v. Totoro, 2017 U.S. Dist. LEXIS 3232 (E.D.Pa. Jan. 10, 2017).*
Posted inUncategorized|Comments Off on LA4: Search incident for curfew violation arrest was reasonable
State officers obtained a search warrant for defendant’s property which they held but was being used in a federal prosecution. Rule 41(g) does not enable the defendant to get return of property held by state officials even though there is a pending federal prosecution. United States v. Vanover, 2016 U.S. Dist. LEXIS 181597 (E.D.Tenn. Nov. 18, 2016), adopted, 2017 U.S. Dist. LEXIS 3155 (E.D. Tenn. Jan. 10, 2017).
Defense counsel wasn’t ineffective for not challenging the probable cause for the search warrant for his house because there was probable cause. Hanson v. United States, 2017 U.S. Dist. LEXIS 3957 (W.D.Mich. Jan. 11, 2017).*
Arguable probable cause entitles the officer to qualified immunity, here for a mental health seizure. May v. City of Nahunta, 2016 U.S. App. LEXIS 20501 (11th Cir. Nov. 15, 2016), same result on rehearing, May v. City of Nahunta, 2017 U.S. App. LEXIS 985 (11th Cir. Jan. 19, 2017):
Here, we conclude that, at its inception, Officer Allen’s action in seizing May for a psychological evaluation was justified. “[T]o be entitled to qualified immunity from a Fourth Amendment claim, an officer need not have actual probable cause, but only ‘arguable probable cause'”—that is, “the facts and circumstances must be such that the officer reasonably could have believed that probable cause existed.” Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997). Based on the evidence, we hold that Officer Allen had arguable probable cause to seize May for a psychological evaluation.
Posted in§ 1983 / Bivens, Qualified immunity|Comments Off on CA11: Arguable probable cause entitles the officer to qualified immunity, here for a mental health seizure
Defendant came to the federal courthouse because his mother was being arrested, and DHS officers invited him there. He did not know that he had an arrest warrant, too. When he got to the courthouse, he was told he couldn’t bring his cell phone in, and the CSO recommended taking it back to his car or hiding it under an ashtray outside, which was common for them to suggest. The court recognizes that defendant did not abandon the phone, but he left it in such a way to completely undermine his reasonable expectation of privacy in it. United States v. McTague, 2017 U.S. Dist. LEXIS 2588 (W.D. Va. Jan. 9, 2017): Continue reading →
Posted inAbandonment, Reasonable expectation of privacy|Comments Off on W.D.Va.: Leaving cell phone outside fed courthouse under ashtray, where CSOs commonly recommended hiding phones, was a waiver of REP in phone, albeit not abandonment
Defendant rented his hotel room under a known alias of his for which he had an ID card. That gave him standing. The exigency of sex trafficking a minor justified the officer’s warrantless entry, and it’s apparent there was probable cause for obtaining a search warrant later without resort to what was found in the room. United States v. Hudson, 2017 U.S. Dist. LEXIS 3096 (E.D.Mich. Jan. 10, 2017).
Crossing over the fog line is not necessarily an offense. “Regardless, the State has misconstrued Smith. In that case, our supreme court held that crossing over a fog line, unlike crossing over a double yellow line, ‘does not create an offense that always may be discerned simply by observation.’ Smith, 484 S.W.3d 393 at 403. The court specifically rejected that an officer’s observing a motorist cross over a fog line gives the officer probable cause to stop the vehicle and held that ‘the totality of the circumstances may provide a reasonable suspicion sufficient to initiate a traffic stop to investigate the possible violation.’ Id. at 410.” Summarily denying the motion to suppress was error. State v. Eskridge, 2017 Tenn. Crim. App. LEXIS 24 (Jan. 17, 2017).*
Posted inBurden of proof, Emergency / exigency|Comments Off on E.D.Mich.: Sex trafficking a minor in a hotel room was exigency for warrantless entry on PC
“¶17 We agree with [State v. Jardinez, 184 Wn. App. 518, 338 P.3d 292 (2014)] that the [Sentencing Guidelines] Commission’s comment is strong evidence that the legislature intended that there must be a nexus between the suspected violation and the searched property. Accordingly, we adopt the approach in Jardinez and hold that a valid search under RCW 9.94A.631(1) requires that there be a nexus between the alleged violation and the searched property.” Without it, the search is unreasonable. State v. Livingston, 2017 Wash. App. LEXIS 75 (Jan. 18, 2017).
Posted inNexus, Probation / Parole search|Comments Off on WA: There must be a nexus between the scope of a parole search and what is being looked for
Defendant passenger was removed from a car after a traffic stop, and the officer with the defendant directed another to look for what he thought was a gun, which the other officer found. Defendant was held not to have standing as to the car as a whole, but he did as to seizure of the gun that was found where he was sitting in the car. The circuit court held he had standing, and the court of appeals affirms finding that the 2012 Jones reasonable expectation of privacy or trespass standard actually enhances a standing argument for the defendant’s specific property, here a gun in possession of a felon next to him in the car. Thus, defendant did, in fact, have a reasonable expectation of privacy in that small area where it was found. Also, in a departure from most other courts, the fact the state charged the defendant with the gun lends credence to standing. The state’s strongest argument, plain view, was abandoned on appeal. Inevitable discovery based on “he’s a felon” was held speculative. Commonwealth v. Simpson, 2017 Va. App. LEXIS 9 (Jan. 18, 2017) (memorandum): Continue reading →
Posted inReasonable expectation of privacy, Standing|Comments Off on VA: While def didn’t have standing as to whole car, he did in the space immediately around him, relying on Jones GPS case
The Harvard Law Library recently posted a neat 46-minute interview of Justice Felix Frankfurter from the early 1960s. Frankfurter, who is interviewed by Professor Paul Freund, speaks about legal education, the role of lawyers and the criminal-justice system.
As a Fourth Amendment nerd, I was particularly interested in the discussion of search and seizure law starting around the 29:30 mark.
Posted inSCOTUS|Comments Off on WaPo: Justice Frankfurter speaks
This email search warrant sought specific information over a several year period, and the Google production was somewhat limited yet still substantial. Yet, included were emails between attorney and client and there were no search protocols. The court declines to follow Comprehensive Drug Testing on search protocols. The large production was provided and then it was searched by the government for what was material. This was not unlike seizing an entire computer drive and searching it off-site, which is the only practical way to do it. Overall, the process was reasonable. United States v. Harder, 2016 U.S. Dist. LEXIS 181556 (E.D.Pa. April 18, 2016): Continue reading →
Posted inE-mail, Warrant execution|Comments Off on E.D.Pa.: Seizure of years of emails by SW for later discriminating search was still reasonable
911 caller stayed on phone and gave a “play-by-play” of what the defendant was doing that was quickly corroborated by the police. That was reasonable suspicion. United States v. Jeanes, 2016 U.S. Dist. LEXIS 181601 (N.D.Ind. Nov. 29, 2016), adopted, 2017 U.S. Dist. LEXIS 2768 (N.D.Ind. Jan. 9, 2017): Continue reading →
Posted inInformant hearsay|Comments Off on N.D.Ind.: 911 caller stayed on phone and gave a “play-by-play” of what the defendant was doing that was quickly corroborated by the police
911 calls aren’t always truly anonymous. A 911 caller, whose number was captured by the system, called about a man pacing in a motel parking lot with a gun in hand. The caller gave enough information about herself that she wasn’t anonymous anymore, and the detail in the description was enough for reasonable suspicion. United States v. Harris, 2016 U.S. Dist. LEXIS 181677 (N.D.Ind. Dec. 22, 2016), adopted, 2017 U.S. Dist. LEXIS 3805 (N.D.Ind. Jan. 11, 2017).
It was 8-9 months between defendant’s access of a child pornography website via his IP address and linking that address to him. The search warrant for his house and computers wasn’t stale.
United States v. Brenner, 2016 U.S. Dist. LEXIS 181692 (D.Neb. Dec. 19, 2016),* adopted, 2017 U.S. Dist. LEXIS 4068 (D.Neb. Jan. 11, 2017).*
Posted inInformant hearsay, Staleness|Comments Off on N.D.Ind.: 911 caller’s info was transmitted and she revealed enough about herself to not be an anonymous CI
"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.
