In their Second Circuit Review column, Martin Flumenbaum and Brad S. Karp examine two decisions which appear to reflect the court’s growing interest in the constitutionality of the government’s use of location information obtained by GPS. In both ‘U.S. v. Caraballo’ and ‘U.S. v. Gilliam’, the Second Circuit considered whether a defendant’s Fourth Amendment right is violated when law enforcement determines his location by acquiring GPS information from a cellular phone provider, and then uses this information to carry out an arrest.
Posted inGPS / Tracking Data|Comments Off on NYLJ.com: Electronic GPS Tracking and the Fourth Amendment
Defendant was detained for 75 minutes with probable cause before her actual arrest. This was not unreasonable and didn’t circumvent McLaughlin’s 48 hour rule to have a first appearance. United States v. Morgan, 2016 U.S. Dist. LEXIS 174889 (E.D.N.C. Dec. 19, 2016).
Officers smelled raw marijuana on defendant, and he consented to a search of his pocket for his ID. 75g of crack was found, too. The search of his person was by consent or search incident. United States v. Price, 2016 U.S. Dist. LEXIS 172063 (W.D. Va. Dec. 13, 2016).*
Posted inArrest or entry on arrest, Consent|Comments Off on E.D.N.C.: Def’s 75 minute detention with PC before actual arrest was reasonable
Also, in a new program by Lexis, supplements to this book will be issued twice a year starting in June or July which also means the Lexis version of the book will be far more current because the supplement is uploaded to Lexis just before going to print.
In addition, with every supplement, we re-cite check every citation up to three years old for currency. Overruled cases are flagged through this blog so we catch them at supplement time.
Posted inUncategorized|Comments Off on Treatise 30% off through 1/5 — semi annual supplements start 7/1
It was reasonable to infer that defendant’s cell phone was involved in defendant’s effort to set up a rendezvous for setting sex with a minor, so the search warrant for the phone was issued on probable cause. Even so, the good faith exception applies. United States v. Thomas, 2016 U.S. Dist. LEXIS 174244 (W.D.Va. Dec. 15, 2016): Continue reading →
Posted inCell phones, Probable cause|Comments Off on W.D.Va.: Reasonable inference cell phone was used to set up meeting for sex with minor to get SW for phone
Defendant’s tossing a gun in flight from the police is abandonment no matter how unreasonable the initial stop might have been. United States v. Jones, 2016 U.S. Dist. LEXIS 173592 (S.D.N.Y. Dec. 14, 2016): Continue reading →
Posted inAbandonment|Comments Off on S.D.N.Y.: Tossing gun in flight is abandonment even if the initial stop would have been unreasonable
Defendant had a limited reasonable expectation of privacy in his hotel work locker and its contents, and officers got the manager to open it. It was reasonable for the officers to believe that the hotel manager had apparent authority over opening a workplace locker (especially since he could), and inside was a duffle bag with a gun barrel sticking out in plain view, which made it seizable. If the gun hadn’t been visible, this might have been a different case because the closed duffle bag would have exhibited greater privacy. This started with an anonymous report that defendant had an assault rifle in a duffle bag at work. United States v. Wadlow, 2016 U.S. Dist. LEXIS 172697 (W.D.Mo. Dec. 14, 2016): Continue reading →
The telephonic search warrant here failed the requirements of Rule 41, including the verbatim reading of the warrant to the issuing judge, and didn’t mention that they also wanted to search a car that was omitted from the warrant. The good faith exception didn’t apply either. (The court granted defendant’s motion to suppress in part on February 22, 2013, and entered the order December 10, 2016.). United States v. Mejia, 2016 U.S. Dist. LEXIS 172575 (D.V.I. Dec. 10, 2016).
While the search warrant may have been invalid for lack of probable cause, the defendant’s written consent moots that issue and the good faith exception would likely apply. United States v. Luke, 2016 U.S. Dist. LEXIS 171320 (E.D. Ky. Dec. 9, 2016).*
A CI told the police that defendant had a warrant for his arrest. Without checking, the police arrested. There was no warrant, and the search incident to arrest is void. State v. Rodriguez, 2016 Del. Super. LEXIS 642 (Dec. 21, 2016).
The officer came upon an empty vehicle in the ditch. He opened the door and saw what later was determined to be a rum and coke in the console and an open 12 pack in the backseat. Opening the door was a search, but it was reasonable. The car was “abandoned” and he had no reasonable expectation of privacy in it. Alternatively, it was valid as an emergency search. People v. Klossner, 2016 NY Slip Op 08795, 2016 N.Y. App. Div. LEXIS 8585 (4th Dept. Dec. 23, 2016).*
“Martin testified that Lewis did not have a key to her home and did not have permission to be at her residence at the time of arrest. Because she did not leave Lewis in her home when she left, she concluded that he must have broken in. Her testimony demonstrates that Lewis did not have permission to come and go as he pleased, and nothing in the record indicates that he was viewed ‘like family,’ with open access to the residence. Lewis thus had no reasonable expectation of privacy there when he was arrested.” United States v. Lewis, 2016 U.S. App. LEXIS 22886 (3d Cir. Dec. 21, 2016).
Defendant didn’t have standing to claim that police entry into an apartment building’s parking lot was entry onto the curtilage because he didn’t live there. [It’s not curtilage anyway.] A cousin did, and he was an occasional visitor. Officers shining a light on his car is not a seizure. The officer smelled marijuana coming off defendant’s person, and that was at least reasonable suspicion. United States v. Wright, 2016 U.S. App. LEXIS 23184 (8th Cir. Dec. 23, 2016).
Seizure of the named plaintiff photographer’s camera for evidence of his impersonating a first responder at the scene of a fatal accident for potential proof of the offense failed to state a claim under the First or Fourth Amendments. Plaintiff showed up driving a repurposed ambulance to take pictures at a fatal accident, and he was wearing a fireman’s turn out coat and helmet with “photographer” on it. The first responders at the scene thought he was one of them. Even if he stated a Fourth Amendment claim, it wasn’t clearly established in 2010.Belsito Communications, Inc. v. Decker, 2016 U.S. App. LEXIS 23201 (1st Cir. Dec. 23, 2016),* aff’g Belsito Communications, Inc. v. Decker, 2016 U.S. Dist. LEXIS 3694 (D.N.H. Jan. 12, 2016).*
Posted inCurtilage, Qualified immunity, Standing|Comments Off on CA8: Visitor at apt complex can’t claim standing in parking lot as alleged curtilage
Applying McNeely: “The district courts correctly rejected the State’s argument that alcohol dissipation constitutes exigency per se—exigency must be determined under the totality of circumstances, case by case. We hold that the implied consent statute does not authorize a warrantless search, and a driver has no constitutional right to refuse a breath test because such a search falls under the search incident to arrest exception to the warrant requirement. Further, although the implied consent statute gives a driver a statutory right to refuse the test, by exercising the privilege to drive, a driver consents to admitting that refusal to take the breath test into evidence. Accordingly, we hold that a driver’s refusal is admissible as evidence of guilt under Washington’s implied consent law.” State v. Baird, 2016 Wash. LEXIS 1377 (Dec. 22, 2016).
Posted inDrug or alcohol testing|Comments Off on WA following McNeely holds that there is no per se exigency and refusal to take a breath test is admissible on question of guilt
Petitioner had a liquor license in Chicago, and an inspection occurred under authority of state law and city ordinance. The permitted premises was the first floor, but he owned accessible property in the floors above. Upstairs, the officers found a bullet, and that led them to ask about other firearms. State law allowed no firearms in permitted premises. He argued that the search of the upstairs violated the terms of the search provision for highly regulated industries. He was also charged with crimes for the firearms upstairs. He succeeded in suppressing the evidence upstairs in his criminal case, but not in the administrative proceeding. The hearing officer said he didn’t have the authority to consider that, but the Circuit Court did, and it refused to suppress in the license disciplinary proceeding. The purpose of the exclusionary rule was served by excluding in the criminal case. The exclusionary rule doesn’t apply in administrative searches. Trying to avoid that rule, the petitioner also argued that the search was an “egregious” violation of the Fourth Amendment, but the court didn’t find it so. Essentially, the searching officers complied with state law in good faith. 59th & State St. Corp. v. Emanuel, 2016 IL App (1st) 153098, 2016 Ill. App. LEXIS 881 (Dec. 23, 2016): Continue reading →
Posted inAdministrative search, Exclusionary rule|Comments Off on IL: Exclusionary rule does not apply to liquor license disciplinary proceeding arising from admin search
After a wiretap, police got search warrant for eight locations. Only defendant’s is at issue here, and he sought de novo review of the probable cause determination which he does not get. The affidavit for the search warrant showed probable cause as to defendant’s home. Often this can come from the product of a wiretap alone, but here there was additional information submitted. United States v. Hicks, 2016 U.S. Dist. LEXIS 170147 (W.D.N.Y. Nov. 16, 2016), adopted, 2016 U.S. Dist. LEXIS 170082 (W.D.N.Y. Dec. 8, 2016).
Plaintiff was charged $4,000 for a fourteen month jail stay after charges were dismissed. He sued claiming a due process and Fourth Amendment violation. The county moved to dismiss, and plaintiff agreed to dismiss the Fourth Amendment claim. His due process claim is denied because the process starts with sending a bill. He could challenge the bill. This was really a state law claim, and the district court declined to exercise supplemental jurisdiction over that part of the case. Jones v. Clark County, Kentucky, 2016 U.S. App. LEXIS 22995 (6th Cir. Dec. 19, 2016).*
Posted inProbable cause|Comments Off on W.D.N.Y.: Product of wiretap alone can produce PC for search of home, but here there was more
A crate of marijuana was searched by “marshals of the Kingdom of Atooi,” a Polynesian kingdom within Hawai’i not otherwise described. Their search was not at insistence or with the acquiescence of the state or federal government, and it could be used in federal court. Reconsideration denied. United States v. Toyofuku, 2016 U.S. Dist. LEXIS 167846 (D. Haw. Dec. 5, 2016), prior opinion, United States v. Toyofuku, 2015 U.S. Dist. LEXIS 126053 (D.Haw. Sept. 21, 2015) (posted here).
Defendant made a statement after a computer search under a Playpen search warrant. The government concedes that he wasn’t Mirandized, and the statement is suppressed. United States v. Knowles, 2016 U.S. Dist. LEXIS 163813 (D.S.C. Nov. 28, 2016).*
Posted inPrivate search|Comments Off on D.Haw.: Alleged illegal search by “marshals of the Kingdom of Atooi” was private search
Direction to defendant to show hands was not responded to, so there was no submission to authority and thus no seizure. United States v. Jones, 2016 U.S. Dist. LEXIS 171988 (W.D.N.Y. Dec. 13, 2016), rejecting, 2016 U.S. Dist. LEXIS 108477 (W.D.N.Y. Aug. 16, 2016).
Becoming defensive to the officer’s questions and pointing to an apartment building where he said he lived, but it was his mother’s apartment and refusing to identify the apartment number, along with his body language, led the officer to conclude that defendant didn’t belong in the apartment complex and that could be a factor in the reasonable suspicion calculus. The officers already believed defendant was involved in gunfire in the area, and that just added to it. The USMJ’s conclusion there was no reasonable suspicion is this rejected. United States v. Heard, 2016 U.S. Dist. LEXIS 176992 (N.D. Ga. Dec. 22, 2016),* rejecting R&R, 2016 U.S. Dist. LEXIS 177560 (N.D.Ga. June 15, 2016).*
Posted inReasonable suspicion, Seizure|Comments Off on W.D.N.Y.: Def’s refusal to show his hands wasn’t a seizure when he didn’t comply with it
Officers entered defendant’s backyard, the curtilage, to conduct what they called a “knock-and-talk,” but it was really a search by their own admission, and they violated the Fourth Amendment. The trial court was correct in finding the backyard curtilage and analyzing the entry under Jardines. Court of Appeals reversed, suppression order reinstated. State v. Bash, 2016 S.C. LEXIS 412 (Dec. 21, 2016), clarified on rehearing, 2017 S.C. LEXIS 61 (March 15, 2017). rev’g State v. Bash, 412 S.C. 420, 772 S.E.2d 537 (App. 2015): Continue reading →
Posted inCurtilage, Knock and talk|Comments Off on SC: Entry into backyard for knock-and-talk was really a search violating curtilage
No attenuation: defendant was arrested without probable cause and gave a statement, and there is no intervening event. Statement suppressed. United States v. Vilella, 2016 U.S. Dist. LEXIS 168741 (E.D.Pa. Dec. 6, 2016): Continue reading →
Posted inAttenuation|Comments Off on E.D.Pa.: No attenuation to save statement made after arrest w/o PC
The court just doesn’t believe the officer’s testimony that he saw a gun to justify an engine compartment search under the automobile exception. The government’s fallback position that it was valid as a Terry frisk is also rejected for lack of reasonable suspicion. “This record is telling.” United States v. Talley, 2016 U.S. Dist. LEXIS 169386 (E.D.Pa. Dec. 7, 2016): Continue reading →
"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.
