“We conclude that the officer did not need a fact-based particularized suspicion to stop and inspect the truck because it was a commercial vehicle subject to close regulation by law.” The driver was found under the influence. State v. Beaver, 2016 MT 332, 2016 Mont. LEXIS 1080 (Dec. 20, 2016).
In Texas, one can ask for a jury instruction on an illegal search for the jury to decide it [good luck with that]. Where the officers and a nurse testified defendant consented to a blood draw and defendant didn’t remember, “The trial did not err in failing to instruct the jury under article 38.23 because the evidence did not raise a fact issue regarding appellant’s consent to the blood draw.” Hovis v. State, 2016 Tex. App. LEXIS 13590 (Tex. App. – Houston (14th Dist.) Dec. 22, 2016).*
Posted inAdministrative search, Consent|Comments Off on MT: RS not needed to stop a commercial truck because they are closely regulated
Defendant was under court ordered computer monitoring as a condition of his supervised release, and software was installed on his computer and then his cell phone to monitor his text messages and internet searches. Seventh Circuit precedent forecloses defendant’s argument that monitoring his computer usage by probation with software they installed is unreasonable as a condition of release. United States v. Lowman, 2016 U.S. Dist. LEXIS 174960 (E.D.Wis. Aug. 26, 2016): Continue reading →
The trial court judge properly allowed defendant’s pretrial motion to suppress evidence seized during a warrantless search of his motor vehicle while it was parked in a parking lot outside a correctional facility, where, at the time a police officer instructed the defendant to unlock the vehicle to allow access to its interior, the officer lacked probable cause to believe that a prescription pill bottle visible in a map pocket on the driver’s side of the vehicle contained illegal narcotics. Further, the entry into and search of the vehicle was not justified as an administrative or special needs search, where, although correction officials have a legitimate interest in preventing the introduction of weapons, drugs, or other contraband onto the grounds of a correctional facility, in the absence of regulations or a written policy describing the parameters of an administrative search procedure or, alternatively, a procedure in which every vehicle was searched as it entered the facility, the mere posting of a sign at the entrance to the facility advising that vehicles entering the facility’s parking lot were subject to search was inadequate to justify a warrantless search conducted on a discretionary basis. Commonwealth v. Garcia-German, 2016 Mass. App. LEXIS 176 (Dec. 20, 2016). [Largely the court’s summary.]
Posted inAdministrative search, Special needs|Comments Off on MA: Admin search doctrine or special needs didn’t permit a discretionary suspicionless search of a car on a prison parking lot
Defendant, a suspect in a shooting, was arrested in his house, handcuffed, patted down for a weapon, and removed to the police station. His girlfriend lived with him and consented to a search of the premises. Defendant could not show that he was removed from the premises just to keep him from objecting to the search. She consented. United States v. Santiago, 2016 U.S. Dist. LEXIS 174965 (E.D.Wis. Nov. 2, 2016), adopted, 2016 U.S. Dist. LEXIS 174967 (E.D.Wis. Dec. 19, 2016).
There was no viable issue that the Tribal judge who issued a Tribal warrant in this case wasn’t authorized or neutral and detached. Defendant’s focus on the continuing and lawful authority of the judge under Tribal law isn’t relevant. Moreover, Gates recognized that non-lawyers issue search warrants all the time, and state judges can issue search warrants when a USMJ is unavailable. United States v. Jones, 2016 U.S. Dist. LEXIS 175760 (D.Minn. Oct. 3, 2016).*
Defendant was arrested for obstructing because he told officers to come back with a warrant after they showed up at his house at midnight to check on defendant’s son. The police received an anonymous call that defendant’s son had a gun and threatened suicide. At the house, nothing was amiss, and defendant finally turned away from them with the warrant comment. The officer reached in and grabbed defendant and a minor struggle ensued to arrest him. The entry was not justified by any exigent circumstances. The anonymous call was uncorroborated by anything at the house. State v. Nasca, 2016-Ohio-8223, 2016 Ohio App. LEXIS 5081 (11th Dist. Dec. 19, 2016).
Defendant was subject to home post-release supervision visits conducted at reasonable times. This one was 6:00-6:15 am when sunrise was nearly 7 am. This was effectively a nighttime search of his house and was thus unreasonable. Suppressed. United States v. Irons, 2016 U.S. Dist. LEXIS 168844 (E.D.N.C. Dec. 7, 2016): Continue reading →
Defendant stepped out of his house onto a small covered porch where he was arrested. The protective sweep of the house violated the state constitution. The officers could see a woman inside. Nevertheless, a protective sweep of a house after an arrest outside is unreasonable without specific facts amounting to at least reasonable suspicion justifying the entry. [Here, however, it was all harmless error.] State v. Chambers, 2016 Wash. App. LEXIS 3033 (Dec. 19, 2016): Continue reading →
Posted inProtective sweep|Comments Off on WA: Arrest on def’s porch does not justify protective sweep of his house
Defendant was subjected to a search and arrested with drugs. He was indicted on that. When executing the arrest warrant, officers found defendant with more drugs. After that, defendant succeeded in suppressing the evidence in the first case that led to the indictment and arrest and finding of the second drugs. Those, however, are not suppressed because there was independent probable cause and the officers were executing the arrest warrant in good faith. United States v. Reed, 2016 U.S. Dist. LEXIS 169283 (M.D.La. Dec. 7, 2016).
There is no reasonable expectation of privacy in trash containers left out on the street for collection. The trash pull here led to probable cause for a search of the house. State v. Guardarrama, 2016 Del. Super. LEXIS 634 (Dec. 14, 2016).*
Posted inAttenuation, Reasonable expectation of privacy|Comments Off on M.D.La.: Later suppression of drugs that led to indictment and finding more drugs on arrest doesn’t suppress the second find
Defendant was a passenger in a vehicle stopped for a brake light violation. The officer found an outstanding warrant for failure to appear and defendant was arrested and put into the patrol car. The search of defendant’s book bag back in the car he was in is suppressed under Arizona v. Gant. State v. Wheeler, 2016 Del. Super. LEXIS 636 (Dec. 16, 2016).
A pre-Birchfield blood test is admissible under the good faith exception. State v. Schmidt, 2016 Kan. App. LEXIS 70 (Dec. 16, 2016).
Yahoo Inc’s secret scanning of customer emails at the behest of a U.S. spy agency is part of a growing push by officials to loosen constitutional protections Americans have against arbitrary governmental searches, according to legal documents and people briefed on closed court hearings.
The order on Yahoo from the secret Foreign Intelligence Surveillance Court (FISC) last year resulted from the government’s drive to change decades of interpretation of the U.S. Constitution’s Fourth Amendment right of people to be secure against “unreasonable searches and seizures,” intelligence officials and others familiar with the strategy told Reuters
Yahoo Inc’s secret scanning of customer emails at the behest of a U.S. spy agency is part of a growing push by officials to loosen constitutional protections Americans have against arbitrary governmental searches, according to legal documents and people briefed on closed court hearings.
Posted inE-mail, Surveillance technology|Comments Off on Reuters: Yahoo email scan shows U.S. spy push to recast constitutional privacy
Respondent was ordered removed from the country after ICE agents encountered him at work. They thought he was somebody else, and he was handcuffed and questioned. It became apparent that he wasn’t the man they were looking for, but he also was in the country illegally, having overstayed his visa. The motion to suppress before the BIA was denied because he did not show a flagrant violation of the Fourth Amendment, and the exclusionary rule thus didn’t apply to his immigration proceeding. Corado-Arriaza v. Lynch, 2016 U.S. App. LEXIS 22501 (1st Cir. Dec. 19, 2016).
The trial court here reasonably concluded that a reasonable person in defendant’s position, having had officers pull alongside him while riding his bicycle and initiate a conversation, would not have felt free to ignore the officers’ request to speak with him. The record supports that this encounter lacked reasonable suspicion. State v. Swift, 2016-Ohio-8191, 2016 Ohio App. LEXIS 5054 (2d Dist. Dec. 16, 2016).*
Posted inExclusionary rule, Reasonable suspicion|Comments Off on CA1: Arrest of removable alien was without RS, but because no flagrant violation of 4A, no suppression
A man and a woman were walking in the middle of the road, and the woman was having difficulty standing up. This was a potential violation of statute, plus the officer had some possible concerns with the medical condition of the woman or whether she was being held against her will. Then the two get to her house while under arrest and then she flees inside. The officer’s entry for hot pursuit for a misdemeanor was reasonable. State v. Parsons, 2016-Ohio-8109, 2016 Ohio App. LEXIS 4975 (11th Dist. Dec. 12, 2016).
Remanded because the transcript of the record is unclear as to what the trial court was basing its finding of a lack of a reasonable expectation of privacy on. State v. Dennis, 2016-Ohio-8136, 2016 Ohio App. LEXIS 5000 (9th Dist. Dec. 14, 2016).*
At issue was a seizure and then warranted search of defendant’s cell phone looking for an incriminating text message that was already seen by the police on the recipient’s cell phone. At the hearing, the Superior Court granted a motion to suppress based on lack of probable cause. The state moved to reconsider that defendant never put probable cause in issue. Granting the reconsideration, the state showed its probable cause, and the warrant for the cell phone text message was properly issued. It was defendant’s burden to frame the issue in the motion to suppress so the state knew what it was responding to. Barber v. State, 2016 Alas. App. LEXIS 206 (Dec. 16, 2016).
A city police officer here shot and killed a man at close range, and bystanders contradicted the officer’s version of events. Summary judgment was denied on qualified immunity, and she and the city appeal. The factual disputes required summary judgment be denied. The victim had a gun when first encountered and tossed it out of reach. While handcuffing the victim, he appeared to have broken one arm free and was shot at close range in the back. Witnesses contradicted the officer: she said the gun went off accidentally, but the witnesses say she held it in both hands and fired. At the time of the shooting, the victim posed no threat of deadly force against her. She alternatively argued that, if the shooting was considered intentional, the law wasn’t settled. It really was. Wallace v. City of Alexander, 2016 U.S. App. LEXIS 21911 (8th Cir. Dec. 9, 2016).*
It’s called My Friend Cayla. It’s a doll and looks pretty much like most dolls do. She is available in various skin tones and hair colors, and according to her website, she is the smartest toy you’ll ever have. But My Friend Cayla also has some issues. She sings, talks and listens — maybe a little too well.
The court of appeals adopts an alternative ground for a search raised for the first time on appeal finding the record sufficient to make a determination. Defendant was awakened on a couch, handcuffed, and frisked for a weapon. The state proceeded at the suppression hearing on a community caretaking function search. “On appeal, the state argues, for the first time, that the search was a valid Terry protective frisk. State v. Grunig, 660 N.W.2d 134, 137 (Minn. 2003) (‘A respondent can raise alternative arguments on appeal in defense of the underlying decision when there are sufficient facts in the record for the appellate court to consider the alternative theories, there is legal support for the arguments, and the alternative grounds would not expand the relief previously granted.’).” Ries v. State, 2016 Minn. App. LEXIS 89 (Dec. 19, 2016). Comment: Defense counsel’s job on appeal is to assert, if true, why the record is not sufficient to decide an alternative argument and be specific. What questions were not pursued because the state didn’t raise this before? Look also to express waiver of the argument now relied upon. Don’t give away an alternative argument if the suppression hearing was specific and to the point where it can be argued that the defense was lulled by the state not raising it in the trial court.
Posted inStandards of review|Comments Off on MN: Search was valid as a protective frisk even though it was raised for first time on appeal
Officers executing a high risk warrant on plaintiff’s house shot and killed two pit bulls, one of which was standing in a corner of the basement not yet attacking. The warrant was considered high risk because the target of the search had flattened his time in prison and got out only a month ago. They surmised that meant prison discipline problems, and then came the drug search. Out-of-circuit case law held that it was clearly established by 2003 or 1998 that shooting a dog was a Fourth Amendment seizure, and it doesn’t take an in-circuit case to make it clearly established. The shooting, however, was reasonable under the circumstances. The first dog, a 100 pound pit bull, lunged at the officers as they came through the door when they shot it. It ran away. In attempting to clear the basement, the second pit bull, half the size of the other one, was seen barking as the officers came in, and it “moved in their direction so they shot it, too.” The basement had many large objects behind which people could hide, and they feared an attack from the dog in attempting to check. It walked bleeding from multiple bullet wounds behind the furnace. The officer then killed the dog to “put it out of its misery.” They couldn’t clear the house or basement because of the risk posed by the dogs. On this record, the shooting of the dogs was reasonable. Brown v. Battle Creek Police Dep’t, 2016 U.S. App. LEXIS 22447 (6th Cir. Dec. 19, 2016): Continue reading →
Posted inQualified immunity, Seizure|Comments Off on CA6: Shooting dogs during drug raid was a seizure, but here it was reasonable
COLUMBIA, S.C. (Dec. 19, 2016) – A bill prefiled in the South Carolina House would ban the use of “stingrays” to track the location of phones and sweep up electronic communications.The proposed law would not only protect privacy in South Carolina, but would also hinder one aspect of the federal surveillance state. Continue reading →
Posted inCell site simulators|Comments Off on Tenth Amendment Center: South Carolina Bill Would Ban Stingray Spying, Hinder Federal Surveillance Program
At issue was a seizure and then search of defendant’s cell phone with a search warrant looking for an incriminating text message that was already seen by the police on the recipient’s cell phone. At the hearing, the Superior Court granted a motion to suppress based on lack of probable cause. The state moved to reconsider that defendant never put probable cause in issue. Granting the reconsideration, the state showed its probable cause, and the warrant for the cell phone text message was properly issued. It was defendant’s burden to frame the issue in the motion to suppress so the state knew what it was responding to. Barber v. State, 2016 Alas. App. LEXIS 206 (Dec. 16, 2016).
Posted inMotion to suppress|Comments Off on DE: Trial court couldn’t decide PC where def didn’t raise it in motion to suppress; reconsideration granted; def has to frame the issues in the motion to suppress
There is no such thing as a jurisdictional requirement that a law enforcement officer outside of his or her jurisdiction can’t come to one’s door to do a knock-and-talk. The officers did nothing more than any other citizen could do in approaching the door. Defendant agreed to come to the police station and talk about a sex abuse allegation, and he readily confessed at the police station. This was all by consent. Fischer v. Commonwealth, 2016 Ky. App. LEXIS 202 (Dec. 16, 2016).
Posted inKnock and talk|Comments Off on KY: There is no jurisdictional requirement for knock-and-talk
"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.
