Police investigating two robberies with kidnappings got the lead on defendant from GPS in a stolen car that gave them an address. Investigating that address gave them another lead to the place ultimately searched that the robbers were renting that place. Surveillance was set up, and the occupants matched the description of the robbers. Officers attempted a stop of a vehicle leaving, and a chase ensued and the car got away. There was nexus between the robberies and the rental property searched tying it to the robbers. United States v. Benanti, 2016 U.S. Dist. LEXIS 168390 (E.D. Tenn. Oct. 7, 2016).*
Another Playpen SW sustained. United States v. Owens, 2016 U.S. Dist. LEXIS 167551 (E.D. Wis. Oct. 4, 2016),* adopted, 2016 U.S. Dist. LEXIS 167550 (E.D. Wis. Dec. 5, 2016).*
Posted inComputer and cloud searches, Nexus|Comments Off on E.D.Tenn.: Kidnapping investigation ultimately led police to def’s rental property; he fled when they attempted to stop him; nexus to property shown
The government didn’t seize $15,000 at issue here: It allegedly told counsel to hold on to it, and that’s in the District of Kansas. This is the wrong forum and there’s an adequate remedy at law, so the Rule 41(g) motion is denied. United States v. Real Prop. Commonly Known as 7208 East 65th Place, Tulsa, Oklahoma, 2015 U.S. Dist. LEXIS 182957 (N.D. Okla. Dec. 16, 2015): Continue reading →
Posted inRule 41(g) / Return of property|Comments Off on D.Kan.: Rule 41(g) requires there be no adequate remedy at law; here there is one, so denied
USDA inspectors breaking into plaintiff’s wildlife preserve to check on animals that the previous day the preserve said would go to the veterinarian the next day stated a Fourth Amendment claim under Bivens. At the time of the entry, the animals were at the vet. There was no qualified immunity because any reasonable officer would know that breaking in was unjustified without exigency, if at all. Plaintiff’s cause of action under § 1983, however, fails for lack of state action by federal employees. Big Cats of Serenity Springs v. Rhodes, 2016 U.S. App. LEXIS 21988 (10th Cir. Dec. 12, 2016): Continue reading →
Posted inAdministrative search, Emergency / exigency|Comments Off on CA10: USDA officers committing a break-in without exigency to conduct an inspection violated 4A
The 75 day delay in getting the IP address and a 51 day delay after associating the IP address with defendant in a child pornography search warrant case did not make the warrant stale. Defendant turned on his phone in the presence of the police and they could see what was on the screen. That was a plain view of that image justifying seizure of the phone. United States v. Morgan, 2016 U.S. App. LEXIS 21453 (8th Cir. Dec. 1, 2016).
30 day wire order to record face-to-face conversations in defendant’s home was open ended and unreasonable. The state wiretap act doesn’t contemplate such open interceptions and the Fourth Amendment would generally apply and make the recordings unreasonable. The state supreme court is asked to take this case. Commonwealth v. Katona, 2016 PA Super 269, 2016 Pa. Super. LEXIS 715 (Dec. 2, 2016) (dissent).*
At the time of this seizure of an infant from the parents in 2008, it was clearly established that child protection workers could not remove children from the parents without a warrant or exigency, but not something like these facts . “In 2008, it was not beyond debate that the confluence of factors set forth above would not support a finding of exigency.” (Slip op. at 17) A preliminary determination had been made here that there was no exigency, but, by the time the home inspection occurred, the worker there seized the children because of the condition of the home. [This case has a good discussion of the generality and clearly established.] Kirkpatrick v. County of Washoe, 2016 U.S. App. LEXIS 21925 (9th Cir. Dec. 9, 2016) (en banc) [panel decision: 792 F.3d 1184 (9th Cir. 2015), vacated on grant of rehearing en banc, 813 F.3d 1258 (9th Cir. 2016)]: Continue reading →
Posted inEmergency / exigency, Qualified immunity|Comments Off on CA9 (en banc): Where exigency for CPS worker to take child wasn’t really clear at time, she gets qualified immunity
Defendant was stopped for a brake light infraction, and neither he nor the passenger had a valid DL or insurance. Thus, impoundment is in order. “Similarly, the impoundment of the vehicle was a task tied to the traffic infraction, and King makes no argument that that task should have reasonably been completed at the time Officer Taylor asked for his consent to the pat-down.” King v. State, 2016 Tex. App. LEXIS 13052 (Tex. App. – Ft. Worth Dec. 8, 2016).
Defendant’s 2009 arrest in Missouri was in the middle of the conspiracy and it would not be revisited on the motion for new trial. The evidence was essentially overwhelming, and this was not just 404(b) evidence considering the time period of the indictment. United States v. Tiangco, 2016 U.S. Dist. LEXIS 167327 (D.N.J. Dec. 5, 2016).*
Posted inInventory|Comments Off on TX2: “the impoundment of the vehicle was a task tied to the traffic infraction” and didn’t extend it
The officer testified that his body armor accidentally muted the microphone on the body recorder on his belt when he bent over, and this was not a due process violation. There was exigency here for a community caretaking function entry based on a loud argument inside and the officer being invited in. United States v. Givens, 2016 U.S. Dist. LEXIS 167433 (W.D. Mo. Nov. 18, 2016), adopted, 2016 U.S. Dist. LEXIS 167140 (W.D. Mo. Dec. 5, 2016): Continue reading →
Posted inBody cameras, Community caretaking function|Comments Off on W.D.Mo.: Accidental muting of body recorder by officer’s body armor wasn’t due process violation
A few marijuana roaches found in a trash pull doesn’t add up to probable cause that drugs would be found in defendant’s home. United States v. Abernathy, 2016 U.S. App. LEXIS 21824 (6th Cir. Dec. 8, 2016): Continue reading →
Posted inProbable cause|Comments Off on CA6: A few roaches in a trash pull isn’t PC drugs would be found
Defendant was arrested without probable cause for murder at 5:20 am by officers standing in his bedroom who handcuffed him and took him away. The evidence derived from the arrest from the room should have been suppressed. People v. Gutierrez, 2016 IL App (3d) 130619, 2016 Ill. App. LEXIS 829 (Dec. 7, 2016): Continue reading →
Posted inArrest or entry on arrest|Comments Off on IL: Def arrested in bedroom w/o PC at 5:20 am should have all evidence from arrest suppressed
Officer waving his arms standing in the street to get defendant to stop did not conduct a “seizure” when defendant stopped. The officer was trying to gather information about others, and had not focused on defendant. “Officer Johnson waved his hands back and forth just above shoulder level to tell Wilson to stop the vehicle. The officer’s intention was to question Wilson to see if he knew anything about the man with the outstanding warrants. Officer Johnson had no suspicion that Wilson was the man he was looking for nor did he observe any illegal behavior by Wilson. Officer Johnson was in uniform, but no weapon was drawn, neither police car was blocking the road, and the blue lights and sirens were not activated.” State v. Wilson, 2016 N.C. App. LEXIS 1256 (Dec. 6, 2016).
Caeser’s Casino security in Atlantic City is not a state actor for § 1983 purposes. Bethea v. Caesar’s Casino, 2016 U.S. Dist. LEXIS 169552 (D.N.J. Dec. 6, 2016).
Posted inSeizure|Comments Off on NC: Officer waving arms to stop def for benign reason wasn’t conducting a “stop”
“However, assuming arguendo, Defendant partially invoked his Fifth Amendment rights by saying, ‘I ain’t signing shit without my attorney,’ in response to a request to search his home, his right to counsel still was not violated. The mere utterance of the magic word ‘attorney’ in response to a request to search his home was not a clear and unequivocal invocation of his Fifth Amendment right to counsel in all instances. It is unequivocal that Defendant stated he would not sign anything without the presence of an attorney. However, Defendant did not attempt to assert his Fifth Amendment right to counsel in any context.” State v. Holman, 2016 Mo. LEXIS 496 (Dec. 6, 2016).
In this 2255, the guns were lawfully found. (No discussion of Stone v. Powell or Strickland.) Peterson v. United States, 2016 U.S. Dist. LEXIS 169517 (W.D.Wash. Dec. 6, 2016).*
Posted inUncategorized|Comments Off on MO: Def’s rejection of consent by reference to lawyer was not invocation of lawyer for later statement
A person in the U.S. has a diminished privacy interest in emails between himself and foreign nationals that the NSA can intercept. Incidental capturing of emails between defendant in the U.S. and others elsewhere didn’t violate the Fourth Amendment because the privacy interest was reduced, and the target was a foreign national without Fourth Amendment protection. The minimization that the government performed was similar to the minimization in a wiretap. Also, the government’s late disclosure of notice of the intercept wasn’t prejudicial because the district court held hearings on the merits of that issue. United States v. Mohamud, 2016 U.S. App. LEXIS 21622 (9th Cir. Dec. 5, 2016) [and see articles at end of post]: Continue reading →
Posted inFISA|Comments Off on CA9: Incidental capture of U.S. person’s emails between him and a foreign national were reasonable under FISA and 4A
“In light of Plaintiffs’ allegations, the Court finds that Plaintiffs have alleged sufficient facts which allow the Court to draw the reasonable inference that the District maintains a policy of retaliating against parents who advocate for their children, in violation of the First Amendment, and invading their privacy, by calling DHS when parents do advocate on behalf of their children, in violation of the Fourteenth Amendment Due Process Clause and, further, maintains a policy of being indifferent to reports of bullying, in violation of the Fourth Amendment. Therefore, the Court finds Plaintiffs’ § 1983 claims should not be dismissed against the District.” Roe v. John Doe, 2016 U.S. Dist. LEXIS 168318 (W.D.Okla. Dec. 6, 2016).
Pro se plaintiff stated a claim for unlawful search and seizure and taking of his cash at the airport, and summary dismissal was error. The government’s forfeiture action was dismissed. Caldwell v. Fort Lauderdale Airport Task Force, 2016 U.S. App. LEXIS 21933 (11th Cir. Dec. 9, 2016).*
Posted inForfeiture|Comments Off on W.D.Okla.: A school district’s alleged indifference to bullying complaints stated a 4A claim
Defendant’s consent was voluntary even though she did not know she could refuse or what the officers were looking for. United States v. Avila-Hernandez, 2016 U.S. App. LEXIS 21721 (5th Cir. Dec. 6, 2016): Continue reading →
Posted inConsent|Comments Off on CA5: “The mere failure of the officers to give an encyclopedic catalogue of everything they might be interested in does not alone render the consent to search involuntary.”
The USMJ just doesn’t buy the testimony that the Memphis P.D. officer could see the defendant driving without a seatbelt at night coming from the other direction because the officers’ testimony on the basis for the stop disagreed. After that, the court was also “wary” about even believing that they smelled marijuana in the car because it was absent from reports. United States v. Townsel, 2016 U.S. Dist. LEXIS 169199 (W.D.Tenn. Sept. 8, 2016), adopted, 2016 U.S. Dist. LEXIS 168053 (W.D. Tenn. Dec. 6, 2016): Continue reading →
Posted inReasonable suspicion|Comments Off on W.D.Tenn.: Court just doesn’t buy that officers could see def not wearing seatbelt at night or that MJ was smelled in the car
It was objectively reasonable for the officer to believe the officer’s testimony that the officers had apparent authority to enter the basement area where defendant was staying. “Defendant argues on appeal that Ms. Latcher did not reside in the home because A.S. stated she and Ms. Latcher would ‘come and go.’ However, Officer Brown testified that Ms. Latcher told him she lived there, he believed her statement, and she gave him consent to enter the home, and showed him to the basement. We consider the evidence in the light most favorable to the trial court’s ruling and disregard any contrary evidence and adverse inferences. … Officer Brown’s testimony indicates he reasonably believed Ms. Latcher had common authority to give the police consent to enter the home, thus his warrantless entry did not violate Defendant’s Fourth Amendment rights. We find there was sufficient evidence to support the trial court’s ruling.” State v. Davis, 2016 Mo. App. LEXIS 1245 (Dec. 6, 2016).
It was objectively reasonable to stop defendant’s vehicle because of logo covers on the taillights that obscured their visibility. Defendant was found under the influence. State v. Massey, 2016 MT 316, 2016 Mont. LEXIS 1011 (Dec. 6, 2016).*
The protective weapons search of defendant’s car was valid. The stop occurred in an area known for frequent criminal activity, defendant gave the officer a false name, and he observed a large knife on the front floorboard near defendant’s feet. The fact that the rear floorboard area was searched too wasn’t unreasonable because it was within reach of the driver when stopped. Suppression order reversed. People v. Delacruz, 2016 CO 76, 2016 Colo. LEXIS 1230 (Dec. 5, 2016).
Defendant’s stop was reasonable for no headlights and not signaling. United States v. Lash, 2016 U.S. App. LEXIS 21789 (6th Cir. Dec. 6, 2016).*
Posted inProtective sweep, Reasonable suspicion|Comments Off on CO: Stop in high crime area, false name, and large knife on floor justified protective weapons search
A telephone call from an alleged shooting victim’s brother about the shooting was objectively reasonable for exigency when corroborated with the fact that the victim wasn’t immediately found when officers arrived. State v. Karna, 2016 ND 232, 2016 N.D. LEXIS 222 (Dec. 5, 2016).
Seeing half a crack cocaine cookie through the window justified a search of defendant’s car on probable cause and the automobile exception. State v. Ross, 2016 Fla. App. LEXIS 18209 (Fla. 2d DCA Dec. 9, 2016).*
"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.
