Noting a split in authorities, the court finds that the smell of marijuana in the passenger compartment [here, coming off the rental agreement] does not give probable cause to search the trunk. Here, however, the trunk was accessible from the interior, too, and that justifies this search. People v. Jones, 2016 NY Slip Op 26365, 2016 N.Y. Misc. LEXIS 4160 (Livingston Co. Nov. 4, 2016).
A 911 call from a citizen informant was reasonable suspicion for the encounter with defendant at her door about her driving under the influence. The officer arrived at her door within minutes, and he’d also talked to the citizen informant. Cook v. State, 2016 Tex. App. LEXIS 12169 (Tex. App. – Ft. Worth Nov. 10, 2016).*
Posted inInformant hearsay, Probable cause, Reasonable suspicion|Comments Off on NY co.ct.: Noting split in case law, slight smell of MJ in the passenger compartment generally doesn’t justify a search of the trunk; here, however, trunk accessible from inside car
A trained drug dog’s instinctive jump through an open window and into defendant’s vehicle did not violate his right to be free from unreasonable searches. [If the dog is so well-trained, what’s it doing jumping through the window anyway? The handler can’t handle it? It’s a police entry into the car.] State v. George, 2016 Iowa App. LEXIS 1220 (Nov. 9, 2016).
The initial police encounters with the defendant weren’t seizures. Defendant was seen lurking around cars in the middle of the night, and footprints from one car broken into led to him. State v. Rockingham, 2016 Iowa App. LEXIS 1172 (Nov. 9, 2016).*
Posted inDog sniff, Reasonable suspicion|Comments Off on IA: Trained drug dog’s instinctive jump into the window of def’s car didn’t make the dog sniff unreasonable
Contraband in plain view seen by firemen in defendant’s garage was lawfully seized. Guns and cash weren’t in plain view, and they were seen after a re-sweep of the house with the police, so they weren’t lawfully seized. Young v. State, 2016 Fla. App. LEXIS 15272 (Fla. 2d DCA Oct. 14, 2016).
Defense counsel wasn’t ineffective for not arguing that a trash search was unreasonable where the state supreme court already held there is no reasonable expectation of privacy in trash out for collection. State v. Mackenzie, 2016 Iowa App. LEXIS 1154 (Nov. 9, 2016).*
Defendant’s consent form was written by the police with boilerplate language, and the consent form is not sufficient evidence of control of the place searched. For all the proof shows, he was just somewhat familiar with the place and there were three bedrooms occupied by others. The conviction is reversed. People v. Buza, 2016 NY Slip Op 07423, 2016 N.Y. App. Div. LEXIS 7305 (4th Dept. Nov. 10, 2016).
Defendant was on 10 years supervised release after doing time for a child porn offense. He’d admitted to friends that he still looked at child pornography and word got back to his probation officer. U.S. Probation did a home visit, and found a flash drive in the bedroom, which defendant and his wife both denied knowledge of or ownership. It was seized. Then he admitted there was child pornography on it that had been downloaded by a virus. Motion to suppress the flash drive denied. There was reasonable suspicion to seize it. United States v. Makeeff, 2015 U.S. Dist. LEXIS 182185 (S.D.Iowa Feb. 6, 2015).*
There was no need to inventory defendant’s backpack when his car was being impounded where his grandmother was there and could have taken it away. Since a purpose of inventory is to prevent theft and false claims, turning the backpack over to his grandmother satisfied that requirement. “The seizure of an item that is not itself suspected to be dangerous, in circumstances where there is a responsible third party available to take possession of it, is inconsistent with the purposes underlying an inventory search. See Opperman, 428 U.S. at 369; Garcia, supra at 682. In a case such as this, there is simply no need to seize or safeguard items that are not instrumentalities of a crime or contraband, or where there is no suspicion that they may be a danger to the public.” Commonwealth v. Nicoleau, 90 Mass. App. Ct. 518 (Oct. 14, 2016).
Posted inInventory|Comments Off on MA: Inventory of backpack was unnecessary where def’s grandmother was there and could have taken it; giving it to her satisfied legal justifications for inventory
The delay in defendant’s detention was reasonable because a person with the same name had been previously deported, and officers were trying to get a picture of that person sent to them. United States v. Jimenez-Delatorre, 2016 U.S. Dist. LEXIS 142699 (D.Kan. Oct. 14, 2016).
The delay in this stop was caused by the fact there were three people in the car, at least one had a Mexican DL with a name he recognized as threatening officers in the past. There was also a police scanner in the car. This was all sufficient cause for officer safety because he was outnumbered 3-1 to call for backup and wait for it to arrive, and the delay was reasonable. United States v. Alvarado, 2016 U.S. Dist. LEXIS 139779 (D.Ore. Oct. 7, 2016).
Posted inReasonable suspicion|Comments Off on Two on justified reasonableness of delay of a traffic stop
Police entered defendant’s hotel room without a warrant because there was heroin inside and they claimed they feared destruction of evidence. Instead, however, the occupant was expecting a buyer to come back and the officers heard nothing from inside the room, even after knocking, that suggested that there was flushing of the heroin down the toilet. The entry was thus unreasonable. While there was flushing going on after they hit the door with a battering ram, that’s too little too late to support the prosecution argument. Also, after breaching the door with guns drawn and the use of a battering ram to break it open seemingly taints the later alleged consent. United States v. Parker, 2016 U.S. Dist. LEXIS 142551 (E.D.Wis. Aug. 15, 2016), adopted, 2016 U.S. Dist. LEXIS 142550 (E.D. Wis. Oct. 14, 2016).
Defendant’s car was subjected to an inventory which he contended was unreasonable. If he had been reasonably conducted, the firearms would have been found in any event, such as where an inventory starts but ends when something significant is found, like here, a gun. United States v. Killblane, 2016 U.S. App. LEXIS 18441 (10th Cir. Oct. 13, 2016).
Evidence connected defendant to a marijuana grow operation and cash being sent to his house through the mail. This was probable cause for a search warrant. In any event, the good faith exception supports the warrant. United States v. Schaeffer, 2016 U.S. Dist. LEXIS 142546 (D.Neb. Aug. 10, 2016),* adopted, 2016 U.S. Dist. LEXIS 142548 (D.Neb. Oct. 14, 2016).*
Posted inInventory|Comments Off on CA10: If an inventory could be lawfully conducted, the fact it stopped when guns were found doesn’t make it void
Defense counsel wasn’t ineffective for not challenging the warrantless entry into defendant’s home. He was apprehended for shootings including shooting his wife, and their children were unaccounted for. The entry was valid based on exigency. Therefore, no IAC. Jordan v. State, 2016 Tenn. Crim. App. LEXIS 772 (Oct. 14, 2016).
The affidavit for the search warrant in this case showed probable cause to believe evidence of trying to enlist a minor in prostitution would be found on defendant’s phone and in his email account. That which was omitted from the affidavit was not material under Franks. United States v. Charles, 2016 U.S. Dist. LEXIS 141602 (D.Minn. Aug. 11, 2016),* adopted, 2016 U.S. Dist. LEXIS 141484 (D.Minn. Oct. 12, 2016).*
Plaintiff failed to show a genuine issue of material fact in his false arrest claim, and summary judgment was properly entered against him. Houston v. City of Philadelphia, 2016 U.S. App. LEXIS 18442 (3d Cir. Oct. 11, 2016).*
Defendant was stopped for having one headlight. The specific claim that there was no probable cause for pulling him over because he wasn’t on a public road was never presented to the trial court, and it’s waived. State v. Tusler, 2016 Iowa App. LEXIS 1178 (Nov. 9, 2016).
An officer heard gun shots in the Portland port district, saw a lone car driving away fast, violating several traffic laws. The officer followed to a neighborhood, and the driver bailed from the car and ran. Police set up a perimeter around the block, and defendant was found hiding and he matched the description of the driver who ran away. In and on the car were empty shell casings. Partially visible in the car was a handgun. Defendant was arrested with probable cause. United States v. Okot, 2016 U.S. Dist. LEXIS 155296 (D.Me. Nov. 9, 2016).*
Defendant was stopped for a traffic offense, and his eye contact and conduct amounted to reasonable suspicion which developed into probable cause. United States v. Cotton, 2016 U.S. Dist. LEXIS 155498 (D.Nev. Sept. 23, 2016),* adopted, 2016 U.S. Dist. LEXIS 156465 (D. Nev. Nov. 8, 2016).*
Defendant had standing in his girlfriend’s car. His stuff was throughout it, and he drove it some. An inventory is not invalid because the decision to inventory or not is discretionary. United States v. Gilmore, 2016 U.S. Dist. LEXIS 156240 (E.D.Mo. Oct. 21, 2016), adopted, 2016 U.S. Dist. LEXIS 155404 (E.D. Mo. Nov. 9, 2016): Continue reading →
Posted inInventory, Standing|Comments Off on E.D.Mo.: A vehicle inventory is not invalid because it is discretionary
Based on a female airman’s complaint, AFOSI developed information that defendant had sex with her when she was too intoxicated to consent. She believed that he had pictures on his cell phone. OSI was seeking a search authorization for his phone when they told him they had one and where was it. He said it was in his car near his work assignment. While the seizure of the cell phone preceded the search authorization, it was inevitable that they were getting authorization to seize and then search the phone, so the exclusionary rule would not be applied. Pictures on the phone helped convict him and provided 404(b) evidence of others. United States v. Mancini, 2016 CCA LEXIS 660 (A.F. Ct. Crim. App. Nov. 7, 2016).
In a rape case on tribal lands, a co-occupant of defendant’s home consented to police entry to investigate that led to the taking of photographs. Defendant had also consented to taking DNA which linked him to the alleged sexual assault. United States v. Brave Bird, 2016 U.S. Dist. LEXIS 154912 (D.S.D. Sept. 15, 2016), adopted, 2016 U.S. Dist. LEXIS 154742 (D.S.D. Nov. 8, 2016).*
Raw marijuana shake around in the front area of the car was probable cause for a search. State v. James, 2016-Ohio-7660, 2016 Ohio App. LEXIS 4531 (5th Dist. Oct. 31, 2016).
“In conclusion, Pankey is incorrect to present this case as one of ‘mere odor.’ (Def.’s Mtn. 7). Under Carter, Champion, and Loucks, Homiak’s observation of marijuana odor plus visual observation of marijuana, Pankey’s nervousness, Pankey’s possession of multiple phones, and Pankey’s location on a drug delivery corridor combined to provide probable cause to search the trunk for contraband.” United States v. Pankey, 2016 U.S. Dist. LEXIS 155723 (E.D.Va. Nov. 8, 2016).*
There is no federal or state constitutional privacy right in public body emails in a private email account. The state courts had already held that as to cell phones. West v. Vermillion, 2016 Wash. App. LEXIS 2701 (Nov. 8, 2016).*
An off-duty police officer saw defendant appeared drunk in her car in a Sonic parking lot and called it in. He was a citizen informant. State v. Irwin, 2016 Tenn. Crim. App. LEXIS 841 (Nov. 8, 2016).
The search of defendant’s bag at an immigration checkpoint after he first denied ownership of it and a dog alerted on it was valid under the Fourth Amendment so defense counsel wasn’t ineffective for not arguing it. United States v. Gonzalez, 2016 U.S. Dist. LEXIS 154636 (S.D.Tex. Nov. 8, 2016).*
An RCMP detective called DHS in Montana that a load of cocaine was suspected coming to Canada through Kalispell. A name and vehicle make was passed on. While the tip was apparently anonymous on the Canadian side, the vehicle with the named driver showed up and was stopped for speeding heading north to Canada. After brief questioning, reasonable suspicion developed, and that justified continuing the stop. United States v. Browne, 2016 U.S. Dist. LEXIS 154939 (D.Mont. Nov. 8, 2016).*
Reasonable suspicion and officer safety did not support the search of the cargo area of a box truck. There was no probable cause here, either, for the automobile exception to apply. State v. Jackson, 2016-Ohio-7669, 2016 Ohio App. LEXIS 4535 (10th Dist. Nov. 8, 2016); State v. Byrd, 2016-Ohio-7670, 2016 Ohio App. LEXIS 4538 (10th Dist. Nov. 8, 2016); State v. Hayward, 2016-Ohio-7671, 2016 Ohio App. LEXIS 4539 (10th Dist. Nov. 8, 2016).
Despite the issue being pending in Manuel v. City of Joliet argued in SCOTUS Oct. 5, this court holds there is no Fourth Amendment malicious prosecution claim. Goodfellas, Inc. v. Dunkel, 2016 U.S. Dist. LEXIS 154977 (M.D.Pa. Nov. 8, 2016).* (But then Manuel is such a mundane and potentially boring case that it’s easy to overlook?)
Defendant pled guilty and appealed with defense counsel filing an Anders brief. Defendant filed a pro se brief arguing the search of his computer violated the Fourth Amendment. The guilty plea waived that issue. United States v. Pepke, 2016 U.S. App. LEXIS 20046 (4th Cir. Nov. 7, 2016).*
Posted inReasonable suspicion|Comments Off on OH10: The cargo area of a box truck couldn’t be searched on RS
“Relying on Brendlin and Johnson, the Fifth District in Aguilar [v. State, 199 So. 3d 920 (Fla. 5th DCA Apr. 1, 2016), rev. denied No. SC16-633, 2016 Fla. LEXIS 1336 (Fla. June 24, 2016)], concluded that an officer may, as a matter of course, detain a passenger during a lawful traffic stop without violating the passenger’s Fourth Amendment rights. … We concur fully with the well-reasoned opinion of the unanimous en banc court in Aguiar. We also, as the Fifth District did in Aguiar, certify conflict with the case of Wilson v. State, 734 So. 2d 1107 (Fla. 4th DCA 1999), cert. denied, 529 U.S. 1124, 120 S. Ct. 1996, 146 L. Ed. 2d 820 (2000), and its progeny.” Presley v. State, 2016 Fla. App. LEXIS 16647 (Fla. 1st DCA Nov. 9, 2016).
Defendant made a Franks challenge. Reviewing the affidavit for the search warrant, the court finds probable cause even discounting the challenged information. United States v. Watkins, 2016 U.S. Dist. LEXIS 153498 (W.D.Mo. Oct. 17, 2016),* adopted, 2016 U.S. Dist. LEXIS 153212 (W.D. Mo. Nov. 4, 2016).*
Defendant was seen with the obvious outline of a gun in his pocket, which he lied about possessing, and that was reasonable suspicion. Jacobs v. State, 2016 Ind. App. LEXIS 403 (Nov. 7, 2016).*
Posted inReasonable suspicion|Comments Off on FL1: Passenger can be ordered from car during stop, following FL5; conflict with FL1 certified
Posted inDrug or alcohol testing|Comments Off on MN: Misleading advice of implied consent rights and duties violated due process; Birchfield distinguished
"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.
