The dashcam video doesn’t support the state’s contention defendant was weaving before the stop, and there is no abuse of discretion in the trial court’s findings suppressing the stop for a “welfare check” that led to a DUI arrest. State v. Bernard, 2016 Tex. App. LEXIS 12018 (Tex. App. – Houston (14th Dist.) Nov. 8, 2016).*
There was cause for defendant’s stop for a traffic offense, and then defendant fled. “Calmese’s subsequent flight from police provided further justification for his detention.” United States v. Calmese, 2016 U.S. Dist. LEXIS 152769 (E.D.Mo. Oct. 7, 2016),* adopted, 2016 U.S. Dist. LEXIS 151063 (E.D. Mo. Nov. 1, 2016).*
“Even taking defendant’s version of the facts into account, when the ‘entire, tightly forged chain of circumstances’ is considered, there is sufficient evidence to establish probable cause for the arrest. See Maguire, 918 F.2d at 258. A number of events support such a finding.” United States v. Rachal, 2016 U.S. Dist. LEXIS 153386 (D.Mass. Nov. 3, 2016).*
Posted inProbable cause, Reasonable suspicion|Comments Off on TX14: Dashcam video didn’t support officer’s version and appellate court won’t reverse suppression order
A key fob in one’s pocket, common today, is not reasonable suspicion defendant was driving a nearby stolen car. The seizure was suppressed. United States v. Craddock, 2016 U.S. App. LEXIS 20118 (8th Cir. Nov. 8, 2016): Continue reading →
Posted inPlain view, feel, smell, Stop and frisk|Comments Off on CA8: Key fob in pocket, common today, is not RS def was driving a nearby stolen car
Defendant’s counsel wasn’t ineffective: “This Court unequivocally finds that Defendant manifested a deliberate abandonment to any interest in his neighbor’s shed. Counsel was not ineffective by tactically defending the charge by highlighting the absence of positive evidence tying Defendant to the neighbor’s shed. A motion to suppress would not have changed the outcome, as it simply would not have succeeded on this record.” United States v. Birrueta, 2016 U.S. Dist. LEXIS 153555 (E.D.Wash. Nov. 4, 2016).*
“Here, at time that he pulled Lombard’s truck over, Officer Shock also had a reasonable suspicion that Lombard was involved in narcotics trafficking” based on information collected before the traffic stop. United States v. Lombard, 2016 U.S. Dist. LEXIS 152489 (E.D.Mich. Nov. 3, 2016).*
Defendant’s Franks challenge rejected: “Moreover, whether Defendant possessed one firearm or multiple firearms is immaterial to the probable cause determination, because possession of a firearm by a felon is a crime.” This is not a “substantial preliminary showing” required by Franks. United States v. Bell, 2016 U.S. Dist. LEXIS 153135 (C.D.Ill. Nov. 4, 2016).*
Posted inFranks doctrine, Ineffective assistance, Reasonable suspicion|Comments Off on E.D.Wash.: Defending on lack of connection to property was best course; no IAC for lack of standing, and if motion made it would have lost on merits, too
A top to bottom search of plaintiff’s home by the D.C. bomb squad hours into a “situation” at his home (actually based on a mistake) wasn’t remotely justified by exigent circumstances. Moreover, qualified immunity doesn’t apply (2-1 on this issue) because the exigent circumstance standard is well settled. Corrigan v. D.C., 2016 U.S. App. LEXIS 20108 (D.C.Cir. Nov. 8, 2016).
The issue of whether the government had an independent source for the search remains and is contested, and a hearing will be held to resolve it. United States v. Williams, 2016 U.S. Dist. LEXIS 149888 (W.D.N.Y. Oct. 26, 2016).*
Because of the preference for warrants and the requirement that all doubts be resolved in favor of the validity of the search warrant to encourage the use of search warrant, this one passes muster. Moreover, the good faith exception applies. United States v. Sanders, 2016 U.S. Dist. LEXIS 150634 (N.D.Fla. Oct. 31, 2016).*
Defendant disavowed control over a bedroom in the single family home he lived in, and he had standing in the house as a whole and thus standing to challenge seizure of the gun found in that bedroom. The police here had a reasonable belief from defendant’s girlfriend who called 911 on him for domestic assault and she let the police in. United States v. Cross, 2016 U.S. Dist. LEXIS 153052 (N.D.Iowa Nov. 4, 2016)*: Continue reading →
Posted inApparent authority, Standing|Comments Off on N.D.Iowa: Def’s GF who shared home who called police on him had apparent authority to consent
An admission defendant had marijuana in the trunk didn’t require the officer to check into whether defendant had a prescription for it. United States v. Robbins, 2016 U.S. Dist. LEXIS 153558 (S.D.Cal. Nov. 3, 2016).
Defense counsel did, in fact, litigate the legality of defendant’s arrest before trial and on appeal, and he’s here apparently just trying to relitigate what he’s already lost. Kelly v. United States, 2016 U.S. Dist. LEXIS 150403 (E.D.Tenn. Oct. 31, 2016).*
A checkpoint at San Clemente was reasonably set up, and defendant’s consent to the dog sniff was found voluntary. United States v. Marin-Campos, 2016 U.S. Dist. LEXIS 149313 (S.D.Cal. Oct. 27, 2016).*
“Defendant’s identity was not relevant to reasonable suspicion that he committed an assault, since the witnesses who reported the assault did not know his identity and therefore could not report it to Captain Root. Captain Root had only a physical description of the alleged perpetrator, which Defendant matched. Officers are not required to completely confirm reasonable suspicions before they may perform an investigative stop — only to possess a suspicion that is reasonable.” There was reasonable suspicion for defendant’s frisk for officer safety when defendant was encountered in the building. United States v. McDaniel, 2016 U.S. Dist. LEXIS 151782 (N.D.W.Va. Oct. 20, 2016),* adopted, 2016 U.S. Dist. LEXIS 151780 (N.D. W.Va. Nov. 2, 2016).
The court does not credit the officer’s testimony on reasonable suspicion. “Nonetheless, the Court is left with the conclusion that the Government did not prove that Franczek observed the baggy of cocaine before he opened Hayes’s car door, and thus there was no reasonable suspicion justifying Hayes’ seizure. That Hayes subsequently obstructed the officers trying to handcuff him is of no moment, because he could lawfully resist an unlawful arrest, … and the detention was not warranted because it was not supported by reasonable suspicion.” United States v. Hayes, 2016 U.S. Dist. LEXIS 149020 (N.D.Ga. Oct. 6, 2016).*
Posted inArrest or entry on arrest, Reasonable suspicion, Stop and frisk|Comments Off on N.D.W.Va.: “Officers are not required to completely confirm reasonable suspicions before they may perform an investigative stop — only to possess a suspicion that is reasonable.”
Scanning text messages on a cell phone at the border was reasonable. This wasn’t a full search, and this was just a “non-forensic scan” of the phone and not a “searching inquiry.” This led, however, to a search warrant which was not overbroad merely by including a “tending to show” phrase. Finally, a search protocol was not required. United States v. Leininger, 2016 U.S. Dist. LEXIS 152094 (S.D.Cal. Nov. 2, 2016): Continue reading →
Posted inBorder search, Overbreadth|Comments Off on S.D.Cal.: SW which was not overbroad merely by including a “tending to show” phrase
Defendant’s sister still had apparent authority to consent to search of his storage unit even though she didn’t know the access codes and she’d never been there. After inquiry by the police, it was reasonable for them to believe that she actually did have apparent authority because she had keys to the storage units. United States v. Montoya, 2016 U.S. Dist. LEXIS 152828 (D.N.M. Nov. 2, 2016).
After a series of text messages, there was probable cause to arrest defendant for possession of heroin when he arrived in the Chicago area from Austin. Officers had also listed some of the calls made by a CI. Thus, the search of his car was valid under the automobile exception. United States v. Quintana, 2016 U.S. Dist. LEXIS 148603 (N.D.Ill. Oct. 27, 2016).*
Posted inApparent authority, Probable cause|Comments Off on D.N.M.: Def’s sister had keys to his storage units, and inquiry by the police led them to reasonably believe she had apparent authority
Officers surveilled defendant’s house for several hours, and finally they entered. The mere possibility of destruction of evidence isn’t exigency. Here, however, other officers and an AUSA were in the process of working on a search warrant, and that had an independent source. United States v. Montoya-Pena, 2016 U.S. Dist. LEXIS 152445 (N.D.Ill. Nov. 3, 2016). Continue reading →
Posted inEmergency / exigency, Independent source|Comments Off on N.D.Ill.: Mere possibility of destruction of evidence in a house under surveillance isn’t exigency; more required
Defendant was with another hiding in the bushes by a pre-school really near the border. Also, sensors had gone off showing that there were people there. When officers showed up, they started walking. When stopped, they were nervous and fidgety and their answers to questions were suspicious. The stop was lawful. United States v. Corral-Cinco, 2016 U.S. Dist. LEXIS 151227 (D.Ariz. Sept. 6, 2016),* adopted, 2016 U.S. Dist. LEXIS 151228 (D. Ariz. Oct. 31, 2016).*
Defendant was in custody at the time he consented, but that doesn’t make the consent involuntary. United States v. Calmese, 2016 U.S. Dist. LEXIS 151063 (E.D.Mo. Nov. 1, 2016).*
Posted inConsent, Reasonable suspicion|Comments Off on D.Ariz.: Hiding in the bushes near a pre-school near the Mexico border justified stop
Defendant was a suspect in killing protected birds, and wildlife officers obtained a search warrant for his house seeking dead raptors, devices to capture or trap them, records, pictures, emails, documents, audio and video relating to firearms, and “[a]ny and all records relating to the take of raptors, including receipts, emails, shipping documents, personal correspondences, pictures, certificates, and other documents, video and, audio recordings relating to such raptors.” The warrant did not permit search and seizure of the contents of his home security system, and the good faith exception does not apply. United States v. Henderson, 2016 U.S. Dist. LEXIS 151375 (N.D.Cal. Nov. 1, 2016) (USMJ R&R).
Note: If there is a home security video system, and one can buy them at, for example, Wal-Mart, Sam’s, and Office Depot for less than $250, the police will seize it and search it. I’ve seen this repeatedly in my practice, and the police seldom bother to get a separate warrant for the DVR. It is, essentially, a computer, and one cannot argue there is no reasonable expectation of privacy in it.
Posted inComputer and cloud searches|Comments Off on N.D.Cal.: SW for dead protected birds and records at house didn’t include searching the home security DVR
The affidavit for defendant’s cell phone in this drug case showed probable cause to search it [without a word about the phone and the crime]. Glispie v. State, 2016 Ga. LEXIS 736 (Nov. 7, 2016): Continue reading →
Posted inCell phones|Comments Off on Can a SW issue for a cell phone in any drug case? We’re just about there because so many cases assume there is PC in such cases. This one Georgia
The police had information that armed robbers were communicating on Facebook about their plans. The affidavit of probable cause as to this defendant’s Facebook account was thin, but it was similar to that of the other defendants and it still barely showed probable cause. And it was not so bare bones that the good faith exception should apply. United States v. Chambers, 2016 U.S. Dist. LEXIS 149047 (E.D. Wis. Sept. 14, 2016),* adopted, 2016 U.S. Dist. LEXIS 149050 (E.D. Wis. Oct. 26, 2016).*
Assuming the police entry into defendant’s apartment was unlawful, the later search warrant was fully based on other information which showed probable cause and this was a valid independent source. United States v. Mack, 2016 U.S. App. LEXIS 19900 (11th Cir. Nov. 4, 2016).*
CSLI warrant upheld: “ The cell site data obtained by the government is admissible because the government’s actions did not constitute a ‘search’ falling under the protection of the Fourth Amendment. Even if the government had violated the Fourth Amendment, its good faith reliance on binding appellate precedent and a search warrant would make suppression of the data inappropriate.” United States v. Moore, 2016 U.S. Dist. LEXIS 149199 (E.D.Pa. Oct. 27, 2016).*
2255 petitioner’s claim that defense counsel didn’t properly attack credibility of the officer about reasonable suspicion fails. Counsel’s witness examination was “persistent” and adequate, and “Because the tape could not do what Reidy claims it does, and because counsel did ensure that Judge Ostby and the appellate court viewed it, he does not show that counsel’s performance was unreasonable.” United States v. Reidy, 2016 U.S. Dist. LEXIS 147887 (D.Mont. Oct. 24, 2016).*
The affidavit for the search warrant for defendant’s car failed to show nexus to the crime under investigation, but it wasn’t “bare bones” so the court applies the good faith exception to sustain it. United States v. Fletcher, 2016 U.S. Dist. LEXIS 148630 (E.D.Mich. Oct. 27, 2016).
A justifiable delay of eight minutes occurred during defendant’s stop waiting for dispatch to send a picture of the person matching the identifiers of the driver when the information NCIC returned said he had likely been previously deported for an aggravated felony and was involved in gang activity in Houston. For probable cause to exist, the officers don’t have to know whether defendant had reapplied to the Attorney General for readmission into the U.S. [something highly unlikely in any event]. United States v. Jimenez-Delatorre, 2016 U.S. Dist. LEXIS 142699 (D.Kan. Oct. 14, 2016).*
Posted inNexus, Reasonable suspicion|Comments Off on E.D.Mich.: Affidavit failed to show nexus but it wasn’t bare bones, so GFE applies
The fact the affidavit had the address but no city and county doesn’t violate the particularity requirement. Yes, it would have been better to have done so, but the officers still could find the place they were looking for, so there is no lack of particularity. Even if the court credited defendant’s claim that there was a Franks issue, removing that information from the affidavit still left probable cause, so there’s no relief for that. United States v. Hughes, 2016 U.S. Dist. LEXIS 148666 (M.D.Ala. Oct. 27, 2016).
Officers had probable cause for defendant’s stop. “Here, through 911 calls and developing information from witnesses, the officers established that a white GMC Yukon or ‘Yukon -like’ vehicle with distinguishing halogen headlights left the scene of a homicide. The first call to police came at about 10:05 PM. Only about 15 minutes later, Gilbert spotted a vehicle matching the available description; he saw the vehicle in a place where the fleeing vehicle reasonably could have been about 15 minutes after the first call to police.” United States v. Dalmau, 2016 U.S. Dist. LEXIS 140715 (W.D.N.Y. Oct. 11, 2016).*
Another Playpen warrant upheld. United States v. Dzwonczyk, 2016 U.S. Dist. LEXIS 141297 (D.Neb. Oct. 5, 2016),* adopted, 2016 U.S. Dist. LEXIS 178020 (D.Neb. Dec. 23, 2016).*
Posted inParticularity, Probable cause|Comments Off on M.D.Ala.: Omission of city and county from address in SW wasn’t fatal where place to be searched was still apparent
Nexus can be proved by inference or direct observation. Defendant was found in his car with weapons as a FIPF in rival gang territory when he was arrested, and it’s a reasonable inference the cell phone in the car would have pertinent evidence linking him to the potential retaliation. United States v. Kendricks, 2016 U.S. Dist. LEXIS 142027 (N.D.Ga. Aug. 22, 2016), adopted, 2016 U.S. Dist. LEXIS 142027 (N.D.Ga. Oct. 13, 2016): Continue reading →
Posted inCell phones, Nexus|Comments Off on N.D.Ga.: Nexus shown to connect def’s cell phone in car to potential gang retaliation
A dog sniff during a routine traffic stop was unreasonable because it extended the stop. Under state case law, the dog sniff had to have some relation to the purpose of the stop or reasonable suspicion developed, and here there was none. Lane v. Commonwealth, 2016 Ky. App. LEXIS 184 (Nov. 4, 2016): Continue reading →
Posted inDog sniff, Reasonable suspicion|Comments Off on KY: Dog sniff during routine traffic stop was unreasonable without RS
"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.
