Defendant for all appearances was visiting the house searched but not an overnight guest. At any rate, he did nothing to show standing. When asked for consent, defendant refused saying it wasn’t his place, but he took the officers inside to show them what little marijuana there was. $16,500 in cash was found and seized and it was his. He didn’t sufficiently show standing to contest the search that led to the forfeiture. Summary judgment was properly granted for the state. Ex parte State (Okafor v. State), 2016 Ala. LEXIS 105 (Sept. 16, 2016).
Defendant’s stop 25 minutes after and a mile away from an incident was without reasonable suspicion. The call involved three men and two were in the stop and the direction of travel was mere conjecture. Commonwealth v. Warren, 2016 Mass. LEXIS 627 (Sept. 20, 2016).*
Posted inForfeiture, Reasonable suspicion, Standing|Comments Off on AL: Forfeiture claimant failed to show standing to contest the search that led to seizure of his cash
The narrative incentives here are clear—if you’re creating mass pulp entertainment, you want drama….But this need for incident and excitement fundamentally misrepresents the nature of policing in most communities, with very unfortunate consequences.
Posted inExcessive force|Comments Off on Quartz: Opinion: How America’s obsession with TV cop shows like “Law and Order SVU” enables police brutality in real life
An anonymous tip brought police to where defendant was, and their observations corroborated the tip sufficient to support reasonable suspicion. Furr v. State, 2016 Tex. Crim. App. LEXIS 1094 (Sept. 21, 2016) (dissent): Continue reading →
The case that set the standard on when police officers are justified in using excessive force is Graham v. Connor. But how that standard is applied needs deep consideration.
Posted inReasonable suspicion|Comments Off on Common Dreams: Does Fear of Black Men Satisfy the “Objective Reasonableness” Standard?
Statements from the owner of defendant’s house which made it into the search warrant application and were made after the alleged illegal entry by the police were an independent source. Thus, the motion judge properly denied the motion to suppress as to the warrant. Commonwealth v. Pearson, 2016 Mass. App. LEXIS 129 (Sept. 20, 2016).
Nervousness alone isn’t reasonable suspicion, and other factors here didn’t add up to reasonable suspicion on the totality. A state court decision after the trial court’s ruling applied Rodriguez and favors the defendant. On de novo review of the reasonable suspicion and reasonableness question, the court finds the trial court erred in not suppressing because the stop continued too long without reasonable suspicion. State v. Reed, 2016 N.C. App. LEXIS 964 (Sept. 20, 2016).*
Posted inIndependent source, Reasonable suspicion|Comments Off on MA: Def’s landlord’s statements were independent of any illegal entry, and they supported PC for SW
City’s bankruptcy stayed plaintiffs’ § 1983 Fourth Amendment case, but it still resulted in plaintiffs getting their injunctive relief from bankruptcy court. They are not without remedy. In re City of San Bernardino, 2016 U.S. Dist. LEXIS 127564 (C.D. Cal. Sept. 19, 2016).
Posted in§ 1983 / Bivens|Comments Off on C.D.Cal.: City’s bankruptcy stayed § 1983 case yet bankruptcy court granted injunctive relief
When drug paraphernalia is present and in plain view, detaining all present is not a detention for “mere presence.” Moreover, defendant stayed there. State v. Schmidt, 2016 ND 187, 2016 N.D. LEXIS 177 (Sept. 15, 2016).
Defendant’s stop on Ft. Bragg was without reasonable suspicion. Traffic officers knew that people frequently became lost in this area and GPS was misguiding them into the area. The fact defendant realized he was on a blocked road and turned around did not justify his stop. There was no erratic driving at all. United States v. Velazquez, 2016 U.S. Dist. LEXIS 125751 (E.D.N.C. Sept. 14, 2016).
The officers’ collective information passed on to the officer who stopped defendant made the stop with reasonable suspicion or probable cause. Therefore, when defendant denied consent and the officer pulled out the drug dog, it wasn’t unreasonable. United States v. Stokes, 2016 U.S. Dist. LEXIS 123267 (W.D.Ky. July 5, 2016), adopted, 2016 U.S. Dist. LEXIS 122826 (W.D. Ky. Sept. 9, 2016).
Ohio’s window tint law delegates to administrators to determine the degree of tint. Whether the law is unconstitutional or not, that doesn’t make the stop under the law unreasonable or unconstitutional. United States v. Torbert, 2016 U.S. Dist. LEXIS 125616 (S.D.Ohio Sept. 15, 2016): Continue reading →
Posted inExclusionary rule|Comments Off on S.D.Ohio: Whether Ohio window tint law is unconstitutional or not, that doesn’t make the stop unreasonable
The probable cause was for search of defendant’s trailer for evidence of conducting an illegal medical practice. Nothing in the affidavit supported search of defendant’s safe inside the trailer which was broken open and then a warrant was obtained to seize the contents. United States v. Vanthiel, 2016 U.S. Dist. LEXIS 124933 (D.Nev. Sept. 13, 2016).
Defendant’s 2255 search claim was essentially a relitigation of his original search claim with a new slant. United States v. Bailey, 2016 U.S. Dist. LEXIS 126387 (D.D.C. Sept. 14, 2016).*
Posted inIneffective assistance, Scope of search|Comments Off on D.Nev.: SW for def’s trailer for evidence of practicing medicine without a license didn’t support search of a safe
Trump proposes profiling and suspicionless searches like Isreal, knowing his base will support it because they won’t be the targets. Apparently he only believes in the Second Amendment because we know he hates the First and now the Fourth and Sixth Amendments.
In the same breath, he belittles NYPD for being afraid to even question or arrest terrorism suspects. Ironically, the U.S. FOP endorsed Trump last week. Yet, NYPD and NJ police were amazing in their speed in finding their suspect.
More alarming: Most voters don’t know or care. And I fear more terrorist attacks as a way to help elect Trump to keep us in fear. That’s not all of us.
Posted inUncategorized|Comments Off on Trump proposes profiling and stop and frisk based on race, opposes right to fair trial
An officer on patrol was running LPNs to see what he’d find. On defendant’s vehicle, a list a names came up, and the officer accidentally clicked on the wrong name resulting in defendant’s stop for an outstanding warrant that didn’t exist. Under Herring, the exclusionary rule wouldn’t be applied. “Assuming the stop to be improper, the trial court’s analysis of the facts through the lens of Herring is appropriate. Schneble’s errant click on the similar name of the wrong person does not reflect recurring or systemic negligence, wantonness, recklessness, or gross negligence. It is not the type of police misconduct the exclusionary rule is designed to deter.” Bowen v. Commonwealth, 2016 Ky. App. LEXIS 163 (Sept. 16, 2016).
Posted inExclusionary rule|Comments Off on KY: Click on wrong name on LPN reader screen same as erroneous warrant; exclusionary rule not applied because of mere negligence
Birchfield on remand: “We vacate our opinion affirming Birchfield’s conviction for refusal to submit to a chemical blood test to the extent it is inconsistent with Birchfield v. North Dakota. We remand to the district court with directions to allow Birchfield to withdraw his guilty plea and to dismiss with prejudice the charge of refusal to submit to a chemical test.” State v. Birchfield, 2016 ND 182, 2016 N.D. LEXIS 179 (Sept. 15, 2016).* Also a Birchfield GVR: State v. Harns, 2016 ND 184, 2016 N.D. LEXIS 186 (Sept. 15, 2016).*
Posted inDrug or alcohol testing|Comments Off on ND: Birchfield vacated and dismissed on remand
Defendant’s failure to produce his registration and proof of insurance during a traffic stop didn’t give the officer justification to search the center console for it himself. Thus, defense counsel was ineffective for not raising this issue. State v. Howl, 2016 N.M. App. LEXIS 82 (July 14, 2016).
Defendant called 911 because his girlfriend was in his house and unresponsive. Police pieced together that he had a penchant for using homemade chloroform to knock her out for sex while she was unconscious. Defendant consented to a search of the house. Officers could have recorded the consent but didn’t and there’s no legal requirement that they do so. He later admitted to another officer he consented. It was voluntary. A witness mentioned that defendant seemed to have a problem with “kiddie porn” in the past. The witness also mentioned the chloroforming and the police found evidence of that. That corroborated the hearsay as to the potential child pornography. The search warrant wasn’t overbroad as to the computers and electronic media to be searched. United States v. Baer, 2016 U.S. Dist. LEXIS 122424 (D.N.J. Sept. 9, 2016).*
Posted inAutomobile exception, Informant hearsay|Comments Off on NM: Driver’s failure to produce proof of registration and insurance doesn’t permit search of console
Defendant didn’t hold the PMB address for the packages being shipped to him, but he filed a declaration saying that they were for him, so he has standing. When the packages arrived for sorting, they were slightly delayed, but it was with reasonable suspicion they contained contraband. The delay was less than three hours, and that was reasonable. A dog alert on the packages was probable cause for a search warrant. United States v. Cruz, 2016 U.S. Dist. LEXIS 121773 (D.Guam Sept. 2, 2016).
The dashcam video doesn’t help, and the court concludes that defendant’s stop for following too close when passing cars was unjustified, so the motion to suppress is granted. Defendant admitted during the stop to be transporting an undocumented person from the border area to Phoenix. United States v. Ayala, 2016 U.S. Dist. LEXIS 122387 (D.Ariz. Sept. 9, 2016).*
Posted inDog sniff|Comments Off on D.Guam: Delay of packages with RS they contained drugs for 3 hours for dog sniff reasonable
“In addition, in getting near to Jackson, Det. Garcia could smell unburnt marijuana on his person. Under these facts, the Court concludes that Det. Garcia had probable cause to arrest Jackson.” United States v. Jackson, 2016 U.S. Dist. LEXIS 124091 (W.D.Mo. Aug. 10, 2016).
The things omitted from the affidavit were not knowing or even reckless, and they didn’t affect the probable cause finding so they weren’t material. United States v. Sells, 2016 U.S. Dist. LEXIS 121298 (N.D. W.Va. Aug. 18, 2016),* adopted, 2016 U.S. Dist. LEXIS 121474 (N.D. W.Va. Sept. 8, 2016).*
Posted inFranks doctrine, Probable cause|Comments Off on W.D.Mo.: Smell of raw marijuana on the person is PC for a search
Anonymous domestic violence call involving a gun was sufficient for the police to find it credible and respond. Corroboration isn’t the only way to make a call believable. The officers don’t have to see it to believe it, and the inherent nature of domestic violence and how it recurs here is enough for the stop. United States v. McCants, 2016 U.S. Dist. LEXIS 121157 (D.N.J. Sept. 7, 2016): Continue reading →
Posted inEmergency / exigency|Comments Off on D.N.J.: Anonymous DV call didn’t have to be corroborated to be relied upon by officer
"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.
