Defendant’s probation search was justified by his not staying where he was permitted to stay as shown by tracking and later his own admission that he fumbled in retracting. A new crime isn’t required. United States v. Willard, 2016 U.S. Dist. LEXIS 120853 (W.D. Mo. Aug. 22, 2016),* adopted, 2016 U.S. Dist. LEXIS 120979 (W.D. Mo. Sept. 7, 2016).*
The USMJ denied the motion to suppress but the government appealed for some reason [maybe looking for an alternative if appealed?]. At any rate, the R&R is adopted in full, and the government’s objections are overruled. United States v. Bissonette, 2016 U.S. Dist. LEXIS 120003 (D.S.D. May 2, 2016),* adopted, 2016 U.S. Dist. LEXIS 119709 (D.S.D. Sept. 6, 2016).*
Posted inProbation / Parole search|Comments Off on W.D.Mo.: Def’s probation search justified by his not staying at the approved residence
Thirty minutes total time from the stop until the dog sniff finished was reasonable in this case. By the time the dog was called for, only 18 minutes had elapsed, and 8 was used on the warning ticket. [Doing what, pray tell? How long does it take? 30 seconds?] The dog was a few miles away, and it arrived in 12 minutes. Nothing suggested that the officers were intentionally taking their time. United States v. Cook, 2016 U.S. Dist. LEXIS 122357 (M.D.Ala. Aug. 23, 2016), adopted, 2016 U.S. Dist. LEXIS 121930 (M.D. Ala. Sept. 9, 2016).
Posted inReasonable suspicion|Comments Off on M.D.Ala.: 20 minutes to write a warning (8 min) and wait for drug dog (12 min) was reasonable
A military search warrant for evidence of “attempted sexual abuse of a child, abusive sexual contact with a child and other offenses related” did not include child pornography. When child pornography was found, another warrant was required, and CID didn’t obtain one. Suppression order affirmed. United States v. Gurczynski, 2016 CCA LEXIS 541 (Army Ct.Crim.App. Sept. 6, 2016) (memorandum).
Defendant’s breath test was valid and the form wasn’t misleading or unconstitutional under Birchfield (decided after the briefs were filed). State v. Cornwell, 294 Neb. 799, 2016 Neb. LEXIS 136 (Sept. 16, 2016).*
Posted inMilitary searches, Scope of search|Comments Off on Army Ct.Crim.App.: SW for evidence of sex abuse on computer didn’t include child porn
High crime area at night, furtive and evasive movements, and nervousness when encountering the officer added up to reasonable suspicion. State v. Barnes, 2016 La. App. LEXIS 1669 (La.App. 1 Cir. Sept. 16, 2016): Continue reading →
Posted inReasonable suspicion|Comments Off on LA1: High crime area at night, furtive and evasive movements, and nervousness when encountering the officer was RS
There was an alleged domestic assault at defendant’s home. There was reason to believe the home security system and his cell phone would have evidence of it in an audio recording. He could also access the security system with his smartphone. “The warrant application sought authorization to seize and examine, as evidence of crimes ‘including but not limited to Assault,’ ][a]ll cell phones, computers, recorders and security systems owned or operated by [defendant].’ The application further sought authorization to examine such items for digital evidence, including ‘[g]raphic and movie files ***, which may be, or are, used to visually depict an assault taking place,’ as well as text files and ‘[c]orrespondence’ ‘pertaining to the crime of assault.’” In executing the search warrant, officers went into defendant’s gun safe because it was possible there were other cell phones, cameras, or computers in there. In there, marijuana was found, and defendant moved to suppress. The court found that there was no probable cause shown as to all the possible recording devices that defendant could have to justify their seizure and forensic analysis. State v. Friddle, 281 Ore. App. 130, 2016 Ore. App. LEXIS 1085 (Sept. 14, 2016).
Note: This case, albeit decided under the state constitution, will be valuable elsewhere. I regularly see affidavits for search warrants seeking wholesale seizure of home computers, cell phones, and security system DVRs without regard to there being any realistic possibility there is anything of evidentiary value on them. Yet, many police officers seek wholesale seizure of electronics just because they think they can.
Posted inCell phones, Overbreadth|Comments Off on OR: State didn’t show PC to seize all cell phones, cameras, and computers def might have to get one audio recording on his cell phone
Running a drug dog around a car before the ticket is finished being written is reasonable under Cabelles and Rodriguez. United States v. Smith, 2016 U.S. Dist. LEXIS 124158 (D.Utah Sept. 12, 2016).
Defendants raised a Fourth Amendment IAC claim. Since defendants would lose on the validity of the search because the entry into the house was clearly justified by exigent circumstances in pursuit of carjackers, the court doesn’t even have to consider ineffective assistance. United States v. Harris, 2016 U.S. Dist. LEXIS 122670 (E.D.La. Feb. 23, 2016).*
Another motion to suppress denied in a “Playpen” case under the good faith exception. United States v. Ammons, 2016 U.S. Dist. LEXIS 124503 (W.D.Ky. Sept. 14, 2016).*
Defendant’s stop was briefly extended for a drug dog, but about the only thing that remotely justifies it is the fact defendant’s criminal history came back considerably worse than defendant admitted to the officer when first asked. United States v. Petrakis, 2015 U.S. Dist. LEXIS 181193 (M.D.Fla. Dec. 14, 2015), adopted, 2016 U.S. Dist. LEXIS 125531 (M.D.Fla. Sept. 15, 2016).
In a business records search directed at defendant’s home, the fact business records would be there doesn’t naturally follow, but here the government had trash pulls that confirmed some business records would be there. All things considered, it was reasonable to include computers in the search warrant for records. United States v. Traum, 2016 U.S. Dist. LEXIS 123102 (S.D.Ohio Sept. 12, 2016).*
The mobility basis for the automobile exception has nothing to do with whether the officer watching would have been able to apprehend defendant if he suddenly appeared and tried to drive the motorcycle off. “Moreover, ‘[a] vehicle’s inherent mobility—not the probability that it might actually be set in motion—is the foundation of the automobile exception’s mobility rationale.’” Also, the automobile exception may apply to a vehicle parked in a private driveway. The dissent notes that this is not a search of a vehicle; it was a search of a tarp covering a vehicle, and that’s a big difference. Collins v. Commonwealth, 2016 Va. LEXIS 124 (Sept. 15, 2016).
Defense counsel was not ineffective for pursuing the motion to suppress on constitutional grounds rather than statutory grounds because he believed the constitutional argument was the only one with possible merits. It was a reasonable strategic choice. Benjegerdes v. State, 2016 Iowa App. LEXIS 940 (Sept. 14, 2016).*
Posted inAutomobile exception, Ineffective assistance|Comments Off on VA: Mobility for automobile exception doesn’t depend on fact def would be arrested as soon as he got on the motorcycle
“When the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court’s application of the law to the undisputed facts.” The state did not establish venue in Fulton County Georgia at the suppression hearing, but that’s irrelevant anyway. Venue is for the jurisdiction of trial, not motion to suppress. Also, defendant never raised the question of “venue” in his motion to suppress, so the state wasn’t on notice of it. Suppression reversed. State v. Wallace, 2016 Ga. App. LEXIS 510 (Sept. 15, 2016).
Defendant was suspected to be involved in drugs, and her car was seen in the early morning hours parked outside a house known to be occupied by another person involved in drugs. She left and he followed. Her brake light was out, and that resulted in a stop. The passenger was also known to be involved in drugs. After that was resolved, he asked for consent which was denied. He then said he had reasonable suspicion and he was calling for a drug dog. Her own history plus she “was riding with a passenger who had prior drug convictions and was believed to be a trafficker” was reasonable suspicion. State v. Snow, 2016 Iowa App. LEXIS 952 (Sept. 14, 2016).*
Posted inReasonable suspicion, Standards of review|Comments Off on GA: When evidence at suppression hearing is uncontroverted, whole suppression issue is reviewed de novo
A police officer encountered defendant at a trailer park and found out he was on parole. Defendant gave his PO’s name, and the officer called. The PO said that defendant has missed meetings and failed a drug test and they wanted him. There was probable cause for defendant’s arrest for his violation of parole based on the information from the PO to the officer. State v. Blattel, 2016 Iowa App. LEXIS 962 (Sept. 14, 2016).
Police received a call about an older model Chevrolet pickup truck wandering on the road. The officer got to the area and saw such a vehicle and followed observing it doing just that. That gave the officer reasonable suspicion for a stop for OWI. The court agrees with the district court that the motion to suppress wasn’t timely [but the appellate court got to the merits anyway]. State v. Hanson, 2016 Iowa App. LEXIS 947 (Sept. 14, 2016).*
Defendant relies on traffic stop cases, so it’s incumbent on her to show that at what point the consensual stop transformed into a stop governed by the Fourth Amendment requiring at least reasonable suspicion. State v. Marr, 2016 Mo. App. LEXIS 910 (Sept. 13, 2016).
“In this case, the evidence shows that Defendant was not initially detained. The encounter between the officers and Defendant was cordial and calm. Officers walked up the driveway to speak with Defendant. Though they were in tactical gear, their weapons were holstered. Additionally, the officers and Defendant were also quite familiar with one another, so much so that the officers knew Defendant’s nickname and Chief Deputy Simmons greeted him. Given the circumstances at that time, Defendant could have disregarded the officers and continued going about his business. Therefore, the initial encounter was consensual and Defendant was not detained then.” Circumstances evolved, however, and defendant was justifiably frisked. United States v. Pryor, 2016 U.S. Dist. LEXIS 122254 (W.D. Mo. July 5, 2016), adopted, 2016 U.S. Dist. LEXIS 121926 (W.D.Mo. Sept. 9, 2016).*
Posted inBurden of proof, Consent, Reasonable suspicion|Comments Off on MO: When def relies on traffic stop cases, she has to show when reasonable suspicion was required
Two stops of defendant towing a van a couple of minutes apart were separately justified. The second stop was based on the owner of the van saying that defendant took it from him, but that was only to a second officer on the scene, not the one who stopped defendant. After defendant pulled away, the second stop occurred, and it was based on new facts. Defendant consented to the officer looking at one receipt. Looking at the whole receipt book, however, exceeded the scope of consent, and that required reversal. State v. Monafo, 2016 N.M. App. LEXIS 75 (July 28, 2016).
Posted inConsent, Scope of search|Comments Off on NM: Consent to look at one receipt during a stop didn’t justify looking at any others
Defendant sought discovery to show that the San Clemente immigration checkpoint on I-5, sustained 40 years ago in Martinez-Fuerte, had also become a general crime control checkpoint, and the district court denied it. The Court of Appeals held that Rule 16 discovery requires the government to disclose information pertinent to searches and seizures. Reversed. United States v. Soto-Zuniga, 2016 U.S. App. LEXIS 16962 (9th Cir. Sept. 16, 2016): Continue reading →
Posted inBurden of proof, Immigration checkpoints|Comments Off on CA9: Defense entitled to discovery on whether San Clemente immigration checkpoint also now a general crime control checkpoint
“This case requires us to decide under what circumstances officers making a lawful arrest may seize a companion of the arrestee in the absence of reasonable suspicion to independently justify a Terry stop of the companion. We hold that where officers have an objective rationale predicated on safety concerns to seize a companion to secure the scene of the arrest, article I, section 7 of the Washington State Constitution allows for the seizure, so long as it remains reasonable in scope and duration. Based on this holding, we reverse the Court of Appeals and hold that evidence of the gun taken from Cody Flores during his brief seizure should not have been suppressed.” State v. Flores, 2016 Wash. LEXIS 1013 (Sept. 15, 2016) (decided under state constitution): Continue reading →
Posted inReasonableness, Stop and frisk|Comments Off on WA: Objective reasonable facts justified frisk of def when his companion was arrested
Posted inUncategorized|Comments Off on WaPo: The Watch: Your drug raid roundup: Family of 7 terrified by mistaken SWAT raid; Kentucky man who shot cop is out on bond; court tosses lawsuit over flashbang injury to bystander
Grubbs and its “sure course” analysis isn’t the only way to prove an anticipatory warrant. Probable cause and nexus are also enough. Taylor v. Commonwealth, 2016 Va. App. LEXIS 238 (Sept. 13, 2016): Continue reading →
Posted inAnticipatory warrant|Comments Off on VA: Grubbs and its “sure course” analysis isn’t the only way to prove an anticipatory warrant; PC and nexus also enough.
An overnight guest who left her cell phone at her host’s place did not lose her reasonable expectation of privacy in the phone. State v. Peoples, 2016 Ariz. LEXIS 228 (Sept. 12, 2016).
After a stop for a traffic offense, a request for a field sobriety test must be based on reasonable suspicion for that. State v. Hall, 2016-Ohio-5787, 2016 Ohio App. LEXIS 3664 (5th Dist. Sept. 12, 2016).*
The record supported the state’s claim that defendant consented to answering questions and was not stopped by the officer. State v. Richardson, 2016-Ohio-5801, 2016 Ohio App. LEXIS 3674 (10th Dist. Sept. 13, 2016).*
An officer received a report of a disorderly misdemeanor in progress and arrived to see part of it. While the facts were conflicting, there was still probable cause for the arrest. The law of citizen’s arrest is not so obvious that the officer violated it by taking custody of the plaintiff after a citizen’s arrest. Gilmore v. City of Minneapolis, 2016 U.S. App. LEXIS 16708 (8th Cir. Sept. 13, 2016): Continue reading →
While the SFPD continues its deployment of officer-worn body-cameras, the Oakland Police Department has had them for some time. Since 2009, to be precise. However, according to the Chronicle, that roughly seven-year headstart doesn’t mean OPD has the system down pat. In fact, a recent murder trial has revealed that the department accidentally deleted 25 percent of all the footage collected since the program began. Oops.
Posted inBody cameras|Comments Off on SFist: Oakland Police Say They Accidentally Deleted 25 Percent Of Their Body-Cam Archive
"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.
