Defendant’s car was upside down and there was blood on the passenger air bag. Nobody was there. The officer went to the house where the car was registered to find the driver and passenger. “Present in this case was a very badly damaged vehicle containing blood on the passenger side airbag with no occupants present at the scene. The address chosen to locate appellant was the address closest to the scene and in the same direction that the vehicle was headed. We find these facts justify further investigation at the Syler Road address in an attempt to locate a driver or passengers who could have been involved in the crash and injured. The knocking at the doors was clearly within the spectrum of an auto accident investigation with the issue of possible injury.” This didn’t violate the curtilage because of exigency and produced the smell of marijuana. State v. Doyle, 2016-Ohio-5742, 2016 Ohio App. LEXIS 3615 (5th Dist. Aug. 29, 2016).*
Officers had probable cause to believe there was a working meth lab in a car based on CI information and corroboration of that and other background information and defendant’s drug history. State v. Runyon, 2016-Ohio-5730, 2016 Ohio App. LEXIS 3638 (2d Dist. Sept. 9, 2016).*
Defendant argued that the officer’s use of “several firearms” cases in the affidavit for the search warrant was misleading under Franks. Since “several” means, essentially, more than one and not too many, and defendant’s priors aren’t yet firmly known, this isn’t false or misleading. The CIs were, inferentially, known to the officers in the affidavit for the search warrant, and the affidavit as a whole showed probable cause. “In addition, an informant who has a personal interest in another’s safety can be afforded heightened reliability, because ‘personal interest can create “a strong motive to supply accurate information.”’” United States v. Thomas, 2016 U.S. Dist. LEXIS 117892 (N.D.W.Va. Sept. 1, 2016).
Defense counsel did, in fact, move to suppress evidence and that issue lost on appeal. Rodriguez v. United States, 2016 U.S. Dist. LEXIS 117450 (E.D.Tex. Aug. 4, 2016),* adopted, COA denied, 2016 U.S. Dist. LEXIS 116663 (E.D. Tex. Aug. 30, 2016).*
“She also freely granted consent for the agents to review her cell phone information.” United States v. Stein, 2016 U.S. Dist. LEXIS 117573 (W.D.La. July 13, 2016),* adopted, 2016 U.S. Dist. LEXIS 116954 (W.D. La., Aug. 26, 2016).*
Posted inInformant hearsay|Comments Off on N.D.W.Va.: CI’s tale about another’s safety is entitled to greater weight
Because of defendant’s arrest, his probation officers had a great interest in searching his cell phone as a probation search. His arrest showed that he likely wasn’t complying with the law. United States v. Harding, 2016 U.S. Dist. LEXIS 119276 (N.D.Cal. Sept. 2, 2016).*
The police had knowledge of defendant using a cell phone to communicate, and that gave probable cause to believe that his phones had evidence of the crime on them. The good faith exception at least supports the search warrants. United States v. Benton, 2016 U.S. Dist. LEXIS 117412 (D.Alaska Aug. 19, 2016),* adopted, 2016 U.S. Dist. LEXIS 116341 (D. Alaska Aug. 30, 2016).*
In the abstract, the CI’s story wouldn’t have be reliable except that police listened to a telephone call between the CI and the defendant arranging a drug deal. https://www.appeals2.az.gov/Decisions/CR20150344Memo.pdf, 2016 Ariz. App. LEXIS 216 (Sept. 7, 2016)
Defendant’s consent was voluntary although she had just driven 24 hours straight and she was not informed that she could refuse consent, given her age, education, and the short questioning period. The traffic stop of defendants was not improperly prolonged given defendants’ dubious travel plans, their lack of luggage although they claimed to be moving, and their criminal histories of drug-related offenses. United States v. Calvetti, 2016 U.S. App. LEXIS 16496 (6th Cir. Sept. 8, 2016).*
Two officers testified that they smelled marijuana when they first approached defendant’s vehicle, and the court credits their testimony. United States v. Cissell, 2016 U.S. Dist. LEXIS 117248 (W.D.Ky. Aug. 31, 2016).*
Weaving justified the stop and then a plain view occurred. United States v. Freeman, 2016 U.S. Dist. LEXIS 117274 (D.Ore. Aug. 31, 2016).*
“[P]robable cause may be established by an officer’s uncorroborated observations alone, particularly where, as here, the officer’s observation of speeding is based partially on his decision to ‘pace’ a vehicle by matching the vehicle’s speed.” United States v. Williams, 2016 U.S. Dist. LEXIS 117744 (E.D.N.Y. July 20, 2016),* adopted, 2016 U.S. Dist. LEXIS 117530 (E.D.N.Y. Aug. 31, 2016).*
There is no reasonable expectation of privacy in IP addresses, but planting software on a computer to cause it to transmit its address is “unquestionably a search.” Recognizing the split of authority, Rule 41 was violated, but the court declines to suppress because of the good faith exception. United States v. Torres\, 2016 U.S. Dist. LEXIS 122086 (W.D.Tex. Sept. 9, 2016): Continue reading →
The trooper testified that defendant swerved within lanes, but it was not supported by the video and defendant wasn’t even cited for that. Thus, the motion to suppress should have been granted. City of Cleveland v. Shevchenko, 2016-Ohio-5711, 2016 Ohio App. LEXIS 3573 (8th Dist. Sept. 8, 2016).*
On the totality, there was reasonable suspicion for an immigration stop: “At the suppression hearing, the district court credited testimony from Border Patrol agents regarding the observations that led them to initiate the encounter with Nava-Maytorel. Specifically, the agents testified that Nava-Maytorel abruptly changed lanes upon passing a marked Border Patrol vehicle, and then pulled into a rest stop that the agents believed was a common staging area for smugglers. The agents further testified that Nava-Maytorel’s passenger appeared inordinately concerned about the presence of Border Patrol at the rest stop, and that, after parking and exiting his vehicle, Nava-Maytorel ‘flashed’ his immigration papers and stretched in a manner that appeared exaggerated. Finally, the agents testified that a records check indicated that Nava-Maytorel’s vehicle had crossed over from Mexico earlier that day.” United States v. Nava-Maytorel, 2016 U.S. App. LEXIS 16441 (9th Cir. Sept. 7, 2016).*
This “alcoholic beverage license inspection did not violate the Fourth Amendment because the ‘pervasively regulated industry’ exception to the warrant requirement applied.” S.C. Dep’t of Revenue v. Meenaxi, Inc., 2016 S.C. App. LEXIS 111 (Sept. 7, 2016).
Defendant did not have standing to contest gathering of cell phone information from another person’s cell phone. State v. Hawthorne, 2016 Tenn. Crim. App. LEXIS 670 (Sept. 7, 2016).*
The officer could contact the driver of a vehicle running with the brakes and backup lights on and the driver asleep or unconscious to see what was going on. State v. Conkin, 2016 Tenn. Crim. App. LEXIS 669 (Sept. 7, 2016).*
Posted inUncategorized|Comments Off on SC: ABC license inspection did not violate 4A because it’s a “pervasively regulated industry”
Two police cars driving at defendant in a Subway parking lot from different directions and stopping him was a stop. And, he was ordered to stop by an officer. State v. Edmonds, 2016 Conn. LEXIS 251 (Sept. 13, 2015) (concur; concur; dissent).
“The Court finds that a reasonable person would have felt free to decline Detective Garcia’s requests and terminate the encounter. Under Robinson, the facts of this case warrant a conclusion that the questioning of defendant and the search of his backpack constitute a consensual encounter that did not constitute a Terry stop. Prior to discovering the pills in defendant Penton’s backpack, Detective Garcia neither detained nor interrogated Penton.” United States v. Penton, 2016 U.S. Dist. LEXIS 115703 (W.D.Mo. July 26, 2016),* adopted, 2016 U.S. Dist. LEXIS 115194 (W.D. Mo. Aug. 29, 2016).*
Posted inConsent, Seizure, Stop and frisk|Comments Off on CT: Two police cars converging on def and telling him to stop was a seizure
“Reasonable cause” for production of taxpayer information from the IRS in a public corruption investigation is less than “probable cause.” USMJ denial of order overruled. In re United States for Taxpayer Return Information, 2016 U.S. Dist. LEXIS 119895 (E.D.Ky. Sept. 6, 2016): Continue reading →
Posted inProbable cause, Subpoenas / Nat'l Security Letters|Comments Off on E.D.Ky.: “Reasonable cause” for production of taxpayer information from the IRS in a public corruption investigation is less than PC
Defendant’s chicken coop with drugs inside was a fair distance from the house, but it was still within the curtilage. Applying all the Dunn factors, they favor defendant. It was inside a primary barbed wire fence and the contents weren’t visible. State v. Pierce, 2016 Mo. App. LEXIS 864 (Sept. 6, 2016): Continue reading →
Posted inCurtilage, Open fields|Comments Off on MO: Chicken coop inside barbed wire fence tho 100′ from house within curtilage
The inventory to be given to the person from whom stuff was seized has to be given, but a failure to comply doesn’t warrant suppression. It’s after the search so it doesn’t involve the right to be free from unreasonable search. State v. Downey, 2016 N.C. App. LEXIS 916 (Sept. 6, 2016).
There was probable cause for search of defendant’s address for evidence of multiple bank robberies because the car used was tied to that address and defendant gave that as his address. United States v. Moua, 2016 U.S. Dist. LEXIS 119376 (D.Minn. July 27, 2016),* adopted, 2016 U.S. Dist. LEXIS 119416 (D.Minn. Sept. 2, 2016).*
There was reasonable suspicion to use a dog on defendant’s car. He was driving at 1:30 am with his headlights off, the windows were overtinted, there was no license plate because he said he did not want to draw attention to himself. State v. Marino, 2016 MT 220, 2016 Mont. LEXIS 794 (Sept. 6, 2016).*
Initiated act litigation in Arkansas occurs in late August-September every even numbered year. Under Amendment 7 to the Arkansas Constitution, they are original actions in the Arkansas Supreme Court disposed of on super compressed schedules. The first one had the opening brief filed Tuesday. My response is due today at 5.
Not my best work. I’ve done plenty of briefs in 72 hours, but I had time to ponder and reflect long before writing. Here, the petitioners make their arguments for the first time Tuesday, and I get three days to answer. They get one business day (to Monday) to reply, and it is submitted Tuesday. Their lawyers are working on another case at the same time.
This year there are four initiatives and five cases filed, two against the Act I’m working on. The second probably jumps up Tuesday.
Posted inUncategorized|Comments Off on No cases for two days; initiated act litigation
WASHINGTON (CN) — An association of 75 private schools sued the District of Columbia for threatening to pull their licenses if they do not subject teachers to “random and suspicionless” drug and alcohol tests.
The Association of Independent Schools of Greater Washington, two teachers and The River School also sued the District’s State Superintendent of Education Hanseul Kang on Tuesday, in D.C. Federal Court.
They say the drug tests are unreasonable searches and seizures and the District’s policy is arbitrary and capricious.
Posted inDrug or alcohol testing|Comments Off on Courthouse News Service: Teachers Fight DC’s Random Drug Tests
If police think someone has child pornography on his computer, should investigators be able to force him to provide his passwords – or would that violate his constitutional rights against self-incrimination?
That issue was at the heart of an appellate hearing Wednesday in federal court in Philadelphia in the case of Francis Rawls, a former Philadelphia police sergeant, who has not been charged with a crime but who has been in custody for nearly a year in contempt of court for failing to unlock his encrypted electronic devices.
. . .
“Are you asking us to ignore the Fourth Amendment?” asked U.S. Court of Appeals Judge Thomas I. Vanaskie.
It was one of two amendments the judges regularly referenced during the hearing. The other was the Fifth Amendment, which Rawls’ attorneys believe protects his right to keep his passwords to himself.
Posted inComputer and cloud searches|Comments Off on Philly: Should ex-Philly cop suspected of sharing child porn be forced to divulge computer passwords?
That defendant was sweating and nervous was not reasonable suspicion for a parole search. United States v. Hopkins, 2016 U.S. Dist. LEXIS 117742 (N.D.Cal. Aug. 31, 2016).
The government’s surveillance supports the conclusion there was probable cause for the search warrant for defendant’s place. And, the good faith exception would apply. United States v. Smaller, 2016 U.S. Dist. LEXIS 115123 (E.D. Pa. Aug. 26, 2016).*
“The Court does not agree with Defendant that based on the facts in this case, probable cause was lacking for the search warrant. The information set forth in the affidavit itself was enough to support probable cause for the issuance of the search warrant. While Defendant may argue that this was a “bare bones” search warrant affidavit, it simply was not.” There were controlled buys and recordings. United States v. Lowery, 2016 U.S. Dist. LEXIS 116851 (D.S.C. Aug. 30, 2016).*
Probable cause did not become stale as defendant drove from Philadelphia to Erie with drugs. United States v. Andino, 2016 U.S. Dist. LEXIS 117097 (E.D.Pa. Aug. 31, 2016).
“The fifteen minute period between Defendant’s initial stop and the contested canine search was not unreasonably long given Officer Graham’s early formation of reasonable suspicion of criminal activity.” United States v. Bastardo-Villanueva, 2016 U.S. Dist. LEXIS 115480 (M.D.La. Aug. 29, 2016).*
Defendant consented to extending the stop until reasonable suspicion developed. United States v. Ramos, 2016 U.S. Dist. LEXIS 114230 (D.N.M. July 11, 2016).*
Defendant’s speeding stop led to finding he had a suspended DL and that led to a valid inventory of his car when he was arrested. United States v. Conaway, 2016 U.S. Dist. LEXIS 115779 (S.D.Ga. Aug. 29, 2016).*
Posted inReasonable suspicion, Staleness|Comments Off on E.D.Pa.: Probable cause did not become stale as defendant drove from Philadelphia to Erie with drugs
The fact the officer doing the inventory went back and looked again because he thought he missed something or value doesn’t prove that the inventory was unreasonable. United States v. Williams, 2016 U.S. Dist. LEXIS 117530 (E.D.N.Y. Aug. 31, 2016): Continue reading →
Posted inInventory|Comments Off on E.D.N.Y.: Fact officer went back and looked again doing inventory didn’t prove it was investigative
Defendant’s motion merely alleging he was subjected to a warrantless search is too general to mean a thing. United States v. Bostic, 2016 U.S. Dist. LEXIS 115636 (S.D.Ga. Aug. 29, 2016): Continue reading →
Posted inBurden of proof|Comments Off on S.D.Ga.: General motion to suppress inadequate and denied
"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.
