Defendant consented to a search of his car, but that did not permit a frisk of his person. On the totality here, the officer did not have reasonable suspicion for a frisk of defendant’s person. Objectively, he had a hunch or a bare suspicion without anything to link defendant to car break-ins. Sellman v. State, 2016 Md. LEXIS 563 (Aug. 24, 2016).
Identified CI said defendant parolee had a gun, and that was reasonable cause for a search. United States v. Noel, 2016 U.S. App. LEXIS 15857 (6th Cir. Aug. 24, 2016).*
Executing a daytime warrant at night violated clearly established law and was unreasonable and a violation of the Fourth Amendment. Jones v. Kirchner, 2016 U.S. App. LEXIS 15759 (D.C.Cir. Aug. 26, 2016). This warrant provided:
YOU ARE HEREBY COMMANDED to search … the … place named above … serving this warrant and making the search (in the daytime — 6:00 A.M. to 10:00 P.M.)(at any time in the day or night as I find reasonable cause has been established).
Search warrants must be issued on affidavits or recorded testimony. The issuing judge asked questions about the no-knock entry, and this was separate from probable cause finding. This did not have to be recorded. Besides, the judge denied the no-knock application, so where is the prejudice. As a whole, the affidavit shows the trash pull was the same date as the application, so there was no staleness issue. Jones v. State, 2016 Ark. App. 354, 2016 Ark. App. LEXIS 387 (Aug. 24, 2016).
Car with tool mark scratches around the door and missing VIN sticker on door frame required by federal regulations was reasonable suspicion. United States v. Wallace, 2016 U.S. Dist. LEXIS 106436 (S.D.N.Y. Aug. 11, 2016).*
Posted inKnock and announce, Reasonable suspicion, Warrant requirement|Comments Off on AR: While SW must be issued on affidavit or recorded testimony, questions about no-knock didn’t have to be recorded, especially when no-knock refused
The Federal Aviation Administration (FAA) is preparing for a swarm of drone applications when the first ever rule permitting small, routine drone flights goes into effect on Monday. The FAA said more than 3,000 people have already pre-registered to take the test required to fly unmanned aircraft systems (UAS) on the very first day, underscoring the pent-up demand for the emerging technology.
Posted inDrones|Comments Off on The Hill: Feds brace for new drone rules to take flight
Even if defendant’s stop violated the Fourth Amendment, his assault on the officer would not be suppressed. United States v. Jenkins, 2016 U.S. App. LEXIS 15539 (2d Cir. Aug. 24, 2016).
Defendant’s 2255 claim seems to be that the government planted evidence to get a search warrant to search his house, and a Franks hearing should have been held in the beginning. Relitigating the case is not the purpose of a 2255, and this is treated as defaulted. Mann v. United States, 2016 U.S. Dist. LEXIS 114647 (E.D.Ark. Aug. 26, 2016).*
Posted inIndependent source|Comments Off on CA2: Even if defendant’s stop violated the Fourth Amendment, his assault on the officer not suppressed
NYPD’s crime scene entry at the scene of a murder and protective sweep were all valid because of the exigency of the entry. Drug and other evidence was in plain view. [There are no facts talking about standing, or whether it was even an issue.] United States v. Lee, 2016 U.S. App. LEXIS 15542 (2d Cir. Aug. 24, 2016).
After the patrol car lights came on, defendant drove several blocks and made four turns before he stopped at a gas station. The traffic offense was reasonable suspicion, and the failure to stop only added to it. The patdown was reasonable and it produced a gun and body armor, and he was a convicted violent felon. [Defendant was acquitted of the gun, but not the body armor.] United States v. McPhaul, 2016 U.S. App. LEXIS 15826 (7th Cir. Aug. 26, 2016).*
The court declines to adopt horizontal collective knowledge since the V.I. Supreme Court has never addressed it. [It’s rationale, however, is likely at odds with Utah v. Strieff which likely was never briefed.] People v. Looby, 2016 V.I. LEXIS 114 (Aug. 22, 2016): Continue reading →
Posted inCollective knowledge|Comments Off on VI: The court declines to adopt horizontal collective knowledge
There was a consensual entry into a room, and a suspect fled. The officer gave chase and returned. Under state case law, that was essentially one continuous entry, and the second re-entry didn’t required a separate consent. Defendant, moreover, didn’t object to the re-entry. People v. Franklin, 2016 IL App (1st) 140049, 2016 Ill. App. LEXIS 568 (Aug. 24, 2016).
A group of youths started a ruckus in an Indianapolis Macy’s at 2 am on Black Friday 2015, one with a gun. It moved to the parking lot and the police had a description of the group. They saw them on the parking lot, and the stop was with reasonable suspicion. In Matter of J.J. v. State, 2016 Ind. App. LEXIS 310 (Aug. 24, 2016).*
Defendant’s stop in a theater lobby when he was sitting alone was without reasonable suspicion, and the gun found on him had to be suppressed. Pinner v. State, 2016 Ind. App. LEXIS 312 (Aug. 24, 2016).*
Posted inConsent, Reasonable suspicion|Comments Off on IL: Officer’s entry was consented to and a suspect fled with officer chasing; when he came back he re-entered, and it was treated as part of initial entry
Defendant was arrested based on an outdated warrant. State law prior to Herring likely would have provided relief, but the court is now bound by Herring and concludes that the exclusionary rule would not be applied. Yes, there was delay in updating the records, but it wasn’t negligent delay. “Thus, we find that because there was no evidence that the delay in updating Rolenc’s DMV record was the result of deliberate, reckless, or grossly negligent conduct or was the result of recurring or systemic negligence and because the marginal benefits that might be gained from suppressing the evidence obtained do not justify the substantial costs of exclusion, we affirm the order of the district court denying Rolenc’s motion to suppress.” State v. Rolenc, 24 Neb. App. 282, 2016 Neb. App. LEXIS 164 (Aug. 23, 2016).
Posted inExclusionary rule|Comments Off on NE follows Herring on no exclusion for slow updating of warrant database
An interstate bus traveling from Portland OR to Salt Lake City stopped in Boise. The bus driver was moving luggage around to straighten it up for the boarding passengers, and he smelled marijuana coming from a backpack. He called the police that he was going to search the backpack. The officer couldn’t smell the marijuana, but the driver opened the backpack with the officer looking. The bus driver had a common law power to open the suitcase in case there was anything dangerous on the bus. The police standing by and watching didn’t make this not a private search. State v. Breese, 2016 Ida. App. LEXIS 100 (Aug. 23, 2016): Continue reading →
Posted inCommon law, Private search|Comments Off on ID: Interstate bus driver’s opening backpack was private search even though officer was watching
“Appeal from a judgment of the United States District Court for the Southern District of New York (Forrest, J.), granting summary judgment to Defendants Appellees, the City of New York and various of its employees, on Plaintiff Appellant Hassan El Nahal’s 42 U.S.C. § 1983 claim that Defendants Appellees violated his Fourth Amendment rights by mandating the installation of tracking systems in taxicabs, thereby trespassing or physically intruding upon property for the purposes of gathering information. Because we find no genuine issue of material fact as to whether a trespass or physical intrusion occurred with respect to any property of El Nahal, we conclude that summary judgment was appropriate, and therefore AFFIRM the judgment of the district court.” He’s driven a cab in NYC for 20 years and he’s also essentially consented to GPS tracking of his taxicab, whether he rents it or owns it because it’s common knowledge among all NYC cab drivers. El Nahal v. Yassky, 2016 U.S. App. LEXIS 15767 (2d Cir. Aug. 26, 2016).
Posted inGPS / Tracking Data|Comments Off on CA2: NYC cab driver didn’t show standing to contest GPS tracking of a taxicab
In a sex assault case, the trial court did not have the authority to compel the state to search the complainant’s cell phone for voice mails and text messages for the defense as a part of discovery. It’s not the state’s job to seek out all potentially exculpatory evidence for the defense that it doesn’t already possess. Petition of State (State v. Lewandowski), 2016 N.H. LEXIS 187 (Aug. 23, 2016): Continue reading →
Posted inUncategorized|Comments Off on NH: Court can’t force state to search sex case complainant’s cell phone as discovery
Odor of marijuana, air fresheners, and window down when it was 25º was reasonable suspicion. State v. Hicks, 2016-Ohio-5439, 2016 Ohio App. LEXIS 3341 (2d Dist. Aug. 19, 2016).*
Plaintiff’s Fourth, Fifth, Eighth, and Fourteenth Amendment tort claims denied in U.S. District Court and affirmed by the Seventh Circuit were not within the jurisdiction of the Court of Federal Claims. Norington v. United States, 2016 U.S. Claims LEXIS 1180 (Aug. 23, 2016).*
Defendant would lose on the merits of the search claim defense counsel didn’t pursue, so there’s no prejudice. Murdock v. United States, 2016 U.S. Dist. LEXIS 111241 (D.Me. Aug. 22, 2016).*
Summary judgment properly denied for a police killing of an unarmed man who had been twice Tazered, the first time with a knife in his kitchen who then ran to his bathroom and was Tazered coming out then shot. The law is clearly established. Smith v. Lepage, 2016 U.S. App. LEXIS 15644 (11th Cir. Aug. 25, 2016).*
Doctor’s Fourth Amendment claim in larger suit against state medical board was barred by statute of limitations. Kernan v. N.C. Med. Bd., 2016 U.S. Dist. LEXIS 111190 (E.D.N.C. Aug. 19, 2016).*
State habeas petitioner’s search claims aren’t cognizable at all (Stone v. Powell). Lyles v. L.A. County Courts, 2016 U.S. Dist. LEXIS 113323 (C.D.Cal. Aug. 24, 2016).
Posted in§ 1983 / Bivens, Qualified immunity|Comments Off on CA11: Shooting unarmed man as excessive force is clearly established; summary judgment properly denied
Plaintiff made a wrong turn heading to summer camp and ended up on a bridge to Canada. He was allowed to turn around without leaving the country, but he could only get into a lane with motorists coming from Canada in line at Customs. He was searched at U.S. Customs and a misdemeanor quantity of marijuana was found, for which he pled to in state court getting youthful offender treatment. The search at the border was valid, and the fact he was given a card by the toll booth operator that he didn’t cross the border isn’t binding on CBP officers. The fact he didn’t cross into Canada doesn’t prohibit his search at U.S. Customs. D.E. v. John Doe I, 2016 U.S. App. LEXIS 15670 (6th Cir. Aug. 25, 2016): Continue reading →
Posted inBorder search|Comments Off on CA6: Turning around because of a wrong turn toward Canada doesn’t bar a border search coming back
The Seventh Circuit here dealt with a Fourth Amendment IAC claim. The court dealt with the Fourth Amendment merits, which was far easier, rather than get into the complexity of Stone v. Powell deterrence issue under a § 2254 claim. (And, considering the ultimate simplicity of the Fourth Amendment claim, why even talk about it?) Here, the inevitability discovery exception hardly applies to a search warrant for a DNA blood draw. Sutton v. Pfister, 2016 U.S. App. LEXIS 15589 (7th Cir. Aug. 24, 2016): Continue reading →
Posted inInevitable discovery|Comments Off on CA7: Inevitable discovery doesn’t apply to DNA blood draw [via a habeas appeal]
Defendant was raving and running around naked on PCP “and was exhibiting bizarre and erratic behavior” and his front door was left open. There were children in the house, and the police were permitted under the emergency aid exception to make an entry, and drugs were in plain view and wouldn’t be suppressed. United States v. Kelly, 2016 U.S. Dist. LEXIS 104544 (W.D.Mo. July 19, 2016), adopted, 2016 U.S. Dist. LEXIS 104542 (W.D. Mo. Aug. 9, 2016): Continue reading →
Posted inEmergency / exigency|Comments Off on W.D.Mo.: Def running around naked on street on PCP and kids in house justified emergency
A dog sniff during the normal incidents of a traffic stop isn’t unreasonable. An arrest outside of an officer’s jurisdiction in violation of statute also thus violates the state constitution but not the Fourth Amendment. State v. Duran, 2016-Ohio-5459, 2016 Ohio App. LEXIS 3353 (9th Dist. Aug. 22, 2016): Continue reading →
Admitting to the violation of probation is a waiver of any suppression issue. Thompson v. State, 2016 Del. LEXIS 441 (Aug. 19, 2016).
The fact that defendant matched the description of a suspicious person reported to the police, was in the location reported, and was clearly providing false information was all reasonable suspicion. State v. Mercier, 2016 ND 160, 2016 N.D. LEXIS 164 (Aug. 17, 2016).*
"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.
