A search warrant was issued for defendant for possession of a stolen motor vehicle. It was a valid consideration in the showing of probable cause that defendant had four priors for the same crime. State v. Newsted, 279 Ore. App. 701, 2016 Ore. App. LEXIS 944 (July 27, 2016).
There was probable cause for issuance of the search warrants in this case, and the issuing court didn’t err in considering a 2012 drug conviction as part of the totality. “We do not view each piece of information in isolation; rather, we look at the totality of the circumstances as contained in the warrant applications.” State v. Stephens, 2016 Iowa App. LEXIS 751 (July 27, 2016).
Posted inProbable cause|Comments Off on OR: Def’s prior similar crimes are valid consideration of PC on totality
Defendant was convicted of murder by child abuse. The only relation of a computer was his admission that he used a computer to search for symptoms when the child was sick 15 minutes before his 911 call. When the computer was searched under a warrant, the entire browser history was examined and there were suggestively incriminating things found as far back as two months earlier. The search warrant here was constitutionally overbroad and permitted a general rummaging in the computer files. It should have been limited to the 15 minute period that brought about the search in the first place because that was the probable cause. Constitutionally, a computer search is more of a “place” to be searched rather than a “thing” to be seized. The “failure to identify with sufficient specificity the place to be searched or the items to be seized and examined can sanction invasions of protected privacy unsupported by probable cause.” State v. Mansor, 279 Ore. App. 778, 2016 Ore. App. LEXIS 952 (July 27, 2016): Continue reading →
Posted inComputer and cloud searches, Overbreadth, Particularity|Comments Off on OR: Search of computer’s browser history limited to the PC; here, 15 minutes, not two months; a computer is more of a “place to be searched” rather than a “thing to be seized”
Defendant signed a general consent for his bedroom, but the police told him they were only looking for a stolen cell phone. After they found the cell phone, they started searching his dresser drawers and found cocaine. The search exceeded the scope of consent, and it is suppressed. Colas v. State, 2016 Fla. App. LEXIS 11437 (Fla. 4th DCA July 27, 2016).
In defendant’s plea colloquy he admitted that he consented to the search of his person that produced the evidence. Now he claims he didn’t. It was reasonable for defense counsel to conclude that a motion to suppress would not have been granted on the information that he had. Simmons v. United States, 2016 U.S. Dist. LEXIS 97190 (M.D.N.C. July 26, 2016).*
Posted inConsent, Ineffective assistance, Scope of search|Comments Off on FL3: Consent to search bedroom was solely for cell phone; search of dresser after phone was found suppressed
Cell phones are the “private affairs” of Washingtonians under their state constitution, merely stating the obvious, but they can be abandoned like anything else, and the court declines to adopt a cell phone exception to abandonment. State v. Samalia, 2016 Wash. LEXIS 837 (July 28, 2016): Continue reading →
Posted inAbandonment, Cell phones|Comments Off on WA: While cell phones are certainly “private affairs,” there’s no special abandonment rule for cell phones
Defendant was arrested at a hotel, and his stuff was arranged to be left with the hotel until he could get it, except for a bag that the police were curious about. “As part of the booking process, LaPlante opened the bag and removed its contents, which included several rolls of cash amounting to over $7,000, small plastic bags containing cocaine, and approximately 500 Percocet pills.” Mere curiosity about the bag isn’t a reason to seize it without more. Commonwealth v. Abdullah, 2016 Mass. LEXIS 584 (July 28, 2016): Continue reading →
Posted inSearch incident|Comments Off on MA: Seizing a bag during arrest at a hotel out of mere curiosity unreasonable
While one officer wrote out a warning for a window tint violation, another asked for consent to search and was refused. While the normal routine of the warning citation was being followed, another officer ran a drug dog around the vehicle. This did not violate either the Fourth Amendment or the state constitution because it didn’t extend the stop. Doctor v. State, 2016 Ind. App. LEXIS 261 (July 26, 2016).
The video of defendant’s driving supports the officer’s reasonable suspicion that he was wandering in his lane and crossed the fog line. State v. Williams, 2016 Tenn. Crim. App. LEXIS 547 (July 26, 2016).* Same, except yellow line. State v. Bell, 2016 Tenn. Crim. App. LEXIS 539 (July 25, 2016).*
Posted inDog sniff, Reasonable suspicion|Comments Off on IN: Essentially: police may use a drug dog during any traffic stop if they don’t extend it by the sniff
Police responded to a disturbance call and heard a fight going on inside. The door was unlocked and they entered. They separated the combatants, and then the wife of the non-aggressor entered the room and sat down, too. They decided to do a protective sweep and found somebody uninvolved in the back of the house and a meth lab. The protective sweep was unjustified by finding merely a glass pipe on the aggressor. People v. Harris, 2016 NY Slip Op 05670, 2016 N.Y. App. Div. LEXIS 5531 (3d Dept. July 28, 2016): Continue reading →
Posted inProtective sweep|Comments Off on NY3: Fight in one room didn’t justify protective sweep of back rooms
The good faith exception applied to validate dog sniffs based on law at the time saying that a sniff at defendant’s garage wasn’t an invasion of the curtilage back then. The search was 2008 and Jardines was 2013. The deterrent purposes of the exclusionary rule do not remotely apply. United States v. Holley, 2016 U.S. App. LEXIS 13697 (5th Cir. July 27, 2016): Continue reading →
Posted inCurtilage, Good faith exception|Comments Off on CA5: Pre-Jardines dog sniff at garage was valid at time under case law; GFE applies
There clearly was probable cause drugs, money, and firearms would be found at the place searched. “The affidavit provided the statements of a confidential source who specifically described drug trafficking activities there. These statements included the CS’s very recent eyewitness observation of drugs, drug trafficking equipment, weapons, and large sums of US currency inside the premises. The affidavit also included the detectives’ own [recent] eyewitness observations …, of four apparent drug transactions relating to 7200 Virginia.” United States v. Brown, 2016 U.S. Dist. LEXIS 95888 (E.D.Mo. July 8, 2016),* adopted, 2016 U.S. Dist. LEXIS 95782 (W.D. Mo. July 22, 2016).*
Applying the fifth factors of consent in this circuit, defendant clearly consented to entry into his house and talking to him. United States v. Waguespack, 2016 U.S. Dist. LEXIS 96874 (S.D.Cal. July 22, 2016).*
Posted inConsent, Informant hearsay|Comments Off on W.D.Mo.: Officers’ own observations corroborated CI’s
Defendant was in a friend’s apartment smoking pot when the complex’s security guards came to a noise complaint. Defendant was on a no-trespassing list and he was handcuffed and searched. Defendant had no standing in the pot in the apartment. He did have standing to challenge the search of his own person, but the court finds that the security guards were acting entirely on their own and not as agents of the state. “Additionally, there is no evidence that Boyd detained and searched Williams with the intent of assisting law enforcement officers in their investigative efforts.” United States v. Williams, 2016 U.S. Dist. LEXIS 97365 (W.D.Tenn. June 24, 2016).*
Defendant’s shotgun was protruding from his backpack. It was obvious, and it wasn’t an inventory to find it. United States v. Castaneda, 2016 U.S. Dist. LEXIS 95896 (D.Ariz. July 22, 2016).*
Posted inPlain view, feel, smell, Private search|Comments Off on W.D.Tenn.: Apt complex private security detained and searched def for trespass, and it was a private search
“[T]he affidavit only needs to show a ‘nexus’ between the place to be searched and the evidence sought. [¶] A common-sense reading of the affidavit leads to the conclusion that there is a nexus between the residence and the evidence of ‘any illegal narcotics and drug paraphernalia.’” Two controlled buys provided that. United States v. Davison, 2016 U.S. Dist. LEXIS 96553 (N.D.Ohio July 25, 2016).*
Yet again, and for the upteenth time, the Court of Federal Claims holds that the Fourth Amendment is not a “money mandating” provision, and it thus lacks jurisdiction. Johnson v. United States, 2016 U.S. Claims LEXIS 1021 (July 26, 2016).*
Posted inNexus|Comments Off on N.D.Ohio: Nexus to house shown by controlled buys
It was apparent from the video that the officer slow walked the citation to give more time to the drug dog to get there and do its job. Selective muting of the audio at the time by the officer also adds to the court’s suspicion of the entire process. United States v. Cornejo, 2016 U.S. Dist. LEXIS 96229 (E.D.Cal. July 21, 2016): Continue reading →
Posted inReasonable suspicion|Comments Off on E.D.Cal.: Dashcam video showed officer slow walked the citation to add time for the drug dog; no RS for the delay
A new law in Illinois works to protect citizens of that state from being subjected to electronic surveillance that violates their right to be free from unreasonable searches on the part of government. The statute also serves to restrict the capacity of the federal government to extend the borders of the federal surveillance state within the sovereign borders of Illinois.
Governor Bruce Rauner signed the bill outlawing the use of “Stingray” tracking devices used to monitor and record the location of phones and record critical electronic data of cellphone users, all of which is typically done without a warrant, in direct violation of the rights protected by the Fourth Amendment.
Defendant’s stop was valid, and so was the ultimate inventory of the car under Bertine. Defendant was in the back of a police car, and he called his grandfather and the audio was picked up on the dashcam video where he admitted to a gun in the car. He had no reasonable expectation of privacy in the backseat of the car. United States v. Gladstone, 2016 U.S. Dist. LEXIS 95243 (E.D.Tex. June 29, 2016), adopted, 2016 U.S. Dist. LEXIS 94724 (E.D. Tex. July 20, 2016): Continue reading →
Posted inReasonable expectation of privacy|Comments Off on E.D.Tex.: No REP in a cell phone call made in back of patrol car caught on dashcam
When there is probable cause to believe a vehicle contains criminal evidence, exigent circumstances can support its seizure pending determination whether to search it under the automobile exception or to remove it to a secure location for search. State v. Mays, 2016 Mo. App. LEXIS 718 (July 26, 2016): Continue reading →
Posted inAutomobile exception, Emergency / exigency|Comments Off on MO: Where there’s PC to believe evidence is in a vehicle, it may be seized to remove it for search
“The territorial limitation in Rule 41 … does not limit warrants issued pursuant to [18 U.S.C.] § 2703.” A search warrant for Facebook in another jurisdiction was valid. United States v. Bundy, 2016 U.S. Dist. LEXIS 94476 (D.Ore. July 20, 2016).
Officers had information that a particular car was coming into a neighborhood to “shoot up” a house. When the car arrived, it was stopped, and everybody was removed. The officers had probable cause under the automobile exception for a search for a weapon. United States v. Shackleford, 2016 U.S. App. LEXIS 13634 (8th Cir. July 27, 2016).*
The officer had reasonable suspicion on the totality, and it doesn’t dissipate just because the officer lost sight of defendant for a little while. United States v. Williams, 2016 U.S. Dist. LEXIS 94514 (E.D.N.C. June 2, 2016),* adopted, 2016 U.S. Dist. LEXIS 93952 (E.D.N.C. July 19, 2016).*
Defendant repeatedly hitting the fog line and the rumble strip was justification for a stop. United States v. Copley, 2016 U.S. Dist. LEXIS 93459 (W.D.Ky. July 18, 2016).*
Posted inReasonable suspicion|Comments Off on E.D.N.C.: Losing sight of the def for a few minutes didn’t dissipate the RS
Aside from the detailed tip the police had about defendant, the officer saw the bulge of a gun, and that was reasonable suspicion. United States v. Bridges, 2016 U.S. Dist. LEXIS 95367 (E.D.Mich. July 21, 2016).*
Defendant’s patdown at the time was a search because the officer’s hands went into defendant’s pockets first, but the government shows it’s inevitable that defendant would have been subjected to a full search anyway because he looked like the person they were looking for and he was getting more agitated as it went on. United States v. Clark, 2016 U.S. Dist. LEXIS 93671 (D.Me. July 19, 2016).*
Defendant’s motion to suppress wasn’t timely, and he had plenty of time to get it filed and didn’t give an excuse or even mention it being late. “Large volumes of discovery can indeed constitute good cause for addressing a motion’s merits despite its untimeliness. … But nothing of the sort exists here. The Government represented — and defense counsel did not contest — that it produced a relatively small number of documents, and it estimated the video footage to last approximately 1.5 hours, not 3 to 4. In actuality, the videos total less than one hour.” But, “[e]ven if untimeliness is excused, Moss has not shown that he had the requisite privacy interest in the vehicle which he occupied to contest the constitutionality of the police entry or search of that vehicle.” “Untimeliness and standing issues aside, the entirety of the circumstances establishes that the officers committed no Fourth Amendment violation at all, much less one that aggrieved Moss.” United States v. Moss, 2016 U.S. Dist. LEXIS 95910 (S.D.Ga. July 21, 2016).
Posted inMotion to suppress|Comments Off on S.D.Ga.: Motion to suppress wasn’t timely and discovery wasn’t that complicated; but he’d lose on standing or merits anyway
“The felony probation-violation arrest warrant alone was all the police needed to arrest James at any time, so his warrantless seizure argument is simply frivolous.” Another argument mentioned in passing is treated as waived for failure to flesh it out. United States v. James, 2016 U.S. Dist. LEXIS 95908 (S.D. Ga. July 21, 2016).*
2255 petitioner raised a merits Fourth Amendment claim. When the government responded that was barred, he raised an IAC claim that defense counsel was ineffective for failing to raise it. This did not “relate back” under F.R.C.P. 15(c), and it was time barred. “Even if Movant had timely amended his § 2255 motion, Movant would not be entitled to relief because he did not have standing to contest the search of the back pack. Indeed, Movant expressly disavows ownership or possession of the bag.” Thus, he fails to show prejudice from any IAC claim. Lewis v. United States, 2016 U.S. Dist. LEXIS 92999 (E.D.N.C. July 18, 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.
