Defendant was involved in an auto accident and treated at a hospital where his blood was drawn. The state’s attorney sought the test results by subpoena not search warrant, and the court finds this reasonable. This is not a case where the state is compelling the blood draw where a search warrant would be required. The blood draw already occurred for a medical reason, and, while there is a reasonable expectation of privacy in medical records, it is adequately preserved under these facts. State v. Hartmetz, 2016 Del. Super. LEXIS 323 (July 6, 2016).
The local SPCA had statewide statutory authority to apply for search warrants involving animal abuse, and that’s not a Fourth Amendment issue anyway under Virginia v. Moore. The search here was of a piece of property that straddled the Delaware-Pennsylvania border, but the record shows the house and garage in Delaware. Pennsylvania authorities were present too, just in case. The state constitutional argument was not presented to the court of common pleas and is waived. Kelsch v. State, 2016 Del. Super. LEXIS 305 (July 12, 2016).*
The state obtained a search warrant for defendant’s CSLI and practically everything else it could get from the cell provider in an effort to link him and another to a structure arson. The trial court suppressed it all. On appeal, the court held that the CSLI was properly obtained and probable cause was shown to link defendant to the fire. The rest, however, wasn’t properly obtained, but that is easily severable from the CSLI. The court won’t suppress it all because part was overbroad. State v. Simmons, 2016 ME 103, 2016 Me. LEXIS 121 (July 12, 2016).
Officers responded to a shots fired in a domestic call, and that was exigency to enter. “Lieutenant Brake testified that he made the decision to enter the residence and secure Defendant based on the totality of the circumstances: (1) the danger to nearby homes and to officers on scene posed by Defendant’s rifle, (2) Defendant’s willingness to use the firearm, (3) Defendant’s assault on his wife, (4) Defendant’s refusal to communicate with officers on scene, and (5) Defendant’s mental state and the possibility that he might harm himself.” United States v. Bustamante-Martinez, 2016 U.S. Dist. LEXIS 92207 (E.D.N.C. May 20, 2016),* adopted 2016 U.S. Dist. LEXIS 92211 (E.D.N.C. July 15, 2016).*
Posted inEmergency / exigency, Overbreadth|Comments Off on ME: CSLI info properly seized by warrant on PC, rest of cell information suppressed because warrant was severable
Officers got out of their cars in defendant’s driveway and could smell marijuana coming from defendant’s garage. They didn’t unreasonably invade the curtilage. State v. Socci, 2015 N.H. LEXIS 259 (Dec. 4, 2015),* prior appeal State v. Socci, 166 N.H. 464, 98 A.3d 474 (2014) (§ 16.03 n.2).
The video is inconclusive on whether defendant crossed the fog line, so the appellate court has to follow the trial court’s findings of credibility. Affirmed. (The dissent says, however: “The video recording is not inconclusive. It clearly contradicts the officer’s hearing testimony.”) Phillips v. State, 2016 Ga. App. LEXIS 454 (July 15, 2016).*
Posted inCurtilage, Standards of review|Comments Off on NH: Officers who parked in def’s driveway could lawfully smell marijuana coming from his garage
The officers had reasonable suspicion to stop defendant on a bicycle for no reflectors and riding on the sideway. The fact they didn’t issue a citation isn’t fatal to the state’s case. In re D.E., 2016-Ohio-4959, 2016 Ohio App. LEXIS 2748 (8th Dist. July 14, 2016).
The stop was justified by speeding, but continuing it based on defendant’s and his passengers’ nervousness, avoidance of eye contact, and defendant’s prior record of drug offenses was unreasonable. State v. Carver, 2016-Ohio-4926, 2016 Ohio App. LEXIS 2714 (11th Dist. July 11, 2016).
Posted inReasonable suspicion|Comments Off on OH8: No citation after stop on RS isn’t fatal to state’s case
In all 298 cases, prosecutors accepted both felony and misdemeanor plea deals before lab tests were performed. The $2 roadside tests, which officers use to help establish probable cause for an arrest, cannot be used at trial as evidence under Texas law.
Posted inDrug or alcohol testing|Comments Off on Houston Chronicle: 298 wrongful drug convictions identified in ongoing audit
Defendant created a fictitious trade association and sent out bills, getting many checks back from thousands he mailed out. He had no reasonable expectation of privacy in the envelopes that he had not yet received because of the fictitious names. Moreover, the Postal Inspectors intercepted several of them and got consent from the senders to open them. United States v. Stokes, 2016 U.S. App. LEXIS 12871 (1st Cir. July 13, 2016)*: Continue reading →
A woman’s presence in defendant’s camper, his residence, was some evidence of her authority to give consent for officers to enter the camper, particularly where she told the officers, shortly after they entered and before they saw the handgun, that she was involved in a relationship with defendant and had been sharing a bedroom in the camper with him. State v. Rucker, 2016 Ga. App. LEXIS 419 (July 12, 2016).
The record supports the conclusion that defendant consented to a search of his truck for evidence of running down a pedestrian. State v. Green, 2016-Ohio-4915, 2016 Ohio App. LEXIS 2721 (7th Dist. June 16, 2016).*
Posted inApparent authority, Consent|Comments Off on GA: Woman’s presence in a camper telling police she shares the bedroom was reasonable for apparent authority
Where the smell of marijuana came from one person in a car of three, searching all three was unreasonable. United States v. Brock, 2016 U.S. Dist. LEXIS 90990 (W.D.N.Y. July 12, 2016): Continue reading →
Posted inReasonable suspicion|Comments Off on W.D.N.Y.: Smell of MJ on one in car doesn’t justify search of other two
In a § 1983 case over an insurance billing search warrant executed with the aid of BCBS to help identify records, the court finds the officers are entitled to qualified immunity. There was no showing that the non-law enforcement assistance wasn’t in aid of execution of the warrant. Sampson v. Gee-Cram, 2016 U.S. App. LEXIS 12901 (6th Cir. July 12, 2016).
LPN check showed owner’s DL suspended. Driver matched description of owner. RS for stop. Harrison v. State, 2016 Del. LEXIS 390 (July 8, 2016).*
Reasonable suspicion here was based on “inter alia, Saldana’s nervous behavior, his inconclusive or vague explanation for the purpose of his trip, his prior criminal history, and the overall appearance of the truck and trailer he was driving.” United States v. Saldana, 2016 U.S. App. LEXIS 12857 (5th Cir. July 13, 2016).*
Texas refuses to follow One 1958 Plymouth and holds that the exclusionary rule doesn’t apply to civil forfeiture cases because there is no deterrence rationale and it’s a dated case; i.e., pre-Herring. State v. One (1) 2004 Lincoln Navigator, 2016 Tex. LEXIS 479, 59 Tex. Sup. J. 1103 (June 10, 2016), rev’g State v. 2004 Lincoln Navigator, 2014 Tex. App. LEXIS 9557 (Tex. App. – Corpus Christi Aug. 28, 2014). [There are concurrences, but it’s effectively unanimous. Moreover, I disagree with the lack of deterrence because the seizure for forfeiture is immediate, before booking, and it’s part and parcel of the police arsenal to punish the defendant before trial; that along with a high bail. Besides, the police help finance their drug enforcement operations with forfeitures, even when there’s no prosecution. It’s contingent fee law enforcement. And finally, this case got by me initially in my daily document dump because the key words were missing. I stumbled on it by accident doing citation checks for the next supplement, and I saw no news stories on it. Finally, since this case distinguishes One 1958 Plymouth, it’s certworthy.] Continue reading →
Posted inExclusionary rule, Forfeiture|Comments Off on Texas refuses to follow One 1958 Plymouth and holds that the exclusionary rule doesn’t apply to civil forfeiture cases
The inventory of defendant’s vehicle turned up criminal evidence, and the inventory essentially listed only that and not the rest except generally [e.g., a duffle bag]. The government argues that an inventory can become a criminal search by what it finds, and the court chides the government for not coming up with a case to support that [but there are; trust me]. Anyway, the form of the government’s inventory isn’t determinative of the validity of the inventory. United States v. Grigsby, 2016 U.S. Dist. LEXIS 88245 (C.D.Cal. July 6, 2016).*
The four corners of the affidavit shows probable cause. United States v. O’Connor, 2016 U.S. Dist. LEXIS 90759 (N.D.Ohio July 13, 2016).*
Officers pursuing a dangerous suspect into house entered reasonably in hot pursuit. United States v. Thompson, 2016 U.S. Dist. LEXIS 90738 (W.D.Okla. July 13, 2016).*
Posted inUncategorized|Comments Off on C.D.Cal.: Inventory form doesn’t have to be complete to be valid
“The Court agrees with the Magistrate Judge’s determination that the SCA provided authority for the search authorized by Magistrate Judge Smith. See United States v. Berkos, 543 F.3d 392, 398 (7th Cir. 2008) (geographic limitation of Rule 41(b) does not apply to warrants under the SCA).” United States v. Mozee, 2016 U.S. Dist. LEXIS 89898 (N.D.Ga. July 12, 2016).
The government already has probable cause for a DNA test from another, so this is confirmatory. Even if this one is suppressed, the other isn’t. The court doesn’t put much stock in the defendant’s argument the test is a subterfuge for another investigation. United States v. Knight, 2016 U.S. Dist. LEXIS 90644 (E.D.Mich. July 13, 2016).*
Posted inDNA, F.R.Crim.P. 41|Comments Off on N.D.Ga.: SCA warrant can cross jurisdictional lines
Where a parolee stays is subject to search under his parole condition, whether staying for a day or a month. United States v. Sanders, 2016 U.S. Dist. LEXIS 88706 (N.D.Ga. June 6, 2016), adopted 2016 U.S. Dist. LEXIS 88507 (N.D. Ga. July 8, 2016): Continue reading →
Posted inProbation / Parole search|Comments Off on N.D.Ga.: Where a parolee spends the night is subject to search, even if just a visitor
Stopping in traffic justified defendant’s traffic stop. A gun was seen on the floor board in plain view after the officer chose to get the occupants out, his prerogative. Defendant’s statement “you guys got me with a gun, just charge me and take me to jail” was voluntary. United States v. Stafford, 2016 U.S. Dist. LEXIS 88229 (S.D.Ga. July 7, 2016).*
Defendant put on no evidence of his right to control the rental car he was in that wasn’t rented in his name, so the court finds no standing. United States v. Escobar, 2016 U.S. Dist. LEXIS 88371 (D.Minn. July 7, 2016).*
Defendant filed a 2255 contending that his indictment was obtained in bad faith with illegally seized evidence. Aside from the obvious fact defendant waived all this with his plea, if his plea is set aside, his exposure is double what he pled to. [Pointing this out to him.] United States v. Chavallo, 2016 U.S. Dist. LEXIS 88369 (E.D.Wash. July 7, 2016).*
The stop was valid, and defendant’s consent was valid. The credibility determinations all went for the government. United States v. Garcia-Garmona, 2016 U.S. Dist. LEXIS 88233 (D.Neb. July 6, 2016).*
Defendant walked away from the police before he was stopped, so he abandoned the evidence. United States v. Wilson, 2016 U.S. Dist. LEXIS 87908 (D.N.J. July 6, 2016).*
Defendant was stopped for no seatbelt as he pulled into a driveway in a “high crime” area at 3 am or so. He was walking away from the car when called back. He smelled of alcohol and the passenger’s version of their knowing each other was completely different than his. There was probable cause. United States v. Branch, 2016 U.S. Dist. LEXIS 87972 (E.D.N.C. June 1, 2016),* adopted 2016 U.S. Dist. LEXIS 87970 (E.D.N.C. July 7, 2016).*
A grand jury subpoena for the Oregon former governor’s emails was overbroad and made no effort to limit the emails under investigation. Therefore, the district court should have quashed. In re Grand Jury Subpoena; United States v. Kitzhaber, 2016 U.S. App. LEXIS 12860 (9th Cir. July 13, 2016): Continue reading →
Posted inSubpoenas / Nat'l Security Letters|Comments Off on CA9: GJ subpoena for emails was unreasonably overbroad and should have been quashed
Searching the engine air filter during an inventory search was reasonable. United States v. Torres, 2016 U.S. App. LEXIS 12941 (9th Cir. July 14, 2016). Court’s summary: Continue reading →
Posted inInventory|Comments Off on CA9: Searching the engine air filter during an inventory search was reasonable
Defendant challenges CSLI and concedes four circuits have held it’s third party information. That’s the holding of the court. United States v. Elima, 2016 U.S. Dist. LEXIS 87588 (C.D.Cal. June 22, 2016).*
Officers entering defendant’s curtilage after following him home didn’t invade the curtilage by entering on his driveway. State v. Bailey, 2014 N.H. LEXIS 185 (Dec. 18, 2014) (unpublished).*
Weaving for four miles and swerving to avoid hitting a concrete barrier was reasonable suspicion for a stop. West v. State, 2016 Del. LEXIS 386 (July 6, 2016).*
Defendant had standing to challenge the search of his duffle bag in a rental car. The State conceded that the officers’ conduct in refusing to allow him to take the luggage from a rental car and notifying him that the duffle bag would be searched and inventoried was illegal, and thus, his abandonment was not voluntary and did not divest him of standing. State v. Ross, 2016 Ida. App. LEXIS 86 (July 6, 2016).
Without knowing whether officer stuck head in car window to smell marijuana, court couldn’t decide the search issue. Court of Special Appeals applied the wrong standard of review to that question essentially putting the burden on the defendant when the state had to support the warrantless search. “Court of Appeals held that the circuit court erred in denying Petitioner’s motion to suppress, where the evidence regarding whether an officer detected the odor of marijuana before or after he inserted his head into the passenger window of Petitioner’s vehicle during a traffic stop could not be determined, and therefore, did not establish that the officer’s warrantless search was lawful. The Court of Appeals further held that the Court of Special Appeals, in applying a supplemental rule of interpretation to resolve an alleged ambiguity, thereby drawing inferences in favor of the State, did not apply the appropriate standard of review to the circuit court’s judgment because the inference made was inconsistent with the evidence of record.” Grant v. State, 2016 Md. LEXIS 443 (July 12, 2016).
Defendant fled a taxicab to avoid the fare but left his cell phone behind. The police used the phone to call 911 to capture his name, phone number, and other 911 information. This wasn’t a search, and it was governed by Smith, that information voluntarily turned over to another is not protected by a reasonable expectation of privacy. [The complete answer to that is that defendant didn’t turn over the information voluntarily; the police dialed 911 to make the call, and was that a seizure? The court botches this one by deciding it this way. Abandonment of the phone wasn’t even decided, and it clearly was the easier and more logical argument than attempting say there was a lack of a reasonable expectation of privacy without having to strain to make something up to sound profound.] State v. Hill, 2016 Ga. App. LEXIS 432 (July 13, 2016): Continue reading →
Posted inCell phones|Comments Off on GA: Police calling 911 from cell phone left in cab did not involve an expectation of privacy [clearly wrong reason; right result]
Unconscious defendant doesn’t get the implied consent notice. Bailey v. State, 2016 Ga. App. LEXIS 433 (July 13, 2016).*
The officer here had reasonable suspicion to stop defendant’s car after it left a motel with a man and woman inside, and they’d just been reported by the motel to have been in a “family fight” in the motel. The situation may have an innocent explanation, but it also had a more sinister one, and the stop was reasonable. Jennings v. State, 2016 WY 69, 2016 Wyo. LEXIS 77 (July 11, 2016).*
The trial court’s limited findings of submission to police authority aren’t supported by the record, so the case is remanded. State v. Meachum, 2016 Fla. App. LEXIS 10676 (Fla. 1st DCA July 13, 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.
