Air fresheners on every vent of the air conditioning and being in a high crime area with tinted windows was reasonable suspicion of possession of drugs, but it’s a close call. Defendant voluntarily consented to the search of his car and person. State v. Floyd, 2016 Wisc. App. LEXIS 413 (July 6, 2016).
The state appealed the grant of a motion to suppress for lack of proof of consent on the totality. The factors the state was complaining weren’t addressed are moot because there was no proof presented by the state on those issues. Based on the order, it’s apparent the trial court did consider the totality of what it had before it. State v. Williams, 2016 Ga. App. LEXIS 403 (July 7, 2016); State v. Jung, 2016 Ga. App. LEXIS 408 (July 7, 2016).*
Posted inBurden of proof, Reasonable suspicion|Comments Off on WI: Air fresheners on every vent in a high crime area with tinted windows was RS
Posted inArrest or entry on arrest|Comments Off on Columbia Journalism Review: A reporter’s arrest is just the latest reason to worry about press freedom in Missouri
Defendant had no reasonable expectation of privacy in a bloody tissue left in a men’s bathroom at the Buffalo police station. United States v. Green, 2016 U.S. Dist. LEXIS 87388 (W.D.N.Y. July 6, 2016).
Defendants’ vehicle was stopped as it crossed back into North Carolina, and police were already suspicious of it. A warning was issued the driver, and the vehicle had an empty energy drink and fast food wrappings and a large suitcase open with clothes sticking out suggesting a longer trip to go somewhere in a hurry. The court has pause about continuing the stop to the questioning of the passenger, and the driver was just laid off and bought cheap cars on Craigslist. The passenger mentioned that they were just visiting his girlfriend, but he didn’t know what state she was in. This added up to reasonable suspicion to continue the stop longer. United States v. Bowman, 2016 U.S. Dist. LEXIS 86700 (W.D.N.C. May 31, 2016).*
On a motion to reconsider, the court finds that since defendant didn’t object to the consent of another under Randolph, it doesn’t apply. Also, once they had consent from somebody, they didn’t have to ask others. A safe was also searched. The court finds the officers more credible that the door was ajar and they could see in, not that it was locked. Defendant gets no credibility: “Mr. Jones has already lied on multiple occasions in multiple respects in relation to this matter.” United States v. Jones, 2016 U.S. Dist. LEXIS 84108 (N.D.Ind. June 21, 2016).*
Defense counsel was not ineffective for not arguing the breadth of search warrants for cell phones that were seized and searched under a warrant. One contact name was all that was used at trial from all that. He admits there was probable cause for the cell phone warrant; he only challenged overbreadth of the search without saying sufficiently how. United States v. Bell, 2016 U.S. Dist. LEXIS 87122 (E.D.Pa. July 5, 2016).*
Posted inCell phones, Consent|Comments Off on N.D.Iowa: Consent veto under Randolph requires it actually be exercised
The federal judge hearing the Bridgegate criminal case has granted Gibson, Dunn & Crutcher’s motion to quash a subpoena by defense lawyers who sought to examine Gov. Chris Christie’s cellphone.
Widespread evidence shows that these tests routinely produce false positives. Why are police departments and prosecutors across the country still using them?
Posted inDrug or alcohol testing|Comments Off on NYTimes Magazine: How a $2 Roadside Drug Test Sends Innocent People to Jail
Driving out of a parking lot at a normal speed was not flight for reasonable suspicion purposes. “In the present case, the officers observed activity which made them suspect that Defendant’s actions in leaving the apartment complex might constitute flight, and then this suspicion of flight was used in turn to support the suspicion that criminal activity was afoot.” State v. Goins, 2016 N.C. App. LEXIS 713 (July 5, 2016).
Police don’t need reasonable suspicion to conduct a knock-and-talk. The information they had was likely reasonable suspicion anyway. When the door was opened and marijuana could be smelled, that justified stepping into the door because their report was drug dealing, not mere usage. United States v. Perry, 2016 U.S. Dist. LEXIS 84964 (E.D.Pa. June 27, 2016).*
Posted inKnock and talk, Reasonable suspicion|Comments Off on NC: Driving at normal speed out of a parking lot wasn’t “flight” for RS purposes
The fact that more detail could have been included, including prior inconsistent statements of informants, that doesn’t make a search warrant affidavit false or misleading for Franks purposes because it wouldn’t change outcome. United States v. Davis, 2016 U.S. Dist. LEXIS 86981 (E.D.Mich. July 6, 2016)*: Continue reading →
Posted inFranks doctrine|Comments Off on E.D.Mich.: Omission of CI’s prior inconsistent statement didn’t require Franks hearing
Defendant was found not credible at the suppression hearing. He filed a motion to reconsider to object. The court explains why, which is a lesson to all defense lawyers and maybe defendants. United States v. Lawson, 2016 U.S. Dist. LEXIS 86401 (N.D.Cal. June 24, 2016): Continue reading →
Posted inBurden of proof|Comments Off on N.D.Cal.: On a motion to reconsider, this is why def wasn’t deemed credible at suppression hearing
Sufficient nexus was shown for a search warrant for defendant’s home from his observed drug dealing on the street. He drove to the drug deals from his home, and other intel had him dealing at home. United States v. Galaviz-Gaxiola, 2016 U.S. Dist. LEXIS 86330 (D.Utah June 30, 2016).*
The District Court doesn’t find the testimony of the officer observing alleged drug transactions from a nearby rooftop to be credible at the suppression hearing. His reports weren’t the same as his grand jury testimony which wasn’t the same as his suppression hearing testimony about the movement of people and the alleged exchange of money on the street. “In sum, even assuming that Officer Kinane’s testimony concerning his rooftop observations could provide a basis for ‘reasonable suspicion,’ his testimony is not credible.” Text messages found after the arrest can’t be used to determine probable cause for a warrantless arrest. His encounter with the police can’t be described as voluntary. United States v. McDow, 2016 U.S. Dist. LEXIS 84649 (S.D.N.Y. June 28, 2016).*
Posted inNexus, Reasonable suspicion|Comments Off on D.Utah: Nexus to home for SW shown by def driving to drug deals from home
Defendant made a sufficient showing of race-based selective enforcement in arrests in Operation Safe Streets in the Tenderloin District of San Francisco to get more discovery. United States v. Mumphrey, 2016 U.S. Dist. LEXIS 85593 (N.D.Cal. June 30, 2016).
Defendant was the occupant of a vehicle that matched the general description of a robbery getaway vehicle near the robbery call and heading away from the scene. That was reasonable suspicion to stop. Getting the occupants out and handcuffing them was reasonable when backup arrived. The video shows consent to search the car, in part because he didn’t interfere [which doesn’t make sense since interfering is a crime or can lead to other bad things]. United States v. Daniel, 2016 U.S. Dist. LEXIS 86412 (E.D. Mo. July 4, 2016).*
Posted inRacial profiling, Reasonable suspicion|Comments Off on N.D.Cal.: Facial showing of racially discriminatory arrests made to get more discovery
The officer stopped a vehicle for following a motorhome too closely. The motorhome also pulled over and stopped, and the driver attempted to come back to the stop, but he was told to get back in the motorhome. When the officer encountered him shortly thereafter, it was a consensual encounter because he voluntarily stopped. State v. Wolfe, 2016 Ida. App. LEXIS 84 (June 30, 2016).
An officer responded to a report of a suspicious vehicle in front of a house at 6:40 am and found defendant either passed out or asleep. The officer tapped on the window, but defendant didn’t respond, so the officer opened the door. Defendant was arrested for public intox and a search incident of his person was proper. Opening the vehicle door was appropriate under the community caretaking function. Cruz-Salazar v. State, 2016 Ind. App. LEXIS 216 (June 30, 2016).*
Practice brought to light in recent case out of Pierre; AG says it’s not illegal
Police in South Dakota are collecting urine samples from uncooperative suspects through the use of force and catheters, a procedure the state’s top prosecutor says is legal but is criticized by others as unnecessarily invasive and a potential constitutional violation.
The practice isn’t new, according to attorneys, but it’s been brought to light in a recent case in Pierre. An attorney for a man charged with felony drug ingestion is asking a judge to throw out evidence from an involuntary urine sample, saying it violated his client’s constitutional rights.
Erroneous overruling of defendant’s objections during a suppression hearing doesn’t necessarily require a new suppression hearing if the appellate court finds it harmless or wouldn’t change the outcome. People v. Maxey, 2016 IL App (1st) 130698, 2016 Ill. App. LEXIS 429 (June 30, 2016): Continue reading →
Posted inBurden of proof|Comments Off on IL: Error in overruling def objection at suppression hearing doesn’t require new suppression hearing if outcome wouldn’t change
A police officer can pull over a car with a probationer as a passenger when there was reasonable suspicion the passenger was in violation of probation. State v. Mikkelson, 2016 UT App 136, 2016 Utah App. LEXIS 139 (June 30, 2016).
“In this case, where the evidentiary record demonstrates that close to ninety percent of vehicles reflecting an ‘unknown’ compliance status in MVD records are in fact uninsured in violation of the law, we hold that an officer who learns that the MVD records for a particular vehicle indicate an “unknown” compliance status has constitutionally reasonable suspicion to stop the vehicle and investigate further.” State v. Yazzie, 2016 N.M. LEXIS 152 (June 30, 2016).
Wisconsin Supreme Court decides the inevitable discovery rule for the first time. Despite officer’s bad faith in obtaining a statement without proper Miranda warnings, the evidence is clear to the Supreme Court that the search would have occurred without statement. State v. Jackson, 2016 WI 56, 2016 Wisc. LEXIS 161 (July 1, 2016), rev’g 2015 WI App 49, 363 Wis.2d 554, 866 N.W.2d 768: Continue reading →
Posted inInevitable discovery|Comments Off on WI S.Ct. decides inevitable discovery for first time and it overcomes a statement obtained in bad faith
WASHINGTON — The Supreme Court term had barely gotten underway in early November when Justice Sonia Sotomayor issued her first dissent. A police officer’s “rogue conduct,” she wrote, had left a man dead thanks to a “‘shoot first, think later’ approach to policing.”
Justice Sotomayor would go on to write eight dissents before the term ended last Monday. Read together, they are a remarkable body of work from an increasingly skeptical student of the criminal justice system, one who has concluded that it is clouded by arrogance and machismo and warped by bad faith and racism.
Posted inSCOTUS|Comments Off on NYTimes: In Dissents, Sonia Sotomayor Takes On the Criminal Justice System
"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.
