Pre-Riley cell phone search incident: “We agree that the initial search violated Burton’s Fourth Amendment rights but nevertheless affirm the denial of his motion to suppress evidence based on the exception to the exclusionary rule articulated by the United States Supreme Court in Davis v. United States, 564 U.S. 229, 231-32 (2011).” Burton v. State, 2016 Fla. App. LEXIS 7714 (Fla. 5th DCA May 20, 2016).
Defendant’s probation search was based on reasonable suspicion and wasn’t arbitrary. His probation officer reasonably suspected he was a regular marijuana user based on his own admissions, and the PO requested police do the search, which turned up marijuana. Whitfield v. State, 2016 Ga. App. LEXIS 286 (May 19, 2016).*
Defendant was told he had a blanket search condition as a condition of probation. Prior case law in Indiana has held that reasonable suspicion isn’t required, and this court can’t and won’t change it. Hodges v. State, 2016 Ind. App. LEXIS 156 (May 18, 2016).*
This was reasonable suspicion for a stop: “ Smith observed Keith driving his car very slowly in an area known for prostitution and drug activity. Smith was there because of community complaints. Keith pulled into the vacant lot that no one ever pulls into. A woman approached Keith’s car, entered, and he rolled something in white paper. Based on Smith’s experience and training, he was able to infer that Keith’s actions were suspicious.” State v. Keith, 2016-Ohio-3056, 2016 Ohio App. LEXIS 1901 (8th Dist. May 19, 2016).*
A failure to properly knock-and-announce an entry does not warrant suppression, following Hudson v. Michigan. State v. Bembry, 2015-Ohio-5598, 2015 Ohio App. LEXIS 5397 (7th Dist. December 30, 2015). [Yes, just now on Lexis.]
The motion to suppress is denied on the papers without a hearing based on the papers attached as an offer of proof. There was probable cause for an automobile exception search. United States v. Cuevas, 2016 U.S. Dist. LEXIS 63009 (S.D.N.Y. May 12, 2016).* [Obviously the law clerks make this review; the USDJ doesn’t have time. In this district, the DJs decide these motions; they aren’t referred to USMJs.]
On the totality, officers lacked reasonable suspicion to stop defendant for mere proximity to a crime. The government’s hypotheticals don’t overcome that this was essentially a hunch. She stared straight ahead when there were a bunch of police cars around, and she had an out of state LPN. United States v. Lopp, 2016 U.S. Dist. LEXIS 61972 (N.D.Cal. May 10, 2016)*: Continue reading →
Posted inReasonable suspicion|Comments Off on N.D.Cal.: Def’s stop here was really no more than on a hunch; RS lacking for mere proximity to a crime
The package had a GPS and a trigger “alarm” or alert for when it was opened. Here, however, the trigger alert was subject to failure if the package was dropped with sufficient force. Officers assembled outside the apartment, and the alert went off and they heard noises inside. On the totality, officers had exigent circumstances to enter to prevent potential destruction of evidence. Despite the false alert, the entry was reasonable. United States v. Iwai, 2016 U.S. Dist. LEXIS 63399 (D.Haw. May 13, 2016): Continue reading →
The attachments to the application and search warrant, reasonably read, limited the search and provided necessary particularity. [Comprehensive discussion of principles of interpretation of documents.] The lack of a computer search protocol didn’t violate the Fourth Amendment. United States v. Smith, 2016 U.S. Dist. LEXIS 64231 (E.D.Wis. April 18, 2016), adopted 2016 U.S. Dist. LEXIS 64221 (E.D. Wis. May 16, 2016): Continue reading →
Posted inComputer and cloud searches|Comments Off on E.D.Wis.: SW particularity shown in attachments; lack of a computer search protocol not a violation of Fourth Amendment
Police in a helicopter saw a marijuana grow in defendant’s backyard. The backyard was not visible from the road. Therefore, the backyard was clearly curtilage, and the police warrantless entry into the back yard violated the Fourth Amendment. There was no independent source for the information in the search warrant application, so the motion to suppress is granted and the good faith exception does not apply. The helicopter flyover was not exigency [If it was, it was thus likely police created.] United States v. Wideman, 2016 U.S. Dist. LEXIS 63378 (N.D.Ala. May 13, 2016): Continue reading →
Posted inCurtilage|Comments Off on N.D.Ala.: Flyover revealed MJ plants in backyard; warrantless entry violated curtilage; no exigency shown
Defendant was stopped in an Eighth Circuit state governed by the former de minimus rule three months prior to Rodriguez, and it’s already been held that the old rule applies until that date. The district court finds the officer’s assertions of fact about reasonable suspicion to be essentially incredible. However, “the fruits of the search cannot be suppressed based upon the delay only.” The court reluctantly concludes that the dog alert was enough for probable cause and denies the motion to suppress. United States v. Johnson, 2016 U.S. Dist. LEXIS 62962 (D.S.D. Mar. 11, 2016), adopted 2016 U.S. Dist. LEXIS 62699 (D.S.D. May 12, 2016): Continue reading →
Posted inUncategorized|Comments Off on D.S.D.: A pre-Rodriguez delay didn’t warrant suppression despite the lack of reasonable suspicion
Defendant’s car was parked within 15′ of a crosswalk, a violation of state law unless passengers were getting out. The officers saw no driver and nobody getting out, so they pulled up on the car and shined a light and saw defendant with a gun, and he was a felon. Excessive lighting is not excessive force, particularly in a high crime area at night. United States v. Johnson, 2016 U.S. App. LEXIS 9004 (7th Cir. May 17, 2016) (dissent here): Continue reading →
Posted inExcessive force, Plain view, feel, smell|Comments Off on CA7: Excessive lighting at a traffic stop (which this really wasn’t) isn’t excessive force in a high crime area at night
In a computer search for child pornography, the use of the “hashing” function rather than “gallery view function” is not constitutionally required. That was an issue in United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009), which the court does not find inconsistent. The question is always “objective reasonableness.” United States v. Townsend, 2016 U.S. App. LEXIS 8936 (3d Cir. May 16, 2016).
The stop produced reasonable suspicion and then the drug dog alert was probable cause. Remanded, however, for determination of whether this is a proper conditional plea. State v. Manning, 2016 La. App. LEXIS 974 (La.App. 2 Cir. May 18, 2016).*
Plaintiff’s § 1983 search claim was time barred. His added claim for recovery of property on appeal wasn’t in the original case. Reynolds v. Wright, 2016 U.S. App. LEXIS 9194 (10th Cir. May 17, 2016).*
Posted inReasonableness|Comments Off on CA3: Def’s complaint about how CP forensic search was done didn’t rise to “objective unreasonableness”
Defendant’s wife told the officers that she could not consent to entry into the barn on their farm because she told them she didn’t have authority and she wasn’t on the deed. The officers caucused, acknowledged the consent problem amongst themselves, and proceeded to break a window to get in the barn anyway. The warrantless entry was unreasonable. They could have taken her to a JP and gotten a warrant, but they consciously chose not to, aware of the problems. United States v. Leclerc, 2016 U.S. Dist. LEXIS 63629 (W.D.N.Y. Feb. 16, 2016),* adopted 2016 U.S. Dist. LEXIS 63562 (W.D.N.Y. May 13, 2016).*
Driving erratically away from where shots were fired and turning without signaling was justification enough for defendant’s stop. United States v. Venner, 2016 U.S. Dist. LEXIS 60696 (D.V.I. May 6, 2016).*
Posted inApparent authority|Comments Off on W.D.N.Y.: Consenter said she had no common authority over a barn but officers assumed it and broke in; suppressed
“Professional hunter William ‘Spook’ Spann sued his former employee and several officers from the Tennessee Wildlife Resources Agency under 42 U.S.C. § 1983 for alleged violations of his constitutional rights during an investigation into his hunting practices. The district court dismissed Spann’s suit for failure to state a claim upon which relief could be granted. We affirm. [¶] Spann leads hunting parties on properties around his home in Dickson County, Tennessee, and formerly hosted a hunting program, ‘Spook Nation,’ on the Pursuit television network.” Spann had been prosecuted for federal hunting misdemeanors, and he posted on Facebook information that suggested others would occur in violation of his probation saying no hunting for six months. “Officers from the Tennessee Wildlife Resources Agency (‘Wildlife’) and the U.S. Fish and Wildlife Service had anticipated Spann’s premature return to hunting.” State wildlife officers set up cameras in his open fields to record what was going on there. “In June 2013, Spann’s probation officer told the district court in Kansas that Spann had violated the terms of his probation. The court ordered that Spann spend 30 days in custody during nights and weekends and barred him from hunting anywhere in the world until August 2014. Spann, 963 F. Supp. 2d at 1212. Then, in February 2014, Tennessee charged Spann with several state crimes. In connection with the state investigation, Wildlife officers executed a warrant to search Spann’s home and seize his cell phone.” He sued and lost. The search warrant for his cell phone in his house was based on probable cause. Spann v. Carter, 2016 U.S. App. LEXIS 9197 (6th Cir. May 17, 2016).*
Posted in§ 1983 / Bivens, Cell phones|Comments Off on CA6: SW for cell phone based on PC defeats § 1983 case over phone search
Defendant showed the police that he had marijuana inside his home and the police obtained a warrant to search his home. Thus, suppression was not warranted because there was an outright certainty, not just a “fair probability,” that the house contained illegal drugs, and it did not matter whether the police suspected that he possessed marijuana, dealt marijuana, or committed some other crime. The contents of the warrant affidavit were not “stale,” because the affidavit provided every reason for the magistrate to think there were drugs in the house at the time the warrant was issued. The police did not act unreasonably when they used a prying ram to open defendant’s safe, because they had probable cause to believe there might be drugs inside and defendant refused to provide the safe’s combination. United States v. Church, 2016 U.S. App. LEXIS 8982 (6th Cir. May 17, 2016).
The post-arrest, off-site forensic search of defendant’s phone was instead a border search, which did not require a warrant supported by probable cause. The first search of defendant’s phone conducted at the airport was a routine border search that did not require individualized suspicion. Although the first manual search of defendant’s phone conducted at the airport was a routine border search, the subsequent forensic search of defendant’s phone conducted at the Homeland Security Investigations’ office in Sterling, Virginia was a nonroutine border search requiring some level of individualized suspicion. Here, the government had more than reasonable suspicion that defendant was attempting to export weapons parts listed on the United States Munitions List without a license, in violation of the Arms Export Control Act. United States v. Kolsuz, 2016 U.S. Dist. LEXIS 60538 (E.D.Va. May 5, 2016).*
Posted inBorder search, Cell phones|Comments Off on E.D.Va.: The gov’t had individualized suspicion for a forensic border search of def’s cell phone
Police were interviewing defendant in a murder case. Once her story started making no sense anymore, an officer seized her phone and then applied for a warrant to search it. The officer had exigent circumstances to seize the phone to prevent destruction of the contents. State v. Horst, 2016 Minn. LEXIS 278 (May 18, 2016): Continue reading →
Posted inCell phones, Emergency / exigency|Comments Off on MN: Police had exigency to seize cell phone during murder investigation
The basis of the stop was no valid tags, but that was wrong. Yet the trial court found the stop “justified.” “This conclusion consists of a statement of law, followed by the conclusion that Detective O’Hal was ‘justified’ in initiating the stop. This conclusion does not specifically state that the stop was justified based upon any specific violation of a traffic law.” Remanded. [Why not just reversed ordering suppression? This isn’t even an objectively reasonable mistake of fact.] State v. Baskins, 2016 N.C. App. LEXIS 570 (May 17, 2016).
Officers had reasonable suspicion for defendant’s detention which ripened into probable cause. United States v. Hardeman, 2016 U.S. Dist. LEXIS 61065 (N.D.Ga. March 11, 2016),* adopted 2016 U.S. Dist. LEXIS 61052 (N.D. Ga., May 9, 2016).*
The length of defendant’s stop was reasonable based on all the officer’s observations which rose to reasonable suspicion: defendant was going to Atlanta to tow a car but he didn’t know where he was going, he had a tow bar but no place to hook it up, the car had signs of recent tampering of removing parts. United States v. Lozano, 2016 U.S. Dist. LEXIS 62811 (S.D.Ala. May 12, 2016).*
Posted inReasonable suspicion|Comments Off on NC: Lack of findings on justification for stop required; remanded
An issuing magistrate doesn’t have to see the child pornography to find probable cause it was on the subject computer; a description will do. IP information tied to the child pornography was probable cause for the residence and computers in it. State v. Reisner, 2016 R.I. Super. LEXIS 60 (May 13, 2016).
A knock-and-talk in Washington requires warnings of a right to refuse entry. Here, it was to talk about child pornography on defendant’s computer, and defendant didn’t get the warning. State v. Budd, 2016 Wash. LEXIS 587 (May 19, 2016).
Defendant argued his blood was taken without a warrant, but it was. State v. Johnson, 2016 La. App. LEXIS 966 (La.App. 2 Cir. May 18, 2016).*
Posted inKnock and talk, Probable cause|Comments Off on RI: Description of CP sufficient for PC; magistrate doesn’t have to view it
Defendant’s house was raided with him in it, but he was not arrested and his “custody” status was limited to getting a buccal swab under the warrant. He was not in custody, albeit Summers permitting it, when he was talking. The warrant was issued on probable cause. State v. Kilgore, 2016 Wisc. App. LEXIS 307 (May 18, 2016): Continue reading →
Posted inDNA|Comments Off on WI: Def’s “custody” during raid was limited to getting DNA sample
Defendant sought to reopen the suppression hearing, and it’s denied because the new evidence wouldn’t alter the outcome at all on the question of apparent consent. United States v. Archambault, 2016 U.S. Dist. LEXIS 61783 (W.D.N.Y. May 9, 2016).
“The odor of raw marijuana, especially in light of Defendant’s furtive actions and refusal to comply with commands, establishes probable cause.” United States v. Jackson, 2016 U.S. Dist. LEXIS 61695 (N.D.Ga. March 22, 2016),* adopted 2016 U.S. Dist. LEXIS 61486 (N.D. Ga. May 9, 2016).*
There was probable cause for the automobile exception search of defendant’s car based on all the officers knew. United States v. Engstrom, 2016 U.S. Dist. LEXIS 64828 (D.Nev. March 2, 2016).*
Posted inAutomobile exception, Burden of proof|Comments Off on W.D.N.Y.: No point in reopening suppression hearing for new evidence that won’t change the outcome
The affidavit truly failed to show probable cause, and a reasonably well trained police should have known it. This involved a gun in the home, and considering the Second Amendment right to bear arms and the Fourth Amendment right to be free from unreasonable searches and seizures, the “extreme sanction” of suppression is justified. To not suppress rewards bad conduct. United States v. Wooldridge, 2016 U.S. Dist. LEXIS 65123 (E.D.Tex. May 17, 2016): Continue reading →
Posted inGood faith exception|Comments Off on E.D.Tex.: SW for gun was clearly without PC and no reasonable officer could rely on it; court considers Second Amendment implications in denying govt GFE
"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.
