“His argument is that because the car was parked and defendant had run away from the car, it was ‘not mobile within the meaning of the Carroll/Chambers exception.’ Not surprisingly, defendant cites no case law to support this argument; and I find that it is completely contrary to well established law.” United States v. Wilkins, 2016 U.S. Dist. LEXIS 59808 (W.D.Mo. April 8, 2016), adopted 2016 U.S. Dist. LEXIS 59149 (W.D. Mo. May 4, 2016).
Police received a report of a man lying in the roadway at night. The officer found defendant. He walked up and asked how defendant was, and defendant said he was “resting.” He asked him to pull his hand out of his pocket and a gun came out held by the barrel. The rest was with reasonable suspicion. The encounter was clearly justified by the community caretaking function, and there was no seizure up to that point. United States v. Goins, 2016 U.S. Dist. LEXIS 58714 (E.D.N.C. April 4, 2016),* adopted 2016 U.S. Dist. LEXIS 58702 (E.D.N.C. May 2, 2016).
Defendant’s generic motion to suppress was denied and there was no specific proof or argument at the suppression hearing as to what it was all about. It was essentially waived for appeal by failure to articulate the ground argued on appeal. Douglas v. State, 2016 Tex. App. LEXIS 4804 (Tex. App. – Texarkana May 6, 2016): Continue reading →
Posted inBurden of proof|Comments Off on TX6: Generic motion to suppress and hearing didn’t specify issue appealed; held all waived
A search warrant for computers, processing units, and drives didn’t say “cell phone,” but cell phones may be seize under that description. People v. Victor, 2016 NY Slip Op 03551, 2016 N.Y. App. Div. LEXIS 3425 (3d Dept. May 5, 2016): Continue reading →
Posted inCell phones, Computer and cloud searches|Comments Off on NY3: Cell phones may be seized and searched under SW for computers, processors, and drives
The roadside conversation with defendant was not coercive. “The trial court found credible Haugen’s testimony that defendant was cooperative and engaged in easygoing conversation at this point.” She kept touching her pocket, and, once she moved, a knife was observed, so the officer had reasonable suspicion. State v. Graves, 278 Ore. App. 126, 2016 Ore. App. LEXIS 509 (May 4, 2016).
Similar: Reasonable suspicion for a patdown came from juvenile being stopped coming from the direction of a 1 am fight, his companions fleeing, and his continually reaching to his back pocket. In re E.O.E., 2016 Tex. App. LEXIS 4786 (Tex.App. – El Paso May 5, 2016).*
2255 petitioner’s claim that he and his codefendant were secretly recorded in the back of a police car was resolved on appeal and can’t be relitigated. His lack of authentication claim fails on the merits. Webster v. United States, 2016 U.S. Dist. LEXIS 62655 (N.D.Ind. May 12, 2016).*
Officer’s testimony that there was an “equipment violation” as the basis for a stop that led to a drug dog didn’t support reasonable suspicion without articulating the violation. State v. Sexton, 278 Ore. App. 1, 2016 Ore. App. LEXIS 537 (May 4, 2016).
Defense counsel wasn’t ineffective for not challenging the drug dog for bad training. The records of training show that the dog was well trained and was certified, so the motion would have failed. Stafford v. United States, 2016 U.S. Dist. LEXIS 61674 (E.D.N.C. May 10, 2016).*
Defendant’s speeding was reasonable suspicion for a stop that revealed he was DUI. State v. Neumann, 2016 Tenn. Crim. App. LEXIS 333 (May 4, 2016).*
Posted inDog sniff, Reasonable suspicion|Comments Off on OR: Unspecified and unarticulated “equipment violation” isn’t reasonable suspicion
Police officer’s omission of details of a protective sweep from an affidavit for a search warrant did not support a Franks claim as to how he reported responding to a 911 shots fired call. The protective sweep wasn’t even hidden; it was even suggested in the papers. United States v. Ward, 2015 U.S. Dist. LEXIS 177863 (D.Nev. Oct. 19, 2015),* adopted 2016 U.S. Dist. LEXIS 60379 (D. Nev. May 5, 2016)*: Continue reading →
Posted inFranks doctrine, Protective sweep|Comments Off on D.Nev.: Omission of details of a protective sweep not Franks issue where magistrate had to know about it
Defendant showed a reasonable expectation of privacy in his grandmother’s house because he’d been living there for years, got mail there, and had been arrested there at least twice before: It was his residence. The driveway of the house was not protected curtilage when the officer was there and saw the defendant throw a firearm onto the roof of the house. The driveway was a normal route of egress. “Moreover, the side and backyards of the house were also not shielded from public view, or intrusion via the driveway, and thus were also not protected areas. The officer was justified in following the Defendant around the house based upon his reasonable suspicion.” United States v. Davis, 2016 U.S. Dist. LEXIS 58055 (S.D.Fla. April 1, 2016), adopted 2016 U.S. Dist. LEXIS 58088 (S.D. Fla. Apr. 29, 2016).
Posted inCurtilage, Standing|Comments Off on S.D.Fla.: Officer’s presence on driveway didn’t violate curtilage
A domestic violence call doesn’t per se mean there is reasonable suspicion. The circumstances of the call have to be evaluated on arrival at the scene from all the circumstances. Thomas v. Dillard, 2016 U.S. App. LEXIS 8679 (9th Cir. May 5, 2016): Continue reading →
Posted inReasonable suspicion|Comments Off on CA9: There is no blanket “domestic violence” exception to Terry’s requirement for particularized suspicion
An inventory “policy’s language that the inventory must be ‘thorough and uniform’” is not “unconstitutional per se.” United States v. Perez-Trevino, 2016 U.S. Dist. LEXIS 61447 (N.D.Iowa May 10, 2016)*: Continue reading →
Posted inInventory|Comments Off on N.D.Iowa: Inventory “policy’s language that the inventory must be ‘thorough and uniform’” is not “unconstitutional per se”
Defendant lived with his girlfriend in his father’s home and father was on probation. During a probation search of the house, defendant said that their bedroom was exclusively theirs and the officers couldn’t enter. The record does not support that the room was exclusively theirs. It was more of a common room in the house. Commonwealth v. Haslam, 2016 PA Super 97, 2016 Pa. Super. LEXIS 265 (May 9, 2016).
A tracking device was placed on the vehicle defendant was driving and it belonged to another. There was probable cause for the stop of the car based on all the officers knew. State v. Nelson, 2016-Ohio-2787, 2016 Ohio App. LEXIS 1658 (5th Dist. May 2, 2016).*
The use of a drug dog at defendant’s apartment door violated the Fourth Amendment. Defendant’s garage across the road is a different matter, but it doesn’t have to be decided. Officers showed PC for a search of defendant’s garage in the affidavit for the search warrant independent of the dog sniff there. Jackson v. State, 2016 Tex. App. LEXIS 4774 (Tex.App. – Houston (14th Dist.) May 5, 2016).
Defendant’s warrantless blood draw was without exigent circumstances, and there is no Texas good faith exception. Perez v. State, 2016 Tex. App. LEXIS 4745 (Tex.App. – Houston (14th Dist.) May 5, 2016).*
Nervousness and having associated with a known drug dealer was not reasonable suspicion for continuing a stop. State v. Bedient, 2016 N.C. App. LEXIS 506 (May 3, 2016).
Defense counsel’s affidavit in his 2255 showed that defendant didn’t want to go to trial and wanted to get it over with and they talked about a motion to suppress and agreed to forego it. Defendant didn’t contest it. McManus v. United States, 2016 U.S. Dist. LEXIS 57720 (M.D.N.C. May 2, 2016).*
The officer’s unprovoked attack on the plaintiff for shutting his door on police officers not invited in was excessive force under the Fourth Amendment. “There was no need for any force in this situation because no crime was being committed and there was no immediate threat to the safety of anyone; yet, when Harris decided to close the door to his own home, Officer Pendleton suddenly attacked him without warning. This unprovoked violence cannot be excused as the consequence of a ‘split-second judgment.’ The facts, as alleged, portray a patently unreasonable use of force.” Harris v. Langley, 2016 U.S. App. LEXIS 8476 (6th Cir. May 6, 2016).
Posted inExcessive force|Comments Off on CA6: Officer’s unprovoked attack on ptf for shutting his door on uninvited officer was excessive
Based on defendant’s bizarre travel plans, his nervousness, the use of masking odors, the smell of marijuana on him, and the third-party registration of the vehicle, even an untrained person would doubt defendant’s story. Thus, the officer, a 15-year veteran with interdiction training, had reasonable suspicion to extend the stop and could run such additional records checks as he believed reasonable until his investigation was complete. Still, the checks were done relatively quickly. State v. Castillo, 2016 N.C. App. LEXIS 502 (May 3, 2016).*
Defendant’s consent was shown to be voluntary, and he signed consent to search forms. United States v. Doan, 2016 U.S. Dist. LEXIS 56527 (E.D.Va. April 27, 2016).*
Posted inConsent, Reasonable suspicion|Comments Off on NC: Def’s bizarre travel plans, nervousness, masking odors, and smell of MJ was RS even to the uninitiated
Defendant was seen parked in front of a store slumped over the steering wheel. The community caretaking function permitted officers to open the door to check on him. The community caretaking function isn’t limited to consensual encounters. State v. McCormick, 2016 Tenn. LEXIS 318 (May 10, 2016).
Plaintiff failed to show that it was entirely unreasonable for a sheriff’s deputy to believe that he had probable cause to arrest plaintiff for making harassing phone calls and terroristic threats. Even if the magistrate mistakenly issued the arrest warrants, the facts did not support a conclusion that such a mistake rose to the level of “gross incompetence” or “neglect of duty” on the officer’s part. Thus, he was entitled to qualified immunity on plaintiff’s § 1983 malicious-prosecution claim. Taylor v. Taylor, 2016 U.S. App. LEXIS 7996 (11th Cir. May 3, 2016).*
Plaintiff consented to entry onto his property by a tax appraiser, and his dispute was whether the appraiser exceeded the scope of the consent. The district court denied summary judgment for the appraiser, but the Fifth Circuit finds such a dearth of authority on the subject and what there is supports the defendant, so it holds that there must be qualified immunity. King v. Handorf, 2016 U.S. App. LEXIS 8462 (5th Cir. May 6, 2016): Continue reading →
Posted inConsent, Qualified immunity|Comments Off on CA5: Tax appraiser worked by consent; qualified immunity on scope of search claim
May 11–WASHINGTON, DC — Privacy and civil liberty advocates say a “vital” surveillance program that has helped identify terrorists and thwart attacks should be modified to ensure greater protection of Americans’ fundamental rights.
Known as the “702 program” — after Section 702 of the Foreign Intelligence Surveillance Act — the program authorizes the government to collect electronic communications from foreigners who are located outside of the United States, but who use U.S.-based internet or telecommunications sites.
Posted inFISA|Comments Off on SecurityInfoWatch: Officials calling for tweaks to security protocol
There is no reasonable expectation from a snitch coming into one’s home and recording a drug sale. By letting the snitch in, defendant assumed the risk. State v. Taylor, 2016-Ohio-2781, 2016 Ohio App. LEXIS 1644 (4th Dist. April 27, 2016).
A bag in an open field was subject to seizure and then a search, and defendant showed no reasonable expectation of privacy in it. United States v. Wellsandt, 2016 U.S. Dist. LEXIS 55782 (D.S.D. April 27, 2016).*
The search did not exceed the scope of consent granted, and, even it if did, there was probable cause for the search. United States v. Durazo, 2016 U.S. Dist. LEXIS 57322 (D.Ariz. April 28, 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.
