Violation of Article 36 of the Vienna Convention on Consular Relations by failing to advise defendant of his right to notify his consulate of his arrest and detention doesn’t lead to suppression of the consent search of his penis for his rape victim’s DNA, following Sanchez-Llamas v. Oregon. Braynen v. Plumley, 2016 W. Va. LEXIS 222 (April 8, 2016).
Grant of qualified immunity to a DHS case worker was reversed for lack of evidence in the record to support it. Remanded for more evidence. Myers v. Patterson, 2016 U.S. App. LEXIS 6543 (2d Cir. April 11, 2016).*
Posted inQualified immunity, Reasonableness|Comments Off on WV: Consent search not void for lack of notification of rights under Art. 36 of Vienna Convention
The FBI cracked a San Bernardino terrorist’s phone with the help of professional hackers who discovered and brought to the bureau at least one previously unknown software flaw, according to people familiar with the matter.
The new information was then used to create a piece of hardware that helped the FBI to crack the iPhone’s four-digit personal identification number without triggering a security feature that would have erased all the data, the individuals said.
Posted inCell phones, Surveillance technology|Comments Off on WaPo: FBI paid professional hackers one-time fee to crack San Bernardino iPhone
Officer’s reasonable belief driver gave false name is reasonable suspicion to continue a stop. United States v. Marsh, 2016 U.S. Dist. LEXIS 47995 (D.Vt. April 7, 2016).
Defendant challenged the search warrant because it included information that was allegedly obtained by an illegal search of his clothing. There was an independent basis for the search warrant without that information, so the motion to suppress is denied. Commonwealth v. Cassino, 2016 Mass. LEXIS 196 (April 8, 2016).
Knock-and-talk not invalid just because officers hope to get consent to search. They don’t violate the implied license described in Jardines by approaching the front door to talk to defendant in a knock-and-talk. United States v. Wesselhoft, 2016 U.S. Dist. LEXIS 47669 (D.V.I. April 8, 2016): Continue reading →
Posted inCurtilage|Comments Off on D.V.I.: Knock-and-talk not invalid under Jardines just because officers hope to get consent to search
Defendant’s repeated refusals to keep both hands out of his pockets and turning to keep one side away from the officer was reasonable suspicion he was armed. United States v. Mays, 2016 U.S. App. LEXIS 6552 (7th Cir. April 11, 2016): Continue reading →
Posted inReasonable suspicion|Comments Off on CA7: Refusal to remove hands and then keeping one side of body away from officer was RS
A Forest Service officer came upon defendant and others probably target shooting with rifles. He told them to secure the weapons and they did. Defendant was completely cooperative and nothing suggested that he was otherwise armed. One long gun doesn’t mean that defendant was armed with a pistol of some kind. The facts strongly suggested otherwise. The pat frisk of defendant’s person that revealed methamphetamine is suppressed. State v. Smith, 277 Ore. App. 298, 2016 Ore. App. LEXIS 408 (April 6, 2016): Continue reading →
Posted inReasonable suspicion, Stop and frisk|Comments Off on OR: Possession of a long gun in the woods doesn’t justify a stop and frisk for another weapon without RS
This case involves a Motion to Suppress Evidence Obtained Pursuant to the Tax Information Exchange Agreement (TIEA) between the U.S. and the Cayman Islands. The U.S. has to make an application to the Cayman Islands for information, including the justification, and, here, that request is challenged as in a Franks challenge, that the information provided by the U.S. was false by being misleading and by omissions. The court finds the erroneous statements not materially misleading. Defendant also asserts that an unreasonable search of electronic evidence led to the TIEA request. The court finds there was no illegal search, and, even if there was, there was enough already in hand to make the request without it, thus finding an independent basis for the request. United States v. Womack, 2016 U.S. Dist. LEXIS 47833 (W.D.Mo. March 14, 2016)
In the same case, the IRS agents had a reasonable belief in the common authority of defendant’s employee over her work computer and work email files that she could copy them and turn them over to the IRS. United States v. Womack, 2016 U.S. Dist. LEXIS 47834 (W.D.Mo. March 14, 2016): Continue reading →
Posted inComputer and cloud searches, Reasonableness|Comments Off on W.D.Mo.: Treaty request for financial information from Cayman Islands was not based on materially false information; based on employee search of computer
A federal judge in Boston ordered Apple to help the FBI access information on a suspect’s locked iPhone earlier this year, according to court filings unsealed Friday…. But Bowler stopped short of requiring that the company decrypt the information on the iPhone.
Posted inCell phones|Comments Off on The Hill: Boston judge ordered Apple to give FBI iPhone data in gang case
Defendant’s denying ownership of a lockbox tossed onto the ground by his girlfriend saying it wasn’t his was a waiver of any reasonable expectation of privacy in it. State v. Melling, 2016 Ida. App. LEXIS 46 (April 6, 2016).
The court analyzes the alleged falsities in the affidavit and finds that they are not false under Franks. The warrant was issued with probable cause, and the good faith exception would apply. Finally, defendant committed a new crime against the officers that alone justified the search and seizure. United States v. Barnard, 2016 U.S. Dist. LEXIS 47429 (D.Me. April 8, 2016).*
Posted inAbandonment, Franks doctrine|Comments Off on ID: Denial of ownership of a lockbox tossed onto ground by girlfriend was abandonment
Defendant was already stopped behind a car that the police suspected the driver of drunk driving because of knocked down traffic cones. The officer recognized defendant as a city employee, but he wanted to talk to him because he wanted to know what defendant also saw. Defendant was under the influence, too. Under Brown v. Texas, the court analyzes the totality and finds the continuation of the already stopped car reasonable. State v. Woldt, 293 Neb. 265, 2016 Neb. LEXIS 51 (April 8, 2016): Continue reading →
Posted inReasonable suspicion|Comments Off on NE: “Stop” of already stopped car as witness to possible DWI was reasonable on totality
Defendant was stopped because the officer already knew that defendant was driving without a license. The search of the car was justified by the handle of a gun being in plain view sticking out from under the seat, and it was “immediately apparent” what it was. United States v. Hawkins, 2016 U.S. App. LEXIS 6360 (3d Cir. April 7, 2016).
“Based upon the totality of the circumstances, there was reasonable suspicion for him to stop the vehicle. The unrecognized older vehicle with new plates, driving at a time of day when there is very little traffic, recently observed traveling in the opposite direction by another agent, erratic driving, and in an area high in traffic for narcotics and human smuggling coupled with Agent Ortiz’s years of experience support a finding of reasonable suspicion.” United States v. Ventura, 2016 U.S. Dist. LEXIS 47687 (D. Ariz. April 8, 2016).*
A pre-McNeely warrantless blood draw was unconstitutional now but saved by the good faith exception because it was valid at the time it happened. State v. Liles, 2016 Fla. App. LEXIS 5427 (Fla. 5th DCA April 8, 2016).
Arguing over whether “long black gun” should have been specified as assault rifle or AK-47 and whether the vehicle was a “possible 2000” model truck when it was a 2006 weren’t material for Franks purposes. United States v. Woodley, 2016 U.S. Dist. LEXIS 47583 (E.D.Mich. April 8, 2016).*
Driving over the fog line for 40 yards or so justified a stop. State v. Brown, 2016-Ohio-1453, 2016 Ohio App. LEXIS 1344 (4th Dist. March 25, 2016).*
The trial court denied the motion to suppress without a hearing, and the state concedes error. Defendant showed enough standing in at least the search of his own bag in the car to get a hearing on the legality of his detention and the search. Foley v. State, 2016 Fla. App. LEXIS 5423 (Fla. 5th DCA April 8, 2016).
Defendant was a passenger in a car stopped by the police. Before the stop, the officer recognized both occupants as being involved in manufacturing methamphetamine. The driver had a warrant out for him and he fled. The passenger was detained with his own reasonable suspicion. State v. Bryant, 2016 Tenn. Crim. App. LEXIS 255 (April 5, 2016).*
IAC claim for not filing a motion to suppress is denied because defense counsel did and lost. Tallant v. State, 2016 Tenn. Crim. App. LEXIS 256 (April 5, 2016).*
Defendant’s search was in 2011, and he raised Rodriguez in his 2255. First, it’s denied because defendant was on notice of the issue because it said it merely applied Caballes. [Also, it was overturning the Eighth Circuit’s de minimus rule which was inconsistent with everything.] He was well on notice of the issue. Second, Stone v. Powell denies a post-conviction litigant from relitigating a search issue. Wilson v. United States, 2016 U.S. Dist. LEXIS 46313 (D.Md. April 6, 2016).
Grant of motion to suppress affirmed on trial judge’s credibility determination. Dissent sees justification for the stop on the record not argued by the parties. State v. Jennings, 2016 Fla. App. LEXIS 5298 (Fla. 4th DCA April 6, 2016) (2-1).*
A recall petition was filed alleging misfeasance by a local public official that could lead to improper seizures of allegedly dilapidated mobile homes in the city. The fact it could lead to that is not yet misfeasance. Even if that happened later, that doesn’t mean that the proposed ordinance was misfeasance. Gibson v. Kesterson, 2016 Fla. App. LEXIS 5266 (Fla. 1st DCA April 6, 2016).*
Posted inReasonable suspicion|Comments Off on D.Md.: Rodriguez was not a new rule of law so def was on notice of the issue through Caballes
Defense counsel was not ineffective for not challenging under the Fourth Amendment the police entry into the house that led to defendant assaulting an officer. Even if it was a nonconsensual entry, defendant’s crime against the officer was independent of that, so the legality of the entry wouldn’t suppress the officer’s testimony of the assault. State v. Fort, 2016-Ohio-1242, 2016 Ohio App. LEXIS 1337 (10th Dist. March 24, 2016). (Note: In most states, the illegal entry may be arguable justification for the assault to the jury, but it’s never a question of suppressing the defendant’s new crime.)
Defendant consented to a search of his hotel room. (In the prior R&R, the USMJ found that defendant lacked standing, but the DJ disagreed and remanded.) United States v. Aiken, 2016 U.S. Dist. LEXIS 45606 (D.Me. April 4, 2016),* adopted, 2016 U.S. Dist. LEXIS 167204 (D. Me. Dec. 5, 2016).*
“The officers did not search the vehicle until after any permissible justification to search had dissipated. The officers had decided to not even write Defendant a traffic ticket. Yet, the officers continued his detention — seized him, handcuffed him, and placed him in a police car on a hunch — lacking reasonable suspicion.” “The Court further finds, after listening to the recording carefully, with headphones, on ten occasions, that there is no evidence that the officers obtained a second or third consent during their subsequent interaction with Defendant. To the extent that the officers testified at the hearing, in response to leading questions that Defendant reaffirmed consent, there is no support for that in the recording, and the Court, relying on the audio/video, does not credit that testimony.” United States v. Mahone, 2016 U.S. Dist. LEXIS 47873 (E.D.Mich. April 8, 2016).
The video of defendant’s stop shows that the officer never threatened to get a warrant when he asked for consent, so even if defense counsel filed a motion to suppress the consent on that and other proffered grounds, it would have been denied. No IAC. United States v. Sanchez, 2016 U.S. Dist. LEXIS 47515 (D.Kan April 6, 2016).*
Posted inConsent, Reasonable suspicion|Comments Off on E.D.Mich.: Video of stop belies officer’s claim of consent; stop should have ended when justification dissipated
"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.
