Defendant has no standing to contest the search of the person of the passenger in his car. People v. Gibson, 2016 NY Slip Op 02193, 2016 N.Y. App. Div. LEXIS 2171 (4th Dept. March 25, 2016).
There was justification for claimants’ stop for speeding, and one thing led to another, and a lot of cash was seized. While the court doesn’t seem to like it that cash can be seized without a crime being charged, the legislature authorized that, and they have to follow it. In re Property Seized from Thao, 2016 Iowa App. LEXIS 242 (March 23, 2016).*
Posted inForfeiture, Standing|Comments Off on NY4: Driver has no standing in search of passenger’s person
A Miami Beach cop, worried about his words being twisted at trial, recently used his newly outfitted “body camera” to record a hallway interview by a defense attorney — without telling her first.
The resulting objection from the Miami-Dade Public Defender’s Office, it is safe to say, was strenuous.
The episode and backlash have spurred Miami Beach police to ban officers from using the new technology at such so-called “hallway depositions” — and underscored the difficult balance of providing the public a transparent view of how law enforcement operates while protecting privacy rights.
Posted inBody cameras|Comments Off on Miami-Herald: Police body-cam recording of defense attorney causes stir in Miami-Dade
As a national conversation continues over the relationship between law enforcement and the public, sparked by videos of incidents of police brutality, the Pennsylvania Supreme Court has agreed to hear a case over the public’s right to view video footage created by the Pennsylvania State Police.
Posted inBody cameras|Comments Off on Legal Intelligencer: Pa. Justices to Grapple With Public Access to Police Footage
Dog sniff at an apartment’s door at 3:20 am was unreasonable under Jardines. It was a “constitutionally protected area.” People v. Burns, 2016 IL 118973, 2016 Ill. LEXIS 281 (March 24, 2016).
Officers did a knock-and-talk based on apartment neighbors’ complaints of burning marijuana. The leaseholder opened the door and let the police in. He mentioned that his girlfriend was in the back room, and the marijuana was hers. He sent them to the back room, and the door was usually locked but apparently not then. Then there was a dispute over whether they were boyfriend-girlfriend or not, but it didn’t seem to matter because, all things considered, the court finds the situation at the time unambiguous and the officers had no duty to inquire further into whether her control over her room was exclusive or not. State v. Khuram, 2016 Iowa App. LEXIS 239 (March 23, 2016).*
Defendant was driving under the influence, having run into a building, and the police were called. When officers got to defendant’s home, he was somewhat belligerent, and the police ultimately entered the house. Distinguishing Welsh v. Wisconsin and admitting there was no true “hot pursuit,” the court still finds exigent circumstances for a warrantless entry into defendant’s house to arrest him because his actions demonstrated a propensity to violence. State v. Ness, 2016 Iowa App. LEXIS 241 (March 23, 2016): Continue reading →
Posted inArrest or entry on arrest, Emergency / exigency|Comments Off on IA: While no “hot pursuit” of DUI suspect into his house, def’s belligerent attitude justified exigency for entry
Defendant came to the sheriff’s office and was served with an order of protection. He then consented to a search of his house in response to the provision in the order of protection: “Respondent shall surrender any and all firearms and ammunition possessed or owned by the Respondent to the law enforcement officer serving this Order.” It turned out some of the guns were stolen and one had a defaced serial number and another was a sawed-off shotgun. Alternatively, a neutral and detached magistrate issued the order to surrender the guns, and the police could rely in good faith on that finding of cause and the order under the good faith exception. United States v. Spurlock, 2016 U.S. App. LEXIS 5246 (4th Cir. March 22, 2016): Continue reading →
Posted inConsent, Good faith exception|Comments Off on CA4: Provision in order of protection for def to surrender firearms was subject to consent and GFE
The officers’ use of conversational speech in describing defendant’s driving was not so vague that it did not show reasonable suspicion. “While Burnett argues that Officer Fuhrman and Officer Winston failed to articulate facts supporting reasonable suspicion to justify the stop, because of the words ‘looked like,’ ‘I guess,’ and ‘basically,’ etc., Burnett places too much emphasis on what is normal speech and appears to be stretching to find an argument for suppressing the evidence. The officers’ testimony makes it clear that they witnessed Burnett violate two traffic laws, by driving at an unreasonable speed and failing to properly signal a turn, which justified the officers’ stop of the vehicle.” United States v. Burnett, 2016 U.S. Dist. LEXIS 37771 (N.D. Ind. Feb. 22, 2016).
While defendant denied consent to search his car, the officer credibly testified that he smelled marijuana coming from it, and that justified its search. Brenes v. State, 2016 Tex. App. LEXIS 2943 (Tex.App. – Texarkana March 23, 2016).*
Posted inReasonable suspicion|Comments Off on N.D.Ind.: The officers’ use of conversational speech in describing defendant’s driving was not so vague that it did not show RS
Defendant’s U-turn over railroad tracks 50′ before a “safety roadblock” set up on a highway just across the state line from Iowa was reasonable suspicion. (Time of day was an important factor.) It was not indicative of “going about one’s business.” People v. Timmsen, 2016 IL 118181, 2016 Ill. LEXIS 277 (March 24, 2016): Continue reading →
Defendant worked at a DQ and he cleaned a bathroom. Later, another employee found an iPod in the bathroom, and turned it in to a supervisor. It was looked at to determine ownership, and it was locked up until the next day. A little later, defendant showed up asking about the iPod and was told it was locked up. The subsequent police search didn’t exceed the private search, and that justified the search warrant. Lopez v. State, 2016 Tex. App. LEXIS 2974 (Tex. App. – Corpus Christi – Edinburg March 24, 2016).
Probable cause for defendant’s arrest came from the statement of his codefendant. The trial court credited the reasonable belief that defendant’s girlfriend had apparent authority to consent to a search of their place, and that is supported by the evidence. People v. Mills, 2016 NY Slip Op 02221, 2016 N.Y. App. Div. LEXIS 2185 (4th Dept. March 25, 2016).*
Posted inPrivate search, Probable cause|Comments Off on TX13: Police search of iPod didn’t exceed private search; warrant valid
In an attempted murder case, defendant was convicted of conspiracy. “[P]olice had a warrant to search the entire residence for evidence, and that DNA, blood or blood spatter, hair, and trace evidence were the types of evidence that one could expect to find on rugs.” The warrant logically included search and seizure of rug cleaning equipment recently used to look for trace evidence there because it could have been used to hide evidence. State v. Reger, 277 Ore. App. 81, 2016 Ore. App. LEXIS 321 (March 16, 2016).
Posted inScope of search|Comments Off on OR: SW for trace evidence on carpets allowed search of carpet cleaning equipment
Defendant failed to preserve for review most of the issues for suppression by not making them specific in his motion to suppress and then getting the issue somehow before the trial court. Moreover, his failure to join in a codefendant’s argument was a waiver. He does, however, get a remand for a hearing on a search issue that arose mid-trial that wasn’t anticipated. People v. Samuel, 2016 NY Slip Op 02222, 2016 N.Y. App. Div. LEXIS 2186 (4th Dept. March 25, 2016).
Questioning probable cause to arrest did not preserve search incident to arrest argument. People v. Miranda, 2016 NY Slip Op 02120, 2016 N.Y. LEXIS 383 (March 24, 2016).
Posted inBurden of proof|Comments Off on NY: Two on waiver for failure to articulate search issue, and failure to join defendant’s search issue is waiver
A former head of two intelligence agencies had a clear message on Friday for the government as it tries to get Apple to unlock an iPhone used by one of the San Bernardino shooters.
“Get over it,” said Gen. Michael Hayden, a former head of the National Security Agency and the CIA under President George W. Bush. “Understand that no matter what we do with Apple, it’s going to get harder and harder to get content.”
Posted inSurveillance technology|Comments Off on The Hill: Former NSA head to FBI: ‘Get over’ Apple dispute
A warrantless search of cell phone in a school was justified by reasonable suspicion under T.L.O. that the student had been in possession of a firearm found at school. There was sufficient exigency for Riley under T.L.O. Alternatively, the search occurred before Riley, and no warrant was required for a cell phone in California before that. In re Rafael C., 2016 Cal. App. LEXIS 229 (1st Dist. March 25, 2016): Continue reading →
Posted inCell phones, School searches|Comments Off on Cal.1st: Warrantless school search of cell phone on RS justified by T.L.O.
Defendant granted a general consent to search his vehicle, and that included closed containers. Here, there were two ice chests. The hinges and seams looked tampered with and they contained fish (often to mask drug odor). One officer used an upholstery tool to separate the already broken seam and saw foam that wasn’t part of the manufacturing. Under that he finally saw a black bundle which had drugs. The consent was valid as to prying open the ice chests. United States v. Mendoza, 2016 U.S. App. LEXIS 5597 (10th Cir. March 25, 2016): Continue reading →
Posted inConsent|Comments Off on CA10: Defendant granted a general consent to search his vehicle, and that included closed containers; even prying broken seams of an ice chest
“In the present case, the police officers’ attempts to photograph the defendant did not constitute either an unreasonable search or compelled self-incrimination. Because the defendant had no fourth or fifth amendment right to refuse to be photographed, his noncooperation was not an invocation of a constitutional right. Accordingly, the introduction into evidence of his refusal to cooperate did not violate his due process rights, and this claim fails.” State v. Morales, 2016 Conn. App. LEXIS 127 (March 29, 2016).
Posted inSearch|Comments Off on CT: Photographing def’s body would not be a search
The officer “cited the time of day, the area’s known narcotic activity, and his belief, based on what other officers had told him, that Appellant was a ‘known criminal’ as the reasons for detaining Appellant. The court of appeals concluded that the totality of these circumstances was sufficient to provide reasonable suspicion that criminal activity was afoot. However, we disagree that these circumstances were enough to support a conclusion that a reasonable suspicion to stop Appellant existed.” Defendant was doing nothing else to even suggest illegal conduct. Brodnex v. State, 2016 Tex. Crim. App. LEXIS 58 (March 23, 2016).
Posted inReasonable suspicion|Comments Off on TX: Being a ‘known criminal’ on the street at 2 am in a high crime area not reasonable suspicion
Defendant had a reasonable expectation of privacy in his iPad that was in his house despite the fact that others in the home, including the housekeeper, had the password. The housekeeper saw likely child pornography and told the police, and she was a citizen informant. United States v. Friar, 2016 U.S. Dist. LEXIS 36148 (W.D.Tenn. Feb. 12, 2016), adopted 2016 U.S. Dist. LEXIS 35775 (W.D.Tenn. March 18, 2016).
Defense counsel was not ineffective for not briefing his search and seizure issue where a motion was filed and a hearing held. All the arguments were raised and addressed by the court, and the lack of a brief doesn’t mean that the outcome would be different. Defendant doesn’t point to any additional arguments that could have been made and weren’t which would have been successful. United States v. Wilson, 2016 U.S. Dist. LEXIS 36576 (W.D.Mich. March 21, 2016).
Defendant’s Franks challenge fails: There were two unrelated crimes referred to, and the PC as to the drug crime was not challenged. As to the other, that wasn’t even in federal court, so it doesn’t matter and wasn’t material to issuance of the search warrant. United States v. Shockley, 2016 U.S. App. LEXIS 5357 (8th Cir. March 23, 2016).
The seizure of defendant’s cell phone from his car was reasonable because (1) there was reason to believe the phone was in the car because that’s how the police tracked him, and (2) the police knew that he arranged drug deals with the phone. United States v. Wilmer, 2016 U.S. Dist. LEXIS 36789 (E.D.Mich. March 22, 2016).*
Posted inCell phones, Franks doctrine|Comments Off on CA8: Where two crimes alleged in affidavit and PC as to each is sufficient, Franks challenge to one is moot
The CI said defendant had a gun and crack. Surveilling the defendant, officers noticed him reaching for his waistband, indicating he was likely armed. The stop and frisk was based on reasonable suspicion from the surveillance corroborating the gun. At book-in, defendant was “asked … whether he was employed, [and] Sanchez matter-of-factly answered that he was ‘a drug dealer.’” This was not a custodial interrogation designed to elicit an incriminating response. Therefore, the statement was admissible at trial. United States v. Sanchez, 2016 U.S. App. LEXIS 5392 (1st Cir. March 23, 2016).*
Defense counsel was not ineffective for not challenging the search of defendant’s car by the tow company employee, a private search. On direct appeal, the search was not found to be plain error. He thus “fails to demonstrate a reasonable probability of a different outcome at trial had counsel filed the motion.” Garcia-Gaona v. State, 2016 Nev. App. LEXIS 90 (March 16, 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.
