Officers got a search warrant for a strip search to search defendant’s person for drugs. Making him squat to release a packet of drugs between his “butt cheeks” was within the warrant. People v. Jarvis, 2016 IL App (2d) 141231, 2016 Ill. App. LEXIS 84 (Feb. 23, 2016).
Police followed a trail of leaking vehicle fluid from a wreck to defendant’s house. His mother consented to an entry where he was arrested. Exigency doesn’t have to be decided. Spoone v. State, 2016 Ga. App. LEXIS 89 (Feb. 25, 2016).*
The omissions from the search warrant affidavit clearly weren’t enough to undermine the probable cause, so the Franks challenge fails. United States v. Wells, 2016 U.S. Dist. LEXIS 22450 (D.Nev. Feb. 19, 2016).*
Posted inConsent, Franks doctrine, Strip search|Comments Off on IL: SW for drugs on person permitted strip search and squat; no touching involved
Police received a 911 hang up call, and an officer was dispatched. Outside the home, the smell of burning marijuana was strong. The officer came to the door, was assured everything was alright, but he said he had to check it out. Whether there was consent doesn’t have to be decided because the emergency aid doctrine applied to the entry and walk through, even though there was testimony of trouble with the telephone lines in the neighborhood. The later issued search warrant cured any problems with consent, without having to even decide it. State v. Wemer, 2016 Iowa App. LEXIS 143 (Feb. 24, 2016).
Defendant had been surveilled for days for drug activity, and there was reasonable suspicion for that. The stop finally occurred when defendant, with the police behind, turned a corner, and officers could see that the driver wore no seatbelt. The stop was valid. United States v. Jennings, 2016 U.S. Dist. LEXIS 21872 (E.D.N.C. Jan. 7, 2016),* adopted 2016 U.S. Dist. LEXIS 21870 (E.D.N.C. Feb. 23, 2016).*
Posted inEmergency / exigency, Reasonable suspicion|Comments Off on IA: 911 hang up call justified a police walk through even though occupants said everything was fine
Defendant argued lack of probable cause for search warrants for two vehicles and a computer, so the court goes first to good faith and analyzes the probable cause through that lens finding that reliance on the warrants with this much detail was objectively reasonable. “It is clear to the Court that this is not a situation where the supporting affidavits were so devoid of factual support that it would be objectively unreasonable for a law enforcement officer to rely on it.” United States v. Gonzalez, 2016 U.S. Dist. LEXIS 23073 (D.Minn. Jan. 19, 2016), adopted. 2016 U.S. Dist. LEXIS 23069 (D.Minn. Feb. 24, 2016).
The fact that half of the center taillight didn’t work was sufficient cause for a stop under California law. United States v. McKenry, 2016 U.S. Dist. LEXIS 22691 (E.D.Cal. Feb. 23, 2016).*
Posted inGood faith exception, Reasonable suspicion|Comments Off on D.Minn.: When lack of PC for SW is raised, this court looks to whether there was enough for reliance on SW to be objectively reasonable
Defendant called 911 to complain that an armed person was trying to break into his apartment. Police arrived, and one had a dual purpose dog. The dog was run around the property looking for the scent of a person, but got nothing. The officer handler and the dog came in the house to meet up with the other officers and just observed. There was no direction to search for drugs. After about five minutes, the dog became excited, and the handler took that to mean he alerted on drugs. A search warrant was obtained, and it was valid. The dog was not brought in to search for drugs and wasn’t. He was just there observing. It was happenstance, and this was not a case of a drug dog brought to a house just because the police wanted to. On good faith, “At the very least, the validity of the search warrant was a close call, making Officer Costello’s reliance on it objectively reasonable.” United States v. Iverson, 2016 U.S. Dist. LEXIS 23445 (W.D.N.Y. Feb. 25, 2016). Key to this decision is that the dog was dual purpose, this was an armed robbery call, and there is no evidence the dog was directed to search for drugs. There is no police right to bring a drug dog on any call involving a house: Continue reading →
Posted inDog sniff|Comments Off on W.D.N.Y.: A dual purpose dog and handler had implied license to enter house on a 911 robbery call
Defendant ran a portable toilet business, and his home was on the property. The EPA suspected him of dumping into a river, and they secured a warrant for the business. They also searched his bedroom, and the EPA had no authority to search the residence. “In this case, the Court finds the EPA warrant did not authorize the search of Butler’s residence. The EPA warrant failed to meaningfully disclose and seek permission to search Butler’s residence. Moreover, the EPA warrant did not authorize officers to search for evidence of violations of the Clean Water Act in Butler’s bedroom. Additionally, the Court finds that the government is not saved by the good faith exception to the warrant requirement. The government has failed to demonstrate that officers had an objectively reasonable good faith basis for searching Butler’s residence.” United States v. Butler, 2016 U.S. Dist. LEXIS 21443 (D.Utah Feb. 22, 2016).
The USMJ’s credibility determination that the defendant was more believable than the officers is supported by the evidence as a whole in the record. The recommendation to grant the motion to suppress is adopted. United States v. Boatrite, 2016 U.S. Dist. LEXIS 20785 (N.D.W.Va. Feb. 22, 2016),* R&R 2016 U.S. Dist. LEXIS 20786 (N.D. W.Va. Feb. 2, 2016).*
Posted inAdministrative search, Burden of proof|Comments Off on D.Utah: EPA administrative SW did not authorize search of def’s residence on the business property
“Barnes, as the possessor of a stolen vehicle, had no legitimate expectation of privacy in the vehicle. His challenge to the search fails on this ground alone. [¶] In addition, it should be noted that, even if Barnes did have standing to challenge the search, which he does not, the inventory search of the vehicle, following the discovery that the vehicle was stolen and the proper and legitimate arrest of the defendant, was a valid exception to the warrant requirement and in no way violated Barnes’ rights. Therefore, even if there were standing, the defendant’s motion should be denied.” United States v. Barnes, 2016 U.S. Dist. LEXIS 21959 (W.D.La. Feb. 17, 2016), adopted 2016 U.S. Dist. LEXIS 21957 (W.D. La. Feb. 23, 2016). Accord: United States v. Avagyan, 2016 U.S. Dist. LEXIS 22231 (E.D. Va. Feb. 22, 2016).
The officer developed reasonable suspicion from conversing with the occupants of the vehicle such that their stories didn’t match about anything and then they contradicted themselves on further questioning. United States v. Quiroga, 2016 U.S. Dist. LEXIS 21711 (D.Neb. Feb. 22, 2016),* R&R 2015 U.S. Dist. LEXIS 176370 (D. Neb. Dec. 30, 2015).*
“Evidence that the officers forwarded the false confession to prosecutors can satisfy the commencement element of a malicious prosecution cause of action, and the proof of the absence of probable cause for the prosecution and the police’s transmission of the fabricated evidence can overcome the presumption of probable cause arising from a grand jury’s indictment of the plaintiff. The same proof can support an inference that the police acted with actual malice in commencing the prosecution. Applying these principles to the consolidated appeals now before us, we hold that the courts below improperly granted summary judgment to the individual defendants on plaintiff’s false arrest and malicious prosecution claims under New York common law and 42 U.S.C. § 1983.” De Lourdes Torres v. Jones, 2016 NY Slip Op 01254, 2016 N.Y. LEXIS 205 (Feb. 23, 2016).
Posted in§ 1983 / Bivens, Police misconduct|Comments Off on NY: False confession forwarded to DA for grand jury supports common law malicious prosecution and § 1983 claim
Defendant was stopped for a traffic offense, and he was told he was being placed in handcuffs because the officer was unaware of who he was and that that did not mean he was going to jail. A patdown produced drugs. At the time of the patdown, there was cause for an arrest, and the search was valid as a search incident. United States v. Gibbs, 2016 U.S. Dist. LEXIS 21431 (E.D.Mich. Feb. 23, 2016).
There was probable cause for the affidavit for search warrant, contrary to the USMJ’s conclusion. Moreover, it was not bare bones either, so the good faith exception would apply, too. United States v. Nagy, 2016 U.S. Dist. LEXIS 21082 (N.D.W.Va., Feb. 22, 2016).*
The officer had reasonable suspicion that defendant’s tractor trailer was carrying drugs somewhere to use a drug dog during the stop. The log book wasn’t complete, and it showed he started in McAllen, Texas, a border town where he stayed for nine days, unusual for a trucker. The log book generally showed him driving around Indiana, and never to Texas but for that one trip. Defendant was excessively nervous. Finally, he had a 48′ trailer rather than the normal 53′ trailer, and more drugs are found in 48′ trailers. United States v. Quintanilla, 2016 U.S. Dist. LEXIS 20738 (N.D.Ind. Feb. 22, 2016).*
Defendant’s original motion didn’t support standing but his brief did, and the court finds he was an overnight guest with standing. “At the outset, the court seriously doubts that the search warrant in this case was valid. While a magistrate’s decision to approve a warrant application is entitled to great deference, the magistrate still must have a ‘substantial basis’ to find ‘a fair probability that contraband or evidence of a crime will be found in a particular place.’ Illinois v. Gates, …. In this case, the warrant application included few—if—any facts connecting 109 Francis Drive NW with marijuana distribution. … However, because it was objectively reasonable for Detective Lovell to rely on the search warrant, this court need not finally decide whether the magistrate erred in approving the warrant application. … Instead, the court will proceed immediately to the good faith analysis.” The “four corners” rule doesn’t apply to good faith. “To determine ‘objective reasonableness,’ a court looks to the information included in the warrant affidavit and any ‘uncontroverted facts known to the officers but inadvertently not disclosed to the magistrate.’ United States v. McKenzie-Gude, 671 F.3d 452, 459 (4th Cir. 2011); United States v. Brown, 481 F. App’x 853, 855 (4th Cir. 2012) (‘We may consider information conveyed to the magistrate but not contained in the affidavit as well as uncontroverted facts known to the officer but inadvertently not presented to the magistrate.’)” United States v. Campbell, 2016 U.S. Dist. LEXIS 20992 (W.D.Va. Feb. 22, 2016).
Posted inGood faith exception|Comments Off on W.D.Va.: Four corners rule does not apply to additional facts supporting good faith exception
Punishing withdrawal of implied consent in a suspected DUI case violates due process. “Refusal to submit” cannot be separately prosecuted. Four cases decided Feb. 26th:
Defendant’s cell phone was searched without a warrant pre-Riley under California’s Diaz which expressly permitted warrantless cell phone searches. Therefore, that search was valid at the time under the good faith exception. United States v. Williams, 2016 U.S. Dist. LEXIS 21328 (N.D.Cal. Feb. 22, 2016): Continue reading →
Posted inCell phones, Good faith exception|Comments Off on N.D.Cal.: Pre-Riley warrantless state search of cell phone was valid, so GFE applies
While the officer at the suppression hearing couldn’t remember the basis for the traffic stop, the crux was that defendant gave a false name when arrested, and that was an independent illegality attenuated from the stop. The false name charge would not be suppressed, and the court of appeals is reversed, and the trial court ruling reinstated. State v. Suppah, 358 Ore. 565, 2016 Ore. LEXIS 123 (Feb. 19, 2016), revg 264 Ore. App 510, 334 P3d 463 (2014) (en banc).
Defendant had to travel to Cincinnati for court appearances, and he says this undermines the government’s argument that he was traveling there for drug trafficking, too.. One is not exclusive to the other, and it was a fair inference defendant was doing just that. Thus, there was probable cause for GPS warrants on cars. Also, a UPS package was reasonably detained in transit, and that led to a dog sniff which gave probable cause. United States v. Lawson, 2016 U.S. Dist. LEXIS 21034 (N.D.Cal. Feb. 18, 2016).*
Posted inAttenuation, GPS / Tracking Data|Comments Off on OR: Even if stop invalid, false name given to officer is attenuated
Defendant came to a hospital ER with a gunshot wound, and the police were called. Defendant’s clothes were put in a clear plastic bag. Without any information about entrance or exit wounds and whether the clothes were evidence of a crime, the officer seized the clothing and inspected it, concluding defendant shot himself. Defendant was indicted for criminal possession of a handgun, and the clothes should have been suppressed. People v. Sanders, 2016 NY Slip Op 01255, 2016 N.Y. LEXIS 204 (Feb. 23, 2016), revg 2014 NY Slip Op 05454, 119 A.D.3d 878, 991 N.Y.S.2d 66 (2d Dept. 2014).
Defendant lived in a rooming house. The owner consented to an entry of the common area, and the police came to his door. He consented to an entry into his room. People v. Robinson, 2016 NY Slip Op 01352, 2016 N.Y. App. Div. LEXIS 1341 (2d Dept. Feb. 24, 2016).*
The court credits the officer’s testimony that a plain view occurred. United States v. King, 2016 U.S. Dist. LEXIS 21073 (M.D.Fla. Feb. 22, 2016).*
Defendant, stopped by the police, said he had ID in the car and gave police permission to look for it. The officer smelled marijuana, and that provided cause for search of the car. State v. Raffone, 2016 Conn. App. LEXIS 81 (March 1, 2016).*
A search for business records was done with force and guns drawn because of officers’ fear of retaliation because the business owner didn’t like the ordinance he was to pay sales taxes under. When police entered, the owner drew his gun and was shot. The plaintiff fails to address how any of this violated clearly established law. Merely saying one is entitled not to be subjected to excessive force isn’t enough. Cass v. City of Abilene, 2016 U.S. App. LEXIS 3235 (5th Cir. Feb. 24, 2016): Continue reading →
Defendant’s phone and computer were subjected to a private search, albeit the searcher keeping the police informed what she was doing. She wasn’t a government agent. United States v. McCoy, 2016 U.S. Dist. LEXIS 20890 (E.D.Mich. Feb. 22, 2016).
The Georgia implied consent form was not coercive, and it didn’t have to tell defendant he could refuse consent. Kendrick v. State, 2016 Ga. App. LEXIS 79 (Feb. 23, 2016).*
Probable cause existed for defendant’s blood draw based on his bad driving, slurred speech, and failing two field sobriety tests. State v. Groves, 2016 Del. Super. LEXIS 92 (Feb. 17, 2016).*
Posted inConsent, Private search, Probable cause|Comments Off on E.D.Mich.: Still a private search even though police were kept informed of what was happening
Defendant was driving somebody else’s car and was stopped by the police. The police called the owner to get consent to search, and that was binding on the defendant. Also, he wasn’t there at the time. Gomillion v. State, 2016 Ga. LEXIS 166 (Feb. 22, 2016).*
There was probable cause and nexus to defendant’s residence in a child pornography warrant. “Defendant argues that the warrant did not establish why it was believed that Defendant, as opposed to one of the other two residents at the Jacobs Street address, who allegedly accessed the child porn website. However, the Sixth Circuit has explained that a warrant affidavit must be ‘judged on the adequacy of what it does contain, not on what it lacks, or on what a critic might say should have been added.’ United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000) (en banc). [¶] Here, based on the totality of the circumstances, the magistrate judge had a substantial basis for determining the existence of probable cause.” United States v. Stamper, 2016 U.S. Dist. LEXIS 20298 (S.D.Ohio Feb. 19, 2016).*
Posted inConsent, Nexus, Probable cause|Comments Off on GA: Absent owner of car called by police consented against driver
Two untested and uncorroborated informants couldn’t corroborate each other to make probable cause. Gerth v. State, 2016 Ind. App. LEXIS 44 (Feb. 18, 2016).
Defendant’s stop was consensual. “The question presented in this case is whether a police officer may ask a citizen twice to come over and speak to him without infringing upon that citizen’s Fourth Amendment rights. The State appeals the trial court’s order on rehearing granting Marques Albert’s motion to suppress evidence, and it argues that the rehearing judge erroneously concluded that the interaction between the police officer and Albert constituted an investigatory stop that was not supported by reasonable suspicion. The … motion to suppress was originally denied by a different judge, who concluded that the encounter was consensual after observing the police officer and Albert testimony. Based on the totality of the circumstances in this case, we find that this was not an investigatory stop. We reverse and remand ….” State v. Albert, 2016 Fla. App. LEXIS 2461 (Fla. 5th DCA Feb. 19, 2016).*
Posted inConsent, Informant hearsay|Comments Off on IN: Two untested and uncorroborated informants couldn’t corroborate each other to make PC
Kentucky law requires police and sheriff departments to report how much property and cash they seize and keep as the result of criminal investigations. But an Enquirer investigation found fewer than 30 percent of such agencies around the state actually sent in such accounts last fiscal year under a system that state officials describe as ‘sporadic’ at best.
Posted inForfeiture|Comments Off on Cincinnati Enquirer: Ky. seizure laws under scrutiny by local lawmaker
"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.
