While the state search and seizure provision is subject to broader interpretation in Iowa, the state supreme court hasn’t deviated from the rule that the exclusionary rule does not apply in probation revocation proceedings, so this court is bound by that. State v. Brooks, 2016 Iowa App. LEXIS 93 (Feb. 10, 2016).
Probable cause alone to arrest is not enough to search, but here there was more: furtive movements in the car and the smell of marijuana. State v. Perry, 292 Neb. 708, 2016 Neb. LEXIS 17 (Feb. 12, 2016).*
Defendant was not seized by an officer pulling up behind his parked car at 2 am with overhead lights on, knocking on window, and asking for ID. [Since ID is required for everything thanks to the USA PATRIOT Act, isn’t surrender of a DL alone a seizure? You can’t leave without it.] State v. Gilliam, 292 Neb. 770, 2016 Neb. LEXIS 18 (Feb. 12, 2016).*
Citizen informant’s call that a neighbor was dealing drugs out of his house and describing the comings and goings and the LPN and description of the last car was reasonable suspicion for that car’s stop. State v. Foster, 2016 Tenn. Crim. App. LEXIS 100 (Feb. 11, 2016).
Crossing the double yellow line is probable cause for a stop (collecting authorities). State v. Davis, 2016 Tenn. LEXIS 91 (Feb. 11, 2016).*
Crossing the fog line and touching it twice was reasonable suspicion (collecting authorities). State v. Smith, 2016 Tenn. LEXIS 92 (Feb. 11, 2016).*
A search warrant for weapons involved in a shooting included the house and “appurtenances” and that included a shed out back. A sawed-off shotgun was found, and that led to a separate charge. There’s no constitutional right to possess a sawed off shotgun. People v. Sandoval, 2016 COA 14, 2016 Colo. App. LEXIS 130 (Feb. 11, 2016).
The question of whether the state constitution requires advice of a right to refuse consent, reserved in the past, is not decided because it wasn’t preserved below. State v. Prusha, 2016 Iowa Sup. LEXIS 15 (Feb. 12, 2016).*
The district court’s finding of consent by defendant’s wife in her rental car was not clearly erroneous. United States v. Flores, 2016 U.S. App. LEXIS 2509 (10th Cir. Feb. 10, 2016).*
The officer’s threat to use force to get a blood draw when the defendant hadn’t done a thing to justify that comment made the blood draw involuntary. State v. Cullen, 2016 Del. Super. LEXIS 68 (Feb. 9, 2016): Continue reading →
Posted inConsent, Drug or alcohol testing|Comments Off on DE: Threat to take blood by force if necessary made consent invalid where it was unjustified to say so
The warrantless search of defendant’s home including a room with a locked, blood-spattered door, was reasonable under the community caretaking function. In light of all the facts that an officer had to consider, the blood outside the house, inside the house, and on the door itself, the fact that the door was locked, the conflicting stories, and the noises the officers had heard all required action. The fact that the officer heard a fan inside the locked room and smelled marijuana did not negate the bona fide community caretaking function. State v. Matalonis, 2016 WI 7, 2016 Wisc. LEXIS 7 (Feb. 10, 2016).
What appeared to be hand-to-hand transactions occurring from a vehicle with one person staying in the car and the other walking across the street to meet people while pacing on the phone was probable cause. The police were put on to this by a CI reporting the sales. State v. Lester, 2016 Minn. LEXIS 48 (Feb. 10, 2016).*
Posted inCommunity caretaking function, Probable cause|Comments Off on WI: Where there was a bona fide community caretaking entry because of blood outside and inside a house, the smell of marijuana didn’t negate the exigency
In addition to his many judicial bona fides, Justice Antonin Scalia was an underappreciated defender of the Fourth Amendment. With his typical thoroughness and deep textualism that reshaped American judging, the late conservative icon threw out convictions of individuals who were arrested as a result of unconstitutional violations. In Kyllo v. United States (2001), police illegally took thermal images of a man’s home to find a marijuana grow operation. In United States v. Jones (2012), a man had his Jeep tracked with GPS devices without a warrant, leading to a drug trafficking conviction. And in Florida v. Jardines (2013), police brought a drug dog onto a man’s porch to indicate drug activity inside, again, a marijuana grow operation. To Justice Scalia, the sanctity of a person’s home and property—beyond the “reasonable expectation of privacy” standard that dominates Fourth Amendment jurisprudence—was to be held above the governmental interests in fighting crime.
Posted inSCOTUS|Comments Off on Cato: Justice Scalia: Underappreciated Fourth Amendment Defender
The court’s credibility determination is that defendant did not revoke his consent after admittedly consenting. The seizure of his cell phone incident to arrest was valid because there was reason to believe there was evidence in it. Thus, the later search of the phone with the warrant was valid. United States v. Thomas, 2016 U.S. Dist. LEXIS 15073 (D.Nev. Feb. 5, 2016).
The officer here was investigating an open door on a vacant house known for drugs. He stopped defendant and another coming to the house with a flashlight and asked for ID because he found that suspicious. On the totality, there was reasonable suspicion. State v. Ballinger, 2016 MT 30, 2016 Mont. LEXIS 29 (Feb. 9, 2016).*
Defendant consented to a search of his person. Also, the officer once reached for defendant’s jacket and immediately felt a gun. United States v. Richardson, 2015 U.S. Dist. LEXIS 176026 (N.D. Ga. Dec. 1, 2015),* adopted 2016 U.S. Dist. LEXIS 15905 (N.D.Ga. Feb. 10, 2016).*
Posted inConsent, Reasonable suspicion|Comments Off on D.Nev.: Seizure of cell phone incident to arrest was valid; warrant came later
Once upon a time, the death of a Supreme Court justice wouldn’t have brought America to the edge of constitutional crisis. But that was a different country, with a very different Republican Party. In today’s America, with today’s G.O.P., the passing of Antonin Scalia has opened the doors to chaos.
For 42 years, SCOTUS has had a Republican majority, and the Republicans apparently feel a proprietary interest in owning all branches of government. Elections have consequences, but not when one is in denial apparently
Posted inSCOTUS|Comments Off on NYTimes: How America Was Lost
Police received a call to a shooting, and people at the scene were shouting “Officer Shaffer pulled into the driveway and blocked the car so that it could not leave. The driver of the car stopped, got out, and yelled to Officer Shaffer, ‘He’s inside! He’s inside!’ At the same time, two more men ran out of the house yelling, ‘Inside! He’s inside!’ Officer Shaffer detained all three men in the carport of the home until a backup officer arrived.” Crime scene investigators were right behind the police. The crime scene search was reasonable under Mincey because the crime scene people were right there. State v. Hutchison, 2016 Tenn. LEXIS 83 (Feb. 5, 2016): Continue reading →
Posted inEmergency / exigency, Reasonableness|Comments Off on TN: Crime scene investigators arrived right behind the police to a shooting call; crime scene search was reasonable under Mincey
Defendant’s motion to quash subpoenas for his jail telephone calls is denied. He was on notice by the inmate handbook and notices by the phone and during the calls, sometimes twice, that the calls would be recorded. United States v. Ewell, 2016 U.S. Dist. LEXIS 15040 (W.D.Pa. Feb. 8, 2016).
While the officer’s testimony on nexus was “inartful,” it was still enough to show a link between defendant’s cell phones and prostitutes. United States v. Key, 2016 U.S. Dist. LEXIS 14607 (N.D.Ill. Feb. 5, 2016).*
Defendant argues there was no reasonable suspicion for a stop for not using a turn signal in this specific instance, but that ignores that defendant fled from the attempted stop, and that was more than reasonable suspicion. United States v. Cottingham, 2016 U.S. Dist. LEXIS 14719 (N.D.W.Va. Jan. 8, 2016),* adopted 2016 U.S. Dist. LEXIS 14718 (N.D.W.Va. Feb. 8, 2016).*
The late Supreme Court justice was inaccurately described as “authoritarian.”
[He was generally good on the Fourth and strong on the Sixth, but not at all on the Fifth, Eighth, and Fourteenth Amendments. A robed contradiction. I got to argue in front of him twice.] Continue reading →
Posted inSCOTUS|Comments Off on Reason: Scalia’s Liberal Tendencies
The Senate is currently in recess until February 22. The recess began on Friday. Whether this opens an opportunity for a recess appointment depends upon how Senate leaders interpret an adjournment resolution approved last Friday. That will determine whether it will meet for brief activity during the recess, which could close that opportunity.
Posted inSCOTUS|Comments Off on SCOTUSBlog: Is a recess appointment to the Court an option?
In the wake of the death of Justice Antonin Scalia, questions have arisen about whether there is a standard practice of not nominating and confirming Supreme Court Justices during a presidential election year. The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.
Posted inSCOTUS|Comments Off on SCOTUSblog: Supreme Court vacancies in presidential election years
Probable cause to search premises, nexus, was shown by defendant receiving money for drugs, going to the address, and coming back with the drugs. United States v. Castro, 2016 U.S. Dist. LEXIS 15494 (E.D. Pa. Feb. 8, 2016).
Defendant was detained at a PX on an air force base for shoplifting. The stuff in her shopping cart was outside her possession and not subject to search incident. Her purse was subject to search incident. United States v. Holbrook, 2016 U.S. Dist. LEXIS 15217 (W.D.Wash. Feb. 5, 2016).*
Defendant’s 2255 IAC claims that involved the search failed because the search claim would have failed on the merits. Smith v. United States, 2015 U.S. Dist. LEXIS 175964 (N.D.Tex. Nov. 19, 2015),* adopted 2016 U.S. Dist. LEXIS 14035 (N.D. Tex. Feb. 5, 2016).*
Defendant kept drugs in his mother’s apartment, but he wasn’t her tenant nor was he an overnight guest. [Essentially he used her place as a stash house.] The mere fact he had a key to her apartment didn’t give him standing in it. State v. Rodriguez, 2016-Ohio-452, 2016 Ohio App. LEXIS 389 (12th Dist. Feb. 8, 2016): Continue reading →
Posted inStanding|Comments Off on OH12: Having a key to mom’s apt doesn’t give son standing when he didn’t live there
The court finds the officer more believable on the consent question because if, as defendant contends, it was fabricated, the officer also had to fabricate that defendant limited consent after the search started, and then the officer had to get a search warrant. That seems highly unlikely to all be fabricated. Therefore, defendant is found to have consented to the initial search up to withdrawal. United States v. Awad, 2016 U.S. Dist. LEXIS 15763 (D.Minn. Jan. 19, 2016),* adopted 2016 U.S. Dist. LEXIS 15761 (D. Minn. Feb. 4, 2016).*
Defendant had no standing in storage units rented by another to which he had shown no connection. No key, not a renter, no authority to allow or exclude others. United States v. Ramirez-Portillo, 2015 U.S. Dist. LEXIS 175959 (M.D.Fla. Dec. 11, 2015),* adopted 2016 U.S. Dist. LEXIS 14973 (M.D. Fla. Feb. 8, 2016).*
Defendant is found to have consented by emptying his pockets out on his own without having been asked to do anything. United States v. Richardson, 2015 U.S. Dist. LEXIS 176026 (N.D.Ga. Dec. 1, 2015),* adopted 2016 U.S. Dist. LEXIS 15905 (N.D. Ga., Feb. 10, 2016).*
Defendant is found not credible on the question of consent, and the consent is found voluntary. United States v. Thomas, 2015 U.S. Dist. LEXIS 175987 (D.Nev. Nov. 3, 2015), adopted 2016 U.S. Dist. LEXIS 15073 (D. Nev. Feb. 5, 2016).*
Lack of consent to the search can’t be raised on appeal because it wasn’t raised in the trial court. State v. Shutway, 2016-Ohio-431, 2016 Ohio App. LEXIS 367 (2d Dist. Feb. 5, 2016).*
Posted inConsent|Comments Off on Five cases on consent
Defendant was neither the owner nor driver of the car he was riding in which had his suitcase in the trunk. He didn’t have standing as to a search of the car, but he did have standing as to the search of his suitcase with his name on it. The search was invalid under inventory, which the state failed to support at the suppression hearing. Tyler v. State, 2016 Fla. App. LEXIS 1811 (Fla. 4th DCA Feb. 10, 2016): Continue reading →
Posted inInventory, Standing|Comments Off on FL4: State failed to prove inventory policy; def had standing in his own suitcase, albeit not the car
The stop was admittedly justified for a traffic offense, but the officer intentionally delayed ten minutes the writing of the traffic ticket, apparently to give more time for the drug dog to arrive. The dog arrived over thirty minutes into the stop, and the stop was unconstitutionally prolonged. United States v. Martin, 2016 U.S. Dist. LEXIS 13989 (S.D.W.Va. Feb. 5, 2016).
Defendant was a suspect in an attempted murder of a federal judge. USM’s went to his place with an arrest warrant, and he wouldn’t come out although it was reasonable to believe he was home, so they came in with a dog. The dog was deployed because of a risk of violence when defendant didn’t answer inside, and defendant was found hiding and was bitten by the dog. The entry and sweep were reasonable under the circumstances based on the arrest warrant under Buie. It was his known place, and they had reason to believe he was there [and he was]. After he was removed, his wife then signed a consent form to search the place. A computer and phone were found, and they were added to the form, and she initialed the change. The consents were voluntary. United States v. Richardson, 2015 U.S. Dist. LEXIS 175851 (M.D.Fla. Dec. 15, 2015),* adopted 2016 U.S. Dist. LEXIS 13778 (M.D. Fla. Feb. 4, 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.
