Defendant was convicted of four counts of rape of a child. A laptop was properly seized from his car with probable cause under the automobile exception. It was searched without a warrant. Defendant waived the search of the computer by first raising it in a motion for new trial. Suppression motions have to be filed before trial. State v. Alberts, 2016 Tenn. Crim. App. LEXIS 52 (Jan. 28, 2016).
Defendant was a passenger on a Greyhound bus stopped at an immigration checkpoint. The Border Patrol agent boarded the bus and walked from back to front checking IDs. Defendant’s demeanor suggested right off that he was way too nervous, and his different responses to the same question suggested criminality. Ordering defendant off the bus was with reasonable suspicion. United States v. Holmes, 2016 U.S. Dist. LEXIS 9152 (S.D.Tex. Jan. 26, 2016).*
2255 petitioner’s IAC claim denied for generality and no factual basis: “Here, the petitioner has failed to develop any factual basis or legal argument on the performance element, beyond the naked assertion that his attorneys did not advance any arguments in the motion to suppress or motion for reconsideration based on the ‘fruit of the poisonous tree’ doctrine.” Utley v. United States, 2016 U.S. Dist. LEXIS 9995 (E.D.Mich. Jan. 28, 2016).
Pole camera surveillance of a house and defendant’s comings and goings led to reasonable suspicion for continuing his stop. United States v. Ortiz-Macias, 2016 U.S. Dist. LEXIS 10297 (E.D.Tex. Jan. 28, 2016).*
From DNA Info, here’s the latest piece of evidence that the corruption and abuse in the Chicago Police Department aren’t limited to a few bad cops — the problems are systemic.
Why are so many police dashcam videos silent?
Chicago Police Department officers stashed microphones in their squad car glove boxes. They pulled out batteries. Microphone antennas got busted or went missing. And sometimes, dashcam systems didn’t have any microphones at all, DNAinfo Chicago has learned.
Posted inBody cameras, Police misconduct|Comments Off on WaPo: 80 percent of Chicago PD dash-cam videos are missing audio due to ‘officer error’ or ‘intentional destruction’
Defendant’s clothes were believed to be evidence of a crime, and they were properly seized incident to arrest with probable cause and in plain view. In Texas, a municipal police officer may execute a search warrant countywide. Crayton v. State, 2016 Tex. App. LEXIS 776 (Tex. App. – Texarkana Jan. 27, 2016).
Posted inSearch incident|Comments Off on TX6: Def’s clothes were properly seized with PC under SI doctrine
The court of appeals misapplied the standard of review by reweighing the facts. The court can’t help, however, in talking about nervousness as an “omnipresent” factor in reasonable suspicion. State v. Moore, 2016 S.C. LEXIS 5 (Jan. 27, 2016), rev’g 404 S.C. 634, 746 S.E.2d 352 (App. 2013) (posted here): Continue reading →
Posted inReasonable suspicion, Standards of review|Comments Off on SC: CoA missapplied std of review by reweighing facts; warns that “nervousness” isn’t a blank check
An electronic search condition of juvenile probation was overbroad. There was no relation between the offense and the condition that officers be allowed to search his phone and social media. In re Mark C., 2016 Cal. App. LEXIS 65 (1st Dist. Jan. 28, 2016): Continue reading →
Posted inProbation / Parole search|Comments Off on Cal.1: Electronic search condition of juvenile probation was overbroad; no relation to underlying offense
Delaware refers to affidavit material omissions as a reverse-Franks issue, and here he made a sufficient offer of proof to get a hearing on a search warrant for blood in an DUI case about how the field sobriety test was unreasonably and inadequately conducted. State v. Hackendorn, 2016 Del. Super. LEXIS 22 (Jan. 13, 2016):
In a reverse-Franks situation, if the “defendant establishes by a preponderance of the evidence that the police knowingly and intentionally, or with reckless disregard for the truth, omitted information material to a finding of probable cause, the reviewing court will add the omitted information to the affidavit and examine the affidavit with the newly added information to determine whether the affidavit still gives rise to probable cause.”
Posted inFranks doctrine|Comments Off on DE: Def made a sufficient offer of proof to get a Franks hearing in a DUI blood warrant over omissions in how the FST was done
Conn.L.Trib: Editorial: Court Rulings Suggest That Police Should Consider Nonlethal Alternatives
Courts have held that the Fourth Amendment does not require police officers to choose the least intrusive alternative, only a reasonable one.
As we see more and more innocent people being killed by police officers, we hear a recurrent question: should less intrusive means in use-of-force cases be required by law? It would appear that cases expressly looking at this issue uniformly have held that law enforcement officers are not required by the Fourth Amendment to use less intrusive means when confronted with a situation in which deadly force could justifiably be used. (See Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. 1992); Menuel v. City of Atlanta, 25 F.3d 990 (11th Cir. 1994); Cardwell v. Borough of Homestead, 381 F.3d 235 (3d Cir. 2004).
Posted inExcessive force|Comments Off on Conn.L.Trib: Editorial: Court Rulings Suggest That Police Should Consider Nonlethal Alternatives
A general consent to search includes use of a drug dog. State v. Becerra, 2016 Ariz. App. LEXIS 9 (Jan. 25, 2016).
A woman concerned about the safety of a child conducted the cell phone search here, and that was a private search. United States v. McCoy, 2016 U.S. Dist. LEXIS 8606 (E.D.Mich. Jan. 26, 2016).*
Defendant’s search claim was fully litigated and appealed, and it can’t be raised in a 2255 proceeding. Shrader v. United States, 2016 U.S. Dist. LEXIS 8170 (S.D.W.Va. Jan. 25, 2016),* R&R 2015 U.S. Dist. LEXIS 175349 (S.D.W.Va. July 24, 2015).*
Posted inConsent, Private search|Comments Off on AZ: General consent to search includes use of a drug dog
An attorney of an inmate has no Fourth Amendment right in his client’s prison cell for the opening of prisoner mail during a cell security search. Williams v. Russo, 2016 U.S. App. LEXIS 1063 (11th Cir. Jan. 22, 2016).
Appellate courts have to apply de novo review to the historical facts to determine whether the Fourth Amendment was complied with. The decisions of the Alaska Supreme Court, that suggest otherwise that the trial courts fact findings also bind the Fourth Amendment determination, too, actually do this, and that’s what this court is doing. Meyer v. State, 2016 Alas. App. LEXIS 12 (Jan. 22, 2016).
Posted inStanding|Comments Off on CA11: Attorney has no standing in legal mail searched in a prison cell
“Despite minor discrepancies [about smelling marijuana], the essential facts [in the reports] demonstrate that the officers’ conduct was reasonable under the Fourth Amendment. The search of defendant’s car and resulting discovery of the firearm is therefore valid and will not be suppressed.” A hearing was not required. United States v. Waters, 2016 U.S. Dist. LEXIS 8913 (D.Nev. Jan. 26, 2016).
The entry into defendant’s home in this murder case was justified by consent or the emergency exception. United States v. McKee, 2016 U.S. Dist. LEXIS 8898 (D.Nev. Jan. 26, 2016).*
Posted inBurden of proof|Comments Off on D.Nev.: Minor discrepancies in the facts not enough to require a hearing; suppression denied on the papers
Search of a pill bottle found during a patdown for arrest for no DL was permissible under state constitution, and the court of appeals is reversed. Garcia v. State, 2016 Ind. LEXIS 30 (Jan. 21, 2016), rev’g 25 N.E.3d 786 (Ind. App. 2015).
Police had cause to search defendant’s car because of the “overpowering” smell of burning marijuana. It was permissible to open a notebook to see if marijuana was inside. United States v. Simmons, 2016 U.S. Dist. LEXIS 8086 (W.D.N.Y. Jan. 22, 2016).*
Posted inSearch incident|Comments Off on IN: Search of a pill bottle found during a patdown for arrest for no DL was permissible under state constitution; court of appeals reversed
Plaintiff lived on his sailboat in the City of Miami on state waters. He was stopped by marine officers who complained of his lack of property sanitary facilities and not having a good enough anchor light. They accused him of having a derelict boat, which it wasn’t. Instead it was too “ugly” for Miami. He promptly fixed that. Three months later, he was on a business trip, and the City seized and destroyed his boat and all his belongings without notice. As a result, he was homeless. He sued under § 1983, maritime law, and state law. He stated a claim under the Fourth Amendment for seizure and destruction without notice or cause and a “taking.” Hoefling v. City of Miami, 2016 U.S. App. LEXIS 1177 (11th Cir. Jan. 25, 2016): Continue reading →
Posted inSeizure|Comments Off on CA11: Miami’s seizure and destruction of ptf’s “ugly” sailboat stated a 4A claim under Soldal
On the Strickland performance prong, counsel was not ineffective for not arguing defendant’s cell phone search incident when there was no circuit authority years before Riley. On the prejudice prong, the court doesn’t have to decide it but comments anyway: The government’s contention he wasn’t prejudiced because the plea agreement was more beneficial than going to trial is rejected. Prejudice cannot be determined by the sentence received. Basham v. United States, 2016 U.S. App. LEXIS 1158 (8th Cir. Jan. 25, 2016): Continue reading →
Posted inIneffective assistance|Comments Off on CA8: No IAC for failing to raise Riley years before without any binding circuit cases; refuses to consider IAC prejudice based on sentence received
Police had no objectively reasonable basis to believe that there was an emergency inside the residence based on an open door and scattered mail. State v. Fultz, 2016 Fla. App. LEXIS 880 (Fla. 2d DCA Jan. 22, 2016).
“Here, under the totality of the circumstances, the court concludes that defendant voluntarily consented to the search of his cell phone. The defendant was handcuffed and in custody at the time of the consent, but the officers otherwise did not subject him to any form of coercion (other than to suggest that he was in big trouble), and defendant had previously cooperated with them by confirming his telephone number. Defendant was apparently aware of his right to refuse to consent, since he actively questioned Walters about the purpose of the search before indicating that he did not care if it went forward.” United States v. Williams, 2016 U.S. Dist. LEXIS 7973 (M.D.Ala. Jan. 20, 2016).*
Posted inCommunity caretaking function, Consent, Emergency / exigency|Comments Off on FL2: Police had no objectively reasonable basis to believe that there was an emergency inside the residence based on an open door and scattered mail
Defendant “abandoned his reasonable expectation of privacy when he ran and left the satchel unattended in the desert. The bag was placed next to him by Agent Fletcher. Although it may have been difficult for the defendant to retrieve the bag and run with it, since his hands were handcuffed behind his back, the alternative would have been to remain with the bag.” United States v. Flores-Villareal, 2015 U.S. Dist. LEXIS 175108 (D.Ariz. Oct. 26, 2015),* adopted 2016 U.S. Dist. LEXIS 6547 (D. Ariz. Jan. 16, 2016).*
Defendant’s stop was based on a random check on whether the vehicle was insured. This is the reasonable suspicion: “Officer DeLeon testified to several factors that led him to believe, based on his experience in law enforcement, that Vela was involved in criminal activity. Vela seemed deceptive and evasive when he answered questions about the passengers in the vehicle and their travel itinerary. He hesitated before answering questions and would not give direct answers. During questioning, Vela appeared nervous; he moved around quite a bit and gestured dramatically with his hands, which, based on the officer’s training, indicated that Vela could be lying. Officer DeLeon’s suspicions were confirmed when he questioned the passenger, who gave conflicting information.” United States v. Vela, 2016 U.S. Dist. LEXIS 7934 (S.D.Tex. Jan. 25, 2016).*
Posted inAbandonment, Reasonable suspicion|Comments Off on D.Ariz.: Defendant running off into the desert while handcuffed was abandonment of the bag he had at his feet
The type of data used in marketing is also being used by police departments to help solve crimes and analyze the threat level of suspects before arrests.
Police in Fresno, California, are among those using the technology, the Washington Post reports.
Police there are able to scan a database of vehicle license plates and locations, search social media to monitor threatening individuals, use microphones placed throughout the city to gauge the location of gunshots, and monitor video cameras posted across the city.
Posted inSurveillance technology|Comments Off on ABAJ: This high-tech police department trawls social media, license plates; watches city with audio, video
Vidya Pappachan, an attorney for the Legal Aid Society in New York City, had little time to prepare for a client’s arraignment on a felony drug charge. But she had a tool at her disposal that allowed her to quickly look up information about the arresting officers.
Pappachan asked her paralegal to search for the officers’ names through a database called the Cop Accountability Project. The search proved fruitful. She learned the officers were named in misconduct cases that alleged, among other complaints, false arrests and cost New York City more than half a million dollars in settlement payouts.
Posted inPolice misconduct|Comments Off on ABAJ: Databases of police activity offer a handy tool for defense lawyers
"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.
