The fellow officer (collective knowledge) rule applies to plain view seizure of a laptop computer that was seen in plain view that the fellow officer had probable cause to believe contained child pornography. People v. Swietlicki, 2015 CO 67, 2015 Colo. LEXIS 1103 (Nov. 23, 2015).
Officer’s decision to tow defendant’s vehicle was reasonable because his vehicle was stopped on a busy highway and defendant was arrested and unable to remove the vehicle. The decision to tow the vehicle was in compliance with the Ohio State Highway Patrol’s reasonable procedures. Because the trunk was accessible from the car’s interior without a key, inventory of the trunk was reasonable. State v. Calvin, 2015-Ohio-4801, 2015 Ohio App. LEXIS 4700 (3d Dist. Nov. 23, 2015).*
Drifting over the center line was reasonable suspicion for a stop, and the smell of marijuana on the defendant’s person justified a search of the person. State v. Glenn, 2015-Ohio-4832, 2015 Ohio App. LEXIS 4722 (11th Dist. Nov. 23, 2015).
The smell of marijuana coming from defendant’s vehicle justified its search under the automobile exception. United States v. Deleon, 2015 U.S. Dist. LEXIS 159160 (S.D.Tex. Nov. 24, 2015).*
The USMJ concluded that the officer’s version of the consent was more credible than defendant’s, and the evidence supports that conclusion. United States v. Wooden, 2015 U.S. Dist. LEXIS 159332 (E.D.Tenn. Nov. 24, 2015),* R&R 2015 U.S. Dist. LEXIS 159728 (E.D.Tenn. Oct. 23, 2015).*
Defendant first fled from police from a stop for driving with no headlights. The officer broke off the chase then went to the address the car was registered to and found it. Defendant was there with another, and he was detained and frisked and drugs for sale, paraphernalia, and cell phones were found on him. An officer looked through the text messages without a warrant [pre-Riley], but a search warrant was later obtained. There was a rational basis for concluding there would be evidence on the cell phone without regard to the view of the text messages. Glispie v. State, 2015 Ga. App. LEXIS 748 (Nov. 20, 2015).
Defendant called the police as a crime victim, and two officers arrived and talked to him. He was not in custody, and he consented to a search. State v. Cuddy, 2015 Tenn. Crim. App. LEXIS 940 (Nov. 23, 2015).*
Posted inConsent, Scope of search|Comments Off on GA: Def was detained and frisked for drugs, and view of text messages [pre-Riley] was reasonable based on drug dealing
As the administrative state distorts the United States’ constitutional architecture, Clarence Thomas becomes America’s indispensable constitutionalist. Now in his 25th year on the Supreme Court, he is urging the judicial branch to limit the legislative branch’s practice of delegating its power to the executive branch.
In four opinions in 112 days between March 9 and June 29, Thomas indicted the increasing incoherence of the court’s separation of powers jurisprudence. This subject is central to today’s argument between constitutionalists and progressives. The former favor and the latter oppose holding Congress to its responsibilities and restricting executive discretion.
We all know the Patriot Act, but lesser-known programs like Executive Order 12333 account for the bulk of government surveillance–and receive even less oversight.
The National Security Agency on Sunday will end its mass collection of data about Americans’ phone calls under the Patriot Act, 2½ years after a leak by former NSA contractor Edward Snowden forced the government to confirm its existence. The halt was ordered by Congress, which in June passed the USA Freedom Act to ban the controversial collection of information known as metadata. That data includes the dates and durations of phone calls and logs of call times, but not content. Under the new law, the NSA must obtain a court order to receive records about phone numbers suspected of belonging to terrorist suspects.
Posted inNational security|Comments Off on WaPo: NSA’s bulk collection of Americans’ phone records to end
In People v. Aguilar, 2013 IL 112116, 377 Ill. Dec. 405, 2 N.E.3d 321 (2013), the Illinois Supreme Court held facially unconstitutional under the Second Amendment the state flat prohibition on possession of firearms outside the home. This defendant’s arrest under that statute before Aguilar was suppressed and good faith would not save it because the statute was void ab initio. Krull and Davis are not followed. People v. Holmes, 2015 IL App (1st) 141256, 2015 Ill. App. LEXIS 879 (Nov. 25, 2015).
“You do what you gotta do” was consent. Randolph didn’t apply because defendant didn’t object. United States v. Broadnax, 2015 U.S. App. LEXIS 20331 (9th Cir. Nov. 23, 2015).
Posted inConsent, Good faith exception|Comments Off on IL: Where statute on which seizure was based was later held unconstitutional, it is void ab initio; Krull and Davis not followed
A dog sniff of defendant’s apartment window was a violation of Jardines. While the sniff was pre-Jardines, there was no clear binding authority that the government could rely on for Davis good faith to apply. United States v. Burston, 2015 U.S. App. LEXIS 20266 (8th Cir. Nov. 23, 2015).
The § 2255 waiver provision precludes an IAC challenge to a search and seizure issue that was actually litigated. On the merits, defense counsel made the best argument he could over a two day suppression hearing and lost. Petitioner’s complaints about the representation wouldn’t change the outcome. Taylor v. United States, 2015 U.S. Dist. LEXIS 159387 (S.D.Ill. Nov. 25, 2015).*
Posted inCurtilage, Ineffective assistance|Comments Off on CA8: Pre-Jardines dog sniff at defendant’s window was governed by Jardines
In establishing probable cause, the best evidence rule under Rule 1002 & 1004(a) did not apply to a still photograph of a truck that was taken from a security videotape that was erased and then taped over by a camera security system, as per the security company’s routine practice, before the police requested a copy. In addition, an employee of the security company was able to authenticate the photograph pursuant to Rule 901(b)(1) at the suppression hearing. Commonwealth v. Loughnane, 2015 Pa. Super. LEXIS 766 (Nov. 23, 2015).
Defendant’s Franks challenge is summarized in detail and it’s lacking. “[D]efendant’s challenges to the affidavits do not sufficiently attack the core allegations that established the probable cause findings made below: that defendant was under investigation for possessing firearms, drugs and other prohibited devices.” United States v. Hagler, 2015 U.S. Dist. LEXIS 157805 (E.D.Mo. Sept. 22, 2015).*
Posted inFranks doctrine, Probable cause|Comments Off on PA: The best evidence rule does not apply to establishing probable cause
There was no right to a suppression hearing where the only disputed fact was irrelevant to any Fourth Amendment question. State v. Houston-Sconiers, 2015 Wash. App. LEXIS 2915 (Nov. 24, 2015).
Defendant was stopped because the officer knew from a contact two days earlier that defendant’s DL was suspended. Defendant’s passengers also didn’t have DLs, and the officer didn’t keep them telling them they could walk off. The officer could have impounded defendant’s car, and he asked for consent, got it, and called for a drug dog. Defendant admitted he had a meth pipe, and that was all that was found. The officer testified he decided not to impound the car because of defendant’s cooperation. The record supports that the consent was valid, and the trial court didn’t believe that defendant was told to consent or his car would be impounded. State v. Cherry, 2015 Wash. App. LEXIS 2914 (Nov. 24, 2015).*
Posted inConsent|Comments Off on WA: Def not entitled to suppression hearing where only disputed fact wasn’t material to any Fourth Amendment question
Throwing a cigarette butt out a car window is littering, and an officer can make a stop even thought it’s a civil forfeiture offense. State v. Iverson, 2015 WI 101, 2015 Wisc. LEXIS 709 (Nov. 25, 2015).
An abrupt turn gave reason for a traffic stop. Brice v. State, 2015 Md. App. LEXIS 163 (Nov. 25, 2015).*
Posted inProbable cause|Comments Off on WI: Discarded cigarette butt is PC for a stop
Posted inExcessive force|Comments Off on WaPo: Improper techniques, increased risks / Deaths have raised questions about the risk of excessive or improper deployment of Tasers
The legal authority to enter to do a knock-and-talk under Jardines does not permit the police to shine flashlights in the windows when nobody answers. In addition, the government’s reliance on a Davis-type good faith exception for this conduct during a knock-and-talk doesn’t fly because Jardines was decided before this happened and was already binding authority. United States v. Alicea, 2015 U.S. Dist. LEXIS 159496 (N.D.Iowa Nov. 24, 2015): Continue reading →
Posted inCurtilage, Trespass|Comments Off on N.D.Iowa: When no one answers a knock-and-talk, Jardines prohibits shining a flashlight in the window
The stop of defendant’s vehicle was extended for a dog sniff. The defense argued that it was unreasonable, and the trial court found it was de minimus. Rodriguez was then decided, and it applies. The dog sniff occurred after defendant should have been released. Watts v. State, 2015 Ga. App. LEXIS 727 (Nov. 20, 2015).
Even though the Supreme Court has counseled against using “standing” instead of “reasonable expectation of privacy” or “interest,” “the two formulas come to the same thing, and cases continue to discuss Fourth Amendment ‘standing.’” Defendant was in a rental car that he didn’t rent and wasn’t an authorized driver, yet he conceivably still could have had standing. No matter, however, because reasonable suspicion developed to continue the stop for a drug dog to arrive at the scene, and it wasn’t unreasonable under Rodriguez. United States v. Sanford, 2015 U.S. App. LEXIS 20503 (7th Cir. Nov. 25, 2015).
When the magistrate read the search warrant for a blood draw, the magistrate was authorized to conclude that 11:59 am should have been pm instead, so the warrant was not stale. Somoza v. State, 2015 Tex. App. LEXIS 12037 (Tex. App. – Houston (1st Dist.) Nov. 24, 2015).
USDJ did not have to recuse from hearing defendant’s suppression motion because of the coincidence that she previously encountered the defendant when a state court judge. United States v. Coleman, 2015 U.S. Dist. LEXIS 157682 (S.D. Ind. Nov. 23, 2015).
Posted inBurden of proof|Comments Off on TX1: Issuing magistrate could conclude 11:59 am really meant 11:59 pm
Defendant had no standing over government search of a corporation’s website without showing that he had a reasonable expectation of privacy in the place searched. [If it’s on the Internet and open to the world, how is there conceivably any privacy interest in it. This isn’t even close.] United States v. Waddell, 2015 U.S. Dist. LEXIS 157187 (S.D.Ga. Nov. 20, 2015).
A zoning official took photographs of plaintiff’s backyard from a neighbor’s yard. This was not an illegal trespass on plaintiff’s property, aside from the fact it was not raised timely. Looney v. Zoning Bd. of Appeals, 2015 Conn. Super. LEXIS 2699 (New London Oct. 23, 2015).*
Because the product of a computer search was used in trial and it was found nonprejudicial for IAC purposes, it wasn’t necessary to decide whether defense counsel was ineffective for not moving to suppress in the first place. United States v. Hock, 2015 CCA LEXIS 529 (N.-M. Ct. Crim. App. Nov. 24, 2015).
The search warrant authorized seizure of “other media that show standing for an address, vehicle, the location of narcotics proceeds, or a connection between people, addresses and vehicles or that a crime has been committed” and that permitted seizure of a cell phone. United States v. Oliver, 2015 U.S. Dist. LEXIS 157787 (D.Minn. Nov. 23, 2015): Continue reading →
Posted inCell phones, Particularity|Comments Off on D.Minn.: “other media” showing “address, vehicle, and location of narcotics proceeds” permitted seizure of cell phone
Defendant was convicted of felon in possession charges, and he kept records of his firearms. This authorized a computer search condition on supervised release where the predicate findings were made by the district court. (Dissenter says that there was no nexus between computers and the offense, so the condition is overbroad.) United States v. Bare, 2015 U.S. App. LEXIS 20396 (9th Cir. Nov. 24, 2015) (2-1): Continue reading →
Posted inProbation / Parole search|Comments Off on CA9: Where findings were made by district court, a computer search condition is valid (dissent by Kozinski)
The Fifth Amendment “public safety exception” for statements about firearms can also create exigent circumstances for a protective sweep for the gun. Defendant had a second degree murder warrant issued for him in 2015 for a 2008 murder in Buffalo. He was traced to Birmingham, and the U.S. Marshal’s Fugitive Task Force located him there. As an accused murderer, he admitted to possessing a gun, and that created exigency to retrieve it. United States v. Donaldson, 2015 U.S. Dist. LEXIS 157122 (N.D.Ala. Oct. 22, 2015).
Police responded to a domestic call, and when they got to the house, defendant was on the porch and said it was his girlfriend who called about a dispute over car keys, but she had left. They got permission for one to do a walk through to see if she was there, and she wasn’t. The officer saw a meth pipe and he reported this to the other officer who conducted a patdown for fear that defendant was under the influence and potentially dangerous. Meth was found in his pocket by plain feel, and the frisk was reasonable. May v. State, 2015 Ga. App. LEXIS 729 (Nov. 20, 2015) (4-2).*
"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.
