The government showed that the jail cell search of defendant was for legitimate penological purposes and not for criminal investigation. Tann v. United States, 2015 D.C. App. LEXIS 533 (Nov. 19, 2015).
“The federal courts are not free-range problem solvers”; there has to be a case or controversy. The injunction against future searches of plaintiff’s child at school was not sought and should not have been granted. In light of the defense jury verdict on the damages claim, injunctive relief can’t stand anyway under Lyons. Hearring v. Sliwowski, 2015 U.S. App. LEXIS 20141 (6th Cir. Nov. 20, 2015).*
Not giving the implied consent law’s admonitions doesn’t make the BAC test result inadmissible. The totality of the circumstances for consent can still be considered. Remanded. People v. Agnew, 2015 Cal. App. LEXIS 1032 (App.Div. Santa Clara Oct. 26, 2015): Continue reading →
Posted inConsent, Drug or alcohol testing|Comments Off on Cal.App.Div.: Not giving the implied consent law’s admonitions doesn’t make the BAC test result inadmissible; totality of circumstances of consent still applies
The woman alone in defendant’s motel room to have sex with him had apparent authority to consent to a search. “Additionally, the search appears to have been reasonable under Illinois v. Rodriguez, supra. The police in the present case testified that they believed Ms. Nash had the authority to consent to the search of the room since she was present in the room, had locked the door, and defendant conceded that she was there using the room with him.” State v. Baker, 2015 La. App. LEXIS 2366 (La.App. 5 Cir. Nov. 19, 2015).
There is no reasonable expectation of privacy in nonlegal calls or mail in a county jail. Patton v. Texas, 2015 U.S. Dist. LEXIS 157530 (W.D.Tex. Nov. 20, 2015).
One judge of the D.C. Cir.: NSA’s metadata collection from third parties not unconstitutional under Smith, and third party doctrine changes have to come from SCOTUS or Congress. Klayman v. Obama, 2015 U.S. App. LEXIS 20216 (D.C.Cir. November 20, 2015) (denial of rehearing en banc): Continue reading →
Posted inThird Party Doctrine|Comments Off on Third party doctrine changes have to come from SCOTUS or Congress
Defendant was under investigation for drug offenses, and, when he drove off, he had a clump of air fresheners hanging from his rear view mirror which violated state law. Drugs were found in his car. His void for vagueness challenge to that statute fails, too, but that wouldn’t suppress the search. Freeman v. Commonwealth, 2015 Va. App. LEXIS 332 (Nov. 17, 2015).
Based on findings of fact that a third party could come and go as she pleased, that she had the authority to enter defendant’s bedroom, and could have guests over to the home, the appellate court concluded that the third party had a sufficient relationship to the premises to justify a reasonable probation officer to conclude that the third party had authority to take the probation officer into defendant’s bedroom. Because a gun was in plain view in the bedroom, it was immediately apparent that the gun could be evidence of possession of a firearm by a convicted felon. McLaughlin v. Commonwealth, 2015 Va. App. LEXIS 328 (Nov. 17, 2015).*
Observation of contraband in plain view justified a search of a vehicle. The officer did not have to stop when he seized that which was first seen. State v. Anderson, 2015 Ida. App. LEXIS 118 (Nov. 17, 2015).
Defendant was parked on the side of the road on a dark November night, and a game warden saw the vehicle and first suspected night hunting because of where the headlights were pointing. He stopped behind the vehicle and got out and said “Hi, Game Warden.” As he approached, it was apparent that the occupants were not night hunting, but were just urinating on the side of the road. Defendant smelled of alcohol. He was not seized by the officer’s words. State v. Ciomei, 2015 ME 147, 2015 Me. LEXIS 162 (Nov. 17, 2015).*
Even assuming that the search warrant affidavit lacked probable cause, defendant makes no effort to show that the affidavit fit any of the exceptions to the good faith exception. United States v. Pettis, 2015 U.S. Dist. LEXIS 154439 (D.Minn. Oct. 28, 2015), adopted 2015 U.S. Dist. LEXIS 154254 (D. Minn. Nov. 16, 2015): Continue reading →
Posted inGood faith exception|Comments Off on D.Minn.: Assuming that the SW affidavit lacked PC, defendant makes no effort to show that the affidavit fit any of the exceptions to the GFE
ICE officers were looking for a “certain alien” who was not the defendant who had been released from the county jail. They saw the defendant carry trash to the street receptacle and asked him if he’d seen the man in the picture they were looking for. Defendant didn’t speak English, so they asked in Spanish. He said that he hadn’t seen him in a couple of days. Because of his tattoos in Spanish and about Mexico, the officers asked him whether he was here legally or illegally. He answered illegally. They asked if he’d been deported before, and he said yes. They asked for a fingerprint scan which was done on a cell phone that immediately confirmed that from a government database. “Under the totality of the circumstances, the court concludes that a reasonable person in Mr. Hernandez’s position would have felt free to decline the officers’ request to talk and would have felt free to decline to answer questions or to end the encounter. The officers used no show of authority to suggest to defendant that his cooperation was required.” United States v. Hernandez-Esquivel, 2015 U.S. Dist. LEXIS 155977 (D.Kan. Nov. 18, 2015).
Posted inConsent|Comments Off on D.Kan.: Def consented to talk about his status and a fingerprint scan that confirmed he’d previously been deported
“Here, both probable cause and exigent circumstances justified the First Search. At the time law enforcement arrived at the house, police had probable cause to arrest Joseph for homicide and armed robbery based upon the surviving victim’s and co-defendant’s identification of Joseph as the shooter. After knocking on the door, the police confirmed that Joseph was in the house and obtained consent from the home’s owner to enter the home. Exigent circumstances arose when Detective Suarez spotted Joseph and Joseph fled back into his bedroom. At that point, police were certain that Joseph was in the house. Based on the violent nature of the suspected offenses, police had every reason to believe that Joseph both possessed and was going to retrieve a firearm. For their own safety and for the safety of the public, the police entered Joseph’s bedroom, arrested Joseph, and conducted a protective sweep. In so doing, the police acted reasonably and were justified in seizing those items that were in plain view without a warrant.” United States v. Joseph, 2015 U.S. Dist. LEXIS 155203 (S.D.Fla. Nov. 16, 2015).
Defendant was stopped for being involved in a domestic altercation. He got out of his car and left the door open and approached the officers. There was a gun in the car that was easily seen without leaning into the car. Because the situation also involved a shots fired call, the evidentiary value was immediately apparent. McDougal v. State, 2015 Del. LEXIS 613 (Nov. 16, 2015).*
Posted inEmergency / exigency, Plain view, feel, smell|Comments Off on S.D.Fla.: Entry in a homicide investigation was by consent; def was seen and he ducked into a bedroom, and exigency permitted bedroom entry
Officers pursuing a burglar down streets and into backyards was directed to a house by an unidentified person, and they entered it with a dog after allegedly announcing. No burglar, but the homeowner who was not pleased, and he got arrested and assaulted by the officers. There is no qualified immunity for the entry. It was based on the community caretaking function, and this case is not within the “heartland” of that exception to the warrant requirement. A reasonable officer should have known this entry was unlawful. Matalon v. Hynnes, 2015 U.S. App. LEXIS 20008 (1st Cir. Nov. 18, 2015): Continue reading →
Officer saw defendant in the middle of the street talking irately on his cell phone. They approached and he ran. When he was running, they could see a gun in his belt. They followed to his apartment. The ESU was called for an extraction. “Eventually there were 20 to 25 officers at the scene. The ESU officers put on heavy protective vests and helmets, and some carried bunker shields and a sub-machine gun. The ESU officers entered the defendant’s house and cleared the basement and the first floor, finding no persons on either floor. Before they ascended to the second floor, the defendant appeared at the top of the staircase and surrendered. He came down the stairs and was searched, arrested, and removed from the house. No weapon was recovered from his person. The ESU officers then searched the second floor for other persons, and upon finding none, exited the house.” The other officers came back in and searched it finding drugs. The warrantless search of the apartment was unreasonable. The place was empty and the police knew it. Nobody posed a threat. Even posing hot pursuit as a theory, that is rejected because the pursuit was well over. People v. Scott, 2015 NY Slip Op 08445, 2015 N.Y. App. Div. LEXIS 8541 (2d Dept. Nov. 18, 2015).
Posted inEmergency / exigency|Comments Off on NY2: When def was removed from apartment building without gun he carried in, reentry to retrieve it was unreasonable
The government failed to carry its burden that the anal cavity search of defendant in a courthouse cellblock was reasonable without the use of medical personnel. They may not always be required, but they may be, and what case law there is on this issue requires an inquiry for a reasonableness determination. Akinmboni v. United States, 2015 D.C. App. LEXIS 530 (Nov. 19, 2015): Continue reading →
Posted inBody searches, Reasonableness|Comments Off on DC: Warrantless anal cavity search in courthouse cellblock not shown to be reasonable
Defendant was not seized, although the stop was long. There was another driver in another car also being dealt with, and the officer had to get another to the scene. Defendant was never told he was under arrest, nor was he handcuffed or restrained. The delay was reasonable under the circumstances. State v. Holt, 2015 Ga. App. LEXIS 688 (Nov. 17, 2015).
Defendant had no standing in a rundown building with a stolen car in it. It was owned by a man named White who directed the police to it because somebody was in there. The trial court expressly found defendant’s testimony he was paying rent on the building incredible. Ramsey v. State, 2015 Ark. App. 669, 2015 Ark. App. LEXIS 761 (Nov. 18, 2015).*
Defendant was a passenger in a car, and he lacked standing to contest the consent of the driver who consented at the police station. State v. Howard, 2015 Del. Super. LEXIS 788 (Nov. 16, 2015).*
Posted inReasonableness, Seizure, Standing|Comments Off on GA: Overlong stop was reasonable here because officer was dealing with two cars
Defense counsel was not ineffective for not raising a technical challenge that, at the time, was meritless but the law later changed. The exclusionary rule wouldn’t apply. He also lacked standing to challenge pole camera surveillance of somebody else’s house. State v. Tolbert, 2015-Ohio-4733, 2015 Ohio App. LEXIS 4611 (4th Dist. Nov. 12, 2015).
Defendant’s stop was justified for following too close, and the conversation with him led to reasonable suspicion. United States v. Kash, 2015 U.S. Dist. LEXIS 154830 (E.D.Cal. Nov. 16, 2015).*
Plain error review doesn’t work for a claim that officers didn’t see defendant actually consume alcohol when his condition pretty much showed he had. State v. Wells, 2015 Tenn. Crim. App. LEXIS 919 (Nov. 16, 2015).*
Posted inPole cameras, Reasonable suspicion, Standing|Comments Off on OH4: Defendant didn’t have standing to challenge pole camera surveillance of friend’s house
Defendant might have been stopped with reasonable suspicion, but it dissipated. Defendant had scabs on his arm from IV drug use. Defendant even consented to a search of his car that turned up nothing. At that point, defendant should have been released, but he wasn’t, and the stop become too long and without further reasonable suspicion of current drug use being suggested. State v. Sherman, 274 Ore. App. 764, 2015 Ore. App. LEXIS 1297 (Nov. 12, 2015).*
Defendant’s car was stopped for not signaling, and there were three passengers, and the smell of burnt marijuana was obvious. That gave probable cause to search the car for marijuana. United States v. McMillan, 2015 U.S. Dist. LEXIS 153799 (D.Minn. Oct. 21, 2015).*
Defendant’s stop was with reasonable suspicion, and his flight from the car and seizure of cocaine and a gun would not be suppressed. United States v. Barton, 2015 U.S. Dist. LEXIS 154839 (M.D.Pa. Nov. 17, 2015).*
The government at worst violated a statute in gathering information used to get access to defendant’s computer, and the court finds that a statutory violation is not sufficient for suppression. Also, a motion to reconsider denial of a motion to suppress is generally permitted as “justice requires” and in the discretion of the trial court because the order necessarily is interlocutory. United States v. Hassanshahi, 2015 U.S. Dist. LEXIS 156287 (D.D.C. Nov. 19, 2015), prior opinion 75 F. Supp. 3d 101 (D.D.C. 2014): Continue reading →
Posted inExclusionary rule|Comments Off on D.D.C.: Even systematic statutory violation wouldn’t require suppression without constitutional violation
Police went to a motel to tell the operator that a person in room 114 was associated with a guy arrested in a stolen car just leaving the motel property. The motel operator gave a key to the room to the police and told them to evict the guy because he believed they were all involved in criminal conduct. The police went to the room and entered it. United States v. Peoples, 2015 U.S. Dist. LEXIS 155536 (W.D.Mo. Nov. 18, 2015), adopted 2015 U.S. Dist. LEXIS 155787 (W.D.Mo. Nov. 18, 2015): Continue reading →
Posted inReasonable expectation of privacy|Comments Off on In Missouri, if a motel operator wants you out, the police can enter and search your room
Based on a monitored jail call, officers in Monroe, Louisiana determined that defendant had a co-conspirator drive a car to Dallas to pick up methamphetamine and come right back. They applied for a warrant to install a GPS, and the vehicle did just that. It arrived in Dallas about 2 am and was back in Monroe about 6 am. As the vehicle was returning, they obtained another warrant to search the car on arrival. A pound of meth was in the car. Defendant had no standing in the car because he’d transferred it to another to get it out of impound after he was first arrested when he was in jail making the call, and she and others drove it over 1,100 miles in the three weeks after he was jailed. Round trip to Dallas was 582 miles. United States v. Rogers, 2015 U.S. Dist. LEXIS 155322 (W.D.La. Oct. 30, 2015), adopted 2015 U.S. Dist. LEXIS 155318 (W.D.La. Nov. 16, 2015).
“The district court’s determination that Ojo voluntarily consented to a search of his car was not clearly erroneous given: (1) Ojo’s signature on a handwritten consent form for a search of his car, including its interior, trunk, and glove box; (2) testimony that Ojo also gave oral consent; and (3) further testimony that, after the search was completed, Ojo signed a standard FBI “consent to search” form confirming his prior consent.” United States v. Ojo, 2015 U.S. App. LEXIS 20029 (2d Cir. Nov. 19, 2015).*
Posted inConsent, Standing|Comments Off on W.D.La.: Def transferred his car to get it out of impound while he remained in jail; he had no standing when he arranged an interstate drug run for a co-conspirator
"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.
