State law had changed a year before defendant’s stop to allow for temporary plates to be hung in the rear window. Defendant was stopped for no license plate. As the officer approached, he could see a plate in the rear window. Continuing the stop past that was not reasonable. This was not a reasonable mistake of law under Heien. Darringer v. State, 2015 Ind. App. LEXIS 712 (Nov. 13, 2015).
“[T]he Court finds that the anonymous tips and confidential information, which was corroborated by the subsequent investigation, provided sufficient reasonable suspicion to justify the Terry stop at its inception.” United States v. Mack, 2015 U.S. Dist. LEXIS 152250 (M.D.La. Nov. 10, 2015).*
Defendant’s stop was without reasonable suspicion. The officers described it as a high-crime area, but the video shows it to be a well lit industrial and commercial area with little foot traffic. In the frisk of defendant, he was relieved of cash, which was not returned to him. They detained him too long before the smell of marijuana became apparent. United States v. Abarza, 2015 U.S. Dist. LEXIS 151593 (D.Ore. Nov. 6, 2015).*
The officer likely didn’t have reasonable suspicion of a man with a gun when the encounter started, but defendant’s furtive movements gave reasonable suspicion. When defendant was stopped, the officer’s search of a cigarette box on the car’s floor exceeded the scope of a permissible Terry stop. United States v. Pollins, 2015 U.S. Dist. LEXIS 152536 (D.Md. Nov. 9, 2015): Continue reading →
Posted inReasonable suspicion, Scope of search|Comments Off on D.Md.: On a stop with RS of having a gun, search of a cigarette pack exceeded Terry
The court of appeals remanded this case for entering findings of fact and conclusions of law so the appeal could be decided. It was not authorized to conduct a further hearing after the record was logged, so it could not be considered. Nava v. State, 2015 Tex. App. LEXIS 11622 (Tex. App. – Houston (1st Dist.) Nov. 10, 2015).
Defendant was stopped in the midst of committing a check cashing scheme in a Walmart. He was driving a rented car. The evidence that the police developed gave them probable cause to believe the car he came in had additional evidence of the crime. Any alleged false information in the affidavit for the search warrant for the car was quite immaterial compared to the rest, so there still was probable cause. United States v. Washington, 2015 U.S. Dist. LEXIS 152349 (E.D.La. Nov. 10, 2015).*
Posted inFranks doctrine|Comments Off on TX1: On a remand for entry of findings of fact, a new hearing should not have been held
“When law enforcement officers, without a warrant, enter a homeowner’s fenced property through a partially open gate with a ‘No Trespassing’ sign posted on the fence nearby, and then proceed through an unlocked screen door onto an enclosed front porch and execute a ‘knock and talk’ with the homeowner at the front door to his home, have they violated the Fourth Amendment?” Not here. United States v. Holmes, 2015 U.S. Dist. LEXIS 152714 (M.D.Fla. Nov. 11, 2015): Continue reading →
Posted inCurtilage|Comments Off on M.D.Fla.: No trespassing sign but gate not closed did not create trespass for knock-and-talk
Video footage of the incident, released recently by a judge’s order and reported in depth by MSNBC, suggests it is a case study in abuse by police ignorant of best practices in the use of stun guns.
Posted inExcessive force|Comments Off on WaPo: Editorial: Another senseless death in police custody
Defendant was not a listed driver on the rental agreement and he failed to keep eye contact with the officer during the stop. “Hill’s nervous behavior is more significant because as the passenger of the Impala, he did not commit the traffic violation.” State v. Hill, 2015-Ohio-4655, 2015 Ohio App. LEXIS 4542 (12th Dist. Nov. 9, 2015).
A citizen informant called the police about a suspicious person, and the police arrived and called out to defendant and others. Defendant asked “why? what did I do?” but he walked away and hid his right hand and was moving it around like there was something there he didn’t want the police to see. That was reasonable suspicion. State v. Baker, 2015-Ohio-4709, 2015 Ohio App. LEXIS 4585 (2d Dist. Nov. 13, 2015).*
A bar owner text messaged police on patrol that he had a patron with a gun in his waistband and described him. Officers secured the exits and one went for the man and a struggle ensued over the gun. The detailed information came from a citizen informant, and it was presumptively reliable. United States v. McCaw, 2015 U.S. Dist. LEXIS 153806 (C.D.Ill. Oct. 20, 2015).*
Defendants were accused of a jewelry store heist. The small nature of the items involved makes it more likely they’d be kept at home until disposed of, and that shows nexus. As to standing, defendants without it don’t get to attach the processes of the search warrant, too. State v. Tabb, 2015 Tenn. Crim. App. LEXIS 913 (Nov. 13, 2015): Continue reading →
Posted inNexus, Standing|Comments Off on TN: Nexus to def’s house more easily shown when object of search is jewelry from a store robbery
It was apparent that the person whose information ended up in the search warrant application was a citizen informant not subject to a more intense review for probable cause. The fact that the affiant didn’t personally talk to the informant is not a Franks violation. Gonzales v. State, 2015 Tex. App. LEXIS 11569 (Tex. App. – San Antonio Nov. 10, 2015).
There was probable cause by collective knowledge for defendant’s vehicle stop. United States v. Jones, 2015 U.S. Dist. LEXIS 151114 (E.D.Ky. Oct. 14, 2015), adopted 2015 U.S. Dist. LEXIS 150093 (E.D. Ky. Nov. 5, 2015).*
Defendant waived his search claim by pleading guilty. Jones v. State, 2015 Miss. App. LEXIS 567 (Nov. 10, 2015).
Posted inCollective knowledge, Franks doctrine|Comments Off on TX4: Fact that PC was via collective knowledge but not all details how was not Franks violation
Defendant’s cell phone was searched without a warrant months before Riley even had its cert grant. Even though no state case held that the warrant requirement applied to cell phones, the Fourth Circuit had concluded that the search incident doctrine was good enough, so that makes the Davis good faith exception apply. [After the Jones GPS case, this is a complete fiction. To say that search incident of a cigarette package would support a cell phone search after that really doesn’t even pass the laugh test to me.] Rivera v. Commonwealth, 2015 Va. App. LEXIS 315 (Nov. 10, 2015): Continue reading →
Posted inCell phones, Good faith exception|Comments Off on VA: Davis good faith saves SI of a cell phone before Riley; even though no state case permitted it, CA4 did
The government conceded that the search warrant executed violated Rule 41(b)(1)’s within-district limitation on federal magistrate judges’ warrant-issuing authority. Because the government offered no other basis for reversal, and because the court concluded that defendant established prejudice as a result of the Rule 41 defect, the court affirmed the district court’s suppression order regardless of whether the Fourth Amendment had a jurisdictional limitation on magistrate judges’ warrant-issuing authority. The court adopted the district court’s standard for determining whether a defendant established prejudice as a result of a Rule 41(b)(1) violation and asked whether the issuing federal magistrate judge could have complied with the rule. The fact a state judge probably wouldn’t have issued a warrant helps show prejudice. United States v. Krueger, 2015 U.S. App. LEXIS 19622 (10th Cir. Nov. 10, 2015): Continue reading →
Posted inExclusionary rule, F.R.Crim.P. 41|Comments Off on CA10: Violation of territorial limitation of Rule 41 was shown to be prejudicial, and suppression affirmed
Passenger’s backpack in the vehicle at the time of the stop was subject to the automobile exception. State v. Furrillo, 274 Ore. App. 612, 2015 Ore. App. LEXIS 1291 (Nov. 4, 2015).
Defendant’s admission during a stop on reasonable suspicion that he had a gun in his truck would not be suppressed. United States v. Randolph, 2015 U.S. Dist. LEXIS 150717 (W.D.Mo. Nov. 5, 2015).*
Defendant had standing to challenge the search of his girlfriend’s apartment where he stayed 2-3 nights a week there and kept clothes there. She also let him use her storage unit, and he had standing there, too. The snitch gave two stories, and there were inconsistencies and failure to elaborate on all wasn’t a Franks violation. “Even if information about Hutchinson’s initial dissembling and any minor discrepancies between the first and second interviews had been included in the affidavit, it would not have affected the finding of probable cause by the magistrate judge.” United States v. Williams, 2015 U.S. Dist. LEXIS 150911 (D.Me. Nov. 6, 2015).*
Given the recent efforts at the state and federal level to rein in asset forfeiture abuses, you might think that the practice is in decline. You’d be mistaken.
Posted inForfeiture|Comments Off on WaPo: Radley Balko’s ‘The Watch’ Blog: The booming business of asset forfeiture
Federal drug agents have built a massive wiretapping operation in the Los Angeles suburbs, secretly intercepting tens of thousands of Americans’ phone calls and text messages to monitor drug traffickers across the United States despite objections from Justice Department lawyers who fear the practice may not be legal.
Posted inSurveillance technology|Comments Off on USA Today: Justice officials fear nation’s biggest wiretap operation may not be legal
Prison phone system vendor Securus is denying that it improperly recorded inmates’ calls to their attorneys.
According to a bombshell report published Wednesday by The Intercept, an anonymous hacker turned over 70 million phone records from the company that it said showed Securus violated inmates’ constitutional rights by recording their conversations with legal counsel.
Securus denies that it has done anything improper in a statement released late Wednesday.
Defendant was arrested for fleeing in a car and handcuffed. The search incident of the car was unreasonable because defendant was restrained and away from the car, and there was not reason to believe there was anything in the car that was evidence of fleeing with reckless indifference. State v. Noel, 2015 W. Va. LEXIS 1098 (Nov. 6, 2015).
Defendant did not show standing to complain that the Forest Service used a surveillance camera, a game camera, to take pictures of illegal hunting on non-Forest Service land. Whose land? What’s his connection to it? United States v. Stancil, 2015 U.S. Dist. LEXIS 152445 (W.D.N.C. Nov. 10, 2015).*
The smell of marijuana and defendant being on probation justified extending his stop. The officer’s testimony supported the automobile exception. United States v. Heggs, 2015 U.S. Dist. LEXIS 150784 (D.Minn. Oct. 15, 2015), adopted 2015 U.S. Dist. LEXIS 151494 (D. Minn. Nov. 4, 2015).*
Defendant was riding Amtrak from Los Angeles which stops in Albuquerque. As usual, the DEA boarded the train. After a walk through they seized defendant’s unlabeled bag from the baggage car and carried it through the train looking for its owner. That was a Fourth Amendment seizure and interfered with defendant’s possessory interests despite the fact he was temporarily separated from the bag. United States v. Hill, 2015 U.S. App. LEXIS 19520 (10th Cir. Nov. 9, 2015): Continue reading →
Posted inSeizure|Comments Off on CA10: Seizure of def’s unlabeled bag from Amtrak baggage car to carry it through train was a Fourth Amendment seizure
After a fire destroyed defendant’s café and lounge with apartments above, his consent to search for the origin and cause of the fire did not give investigators the authority to search his basement after it was excluded as the source of the fire. Defendant was acquitted of the arson but convicted of a false statement which is reversed for insufficient evidence. Also, the Davis good faith exception does not apply. “As the common-law trespass theory has always bound government actions, the government cannot rely on the Davis good faith exception. Therefore, the evidence that we have previously deemed excluded is not saved by Davis since binding appellate precedent at the time of the search would have prohibited the fire investigators’ search.” United States v. Rahman, 2015 U.S. App. LEXIS 19486 (7th Cir. Nov. 9, 2015).
Posted inScope of search|Comments Off on CA7: Fire scene consent search exceeded scope of consent to find “origin and cause” of fire
Defendant’s store in Brooklyn was a front for a cocaine operation. The store also had a liquor license. The government developed substantial probable cause, yet first entered the store to conduct an administrative inspection of the permitted premises. A subsequent search warrant issued for the premises. The administrative search was still valid despite the mixed purpose, despite other circuits holding mixed motive administrative searches are likely unreasonable. When the search occurred, cocaine was found mixed with groceries. United States v. Gigliotti, 2015 U.S. Dist. LEXIS 151122 (E.D.N.Y. Nov. 6, 2015): Continue reading →
Posted inAdministrative search, Attenuation|Comments Off on E.D.N.Y.: Pretextual administrative search of liquor permitted premises still valid, and SW had plenty of PC despite that
Here the GPS was put on defendant’s vehicle two years before Jones and stayed 55 days. It was replaced repeatedly because of dead batteries or because it fell off. Defendant tried to get around Davis good faith by arguing that there was no effort to find out if what they were doing was constitutional, but that fails under Davis. United States v. Martin, 2015 U.S. App. LEXIS 19616 (7th Cir. Nov. 10, 2015): Continue reading →
"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.
