Defendant was out of town when his wife found child pornography on the computer he let her regularly use. She called the police and turned over the hard drive, and they got a search warrant for a forensic examination. He turning over the hard drive was a private search. United States v. Wolff, 2015 U.S. Dist. LEXIS 140073 (N.D.Cal. Oct. 14, 2015).
Post-conviction petitioner’s “postconviction motion is a smattering of legal terms covering various facets of 4th Amendment jurisprudence.” The Fourth Amendment claims are procedurally defaulted because they were never raised before[, and they aren’t raised as an IAC claim]. “Moreover, Lum’s claims fail to allege with particularity any concrete allegations of deficient performance by defense counsel or actual prejudice; they are inchoate and conclusory statements and need not be considered further by the Court.” State v. Lum, 2015 Del. Super. LEXIS 519 (Oct. 12, 2015).*
Posted inPrivate search|Comments Off on N.D.Cal.: Defendant’s wife’s turning over his computer hard drive to police was a private search
Defendant was surprised at trial with testimony that defendant’s wife had consented to a search of his computer prior to the search warrant issuing. Defendant moved for a mistrial. The FBI agent involved in that search was from Alabama and was on his way back when the court suggested recalling him so the issue could be fleshed out. With him unavailable, the government made and the court took a proffer. The court denied the mistrial. The case is remanded for a post-trial evidentiary hearing on her consent. United States v. Mulholland, 2015 U.S. App. LEXIS 18000 (2d Cir. Oct. 14, 2015).
Posted inBurden of proof|Comments Off on CA2: Def surprised at trial with unknown alleged consent search gets a post-trial evidentiary hearing on it
A package containing cocaine was shipped to defendant’s house in the name of her boyfriend. She had no standing in the package because her name wasn’t on it. State v. Padilla, 2015-Ohio-4220, 2015 Ohio App. LEXIS 4112 (9th Dist. Oct. 13, 2015).
There is no reasonable expectation of privacy in a computer open to intrusion by a P2P file sharing program. United States v. Dunning, 2015 U.S. Dist. LEXIS 140216 (E.D.Ky. Oct. 15, 2015).*
Defendant was illegally detained at work while his house was searched. His consent to search his cell phone was a product of the illegal seizure, and it’s suppressed. United States v. Garden, 2015 U.S. Dist. LEXIS 140522 (D.Neb. Oct. 15, 2015).*
The fact defendant’s passenger had puked in the car was not an exigency requiring police action. There was no evidence she was a danger to herself or others. They were already near hospitals. Byram v. State, 2015 Tex. App. LEXIS 10632 (Tex. App. – Ft. Worth Oct. 15, 2015).
Defense counsel was not ineffective for not challenging the search in this case because defendant lacked standing. Dietz v. State, 2015 Tenn. App. LEXIS 843 (Oct. 16, 2015).*
CI’s controlled buy the day before justified the issuance of the search warrant. United States v. Ledbetter, 2015 U.S. Dist. LEXIS 141146 (S.D.Ohio Oct. 16, 2015).*
Defendant’s neighbor called the police because of a broken back window strongly suggesting a burglary. An officer arrived with a dog, and when no one answered, he sent in the dog. Following the dog, no people were found but the dog alerted at the bathroom door for drugs. In the shower the officer found marijuana plants. The entry and the drug find was reasonable under all the circumstances. State v. Yee, 2015 Fla. App. LEXIS 15198 (Fla. 3d DCA Oct. 14, 2015).
Two civil cases over alleged illegal searches in the Districts of Massachusetts and New Hampshire are not sufficiently complex or related to require consolidation. In re Omran Litig., 2015 U.S. Dist. LEXIS 140103 (M.D.L. Oct. 9, 2015).
Defendant was excessively nervous when stopped. The officer called for a drug dog, which took seconds and did not itself extend the stop. While the officer was completing the paperwork tasks and waiting for clearance of the DL (which finally came), defendant was moving around in the car, which concerned the officer enough to turn on the spotlight but not get out of the car. Back at the car window, the officer inquired into the nervousness, and defendant admitted having marijuana in the car and produced a bag. The stop and its extension were reasonable. State v. Hays, 2015 Ida. App. LEXIS 97 (Oct. 14, 2015).
Posted inEmergency / exigency, Reasonable suspicion|Comments Off on FL3: Neighbor’s call of a broken back window brought police who suspected burglary; entry was justified
Defendant’s stop for a lane change violation was valid. A drug dog officer arrived before the paperwork was processed, so the stop was not continued for that. [So, as long as the drug dog arrives promptly, a dog sniff of the car is always appropriate?] State v. Davis, 2015-Ohio-4218, 2015 Ohio App. LEXIS 4109 (9th Dist. Oct. 13, 2015).
The collective knowledge of the officers justified the stop. The district court credited the testimony of the officers that there was valid consent without coercion. United States v. Roman, 2015 U.S. App. LEXIS 17923 (7th Cir. Oct. 15, 2015).*
The stop was justified by defendant stopping too far into the intersection before turning right on red. State v. Tharp, 2015-Ohio-4267, 2015 Ohio App. LEXIS 4152 (5th Dist. Oct. 13, 2015).*
Posted inDog sniff|Comments Off on OH9: If the drug dog gets there before the paperwork is done, the sniff is fine
We should expect the new regulations to be made public Monday, the report says. This will enable the new rules to be put into place before the holidays, as drones are expected to be among this year’s hottest gifts.
Pry my drone from my cold dead hand?
Posted inDrones|Comments Off on Wired: Report: Feds Will Require All Drones to Be Registered
Authorities say 911 calls from concerned viewers led to the arrest of a Florida woman who was streaming live video of herself while driving drunk.
Lakeland police report 23-year-old Whitney Beall was using the social media app Periscope as she was driving Saturday. The video shows her saying several times that she was drunk. She also said she had a flat tire and didn’t know where she was.
Posted inUncategorized|Comments Off on AP (via AOL): Florida woman streamed live video of drunken driving
In this § 1983 case over the particularity of a search warrant over stolen cars on his property, the officers had qualified immunity. The warrant was not so lacking in particularity that a reasonable officer couldn’t rely on it. Rathbun v. Montoya, 2015 U.S. App. LEXIS 17956 (10th Cir. Oct. 16, 2015): Continue reading →
Posted in§ 1983 / Bivens, Particularity|Comments Off on CA10: Officers get qualified immunity for SW that was not completely without particularity
Police came to defendant’s house with state DHS and found the garage door open 8-18″. The officer called out for defendant to open the garage door, and he didn’t respond. From inside, they heard him say “hide that.” Then the officer opened the garage door. The entry was unreasonable on the totality of circumstances and without exigent circumstances, and the search should have been suppressed. State v. Kelly, 274 Ore. App. 363, 2015 Ore. App. LEXIS 1204 (Oct. 14, 2015): Continue reading →
Posted inEmergency / exigency|Comments Off on OR: Opening garage door when defendant didn’t answer knock and said “hide that” was unreasonable
Before and after a CI does a controlled buy, there is no constitutional requirement that the CI be subjected to a body cavity search. United States v. Sidwell, 440 F.3d 865, 869 (7th Cir. 2006); United States v. Garcia, 983 F.2d 1160, 1167 (1st Cir. 1993). United States v. Fifer, 2015 U.S. Dist. LEXIS 139948 (C.D.Ill. Oct. 14, 2015).
The video of defendant’s driving supported the lane change stop. State v. Burbridge, 2015 Iowa App. LEXIS 913 (Oct. 14, 2015).*
Defendant’s evading arrest in a car also led to a search under the automobile exception. The search incident doctrine did not apply under defendant’s theory that the car could not be searched under the search incident doctrine for evidence of evading arrest. United States v. Appleberry, 2015 U.S. Dist. LEXIS 140650 (E.D.Tenn. July 20, 2015).*
Posted inAutomobile exception, Informant hearsay, Reasonable suspicion|Comments Off on C.D.Ill.: Before and after a CI does a controlled buy, there is no constitutional requirement that the CI be subjected to a body cavity search
“Are isolated statements globally asserting that a blood draw was conducted without a warrant enough to apprise the trial court that it must consider whether there were exigent circumstances to permit a warrantless search in a driving while intoxicated case, when the context of the entire record in a motion to suppress refers to a different complaint? We conclude that the answer to this question is ‘no.’ Because this record shows that Kenneth Lee Douds, appellant, failed to preserve his complaint that the search was conducted in the absence of exigent circumstances or some other valid exception to the warrant requirement, we sustain the State’s first ground in its petition for discretionary review that contends that the court of appeals erred by reversing his conviction for misdemeanor DWI. See Douds v. State, 434 S.W.3d 842 (Tex. App.—Houston [14th Dist.] 2014) (en banc, op. on reh’g). We accordingly reverse the judgment of the court of appeals and render judgment affirming appellant’s conviction.” Douds v. State, 2015 Tex. Crim. App. LEXIS 1060 (Oct. 14, 2015) (dissent).
Posted inBurden of proof, Drug or alcohol testing, Emergency / exigency|Comments Off on TX: Counsel’s isolated statements a SW wasn’t obtained for a blood draw was not enough to put state and court on notice that exigency needed to be decided
A man and woman have been arrested after officials say they prolonged a standoff with police in order to have sex.
Police tell local news outlets they responded Wednesday night to a Jacksonville mobile home in search of 34-year-old Ryan Patrick Bautista, who was wanted on several warrants. Bautista and 30-year-old Leanne Hunn were holed up in the mobile home, leading to a standoff.
They were charged with resisting arrest. How is fornication resisting arrest?
Posted inUncategorized|Comments Off on AP (via ABC): Couple Prolongs Police Standoff for Sex ‘One Last Time’; leading to resisting charge
Two conflicting federal court rulings at the appellate level over whether or not the government can obtain your cellphone location records without a warrant could have broad implications for the future of digital privacy. It is likely just a matter of time before one of the Fourth Amendment cases makes its way before the Supreme Court. Then, the high court will decide if such data collection from third parties equals an unreasonable search and seizure, and if cellphone users have a reasonable expectation of privacy when it comes to their cellphones.
Posted inCell site location information, SCOTUS|Comments Off on Forbes: While The Supreme Court Hesitates On Warrantless Cell Location Data Collection, Your Privacy Remains At Risk
Three month old information about an IP address in a child pornography case wasn’t stale. Also, the warrant wasn’t issued without probable cause just because the warrant was amended in handwriting before the magistrate, particularly because the correct date was put in. United States v. Singo, 2015 U.S. Dist. LEXIS 139457 (N.D.W.Va. Oct. 14, 2015), R&R 2015 U.S. Dist. LEXIS 139456 (N.D.W.Va. July 8, 2015).
Defendant was a known drug dealer who packaged heroin at a particular house. Officers were surveilling the house and defendant arrived, went inside, and left. The stop and search was with probable cause under the automobile exception, and defendant’s attempt to use the more recent Bailey was unavailing. United States v. Shaw, 2015 U.S. Dist. LEXIS 139418 (W.D.Mo. Oct. 14, 2015).*
Post-conviction court holds that defense counsel was not ineffective for not challenging a stop and search of a car that was valid under Belton [omitting that it was overruled in 2009 and the trial in this case was 2013; so they appoint hearing commissioners that haven’t opened a law book in 20 years?]. State v. Lum, 2015 Del. Super. LEXIS 519 (Oct. 12, 2015).*
Without a showing there is anything to test DNA against, a warrant for DNA may be without probable cause. After surveying the cases requiring there be something to test for a sample to be obtained, the question here is moot because the state admits the DNA was never tested against anything. If it is, then the question will be revisited. State v. Campbell, 2015 Del. Super. LEXIS 525 (Oct. 5, 2015): Continue reading →
Posted inDNA, Nexus, Probable cause|Comments Off on DE: Without a showing there is anything to test DNA against, a warrant for DNA may be without PC; but here moot for now
Officer’s knowledge defendant would retaliate for a shooting plus his Facebook postings he was armed (“strapped”) and was a known felon was probable cause for a search warrant for his dwelling. United States v. Poe, 2015 U.S. Dist. LEXIS 139748 (D.Minn. April 23, 2015), adopted 2015 U.S. Dist. LEXIS 139748 (D.Minn. Sept. 2, 2015): Continue reading →
Posted inProbable cause|Comments Off on D.Minn.: Def’s Facebook postings he was armed added to PC
Chicago police are not acting proactively, because they fear that citizens will film their actions and use it against them, or post the footage to social media, the city’s mayor Rahm Emanuel told U.S. Attorney General Loretta Lynch in a recent meeting.
Posted inBody cameras|Comments Off on ABAJ: Constant filming of police officers is ‘impacting their judgment,’ Chicago Mayor Rahm Emanuel says
A USMJ issued an order for CSLI, and, for the sake of argument, the court assumes it was without probable cause and it was before United States v. Graham (“Graham II”), 796 F.3d 332 (4th Cir. 2015). Reliance on the warrant was clearly with good faith. United States v. Thomas, 2015 U.S. Dist. LEXIS 139722 (E.D.Va. Oct. 13, 2015): Continue reading →
A search warrant presented to a magistrate may be modified before it issues. [After all, isn’t that the quintessential “neutral and detached magistrate” providing truly independent review?] Here, electronics were seized, copied, and returned, and there was a four year delay between the seizure and analysis of what was copied. That was not outside the original warrant. United States v. Peake, 2015 U.S. App. LEXIS 17868 (1st Cir. Oct. 14, 2015): Continue reading →
Posted inWarrant requirement|Comments Off on CA1: A search warrant presented to a magistrate may be modified before it issues; 4 yr delay in forensic analysis didn’t violate first warrant
"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.
