Washington rules require that a search warrant inventory be done in the presence of another officer. In this case, the department had only five officers, and the search occurred during the night shift when only one officer was on duty. The hearing judge apparently was unwilling to find that the inventory was accurate, even though the contents were photographed at the time of the search. Therefore, suppression was the only remedy, and prejudice apparently need not be shown (or it was by the trial court’s finding). State v. Linder, 2015 Wash. App. LEXIS 2464 (Oct. 13, 2015).
Defendant was subjected to a search based on a year long investigation with 34 paragraphs detailing the probable cause. The officer misspoke and referred to defendant’s 1998 prior as a smuggling conviction when it was possession. This was not material for Franks purposes, even if it was grossly negligent. United States v. Rivera-Vega, 2015 U.S. Dist. LEXIS 136948 (D.Ariz. Oct. 7, 2015).*
Posted inFranks doctrine, Warrant execution|Comments Off on WA: Violation of state rule that SW inventory be in presence of another officer requires suppression
Defendant cohabitated with a probationer. He was present and objected to the search of their bedroom, which he had the right to do. What was found was inadmissible against him. State v. Rooney, 2015 Wash. App. LEXIS 2462 (Oct. 13, 2015).
The officer who stopped defendant knew him from a prior drug arrest and defendant’s propensity to be argumentative with police officers. When defendant was pulled over, he and his passenger refused to stay in the car and, once out, refused to keep their hands away from their pockets. This led to a patdown, and drugs were found by plain feel. There was reasonable suspicion for the drug dog that took 25 minutes to show up. United States v. Phommaseng, 2015 U.S. Dist. LEXIS 139114 (D.Kan. Oct. 12, 2015).*
Defendant was in a car parked in a residential area on a dead end street with his brake lights on but engine off at 3:51 am. Police were called by a neighbor who saw the car. He was in a stupor and couldn’t be awakened until the officer reached in the window and shook him. This was all reasonable. State v. Gormsen, 2015 Tenn. Crim. App. LEXIS 813 (Oct. 6, 2015).*
The government obtained a search warrant for defendant’s cell phone and seized it promptly. The forensic search of the phone, however, didn’t occur for 85 days, after the 60 day window in the warrant. The defense, however, can show no prejudice. The delay did not diminish the probable cause for the search of the cell phone. Mere technical violations of Rule 41 do not require suppression. Child pornography was found on the phone. United States v. Filippi, 2015 U.S. Dist. LEXIS 137794 (N.D.N.Y. Sept. 9, 2015): Continue reading →
Posted inExclusionary rule, Reasonableness|Comments Off on N.D.N.Y.: Violation of Rule 41 in delay in searching cell phone doesn’t require suppression
The Fourth Amendment somehow still survives, despite the government’s best efforts to dismantle it… or at the very least, ignore it.
Law enforcement agencies seemingly have never met a warrant they didn’t like. They’ll do everything they can to avoid getting one, even though the process appears to be little more than [INSERT PROBABLE CAUSE] [OBTAIN WARRANT].
Posted inWarrant requirement|Comments Off on TechDirt: Law Enforcement And The Ongoing Inconvenience Of The Fourth Amendment
Google did not become a state actor by scanning email for child pornography and then reporting it to NCMEC. The IP address provided led to a search warrant. There was no Franks violation in not providing mobile IP addresses, too, because it would not change the outcome. United States v. Miller, 2015 U.S. Dist. LEXIS 136185 (D.Neb. Sept. 9, 2015), adopted 2015 U.S. Dist. LEXIS 136187 (D.Neb. Oct. 6, 2015): Continue reading →
Posted inE-mail|Comments Off on D.Neb.: Google did not become a state actor by scanning email for child pornography and then reporting it to NCMEC
Criminalizing a motorist’s refusal to take a blood test under Minnesota’s statute fails strict scrutiny review. “We conclude that criminalizing the refusal to submit to a warrantless blood test ‘relates to the state’s ability to prosecute drunk drivers and keep Minnesota roads safe,’ Bernard, 859 N.W.2d at 774, but it is not precisely tailored to serve that compelling state interest. It therefore fails strict-scrutiny review. [¶] We recognize that the available alternatives may not be as efficient as the current procedure under the test-refusal statute. But these alternatives serve the state’s compelling interest in securing the safety of its roadways without infringing on a driver’s fundamental right to refuse an unreasonable search of his blood. Because the test-refusal statute as applied fails strict scrutiny, Trahan’s right to due process under the Minnesota and United States Constitutions was violated.” State v. Trahan, 2015 Minn. App. LEXIS 78 (Oct. 13, 2015)
Defendant stopped for DUI on federal property did not have a right to be told of the right to refuse a consent. He read the form and signed it. United States v. Contreras, 2015 U.S. Dist. LEXIS 137901 (N.D.Cal. Oct. 8, 2015).*
Posted inConsent, Drug or alcohol testing|Comments Off on MN: Criminalizing a motorist’s refusal to take a blood test under Minnesota’s statute fails strict scrutiny review
“Deputy Jimerson is trained in drug interdiction and has previously testified as an expert witness on interdiction. During the stop, he saw the defendants were speaking on Tracfones when he approached the car, which he knows to be commonly used as ‘burner’ phones in the drug trade. Both defendants appeared extremely nervous for the duration of the stop: their hands shook, they sweated profusely, and Gastelum-Castro avoided eye contact. Gastelum-Castro’s pinky fingernail was long, while his other fingernails were trimmed short, a characteristic Deputy Jimerson knows to be common among drug users. A strong odor of air freshener emanated from the car’s interior, possibly indicating an attempt to mask the odor of narcotics. Neither defendant owned the vehicle, which Deputy Jimerson knows to be common practice among drug traffickers. Deputy Jimerson also observed inconsistent travel plans: defendants claimed they were traveling to Kansas City to see family, but the woman on the phone claimed they were going to Kansas City to look for construction work. The vehicle was registered in Oregon and the driver had a Washington driver’s license. Gastelum-Castro is from Sinaloa, Mexico, where the Sinaloa Drug Cartel is headquartered. Defendants also both had bloodshot eyes, but said that they were not tired. [¶] Deputy Jimerson’s observations, taken together and in light of Deputy Jimerson’s experience and training, provide an objectively reasonable and articulable suspicion that defendants were involved in drug activity. The duration of the stop was thus supported by reasonable and articulable suspicion that drug activity was afoot. United States v. Valenzuela-Rojo, 2015 U.S. Dist. LEXIS 137047 (D.Kan. Oct. 7, 2015).
The smell of marijuana justified the search of defendant’s car. United States v. Ray, 2015 U.S. Dist. LEXIS 137543 (W.D.Mo. Sept. 8, 2015), adopted 2015 U.S. Dist. LEXIS 136757 (W.D. Mo. Oct. 7, 2015).*
Defendant engaged in file sharing by a P2P network has no reasonable expectation of privacy in the files that can be shared. United States v. Hall, 2015 U.S. Dist. LEXIS 137053 (M.D.Fla. July 10, 2015),* adopted 2015 U.S. Dist. LEXIS 136999 (M.D. Fla. Oct. 7, 2015).*
A small plane took off from California flying to rural Pennsylvania with unusual flight plans that indicated an effort to avoid detection. It stopped for gas in various places, and the pilot’s actions strongly suggested inexperience. DHS called ahead and they were waiting for the plane when it landed. The detention was with reasonable suspicion. United States v. Nichols, 2015 U.S. Dist. LEXIS 137807 (E.D.Pa. Oct. 8, 2015).
There was probable cause for defendant’s stop for being involved in a bank robbery. One of the findings was that GPS information from defendant’s phone put him near there [but there is no mention of how that information was acquired: subpoena? search warrant?]. United States v. Johnson, 2015 U.S. Dist. LEXIS 137859 (W.D.Mich. Oct. 9, 2015).*
DHS officers obtained a search warrant for defendant’s apartment and computer for child pornography. When they got there, he was moving to another apartment in a nearby complex. They came to the new apartment and obtained consent to talk to him, seize his cell phone and his computer. United States v. Ramirez, 2015 U.S. Dist. LEXIS 136386 (W.D.Tex. Oct. 6, 2015).*
Equipping police with body cameras may be an effective way to improve the behavior of officers and the public with which they interact, a new study finds. Continue reading →
Posted inBody cameras|Comments Off on HuffPo: Study Shows Less Violence, Fewer Complaints When Cops Wear Body Cameras
Defendant received three packages over time from China and the Postal Inspector admitted there was no probable cause after receipt of the second, and the court finds there wasn’t for the third either. China may be an exporter of controlled substances to the U.S. [as well as electronics bought off eBay] but there was no effort at all to confirm the presence of drugs in the packages. When defendant received this package, officers came up on him to arrest or get consent, and he “back pedaled” into his dwelling. This was not exigency. The protective sweep revealed some contraband, and the view was unlawful. United States v. Graham, 2015 U.S. Dist. LEXIS 135545 (D.R.I. Oct. 5, 2015).
Defendant was encountered by a plain clothes officer in an open parking lot, and he admitted having drugs on him. That justified his detention. United States v. Mitchell, 2015 U.S. Dist. LEXIS 136671 (D.Me. Oct. 6, 2015).*
Defendant’s stop for walking down the middle of the road was with reasonable suspicion. United States v. Coleman, 2015 U.S. Dist. LEXIS 138048 (S.D.Ind. Oct. 9, 2015).*
The CI said he was a regular purchaser of marijuana from defendant, and thus the fact that the last was eleven days before the warrant was not stale. State v. Flores, 2015 Conn. LEXIS 289 (Oct. 20, 2015).
Defendant was arrested in his driveway for being an illegal alien. He consented to an entry into the house to look for other people. His wife consented to an entry to look for people or guns, and a gun was found. Defendant was convicted of possession of a firearm by an illegal alien, and her and his consent were valid. United States v. Gonzalez-Quesada, 2015 U.S. App. LEXIS 17740 (5th Cir. October 8, 2015).*
2255 petitioner raised nothing new about the searches in his case that called them into question. They were based on consent of his grandmother. Dunn v. United States, 2015 U.S. Dist. LEXIS 138159 (M.D.Tenn. Oct. 9, 2015).*
Posted inConsent, Staleness|Comments Off on CT: CI said he was a regular purchaser of MJ from def; that overcame 11 day staleness challenge
Officers had probable cause to stop defendant’s vehicle as being involved in a robbery. They set up a “choke point” on the flight route away and saw the vehicle, and the driver fled from multiple attempts to stop it. Then there was a chase and it crashed into a police car. People v. Lloyd, 2015 V.I. LEXIS 122 (Super.Ct. Sept. 29, 2015).
javascript:openWindowNoMenu(‘pdfs/People v. Calvin Lloyd (DAB).pdf’);
Defendant’s girlfriend consented to the search of his apartment. There was a finding of apparent authority [but the court does not share how it was apparent if it was his apartment]. People v. Nance, 2015 NY Slip Op 07393, 2015 N.Y. App. Div. LEXIS 7427 (4th Dept. Oct. 9, 2015).* (Once again, in the interest of brevity, all reasoning is lost.)
A window tint violation supports a stop. The officer is not required to know with certainty that the window tint violates the law. People v. Smith, 2015 V.I. LEXIS 121 (Super.Ct. Sept. 29, 2015).*
Police answered a loud music call at 5 am in an apartment building, and they could smell burning marijuana outside defendant’s apartment door. Burning marijuana is a misdemeanor and not sufficient exigency for a police entry. A 1995 Ohio case so holds. State v. Ambrosini, 2015-Ohio-4150, 2015 Ohio App. LEXIS 4052 (7th Dist. Sept. 28, 2015).
Taking a voluntarily offered ID is a detention when the officer keeps it. Here the stop was for the passenger flicking ashes out a window, and that’s just not a basis for a stop. [Except maybe if a wildfire could result? Must depend on where.] People v. Linn, 2015 Cal. App. LEXIS 887 (1st Dist. Oct. 8, 2015).*
Defense counsel was not ineffective for not moving to suppress the search warrant because it allegedly lacked probable cause. The search was also conducted by defendant’s state parole officer, and defendant was charged in state court with possession of stolen property from the search. He was charged in federal court with felon in possession. The parole search justification was enough. United States v. Cornelison, 2015 U.S. Dist. LEXIS 138211 (W.D.Ark. Aug. 28, 2015).*
Riding in a car to a robbery is not a “sufficiently close connection to the car” to give standing. There was at least reasonable suspicion for the stop based on the robbery call, and then probable cause for their arrest. One defendant fled from the car and was caught. United States v. Seizys, 2015 U.S. Dist. LEXIS 137680 (D.Neb. Oct. 8, 2015),* R&R 2015 U.S. Dist. LEXIS 138701 (D.Neb. Aug. 10, 2015).*
NYPD got a 911 call about a man waiving a gun in a green Yukon giving the LPN. They found the truck and stopped it, smelling marijuana coming from it and seeing a joint on the console. That authorized a search that produced a gun in the console, and defendant was a felon in possession. United States v. Faison, 2015 U.S. Dist. LEXIS 137730 (S.D.N.Y. Oct. 8, 2015).*
Defendant was stopped for speeding, and the officer could smell marijuana coming from the vehicle when he talked to the driver. That justified a search under the automobile exception. United States v. Ray, 2015 U.S. Dist. LEXIS 136757 (W.D.Mo. Oct. 7, 2015).*
Posted inProbable cause, Standing|Comments Off on D.Neb.: A mere passenger in a car used in a robbery has no standing to challenge the search
The fact defendant didn’t read the consent form doesn’t make it involuntary. Not reading it was defendant’s choice. “This leaves the agents’ purported threat to ‘tear the apartment apart’ if they obtained a warrant — something the Government contends never happened. Such a statement does not in and of itself render her consent involuntary. Courts must evaluate threatening statements in the broader context in which they were made, considering how the words would reasonably be interpreted.” United States v. Mirilishvili, 2015 U.S. Dist. LEXIS 136424 (S.D.N.Y. Oct. 1, 2015).
The dashcam video shows that the driver consented to the search of the rented vehicle. This defendant didn’t have standing in the vehicle. United States v. Murillo-Salgado, 2015 U.S. Dist. LEXIS 137448 (W.D.Mo. Oct. 8, 2015),* R&R 2015 U.S. Dist. LEXIS 137514 (W.D.Mo. Sept. 8, 2015).*
Defendant filed a general motion to suppress which didn’t allege what evidence was illegally obtained or how it was illegal. The search was with a warrant, and, based on the government’s discovery, the warrant was with probable cause and phone records were obtained by subpoena. United States v. Ledbetter, 2015 U.S. Dist. LEXIS 137643 (S.D.Ohio Oct. 8, 2015).*
Posted inBurden of proof, Consent|Comments Off on S.D.N.Y.: Not reading the consent form doesn’t make it involuntary; neither does threat to “tear the place apart,” which was disputed
Border Patrol supervisor charged with targeting man who accused family member of molestation…A U.S. Border Patrol supervisor is accused of using his law enforcement authority to repeatedly harass a Mexican man who made child-rape claims against one of the agent’s family members, according to charges unsealed in San Diego federal court Friday.Martin Rene Duran, 46, of Chula Vista is charged with falsifying records and deprivation of rights under color of law.
Posted inPolice misconduct|Comments Off on San Diego Union-Tribune: Feds say border agent harassed brother’s accuser
The Obama administration has backed down in its bitter dispute with Silicon Valley over the encryption of data on iPhones and other digital devices, concluding that it is not possible to give American law enforcement and intelligence agencies access to that information without also creating an opening that China, Russia, cybercriminals and terrorists could exploit.
Posted inSurveillance technology|Comments Off on NYTimes: Obama Won’t Seek Access to Encrypted User Data
Seizure of a computer under a warrant authorizes its search, even after the 14 day window in the warrant. Phone conversations between defendant and his lawyer over the jail phone system were not subject to attorney-client privilege because there was a warning playing on the phone during the call that calls were recorded. United States v. Ilonzo, 2015 U.S. Dist. LEXIS 135895 (N.D.Ga. October 6, 2015), R&R 2015 U.S. Dist. LEXIS 136783 (N.D.Ga. May 18, 2015).
Defendant had no standing in a friend’s apartment. He often visited there, pretty much whenever he felt like it, knew the occupants all his life, but he never spent the night there. United States v. Howard, 2015 U.S. Dist. LEXIS 138316 (W.D.Tenn. Aug. 19, 2015),* adopted 2015 U.S. Dist. LEXIS 137491 (W.D.Tenn. Oct. 8, 2015).*
State’s forfeiture action was void because there was no state jurisdiction over the money. The feds had it. Ruiz v. City of Montgomery, 2015 Ala. Civ. App. LEXIS 235 (Oct. 9, 2015).*
Defendant’s wife allegedly committed suicide. In the investigation, the police interviewed their daughter and she said that her mother was using her computer just before her death. The computer was seized as a part of the suicide investigation. Later the ME ruled that it was, in fact, a suicide, but the police kept investigating. Defendant sought return of the computer, but he didn’t seek legal recourse. Later, defendant’s brother reported to the police that defendant had molested his own children. His mother-in-law reported she found DVDs of child pornography on his computer desk at home when she was cleaning the house to rent out. The police initially had probable cause to seize the computers as evidence of the potential suicide. The lengthy seizure of the computers was not unreasonable, and the police had independent sources of information for a search warrant for the contents of the computer. State v. Gant, 2015 Wisc. App. LEXIS 739 (Oct. 9, 2015).
Intoxicated man freely consented to searches. “Although Smith appeared intoxicated during the two searches, he had already begun cleaning the crime scene, gave his own version of the events, was able to answer the officer’s questions and sign the consent form without any difficulty, was alert, cooperative, and steady on his feet, had no trouble helping the officer lift a mattress, and did not appear to be confused at any point. Under these circumstances, the district court did not clearly err in determining that a reasonable officer would have viewed Smith’s consent as voluntary.” United States v. Smith, 2015 U.S. App. LEXIS 17470 (9th Cir. Oct. 5, 2015).
Defendant doesn’t have standing to challenge a search of another person’s car bringing drugs to him. (The issue was analyzed as a reasonable expectation of privacy question.) United States v. Honeycutt, 2015 U.S. Dist. LEXIS 136594 (W.D.La. Sept. 14, 2015),* adopted 2015 U.S. Dist. LEXIS 136590 (W.D. La. Oct. 6, 2015).*
Posted inConsent, Standing|Comments Off on CA9: Intoxicated man freely consented to searches; actions show he knew what he was doing
"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.
