A road rage incident was called into 911 twice by a woman involved who said the other driver was a man blocking her path, beating on her car window and shouting obscenities, and displaying a gun. When police arrived, they found the cars and a man fitting the description of the man with the gun. He had a bulge in his clothing which resulted in a patdown, but it was only a cell phone holder [make note of that for the future!]. The car door was left open, and the officer searched the car finding the gun. It turned out that the man was a felon in possession. “The suppression motion was properly denied. The officer had probable cause to search Charles’s car for a gun based on the 911 caller’s report and his own observations at the scene. As such, the search was permissible under the auto-mobile exception to the Fourth Amendment’s warrant requirement.” United States v. Charles, 2015 U.S. App. LEXIS 16352 (7th Cir. September 14, 2015).
The stories from separate CIs combined here are to be added up to probable cause under the totality standard. United States v. Malek, 2015 U.S. Dist. LEXIS 121948 (D.S.D. August 21, 2015).
While the proof of nexus to defendant’s house was thin, the USMJ could reasonably draw the inference that defendant’s base of operations for his drug sales was his house. “It is a close question whether Agent Fitch’s affidavit sets forth a sufficient nexus between drug trafficking and Brown’s residence to support issuance of the search warrant. The affidavit contained no evidence that Brown distributed narcotics from his home, that he used the residence to store narcotics, or that any suspicious activity had taken place there. The affidavit did not suggest that a reliable confidential informant had purchased drugs there, that the police had ever conducted surveillance at Brown’s home, or that the recorded telephone conversations linked drug trafficking to Brown’s residence.” And, the inference was not so deficient that the good faith exception would not apply. United States v. Brown, 2015 U.S. App. LEXIS 16148 (6th Cir. September 11, 2015): Continue reading →
Posted inGood faith exception, Nexus|Comments Off on CA6: If it’s a close case on nexus to a drug dealer’s home, the GFE is good enough for government work
“As a matter of first impression in Indiana, we hold that it is reasonable under the Fourth Amendment for an officer to rely on the voluntary consent of a minor’s parent to search the minor’s bedroom inside the parent’s home.” R.B. v. State, 2015 Ind. App. LEXIS 622 (September 11, 2015) (see Treatise § 12.41 By parent; “my house, my rules”).
While an arrest warrant is always preferred, officers do not need to procure one when it’s not possible. Here it was for a shoplifting arrest, and that led to a valid search incident. State v. Paananen, 2015 N.M. LEXIS 280 (September 10, 2015).
Defendant was stopped because radar showed him going 66 in a 65. He argued both pretext and that the radar device could have been off with a standard margin of error of one mile per hour. The court credits the officer that there was objective justification for the stop so pretext fails. United States v. Fuehrer, 2015 U.S. Dist. LEXIS 121636 ( August 20, 2015).*
Defendant was asleep in his girlfriend’s car in a rest area on I-91 in Vermont at 1 am. A state trooper ran LPNs in the parking lot and saw that the DL of the female owner of the car was suspended. He looked in the car and saw a man. He didn’t do anything then. He went back to the patrol car and ran a computer check and found the DL of a man at the same address as the woman owner also was suspended. He went back to the car and woke defendant up. Defendant said that he hit a deer in Massachusetts, broke a headlight, and was told by the Massachusetts state trooper at that scene that he shouldn’t drive with one headlight. He said he was waiting for his girlfriend to pick him up. The officer gave no ticket and told him to “rack out.” The officer ran defendant’s criminal history and found he had prior drug arrests. A second state trooper was called to join. They came and woke him up again, this time questioning him about drugs. The questions of this encounter were far more serious, about drugs and whether defendant was into drugs, and required reasonable suspicion. The stop was without reasonable suspicion, and it is suppressed. State v. Winters, 2015 VT 116, 2015 Vt. LEXIS 90 (September 4, 2015).
This is a classic kind of the argument for the “right to be let alone,” Treatise § 2.21. Yes, defendant had a suspended DL, but the officer never saw him driving. Woke him up, told him to go back to sleep, and then woke him up again, with backup, just to question him about drugs.
Posted inReasonable suspicion|Comments Off on VT: 1:30 am encounter with sleeping def in car in rest area by two officers required reasonable suspicion
Congress faces a tough slog to update the email privacy law at the center of Microsoft’s fight against a U.S. warrant mandating that it turn over a customer’s email account stored in Ireland.
Competing bills to reform the decades old Electronic Communications Privacy Act (ECPA) have gone nowhere in Congress in the past few years.
Posted inE-mail, ECPA|Comments Off on The Hill: Bill to limit reach of US warrants faces uphill battle in Congress
Defendant was subject to a parole search condition, and the search violated some internal policy of the Department of Corrections. It did not, however, violate the Fourth Amendment, and the court holds that the policy violation did not require that the search be suppressed where it was otherwise in compliance with the Constitution. Commonwealth v. Alberhasky, 2015 Ky. App. LEXIS 133 (September 11, 2015).
The affidavit for the search warrant as a whole provided probable cause for the search warrant, and the good faith exception applies, too. United States v. Cruz, 2015 U.S. Dist. LEXIS 120926 (M.D.Pa. September 11, 2015).*
Posted inProbable cause, Probation / Parole search|Comments Off on KY declines to suppress parole search where violation of some procedural rule but not the Fourth Amendment
Defendant was on supervision for a prior child pornography offense. Police looked to his social media page and found him taking a naked selfie wearing a Santa hat with a camera phone, a violation of the terms of his release. That linked to “fat.naked.santa” with more pictures. It also suggested an unauthorized method of internet access via the smartphone. All this gave reasonable suspicion for a “parole” search under federal law. United States v. Hilton, 2015 U.S. App. LEXIS 16210 (6th Cir. September 9, 2015).*
Posted inUncategorized|Comments Off on CA6: Social media selfie created RS for parole search
The 76 year old defendant, a prior habitual offender for violent crimes, was sentenced to life without parole for possession of 2.2 pounds of marijuana, the trial court thinking it had no discretion on the sentence. Defense counsel raised a Randolph objection at trial which was denied and affirmed by the Alabama Court of Criminal Appeals in an unpublished opinion. Petition for cert denied. Brooker v. State, 2015 Ala. LEXIS 108 (September 11, 2015) (Moore, C.J., concurring).*
Posted inUncategorized|Comments Off on AL: 76 year old with prior felonies sentenced to LWOP for 2.2 lbs marijuana
A court ordered GPS device was placed on defendant’s vehicle. His movements watched online and facts the police had learned added up to reasonable suspicion for a stop. [If they had PC for a tracking warrant, why not for the car itself later?] State v. Urdiales, 2015-Ohio-3632, 2015 Ohio App. LEXIS 3549 (3d Dist. September 8, 2015).
The officer who shot plaintiff’s pit bull was justified. The dog had been removed to a pen during the search and seemingly neutralized. The dog somehow escaped, appeared behind an officer, and was snarling and then barked and attacked the officer who shot at the dog once, knocking him down, and the dog got up and came at him again and this time the officer shot and justifiably killed the dog. This case is completely different from San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005), that plaintiff relies on where officers wantonly shot and killed dogs rather than deal with them. “Finally, while Buster’s killing doubtlessly presents a grave intrusion on Grant’s property rights, in this case, unlike in Hells Angels, the governmental interest of safety provides a sound justification.” Grant v. City of Houston, 2015 U.S. App. LEXIS 16240 (5th Cir. September 10, 2015).*
Posted inProbable cause, Warrant requirement|Comments Off on OH3: A court order issued with PC and otherwise complying with the Fourth Amendment doesn’t have to be called a “search warrant” to be effective
Police engaged in a long standoff with a suicidal subject whose only alleged crime was to fire a gun into the woods which he thought were unoccupied. Every window in the house was broken by tear gas canisters, and he didn’t come out. The police threw in a throw phone to communicate with him, but he wouldn’t pick it up. Finally, he was killed by a police sniper to prevent him from committing suicide. The court noted the police sent out for coffee, hot chocolate, and granola bars but never a search warrant. The district court erred in granting summary judgment before trial (reaching a defense verdict) as to some defendants. Reversed for trial on remaining defendants. Carlson v. Fewins, 13-2643 (6th Cir. September 11, 2015): Continue reading →
Posted in§ 1983 / Bivens, Emergency / exigency, Excessive force|Comments Off on CA6: During a long standoff, police sent for coffee and granola bars but no warrant before a sniper killed the suicidal defendant before he could kill himself
“Our view of this testimony is that it represents a profound misunderstanding of the ‘narrow scope of the exigent-circumstance exception’ to the warrant requirement.” Brown v. State, 2015 N.J. Super. LEXIS 154 (September 11, 2015): Continue reading →
Posted inEmergency / exigency|Comments Off on NJ: “Our view of this testimony is that it represents a profound misunderstanding of the ‘narrow scope of the exigent-circumstance exception’ to the warrant requirement.”
Even believing the defendant’s version of the facts, there was reasonable suspicion. Therefore, the credibility question doesn’t have to be decided. State v. Gallardo, 2015 Iowa App. LEXIS 803 (September 10, 2015).
The only issue on the search here is probable cause for the stop. Here, a broken taillight was sufficient for the stop. State v. Patrick, 2015 Iowa App. LEXIS 793 (September 10, 2015).*
Defendant’s Fourth Amendment issue was addressed on direct appeal, so it can’t be raised in a 2255. Fuk Yuk v. United States, 2015 U.S. Dist. LEXIS 120675 (M.D.Fla. September 10, 2015).*
Defendant was arrested twice, both times without probable cause or a complaint being filed. For that and other reasons, defendant’s finding of contempt is reversed. State v. Juarez, 2015 Ida. LEXIS 235 (September 9, 2015): Continue reading →
Ordering a person to leave a courthouse is likely not a seizure. Grabbing his collar and forcing him to move is a seizure. It is subject to the reasonableness requirement. Salmon v. Blesser, 2015 U.S. App. LEXIS 16070 (2d Cir. September 10, 2015): Continue reading →
Posted inSeizure|Comments Off on CA2: Ordering a person to leave a courthouse is likely not a seizure, but grabbing his collar and forcing him to move is a seizure
Defendant who hid drugs in the drainpipe of a neighbor’s house had no standing to challenge a search of the drainpipe. While evidence at the trial differed, this did not give the defendant the right to reopen the suppression hearing. Under state law, the suppression order was law of the case. State v. Wilson, 2015 N.J. Super. LEXIS 153 (September 10, 2015).
Plaintiffs and their children were awarded $3M for damages for taking the children in violation of the Fourth Amendment. The jury verdict was correctly set aside by the district court, however, because the instructions were defective and allowed the jury to include in damages a continued taking of the children even under a valid court order. Watson v. City of San Jose, 2015 U.S. App. LEXIS 15924 (9th Cir. September 8, 2015).*
Posted inBorder search|Comments Off on EFF Urges Appeals Court To Toughen Privacy Protections for Devices at the Border Warrants Should Be Required to Search Cell Phones, Computers
House lawmakers on Thursday are slated to explore the safety and privacy implications of drones, as the technology becomes increasingly popular in the United States.
Posted inDrones|Comments Off on The Hill: Overnight Tech: House to explore drone safety, privacy
In a decision fleshing out the rights of accused criminals in the social media age, a California appeals court ruled Tuesday that Facebook, Twitter and Instagram don’t have to honor subpoenas from criminal defendants seeking private user information.
Posted inComputer and cloud searches|Comments Off on The Recorder: Defense Lawyers Lose Fight Over Facebook, Instagram Posts
An ineffective assistance claim that says defense counsel was ineffective for failing to move to suppress without saying what should have been suppressed states no claim at all. [It would also have to say that it would have been granted if made, and the evidence was prejudicial to the defense.] United States v. Spruill, 2015 U.S. Dist. LEXIS 119640 (E.D. Pa. September 8, 2015).
Defendant was not seized by an officer who approached him asking to talk to him. In fact, defendant started to walk away from the officer when he fell backwards and was grabbed by the officer, tensing up and acting like he was armed. Only then was he seized, and it was with reasonable suspicion. United States v. Fonville, 2015 U.S. Dist. LEXIS 119613 (E.D.Mich. September 9, 2015).*
A claim that search warrant affidavits in other states is relevant to the search warrants in this case, and defendant has made a viable claim that the affidavits were not signed by the person named. He thus gets production of handwriting samples pertinent to those affidavits. United States v. Durst, 2015 U.S. Dist. LEXIS 119989 (E.D. La. September 8, 2015).*
"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.
