A person has a reasonable expectation of privacy in text messages in his own phone, but not the text messages in another phone that he sent. Once a text message is released, all control over it is lost. State v. Tentoni, 2015 Wisc. App. LEXIS 662 (September 9, 2015)
One party consent is all that is required under the state constitution for recording of a telephone call. State v. Skok, 2015 Conn. LEXIS 253 (September 15, 2015) (concurrence).
Officers searched defendant’s house based on codefendant’s probation agreement but without reasonable suspicion. Search suppressed. It led to a charge of violation of an order of protection by possession of a firearm, but that is dismissed too because the person the order of protection is for isn’t an “intimate partner” under the statute. State v. Carman-Thacker, 2015 Tenn. Crim. App. LEXIS 728 (September 8, 2015).*
New Jersey’s decision to allow the use of medical marijuana does not mean that the smell of marijuana smoke no longer creates probable cause for police to make an arrest or conduct a search, a state appeals court has ruled.
Posted inProbable cause|Comments Off on NJLJ: Marijuana Smoke Still Means Probable Cause, Court Says
The court order for a tracking device (GPS) was based on probable cause. There is no requirement that it be a “search warrant” as long is it is based on probable cause and is issued by a neutral and detached magistrate. The language of the warrant for drugs was not overbroad, and the same language had been held valid in a 2010 case. “‘The warrant does not give a particular description of any of the items authorized to be seized. The absence of a more particularized description does not make the warrant a general warrant, however, because a warrant to seize property that is illicit by reason of its character need not provide a specific description of each item to be seized.’” State v. Lockhart, 2015 Tenn. Crim. App. LEXIS 726 (September 8, 2015). What is a “search warrant” but a court order? As long as all the elements of a search warrant are met, what’s the difference? “Pleadings must be construed so as to do justice,” FRCP 8(e), so why not court orders?
“While the question is close,” the court concludes that a paying passenger in a livery car has a reasonable expectation of privacy in the passenger area of the cab from the police, relying on United States v. Woodrum, 202 F.3d 1, 6 (1st Cir. 2000). The stop was valid, so the exit order was too, and a gun was then seen. United States v. Dardy, 2015 U.S. Dist. LEXIS 119271 (D.Mass. September 8, 2015).
Flight isn’t indicative of criminality, but it is with a gun in hand. The gun was tossed in flight. United States v. Gaines, 2015 U.S. Dist. LEXIS 119203 (W.D.Pa. September 8, 2015).*
Posted inReasonable expectation of privacy, Standing|Comments Off on D.Mass.: A paying passenger in a cab has a reasonable expectation of privacy in the passenger compartment
On the totality, the officers had reasonable suspicion. Breaking them down, however, some were afforded less weight, such as “what is a high crime area?” Here, the reasonable suspicion ripened into probable cause and permitted a search incident. United States v. Gordon, 2015 U.S. Dist. LEXIS 119188 (D.Kan. September 8, 2015)*: Continue reading →
Posted inReasonable suspicion|Comments Off on D.Kan.: “What is a high crime area?” is nebulous
The state failed to prove nexus to this property for the search warrant. There was probable cause to search the property of defendant, but what was lacking was his connection to this property. “It provided more than sufficient probable cause to search the two residences of Christopher Tuttle. However, Davis did not provide law enforcement with any information linking Christopher Tuttle to the target residence. Davis also did not mention the Defendant Appellant’s name, that he (Davis) had observed the Defendant-Appellant involved in drug activity, or that any drug activity had previously occurred at the target residence.” State v. Tuttle, 2015 Tenn. Crim. App. LEXIS 725 (September 8, 2015) (concur/dissent).
The juvenile’s admission he had drugs on him justified a search of his backpack. [Which begs the question of why this case went into an historical discussion of the search power. Interesting, but hardly pertinent to the outcome.] In the Interest of I.M.S., 2015 PA Super 188, 2015 Pa. Super. LEXIS 514 (September 8, 2015).*
Posted inNexus, Search incident|Comments Off on TN: Failure to prove def’s nexus to target property made search without PC
An unauthorized driver of a rental car still has standing to challenge its search as long as permission was given by the renter. United States v. Pinex, 2015 U.S. Dist. LEXIS 118558 (D.Mont. September 4, 2015).
Packages in the mail were sniffed by dogs, and the packages were tracked from an IP address associated with one address. The Franks challenge fails. “Here, Defendant Peskett has not made the substantial preliminary showing necessary for a Franks hearing. Her allegations are merely conclusory, and are not accompanied by an offer of proof. See Craighead, 539 F.3d at 1073. Instead, she simply claims that the two dogs did not really alert to the odor of narcotics, as stated in the affidavits, and that [the dog]’s training was not adequate. She presents nothing to show that the affiant’s statements were made with deliberate falsehood or reckless disregard for the truth. Therefore, she has failed to meet even the first Franks prong. Accordingly, the Court denies the request for a Franks hearing.” By the time the packages were detained in transit, there was reasonable suspicion as to each. United States v. Hunsberger, 2015 U.S. Dist. LEXIS 118688 (D.Nev. August 26, 2015).*
Posted inFranks doctrine, Standing|Comments Off on D.Mont.: An unauthorized driver of a rental car still has standing to challenge its search as long as permission was given by the renter
When the state relies on the collective knowledge doctrine, it is required to call the officers involved in both ends of it. Merely having the searching officer testify to hearsay as to what the first officer did is inadequate, even if hearsay is otherwise admissible in suppression hearings. “In summary, on a motion to suppress challenging the sufficiency of a stop or warrantless arrest for lack of probable cause, the State can satisfy its burden in one of two ways. The State can present evidence that the arresting officers themselves possessed the requisite knowledge to establish probable cause, or by introducing evidence that a fellow police officer with the requisite knowledge communicated that information to, and/or directed the officers on scene to make the arrest. Under the latter, the State must persuade the Court that the requisite knowledge was in fact communicated in order to rely upon the collective knowledge doctrine. Otherwise, it follows that the arresting officer acted without reasonable suspicion or probable cause.” State v. Holmes, 2015 Del. Super. LEXIS 462 (September 3, 2015).
Posted inCollective knowledge|Comments Off on DE: When collective knowledge is used, the first with PC or RS must be called at suppression hearing; hearsay not admissible
Defendant consented to search of his cell phone. Proof of knowledge of rights comes from the fact he earlier gave a limited consent to search other property. United States v. Thurman, 2015 U.S. Dist. LEXIS 117893 (N.D. Ill. September 3, 2015).
Defendant failed to make a substantial preliminary showing of falsity in the search warrant affidavit as to where the trash bins were at the time of the trash pull. Her testimony about her pattern and practice that they couldn’t have been at the curb at the time of their search didn’t overcome the two officers’ testimony that they were there. United States v. Gay, 2015 U.S. Dist. LEXIS 118750 (E.D. N.C. June 22, 2015).*
Posted inConsent, Franks doctrine|Comments Off on N.D.Ill.: Prior limited consent showed this search was by consent
A mismatched license plate to the vehicle is more indicative of crime than other traffic offenses. It is a reasonable suspicion warranting a patdown. “Such a risk was only heightened here because the ‘traffic violation’ at issue—using forged or stolen license plates—is more indicative of possible criminality than other traffic violations like a broken tail light or speeding. Use of a mismatched license plate creates a strong (and reasonable) presumption that the vehicle, the license plate, or both are stolen. Approaching a potentially stolen car, it was entirely reasonable under the circumstances for Officers Jacks and Lucero to order the sole occupant out of the car while the Officers investigated.” United States v. Chong, 2015 U.S. Dist. LEXIS 117211 (C.D.Cal. September 2, 2015).
Defense counsel filed a motion to suppress the day before trial began, and the court said it would consider the suppression issue during trial. Then defendant pled unconditionally. The suppression and ineffective assistance issues are complex, and the district court should consider appointing counsel for a 2255. United States v. Castro-Vasquez, 2015 U.S. App. LEXIS 15857 (1st Cir. September 4, 2015).*
Posted inMotion to suppress, Reasonable suspicion|Comments Off on C.D.Cal.: A mismatched license plate to the vehicle is more indicative of crime than other traffic offenses
Defendant’s Rule 17 subpoena for personnel files to the city police involved in a stop and search on an Amtrak train was quashed. There was no showing that it would produce evidence of any value at this point in the case. Defendant said he was looking for cross-examination material. United States v. Estes, 2015 U.S. Dist. LEXIS 118519 (D.Nev. September 4, 2015).
A Border Patrol officer lived 2½ blocks from the border in Naco, Arizona, and he’d lived there all his life and knew everybody in town. He saw a vehicle in the alley behind his house that appeared to him was picking up two illegal aliens. He passed this on to other officers and that was sufficient for reasonable suspicion under collective knowledge. United States v. Sosa, 2015 U.S. Dist. LEXIS 118492 (D.Ariz. September 3, 2015).*
Posted inBurden of proof|Comments Off on D.Nev.: Rule 17 subpoena couldn’t be used for discovery for suppression hearing where nothing in particular was sought
“Yet, as illustrated above, the record does not contain sufficient information from which the Court can find that a suppression motion would have been meritless. As a result, the Court concludes that an evidentiary hearing is required on this claim. The Court will therefore appoint counsel to represent petitioner, will order that the United States Marshal to return petitioner to this district, and will schedule the necessary evidentiary hearing.” Ramirez v. United States, 2015 U.S. Dist. LEXIS 116519 (E.D.Tenn. September 1, 2015).
There was probable cause for issuance of the search warrant, and defendant’s Franks challenge fails. “The Court is persuaded by the Government that to the extent Agent Endy’s affidavit excluded information favorable to Defendant, it also excluded information at least as unfavorable to Defendant, so the affidavit cannot be said to be materially misleading.” In any event, the good faith exception applies. United States v. Sistrunk, 2015 U.S. Dist. LEXIS 115937 (M.D.Pa. August 28, 2015).*
There were statements made in support of the search warrant here that were in reckless disregard for the truth, but, omitting them, there was still probable cause for the search warrant. State v. Rozajewski, 2015 Ida. App. LEXIS 80 (September 3, 2015).*
Posted inFranks doctrine, Ineffective assistance|Comments Off on E.D.Tenn.: 2255 gets hearing on IAC claim; court can’t say that waived issue was meritless or strategic
It was not clearly established in 2009 that use of a Taser was unreasonable so the officers get qualified immunity. Here, it happened in jail when plaintiff refused to change into a jail uniform. Hollingsworth v. City of St. Ann, 2015 U.S. App. LEXIS 15676 (8th Cir. September 3, 2015)*: Continue reading →
The search warrant here authorized seizure of photographs that depicted defendant, but photos of others were seized, and they are suppressed for being outside the warrant. United States v. Williams, 2015 U.S. Dist. LEXIS 117274 (N.D.Cal. September 1, 2015).
Plainclothes officers approached defendant on the street, and he immediately got fidgety and pulled on his shirt revealing the butt of a gun. He was not seized when the plain view occurred. United States v. Scott\, 2015 U.S. App. LEXIS 15900 (5th Cir. September 4, 2015).*
Posted inScope of search, Seizure|Comments Off on N.D.Cal.: Warrant for seizure of pictures of def precluded seizure of pictures of others
Suppression of long term pole camera surveillance of defendant’s front door almost summarily denied. United States v. Gilliam, 2015 U.S. Dist. LEXIS 118511 (W.D.Pa. September 4, 2015): Continue reading →
Posted inPole cameras|Comments Off on W.D.Pa.: Long term pole camera surveillance of front of house valid
A call to the El Paso Intelligence Center about defendant who produced a Mexican passport was reasonably included in the length of the stop. Defendant was noticeably nervous, gave conflicting travel plans, and the license plate did not match the vehicle, and all this was reasonable suspicion. Defendant also consented to a search of the car in writing, the court noting the significance that he asked what the form meant about searching luggage. United States v. Diaz-Flores, 2015 U.S. Dist. LEXIS 118354 (D.Nev. August 25, 2015).
Impounding defendant’s vehicle was reasonable. Defendant stopped in a legal parking space, but it was metered, there was no evidence that defendant could pay the meter fee, and no one was with defendant to pay the fee or drive the car, so the car either had to be towed or left at the scene. Thus, the inventory search of the vehicle was valid. In addition, the warrantless search of the vehicle was constitutional because the officer, upon smelling marijuana, had probable cause to believe the vehicle contained drugs. State v. Jackson, 2015-Ohio-3607, 2015 Ohio App. LEXIS 3517 (2d Dist. September 4, 2015).*
Posted inInventory, Reasonable suspicion|Comments Off on D.Nev.: When a Mexican national was stopped, the time for a call to EPIC could be included in the reasonable length of stop
“[*P7] Following the issuance of the warrant, RENU agents conducted surveillance on the residence at 3021 Cavanaugh Avenue. According to Deputy Kane, RENU agents would generally wait to execute a search warrant until an occupant left the targeted residence, especially where a vehicle was named as an object of the warrant, so that agents could get a key to the residence. Using this procedure, RENU agents could avoid being mistaken for intruders and harmed by other occupants or dogs, and the agents could avoid destroying the door to the residence.” [How civilized compared to Arkansas where it’s search at night, create a serious risk of danger, and shoot first, if necessary.] In addition, the search warrant authorized search of vehicles registered to the defendant, but the car was driven off. Under the terms of the search warrant, the car could be searched away from the residence when it was driven off. State v. Griffin, 2015-Ohio-3566, 2015 Ohio App. LEXIS 3478 (1st Dist. September 2, 2015).
Defendant was an overnight guest, and he had standing to challenge the voluntariness of third-party consent. The trial court erred in finding no standing and not getting to consent, and the case is remanded for a finding on consent. State v. Beard, 2015-Ohio-3595, 2015 Ohio App. LEXIS 3494 (10th Dist. September 3, 2015).*
Posted inScope of search, Standing|Comments Off on OH1: A car listed on the search warrant could be searched away from the premises
A series of furtive gestures was reasonable suspicion and permitted defendant’s patdown. United States v. Pacheco, 2015 U.S. Dist. LEXIS 117786 (S.D.Ohio September 3, 2015)*: Continue reading →
Posted inStop and frisk|Comments Off on S.D.Ohio: A series of furtive gestures was reasonable suspicion and permitted defendant’s patdown
"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.
