Just because something is exculpatory, it isn’t a Franks violation to fail to include it in the affidavit for search warrant. Even exculpatory information doesn’t always undermine probable cause. United States v. Awtrey, 2015 U.S. Dist. LEXIS 103284 (W.D.N.C. July 20, 2015):
It is important to consider the policy behind a defendant’s higher burden of proof for omission in a search warrant affidavit. Though an omission in a search warrant affidavit is not immune from inquiry, a “failure to include a matter that might be construed as exculpatory … potentially opens officers to endless conjecture about investigative leads, fragments of information or other matter that might, if included have redounded to defendant’s benefit.” Colkley, 899 F.2d at 297. Agents cannot be expected to include all facts in a search warrant affidavit. If this were the case, then almost all defendants would seek a Franks hearing.
Posted inFranks doctrine|Comments Off on W.D.N.C.: Just because something is exculpatory, it isn’t a Franks violation to fail to include it in the affidavit
Defendant was stopped because he was apparently driving in tandem with another vehicle carrying drugs that was stopped, and he ran a red light. Because it was a drug case and defendant was operating countersurveillance, a frisk for weapons was proper because of the association of drugs and weapons. United States v. Consospo-Perez, 2015 U.S. Dist. LEXIS 103778 (D.Neb. July 23, 2015).
Defendant’s stop was justified for speeding and no license plate. United States v. Tuyakbayev, 2015 U.S. Dist. LEXIS 103407 (N.D. Cal. August 6, 2015).*
Posted inReasonable suspicion, Stop and frisk|Comments Off on D.Neb.: Driving in tandem with a load of drugs justified frisk of occupants because of potential for weapons
The impoundment and inventory in this case were not shown to follow standardized criteria or policy. The vehicle was on a parking lot and not impeding traffic or any kind of risk to safety. No legitimate community caretaking purpose was shown. United States v. Sanders, 2015 U.S. App. LEXIS 13867 (10th Cir. August 7, 2015): Continue reading →
Posted inInventory|Comments Off on CA10: Inventory not shown to be justified by standardized criteria and suppressed
The government’s civil case against the Alamance County, N.C. sheriff fails to sufficiently show racial discrimination against Hispanics to justify relief. The court wasn’t kind to the Sheriff because of the use of ethnic slurs by jail deputies, but there was “no evidence” of any deprivation of rights, and the sheriff can apply for attorney’s fees. (The opinion is nearly 250 pages long.) United States v. Johnson, 2015 U.S. Dist. LEXIS 103564 (M.D.N.C. August 7, 2015)*: Continue reading →
Posted inRacial profiling|Comments Off on M.D.N.C.: Gov’t fails to show sheriff’s office discriminated against Hispanics in law enforcement
“Assuming the position” when a frisk is requested by an officer is a consent to a frisk. Hawkins v. Commonwealth, 2015 Va. App. LEXIS 237 (August 4, 2015).
Defendant was observed doing a hand to hand transaction on a New Orleans street corner, and the police followed as he left. He knew he was being followed, and he went onto a porch and dropped a paper bag. The bag was properly seized as abandoned, and the police could follow him to the porch because they had reasonable suspicion. Also, it wasn’t apparent that it was his porch. State v. Summers, 2015 La. LEXIS 1617 (July 29, 2015) (per curiam).*
The juvenile in this case was searched on school property for possession of marijuana. He was found with others in an isolated area where students often congregated in the morning to smoke marijuana. Normally, nobody would be there. People ex rel. T.S., 2015 V.I. LEXIS 90 (Super.Ct. July 22, 2015).*
Posted inAbandonment, Consent, School searches|Comments Off on VA: “Assuming the position” when a frisk is requested by an officer is a consent to a frisk
Riley does not apply retroactively on post-conviction. Defendant pled guilty without raising a cell phone search question, and text message pictures showed him having sex with a minor who was in his car when it was stopped. Stringer v. United States, 2015 U.S. Dist. LEXIS 103050 (W.D.Mo. August 6, 2015).
The first officer to encounter plaintiff had qualified immunity based on reasonable suspicion for the detention and the second officer had probable cause. D.Z. v. Buell, 2015 U.S. App. LEXIS 13769 (7th Cir. August 6, 2015).*
Posted inCell phones, Qualified immunity|Comments Off on W.D.Mo.: Riley doesn’t apply retroactively on post-conviction review
The state constitution will not be followed over the Fourth Amendment unless defendant makes an explicit argument why the state rule should be different. Just citing it isn’t enough. State v. Myers, 2015 Iowa App. LEXIS 695 (August 5, 2015): Continue reading →
Posted inState constitution|Comments Off on IA: Merely citing state const doesn’t mean it will be applied; argument required
The government’s protocol for searching defendant’s emails satisfied the particularity requirement. All the emails were produced, but the government searched within them only for emails relating to copyright infringement, the crime under investigation. Other cases are in accord. United States v. Lee, 2015 U.S. Dist. LEXIS 102473 (N.D.Ga. July 6, 2015): Continue reading →
Posted inE-mail, Overbreadth, Particularity|Comments Off on N.D.Ga.: Govt’s email search protocol satisfied particularity despite large initial seizure
The entry into defendant’s house was not supported by exigency. The police interviewed the participants in a domestic dispute outside, and there was no reason at all to believe that there was someone in the house in need of aid. The government’s other grounds for justification of the entry weren’t raised below. The affirmance on any other ground rule doesn’t apply here. “We conclude that considerations of procedural fairness preclude affirmance based on the United States’s forbidden-fruit argument.” Evans v. United States, 2015 D.C. App. LEXIS 363 (August 6, 2015).
The CI doesn’t have to be shown to be reliable if there are other facts that support probable cause. United States v. Martin, 2015 U.S. Dist. LEXIS 103765 (N.D.Ga. June 29, 2015).
Defendant who lived with his grandparents had “mental health issues” and expressed “anti-government sentiment.” They called the police because he was making M-80’s in the basement, and M-80s were classified as explosive devices. They police and ATF came warrantless to do a knock-and-talk and invited him outside. He wouldn’t consent to a search without a warrant, so they asked his grandmother. She had common authority over the basement. It wasn’t like they wanted to search his bedroom. The government’s claim of exigency is unnecessary and criticized for lack of effort to get a search warrant; it would only take about an hour. United States v. Witzlib, 2015 U.S. App. LEXIS 13811 (7th Cir. August 7, 2015): Continue reading →
Police lacked exigency for an entry into defendant’s home. They were called and didn’t go right away, and the best that could be said for the government’s position was that the occupants possessed marijuana, which the court distinguishes from the more serious offense of manufacturing marijuana which there was no evidence of. United States v. Race, 2015 U.S. Dist. LEXIS 103150 (W.D.N.Y. August 5, 2015), R&R 2015 U.S. Dist. LEXIS 17209 (W.D.N.Y. Feb. 11, 2015): Continue reading →
Posted inEmergency / exigency|Comments Off on W.D.N.Y.: Mere possession of a small amount of marijuana is not a serious offense to justify an exigent circumstances entry
The previous night there was a shootout in East St. Louis in defendant’s neighborhood, some shots a block from defendant. Two people ended up in the hospital, neither associated with defendant’s address. In investigating at defendant’s house 2½ hours later, police found shell casings and bullet holes in defendant’s house and car and blood outside the door. A blood trail went up the back steps of defendant’s house, and that made it reasonable to conclude that there could be a victim there. Therefore, the entry was valid. Observations from that entry made it into a search warrant. United States v. Paulette, 2015 U.S. Dist. LEXIS 101167 (S.D.Ill. August 3, 2015).
There was plenty of information from other officers to show probable cause under the collective knowledge rule. United States v. Gonzalez, 2015 U.S. Dist. LEXIS 102321 (D.N.M. July 27, 2015).*
The exit order to defendant to get out of the car was based on what can only be described as a furtive movement, and it was reasonable. Commonwealth v. Demirtshyan, 2015 Mass. App. LEXIS 94 (August 5, 2015).*
Recent filings in an attorney fee request in the U.S. Court of Appeals for the Ninth Circuit lift the veil on the four-figure hourly rates charged by top advocates before the U.S. Supreme Court. Thomas Goldstein of Washington’s Goldstein & Russell is seeking nearly $306,000 in fees for winning a key Fourth Amendment case. The amount is based in part on Goldstein’s $1,100 hourly fee, plus $750 for partner Kevin Russell and $600 for partner Tejinder Singh.
Posted inSCOTUS|Comments Off on NLJ: What’s a SCOTUS Fourth Amendment advocate worth?
“Even if Sharp did feel that he had no choice but to consent, under the totality of the circumstances it is clear that he knowingly and voluntarily consented to the search of his laptop and online accounts, and that his consent was therefore ‘the product of an essentially free and unconstrained choice.’ Garcia, 890 F.2d at 360. During their time in the apartment, the agents explicitly told Sharp that whether or not he talked to them was ‘voluntary,’ and never said that he had to stay.” United States v. Sharp, 2015 U.S. Dist. LEXIS 101342 (N.D.Ga. August 4, 2015), R&R 2015 U.S. Dist. LEXIS 102406 (N.D. Ga. June 12, 2015).
There was probable cause for defendant’s arrest for bank robbery. Although there was no clear picture of his face, his clothing matched the robber, and he was seen running away from the robbery, and he was found hiding in a storage building behind a house where the owner didn’t know him. United States v. Bell, 2015 U.S. Dist. LEXIS 102593 (D.Nev. August 5, 2015).*
Posted inConsent, Probable cause|Comments Off on N.D.Ga.: Just because one feels he has no choice but to consent, that doesn’t mean it’s involuntary
A cooperator ended up taking evidence from defendant’s house without police direction. It was a private search not governed by the Fourth Amendment. “‘A private person cannot act unilaterally as an agent or instrument of the state; there must be some degree of governmental knowledge and acquiescence,’ United States v. Bennett, 709 F.2d 803, 805 (2d Cir. 1983) (quoting United States v. Sherwin, 539 F.2d 1, 6 (9th Cir. 1976) (en banc)), in the actions that violate the Fourth Amendment.” Explicit directions are not required to the cooperator. United States v. Cacace, 2015 U.S. App. LEXIS 13641 (2d Cir. August 5, 2015).
Whether a state officer had authority to make a traffic stop where the stop occurred is irrelevant under the Fourth Amendment and Virginia v. Moore. Trash bags in an open field were properly seized. United States v. Castleman, 2015 U.S. App. LEXIS 13636 (8th Cir. August 5, 2015).
Posted inPrivate search, Reasonableness|Comments Off on CA2: Cooperator exceeded officer’s direction in conducting a private search, but it’s still reasonable
“The Fourth Amendment was what we fought the Revolution over. John Adams said it was the spark that led to our war for independence.”
— Rand Paul on Thursday, August 6th, 2015 in a Republican presidential debate in Cleveland
Posted inSurveillance technology|Comments Off on techdirt: Despite Recent Court Rulings, Getting Behind The Wheel Is Pretty Much Kissing Your 4th Amendment Protections Goodbye
We trust video footage to offer an irrefutable account. But as more police departments around the country begin using cameras to document police work and start outfitting officers with body cams, it’s worth asking how easy it is to alter the footage.
Posted inBody cameras|Comments Off on HuffPo: It’s Almost Impossible To Tell If Police Camera Footage Has Been Edited
“[T]he trooper was required to provide defendant with the opportunity to present his credentials before entering the vehicle. If such an opportunity is presented, and defendant is unable or unwilling to produce his registration or insurance information, only then may an officer conduct a search for those credentials. Because defendant was never provided with such an opportunity, we find that the trooper did not lawfully seize the contraband under the plain view doctrine. We also find that the community-caretaker doctrine is inapplicable because there was no need for an immediate warrantless search to preserve life or property.” State v. Keaton, 2015 N.J. LEXIS 816 (August 3, 2015)
Posted inCommunity caretaking function|Comments Off on NJ: When an officer asks for a DL and registration, he can only go looking for it if the owner refuses or can’t
"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.
