The state conceded that defense counsel’s failure to file a motion to suppress satisfied the performance prong of Strickland. At issue, however, was the prejudice prong, and that failure did not amount to prejudice because the evidence would have been inevitably discovered anyway. Therefore, 2254 denied. Hogan v. Kelley, 2015 U.S. Dist. LEXIS 100392 (E.D.Ark. July 31, 2015).*
The detention and search here was before Rodriguez, and the court bases the continued detention on the same analysis without relying on it. “Whether Trooper Villines had reasonable suspicion based on these factors is a close question.” The first two factors are nothing of any consequence and the third has some support in the case law, so the court finds reasonable suspicion. [Quite wrongly, I think.] United States v. Moore, 2015 U.S. App. LEXIS 13320 (10th Cir. July 30, 2015).*
Defendant was stopped for speeding, admitted he had marijuana in the car, and that led to a drug dog and his arrest. The stop for speeding was objectively reasonable. People v. Talbert, 2015 V.I. LEXIS 87 (Super.Ct. July 22, 2015).*
Posted inIneffective assistance, Reasonable suspicion|Comments Off on E.D.Ark.: Inevitable discovery applies; def counsel overlooked suppression motion, but it wouldn’t have won
Do we want somebody firing a gun from a drone in Chicago or elsewhere in Illinois, which is precisely what happened recently in Connecticut? That’s just one of the many alarming concerns about drones as they increasingly take to our skies, far outpacing attempts to sensibly regulate them.
Posted inDrones|Comments Off on Chicago Sun Times: Editorial: Laws need to catch up with drone technology
A DUI arrest provides probable cause that evidence of intoxication will be found in the vehicle, so a search incident to arrest is justified. Taylor v. State, 2015 Md. App. LEXIS 102 (July 30, 2015).
Officers executing a search warrant found a locked door inside with a “no trespassing” sign. Like the officers in Maryland v. Garrison, they had no reason to believe when they obtained the warrant that the interior might have separate apartments. Nothing at the suppression hearing revealed that the officers had reason even when seeing the door to believe it was a separate apartment, and the motion to suppress was properly denied. State v. Boyles, 2015 UT App 185, 2015 Utah App. LEXIS 194 (July 30, 2015),
Daily breath testing of persons as a condition of pretrial release for DUI offenses was not per se an unreasonable search. Balanced with the state’s interest in preventing DUIs, it was reasonable. State v. Spady, 2015 MT 218, 2015 Mont. LEXIS 396 (July 30, 2015): Continue reading →
Posted inDrug or alcohol testing|Comments Off on MT: Daily breath testing of persons as a condition of pretrial release for DUI offenses was not per se an unreasonable search
Even GPS tracking is not the end all be all of criminal investigation. GPS was shown to be an inadequate technique to tie together a conspiracy in needing a wiretap. United States v. Eccleston, 2015 U.S. App. LEXIS 13376 (4th Cir. July 31, 2015):
In exhaustive fashion, [the government] set forth the techniques that had been used up to that point. Those techniques included confidential informants, undercover agents, surveillance, trash searches, interviews, search warrants, telephone records, reverse buys, GPS trackers, and financial and public records. The affiants then explained that despite the information they had been able to gain from these traditional sources, they believed that those sources, standing alone, were insufficient to achieve the goals of the investigation and prove the extent of the conspiracy. For example, they explained that confidential informants were unable to identify the higher-ups of the conspiracy. The traditional sources also failed to uncover the conspiracy’s cocaine source and the extent to which the coconspirators distributed it for resale.
Posted inGPS / Tracking Data|Comments Off on CA4: Even GPS failed to prove a conspiracy, thereby requiring a wiretap
Defense counsel filed a colorable motion to suppress that here apparently improved defendant’s plea bargaining position. Thus it was reasonable to waive the motion for the plea, and there was no ineffective assistance. Walker v. United States, 2015 U.S. Dist. LEXIS 100069 (D.Md. July 29, 2015): Continue reading →
Posted inIneffective assistance|Comments Off on D.Md.: Strategic basis for waiving motion to suppress: it improved plea bargain
The government’s warrantless collection of cell site location data in mid-2014 was not clearly contrary to any established law, so the government’s actions were in good faith. The court also follows the fact they were third-party records. United States v. Pembrook, 2015 U.S. Dist. LEXIS 99959 (E.D.Mich. July 31, 2015).
Smell of alcohol and marijuana coming from defendant’s vehicle justified the search. Harris v. State, 2015 Tex. App. LEXIS 8046 (Tex.App.–Texarkana July 31, 2015).*
A BOLO was put out on defendant’s car as being involved in a theft. At the time of the stop, the officers had reason to believe that the car was an instrumentality of the crime and subject to search under the automobile exception. United States v. Kennedy, 2015 U.S. Dist. LEXIS 99669 (D.Mass. July 30, 2015).*
Body camera video shows defendant’s alleged consent at his door was involuntary, and the USMJ’s R&R is rejected. United States v. Rodriguez, 2015 U.S. Dist. LEXIS 98292 (D.Neb. July 28, 2015): Continue reading →
Posted inBody cameras, Consent|Comments Off on D.Neb.: Body camera video shows defendant’s alleged consent at his door was involuntary
It’s been nearly a year since a police officer shot and killed Michael Brown, an unarmed African-American 18-year-old, in Ferguson, Mo. Since then, more deadly police encounters across the country have prompted anger, activism and reform. Many of those incidents began with traffic stops — routine events that quickly turned deadly. And attorney Eric Broyles says that the risks for citizens are not distributed evenly.
Posted inUncategorized|Comments Off on NPR: A Lawyer’s Advice For Black Men At Traffic Stops: ‘Comply Now, Contest Later’
When police officers shoot people under questionable circumstances, William J. Lewinski often appears as an expert witness who says they had no choice but to fire.
Posted inExcessive force|Comments Off on NYTimes: Training Officers to Shoot First, and He Will Answer Questions Later
The side wall of a house where the gas meter was was still curtilage. Just because the gas company is invited there doesn’t mean the police are. United States v. Conerd, 2015 U.S. Dist. LEXIS 98629 (N.D.Iowa July 28, 2015):
Moreover, the court finds that the government’s argument concerning the utility meter unconvincing. Even if the meter conveyed an implied license to enter the side-yard,”[t]he scope of a license … is limited not only to a particular area but also to a specific purpose.” Jardines, 133 S.Ct. at 1416. The meter provided license for a utility worker to enter the side-yard and read the meter during business hours, not for a police officer to enter the side-yard and peer through Defendant’s basement window in the middle of the night. For these reasons, the court shall overrule the Government Objection.
Posted inCurtilage|Comments Off on N.D.Iowa: Gas meter on side wall doesn’t mean side isn’t curtilage as to the police; look in window suppressed
On defendant’s arrest for driving on a suspended DL, the officer decided to tow the vehicle and conducted an inventory on the street that started with the area around which he would “lunge, reach, or grasp.” On finding cocaine, the search stopped. Four days later, a search warrant was used to search the car. The state failed to prove a proper inventory. The trial court shifted the burden to defendant to show the search was illegal. Rogers v. State, 2015 Alas. App. LEXIS 128 (July 31, 2015): Continue reading →
Posted inBurden of proof, Inventory|Comments Off on AK: Inventory void when conducted as pretext for search incident of driving on suspended DL
Defendant had no reasonable expectation of privacy in his jail calls because he knew that they were recorded. The calls at issue were to “to coerce the victim not to testify” showing consciousness of guilt. People v. Degreat, 2015 COA 101, 2015 Colo. App. LEXIS 1143 (July 30, 2015).
2255 petitioner’s conclusory illegal search claim was waived by his guilty plea. Alexander v. United States, 2015 U.S. Dist. LEXIS 98919 (N.D.Tex. June 10, 2015), adopted 2015 U.S. Dist. LEXIS 98031 (N.D. Tex. July 28, 2015).*
Crediting the police officers’ testimony, there was reasonable suspicion for defendant’s encounter at a drug drop point. United States v. Burgos-Castro, 2014 U.S. Dist. LEXIS 184423 (D.P.R. December 10, 2014), adopted 2015 U.S. Dist. LEXIS 98463 (D.P.R. July 24, 2015).*
Posted inUncategorized|Comments Off on CO: No REP in a jail call, particularly where there is a recorded warning on the call
NCIC showed a warrant was outstanding, and defendant told the officer it was quashed. Yet, it still was in the system. The officer checked various databases from his car computer, and he found nothing that showed that the warrant wasn’t still active. He made a call that produced the same information, but it proved wrong: The warrant had been quashed. Nevertheless, the officer’s reliance was objectively reasonable, and Herring controls. The motion to suppress was properly denied. United States v. Brown, 2015 U.S. App. LEXIS 13294 (4th Cir. July 30, 2015): Continue reading →
Posted inGood faith exception|Comments Off on CA4: Objectively reasonable reliance on NCIC readout supported arrest on an outdated warrant still in system; NCIC’s errors ignored
This case was a domestic shooting in rural Alaska. Tribal officers were called, and they called for the State Troopers who were far better trained in crime scene preservation and homicide investigation. Their later entry was still under the emergency aid exception even though it was hours later. The state supreme court upheld such entries 8 hours later because of the long distances to travel. Modern technology doesn’t undermine those decisions, even though a fax or telephone warrant could have been procured. The court also rejects that the Mincey crime scene warrant requirement applied where the emergency aid exception still applied. George v. State, 2015 Alas. App. LEXIS 118 (July 29, 2015).
Defendant was an apparent witness to a homicide, and the officer was questioning him. He became aggressive, however, and he had blood on his shirt and abrasions on his knuckles. Handcuffing was thus with reasonable suspicion, but it was not really a detention; it was for protection of the officer. His statements were not custodial, and they were exculpatory. Maxwell v. State, 2015 Fla. App. LEXIS 11338 (Fla. 3d DCA July 29, 2015).*
Posted inEmergency / exigency, Seizure|Comments Off on AK: Emergency exception applied to state trooper’s entry several hours after being called because of the remoteness of the location
This story out of Huntsville, Ala., reads like a checklist of police brutality cases.
Excessive force? Check. …
Coverup by fellow officers? Check. …
Fears of retaliation for violating the blue code of silence? Check. …
Falsified police reports that are contradicted by video and other evidence? Check. …
Abusive cop who was allowed to return to the force? Check. …
Prosecution by federal officials only after local officials let the officer off? Check.
Officer still collecting paychecks while on trial for federal civil rights violations? And … check.
Posted inExcessive force, Police misconduct|Comments Off on WaPo: Radley Balko’s ‘The Watch’ Blog: Alabama case fills out the police brutality bingo card
Defendant’s oral motion to suppress the contents of his cell phone the morning of trial was neither timely nor specific as to what was to be suppressed, so it’s treated as waived. Sinclair v. State, 2015 Md. LEXIS 496 (July 27, 2015): Continue reading →
Posted inCell phones, Motion to suppress|Comments Off on MD: Oral motion to suppress cell phone was waived: neither timely nor specific
The evidence showed the inventory search was pretextual by the officer’s admissions at the suppression hearing. The rest of what happened was instructive, but it didn’t show pretext per se. Cantrell v. Commonwealth, 2015 Va. App. LEXIS 228 (July 28, 2015): Continue reading →
Posted inInventory, Pretext|Comments Off on VA: Officer’s admissions showed inventory was pretext; CA8: inventory not pretext
"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.
