Wisconsin adopts Heien on reasonable mistakes of law, overruling all past cases. Reasonable suspicion is all that’s needed for a traffic stop, not probable cause. State v. Houghton, 2015 WI 79, 2015 Wisc. LEXIS 484 (July 14, 2015).
Fleeing into bushes when an officer ID’d himself and then returning 20 seconds later was reasonable suspicion. The gun found there was abandoned. People v. Heath, 2015 V.I. LEXIS 78 (July 10, 2015).*
In a § 1983 Fourth Amendment case, plaintiff’s opening brief didn’t allege what right was clearly established and didn’t cite a case in support, and that’s waiver of the appellate argument. “Certainly, a plausible argument can be made that the officer’s conduct in the present case crossed that constitutional line. That, however, is not good enough to pierce the officer’s claim of qualified immunity. Under Saucier and Pearson and their progeny, the piercing requires a violation of a constitutional right clearly established at the time of the incident. Not only has Mrs. Fox not established that her right not to be seized in the circumstances of this case was “clearly established,” she did not even argue this matter in her opening brief.” Fox v. Gov’t of the Dist. of Columbia, 2015 U.S. App. LEXIS 12345 (July 17, 2015).*
Defendant lost his phone at the scene of a burglary. Police came to his house to talk to him, and the evidence supports the conclusion that his sister invited them in by her gestures, and she had apparent authority. Thompson v. State, 2015 Fla. App. LEXIS 10691 (Fla. 2DCA July 15, 2015).
Defendants got off a freeway seeing a ruse drug checkpoint sign. A traffic citation was also going to be in order, and reasonable suspicion developed during the basic questioning. United States v. Rodolfo, 2015 U.S. Dist. LEXIS 92241 (D.Kan. July 16, 2015).*
The government failed to prove reasonable suspicion existed to extend this stop, and it is suppressed. Even if the stop remained lawful, consent was invalid. Suppression granted. United States v. Hight, 2015 U.S. Dist. LEXIS 92555 (D.Colo. June 29, 2015).*
Defendant was stopped for riding an unlighted bicycle across the street at night in the middle of the block. Once stopped, the officer questioned him about his backpack and secured an admission he was armed. The questioning was unreasonable and extended the stop. There was no reasonable suspicion that he was armed or had drugs and the officer didn’t pursue the traffic offense. United States v. Archuleta, 2015 U.S. App. LEXIS 12274 (10th Cir. July 16, 2015).
Officers patrolling a high crime area made a traffic stop, and defendant’s furtive movements coupled with an apparent gun visible in plain view justified a search. United States v. Bess, 2015 U.S. Dist. LEXIS 91909 (E.D.Mo. June 11, 2015).*
Defendant’s statement is suppressed. His son was ill and hospitalized, and they were questioning him in an interrogation room with his phone laying in front of him constantly going off because of family members trying to reach him. They played him on the condition of his son and he’d get teary-eyed talking about him. It was clear that the only way he was going to get to leave was to answer questions. United States v. Ramirez, 2015 U.S. Dist. LEXIS 92250 (D.N.J. July 15, 2015).*
Posted inReasonable suspicion|Comments Off on CA10: Stop for riding a bicycle without light unreasonably extended; search of backpack suppressed
In a DUI accident, the officer had probable cause to search defendant’s vehicle for evidence of the impairment under the automobile exception. Commonwealth v. Best, 2015 PA Super 151, 2015 Pa. Super. LEXIS 409 (July 16, 2015).*
The officer’s participation in a search found unreasonable in plaintniff’s criminal case (United States v. Booker, 728 F.3d 535, 536 (6th Cir. 2013)) needed to be developed on remand. Booker v. LaPaglia, 2015 U.S. App. LEXIS 12137 (6th Cir. July 10, 2015).*
The use of a grand jury subpoena to get ISP records was permission and not a violation of due process. State v. Bragdon, 2015 ME 87, 2015 Me. LEXIS 96 (July 16, 2015).*
Taking DNA from this defendant on a misdemeanor arrest was not a Fourth Amendment violation under King. It did violate state law, but the court doesn’t suppress. It matched DNA in a rape case and led to him being charged. People v. Lancaster, 2015 COA 93, 2015 Colo. App. LEXIS 1052 (July 16, 2015): Continue reading →
Posted inDNA, Exclusionary rule|Comments Off on CO: DNA taken in violation of statute not suppressed
A federal judge on Thursday ruled that the way the United States implemented its no-fly list was unconstitutional years ago when it was used to detain a Northern Virginia teenager in Kuwait, and the judge invited the young man to test whether the list’s new procedures violate his rights.
Posted inAirport searches|Comments Off on WaPo: Judge: No-fly list procedures were — and still might be — unconstitutional
Defendant’s IAC claim on his search isn’t proper for direct appeal, and it should proceed in a 2255. “However, counsel may have had strategic reasons not to file a suppression motion to avoid having Birrueta testify. For example, testifying at the suppression hearing may have impacted his ability to disassociate himself from the drugs in the shed at trial–a defense that he in fact presented. See United States v. Beltran-Gutierrez, 19 F.3d 1287, 1289-90 (9th Cir. 1994). The record is silent as to counsel’s reasoning in opting not to file the motion, so this issue is a more appropriate subject for collateral review, where the record could be further developed.” United States v. Birrueta, 2015 U.S. App. LEXIS 12202 (9th Cir. July 15, 2015). [This is dicta, but it’s essentially asking the accused: You really want to go there?]
Defense counsel did not file a motion to suppress, but he did object at trial to admission of the evidence. Still, defendant can’t show IAC because he can’t show that the motion would have been granted. Ray v. State, 2015 Tex. App. LEXIS 7330 (Tex.App.–Houston (14th July 16, 2015).*
Posted inIneffective assistance, Standing|Comments Off on CA9: Not questioning search likely sound strategy where defense at trial was disassociation from the drugs and the place they were found
Defendant had no reasonable expectation of privacy in his third party information with his internet service provider, so the validity of the administrative subpoena isn’t an issue under circuit precedent. The fact that state law was used by state investigators isn’t even an issue in federal court. United States v. Martinka, 2015 U.S. Dist. LEXIS 91175 (D.Minn. June 4, 2015).*
Defendant was an Ohio parolee, and officers received information that guns were going into and out of his place. They came to search, and defendant granted consent. They didn’t say why they were there, but this was not a misrepresentation that nullified consent. Also, the fact defendant was handcuffed and frisked before consent did not make it involuntary. United States v. Lee, 2015 U.S. App. LEXIS 12151 (6th Cir. July 15, 2015).*
Defense counsel filed a motion to suppress DNA on a bank robber’s mask, but he didn’t raise all the arguments defendant does in his 2255, one of which was a Franks challenge to the affidavit for search warrant. None of this qualifies as newly discovered evidence sufficient to overcome procedural default. Hindman v. United States, 2015 U.S. Dist. LEXIS 91816 (N.D.Ala. July 15, 2015).*
The court credits the officer’s testimony about the purpose of the search of defendant’s car to be inventory. He made notes of the items found but not all made it into official reports. The court credits this was an innocent mistake and did not show pretext for an investigative search. United States v. Zelinger, 2015 U.S. Dist. LEXIS 90968 (S.D.Tex. July 14, 2015).
Defendant standing in his open garage did not have a reasonable expectation of privacy from arrest in what amounts to a public place. United States v. Juarez-Hernandez, 2015 U.S. Dist. LEXIS 90869 (N.D.Iowa July 14, 2015).*
After the traffic ticket was done, the officer had reasonable suspicion to continue the stop. “… Barry, who had an out of state license, was not able to identify to whom the car he was driving belonged; his only response to Officer Williams’ inquiry was that Fadiga knew. When asked, Fadiga stated that the car belonged to a ‘friend,’ but when he procured a rental agreement, it indicated that neither he nor Barry were authorized to drive the vehicle.” And there were other things. United States v. Fadiga, 2015 U.S. Dist. LEXIS 91006 (N.D.Ind. July 14, 2015).*
Plaintiffs alleged but failed to show, inter alia, that a “smart meter” violated their privacy or Fourth Amendment rights. Detroit Edison Co. v. Stenman, 2015 Mich. App. LEXIS 1384 (July 14, 2015): Continue reading →
Posted inReasonable expectation of privacy|Comments Off on MI: Plaintiffs failed to show that a “smart meter” violated their privacy or Fourth Amendment rights
The search warrant had a mistaken address. It authorized the search of the plaintiff’s building but listed it as 11195 when it was actually 11193. The wrong building was not searched. Plaintiff did not state a claim for trespass by the officers. The Assessor [likely off their website] provided the address, but the building was marked different. Qenkor Constr. v. Everett, 2015 Ga. App. LEXIS 468 (July 15, 2015): Continue reading →
Posted inParticularity|Comments Off on GA: Mistake in address not prejudicial where right place was searched; police used address listed with Assessor
Defendant raised a search incident claim about his arrest: “(1) the toiletry bag was not “immediately associated” with his person, and because (2) the search of the bag was not sufficiently contemporaneous with his arrest.” On appeal, however, he raised it differently: “He argues that the search was illegal under the United States Supreme Court’s decision in Arizona v. Gant because he no longer had physical access to the toiletry bag at the time it was searched, and because the police had no reason to believe that the bag contained evidence of his crimes.” That’s changing the argument presented to the trial court. State v. Le, 2015 Alas. App. LEXIS 110 (July 15, 2015).
Defendant’s nervousness did not justify extending his stop for a FST. After he passed, he was free to leave, and then the request for consent was attenuated from the original extended stop. State v. Hogan, 2015 WI 76, 2015 Wisc. LEXIS 348 (July 10, 2015).*
Defendant’s 2255 attack on the alleged IAC for his counsel not challenging his stop was waived by his guilty plea affirming that there was a basis for the stop. Jones v. United States, 2015 U.S. Dist. LEXIS 91757 (W.D.Tex. July 15, 2015).*
Oregon Constitution does not permit an officer to inquire of a jaywalking suspect whether he is armed without some reasonable suspicion. State v. Jimenez, 357 Ore. 417, 2015 Ore. LEXIS 441 (July 9, 2015): Continue reading →
Whether the CI was reliable was essentially moot based on a trash pull that showed all kinds of marijuana cuttings. State v. Altman, 2015 Tenn. Crim. App. LEXIS 556 (July 13, 2015).* [Usually, the courts say that the CI was corroborated by the trash pull.]
Defendant’s Fourth Amendment challenge fails because, even if the search was illegal, something not decided, the independent source, attenuation, and independent source doctrines all apply. State v. Oliveira-Coutinho, 291 Neb. 294, 2015 Neb. LEXIS 129 (July 10, 2015).*
The officer had no obligation to tell a motorist that he was free to leave after giving a warning ticket (Robinette), and further questions to him were reasonable, and defendant consented. United States v. Lara, 2015 U.S. Dist. LEXIS 89734 (M.D.La. July 10, 2015).*
A patdown that felt a hypodermic needle was valid because a needle could be used as a weapon. United States v. Rush, 2015 U.S. Dist. LEXIS 90250 (D.Minn. July 13, 2015).
Defendant was stopped for suspicion of DUI on federal lands. His implied consent wasn’t invalid just because the federal courts can’t impose some state driving restrictions. United States v. Slagle, 2015 U.S. Dist. LEXIS 90269 (D.Md. July 13, 2015).*
And, 36 CFR § 4.23 on federal implied consent is not unconstitutional under McNeely. United States v. Jones, 2015 U.S. Dist. LEXIS 90165 (D.Md. June 25, 2015).*
As the Supreme Court recently reminded us, “the Constitution promises liberty to all within its reach”—including strip clubs, which, like most private property, are protected by the Constitution from “unreasonable searches.” Earlier this month a federal judge allowed a lawsuit against the San Diego police to move forward after several officers searched a club, Cheetahs, for several hours on two occasions without a warrant. (Cheetahs calls this a “raid.”) The police department had asked the judge to toss out the lawsuit, but he refused, ruling that Cheetahs had plausibly argued that officers violated the Fourth and 14th amendments by extensively searching the club—including, allegedly, the dressing rooms and private offices—with no prior judicial approval. (The Fourth Amendment bars unreasonable searches; the 14th applies that rule to the states.)
Posted inAdministrative search|Comments Off on Slate: Judge Allows Strip Club’s Constitutional Case Against Police Raids to Move Forward
Although we pretend otherwise, much of what we do in the law is guesswork. For example, we like to boast that our criminal justice system is heavily tilted in favor of criminal defendants because we’d rather that ten guilty men go free than an innocent man be convicted. There is reason to doubt it, because very few criminal defendants actually go free after trial. Does this mean that many guilty men are never charged because the prosecution is daunted by its heavy burden of proof? Or is it because jurors almost always start with a strong presumption that someone wouldn’t be charged with a crime unless the police and the prosecutor were firmly convinced of his guilt? We tell ourselves and the public that it’s the former and not the latter, but we have no way of knowing. They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape. …
"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.
