Defendant’s innocent explanations for being in the parking lot in a high crime area don’t undermine the officer’s reasonable suspicion developed at the time. State v. Starr, 2015-Ohio-2193, 2015 Ohio App. LEXIS 2113 (9th Dist. June 8, 2015).*
The probation search condition here required probable cause, and it was lacking, so the motion to suppress is granted. The state does not need probable cause, but that was in the conditions that defendant consented to. State v. Vanderkolk, 2015 Ind. LEXIS 507 (June 9, 2015).*
Defendant had no standing to contest the search of the parking lot he was found in where a gun was located. People v. Ested, 2015 NY Slip Op 04861, 2015 N.Y. App. Div. LEXIS 4770 (2d Dept. June 10, 2015).*
When defendant was taken into “protective custody” under state law as drug impaired, his backpack couldn’t be searched incident to arrest because it’s not an arrest. However, he ended up at the jail, and an inventory at the jail was proper, so the search is valid by inevitable discovery. White v. State, 2015 Fla. App. LEXIS 8765 (Fla. 2d DCA June 10, 2015): Continue reading →
In an ongoing drug conspiracy with money laundering, a broader time period is permitted in the business records to be seized by a warrant. “Business records, as a class, are repositories of historical facts and, therefore, are largely immune from claims of staleness.” United States v. Sliwa, 2015 U.S. Dist. LEXIS 75131 (D.Mass. June 10, 2015): Continue reading →
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techdirt: Because The 4th Amendment Only Kicks In After The Fact, ‘Reasonable Suspicion’ Will Always Be Anything But by Tim Cushing:
A few weeks ago, we wrote about a young man who had $16,000 “forfeited” to DEA agents while riding an Amtrak train — under the legal theory that the money was somehow involved in drug trafficking. (Not the guy carrying it. He was released without being charged — just his money.) Maybe if the man had been more careful not to appear “suspicious,” he and his money might have made it to California intact.
But how can you not look “suspicious” while riding Amtrak?
Posted inReasonable suspicion|Comments Off on techdirt: Because The 4th Amendment Only Kicks In After The Fact, ‘Reasonable Suspicion’ Will Always Be Anything But
Following cases from other circuits, since this circuit hasn’t ruled, the borrower of a car has standing to challenge its search. The traffic stop was justified, and reasonable suspicion developed thereafter. United States v. Baker, 2015 U.S. Dist. LEXIS 73856 (M.D.Fla. May 12, 2015).
Plaintiff’s excessive force claim against a police officer fails where she couldn’t identify him as the one who wrestled her to the ground. His summary judgment materials said it was a security guard, and he joined in. She only speculated it was him who took her down. The failure to get medical treatment during her jail stay for her abrasions was not reckless indifference to a serious medical need under the Fourteenth Amendment. Morrison v. City of Atlanta, 2015 U.S. App. LEXIS 9591 (11th Cir. June 9, 2015).*
There were four GPS warrants on the defendant’s car, owned by his wife, June-October 2014, renewed in state court every 30 days. The court can’t conclude they were started on stale information since it referred to an ongoing drug operation. The warrant was thin as to ID’g defendant as the driver, but deference is required, and the court can’t find no probable cause. Defendant repeatedly went to a stash house. Charged, but yet unproved, conduct can appear in a search warrant affidavit. United States v. Smith, 2015 U.S. Dist. LEXIS 74395 (E.D.N.C. June 9, 2015).
Handcuffing here was reasonable during a Terry stop after a traffic stop after it appeared defendant threw a baggie of drugs into the passenger’s lap. United States v. Davis, 2015 U.S. Dist. LEXIS 74097 (W.D.Mo. June 9, 2015),* R&R 2015 U.S. Dist. LEXIS 74960 (W.D.Mo. May 13, 2015).*
Defendant as a 2255 petitioner had a full and fair opportunity to litigate his suppression motion, did, and lost and then pled guilty. He can’t raise it on collateral review. Roberts v. United States, 2015 U.S. Dist. LEXIS 74240 (M.D.N.C. June 9, 2015).*
A motion for return of property under Rule 41(g) was denied where the government represented that it was about to institute proceedings for forfeiture or a criminal proceedings. Motions for return of property are to be exercised sparingly and not to interfere with criminal investigations. In re Premises Known & Described As 100 Sweeneydale Ave., Bayshore, N.Y., 2015 U.S. Dist. LEXIS 73668 (E.D.N.Y. June 6, 2015)
The record supports that defendant’s mother consented to a search of the premises while he was on supervised release. He never refused consent; he just said he’d think about it. United States v. Mitchell, 2015 U.S. App. LEXIS 9488 (8th Cir. June 8, 2015).*
The affidavit for the search warrant shows probable cause to search defendant’s property in California. “The affidavit indicates that Agent Cunningham and his team conducted a lengthy and thorough investigation relating to Defendant’s activities. They gathered evidence from a variety of sources and thereby verified and corroborated the information they discovered. The affidavit contained information obtained through controlled deliveries, confidential human sources, the use of computer, law enforcement, financial and other public records, and an interview with the Defendant.” United States v. Brecker, 2015 U.S. Dist. LEXIS 73719 (E.D.Mo. April 6, 2015).*
A judge in the E.D.N.Y. may issue a search warrant for emails on Yahoo!’s email server in California under Rule 41 and the Stored Communications Act. The warrant was broad in its particularity, but still constitutional. The warrant lawfully included a requirement of no notice to the account holders after Yahoo! said it would tell the account holder. Denial of notice to the target was not unconstitutional. United States v. Scully, 2015 U.S. Dist. LEXIS 73831 (E.D.N.Y. June 8, 2015) (following In the Matter of a Warrant for All Content & Other Info. Associated with the Email Account xxxxxxx gmail.com Maintained at Premises Controlled By Google, Inc., 33 F. Supp. 3d 386 (S.D.N.Y. 2014)): Continue reading →
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The search warrant said Apartment 2. The officers searched Apartment 1 because that turned out to be the target apartment. That was a warrantless search. The warrant did not say “Bershchansky’s apartment” or the “one on the right.” The good faith exception also does not apply. United States v. Bershchansky, 2015 U.S. App. LEXIS 9383 (2d Cir. June 5, 2015): Continue reading →
Posted inWarrant execution|Comments Off on CA2: Warrant said Apt. 2, but officers determined Apt. 1 was correct; search of Apt. 1 was thus warrantless and not in good faith
After originally holding a reasonable mistake of law would not support a stop, Heien was decided, and the court reconsiders and holds that it does. People v. Campuzano, 2015 Cal. App. LEXIS 489 (App. Div. San Diego June 5, 2015).
Defendant was stopped for speeding, and it was apparent he had needle tracks on his arms and was a heroin user. He wouldn’t keep his hands in front of him as he was told. He started crying about having marijuana in the car with him. The officer patted him down and then asked about a lump in his sock, and defendant consented to removing the sock. State v. Drumm, 2015-Ohio-2176, 2015 Ohio App. LEXIS 2098 (2d Dist. June 5, 2015).*
Mother could not consent to search of adult son’s room. “This court is less persuaded by the presumption of control given to parents in Rith when the child at issue has been an adult for over two decades.” “Based on these facts they knew at the time, ‘the agents could not reasonably have believed [Johnson] had authority to consent to this search.’ United States v. Whitfield, 939 F.2d 1071, 1074, 291 U.S. App. D.C. 243 (D.C. Cir. 1991).” United States v. Brown, 2015 U.S. Dist. LEXIS 73277 (D.Mont. June 4, 2015). The codefendant friend, however, had no standing. United States v. Cislo, 2015 U.S. Dist. LEXIS 73275 (D.Mont. June 4, 2015).
Even though the Nevada wiretapping law hasn’t been updated since 1973, its definition of “wire communications” includes cell phone calls. Sharpe v. State, 2015 Nev. LEXIS 39 (June 4, 2015).*
Posted inApparent authority|Comments Off on D.Mont.: Mother couldn’t consent to adult son’s room; not reasonable for police to believe she had apparent authority
A border search occurred where defendant attempted to enter Canada and was turned away on suspicion of manufacturing child pornography on cell phone videos. His cell phone was subjected to a border search at the U.S. border. His argument he was never outside the U.S. for a border search was rejected because he presented himself to Canadian customs first. United States v. Serhan, 2015 U.S. Dist. LEXIS 72899 (E.D.Mich. June 5, 2015).
Posted inBorder search|Comments Off on E.D.Mich.: If you’re rejected driving to Canadian customs, turning around and going back is still a U.S. border crossing
In two cases decided on the same day, two district courts, one in the Fifth Circuit and one in the Third, came to seemingly opposite conclusions on whether drug dealers would have evidence in their homes sufficient to satisfy the nexus requirement of the Fourth Amendment.
S.D.Tex.: “Based on this authority, particularly in light of the warnings expressed in Broussard and Payne, the Court concludes that no reasonable agent could rely on the warrant issued in this case because the affidavit in support was “bare bones” with respect to the nexus between the objects sought and the place to be searched. An agent who relied on the warrant would have to believe that agents, in every single drug-trafficking case, could search a suspect’s home merely because they have probable cause to believe that the suspect has engaged in drug trafficking. ‘If that were so, there would be no reason to distinguish search warrants from arrest warrants’ in the large class of drug-trafficking cases. See Freeman, 685 F.2d at 949 (quoting United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970)). That is patently unreasonable. Because the information before the magistrate judge was so lacking in probable cause that no agent could reasonably rely upon the warrant when conducting a search, it necessarily follows that the warrant did not issue upon probable cause.” United States v. Solorio-Hernandez, 2015 U.S. Dist. LEXIS 72904 (S.D.Tex. June 5, 2015).
E.D.Pa.: “The Third Circuit has long recognized that ‘[i]n the case of drug dealers … evidence of involvement in the drug trade is likely to be found where the dealers reside.’ Whitner, 219 F.3d at 297; see also Stearn, 597 F.3d at 558. Thus, when the crime under investigation is drug distribution, an issuing judge may infer that a suspected drug dealer is storing evidence of his drug crimes in his residence if three preliminary premises are met: (1) that the person suspected of drug dealing is actually a drug dealer; (2) that the place to be searched is possessed by, or the domicile of, the dealer; and (3) that the home contains contraband linking it to the dealer’s activities. Stearn, 597 F.3d at 559 (citing Burton, 288 F.3d at 104).” This standard was satisfied here. United States v. Herrera, 2015 U.S. Dist. LEXIS 72860 (E.D.Pa. June 5, 2015).
Posted inNexus|Comments Off on Nexus and searching the homes of alleged drug dealers: Two different outcomes
A search warrant is not required for a DUI breath test. United States v. Millner, 2015 U.S. Dist. LEXIS 72645 (D.Md. June 3, 2015); Williams v. State, 2015 Fla. App. LEXIS 8566 (Fla. 5th DCA June 5, 2015).
Posted inDrug or alcohol testing|Comments Off on Search warrant is not required for a DUI breath test
A police officer contemplating a blood draw by search warrant is not obligated to inquire into the medical history of the suspect to predetermine reasonableness. Dromgoole v. State, 2015 Tex. App. LEXIS 5662 (Tex. App. – Houston (1st Dist.) June 4, 2015): Continue reading →
Posted inDrug or alcohol testing, Reasonableness|Comments Off on TX1: A police officer contemplating a blood draw by search warrant is not obligated to inquire into the medical history of the suspect to predetermine reasonableness
Road safety advocates converged on Congress Thursday to promote a new set of blood alcohol sensors that could prevent drivers from operating their vehicles while intoxicated.
The technology was unveiled by a joint research program called —, which brings auto manufacturers together with regulators and safety advocates to work on technological solutions to drunk driving.
Posted inDrug or alcohol testing|Comments Off on Time: Feds Unveil Technology to Create ‘World Without Drunk Driving’
The place to be searched in the search warrant was completely blank, and that makes the warrant void under well-settled precedent. $293,720 was seized. State ex rel. Miss. Bureau of Narcotics v. Canada, 2015 Miss. LEXIS 304 (June 4, 2015).
The trial court’s findings that defendant consented to sticking around for questioning is supported by the record. On de novo review, the court of appeals doesn’t find that the officers were haranguing defendant into submission. Towles v. United States, 2015 D.C. App. LEXIS 255 (June 4, 2015).*
While a hand-to-hand transaction alone is not reasonable suspicion, here there was more: “The essence of probable cause is a reasonable, objective basis that would lead a person of ordinary prudence to believe a crime has been, is being, or is about to be committed. … While there could have been an innocent explanation for the events observed by Detective Hussey, he was entitled to view them through the lens of his specialized training and experience and conclude that more than mere coincidence was involved, and that he had witnessed a drug transaction. For these reasons the order allowing the defendant’s motion to suppress is reversed.” Commonwealth v. Freeman, 2015 Mass. App. LEXIS 57 (June 3, 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.
