The protective sweep of the house before actual arrival of the search warrant was valid because an additional person stuck a head out the window when the officers first knocked, and they had to be sure there wasn’t another. [Since the warrant had issued, what difference does that make?] The search warrant was for drugs, it wasn’t overbroad, and things were found in plain view. United States v. Benedict, 2015 U.S. Dist. LEXIS 21301 (D.Alaska February 13, 2015).* However, “[h]ere, it is difficult to reason how a videotape discovered in the children’s bedroom can reasonably be considered to ‘relat[e] to illegal transactions involving a controlled substance or use,’ as defined by the search warrant. Thus, Defendant’s Motion to Suppress Evidence at Docket 82 is GRANTED as to the videotape.” United States v. Benedict, 2015 U.S. Dist. LEXIS 20977 (D.Alaska February 23, 2015).
Driving 13 mph in a 25 zone at 2:30 am was reason for a stop. State v. Nunez, 2015 Mo. App. LEXIS 163 (February 23, 2015).*
Posted inProtective sweep, Reasonable suspicion, Scope of search|Comments Off on D.Alaska: Seizure of a video recording from a child’s bedroom during a drug search warrant was an overseizure and suppressed
Defendant’s arrest, as a man on the street near a house that was to be raided, was without probable cause. Merely getting a bag from the target before the raid wasn’t enough. They really had nothing on him. United States v. Butler, 2015 U.S. Dist. LEXIS 21259 (W.D. Pa. February 23, 2015): Continue reading →
Posted inArrest or entry on arrest, Probable cause|Comments Off on W.D.Pa.: Arrest of man talking to def outside house before drug raid was without PC; knew nothing of him
See one of the prior posts on Paxton’s case, the original Writs of Assistance case, argued this date in 1761. John Adams credited James Otis’s argument, which he witnessed, as helping foment the Revolution and led directly to the Fourth Amendment. Otis lost the case; well, he expected to; but he didn’t give up, and what a point he made.
For this blog there have been almost 12,000 posts, reviewing at least 25,000 cases. 1.4M visitors since 2010.
Posted inUncategorized|Comments Off on Today is the 254th anniversary of the “Writs of Assistance Case” and the 12th anniversary of this blog
In an alien smuggling case, aside from all the normal factors of nervousness and not knowing the passenger’s names who had no luggage who he professed were friends, one factor in the reasonable suspicion in this case was the police license plate reader which had this vehicle frequently on this route. United States v. Segovia-Ayala, 2015 U.S. Dist. LEXIS 21375 (W.D. La. January 23, 2015).
Defendant and his various counsel came to an impasse about the “traction” his various suppression motions had, and they weren’t fully briefed. They are effectively abandoned: “Failure to brief an argument constitutes waiver and abandonment; skeletal arguments, if undeveloped, do not suffice to put an argument before the court. United States v. Hussein, 664 F.3d 155, 161 n.2 (7th Cir. 2011).” Going to the merits anyway, defendant’s stop was based on a PV warrant in the system, and he confessed he was returning from making a heroin run to Chicago. Defendant’s last argument about he wouldn’t have made the incriminating telephone call from jail but for his illegal arrest is attenuated from the arrest itself. United States v. Thomas, 2015 U.S. Dist. LEXIS 21348 (W.D. Wis. January 5, 2015).*
The officer here ran the tags of a truck and determined that the owner was wanted. By the time he was ready to make the stop, the driver and passenger had stopped and were walking into a restaurant. He came into the restaurant looking for the driver, and the passenger, sitting alone in a booth, said she didn’t know where he was, guessing he was in the bathroom. She was taken outside and made to call others in an attempt to find him. Her detention after that was without any reasonable suspicion that she’d committed any crime, and the officer essentially admitted it at the suppression hearing. The motion to suppress the search of her purse after that was properly granted. State v. Allen, 2015 Ga. App. LEXIS 56 (February 23, 2015).*
Posted inReasonable suspicion, Search incident|Comments Off on GA: Search of passenger’s purse in restaurant, after driver and she walked inside, for saying she didn’t know where he was was unreasonable
There were no known eyewitnesses to the murder of a young woman and her 3-year-old daughter four years ago. No security cameras caught a figure coming or going.
Nonetheless, the police in Columbia, S.C., last month released a sketch of a possible suspect. Rather than an artist’s rendering based on witness descriptions, the face was generated by a computer relying solely on DNA found at the scene of the crime.
It may be the first time a suspect’s face has been put before the public in this way, but it will not be the last. Investigators are increasingly able to determine the physical characteristics of crime suspects from the DNA they leave behind, providing what could become a powerful new tool for law enforcement.
Posted inDNA|Comments Off on WaPo: Building a Face, and a Case, on DNA
On Tuesday of this week, the en banc Eleventh Circuit will hear oral argument in United States v. Davis, the case I blogged about here and here on whether the Fourth Amendment protects cell-site records. The en banc briefs are here, and an exhibit from the trial showing some of the cell-site records is here. The Eleventh Circuit doesn’t post oral argument audio, so we’ll likely be stuck relying on press accounts to find out what happened.
Whichever way the Eleventh Circuit rules, Supreme Court review is a possibility. It seems likely that Fourth Amendment protection for cell-site data will be the next big Fourth-Amendment-and-technology case at the Supreme Court, following the GPS case in 2012 and the searching-cellphones-on-arrest case in 2014. But when?
Posted inGPS / Tracking Data|Comments Off on WaPo: Supreme Court review of cell-site cases?
It is not unreasonable to observe a misdemeanor and wait an hour to arrest the defendant when he’s doing something else. Here, they waited for him to leave a bar so the arrest wouldn’t be inside. United States v. Watkins, 2015 U.S. Dist. LEXIS 20876 (E.D.Mich. February 22, 2015). See Treatise § 6.02 nn. 18-19 (“Also, ‘[t]here is no constitutional right to be arrested at the moment there is probable cause.’”); see also the federal practice of “catch and release” cases where the defendant is arrested and released in state court in the hopes that he will offend again so the punishment will be greater in federal court.
Posted inArrest or entry on arrest|Comments Off on E.D.Mich.: No right to be arrested at earliest possible time
Defendant was arrested for something after he was put on probation in state court but before the formal sentencing order and written conditions were completed. The government failed to show that defendant was aware of his conditions of probation that he was subject to search because there was nothing in writing from the court or probation until after the arrest. Pattern and practice that the court probably told the defendant of all the conditions fails [as it should have; what court reads all the conditions?]. The gun in his FIPF case is thus suppressed. Consent also fails. United States v. Christopher, 2015 U.S. Dist. LEXIS 20846 (D.Nev. January 23, 2015).
On defendant’s cross-appeal, the on-the-street stop was shown to be reasonable and his consent was voluntary. People v. Almond, 2015 IL 113817, 2015 Ill. LEXIS 302 (February 20, 2015).*
There was no reasonable suspicion for a continued detention, and the 14 minute additional wait after defendant was free to leave was unreasonable. United States v. Thompson, 2015 U.S. Dist. LEXIS 20838 (D.Neb. January 13, 2015). As to reasonable suspicion:
The combination of air fresheners, two phones, only one visible bag, referring to military friends to a stranger by rank and last name, clean construction gear, and no hotel reservation do not rise to more “inchoate and unparticularized suspicion or hunch.” See United States v. Guerrero, 374 F.3d 584, 590 (8th Cir. 2004) (“The use of air fresheners shows that [the defendant] either liked the smell of air fresheners or that he was trying to cover up an odor, but that odor need not be the smell of drugs.”).
Posted inReasonable suspicion|Comments Off on D.Neb.: Two cell phones and air freshener not RS; 14 min additional wait for dog unreasonable
Of all the factors for reasonable suspicion offered by the government, several are rejected individually, but three here were enough on the totality with the others. Piecemeal consideration of factors is impermissible under Arvizu. “Of the factors listed, three factors are the most important. First, Bernal did not know where in Alabama he was going. Second, he was making a cross-country trip using a suspended license. Third, he had an inappropriate amount of concern regarding the reason for his stop. Traveling across the country with the destination being anywhere within an entire state is highly suspicious. Additionally, Bernal was unable to offer a good explanation for not knowing his destination. Driving across the country with a suspended license is suspicious because it indicates an unreasonable risk of potential arrest. Likewise, heightened concern about the reason for the stop demonstrated out of the ordinary behavior. These three factors, together with the other supporting factors identified established reasonable suspicion.” United States v. Bernal, 2015 U.S. Dist. LEXIS 20766 (N.D.Tex. February 13, 2015).*
Here, too, collectively there was reasonable suspicion to continue the detention and consent was voluntary. United States v. Beltran, 2015 U.S. Dist. LEXIS 20089 (N.D.Tex. February 13, 2015).*
Posted inReasonable suspicion|Comments Off on N.D.Tex.: Three factors combined with potentially innocent factors were still RS
The probation violation warrant was already in the system, and there was no evidence whatsoever that it was procured as a pretext to arrest defendant without probable cause. There was also attenuation because of actual probable cause. United States v. Thomas, 2015 U.S. Dist. LEXIS 20392 (W.D.Wis. February 20, 2015).*
Defendant pled guilty to intoxication assault and intoxication manslaughter. The trial court erred by denying his motions to suppress the evidence obtained from the warrantless, mandatory, and involuntary blood draw because no exception to the Fourth Amendment’s warrant requirement applied. The Texas implied consent statutes do not form a constitutionally valid alternative to the warrant requirement. The natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. Denial of the motions to suppress may have contributed to defendant’s decision to plead guilty, so the error was not harmless. Chidyausiku v. State, 2015 Tex. App. LEXIS 1654 (Tex. App.–Ft. Worth February 19, 2015).*
Because weapons have enduring value to the possessor, a five week delay in using that information to search defendant’s house was not stale. United States v. Korey, 2015 U.S. Dist. LEXIS 20532 (W.D.Pa. February 20, 2015).
Defendant’s wife could consent to a search of the household computer that produced child pornography. Her husband was already on the police radar as a potential child molester, but uncharged. She was disgusted by what she found on the computer and wanted the police to take and search the computer, and that was valid consent by a joint owner. United States v. Files, 2014 U.S. Dist. LEXIS 182188 (W.D. Mo. December 9, 2014).*
The trial court did not err by denying the motion to suppress a blood specimen and the results of a BAC test of the specimen because defendant voluntarily consented as he agreed that the physician could draw his blood and no evidence in the record indicated that any officer told defendant his blood draw was mandatory. Donjuan v. State, 2015 Tex. App. LEXIS 1618 (Tex. App.–Houston (14th Dist.) February 19, 2015).*
Posted inConsent, Staleness|Comments Off on W.D.Pa.: Five week old information in a weapons case not stale
Defendant was stopped for a traffic offense, but the officer was more concerned about the passenger being involved in identity theft. After the traffic offense was resolved and the passenger was going to drive, the officer got consent to a patdown without reasonable suspicion that led to finding brass knuckles and methamphetamine. “In sum, even if we assume that the officers lawfully extended the stop to investigate the passenger’s involvement in the identity theft, once that investigation ended and the officers were prepared to give defendant his citation, the officers violated Article I, section 9, when they did not issue the citation and instead continued to seize defendant without justification. Because the state has not shown, under the totality of the circumstances, that defendant’s consent to search was only tenuously related to that misconduct, the illegality tainted that consent search and the subsequent searches of the car and the bag found therein. The trial court therefore erred in denying defendant’s motion to suppress.” State v. Kuschnick, 269 Or. App. 198 (February 19, 2015).
This case is a discussion of the jury instructions in a police criminal excessive force case. SOPs are inadmissible because of binding precedent in the circuit. United States v. Rodella, 2015 U.S. Dist. LEXIS 19605 (D.N.M. February 6, 2015).*
Officers received a frantic domestic abuse call with an allegation of injury. They “authoritatively knocked on the door” and it was opened, and they could smell burning marijuana. They came in to the living room only, and evidence of identity theft was in plain view on a table in the living room. United States v. Dabrezil, 2015 U.S. App. LEXIS 2573 (11th Cir. February 20, 2015).
Reasonable suspicion of drug use by the driver of a vehicle from a white napkin received from a person standing next to the vehicle, and then observing a seat belt violation justified the stop. The evidence of drug use on the floor was plain view. State v. Hall, 2015 La. App. LEXIS 288 (La.App. 4 Cir. February 18, 2015).*
Defendant’s crossing the fog line was reasonable suspicion for his stop, and there was a drug dog on the scene almost immediately. State v. Morris, 2015 Ida. App. LEXIS 9 (February 18, 2015).*
California’s 4th District applies Davis good faith exception to pre-McNeely blood testing. People v. Harris, 2015 Cal. App. LEXIS 154 (4th Dist. February 19, 2015): Continue reading →
Defendant lived in a house that several people shared, but it wasn’t apparent to the police who got the search warrant. There were no “barriers” on the inside, other than doors, that suggested separate living quarters, and the “do not enter” sign on defendant’s door wasn’t enough to require a separate warrant for his room. Also, a lack of any substantive argument why the state constitution should not provide for a good faith exception is a default of the issue. One can’t merely state the issue without law or argument. State v. Kwalalon, 2015 Del. Super. LEXIS 85 (February 13, 2015): Continue reading →
Plain feel supported seizure of marijuana baggie which gave off an odor when pressed during defendant’s otherwise valid patdown. Plain feel did not support seizure of cash in another pocket. However, it was not suppressed because discovery was inevitable by search incident after finding the marijuana. State v. Rodriguez, 2015-Ohio-571, 2015 Ohio App. LEXIS 532 (12th Dist. February 17, 2015).
Eyewitness to a discharged firearm inside was entitled to credibility because he waited for the police to arrive and directly spoke to the officer who could assess his credibility as a CI. “Zimmerman also contends that the eyewitness’s statement that ‘[y]ou owe me, [Off.] Greco’ actually undermines his credibility because it suggests that he is involved in ‘some criminal dealings’ and sought to curry favor from law enforcement. But the fact that the eyewitness referred to Officer Greco by name could fairly indicate that he did not believe his report to be fully ‘anonymous’ and free from repercussions. Rather, it suggests he believed that law enforcement could, if so inclined, track him down and charge him appropriately if his report were false.” United States v. Zimmerman, 2015 U.S. Dist. LEXIS 20277 (W.D. N.Y. February 17, 2015).*
Where the evidence showed that a business and an apartment shared an IP address, the affidavit for the search warrant for the business for child pornography traced back to that IP lacked probable cause. However, the good faith exception saves the search anyway. United States v. Link, 2015 U.S. Dist. LEXIS 19764 (E.D. Wis. February 18, 2015): Continue reading →
Posted inOverbreadth, Probable cause|Comments Off on E.D.Wis.: Where a business and the apt over it shared an IP address, SW for business was overbroad, but saved by GFE
"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.
