Mandamus to avoid start of trial and force a change of venue in the Boston Marathon bombing trial is denied on a 2-1 vote by First Circuit. In re Tsarnaev, 14-2362 (1st Cir. January 3, 2015). The dissent is concerned about the effect on the venire of the widespread images of the house-to-house searches and the short time the court had to consider it:
Because of these difficulties, I am not in a position to intelligently opine as to whether the standard for mandamus relief has been satisfied. What I do know is that Tsarnaev’s argument that the entire city of Boston and its surrounding areas were victimized — as evidenced by the city’s virtual lockdown and the images of SWAT team members roaming the streets and knocking door to-door in Watertown — is compelling. At first glance, Tsarnaev makes a much stronger case for change of venue here than there was in Skilling, where a change of venue was found to be unwarranted, and McVeigh, where a change of venue was granted.
Jury selection starts tomorrow.
Posted inUncategorized|Comments Off on CA1 denies mandamus to stop jury selection and force change of venue in Boston Marathon trial; images of house-to-house searches concerns dissent
Defendant took his computer to a computer tech to have the data transferred to a new computer. They found child pornography, reported it to the police and copied it. The police seized the computer and got a search warrant for it. They also seized the copies, and they were made as a private search and they were covered by the search warrant anyway. United States v. Meister, 2015 U.S. App. LEXIS 13 (11th Cir. January 2, 2015).*
In an IAC claim for not challenging an arrest in a juvenile proceeding, the record is devoid of what defense counsel failed to do and how the juvenile was prejudiced under Strickland. “From this record, we do not know what defense counsel did, or did not know, before trial, and it is thus impossible for us to conclude ‘that counsel’s performance was objectively unreasonable under prevailing professional norms.’” In re Edgar C., 2014 IL App (1st) 141703, 2014 Ill. App. LEXIS 946 (December 31, 2014).
Posted inIneffective assistance, Private search|Comments Off on CA11: Computer tech’s seeing CP on computer authorized warrant for computer and their copies
After arrest, defendant’s car was to be left in a high crime area, which alone was reason to impound it. Commonwealth v. Crowley-Chester, 2015 Mass. App. LEXIS 1 (January 5, 2015).
The record shows that defendant consented to the search of his cell phones. United States v. Lara-Valenzuela, 2014 U.S. Dist. LEXIS 178816 (D. Ariz. December 27, 2014).*
Plaintiff stated enough to survive judgment on the pleadings in a Fourth Amendment claim against the officers involved in the search of his house, but, on remand, there are still procedural defenses. Pierce v. San Mateo County Sheriff’s Dep’t, 2014 Cal. App. LEXIS 1187 (1st Dist. December 31, 2014).*
Posted inConsent, Inventory|Comments Off on MA: Impoundment justified rather than leaving car in high-crime area
Defendant had to seek return of his property during the pendency of his criminal case. A separate civil case more than seven years later was barred under state law. Commonwealth v. Allen, 2014 Pa. LEXIS 3526 (December 29, 2014).
A man delivering newspapers at 3 am is nearly run off the road by a red vehicle driving on the wrong side of the road, and he calls 911 and reports it, giving his own identity and what he was doing at 3 am to see this. He is a citizen informant, and relying on his information was reasonable in making the stop. State v. Van Camp, 2014 Tenn. Crim. App. LEXIS 1161 (December 29, 2014).*
Extreme nervousness, inconsistent versions of travel between passenger and driver, multiple air fresheners in the car, and refusal to answer some questions added up to reasonable suspicion. State v. Allen, 2014-Ohio-5752, 2014 Ohio App. LEXIS 5568 (12th Dist. December 30, 2014).*
The Medicare fraud limitation in this document search warrant was only stated in a couple of paragraphs of the things to be seized, so it was technically overbroad. The officers’ conduct of the search, however, was limited and done in good faith, and only 4% of the 28,000 pages of documents seized were outside the warrant. Therefore, even though it was technically overbroad, it was clearly executed in good faith and the motion to suppress is denied. United States v. Cwibeker, 2014 U.S. Dist. LEXIS 178752 (E.D. N.Y. December 31, 2014): Continue reading →
Handcuffing a defendant alone does not bar a search incident in close proximity to him; there are plenty of things that a handcuffed defendant can still do. United States v. Cushnie, 2014 U.S. Dist. LEXIS 178919 (S.D. N.Y. December 31, 2014): Continue reading →
Posted inSearch incident|Comments Off on S.D.N.Y.: Handcuffing a defendant alone does not bar a search incident in close proximity to him
Defendant was seen drunk in the grass behind a liquor store and then crawling to his car by a citizen informant who called the police. An officer arrived and arrested defendant for DUI. The vehicle was properly towed because it was parked in a lane between the liquor store and the motel next door that partially blocked the driveway. There was no evidence that the inventory wasn’t according to standardized procedure. [Thus, the court erroneously shifted the burden to the defendant to prove that the inventory was invalid.] Alternatively, the search of the car was valid as a search incident for the offense of impaired driving. United States v. Crane, 2014 U.S. Dist. LEXIS 178867 (N.D. Iowa December 31, 2014): Continue reading →
Defendant was stopped in Johnson City TN for suspected DUI, and, with the arrest, there was a chase, mace, and a fight. Once defendant was handcuffed, everything was back under control, and that doesn’t constitute sufficient exigent circumstances to dispense with a search warrant. It’s a city with a judge available and there were five officers involved. Defendant’s “irrevocable [implied] consent” for his blood draw in a DUI case wasn’t raised in the trial court, so it’s waived for appeal. State v. Turner, 2014 Tenn. Crim. App. LEXIS 1173 (December 30, 2014).
Defendant defaulted appeal of his certified question about the search of his backpack that was actually searched twice by his father, a police Lieutenant. The certified question was limited to one “search.” State v. Diebold, 2014 Tenn. Crim. App. LEXIS 1171 (December 30, 2014)* [I wonder what Thanksgiving and Christmas were like at home.]
Defendant’s lack of consent argument is dispatched without discussion. Ingram v. State, 2014 Del. LEXIS 613 (December 30, 2014).*
Posted inUncategorized|Comments Off on TN: Def’s fighting with officers wasn’t exigency to dispense with SW for blood
The trial court found the affidavit didn’t show probable cause, but its findings on whether it was so inadequate that the good faith exception shouldn’t be applied were lacking. Remanded; the appellate court declines to make that determination first. State v. Dibble, 2014-Ohio-5754, 2014 Ohio App. LEXIS 5570 (10th Dist. December 30, 2014): Continue reading →
Posted inGood faith exception|Comments Off on OH10: Trial court’s findings supporting GFE are lacking where it found no PC; remanded
BOSTON — The blood has long since been scrubbed from the finish line. The memorials have vanished, and the fund that raised money for victims has closed.
But the ordeal is not over. Boston is preparing now for its legal reckoning with Dzhokhar Tsarnaev, who stands accused of bombing the 2013 marathon and turning Boston’s premier athletic event into a scene of terror and carnage. His trial will revive memories of how those bombs killed three people, blew the legs off 16 others and wounded 260 more.
Unless some last-ditch maneuvering by the defense succeeds, jury selection is to begin Monday.
Posted inUncategorized|Comments Off on NYTimes: Boston Is Eager to Begin Marathon Bombing Trial, and to End It
Handcuffs may be applied during a Terry encounter without turning it into an arrest. Here, there was plenty of reasonable suspicion and an uncooperative defendant. People v. Fields, 2014 IL App (1st) 130209, 2014 Ill. App. LEXIS 950 (December 31, 2014): Continue reading →
Defendant pulled into a gas station, gassed up, and bought a drink. When he came out, a police car was parked behind him, and the officer required him to talk about the reason for the “stop.” This became a stop because defendant wasn’t free to leave, and the state failed in its burden of showing justification. State v. Jackson, A147133 (December 31, 2014) (this case was under submission for 26 months): Continue reading →
Posted inSeizure, State constitution|Comments Off on OR: Officer pulled into gas station behind defendant and made him talk, thereby making it a stop
On an anonymous and unverified crimestoppers tip, four officers and a drug dog show up at defendant’s house for a dog sniff of his front door, ten months before Jardines was decided. A 2003 Texas case from a different appellate district said that this was permissible. The state conceded application of Jardines, and argued that defendant consented to a search of his house. The court finds that the search was hardly voluntary, given that the show of force was intended to overcome free will. There are no adequate intervening factors for consent. State v. Pena, 2014 Tex. App. LEXIS 13824 (Tex. App. – Corpus Christi – Edinburg December 30, 2014).
The record on the question of consent is incomplete, and the case is remanded for a new suppression hearing. State v. Schexnayder, 2014 La. App. LEXIS 3081 (La.App. 5 Cir. December 30, 2014) (may be unpublished).*
Posted inConsent, Curtilage, Dog sniff|Comments Off on TX13: Dog sniff on front porch ten months before Jardines was unreasonable; later consent tainted
Plaintiff sued two Wyoming state troopers for a search of his car because they thought they could smell marijuana with a masking smell. After patting plaintiff and his passenger down, the car was searched, and nothing was found. The case was decided on qualified immunity rather than probable cause because nothing was found. Yet, the question of probable cause is not viewed in hindsight, based on what is found. The officers don’t have to find marijuana to be entitled to qualified immunity. They were entitled to qualified immunity based on what the two officers independently smelled. Abbo v. Wyoming, 2014 U.S. App. LEXIS 24614 (10th Cir. December 30, 2014): Continue reading →
Posted in§ 1983 / Bivens, Probable cause, Qualified immunity|Comments Off on CA10: PC isn’t viewed in hindsight; officers had qualified immunity for believing car contained marijuana, even though it didn’t
The leaders of the Senate Judiciary Committee are pressing the Obama administration for more information about a program that collects Americans’ cellphone data using technology that mimics cellular towers.
Back in July, we looked at the case of Jason Wescott, a Florida man shot and killed by a police SWAT team during a drug raid over an alleged sale of $200 worth of pot to a police informant. The tragedy was exacerbated by the fact that according to friends and relatives, Wescott had been previously threatened by a man who had broken into his home. When he reported the threat to police they apparently told him, “If anyone breaks into this house, grab your gun and shoot to kill.” Officers from the very same police agency then raided Wescott over some pot. When he grabbed his gun, they killed him.
Posted inExcessive force|Comments Off on WaPo: Radley Balko’s ‘The Watch’ Blog: A drug informant lied, SWAT pounced, a man died
The U.S. Supreme Court is developing an electronic filing system that will make all case filings available to the public online, Chief Justice John Roberts Jr. announced in his annual year-end report issued Wednesday. Roberts said the new system “may be operational as soon as 2016.”
Defendant used the cell phone of another in this alleged criminal enterprise, and it is doubtful that he has standing to complain of the cell site location information collection. Even if he did have standing, it was all obtained by court order with sufficient cause shown, and, besides, the good faith exception would apply. The Stored Communications Act is still constitutional in this circuit, and elsewhere, so it applies and was complied with. United States v. Ashburn, 2014 U.S. Dist. LEXIS 178424 (E.D. N.Y. December 30, 2014).
“The defendant Arthur Jeter seeks to suppress evidence, specifically a handgun, retrieved from the back seat floor of a car in which he was a front seat passenger on October 23, 2013. (Tr. 9/12/14, M-12.) Through counsel Mr. Jeter raises troubling issues concerning the handling of a confidential informant (‘CI’), the apparent failure of the city police to disclose the existence of that CI to the city prosecutor, and the reliability of the lead detective’s recollection. Ultimately, however, these issues do not dispel the existence of reasonable suspicion at the time the officers approached the car with a display of force that amounted to a seizure. From that initial investigative detention a rapid evolution of events led to probable cause to arrest when Sgt. Edward Davis saw Mr. Jeter toss into the back of the car a black sweatshirt from which a gun fell onto the floor, where, now in plain view, it was seen and retrieved by Det. David Kincaid. (M-21-25, 170-73.) Accordingly, Mr. Jeter’s motion to suppress the gun will be denied.” United States v. Jeter, 2014 U.S. Dist. LEXIS 178441 (D. Md. December 30, 2014).*
"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.
