There were two controlled buys of marijuana from defendant’s store on May 3d & 21st. A third buy was July 2d but the test results weren’t back when a search warrant was obtained on July 3d. The July 2d buy was not a controlled substance. Nonetheless, defendant was in the business of selling marijuana from his store and the six weeks from the second controlled buy to the search warrant wasn’t stale for Fourth Amendment purposes. Defendant also was known to sell analogs and food stamps from the business. It was an ongoing operation. State v. Hmedian, 2014-Ohio-5728, 2014 Ohio App. LEXIS 5545 (5th Dist. December 22, 2014).
On “the totality of the circumstances, Officer Kolek had reasonable, articulable suspicion to stop the vehicle driven by Mr. Shankel based both on his knowledge that the registered owner had an expired license and his observation of the driver.” State v. Shankel, 2014-Ohio-5712, 2014 Ohio App. LEXIS 5517 (9th Dist. December 29, 2014).*
Defendant’s 2255 claim that defense counsel was ineffective for not challenging a ping order that was based on a court order with a showing of probable cause is denied since no case says that it was unlawful in the first place. Pinging the cell phone while he was home was not a search of the home–it only confirmed he was home. United States v. Ayers, 2014 U.S. Dist. LEXIS 177872 (S.D. Ohio December 29, 2014).*
Defendant was wanted for not reporting to probation, and there was a warrant for his arrest. The government used Doppler radar to determine whether defendant was in his house at the time. The court has concerns about the use of radar to scan for people in a house, but doesn’t reach the question because of the independent source rule. United States v. Denson, 2014 U.S. App. LEXIS 24616 (10th Cir. December 30, 2014): Continue reading →
Posted inProbation / Parole search, Surveillance technology|Comments Off on CA10: Govt used Doppler radar to determine if defendant was in house, but court doesn’t have to decide constitutional question
In an IAC claim involving a search claim, the trial court can determine the merits of the search claim. If the defendant would lose, he then loses both prongs of the Strickland standard. Remanded for making findings. Padilla v. State, 2014 Ida. App. LEXIS 132 (December 23, 2014): Continue reading →
Posted inIneffective assistance|Comments Off on ID: In a search and seizure IAC claim, if def would lose on merits of search, he fails both prongs of Strickland
A municipal police officer trolling P2P connections found child pornography on defendant’s computer. When she got the IP address, it was apparent the computer was located in another municipality nearby. The Fourth Amendment wasn’t violated by her extraterritorial examination of defendant’s computer where the search warrant was executed by officers in the city where it was located. [This discussion may be only pertinent for state statutes on jurisdiction; under Virginia v. Moore, the answer is obvious.] Knight v. State, 2014 Fla. App. LEXIS 20730 (Fla. 1st DCA December 22, 2014).
Defendant was a passenger in a vehicle lawfully stopped, but the stop was unlawfully continued solely on nervousness. The search of his backpack was unreasonable, and there were no intervening circumstances. State v. Clemons, 2014 Ore. App. LEXIS 1772 (December 17, 2014).*
Posted inReasonableness, Uncategorized|Comments Off on FL1: No Fourth Amendment or state law violation for P2P CP trolling to cross jurisdictional lines
Defendant packed marijuana in a trailer and entrusted it to a driver to take it to him in Vermont. The trailer was stopped in Illinois, subjected to a dog sniff, and the marijuana was found. The driver agreed to continue to drive it on to defendant in Vermont, and he did. When it arrived, defendant was arrested. Even as a bailor, defendant had no reasonable expectation of privacy in the trailer entrusted to another who was driving to him. United States v. Grossman-Crist, 2014 U.S. Dist. LEXIS 177178 (D.Vt. December 22, 2014). Of note is the court’s sensitive discussion of reasonable expectation of privacy; some judges would have just blown this off: Continue reading →
Richard Rosengarten walked into Publix at 4:20 p.m. November 15, 2013. Normally, not even Rosengarten, a brilliant and bespectacled University of Miami law student, would remember the exact date and time he went grocery shopping. But it’s not every day you see cops electrify an innocent man.
Posted inExcessive force|Comments Off on Miami New Times: Miami Cops Misuse Tasers, With Deadly Results
If you’ve made it this far, you’ve probably already figured out the joke. None of these are predictions for 2015. They’re all things that actually happened in 2014.
Happy New Year!
Mr. Balko did the same for us at the end of 2013, with the parade of horribles that he predicted, but actually already happened.
Posted inUncategorized|Comments Off on WaPo: Radley Balko’s ‘The Watch’ Blog: “Horrifying civil liberties predictions for 2015”
To date, one serious proposal for reform has emerged. On December 8th, Eric Schneiderman, the Attorney General of New York, proposed that Governor Andrew Cuomo name him, Schneiderman, as an independent special prosecutor to investigate and, if appropriate, prosecute police officers in any situation where they cause the death of a civilian.
A skilled hacker can replicate someone’s fingerprint based solely on a medium-range picture of their thumb, a prominent cyber expert proved over the weekend.
Posted inSurveillance technology|Comments Off on Fingerprint phone security: “Your fingerprint can be stolen by taking a photo”
Grant of suppression motion is affirmed where the state carries burden of proof and put on nothing whatsoever, trying to put a burden on the defendant to at least go forward. That’s not state law. Commonwealth v. Enimpah, 2014 Pa. LEXIS 3466 (December 29, 2014): Continue reading →
Posted inBurden of proof|Comments Off on PA affirms grant of suppression motion where state carries burden of proof and put on nothing whatsoever
In 2013, Pennsylvania Superior Court held that the state constitution prohibits warrantless taping inside a suspect’s home with a video camera planted on an informant. Commonwealth v. Dunnavant, 2013 PA Super 38, 63 A.3d 1252 (2013) (posted here). That decision was affirmed by an equally divided court, thanks to the resignation of one justice. Commonwealth v. Dunnavant, 18 WAP 2013 (December 29, 2014) (per curiam). Opinions in support of reversal 2014 Pa. LEXIS 3457 (December 29, 2014) are here and here. Opinions in support of affirmance 2014 Pa. LEXIS 3459 (December 29, 2014) are here and here. Because this issue will arise again, and already has a 3-3 divide, the next time, the parties have their work cut out. All four opinions are interesting to Pennsylvania practitioners.
The ongoing nature of defendant’s drug trafficking operation did not make the search warrant go stale where it was issued only ten days later. United States v. Black, 2014 U.S. Dist. LEXIS 176761 (W.D. N.C. December 23, 2014):
Taking these factors in reverse order, the “nature of the property to be seized,” pursuant to the warrant, was evidence of drug trafficking. Specifically, the search warrant was obtained to seize evidence of the “commission of the crimes of possession, manufacturing, sales and distribution of controlled substances and a conspiracy to commit those offenses,” and the fruits of such crimes. [Doc. 73-1 at 4]. The expiration of ten days’ time would reasonably be expected not to not diminish, in any substantial way, evidence surrounding Black’s alleged drug trafficking activity, especially since the Defendant’s accomplices were not local, daily recipients of his drugs. This conclusion is borne out as well by an examination of the second and third factors. Continue reading →
Posted inStaleness|Comments Off on W.D.N.C.: How ten day old information in an ongoing drug operation doesn’t get stale
“The flaw in Jackson’s [IAC] argument is that he never claimed any expectation of privacy at his girlfriend’s apartment. In fact, Jackson claimed to have no interest in the apartment, denying he resided there or that any of the possessions within belonged to him. Jackson could not assert standing to challenge a search of a third party’s residence while denying he had any possessory interest to the residence or any of its contents. Therefore, counsel was not ineffective in failing to move to suppress on this basis.” Jackson v. State, 2014 Iowa App. LEXIS 1197 (December 24, 2014).*
A search warrant was issued for defendant’s house, camcorder, and computer. The complainant said she was sexually assaulted in his house, and she also reported that he talked about putting sex videos on his computer. The search of the computer produced child pornography. The warrant was issued with probable cause. Defendant also raised the claim that videos of his ex-wife found on the computer that may have been taken before she was 18 but after their marriage had a constitutional right of privacy. This is rejected essentially without discussion. United States v. Buttercase, 2014 U.S. Dist. LEXIS 176492 (D. Neb. November 24, 2014).*
Posted inComputer and cloud searches, Standing|Comments Off on IA: Defendant claimed no interest in the house searched or what was seized, so he lacked standing
The topline results-that cameras reduced the use of force by 60 percent and civilian complaints against police by 88 percent-were released by the Rialto police and have been cited widely since then. However, the full details of the study weren’t available until now.
Posted inUncategorized|Comments Off on Motherboard: Researchers Release Full Data from 2012 Police Body Cam Study
This year, the Notorious RBG had heart surgery, celebrated her 81st birthday, and served her 21st year on the Supreme Court of the United States. But most of all, 2014 was the year that everyone realized that she is a total badass. So let’s take a moment to reflect on Ruth Bader Ginsburg’s 2014 and all of the wonderful legal language and Internet memes it has given us.
The five-foot tall justice cut her male colleagues to their knees using only a her words. She threw the IDGAF-face with aplomb. She made black robes with horrible doily frills a Halloween staple. Although she has been a Supreme Court justice since 1993, she struck a new chord this year with her biting, 35-page Hobby Lobby dissent in June. Basically, she America’s liberal grandma, but instead of cookies she gives us justice.
Posted inUncategorized|Comments Off on The Bustle: Ruth Bader Ginsburg’s 2014 Was Better Than Your 2014
The tape recording of the officer’s testimony supporting the issuance of the search warrant by a state court judge was incomplete. Nevertheless, there is no constitutional violation because what there is supports the warrant. Compliance with state law on this is ministerial [a moot point under the later Virginia v. Moore], and suppression is not warranted. United States v. Jackson, 2005 U.S. Dist. LEXIS 49379 (D. Alaska May 10, 2005) [Normally I wouldn’t bother reading a case nearly ten years old, but my interest was piqued on why this one would show up on Lexis just now. Also note this case shows that between 2005 and 2014, Lexis now has nearly four times as many U.S. District Court opinions posted every year, and that’s why I had to stop reading civil cases from the District Courts: I have a day job, too.]
In a case with slightly convoluted and “murk[y]” facts, the court concludes that a probation search of defendant’s property that produced drugs also supported a later search of a cave on his property where he had a really large cache of automatic weapons. A CI tipped them off to the guns, and they came to the house for the probation search but found no guns. The CI called back and said the guns were in a cave away from the house. Officers went back to the cave. Defendant’s standing to contest the search of the case was hotly contested with defendant prevailing on standing but losing on the merits. United States v. Floyd, 2014 U.S. Dist. LEXIS 176419 (N.D. Cal. December 22, 2014).*
Defense counsel was not ineffective for not challenging defendant’s consent when she testified at trial that she consented to the search. State v. Driscol, 2014-Ohio-5608, 2014 Ohio App. LEXIS 5436 (11th Dist. December 22, 2014).
Defendant’s prior DUI convictions weren’t exigent circumstances to dispense with a search warrant for blood. Lloyd v. State, 2014 Tex. App. LEXIS 13691 (Tex. App. – Dallas December 22, 2014).*
The trial court and court of appeals erred in concluding that there was no fair probability that drugs would be found at defendant’s house on the totality of circumstances. “We reach this conclusion after acknowledging that independently each fact set forth in the search warrant affidavit is merely suspicious, but the totality of the circumstances—namely, the numerous tips indicating drug activity was probably present at 609 A and the subsequent surveillance of 609 A during which seemingly drug-related behavior was observed—distinguishes this case from Gentile. Likewise, we note that our decision today is based, in part, on the uncertainty as to the standard applied to review the magistrate’s probable cause determination. See Kinloch, Op. No. 2012-UP-432 (S.C. Ct. App. filed July 18, 2012) (reciting, erroneously, ‘clear error’ as the standard by which it was reviewing the trial judge’s decision).” State v. Kinloch, 2014 S.C. LEXIS 547 (December 23, 2014).*
By arguing constructive possession in the trial court and not mentioning standing, the state waived standing for appeal. “The State claimed in the district court and on appeal that Baylor had constructive possession of the drugs found in the car. This precludes the State from claiming Baylor did not have a reasonable expectation of privacy in the vehicle for the first time on appeal. See id. at 202-03 (citing Steagald v. United States, 451 U.S. 204, 209 (1981), which held the State could not challenge the defendant’s expectation of privacy in the place searched for the first time.” State v. Baylor, 2014 Iowa App. LEXIS 1237 (December 24, 2014).
Defendant’s IAC claim over a search issue not presented fails. First, he can’t show he’d possibly win the argument that a search warrant for a house still requires a second search warrant for a bedroom he occupied in the house. Second, he can’t show prejudice because of other evidence in the case. Willock v. State, 2014 Iowa App. LEXIS 1219 (December 24, 2014).*
Posted inStanding|Comments Off on IA: State’s constructive possession argument at trial precluded raising standing for the first time on appeal
McNeely applies retroactively in Wisconsin, but the state gets the benefit of a Davis-type good faith exception [without citing Davis]. The lead case is State v. Kennedy, 2014 WI 132, 2014 Wisc. LEXIS 954 (December 26, 2014), where a car ran down a pedestrian and dragged the victim, and the driver was at the scene when the officers talked to him. Defendant was .216 when tested two hours after the accident. Eight days after Kennedy’s conviction was affirmed by the court of appeals, McNeely was decided, and it effectively abrogated Wisconsin law on the blood test issue. The state couldn’t even argue that exigent circumstances existed on the totality. As for good faith, prior law was clear and the police committed no misconduct in relying on it. Therefore, while McNeely is retroactive and dissipation of alcohol alone isn’t enough for exigency, this blood test is not suppressed.
Also decided the same day were State v. Foster, 2014 WI 131, 2014 Wisc. LEXIS 952 (December 26, 2014) (a sixth offense DUI where the lack of a warrant issue was raised as an IAC claim before McNeely was decided; GFE applied) and State v. Tullberg, 2014 WI 134, 2014 Wisc. LEXIS 951 (December 26, 2014) (exigent circumstances found on the totality; death of passenger in single vehicle accident).
"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.
