Defendant was a woman convicted with her husband for child pornography offenses. He appealed the search issue and lost, but she didn’t appeal that. There is no IAC for her lawyer’s failure to appeal the suppression issue since her husband already lost on it and it was affirmed on appeal. McMillen v. United States, September 16, 2014 (N.D. Miss. September 10, 2014).
There was probable cause to arrest defendant because he was seen by the victim the next day dressed the same, and the victim called the police to report his location. United States v. Robinson, 2014 U.S. Dist. LEXIS 124810 (E.D. Pa. September 8, 2014).*
Defendant’s housemate consented to a search of the premises when police were there after he robbed a casino in Kansas City. There was probable cause for the arrest from the security video and an identification. United States v. Smith, 2014 U.S. Dist. LEXIS 126237 (W.D. Mo. September 2, 2014).*
Posted inConsent, Ineffective assistance|Comments Off on N.D.Miss.: No IAC not to appeal suppression issue co-def already had affirmed
“Defendant argues the search warrant giving rise to the charges in the Indictment was defective because the ATF does not have authority to conduct state narcotics investigations.” The connection between guns and drugs is well known, and the ATF can investigate drug crimes. United States v. Jennings, 2014 U.S. Dist. LEXIS 124904 (E.D. Mich. September 8, 2014): Continue reading →
Posted inWarrant requirement|Comments Off on E.D.Mich.: ATF can investigate drug crimes and procure SWs
Apple says iOS 8 will protect users’ data from the government, and even from Apple itself.
The company announced in a privacy policy late on Wednesday that its new iOS operating system will automatically encrypt data so that only people who know the password can access their data. Even with a warrant, police and federal agents will be locked out.
“Unlike our competitors, Apple cannot bypass your passcode and therefore cannot access this data,” the company wrote in the new privacy policy. “So it’s not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running iOS 8.”
Posted inCell phones|Comments Off on The Hill: Apple: New iPhones can’t be unlocked – even with a warrant
Attorney General Eric Holder on Thursday announced a review of racial bias within the nation’s law enforcement agencies, further expanding the federal response to last month’s fatal police shooting of an unarmed black teen in Missouri.
Posted inPolice misconduct|Comments Off on The Hill: Holder launches national review of racial bias among cops
As a black sedan pulled into downtown Washington traffic earlier this week, a man in the back seat with a specially outfitted smartphone in each hand was watching for signs of surveillance in action. “Whoa, we’ve just been hit twice on this block,” he said, excitement rising in his voice, not far from FBI headquarters.
Then as the car passed the Federal Trade Commission’s limestone edifice, “Okay, we just got probed.” Then again, just a few minutes later, as the car moved between the Supreme Court and the Capitol, he said, “That’s the beginning of an interception.”
Posted inCell phones|Comments Off on WaPo: Tech firm tries to pull back curtain on surveillance efforts in Washington
This court held 19 years ago that treating an administrative search like a criminal raid violated clearly established rights. It said so again in 2007. Now, for the third time, it is confronted with a SWAT-like swarming of barber shops looking for licensing violations, and this, too, violates clearly established rights. Berry v. Leslie, 2014 U.S. App. LEXIS 17782 (11th Cir. September 16, 2014): Continue reading →
Posted inAdministrative search|Comments Off on CA11: For the third time: administrative searches can’t be conducted like criminal raids
Defendant’s traffic stop was invalid because the officer misread the license number before entering it for a random check because it was partially blocked by a trailer hitch. “Common experience reveals that thousands of vehicles in Michigan are equipped with trailer hitches and towing balls.” There is no evidence the license plate itself was unreadable. People v. Dunbar, 2014 Mich. App. LEXIS 1662 (September 9, 2014) (2-1: concur; dissent).
Defendant’s consent was valid. He gave express or implied consent three times both pre-Miranda and post-Miranda. United States v. Bretado, 2014 U.S. Dist. LEXIS 126616 (N.D. Okla. September 10, 2014).*
“Defendant’s half-hearted challenge to the legality of the initial stop is meritless.” It is undisputed he was speeding. The stop was reasonable in duration, too. United States v. Frizzell, 2014 U.S. Dist. LEXIS 124945 (S.D. W.Va. September 8, 2014).*
Posted inConsent, Reasonable suspicion|Comments Off on MI: Misread license plate partially obscured by trailer hitch didn’t support stop
The parole search of defendant’s home and cell phone was permitted by Samson. He’d signed a parole search waiver that permitted a search at any time. Also, the officers had reasonable suspicion, but Samson doesn’t require that if the parolee knows reasonable suspicion isn’t required. United States v. Johnson, 2014 U.S. App. LEXIS 17745 (11th Cir. September 16, 2014).
Officers thought defendant might be casing a liquor store for a New Years Eve robbery, and they drove up and asked, not told, him to show his hands. They also asked if he had a gun, and he admitted that he did. This was not a seizure. United States v. Preston, 2014 U.S. App. LEXIS 17734, 2014 FED App. 0718N (6th Cir. September 12, 2014).*
Shipped packages that came through customs at JFK in New York were delivered to Buffalo. The search at Buffalo still qualified as an extended border search. United States v. Reed, 2014 U.S. Dist. LEXIS 126024 (W.D. N.Y. September 9, 2014).*
A drug testing and search condition of a delinquent’s parents and home was in effect a year before there was a refusal on Fourth Amendment grounds. The objection comes too late. If the order was unconstitutional, which it might have been as to the parents, it was waived by not objecting or appealing at the time it was entered, not after being held in contempt a year afterward. People v. Dorsey (In re Dorsey), 2014 Mich. App. LEXIS 1665 (September 9, 2014).
Defendant was stopped by the Puerto Rico police for suspicion of driving a stolen car, and he was directed to open the hood so the VIN number on the engine could be checked. Officers could see a gun in his waistband, and that justified his frisk. United States v. Tiru-Plaza, 2014 U.S. App. LEXIS 17388 (1st Cir. September 9, 2014).*
Defendant’s motion to suppress is denied after he admits that nothing was seized to be suppressed. United States v. Walker, 2014 U.S. Dist. LEXIS 124638 (M.D. Ga. September 8, 2014).* [Then why was it filed?]
Defendant’s conditions of supervised release including suspicionless searches and GPS monitoring were reasonable because defendant wasn’t a first time child pornography offender. United States v. Tafelmeyer, 2014 U.S. App. LEXIS 17491 (9th Cir. September 10, 2014).*
Defendant consented to a search of the house he shared with his father, but he deferred to his father for consent of a locked storage room. The evidence supports that the father consented to a search of that room. State v. Richard, 2014 Kan. LEXIS 498 (September 5, 2014).*
The search of defendant’s car was valid under the automobile exception because it was reasonable for officers to believe that there was evidence of a robbery in the car. State v. Weilacker, 2014 Tenn. Crim. App. LEXIS 875 (September 8, 2014).*
On a health care fraud wiretap, the government lawfully used Hindu translators as “contractors” assisting in the wiretap, and attorney-client privileged calls were properly filtered out. No violation of either Title III or the Fourth Amendment. United States v. Patel, 2014 U.S. App. LEXIS 17463, 2014 FED App. 0706N (6th Cir. September 8, 2014), amended 2014 U.S. App. LEXIS 20437, 2014 FED App. 0793N (6th Cir. October 21, 2014)*: Continue reading →
Posted inWarrant execution|Comments Off on CA6: Govt properly filtered attorney calls in wiretap
As a general rule, drug dealers keep their drugs at home, and that’s sufficient to get a search warrant for their home. Here, however, the affidavit falls far short of showing that defendant was a drug dealer. He was just a user. Moreover, the Third Circuit has already held warrant showings like this are insufficient to invoke the good faith exception. United States v. Rodriguez, 2014 U.S. Dist. LEXIS 124814 (E.D. Pa. September 8, 2014): Continue reading →
Posted inProbable cause|Comments Off on E.D.Pa.: SW affidavit didn’t show def a drug dealer to use assumption drug dealers keep stash at home
The search warrant was not stale. It had pretty old background information that alone would be stale, but it provided recent information as well, and that was sufficient to overcome staleness. United States v. Thomas, 2014 U.S. Dist. LEXIS 125410 (S.D. Ohio September 8, 2014);* United States v. Magee, 2014 U.S. Dist. LEXIS 126246 (D. Me. September 8, 2014).*
A Sears loss prevention employee observed defendant pulling things off a shelf without checking prices and then attempted to present a check that was declined, and he offered no other form of payment. One thing led to another and an officer was called and defendant fled and was tackled running away. Six months later, defendant was seen again driving by the officer who ran a DL check on defendant and the license was suspended. The officer stopped defendant and arrested him for the suspended DL. The inventory for the tow revealed forged checks and forgery equipment, and the inventory was valid. United States v. Goodwin, 2014 U.S. Dist. LEXIS 125589 (D. Utah September 8, 2014).*
The smell of marijuana on the person is probable cause. The court refuses to engage in a distinction between strong or moderate smell and whether it needs to be corroborated by another officer. State v. Crosby, 2014 Tenn. Crim. App. LEXIS 881 (September 9, 2014).*
Posted inInventory, Probable cause, Staleness|Comments Off on S.D.Ohio: Old background info coupled with new info doesn’t make warrant stale
When defendant was asked about whether he was armed, he became excessively nervous and started sweating. This was reasonable suspicion to the officer. During the patdown, the rock of crack was immediately apparent to the officer. State v. Mathis, 2014-Ohio-3803, 2014 Ohio App. LEXIS 3727 (9th Dist. September 3, 2014).
Yes, this affidavit for a search warrant could have been more detailed, but it still provides probable cause on the totality. United States v. Bergen, 2014 U.S. Dist. LEXIS 122543 (M.D. Fla. September 3, 2014), adopting United States v. Bergen, 2014 U.S. Dist. LEXIS 124610 (M.D. Fla., May 20, 2014)*: Continue reading →
The trial court erred in suppressing defendant’s knock and talk. He was outside his gated property and could have not consented to the entry. While the police had his DL in hand, he could have asked for it back and refused to sign the consent form. State v. Hernandez, 2014 Fla. App. LEXIS 14096 (Fla. 3d DCA September 10, 2014)*:
The defendant was at his own home, not in a car, at an airport, or any other public place. He was outside his own gated property, and the police had already declined the defendant’s invitation to enter the property. The defendant could have simply requested the return of his identification, refused to answer any further questions, and gone back onto his own property inside the gate or into his home. Instead, the defendant signed a consent to search form, locked up his dogs so the police could enter, and escorted the officers to the room where he was cultivating his marijuana. The defendant then executed a Miranda1 rights waiver form in which he agreed that he was speaking freely and voluntarily with the police without counsel.
Posted inConsent, Knock and talk|Comments Off on FL3: Knock and talk outside def’s gate led to consent; he could have refused and asked for DL back
The Los Angeles Police Commission, an independent board that oversees the LAPD, responded on Monday by saying the drones had been placed in the custody of the agency’s inspector general until the LAPD presents the commission draft policies on their use that reflect public input.
Posted inDrones|Comments Off on RawStory: LAPD insists it won’t use new unmanned drones until rules for their use are set
Officers had probable cause to believe drugs were in defendant’s car, and that permitted them to search a backpack found within the car. State v. Bennett, 2014 Ore. App. LEXIS 1232 (September 10, 2014).
Despite remand, the court reaffirms suppression order for lack of valid consent. “We therefore readopt that portion of our opinion in Magana/Rivera in which we concluded that the search of the apartment was unlawful, 257 Ore. App. at 269-72, and we reverse and remand on that basis with respect to defendant.” State v. Magana, 2014 Ore. App. LEXIS 1222 (September 10, 2014),* on remand from State v. Magana, 354 Ore. 837, 325 P.3d 738 (2014).
“The Article I, section 9, problem that we identified in Dennis was that the officer began making unrelated inquiries instead of processing the traffic citation. In short, Dennis stands for the unremarkable proposition that an officer unlawfully extends a traffic stop if the officer ceases to process the citation and instead, without justification, begins making inquiries unrelated to the traffic stop. It does not support defendant’s assertion that Article I, section 9, is implicated every time there is a delay in an officer’s processing of a traffic stop.” Here, after defendant’s license came back clean, the officer asked another officer to complete the citation while he went to talk to the defendant, getting his consent. This was not unreasonable. State v. Aung, 2014 Ore. App. LEXIS 1227 (September 10, 2014).*
Defendant was stopped, was short tempered and angry, got tickets, and then sped away committing other traffic violations. It was objectively reasonable to stop him again leading to a valid DUII arrest. State v. Miller, 2014 Ore. App. LEXIS 1229 (September 10, 2014).*
Readers likely recall that last week, documents from the In Re Directives litigation, regarding foreign intelligence surveillance directives issued to Yahoo!, were declassified.
Chief among them: a new version of the Foreign Intelligence Surveillance Court of Review’s (“FISCR” or the “Court”) 2008 ruling, one less redacted than previous versions released to the public. Then-Chief Judge Bruce Selya’s opinion still contains some key redactions. Some key details—for example, the number of Yahoo! accounts thought to have been swept up in the Government’s surveillance—remain classified.
The owner of the place searched had the authority to consent to a search of the bedroom where defendant was sleeping. Defendant was just a short term guest and was asleep when the police came in. The common authority applied to a cigarette pack found on the closet floor. The owner did not, however, have common authority over defendant’s jacket which was identifiable to him. That part is suppressed. Ancrum v. State, 2014 Fla. App. LEXIS 13647 (Fla. 2d DCA September 3, 2014).
The strong smell of ether coming from defendant’s garage coupled with his denial anyone was in the garage when it was obvious there was was probable cause. United States v. Stankee, 2014 U.S. Dist. LEXIS 122310 (N.D. Iowa September 3, 2014).*
The search of defendant’s car producing a screwdriver that was forensically linked to a burglary was unconstitutional either as a search incident or inventory. He was not in the car when arrested, and there was no justification shown for the inventory. The conviction is affirmed, however, because the testifying co-defendant’s testimony that defendant was in on the burglary was plenty sufficient to sustain the conviction. State v. Kozic, 2014-Ohio-3807, 2014 Ohio App. LEXIS 3732 (7th Dist. August 27, 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.
