The court declines to adopt, at least for now, a drug dog’s “instinct exception” for the dog entering defendant’s car. Other courts have adopted that exception, but factually it doesn’t even apply here because the court finds the dog was encouraged to enter the car, and it wasn’t instinctual. State v. Campbell, 2024 Wisc. App. LEXIS 49 (Jan. 23, 2024).
Defendant’s habeas search claim denied on the merits (no Stone). Hearsay from a crime victim can be probable cause. Carter v. Sec’y, Dep’t of Corr., 2024 U.S. Dist. LEXIS 11388 (M.D. Fla. Jan. 23, 2024).*
Defendant, on supervision, had an arrest warrant issued for him for a federal offense, and that was enough to search his house under the statutory search waiver. United States v. Vales, 2024 U.S. Dist. LEXIS 11496 (E.D. Wis. Jan. 23, 2024).*
The warrant for defendant’s iCloud account was not overbroad. Defendant essentially admitted that the information sought would be found there. United States v. Duncan, 2024 U.S. Dist. LEXIS 11090 (E.D.N.C. Jan. 22, 2024).*
Defendant was in a rental vehicle, but he could not produce the rental agreement to show he was an authorized driver. While that was going on, the officer went back to the car and asked the passenger to check the gas gauge because they were 20 miles from the nearest gas station. Doing that, he saw a marijuana bud, and that was probable cause. United States v. Dawson, 2024 U.S. App. LEXIS 1425 (10th Cir. Jan. 22, 2024).*
The state didn’t file any objections to defendant’s motion to suppress an identification on Fourth Amendment grounds, so it waived that below. The defense succeeding in suppressing defendant’s identification by a witness, but that’s reversed because the defense didn’t put any witnesses on to challenge that in the first place. State v. Scott, 2024 La. App. LEXIS 151 (La. App. 4 Cir. Jan. 22, 2024).*
Use of a cell phone cash app to facilitate spending PPP loan fraud justified warrant for phone. United States v. Foster, 2024 U.S. Dist. LEXIS 11369 (N.D. Ga. Jan. 22, 2024). Codefendant’s case: United States v. Baptiste, 2024 U.S. Dist. LEXIS 11371 (N.D. Ga. Jan. 22, 2024) (probable cause shown for multiple bank accounts because of the pattern of fraudulent activity making it likely that evidence would be found there, too).
In a long opinion in a child mistreatment case in Indian territory, the USMJ concludes defendant consented to the police entry into his house to check on the children. It was done inside, they were not overbearing, defendant had some experience with the criminal justice system. There was also a cell phone warrant to look for text messages that would show whether medical care was sought for the children. United States v. Fineday, 2023 U.S. Dist. LEXIS 233568 (D. Minn. Dec. 19, 2023),* adopted, 2024 U.S. Dist. LEXIS 9757 (D.Minn. Jan. 19, 2024).*
Officers shot at plaintiff without warning when he was sitting in a car posing no threat to anyone. Then, armed, he attempted to run away. Qualified immunity properly denied. Lewis v. Inocencio, 2024 U.S. App. LEXIS 1416 (5th Cir. Jan. 22, 2024).*
“Officer Ayers’s language would have assured a reasonable person that the officer was not making a show of authority: the officer assured Mr. Taylor he was not a suspect, but wanted to ‘get [his] name just so we have that in case we need to contact you again at some point in time.’ Ex. D1 at 00:51-1:00. Context matters. Here, a reasonable person in Mr. Taylor’s position would not feel he was being detained. See Harrington, 167 Wn.2d at 663 (The relevant question is whether a reasonable person in the defendant’s position would feel they were being detained.).” State v. Taylor, 2024 Wash. App. LEXIS 107 (Jan. 23, 2024).
The description of the garage in this warrant was “attached,” but it only shared a bit of roof line. The warrant was particular and left nothing to chance. In addition, defendant doesn’t have standing in the garage. United States v. Leandry-Ocasio, 2024 U.S. Dist. LEXIS 10548 (E.D. Pa. Jan. 22, 2024).*
A discrepancy in the affidavit for warrant as to when the search occurred, suggesting that the search occurred before the warrant issued probably could have not been pursued by defense counsel as a matter of strategy. Moreover, it was waived by the plea. United States v. Jones, 2024 U.S. Dist. LEXIS 10728 (E.D. Ky. Jan. 22, 2024).*
Another search the day before, surveillance cameras, and the likely presence of weapons and others justified this protective sweep. “The officers knew, for example, they were about to arrest a substantial drug supplier, and he had a known connection to firearms and a network of drug distributors and compatriots. Taken together with the security cameras and the presence of the surprise occupant — as the district court recognized — the circumstances justified a reasonably prudent officer in conducting a protective sweep of the Residence to ensure the safety of himself and others. Notably, the officers had ample probable cause and could readily have secured a search warrant for the Reagan Residence earlier, when they obtained the arrest warrant for Everett. But to deprive the officers of the right to conduct a protective sweep, in the circumstances existing at the Residence on the evening of July 17, 2018, would undermine officer safety. This appellate contention of Everett’s will therefore be rejected.” United States v. Everett, 2024 U.S. App. LEXIS 1497 (4th Cir. Jan. 23, 2024). [If this had been unpublished, it would have been about ¼th as long. In addition, do ubiquitous Ring and Google doorbell cams and the like constitute “surveillance cameras”?]
The officer stopping defendant had reasonable suspicion to extend the stop for various circumstances including a full gas can inside the car that suggested a hidden compartment [without explaining]. United States v. Smart, 2024 U.S. App. LEXIS 1394 (4th Cir. Jan. 22, 2024).*
Posted inProtective sweep, Reasonable suspicion|Comments Off on CA4: Another search, surveillance cameras, likely presence of weapons and other persons justified protective sweep
US Private Vaults case reversed. The search of USPV’s 700 safe deposit boxes for inventory was unreasonable. The FBI obtained a warrant for USPV’s business because of its business practices, and this search of the safe deposit boxes of customers was unreasonable. The FBI is instructed to sequester or destroy the records of the searches of all the class members. Snitko v. United States, 2024 U.S. App. LEXIS 1484 (9th Cir. Jan. 23, 2024). The Syllabus of the court:
Defendant’s car was totaled in a wreck, and it couldn’t be driven. Nevertheless, the automobile exception applied to it. After Carney, “ready mobility” is no longer required because of the lesser expectation of privacy in a car compared to a house. “The automobile exception requires only that a reasonable officer have probable cause to suspect that a vehicle contains evidence of a crime and does not rise or fall on the ‘ready mobility’ of the vehicle. Because there was probable cause for Trooper Sica to search the vehicle, the trial court erred in granting Jennings’s motion to suppress.” Commonwealth v. Jennings, 2024 Va. App. LEXIS 29 (Jan. 23, 2024) (unpublished).
Defense counsel filed an Anders brief, and one of the potential issues was use of a surveillance drone. That pretrial issue, however, was waived by his guilty plea. United States v. Perkins, 2024 U.S. App. LEXIS 1454 (6th Cir. Jan. 22, 2024).*
Defendant was not initially seized when officers called to him about serving him with a citation. When officers got closer, they could see that he had a firearm that he was reaching for, and that led to a struggle over the gun and his Tasing. Then he was seized, and it was reasonable. United States v. Trinidad-Nova, 2024 U.S. Dist. LEXIS 11202 (D.P.R. Jan. 16, 2024).*
Posted inAutomobile exception, Drones, Seizure|Comments Off on VA: Automobile exception doesn’t require “ready mobility” and this car was totaled in a wreck
While partial overbreadth can lead to suppression of everything seized in an egregious case with flagrant misconduct, this isn’t one: “And as in Bradford and Kraft, we conclude that the facts here do not warrant this extreme remedy.” “According to defendant, Detective Nash applied for a narrow, particularized warrant — while withholding his true ‘investigative purpose’ and his subjective intent to seek a broad array of documents and evidence relating to the Stinemans’ murder while executing the warrants. We are not persuaded that the officers converted the search into “‘”a general, exploratory rummaging”‘” … in executing the two search warrants at issue here.” People v. Helzer, 2024 Cal. LEXIS 302 (Jan. 22, 2024).
Defendant had no standing to contest the search of a cell phone that belonged to somebody else who actually consented to its search. United States v. Edouard, 2023 U.S. Dist. LEXIS 233609 (M.D. Fla. Dec. 21, 2023),* adopted, 2024 U.S. Dist. LEXIS 10163 (M.D.Fla. Jan. 20, 2023).*
Nexus and probable cause was shown for a warrant for defendant’s hotel room based on the officer’s suspicion he was already involved in drugs and then receiving shipment of three boxes there. Defendant had three drug priors, and a drug dog alerted at the door to his hotel room. United States v. Ramirez, 2023 U.S. Dist. LEXIS 233567 (D. Minn. Nov. 28, 2023).*
Posted inExclusionary rule, Nexus, Overbreadth, Standing|Comments Off on Cal.: Partial overbreadth can lead to suppression in egregious cases with flagrant constitutional violations, but this isn’t one
Plaintiff, a diabetic, had a car wreck while in a low blood sugar episode. From the court’s opinion, it’s clear the officers had no idea what they were doing when they handcuffed and Tased her for no apparent reason, then crammed her into a police car, so no qualified immunity. McClain v. Cty. of Sebastian, 2024 U.S. Dist. LEXIS 10328 (W.D. Ark. Jan. 19, 2024).*
There was reasonable suspicion for detaining the package sent to defendant. United States v. Curtis, 2024 U.S. Dist. LEXIS 10330 (W.D. Tenn. Jan. 19, 2024).*
Alaska State Troopers did not violate the Fourth Amendment by a plain view of the interior of plaintiff’s stopped vehicle through the windows. Blakeley v. Gunderson, 2024 U.S. App. LEXIS 1389 (9th Cir. Jan. 22, 2024).*
Defendant was accused of sexual contact with a four-year-old girl he was caring for. Her mother kicked him out of the house and sought a forensic exam of the child. A couple of days later, she found his cell phone he left behind and looked at the internet search history which was incriminating. The phone was turned over to the police who got a warrant for it. The warrant was overbroad because the only information they had was the search history and a complete search of the phone was sought with no time limitation. Terreros v. State, 2024 Del. LEXIS 20 (Jan. 18, 2024).
U.S. Representative Scott Perry was the target of a search warrant. The press seeks access to the material supporting it. The court orders redaction of parts of the ongoing investigation to not compromise it. In re Penn Live, 2024 U.S. Dist. LEXIS 10663 (M.D. Pa. Jan. 19, 2024).*
Defendant’s 2255 raised admission of jailhouse writings admitted at trial without objection via 404(b). They were mentioned on appeal, but the argument wasn’t raised then. It’s defaulted. Heuser-Whitaker v. United States, 2024 U.S. Dist. LEXIS 10278 (E.D. Va. Jan. 19, 2024).*
Defendant’s Facebook account was accessed by a search warrant issued under CalECPA. The notice provision was not complied with by the state, but the court declines to suppress here. The standard for suppression in CalECPA is the same as for other warrants, and defendant’s notice ultimately came through later disclosures, including criminal discovery. The court’s not saying that it might not suppress in a case better for the defense than this one, but defendant did get some full notice of the search. People v. Campos, 2024 Cal. App. LEXIS 31 (5th Dist. Jan. 22, 2024).
The affidavit for warrant showed probable cause, nexus, and particularity to seize defendant’s electronic devices. A subsequent warrant was required for their search, but defendant consented. In re United States, No. 23-222 (JRT/DLM), 2024 U.S. Dist. LEXIS 10124 (D. Minn. Jan. 18, 2024).*
An anonymous caller said two juveniles with particular dress and backpacks were likely involved in firing a gun at night. When police arrived minutes later, there were only two juveniles matching the description. The stop was with reasonable suspicion. In the Int. of K.B.J., 2024 La. App. LEXIS 142 (La. App. 1st Cir. Jan. 19, 2024).*
The parole search waiver under state law provides for searching one’s domicile. Here there was probable cause to believe defendant was using a hotel room for drug dealing, and he was there for more than a de minimus time. Thus, the waiver applies to the hotel room. United States v. Odom, 2024 U.S. Dist. LEXIS 9967 (E.D. Ark. Jan. 19, 2024).
A host of suspicious facts became reasonable suspicion to continue defendant’s traffic stop, including criminal history, likely addiction, driving alone and nonstop from L.A. to Minnesota but not knowing where. United States v. Mendoza, 2023 U.S. Dist. LEXIS 233498 (D. Neb. Dec. 30, 2023).*
Defendant’s stop for having a temporary tag in the back window that was not obscured was continued without reasonable suspicion and became unreasonable. Motion to suppress granted. United States v. Childs, No. 2:23-cr-108, 2024 U.S. Dist. LEXIS 9995 (S.D. Ohio Jan. 19, 2024).*
Posted inProbation / Parole search|Comments Off on E.D.Ark.: State parole search waiver applies to hotel room used for drug dealing
Boilerplate information in the affidavit for warrant doesn’t matter as long as the critical facts show probable cause, and here they did. There were five facts supporting probable cause. United States v. Morton, 2024 U.S. Dist. LEXIS 7580 (W.D. Ky. Jan. 16, 2024). [I have one now where over 95% of the affidavit is boilerplate.]
In a tenant dispute, one party’s motion to suppress recorded conversations overheard in the adjoining apartment is denied. There is no reasonable expectation of privacy when you talk loud enough to be overhead next door. 71 Wash. Place Owners, Inc. v. Resnicow, 2024 NY Slip Op 30185(U), 2024 N.Y. Misc. LEXIS 258 (N.Y. Co. Jan. 18, 2024).*
Defendant moved to suppress because the time stamps on the photographs from the search showed the search occurred before the warrant was signed. The time stamps were just wrong. The time on the radio recordings showed that officers waited until the warrant was signed to execute it. The court goes with that. United States v. James, 2024 U.S. Dist. LEXIS 10256 (M.D. La. Jan. 19, 2024).*
The government sought forfeiture of the owner’s cash after it was seized at DFW after a dog sniff on his bag. The owner responded with a motion to suppress under Rule 41, but that doesn’t apply in forfeiture cases. Supplemental Rule G(8)(a) does. A knowing or substantial violation of the Fourth Amendment has to be shown. The government claims consent to search, and the owner doesn’t really challenge that, arguing instead lack of a search warrant. There was reasonable suspicion for his stop boarding the airplane. The court finds consent. United States v. $39,900 in U.S. Currency, 2024 U.S. Dist. LEXIS 7496 (N.D. Tex. Jan. 16, 2024).
Defendant’s guilty plea waived his search claim, and thus an ineffective assistance of counsel on the merits of it. United States v. Dunigan, 2024 U.S. Dist. LEXIS 9789 (W.D. Mich. Jan. 19, 2024);* Hernandez v. United States, 2023 U.S. Dist. LEXIS 233462 (N.D. Tex. Dec. 18, 2023),* adopted, 2024 U.S. Dist. LEXIS 9112 (N.D. Tex. Jan. 18, 2024).*
Defendant’s stop was with reasonable suspicion, and a handgun was seen in the pocket of his black bag in plain view, and then a search incident was permissible. United States v. Maxwell, 2024 U.S. Dist. LEXIS 8992 (E.D. Pa. Jan. 17, 2024).*
There were two search warrants for location data and defendant’s cell phone. Without the search warrant materials in the appellate record, there’s nothing to review and the trial court is assumed to be correct. State v. Horse, 2024 S.D. 4, 2024 S.D. LEXIS 11 (Jan. 17, 2024).
The court finds exigent circumstances for the warrantless entry, so consent is moot. United States v. Fineday, 2024 U.S. Dist. LEXIS 9757 (D. Minn. Jan. 19, 2024).*
Omission of one immaterial investigative technique involved in the case prior to the wiretap didn’t make the Title III wiretap invalid. United States v. Mureithi, 2024 U.S. App. LEXIS 1274 (9th Cir. Jan. 19, 2024).*
911 was called about a man passed out in his pickup truck in his driveway at the street. There was no reasonable expectation of privacy against letting in a wired CI under Hoffa. Douglas v. State, 2024 Miss. LEXIS 24 (Jan. 18, 2024).*
The existence of probable cause in this affidavit for warrant was close and included the officers could smell this grow operation from the sidewalk. “ taken as a whole, the statements in the affidavit provided a substantial basis for the magistrate’s determination that probable cause existed for the issuance of a warrant. But even if they did not, the good faith exception to the exclusionary rule precluded suppression of the evidence seized at the Monique Avenue house.” State v. Lopez, 2024 Fla. App. LEXIS 441 (Fla. 2d DCA Jan. 19, 2024).*
Paramedics and police arrived to a call about a man passed out in his pickup in gear. Defendant’s foot on the brake. Paramedics opened the door to put the truck in gear to attend to him. Drugs were in plain view for the police. State v. Adams, 2024-Ohio-174 (2d Dist. Jan. 19, 2024).*
The 1/6 Capitol geofence warrant was issued with probable cause and was specific, limited to those within the Capitol or on the restricted grounds, not just near it. United States v. Easterday, 2024 U.S. Dist. LEXIS 8978 (D.D.C. Jan. 18, 2024).
Defendant’s guilty plea waived all his pretrial issues including that the warrant was allegedly falsified, which was a conclusory allegation anyway. Wilkins v. United States, 2024 U.S. Dist. LEXIS 8990 (E.D. Pa. Jan. 17, 2024).*
Plaintiff was arrested with her husband’s Michigan grow operation where he ultimately had a few plants legal and 25 pounds saved up in the garage. Her denial she knew what was in the garage when its keypad lock had the same code as the house didn’t have to be believed. There was probable cause for her arrest despite the state later dropping the case against her. Fisher v. Jordan, 2024 U.S. App. LEXIS 1166 (6th Cir. Jan. 18, 2024).*
Posted ingeofence, Probable cause, Waiver|Comments Off on D.D.C.: 1/6 geofence warrant was for phones within the crime scene and was reasonable
The question in inventory was whether it was reasonable, not whether it was necessary. Defense counsel wasn’t ineffective for not moving to suppress. McAnnally v. State, 2024 Ga. App. LEXIS 19 (Jan. 18, 2024).
The prolonged retention of defendant’s cell phone for its search did not become an unreasonable search. United States v. Sessions, 2024 U.S. App. LEXIS 1150 (9th Cir. Jan. 18, 2024).
Defendant explicitly consented orally and in writing to the search of his laptop. United States v. Dzionara-Norsen, 2024 U.S. App. LEXIS 1144 (2d Cir. Jan. 18, 2024).*
The wiretap being valid, the subsequent search was, too. United States v. Marin, 2024 U.S. Dist. LEXIS 8855 (E.D. Cal. Jan. 17, 2024).*
Removing defendant on reasonable suspicion from a high crime area to the police station for a show-up and further identification was not unreasonable. It did not become a de facto arrest. United States v. Carter, 2024 U.S. App. LEXIS 1155 (3d Cir. Jan. 18, 2024):
Plaintiff is a County Commissioner arrested by police at a Commission meeting for being disruptive. The arrest was shown to be First Amendment retaliation and without Fourth Amendment probable cause. Plaintiff was never ruled “out of order” by the chair; that was delegated to the police to arrest if they thought so. Frenchko v. Monroe, 2024 U.S. Dist. LEXIS 7313 (N.D. Ohio Jan. 16, 2024):
Posted inArrest or entry on arrest|Comments Off on N.D.Ohio: Arrest of County Commissioner for speaking at public meeting shown 1A retaliation and without PC
"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.
