The D.C. District Court upheld a geofence warrant for cell phones located in the Capitol building during the 1/6 insurrection. Surveying all the cases, and there aren’t many, and noting that there is a margin of error as to accuracy of the report that maybe up to a 32% error rate of whether the nearly 1500 cell phones were actually in the Capitol at the time, there was still a “substantial basis” for finding probable cause. Moreover, the warrants were not overbroad and they were particular to time and inside the building itself. Streets were closed and there were no businesses around, so stray cell phones aren’t likely to have been captured. Finally, it is apparent that the good faith exception applies to this geofence warrant. United States v. Rhine, 2023 U.S. Dist. LEXIS 12308 (D.D.C. Jan. 24, 2023).
Even if the warrant was overbroad in permitting seizure of information from 2012, it wasn’t prejudicial where it wasn’t admitted at trial. Therefore, suppression wasn’t an appropriate remedy. United States v. Eller, 2023 U.S. App. LEXIS 1866 (9th Cir. Jan. 25, 2023).* Connected case: United States v. Eller, 2023 U.S. App. LEXIS 1884 (9th Cir. Jan. 25, 2023).*
Posted ingeofence, Good faith exception|Comments Off on D.D.C.: Geofence warrant for cell phones in Capitol building during 1/6 insurrection was valid and relied on in good faith
Even with recreational marijuana, it has to be transported in odor proof containers, and that means the smell of marijuana remains probable cause in Illinois. People v. Hall, 2023 IL App (4th) 220209, 2023 Ill. App. LEXIS 12 (Jan. 25, 2023).
One officer was on a Brady list for suspect testimony before, but, on the whole, the state’s suppression hearing testimony on reasonable suspicion for a stop and detention, evaluated in detail, favors the state. Motion denied. State v. Jackson, 2022 Del. Super. LEXIS 1459 (Dec. 28, 2022).*
Defendant’s disclaiming interest in a cell phone found to contain child porn was abandonment. State v. Copley, 2023 Mo. App. LEXIS 24 (Jan. 24, 2023).*
Officers had probable cause and nexus and showed particularity to defendant’s cell phone. He’d previously been accused of recording undressed women and was involved in an upskirting. Here he’d been accused of sex with drugged women and recording some of it. The fourth warrant for the phone was 21 months after it was seized, and defendant had a reduced privacy interest in it for the duration because, as an inmate, he couldn’t possess it. Harvey v. Commonwealth, 2023 Va. App. LEXIS 34 (Jan. 24, 2023).*
Defense counsel wasn’t ineffective for not filing a motion to suppress against this otherwise reasonable inventory search. United States v. Hensley, 2022 U.S. Dist. LEXIS 236478 (E.D. Ky. Dec. 29, 2022)* (court also assumed deficient performance to go to the second prong; but that’s not necessary).
Defendant wasn’t entitled to a Texas rule 38.23 jury instruction on illegally obtained evidence where the only testimony was that he was reasonably detained. No fact dispute, no instruction. Ford v. State, 2023 Tex. App. LEXIS 398 (Tex. App. — Texarkana Jan. 24, 2023).
Even if a motion to suppress had been pursued and defendant prevailed, suppressed drug weight can be used at sentencing. United States v. Coleman, 2023 U.S. Dist. LEXIS 10826 (S.D. Miss. Jan. 23, 2023).
Pro se plaintiffs fail to state a Fourth Amendment claim against the agency for entry onto real property. [No specification if any was open fields, but it seems like it.] Gonshorowski v. California Nat. Res. Agency, 2023 U.S. Dist. LEXIS 11117 (E.D. Cal. Jan. 23, 2023).*
The search warrant affidavit was precise in explaining the probable cause for believing defendant had drugs in his house based on apparent drug deals happening after defendant left his house to go to a drug deal. That was nexus. United States v. Dear, 2023 U.S. App. LEXIS 1717 (2d Cir. Jan. 24, 2023).*
Posted inExclusionary rule, Nexus, Open fields|Comments Off on S.D.Miss.: Even suppressed drugs can be figured into drug weight for sentencing
A car being hauled west was searched on the car hauler’s truck by consent of the hauler. He had common authority to do that. Moreover, defendant’s standing as to the vehicle was tenuous at best. Registration had expired before the haul, and it wasn’t clear who owned it. United States v. Belton, 2023 U.S. Dist. LEXIS 10883 (N.D. Iowa Jan. 23, 2023).
Some of defendant’s objections to the R&R as to reasonable suspicion are sustained, but he loses on probable cause and suppression not being justified as a deterrent. United States v. Lang, 2023 U.S. Dist. LEXIS 10997 (E.D. Ky. Jan. 23, 2023),* R&R 2022 U.S. Dist. LEXIS 236477 (E.D. Ky. Dec. 19, 2022).*
“Petitioner does not indicate what facts support any Fourth Amendment claim, let alone how counsel was alleged to be deficient in failing to raise such claim. Since this argument is devoid of factual allegations or citations to the record, it is deemed waived.” Barker v. United States, 2023 U.S. Dist. LEXIS 11068 (E.D. Mich. Jan. 5, 2023).*
The border search exception does not apply to searching defendant’s cell phone at Customs for proof of a domestic crime, here mail theft. United States v. Carpenter, 2023 U.S. Dist. LEXIS 11014 (N.D. Ill. Jan. 23, 2023).
The drug dog was already at the scene of the stop and the sniff done by another officer not conducting the stop did not add time to the stop. State v. Crane, 2023-Ohio-188, 2023 Ohio App. LEXIS 163 (5th Dist. Jan. 23, 2023).*
2255 petitioner’s Fourth Amendment ineffectiveness claim fails because he can’t show the underlying claim would prevail. United States v. Hensley, 2023 U.S. Dist. LEXIS 10996 (E.D. Ky. Jan. 23, 2023).*
Posted inDog sniff, Ineffective assistance|Comments Off on N.D.Ill.: Border search exception doesn’t permit cell phone search for proof of a prior domestic crime
An officer smelling marijuana in a car isn’t obliged to tell the motorist he could for it to be true. United States v. Perkins, 2023 U.S. Dist. LEXIS 10564 (M.D. Ga. Jan. 19, 2023).
At worst, the officer’s false statement was negligent if even that. Defendant also can’t show materiality as to the probable cause. United States v. Smith, 2023 U.S. Dist. LEXIS 10463 (E.D. Mich. Jan. 20, 2023).*
In a child neglect case, the parent’s acquiescence in drug test evidence coming in without objection was waiver. People v. Aylissa F. (In re K.F.), 2023 IL App (1st) 220816, 2023 Ill. App. LEXIS 9 (Jan. 23, 2023).*
The district court found that the purported inventory search was really for investigatory purposes, and the evidence supports that conclusion. The inevitable discovery exception also does not apply here. State v. Krall, 2023 ND 8, 2023 N.D. LEXIS 9 (Jan. 20, 2023).
The officer here had a report of shots fired at defendant’s property, and he knew that defendant was a felon who could not possess firearms. The entry onto the curtilage was at least with reasonable suspicion. United States v. Thurman, 2022 U.S. Dist. LEXIS 236144 (E.D. Tenn. Dec. 12, 2022).*
The government said in the original prosecution that would not offer anything from the challenged search into evidence at the trial and it didn’t so the successor 2255 is denied for that reason, too. United States v. Dade, 2023 U.S. Dist. LEXIS 10405 (D. Idaho Jan. 19, 2023).*
Posted inCurtilage, Inventory, Issue preclusion|Comments Off on ND: Trial court’s finding of investigatory purpose for inventory search supported by record
(And I’m tired of cutsy Katz and dogs references.)
Posted inSurveillance technology|Comments Off on ABA: Katz or Dogs? Why the Katz Reasonable Expectation of Privacy Test Is More Applicable to Advancing Technology than a Test Applied to Dog Sniffs
Defendant was arrested 500′ from his car. The car was still subject to the automobile exception because there was enough connection. He still had the keys on him. State v. Griffin, 2023 Conn. App. LEXIS 8 (Jan. 24, 2023):
In a 2255 ineffective assistance claim, “Defendant fails to specify either how his Fourth Amendment rights were violated or what evidence counsel should have sought to suppress.” That alone is enough to deny. It’s denied on the merits, too. United States v. Alberto-Sosa, 2023 U.S. Dist. LEXIS 9855 (E.D. Pa. Jan. 20, 2023).
CI’s information was sufficient that defendant was selling drugs from home, and that’s nexus. State v. Morris, 2023-Ohio-168, 2023 Ohio App. LEXIS 148 (6th Dist. Jan. 20, 2023).*
Defendant was stopped and handcuffed without probable cause or any safety justification. Next came a search of his car, also without probable cause. Suppressed. United States v. Biggs, 2023 U.S. Dist. LEXIS 10070 (M.D. Tenn. Jan. 20, 2023).*
“Contrary to Torres’ arguments, when an individual is suspected of dealing narcotics, probable cause to search his home does not demand a showing that he deals those narcotics at his home. The common-sense likelihood that drug dealers keep evidence of their trade where they reside, combined with Torres’s twice-observed trek from 66 Church Street directly to the meeting point with the CI, was sufficient to establish probable cause.” United States v. Torres, 2023 U.S. App. LEXIS 1425 (3d Cir. Jan. 20, 2023).*
Presence at execution of a warrant of an FBI contractor assisting in forfeitures did not violate 18 U.S.C. § 3105 or the Fourth Amendment. He was there to identify forfeitable things. United States v. Delgado, 2023 U.S. Dist. LEXIS 9696 (N.D. Ill. Jan. 20, 2023).*
Defendant was multiply accused of rubbing against female bus riders on the Bx-12 bus in the Bronx and ejaculating on them. There was probable cause to order him to provide a DNA sample. People v. Fortuna, 2023 NY Slip Op 23013, 2023 N.Y. Misc. LEXIS 131 (Bronx Crim Ct. Jan. 18, 2023).*
Posted inDNA, Nexus, Warrant execution|Comments Off on CA3: Going from home to a drug deal is nexus to the home
Defendants moved to vacate guilty pleas for drug possession after the officers involved were federally indicted for planting drugs on suspects. The trial court denied without a hearing because of the guilty pleas. The CoA reversed and ordered a hearing. Defendants made a sufficient showing of falsity of the officers’ reports. Wilson v. Commonwealth, 2023 Ky. App. Unpub. LEXIS 49 (Jan. 20, 2023)*:
The state could get a jury instruction that defendant refused to submit to a DNA search. State v. Roberts, 2023-Ohio-142, 2023 Ohio App. LEXIS 131 (6th Dist. Jan. 18, 2023).
The facts in isolation may not show reasonable suspicion but they do when combined. United States v. Seguero, 2023 U.S. Dist. LEXIS 9292 (D. Vt. Jan. 19, 2023).*
The officer had more than reasonable suspicion for detaining for a dog sniff; he smelled marijuana so he had probable cause. United States v. Jones, 2022 U.S. Dist. LEXIS 236077 (E.D. Tex. Dec. 23, 2022).*
The claim that the state constitution should recognize a higher privacy interest in automobiles is rejected. State v. Ortega, 2023 N.M. App. LEXIS 2 (Jan. 18, 2023).* [And, even if this was a viable argument, this wasn’t the case for it.]
A firepit in defendant’s yard (an “outdoor living area”) was part of the curtilage. The officer, however, was lawfully on the curtilage for a knock-and-talk. United States v. Thurman, 2023 U.S. Dist. LEXIS 9358 (E.D. Tenn. Jan. 19, 2023).*
Sometimes probable cause is virtually overwhelming, and attacking it isn’t worth the time. “Agent Stewart’s affidavit contains ample, cross-corroborated information regarding Garner and Ortiz’s suspected drug dealing and firearms crimes. That information includes, inter alia, that Garner packaged heroin at 1621 Market Street and maintained a stash house at 606 North 17th Street (two locations affiliated with the … conspiracy), and traveled interstate to ‘pick up,’ …; that Ortiz participated in three controlled sales of heroin, …; that investigators observed Garner engaging in conduct consistent with drug dealing on multiple occasions (two hand-to-hand exchanges, swapping vehicles, and retrieving items stored under a vehicle’s hood), …; that Brown told another associate he had given Garner a cell phone to deal drugs, …; and that Garner had engaged in a ‘consistent and sustained’ pattern of cell phone communication with Brown, Ortiz, and other drug dealers within the … drug-trafficking organization, ….” United States v. Garner, 2023 U.S. Dist. LEXIS 9625 (M.D. Pa. Jan. 19, 2023).*
Defendant had been arrested and handcuffed and officers had weapons drawn, and he hadn’t yet been Mirandized. Still, on the totality, he consented to the search. United States v. Collins, 2023 U.S. App. LEXIS 1257 (2d Cir. Jan. 19, 2023).
Waiting three years after execution of the search warrant on defendant did not prove that he wasn’t a danger to the community for release purposes when he was finally picked up. United States v. Drake, 2023 U.S. Dist. LEXIS 8273 (W.D. Va. Jan. 12, 2023).*
Plaintiff’s arrest on a warrant that did not go behind the probable cause determination made for it states no claim against the arresting officers. King v. Utt, 2023 U.S. App. LEXIS 1317 (4th Cir. Jan. 19, 2023).*
Defendant’s motion to suppress “data” and “associated data” fails because of his failure to show what and where it was or could be. (It kind of becomes a general motion to suppress.) United States v. Smith, 2023 U.S. Dist. LEXIS 8837 (S.D. Ill. Jan. 18, 2023):
To argue that the state’s admissions in a response to a motion to suppress amount to a judicial admission of fact, the issue has to be argued to the trial court to preserve it. Otherwise, the trial court is free to believe which witnesses it chooses. Stapleton v. State, 2023 Ark. App. 7, 2023 Ark. App. LEXIS 4 (Jan. 18, 2023).
Defendant’s stop without reasonable suspicion was unreasonable, and the exclusionary rule applies. People v. Miller, 2023 NY Slip Op 00219, 2023 N.Y. App. Div. LEXIS 221 (2d Dept. Jan. 18, 2023).*
There is no privacy interest in a buccal swab once it is lawfully taken. People v. Fortuna, 2023 NY Slip Op 23013, 2023 N.Y. Misc. LEXIS 131 (Bronx Co. Jan. 18, 2023).*
Admission of the act revealed from defendant’s probation search condition was waiver of the claim the search was unreasonable. Alvarado v. State, 2023 Del. LEXIS 19 (Jan. 17, 2023).*
Officer’s failure to turn on his bodycam before frisk here doesn’t require an adverse inference of destruction of evidence. Bad faith isn’t shown. United States v. Aguirre-Cuenca, 2023 U.S. App. LEXIS 1105 (4th Cir. Jan. 18, 2023).
Defendant’s appeal is frivolous because his § 1983 is clearly barred by Heck. Walker v. Biddinger, 2023 U.S. App. LEXIS 1014 (6th Cir. Jan. 17, 2023).*
The officer’s mistake of law about the ordinance for the traffic stop was objectively reasonable. State v. Mayo, 2023-Ohio-124, 2023 Ohio App. LEXIS 109 (3d Dist. Jan. 17, 2023).*
In court Wednesday, prosecutor Lynn Beland said investigators believe Brian Walshe dismembered his wife and disposed of her remains after using their son’s iPad to Google the best ways to get rid of a body, among other incriminating internet searches.
Posted inComputer and cloud searches|Comments Off on By 2022, one would think that all would know planning a crime with Google searches would be incriminating; but no
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me
“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
"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]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"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)
