Even if defendant’s parole search was in aid of a criminal investigation, it was still reasonable. United States v. Barron, 2024 U.S. App. LEXIS 6336 (5th Cir. Mar. 15, 2024).
A warrant after a shooting showed no probable cause for going in the house. The shooting victim was found outside, and a protective sweep saw nothing: no victims, no blood, no weapons. “That Robinson was shot may suggest a crime has occurred, but the lack of information in the affidavit may not be able to support an inference that the shooting took place inside the home, or that evidence related to the shooting would be found in the home. When officers found Robinson, he was already outside his home and when they conducted their protective sweep, they found no evidence of a shooter, blood, or a weapon inside the house. Thus, the fact that Robinson was lying outside his house may be insufficient to support probable cause to search inside the house. Moreover, that a neighbor heard arguing coming from the property cannot, by itself, establish probable cause. Raised voices alone, without more information regarding the words spoken, particularly if there is a question whether the voices came from inside the house, cannot create probable cause to search a home. Lastly, Inv. Johnson’s statement that people who have been charged for narcotics in the past are likely to keep narcotics in their homes does not create probable cause. Such assumptions have been found insufficient for the much lower standard necessary for reasonable suspicion. See United States v. Black, 707 F.3d 531, 540-41 (4th Cir. 2013) (‘Fourth, with respect to the officers’ “Rule of Two” or “one-plus rule,” we would abdicate our judicial role if we took law enforcement-created rules as sufficient to establish reasonable suspicion.’). The Court, therefore, concludes that the allegation that Robinson’s father slammed and locked the door as the officers attempted to secure the residence is material.” United States v. Robinson, 2024 U.S. Dist. LEXIS 46640 (W.D.N.C. Mar. 15, 2024).*
Defendant’s cell phone was linked to the murder by a witness saying that the meet was set up by text messages and more. Banks v. State, 2024 Ind. App. LEXIS 66 (Mar. 15, 2024):
“Second, the type of evidence necessary to prove Plaintiffs’ case differs from Bivens. Bivens required only an inquiry into the actions of arresting officers. Meanwhile, Plaintiffs challenge the propriety of Zellhart’s warrant application and special search procedures, requiring the Court to delve ‘into evidence before numerous decisionmakers,’ including the agents themselves and the magistrate judge. … In this manner, Plaintiffs’ claim requires ‘fact-checking and conscience-probing’ that poses a great ‘risk of intruding on the investigatory and prosecutorial functions of the executive branch.’ [¶] For these reasons, the Court concludes that Plaintiffs’ claim presents meaningful differences from the claim in Bivens, and thus presents a new context for the doctrine. The Court next determines whether special factors counsel hesitation in creating a new Bivens claim.” Pearsons v. United States, 2024 U.S. Dist. LEXIS 46514 (C.D. Cal. Mar. 14, 2024).
Plaintiff stated a claim for relief that he was the wrong man arrested. Spriestersbach v. Hawaii, 2024 U.S. Dist. LEXIS 45948 (D. Haw. Mar. 15, 2024).*
“The fact that the officer did not believe that he had probable cause to stop defendant until defendant committed a Vehicle and Traffic Law violation is of no moment. ‘Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis’ (Whren v United States, 517 US 806, 813 [1996]; ….” People v. Williams, 2024 NY Slip Op 01389 (4th Dept. Mar. 15, 2024).*
Posted in§ 1983 / Bivens, Arrest or entry on arrest, Pretext|Comments Off on C.D.Cal.: Inquiry into actions of others besides the officers involved in search is a new Bivens claim and barred
The CI had “extensive knowledge of street gangs, firearms, and narcotics distribution,” and he’d been providing information for three months. The officers corroborated what they could. What little omissions there were in the affidavit weren’t material to the finding of probable cause. United States v. Cage, 2024 U.S. Dist. LEXIS 45847 (D. Minn. Mar. 15, 2024).*
Plaintiff’s unlawful detention suit loses to summary judgment because he didn’t respond to requests for admissions. “Because the undisputed facts establish that Lt. Bernklau did not fabricate evidence that would result in Conant’s unlawful pretrial detention, Lt. Bernklau is entitled to summary judgment on Conant’s claim.” Conant v. Bernklau, 2024 U.S. Dist. LEXIS 45892 (E.D. Wis. Mar. 14, 2024).*
No claim under Fourth Amendment, ADA, Title VII, or due process clause. Time barred; wrong venue. Emrit v. Grammy Awards on CBS, 2024 U.S. Dist. LEXIS 46489 (D. Wyo. Feb. 9, 2024).* [Why is this case still going on?]
Stopping defendant a few blocks from his home when police were there executing a drug search warrant was for officer safety and reasonable. State v. Harrell, 2024-Ohio-981, 2024 Ohio App. LEXIS 918 (2d Dist. Mar. 15, 2024). [I remember a time when officers timed the raid to get the offender at home. And they did this even after officers and civilians dying. See, e.g., Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997).]
Defendant’s post-guilty plea motion to reconsider denial of his suppression motion is denied as mooted by the plea. United States v. Wilburn, 2024 U.S. Dist. LEXIS 46455 (E.D.N.Y. Mar. 15, 2024).*
Defendant’s parole search waiver condition was based on Maine law that ruined the least restrictive means. The search was valid. United States v. Gerrish, 2024 U.S. App. LEXIS 6275 (1st Cir. Mar. 15, 2024).*
“We conclude that the ‘special needs’ doctrine of the Fourth Amendment permits, when sufficiently supported by the record, the imposition of a special condition of supervised release that allows the probation officer to conduct a suspicionless search of the defendant’s person, property, vehicle, place of residence, or any other property under his or her control. However, the district court exceeded its discretion in imposing that special condition here because it failed to make the individualized assessment required to support the special condition under 18 U.S.C. § 3583(d), including a sufficient explanation as to how the condition is reasonably related in this particular case to the applicable statutory factors under 18 U.S.C. § 3553(a) and involves no greater deprivation of liberty than is reasonably necessary under those factors.” United States v. Oliveras, 2024 U.S. App. LEXIS 6226 (2d Cir. Mar. 15, 2024).
Around midnight, two officers in a cruiser saw Albert Jackson alone in a parked car. They pulled alongside, close enough so Jackson would have to squeeze to get out. One officer went to Jackson’s side of the car, while the other walked to Jackson’s passenger side. Both shined flashlights on Jackson. By boxing in and surrounding Jackson, the officers’ actions meant a reasonable person in his position would not feel free to leave. [¶] The officers explained why they took these steps. Jackson was wearing a ‘big bulky jacket’ on a ‘hot’ and ‘humid’ night. He ‘was seated kind of awkwardly in the driver’s seat.’ And when they approached in the dark and shined flashlights on him, he looked ‘uncomfortable and kind of nervous,’ ‘like he was surprised to see us.’ [Well, yeah.] The officers’ stated observations did not suggest criminal activity might be afoot. Jackson’s detention violated the Fourth Amendment.” People v. Jackson, 2024 Cal. App. LEXIS 185 (2d Dist. Mar. 15, 2024).*
Release pending appeal denied. “Fourth, Ballenger has not shown that her arguments regarding the sealing of documents obtained under the search warrant for her Facebook account present a substantial question as to, or had any material impact on, the validity of her conviction under § 5104(e)(2)(D).” And it was one of four counts. United States v. Ballenger, 2024 U.S. App. LEXIS 6288 (D.C. Cir. Mar. 15, 2024).*
Shooting plaintiff with a less than lethal round during a domestic disturbance hostage situation was reasonable. Plaintiff had locked himself in a bathroom and was ready to fight. Ochoa v. Cty. of Kern, 2024 U.S. App. LEXIS 6235 (9th Cir. Mar. 15, 2024).* (Considering the lethality of many domestic situations, he’s lucky.)
There was no reasonable expectation of privacy in a parking lot where defendant threw a gun in flight from police. They gave chase to a vehicle the subject of a BOLO for a police shooting. (Defendant was cleared of any role in the shooting.) United States v. Brooks, 2024 U.S. Dist. LEXIS 45765 (D. Md. Mar. 14, 2024).*
Posted inAbandonment, Excessive force, Warrant papers|Comments Off on D.C.Cir.: The sealing of SW for def’s Facebook account has no bearing on reversibility of the conviction; release pending appeal denied
Police had a search warrant for marijuana. “[E]ven if the seizure of the firearms, ammunition, and body armor is not within the scope of the warrant, we agree with the State that law enforcement was authorized to seize these items under the plain-view doctrine.” Kennedy v. State, 2024 Ga. App. LEXIS 138 (Mar. 15, 2024).*
In one stop, defendant was stopped for four traffic offenses in a rental car not rented to him. “During the course of the stop, the troopers observed totes and boxes of electronics stacked from floor to ceiling inside the vehicle. When the troopers asked Campbell about the electronics, he denied any knowledge about them and told the troopers to speak to his uncle, whom he identified as Ferguson.” A new license plate was found in the rental car, too. The decision to tow and inventory the car was within the inventory policy and was reasonable. Defendant was convicted in a conspiracy to transport stolen Walmart goods across state lines. United States v. Ferguson, 2024 U.S. App. LEXIS 6196 (6th Cir. Mar. 13, 2024).*
The state’s possession of a cell phone doesn’t give it the authority to search it without a warrant. And, the amount of time it takes to search it depends on the case (password protected; TMI). People v. Banks, 2024 NY Slip Op 24077 (N.Y. Co. Mar. 14, 2024).*
A no bail bench warrant for FTA wasn’t unreasonable because a probable cause determination was made within 48 hours. State v. Clare, 2024 Wash. App. LEXIS 462 (Mar. 12, 2024).
Defendant’s search incident occurred before the arrest. To be lawful, there had to be probable cause and the arrest occur shortly thereafter. The suppression order isn’t clear on this, but the trial testimony supports the trial court’s conclusion. The trial testimony could be considered to support the search. State v. Martin, 2024 Kan. LEXIS 33 (Mar. 15, 2024).*
Defendant’s appeal of denial of a motion for summary judgment on qualified immunity was dismissed because there are fact questions for trial. Jok v. City of Burlington, 2024 U.S. App. LEXIS 6229 (2d Cir. Mar. 15, 2024).*
Shooting at a suspect and hitting an innocent bystander is a Fourth Amendment seizure under Brower and Torres, but it gets qualified immunity. Larocca v. City of L.A., 2024 U.S. Dist. LEXIS 45650 (C.D. Cal. Mar. 14, 2024):
The affidavit for warrant was supposed to incorporate by attaching other stuff. The officer swore to it, but the stuff wasn’t there. The good faith exception is denied because it remained bare bones. United States v. Medina, 2024 U.S. Dist. LEXIS 45414 (D.R.I. Mar. 12, 2024).
There was a substantial basis for concluding defendant possessed a concealed firearm while he was a fugitive. The question is not whether there actually was probable cause; instead it’s whether there’s a basis for concluding that there was. United States v. Smith, 2024 U.S. Dist. LEXIS 45419 (W.D. Pa. Mar. 14, 2024).*
“Feathers also alleges that he ‘suffered from discriminatory and unlawful treatment in violation of the Takings, Due Process, and Equal Protection Clauses of the United States Constitution and Bill of Rights.’ Dkt. 1 ¶ 11; see also id. (‘Plaintiff’s claim is governed by the Fourth, Fifth, and other possible Amendments to the United States Constitution and the Bill of Rights which may be applicable’). There are no facts to establish any plausible constitutional violation under this open-ended laundry list of constitutional provisions.” Feathers v. United States SEC, 2024 U.S. Dist. LEXIS 45470 (N.D. Cal. Mar. 14, 2024).*
“Plaintiff grounds his Bivens cause of action in an allegation that Garay, a CBP officer, violated his Fourth Amendment rights by procuring his indictment based on supposedly intentional false testimony in which Garay stated that Plaintiff knowingly possessed and transported false documents. In evaluating Plaintiff’s claim, the Court applies the two-step analytical process as articulated in Ziglar and re-stated in Egbert.” This is a new Bivens context and the case is dismissed. Sánchez-Jiménez v. United States, 2024 U.S. Dist. LEXIS 44744 (D.P.R. Mar. 6, 2024).
A common 2255 ground rejected: “As set forth in detail above, Williams has implied but failed to demonstrate that his guilty plea was improperly induced, involuntary, or unintelligently given. Williams does not allege in his motion or supporting brief that his counsel’s withdrawal of the suppression motion and alleged failure to investigate the confidential informant rendered his guilty plea unknowing or involuntary. Thus, Williams’ claims of ineffective assistance of counsel based on his attorney’s alleged failure to conduct an adequate pretrial investigation and withdrawal of the suppression motion are waived.” Williams v. United States, 2024 U.S. Dist. LEXIS 45303 (S.D. Ala. Feb. 15, 2024).*
Fleeing on foot from a vehicle is a loss of any reasonable expectation of privacy in it. United States v. Holmes, 2024 U.S. App. LEXIS 6085 (8th Cir. Mar. 14, 2024).*
Posted in§ 1983 / Bivens, Abandonment, Waiver|Comments Off on D.P.R.: Alleged false GJ testimony as an alleged 4A violation rejected as new Bivens ground
Plaintiff was strip searched when civilly committed when she refused to permit a pat search. “Considering all the circumstances described in Plaintiff’s Complaint, the search Plaintiff underwent, though surely unpleasant, was not unreasonable. “But even if the Court concluded the search was unreasonable–that the search violated the Fourth Amendment–Plaintiff’s Fourth Amendment claim still would be subject to dismissal because Defendants are entitled to qualified immunity on the claim.” McSean v. Chamberlain, 2024 U.S. Dist. LEXIS 45018 (E.D. Mo. Mar. 1, 2024).
Pro se plaintiff’s complaint about the town seizing his intellectual property fails on appeal for failure to properly address it. Even so, it appears there was no reasonable expectation of privacy in how he handed it over. Regalado v. Town of Trion, 2024 U.S. App. LEXIS 6148 (11th Cir. Mar. 14, 2024).*
Plaintiff doesn’t show that warrantless interviews of her children at school violated the Fourth Amendment. State statute permits this. May v. Dorchester Sch. Dist. Two, 2024 S.C. App. LEXIS 22 (Mar. 13, 2024).*
Defendant claimed that his place was warrantlessly searched before the search warrant for it was issued. Doesn’t matter: The affidavit for the warrant shows probable cause and never mentions a prior search. State v. Quinn, 2024 Tenn. Crim. App. LEXIS 113 (Mar. 13, 2024).
Defendant is a doctor who arranged a hit on the dark web that British authorities alerted the FBI to. His Fourth Amendment claim in his 2255 is barred. United States v. Ilg, 2024 U.S. Dist. LEXIS 44751 (E.D. Wash. Mar. 13, 2024).*
“Based on our in camera review of the unredacted search warrant application and the minutes of the examination of the confidential informant by the issuing court, we find that there was probable cause to issue the warrant ….” People v. Coleman, 2024 NY Slip Op 01350, 2024 N.Y. App. Div. LEXIS 1351 (1st Dept. Mar. 14, 2024).*
The Appeal: Forty-Six States Paid for Violent, Racist Police Training. We Should Ban Pretextual Stops Instead. by Shirley LaVarco (“For decades, we’ve been told police officers just need training and resources to do their jobs correctly. These items, including cultural sensitivity training, implicit bias training, de-escalation training, and so on, cost billions every year. But we know from the senseless killings of Tyre Nichols, Sandra Bland, Philando Castile, and many others that no amount of training or resources will stop police from killing Black and brown people. Nor will it ensure that police treat people with dignity and respect. Worse still, the ‘training’ that cops already receive often glorifies violence, reinforces racist ideas, and is taught by officers with histories of misconduct.”)
Posted inPretext|Comments Off on The Appeal: Forty-Six States Paid for Violent, Racist Police Training. We Should Ban Pretextual Stops Instead.
Defendant met his Franks burden and showed a false statement in the affidavit for search warrant that was material to the probable cause finding. The statement was from the chief to the affiant. Finally, there is no good faith exception for a Franks violation. United States v. Norton, 2024 U.S. Dist. LEXIS 44720 (D.N.M. Mar. 12, 2024).
The use of the word “certainty” in an affidavit for search warrant that was somewhat overstated is not a Franks violation. United States v. Clanton, 2024 U.S. Dist. LEXIS 43518 (E.D.N.Y. Mar. 12, 2024).
Suppression order affirmed. There simply were no facts showing probable cause for this search warrant. State v. Garcia, 2024 Tex. App. LEXIS 1813 (Tex. App. – Dallas Mar. 13, 2024).*
Probable cause was developed on the streets for search of defendant’s car for drug evidence when officers saw him take money, return to the car, get something small, and return to the payor, twice. Removing the car to a different location for obtaining and executing a search warrant for it was reasonable. Suppression order reversed. Commonwealth v. Floyd, 2024 PA Super 44, 2024 Pa. Super. LEXIS 87 (Mar. 13, 2024).
Defendant’s comments and nervous movements justified the officer in conducting a patdown. Brummett v. State, 2024 Ind. App. LEXIS 61 (Mar. 12, 2024).*
A replevin action for return of property resulted in summary judgment for the state. Reversed; the summary judgment procedure wasn’t complied with. Laramore v. Jacobsen, 2024 Mo. App. LEXIS 156 (Mar. 12, 2024).*
Plaintiff inmate “cannot state a claim for a violation of prison policy because prison policy directives are insufficient to create a liberty interest under the Fourth Amendment. See Olim v. Wakinekona, 461 U.S. 238, 250-51 (1983); ….” IFP motion denied. Pann v. Hadden, 2024 U.S. App. LEXIS 5832 (6th Cir. Mar. 11, 2024).
Habeas petitioner’s direct Fourth Amendment attack on his conviction is barred by Stone. Sutton v. Royce, 2024 U.S. Dist. LEXIS 43483 (E.D.N.Y. Mar. 12, 2024).* (Stone was decided in 1976, nearly 50 years ago, and this still comes up nearly everyday.)
The officers’ subjective intent about the arrest are irrelevant when there is probable cause. Marriott v. Persing, 2024 U.S. App. LEXIS 5964 (6th Cir. Mar. 11, 2024).*
Posted inIssue preclusion, Reasonableness|Comments Off on CA6: The state’s violation of a prison policy doesn’t make a 4A claim
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
"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
"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)