“But statements about a deer-in-the-headlights facial expression are commonplace in caselaw assessing whether a police officer has articulable, reasonable suspicion to justify a stop under the Fourth Amendment. There are over a dozen federal appellate decisions, including an opinion from the Eighth Circuit, where this phrase is cited as a factor that supports the constitutionality of a stop or search. See, e.g., United States v. Orth, 873 F.3d 349, 352 (1st Cir. 2017); United States v. Hall, 193 Fed. Appx. 125, 127 (3d Cir. 2006); United States v. Mays, 643 F.3d 537, 542 (6th Cir. 2011); United States v. Patton, 705 F.3d 734, 739 (7th Cir. 2013); United States v. Hill, 1 Fed. Appx. 606, 608 (8th Cir. 2001); United States v. Jensen, 41 Fed. Appx. 346, 350 (10th Cir. 2002); United States v. Jones, 562 F.3d 768, 772 (6th Cir. 2008).” In re Short Call Substitute Teaching License in re Yanez, 2022 Minn. App. LEXIS 150 (Nov. 28, 2022).*
“We agree with the district court that Glasgow seized Dixon for Fourth Amendment purposes when he told Dixon and Montgomery to ‘hold up’ and go back inside the house for questioning because the record is clear they were not free to leave.” There was no probable cause on plaintiff’s version of the facts, so no qualified immunity. Dixon v. City of Birmingham, 2022 U.S. App. LEXIS 32680 (11th Cir. Nov. 28, 2022).*
Officers grabbed at defendant in a raid of an “illegal speakeasy,” and he abandoned a gun. It was not yet an arrest. United States v. Burgess, 2022 U.S. Dist. LEXIS 213300 (E.D. Pa. Nov. 28, 2022).*
“Ruiz argues that, because Carozzi lacked the statutory authority to arrest him outside the park, the arrest violated his Fourth Amendment rights, and therefore all evidence collected subsequent to his arrest (i.e., the breathalyzer results) must be suppressed. In the alternative, Ruiz argues that the court should exercise its supervisory power and suppress the evidence to disincentivize park rangers from making arrests beyond the park’s boundaries in the future. Neither of these arguments is availing, as described below.” Virginia v. Moore. United States v. Ruiz, 2022 U.S. Dist. LEXIS 213110 (D. Mass. Nov. 25, 2022).
Defendant’s motion to suppress is denied as to probable cause for the search. A hearing will be set on whether a protective sweep was reasonable. United States v. Delira, 2022 U.S. Dist. LEXIS 212944 (D. Neb. Nov. 8, 2022).*
“Mincy claims the search of his drawstring bag violated his Fourth Amendment rights. This is a close case. The government concedes it did not have a warrant to search that closed bag, but relies on two exceptions to the warrant requirement: a search-incident-to-arrest and an inventory search. As described below, the Court finds that the evidence supports the former exception, if barely. And thus, the Court need not consider the latter.” United States v. Mincy, 2022 U.S. Dist. LEXIS 213007 (S.D. Ohio Nov. 23, 2022).*
Reason: The Federal Government’s Plan to Track Truckers’ Every Movement Is a Privacy Nightmare by Jared McCain (“This surveillance would be unconstitutional—and there’s no reason to believe it will make anyone safer.”) Would it be? NYC’s taxicabs lost this battle a while ago. Uber and Lyft track all their drivers. All cities with GPS on police cars track police cars. Is the only difference it’s only during work hours?
Posted inGPS / Tracking Data|Comments Off on Reason: The Federal Government’s Plan to Track Truckers’ Every Movement Is a Privacy Nightmare
There is probable cause to believe that there’s evidence of the crime in a stolen car. “It follows on this record that at a minimum there was also probable cause to believe that evidence of those suspected crimes (either car theft or knowing possession of a stolen car) would be located in the car. As the government points out, it stands to reason that there was a fair probability that evidence relevant to who owned the car and how Defendant came to be in possession of it would be found in the car itself.” (There is also the question of lack of standing in a stolen car not needed to be decided.) United States v. Allen, 2022 U.S. Dist. LEXIS 212839 (N.D. Cal. Nov. 23, 2022).
Defendant’s consensual encounter escalated into an investigative detention. The court of appeals found it was not, and that court is reversed. The question of reasonable suspicion for the detention has not been decided, so remanded for that. Monjaras v. State, 2022 Tex. Crim. App. LEXIS 831 (Nov. 23, 2022) (5-4).*
“Viewed as a whole, the affidavit supporting the search warrant provided probable cause to authorize the search of Shostak’s car. First, officers independently corroborated much of the information given by the informant. The informant told officers that Shostak was selling drugs, driving a black Jaguar car, and known to frequent two addresses in Helena, Montana. Officers then established Shostak’s presence at one of the addresses and linked him with a black Jaguar car found at the address. Officers also confirmed with the registered owner of the Jaguar that he had recently sold the car to Shostak. Second, the information from the informant made up only a fraction of the details conveyed in the affidavit. …” United States v. Shostak, 2022 U.S. App. LEXIS 32432 (9th Cir. Nov. 23, 2022).*
Posted inInformant hearsay, Probable cause|Comments Off on N.D.Cal.: There’s almost always PC in the contents of a stolen car, such as something of owner’s
Based on the totality of circumstances, officers finally had good reason to believe defendant resided in the dwelling he was found in, and the arrest warrant alone was enough to justify entry. United States v. Ulrich, 2022 U.S. Dist. LEXIS 212966 (D.S.D. Nov. 22, 2022), R&R 2022 U.S. Dist. LEXIS 213075 (D.S.D. Oct. 5, 2022).
Defendant is accused of unemployment fraud during Covid. The request for records is not stale because the scheme was still ongoing and continuous. United States v. Njokem, 2022 U.S. Dist. LEXIS 212463 (D. Md. Nov. 22, 2022).*
2254 petitioner challenged the telephonic warrant in his case in the state court and lost. His habeas is essentially a relitigation and barred by Stone. Koons v. Shinn, 2022 U.S. Dist. LEXIS 212603 (D. Ariz. Nov. 22, 2022).*
The search of defendant’s house was justified as a parole search, protective sweep, and then with a search warrant. United States v. Fortson, 2022 U.S. Dist. LEXIS 212799 (N.D. Ohio Nov. 23, 2022)* (and it could have been stated in 1/4 the space).
The juvenile’s consent to a blood draw was without parental notification as required by statute, and it was expressed as a mere formality. The blood draw is suppressed. L.W. v. State, 2022 Ind. App. LEXIS 379 (Nov. 23, 2022).
Defendant’s stop was justified, and the vehicle search was based on probable cause for kidnapping a minor or human trafficking. “The body-cam footage—the authenticity of which Ramirez has not challenged—of the entire interaction is before the court, establishing (1) the reasonableness of the deputies’ actions under a Fourth Amendment totality-of-the-circumstances analysis, and (2) the voluntariness of Ramirez’s on-scene statements under a Fifth Amendment due process analysis.” United States v. Monjaraz, 2022 U.S. Dist. LEXIS 212487 (W.D. Va. Nov. 23, 2022).*
The stop was based on no seatbelt, as shown in the dashcam video. When the officer got up to the car, there was a strong smell of marijuana, and that gave probable cause. United States v. Frost, 2022 U.S. Dist. LEXIS 212235 (N.D. Okla. Nov. 23, 2022).*
Plaintiff was arrested for disorderly conduct for disrupting a public meeting after repeatedly being told to shut up. His claim that his ejection from the meeting and then the arrest violated Robert’s Rules of Order isn’t a constitutional claim. Burton v. City of Detroit, 2022 U.S. App. LEXIS 32566 (6th Cir. Nov. 23, 2022).
Jail calls are recorded, except to attorneys. People in jail have no reasonable expectation of privacy in recorded nonlegal calls. People v. Quinn, 2022 NY Slip Op 06651, 2022 N.Y. App. Div. LEXIS 6517 (3d Dept. Nov. 23, 2022).*
A receivership is imposed on a debt relief company. The receiver is directed not to voluntarily provide documents to law enforcement or prosecutors but shall if justification for legal process or a warrant is shown to this court. FTC v. Acro Servs. LLC, 2022 U.S. Dist. LEXIS 212426 n.5 (M.D. Tenn. Nov. 21, 2022).*
Posted inPrison and jail searches, Reasonableness|Comments Off on CA6: Violation of Robert’s Rules of Order prior to ptf’s arrest not a constitutional violation
The failure to actually ask the affiant officer “do you swear to tell the truth” isn’t constitutionally required for a search warrant affidavit. The officer need only understand that he or she was swearing to the truth of the contents. State v. Moeser, 2022 WI 76, 2022 Wisc. LEXIS 100 (Nov. 23, 2022):
The officers here were not in continuous hot pursuit when they entered defendant’s fenced-in backyard, his curtilage. They went there on a call, and they weren’t following. Entry suppressed. State v. Wilson, 2022 WI 77, 2022 Wisc. LEXIS 99 (Nov. 23, 2022):
Reason: What’s the Original Public Meaning of “Searches” in the 4th Amendment? by Orin Kerr (“I recently helped put together a panel, that you can watch below, on an important question of Fourth Amendment history and law: What is the original public meaning of ‘searches’ of ‘persons, houses, papers, and effects’ in the Fourth Amendment? And how is the Katz reasonable-expectation-of-privacy test different? I’ve been very interested in this question for a few years now, and wrote my recent article Katz as Originalism about the topic (which was in turn inspired by a few blog posts I wrote here at the Volokh Conspiracy).”
Posted inSearch|Comments Off on Reason: What’s the Original Public Meaning of “Searches” in the 4th Amendment?
With decriminalization, the [normal] smell of marijuana coming from a car is no longer probable cause. Also, defendant was seized when he was directed out of his vehicle and a bunch of law enforcement officers were waiting for him. People v. Armstrong, 2022 Mich. App. LEXIS 6987 (Nov. 22, 2022):
Defendant’s bedroom and bathroom were separate in the dwelling, walled off, but there was no outward appearance that it was an independent living unit: One address, one mailbox, one kitchen, a single-family dwelling on the tax rolls. He went out the side door to do drug deals (allegedly his door) but came back in the front door. One search warrant was all that was required. Once officers got in, another wasn’t necessary. Tyson v. State, 2022 Fla. App. LEXIS 8166 (Fla. 1st DCA Nov. 23, 2022):
Indiana rejects Heien under the state constitution. It is incongruous to justify a stop when the law shouldn’t even allow it. Mercado v. State, 2022 Ind. App. LEXIS 377 (Nov. 23, 2022):
An objection to a BAC test for lack of foundation and improper procedure does not preserve a Fourth Amendment challenge. Petersen v. State, 2022 Mo. LEXIS 226 (Nov. 22, 2022).
The officers made a valid plain view to damage to defendant’s car from the street. Defense counsel wasn’t ineffective for not challenging that. Kinney v. Gray, 2022 U.S. Dist. LEXIS 211540 (N.D. Ohio Oct. 20, 2022),* adopted, 2022 U.S. Dist. LEXIS 210899 (N.D. Ohio, Nov. 21, 2022).*
“[W]e conclude that, contrary to defendant’s contention, the court properly determined that exigent circumstances existed to permit the warrantless entry into defendant’s room. The police observed the stab wounds that the victim sustained and had not accounted for the knife that was used to inflict them, the victim knew defendant as another resident of the rooming house in which they both lived and identified him by his nickname, and defendant’s room was locked from the inside. Thus, in light of all the facts, we agree with the court that ‘there was an urgent need that justifie[d] a warrantless entry’.” People v. Holmes, 2022 NY Slip Op 06598, 2022 N.Y. App. Div. LEXIS 6502 (4th Dept. Nov. 18, 2022).*
In the Lindell cell phone search warrant case, the media seeks access to the affidavit. The government has established that, despite the vast public interest, the affidavit should remain sealed while the investigation progresses. In re Search Warrant, 2022 U.S. Dist. LEXIS 211811 (D. Minn. Nov. 22, 2022).*
When defendant was gotten out of his vehicle after a traffic stop, the officer saw an open half full malt liquor container. That was reasonable suspicion for more. The officer asked for consent to use a drug dog for a sniff which the driver rejected. There was reasonable suspicion at that point anyway. United States v. Moore, 2022 U.S. Dist. LEXIS 210577 (D. Neb. Oct. 24, 2022).*
Reasonable suspicion developed on the totality during the stop. The officer had detailed information from a CI which was corroborated before and during the stop. Defendant was also unusually nervous, the LPN on the car didn’t belong to it, and he couldn’t or wouldn’t name his passenger. United States v. Albriza, 2022 U.S. App. LEXIS 32231 (11th Cir. Nov. 22, 2022).*
“[T]hus, no Fourth Amendment harm is done where the officer asks the occupant of a vehicle questions that are unrelated to his reason for stopping the vehicle while waiting for routine computer checks to be processed.” United States v. Rocha Navarez, 2022 U.S. Dist. LEXIS 211500 (W.D. La. Oct. 12, 2022),* adopted, 2022 U.S. Dist. LEXIS 209731 (W.D. La., Nov. 17, 2022).*
It was not a Fourth Amendment violation to hold defendant for a grand jury indictment when probable cause was found “after a preliminary hearing but the case is dismissed without prejudice due to a defect in the institution of the prosecution, [and] Rule 12(g) permits a court to hold a defendant in custody or continue bail for a specified time that is reasonable under the circumstances.” It was three weeks. Deangelo v. Souza, 2022 Haw. LEXIS 236 (Nov. 17, 2022).
Habeas petitioner seeks to overcome procedural default from his false arrest all the way back in the beginning of the case he was convicted in. That’s specious because the arrest sure wasn’t false. Carter v. Butler, 2022 U.S. Dist. LEXIS 210451 (S.D. Ala. Oct. 21, 2022).*
Defendant learned five days before his state trial from the unsealed search warrant affidavit that someone else was also at the scene of the murder. He can’t show prejudice from the late disclosure because he knew before trial, per the state appellate decision in his case. Johnson v. Kiser, 2022 U.S. Dist. LEXIS 210500 (W.D. Va. Nov. 21, 2022).*
Posted inArrest or entry on arrest|Comments Off on HI: Three weeks detention after finding of PC without another court proceeding wasn’t unreasonable
Plaintiff stated a claim that execution of a search warrant for his property and writings was retaliation for exercise of First Amendment rights. “Here, when the evidence is viewed in the light most favorable to Plaintiff, a reasonable juror could conclude that retaliation was a substantial or motivating factor behind the search. Plaintiff complained of officer misconduct directly to Defendant Ash and in the media, and five days later, he was subject to a search of his person, vehicles, and home. Moreover, Plaintiff alone encountered this type of search despite the undisputed evidence that many other individuals often engaged in the same conduct at the Lime Plant. Finally, Plaintiff has alleged that Defendant Ash was motivated to retaliate against Plaintiff based on his public criticism of Baker County’s handling of the Lime Plant and his complaints about his treatment by the BCSO. This evidence is sufficient for a reasonable juror to conclude that retaliation was a substantial or motivating factor behind the search.” Defendants’ “counter narrative” is for the jury. Nilsson v. Baker Cty., 2022 U.S. Dist. LEXIS 211367 (D. Or. Nov. 21, 2022).*
Habeas petitioner’s Fourth Amendment Franks claim is in a successor petition that doesn’t come close to the standards for successor petition: no new constitutional rule, no new facts. In re Dickey, 2022 U.S. App. LEXIS 32088 (11th Cir. Nov. 21, 2022).*
In this child pornography case, the initial probable cause was downloading it via the Kik app. The warrant included other electronic devices. Defendant’s argument that only smartphones could be searched is rejected. It was logical that images could have been moved to external hard drives. Even so, the good faith exception applies. United States v. Guihama, 2022 CCA LEXIS 672 (A.F. Ct. Crim. App. Nov. 18, 2022) (unpublished).
The state statute on orders to surrender firearms does not violate the Fourth or Fifth Amendments. The state’s argument is rejected that there is no constitutional violation until evidence illegally seized is sought to be used in a criminal case. The state cites no authority at all for this. Citing only Marshall v. Barlow’s, the court notes that all civil Fourth Amendment cases contradict it. State v. Flannery, 2022 Wash. App. LEXIS 2226 (Nov. 22, 2022).
Plaintiff’s husband’s consent to euthanasia of her dog that bit someone did not amount to an unreasonable seizure. Bulfin v. Rainwater, 2022 U.S. Dist. LEXIS 210446 (E.D. Mo. Nov. 21, 2022).*
Gizmodo: ‘Gap’ in App Store Rules Endangers Reproductive Data, Top Law Enforcement Chiefs Say by Dell Cameron (“Attorneys general in nine states and the District of Columbia are urging Apple this week to introduce new App Store requirements designed to safeguard sensitive health data linked to reproductive care. In a letter to Apple CEO Tim Cook, the dozen chief law enforcement officials accused the company of leaving open a ‘gap’ in its data protection policies that, they said, “threatens the privacy and safety of App Store consumers, and runs directly counter to Apple’s publicly expressed commitment to protect user data.’”)
My state isn’t one of them since the AG and AG-Elect are regressive.
Posted inThird Party Doctrine|Comments Off on Gizmodo: ‘Gap’ in App Store Rules Endangers Reproductive Data, [only 9] Top Law Enforcement Chiefs Say
A DEA administrative subpoena to a doctor’s office was overbroad where it sought all patient records for 41 patients. The doctor’s objection is sustained. The subpoena needs to be narrower in scope to match that of the investigation. United States v. Wilson, 2022 U.S. Dist. LEXIS 210318 (D.N.M. Nov. 21, 2022).
Defendant’s acquiring a pill making machine that was moved from place to place wasn’t enough to show probable cause for his house. They had no information at all that defendant made pills at his house. The affidavit was thus so lacking in probable cause that the good faith exception did not apply. United States v. Dauphinais, 2022 U.S. Dist. LEXIS 209876 (E.D. Mich. Nov. 18, 2022).*
“The Magistrate Judge had a substantial basis here for finding probable cause. The search warrant application provided a detailed description of the cooperating witness’s personal experience purchasing methamphetamine at the Home. [citing Gates]” United States v. Laury, 2022 U.S. App. LEXIS 32025 (3d Cir. Nov. 21, 2022).*
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)
