The certified question related to consent to search was not dispositive to the outcome of the case for purposes of Tenn. R. Crim. P. 37(b)(2)(A). Even if defendant’s consent to search the home was constitutionally invalid and exigent circumstances did not exist, the evidence would have been inevitably discovered. Officers had probable cause to believe that an individual was inside defendant’s home, and the deputies could have obtained and executed a search warrant without defendant’s consent in order to search the home for the individual. Thus, the drug-related evidence would have been inevitably discovered. Since the certified question was not dispositive, the appeal was dismissed. State v. Scott, 2020 Tenn. Crim. App. LEXIS 19 (Jan. 16, 2020).*
Decedent had a knife at his throat and officers fired beanbag rounds at him to get him to drop the knife. Instead he charged them. The use of deadly force was subject to qualified immunity. Estate of Gaona v. City of Santa MariaEstate of Gaona v. City of Santa MariaEstate of Gaona v. City of Santa Maria, 2020 U.S. App. LEXIS 1453 (9th Cir. Jan. 14, 2020).*
In a federal death case, the court adopts the Sixth Circuit’s rejection of a USAO’s taint team handling and reviewing prison phone calls. United States v. Castro, 2020 U.S. Dist. LEXIS 7435 (E.D. Mich. Jan. 16, 2020): Continue reading →
Posted inPrivileges|Comments Off on E.D.Mich.: USAO taint team rejected in federal death penalty case; a master will be appointed
Defendant’s friend was involved in passing counterfeit $20 bills in a casino as viewed on video. They government, however, had no reasonable suspicion that defendant was actually involved in the scheme, so his frisk was unreasonable. Defendant’s frisk was investigatory and not for protection. United States v. Hartsell, 2020 U.S. Dist. LEXIS 7223 (N.D. Ind. Jan. 7, 2020).
The court finds that an illegal search led to calling a drug dog, so the detention and sniff became unreasonable. United States v. Bradley, 2020 U.S. Dist. LEXIS 6876 (W.D. Ky. Jan. 13, 2020).*
The officer’s plain view of marijuana and paraphernalia in defendant’s car was reasonable suspicion for further detention. State v. Nolen, 2020-Ohio-118, 2020 Ohio App. LEXIS 98 (4th Dist. Jan. 8, 2020).*
Posted inReasonable suspicion, Stop and frisk|Comments Off on N.D.Ind.: Def’s frisk was based on guilt by association and wasn’t for safety purposes
A Franks violation can support a § 1983 claim. Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 919 (2017). Carter v. Bryant, 2020 S.C. App. LEXIS 6 (Jan. 15, 2020).
The arresting officers were entitled to qualified immunity on an excessive force claim because once the arrestee had ignored repeated warnings to drop his weapon, so they had ample reason to fear for their safety such that their use of force was reasonable under the circumstances. Ratliff v. Aransas County, 2020 U.S. App. LEXIS 1348 (5th Cir. Jan. 15, 2020).*
The video supported the factual basis for the stop–that the exhaust was too loud. Plain view of drug paraphernalia in the car was reasonable suspicion. United States v. Blandford, 2020 U.S. Dist. LEXIS 6898 (D. Minn. Jan. 15, 2020).*
The Sun (UK): Family sue TSA after man, 79, has $82K life savings he kept in tupperware box seized at airport for ‘no reason’ by Fionnuala O’Leary (“A FAMILY are suing the TSA after an elderly man’s $82K life savings stored in a Tupperware box were seized at a US airport for no apparent reason. Terrence Rolin, 79, from Pennsylvania and his daughter Rebecca Brown are lead plaintiffs in a lawsuit filed this week, after agents confiscated Rolin’s “suspicious” $82,373 in cash.”)
Posted inForfeiture|Comments Off on The Sun / Reason: Family sue TSA after man, 79, has $82K life savings he kept in tupperware box seized at airport for ‘no reason’
Plaintiff was arrested and in handcuffs in a police car for speeding. The officer searched her purse in the car, and all this was post-Gant and no evidence of speeding would be found in the purse. This was beyond mere negligence for state sovereign immunity. Cromartie v. Billings, 2020 Va. LEXIS 2 (Jan. 16, 2020).
“The motion to suppress Garcia-Zarate’s statements on the ground that his arrest violated the Fourth Amendment is denied. The police arrested Garcia-Zarate because three people who looked toward the scene after hearing the gunshot identified him as a possible shooter. The witnesses saw everyone running toward the victim, except for one man who was walking swiftly away. They found this behavior suspicious and reported the man to the police as a possible suspect. Two of the witnesses shared photographs they had taken. Within the hour, the police found a man who was in the right area, who was wearing the same clothing as the man the witnesses had identified, and who otherwise matched their descriptions. The police, without a warrant but acting on ‘the kind of fair probability on which reasonable and prudent people … act,” arrested Garcia-Zarate. Florida v. Harris, …. There was no Fourth Amendment violation.” United States v. Garcia-Zarate, 2019 U.S. Dist. LEXIS 224806 (N.D. Cal. Dec. 23, 2019).* (This is the entire opinion.)
Posted inProbable cause, Search incident|Comments Off on VA: Search of speeder’s purse violated Gant and denied sovereign immunity
There is no constitutional requirement that the search warrant be served on the target of the search, so the missing attachment didn’t matter. “As stated above, the record demonstrates with reasonable certainty that a warrant stating with particularity the items to be seized, in compliance with the Fourth Amendment, existed when entrance was made to conduct the search of Leflore’s residence. Therefore, Leflore fails to demonstrate that the Fourth Amendment argument he now makes is meritorious. And as a consequence, he also fails to establish that his counsel performed deficiently by failing to challenge the search of his residence on the grounds he now presents, or that he was prejudiced by his counsel’s failure to do so. Leflore is entitled to no relief on this claim of ineffective assistance of counsel.” Leflore v. United States, 2020 U.S. Dist. LEXIS 7002 (M.D. Ala. Jan. 14, 2020).
“In any event, for reasons discussed below, reasonable jurists would agree that Price failed to show that counsel performed deficiently by failing to challenge the search warrant, because Price has not identified any meritorious claim that counsel could have raised.” Price v. United States, 2020 U.S. App. LEXIS 1416 (6th Cir. Jan. 15, 2020).*
Posted inIneffective assistance, Warrant execution|Comments Off on M.D.Ala.: No constitutional requirement that the SW be served on the target of the search, so the missing attachment didn’t matter
Defendant wasn’t prejudiced by not calling his codefendant wife at the suppression hearing. Her declaration was already before the court, and nothing more could be added. What witnesses to call, even in a suppression hearing, is a Strickland strategic decision. Durante v. United States, 2020 U.S. Dist. LEXIS 6865 (D.N.J. Jan. 13, 2020).
“Both warrants were based on detailed affidavits that clearly described the crimes in question, the places to be searched, and the items to be seized. … Accordingly, the evidence seized as a result of the warrants was admissible under the good faith exception, and we conclude that the district court did not err when it denied Carpenter’s motion to suppress.” [It suggests there was probable cause anyway, but decides on good faith.] United States v. Bursey, 2020 U.S. App. LEXIS 1350 (2d Cir. Jan. 13, 2020).*
PR police were called to a DV situation involving a police officer as a suspect. The officer’s firearm did not factor into the DV complaint, and the argument wasn’t even face-to-face. The mere fact of a gun in the house did not justify an entry without some reasonable suspicion it would be used in a crime of violence. Remanded, however, for a determination of consent. United States v. Rodríguez-Pacheco, 2020 U.S. App. LEXIS 1360 (1st Cir. Jan. 15, 2020): Continue reading →
Posted inEmergency / exigency|Comments Off on CA1: No exigency for warrantless entry on a DV complaint even with a known gun in the house, and unconnected to the complaint
Defendant lost his search issue on appeal. On 2255 he argues that it could have been argued better. [The opinion doesn’t say how.] It he lost on the merits of a Fourth Amendment claim, that’s binding on 2255 for lack of prejudice. CoA denied. Felix v. United States, 2020 U.S. App. LEXIS 1292 (11th Cir. Jan. 14, 2020).*
2254 CoA denied. “Dunham’s claim that counsel was ineffective for failing to file a motion to suppress evidence obtained pursuant to a search warrant does not merit a COA. The state post-conviction court did not unreasonably apply clearly established federal law, or make an unreasonable determination of the facts, by denying this claim, because the claim was conclusory, and the warrant itself shows that it specifically listed items related to the purpose of the warrant involving electronic evidence of child pornography.” Dunham v. Sec’y, Dep’t of Corr., 2020 U.S. App. LEXIS 1297 (11th Cir. Jan. 14, 2020).*
Defendant was observed doing four controlled buys, and he went back to his girlfriend’s house in her car each time. “Defendant contends that the affidavit lacked probable cause because it did not state who owned the Residence, whether Defendant lived at the Residence, or whether Defendant had a long-term connection to the Residence. Such statements are not required for an affidavit supporting a search warrant. The affidavit is not required to have direct evidence linking a crime to a particular place. See Zamudio, 909 F.3d at 175.” United States v. Douglas, 2020 U.S. Dist. LEXIS 6350 (C.D. Ill. Jan. 8, 2020).
Tribal officers are authorized to make arrests of non-Indians on tribal lands for criminal offenses. Duro v. Reina, 495 U.S. 676, 697 (1990). State v. Thompson, 2020 Minn. LEXIS 4 (Jan. 15, 2020).
NYTimes: Does the F.B.I. Need Apple to Hack Into iPhones? By Jack Nicas (“There are tools to crack into the phones at the center of a new dispute over encryption. But the F.BI. says it still needs Apple’s aid.”)
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
"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)
