Mandamus to get search warrant materials from 1998 denied: “Insua’s instant petition is lacking because it does not conform to Montana statutes. He has not filed a verified petition or included an affidavit, pursuant to § 27-26-201, MCA. Insua has not served the District Court against whom the writ is directed. Section 27-26-205, MCA. Moreover, his petition is not appropriate for mandamus. Insua has not demonstrated that he is entitled to the performance of a clear legal duty in his request for a search warrant.” Insua v. Twenty-First Judicial Dist. Court, 2020 Mont. LEXIS 526 (Feb. 18, 2020).
The court credits that one of the officers reasonably believed defendant was armed and he delayed the frisk slightly for safety reasons. The officer used code language to other officer so he’d know, too. The stop was valid and the frisk was with reasonable suspicion. United States v. Churchill, 2020 U.S. Dist. LEXIS 27835 (N.D. Ill. Feb. 19, 2020).*
Posted inReasonable suspicion, Warrant requirement|Comments Off on MT: Mandamus to get SW materials from 1998 denied for complete failure to comply with mandamus statute
“Just as numerous courts have stated nervousness cannot be a reliable indicator of criminal activity, loudly asserting one’s right to terminate an encounter with officers does not provide reasonable suspicion for continued investigation of suspected criminal activity.” United States v. Arrington, 2020 U.S. Dist. LEXIS 27765 (E.D. Mich. Feb. 19, 2020): Continue reading →
Posted inReasonable suspicion|Comments Off on E.D.Mich.: The person stopped telling police he knows his rights isn’t RS; his flight from an unreasonable stop wasn’t RS either
“Mr. Lynn does not raise a non-frivolous issue for appeal. Below, the District Court granted summary judgment to the defendant officers because it concluded Mr. Lynn’s Fourth Amendment claims were barred by the Rooker-Feldman doctrine. … [¶] The District Court rightly concluded that Mr. Lynn’s Fourth Amendment claims are inextricably intertwined with the state court judgment in his criminal case. After his arrest by the defendant officers, Mr. Lynn was tried and convicted of various drug offenses and a firearms offense in state court. Before trial, Mr. Lynn sought to suppress the fruits of the search of his hotel room and the recording of his phone call. The trial court denied this motion and overruled Mr. Lynn’s later objections to the evidence on the grounds that the search was illegal. Thus, ‘[b]ecause the state court did squarely adjudicate the issue of the lawfulness of the search, [Mr. Lynn’s] section 1983 suit is nothing but a prohibited appeal of the state-court judgment.’ See Datz, 51 F.3d at 254. For these reasons, there is no non-frivolous argument that the District Court could have entertained Mr. Lynn’s § 1983 claims.” Lynn v. Quinn, 2020 U.S. App. LEXIS 5038 (11th Cir. Feb. 18, 2020).
Posted inAbstention|Comments Off on CA11: § 1983 case can’t be used as substitute for state court appeal of a 4A claim
The tracking warrant issue date was mistaken. The court finds it was the latter of two dates, and the tracking occurred for only five days, within the requirements of Rule 41(e)(2)(C). Whether the tracking warrant complied with state law is irrelevant in federal court. United States v. Isget, 2020 U.S. Dist. LEXIS 27394 (D. Mont. Feb. 18, 2020).
2255 petitioner’s IAC search claim fails: “even if counsel had made the additional arguments proffered by Petitioner, the motion to suppress would still have been denied.” Pierce v. United States, 2020 U.S. Dist. LEXIS 27203 (D.S.C. Feb. 18, 2020).*
A shooting occurred in a Taco Bell parking lot, apparently a drug deal gone bad. Three cell phones were found in the car. The police searched them without a warrant and one was defendants. The state argued abandonment (which it clearly was, leaving a cell phone at a crime scene in flight), and also reasonableness because the search was limited to finding the identity of the owner. The court goes with the latter. State v. Moore, 2020 S.C. LEXIS 14 (Feb. 19, 2020): Continue reading →
Posted inAbandonment, Cell phones, Reasonableness|Comments Off on SC: Search of cell phone abandoned at crime scene was reasonable since just to determine ownership
Appeal.org: Commentary: The Enduring Trauma of Stop-and-Frisk by Jamal Trulove (“As a Black child in San Francisco, I learned early that mine and others’ bodies meant nothing to those supposedly tasked with our protection.”)
There is no Fourth Amendment reasonable expectation of privacy in VA medical records, vis-a-vis another government agency. United States v. Grant, 2020 U.S. Dist. LEXIS 27270 (N.D. Cal. Feb. 18, 2020): Continue reading →
“Modern cell phones are unique devices, capable of storing vast amounts of personal data. To guard against governmental invasion of this information, the Fourth Amendment to the United States Constitution generally requires explicit authorization to search a cell phone through a court-issued warrant. Like other warrants, a cell phone warrant must be based on probable cause of criminal activity and must limit the scope of the cell phone search to the probable cause determination. Because the cell phone search at issue in this case did not comport with these criteria, we reverse.” State v. Fairley, 2020 Wash. App. LEXIS 355 (Feb. 18, 2020).
The state search warrant was for “any and all electronic data processing and storage devices.” While the warrant did not include cell phones, a smartphone is internet capable and has vast storage. Therefore, it reasonably included defendant’s smartphone. In addition, the good faith exception applies. United States v. Pospisil, 2020 U.S. Dist. LEXIS 27075 (E.D. Mo. Feb. 18, 2020).
Posted inCell phones, Scope of search|Comments Off on WA: Cell phone search must be strictly limited to the PC that authorized it
The USMJ determined that defendant made his burden of showing material falsity in the boilerplate information in the affidavit for search warrant and granted a Franks hearing. In a really long opinion, the USDJ agrees with the falsity but finds it wasn’t material to the probable cause showing and overrules the R&R. United States v. Cloyd, 2020 U.S. Dist. LEXIS 26962 (E.D. Wis. Feb. 18, 2020) (one can’t help but think that maybe the hearing would have been easier in the long run): Continue reading →
Posted inFranks doctrine|Comments Off on E.D.Wis.: There were false statements in the boilerplate, but they weren’t material
Posted in§ 1983 / Bivens, Arrest or entry on arrest|Comments Off on The Mercury News: Caltrans settles claims of unconstitutional homeless ‘sweeps’ for $5.5 million
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)
