“Miranda warnings are required by article I, section 10 of the Constitution of the State of Hawai’i when probable cause to arrest has developed. And in Hewitt’s case, contrary to the ICA’s conclusion, probable cause had developed before she was asked whether she had been driving.” State v. Hewitt, 2023 Haw. LEXIS 68 (Mar. 15, 2023),* overruling abrogation of State v. Ketchum, 97 Hawai’i 107, 34 P.3d 1006 (2001).*
Defendant freely consented to search of his cell phone. United States v. Silvers, 2023 U.S. Dist. LEXIS 43477 (W.D. Ky. Mar. 15, 2023).*
Plaintiff’s Fourth Amendment wasn’t briefed on appeal so it’s waived. Relentless, Inc. v. United States DOC, 2023 U.S. App. LEXIS 6320 n.9 (1st Cir. Mar. 16, 2023).*
Defendant’s freedom under the state constitution to not be interfered with in his private affairs was violated by a stop and inquiry whether he had paid a transit fare. He provided a false name that led to his prosecution for that. State v. Meredith, 2023 Wash. LEXIS 126 (Mar. 16, 2023).*
“[W]e assume without deciding that Wynar violated Chavez’s Fourth Amendment rights by denying her access to her cell phone for one hour and 20 minutes. At the second step of the qualified immunity analysis, however, we conclude that the law regarding the denial of phone access was not clearly established.” Chavez v. Wynar, 2023 U.S. App. LEXIS 6286 (9th Cir. Mar. 16, 2023).*
You can’t do an appeal ineffective assistance challenge on a search warrant without the warrant papers in the appellate record. People v. Jones, 2023 NY Slip Op 01452, 2023 N.Y. App. Div. LEXIS 1452 (4th Dept. Mar. 17, 2023).*
“The totality of the circumstances show that the signed consent-to-search form was not a product of consent, but an acquiescence to a claim of lawful authority.” “As Gaston complied with Davis’s instructions to sit in a chair on the porch, Davis stated, ‘We’ve got—we’re going to be doing a search warrant here.’ After Gaston repeatedly indicated that he was alone in the house, officers entered the home and announced, ‘POLICE DEPARTMENT, SEARCH WARRANT.’ The officers conducted a sweep of the home. Two hours later, Gaston is seen on the porch in handcuffs surrounded by officers, with several officers lingering inside of the home. Gaston was handed a consent-to-search form and informed by police that ‘it will speed up our process.”’ Defense counsel was ineffective for not challenging the alleged consent. State v. Jones, 2023-Ohio-844, 2023 Ohio App. LEXIS 825 (1st Dist. Mar. 17, 2023).
The city was without authority to require landlords to do many things, one of which was to permit warrantless inspections of rental property for code violations. Landlord Serv. Bureau v. City of Pittsburgh & Council of Pittsburgh, 2023 Pa. Commw. LEXIS 24 (Commw. Ct. Mar. 17, 2023).*
Posted inAdministrative search, Consent|Comments Off on OH1: Defense counsel ineffective for not challenging state’s alleged consent after they announced “we’re going to be doing a search warrant here”
In a short per curiam, the Tenth Circuit upholds a dog sniff under Rodriguez without explanation. The concurrence, however, tells us that the stop was extended five seconds past the “Rodriguez moment” as still reasonable. United States v. Hayes, 2023 U.S. App. LEXIS 6354 (10th Cir. Mar. 17, 2023).
“The inevitable discovery exception is not a windfall device. It is not intended to put police in a better position but only ‘in the same, not a worse, position [than] they would have been in if no police error or misconduct had occurred.’ Nix, 467 U.S. at 443. In assessing the government’s burden, we are mindful ‘inevitable discovery involves no speculative elements but focuses on demonstrated historical facts capable of ready verification.’ Id. at 444 n.5.” Defendant doesn’t overcome the district court’s findings that it was all inevitable. As to the inventory of defendant’s backpack, the officers testified they take property to safekeep it and not necessarily use it as evidence. Finally, circuit precedent doesn’t require written policies be put into evidence. United States v. O’Neil, 2023 U.S. App. LEXIS 6355 (10th Cir. Mar. 17, 2023).*
Reason: An Oregon Man Was Wrongly Imprisoned for Almost a Year Because of an Error in a DMV Database by Emma Camp (“Nicholas Chappelle spent almost a year in an Oregon prison after he was wrongfully convicted of driving with a suspended license. The reason for his incarceration? A shoddy DMV database. And the worst part is he’s not alone.”). Errors in the database are good faith, aren’t they?
Posted inGood faith exception|Comments Off on Reason: An Oregon Man Was Wrongly Imprisoned for Almost a Year Because of an Error in a DMV Database
A criminal trespass warning is not a Fourth Amendment seizure. Shaikh v. Allen City Council, 2023 U.S. Dist. LEXIS 43571 (E.D. Tex. Feb. 8, 2023),* adopted, 2023 U.S. Dist. LEXIS 42228 (E.D. Tex. Mar. 13, 2023).*
A DEA stop of a passenger at DFW for “suspicious travel” consented to his interaction with officers and then a dog sniff of his bag which all took a little over a minute. United States v. $67,000 in U.S. Currency, 2023 U.S. Dist. LEXIS 43325 (N.D. Tex. Mar. 15, 2023).*
Defense counsel wasn’t ineffective for not challenging a GPS tracking warrant and search warrant for his house. There were no grounds to suppress. United States v. Ramos, 2023 U.S. Dist. LEXIS 43455 (E.D. Ky. Mar. 15, 2023).*
Posted inConsent, Seizure|Comments Off on E.D.Tex.: Criminal trespass warning is not a 4A seizure
Lack of nexus between drugs and the defendant is an evidentiary question for trial, not a motion to suppress. The search is legal in any event. United States v. Cunningham, 2023 U.S. Dist. LEXIS 43510 (D.S.C. Mar. 14, 2023).
The burn pit on defendant’s property was outside the curtilage in open fields. This court has no authority to overrule the open fields doctrine. Auld v. State, 2023 Tex. App. LEXIS 1647 (Tex. App. – San Antonio Mar. 15, 2023).*
The officer’s contact with defendant at a McDonald’s wasn’t a seizure until the officer determined he was under the influence. State v. True, 324 Or. App. 621 (Mar. 15, 2023)* (under submission for 22 months).
A paramedic kept defendant from driving after an accident because defendant was too impaired to drive. That was not a government seizure, even if the paramedic was a state actor. State v. Cruz, 2023-Ohio-794, 2023 Ohio App. LEXIS 760 (5th Dist. Mar. 14, 2023).
Plaintiff lawyer didn’t state a § 1983 and Fourth Amendment claim against the State Bar for not summarily dismissing a bar complaint filed against him. They have Eleventh Amendment and prosecutorial immunity. Livingston v. N.C. State Bar, 2023 U.S. Dist. LEXIS 42353 (E.D.N.C. Jan. 30, 2023),* adopted, 2023 U.S. Dist. LEXIS 41292 (E.D.N.C. Mar. 13, 2023).*
Defendant was stopped for making terroristic threats against a hospital. When officers looked in the windows, there was an empty holster. That led to the conclusion there was a gun in the car. United States v. Wierenga, 2023 U.S. Dist. LEXIS 42864 (D.N.D. Mar. 14, 2023),*
A lien on property here is not a Fourth Amendment seizure. Trident Steel Corp. v. Siffin, 2023 U.S. Dist. LEXIS 43138 (E.D. Mo. Mar. 15, 2023).
“Against that backdrop, a reasonable officer could certainly have interpreted Mr. Harris’s sudden lurch as the commencement of yet another attack. As we have explained—and as the bodycam video confirms—Mr. Harris’s lurch was not the staggering, slow-to-get-up tossing of a dazed or injured athlete. It was the jolt of one jarred awake or springing into sudden, urgent action. In the blink of an eye, Mr. Harris’s upper body rose off the ground, his legs kicked, and his arms swooped down toward his torso. Could he have been working up the momentum to stand or slide toward one of the guns on the ground? Might he have been reaching for a third gun in his pants? Or was he instead just writhing in pain? We can’t be sure what Mr. Harris was doing. And that is precisely the point: ‘[A]n officer is not required to wait until an armed and dangerous felon has drawn a bead on [her] or others before using deadly force.’ Montoute v. Carr, 114 F.3d 181, 185 (11th Cir. 1997); …” The officers get qualified immunity. Harris-Billups v. Anderson, 2023 U.S. App. LEXIS 5951 (11th Cir. Mar. 13, 2023).*
A successor 2255 petition based on defendant’s arrest warrant wasn’t a valid basis. In re Cook, 2023 U.S. App. LEXIS 5965 (6th Cir. Mar. 13, 2023).*
Posted inExcessive force|Comments Off on E.D.Mo.: A lien on property here is not a 4A seizure
Announcing “NYPD arrest warrant” after entry through an unlocked door violated the state statute on knock-and-announce. People v. Jones, 2023 NY Slip Op 01262, 2023 N.Y. App. Div. LEXIS 1248 (1st Dept. Mar. 14, 2023).
A successor 2255 petition based on defendant’s arrest warrant wasn’t a valid basis. In re Cook, 2023 U.S. App. LEXIS 5965 (6th Cir. Mar. 13, 2023).*
The suspect was a tall thin white man with a goatee. Defendant fit the description, and that was reasonable suspicion. United States v. Scruggs, 2023 U.S. App. LEXIS 6016 (9th Cir. Mar. 14, 2023).*
Yahoo was a private actor when it searched defendant’s Flickr account finding child pornography. NCMEC didn’t exceed that search. State v. Ingram, 2023 Mo. App. LEXIS 158 (Mar. 14, 2023).*
Posted inPrivate search, Reasonable suspicion|Comments Off on NY1: Announcing “NYPD arrest warrant” after entry through an unlocked door violated knock-and-announce
There was probable cause for the search of defendant’s car stopped on the way to a controlled buy. United States v. Coates, 2023 U.S. App. LEXIS 6108 (7th Cir. Mar. 15, 2023).*
Unreasonable responses from defendant stopping at a salvage yard in the middle of the night when no one else was around, at a time when most thefts at places like that occur, was probable cause. United States v. Stokes, 2023 U.S. App. LEXIS 6103 (8th Cir. Mar. 15, 2023).*
Defendant’s Franks challenge fails. “Neither Defendant Uvino nor Persico points to any credible or probative evidence to dispute the allegations in the affidavits and instead make conclusory statements challenging the validity of the alleged misstatements.” The affidavit shows probable cause. United States v. Russo, 2023 U.S. Dist. LEXIS 41817 (E.D.N.Y. Mar. 13, 2023).*
Defendant was subjected to a search incident for false identification. His overlong stop otherwise didn’t cause that. United States v. Anderson, 2023 U.S. App. LEXIS 5997 (10th Cir. Mar. 14, 2023).*
“Teixeira struggles to throw shade on the reliability of K.M.’s statements. He claims, in a conclusory fashion, that search warrant affidavits are ‘prone to error’ and, thus, inherently unreliable. This generalization, though, is of dubious force. Shaming search warrant affidavits on a categorical basis is no more persuasive than arguing, say, that all police officers are liars or that all criminal defendants are inherently incredible witnesses. Each search warrant affidavit is distinctive and — like any other affidavit — must be judged on its own merits.” United States v. Teixeira, 2023 U.S. App. LEXIS 5828 (1st Cir. Mar. 10, 2023).* “Prone to error” means nothing under Gates and Leon. There are often nonmaterial errors. They are done in haste. That’s to be expected. Nonmaterial errors don’t affect the outcome.
Defendant’s Franks challenge fails both prongs: no showing of deliberate or reckless falsehood or that it was material to the finding of probable cause. United States v. Torres-Rojas, 2023 U.S. Dist. LEXIS 41038 (D.P.R. Mar. 10, 2023).*
Realtime CSLI for one day to locate defendant and a child he had with him was reasonable under Carpenter. United States v. Castellanos, 2023 U.S. Dist. LEXIS 41654 (N.D. Ga. Feb. 17, 2023), adopted, 2023 U.S. Dist. LEXIS 40281 (N.D. Ga., Mar. 10, 2023):
CNS: Prison warden faces suit for firing guard after strip search (“An Arkansas federal court allowed a prison guard to bring her retaliatory seizure and unlawful seizure claims against the prison warden, who fired her a few days after she was strip-searched, interrogated and detained by fellow guards when a tampon was revealed in her pelvic region during an X-ray scan as she walked into work.”
Thomas v. Culclager, 2023 U.S. Dist. LEXIS 41882 (E.D. Ark. Mar. 13, 2023)
Posted inUncategorized|Comments Off on CNS: Prison warden faces suit for firing guard after ordering her strip search
Defendant explicitly waived his Fourth Amendment claim in the district court, so he can’t appeal it. United States v. Concepcion-Guliam, 2023 U.S. App. LEXIS 5830 (1st Cir. Mar. 10, 2023).
Delaware’s loitering statute gives the officer the right to ask for suspect detained on reasonable suspicion for his name, and then the officer can give a warning to move along. That does not violate the Fourth Amendment. State v. McDougal, 2023 Del. Super. LEXIS 113 (Mar. 7, 2023).*
There was probable cause for a stop and then search of this car. It came up as stolen on an LPN search, and the smell of marijuana was evident, and paraphernalia was in plain view. United States v. Sharp, 2023 U.S. App. LEXIS 5764 (6th Cir. Mar. 9, 2023).*
Based on the videos alone, there was excessive force and qualified immunity is denied. Ducksworth v. Landrum, 2023 U.S. App. LEXIS 5807 (5th Cir. Mar. 10, 2023):
Defendant’s apartment door was subjected to a dog sniff at his apartment door before the court limited it in United States v. Perez, 46 F.4th 691 (8th Cir. 2022). The good faith exception applies. United States v. Hines, 2023 U.S. App. LEXIS 5698 (8th Cir. Mar. 10, 2023).
Plaintiffs were mistaken for being murderers from Idaho, but they weren’t and, after their stop, they were released. “We begin with Mrs. Hemry’s false arrest claim. She alleges the rangers did not merely detain her but arrested her without probable cause. The district court agreed. But we conclude the law did not clearly establish that the investigatory detention escalated into an arrest.” Hemry v. Ross, 2023 U.S. App. LEXIS 5705 (10th Cir. Mar. 10, 2023).*
“Here, Plaintiff has not alleged any facts indicating that there was ever a criminal proceeding initiated against him. Plaintiff has thus failed to allege plausibly a Section 1983 malicious prosecution claim against Defendant Thimote.” Malek v. N.Y. Unified Court Sys., 2023 U.S. Dist. LEXIS 40167 (E.D.N.Y. Mar. 9, 2023).*
The officer arrived at plaintiff’s house because of a 911 call about a stabbing. A man who had been stabbed was outside and he said it happened inside and there were others. That justified the officer’s entry into the house. Taylor v. Dienhart, 2023 U.S. Dist. LEXIS 38480 (S.D. Ind. Mar. 8, 2023).*
Plaintiff can’t overcome qualified immunity here in her excessive force claim. She was actively resisting the officer when force was applied, and no case supports her claim. Grice v. Younger, 2023 U.S. App. LEXIS 5546 (5th Cir. Mar. 8, 2023).*
Dismissal of a prison strip search case without considering reasonableness was error. Cook v. Horsely, 2023 U.S. App. LEXIS 5806 (5th Cir. Mar. 10, 2023).*
The affidavit could have been stronger because more information was available and not provided the USMJ. All things considered, it wasn’t so devoid of probable cause that the good faith exception applies. The court cautioned: “As Magistrate Judges may draw reasonable inferences, and our review is deferential, a lack of caselaw approving specific types of inferences is not enough to render a warrant constitutionally defective. We do caution, however, that an affidavit which relies only on inferences to connect an alleged offense to the place to be searched may be on unstable ground. In situations where it is not reasonable to infer that suspects would keep contraband or other evidence in their residences, it may follow that additional information is necessary to show a sufficient nexus.” United States v. Golden, 2023 U.S. App. LEXIS 5727 (3d Cir. Mar. 10, 2023).
The correct street address for the place to be searched is enough for particularity. United States v. Willard, 2023 U.S. Dist. LEXIS 39707 (D. Minn. Jan. 11, 2023).
Defendant’s Franks challenge fails both prongs: No showing of intentional or reckless misstatement or materiality. United States v. Padgett, 2023 U.S. Dist. LEXIS 40019 (D.N.J. Mar. 9, 2023).*
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)
