Category Archives: § 1983 / Bivens

D.Or.: Ptf stated 1A retaliation claim that SW for his property was because of his speech

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 … Continue reading

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N.D.Ind.: Franks hearing ordered over officer’s claim of smell of MJ

Defendant gets a Franks hearing even if to rebut the government’s claim the good faith exception applies. The affiant officer claimed there was an “overwhelming” smell of marijuana coming from defendant’s house as they approached for a knock-and-talk, which was … Continue reading

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WV: Juvenile “pick-up” order issued on PC was equivalent of warrant for Payton purposes for entry into mom’s home

Entry on a juvenile “pick-up” order here “was founded upon probable cause to believe that her ‘health, safety and welfare’ demanded it …. was the functional equivalent of an arrest warrant and was lawfully issued.” Therefore, the entry was valid … Continue reading

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CA6: City’s order closing hotel ptfs lived in didn’t violate 4A

Plaintiffs’ Fourth Amendment rights weren’t violated by the city’s order closing the motel they lived in because it was uninhabitable. There was a limited time they were without their personal property, but they were shortly allowed access to retrieve things. … Continue reading

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CA6: Search of building next door to def’s building wasn’t reason to suppress def’s search

Officers with a search warrant for 8537 Old Rutledge Pike, Knox County, Tennessee also searched what they believed was an outbuilding at 8533 with a power cord running between them with no indication it was different property. At worst, this … Continue reading

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CA9: In excessive force case, those that did not shoot get QI; facts on those that did are in dispute

Officers who actually fired their weapons here do not get qualified immunity, but those who did not do. Peck v. Montoya, 2022 U.S. App. LEXIS 28822 (9th Cir. Oct. 18, 2022):

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CA7: 4½ days to figure out ptf was innocent didn’t violate 4A or 14A

“Eli Martinez spent four and a half days in custody while he tried to explain to his jailers that his brother, Hector M. Rodriguez, was the one described in an arrest warrant. After Martinez was released, he sued two probation … Continue reading

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E.D.Pa.: On scene seizure for a show-up was reasonable

Defendant’s seizure hiding behind a motorcycle for a victim’s ID to determine whether he was involved in a car jacking was reasonable. United States v. Dangerfield-Hill, 2022 U.S. Dist. LEXIS 168306 (E.D. Pa. Sep. 19, 2022). District court’s injunction against … Continue reading

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D.Idaho: This protective sweep was based on speculation and was unreasonable

Here, the protective sweep claim of the government was factually based on speculation, and was unreasonable. United States v. Iverson, 2022 U.S. Dist. LEXIS 156914 (D. Idaho Aug. 29, 2022). Defendant’s stop for suspieion of criminal activity was reasonable. United … Continue reading

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D.D.C.: DC USMJ can issue SW for iPhone in Texas in domestic terrorism investigation

A USMJ in the District of Columbia has authority to issue a search warrant for an iPhone in Texas in a domestic terrorism investigation tied to the January 6th attack on the Capitol. In the Matter of the Search of … Continue reading

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MD: Full searches of cell phones can be a general search; there must be particularity or time limitation

Blanket full searches of cell phones without a particularity or time limitation can violate the Fourth Amendment and become a general search. It is suggested there be a search protocol if possible to limit the officers’ discretion. Despite all those … Continue reading

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CA11: § 1983 suit that only claimed violations of state law did not state 4A claim

Plaintiff’s § 1983 suit that only claimed violations of state law did not state a Fourth Amendment claim. Lyons v. City of Abbeville, Ala., 2022 U.S. App. LEXIS 24110 (11th Cir. Aug. 26, 2022). Defendant does not get return of … Continue reading

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CA10: Pre-PC hearing jail excessive force claim is a 4A claim, not 14A

A jail excessive force case that happened before plaintiff’s probable cause hearing is a Fourth Amendment claim, not under the Fourteenth Amendment. Geddes v. Weber Cty., 2022 U.S. App. LEXIS 22719 (10th Cir. Aug. 16, 2022):

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W.D.Mo.: 26 day delay in getting cell phone SW wasn’t unreasonable

A 26 day delay between seizure of a cell phone and issuance of a search warrant for it was not constitutionally unreasonable. Defendant’s motion for return of the phone is deferred until the trial is over. United States v. Brown, … Continue reading

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CT: Def’s missing father was exigency for warrantless entry

The entry into defendant’s house was justified by the emergency exception because his father had been missing for days. State v. Samuolis, 2022 Conn. LEXIS 213 (Aug. 9, 2022). As to probable cause, “The district court found the affidavits constitutionally … Continue reading

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CA5: Probable cause defeats a malicious prosecution claim

Probable cause defeats a malicious prosecution claim. Payton v. Town of Maringouin, 2022 U.S. App. LEXIS 21506 (5th Cir. Aug. 3, 2022):

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CA9: Absolute immunity for DA advising on a SW application

A DA advising police on a second search warrant was prosecutorial, not investigatory, for immunity purposes. Haworth v. City of Walla Walla, 2022 U.S. App. LEXIS 21370 (9th Cir. Aug. 2, 2022). Local court rule for drug testing of bailbondsman … Continue reading

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D.C.Cir.: Bivens not extended to immigration detention

Bivens should not be extended to an immigration detention. K.O. v. Sessions, 2022 U.S. App. LEXIS 20984 (D.C. Cir. July 29, 2022). Plaintiff filed a § 1983 case against his prosecution which fails on Younger grounds. As to an illegal … Continue reading

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NY Bronx: SDT for text message information was overbroad; SW should be sought instead

The court concludes a subpoena duces tecum to T-Mobile for text message information was overbroad. The court recommends the state apply for a search warrant instead. People v. Nelson, 2022 NY Slip Op 50630(U), 2022 N.Y. Misc. LEXIS 2968 (Bronx … Continue reading

Posted in § 1983 / Bivens, Excessive force, GPS / Tracking Data, Overbreadth, Subpoenas / Nat'l Security Letters | Comments Off on NY Bronx: SDT for text message information was overbroad; SW should be sought instead

IA: Ex-wife’s false claims of sex abuse of children was still PC for state action

Plaintiff sued the State of Iowa over a DHS sex abuse investigation that ordered him out of the house, but was later proved unfounded. It was discovered that his ex-wife’s claim was manufactured to get him out of the house. … Continue reading

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