In a health care fraud case, the government knew that messages about the crime were exchanged by text and Facebook, and that was sufficient to get a search warrant for them. In any event, the good faith exception applied. United States v. Thomas, 2023 U.S. Dist. LEXIS 185971 (E.D. Wis. Oct. 17, 2023).*
A photograph of the house to be searched included in the warrant cured any possible defect that the wrong place could be searched. United States v. Collins, 2023 U.S. Dist. LEXIS 186065 (E.D. Okla. Oct. 17, 2023).*
2255 petitioner’s Fourth Amendment ineffective assistance of counsel claim was based on the same arguments already rejected on appeal. United States v. Plumadore, 2023 U.S. Dist. LEXIS 186367 (N.D. Fla. Aug. 31, 2023),* adopted 2023 U.S. Dist. LEXIS 185476 (N.D. Fla. Oct. 16, 2023).*
Rejecting state law to the contrary, the district court holds that there is no reasonable expectation of privacy in the common area of an apartment building under the Fourth Amendment. United States v. Love, 2023 U.S. Dist. LEXIS 186921 (E.D. Wis. Oct. 18, 2023).* (Now for forum shopping by state officers.)
The stop was consensual up until defendant grabbed a baggie found on him from the officer. Then there was reasonable suspicion for more. Feagins v. Commonwealth, 2023 Va. App. LEXIS 709 (Oct. 17, 2023).*
From the syllabus: “The panel next held that a jury could find that defendants’ second PIT maneuver constituted deadly and excessive force because (1) it created a substantial risk of serious bodily injury, (2) Sabbe did not pose an imminent threat to the officers or others at that point, and (3) less intrusive alternatives were available. Nevertheless, no clearly established law would have provided adequate notice to reasonable officers that their use of the armored vehicle to execute a low-speed PIT maneuver under these circumstances was unconstitutional.” Sabbe v. Wash. Cty. Bd. of Comm’rs, 2023 U.S. App. LEXIS 27553 (9th Cir. Oct. 17, 2023).*
Officers are not prohibited under the state constitution from checking for outstanding warrants during a traffic stop, during a lull or not. There are valid safety and policy reasons for it. State v. Civil, 328 Or App 662, 2023 Ore. App. LEXIS 1032 (Oct. 18, 2023).
There was reasonable suspicion for continuing this immigration stop near the border. The officer had patrolled that road more than a decade and he was familiar with all the local cars and people. “Here, the circumstances justifying the Agent’s initial stop, coupled with Amaya’s erratic behavior (which Agent Helmick testified was consistent with distraction tactics employed by human smugglers, Tr. at 82), gave rise to probable cause to check the vehicle for contraband, in this case undocumented persons. As the Agent had probable cause to search the vehicle—independently from any concerns about either his own safety or the health and safety of the vehicle’s passengers—the evidence obtained from that search is admissible.” United States v. Rodriguez-Solorio, 2023 U.S. Dist. LEXIS 185720 (D.N.M. Oct. 16, 2023).*
“Though the Defendant states generally that the trial court erred in finding that the inevitable discovery doctrine applied, he has provided no law or argument in his appellate brief on the topic. In fact, he has failed to even set forth a basic statement relative to the fundamentals of the inevitable discovery doctrine, much less on how the doctrine is inapplicable to this case.” State v. Bowen, 2023 Tenn. Crim. App. LEXIS 416 (Oct. 17, 2023).*
The search warrant for defendant’s Google search history lacked any justification of why it would produce evidence, that it was even used in planning or executing the alleged crime. It was bare bones, and the good faith exception does not apply. State v. Grace, 2023-Ohio-3781, 2023 Ohio App. LEXIS 3650 (5th Dist. Oct. 17, 2023):
Despite officers waiting outside for about ten hours and seeing no movement from inside, a protective sweep was still objectively reasonable on the totality. People were unaccounted for, and there was a gun and drugs seen from outside the door. United States v. Jimerson, 2023 U.S. Dist. LEXIS 185611 (S.D. Ill. Oct. 16, 2023).
Defendant was a Kansas City detective accused of negligent homicide on the job. He argued that he was privileged to go onto the curtilage where the shooting happened, but the argument was so vague it articulated nothing about what he was saying. State v. Devalkenaere, 2023 Mo. App. LEXIS 761 (Oct. 17, 2023).
The affiant in this warrant for defendant’s blood in a DUI case should not have included defendant’s two priors because that adds nothing, but excluding it still leaves probable cause. Bowie v. State, 2023 Del. LEXIS 334 (Oct. 17, 2023).*
The Traverse City MI drone flyover case goes before the Michigan Supreme Court today at 10 am ET. The oral argument link: 164948 Long Lake Township v Todd Maxon.
“First, the court concludes that, under the Colorado Constitution, the defendant has a constitutionally protected privacy interest in his Google search history even when revealed only in connection with his IP address and not his name and that, under both the Colorado Constitution and the Fourth Amendment, he also has a constitutionally protected possessory interest in that same history. Second, the court concludes that the defendant’s Google search history implicates his right to freedom of expression; thus, the constitutional protections must be applied with ‘scrupulous exactitude.’ Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978) (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965)). Third, a majority of the court concludes that the warrant at issue adequately particularized the place to be searched and the things to be seized. Fourth, the majority assumes without deciding that the warrant required individualized probable cause and that its absence here rendered the warrant constitutionally defective. Finally, the majority concludes that law enforcement obtained and executed the warrant in good faith, so the evidence shouldn’t be suppressed under the exclusionary rule.” People v. Seymour, 2023 CO 53, 2023 Colo. LEXIS 991 (Oct. 16, 2023):
Defendant was having a seizure in his underwear on the street, about two blocks from his home. Officers could tell the smell of PCP about him. Officers went to his house and the door was cracked. Looking through the door, it looked like defendant might have somewhat trashed the place, and no one answered the officers’ calls. They went back to where he was. They decided to enter without a warrant, using the excuse of the emergency aid exception, but there was no objective evidence there was another person inside. They then got a search warrant that completely failed to mention the PCP seizure on the street. The body cam videos were helpful, and the court concludes that the only motive was investigation of a potential drug offense, not a bona fide emergency. Motion to suppress granted. The good faith exception doesn’t even apply. United States v. Leonard, 2023 U.S. Dist. LEXIS 185328 (E.D. Tex. Sep. 15, 2023), adopted, 2023 U.S. Dist. LEXIS 184437 (E.D. Tex. Oct. 13, 2023).
The motion to reconsider State v. Wood, 2023-Ohio-2788 (2d Dist. Aug. 11, 2023) is denied. Appellant’s argument conflates the Fourth and Fifth Amendments. State v. Wood, 2023-Ohio-3735 (2d Dist. Oct. 5, 2023).*
10 am knock-and-talk led to a consent entry. United States v. Estrella, 2023 U.S. Dist. LEXIS 185020 (S.D.N.Y. Oct. 16, 2023).*
Posted inEmergency / exigency, Knock and talk, Pretext|Comments Off on E.D.Tex.: Pretextual claim of emergency aid exception to conduct a drug search leads to suppression
The government obtained DNA and defendant moved to suppress. Then the government sought DNA by warrant again with a new warrant. It is permitted to do so. United States v. Watson, 2023 U.S. Dist. LEXIS 185148 (E.D. Wis. Oct. 16, 2023):
The state is obliged to raise whatever issues it can in defense of a warrantless search at the hearing. Piecemeal litigation by motion to reconsider must be avoided. Commonwealth v. Smith, 2023 PA Super 205, 2023 Pa. Super. LEXIS 482 (Oct. 16, 2023).
Information about defendant’s possession of a large amount of marijuana three days before the warrant issued wasn’t stale. And the good faith exception applies. United States v. Whitlow, 2023 U.S. Dist. LEXIS 184829 (M.D. Ala. Aug. 24, 2023),* adopted, 2023 U.S. Dist. LEXIS 169156 (M.D. Ala. Sep. 22, 2023).*
It’s well settled that prison inmates have no Fourth Amendment rights. Washington v. Myers, 2023 U.S. Dist. LEXIS 184874 (M.D. Pa. Oct. 13, 2023).*
There was reasonable suspicion for continuing the stop, then probable cause. “Even absent probable cause, the search of Mr. Watson’s car was permissible as a search pursuant to a parole condition.” That alone justified extending the stop. United States v. Watson, 2023 U.S. Dist. LEXIS 184812 (D. Idaho Oct. 13, 2023).
The officer was justified in ordering the occupants out of the vehicle while completing the stop. He had probable cause to search the vehicle for alcohol given the smell coming from inside and that the passenger essentially admitted consuming alcohol in it. Defendant’s hesitation following the officer’s lawful request to exit the vehicle, combined with the fact that he had a large bulge in his front jacket pocket, was reasonable suspicion for a frisk. People v. Wallace, 2023 IL App (1st) 200917, 2023 Ill. App. LEXIS 350 (Sep. 29, 2023).*
The administrative subpoena duces tecum for one of the doctor’s patient files was reasonable because it related to a complaint about treatment. In addition, the doctor’s interest in confidentiality of the file is maintained because the public can’t see it with the medical board. Frid v. McDonald, 2023 NY Slip Op 33482(U), 2023 N.Y. Misc. LEXIS 7442 (N.Y. Co. Oct. 8, 2023).*
During a traffic stop, the officer’s question about weapons in the car resulted in defendant’s getting unusually nervous, his breathing completely changing where his chest rose and fell, and he refused to look the officer in the eye. That was enough for a protective sweep of the car, and a gun was found. United States v. Williams, 2023 U.S. Dist. LEXIS 183411 (E.D. Pa. Oct. 11, 2023).*
A few hours delay in plaintiff’s decedent getting bonded out under state law and Cook County judicial procedure did not violate the Fourth Amendment. It was not reasonably foreseeable that he would commit suicide in custody when he denied any idea of self-harm at book-in. Alcorn v. City of Chi., 2023 U.S. App. LEXIS 27132 (7th Cir. Oct. 12, 2023).*
“Here, there was reasonable suspicion to search the vehicle. First, there was information that Laureano-Velez was a suspect in a crime committed in Loíza and failed to report to the Carolina Police Station as requested. Being investigated by the PRPD does not necessarily in and of itself make a suspicion reasonable, but there was information that Laureano-Velez was always armed and that he kept a firearm in the vehicles he uses. Dkt. 40-3 at 4. Additionally, he could not be located once he was told to report to the Carolina Police Station. Not only did he fail to report to the Carolina Police Station, Laureano-Velez turned off his phone and could not be found at his house or place of business.” United States v. Laureano-Velez, 2023 U.S. Dist. LEXIS 184787 (D.P.R. Oct. 12, 2023).*
WSJ: How Ads on Your Phone Can Aid Government Surveillance by Byron Tau, Andrew Mollica, Patience Haggis, and Dustin Volz (“Information from mobile-phone apps and advertising networks paints a richly detailed portrait of the online activities of billions of devices. The logs and technical information generate valuable cybersecurity data that governments around the world are eager to obtain. When combined with classified data in government hands, it can yield an even more detailed picture of an individual’s behaviors both online and in the real world. A recent U.S. intelligence-community report said the data collected by consumer technologies expose sensitive information on everyone ‘in a way that far fewer Americans seem to understand, and even fewer of them can avoid.'”)
Posted inSurveillance technology|Comments Off on WSJ: How Ads on Your Phone Can Aid Government Surveillance
A search warrant was timely “executed” when the electronic device was seized within five days per the warrant and state law, even though the forensic search didn’t take place for two more months. “[W]e emphasize that in this appeal Drachenberg relies solely on the five-day time limit in Wis. Stat. § 968.15(1). He does not allege a violation of his Fourth Amendment rights.” The affidavit for warrant stated that forensic analysis would follow and would be time consuming. “ Courts that have addressed this issue in other states with identical or nearly identical statutes have reached the same conclusion, with the result that statutory time limits analogous to § 968.15(1) are not violated by subsequent searches of data in validly seized devices.” State v. Drachenberg, 2023 Wisc. App. LEXIS 1075 (Oct. 12, 2023).
The evidence of excessive force in striking two arrestees in a civil rights criminal case was sufficient. The use of force was objectively unreasonable. United States v. Bean, 2023 U.S. App. LEXIS 27220 (6th Cir. Oct. 11, 2023).*
The statute of limitations for search claims starts with the search, assuming plaintiff has knowledge of it. Okoli v. City of N.Y., 2023 NY Slip Op 51067(U) (Kings Co. Oct. 5, 2023).*
The Sixth Circuit has suggested that a cell phone on the person of a drug trafficker likely has evidence of drug trafficking on it, so the cell phone warrant was issued with probable cause. Even if not, the good faith exception applies. United States v. Reed, 2023 U.S. Dist. LEXIS 183728 (E.D. Mich. Oct. 12, 2023).* So, a mere suggestion is good faith now?
An anonymous complaint of drug dealing at defendant’s house led police to surveil it, and they could smell marijuana even nearby. They did a trash pull and incriminating evidence was found. The search warrant issued four days later was not stale. State v. Lackey, 2023-Ohio-3720 (1st Dist. Oct. 13, 2023).*
The officer’s observations of defendant and his driving recounted in the affidavit for warrant for blood showed probable cause. State v. Gillen, 2023 Del. Super. LEXIS 811 (Oct. 10, 2023).*
The smell of marijuana from a vehicle is probable cause even if legal hemp can be mistaken for it. State v. Gonzales, 2023 Tex. App. LEXIS 7827 (Tex. App. – Dallas Oct. 12, 2023).
Plaintiff’s claim for false arrest for her being arrested for recording her brother’s arrest on her cell phone is barred by limitations. Johnson v. Harris County, 2023 U.S. App. LEXIS 27089 (5th Cir. Oct. 12, 2023).*
The drug dog was already at the scene so there was no wait time for it to show up, and it did not extend the stop. State v. Hawkins, 2023-Ohio-3728 (2d Dist. Oct. 13, 2023).*
Defendant consented to search of his cell phone in an effort to prove his alibi. Blackwood v. State, 2023 Del. LEXIS 328 (Oct. 11, 2023).
Defendant’s guilty plea wasn’t a conditional plea, so the search issue was waived. If he wants to pursue that as an ineffective assistance of counsel claim it will have to be in a 2255. United States v. Jackson, 2023 U.S. App. LEXIS 27072 (2d Cir. Oct. 12, 2023).*
Two controlled buys, about three weeks and then five days, before the warrant were not stale. People v. Floyd, 2023 NY Slip Op 05208 (1st Dept. Oct. 12, 2023).*
Posted inCell phones, Consent, Staleness, Waiver|Comments Off on DE: Def consented to search of his cell phone in an effort to prove his alibi
Seizure of defendant’s cell phone incident to arrest wasn’t unreasonable just because it was seized before the arrest. United States v. Garg, 2023 U.S. Dist. LEXIS 183140 (W.D. Wash. Oct. 11, 2023).
An extraneous name appearing in a warrant affidavit was influentially ignored by the trial court as a scrivener’s error. The finding that probable cause existed to take blood includes the ability to test it. Longoria v. State, 2023 Tex. App. LEXIS 7783 (Tex. App. – Corpus Christi-Edinburg Oct. 12, 2023).*
The fact defendant consented to probation searches doesn’t eliminate the requirement the PO still have reasonable grounds for it. City of Olmsted Twp. v. Donnelly, 2023-Ohio-3712 (8th Dist. Oct. 12, 2023).*
Defendant passenger had standing to challenge the length of the stop because it was his detention, too. There was, however, reasonable suspicion for that. United States v. Alvarez, 2023 U.S. App. LEXIS 26980 (9th Cir. Oct. 10, 2023).
“Stiff failed to file a motion to suppress in the trial court, resulting in his procedural default of this claim in this habeas proceeding. But even if had raised the issue properly in the state courts, his claim is not cognizable in this proceeding, because it is subject to dismissal under the rule announced in Stone v. Powell, 428 U.S. 465 (1976).” Stiff v. Maarten, 2023 U.S. Dist. LEXIS 182620 (W.D. Mich. Oct. 11, 2023).*
Probable cause was lacking, but it wasn’t so obvious that the good faith exception should not apply. United States v. Simmons, 2023 U.S. Dist. LEXIS 182973 (W.D.N.Y. Oct. 11, 2023).*
Posted inGood faith exception, Standing, Waiver|Comments Off on CA9: Passenger has standing to challenge reasonableness of length of stop
NPR: ‘Too dangerous’: Why even Google was afraid to release this technology by Bobby Allyn (“Imagine strolling down a busy city street and snapping a photo of a stranger then uploading it into a search engine that almost instantaneously helps you identify the person. This isn’t a hypothetical. It’s possible now, thanks to a website called PimEyes, considered one of the most powerful publicly available facial recognition tools online.”)
Posted inSurveillance technology|Comments Off on NPR: ‘Too dangerous’: Why even Google was afraid to release this technology
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“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, Let it Bleed (album, 1969)
"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]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"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)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
