Pretext for a criminal search can be an issue in administrative searches. “Accordingly, the district court erred in failing to recognize the existence of a genuine issue of material fact as to whether the February 2015 administrative search was focused on ferreting out criminal wrongdoing or simply inspecting Fryer’s towing business for statutory compliance.” Landau v. City of Daytona Beach, 2023 U.S. App. LEXIS 26964 (11th Cir. Oct. 11, 2023).
“But in fast-paced, high-intensity situations like this one, the ‘was she still resisting?’ question is not the whole ballgame. Our Fourth Amendment inquiry focuses on what was ‘knowable’ to a reasonable officer. White v. Pauly, 580 U.S. 73, 77, 137 S. Ct. 548, 196 L. Ed. 2d 463 (2017). Another dispositive question is whether, at the time Officer Patrick fired his taser, every reasonable officer would have perceived Perez as no longer actively resisting arrest. Then—and only then—should qualified immunity be denied. [¶] But answering that question requires resolving factual disputes. And because we can’t resolve those disputes on appeal, we dismiss this appeal for lack of jurisdiction and remand.” Perez v. Simpson, 2023 U.S. App. LEXIS 26940 (6th Cir. Oct. 11, 2023).*
Defendant got to litigate his Fourth Amendment claim pretrial and he can’t raise it on post-conviction. United States v. Washington, 2023 U.S. Dist. LEXIS 182456 (D. Nev. Oct. 11, 2023).*
Plaintiff inmate’s statute of limitations for an illegal search claim starts when he should be aware of the claim and it is not tolled while he is incarcerated. Poteat v. Lydon, 2023 U.S. App. LEXIS 26961 (3d Cir. Oct. 11, 2023).*
Defendant challenged the extension of the stop as unreasonable, but the court found reasonable suspicion. Also, “While Niichel properly moved to suppress the traffic-stop evidence, she neglected to include the scope of the stop as grounds. Therefore, we find the claim unpreserved for appeal and decline to consider it.” State v. Niichel, 2023 Iowa App. LEXIS 795 (Oct. 11, 2023).*
Arguable probable cause = qualified immunity. Broes v. Hall Cty. DA, 2023 U.S. App. LEXIS 26967 (11th Cir. Oct. 11, 2023).*
Continuation of plaintiff’s arrest after the officer learned it was unjustified denied the officer qualified immunity. “Even if we concluded Officer Holtan made a reasonable mistake about probable cause when he first tackled Nieters to the ground, Nieters immediately informed Officer Holtan that he was a journalist and he provided press credentials. Yet Officer Holtan still arrested Nieters because he did not want to be perceived as giving a journalist special treatment. Once Officer Holtan was aware Nieters was a member of the press, and had no reason to believe Nieters had been within hearing distance of the orders to disperse, it certainly was not an ‘objectively reasonable’ mistake to believe probable cause existed for the arrest. ‘The continuation of even a lawful arrest violates the Fourth Amendment when the police discover additional facts dissipating their earlier probable cause.’” Nieters v. Holtan, 2023 U.S. App. LEXIS 26906 (8th Cir. Oct. 11, 2023). CNS: No qualified immunity for Iowa police officer who arrested photographer at George Floyd protest
Defendant was an overnight guest, and he had standing to contest the search of the apartment. The entry, however, was by consent. People v. Gorham, 2023 NY Slip Op 51049(U) (Kings Co. Oct. 6, 2023).*
Fulton County jailers charged with murder of a detainee were not “peace officers” enabling them to use statutory procedures for police officers making arrests. State v. Cook, 2023 Ga. LEXIS 217 (Oct. 11, 2023).*
The task force officer involved allegedly wasn’t authorized to make speeding traffic stops, but this was a reasonable mistake of law under Heien. United States v. Shepherd, 2023 U.S. Dist. LEXIS 181976 (N.D. Ala. Oct. 10, 2023).
The bulge in defendant’s pants was clearly a gun. The minor discrepancies in the testimony of the two officers doesn’t undermine the district court’s credibility determination. The discrepancies were over something rapidly evolving over a minute. United States v. Goss, 2023 U.S. App. LEXIS 26848 (11th Cir. Oct. 10, 2023).*
Defendant was the subject of a state search warrant, and it didn’t have to comply with Rule 41 even with DEA task force officers involved. Oklahoma law authorized state court judges to issue tracking warrants on defendant’s vehicle. United States v. Ramirez-Flores, 2023 U.S. Dist. LEXIS 181716 (N.D. Okla. Oct. 10, 2023).*
Despite a minor discrepancy in shirt color, defendant was the only person around at the time of the tip about the crime, and he matched the description. United States v. Delima, 2023 U.S. Dist. LEXIS 181893 (D. Vt. Oct. 10, 2023).*
An eleven month delay in the government obtaining a DNA warrant was reasonable. “Under the totality of the circumstances, the Court concludes that, while the search warrant perhaps could have been sought earlier, the eleven-month period between arrest and the search was not unreasonable, and the search was sufficiently supported by probable cause.” [DNA doesn’t go stale.] United States v. Primrose, 2023 U.S. Dist. LEXIS 181163 (D. Haw. Oct. 6, 2023).
Plaintiff doesn’t explain how the Grammys violated various rights of his, including the Fourth Amendment, and they’re a private actor anyway. The SoL has run [And what’s the venue?] Emrit v. Grammys Awards on CBS, 2023 U.S. Dist. LEXIS 181438 (N.D.N.Y. Oct. 6, 2023).*
Officers obtained a geofence warrant to ID the cell phones around the scene of the crime, but there’s no appellate challenge to it. Wilson v. Commonwealth, 2023 Va. App. LEXIS 690 (Oct. 10, 2023).*
Defendant’s questioning about his work at a fixed immigration checkpoint did not require reasonable suspicion. United States v. Briscoe, 2023 U.S. Dist. LEXIS 181188 (D.N.M. Oct. 6, 2023).
There was reasonable suspicion for defendant’s stop at gunpoint for his being apparently intoxicated and carrying a long gun and pointing it in public with both hands in a “low ready” position. United States v. Bethea, 2023 U.S. Dist. LEXIS 181240 (M.D.N.C. Oct. 6, 2023).*
There was probable cause for issuance of a cell site location warrant on defendant’s phone because he was otherwise linked to a murder. “The information that law enforcement gathered at the shooting scene generated probable cause to believe that the Defendant was the perpetrator and now a fugitive given the details provided by the Witness. And additional independent investigation by law enforcement connected the Defendant’s WhatsApp number to the Phone Number and to the Defendant. Therefore, the affidavit submitted with the Warrant application set forth sufficient facts for the circuit court judge to conclude there was probable cause that the Defendant was the shooter.” United States v. MacKie, 2023 U.S. Dist. LEXIS 181294 (S.D. Fla. Oct. 9, 2023).*
When a package in transit is detained for investigation, the person named on the package has an interest in a reasonable delivery time, but not an exact time. United States v. Hamlin, 2023 U.S. Dist. LEXIS 180215 (D. Mont. Oct. 5, 2023).
The defendant officers claimed qualified immunity that marijuana was smelled during the stop. The other officers get it, but there’s a fact question on the first officer at the stop and whether he did. Otkins v. Gilboy, 2023 U.S. App. LEXIS 26548 (5th Cir. Oct. 5, 2023).*
There was reasonable suspicion for a probation search under defendant’s search waiver. United States v. Palmore, 2023 U.S. Dist. LEXIS 181115 (M.D. Ga. Oct. 6, 2023).*
An officer’s surreptitious recording of a drug deal with a cell phone is an interception of a communication under the state wiretapping law. Commonwealth v. Du, 2023 Mass. App. LEXIS 143 (Oct. 6, 2023).
The publicly available address (SoS, website, advertisements) was Suite B at that address. It was a large place and also was Suite D. “Though additional research might have led the government to discover the separate address of Suite D, it was reasonable to believe, even for good faith exception purposes, that the publicly available address, which is also the only address listed with the Louisiana Secretary of State (per Bodin’s testimony), was in fact the address of Dave’s Gunshop.” United States v. Micah, 2023 U.S. Dist. LEXIS 180629 (W.D. La. Aug. 14, 2023),* adopted, 2023 U.S. Dist. LEXIS 179467 (W.D. La. Oct. 4, 2023).*
Even ordering the driver out of the car was based on reasonable suspicion. United States v. Chandler, 2023 U.S. Dist. LEXIS 180116 (N.D. Ala. Aug. 21, 2023).*
Defendant lived in a “high crime area,” and that did not make his car subject to search just because of alleged tips. “When Officer Millner asked Defendant whether there were guns or drugs in the vehicle, Defendant replied ‘no’ and stated that the vehicle had just been ‘cleaned out.’ Officer Millner testified that, in his subjective opinion, the vehicle was still messy, which created a sufficient suspicion of criminal activity in his mind to justify a search of the vehicle. In my view, there was no reasonable articulable suspicion. If a messy car alone supported a reasonable articulable suspicion of criminal activity, countless messy drivers would be at risk of having their vehicles searched.” “Although I give some consideration to the officer’s subjective thoughts, accord weight to his training and experience in detecting criminal activity, and look at the objective facts through the lens of a reasonable, trained police officer, this factor alone is a bridge too far for me. Otherwise, any resident of this neighborhood, driving a car in his or her own neighborhood, would be under suspicion of criminal activity. Neither the Fourth Amendment nor the Delaware Constitution allows for this chilling result.” Motion to suppress granted. State v. Foreman, 2023 Del. Super. LEXIS 798 (Oct. 4, 2023).
“Here, the district court did not need to explain the suspicionless search condition because such conditions do not implicate the Fourth Amendment, … and the condition’s nexus to the 18 U.S.C. § 3583(d)(1) factors is clear from the record.” Defendant has addiction issues. United States v. Tome, 2023 U.S. App. LEXIS 26615 (9th Cir. Oct. 6, 2023).*
The officer encountered defendant in the hotel lobby. He asked for defendant’s ID, and defendant said he had to go to his room to get it. The officer asked if he could accompany him to the room. The officer’s entry into the room was not by consent. Defendant had a woman in the room with him, and he asked “are you decent?” and opened the door only wide enough for him to slide in. The bodycam video shows the officer pushing the door open. Once inside, he went through the woman’s purse. State v. Smith, 2023-Ohio-3587, 2023 Ohio App. LEXIS 3510 (7th Dist. Sep. 28, 2023).
“The Affidavit may not be the paragon of precision, but it does not require mental gymnastics to find a fair probability that contraband or evidence of a crime would be found at 118 Cotton Bayou Lane on February 28, 2023. Thus, the Affidavit is not bare bones, so the officers’ good-faith reliance upon Judge Caldwell’s probable cause determination was objectively reasonable, and the exclusionary rule does not apply to the evidence obtained pursuant to the Warrant.” United States v. Jackson, 2023 U.S. Dist. LEXIS 179732 (W.D. La. Sep. 20, 2023),* adopted, 2023 U.S. Dist. LEXIS 178498 (W.D. La. Oct. 3, 2023).*
Defendant’s arrest was valid, as was the ensuing inventory since the vehicle was being towed. United States v. Fayton, 2023 U.S. Dist. LEXIS 179753 (S.D.N.Y. Oct. 5, 2023).*
Defendant’s motion to suppress based on the state court judge issuing the warrant lacking jurisdiction is denied on the merits and by the good faith exception. United States v. Bailey, 2023 U.S. Dist. LEXIS 179249 (N.D. Cal. Oct. 4, 2023).
Six week old information there was child porn on defendant’s cell phone was not stale. United States v. Lantzy, 2023 U.S. App. LEXIS 26414 (6th Cir. Oct. 4, 2023).*
This third motion to suppress isn’t timely. On the merits, it would lose anyway on consent. United States v. Giambro, 2023 U.S. Dist. LEXIS 179570 (D. Me. Oct. 5, 2023).*
The cell phone records here were obtained by search warrant and were properly authenticated. State v. Newberry, 2023-Ohio-3623 (8th Dist. Oct. 5, 2023).*
Posted inCell phones, Consent, Good faith exception, Staleness|Comments Off on N.D.Cal.: Motion to suppress based on state court issuing judge lacking jurisdiction saved by GFE even if true
Even though the initial search warrant was issued without probable cause, inevitable discovery can still apply. United States v. Streett, 2023 U.S. App. LEXIS 26423 (10th Cir. Oct. 5, 2023):
An administrative subpoena duces tecum to Starbucks is enforced. It is reasonable in scope. Su v. Starbucks Corp., 2023 U.S. Dist. LEXIS 179355 (W.D. Wash. Oct. 4, 2023):
The R&R determined that defendant parolee had no reasonable expectation of privacy in the place searched because of his parole status alone. The District Judge disagrees, finds enough standing to contest the search, and remands to the USMJ to decide the merits of the search. His privacy is diminished, but it is not extinguished. United States v. Melvin, 2023 U.S. Dist. LEXIS 179247 (W.D.N.Y. Oct. 4, 2023).
Defendant’s stop was justified because he crossed into the wrong lane when turning left. United States v. Brown, 2023 U.S. Dist. LEXIS 179083 (N.D. Iowa Aug. 25, 2023).*
Plaintiff was actively resisting and fighting with officers. Finally, he was kneed to the face and still kept resisting. Finally, he was subdued. “In sum, our review of the videotape footage reveals that all three objective reasonableness factors support the officers’ use of force in this case.” Walker v. City of Houston, 2023 U.S. App. LEXIS 26364 (5th Cir. Oct. 4, 2023).*
A drug dog alerted on defendant’s car before the dog approached an open door and sniffed inside, too. The outside alert made the inside alert reasonable. Fleming v. State, 2023 Ark. App. 439 (Oct. 4, 2023).
Officers received an anonymous tip defendant was drunk walking around a grocery store and he got into a car parked in a handicapped spot. An officer parked nearby and walked to him, asking a few questions. His answers were implausible and he smelled of alcohol. The smell gave reasonable suspicion. State v. Carlson, 32 Neb. App. 301 (Oct. 3, 2023).*
The probation violation report showed reasonable suspicion for a search for a potential weapon. United States v. Ver, 2023 U.S. Dist. LEXIS 178785 (E.D. Mo. Aug. 31, 2023),* adopted, 2023 U.S. Dist. LEXIS 176938 (E.D. Mo. Oct. 2, 2023).*
A warrant for CCTV surveillance of the defendant came under the wiretap statute, Title III, and necessity and probable cause was shown. United States v. Jones, 2023 U.S. Dist. LEXIS 178457 (S.D. Ind. Oct. 4, 2023).
The totality of information known to the officer at the time defendant’s package was detained for a dog sniff was sufficient to show reasonable suspicion that the package contained drugs from Mexico. Olson v. State, 2023 Alas. App. LEXIS 122 (Oct. 4, 2023).*
Even if defendant didn’t voluntarily consent to a frisk, his gun would have been inevitably found during a search incident that would have occurred. United States v. Matthews, 2023 U.S. App. LEXIS 26338 (6th Cir. Oct. 2, 2023).*
The smell of marijuana on a student’s person justified a school search, and here it was their backpack then pockets. Stanford v. Northmont City Sch. Dist., 2023 U.S. App. LEXIS 26336 (6th Cir. Oct. 2, 2023).
This § 1983 plaintiff lacked standing in a car rented for him by another because his DL was suspended. “Indeed, during his deposition in this case, Brookins admitted that he was driving with a suspended license at the time of the stop and search, and does not dispute that fact on appeal. Brookins therefore lacks Fourth Amendment standing to challenge the search underlying his malicious prosecution claim.” Brookins v. Laureano, 2023 U.S. App. LEXIS 26311 (2d Cir. Oct. 4, 2023).* [Not buying that.]
The trial court erred in concluding there was no probable cause for search of defendant’s cell phone. The state showed in the affidavit numerous ways of communication between defendant and his alleged victim that was the probable cause showing. Also, the warrant was sufficiently particular. State v. Black, 2023 Ga. App. LEXIS 458 (Oct. 4, 2023).*
The failure of officers to make a written inventory doesn’t necessarily constitutionally nullify the inventory. Officer’s testimony about the standardized procedures was sufficient without actually putting the policy into evidence. State v. Toran, 2023-Ohio-3564, 2023 Ohio LEXIS 1957 (Oct. 4, 2023), rev’g 2022-Ohio-2796, 2022 Ohio App. LEXIS 2654 (1st Dist. Aug. 12, 2022).
A conclusory 2255 claim that defense counsel didn’t investigate defendant’s Fourth Amendment claims states no claim for relief. Foster v. United States, 2023 U.S. Dist. LEXIS 178081 (N.D. Ala. Oct. 3, 2023).*
On the totality, the officer developed reasonable suspicion while talking to defendant during the traffic stop from some otherwise seemingly innocent factors to hesitation in answering simple questions. United States v. Rivera-Raposo, 2023 U.S. Dist. LEXIS 178439 (M.D. Pa. Oct. 3, 2023).*
The officer in a Florida traffic stop could get the driver out of the vehicle as a matter of course under Mimms. Under Maryland v. Wilson, he could order the passenger out, too. It was not clearly established law that the officer could not ask the passenger for identifying information, and the officer thus gets qualified immunity. Johnson v. Nocco, 2023 U.S. App. LEXIS 26054 (11th Cir. Oct. 2, 2023).
The failure to disclose the CI for this warrant had a prior for falsifying evidence wasn’t material where there was other probable cause without it. United States v. Francis, 2023 U.S. Dist. LEXIS 177654 (D.N.H. Oct. 3, 2023).*
Officers responding to a shots fired call encountered the defendant, and they talked to him. Shortly thereafter, they saw a gun in the cupholder, and that was plain view, and he was a felon in possession. United States v. Agee, 2023 U.S. Dist. LEXIS 177968 (N.D. Ill. Oct. 3, 2023).*
Guardian: TechScape: How police use location and search data to find suspects – and not always the right ones (“It’s a practice public defenders, privacy advocates and many lawmakers have criticised, arguing it violates fourth amendment protections against unreasonable searches. Unlike reverse search warrants, other warrants and subpoenas target a specific person that law enforcement has established there is probable cause to believe has committed a specific crime. But geofence warrants are sweeping in nature and are often used to compile a suspect list to further investigate.”)
Posted ingeofence, Surveillance technology|Comments Off on Guardian: TechScape: How police use location and search data to find suspects – and not always the right ones
"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.
