Two anonymous tips about a car built upon one another and finding the car on the interstate was reasonable suspicion. United States v. Gonzalez, No. 422-CR-40119-KES, 2023 U.S. Dist. LEXIS 167068 (D.S.D. Sep. 15, 2023).
Defendant was indicted for conspiring to facilitate illegal border crossings from Mexico to Florida with U.S. stolen boats sent to Mexico then with forged papers. His cellphone was seized by Mexican authorities before the U.S. got involved. There was a search of the phone and downloading it didn’t follow “well-established forensic procedures.” This doesn’t matter. “In any event, Hernandez has not demonstrated that LEOs’ failure to implement well-established forensic procedures while conducting a search of the phone renders the search unreasonable. Hernandez provides no legal authority supporting that a failure to implement well-established procedures can amount to a Fourth Amendment violation.” United States v. Hernandez, 2023 U.S. Dist. LEXIS 166720 (S.D. Fla. Sep. 18, 2023).*
Defendant doesn’t show that the trial court’s finding of reasonable suspicion for continuing the stop was “inherently incredible.” State v. Jacobs, 2023 N.C. App. LEXIS 600 (Sep. 19, 2023).*
Seizure of a syringe from defendant’s pocket in a Terry frisk was reasonable even though it could have been a pen. Other things, no. United States v. Endsley, 2023 U.S. Dist. LEXIS 166997 (D. Alaska Sep. 20, 2023).
Plaintiff sued over a search that alleged a lack of probable cause. A state codefendant’s conviction was reversed for sufficiency of the evidence and a jury instruction error. Her claim was barred by the statute of limitations. Reguli v. Russ, 2023 U.S. Dist. LEXIS 166288 (M.D. Tenn. Sep. 19, 2023).*
“While the Government urges the Court to make a finding that Defendant was evasive, armed, and dangerous, such a finding is not necessary to conclude that Lt. Carvajal properly demanded and subsequently removed Defendant from the vehicle. Lt. Carvajal was permitted to require Defendant to exit the vehicle as a matter of course.” United States v. Angrand, 2023 U.S. Dist. LEXIS 166538 (S.D. Fla. Aug. 29, 2023),* adopted, 2023 U.S. Dist. LEXIS 166538 (S.D. Fla. Aug. 29, 2023).*
A passenger can’t defeat an automobile exception search by removing her purse after probable cause developed. Cases in other jurisdictions have held that removal before probable cause developed put it beyond search. State v. Hoffman, 2023 Tenn. Crim. App. LEXIS 360 (Sep. 19, 2023).
Petitioner’s 2254 was denied for an alleged ineffective assistance of counsel on a Fourth Amendment claim. The state court’s action was not an unreasonable application of the Fourth Amendment, and reasonable jurists would not disagree. Robinson v. Brown, 2023 U.S. App. LEXIS 24801 (6th Cir. Sep. 18, 2023).*
There was a substantial basis for finding probable cause for drugs and evidence of kidnapping. The defense glosses over the latter. United States v. Herrera, 2023 U.S. Dist. LEXIS 166095 (E.D. Pa. Sep. 18, 2023).*
The defense litigated his FISA and Fourth Amendment claims here and in the Ninth Circuit. An OIG report doesn’t alter the outcome or justify reopening the claims. United States v. Mohamud, 2023 U.S. Dist. LEXIS 166212 (D. Or. Sep. 19, 2023).*
The Fourth Amendment revolution in Carpenter v. United States has produced a constitutional world that seems – as Aaron Burr’s character in the hit Broadway musical Hamilton described the Constitution – ‘full of contradictions.’ Carpenter is the latest in a line of Supreme Court cases that attempt to reframe search-and-seizure law to keep pace with changing digital realities. Near the start of the 21st century, the Court addressed thermal-imaging technology that could reveal a home’s interior without a physical entry, seeking to update the Fourth Amendment’s core protection of the home to meet that challenge. A decade later, it applied trespass concepts to restrict GPS tracking of a car on public streets. And more recently, in 2014, it found that a cell phone’s vast capacity to hold information took it outside conventional search-incident-to-arrest doctrine. In 2017, Carpenter continued this project by breaking through the longstanding third-party doctrine: the principle that, when a person voluntarily gives information to a third-party, the person loses any constitutionally protected expectation of privacy in that information.
Posted inCell site location information|Comments Off on Just Security: Resolving Carpenter’s Third-Party Paradox (Part I – The Paradox)
The “security sweep” of defendant’s dwelling violated the Fourth Amendment. No justification for the entry and no exigent circumstances were shown. Defendant’s alleged consent came after the unlawful entry. Denial of suppression reversed. Thompson v. State, 2023 Ga. App. LEXIS 434 (Sep. 19, 2023).
The officer’s entering a dwelling and saying “come over here” was not consent. Motion to suppress granted. United States v. Roubideaux, 2023 U.S. Dist. LEXIS 164805 (D.S.D. Aug. 29, 2023), adopted, 2023 U.S. Dist. LEXIS 164255 (D.S.D. Sep. 13, 2023).*
“In Defendant’s motion to suppress and requesting a Franks hearing, Defendant argues extensively that Officer Ríos Camacho’s version of events found in the sworn statements of the warrant applications cannot be entirely true because some of the events described by Officer Camacho — such as the presence of a firearm — were not captured by a security camera at the residence during the dates of the surveillance. … However, the evidence regarding the security camera introduced at the Franks hearing did not establish by a preponderance of the evidence that Officer Ríos Camacho made intentional false statements or omissions or acted with reckless disregard for the truth.” Even removing all that from the affidavit, there still was probable cause. United States v. Román, 2023 U.S. Dist. LEXIS 165947 (D.P.R. Sep. 18, 2023).*
Slate: New Jersey Provides a Road Map for Fighting Racially Biased Traffic Stops by Aliza Hochman Bloom (“When the Supreme Court struck down the use of race-conscious admissions at Harvard and the University of North Carolina last term, the conservative justices behind the decision robustly claimed to seek the end of racial discrimination, espousing a view that ‘eliminating racial discrimination means eliminating all of it.’ Meanwhile, Justice Sonia Sotomayor noted a major irony: Despite claiming that consideration of race violates the guarantee of the 14th Amendment’s equal protection clause, the court has repeatedly condoned racial profiling as a law enforcement tool that does not violate the Fourth Amendment. The court tolerates pretextual traffic stops and has sanctioned police reliance on an individual’s “apparent Mexican ancestry” at the border and its ‘functional equivalents’ to be a relevant factor justifying a traffic stop based on reasonable suspicion.”)
Posted inPretext|Comments Off on Slate: New Jersey Provides a Road Map for Fighting Racially Biased Traffic Stops
Defendant’s purse over the shoulder was not part of her person. It was removed from her and later searched incident to arrest. The state failed to support the search incident doctrine at the suppression hearing of where the purse was when it was searched in relation to her. State v. Ortiz, 2023 N.M. LEXIS 190 (Sep. 18, 2023).
The officer’s entering a dwelling and saying “come over here” was not consent. Motion to suppress granted. United States v. Roubideaux, 2023 U.S. Dist. LEXIS 164805 (D.S.D. Aug. 29, 2023), adopted, 2023 U.S. Dist. LEXIS 164255 (D.S.D. Sep. 13, 2023).*
Not reasonable suspicion: “The State contends that Rubald had a reasonable, articulable suspicion that Maxfield was involved in the robbery because he knew that (i) two Black men had committed a robbery, (ii) an officer fired shots at the van in which the suspects fled, (iii) the van stopped, (iv) its doors were left open and proceeds from the robbery were recovered from the van and Maxfield, (v) Maxfield was the only person in the general area where the suspects were known to have fled, and (vi) Maxfield was sweating and out of breath.” When police stopped him, he was cooperative. It doesn’t rise to reasonable suspicion. People v. Maxfield, 2023 IL App (1st) 151965-B (Sep. 15, 2023).*
“Excluding Manrique-Frias’s clothing, the CBP officers observed Manrique-Frias walking in an unpopulated rural area within miles of the border where illegal on-foot entry recently had increased and in weather conditions that a person typically would not walk. Agent Buchnowski testified that he observed Manrique-Frias on his phone. Manrique-Frias argues that using a phone while walking is innocent behavior. ‘Even innocent, noncriminal acts can foster reasonable suspicion in the total context.’ … Agent Buchnowski explained that in his experience people who illegally had entered the country often pulled out their phone when they saw a marked border patrol vehicle to alert their ride. These circumstances, when viewed all together, gave rise to reasonable suspicion.” United States v. Manrique-Frias, 2023 U.S. Dist. LEXIS 165486 (D. Mont. Sep. 18, 2023).
Petitioner’s cell phone was seized, copied, and returned. By court order, however, no one can see the contents: Not the court, DA, or defense. Until there is potential release of the information, this case isn’t ripe yet. State v. Cunningham, 2023-Ohio-3300 (11th Dist. Sep. 18, 2023).*
Defendant is on parole and his cell phone seized by the PO. The later search warrant for the phone was founded on probable cause. United States v. Peters, 2023 U.S. Dist. LEXIS 165503 (D. Mont. Sep. 18, 2023).*
The distinction between the smell of legal hemp and illegal marijuana wasn’t material where the officer testified he smelled marijuana. United States v. Harris, 2023 U.S. Dist. LEXIS 164723 (W.D.N.C. Sep. 14, 2023).*
Defendant was speeding. The stop produced a warrant on him, and that’s inevitable discovery. United States v. Davis, 2023 U.S. App. LEXIS 24665 (6th Cir. Sep. 15, 2023).*
Exactly where the truck and trailer were parked on the property as “in front of” a building doesn’t really matter. “Given these facts, the Court finds that in a ‘practical and commonsense’ reading of the warrant’s language, the work truck was parked ‘in front of’ the Premises. Gallegos has not met his burden to demonstrate that the vehicle search went beyond the scope of the warrant.” United States v. Gallegos, 2023 U.S. Dist. LEXIS 164730 (D.N.M. Sep. 15, 2023).*
The drug dog broke the plane of the window, and that’s a trespass. There was no probable cause at that point, and the R&R is rejected. The motion to suppress is granted. United States v. Buescher, 2023 U.S. Dist. LEXIS 164807 (N.D. Iowa Sep. 12, 2023).
To litigate a 2254 Fourth Amendment issue, petitioner must show in the petition that he was somehow barred by the state from litigating it at all, and he did not. Dennison v. Warden of McDougall Corr. Inst., 2023 U.S. Dist. LEXIS 164246 (D.S.C. Aug. 18, 2023),* adopted, 2023 U.S. Dist. LEXIS 163328 (D.S.C. Sep. 13, 2023).*
Defendant’s stop was justified by failing to signal, and there was thus no ground to suppress the initial stop. United States v. McWilliams, 2023 U.S. Dist. LEXIS 164352 (M.D. Ala. Aug. 23, 2023),* adopted, 2023 U.S. Dist. LEXIS 163183 (M.D. Ala. Sep. 14, 2023).*
AP News: A Mississippi jury rules officers justified in fatal 2017 shooting after police went to wrong house (“The case was notable in part because the city of Southaven had previously argued that Lopez had no civil rights to violate because the Mexican man was living in the United States illegally and faced deportation orders and criminal charges for illegally possessing guns. A judge rejected that argument in 2020, finding constitutional rights apply to ‘all persons.'”)
Posted inWarrant execution|Comments Off on AP News: A Mississippi jury rules officers justified in fatal 2017 shooting after police went to wrong house
Police responding to a shots fired call looked through the windows of defendant’s Tahoe and saw a gun magazine. Failure to mention the lack of a ShotSpotter alert wasn’t material. United States v. Johnson, 2023 U.S. Dist. LEXIS 164666 (D. Neb. Sep. 15, 2023).*
“Burris next asserts that his attorney was ineffective for failing to move to suppress evidence seized in a search of his home conducted under a warrant. In his § 2255 motion, Burris claimed that the affidavit supporting the warrant was ‘barebones,’ but he does not explain how the affidavit was insufficient or make a substantial showing that the warrant was not supported by probable cause. … Burris also claimed that the search warrant included not his name but his codefendant’s, yet the warrant accurately described the house in which controlled drug buys had been conducted, and so counsel correctly reasoned that there was no credible probable-cause challenge to make.” Burris v. United States, 2023 U.S. App. LEXIS 24535 (6th Cir. Sep. 14, 2023).*
The officer knew of defendant’s horrible driving record and unpaid fines, and that led to the reasonable conclusion he was driving without a valid license. He wasn’t required to check on the computer, which would have only confirmed it. State v. Dixon, 2023 W. Va. LEXIS 331 (Sep. 15, 2023).*
Posted inUncategorized|Comments Off on D.Neb.: Failure to mention lack of ShotSpotter alert in SW affidavit after seeing possible evidence inside SUV not material
Where the defense was consent, the alleged ineffective assistance of counsel in failing to move to suppress DNA results can’t be ineffectiveness. State v. Elder, 2023 Del. Super. LEXIS 770 (Sep. 13, 2023).*
CBP officers used an “escort hold” on plaintiff at the border when he pulled his arms away from them, and this was not unreasonable. Voeltz v. United States, 2023 U.S. Dist. LEXIS 163240 (C.D. Cal. Aug. 23, 2023).*
The CI’s information wasn’t as detailed as defendant asks, but that’s not required by the Fourth Amendment. Otherwise, the information provided probable cause. United States v. Cantrell, 2023 U.S. Dist. LEXIS 163666 (N.D.W. Va. Sep. 14, 2023).*
An after seizure alleged break in the chain of custody of DNA evidence taken is not a Fourth Amendment violation. Timothy C. v. Straughn, 2023 W. Va. LEXIS 339 (Sep. 15, 2023).
Defendant’s LPN wasn’t visible until after the stop, and reasonable suspicion developed. “In the instant case, Weirich testified he noticed the plate ‘looked ok’ as he walked up to the driver, but the plate was secondary to his concern for officer safety in that moment. Upon speaking to appellant, he learned appellant was driving from New Mexico to the Detroit suburbs with no visible baggage; appellant’s driver’s license was suspended; and upon running the plate, the registration came back to a different vehicle.” State v. Carrillo, 2023-Ohio-3264 (5th Dist. Sep. 13, 2023).*
“[B]eing deprived of one’s property alone is sufficient to suggest ‘actual injury’ at the pleading stage.” One Eye El-Bey v. Sylvester, 2023 U.S. Dist. LEXIS 163019 (S.D. Ohio Sep. 13, 2023).*
“After some discussion of his choice to voluntarily agree to a search or wait until a search warrant was obtained, petitioner left the trooper’s vehicle, saying words to the effect of ‘F*** it. Come on.’ He walked toward his house with the trooper following behind him. When the trooper asked him to slow down so that he could catch up, petitioner complied.” State v. Cody, 2023 W. Va. LEXIS 338 (Sep. 15, 2023).
“Assuming, as the district court did, that the misstatements and omissions that Dow identified in the warrant affidavits were made intentionally or recklessly, they were immaterial.” United States v. Dow, 2023 U.S. App. LEXIS 24570 (9th Cir. Sep. 15, 2023).*
In a criminal excessive force civil rights prosecution, the reasonableness of force was a close question, and the government’s rebuttal argument raising using a flashlight as a weapon was inappropriate. Judgment of acquittal granted. United States v. Villanueva, 2023 U.S. Dist. LEXIS 161639 (D.N.J. Sep. 12, 2023).*
Posted inConsent, Franks doctrine|Comments Off on WV: When asked for consent to search his house, def said ‘F*** it. Come on.’ That was consent.
“The trial court decided the facts were sufficient to justify a Terry stop. After taking account of the totality of the circumstances, we reverse the denial of Maxfield’s motion to quash arrest and suppress the identification and other evidence obtained, vacate the convictions for armed robbery and unlawful use of a weapon, and remand for a new trial. We do so because without any distinctive or individualized details, the officer lacked a reasonable, articulable suspicion to stop an individual who happened to be walking in a general area. As the Supreme Court recognized in Terry, a stop should not ‘be undertaken lightly.’ Id. at 17.” People v. Maxfield, 2023 IL App (1st) 151965-B, 2023 Ill. App. LEXIS 326 (Sep. 15, 2023).*
CI’s tip was corroborated by defendant’s late night trip to a closed McDonald’s, and that was reasonable suspicion. United States v. Helton, 2023 U.S. App. LEXIS 24372 (6th Cir. Sep. 12, 2023).*
There was probable cause for the warrant for the [redacted] place in the warrant. The good faith exception also applies. The Franks challenge fails for lack of materiality to probable cause. United States v. Obryant, 2023 U.S. Dist. LEXIS 161875 (N.D. Cal. Sep. 5, 2023).*
There is no Fourth Amendment right to be detained and interrogated in a certain way more to one’s liking. Hendrix v. City of Madera, 2023 U.S. Dist. LEXIS 163446 (E.D. Cal. Sep. 14, 2023)*:
Plaintiff’s complaint against the jail for recording attorney-client calls and transmitting them to law enforcement and prosecutors stated a claim for relief that was clearly established. Hurdsman v. Gleason, 2023 U.S. Dist. LEXIS 163081 (W.D. Tex. Sep. 14, 2023).
Defendant’s 2255 Franks ineffective assistance of counsel claim fails. Information came from another law enforcement agency, and it wasn’t even recklessly false. Zareck v. United States, 2023 U.S. Dist. LEXIS 161681 (W.D. Pa. Sep. 12, 2023).*
2255 petitioner argues that defense counsel’s losing IP address privacy argument was not properly phrased, and that’s ineffective assistance. Even restated, it was a loser. Trader v. United States, 2023 U.S. Dist. LEXIS 162487 (S.D. Fla. Sep. 13, 2023).*
Defendant’s possession of flash drives and other electronics was reasonable suspicion he violated terms of supervised release. United States v. Berry, 2023 U.S. Dist. LEXIS 162466 (E.D. Mo. July 21, 2023),* adopted, 2023 U.S. Dist. LEXIS 161204 (E.D. Mo. Sep. 12, 2023).*
Plaintiff seeks to block airing of a documentary about his case because it would interfere with his collateral attack. Denied. Takhvar v. Warner Bros. Discovery Inc., 2023 U.S. Dist. LEXIS 163006 (M.D. Fla. Aug. 17, 2023)*:
"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.
