“Assuming for the sake of argument that Akladyous was in fact improperly detained for more than 48 hours before a probable cause finding was made, such argument would not invalidate his subsequent conviction pursuant to Gerstein.” State v. Akladyous, 2023-Ohio-3105, 2023 Ohio App. LEXIS 307 (12th Dist. Sept. 5, 2023).
The warrant completely lacked probable cause a gun would be found in defendant’s house. “Officer Benjamin prepared the affidavit and executed the warrant. As a reasonably well-trained officer, Benjamin would recognize that the affidavit that he presented to the Magistrate was inadequate.” People of the V.I. v. Pryce, 2023 VI SUPER 52U, 2023 V.I. LEXIS 37 (Super. Ct. Aug. 23, 2023) (unpublished).*
A state statute prohibiting stops for defective equipment and having a statutory exclusionary rule was not retroactive to a stop occurring before it was effective. Smith v. Commonwealth, 2023 Va. App. LEXIS 584 (Sep. 5, 2023).*
Weaving in one’s lane and turning headlights on and off was reasonable suspicion. State v. Taylor-Billings, 2023-Ohio-3104 (9th Dist. Sept. 5, 2023).*
(1) The tracking device placed on defendant’s vehicle by court order was with probable cause. (2) “For a claim under the Maine Constitution to be deemed preserved for our review, however, the party advancing the claim cannot merely allude to or cite the Maine Constitution but must develop his argument.” “What is required to preserve a state constitutional claim will vary by context.” (3) Finally, “The special agent’s failure to fulfill multiple requirements of M.R.U. Crim. P. 41(g) [on return and inventory], though ‘subject to strong disapproval,’ does not require that the evidence be suppressed.” State v. Norris, 2023 ME 60, 2023 Me. LEXIS 70 (Aug. 31, 2023).
Successor habeas petitioner’s Fourth Amendment ineffective assistance of counsel claim that his DNA was illegally taken was relitigating the same issue in his 2254. “Because Ragland’s claims in his current application are identical to the claims in his original petition, we lack jurisdiction to consider them.” In re Ragland, 2023 U.S. App. LEXIS 23241 (11th Cir. Aug. 31, 2023).*
“So, in the Fourth Amendment context, a seizure arises if a police officer intentionally causes a crash to end a police chase whereas no seizure occurs if there is simply an accidental crash. The officers have offered no reason the same would not be true under the Fourteenth Amendment.” Cheeks v. Belmar, 2023 U.S. App. LEXIS 23264 (8th Cir. Sep. 1, 2023).*
A rarity: A child pornography search warrant that was based on boilerplate and little facts that also failed the good faith exception. United States v. Lewis, 2023 U.S. App. LEXIS 23316 (6th Cir. Sep. 1, 2023):
A juvenile’s mother who had the child’s cell phone in her name because she bought it and it was on her account and the child lived with her gave her apparent authority to consent to search of the phone. In re J.F.S., 2023 D.C. App. LEXIS 246 (Aug. 31, 2023).
Defendant’s argument on lack of probable cause is premised on “facts” outside the record. Collectively there was probable cause, and defendant’s prior child sex offense conviction adds to it. United States v. Binford, 2023 U.S. Dist. LEXIS 154532 (E.D. Cal. Aug. 30, 2023).*
The parties agreed that, in lieu of a hearing, the trial court needed only to review the bodycam video of the search. The contention a further hearing was required was waived. Gumpert v. State, 2023 Tex. App. LEXIS 6999 (Tex. App. – Texarkana Aug. 31, 2023) (unpublished).* Readers might have noticed some unpublished and noncontroversial decisions posted here, like this one on procedural default. If you practice in a “procedural default in extremis state” like mine, these are significant. It’s what not to do.
Under Mancusi v. Deforte, an employee has no standing in the open area of the office where he or she works, as opposed to one’s private office. United States v. Johnson, 2023 U.S. Dist. LEXIS 154559 (S.D.N.Y. Aug. 31, 2023).
“To summarize, when the officers stopped Critchfield, they knew he was a man with a weighed down sweatshirt pocket who had walked through a residential neighborhood past an occasionally unoccupied home next to a commercial area in broad daylight and who had behaved evasively when a neighborhood resident watched and followed him. These circumstances, without more, do not give rise to reasonable suspicion of theft. [¶] The Government attempts to bolster its showing by citing other cases where suspicion rested on similar factors. But those cases only highlight the dearth of reasonable, articulated suspicion here.” United States v. Critchfield, 2023 U.S. App. LEXIS 23133 (4th Cir. Aug. 31, 2023).*
Plaintiff’s jail sexual assault claim only alleges violations of state law and not the Fourth Amendment. Therefore, there is no federal claim here. Hutchison v. Atkinson, 2023 U.S. Dist. LEXIS 154466 (W.D. Tex. Aug. 30, 2023).*
“In one sentence in this section of his brief, Nash also argues that courts have found that a cell phone user has a reasonable expectation of privacy in the user’s phone’s contents. Nash does not challenge the evidence that the text messages were recovered from Remi’s phone with her consent. Because Nash’s brief does not contain any further discussion of privacy rights, we do not read the brief to argue that the messages should have been excluded on the basis that his Fourth Amendment rights were violated when the police obtained the data from Remi’s phone, and he did not raise any such argument in the trial court.” Nash v. State, 2023 Tex. App. LEXIS 6950 n.2 (Tex. App. – Ft. Worth Aug. 31, 2023) (unpublished).
Going 88 in a 65 was justification for a stop; a search for marijuana was justified by the smell. United States v. Qualls, 2023 U.S. Dist. LEXIS 154344 (N.D. Iowa Aug. 7, 2023), adopted, 2023 U.S. Dist. LEXIS 152157 (N.D. Iowa Aug. 29, 2023).*
Plaintiff’s claim against the TSA for an unreasonable strip search because of a menstrual pad setting off the security system is rejected. During the search, the area to the secondary screening area wasn’t properly closed off and private. Mengert v. United States, 2023 U.S. Dist. LEXIS 153981 (N.D. Okla. Aug. 31, 2023).*
Defendant made his “substantial preliminary showing” for a possible Franks violation on the credibility of a CI to at least get a hearing. (And it sounds like he’d prevail at the hearing because the affidavit depended entirely on the CI’s tale.) United States v. Hohman, 2023 U.S. Dist. LEXIS 154134 (D. Mass. Aug. 31, 2023):
“We … hold that Wayne County violated that Constitution when it seized plaintiffs’ personal vehicles—which were vital to their transportation and livelihoods—with no timely process to contest the seizure. We further hold that Wayne County was required to provide an interim hearing within two weeks to test the probable validity of the deprivation. Accordingly, we AFFIRM and REMAND for further proceedings consistent with this opinion.” Ingram v. Wayne Cty., 2023 U.S. App. LEXIS 23095 (6th Cir. Aug. 31, 2023).
The jail’s violation of attorney-client privilege in recording attorney calls wasn’t relevant to the continued detention question. United States v. Crumpton, 2023 U.S. Dist. LEXIS 153607 (M.D. Ga. Aug. 30, 2023).*
“Accordingly, taken as a whole, the specific and articulable facts presented by the TFOs here established reasonable suspicion at the time of the seizure to justify prolonging the traffic stop, detaining Claimant’s vehicle, and calling for a K9 sniff. In sum, there was no Fourth Amendment violation, and Claimant’s Motion to Suppress (Doc. 35) is DENIED.” United States v. $146,400.00 in United States Currency, 2023 U.S. Dist. LEXIS 153644 (S.D. Ill. Aug. 30, 2023).*
Posted inUncategorized|Comments Off on CA6: Unreasonable delay for vehicle forfeiture decision violates due process
The search warrant for defendant’s cell phone in a burglary case was not based on stale information. She was in custody and her phone was in her property. Cell phone information is enduring. Veal v. State, 2023 Tex. App. LEXIS 6861 (Tex. App. – Houston (1st Dist.) Aug. 31, 2023).
“Police officers Michael Curtis and Kyle Gray responded to a 911 call reporting a domestic dispute. When they arrived at the reported location, all was quiet, and they could not detect any signs of an altercation. The officers knocked on Robert Reed’s front door. After a brief verbal exchange, Reed refused to engage further with the officers because they did not have a warrant. The officers then broke down Reed’s front door, pointed a gun at his head, and removed him from his home. Reed filed a suit against the officers in their official and individual capacities under 42 U.S.C. § 1983. Upon motions for summary judgment, the district court denied the officers qualified immunity for Reed’s Fourth Amendment claims of unlawful entry, false arrest, and excessive force. We AFFIRM the district court’s denial of qualified immunity.” Reed v. Campbell Cty., 2023 U.S. App. LEXIS 22946 (6th Cir. Aug. 30, 2023).*
There was reasonable suspicion for defendant’s probation search. United States v. Teston, 2023 U.S. Dist. LEXIS 153339 (D.N.M. Aug. 28, 2023).*
The failure to update the original search warrant affidavit with information from an intervening search showed “multiple careless errors, [and the court] could not say that these errors establish recklessness or materiality. There is simply no evidence upon which the court can conclude that Special Agent Gravley’s carelessness was designed to mislead the magistrate judge. Furthermore, the affidavit’s misrepresentations and omissions were not material to the finding of probable cause. As discussed further below, even without the information relating to 117 Keystone Drive, the warrant was supported by ample probable cause.” United States v. Bolling, 2023 U.S. Dist. LEXIS 153333 (S.D. W. Va. Aug. 30, 2023).*
Details about how surveillance was conducted wasn’t material to the probable cause determination under Franks. United States v. Floyd, 2023 U.S. App. LEXIS 22910 (11th Cir. Aug. 30, 2023).*
“The totality of circumstances in this case—including the officer’s observations of the fanny pack (as informed by his experience recovering firearms from fanny packs), Hagood’s unusual manner of wearing the fanny pack, his nervous appearance, and the late hour in a high-crime neighborhood – established reasonable suspicion.” United States v. Hagood, 2023 U.S. App. LEXIS 22941 (2d Cir. Aug. 30, 2023).*
Posted inFranks doctrine, Stop and frisk|Comments Off on S.D.W.Va.: Failure to update a prior SW affidavit was careless but not intentionally misleading
Defense counsel’s failure to seek the IAD file on the officers at a suppression hearing wasn’t ineffective assistance of counsel. The searching officer had an alleged propensity to exaggerate and excessively strip search. Here, however, another officer was there to testify that nothing was amiss. Strickland unsatisfied. Blake v. State, 2023 Md. LEXIS 380 (Aug. 29, 2023).
The officer arranged for the CI to do a drug deal and then observed defendant interacting with the CI and going in his house and coming back out. There was probable cause as to the house. State v. Syvilaylack, 2023-Ohio-3033 (5th Dist. Aug. 28, 2023).*
Execution of this search warrant by a member of the Missouri Highway Patrol and FBI agents did not violate state law that says warrants have to be executed by “peace officers.” MHP was included. State v. Scherrer, 2023 Mo. App. LEXIS 635 (Aug. 29, 2023).*
Impoundment of an unlicensed and unregistered motorcycle off the street was reasonable when plaintiff was arrested and jail. Owens v. Fitzgerald, 2023 U.S. Dist. LEXIS 152077 (D. Conn. Aug. 29, 2023).*
• The New York Civil Liberties Union released data to the Gothamist that shows staggering racial disparities among interactions by the New York Police Department under the leadership of former cop turned mayor Eric Adams. Just 5 percent of NYPD pedestrian were white. Meanwhile, 72 percent of Blacks and Latinos stopped were innocent. Adams’ tenure has also seen the most police stops since 2015, including 670,000 traffic stops, among which 90% of those arrested were Black or Latino. NYPD mandates officers to report the cause for a stop, yet 92 percent of stops ambiguously list “fits a relevant description” or “other” as the reason officers initiated the stop.
. . .
• Transcripts revealed attorneys for Twitter/X tried to impede Special Counsel Jack Smith’s search warrant for Trump’s Twitter data. The exchange stands in stark contrast to Elon Musk’s capitulation to requests for user data from authoritarian governments.
“In this appeal, we are asked to consider the narrow application of the automobile exception to the Fourth Amendment’s warrant requirement: whether officers may, in the course of a car search, search a container held roughly 25 feet away from the car. We hold that the automobile exception does not extend to containers removed from the car before officers develop probable cause to search the car.” State v. Lewis, 2023-Ohio-3036, 2023 Ohio App. LEXIS 3014 (1st Dist. Aug. 30, 2023).
Defendant was not stopped. The officer “asked Appellant to ‘let me holler at you’ and ‘let me talk to you.’ Based upon this record, we find the State’s evidence insufficient to establish Appellant committed the offense of evading arrest or detention” when he refused to talk. In re O.I., 2023 Tex. App. LEXIS 6640 (Tex. App. – Amarillo Aug. 28, 2023).*
Lawyer new to case wasn’t new to district, and affidavit of standing is required in the Second Circuit for motions to suppress. Then, the Franks motion was denied for failure to show standing. United States v. Brooks, 2023 U.S. Dist. LEXIS 151621 (W.D.N.Y. Aug. 3, 2023),* adopted, 2023 U.S. Dist. LEXIS 150359 (W.D. N.Y. Aug. 25, 2023).*
Plaintiff raised fact questions as to both qualified immunity prongs, so it’s going back for trial. Larpenter v. Vera, 2023 U.S. App. LEXIS 22770 (5th Cir. Aug. 29, 2023).*
The target of a search warrant can’t yet get access to the affidavit in support because the case is still under investigation and there is a potential of exposing grand jury witnesses. In re Search Warrants Issued November 30, 2022, 2023 U.S. Dist. LEXIS 152706 (E.D. Pa. Aug. 29, 2023).
The tipster that led to a stop was not a material witness for trial, so no discovery of identity. United States v. Garner, 2023 U.S. Dist. LEXIS 150924 (D. Minn. Aug. 28, 2023).*
Plaintiff’s Maserati was towed for parking on the sidewalk and ultimately sold. Defendants get qualified immunity because they could present no similar case that says this was unreasonable when it happened. Guerrier v. Avdulla, 2023 U.S. Dist. LEXIS 150975 (E.D. Pa. Aug. 25, 2023).*
Plaintiff’s claim he was Tased by three officers and one sat on his neck, among other things, stated an excessive force claim. Burning Breast v. Officer 1, 2023 U.S. Dist. LEXIS 151188 (D.S.D. Aug. 24, 2023).*
The government suspected defendant of acquiring a pill press and got a sneak and peak warrant to look around and photograph inside his place. Later, they got a search warrant for the place and seized drugs. The government’s knowledge of the coming shipment and allowing him to possess did not constitute outrageous governmental conduct since they did nothing to control or influence his actions. Their dog sniff in an apartment building’s hallway was not unreasonable. “White suggests that the hallway was constitutionally protected because it was locked and not open to the public. But what matters is not whether the hallway was open to the public, but whether it was considered a ‘common’ area.” It was not curtilage. United States v. White, 2023 U.S. Dist. LEXIS 151936 (D. Minn. Aug. 29, 2023).
“McVay first argues that the affidavit failed to disclose that the confidential informant (CI) initially lied to police officers about her own activity selling drugs. Even assuming that omission of this information was intentionally or recklessly misleading, McVay has not shown that the omitted facts were material. To establish materiality, McVay must show that the omitted information was ‘necessary to the finding of probable cause.’” It is wasn’t. United States v. McVay, 2023 U.S. App. LEXIS 22613 (9th Cir. Aug. 28, 2023).*
The officer observing a motorist speeding justifies a stop under the Fourth Amendment. State v. Brown, 2023-Ohio-3017 (11th Dist. Aug. 28, 2023).*
Police parking next to a defendant’s car is not a seizure. United States v. Gartrell, 2023 U.S. App. LEXIS 22719 (6th Cir. Aug. 28, 2023).
Covid limitations on visitation at a small hospital wasn’t a Fourth Amendment violation, among other claims found frivolous. Phillips v. Rocha, 2023 U.S. Dist. LEXIS 150606 (W.D. Ark. Aug. 25, 2023).*
Defendant lost a motion to suppress before trial. His post-conviction Franks claim was barred by res judicata. State v. Taylor, 2023-Ohio-2994 (4th Dist. Aug. 22, 2023).
During a stop for an equipment violation, the smell of marijuana became probable cause for a search. State v. Sheldon, 2023-Ohio-2998 (12th Dist. Aug. 28, 2023).*
The district court’s findings that officers saw defendant with a gun is not speculative and it shows probable cause. United States v. Jones, 2023 U.S. App. LEXIS 22592 (10th Cir. Aug. 28, 2023).*
A person acquitted at trial but arrested with probable cause has no claim. Probable cause for arrest survives an acquittal. Davis v. City of Apopka, 2023 U.S. App. LEXIS 22680 (11th Cir. Aug. 28, 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.
