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):
Today is my 50th anniversary as a lawyer, sworn in at 9:00 am, Friday August 31, 1973, by Jimmy Hawkins, the Clerk of the Arkansas Supreme Court. (The bar results were out at noon Saturday, August 25th. I don’t remember why I waited six days.)
It’s fitting, then, that today I’m waiting for a jury in the Western District of Arkansas at Fayetteville, after an eight day wire fraud trial vs. Main Justice Fraud Section. Three prosecutors, four defendants, 350 exhibits.
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There is no due process or judicial ethics restriction on a suppression hearing judge hearing the validity of the warrant he or she issued. State v. Taylor, 2023-Ohio-2995, 2023 Ohio App. LEXIS 2982 n.1 (4th Dist. Aug. 22, 2023):
Defendant officer’s arrest of plaintiff for terrorizing under state law for a social media post joke about the police violated clearly established law and violated the First Amendment, too. Bailey v. Iles, 2023 U.S. App. LEXIS 22503 (5th Cir. Aug. 25, 2023).
Defendant filed a second motion to suppress after denial of the first motion. Treating it as a motion to reopen, defendant doesn’t allege a sufficient reason to have not pursued the same factual issue before. Denied. United States v. Pope, 2023 U.S. Dist. LEXIS 150761 (N.D. Ohio Aug. 28, 2023).
Disagreement with a district court’s suppression ruling is subject to appeal. Reconideration here wasn’t appropriate. There’s no reason here why the court couldn’t decide the case on inevitable discovery, an agrument implicit in the government’s response. United States v. Pope, 2023 U.S. Dist. LEXIS 150761 (N.D. Ohio Aug. 28, 2023).*
“The agents knew Jones had been convicted of a felony, and they knew he was now prohibited from possessing a firearm. The question for us is whether the district court’s finding that the agents saw Jones in possession of a firearm is clearly erroneous.” It was not. United States v. Jones, 2023 U.S. App. LEXIS 22592 (10th Cir. Aug. 28, 2023).*
“Christopher Montalvo-Flores moved to suppress evidence the Government obtained in its search of his girlfriend’s rental car. The District Court denied his motion, holding that he failed to show he had a reasonable expectation of privacy in that vehicle. We disagree, as unrebutted evidence shows Montalvo-Flores had possession and control of the car with his girlfriend’s permission.” United States v. Montalvo-Flores, 2023 U.S. App. LEXIS 22586 (3d Cir. Aug. 28, 2023).
Defendant’s stop for driving on a suspended liceense was valid. State v. Wood, 2023-Ohio-2973 (2d Dist. Aug. 25, 2023).*
The affiant’s knowledge defendant was seeking child pornography on the darkweb showed nexus to his home internet. The affidavit is viewed for what it contains, not what it omits. United States v. Kneubuhler, 2023 U.S. Dist. LEXIS 150072 (N.D. Ga. Aug. 3, 2023),* adopted, 2023 U.S. Dist. LEXIS 148827 (M.D. Fla. Aug. 24, 2023).*
Defense counsel wasn’t ineffective for not making a Fourth Amendment challenge that would have clearly failed. State v. Mabior, 314 Neb. 932 (Aug. 25, 2023).*
There was a motion to suppress denied at trial. “Now, seven years later appellant seeks to file a motion to suppress and a motion for a Franks hearing. We believe, however, that the trial court correctly concluded that res judicata barred both motions.” State v. Taylor, 2023-Ohio-2994, 2023 Ohio App. LEXIS 2983 (4th Dist. Aug. 22, 2023).
Defendant’s motion for new trial claim that the trial judge ruling on the motion to suppress was also the one who signed the warrant wasn’t newly discovered. Thus, this was not a ground for a new trial. State v. Taylor, 2023-Ohio-2995 (4th Dist. Aug. 22, 2023).*
Even if the search warrant for parts of defendant’s Facebook account included geolocation data of posts because they were consciously posted with location data, the good faith exception applies. United States v. Roberts, 2023 U.S. Dist. LEXIS 149875 (S.D. Ind. Aug. 25, 2023).*
The warrant for child pornography on defendant’s electronic devices was neither bare bones nor stale. It was based on probable cause. United States v. Brown, 2023 U.S. Dist. LEXIS 149824 (W.D. La. Aug. 7, 2023),* adopted, 2023 U.S. Dist. LEXIS 147709 (W.D. La., Aug. 22, 2023).*
“But this court concluded that ‘Plaintiff-Appellees’ claims against Officer Currie … fall under the Fourth Amendment.’ [Mayfield, 976 F.3d at 486 n.1.] As that opinion explained, ‘in order to bring a First Amendment claim for retaliatory arrest, a plaintiff generally must first show the absence of probable cause for the arrest, i.e., a Fourth Amendment violation.’ Id. (citing Nieves v. Bartlett, 139 S. Ct. 1715, 204 L. Ed. 2d 1 (2019)).” Mayfield v. Snow, 2023 U.S. App. LEXIS 22364 n.1 (5th Cir. Aug. 23, 2023).*
“Glover asserts that Paul subjected him to a strip search and, without legitimate penological justification, grasped his naked penis, squeezed it hard, and gestured. Viewing the facts in the light most favorable to Glover, a jury could find that the alleged conduct constituted sexual abuse or assault. We accept that some contact with a detainee’s genitals may be necessary and proper during a legitimate strip search, but Paul’s alleged conduct was intentional and gratuitous, and thus exceeded the legitimate purpose of a search. … A reasonable official would have understood that the conduct alleged in Glover’s verified complaint constituted an unreasonable use of force that violated a detainee’s right under the Fourteenth Amendment.” Glover v. Paul, 2023 U.S. App. LEXIS 22296 (8th Cir. Aug. 24, 2023).*
A homeless man carrying 25-30 vinyl records without a turntable was reasonable suspicion something was afoot. He also had a warrant out and a prior for theft. United States v. Larson, 2023 U.S. App. LEXIS 22434 (11th Cir. Aug. 25, 2023).*
Even when documents are seized during an ongoing investigation, the target can seek return of privileged documents. The trial court erred in not “affording appellants an opportunity to challenge that determination [of lack of privilege] prior to disclosure.” In re Search Warrants Regarding Seizure of Documents, 139 Nev. Adv. Rep. 23, 2023 Nev. LEXIS 24 (Aug. 24, 2023):
The search incident of defendant’s backpack during his stop and arrest for a hand-to-hand sale of synthetic marijuana was reasonable. Surveying all SCOTUS search incident cases and cases from many states, the backpack was essentially a part of his “person.” Commonwealth v. Bembury, 2023 Ky. LEXIS 259 (Aug. 24, 2023):
On a Franks challenge, “Defendant failed to establish that, if additional information about the informant’s credibility had been included, the affidavit would have been insufficient to establish probable cause.” United States v. Carter, 2023 U.S. App. LEXIS 22478 (9th Cir. Aug. 25, 2023).
Plaintiff’s claim that his arrest for a minor offense wasn’t observed by the officer was waived. Brackbill v. Ruff, 2023 U.S. App. LEXIS 22323 n.2 (3d Cir. Aug. 24, 2023).*
“Because the record establishes that T.F.-G. was resisting what a reasonable person would have recognized as Ferrante’s attempt to detain him, Villaruz had probable cause to arrest him. We therefore reject T.F.-G.’s challenge to the lawfulness of the search incident to that arrest.” In re T.F.-G., 2023 Cal. App. LEXIS 639 (6th Dist. Aug. 24, 2023).*
A search warrant for transactions on an EBT card helped lead to a murder charge. On habeas, that’s not a claim. Hoyle v. Williams, 2023 U.S. Dist. LEXIS 148937 (E.D. Pa. July 28, 2023),* adopted 2023 U.S. Dist. LEXIS 146525 (E.D. Pa. Aug. 21, 2023).*
Clearly established state statute doesn’t translate to clearly established constitutional law for § 1983 qualified immunity purposes. Brown v. Tromba, 2023 U.S. Dist. LEXIS 149020 (D. Nev. Aug. 23, 2023).*
“In their reply brief the OSA Defendants cite cases concerning a reasonable expectation of privacy in the context of warrantless searches and seizures. … These cases have no bearing on Plaintiff’s ability to bring a claim for trespass.” Femhealth United States, Inc. v. Williams, 2023 U.S. Dist. LEXIS 149106 n.8 (M.D. Tenn. Aug. 23, 2023).*
There was probable cause to believe drugs were in defendant’s car, and that supported its search after his arrest. United States v. Garay, 2023 U.S. Dist. LEXIS 149327 n.12 (D.R.I. Aug. 22, 2023).*
“A defendant challenging the admissibility of her statements bears the burden of establishing that she was in custody when she made them. … Whether a suspect is ‘in custody’ for purposes of the Fifth Amendment looks beyond the Fourth Amendment’s free-to-leave seizure inquiry to whether, under a totality of the circumstances, ‘a reasonable person would have understood [her] freedom of action to have been curtailed to a degree associated with formal arrest.’” United States v. Ruoho, 2023 U.S. Dist. LEXIS 149235 (N.D. Ala. July 13, 2023),* adopted, 2023 U.S. Dist. LEXIS 147228 (N.D. Ala. Aug. 22, 2023).*
Collective knowledge also applies to reasonable suspicion. State v. Hodge, 2023 Tenn. Crim. App. LEXIS 317 (Aug. 24, 2023).
Defendant’s “certified question” for appeal was overbroad. State v. Beech, 2023 Tenn. Crim. App. LEXIS 313 (Aug. 24, 2023).*
Defendant was prosecuted for the state crime of harassment under the Assimilative Crimes Act, but the affidavit for the arrest warrant failed to show probable cause. United States v. Berkowitz, 2023 U.S. Dist. LEXIS 148443 (W.D. Wash. Aug. 23, 2023).*
A “frisk” of touching defendant’s back after seeing a gun box during protective sweep was with reasonable suspicion on the totality. United States v. Gallegos, 2023 U.S. Dist. LEXIS 148687 (D. Idaho Aug. 21, 2023).*
Undated Instagram messages were still sufficient for the good faith exception to apply to a warrant issued on them. United States v. Mason, 2023 U.S. App. LEXIS 22367 (5th Cir. Aug. 23, 2023)*:
The affiant for the warrant failed to show nexus, but there was enough nexus for the good faith exception to apply. United States v. Westley, 2023 U.S. App. LEXIS 22357 (6th Cir. Aug. 22, 2023):
“Although the Supreme Court has expressly declined to hold that a parolee categorically has no expectation of privacy in any context, … Lenhart, as a parolee who was subject to electronic monitoring as a condition of his parole, had no reasonable or legitimate expectation of privacy in his location, …. Nor did Lenhart restore any reasonable expectation of privacy in his location when he illicitly failed to charge or removed his electronic ankle monitor. … Accordingly, the district court correctly concluded that Lenhart did not have a legitimate expectation of privacy in his location, and thus appropriately denied Lenhart’s motion to suppress for lack of standing. Our conclusion on Lenhart’s lack of Fourth Amendment standing obviates the need to address his argument that law enforcement needed a search warrant to obtain data from OnStar regarding the Traverse.” United States v. Lenhart, 2023 U.S. App. LEXIS 22269 (6th Cir. Aug. 23, 2023).
“We agree with Flood’s argument that the police should have obtained a search warrant for Flood’s cell phone location. Nevertheless, the discovery of Flood’s precise location was inevitable. … As the result of a controlled call, the police knew Flood was in Orlando at a theme park. When the police went to Orlando to arrest Flood, they did so with an arrest warrant. So we affirm the circuit court’s denial of Flood’s motion to suppress.” Flood v. State, 2023 Fla. App. LEXIS 5927 (Fla. 4th DCA Aug. 23, 2023).
The geofence warrant here satisfied the requirements of both probable cause and the good faith exception. There aren’t a lot of cases on geofence warrants, but those reaching the merits (and not just GFE) fully support the process here of narrowing down the cell phone of the person that could be involved in the crime. And, the good faith exception applies anyway. Wells v. State, 2023 Tex. App. LEXIS 6498 (Tex. App. – Dallas Aug. 23, 2023).
The officer’s video shows justification for plaintiff’s arrest (see Scott v. Harris). What happened off camera is less certain, but defendant gets qualified immunity for that. Brooks v. Miller, 2023 U.S. App. LEXIS 22092 (11th Cir. Aug. 22, 2023).*
There was reasonable suspicion for defendant’s stop that rose to probable cause for a vehicle search. United States v. Crow, 2023 U.S. Dist. LEXIS 147886 (E.D. Tenn. July 13, 2023).*
Cross-corroborating tips about a man with a knife threatening people justified defendant’s stop. United States v. Denby, 2023 U.S. Dist. LEXIS 148266 (D. Neb. Aug. 7, 2023).*
“The Officers testified the smell of marijuana can remain in the area, or linger on clothing or other items, after marijuana is removed from the area, before or after it has been smoked. … It can also be difficult to detect whether a smell is of raw or burnt marijuana if both smells are in the same location, but regardless, the smell of marijuana is still present. … Even Defendant’s expert conceded it was possible the Officers could have smelled burnt marijuana in their proximity to the vehicle. … Therefore, regardless of whether the Officers specifically observed raw or burnt marijuana, it was certainly reasonable the smell was emanating from the vehicle at the time the Officers noted same, giving them probable cause for the search.” United States v. Harris, 2023 U.S. Dist. LEXIS 147948 (D.N.J. Aug. 23, 2023).*
“But the affidavit referenced multiple witness statements, the gun recovered from his associate’s home, and video evidence. Even if this did not ‘push this warrant past the probable cause goal line,’ … there was enough information in the affidavit such that the officers’ reliance was not ‘entirely unreasonable,’ Proell, 485 F.3d at 431.” And the good faith exception applies. United States v. Dankemeyer, 2023 U.S. App. LEXIS 22152 (8th Cir. Aug. 23, 2023).*
Defendant was a passenger released at the scene. Another officer arrived and essentially ordered him to stay. There was no justification for that seizure. Budimir v. State, 2023 Ind. App. LEXIS 243 (Aug. 23, 2023).*
The affidavit for warrant did not show justification for search of all the electronic devices that were seized and then searched. State v. Cannon, 299 Ore. App. 616, 450 P.3d 567 (2019). (Probable cause was conceded as to some devices.) State v. Cantrell, 327 Or. App. 548 (Aug. 23, 2023).
Defendant’s only challenge to the search warrant is its probable cause, but the good faith exception isn’t discussed, and that saves the search in any event. United States v. Peterson, 2023 U.S. Dist. LEXIS 146946 (E.D. La. Aug. 21, 2023).*
Officers entered defendant’s garage to talk to him, and that’s curtilage. There was no legitimate law enforcement purpose for this warrantless entry, and the exclusionary rule should apply. United States v. Ramer, 2023 U.S. Dist. LEXIS 147146 (N.D. Ind. Aug. 22, 2023).*
Defendant consented to search of the car he was in, no matter what his supervised release conditions provided for. United States v. Degrate, 2023 U.S. Dist. LEXIS 147295 (E.D. Mich. Aug. 22, 2023).*
Plaintiff didn’t have standing to raise someone else’s rights in a § 1983 case. Appeal dismissed. Jordan v. City of Toledo, 2023 U.S. App. LEXIS 22063 (6th Cir. Aug. 21, 2023).
Drug officers’ executing search warrants and stealing property was charged as a RICO violation. Reversed on Puerto Rico law supporting it. United States v. Muñoz-Martinez, 2023 U.S. App. LEXIS 22091 (1st Cir. Aug. 22, 2023).*
The court affirms the district court’s finding of mistake of fact over a construction lane that wasn’t objectively reasonable. United States v. Potter, 2023 U.S. App. LEXIS 22087 (1st Cir. Aug. 22, 2023).*
“This grand jury qualifies as an independent intermediary, whose ‘decision breaks the chain of causation’ and, absent an exception to the doctrine, insulates Iden and Brauchle from liability as the initiating parties.” Trevino v. Iden, 2023 U.S. App. LEXIS 22045 (5th Cir. Aug. 21, 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.
