The officer’s mistake of law in not knowing that an executive order that vehicle licenses expiring during Covid March 9, 2020 to December 1, 2020 remained valid was unreasonable under Heien. Heien requires ambiguity, and this wasn’t. Also, an unreasonable mistake of law isn’t good faith under Leon. State v. Robertson, 2023-Ohio-2746, 2023 Ohio App. LEXIS 2708 (10th Dist. Aug. 8, 2023).
“Under these circumstances, and given our Supreme Court’s decision in Hill, a reasonable officer could have suspected that Johnson was armed and dangerous at the time the search was conducted. The time of the stop, the character of the surrounding area, the presence of an armed passenger, and Johnson’s evasive conduct reasonably suggested to Officer Roberts that Johnson was attempting to access or conceal a weapon and was a potential threat to his safety.” Johnson v. Commonwealth, 2023 Va. App. LEXIS 529 (Aug. 8, 2023).*
Defendant argued that the search of his car was unreasonable and the two guns he wasn’t prosecuted for should not have been a +2 sentence enhancer. “But even if officers did lack probable cause, Ramos still cannot make a substantial showing of prejudice because he was not charged with possessing those firearms. And absent those firearms, Ramos would still be subject to § 2D1.1(b)(1)’s two-level enhancement because agents found three firearms in his house. Ramos v. United States, 2023 U.S. App. LEXIS 20466 (6th Cir. Aug. 7, 2023).*
Posted inProtective sweep, Reasonableness|Comments Off on OH10: Officer’s lack of knowledge of Covid extension of licenses was not reasonable mistake under Heien
Furtive movements alone may or may not be enough to justify a protective sweep of a car, a question this circuit has never decided. Here, however, there was the additional fact of a “slow roll” to a stop which was a little long, but it could have been the occupants hiding a weapon. That was enough. (And the slow roll is part of the furtive movements, isn’t it?) United States v. Canada, 2023 U.S. App. LEXIS 20428 (10th Cir. Aug. 8, 2023).
Defendant’s “stop” was because he was parked on the roadway without lights and there were no street lights, so it was unsafe. Everything else was by consent and then probable cause developed. Lewis v. State, 2023 Tex. App. LEXIS 5874 (Tex. App. – Houston (1st Dist.) Aug. 8, 2023).*
“Here, even if some of the factual assertions in the warrant affidavit were stale, there were enough specific allegations about recent events to sustain a finding of probable cause.” United States v. Caldwell, 2023 U.S. App. LEXIS 20426 (6th Cir. Aug. 7, 2023).*
The shooting of a family pet was fact bound and couldn’t be decided on summary judgment as an unreasonable seizure. Kailin v. Vill. of Gurnee, 2023 U.S. App. LEXIS 20437 (7th Cir. Aug. 8, 2023).*
Does IP address at one house permit a search of neighboring houses, too, if the signal reaches there? That’s not the question exactly, but close enough. Dhyne v. People, 2023 Colo. LEXIS 779 (Aug. 7, 2023)*:
Posted inUncategorized|Comments Off on CO granted review: Does IP address at one house permit a search of neighboring houses, too, if the signal reaches there?
A records preservation letter sent to cell phone providers was not a seizure, let alone an unreasonable one. The records were later secured by search warrant. United States v. Zwiefelhofer, 2023 U.S. Dist. LEXIS 134679 (M.D. Fla. Aug. 2, 2023).
Parole officer’s knowledge that defendant’s GPS showed him visiting other drug dealers coupled with information that he was dealing out of his house was reasonable suspicion for a parole search. Commonwealth v. Smith, 2023 PA Super 148, 2023 Pa. Super. LEXIS 358 (Aug. 7, 2023).*
Defendant’s argument that the CI’s information was over 72 hours old was one view of the CI’s story, but the court’s view is that common sense shows it was less than 72 hours. It was not stale information. United States v. Dutton, 2023 U.S. Dist. LEXIS 136815 (E.D. Tenn. June 21, 2023).*
“The net effect of a denial of a Franks hearing, based on Defendant’s inability to meet even the preliminary showing of a Franks hearing, is that Defendant cannot establish a Franks violation. Given that Defendant cannot establish a Franks violation, even if the warrant does not establish probable cause, the Government may rely on the good-faith exception, if applicable.” And it does. United States v. Adams, 2023 U.S. Dist. LEXIS 136866 (M.D. Fla. June 29, 2023).*
In executing a search warrant unreasonably causing excessive and unnecessary property damage, the takings clause of the Fifth Amendment almost never applies, but the Fourth Amendment’s unreasonable search clause may. Slaybaugh v. Rutherford Cty., 2023 U.S. Dist. LEXIS 149105 (M.D. Tenn. Aug. 24, 2023) (finding plaintiffs could state a claim):
Probable cause to believe a person lives at a particular address can be wrong and still be sufficient. “Vaughn also challenges the sufficiency of the affidavit on the ground that it failed to establish probable cause that he lived at 13108 Maine. … But whether 13108 Maine was Vaughn’s residence is beside the point. As set forth in the affidavit, agents believed (albeit incorrectly) that Vaughn lived at 13108 Maine and began surveilling the residence.” United States v. Vaughn, 2023 U.S. Dist. LEXIS 136337 (E.D. Mich. Aug. 4, 2023).
There was probable cause to arrest defendant for three robberies. The suspect was apparently the same man, and defendant was picked out of a surveillance video. United States v. Spratt, 2023 U.S. Dist. LEXIS 135872 (N.D. Iowa July 12, 2023).*
Defense counsel wasn’t ineffective for not filing a motion to suppress information that defendant posted on the internet that he had no reasonable expectation of privacy in. United States v. Lockhart, 2023 U.S. Dist. LEXIS 136283 (M.D. Fla. Aug. 7, 2023).*
Defendant’s motion to suppress was made as a motion for judgment of acquittal, so it was subject to plain error review, which it was not. United States v. Thornton, 2023 U.S. App. LEXIS 20109 (8th Cir. Aug. 4, 2023).
“The basis for the argument that the troopers racially profiled Defendants rests on the facts that Ochoa is a Hispanic male, Tooks is an African American male, and the troopers are white men. Defendants offer no direct or circumstantial evidence that the troopers were motivated by a discriminatory purpose, nor do they attempt to make any showing that similarly-situated individuals of another race could have been, but were not, stopped for speeding.” This is not proof of pretext. United States v. Ochoa, 2023 U.S. Dist. LEXIS 135754 (W.D. Okla. Aug. 4, 2023).*
Whether the taking of defendant’s DNA violated state law doesn’t matter in a Fourth Amendment reasonableness inquiry in federal court. United States v. Hines, 2023 U.S. Dist. LEXIS 134662 (E.D. N.C. Aug. 3, 2023).
There was no reasonable suspicion for defendant’s stop days after he was seen on the street. “Perhaps if the officers had stopped J.T. and his red-sweatshirt-wearing companion nearby the church immediately after the shooting, the totality of the circumstances could have supported reasonable suspicion for the stop.” What are the chances the same gun would be on him days later when he was seen again? In re J.T., 2023-Ohio-2695, 2023 Ohio App. LEXIS 2672 (1st Dist. Aug. 4, 2023).
When there are multiple residences of the defendant to be searched, nexus must be shown as to each. Here, the affidavit failed to show nexus to a hotel room he’d moved to. Commonwealth v. Lewis, 2023 Mass. App. LEXIS 105 (Aug. 3, 2023).*
The affidavit says people come to defendant’s house empty handed and leave holding plastic bags. This, coupled with other facts, provided a reasonable basis to find probable cause. In addition, the warrant was relied upon in good faith. United States v. Barnes, 2023 U.S. Dist. LEXIS 135709 (D.Del. Aug. 4, 2023).*
Plaintiff, a citizen who is essentially a person on the street with no particular interest in the case, has no ability to intervene in the Mar-a-Lago search warrant case to argue lack of probable cause, something conceded by the parties. He claimed that the parties were wrong to admit probable cause for the search and that the media and government were colluding. The media is litigating, and he has no role. United States v. Barth (In re Sealed Search Warrant United States), 2023 U.S. App. LEXIS 20199 (11th Cir. Aug. 4, 2023).
2255 petitioner didn’t show that he would have won a Fourth Amendment issue waived on appeal, so no ineffective assistance of counsel. “The Court is not required to construct legal arguments for” him. Davis v. United States, 2023 U.S. Dist. LEXIS 135673 (N.D. Ind. Aug. 4, 2023).*
Officers doing a probation search next door to defendant’s house smelled marijuana. They went to his house, pulled him out and entered and searched, using plain view to get a warrant. All this was unreasonable, and the trial court erred in not suppressing. Nance v. State, 2023 Ind. App. LEXIS 223 (Aug. 3, 2023).*
The government did not show in the affidavit for search authorization that text messages would logically be found on his cell phone corroborating a sex crime victim. Nevertheless, he wasn’t prejudiced by it. United States v. Geranen, 2023 CCA LEXIS 323 (Army Ct. Crim. App. Aug. 1, 2023).
The impounding of plaintiff’s car under state law was proper and did not amount to an unreasonable seizure. Ammari v. City of Norwalk, 2023 U.S. Dist. LEXIS 134737 (C.D. Cal. Aug. 1, 2023).
Defendant voluntarily consented to the interaction. It was not a seizure. United States v. Poulan, 2023 U.S. Dist. LEXIS 135096 (W.D. Mo. July 13, 2023),* adopted, 2023 U.S. Dist. LEXIS 133821 (W.D. Mo. Aug. 2, 2023).*
The use of a drug addicted CI to get a search warrant for defendant’s property has nothing to do with the quality of proof at trial. Motion for judgment of acquittal denied. United States v. Langhorne, 2023 U.S. Dist. LEXIS 135349 (E.D.N.Y. Aug. 3, 2023).*
NBC: Detroit woman sues city after being falsely arrested while 8-months pregnant due to facial recognition technology by Mirna Alsharif & Cristian Santana (She was alleged to have committed a carjacking three weeks earlier despite being 7½ months pregnant. “‘Ms. Woodruff later discovered that she was implicated as a suspect through a photo lineup shown to the victim of the robbery and carjacking, following an unreliable facial recognition match,’ court documents state.”)
Posted inSurveillance technology|Comments Off on NBC: Detroit woman sues city after being falsely arrested while 8-months pregnant due to facial recognition technology
The government subpoenaed emails from defendant. Suspecting that some were deleted, a search warrant was issued for his account, and the missing emails were found. Thus, the sentence was enhanced for destruction of evidence under U.S.S.G. § 3C1.1. United States v. Olson, 2023 U.S. Dist. LEXIS 134626 (D.D.C. Aug. 3, 2023).
One defendant can’t join in another codefendant’s motion to suppress when he doesn’t have standing for the place of the search. United States v. Colon-Torres, 2023 U.S. Dist. LEXIS 134259 (D.P.R. Aug. 1, 2023).*
“[T]he three controlled buys within a two-week period well established that the defendant was engaged in an illegal drug distribution operation ‘and had access to a supply for sale.’” Commonwealth v. Lewis, 2023 Mass. App. LEXIS 105 (Aug. 3, 2023).*
Posted inE-mail, Nexus, Standing|Comments Off on D.D.C.: Sentence enhanced for destruction of subpoenaed emails found in later search
Covid mask requirements, contact tracing, and quarantine procedures did not violate the Fourth Amendment. Plaintiffs don’t even say how. Skains v. Lake Cent. Sch. Corp., 2023 U.S. Dist. LEXIS 134970 (N.D. Ind. Aug. 2, 2023):
The fact an electronic search warrant can more speedily be issued for a vehicle search doesn’t alter the automobile exception. The mere fact a vehicle is mobile is all it takes. United States v. Axon, 2023 U.S. Dist. LEXIS 134408 (M.D. Fla. Aug. 2, 2023).
“In short, this is not a close call. The state warrants provided ample information to support the issuing judge’s determinations of probable cause.” Same with the federal warrant. Good faith is also evident. United States v. Langston, 2023 U.S. Dist. LEXIS 133854 (D.Conn. Aug. 2, 2023).*
Defendant didn’t pull over soon enough after passing, so the stop was with reasonable suspicion. United States v. Pineda-Guevara, 2023 U.S. Dist. LEXIS 133910 (S.D. Miss. Aug. 2, 2023).*
“Having narrowed down the point of seizure, the Court now evaluates whether the officers had reasonable and articulable suspicion for this seizure. It finds that they did.” United States v. Costner, 2023 U.S. Dist. LEXIS 134245 (E.D. Mich. Aug. 2, 2023).*
Posted inAutomobile exception, Probable cause|Comments Off on M.D.Fla.: Availability of electronic SW doesn’t modify the automobile exception
A resident of a halfway house has no reasonable expectation of privacy in his cell phone while residing there. He agreed that his property was subject to search. United States v. Weste, 2023 U.S. Dist. LEXIS 132886 (W.D. Tex. July 31, 2023).
Defendant’s stop was not unreasonably prolonged where the patrol car computer flagged a similarly spelled first name with the same DOB, and defendant and his twin brother were known to use each other’s identity. Then he fought the officers. United States v. Williams, 2023 U.S. Dist. LEXIS 133292 (S.D. Ga. Aug. 1, 2023).*
Defense counsel wasn’t ineffective for not making a challenge to a trash search that would have failed. Jefferson v. United States, 2023 U.S. App. LEXIS 19868 (8th Cir. Aug. 1, 2023).*
The search here was by consent. United States v. Poulan, 2023 U.S. Dist. LEXIS 133821 (W.D. Mo. Aug. 1, 2023).*
Defendant came in to the police for an interview about sex assault in the Army. As it developed, exigency for seizure of defendant’s cell phone arose. This was not a police created exigency which requires some wrongdoing on the part of the police. Everyone concedes this was routine until then. United States v. Yeong Song, 2023 U.S. App. LEXIS 19843 (5th Cir. Aug. 1, 2023).
A search warrant doesn’t have to be present at the time of the search to be valid (Grubbs). The court credits that there was a search warrant and it wasn’t all made up as defendant alleges. State v. Queen, 2023 Del. Super. LEXIS 360 (July 31, 2023).*
Handcuffing for officer safety during a stop-and-frisk doesn’t require probable cause. “In determining whether use of handcuffs during an investigatory detention is warranted, the Court may consider the seriousness of the crime under investigation.” Here, it was factually justified. United States v. Pendergrass, 2023 U.S. Dist. LEXIS 133118 (E.D. Tenn. Aug. 1, 2023).*
Defendant’s post-conviction claim the warrant was issued without probable cause couldn’t be decided without putting it in the record. State v. Cooper, 2023 Del. Super. LEXIS 365 (July 31, 2023).*
Plaintiff operates 20 pawnshops in NYC. The NYPD conducted records searches without subpoena or warrant, and, after a two-week trial, plaintiff prevailed with a $1m verdict. The fact a business has to maintain records doesn’t mean there is no reasonable expectation of privacy in them from governmental interference. Plaintiff participated in the city’s pawnshop leads program, but it got out. It claimed the searches were to make it want to rejoin, and the jury could have found that. Administrative searches for regulatory purposes are permissible, but the jury found a different motive. Gem Fin. Serv. v. City of New York, 2023 U.S. Dist. LEXIS 131092 (E.D.N.Y. July 28, 2023).
“Although the categories of information that Apple was to produce encompassed the entirety of Pelayo’s iCloud account, the search and seizure of evidence was limited to the outlined crimes and specified twenty-one types of evidence that the government could seize.” Therefore, the warrant was particular enough. United States v. Pelayo, 2023 U.S. App. LEXIS 19624 (9th Cir. July 31, 2023).*
The stop was for no tag, but the officer quickly saw that there was a temporary tag. He could still approach the car to tell the driver why the stop occurred, but that was it. Deciding to go off into asking about other things was unreasonable. People v. Suggs, 2023 Cal. App. LEXIS 580 (3d Dist. July 31, 2023).
Defendant’s wife was not acting as an agent of the state when she procured defendant’s cell phone which produced evidence of sexual exploitation of a child. “Four of our sister Courts of Appeals assess whether a private party was an agent of the government by evaluating two factors: (1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the private citizen performing the search intended to assist law enforcement or acted to further her or his own legitimate and independent purposes.” The court adopts this majority rule, and the search was purely private. United States v. Kramer, 2023 U.S. App. LEXIS 19742 (3d Cir. Aug. 1, 2023).
Defendant disclaimed interest in an apartment but he still retained a subjective expectation of privacy in it, especially considering the government’s efforts to link him to its contents. Nevertheless, a person with apparent authority consented to its search. United States v. Ríos-Orama, 2023 U.S. Dist. LEXIS 132794 (D.P.R. July 31, 2023).*
Defendant’s appellate issue that his detention was without reasonable suspicion is mooted by his acquittal on appeal for insufficient evidence. Taylor v. Commonwealth, 2023 Va. App. LEXIS 500 (Aug. 1, 2023).*
Defendant was not seized until he was pulled from his tractor trailer cab where he first avoided seizure. Hussein v. Commonwealth, 2023 Va. App. LEXIS 521 (Aug. 1, 2023).*
The government concedes that there was delay during the stop, but it was all without reasonable suspicion. The officer was looking for other summonses on defendant, including child support orders, where he had no idea there were any. “Finally, Deputy Porter prolonged the stop when he finished issuing the citation but required Appellant to wait for the results of the dog sniff. It is undisputed that the traffic stop was over when Appellant asked to leave, but Rinehart took ‘roughly a minute’ to put the dog back and report the positive alert to Porter.” United States v. Podbielski, 2023 U.S. App. LEXIS 19772 (4th Cir. Aug. 1, 2023).
While the state constitution provides more protection than the Fourth Amendment and could apply in an administrative proceeding, it was not violated here. The search was by consent. Walters v. Bd. on Law Enforcement Officer Standards and Training, 2023 Miss. App. LEXIS 279 (Aug. 1, 2023).
“Here, Officer Tejada initially approached Gamble and asked him a question: ‘Ain’t got no gun on you, man?’” ‘“Let me see your waistband’–amounted to a show of authority.” United States v. Gamble, 2023 U.S. App. LEXIS 19695 (D.C.Cir. Aug. 1, 2023).
The officer’s testimony about inventory was credited and it was valid. Mangiafico v. State, 2023 Tex. App. LEXIS 5617 (Tex. App. – Dallas July 31, 2023).*
Defendant was a regular overnight guest at a friend’s apartment, and that gave him standing to challenge the search. As to his car parked on the common parking lot, it wasn’t enough like curtilage to provide a reasonable expectation of privacy there. United States v. Jones, 2023 U.S. Dist. LEXIS 132534 (D. Kan. July 31, 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.
