Defendant’s vehicle was not parked within the curtilage of his home. The officer’s observations of the vehicle did not constitute a search under the Fourth Amendment or the Mass. Const. Decl. Rights art. 14. Defendant’s house was set back from a long driveway, the vehicle was visible to passersby in the street, there was no testimony that defendant used the driveway for anything other than parking cars, and defendant took no steps to conceal the vehicle in the driveway from observation. Commonwealth v. Wittey, 2023 Mass. LEXIS 218 (June 5, 2023).
The search incident of defendant’s jacket within his reach was reasonable. United States v. Salazar, 2023 U.S. App. LEXIS 13711 (7th Cir. June 2, 2023).*
On the totality, the CI’s information was not significant to probable cause for the warrant because surveillance and traffic stops provided enough. State v. Johns, 2023 Del. Super. LEXIS 272 (May 31, 2023).*
Under circuit precedent, a Bivens claim that goes beyond Bivens on its facts is going to be denied. Wells v. Fuentes, 2023 U.S. Dist. LEXIS 96692 (E.D. Va. May 31, 2023).*
The question of probable cause to search these packages was a close call. There clearly was at least reasonable suspicion and some of the same facts support probable cause. On the totality, there was at least a substantial basis for finding probable cause. Moreover, the good faith exception would apply, too. United States v. Guzman, 2023 U.S. Dist. LEXIS 96768 (W.D. Mich. June 2, 2023).
When the officer told defendant to “hang tight” while motel surveillance videos were reviewed by other officers as to his movements that evening, there was at least reasonable suspicion for a detention because he was lying. Buckley v. State, 2023 Ark. App. 330 (May 31, 2023).*
The scope of the probation search under California law (the area defendant had access to) appears proper. United States v. Brunson, 2023 U.S. Dist. LEXIS 96026 (S.D. Cal. June 1, 2023).*
Remand for a Franks hearing is denied because defendant doesn’t show any alleged falsities. People v. Rider, 2023 Mich. App. LEXIS 3919 (June 1, 2023).*
Working from a hearing with a screen shot of a pole camera video, the court concludes that the officer stating defendant was holding a rifle was ultimately with reckless disregard of the truth. Defendant argued he was holding a bouquet of flowers; the officers weren’t sure but it suggested a rifle. “Nonetheless, the Court cannot ignore the unusual facts in this case, to wit: Colon’s testimony acknowledging that without the pole camera video purportedly depicting Santiago smuggling a firearm into the residence, he had no basis to pursue a search warrant application. Tr. 178-79. The officer’s assessment is certainly worthy of consideration.” United States v. Cerda, 2023 U.S. Dist. LEXIS 96510 (E.D.N.Y. June 2, 2023).
Stone v. “Powell’s ‘“opportunity for full and fair consideration” means an available avenue for the prisoner to present his claim to the state courts, not an inquiry into the adequacy of the procedure actually used to resolve that particular claim.’ Good v. Berghuis, 729 F.3d 636, 639 (6th Cir. 2013). Consequently, ‘[i]n the absence of a sham proceeding, there is no need to ask whether the state court conducted an evidentiary hearing or to inquire otherwise into the rigor of the state judiciary’s procedures for resolving the claim.’ Id.” James v. Schroeder, 2023 U.S. App. LEXIS 13652 (6th Cir. June 1, 2023).*
Posted inFranks doctrine, Issue preclusion, Pole cameras|Comments Off on E.D.N.Y.: Def prevails on a Franks challenge on what he was carrying into his house seen on pole camera
Maryland reiterates search incident. “Considering these cases together, a clearer picture of the search incident to arrest exception emerges. Pacheco reminds us that, for the exception to apply, there must first exist probable cause to arrest before conducting the search. Taylor demonstrates that two scenarios will trigger the application of the search incident to arrest exception: where an arrestee is within reaching distance of the vehicle and where the police have reason to believe the vehicle contains evidence of the crime of arrest. Finally, White clarifies the distinct rules and requirements of the exception in the vehicular context. First, there must be an arrest in conjunction with the search, and, as Pacheco reiterated, this arrest must be supported by probable cause. Second, the part of the exception allowing a search for evidence of the crime of arrest applies only to vehicular searches. Third, the exception requires the lower standard of reasonable suspicion, rather than probable cause, that the vehicle contains evidence of the crime. Fourth, the search incident to arrest must be limited to the passenger compartment. Fifth, the search is limited to evidence of the offense for which the defendant is arrested.” Rodriguez v. State, 2023 Md. App. LEXIS 356 (June 1, 2023).*
The search warrant was “arguably overbroad,” and defendant was thought to be involved in many homicides. However, it wasn’t so overbroad that the good faith exception should not apply. United States v. Cawthorn, 2023 U.S. Dist. LEXIS 96352 (D. Md. May 31, 2023).*
Defendant’s Rule 17 subpoena to Microsoft to attempt to show that the cybertip to NCMEC was not a private search is quashed as unreasonable and burdensome. United States v. Burley, 2023 U.S. Dist. LEXIS 96642 (N.D. Cal. June 2, 2023)*:
Posted inSubpoenas / Nat'l Security Letters|Comments Off on N.D.Cal.: Subpoena to Microsoft to attempt to show it was a state actor in NCMEC report is quashed as burdensome
The government waived a potentially valuable suppression argument during the suppression hearing, and the evidence was suppressed. The court of appeals declines to give the government a pass on waiver because it would violate separation of powers. United States v. Dowdell, 2023 U.S. App. LEXIS 13664 (3d Cir. June 2, 2023) (2-1):
Defendant did not “distance himself” from the bags in the car to lack standing, either on the videos or his briefing. United States v. Allmon, 2023 U.S. Dist. LEXIS 95562 (E.D. Tex. May 15, 2023).*
Defendant was an overnight guest in the premises that gave him standing. United States v. Fisher, 2023 U.S. Dist. LEXIS 95924 (D. Mont. June 1, 2023).*
Defendant claims ineffective assistance of counsel from failure to challenge the search in his case, but he did and lost. State v. Humphrey, 2023-Ohio-1834 (2d Dist. June 2, 2023).*
Defendant is charged with robbery on a subway car in the Bronx. Video from a station was matched to his picture as a likely match. That was reliable enough to seek CSLI from his phone to see if he was on the train. People v. Higgins, 2023 NYLJ LEXIS 1310, 2023 NY Slip Op 50526(U), 2023 N.Y. Misc. LEXIS 2650 (Kings Co. May 31, 2023).*
Plaintiff’s prison cell search that recovered a knife was reasonable without a warrant. Harris v. Burgess, 2023 U.S. Dist. LEXIS 95736 (W.D. Mich. June 1, 2023).*
Multiple trips out of a motel carrying several bags each time by a suspected drug dealer was reasonable suspicion. United States v. Wells, 2023 U.S. Dist. LEXIS 95910 (N.D. Ill. June 1, 2023).*
2254 petitioner’s Fourth Amendment claim has nothing to do with actual innocence and is barred by Stone. CoA denied. Hall v. Warden, 2023 U.S. App. LEXIS 13573 (11th Cir. June 1, 2023).*
“Applying these standards, the Court concludes that Rooker-Feldman precludes only Plaintiff’s Fourth Amendment illegal seizure claim and damages sought amounting to the Property’s value. All four factors of the Rooker-Feldman doctrine are present here as to the Fourth Amendment cause of action. Fallica’s claims regarding the foreclosure and sale of the Property were fully and fairly litigated as part of the state court action, and he lost. Plaintiff’s allegations regarding an illegal seizure of the Property, even construed liberally in his favor, essentially challenge the validity of the state court’s judgment.” Fallica v. Bank of America, 2023 U.S. Dist. LEXIS 95951 (E.D.N.Y. June 1, 2023).*
The hash values of child pornography was enough for probable cause, so defense counsel wasn’t ineffective for not challenging it. Lynch v. United States, 2023 U.S. Dist. LEXIS 95963 (S.D. Tex. Apr. 3, 2023),* adopted, 2023 U.S. Dist. LEXIS 94286 (S.D. Tex. May 31, 2023).*
The cell phone here was linked to a drug crime, and the officer had probable cause to believe defendant possessed it. People v. Avdic, 2023 IL App (1st) 210848 (June 2, 2023).*
Here there was a warrantless entry into the house for a gun. Defendant was in custody outside. The state had the burden on inevitable discovery and failed. “In the instant case, the state failed to point to any alternative lawful means that had been set in motion that would have made the discovery (and seizure) of the firearm ‘inevitable,’ nor were any discussed in Officer Paciullo’s testimony. At no point did the officers apply for a warrant, nor begin to apply for a warrant; in fact, Officer Paciullo testified that she could have, but chose not to. Nothing in the record before this Court supports the theory that the police would have inevitably accessed the firearm by lawful means.” State v. Davis, 2023 La. App. LEXIS 909 (La. App. 4 Cir. May 31, 2023).
Plaintiffs were not seized when they left the house because another person had been arrested. Hill v. City of Fountain Valley, 2023 U.S. App. LEXIS 13517 (9th Cir. June 1, 2023).*
A stop under ambiguous state law was still reasonable under Heien. United States v. Outen, 2023 U.S. Dist. LEXIS 95512 (D.S.C. May 31, 2023) (“‘”To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them ‘fair leeway for enforcing the law in the community’s protection.”‘ Id. at 60-61 (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)).'”)
“Louisiana jurisprudence has indicated that unenclosed driveways, like the driveway in the instant case, are not part of the curtilage with respect to Fourth Amendment cases.” State v. Bourgeois, 2023 La. App. LEXIS 901 ( La. App. 5 Cir May 31, 2023).*
The state habeas court’s findings of no ineffective assistance of counsel for not filing a motion to suppress was not an unreasonable application of law under 2254. Wheelock v. Lumpkin, 2023 U.S. Dist. LEXIS 94303 (W.D. Tex. May 31, 2023).*
The contract for tenancy of the place in question had been terminated before the search, and defendant lacked a reasonable expectation of privacy at the time of the search. United States v. LeVeille, 2023 U.S. Dist. LEXIS 94426 (D.N.M. May 31, 2023).*
Officers lacked reasonable suspicion for a Terry stop-and-frisk. Ergo, they lacked probable cause for an automobile exception search. United States v. Love, 2023 U.S. Dist. LEXIS 94704 (E.D. Mich. May 31, 2023).*
Defendant was in a car that was stopped for a traffic offense. He had warrants and he tried to flee the scene, but didn’t get far. In the car were his backpacks. The driver consented to a search of the car. His consent did not extend to the backpacks because defendant retained a reasonable expectation of privacy in them under settled case law in the state. He also didn’t abandon them. State v. Garner, 2023 Wash. App. LEXIS 1033 (May 31, 2023).
Accidental misstatement in the affidavit didn’t make a Franks violation. Probable cause was there anyway. United States v. Brunson, 2023 U.S. App. LEXIS 13506 n.12 (3d Cir. June 1, 2023).*
Defendant was in a police car for four hours talking to the officer. He wasn’t Mirandized until after he confessed. The situation on the totality was that no reasonable person would think that he was free to leave, and the confession should have been suppressed. Lopez-Lopez v. State, 2023 Ga. App. LEXIS 243 (June 1, 2023).*
The trial court found a Franks violation from the officer overstating with reckless disregard the facts, and it suppressed the search. Then came defendant’s statements based on the false search warrant affidavit. The trial court did not suppress, but the court of appeals reversed. The state was exploiting the illegality of the Franks violation. State v. Scott, 2023 Ariz. App. LEXIS 232 (June 1, 2023).
Defense counsel wasn’t ineffective for not challenging the search warrant for failure to corroborate the CI which might have succeeded alone, except there was a controlled buy, too, and that alone was enough. Loper v. State, 2023 Del. LEXIS 174 (May 31, 2023).*
This 2255 petition seeks to relitigate search issues already litigated and lost. United States v. Ross, 2023 U.S. Dist. LEXIS 95024 (M.D. Pa. May 31, 2023).*
A petition for writ of mandamus to the clerk to deliver search warrant materials fails because the clerk doesn’t have that which wasn’t already turned over. State ex rel. Curtis v. Turner, 2023-Ohio-1814 (8th Dist. May 26, 2023).*
Defendant was involved in a one car accident that instantly killed his passenger. The search warrant for his medical records of a BAC at the hospital wasn’t based on reckless driving or even OVI. It was aggravated vehicular homicide, and there was probable cause. State v. Motley, 2023-Ohio-1811 (8th Dist. June 1, 2023)*:
Posted inProbable cause|Comments Off on OH8: SW for BAC in hospital records wasn’t just based on reckless driving; it was aggravated vehicular homicide
There was reasonable suspicion for the stop here, and defense counsel wasn’t ineffective for not calling another witness that wouldn’t have changed the outcome. State v. Ware, 2023-Ohio-1807 (5th Dist. May 30, 2023).*
In a tax warrant case, defense counsel wasn’t ineffective for not calling certain witnesses to controvert the search. Defendant retained progressively more experienced lawyers who chose not to call them, too. United States v. Flynn, 2023 U.S. Dist. LEXIS 94219 (D. Minn. May 31, 2023).*
The state law on supervision searches requires a minimal level of justification. The officer’s suspicion defendant might have child porn on the computer led him to ask whether there were pictures of naked children on it. His answer, “There might be.” was enough. Day v. State, 2023 Ga. App. LEXIS 238 (May 31, 2023).*
Six day delay in executing a search warrant on an ongoing drug operation didn’t make it stale. United States v. Jackson, 2023 U.S. App. LEXIS 13389 (4th Cir. May 31, 2023).*
Search warrants in NY have to be executed within ten days. This cell phone warrant wasn’t, so suppression is granted. The order is stayed so the state can decide whether to appeal. People v. Nurse, 2023 NY Slip Op 23167, 2023 N.Y. Misc. LEXIS 2607 (N.Y. Co. May 5, 2023).
Two officers approaching defendant at a train station when he boarded a bus was not a seizure. Reasonable suspicion developed. United States v. Vining, 2023 U.S. Dist. LEXIS 93677 (E.D. Mich. May 30, 2023).*
A search warrant is presumed valid, and defendant here did not overcome that presumption they were issued with probable cause. His Franks challenge also fails. United States v. Lettieri, 2023 U.S. Dist. LEXIS 93765 (W.D.N.Y. May 30, 2023).*
“If a court determines that a warrant application ‘contains both lawful and tainted allegations,’ the application is valid so long as ‘the lawful information, considered independently, supports probable cause.’” United States v. Bongiovanni, 2023 U.S. Dist. LEXIS 93831 (W.D.N.Y. May 30, 2023).*
Posted inSeizure, Warrant execution|Comments Off on NY Co.: SW not timely executed is suppressed
A statutory exclusionary rule for a particular action that was adopted after the search and seizure was not retroactive. Moore v. Commonwealth, 2023 Va. App. LEXIS 343 (CMay 30, 2023) (unpublished).*
The totality shows reasonable suspicion to extend the stop from the faint smell of marijuana. United States v. Scott, 2023 U.S. Dist. LEXIS 93597 (N.D. Ind. May 30, 2023).*
Smoking marijuana while driving is reasonable suspicion to continue a stop. United States v. Draper, 2023 U.S. Dist. LEXIS 93428 (E.D. Pa. May 30, 2023).*
Asking the driver and passengers for their ID during a stop is reasonable under Muehler v. Mena. United States v. Ward, 2023 U.S. Dist. LEXIS 93640 (D.S.D. May 26, 2023).*
The warrant for the cell phone’s call data was limited in time and reasonable. “Because, using a practical margin of flexibility, the date ranges in the search warrants were as specific as the circumstances and nature of the activity under investigation permitted, the warrants were not overbroad and insufficiently particular in this respect.” Perez v. State, 2023 Ga. LEXIS 118 (May 31, 2023).
When the officer asked for permission to look at and search his phone, defendant handed it over. That was consent to search. United States v. Butler, 2023 U.S. App. LEXIS 13265 (11th Cir. May 30, 2023).*
Sometimes officers executing a warrant don’t seize everything they’re supposed to. “[T]here is no obligation for law enforcement to seize every piece of evidence available when executing a search warrant. Additionally, retrieving such overlooked evidence later from a cooperating witness is not misconduct.” United States v. Cammarata, 2023 U.S. Dist. LEXIS 93423 (E.D. Pa. May 30, 2023).*
A police car computer that tells the officer the owner of a vehicle has a suspended license is reasonable suspicion for a stop, unless there is objective evidence the driver cannot be the owner. Here, it was obvious the driver was not the same gender as the owner, and the stop should have ended. Also, the officer’s stuffy nose clouded the plain smell argument. State v. Williams, 2023 N.J. LEXIS 588 (May 30, 2023).
“Mendonca next argues the trial court erred by denying his motion to suppress because Officer Waddle had a pretextual, investigatory purpose for having his rental car towed, thereby subjecting it to an inventory search. However, despite Mendonca’s claims, we can find no evidence to support such an assertion. There is, in fact, nothing to suggest Officer Waddle was acting improperly and with some ulterior motive by making the decision to have the Mendonca’s rental car towed.” State v. Mendonca, 2023-Ohio-1780 (12th Dist. May 30, 2023).*
“When a vehicle subject to a lawful traffic stop contains passengers, however, the Fourth Amendment permits the detention of those passengers for the duration of the driver’s lawful detention.” State v. Brady, 2023-Ohio-1783 (9th Dist. May 30, 2023).*
Posted inInventory, Reasonable suspicion, Seizure|Comments Off on NJ: Computer return of car owner’s suspended DL justified stop, but it had to end when it was obvious driver was not owner
"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.
