The trial court did not err by granting the motion to suppress evidence seized as a result of the search of his cell phone because the State’s original warrantless search in 2020 was improper and the State did not remedy the initial improper search by obtaining a search warrant in 2022 and downloading the same digital data from the phone a second time. Nothing was shown for an independent basis to use the 2022 warrant to justify the earlier search and the good faith exception to the warrant requirement did not apply, as the 2022 warrant was obtained solely as an attempt to overcome the constitutional violation that occurred in 2020. State v. Thurston, 2023 Ga. App. LEXIS 230 (May 30, 2023).
The consenter’s demeanor and responses shown on bodycam support the government that consent was voluntary. United States v. Quailes, 2023 U.S. Dist. LEXIS 93013 (M.D. Pa. May 26, 2023).*
The fact of quasi-legalization of marijuana and hemp doesn’t make their smell not reasonable suspicion. Moore v. State, 2023 Ind. App. LEXIS 159 (May 26, 2023).*
UPS is not a state actor when it searches suspicious packages, even with its “good-Samaritan motivation” that “overlaps with law enforcement’s mission.” United States v. Baxter, 2023 U.S. Dist. LEXIS 93141 (N.D. Ga. May 11, 2023):
Techstory: Cellphone Border Searches: Feds, You’ll Need a Warrant by Sneha Singh (“In a groundbreaking ruling, a federal district judge declared that authorities must obtain a warrant before searching an American citizen’s cell phone at the US border, except in difficult circumstances. This decision marks the first of its kind in the United States, much to the satisfaction of the Electronic Frontier Foundation (EFF) and other advocacy groups who have long been advocating for stricter limitations on border searches. Presently, US Customs and Border Protection (CBP) has the authority to search individuals within 100 miles of the US national border, encompassing many people.”)
Posted inBorder search, Cell phones|Comments Off on Techstory: Cellphone Border Searches: Feds, You’ll Need a Warrant
There was probable cause for the four search warrants here. “Much of Martinez’s arguments are based on the premise that the warrants are unsupported by probable cause because the affidavits did not prove the elements of the target crimes.” They aren’t required to. United States v. Martinez, 2023 U.S. Dist. LEXIS 92985 (D. Nev. May 22, 2023).
UPS was a private searcher when it searched defendant’s package in transit. It did not acquiesce in what the government wanted. “Notably, there was no evidence presented of any reason UPS had to acquiesce to any suggested search by the officer, or that Brown received or felt any pressure to do so. Nor was there any evidence to suggest that UPS had reason to curry favor with the police in this effort. Indeed, while the witnesses differed in their recollection of how many times UPS declined to search packages in similar circumstances, both Brown and Jones testified that UPS (and Brown specifically) has done so on other occasions. It is also relevant that UPS is a large, sophisticated corporation, and that Brown specifically had decades of experience in corporate security. It is not likely that they would feel pressure or intimidation from the presence of a policeman and the evidence does not suggest that they did.” United States v. Baxter, 2023 U.S. Dist. LEXIS 93141 (N.D. Ga. May 11, 2023).*
Posted inMotion to suppress, Private search|Comments Off on D.Nev.: Affidavits for SWs don’t have to prove the underlying crimes
Officers did a flyover of defendant’s home from navigable airspace and saw a marijuana grow. While he had a subjective reasonable expectation of privacy in the curtilage, not from 2000′. United States v. Flavius, 2023 U.S. Dist. LEXIS 92974 (D.V.I. May 28, 2023).
The stop of defendant’s rental car was justified by its expired tag. Then, “[t]he officer stated that ‘the odor was so strong and apparent that I just came … right out and ask[ed] [him] how much marijuana is inside the car.’” Moore v. State, 2023 Ind. App. LEXIS 159 (May 26, 2023).*
The factual disputes required denial of summary judgment on qualified immunity. Gorsky v. Guajardo, 2023 U.S. App. LEXIS 13164 (5th Cir. May 26, 2023).*
The search of defendant’s pants after leaving the hospital to the jail was reasonable. As a search incident, it was not reasonable because he was incapable of reaching them. Inevitable discovery applies, however. The court finds it was more likely than not that it happened at the jail and not the hospital. United States v. Gibbins, 2023 U.S. Dist. LEXIS 92981 (N.D. W.Va. May 26, 2023).*
“[W]e are persuaded the conflicting statements of fact presented by the State and defendant establish disputes of material fact warranting a testimonial hearing. The State claimed the search was justified under the plain view exception to the warrant requirement. Thus, the court correctly found defendant’s motion turned on whether Officer Russell actually observed the handle of the handgun in defendant’s pocket in plain view from his vantage point in the front of the vehicle.” This was all subject to de novo review. State v. Jones, 2023 N.J. Super. LEXIS 57 (May 26, 2023).*
The fact an officer could arrest someone is different than the question of whether the officer did. Here, there was no arrest and no reasonable suspicion for a patdown. United States v. Parker, 2023 U.S. Dist. LEXIS 91766 (N.D. Iowa May 4, 2023).*
The officer sought and obtained consent during a valid traffic stop. The consent was voluntary. United States v. Watts, 2023 U.S. Dist. LEXIS 92017 (E.D. Ark. May 25, 2023).*
Posted inSuppression hearings|Comments Off on NJ: Disputes in the facts on appeal show trial court should have held a hearing
The first cell phone search warrant was rejected for lack of probable cause. It only provided a generic description of cell phones as repositories of potential evidence without linking it to this case. The phone was still in the evidence locker, and a second search warrant was sought a year later. This effort attempted to show much more toward probable cause, but the delay in issuance made the second warrant unreasonable. People v. Smith, 2023 NY Slip Op 23161, 2023 N.Y. Misc. LEXIS 2547, 2023 NYLJ LEXIS 1296 (N.Y. Co. May 24, 2023).
The stop revealed an open container violation. That permitted a further search of the car [I’d disagree] for further open containers, and a gun was found. It did not permit a search of defendant’s wallet where meth was found. United States v. Webb, 2023 U.S. Dist. LEXIS 91920 (D. Utah May 24, 2023).*
Habeas petitioner litigated his search in state court and appealed it so federal court can’t consider it. In re O’Donnell, 2023 U.S. Dist. LEXIS 92089 (S.D.N.Y. May 25, 2023).*
Flight on seeing police officers in a high crime area is itself reasonable suspicion under Wardlow. The trial court erred in finding it was not. Commonwealth v. Barnes, 2023 PA Super 90, 2023 Pa. Super. LEXIS 220 (May 26, 2023).*
Not objecting to defendant’s probation status where it came up as a probation search was not unreasonable. Plus, it would have otherwise come in. “Hutcheson’s probation status was thus necessary to complete the State’s story of the crime. Trial counsel’s failure to make a meritless objection to the admission of the brief references to Hutcheson’s probation status and the Fourth Amendment waiver was thus not deficient performance.” Hutcheson v. State, 2023 Ga. App. LEXIS 219 (May 25, 2023).
One spouse has no constitutional right to be present during the arrest of the other. Nothing supports such an argument. Grega v. Vroman, 2023 U.S. Dist. LEXIS 91369 n.11 (W.D. Pa. May 22, 2023)* (here it was framed in as the husband has a right to be present when his wife is arrested).
Defense counsel wasn’t ineffective for not moving to suppress the 2010 search of his cell phone based on the law then. Alvarez v. Williams, 2023 U.S. Dist. LEXIS 91629 (D. Nev. May 25, 2023).*
Michigan SCt to set argument on whether it violates the Fourth Amendment to use a drone for aerial photography in zoning disputes. Long Lake Twp. v. Maxon, 2023 Mich. LEXIS 768 (May 24, 2023).* The issues: “(1) whether the appellee violated the appellants’ Fourth Amendment rights by using an unmanned drone to take aerial photographs of the appellants’ property for use in zoning and nuisance enforcement; and (2) whether the exclusionary rule applies to this dispute.” [Apparently Google Maps can be outdated, or at least not current.]
In a robbery case, a text message from a cell phone search alluding to motive was harmless error if error at all. The evidence was overwhelming. People v. Ruiz, 2023 N.Y. App. Div. LEXIS 2837, 2023 NY Slip Op 02833 (1st Dept. May 25, 2023).*
The parents of a one-year-old child were arrested after a search warrant. Drugs were found, and the child was taken into protective custody. The child had meth in her system. [No discussion of the legality of the search of the child’s blood.] In the Interest of L.R., 2023 Tex. App. LEXIS 3579 (Tex. App. – Eastland May 25, 2023).*
Posted inBody searches, Drones|Comments Off on MI grants review in zoning drone case: Long Lake Twp. v. Maxon
There is no reasonable expectation of privacy in bank records, and the government can obtain them to enforce a restitution order. United States v. Osborn, 2023 U.S. Dist. LEXIS 90076 (D. Colo. May 23, 2023).
Defendant doesn’t get a Franks hearing because he both lacked standing and didn’t make the proper showing. United States v. Taylor, 2023 U.S. Dist. LEXIS 90911 (E.D. Mich. May 24, 2023).*
Even assuming the trial court erred in not instructing on the Texas statutory exclusionary rule, defendant can’t show prejudice because the legality of the police action was essentially an element of the crime tried. Tates v. State, 2023 Tex. App. LEXIS 3572 (Tex. App. – Corpus Christi – Edinburg May 25, 2023).*
A renewed motion to suppress filed as the trial began, along with disrespectful tone (“You don’t understand the argument.”) and arguing with and talking over the judge results in sanctions. Disciplinary Counsel v. Stobbs, 2023-Ohio-1719, 2023 Ohio LEXIS 1081 (May 25, 2023).*
Three informants’ overlapping information corroborated one another such that establishing their veracity was unnecessary. The affidavit in support of the warrant contained enough indicia of probable cause that an officer’s reliance was not unreasonable as it sufficiently linked the residence to firearms, sex-for-money acts, and drugs through the informants. In addition, the circumstances just before executing the search more than bolstered an objectively reasonable belief in the existence of probable cause. United States v. Mitchell, 2023 U.S. App. LEXIS 12813 (11th Cir. May 24, 2023).
The inability of an FOIA request to turn up a search warrant for successor 2255 petitioner does relate to guilt or innocence. Permission to proceed denied. In re Barbarotta, 2023 U.S. App. LEXIS 12829 (6th Cir. May 24, 2023).*
Plaintiff stated a claim under § 1983 for failure to supervise for the officers’ regularly fraudulently obtaining search warrants for the purpose of causing warrant executions expecting to result in violence. Tuttle v. Sepolio, 23-20013, 2023 U.S. App. LEXIS 12834 (5th Cir. May 23, 2023).*
Where the drug dog arrived before the warning ticket was finished, the stop was not unlawfully extended. United States v. Gutierrez, 2023 U.S. App. LEXIS 12811 (11th Cir. May 24, 2023).
Child protection officers obtained consent to enter plaintiff’s home. Brown v. Dep’t of Children Servs., 2023 U.S. App. LEXIS 12800 (9th Cir. May 24, 2023).*
The officer’s walking up to a parked car to inquire of the occupants did not require reasonable suspicion. State v. McKnight, 2023 La. App. LEXIS 860 ( La. App. 5 Cir. May 24, 2023).*
Defendant’s guilty plea waived his Fourth Amendment claim, and it would be barred by Stone because it could have been litigated. Kidwell v. United States, 2023 U.S. Dist. LEXIS 90697 (N.D. Ind. May 24, 2023).*
At defendant’s suppression hearing, one of the officers was relieved of duty due to other misconduct, and he took the Fifth. On what remains in the affidavit and on the totality doesn’t otherwise show a Franks violation. State v. Hartung, 2023-Ohio-1736, 2023 Ohio App. LEXIS 1743 (7th Dist. May 23, 2023).
The alert for a well-trained drug dog is probable cause. Here, the dog was accurate 90% of the time. United States v. Plancarte, 2023 U.S. Dist. LEXIS 90338 (W.D. Wis. May 23, 2023).*
It is well settled that the standard for reasonable suspicion is on the totality of circumstances. Defendant’s attacks here are individual. United States v. Young, 2023 U.S. App. LEXIS 12783 (10th Cir. May 24, 2023).*
Plaintiff is a Chinese national, and his claims against an FBI agent aren’t appropriate for Bivens because of counterintelligence issues. He does appear, however, to state a claim under the FTCA. Xiaoxing Xi v. Haugen, 2023 U.S. App. LEXIS 12784 (3d Cir. May 24, 2023).*
NYT: Here’s What Happens When Your Lawyer Uses ChatGPT by Benjamin Weiser (“A lawyer representing a man who sued an airline relied on artificial intelligence to help prepare a court filing. It did not go well.”):
It isn’t apparent that there’s a right to challenge a search warrant before it is executed. (Rule 17 covers motions to quash subpoenas.) Even if there was, defendant doesn’t carry his burden. United States v. Crumpton, 2023 U.S. Dist. LEXIS 90154 (M.D. Ga. May 23, 2023).
Defendants were stopped for traffic violations. The officer handled the paperwork and then told them they were “good to go,” but did the Columbo one-more-thing-before-you-go and asked for consent to search which he got. The consent was valid. On the totality, the court finds the officer also had reasonable suspicion from their demeanor during the stop and obvious nervousness to justify the delay. State v. Samuels, 31 Neb. App. 918 (2023).*
Defendant’s Franks claim is based on inconsequential differences and is denied. United States v. Ninsawat, 2023 U.S. Dist. LEXIS 89924 (E.D. Mich. May 23, 2023).*
“Although the Fourth Amendment protects against ‘unreasonable searches and seizures,’ Plaintiffs failed to cite any case applying this constitutional protection to a state actor who conducts a physical examination of a minor in the State’s custody who has been suspected of being abused.” Therefore, qualified immunity applies. Pethtel v. Tenn. Dep’t of Child.’s Servs., 2023 U.S. App. LEXIS 12744 (6th Cir. May 23, 2023).*
While defendant was in pretrial confinement, he called his wife and instructed her to delete a social media account that the government was intending to search. This led to his obstruction charge. The call was monitored by the jail. United States v. Wells, 2023 CCA LEXIS 222 (A.F. Ct. Crim. App. May 23, 2023).
The search warrant here for an Asian massage parlor as a location of sex trafficking based on an 87-page affidavit was based on probable cause and was not stale. United States v. Jing Chen, 2023 U.S. Dist. LEXIS 89524 (D. Minn. May 23, 2023).*
2254 petitioner claimed he could overcome the Stone bar because the trial judge cavalierly denied all suppression motions and wasn’t neutral and detached. Nothing supports that factually. Still, it had to be raised in state court, too. Boyce v. Shoop, 2023 U.S. Dist. LEXIS 89618 (S.D. Ohio May 22, 2023).*
The district court erred in not dismissing one officer from a § 1983 case over a search because he had nothing to do with it. Tuttle v. Sepolio, 2023 U.S. App. LEXIS 12728 (5th Cir. May 23, 2023).*
The condition of supervised release that defendant submit to warrantless searches wasn’t explained to him or justified. Remanded. United States v. Davila, 2023 U.S. App. LEXIS 12714 (4th Cir. May 23, 2023).
Plaintiff’s driving, observed by an officer and caught on video, justified the stop. A handcuffing injury wasn’t attributable to the officer without notice it would exacerbate a preexisting condition. Scott v. City of Mandeville, 2023 U.S. App. LEXIS 12729 (5th Cir. May 23, 2023).*
The independent source doctrine justified this search, so the question of whether manipulating the key fob was a search was moot. United States v. Miller, 2023 U.S. App. LEXIS 12720 (7th Cir. May 23, 2023).
Loose marijuana in defendant’s car justified its further search, and that included his backpack. United States v. Wilson, 2023 U.S. Dist. LEXIS 89570 (E.D. La. May 23, 2023).*
The suppression “hearing” was a five-minute discussion of the law, and there were no factual disputes presented. Therefore, “defendant need not be present for any ‘conference or hearing on a question of law.’ Fed. R. Crim. P. 43(b)(3).” United States v. Vance, 2023 U.S. App. LEXIS 12547 (11th Cir. May 22, 2023).
When police arrived, one outside could see defendant place something in the kitchen cabinet. Officers had reasonable suspicion to seize that person. Consent of another to look for it was still voluntary. [What about protective sweep?] United States v. Franklin, 2023 U.S. App. LEXIS 12671 (4th Cir. May 23, 2023).*
“[W]e agree with the district court that Detective Schuler’s request for a search warrant from the Columbus municipal judge did not initiate a federal proceeding, and consequently, Rule 41(b) did not apply.” There also was no Franks violation shown. The challenged statements were not misleading. United States v. Douglas, 2023 U.S. App. LEXIS 12713 (4th Cir. May 23, 2023).*
The district court improperly dismissed plaintiff’s case under Younger because of ongoing state proceedings it implicated. It should have stayed it instead. Neal El v. Showman, 2023 U.S. App. LEXIS 12604 (6th Cir. May 22, 2023).
The Fourth Amendment does not require that an informant be identified. United States v. Winters, 2023 U.S. Dist. LEXIS 89333 (N.D. Ohio May 22, 2023).*
Defendant’s claim there was no basis for his stop was not filed as a motion to suppress, although that’s how it’s argued on appeal. Plain error applies, and it was not. Rijal v. State, 2023 Ga. App. LEXIS 211 (May 23, 2023).*
There generally is a reasonable expectation of privacy in one’s home. Here, the online paper sought bodycam footage of an arrest, but it was in a home but claimed the calling of the police was a waiver of a reasonable expectation of privacy. The reasonable expectation of privacy in the home remains. The state FOIA exemption applies. The Augusta Press, Inc. v. Roundtree, 2023 Ga. App. LEXIS 210 (Ct. App. May 23, 2023).*
A search warrant in Killeen, Texas was issued to look for evidence of a Hobbs Act murder in Lincoln, Nebraska. The affidavit combined information from Texas and Nebraska. There was potential confusion as to whose information was whose but it didn’t matter because that wasn’t material to the outcome nor was it recklessly false or misleading. There was probable cause on the totality. The fact the Texas judge didn’t question officers about the affidavit more didn’t show that he wasn’t neutral and detached, without more. United States v. Patterson, 2023 U.S. App. LEXIS 12592 (8th Cir. May 23, 2023).
Defendant was the passenger in a car that was stopped. He argues defense counsel was ineffective for not arguing his stop and frisk was unreasonable. When he got out of the car, he appeared intoxicated and was unresponsive to the officer request for an ID, and he wanted to walk to a nearby truck stop. Not letting him leave was reasonable. Therefore, no IAC. State v. Tamas, 2023-Ohio-1710 (11th Dist. May 22, 2023).*
Defendant’s wearing an empty holster when he was seen coming out of a motel room justified a protective sweep of the room. United States v. Valenzuela, 2023 U.S. App. LEXIS 12567 (5th Cir. May 22, 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.
