Officer’s sniff of an unmarked bag on a train was not unreasonable. He was trained on the smell, and it interfered with no known person’s rights at the time. State v. Vaughn, 314 Neb. 167 (May 5, 2023).
The officer said he smelled marijuana when defendant rolled down his window, and the officer could see shake on the front seats. That is credited. The fact the bodycam wasn’t on tell us nothing about smell. United States v. Dumas, 2023 U.S. App. LEXIS 11231 (11th Cir. May 8, 2023).*
Defendant at first disclaimed ownership of a bookbag, but he reasserted control before the search occurred. He had standing. On the merits, the warning ticket took 15 minutes, and the drug dog was called for in the interim and it arrived and did its business. There was arguably reasonable suspicion, but it was reasonable in any event. State v. Harris, 2023-Ohio-1544, 2023 Ohio App. LEXIS 1536 (5th Dist. May 8, 2023).*
Defendant’s own declaration that he was outside the apartment when the affidavit said he was inside was just a swearing match, and it didn’t raise a sufficient Franks challenge. United States v. Pierret-Mercedes, 2023 U.S. Dist. LEXIS 79252 (D.P.R. May 5, 2023) (R&R).
Defendant anticipates a Franks motion, but he can’t subpoena records under Rule 17 in anticipation of filing that motion until a hearing is set. He can file a motion on “information and belief,” and, if it states enough, then a subpoena can be issued for the hearing. [Keep in mind that hardly any Franks motions get a hearing because they fail on their face.] United States v. Anderson, 2023 U.S. Dist. LEXIS 79328 (W.D. Pa. May 3, 2023).
Most of the inconsistencies alleged here for a Franks claim rely on speculation and aren’t enough. United States v. Cantizano, 2023 U.S. App. LEXIS 11210 (9th Cir. May 8, 2023).*
Posted inFranks doctrine|Comments Off on D.P.R.: Def’s declaration of a fact dispute didn’t rise to a Franks violation
A passenger in a car doesn’t have standing to challenge the vehicle’s inventory. United States v. Pineda, 2023 U.S. Dist. LEXIS 78800 (D. Nev. May 4, 2023).
Defendant was frisked because officers smelled marijuana during his traffic stop, and he admitted having a knife and then reached for it. United States v. Kane, 2023 U.S. App. LEXIS 11054 (3d Cir. May 5, 2023).*
“Defendant now argues the trial court erred by assessing 10 points instead of 0 points for OV 19 because defendant did not intend to hamper, hinder, or obstruct a police investigation by asserting his innocence following the fruitful execution of the search warrant and his arrest. … We disagree.” People v. Williams, 2023 Mich. App. LEXIS 3195 (May 4, 2023) (unpublished).*
Posted inInventory, Standing|Comments Off on D.Nev.: Passenger has no standing to challenge inventory
A prison CAT scan for contraband was less intrusive than a strip or body cavity search, so it was reasonable. Pouncy v. Bush, 2023 U.S. Dist. LEXIS 78217 (W.D. Mich. May 4, 2023).
Reasonable suspicion for a traffic violation to support a stop does not require that there actually be a traffic violation, just reasonable belief in one. United States v. Lara, 2023 U.S. Dist. LEXIS 78025 (W.D. Okla. May 4, 2023).*
“[T]he evidence supports that his consent to the search of the phones and his disclosure of the passcodes occurred before the suppressed FBI interview.” United States v. Rehman, 2023 U.S. App. LEXIS 10991 (5th Cir. May 4, 2023).*
Not a Fourth Amendment case but interesting: Think fires destroy everything? They don’t. In a search after suspected arson by explosion and fire, defendant’s touch DNA was actually found at the scene on a thermostat turned on for gas as the source of explosion. (And his cell phone was found in the debris.) There were plenty of other incriminating circumstances, too. People v. Perkins, 2023 COA 38 (May 4, 2023).*
There was reasonable suspicion for defendant’s intensive exit border search of his electronic devices. “The officers and agents had background information, much of it corroborated, that provided a basis for assessing Xiang’s actions in May and June 2017. Their experience and training in international economic espionage and theft of trade secrets gave them reasonable suspicion for an extended border search that included a forensic search of electronic devices.” United States v. Haitao Xiang, 2023 U.S. App. LEXIS 11027 (8th Cir. May 5, 2023).
Having convicted defendant, the government doesn’t show need to keep his four cell phones, and they should be returned. United States v. Robinson, 2023 U.S. Dist. LEXIS 78365 (D. Alaska May 4, 2023).
Officers driving by saw a group of men drinking on street in violation of state and city law. They got out of their cars and approached. Defendant visibly had a clip holster in his belt. The frisk for a weapon was reasonable. People v. Hicks, 2023 Mich. App. LEXIS 3184 (May 4, 2023) (unpublished).*
Defendant’s traffic stop led to observation that he was likely DUI, and the FST was reasonable. State v. Johnson, 2023 Fla. App. LEXIS 3063 (Fla. 5th DCA May 5, 2023).*
Posted inSearch|Comments Off on ScotusBlog: Petition of the Week: One police officer opens a car door, and another looks inside. Did they search without a warrant?
A two-hour delayed search incident of defendant’s sweatshirt for blood and other evidence was reasonable when he was in custody under U.S. v. Edwards (1974, 10 hours) and more compelling probable cause developed he committed an axe murder. Swabbing of hands was also reasonable because of the risk of destruction of evidence from mere washing. State v. Torres, 2023 N.J. LEXIS 396 (May 4, 2023). (Also, this search didn’t violate the state strip search law.)
Officers had plenty of justification for a protective sweep of defendant’s car for weapons based on his criminal history, including a pending violent crime, brass knuckles on the console, and a brief there was a knife in the car. United States v. Singleton, 2023 U.S. Dist. LEXIS 78086 (S.D. Fla. Apr. 21, 2023),* adopted, 2023 U.S. Dist. LEXIS 77383 (S.D. Fla. May 3, 2023).*
SCOTUS can’t be sued under Bivens, and there is sovereign immunity. Saintillus v. United States Supreme Court, 2023 U.S. Dist. LEXIS 78065 (E.D. Cal. May 3, 2023).*
Posted inProtective sweep, Search incident|Comments Off on NJ: Two-hour delayed SI for forensic evidence on def’s sweatshirt in axe murder case was reasonable
Defendant’s arrest in Texas on a Michigan warrant shown on NCIC was reasonable under the Fourth Amendment despite the claim that it was not flagged for out-of-state extradition. Six months earlier, he was arrested and released before getting to jail on the same warrant. United States v. Shaughnessy, 2023 U.S. Dist. LEXIS 77817 (N.D. Tex. May 4, 2023).
Petitioner filed a motion to suppress in state court that defense counsel did not adopt because it was defective. Still, he had a full and fair opportunity to litigate it there and Stone bars relief. Also, defense counsel wasn’t ineffective. Carr v. Goodwin, 2023 U.S. Dist. LEXIS 77645 (W.D. La. Apr. 3, 2023).*
Carpenter on remand still: First Step Act not applied. United States v. Carpenter, 2023 U.S. App. LEXIS 10963 (6th Cir. May 2, 2023).*
The search warrant for defendant’s new place was issued a year after the crime, but the affidavit showed the police they were involved in a long and intense investigation. Moreover, some specific evidence had not been located, and, even though defendant moved in the meantime, it was reasonable to believe it was still with him at the new address. Moreover, the good faith exception applies. United States v. Rodriguez, 2023 U.S. Dist. LEXIS 77587 (W.D.N.Y. May 3, 2023).
The indictment properly alleged a conspiracy under § 241 to violate someone’s Fourth Amendment rights. It doesn’t have to succeed to be a crime. “Although subjective intent is normally irrelevant under the exclusionary rule, in a civil rights prosecution ‘courts may inquire whether the officer acted with a corrupt, personal, and pecuniary purpose.’” United States v. Kaneshiro, 2023 U.S. Dist. LEXIS 77538 (D. Haw. May 2, 2023).
Posted inNexus|Comments Off on W.D.N.Y.: SW still based on PC as to new place even though def moved after the crime
Denver Post: Colorado Supreme Court hears first-of-its-kind challenge to police’s use of Google search terms to ID murder suspects (“The groundbreaking legal case considers for the first time in Colorado — and, attorneys said, nationally — whether police can legally issue search warrants that require Google to turn over account information for any users who searched particular keywords in a particular time frame…’The keyword warrant here made Google search everybody who searched for anything over the course of more than two weeks,’ said Michael Price, an attorney with the National Association of Criminal Defense Lawyers who argued against the use of the warrant.”)
Posted ingeofence|Comments Off on Denver Post: Colorado Supreme Court hears first-of-its-kind challenge to police’s use of Google search terms to ID murder suspects
NYPD set up a vehicle checkpoint in East Flatbush, Brooklyn, because of heavy traffic and crime in general. Every third vehicle was to be stopped except anything apparently a violation would cause a stop. Defendant was stopped for no front LPN, and he had an obstructed paper plate on the rear. Then he ran from the checkpoint, ran a red light, and had an accident. He was felon in possession. His flight was an intervening circumstance even if the checkpoint was unreasonable. United States v. Thompson, 2023 U.S. Dist. LEXIS 77308 (E.D.N.Y. May 3, 2023).
The limited force used against plaintiff was reasonable. He was in an accident and he ignored almost all commands from the officers and paramedics at the scene, including getting back in the car. Baker v. City of Madison, 2023 U.S. App. LEXIS 10852 (11th Cir. May 3, 2023).*
A writ of execution issued by a state court was sufficient to enter plaintiff’s home and it was not a Fourth Amendment violation, even if it was not private action. Plus, this is all being litigated in state court, and it shouldn’t be in federal court. BGH Holdings LLC v. D.L. Evans Bank, 2023 U.S. Dist. LEXIS 77380 (W.D. Wash. May 3, 2023).
The drug search warrant here was not stale because the government showed that this was ongoing conduct. United States v. Hopkins, 2023 U.S. Dist. LEXIS 77498 (M.D. Pa. May 3, 2023).*
Posted inAttenuation, Issue preclusion, Staleness|Comments Off on E.D.N.Y.: Even if Brooklyn checkpoint was unreasonable, def’s flight from it was intervening circumstance
“First, Officer Josh Powers did not violate Toombs’ Fourth Amendment rights by accessing license plate reader data from the Department of Justice’s Drug Enforcement Administration System Information License (‘DEASIL’). Second, Powers had reasonable suspicion of criminal activity when he extended Toombs’ traffic stop.” United States v. Toombs, 2023 U.S. Dist. LEXIS 77123 (N.D. Ala. May 3, 2023), R&R 2023 U.S. Dist. LEXIS 78053 (N.D. Ala. Apr. 12, 2023).
Because defendant was arrested on outstanding warrants, the inventory of his car was inevitable discovery. United States v. Baker, 2023 U.S. Dist. LEXIS 76900 (W.D. Tex. May 3, 2023).*
A brief protective sweep of a hotel room was reasonable and justified because the room was a likely base of operations for a robbery. United States v. Hardy, 2023 U.S. Dist. LEXIS 77017 (M.D. Ala. Apr. 14, 2023),* apopted, 2023 U.S. Dist. LEXIS 76157 (M.D. Ala. May 2, 2023).*
Officers had reasonable suspicion to enter a hotel room to detain a casual visitor who was there to give an occupant a ride. United States v. Watkins, 2023 U.S. Dist. LEXIS 77207 (D. Minn. Mar. 30, 2023).*
The warrantless search of defendant’s purse was lawful under the automobile exception because there was probable cause to believe that the car contained a controlled substance, and the purse was a container within that car. State v. Barrow, 2023 Minn. LEXIS 219 (May 3, 2023).
“The Appellant’s Fourth Amendment argument is conclusory and unsupported by citation, authority, or any further argument. We thus consider it waived.” State v. Smith, 2023 Tenn. Crim. App. LEXIS 141 n.1 (Mar. 3, 2023).*
“Finally, even if James had standing to assert the privacy rights of other cell phone users and the tower dump warrants lacked probable cause, the good-faith exception to the exclusionary rule would apply.” United States v. James, 2023 U.S. Dist. LEXIS 76809 (D. Minn. May 3, 2023).*
There wasn’t a sufficient change in the law in the meantime to change a summary judgment ruling that force wasn’t unreasonable. Faughn v. Kennedy, 2023 Ark. App. 252 (May 3, 2023).*
The warrant affiant adequately corroborated the CIs. When relying on jewelry visible in defendant’s social media posts, it isn’t necessary for the affiant to prove they are real or actually his. For probable cause, innocent explanations don’t have to be explained away. United States v. Briggs, 2023 U.S. App. LEXIS 10788 (3d Cir. May 3, 2023).
The affidavit’s recounting of really detailed information from the CI established probable cause under Gates. United States v. Jianguang Guo, 2023 U.S. Dist. LEXIS 76661 (D.R.I. May 2, 2023).*
Driving on the yellow line was reasonable suspicion for a traffic stop. State v. Mellinger, 2023-Ohio-1465 (9th Dist. May 3, 2023).*
Officers had a search warrant for a hotel room. When they got there, defendant had just come out of the room and was walking to a car in the parking lot. The officers attempted to stop him, and he attempted to flee, getting Tased. The stop was reasonable. United States v. Stevenson, 2023 U.S. App. LEXIS 10768 (8th Cir. May 3, 2023).*
After a search warrant produced nothing, the domestic battery complainant had common authority to consent to a search of a storage trailer to seize weapons, but not to search the bags that the weapons were found in. “A third party’s authority to consent to a residential search gives the police ‘the right to seize any evidence that was in plain view,’ but ‘[a] third party who has common authority over the premises might nevertheless lack common authority over the items therein.’ Coyle, 119 N.J. at 217, 574 A.2d 951; …” The motion to suppress should have been granted. Common authority here didn’t extend to the bags. State v. Miranda, 2023 N.J. LEXIS 394 (May 3, 2023).
Even if there wasn’t probable cause (“which the Court specifically denies”) the good faith exception applies here. United States v. Webster, 2023 U.S. Dist. LEXIS 75981 (S.D. Ala. May 2, 2023).*
Petitioner does not get appointed counsel to investigate his Fourth Amendment ineffective assistance of counsel claim where the search warrant and affidavit aren’t presented to the court. Hill v. May, No. 5:19-cv-1640, 2023 U.S. Dist. LEXIS 76633 (N.D. Ohio May 2, 2023).*
Checking on the outstanding warrants on the occupants of the car reasonably extended the stop. United States v. Hamlet, 2023 U.S. Dist. LEXIS 76568 (N.D. W.Va. May 2, 2023).*
Presence of drugs in one’s car doesn’t make probable cause to search his house. Being in a drug trafficking operation, however, might add up to probable cause for the house. Stewart v. United States, 2023 U.S. Dist. LEXIS 75936 (S.D. Ind. May 2, 2023).*
The government got a warrant for defendant’s phone for robbery of a federally licensed firearm dealer. They didn’t seek evidence of other crimes, but they found evidence linking defendant to a robbery of a T-Mobile store, brought in federal court as a Hobbs Act violation. The government disclosed the oversight. There was substantial other evidence linking defendant to the T-Mobile robbery once they figured out his identity. The government’s conduct was not sufficiently intentional to warrant applying the exclusionary rule. United States v. Bell, 2023 U.S. Dist. LEXIS 76330 (E.D. Mich. May 2, 2023).*
“In co-defendant Johnlouis’s case, our court upheld the denial of the motion to suppress because we determined that the letter carrier was ‘not a government actor to whom the Fourth Amendment applies.’ United States v. Johnlouis, 44 F.4th 331, 337 (5th Cir. 2022), cert. denied, 143 S. Ct. 834 (2023).” United States v. Felton, 2023 U.S. App. LEXIS 10708 (5th Cir. May 2, 2023).
Defendant’s social media account was registered to his IP address and his car was parked outside. That’s probable cause when he victimized a 6-year-old child by pictures. United States v. Blanco, 2023 U.S. App. LEXIS 10650 (9th Cir. May 2, 2023).*
14-month-old information to NCMEC wasn’t stale. It was reasonable to believe it would be stored by defendant. Information from Microsoft off Skype wasn’t treated as a traditional CI. The informaation was reliable. Ehrhardt v. State, 2023 Miss. App. LEXIS 168 (May 2, 2023).*
Driving without headlights justifies a stop. United States v. Pryor, 2023 U.S. Dist. LEXIS 75954 (E.D. Tenn. Mar. 6, 2023).*
“Mr. Porter nonetheless attempts to distinguish this case from our other abandonment cases, claiming that in those cases, the defendant’s denial of ownership was clear and unequivocal. But it is hard to imagine a statement plainer than ‘I don’t have a backpack.’ The statement is clearer still when viewed in conjunction with the fact that Detective Lopez saw Mr. Porter walk into the job site with a backpack. That ambiguity might be read into a statement does not mean it should. And certainly, plausible ambiguity does not yield clear error.” United States v. Porter, 2023 U.S. App. LEXIS 10634 (10th Cir. May 2, 2023).*
Regions Bank responding to an order of seizure of an account, wasn’t state action for suing it under the Fourth Amendment and § 1983. Ellis-Erkkila v. Citibank, 2023 U.S. Dist. LEXIS 75017 (W.D. Tex. May 1, 2023).*
This started off with a legitimate private search, and neither Franks requirement is met to get a hearing. United States v. Tatum, 2023 U.S. Dist. LEXIS 75482 (W.D.N.C. May 1, 2023).*
There was no objective reasonable expectation of privacy in a flyover of a marijuana grow operation. A warrant to flyover and photograph was not required. United States v. Soogrim, 2023 U.S. Dist. LEXIS 75183 (D.V.I. May 1, 2023).
The court credits the officer’s testimony that the brake lights weren’t working when the stop occurred. United States v. Jackson, 2023 U.S. Dist. LEXIS 75075 (M.D. La. May 1, 2023).*
Defendant was stopped at the gate to Fort Knox for DUI. Federal law controls the Fourth Amendment analysis, not Kentucky law. United States v. Fitzmaurice, 2023 U.S. Dist. LEXIS 75165 (W.D. Ky. Apr. 28, 2023).*
State officers did not need state authorization under the Illinois Rules of Criminal Procedure to transfer the product of a search and seizure to the federal government for prosecution. United States v. Edwards, 2023 U.S. Dist. LEXIS 75186 (C.D. Ill. May 1, 2023).*
Pulling open defendant’s pocket to search it was intentional and required applying the exclusionary rule. United States v. Jenkins, 2023 U.S. Dist. LEXIS 74739 (N.D. W.Va. Apr. 28, 2023).
The close relationship between the participants supported probable cause. It was unlikely one would pay the utility bills of the other without some relationship to each other. United States v. Lee, 2023 U.S. Dist. LEXIS 75618 (D. Alaska May 1, 2023).*
Defendant’s claim that the search of his car violated the Fourth Amendment was patently frivolous. United States v. Chuanze Xu, 2023 U.S. Dist. LEXIS 75644 (M.D. Pa. May 1, 2023).*
The search of defendant’s clothing before putting it in long term storage after his arrest was reasonable as an inventory. Inventories do not have to strictly comply with the rules if otherwise reasonable. State v. Manka, 2023 Neb. App. LEXIS 137 (May 2, 2023) (unpublished).*
"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.
