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 LEXIS 137 (May 2, 2023) (unpublished).*
Defendant’s motion to determine the legality of his arrest was not even called a motion to suppress. It was not even appealable as it was framed. “[T]he motion filed by Sanchez on October 28, 2020, was not captioned a ‘motion to suppress’ and, more importantly, the motion did not challenge the lawfulness of Sanchez’s arrest on constitutional grounds, nor did the motion seek the exclusion of any evidence. For those reasons, we cannot construe that motion as a suppression motion from which an appeal could be taken following the no contest plea in this case.” State v. Sanchez, 2023-Ohio-1436, 2023 Ohio App. LEXIS 1431 (3d Dist. May 1, 2023).
Defendant showed a material question of fact for a hearing on his motion to suppress. Remanded. United States v. Brown, 2023 U.S. App. LEXIS 10529 (3d Cir. May 1, 2023).*
Based on the totality of circumstances, the experience of the parole officer and his knowledge of defendant’s criminal history with weapons and potential violence along with defendant’s distancing himself from a backpack justified its parole search. United States v. Gaston, 2023 U.S. Dist. LEXIS 75025 (N.D. Iowa Apr. 6, 2023).*
Police seized plaintiff’s car and held it without justification for nine weeks. Plaintiff’s states a claim under the Fifth Amendment, but not the Fourth. Kelly v. Bell, 2023 U.S. Dist. LEXIS 74807 (M.D. Pa. Apr. 28, 2023).
“A search-warrant advisory that deviates from the exact wording in Minn. Stat. § 171.177, subd. 1 (2022), is insufficient to sustain the revocation of a person’s driving privileges if it is an inaccurate statement of law, misleading, or confusing when considered in its context as a whole.” Nash v. Comm’r of Pub. Safety, 2023 Minn. App. LEXIS 151 (May 1, 2023).*
“ICE agents, like all law enforcement officers, must comply with the Fourth Amendment. … Under the Fourth Amendment, ICE agents ‘may not stop and briefly detain a person for investigative purposes … unless they have reasonable suspicion supported by articulable facts that criminal activity may be afoot.’ … ICE agents are also required to comply with 8 C.F.R. § 287.8, a regulation setting out enforcement standards which reflect the Fourth Amendment’s restrictions. Perez Cruz v. Barr, 926 F.3d 1128, 1137 (9th Cir. 2019) (noting immigration enforcement regulatory standards are at least as stringent as the Fourth Amendment).” Andrade-Tafolla v. United States, 2023 U.S. Dist. LEXIS 74908 (D. Or. Apr. 19, 2023).*
Because a drug dog wouldn’t alert to fentanyl, the government showed probable cause on the totality of circumstances for an ion scan of defendant’s apartment door for traces of fentanyl. Warrants for ion scans have been approved in other cases. United States v. Branch, 2023 U.S. Dist. LEXIS 74845 (D. Minn. May 1, 2023), R&R 2023 U.S. Dist. LEXIS 75132 (D. Minn. Mar. 16, 2023).
State habeas petitioner had his full and fair opportunity to litigate the search issue in state court, so habeas relief is denied on that ground. Morris v. Shinn, 2023 U.S. Dist. LEXIS 74415 (D. Ariz. Apr. 28, 2023).*
Plaintiff was arrested for one case and then transferred to another Chicago police precinct for another investigation. That did not require separate probable cause (although it’s apparent there was). Crowder v. Barrett, 2023 U.S. App. LEXIS 10461 (7th Cir. Apr. 28, 2023).*
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Posted inDNA, Third Party Doctrine|Comments Off on ABA: Regulating Forensic Genetic Genealogy: Balancing Privacy Concerns with the Needs of Law Enforcement in a Time of Consumer DNA Testing Services
A flashing incident on a Marine base in December 2018 led to a search authorization of defendant’s cell phone. The images on the phone were first sorted by size instead of date, and that led to accidentally discovering an apparent child pornography image. The searcher stopped and consulted superiors. A separate search authorization was sought for child pornography which essentially appeared in plain view. It was not unreasonable to conduct the search as it was. Maybe it could have been done better otherwise, but that does not make it unreasonable. United States v. Shields, 2023 CAAF LEXIS 270 (C.A.A.F. Apr. 28, 2023):
The typographical error in the affidavit showing the date as September 9th when it should have been September 30th could be overlooked because the affidavit as a whole referred to the previous few hours, and the good faith exception applies. People v. Grudznske, 2023 COA 36, 2023 Colo. App. LEXIS 614 (Apr. 27, 2023).
Most of the search warrant papers remain sealed. “Upon careful consideration of that thorough submission, and also upon a close independent review of the requested Sealed Materials, it is clear that the countervailing factors described above are sufficiently compelling to outweigh the strong presumption of public access to certain portions of the documents at issue. To protect both highly sensitive law enforcement practices and the privacy of third parties, some degree of continued sealing is necessary.” United States v. Mullins, 2023 U.S. Dist. LEXIS 74008 (S.D.N.Y. Apr. 26, 2023).*
There was reasonable suspicion for the state probation search here. United States v. Gaston, 2023 U.S. Dist. LEXIS 74217 (N.D. Iowa Apr. 28, 2023).*
In a home invasion rape case, the state sought from Google search information involving the victim’s name in the 48 hours before the rape, and there were searches for that from defendant’s IP address. Defendant had no reasonable expectation of privacy in the information Google had. Then, there was a tower dump of the information from the cell tower near the victim’s home at the time of the rape, and the court finds Carpenter does not apply there. Commonwealth v. Kurtz, 2023 PA Super 72, 2023 Pa. Super. LEXIS 170 (Apr. 28, 2023).
“Here, the affidavit made a colorable argument for probable cause, which the agents relied on in good faith in securing a warrant to search Fowler’s car. The statement of probable cause connected Fowler and his car to known drug traffickers. It documented that law enforcement officers had observed Fowler driving a known drug trafficker in his Camry to a nearby motel shortly after that known trafficker had conducted a suspected drug sale. It also stated that, on one occasion in which Fowler drove one known trafficker (Brian Bridges) to meet with another trafficker (Christina Neff) who emerged from an apartment building, Fowler himself first exited the car and approached the building in an apparent effort to find Neff.” [There’s more.] United States v. Fowler, 2023 U.S. App. LEXIS 10412 (9th Cir. Apr. 28, 2023).*
Seven controlled buys from defendant, five from inside his house, was probable cause. People v. Howard, 2023 NY Slip Op 02218, 2023 N.Y. App. Div. LEXIS 2221 (4th Dept. Apr. 28, 2023).*
By attacking and killing his hosts, his parents, defendant lost guest standing, if he would have had it at all. Police conducted a welfare check and found severed body parts in plastic tubs and on the stove, including a head in a pot on the stove, and plastic sheeting. The welfare check was reasonable when his mother did not show up for work for a going away party for her retirement. State v. Guy, 2023 Tenn. Crim. App. LEXIS 136 (Apr. 28, 2023).
The FAA’s investigative subpoena here was within the agency’s authority and appeared otherwise reasonable. United States v. Wagner, 2023 U.S. Dist. LEXIS 73933 (S.D. Cal. Apr. 27, 2023).*
Defendant was not a transient guest in the place searched. The proof showed he’d been staying there two weeks and had stuff showing he was essentially living there for the time being. Thus, the seizure of his cell phone on the search of the premises was reasonable. United States v. Brown, 2023 U.S. Dist. LEXIS 73791 (M.D. Ga. Apr. 27, 2023).*
Pointing a Taser at plaintiff was not a seizure. Pollreis v. Marzolf, 2023 U.S. App. LEXIS 10269 (8th Cir. Apr. 27, 2023).
Even if possession of a firearm in a concealed carry state was not unlawful, smoking marijuana with a gun is. The stop was justified. United States v. Thompson, No. 22-173, 2023 U.S. Dist. LEXIS 73263 (E.D. La. Apr. 27, 2023).*
Denial of ownership or leasehold in storage unit means no possessory interest or reasonable expectation of privacy. United States v. Jackson, 2023 U.S. Dist. LEXIS 73330 (W.D. La. Mar. 21, 2023).*
There was no reasonable expectation of privacy in the abandoned vehicle, so defense counsel wasn’t ineffective for not challenging its search. United States v. Gravette, 2023 U.S. Dist. LEXIS 73532 (W.D. Va. Apr. 27, 2023).*
A roadside dog sniff during the records check was reasonable even without reasonable suspicion and did not extend the stop. United States v. Ramirez-Rivera, 2023 U.S. App. LEXIS 10325 (11th Cir. Apr. 27, 2023).
On collective knowledge: “As the surveillance unfolded, Officer Cockerham continued to communicate his observations to responding officers as the facts were developing and before the traffic stop happened. The arresting officers did not rely on a static dispatcher bulletin or ‘round-up packet’ issued by Officer Cockerham based solely on his observation of a concealed firearm.” United States v. Thompson, 2023 U.S. Dist. LEXIS 73263 (E.D. La. Apr. 27, 2023).*
The seizure of defendant’s backpack was unjustified. A search warrant for the backpack led to a search warrant for his residence, and the backpack search is suppressed as is everything that flowed from it. People v. Delerme, 2023 V.I. LEXIS 10 (Super. Ct. Apr. 24, 2023).*
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The inventory policy reasonably permitted opening containers. Beckwith v. State, 2023 WY 39, 2023 Wyo. LEXIS 39 (Apr. 27, 2023).
Years after a seizure but still pre-indictment, the plaintiff sought return of property while the government was still investigating. It’s essentially in the form of a motion to suppress evidence but that remedy comes if there is an indictment. The equities favor the government, and the 41(g) case is dismissed. Gulf Coast Pharmaceuticals Plus v. United States, 2023 U.S. Dist. LEXIS 72540 (S.D. Miss. Apr. 26, 2023).*
VA OIG subpoena was not unreasonable. An alleged conflict of interest, “Finally, to the extent that Dr. Maganito argues the VA OIG investigation was initiated in bad faith because it is tainted by a conflict of interest between the VA OIG inspector overseeing the investigation and himself, the Court finds this accusation unsupported by the record and insufficient to establish the subpoena request is unreasonable under the Fourth Amendment.” United States v. Maganito, 2023 U.S. Dist. LEXIS 73000 (D. Mont. Apr. 26, 2023).*
Inclusion of “indicia of ownership” of the place searched doesn’t show the warrant was not particular. United States v. Anderson, 2023 U.S. Dist. LEXIS 73033 (D. Kan. Apr. 26, 2023).
Defendant was stopped for a traffic violation, although there was reasonable suspicion for drugs as well. That led to a dog sniff. United States v. Fernandez-Silva, 2023 U.S. Dist. LEXIS 72357 (W.D. La. Apr. 6, 2023).*
The search warrant was issued with probable cause, so the good faith exception issue doesn’t have to be decided. United States v. Diaz-Castrejon, 2023 U.S. Dist. LEXIS 72444 (N.D. Okla. Apr. 26, 2023).*
Defendant consented to the search of his cell phone while he was in custody. He was at least average intelligence, and he was handcuffed on one arm when talking to the police. United States v. Silva, 2023 U.S. Dist. LEXIS 72490 (M.D. Fla. Apr. 5, 2023).*
“The opening of the driver’s door had no effect or impact on the dog’s alert.” United States v. Anderson, 2023 U.S. Dist. LEXIS 73033 (D. Kan. Apr. 26, 2023).
The facts in the record support the automobile exception as the basis for the search, so probation search does not need to be decided. United States v. Carson, 2023 U.S. App. LEXIS 9946 (6th Cir. Apr. 24, 2023).*
The affidavit for the warrant showed probable cause, and, even if it didn’t, the good faith exception would apply. United States v. Novacheck, 2023 U.S. Dist. LEXIS 71630 (D. Minn. Mar. 1, 2023).*
There was cause for the stop that ripened into probable cause, and defendant’s parole condition permitted a search, too. United States v. Virrueta, 2023 U.S. Dist. LEXIS 71829 (D.S.D. Mar. 10, 2023),* adopted 2023 U.S. Dist. LEXIS 71830 (D.S.D. Apr. 13, 2023).*
Appellant resisted an illegal patdown and was Tased and charged with obstruction and resisting. A new offense is an intervening circumstance under Brown, and it doesn’t matter whether it is “serious” or not. Massey v. State, 2023 Tex. Crim. App. LEXIS 278 (Apr. 26, 2023).
There was justification for a protective weapons search under the driver’s seat that the driver could get access to if he got back into the car. United States v. Erving, 2023 U.S. Dist. LEXIS 70832 (C.D. Ill. Apr. 24, 2023).*
Lack of additional support for the CI’s credibility wasn’t important when there was additional other information that showed probable cause. United States v. Foster, 2023 U.S. Dist. LEXIS 70890 (N.D. Ala. Apr. 24, 2023).*
Crossing the white line justified the stop, and the smell of marijuana came from the car. United States v. Crawford, 2023 U.S. Dist. LEXIS 71226 (N.D.W. Va. Apr. 24, 2023).*
The drug dog’s “positive alert on the vehicle in this case established a fair probability that drugs or evidence of a crime would be found in the vehicle. This is true despite recent changes in the law regarding the legalization of small amounts of cannabis as ‘there are still, among other things, (1) illegal ways to transport it, (2) illegal places to consume it, and (3) illegal amounts of it to possess.’ Molina, 2022 IL App (4th) 220152, ¶ 43.” People v. Mallery, 2023 IL App (4th) 220528, 2023 Ill. App. LEXIS 132 (Apr. 25, 2023).
Handcuffing defendant here was merely a detention to “control the evolving scene” and not an arrest. The odor of marijuana justified the vehicle search. Womack v. State, 2023 Del. LEXIS 132 (Apr. 24, 2023).* https://courts.delaware.gov/Opinions/Download.aspx?id=346740
Defense counsel wasn’t ineffective for not challenging a search that was arguably illegal but irrelevant to the issuance of a search warrant. Huskisson v. United States, 2023 U.S. Dist. LEXIS 70631 (S.D. Ind. Apr. 21, 2023).*
The officer’s mistake of law about the two working taillight statute v. city ordinance was reasonable. United States v. Nathanial, 2023 U.S. Dist. LEXIS 70812 (N.D. Ill. Apr. 24, 2023).*
In a driver’s license suspension case, the fact an underlying out of state driving offense was allegedly obtained in violation of the Fourth Amendment is no defense. It was final. Underhill v. Comm’r of Pub. Safety, 2023 Minn. App. LEXIS 145 (Apr. 24, 2023).
The Special Master’s Report on the Ashley Biden diary search warrant against Project Veritas is on Lexis at In re Search Warrant Executed on November 5, 2021, 2023 U.S. Dist. LEXIS 70427 (S.D.N.Y. Mar. 21, 2023).*
The officer telling another person in proximity to wait in his car had nothing to with whether plaintiff or his property were seized. The officer’s entering a church parking lot was not a search. Sgaggio v. Suthers, 2023 U.S. App. LEXIS 9727 (10th Cir. Apr. 24, 2023).*
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The fact a police officer arguably broke traffic laws to effect a stop of a fleeing motorist isn’t a defense to a traffic stop under the Fourth Amendment or the state constitution. State v. Johnson, 2023-Ohio-1320, 2023 Ohio App. LEXIS 1301 (12th Dist. Apr. 24, 2023).
“Last, though Nwaorie’s Statement of Facts in her brief recounts two occasions in which her property was ruined as a result of CBP inspections, she does not contend that this damage to her belongings infringed her liberty interests. Nwaorie has therefore not adequately pleaded that the Government violated her Fourth Amendment rights.” Nwaorie v. United States, 2023 U.S. App. LEXIS 9652 (5th Cir. Apr. 21, 2023).*
Defendant’s stop was valid for a traffic offense and overtinted windows. Defendant first denied having a gun on him but shortly admitted he did. That was justification for a state arrest for mishandling a firearm (if you’re carrying, say so). United States v. Bohannon, 2023 U.S. Dist. LEXIS 70407 (N.D. Ohio Apr. 21, 2023).*
Defendant’s next door neighbor’s house caught on fire, and police at the scene acted reasonably in entering his house to clear it when the fire grew and they reasonably feared it would spread to the houses next door. State v. Morehead, 2023-Ohio-1314, 2023 Ohio App. LEXIS 1296 (9th Dist. Apr. 24, 2023).
Petitioner failed to show a prima facie case of an egregious violation of Fourth Amendment rights. Sanchez v. Garland, 2023 U.S. App. LEXIS 9614 (9th Cir. Apr. 20, 2023).*
Plaintiff’s retreat into his house after being told he was being arrested was active resistance that could be met with force. The video does not show it to be unreasonable. Beroid v. Lafleur, 2023 U.S. App. LEXIS 9644 (5th Cir. Apr. 21, 2023).*
Defendant doesn’t show standing to challenge destruction of firearms. United States v. Thompson, 2023 U.S. Dist. LEXIS 70395 (W.D. Pa. Apr. 19, 2023).*
Police responded to a call within minutes of a finding of a suicide note. “One officer called the on-call investigator after knocking on the door and getting no response. It was only then that the officers decided to breach the door, where they discovered Nowell unconscious and Eiss lethargic. Given these circumstances, we uphold the emergency search as reasonably necessary for the prevention of death or bodily harm.” Nowell v. State, 2023 Ark. 65, 2023 Ark. LEXIS 91 (Apr. 20, 2023).
There was probable cause for defendant’s stop and vehicle search. People of the V.I. v. Gumbs, 2023 V.I. LEXIS 9 (Super. Ct. Apr. 18, 2023).*
The state trooper followed law at the time in getting a blood draw, so the good faith exception applies after a change in the law. State v. German, 2023 S.C. LEXIS 82 (Apr. 19, 2023).*
There was probable cause based on collective knowledge of all the officers involved. State v. Hammer, 2023-Ohio-1307, 2023 Ohio App. LEXIS 1269 (2d Dist. Apr. 20, 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.
