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).*
Rubin, a regular driver of defendant’s pickup had standing to challenge a tracking warrant put on it. The issuing judge, however, appears only to have authorized the tracking of Morgan’s use. The court declines to apply the good faith exception. United States v. Rubin, 2023 U.S. Dist. LEXIS 69865 (D. Nev. Apr. 21, 2023).
A stop 70 miles from the border on a regular smuggling route was with reasonable suspicion. United States v. Moreno, 2023 U.S. App. LEXIS 9422 (9th Cir. Apr. 20, 2023).*
Defendant signed the DUI consent form which explained the loss of driving privileges. It was not invalid consent based on fraud or unconstitutional conditions. Bauman v. State, 2023 Ind. App. LEXIS 118 (Apr. 19, 2023).*
The fact that some of the facts superficially appeared stale is irrelevant when the critical facts were close in time to the search. United States v. Marion, 2023 U.S. Dist. LEXIS 69442 (M.D. Fla. Apr. 20, 2023).*
Clare Harvie, What Defense Counsel Should Know About Facial Recognition Technology, 47 Champion 16 (No. 3, May 2023)
Jennifer S. Granick, Marking Warrants Great Again: Avoiding General Searches in the Execution of Warrants for Electronic Data, 47 Champion 28 (No. 3, May 2023)
Nathan Freed Kessler & Mas Rehrman, Challenging the Warrantless Bulk Surveillance of Money Transfer Records, 47 Champion 34 (No. 3, May 2023)
Laura Morall, Resisting the Good Faith Exception in Cases Involving Novel Types of Surveillance, 47 Champion 58 (No. 3, May 2023)
These are in NACDL’s The Champion for May 2023, which is not yet online. It will be in a few weeks.
Officers had an arrest warrant for defendant for a violent crime, and he was found at home. They saw him outside, and he retreated inside. The SRT showed up too. The entry for the arrest was valid, as was the protective sweep since one of the persons inside had on a bulletproof vest. The search warrant issued thereafter was issued on probable cause. State v. Johnson, 2023 N.C. App. LEXIS 202 (Apr. 18, 2023).
The fact a traffic offense is not “arrestable” under state law has no effect on the Fourth Amendment analysis. Virginia v. Moore. Techu-El v. Conetta, 2023 U.S. App. LEXIS 9405 (2d Cir. Apr. 20, 2023).
Plaintiff waived his Fourth Amendment theory on appeal by not asserting it in response to summary judgment. Wilson v. City of Evanston, 2023 U.S. App. LEXIS 9411 (7th Cir. Apr. 20, 2023).*
This was a murder for hire scheme. The affiant had good information that the CI was a notorious liar, having falsely alleged other schemes in the past. Here, however, there was “powerful” evidence of probable cause in recordings to back up the CI talking to the plaintiff. That made the prior false statements far less material. Howe v. Gilpin, 2023 U.S. App. LEXIS 9368 (8th Cir. Apr. 20, 2023).
There was probable cause for a traffic offense and reasonable suspicion for a drug investigation when defendant was stopped. The drug dog delay was reasonable. United States v. Rederick, 2023 U.S. App. LEXIS 9374 (8th Cir. Apr. 20, 2023).*
Defendant was unlawfully seized in violation of the Fourth Amendment before he consented to a search. He was the only person in the area. Two marked police vehicles, with at least three armed and uniformed officers in each, quickly pulled into an alley after him. They boxed in his car, four officers were approaching him before he agreed to be searched, and the officers asked him only accusatory questions, all suggesting they believed he had a gun on him. He twice denied having a gun; the officers did not accept his answer and instead asked if they could search him “just to make sure,” manifesting their disbelief in him and suggesting they were not going to let him walk away unless he could alleviate those suspicions. T.W. v. United States, 2023 D.C. App. LEXIS 111 (Apr. 20, 2023).*
Case over search dismissed on SOL grounds. Plaintiff on notice from the time of the search. Reyes v. Cty. of Wash., 2023 U.S. App. LEXIS 9353 (9th Cir. Apr. 19, 2023).
The officers obtaining and executing the warrant for defendant’s apartment, Unit D, didn’t know until getting inside and already finding child pornography that it was really two units in one. They didn’t know that before the child pornography was found. Affirmed. United States v. Parmer, 2023 U.S. App. LEXIS 9271 (9th Cir. Apr. 19, 2023).*
Plaintiff had no standing to sue over the search of car he borrowed that retrieved property he stole and was arrested for. Wilson v. Barnette, 2023 U.S. Dist. LEXIS 68364 (N.D. W.Va. Mar. 31, 2023),* adopted, 2023 U.S. Dist. LEXIS 67877 (N.D. W.Va. Apr. 18, 2023).*
Defendant was the passenger in a single car crash on the Maine Turnpike. When police arrived and talked to her and the driver, there was no seizure until reasonable suspicion developed. United States v. Howard, 2023 U.S. App. LEXIS 9320 (1st Cir. Apr. 19, 2023).*
Officers had probable cause for a Facebook tracking warrant to provide information of where he was when he posted about his travels south to acquire fentanyl for sale in Minnesota based on informant hearsay and his two pending drug cases. When he fled officers in St. Paul, he had a backpack with fentanyl in it. United States v. Resendiz, 2023 U.S. Dist. LEXIS 68357 (D. Minn. Mar. 1, 2023),* adopted, 2023 U.S. Dist. LEXIS 67124 (D. Minn. Apr. 17, 2023)*:
And while written in a somewhat conclusory-fashion, the supporting affidavit, when read as a whole, suggests Bowman undertook a good-faith investigation into the informant’s tip and Resendiz’s conduct. In light of that background investigation, along with a neutral judge’s probable cause determination, it was not entirely unreasonable for law enforcement to rely on the warrant, even where the underlying application was somewhat sloppy. See Proell, 485 F.3d at 431. None of the four limits to the good faith exception apply here.
Posted inGood faith exception, Informant hearsay|Comments Off on D.Minn.: The affidavit for SW was somewhat conclusory, but the officer’s efforts to corrorobate the CI showed GF
Defendant rented a condo in Atlanta, deceiving the landlord by using an assumed name. The landlord consented to a search. The landlord had no power to consent to a search. People rent hotel rooms and apartments and even buy houses under assumed names. The fact defendant was seeking to avoid arrest didn’t mean he still didn’t have a reasonable expectation of privacy from the landlord’s consent. United States v. Thomas, 2023 U.S. App. LEXIS 9306 (7th Cir. Apr. 19, 2023).
Officers had a controlled buy 90 days before the warrant. Another 10 days before the warrant made neither stale. Malden v. State, 2023 Fla. App. LEXIS 2694 (Fla. 1st DCA Apr. 19, 2023).*
The warrantless entry into defendant’s locked gated property to arrest him for a murder where there was bona fide fear of destruction of evidence, some having been thrown from his truck on the way home, was not a dispositive issue for a defense appeal. Other evidence connected him to the murder. Le Boss v. State, 2023 Fla. App. LEXIS 2698 (Fla. 1st DCA Apr. 19, 2023).*
Petitioner’s 2241 habeas action against an ongoing state prosecution challenging the search is barred by Younger. Johnson v. Warden Marlboro Cty. Det. Ctr., 2023 U.S. Dist. LEXIS 67605 (D.S.C. Apr. 17, 2023).
Defendant’s girlfriend accidentally saw child pornography on defendant’s cell phone, and she photographed the images. She was afraid of him to report it at first. She was a reliable CI. Cameron v. State, 2023 Alas. App. LEXIS 50 (Apr. 19, 2023) (unpublished).*
CIs buying drugs usually have criminal charges pending against them, and they have an incentive to be truthful because it could affect their sentencing later. United States v. Harper, 2023 U.S. Dist. LEXIS 67584 (E.D.N.C. Mar. 10, 2023),* adopted, 2022 U.S. Dist. LEXIS 70262 (E.D.N.C. Apr. 18, 2022).*
Posted inInformant hearsay|Comments Off on D.S.C.: Younger doctrine precludes habeas action against pending state criminal case, here over the search
A business fraud “whistleblower”’s statement was too conclusory to show probable cause. Franks hearing granted. United States v. Schampers, 2023 U.S. Dist. LEXIS 68205 (E.D. Wis. Apr. 19, 2023).
Defendant was driving back and forth between Plattsburgh NY and Burlington VT doing controlled buys. He had a storage unit for months in Burlington. That satisfied individualized suspicion for a warrant for the storage unit, too. United States v. Hill, 2023 U.S. Dist. LEXIS 68112 (D. Vt. Apr. 18, 2023).*
Officers had information plaintiff was suicidal and armed when he was cornered by tracking dogs. When he didn’t surrender, the dogs were sicced on him. He actually wasn’t armed, but the officers still get qualified immunity. Putman v. Harris, 2023 U.S. App. LEXIS 9295 (4th Cir. Apr. 19, 2023).*
“[T]he ability to execute a search does not necessarily imply power to execute a search warrant.” Osmon v. United States, 2023 U.S. App. LEXIS 9177 (4th Cir. Apr. 18, 2023).
Defendant’s Franks motion fails because there’s no offer of proof of knowing falsity. United States v. Harper, 2023 U.S. Dist. LEXIS 67584 (E.D.N.C. Mar. 10, 2023).*
90 day old information is not automatically stale. Here, there was additional information between then and the issuance of the warrant. Malden v. State, 2023 Fla. App. LEXIS 2694 (Fla. 1st DCA Apr. 19, 2023).*
The motion to suppress was not dispositive of this case because the state had plenty of information without the search to prosecute. Le Boss v. State, 2023 Fla. App. LEXIS 2698 (Fla. 1st DCA Apr. 19, 2023).*
Posted inFranks doctrine, Staleness, Warrant execution|Comments Off on CA4: “[T]he ability to execute a search does not necessarily imply power to execute a search warrant.”
This is a patent action involving an AR-15 trigger mechanism that can convert the gun to a machine gun. The government got involved to enjoin it. The defendants seek a transfer to W.D.Tex. which is denied. The court addresses 18 U.S.C. § 1345 and the standard for injunctive relief (preponderance) v. search warrant issuance on probable cause in footnote 4. United States v. Rare Breed Triggers, LLC, 2023 U.S. Dist. LEXIS 67796 (E.D.N.Y. Apr. 18, 2023)*:
Hawai’i’s Covid quarantines were not Fourth Amendment seizures to aid government intrusions. For Our Rights v. Ige, 2023 U.S. Dist. LEXIS 66956 (D. Haw. Apr. 17, 2023).
Exigent circumstances for warrantless police action is based on an objective standard. United States v. Borden, 2023 U.S. Dist. LEXIS 67348 (S.D. Tex. Apr. 17, 2023).*
Plaintiff’s Fourth Amendment complaint did not imply invalidity of his conviction so it wasn’t barred by Heck. Kimberlin v. United States DOJ, 2023 U.S. App. LEXIS 9190 (7th Cir. Apr. 18, 2023).*
Defendant’s Franks challenge was conclusory and based on mere typographical errors. United States v. Howard, 2023 U.S. App. LEXIS 9069 (9th Cir. Apr. 17, 2023).
Habeas petitioner’s admission of procedural default of his Fourth Amendment claim was an admission there was an adequate state procedure. Keller v. Genovese, 2023 U.S. App. LEXIS 9082 (6th Cir. Apr. 17, 2023).*
The government showed inevitable discovery applied to the inventory search of his belongings after arrest. United States v. Osorio, 2023 U.S. Dist. LEXIS 66505 (D.N.M. Apr. 17, 2023).*
Defendant’s peeping tom stop led to looking at his cell phone. A subsequent search warrant for the phone was issued on independent probable cause. Even if the initial view was tainted, there was probable cause without it. Tatum v. State, 2023 Ga. App. LEXIS 164 (Apr. 17, 2023).*
A CI’s 911 call “‘under the stress of excitement caused by a startling event’ (making the call less likely to be preplanned),” was reliable enough for reasonable suspicion. Torres v. Ball, 2023 U.S. App. LEXIS 9076 (4th Cir. Apr. 17, 2023).
Even if defendant’s cell phone video was illegally accessed at first, a search warrant was obtained for the phone and independent source makes it admissible. Tatum v. State, 2023 Ga. App. LEXIS 164 (Apr. 17, 2023).*
Defendant’s conclusory Franks allegations about typos in the warrant paperwork don’t suffice. United States v. Howard, 2023 U.S. App. LEXIS 9069 (9th Cir. Apr. 17, 2023).*
The affidavits for search warrant for this cell phone were overbroad as to what was sought lacking probable cause except for location data and use of the flashlight function. Defendant was accused of using the flashlight on his cell phone during a home invasion. Commonwealth v. Ani, 2023 PA Super 67, 2023 Pa. Super. LEXIS 155 (Apr. 17, 2023).*
The warrantless entry into defendant’s home to arrest him lacked any exigency, and the facts surrounding the arrest are suppressed. (Mere citation to the state constitution’s search and seizure provision without any elaboration preserves nothing for review, so the Fourth Amendment is followed instead.) Woods v. State, 2023 WY 32, 2023 Wyo. LEXIS 30 (Apr. 17, 2023).
A police officer may use only reasonable force to effect an arrest. Here, the state proved unreasonable force. State v. Chauvin, 2023 Minn. App. LEXIS 133 (Apr. 17, 2023).*
“‘The mere occurrence of a firearm seizure during a traffic stop, however, is not enough to establish a Second Amendment violation. Police seize and confiscate firearms routinely, and this Court will not presume that each and every one of those seizures is an automatic Second Amendment violation without specific facts indicating such.’ Partin v. Gevatoski, 2020 WL 4587386, at *4 (D. Or. Aug. 10, 2020); see also Siratsamy v. Sacramento Cnty. Sheriff Dep’t, 2021 WL 2210711, at *5 (E.D. Cal. June 1, 2021).” Nesbit v. Speedway LLC, 2023 U.S. Dist. LEXIS 66229 (C.D. Cal. Mar. 1, 2023).* (Around here, many guns that are seized are returned in short order with a little paperwork if it’s not an instrumentality of crime or the person not a FIPF.)
Officers had reasonable suspicion to at least detain plaintiff to inquire whether he had damaged police department property. Then he refused to identify himself. This was all reasonable. Wallace v. Taylor, 2023 U.S. App. LEXIS 9014 (5th Cir. Apr. 14, 2023).*
Cell phone search warrant not suppressed for failure to argue a legal basis for it. United States v. Wilson, 2023 U.S. Dist. LEXIS 66125 (D. Md. Apr. 13, 2023).*
Mere presence of FBI and other law enforcement officers at USPO’s search based on reasonable suspicion did not make the PO a “stalking horse” for the police. United States v. Borges-Sánchez, 2023 U.S. Dist. LEXIS 66017 (D.P.R. Apr. 14, 2023).
2254 petitioner claims defense counsel was ineffective for not pursuing a motion to suppress. The state courts found the searches by consent. Those findings are not unreasonable. Garcia v. McDowell, 2023 U.S. Dist. LEXIS 65936 (N.D. Cal. Apr. 14, 2023).*
Defendant had no reasonable expectation of privacy in a GPS tracker placed on the CI’s car he was riding in, following United States v. Dewilfond, 54 F.4th 578, 579 (8th Cir. 2022). State v. Fratz, 2023 Md. App. LEXIS 271 (Apr. 14, 2023) (unreported).
Nexus was shown between defendant’s place and drugs and guns. United States v. Lee-Stinson, 2023 U.S. Dist. LEXIS 66097 (E.D. Mich. Apr. 14, 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.
