Officers gathered information that defendant’s son lived in his house and presented it for a search warrant. After the search they found out he didn’t. The warrant was still issued in good faith. United States v. Jordan, 2023 U.S. App. LEXIS 8975 (4th Cir. Apr. 14, 2023).
Executing the search warrant, officers found a crumpled note in a wastebasket describing the murder plan with only defendant’s fingerprints on it. (Also, evidence found doing the initial security sweep was not excludable because of the independent source doctrine.) Bender v. State, 2023 Fla. App. LEXIS 2529 (Fla. 5th DCA Apr. 14, 2023).*
This motion to suppress is the same as one already denied as untimely. United States v. White, 2023 U.S. Dist. LEXIS 65720 (W.D. Mo. Mar. 10, 2023).*
Posted inGood faith exception, Staleness, Waiver|Comments Off on CA4: Slightly outdated information police gathered def lived at place in SW still made it in good faith
A city ordinance regulating trees was not a Fourth Amendment seizure because the trees were not on the curtilage of a home and weren’t independently subject to the Fourth Amendment. (Otherwise, a taking occurred, and that’s way outside the scope of this blog.) Charter Twp. of Canton v. 44650, Inc., 2023 Mich. App. LEXIS 2634 (Apr. 13, 2023).
“Norweathers raises a variety of other issues challenging the court’s denial of his motion to suppress and claiming that the missing computer contained exculpatory evidence that had to be produced. Among other issues, he contends that the application for the search warrant was insufficient to establish probable cause, that the search went beyond what the warrant authorized, that the search was unconstitutional because the application did not name him as the target,” and a bunch of other stuff. “None of the arguments is cogent enough to suggest constitutional error. The court declines to consider them further.” United States v. Norweathers, 2023 U.S. Dist. LEXIS 64931 (N.D. Ill. Apr. 13, 2023).*
The affidavit for warrant corroborated the CI and established nexus for the property. Commonwealth v. Shackelford, 2023 PA Super 66, 2023 Pa. Super. LEXIS 149 (Apr. 14, 2023).*
Defendant’s mental health seizure didn’t comply with state law and was unreasonable. There was no face-to-face meeting to evaluate his condition required by law. His girlfriend had reported that he was sending suicidal text messages. K.M. v. State, 2023 Fla. App. LEXIS 2526 (Fla. 2d DCA Apr. 14, 2023).
Defendant’s encounter with the Border Patrol was completely consensual, and drugs were found in plain view. United States v. Thomas, 2023 U.S. App. LEXIS 8895 (5th Cir. Apr. 13, 2023).*
Defendant’s parole search was valid. He argued his partially suspended sentence expired 2-3 months before the search, but he was still on parole at the time. It was based on reasonable suspicion from being actively involved in a street gang to which police attributed 61 violent crimes in 19 months. United States v. Ware, 2023 U.S. Dist. LEXIS 65344 (S.D. Ga. Mar. 3, 2023),* adopted 2023 U.S. Dist. LEXIS 64384 (S.D. Ga. Apr. 12, 2023).*
In this Hobbs Act robbery case, ATF got a geofence warrant to attempt to isolate who was committing a string of robberies in the Tampa Bay area. Instead of even considering the merits, the court goes directly to the good faith exception and sustains the warrant. United States v. Carpenter, 2023 U.S. Dist. LEXIS 64948 (M.D. Fla. Feb. 28, 2023), adopted, 2023 U.S. Dist. LEXIS 64362 (M.D. Fla. Apr. 12, 2023).
Defendants’ Franks challenge fails. They complained that the companies they ran were not part of each other, but the affidavit showed they had intermingled officers and it was a reasonable conclusion from the outside. Also, it’s not material. United States v. Mercer-Erwin, 2023 U.S. Dist. LEXIS 64798 (E.D. Tex. Mar. 31, 2023).*
“In a § 1983 case, once the defendants presented evidence of consent to the search, the burden shifts to the plaintiff to establish the lack of consent to search. … O’Boyle offered nothing to meet this burden.” O’Boyle v. Carrasco, 2023 U.S. App. LEXIS 8863 (7th Cir. Apr. 13, 2023).*
Officers’ entry onto plaintiff’s driveway did not violate curtilage. Habich v. Wayne Cty., 2023 U.S. App. LEXIS 8868 (6th Cir. Apr. 12, 2023).
No reasonable expectation of privacy in the contents of trash cans left at the curb for collection. United States v. Sorensen, 2023 U.S. Dist. LEXIS 64259 (D. Minn. Mar. 23, 2023).*
The search of defendant’s car for a weapon was reasonable. The driver was restrained but the passenger was not, and the car was followed on a high speed chase through residential neighborhoods. United States v. Preston, 2023 U.S. Dist. LEXIS 64412 (E.D. Ark. Apr. 12, 2023).*
Where the officer had reason to believe there was a gun in the car, the first search didn’t reveal it, so the search could be more intense to look where else it might be. Commonwealth v. Guardado, 2023 Mass. LEXIS 127 (Apr. 13, 2023).*
Posted inCurtilage, Protective sweep|Comments Off on CA6: Entry onto driveway didn’t violate curtilage
A geofence warrant was sought in 2019 for Google which provided several subject phones in the vicinity of a murder. The court finds the warrant was not particular enough, but applies the good faith exception because geofence warrants were so new when this one was issued, officers were clearly acting in good faith. People v. Meza, 2023 Cal. App. LEXIS 282 (2d Dist. Apr. 13, 2023). Interesting read on particularity and overbreadth, but good faith will usually carry the day. I suspect GFE will always apply.
Defendant’s indictment will not be dismissed because a U.S. Coast Guard detachment was aboard a Dutch naval vessel interdicting drugs. This cooperation is recognized by a 1988 treaty. United States v. Osorio, 2023 U.S. Dist. LEXIS 63805 (S.D. Fla. Apr. 11, 2023).*
After the other occupants of the apartment fled the scene, the one remaining had sufficient connection and control over the premises to consent to a search. United States v. Burkhalter, 2023 U.S. Dist. LEXIS 63915 (W.D. Mo. Mar. 10, 2023).*
Having the homeowner in handcuffs during a search of his house and then releasing him when done is reasonable under Michigan v. Summers. Armstrong v. Gretsky, 2023 U.S. Dist. LEXIS 63028 (E.D. Pa. Apr. 11, 2023).
Defendant parolee tried to show with declarations identifying no host that he was an overnight guest of the place searched with standing. The court finds instead that he was an illegal guest without permission or standing. United States v. Harding-Abeyta, 2023 U.S. Dist. LEXIS 63344 (E.D. Cal. Apr. 10, 2023).*
Search incident doesn’t support the search of defendant’s backpack because it wasn’t on him, but it’s objectively clear he abandoned it. United States v. Williams, 2023 U.S. Dist. LEXIS 63430 (D.D.C. Apr. 11, 2023),*
Posted inAbandonment, Standing, Warrant execution|Comments Off on E.D.Pa.: Homeowner can be handcuffed during home search without his being arrested
Plaintiffs stated a claim that the Orange County program for collection of DNA from misdemeanants violated their right to privacy. There may be instances were a misdemeanor may be a “serious crime” but in general, no. The trial court erred in granting the demurrer. Thompson v. Spitzer, 2023 Cal. App. LEXIS 275 (4th Dist. Apr. 11, 2023). See Courthouse News Service: Lawsuit over Orange County DNA collection program revived by Hillel Aron (“A California appeals court revived a lawsuit Tuesday filed by two UC Irvine professors challenging the Orange County district attorney’s controversial program which takes DNA samples from people charged with misdemeanors as part of plea agreements.”)
The space around two homes next to each other were curtilage. (There were genuine issues of fact for trial here on the warrantless non-exigent entry onto the property.) O’Kelley v. Curran, 2023 U.S. App. LEXIS 8601 (11th Cir. Apr. 11, 2023).
The officer’s reasonable belief that the consenter had the authority to do so entitled him to qualified immunity. “Here, Clark reasonably believed that Deckard’s representative had authority to consent to the seizure. He knew that the partnership owned the house and, according to the foreclosure judgment, its contents. Further, Deckard voluntarily contacted the federal prosecutor to offer the documents, and a Deckard employee orally agreed that Clark could take the property and initialed his inventory receipt. All these interactions reasonably indicated that Deckard could, and did, consent to the seizure.” Mitan v. Clark, 2023 U.S. App. LEXIS 8545 (7th Cir. Apr. 11, 2023).*
Posted inConsent, DNA, Reasonable expectation of privacy|Comments Off on Cal.4: Misdemeanants stated claim that DNA testing of them was a violation of state right of privacy
Failure to challenge application of the good faith exception in the trial court on running the LPN through insurance database precludes challenging it on appeal. Erby v. State, 2023 Ark. App. 220, 2023 Ark. App. LEXIS 211 (April 12, 2023).
Defendant didn’t have standing to challenge the search of a house in someone else’s name that he claimed to have bought with $30,000 in drug money cash when no documents whatsoever showed that as his property or address: no utility bills, mail, nothing. Also, he had nothing inside. United States v. Taylor, 2023 U.S. Dist. LEXIS 62710 (N.D. Ohio Apr. 10, 2023).*
The 60-page affidavit for search warrant shows probable cause, and the good faith exception applies. United States v. Vasquez, 2023 U.S. Dist. LEXIS 62829 (M.D. Tenn. Apr. 6, 2023).*
The affidavit for warrant shows nexus and the good faith exception applies. United States v. Anderson, 2023 U.S. App. LEXIS 8534 (6th Cir. Apr. 11, 2023).*
Attorney-client privilege is reason for return of documents under F.R.Crim.P. 41(g), and Nevada recognizes that, too, regardless of whether there is an open investigation. In re Search Warrants Regarding Seizure of Documents, 2023 Nev. App. Unpub. LEXIS 131 (Apr. 7, 2023).*
The search of defendant’s car was justified under the automobile exception for the smell of marijuana and as a parole search. United States v. Ford, 2023 U.S. Dist. LEXIS 62655 (S.D. Ill. Apr. 10, 2023).*
A visible firearm as the officer walked up to the car was reasonable suspicion in Illinois. United States v. Morris, 2023 U.S. Dist. LEXIS 62659 (S.D. Ill. Apr. 10, 2023).*
Hot pursuit into defendant’s house to arrest him failed when there was no justification for the arrest or entry. State v. Moses, 2023 La. App. LEXIS 566 (La. App. 4 Cir Apr. 10, 2023).
Even if the search warrant was executed here before 6 a.m., defendant doesn’t show any prejudice by that. A cell phone is not exigency in itself, but here there was at least some risk of destruction of evidence because defendant knew he was probation prohibited from possessing anything that could access the internet. The officers also had information that he’d accessed the internet though the phone. United States v. Sherman, 2023 U.S. Dist. LEXIS 62099 (D. Minn. Apr. 10, 2023).
Plaintiff’s arrest for even a minor offense that happens in the officer’s presence is reasonable. Alburg v. Jones, 2023 U.S. App. LEXIS 8299 (3d Cir. Apr. 7, 2023).*
Defendant’s arrest for a felony was with probable cause. State v. McCurty, 2023-Ohio-1158, 2023 Ohio App. LEXIS 1116 (2d Dist. Apr. 7, 2023).*
The legality of a protective sweep of defendant’s car for a weapon was a moot point. The vehicle was subject to impoundment and it was lawfully inventoried. Everything found was subject to inevitable discovery. State v. Nixon, 2023-Ohio-1160, 2023 Ohio App. LEXIS 1121 (2d Dist. Apr. 7, 2023).*
“Even when Sgt. Sublette’s initial deception is considered, the totality of the circumstances amount to voluntary consent by Carron. At the time of the encounter, Carron was a 44-year-old man who appeared to be reasonably intelligent with prior experience in the criminal justice system. He met the two officers on the driveway of his home as he returned home from work in the afternoon. The officers identified themselves as law enforcement but were dressed in plain clothes and did not display badges, have weapons drawn, or otherwise make a show of authority.” United States v. Carron, 2023 U.S. Dist. LEXIS 61937 (E.D. Mo. Apr. 7, 2023).*
Plaintiff’s arrest for even a minor offense that happens in the officer’s presence is reasonable. Alburg v. Jones, 2023 U.S. App. LEXIS 8299 (3d Cir. Apr. 7, 2023).*
Defendant’s arrest for a felony was with probable cause. State v. McCurty, 2023-Ohio-1158, 2023 Ohio App. LEXIS 1116 (2d Dist. Apr. 7, 2023).*
The legality of a protective sweep of defendant’s car for a weapon was a moot point. The vehicle was subject to impoundment and it was lawfully inventoried. Everything found was subject to inevitable discovery. State v. Nixon, 2023-Ohio-1160, 2023 Ohio App. LEXIS 1121 (2d Dist. Apr. 7, 2023).*
NYT: A.I. Is Coming for Lawyers, Again by Steve Lohr (“Previous advances in A.I. inspired predictions that the law was the lucrative profession most likely to suffer job losses. It didn’t happen. Is this time different?”):
Questions at the hospital about drug or alcohol use are not “pedigree questions” because they go to the heart of the investigation. People v. Jeffcoat, 2023 NY Slip Op 50306(U), 2023 N.Y. Misc. LEXIS 1549 (Nassau Co. Apr. 7, 2023).*
“In his appellate brief, McKinney also alleges that the officers violated intentionally his constitutional rights by executing a flawed search warrant. This passing reference — made without citation to authority or supporting argument — does not raise properly this issue on appeal.” United States v. McKinney, 2023 U.S. App. LEXIS 8322 (11th Cir. Apr. 7, 2023).*
“On appeal, Sanford abandons the other arguments he made to the circuit court in opposing the unsealing of the affidavits. Interwoven within Sanford’s inspection/redaction arguments, however, is a new claim that he has a Fourth Amendment privacy right in the investigative materials contained in the affidavits. The Fourth Amendment privacy right recognized in the cases cited by Sanford involved a challenge to the reasonableness of the search and seizure of property, not a privacy interest in the contents of the information that would be publicly disseminated in the search warrant affidavits. Sanford has failed to articulate a viable Fourth Amendment argument, and we determine this claim to be without merit.” In re An Appeal by an Implicated Individual, 2023 S.D. 16 (Apr. 5, 2023).*
Posted inReasonableness, Waiver|Comments Off on NY Nassau: Questions in ER about drug and alcohol use not “pedigree questions”
After an attempted traffic stop, following defendant to his front door and stopping him after the screen door was opened in between it and the front door was curtilage, even in an apartment building. There was no exigency justifying the officer’s entry into the home for the arrest. United States v. Maxwell, 2023 U.S. Dist. LEXIS 61388 (E.D. Va. Apr. 6, 2023).*
Defendant’s claimed omissions for Franks purposes weren’t really omissions. They were discernable from the affidavit as a whole. A “reasonable officer standard” shouldn’t be applied to Franks violations. Here, some information was omitted by honest mistake, not to mislead. Moreover, even if the information had been included, the probable cause finding would not change. United States v. Glass, 2023 U.S. Dist. LEXIS 61379 (W.D.N.C. Apr. 6, 2023).*
Defendant’s Ohio parole search was with reasonable suspicion as required by state law and was reasonable. United States v. Roush, 2023 U.S. Dist. LEXIS 61202 (N.D. Ohio Apr. 6, 2023).*
“Although Officer Plesnik now arrived with the knowledge that there was a firearm on site, the mere presence of a firearm—without more—did not transform the non-exigent scene into an exigent circumstance and trigger the emergency aid exception. Indeed, by the time Officer Plesnik arrived, Officer Ermeri had already taken the firearm from Lucibella without incident. Accordingly, under these facts, it was not objectively reasonable for an officer to believe that an ongoing emergency existed or that anyone was in need of protection, injured, or in danger of imminent injury. As such, we conclude that Officer Plesnik cannot satisfy the emergency aid exception.” Lucibella v. Town of Ocean Ridge, 2023 U.S. App. LEXIS 8324 (11th Cir. Apr. 7, 2023).*
Information from two CIs that defendant admitted to them there was a body buried in the crawl space under this house added to the probable cause. People v. Graham, 2023 NY Slip Op 01819, 2023 N.Y. App. Div. LEXIS 1872 (3d Dept. Apr. 6, 2023).*
The fact the warrant attachments weren’t stapled to the warrant doesn’t make it not particular. United States v. Deakins, 2023 U.S. Dist. LEXIS 60866 (E.D. Tenn. Apr. 6, 2023).
Accidental reverse numbering of Attachments A and B didn’t make the search warrant void. United States v. Deakins, 2023 U.S. Dist. LEXIS 60866 (E.D. Tenn. Apr. 6, 2023).*
Plaintiff’s claim that the Director of National Intelligence violates the Fourth Amendment by mind reading him doesn’t state a plausible claim. Sherven v. Office of the Dir. of Nat’l Intel., 2023 U.S. Dist. LEXIS 60405 (D.D.C. Apr. 5, 2023).*
Plaintiff’s excessive force claim fails under qualified immunity because, when the officer was breaking up a fight, he got hit by plaintiff, too. Not an obviously clear case. Grandy v. Huenke, 2023 U.S. App. LEXIS 8235 (11th Cir. Apr. 6, 2023).*
State search warrants that end up in federal prosecutions are not evaluated under Rule 41. United States v. Jackson, 2023 U.S. Dist. LEXIS 60723 (W.D. La. Apr. 3, 2023).*
Defendant had no standing in a stolen vehicle. In addition, because it was stolen, impoundment and an inventory search would occur in any event, and that would have been legal anyway. Sills v. State, 2023 Miss. LEXIS 89 (Apr. 6, 2023).
POs had reasonable suspicion for this parole search; it was not based on a mere hunch. United States v. Schaefer, 2023 U.S. App. LEXIS 8177 (8th Cir. Apr. 6, 2023).*
Defendant’s intoxication on the totality did not mean his will was overborne. His criminal history of five arrests and convictions also bears this out. United States v. Harris, 2023 U.S. App. LEXIS 8172 (8th Cir. Apr. 6, 2023).*
The identity of the CI in the controlled buy that led to the search warrant wasn’t material for discovery. State v. Petty, 2023-Ohio-1146 (8th Dist. Apr. 6, 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.
