When the smell of marijuana is localized to one person, that’s the extent of the probable cause. If from the car, it’s the car. King v. Commonwealth, 2023 Va. App. LEXIS 213 (Apr. 4, 2023) (unpublished).
The video showed that the officers were let into defendant’s son’s room to look by consent. United States v. McCallum, 2023 U.S. Dist. LEXIS 60004 (E.D. Mich. Apr. 5, 2023).*
A bodycam video is not a wiretap. Here, it recorded the victim’s statement. In addition, the exclusionary rule does not apply in probation revocation proceedings. Commonwealth v. Rainey, 2023 Mass. LEXIS 126 (Apr. 6, 2023).*
Because defendant’s car was seized but not searched at the scene, a warrant was required to search it. State v. Washington, 2023 N.J. Super. LEXIS 38 (Apr. 5, 2023).
In a sex assault case, assuming the search of defendant’s cell phone was unreasonable under the Fourth Amendment, the court concludes that the exclusionary rule should not be applied. M.R.E. 311. The error, if there was one, was the commanding officer, not the searching officer. The costs of exclusion outweigh any benefit of future deterrence. United States v. Lattin, 2023 CAAF LEXIS 184 (C.A.A.F. Mar. 31, 2023):
As to the blood draw in this DUI death case, “We conclude section 56-5-2946 is facially constitutional but unconstitutional as applied in Appellant’s case. However, we find the trial court did not err in denying Appellant’s motion to suppress because law enforcement acted in good faith based on existing precedent at the time of the blood draw. We affirm Appellant’s conviction.” State v. German, 2023 S.C. LEXIS 70 (Apr. 5, 2023). (So, the litigant that raises the issue, wins, and then loses on good faith. That happened to Rodriguez, too, in the Eighth Circuit. Where’s the incentive to litigate? You can’t win even when you win.)
Defendant got out of his car quickly during a traffic stop, and that often means running off is at hand. The officer was along. Handcuffing defendant to detain him, making clear he wasn’t under arrest, was reasonable for officer safety. United States v. Williams, 2023 U.S. App. LEXIS 8105 (11th Cir. Apr. 5, 2023).
The body cam video here showed defendant at least violated his probation by his actions during his detention on the street, and that led to a valid search incident of his person that produced drugs. State v. Bliss, 2023 R.I. LEXIS 29 (Apr. 4, 2023).*
Following another county court, this one also holds that Second Amendment and Fourth Amendment rights are both fundamental and an order removing firearms must be based on finding of mental impairment and due process. R.M. v. C.M., 2023 NY Slip Op 23088, 2023 N.Y. Misc. LEXIS 1424 (Orange Co. Apr. 4, 2023).*
The tip was too general to come from a CI with intimate knowledge and thus lacked probable cause. However, the good faith exception still applies. United States v. Henry, 2023 U.S. App. LEXIS 7943 (3d Cir. Apr. 4, 2023).*
Petitioner sought a supervisory writ for a Franks challenge against the trial court’s findings. Denied–doesn’t show enough. Ford v. Mont. First Judicial Dist. Court, 2023 Mont. LEXIS 360 (Apr. 4, 2023).*
Posted inFranks doctrine, Good faith exception, Seizure|Comments Off on NY Orange Co.: Reasonableness of seizure of firearms under 2A and 4A depends on court order, due process, and objective showing of mental impairment
All of defendant’s lies during a traffic stop added up to reasonable suspicion. “During the investigation of the initial traffic stop and Dixon’s lack of a driver’s license, Dixon lied about coming from Angie B’s, a nightclub known for high crime and drug trafficking. ‘If a false answer to a particular question would suggest a suspect’s involvement in criminal activity, then a possibly false answer can help to establish reasonable suspicion.’ … Smith also testified that Dixon (1) did not want to make eye contact, (2) was argumentative, (3) believed there was an outstanding warrant for his arrest, (4) had an arrest for a prior drug offense, (5) was driving a vehicle that was not registered to him, and (6) lied about his criminal history. See id. at 308 (‘a prior criminal record” and “[d]eception regarding one’s own criminal record [have] also been recognized as … factor[s] that can contribute to reasonable suspicion’).” Dixon v. State, 2023 Tex. App. LEXIS 2192 (Tex. App. – Texarkana Apr. 5, 2023).
In a search for drugs, it was reasonable for officers to search in places such as safes, back packs, and underneath a bed since that’s where drugs could be stored or hidden. State v. Brado, 2023-Ohio-1119 (7th Dist. Mar. 30, 2023).*
“Here, Giberson was a guest in Goedker’s motel room. As a result, Goedker as the person renting the room had authority to give consent for law enforcement to search the room. … And even though Giberson was present, because he was a guest and not a co-occupant, law enforcement was not required to obtain his consent to search the room. …” But, he did not have common authority to consent to a search of defendant’s personal belongings, even in a grocery bag. State v. Giberson, 2023 Wash. App. LEXIS 656 (Apr. 4, 2023).
Plaintiff’s claim for excessive force fails. “Moreover, Gianni failed to raise a fact issue as to whether the officers’ response was objectively unreasonable under Fifth Circuit precedent. Though Gianni asserts that Officer Williams ‘repeatedly tased him until he was in the police car,’ the video plainly shows that Gianni was tased only once.” Williams v. City of Greenwood, 2023 U.S. App. LEXIS 7922 (5th Cir. Mar. 31, 2023).*
A reasonable jury could conclude officers violated the Fourth Amendment here, and the right was clearly established at the time. Franklin v. City of Charlotte, 2023 U.S. App. LEXIS 7979 (4th Cir. Apr. 4, 2023).*
Mental health seizures under Florida’s Baker Act comply with the Fourth Amendment when it’s objectively reasonable to believe that the person is a danger to himself or others. Here the officers had that from defendant’s threats to shoot people. United States v. Hollingsworth, 2023 U.S. App. LEXIS 7991 (11th Cir. Apr. 4, 2023).
Officers sought a no-knock warrant because defendant had threatened others with an AR-15 and was known to always carry it. Besides, the exclusionary rule doesn’t apply to knock-and-announce. United States v. Villalobos, 2023 U.S. Dist. LEXIS 58547 (D. Idaho Mar. 31, 2023).
There was probable cause for defendant’s house from the showing in the affidavit for the warrant that defendant returned there after prior drug deals. United States v. Rosas-Barrientos, 2023 U.S. Dist. LEXIS 57823 (D. Minn. Apr. 3, 2023).*
There is no doubt that the affidavit for warrant shows probable cause. Therefore, the good faith exception applies, too. United States v. Wyciskalla, 2023 U.S. Dist. LEXIS 58141 (E.D. Mo. Mar. 16, 2023).*
The warrant here was particular enough. It didn’t just seek stolen property; it sought particular property stolen from the victim and clothing worn during the burglary caught on video. Williamson v. State, 2023 Miss. App. LEXIS 125 (Apr. 4, 2023).
“Here, the good faith exception applies. The affidavit was not devoid of any indicia of probable cause. It was not ‘bare bones’ or ‘paltry.’ … The information was particularized to Henry and plentiful. It contained information about Henry’s circumstances, prior felony conviction, and a hidden compartment in the car registered to him. The information came less than a week after Henry’s brother’s death and raised concerns that Henry would use the weapon in retaliation. The affidavit was not based solely on the tip; the officers corroborated the information received in the tip. [¶] Henry presents no persuasive argument that the good faith exception should not apply.” United States v. Henry, 2023 U.S. App. LEXIS 7943 (3d Cir. Apr. 4, 2023).*
Failure to litigate a meritless Fourth Amendment claim is not ineffective assistance of counsel. Johnson v. State, 2023 Mo. App. LEXIS 221 (Ct. App. Apr. 4, 2023);* Bishop v. McDowell, 2023 U.S. App. LEXIS 7974 (9th Cir. Apr. 4, 2023).*
Denial of petitioner’s Rule 41(g) motion for return of property was not appealable when the property is tied up in the criminal process. It is not an exclusionary rule, and it remains available even if the government doesn’t plan on using it except if defendant opens it up. United States v. Nocito, 2023 U.S. App. LEXIS 7798 (3d Cir. Apr. 3, 2023).
The lack of a usable quantity of marijuana in a car didn’t make the officer unbelievable that he could smell marijuana from the car. Other drugs were found in the search. United States v. Jones, 2023 U.S. Dist. LEXIS 57535 (D. Kan. Mar. 31, 2023).*
Confiscation of court records of other persons in plaintiff’s prison cell did not violate the Fourth Amendment. It was reasonable for the prison to limit access to that information. Nolon v. Owens, 2023 U.S. Dist. LEXIS 57598 (E.D.N.C. Mar. 15, 2023).*
Defense counsel wasn’t ineffective for not challenging the inventory search here that was reasonable. State v. Trego, 2023-Ohio-1114, 2023 Ohio App. LEXIS 1081 (4th Dist. Mar. 30, 2023).*
It was not unreasonable strategy for the defense to admit at trial the affidavit for his search warrant to challenge the quality of the investigation that the search produced nothing and the informant wasn’t reliable. He was acquitted of one count, so it worked in part. The affidavit also mentioned his prior conviction, but it was also a felon in possession case and a prior was stipulated to. Cureton v. United States, 2023 U.S. Dist. LEXIS 57512 (S.D. Ill. Mar. 31, 2023).
Opening one’s computer with peer-to-peer software is a waiver of a reasonable expectation of privacy in it. United States v. Savanh, 2023 U.S. Dist. LEXIS 56270 (D. Nev. Mar. 30, 2023).*
Plaintiff’s attack on the probable cause affidavit for his resisting arrest case amounts to a Heck barred challenge to his § 1983 case. Williams v. McDonough, 2023 U.S. App. LEXIS 7728 (5th Cir. Mar. 31, 2023).*
In this 2254, aside from not appealing in state court the pretrial motion to suppress a cell phone picture, defendant’s claim on the merits of the search fails. The search warrant mentioned cell phones and electronic devices, and 17 cell phones were found in a box. They all could be searched. Pafford v. Kelley, 2023 U.S. Dist. LEXIS 57361 (W.D. Ark. Mar. 31, 2023).*
Not responding to the Fourth Amendment issues in post-hearing briefing was waiver. Defendant loses on the merits anyway. Defendant retrieved sham cocaine (replaced by CBP) in the avionics compartment of an American Airlines plane. He consented to the search of his cellphone. United States v. Belloisi, 2023 U.S. Dist. LEXIS 55549 (E.D.N.Y. Mar. 30, 2023).
The CI involved in setting up a controlled buy who was surveilled was probable cause for this warrant. “Additionally, the information that the cooperating defendant supplied to law enforcement suggested that she had knowledge of Lepenn’s activities.” State v. Lepenn, 2023 ME 22 (Mar. 29, 2023).*
A 911 called about a person having a seizure and likely overdosing then finding defendant where she said doing just that was reasonable suspicion. United States v. Hardesty, 2023 U.S. App. LEXIS 7556 (4th Cir. Mar. 30, 2023).*
Defendant’s effort to file a successor state post-conviction petition to plead a state constitutional claim rather than a Fourth Amendment claim fails. He would lose in any event and the court declines to go there. People v. Erwin, 2023 IL App (1st) 200936 (Mar. 31, 2023).*
Admission there was marijuana in the car and nobody had a MMJ card was probable cause. State v. Hale, 2023-Ohio-1057, 2023 Ohio App. LEXIS 1025 (5th Dist. Mar. 30, 2023).
A conclusory allegation that false information in an affidavit for warrant somehow affected the probable cause is inadequate. United States v. Hall, 2023 U.S. Dist. LEXIS 54285 (N.D. Tex. Mar. 29, 2023).*
Defendant’s vehicle was stopped for no license plate. Then he gave a false name. Probable cause for arrest was evident. United States v. Guthery, 2023 U.S. Dist. LEXIS 54072 (E.D. Cal. Mar. 28, 2023).*
Defendant’s oversearch claim is barred in a 2255, aside from the fact it was already raised and rejected. In re O’Connor, 2023 U.S. App. LEXIS 7501 (11th Cir. Mar. 29, 2023).*
Defendant’s possession of a cell phone at the time of his allegedly committing an assault was not probable cause to search the phone. Motion to suppress granted as to it. People v. Vergara, 2023 NY Slip Op 23083, 2023 N.Y. Misc. LEXIS 1303, 2023 NYLJ LEXIS 860 (Richmond Co. Mar. 22, 2023):
Walking while black at night in a residential area near where a crime reported wasn’t enough to stop them. There was nothing suggested they did anything. Turay v. Commonwealth, 2023 Va. App. LEXIS 205 (Mar. 21, 2023) (unpublished):
WaPo: U.S. warrant requirement for surveillance program could hamper cyber cases, FBI official warns (“A top FBI official said Wednesday that a warrant requirement being floated for a controversial expiring surveillance program would be a big impediment to cyber investigations. The program, known as Section 702, warrantlessly collects on foreign targets, but sometimes Americans’ communications are swept up in those calls or emails. But intelligence personnel can search the program’s query system using identifiers of Americans, like names or email addresses.”)
Posted inFISA, National security|Comments Off on WaPo: U.S. warrant requirement for surveillance program could hamper cyber cases, FBI official warns
Reason: Senators Ask DEA To Stop Buying Its Way Around Civil Liberties by Elizabeth Nolan Brown (“‘DEA agents were regularly paying for and receiving private customer information.’ Rather than obtain a warrant for some mailed packages or consumer travel data, Drug Enforcement Administration (DEA) agents paid employees at private companies and other government agencies to simply hand over information.”)
Posted inSurveillance technology|Comments Off on Reason: Senators Ask DEA To Stop Buying Its Way Around Civil Liberties
The wrong street number on the search warrant did not make it invalid. Officers knew the house from surveillance, and it was described. The right house was searched. “So, the erroneous street number did not make the warrant invalid.” Threatt v. United States, 2023 U.S. Dist. LEXIS 53903 (N.D. Ala. Mar. 29, 2023).
A nonbaseless threat to get a warrant if defendant didn’t consent did not make the consent invalid. United States v. Rivera-Otero, 2023 U.S. Dist. LEXIS 53569 (E.D. Pa. Mar. 29, 2023).*
Officers looking at a lost flash drive to determine ownership did not violate the Fourth Amendment. United States v. Cooper, 2023 U.S. Dist. LEXIS 53825 (E.D. Mo. Mar. 29, 2023).*
When text messages are described in a warrant application, screenshots aren’t required. Here, they were more inculpatory anyway. United States v. Rhine, 2023 U.S. Dist. LEXIS 54168 (D.D.C. Mar. 29, 2023).*
Posted inParticularity, Voluntariness, Warrant papers|Comments Off on N.D.Ala.: Wrong street number in a SW didn’t void it where house was well described and officers had been there before
"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.
