Murder case: A highway checkpoint with four officers to check DLs, registration, and insurance was valid under Prouse, Sitz, and Edmund. No suggestion it was for general crime control. State v. Jones, 2023 S.C. LEXIS 61 (Mar. 29, 2023).
Defendant didn’t have standing to challenge the search of a rental car he was given permission only to smoke in. Alternatively, the search of the car was justified under the automobile exception because there was probable cause. United States v. Robinson, 2023 U.S. Dist. LEXIS 53503 (D. Minn. Mar. 29, 2023).*
Defendant’s 2255 Fourth Amendment claims are a rehash of the issues already decided in the direct appeal. Procedurally barred. White v. United States, 2023 U.S. Dist. LEXIS 52880 (E.D. Mich. Mar. 28, 2023).*
Detention of plaintiff, a Secret Service agent, for an hour by the U.S. Park Police because of a firearm he was authorized to carry violated the Fourth Amendment. Hicks v. Ferreyra, 2023 U.S. App. LEXIS 7428 (4th Cir. Mar. 29, 2023).*
A 13 day delay between a trash pull and a search warrant didn’t make the trash pull stale. There was an ongoing investigation throughout. United States v. Dobbs, 2023 U.S. Dist. LEXIS 52882 (E.D. Mich. Mar. 28, 2023).
District court’s suppression order for coercing consent was reversed. The court of appeals takes a different view of the words used as a threat to get a warrant, which they had cause to do. United States v. Jacobs, 2023 U.S. App. LEXIS 7317 (6th Cir. Mar. 28, 2023).*
Defendant wasn’t entitled to a new trial based on an alleged newly discovered search warrant having been executed. The defense was always on notice of that, so denied. Reyes v. United States, 2023 U.S. Dist. LEXIS 52510 (D. Conn. Mar. 28, 2023).*
Posted inConsent, Staleness|Comments Off on E.D.Mich.: 13 day delay between trash pull and SW didn’t mean it was stale because case was actively investigated
With second counsel, defendant filed a second motion to suppress apparently based on new strategy about how to approach one. The different strategy is not “good cause” based on newly discovered facts. United States v. Vazquez, 2023 U.S. App. LEXIS 7286 (11th Cir. Mar. 28, 2023).
In a “sexual services” investigation, the officer showed probable cause and nexus for multiple locations and vehicles. Commonwealth v. Hayes, 2023 Mass. App. LEXIS 47 (Mar. 28, 2023).*
The video showed reasonable suspicion for defendant’s stop. United States v. Waldeck, 2023 U.S. Dist. LEXIS 52138 (D. Mont. Mar. 27, 2023).*
Claimant’s suitcase reeked of marijuana when he went through a TSA checkpoint, and the x-ray revealed “organic masses” which turned out to be marijuana. The opening of the bag and search were reasonable under the Fourth Amendment. United States v. $115,413.00 in U.S. Currency, 2023 U.S. Dist. LEXIS 52249 (E.D.N.C. Mar. 28, 2023).*
The exclusionary rule doesn’t apply in § 1983 cases. Villafane v. City of N.Y., 2023 U.S. Dist. LEXIS 52149 (S.D.N.Y. Mar. 27, 2023).
There was probable cause for the search warrant for defendant’s DNA. United States v. Burkhalter, 2023 U.S. Dist. LEXIS 51296 (W.D. Mo. Mar. 27, 2023).*
“Because the [state] trial court considered Thomas’ Fourth Amendment claim on the merits, this Court cannot review its conclusion when considering a habeas petition” under Stone v. Powell. Thomas v. Kris, 2023 U.S. Dist. LEXIS 51641 (E.D. Mich. Mar. 27, 2023).*
Because there was probable cause for plaintiff’s arrest, there was no Fourth Amendment violation. Mincey v. Vardman, 2023 U.S. Dist. LEXIS 51934 (M.D. Ga. Mar. 27, 2023).*
Horizontal collective knowledge in Massachusetts requires the officers communicate with each other and share information. Commonwealth v. Privette, 2023 Mass. LEXIS 86 (Mar. 28, 2023):
2255 petition’s claim that defense counsel failed to investigate whether a motion to suppress should have been filed fails. There was a search warrant, and there’s no suggestion it was invalid. Fluid v. United States, 2023 U.S. Dist. LEXIS 51173 (W.D.N.C. Mar. 27, 2023).
The district court misapplied the statute of limitations for his Fourth Amendment claim because of a state tolling provision when the plaintiff is incarcerated. Youker v. Hillhouse, 2023 U.S. App. LEXIS 7208 (9th Cir. Mar. 27, 2023).*
By the time post-conviction proceedings started, the affidavit for the search warrant disappeared from defense counsel who didn’t have it anymore. Defense counsel testified he remembered reviewing the affidavit and concluding that a motion to suppress would fail. There was no effort to produce it otherwise, and the court won’t presume that having it would help provide relief. Johnson v. State, 2023 Ga. App. LEXIS 155 (Mar. 27, 2023).*
Plaintiff’s complaint he was subjected to excessive force fails. It was apparent that he was highly intoxicated and belligerent with officers, and the officers’ response was proportional and reasonable. Francis v. Village of Potsdam, 2023 U.S. Dist. LEXIS 51183 (N.D.N.Y. Mar. 27, 2023).*
Defendant was alleged to have consented to a blood draw in a DUI case. When he hesitated, the officer said that he’d get a search warrant if defendant didn’t go through with it. There’s a difference between the officer saying “I’ll try to get a warrant” and “I will get a warrant,” but here there was probable cause and a warrant would have issued. This was no idle threat to get a warrant. State v. Hale, 2023-Ohio-980, 2023 Ohio App. LEXIS 954 (3d Dist. Mar. 27, 2023).
Because there were other indicia of reliability of the complainant here, omission of information about her actually being a government CI isn’t material to the probable cause finding. United States v. Barber, 2023 U.S. Dist. LEXIS 50990 (D. Alaska Mar. 24, 2023).*
Defendant signed a probation waiver of his Fourth Amendment rights. After a probation search, he argued the state constitution provided greater protection, and the trial court suppressed. Reversed. Generally, state search and seizure rights are coextensive with the Fourth Amendment, and they are here. State v. Pool, 2023 Ida. LEXIS 40 (Mar. 24, 2023).*
In a long super-detailed 2254 habeas, defendant loses on all issues. As to failure to cross-examine even more the searching officer about the details of execution of the search warrant, it was speculative that it would conceivably change the outcome. Beckley v. Hooper, 2023 U.S. Dist. LEXIS 50823 (E.D. La. Mar. 2, 2023).* (This would be a tenuous argument in any post-conviction. How can it be shown that more cross of the searching officers would ever change the outcome?)
Undisputed facts here showed that additional injuries were from kicking plaintiff when he wasn’t resisting, and that’s excessive force. Soto v. Bautista, No. U.S. App. LEXIS 7160 (5th Cir. Mar. 24, 2023).*
In a Fourth Amendment case filed five years after a fire scene investigation, a changed report led to denial of summary judgment. “Whether Fire Marshal Adams knowingly fabricated the report, even in part, is a question of material fact that is proper for a jury to determine, while weighing the evidence and making any credibility determinations.” Marvaso v. Sanchez, 2023 U.S. Dist. LEXIS 50892 (E.D. Mich. Mar. 24, 2023).*
Posted inExcessive force, Ineffective assistance|Comments Off on E.D.La.: Failure to cross-examination searching officers more wouldn’t change outcome
A private party found video of a sexual assault on defendant’s computer and provided it to law enforcement. A search warrant wasn’t needed for law enforcement to view that file. People v. Morse, 2023 COA 27, 2023 Colo. App. LEXIS 406 (Mar. 23, 2023).
“But a brand inspection of cattle, without more, is not a seizure under the Fourth Amendment.” Smith v. Utah Dep’t of Agric., 2023 U.S. Dist. LEXIS 50845 (D. Utah Mar. 23, 2023),* citing Stanko v. Maher, 419 F.3d 1107, 1115 (10th Cir. 2005).*
Defense counsel was not ineffective for not challenging defendant’s arrest. There was probable cause to arrest, and the fact the search warrant had not yet been executed didn’t matter. State v. Perkins, 2023 Del. Super. LEXIS 147 (Mar. 23, 2023).*
The border search of defendant’s cell phone was routine and reasonable and didn’t need reasonable suspicion. He provided the passcode, and the phone was on airplane mode so it did not go outside the phone. United States v. Tick Chin, 2023 U.S. Dist. LEXIS 50450 (S.D. W. Va. Mar. 24, 2023).
Police investigating a rape case got a search warrant for a firearm. Defendant argued below that the CI wasn’t properly supported. That, however, did not include an argument about the firearm’s nexus to the crime under investigation which was raised for the first time on appeal. State v. Anderson, 2023 Tenn. Crim. App. LEXIS 95 (Mar. 24, 2023).
One can’t attack a search warrant in a different court than the one with jurisdiction over the case. United States v. Russell, 2023 U.S. Dist. LEXIS 50392 (D. Md. Mar. 22, 2023).*
Posted inBorder search, Cell phones, Nexus|Comments Off on S.D.W.Va.: This border search of cell phone was routine, despite taking 4 hours
Defendant made his prima facie case of a Franks violation, and he was entitled to a hearing. The informants were involved in a love quadrangle not revealed to the warrant issuing judge. Analyzing the affidavit sentence by sentence, the omissions are glaring and troubling. United States v. Taylor, 2023 U.S. App. LEXIS 7136 (7th Cir. Mar. 24, 2023) (this case is informative on how de novo review of a Franks violation should work).
Lifetime electronic monitoring wasn’t raised below as an unreasonable search, and it’s not plain error. People v. Casey, 2023 Mich. App. LEXIS 2054 (Mar. 23, 2023).*
Defendant didn’t challenge the OVI checkpoint. He had no DL, and things went downhill from there. No suppression. State v. Whitten, 2023-Ohio-973 (6th Dist. Mar. 24, 2023).*
Defendant was stopped and got out of his car, and in the door was a sawed off shotgun. Questions about the gun next to him were legitimate under Quarles. State v. Anderson, 2023-Ohio-945, 2023 Ohio App. LEXIS 922 (7th Dist. Mar. 23, 2023).
The burden of proof on litigating warrant execution issues isn’t clear. Here, the parties agreed that the state had the burden. State v. Leonard, 2023 Del. Super. LEXIS 136 (Mar. 22, 2023).*
“Plaintiff unsuccessfully advances two reasons why Defendant violated a clearly established right. The first is that ‘[t]he need for a warrant based upon probable case has been known since the adoption of the 4th amendment.’ … While it is certainly true that a warrant is a historical requirement under the Fourth Amendment, to find that this alone creates a clearly established right runs counter to the admonition ‘not to define clearly established law at a high level of generality.’ … Moreover, Defendant does not dispute that a warrant is typically required to conduct a search; instead, he argues that longstanding and specifically delineated exceptions to the warrant requirement apply to the search in this case.” Sambrano v. Moreno, 2023 U.S. Dist. LEXIS 49693 (D. Ariz. Mar. 23, 2023).*
Posted inQualified immunity, Warrant execution|Comments Off on OH7: Officer seeing sawed-off shotgun in car door justified questions under Quarles
Police were called to a Walmart parking lot in Albuquerque because defendant was “unconscious” in his car in his car, and a gun was visible. The seizure of the gun and the interrogation surrounding it can’t be justified under the community caretaking function because possession of a firearm in a car isn’t a crime in New Mexico. United States v. Purvis, 2023 U.S. Dist. LEXIS 49299 (D.N.M. Mar. 23, 2023).
The failure to recall a warrant that led to defendant’s arrest was mere administrative negligence, not intentional or recklessness sufficient to support exclusion. United States v. Zahn, 2023 U.S. App. LEXIS 6962 (8th Cir. Mar. 23, 2023).*
The stoop of a house, even shared with the neighbor, is not a public place for enhancement of a battery. Similarly, it is curtilage under the Fourth Amendment, and it’s not open to the public. People v. Whitehead, 2023 IL 128051, 2023 Ill. LEXIS 150 (Mar. 23, 2023).*
Posted inCommunity caretaking function, Curtilage, Exclusionary rule|Comments Off on D.N.M.: Possession of a gun in car in Walmart parking lot wasn’t a crime and search for it under community caretaking function unreasonable
Search warrants are directed at places, not persons. “Because, at the time of the oral affidavit, there was a fair probability the crime of kidnapping occurred and a fair probability evidence of that crime would be found in Defendant’s home and truck, Magistrate Judge Briones properly issued the search warrant. Contrary to Defendant’s contentions, it is immaterial whether there was probable cause that he himself committed the crime of kidnapping.” United States v. Torres, 2023 U.S. Dist. LEXIS 49068 (D.N.M. Mar. 22, 2023).
The record supports the trial court’s findings that the person staying in defendant’s house searched for his shoes on her own and told that she didn’t have to get them, but she did. State v. Hall, 324 Or. App. 802, 2023 Ore. App. LEXIS 214 (Mar. 23, 2023).*
Defendant’s ineffective assistance of counsel claim fails on the merits of the search. It was already litigated. State v. Cutlip, 2023-Ohio-914 (7th Dist. Mar. 21, 2023).*
An investigative alert based on probable cause justifies a stop and then arrest. People v. Wimberly, 2023 IL App (1st) 220809, 2023 Ill. App. LEXIS 85 (Mar. 23, 2023).
The government’s appellate concession the state search warrant was invalid results in the oral argument being vacated and the case remanded. United States v. Lucero, 2023 U.S. App. LEXIS 6935 (10th Cir. Mar. 22, 2023).*
“Manalisay’s allegations against Department of Child Support Services agents—who, pursuant to court orders, levied his bank accounts, IRA accounts, and COVID-19 stimulus checks—fare no better at stating a plausible Fourth Amendment claim for unlawful seizure.” Manalisay v. Hall, 2023 U.S. Dist. LEXIS 46667 (N.D. Cal. Mar. 20, 2023).* (This otherwise smacks of a sovereign citizen complaint. Court orders are the functional equivalent of warrants.)
Posted inArrest or entry on arrest, Seizure|Comments Off on IL: An investigative alert based on PC justifies a stop and then arrest
“The Eleventh Circuit has made clear that a party must ‘pinpoint those portions of the magistrate’s report that the district court must specially consider.’ Schultz, 565 F.3d at 1361. Defendant has not done so here. In sum, Defendant’s one-sentence statement that the search warrant was too broad and the one-sentence statement that the warrant was not supported by probable cause, without any further reference to the R&R, is insufficient to trigger de novo review.” United States v. Benitez, 2023 U.S. Dist. LEXIS 48141 (N.D. Ga. Mar. 21, 2023).
“Accordingly, Defendant has not made, nor can he make based on his proffered evidence, a preliminary showing, much less a ‘substantial preliminary showing,’ that the affidavit that supported the search warrant in this case contained any false or misleading statement. As recognized by the Fourth Circuit, Defendant’s burden before a Franks hearing can take place is a heavy one, and Defendant has failed to meet that burden here.” United States v. Newbold, 2023 U.S. Dist. LEXIS 48145 (M.D.N.C. Mar. 21, 2023).*
The omitted information does not vitiate the probable cause in the affidavit under Franks. United States v. Kiejzo, 2023 U.S. Dist. LEXIS 48307 (D. Mass. Mar. 21, 2023).*
Posted inFranks doctrine, Standards of review|Comments Off on N.D.Ga.: Failure to specify how the R&R was deficient on PC finding was waiver
Don Samuels & Scott Grumman, Who Should Guard the Attorney-Client Privilege When Documents are Seized by Law Enforcement, 28 Ga. Bar J. 19 (No. 4 Feb. 2023) (“Some cases may involve seizures of computers and other devices that contain millions of communications. Filter teams can help protect attorney-client privilege, but the law is in flux on how they should function.”)
Posted inComputer and cloud searches, Privileges|Comments Off on Ga.Bar J.: Who Should Guard the Attorney-Client Privilege When Documents are Seized by Law Enforcement
In Oregon, “For searches of electronic devices, a warrant is specific enough to satisfy the particularity requirement if it ‘describe[s], with as much specificity as reasonably possible under the circumstances, what investigating officers believe will be found’ on the device, including, ‘if available and relevant, the time period during which the information was created, accessed, or otherwise used.’ …. ‘[T]he essential “thing” about which a warrant must be particular is the probative information, not types of files or their location within the computer’s file-management system[.]’ …. In other words, the ‘“hat” is a description of the information related to the alleged criminal conduct which there is probable cause to believe will be found’ on the electronic device. ….” This warrant wasn’t particular enough. State v. Vesa, 324 Or. App. 674, 2023 Ore. App. LEXIS 212 (Mar. 22, 2023).
Defendants were the target of search warrants and their cell phones were seized from their persons. They filed motions for return of the phones, and the government obtained search warrants for the phones. The motion for return is denied without prejudice. United States v. Handler, 2023 U.S. Dist. LEXIS 47976 (S.D.N.Y. Mar. 21, 2023).*
The court adopts the R&R and finds that the traffic stop was initially justified, but the officer got way off track from it into investigating other things without reasonable suspicion. Instead, the officer was investigating defendant’s criminal history for 46 minutes. The continuation of the stop was thus unreasonable. United States v. Teasley, 2023 U.S. Dist. LEXIS 48146 (W.D.N.C. Mar. 22, 2023).
The wooded area around defendant’s house was open fields, and photographs taken there did not violate the Fourth Amendment. United States v. Newbold, 2023 U.S. Dist. LEXIS 48145 (M.D.N.C. Mar. 21, 2023).*
Defendant had no standing, so there was no ineffective assistance of counsel from not filing a motion to suppress. United States v. Russell, 2023 U.S. Dist. LEXIS 48083 (W.D. La. Mar. 20, 2023).*
Posted inOpen fields, Reasonableness, Standing|Comments Off on W.D.N.C.: Traffic stop for expired tags went right to criminal history and was overlong
Idaho declines to adopt the “reasonable mistake of law” rule and suppresses a search incident to a warrantless arrest for a completed misdemeanor. The state’s exclusionary rule isn’t just to deter illegal police misconduct – it is considerably more, and Heien is rejected. State v. Iniguez, 2023 Ida. LEXIS 33 (Mar. 21, 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.
