The exclusionary rule does not apply in supervised release revocation proceedings. Even if harassment by the officer was a basis to exclude, it wasn’t present here. United States v. Robinson, 2023 U.S. App. LEXIS 6756 (6th Cir. Mar. 21, 2023)* (court provides a long discussion of the needs for no exclusion in supervised release cases).
The request for consent to search defendant’s car came while the officer had at least reasonable suspicion defendant as driving under the influence, and it did not prolong the stop. United States v. Mancoll, 2023 U.S. Dist. LEXIS 46994 (E.D. Va. Mar. 20, 2023).*
Viewing the bodycam video, defendant was not seized nor in custody when he made incriminating statements. United States v. Shannon, 2023 U.S. Dist. LEXIS 47242 (S.D. Miss. Mar. 21, 2023).*
A warrantless Fourth Amendment “search” occurred when the police drug-sniffing dog trespassed against defendant’s vehicle for the purpose of obtaining information about, or related to, the vehicle. When the dog approached the driver’s side on his second pass, he clearly trespassed against defendant’s vehicle because the video showed that, when the dog reached the front driver side door, he jumped up onto the door, and planted his two front paws on the door (and then the window) as he sniffed the upper seams of the vehicle. Although it was accomplished by the dog, it was the law enforcement officers who violated defendant’s dignitary interest in maintaining the inviolability of his chattel. State v. Dorff, 2023 Ida. LEXIS 30 (Mar. 20, 2023). (This is a significant case.) Update: Volokh Conspiracy, Reason: Idaho Supreme Court Rules Fourth Amendment Violated When Drug-Sniffing Dog “Intermeddled” With Defendant’s Car by Ilya Somin (“Nero the police dog put his paws on the side of the car, which qualifies as a trespass, and thereby also a ‘search’ under the Fourth Amendment.”)
Plaintiff former inmate plausibly alleged a Fourth Amendment violation for an unreasonable strip search going into a jail, enough to survive qualified immunity. Drummond v. Proctor, 2023 U.S. Dist. LEXIS 46484 (S.D. Ga. Mar. 20, 2023).*
Defendant matched the description of a runaway driver from a car wreck, 2-3 blocks away, so his stop was reasonable. People v. Flores, 2023 NY Slip Op 30752(U), 2023 N.Y. Misc. LEXIS 1105 (Westchester Co. Mar. 14, 2023).*
Defendant owned a vehicle police suspected was involved in an accident, and suspected it was hidden on his somewhat rural property. They used a drone to fly over the property seeing what was likely the car and then got a warrant to go in. The vehicle was sitting on open fields when it was viewed, and not on the curtilage. Ohio courts and SCOTUS have upheld aerial flyovers. State v. Stevens, 2023-Ohio-889, 2023 Ohio App. LEXIS 859 (5th Dist. Mar. 17, 2023). (Every police department has drones now, so expect more of these cases where the curtilage is actually invaded. Can this be an area where the reasonable expectation is extinguished over time by usage, like online privacy? Google satellite view has the curtilage, but it’s sure not as close and detailed as a drone can get with 4K resolution on the camera.)
Considering the fact disputes on probable cause to arrest, this determination will be left to a jury. Harris v. City of Saginaw, 2023 U.S. App. LEXIS 6578 (6th Cir. Mar. 20, 2023).*
The landlord checked defendant’s apartment for fire damage and saw marijuana inside, and he called the police. They came and could smell it. That led to a search warrant issued with probable cause. Smell of marijuana from a place is probable cause. United States v. Browne, 2023 U.S. Dist. LEXIS 46410 (S.D. W. Va. Mar. 20, 2023).*
Defendant shared a porch with his neighbor and made no effort to show a reasonable expectation of privacy in it. United States v. Lewis, 2023 U.S. App. LEXIS 6689 (2d Cir. Mar. 21, 2023).*
The exclusionary rule doesn’t apply in parole revocation proceedings. Young v. Alabama, 2023 U.S. Dist. LEXIS 46822 (N.D. Ala. Feb. 15, 2023).*
The probable cause showing for possession of a scooter and a firearm was sufficient, although it was thin as to the firearm. United States v. Garlick, 2023 U.S. Dist. LEXIS 46855 (S.D.N.Y. Mar. 20, 2023).*
The warrantless entry into defendant’s house was justified by the exigency of a child allegedly in peril, which was not in dispute. While waiting for paperwork to be completed, one officer could see slightly behind the refrigerator and saw packaged drugs. This was inadvertent and a reasonable plain view. State v. Frisbie, 2023-Ohio-881, 2023 Ohio App. LEXIS 850 (3d Dist. Mar. 20, 2023).*
2254 petitioner pled no facts to show he was impeded from the state motion to suppress process, so Stone v. Powell bars relief. Boyce v. Shoop, 2023 U.S. Dist. LEXIS 43634 (S.D. Ohio Mar. 14, 2023).*
A mere desire to substantiate a CI’s story does not justify production in discovery of the CI’s files. United States v. Henderson, 2023 U.S. Dist. LEXIS 45909 (W.D. Mich. Mar. 13, 2023).*
Three days of real time CSLI was obtained by the police because of a missing child, and it was reasonable as exigency. United States v. Torres, 2023 U.S. Dist. LEXIS 44017 (D.N.M. Mar. 15, 2023).*
No qualified immunity for Tasing and punching a nonresisting arrestee. It was clearly established that was unreasonable. Osborn v. City of Columbus, 2023 U.S. App. LEXIS 6264 (6th Cir. Mar. 15, 2023).*
There was information from another officer that defendant was driving on a suspended license, and that was justification for his stop. Moreover, “The evidence shows that officers were surveilling Johnson and Dowden and had reasonable suspicion to believe that the vehicle would contain contraband. The stop was lawful even if Trooper Dranguet’s subjective reason for the stop was to look for contraband.” United States v. Johnson, 2023 U.S. Dist. LEXIS 45171 (W.D. La. Feb. 22, 2023).*
The government’s alterative theories to support the search were sufficient to avoid even deciding a good faith mistake of fact by the officers. Moreover, defendant never addressed the government’s alternative arguments in his briefing. United States v. Bell-Johnson, 2023 U.S. Dist. LEXIS 45821 (D. Kan. Mar. 17, 2023).*
There was reasonable suspicion for defendant’s stop and frisk because there was reason to believe that he had a gun. United States v. Clark, 2023 U.S. Dist. LEXIS 45226 (E.D. Va. Mar. 16, 2023).*
Defendant consented to the search of his text messages. “Both officers who testified commented on how cooperative Barton was in all of their interactions. When Officer McKay approached him at the gate, he freely shared the text communications on his phone. Barton does not appear to dispute that this information was provided voluntarily. His dispute as to consent focuses on his signing of the consent to search form after he mentioned needing an attorney.” United States v. Barton, 2023 U.S. Dist. LEXIS 45622 (D. Utah Mar. 16, 2023).*
Probable cause evidence can be found in a particular place can be shown by inference, and direct evidence not required. United States v. Hayes, 2023 U.S. Dist. LEXIS 45203 (E.D. Wis. Jan. 17, 2023),* adopted, 2023 U.S. Dist. LEXIS 44211 (E.D. Wis. Mar. 16, 2023)*:
Just because there’s no Fourth Amendment “standing” in bank records, that doesn’t mean that there’s no Article III standing to challenge interference with privacy in bank records. Hawkins v. Sanders, 2023 U.S. Dist. LEXIS 45000 (E.D. La. Mar. 16, 2023):
“Miranda warnings are required by article I, section 10 of the Constitution of the State of Hawai’i when probable cause to arrest has developed. And in Hewitt’s case, contrary to the ICA’s conclusion, probable cause had developed before she was asked whether she had been driving.” State v. Hewitt, 2023 Haw. LEXIS 68 (Mar. 15, 2023),* overruling abrogation of State v. Ketchum, 97 Hawai’i 107, 34 P.3d 1006 (2001).*
Defendant freely consented to search of his cell phone. United States v. Silvers, 2023 U.S. Dist. LEXIS 43477 (W.D. Ky. Mar. 15, 2023).*
Plaintiff’s Fourth Amendment claim wasn’t briefed on appeal so it’s waived. Relentless, Inc. v. United States DOC, 2023 U.S. App. LEXIS 6320 n.9 (1st Cir. Mar. 16, 2023).*
Defendant’s freedom under the state constitution to not be interfered with in his private affairs was violated by a stop and inquiry whether he had paid a transit fare. He provided a false name that led to his prosecution for that. State v. Meredith, 2023 Wash. LEXIS 126 (Mar. 16, 2023).*
“[W]e assume without deciding that Wynar violated Chavez’s Fourth Amendment rights by denying her access to her cell phone for one hour and 20 minutes. At the second step of the qualified immunity analysis, however, we conclude that the law regarding the denial of phone access was not clearly established.” Chavez v. Wynar, 2023 U.S. App. LEXIS 6286 (9th Cir. Mar. 16, 2023).*
You can’t do an appeal ineffective assistance challenge on a search warrant without the warrant papers in the appellate record. People v. Jones, 2023 NY Slip Op 01452, 2023 N.Y. App. Div. LEXIS 1452 (4th Dept. Mar. 17, 2023).*
“The totality of the circumstances show that the signed consent-to-search form was not a product of consent, but an acquiescence to a claim of lawful authority.” “As Gaston complied with Davis’s instructions to sit in a chair on the porch, Davis stated, ‘We’ve got—we’re going to be doing a search warrant here.’ After Gaston repeatedly indicated that he was alone in the house, officers entered the home and announced, ‘POLICE DEPARTMENT, SEARCH WARRANT.’ The officers conducted a sweep of the home. Two hours later, Gaston is seen on the porch in handcuffs surrounded by officers, with several officers lingering inside of the home. Gaston was handed a consent-to-search form and informed by police that ‘it will speed up our process.”’ Defense counsel was ineffective for not challenging the alleged consent. State v. Jones, 2023-Ohio-844, 2023 Ohio App. LEXIS 825 (1st Dist. Mar. 17, 2023).
The city was without authority to require landlords to do many things, one of which was to permit warrantless inspections of rental property for code violations. Landlord Serv. Bureau v. City of Pittsburgh & Council of Pittsburgh, 2023 Pa. Commw. LEXIS 24 (Commw. Ct. Mar. 17, 2023).*
Posted inAdministrative search, Consent|Comments Off on OH1: Defense counsel ineffective for not challenging state’s alleged consent after they announced “we’re going to be doing a search warrant here”
In a short per curiam, the Tenth Circuit upholds a dog sniff under Rodriguez without explanation. The concurrence, however, tells us that the stop was extended five seconds past the “Rodriguez moment” as still reasonable. United States v. Hayes, 2023 U.S. App. LEXIS 6354 (10th Cir. Mar. 17, 2023).
“The inevitable discovery exception is not a windfall device. It is not intended to put police in a better position but only ‘in the same, not a worse, position [than] they would have been in if no police error or misconduct had occurred.’ Nix, 467 U.S. at 443. In assessing the government’s burden, we are mindful ‘inevitable discovery involves no speculative elements but focuses on demonstrated historical facts capable of ready verification.’ Id. at 444 n.5.” Defendant doesn’t overcome the district court’s findings that it was all inevitable. As to the inventory of defendant’s backpack, the officers testified they take property to safekeep it and not necessarily use it as evidence. Finally, circuit precedent doesn’t require written policies be put into evidence. United States v. O’Neil, 2023 U.S. App. LEXIS 6355 (10th Cir. Mar. 17, 2023).*
Reason: An Oregon Man Was Wrongly Imprisoned for Almost a Year Because of an Error in a DMV Database by Emma Camp (“Nicholas Chappelle spent almost a year in an Oregon prison after he was wrongfully convicted of driving with a suspended license. The reason for his incarceration? A shoddy DMV database. And the worst part is he’s not alone.”). Errors in the database are good faith, aren’t they?
Posted inGood faith exception|Comments Off on Reason: An Oregon Man Was Wrongly Imprisoned for Almost a Year Because of an Error in a DMV Database
A criminal trespass warning is not a Fourth Amendment seizure. Shaikh v. Allen City Council, 2023 U.S. Dist. LEXIS 43571 (E.D. Tex. Feb. 8, 2023),* adopted, 2023 U.S. Dist. LEXIS 42228 (E.D. Tex. Mar. 13, 2023).*
A DEA stop of a passenger at DFW for “suspicious travel” consented to his interaction with officers and then a dog sniff of his bag which all took a little over a minute. United States v. $67,000 in U.S. Currency, 2023 U.S. Dist. LEXIS 43325 (N.D. Tex. Mar. 15, 2023).*
Defense counsel wasn’t ineffective for not challenging a GPS tracking warrant and search warrant for his house. There were no grounds to suppress. United States v. Ramos, 2023 U.S. Dist. LEXIS 43455 (E.D. Ky. Mar. 15, 2023).*
Posted inConsent, Seizure|Comments Off on E.D.Tex.: Criminal trespass warning is not a 4A seizure
Lack of nexus between drugs and the defendant is an evidentiary question for trial, not a motion to suppress. The search is legal in any event. United States v. Cunningham, 2023 U.S. Dist. LEXIS 43510 (D.S.C. Mar. 14, 2023).
The burn pit on defendant’s property was outside the curtilage in open fields. This court has no authority to overrule the open fields doctrine. Auld v. State, 2023 Tex. App. LEXIS 1647 (Tex. App. – San Antonio Mar. 15, 2023).*
The officer’s contact with defendant at a McDonald’s wasn’t a seizure until the officer determined he was under the influence. State v. True, 324 Or. App. 621 (Mar. 15, 2023)* (under submission for 22 months).
A paramedic kept defendant from driving after an accident because defendant was too impaired to drive. That was not a government seizure, even if the paramedic was a state actor. State v. Cruz, 2023-Ohio-794, 2023 Ohio App. LEXIS 760 (5th Dist. Mar. 14, 2023).
Plaintiff lawyer didn’t state a § 1983 and Fourth Amendment claim against the State Bar for not summarily dismissing a bar complaint filed against him. They have Eleventh Amendment and prosecutorial immunity. Livingston v. N.C. State Bar, 2023 U.S. Dist. LEXIS 42353 (E.D.N.C. Jan. 30, 2023),* adopted, 2023 U.S. Dist. LEXIS 41292 (E.D.N.C. Mar. 13, 2023).*
Defendant was stopped for making terroristic threats against a hospital. When officers looked in the windows, there was an empty holster. That led to the conclusion there was a gun in the car. United States v. Wierenga, 2023 U.S. Dist. LEXIS 42864 (D.N.D. Mar. 14, 2023),*
A lien on property here is not a Fourth Amendment seizure. Trident Steel Corp. v. Siffin, 2023 U.S. Dist. LEXIS 43138 (E.D. Mo. Mar. 15, 2023).
“Against that backdrop, a reasonable officer could certainly have interpreted Mr. Harris’s sudden lurch as the commencement of yet another attack. As we have explained—and as the bodycam video confirms—Mr. Harris’s lurch was not the staggering, slow-to-get-up tossing of a dazed or injured athlete. It was the jolt of one jarred awake or springing into sudden, urgent action. In the blink of an eye, Mr. Harris’s upper body rose off the ground, his legs kicked, and his arms swooped down toward his torso. Could he have been working up the momentum to stand or slide toward one of the guns on the ground? Might he have been reaching for a third gun in his pants? Or was he instead just writhing in pain? We can’t be sure what Mr. Harris was doing. And that is precisely the point: ‘[A]n officer is not required to wait until an armed and dangerous felon has drawn a bead on [her] or others before using deadly force.’ Montoute v. Carr, 114 F.3d 181, 185 (11th Cir. 1997); …” The officers get qualified immunity. Harris-Billups v. Anderson, 2023 U.S. App. LEXIS 5951 (11th Cir. Mar. 13, 2023).*
A successor 2255 petition based on defendant’s arrest warrant wasn’t a valid basis. In re Cook, 2023 U.S. App. LEXIS 5965 (6th Cir. Mar. 13, 2023).*
Posted inExcessive force|Comments Off on E.D.Mo.: A lien on property here is not a 4A seizure
Announcing “NYPD arrest warrant” after entry through an unlocked door violated the state statute on knock-and-announce. People v. Jones, 2023 NY Slip Op 01262, 2023 N.Y. App. Div. LEXIS 1248 (1st Dept. Mar. 14, 2023).
A successor 2255 petition based on defendant’s arrest warrant wasn’t a valid basis. In re Cook, 2023 U.S. App. LEXIS 5965 (6th Cir. Mar. 13, 2023).*
The suspect was a tall thin white man with a goatee. Defendant fit the description, and that was reasonable suspicion. United States v. Scruggs, 2023 U.S. App. LEXIS 6016 (9th Cir. Mar. 14, 2023).*
Yahoo was a private actor when it searched defendant’s Flickr account finding child pornography. NCMEC didn’t exceed that search. State v. Ingram, 2023 Mo. App. LEXIS 158 (Mar. 14, 2023).*
Posted inPrivate search, Reasonable suspicion|Comments Off on NY1: Announcing “NYPD arrest warrant” after entry through an unlocked door violated knock-and-announce
"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.
