There was probable cause for the search of defendant’s car stopped on the way to a controlled buy. United States v. Coates, 2023 U.S. App. LEXIS 6108 (7th Cir. Mar. 15, 2023).*
Unreasonable responses from defendant stopping at a salvage yard in the middle of the night when no one else was around, at a time when most thefts at places like that occur, was probable cause. United States v. Stokes, 2023 U.S. App. LEXIS 6103 (8th Cir. Mar. 15, 2023).*
Defendant’s Franks challenge fails. “Neither Defendant Uvino nor Persico points to any credible or probative evidence to dispute the allegations in the affidavits and instead make conclusory statements challenging the validity of the alleged misstatements.” The affidavit shows probable cause. United States v. Russo, 2023 U.S. Dist. LEXIS 41817 (E.D.N.Y. Mar. 13, 2023).*
Defendant was subjected to a search incident for false identification. His overlong stop otherwise didn’t cause that. United States v. Anderson, 2023 U.S. App. LEXIS 5997 (10th Cir. Mar. 14, 2023).*
“Teixeira struggles to throw shade on the reliability of K.M.’s statements. He claims, in a conclusory fashion, that search warrant affidavits are ‘prone to error’ and, thus, inherently unreliable. This generalization, though, is of dubious force. Shaming search warrant affidavits on a categorical basis is no more persuasive than arguing, say, that all police officers are liars or that all criminal defendants are inherently incredible witnesses. Each search warrant affidavit is distinctive and — like any other affidavit — must be judged on its own merits.” United States v. Teixeira, 2023 U.S. App. LEXIS 5828 (1st Cir. Mar. 10, 2023).* “Prone to error” means nothing under Gates and Leon. There are often nonmaterial errors. They are done in haste. That’s to be expected. Nonmaterial errors don’t affect the outcome.
Defendant’s Franks challenge fails both prongs: no showing of deliberate or reckless falsehood or that it was material to the finding of probable cause. United States v. Torres-Rojas, 2023 U.S. Dist. LEXIS 41038 (D.P.R. Mar. 10, 2023).*
Realtime CSLI for one day to locate defendant and a child he had with him was reasonable under Carpenter. United States v. Castellanos, 2023 U.S. Dist. LEXIS 41654 (N.D. Ga. Feb. 17, 2023), adopted, 2023 U.S. Dist. LEXIS 40281 (N.D. Ga., Mar. 10, 2023):
CNS: Prison warden faces suit for firing guard after strip search (“An Arkansas federal court allowed a prison guard to bring her retaliatory seizure and unlawful seizure claims against the prison warden, who fired her a few days after she was strip-searched, interrogated and detained by fellow guards when a tampon was revealed in her pelvic region during an X-ray scan as she walked into work.”
Thomas v. Culclager, 2023 U.S. Dist. LEXIS 41882 (E.D. Ark. Mar. 13, 2023)
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Defendant explicitly waived his Fourth Amendment claim in the district court, so he can’t appeal it. United States v. Concepcion-Guliam, 2023 U.S. App. LEXIS 5830 (1st Cir. Mar. 10, 2023).
Delaware’s loitering statute gives the officer the right to ask for suspect detained on reasonable suspicion for his name, and then the officer can give a warning to move along. That does not violate the Fourth Amendment. State v. McDougal, 2023 Del. Super. LEXIS 113 (Mar. 7, 2023).*
There was probable cause for a stop and then search of this car. It came up as stolen on an LPN search, and the smell of marijuana was evident, and paraphernalia was in plain view. United States v. Sharp, 2023 U.S. App. LEXIS 5764 (6th Cir. Mar. 9, 2023).*
Based on the videos alone, there was excessive force and qualified immunity is denied. Ducksworth v. Landrum, 2023 U.S. App. LEXIS 5807 (5th Cir. Mar. 10, 2023):
Defendant’s apartment door was subjected to a dog sniff at his apartment door before the court limited it in United States v. Perez, 46 F.4th 691 (8th Cir. 2022). The good faith exception applies. United States v. Hines, 2023 U.S. App. LEXIS 5698 (8th Cir. Mar. 10, 2023).
Plaintiffs were mistaken for being murderers from Idaho, but they weren’t and, after their stop, they were released. “We begin with Mrs. Hemry’s false arrest claim. She alleges the rangers did not merely detain her but arrested her without probable cause. The district court agreed. But we conclude the law did not clearly establish that the investigatory detention escalated into an arrest.” Hemry v. Ross, 2023 U.S. App. LEXIS 5705 (10th Cir. Mar. 10, 2023).*
“Here, Plaintiff has not alleged any facts indicating that there was ever a criminal proceeding initiated against him. Plaintiff has thus failed to allege plausibly a Section 1983 malicious prosecution claim against Defendant Thimote.” Malek v. N.Y. Unified Court Sys., 2023 U.S. Dist. LEXIS 40167 (E.D.N.Y. Mar. 9, 2023).*
The officer arrived at plaintiff’s house because of a 911 call about a stabbing. A man who had been stabbed was outside and he said it happened inside and there were others. That justified the officer’s entry into the house. Taylor v. Dienhart, 2023 U.S. Dist. LEXIS 38480 (S.D. Ind. Mar. 8, 2023).*
Plaintiff can’t overcome qualified immunity here in her excessive force claim. She was actively resisting the officer when force was applied, and no case supports her claim. Grice v. Younger, 2023 U.S. App. LEXIS 5546 (5th Cir. Mar. 8, 2023).*
Dismissal of a prison strip search case without considering reasonableness was error. Cook v. Horsely, 2023 U.S. App. LEXIS 5806 (5th Cir. Mar. 10, 2023).*
The affidavit could have been stronger because more information was available and not provided the USMJ. All things considered, it wasn’t so devoid of probable cause that the good faith exception applies. The court cautioned: “As Magistrate Judges may draw reasonable inferences, and our review is deferential, a lack of caselaw approving specific types of inferences is not enough to render a warrant constitutionally defective. We do caution, however, that an affidavit which relies only on inferences to connect an alleged offense to the place to be searched may be on unstable ground. In situations where it is not reasonable to infer that suspects would keep contraband or other evidence in their residences, it may follow that additional information is necessary to show a sufficient nexus.” United States v. Golden, 2023 U.S. App. LEXIS 5727 (3d Cir. Mar. 10, 2023).
The correct street address for the place to be searched is enough for particularity. United States v. Willard, 2023 U.S. Dist. LEXIS 39707 (D. Minn. Jan. 11, 2023).
Defendant’s Franks challenge fails both prongs: No showing of intentional or reckless misstatement or materiality. United States v. Padgett, 2023 U.S. Dist. LEXIS 40019 (D.N.J. Mar. 9, 2023).*
Lesser intrusive means to towing and inventory are not constitutionally required under Bertine. And here, the traffic stop was legal under Glover because the driver of the unregistered vehicle was the same gender as the registered owner. United States v. Ortega, 2023 U.S. Dist. LEXIS 39499 (D.N.M. Mar. 9, 2023).
There was probable cause for search of defendant’s cell phone for photographs of firearms. Even if there wasn’t, the good faith exception applies. United States v. Willard, 2023 U.S. Dist. LEXIS 38389 (D. Minn. Mar. 8, 2023).*
There was reasonable suspicion for defendant’s stop for DUI and an FST. State v. Mets, 2023-Ohio-710 (5th Dist. Mar. 8, 2023).*
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Defendant wants return of his cell phone because he asserts, without specifying, that there is exculpatory evidence on it. The government responds that it hasn’t opened the phone yet because it is password protected. The government wants the password to open it, but defendant refuses. There’s nothing to preclude at trial here yet. United States v. Vezina, 2023 U.S. Dist. LEXIS 38806 (D. Idaho Mar. 7, 2023):
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“The Government, however, also provided evidence that the vehicle is not titled to Duncan and had a stolen license plate, arguing that these facts in conjunction establish that while Duncan possessed the vehicle, there is nothing to suggest he did so lawfully.” There was mail in the car that belonged to defendant, but that’s not enough for standing. Aside from that, there was probable cause to search it. United States v. Duncan, 2023 U.S. Dist. LEXIS 38436 (E.D. La. Mar. 8, 2023).*
This stop was based on reasonable suspicion but it escalated quickly to an arrest without probable cause. The incriminating evidence should have been suppressed. State v. Maahs, 2023 Ida. LEXIS 25 (Mar. 7, 2023).*
Plaintiff’s search and seizure and privacy claim wasn’t fleshed out in the complaint, and it was properly dismissed without prejudice. Black v. Russell, 2023 U.S. App. LEXIS 5480 (10th Cir. Mar. 8, 2023).*
Analysis of “unforeseeable and spontaneous” probable cause for application of the automobile exception in New Jersey is case-by-case. State v. Smart, 2023 N.J. LEXIS 208 (Mar. 8, 2023):
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The search warrant for defendant’s cell phone was specific as to particular images but general as to others, and it is suppressed as to the others. “The fact that the media command limited the media search to ‘evidence related to the crimes under investigation’ did not cure the overbreadth.” State v. Serrano, 324 Or. App. 453, 2023 Ore. App. LEXIS 171 (Mar. 8, 2023).
Drug dog’s alert was admissible and reliable. The dog had been recertified and the alert was apparent on the video. United States v. Covington, 2023 U.S. App. LEXIS 5510 (3d Cir. Mar. 8, 2023).*
2254 petitioner litigated his Fourth Amendment claim in state court and on appeal, and he can’t raise it on habeas. Ray-El v. Schiebner, 2023 U.S. Dist. LEXIS 37822 (E.D. Mich. Mar. 6, 2023).*
When the target of an arrest warrant opens the door, state statute requires announcement and not just barging in. Here, defendant was compliant and opened the door. The officers needed to announce their purpose. The alleged plain view inside is suppressed for violating the announcement statute. State v. Sorensen, 2023 Iowa App. LEXIS 199 (Mar. 8, 2023):
The dashcam video of defendant’s stop wasn’t all that clear, and the trial court credited the officer’s testimony defendant drove some on the wrong side of the road at night in snowy conditions. That’s entitled to deference, as are reasonable mistakes of fact. State v. Despenas, 2023 Iowa App. LEXIS 203 (Mar. 8, 2023):
“Rather than announcing a categorical rule that police may never seize personal property simply because a criminal suspect knows he is a suspect, the court of appeals should have analyzed under the totality of the circumstances whether law enforcement’s seizure of Appellant’s phone was the type of reasonable seizure necessary to maintain the status quo to provide law enforcement with time to secure a search warrant.” Igboji v. State, 2023 Tex. Crim. App. LEXIS 152 (Mar. 8, 2023).
After a court order was issued to abate a public nuisance on his property, a separate search warrant wasn’t required to enter to effect it. Witteried v. City Council of Charles Town, 2023 W. Va. LEXIS 78 (Mar. 7, 2023) (unpublished).*
F.R.C.P. 60(b) for fraud on the court isn’t the way to relitigate a lost IAC claim for an alleged Fourth Amendment violation. Creech v. Shoop, 2023 U.S. App. LEXIS 5417 (6th Cir. Mar. 7, 2023).*
Under the two-part test, the Court finds that Ms. Valenzuela was not functioning as a government instrument at the time of her [*17] search. As to the first prong, the Chula Vista officers clearly “knew of” Ms. Valenzuela’s actions because they were physically present as she unlocked and searched the workbench. The officers, however, did not acquiesce in the search. As stated above, acquiescence may be shown in at least two ways: if the private party search is not illegal, the defendant must show that the government encouraged or directly participated in the search; if, on the other hand, the private party search is illegal, the Ninth Circuit has found acquiescence where the government did not discourage the illegal conduct. … Defendant has not shown that Ms. Valenzuela’s actions, taken in isolation, were illegal. Nor is the Court aware of a prohibition on one spouse searching the personal property of another without consent. … Accordingly, Defendant must show that the Chula Vista police actively participated or encouraged Ms. Valenzuela’s search to satisfy the first prong of the government instrument test. Defendant has not met that burden.” United States v. Serrano, 2023 U.S. Dist. LEXIS 38240 (S.D. Cal. Jan. 17, 2023).
Search of a zippered lunchbox on the ground led to denial it was his, but all this was the product of defendant’s illegal arrest. There was a reasonable expectation of privacy in the zippered lunchbox closed to view of others. Denial of suppression reversed. State v. Haneline, 2023 Mo. App. LEXIS 146 (Mar. 7, 2023).*
Defendant’s motion in limine about a controlled buy four days before the warrant is denied. It comes in under 404(b). United States v. Neal, 2023 U.S. Dist. LEXIS 37649 (M.D. Ala. Mar. 7, 2023).
“As already discussed at the motion hearing, the magistrate judge in this case reasonably relied upon Special Agent Brett J. Brandon’s affidavit when granting his search warrant application. … Having reviewed the affidavit in question, the court finds the document sufficiently complex and replete with interconnected factual observations to establish probable cause that a firearm may be located at Defendant’s residence. That is, the magistrate judge did not err in exercising his discretion to issue what was and remains a substantively valid search warrant.” And even if there isn’t actual probable cause, the good faith exception applies. United States v. Berrios-Benson, 2023 U.S. Dist. LEXIS 37815 (E.D. Mich. Mar. 7, 2023).*
The government isn’t opposed to return of most property after execution of the warrant. As to a computer, the government has 14 more days to articulate its position on it. United States v. Tello, 2023 U.S. Dist. LEXIS 37564 (E.D. Tex. Feb. 9, 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.
