Defendant had a reasonable expectation of privacy in an apartment’s basement storage room that was shared with another but which defendant put a padlock on. State v. Eder, 2023 Wisc. App. LEXIS 207 (Feb. 28, 2023).
There was probable cause and exigency for an automobile exception search, and inventory would apply even if the automobile exception didn’t. United States v. Hemphill, 2023 U.S. Dist. LEXIS 32729 (W.D. Tex. Feb. 27, 2023).*
The officer’s stop of defendant for aftermarket lighting on the car that the officer thought violated state law was based on a reasonable mistake of law. Denial of suppression affirmed. State v. Johnson, 2023 MT 36N, 2023 Mont. LEXIS 266 (Feb. 28, 2023).*
The traffic stop was justified, and the district court was correct in holding what happened during the ticket writing phase didn’t deviate from the primary mission of the stop. There’s no fixed rule on the amount of time it could take. The officer testified it could be as little as seven minutes or as much as an hour. It depends. United States v. Lara, 2023 U.S. App. LEXIS 4888 (10th Cir. Feb. 27, 2023):
Without specific argument, the court of appeals will not scour the record and the search warrant affidavit to make a party’s argument for him. Billauer v. Escobar-Eck, 2023 Cal. App. LEXIS 144 (4th Dist. Feb. 28, 2023) (anti-SLAPP case; not a criminal case, but the same rule applies).
The affidavit for warrant was thin, but it wasn’t so “bare bones” that there was nothing showing probable cause. Good faith applied. United States v. Tilford, 2023 U.S. App. LEXIS 4685 (5th Cir. Feb. 24, 2023).*
Adult entertainment businesses are closely regulated. Wacko’s Too, Inc. v. City of Jacksonville, 2023 U.S. Dist. LEXIS 32261 (M.D. Fla. Feb. 27, 2023).*
CSLI obtained pre-Carpenter without a warrant was lawful. United States v. Tartaglione, 2023 U.S. Dist. LEXIS 32382 (S.D.N.Y. Feb. 27, 2023).*
Officers responded to a medical emergency at a hotel room. They left and reentered to seize contraband, and the reentry required a warrant. The exigency had passed. State v. Wood, 2023 Ga. App. LEXIS 101 (Feb. 28, 2023).
The suppression hearing occurred before a circuit clarification on private search law, so the case is remanded for more findings. United States v. Bohannon, 2023 U.S. App. LEXIS 4574 (9th Cir. Feb. 24, 2023).*
Defendant could not cross the officer at trial with the affidavit for search warrant under F.R.E. 613(b) because it wasn’t irreconcilably different and he didn’t testify to anything about it. United States v. Duerson, 2023 U.S. Dist. LEXIS 31879 (E.D. Ky. Feb. 27, 2023).
Balancing the factors of a delay in a cell phone search of 49 days, the length is presumptively unreasonable but the other factors all favor the government. Motion to suppress denied. United States v. Wells, 2023 U.S. Dist. LEXIS 30720 (S.D.N.Y. Feb. 23, 2023).
The officer conducting the inventory was generally unaware of the policy, and the search was conducted broadly. (The policy even mentioned seizing things of evidentiary value, and they were looking for a possible firearm since it was known he might have one.) “The officers also demonstrated that their understanding of the inventory search policy exceeded the written parameters of Directive 406.3 and resulted in searches that exceeded constitutional limitations. Hohenberger testified he did not believe there are any limits on where he could search in a car, or how he could search. …. Similarly, Balboa testified she was not aware of any guidance on the method of conducting an inventory search and that officers had ‘complete discretion’ on how they would search.” The policy wasn’t followed because it was unknown to the officer, and it was almost as broad as could be. The inventory is suppressed. United States v. Thomas, 2023 U.S. Dist. LEXIS 31357 (N.D. Ohio Feb. 24, 2023).
Posted inCell phones, Inventory|Comments Off on S.D.N.Y.: 49 day delay in cell phone search was presumptively unreasonable, but totality of circumstances favored govt
Officers don’t have to rely on occupants’ word that others aren’t present to be able to conduct a protective sweep. Apparent authority to consent and inevitable discovery also apply. United States v. Lewis, 2023 U.S. Dist. LEXIS 30938 (E.D. Mo. Jan. 30, 2023),* adopted, 2023 U.S. Dist. LEXIS 30169 (E.D. Mo. Feb. 23, 2023).*
Officers lacked reasonable suspicion to confront and make defendant lift his shirt over shooting in the area that wasn’t immediate. United States v. Peters, 2023 U.S. App. LEXIS 4519 (4th Cir. Feb. 24, 2023).*
A male-on-male prison strip search in the shower area that was surveillance video recorded was not unreasonable. Booker v. Anamosa State Penitentiary, 2023 U.S. Dist. LEXIS 30917 (N.D. Iowa Feb. 24, 2023).*
Posted inProtective sweep, Reasonable suspicion|Comments Off on E.D.Mo.: Officers don’t have to rely on occupants’ word that others aren’t present to be able to conduct a protective sweep
WaPo: Jury awards Va. teacher $5 million over wrongful sex abuse case by Tom Jackman (The arrest and search warrant affidavit violated Franks because it alleged phone records backed up the young man’s claims, but they were never checked or didn’t exist. She had an alibi they didn’t check.)
Posted inFranks doctrine|Comments Off on WaPo: Jury awards Va. teacher $5 million over wrongful sex abuse case [Franks violation omitting alibi]
A rule for mandatory GPS monitoring on all charter boats in the Gulf of Mexico, whether used commercially or for personal use at the time, was arbitrarily adopted in violation of the APA. GPS monitoring furthers no government interest under the statute invoked by the Government. The Fourth Amendment question is “considered” but not decided. Mexican Gulf Fishing Company v. U.S. Dept. of Commerce, No. 22-30105, 2023 WL 2182268 (5th Cir. Feb. 23, 2023).
Plaintiff inmate’s destruction of propery in his prison cell “was not a Fourth Amendment violation. Stewart argues the district court erred because his claim did not concern the search of his cell, but the destruction of his property. But ‘the Fourth Amendment’s prohibition on unreasonable searches does not apply in prison cells,’ Hudson v. Palmer, 468 U.S. 517, 530 (1984), nor does it apply to the destruction of personal items in a cell, see id. at 528 n.8.” Stewart v. Horton, 2023 U.S. App. LEXIS 4402 (6th Cir. Feb. 23, 2023).*
There was plenty of probable cause for the search warrant here despite the claim the CI involved might have been a common criminal “trying to work off a case” [which can almost always be assumed]. United States v. Ewing, 2023 U.S. Dist. LEXIS 29907 (S.D. Ohio Feb. 17, 2023).*
Just because the dashcam video doesn’t show the traffic violation doesn’t mean that it didn’t happen. The trooper testified that what he sees might be slightly different but still true. State v. Moore, 2023-Ohio-494, 2023 Ohio App. LEXIS 517 (4th Dist. Jan. 23, 2023).
Just because the passenger’s seatbelt appears fastened in the dashcam video doesn’t mean that he didn’t fasten it when the pull over occurred. United States v. Alexander, 2023 U.S. Dist. LEXIS 30609 (N.D. Ill. Feb. 24, 2023).*
Just because the dashcam video did not show the presence of another vehicle the officer saw didn’t mean it didn’t happen. United States v. Gause, 2023 U.S. App. LEXIS 4411 (11th Cir. Feb. 24, 2023).*
Posted inBurden of proof|Comments Off on Three on what the dashcam didn’t show
Defendant parolee was a passenger in a car and he had his car key fob on him. The car, albeit not there, was still “under his control” for a parole search, relying on United States v. Cervantes, 859 F.3d 1175 (9th Cir. 2017) (hotel room two miles away was under parolee’s control because he had a key). United States v. Dorsey, 2023 U.S. Dist. LEXIS 30523 (N.D. Cal. Feb. 23, 2023).
No clearly established law means qualified immunity. State AG’s memorandum just isn’t it. “In this respect, Pierner-Lytge comes up well short. She has not ‘identified a single precedent—much less a controlling case or robust consensus of cases—finding violation under similar circumstances. [Westby] at 591 …. Instead, Pierner-Lytge relies on a 2009 Advisory Memorandum from the Wisconsin Attorney General ….” Pierner-Lytge v. Hobbs, 2023 U.S. App. LEXIS 4362 (7th Cir. Feb. 23, 2023).*
Failure to signal and unrestrained children in the car justified the stop. United States v. Davis, 2023 U.S. Dist. LEXIS 29888 (S.D. Ohio Feb. 22, 2023).*
A man on the street was stopped by police for no apparent reason. A records check revealed he was on parole with a warrantless search waiver on file. The warrantless search of his person was unreasonable, and the exclusionary rule should be applied. People v. McWilliams, 2023 Cal. LEXIS 878 (Feb. 23, 2023):
Enough exigency still remained for a second protective sweep of the premises. United States v. Beard, 2023 U.S. Dist. LEXIS 29007 (S.D. Tex. Feb. 22, 2023).
Collective knowledge from another police department can be relied up to show probable cause. State v. Green, 2023-Ohio-501, 2023 Ohio App. LEXIS 494 (4th Dist. Feb. 12, 2023).
A drug dog called to the scene of defendant’s traffic stop didn’t extend the stop and using the dog was reasonable. Chauncy v. State, 2023 Ind. App. LEXIS 58 (Feb. 22, 2023).*
There was reasonable suspicion for defendant’s stop before he got back to his car to detain and handcuff him without it being an arrest to keep him away from his car where the officers feared a potential weapon. United States v. Britton, 2023 U.S. Dist. LEXIS 29723 (E.D. Mo. Feb. 21, 2023).*
“The district court correctly concluded that unsworn items in an investigatory file can be used to establish probable cause, and that there is nothing in the record to show that the magistrate judge failed to consider the information available to him to fulfill his duties. Furthermore, Decina is unable to demonstrate that Officer Berry omitted any facts, much less that he did so with reckless disregard for the accuracy of the application. See Miller v. Prince George’s Cnty., 475 F.3d 621, 627 (4th Cir. 2007) (explaining that the inquiry for determining whether an officer omits material facts turns on whether the officer “failed to inform the judicial officer” of facts known to negate probable cause).” Decina v. Horry Cty. Police Dep’t, 2023 U.S. App. LEXIS 3981 (4th Cir. Feb. 21, 2023).
“We have recognized a constitutional claim to be free from malicious prosecution under the Fourth Amendment.” The only requirement at issue here is probable cause, and there was. Tomasik v. Martin, 2023 U.S. App. LEXIS 4042 (6th Cir. Feb. 21, 2023).*
Posted inOath or affirmation, Probable cause|Comments Off on CA4: Unsworn information in the investigative file could be used to supplement the PC showing before issuing judge
Denying access to one’s car for 30 days after impoundment without justification was an unreasonable seizure under the Fourth Amendment. Untalan v. Stanley, 2023 U.S. App. LEXIS 4070 (9th Cir. Feb. 22, 2023).
CI information led to surveillance then two controlled buys. That was probable cause. State v. Stevens, 2023 Del. Super. LEXIS 82 (Feb. 20, 2023).*
Information from a CI was that defendant was going to get more drugs for his customers. That was still reasonable suspicion on the totality without specifics of where he was going. Commonwealth v. Knupp, 2023 PA Super 28, 2023 Pa. Super. LEXIS 63 (Feb. 22, 2023).*
Defense counsel wasn’t ineffective for not filing a motion to suppress where it would never have been granted. Mitchell v. State, 2023 Ga. App. LEXIS 92 (Feb. 22, 2023).*
First post: February 24, 2003, with 40,000 or so posts since then on three different platforms.
More importantly, today is also the 262d anniversary of James Otis’ 1761 argument at the Boston Old State House against the writs of assistance in Paxton’s Case. Transcripts of the argument are here. (It was reargued Nov. 16, 1761.) See my 2011 post at the 250th anniversary.
As John Adams wrote and reported in the Legal Papers of John Adams (1968), this tension of this case was part of the impetus for the Revolution itself and the Fourth Amendment in the Bill of Rights in 1791, fully 30 years later.
Posted inUncategorized|Comments Off on This blog is 20 years old today
Use of a flashlight in a protective sweep of a black bag tossed by a fleeing suspect in the house was reasonable for safety reasons. Inside, methamphetamine was found. United States v. Adams, 2023 U.S. Dist. LEXIS 28537 (W.D.N.Y. Feb. 21, 2023).
A drug dog’s momentary touching of a car with its nose would not be a trespass at common law and therefore not under the Fourth Amendment. United States v. Anderson, 2023 U.S. Dist. LEXIS 28727 (D. Kan. Feb. 21, 2023). (What about dogs climbing into open cars and the back of pickups and trucks?)
Not all of the eight facts relied upon by the district court supported reasonable suspicion, but the remainder just barely did. “Taking only these permissible facts into account, this case falls very close to the line, but we nonetheless conclude that reasonable suspicion is narrowly supported by the totality of the circumstances.” United States v. Batara-Molina, 2023 U.S. App. LEXIS 4059 (10th Cir. Feb. 22, 2023).*
“Rather than outline factual disputes, Windom’s motion to suppress offered three legal arguments—staleness, nexus, and lack of good faith—for why the affidavit was insufficient to support a search warrant. These arguments contained only perfunctory factual references, with none rising to the level of definite, detailed, and nonconjectural allegations. … This absence of disputed facts and primary reliance on issues of law alone demonstrate the district court did not abuse its discretion by proceeding without a hearing.” On appeal, defendant is more specific, but the specifics were never presented to the district court. United States v. Windom, 2023 U.S. App. LEXIS 4036 (10th Cir. Feb. 21, 2023).
The government did not show that a search with a warrant was inevitable, so inevitable discovery fails. “The doctrine does not apply unless it was inevitable that routine procedures would have uncovered the evidence in question. … Though the doctrine requires courts to do some barebones gap-filling, it is not appropriate for the Court to over-speculate or accept conjecture from the government.” Motion to suppress granted. United States v. West, 2023 U.S. Dist. LEXIS 28268 (E.D. Ky. Feb. 21, 2023)*
Posted inInevitable discovery, Suppression hearings|Comments Off on CA10: “perfunctory factual references” with three legal theories not enough to get a suppression hearing
NYT: Can My Neighbor Point a Video Doorbell at My Apartment Door? by Ronda Kayse (“Ubiquitous in many suburban neighborhoods, the devices have been slow to catch on in city apartments, but that is changing as New Yorkers warm to the technology.”). Video doorbells also record audio. We’re handling an appeal where the next door neighbor’s video doorbell captured the video and audio of a domestic battery on the street in front of defendant’s house. A pole camera without the pole.
Posted inVideo surveillance|Comments Off on NYT: Can My Neighbor Point a Video Doorbell at My Apartment Door?
"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.
