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Galveston Co. Daily News: Galveston SWAT team wrecks wrong house in search for wrong suspect

Posted on January 30, 2023 by Hall

The Galveston Co. Daily News: Galveston SWAT team wrecks wrong house in search for wrong suspect by Trace Harris:

Posted in Warrant execution | Comments Off

E.D.Cal.: Def had standing in car he was driving with permission of owner

Posted on January 30, 2023 by Hall

As the driver of the car and the person with lawful possession, defendant had standing to challenge the search of the car he didn’t own. The GPS warrant for it was based on probable cause, and the warrant for firearms does go stale swiftly. United States v. Sconiers, 2023 U.S. Dist. LEXIS 13892 (E.D. Cal. Jan. 26, 2023).*

NCMEC forwarded to North Dakota police a child pornography picture on Snapchat’s public space along with IP and subscriber information. There was no reasonable expectation of privacy in what was posted publicly. United States v. Thompson, 2023 U.S. Dist. LEXIS 13650 (D.N.D. Jan. 26, 2023).*

Defendant’s guilty plea waived his Fourth Amendment challenge in the trial court. State v. Leeper, 2023-Ohio-239, 2023 Ohio App. LEXIS 232 (5th Dist. Jan. 27, 2023).*

The officer had reasonable suspicion to confront and stop defendant at a convenience store where his wrecked car was parked outside. Police received an anonymous report the car had just been in an accident, which the officer confirmed. State v. Wilcox, 2023 ME 10, 2023 Me. LEXIS 10 (Jan. 27, 2023).*

Posted in Reasonable expectation of privacy, Reasonable suspicion, Standing, Waiver | Comments Off

D.Haw.: Specific exigency not required for automobile exception search

Posted on January 30, 2023 by Hall

Defendant’s car could be searched under the automobile exception while it was parked at his mother’s condo. Exigency isn’t specifically required. United States v. Chan, 2023 U.S. Dist. LEXIS 14062 (D. Haw. Jan. 27, 2023).*

Even if defendant’s otherwise objectively reasonable stop for going 66 in a 65 zone was pretextual, there was reasonable suspicion on the totality based on a debriefing earlier that day that showed defendant was involved in carrying drugs. United States v. Holton, 2023 U.S. Dist. LEXIS 14264 (D.S.D. Jan. 25, 2023).*

Three CIs gave information on defendant, and one said he’d be at a storage unit in his “slick looking Infinity SUV” and “doing big things.” They watched him at the storage unit. During a stop, they asked about the storage unit, and he lied about being at Taco Bell instead. All that added up to reasonable suspicion to extend the stop. State v. Ball, 2023-Ohio-235, 2023 Ohio App. LEXIS 228 (5th Dist. Jan. 27, 2023).*

Posted in Automobile exception, Pretext, Reasonable suspicion | Comments Off

Orin S. Kerr, Terms of Service and Fourth Amendment Rights on SSRN

Posted on January 30, 2023 by Hall

Orin S. Kerr, Terms of Service and Fourth Amendment Rights on SSRN:

Continue reading →

Posted in Uncategorized | Comments Off

GA: Sound of shuffling of feet after announcement of raid justified entry in 3 seconds; no weapons found

Posted on January 29, 2023 by Hall

Officers entered within about three seconds after announcing and hearing shuffling of feet. Defendant was sitting on the couch, and there were no firearms. The test is whether there is a reasonable possible fear of firearms in the house that could be used, not their actual presence. The entry was not unreasonable. Moreover, the court mentions the home had its own security system that announced their presence. Underwood v. State, 2023 Ga. App. LEXIS 41 (Jan. 27, 2023). [Before Next, Ring, and a half dozen other doorbell camera systems, it was always nefarious in the search warrant affidavit for the target to have a security system, and that alone justified a no-knock. Does this still go on? Certainly.]

Officers passing by defendant in his car at 5-10 miles an hour could see his seatbelt wasn’t fastened and that objectively supported a stop. “Here, however, there was no reasonable basis for the officers to wonder if their eyes were playing tricks on them. Unlike the examples above, there is no basis on which it can be credibly argued that the officers’ observations were ‘frustrated by fleetingness, distractions, obstructions, or deceptive angles, glares, or shadows,’ … The assembled circumstances instead enabled an accurate observation.” United States v. Rowson, 2023 U.S. Dist. LEXIS 13832 (S.D.N.Y. Jan. 26, 2023).*

Posted in Knock and announce, Reasonableness | Comments Off

WY: In felony domestic battery case, state showed nexus that evidence could likely be found in def’s journal

Posted on January 29, 2023 by Hall

Defendant was convicted of strangulation of a family member. The family member reported to the police that he had been in counseling and was keeping a detailed journal trying to break the cycle of domestic abuse. The affidavit for the warrant showed nexus and reason to believe that the journal would contain evidence of the crime. Kreusel v. State, 2023 WY 9, 2023 Wyo. LEXIS 9 (Jan. 27, 2023).

“’[C]ourts have previously determined that delays of 10 months, or more, in reviewing electronic data are not per se unreasonable, even when the government does not furnish a basis for the delay in searching electronic data.’ Estime, 2020 U.S. Dist. LEXIS 191242, 2020 WL 6075554, at 14 (collecting cases).” This delay was less and wasn’t unreasonable. United States v. Alexandre, 2023 U.S. Dist. LEXIS 13801 (S.D.N.Y. Jan. 26, 2023).

Defense counsel wasn’t ineffective for not challenging the search incident of the car for a gun when he was a felon in possession. Those facts are shown by the plea agreement and the PSR. Johnson v. United States, 2023 U.S. Dist. LEXIS 13426 (E.D. Mo. Jan. 26, 2023).*

Posted in Cell phones, Nexus, Search incident, Staleness | Comments Off

W.D.Ky.: Search warrant affiant’s reference to water emoji wasn’t false or misleading; it here referred to meth, not sex

Posted on January 29, 2023 by Hall

Defendant’s Franks motion fails. Defendants’ use of a water emoji could have been a reference to sex, but it could also be a reference to methamphetamine, as has come up in police training and in other cases such as United States v. Valdez, 723 F. App’x 624, 627 n.4 (10th Cir. 2018). United States v. Swanagan, 2023 U.S. Dist. LEXIS 13419 (W.D. Ky. Jan. 26, 2023).*

Defendant’s GPS tracker tracked him to a gun store, and he was a felon. State v. Gray, 2023-Ohio-215, 2023 Ohio App. LEXIS 202 (8th Dist. Jan. 26, 2023).*

Officers had probable cause to arrest defendant so his statements aren’t suppressed as the fruit of an illegal arrest. United States v. Stathas, 2023 U.S. Dist. LEXIS 13288 (E.D. Wis. Jan. 26, 2023).*

Defendant was a Cook County Deputy Sheriff armed and in uniform. He was stopped and car blocked in when ATF officers pulled up behind him with blue lights on. His stop was a reasonable investigative stop because he was known to have bought illegal silencers and Glock switches. Their reasonable suspicion for the stop didn’t grow stale, as probable cause for arrest does not. United States v. Cooperman, 2023 U.S. Dist. LEXIS 13412 (N.D. Ill. Jan. 26, 2023).*

Posted in Arrest or entry on arrest, Franks doctrine, GPS / Tracking Data, Seizure | Comments Off

W.D.Ky.: Allowing theft from house after a search had a state remedy, so no § 1983 remedy

Posted on January 29, 2023 by Hall

Plaintiff alleged the Sheriff’s Office, after a search, gave the keys to his place to a convicted felon who stole from him. He has a state remedy, not a § 1983 remedy. Stone v. Taylor Cty. Sheriff Dep’t, 2023 U.S. Dist. LEXIS 13421 (W.D. Ky. Jan. 25, 2023).

Driving one’s vehicle from home to controlled buys establishes nexus to the home. United States v. Ward, 2023 U.S. App. LEXIS 2059 (6th Cir. Jan. 24, 2023).*

In some crimes, the officer’s experience that evidence will be at the home is enough to establish probable cause, and this is one. United States v. Bennett, 2023 U.S. Dist. LEXIS 13185 (N.D. Ga. Jan. 26, 2023).*

The traffic stop was objectively justified by the dashcam. The claim of pretext was not preserved for appeal. State v. Allen, 2023-Ohio-192, 2023 Ohio App. LEXIS 188 (4th Dist. Jan. 12, 2023).*

Posted in § 1983 / Bivens, Nexus, Pretext | Comments Off

NJ: SDT for S&W records on use of its products in NJ was enforced; 1A and other claims preserved

Posted on January 28, 2023 by Hall

Subpoenas for documents under the state Consumer Fraud Act about the ability of average consumers to use plaintiff’s firearms for personal or home defense were enforceable under the Fourth Amendment. Plaintiff’s claims under other amendments are preserved for later. Platkin v. Smith & Wesson Sales Co., 2023 N.J. Super. LEXIS 6 (Jan. 26, 2023)* (“We remain mindful that subpoenas must not be issued ‘arbitrarily or in excess of … statutory authority ….’ Ibid. However, defendant has not presented anything beyond mere supposition and premature constitutional objections to support the proposition that plaintiffs’ subpoena is not valid or overbroad in scope. [¶] For the reasons set forth, we find Judge Alper did not abuse her discretion when she granted plaintiffs’ motion to enforce its October 13, 2020 subpoena and denied defendant’s motion to stay, quash, or dismiss same.”)

The defendant officers’ arrest of plaintiff for stalking was justified by the facts. The fact the criminal case was dismissed here doesn’t show it wasn’t justified. He was also on probation for harassment, and that led to a valid search of his computer and belongings. Ryno v. City of Waynesville, 2023 U.S. App. LEXIS 2004 (8th Cir. Jan. 26, 2023).*

Posted in Privileges, Probable cause, Subpoenas / Nat'l Security Letters | Comments Off

W.D.Tex.: Tasering a suspect before search of the person didn’t taint the search

Posted on January 27, 2023 by Hall

Tasering a suspect before a search of the person doesn’t taint the search. They were unconnected. United States v. Turner, 2023 U.S. Dist. LEXIS 12453 (W.D. Tex. Jan. 25, 2023).*

Defendant in his 2255 doesn’t show ineffective assistance of counsel for failure to file a motion to suppress that would not have prevailed. United States v. Davis, 2022 U.S. Dist. LEXIS 236558 (E.D. Ky. Dec. 29, 2022),* adopted, 2023 U.S. Dist. LEXIS 11731 (E.D. Ky. Jan. 24, 2023).*

There was justification for a no-knock entry in the warrant itself. The city can’t be liable if no officer is liable. Talley v. City of Little Rock, 2023 U.S. App. LEXIS 2002 (8th Cir. Jan. 26, 2023).*

Defendant has no standing in two bags left abandoned in a car he used to flee. United States v. Harper, 2023 U.S. Dist. LEXIS 12940 (N.D. Okla. Jan. 25, 2023).*

Posted in § 1983 / Bivens, Abandonment, Ineffective assistance | Comments Off

CA8: Post-trial assertion of 4A issue was waived

Posted on January 26, 2023 by Hall

Defendant’s post-trial claim that the tracking warrant used to find him expired three weeks before the arrest was waived by not having been filed pretrial. Even if plain error is applied, “we agree with the district court there was no plain error. Whether the tracking warrants expired when Pickens was arrested, interviewed, and released on October 7 is an issue we do not decide. But it is hardly free from doubt, so any error in not reaching the issue was not plain.” Moreover, he fled from the stop giving independent justification for stopping and arresting him. United States v. Pickens, 2023 U.S. App. LEXIS 1840 (8th Cir. Jan. 25, 2023).

The district court did not err in finding the good faith exception applied. “Our review of the record indicates that, even if the warrant was not supported by probable cause, the affidavit contained sufficient indicia of probable cause such that the investigator’s reliance on the warrant was objectively reasonable.” United States v. Hudson, 2023 U.S. App. LEXIS 1890 (4th Cir. Jan. 25, 2023).*

The denial of appellant’s motion to suppress is affirmed for lack of a record of what happened in the trial court. Jackson v. Commonwealth, 2023 Va. App. LEXIS 51 (Jan. 24, 2023).*

Posted in Good faith exception, Waiver | Comments Off

UNC: The Law and Practice of No-Knock Search Warrants in North Carolina

Posted on January 26, 2023 by Hall

UNC School of Government: The Law and Practice of No-Knock Search Warrants in North Carolina by Jeffrey B. Welty:

Continue reading →

Posted in Knock and announce | Comments Off

NBC: Men imprisoned for murder say police illegally used Google to find their location data

Posted on January 26, 2023 by Hall

NBC: Men imprisoned for murder say police illegally used Google to find their location data by Jon Schuppe (“Geofence warrants allow police to comb through Google location data in search of suspects. Opponents say that violates the Constitution.”)

Posted in geofence | Comments Off

E.D.N.Y.: Village’s Scofflaw law permitting seizure of vehicles for nonpayment of parking tickets violates lessor owner’s 4A rights in vehicle

Posted on January 26, 2023 by Hall

The plaintiff Toyota Lease Trust owns vehicles it leases to individuals. One of plaintiff’s lessees ran up $1000 in unpaid parking tickets and the Village of Freeport seized the vehicle under its Scofflaw law. The seizure violated the owner’s Fourth Amendment rights. The village also deprived plaintiff of Fourteenth Amendment due process rights by the lack of notice of seizure. Toyota Lease Trust v. Vill. of Freeport, 2023 U.S. Dist. LEXIS 12329 (E.D.N.Y. Jan. 24, 2023):

Continue reading →

Posted in Seizure | Comments Off

D.N.J.: Civilly committed for NGBRI verdicts have no 4A rights in their cells

Posted on January 26, 2023 by Hall

The civilly committed for NGBRI verdicts have no Fourth Amendment against cell searches. Lopez v. CEO of Ancora Psychiatric Hosp., 2023 U.S. Dist. LEXIS 12248 (D.N.J. Jan. 24, 2023), citing Glazewski v. Barnett, 2022 WL 2046921, at *3-4 (D.N.J. June 7, 2022).

Defense counsel wasn’t ineffective for not challenging the indictment and seizure of evidence in his case. He can’t show any prejudice when he pled guilty to a lesser offense. Stiles v. United States, 2023 U.S. Dist. LEXIS 11990 (D.N.D. Jan. 24, 2023).*

Defendant’s Franks challenge fails the first step of a reckless falsity. United States v. Filoialii, 2023 U.S. Dist. LEXIS 12180 (D. Alaska Jan. 24, 2023).*

Posted in Franks doctrine, Ineffective assistance, Prison and jail searches | Comments Off

D.D.C.: Geofence warrant for cell phones in Capitol building during 1/6 insurrection was valid and relied on in good faith

Posted on January 25, 2023 by Hall

The D.C. District Court upheld a geofence warrant for cell phones located in the Capitol building during the 1/6 insurrection. Surveying all the cases, and there aren’t many, and noting that there is a margin of error as to accuracy of the report that maybe up to a 32% error rate of whether the nearly 1500 cell phones were actually in the Capitol at the time, there was still a “substantial basis” for finding probable cause. Moreover, the warrants were not overbroad and they were particular to time and inside the building itself. Streets were closed and there were no businesses around, so stray cell phones aren’t likely to have been captured. Finally, it is apparent that the good faith exception applies to this geofence warrant. United States v. Rhine, 2023 U.S. Dist. LEXIS 12308 (D.D.C. Jan. 24, 2023).

Even if the warrant was overbroad in permitting seizure of information from 2012, it wasn’t prejudicial where it wasn’t admitted at trial. Therefore, suppression wasn’t an appropriate remedy. United States v. Eller, 2023 U.S. App. LEXIS 1866 (9th Cir. Jan. 25, 2023).* Connected case: United States v. Eller, 2023 U.S. App. LEXIS 1884 (9th Cir. Jan. 25, 2023).*

Posted in geofence, Good faith exception | Comments Off

IL: Even with recreational MJ, smell in a car can provide PC; pre-rec precedent adhered to

Posted on January 25, 2023 by Hall

Even with recreational marijuana, it has to be transported in odor proof containers, and that means the smell of marijuana remains probable cause in Illinois. People v. Hall, 2023 IL App (4th) 220209, 2023 Ill. App. LEXIS 12 (Jan. 25, 2023).

One officer was on a Brady list for suspect testimony before, but, on the whole, the state’s suppression hearing testimony on reasonable suspicion for a stop and detention, evaluated in detail, favors the state. Motion denied. State v. Jackson, 2022 Del. Super. LEXIS 1459 (Dec. 28, 2022).*

Defendant’s disclaiming interest in a cell phone found to contain child porn was abandonment. State v. Copley, 2023 Mo. App. LEXIS 24 (Jan. 24, 2023).*

Posted in Abandonment, Plain view, feel, smell, Probable cause | Comments Off

KY: 21-month delay for SW for cell phone not unreasonable where def in custody

Posted on January 25, 2023 by Hall

Officers had probable cause and nexus and showed particularity to defendant’s cell phone. He’d previously been accused of recording undressed women and was involved in an upskirting. Here he’d been accused of sex with drugged women and recording some of it. The fourth warrant for the phone was 21 months after it was seized, and defendant had a reduced privacy interest in it for the duration because, as an inmate, he couldn’t possess it. Harvey v. Commonwealth, 2023 Va. App. LEXIS 34 (Jan. 24, 2023).*

Defense counsel wasn’t ineffective for not filing a motion to suppress against this otherwise reasonable inventory search. United States v. Hensley, 2022 U.S. Dist. LEXIS 236478 (E.D. Ky. Dec. 29, 2022)* (court also assumed deficient performance to go to the second prong; but that’s not necessary).

Defendant wasn’t entitled to a Texas rule 38.23 jury instruction on illegally obtained evidence where the only testimony was that he was reasonably detained. No fact dispute, no instruction. Ford v. State, 2023 Tex. App. LEXIS 398 (Tex. App. — Texarkana Jan. 24, 2023).

Posted in Exclusionary rule, Ineffective assistance, Inventory, Reasonableness | Comments Off

S.D.Miss.: Even suppressed drugs can be figured into drug weight for sentencing

Posted on January 25, 2023 by Hall

Even if a motion to suppress had been pursued and defendant prevailed, suppressed drug weight can be used at sentencing. United States v. Coleman, 2023 U.S. Dist. LEXIS 10826 (S.D. Miss. Jan. 23, 2023).

Pro se plaintiffs fail to state a Fourth Amendment claim against the agency for entry onto real property. [No specification if any was open fields, but it seems like it.] Gonshorowski v. California Nat. Res. Agency, 2023 U.S. Dist. LEXIS 11117 (E.D. Cal. Jan. 23, 2023).*

The search warrant affidavit was precise in explaining the probable cause for believing defendant had drugs in his house based on apparent drug deals happening after defendant left his house to go to a drug deal. That was nexus. United States v. Dear, 2023 U.S. App. LEXIS 1717 (2d Cir. Jan. 24, 2023).*

Posted in Exclusionary rule, Nexus, Open fields | Comments Off

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"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.

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