“[T]he constitutionality of the stop does not depend on whether the driver did, in fact, commit a traffic violation. The standard is reasonable suspicion of wrongdoing. If an officer reasonably thinks he saw a driver commit a traffic infraction, then that is enough to pull him over.” United States v. Jones, 2022 U.S. Dist. LEXIS 233627 (W.D. Okla. Dec. 30, 2022).*
The protective weapons sweep of defendant’s car was justified by reasonable suspicion. Commonwealth v. Hendrick, 2022 Va. App. LEXIS 684 (Dec. 29, 2022).*
During a consensual encounter in a car, the officer saw a firearm through the window. That view was not a search. United States v. Smither, 2022 U.S. Dist. LEXIS 233629 (E.D. Ky. Dec. 30, 2022).*
Plaintiff’s claim that state search warrants were actionable under § 1983 because improper methods were used under state statute states a claim. Burley v. Sumner Cty. 18th Judicial Dist. Drug Task Force, 2022 U.S. Dist. LEXIS 233663 (M.D. Tenn. Dec. 30, 2022).* [And this is contrary to Virginia v. Moore.]
Nevada recognizes a private right of action for violation of the state constitution’s search and seizure guarantee. Plaintiff sued in federal court for a strip search going into a prison that produced nothing and also resulted in her being barred from prison visitation. The federal court sought answer to this certified question. Mack v. Williams, 138 Nev. Adv. Op. 86, 2022 Nev. LEXIS 87 (Dec. 29, 2022).
“The items found in the first search, including weapons, narcotics, and digital scales, together with ‘the virtual certainty that drug dealers use cell phones,’ constitutes probable cause to suspect evidence of drug dealing and other criminal activity would be found in the cell phones.” The warrant for defendant’s SnapChat account had nexus because his account name included his gang street name. In any event, the good faith exception applies. United States v. Banks, 2022 U.S. Dist. LEXIS 233659 (D. Minn. Dec. 2, 2022)* (quoting United States v. Eggerson, 999 F.3d 1121, 1127 (8th Cir. 2021) on the phone issue).
“Considering the totality of the circumstances, the undersigned finds that Faison’s consent for law enforcement to enter and search the first floor of her residence for Calhoun was freely and voluntarily given. The most salient factors are the absence of any coercive police procedures and Faison’s cooperation. Agent Porter knocked on the door in a normal fashion and Faison answered without an undue delay. The tones of Agents Porter and Sedberry throughout the encounter were pleasant and cordial. Neither agent abused, threatened or coerced Faison at any time, and neither agent had their weapons drawn. … Undeniably, Faison agreed that the agents were cordial and testified that she was not scared of anything that they did.” United States v. Faison, 2022 U.S. Dist. LEXIS 233866 (M.D. Ala. Nov. 15, 2022),* adopted 2022 U.S. Dist. LEXIS 223166 (M.D. Ala. Dec. 12, 2022).*
Posted inConsent, Nexus, State constitution|Comments Off on Nevada recognizes a private right of action for violation of the state constitution’s search and seizure guarantee
Defendant’s storage unit had the doors and handles tested with Ion Scanning. He had no reasonable expectation of privacy in that. Before the USDJ, however, he raised it was a trespass to do it as the officers did. That’s waived because it wasn’t presented to the USMJ. United States v. Martinez, 2022 U.S. Dist. LEXIS 233486 (D. Minn. Dec. 30, 2022).
A caller said a man in car at a convenience store was passed out drunk or OD’d in the car. That justified the officer coming to the car. United States v. Osuna, 2022 U.S. Dist. LEXIS 233257 (D. Idaho Dec. 28, 2022).*
There is a fact dispute on whether deadly force was justified here, and defendants do not get qualified immunity. Smith v. Agdeppa, 2022 U.S. App. LEXIS 35945 (9th Cir. Dec. 30, 2022).*
There was at least reasonable suspicion for defendant’s stop and brief detention for possibly being involved in a robbery. It ripened to probable cause. United States v. Taylor, 2022 U.S. Dist. LEXIS 233420 (W.D. La. Nov. 16, 2022).*
The raid in this case was recorded on bodycams but the official retention policy at the time was to hold video for only 60 days unless it was flagged to be kept despite the fact that cases take longer than that for a case to get filed. The defense wants sanctions for destroying the video of the search. Denied. The defense doesn’t show how it would be helpful. They aren’t claiming the firearm recovered was planted. United States v. Davidson, 2022 U.S. Dist. LEXIS 233135 (E.D. Mich. Dec. 29, 2022).
Habeas petitioner’s Fourth Amendment and other claims were unexhausted because they were still pending in the state appellate court. Jones v. Hughes, 2022 U.S. Dist. LEXIS 232898 (E.D. Ky. Nov. 30, 2022).*
Officers could approach defendant’s vehicle and open the door when he was sitting on a public road apparently unconscious. State v. McCarthy, 2022-Ohio-4738, 2022 Ohio App. LEXIS 4396 (Dec. 29, 2022).*
The fact a USMJ issued a search warrant doesn’t preclude that judge from hearing a motion to suppress. United States v. Silva, 2022 U.S. Dist. LEXIS 233243 (M.D. Fla. Dec. 29, 2022).
State court’s finding of procedural default on Fourth Amendment and other claims in state appeals and post-conviction proceedings binds the federal court. Thoresen v. Wheeler, 2022 U.S. Dist. LEXIS 232903 (D. Minn. Dec. 7, 2022).*
“For the rule set forth in Stone to apply, the state must have provided, in the abstract, a mechanism by which to raise the Fourth Amendment claim, and the presentation of the claim in the case before the court must not have been frustrated by failure of that mechanism. … If these two inquiries are satisfied, federal habeas review of the Fourth Amendment claim is precluded, even if the federal court deems the state court determination of the claim to have been in error.” Zabavski v. Shaver, 2022 U.S. Dist. LEXIS 233203 (W.D. Mich. Dec. 29, 2022).*
“A sheriff’s deputy patrolling after dark saw three people sitting in a legally parked car in a residential neighborhood, smoking something. He pulled up behind the car, illuminated it with a spotlight, and approached on foot. We granted review to examine the significance of the deputy’s use of a spotlight in this circumstance. We conclude that shining a spotlight for illumination does not ipso facto constitute a detention under the Fourth Amendment. Rather, the proper inquiry requires consideration of the totality of the circumstances, including the use of a spotlight.” All the authorities from other jurisdictions surveyed and in this state show spotlighting is not seizure. Brown from SCOTUS mandates a totality of the circumstances view. People v. Tacardon, 2022 Cal. LEXIS 7809 (Dec. 29, 2022):
NYT: Their Flights Canceled, Southwest Travelers Were Threatened With Arrest by Michael Levinson (“A police officer at Nashville International Airport told travelers whose Southwest flights had been canceled that they would be arrested for trespassing if they did not leave a secure area, a video shows.”)
A public employee’s Dropbox account was searched without a warrant by seeking to enter by his user name and changing the password. There is a reasonable expectation of privacy in Cloud storage of digital data when one does not share access. The state leading case on the expectation is Dumstrey, and the factors of reasonable expectation of privacy all favor defendant. Cloud storage is clearly analogous to a closed container, and a warrant would usually be needed for that. The trial court properly granted the motion to suppress. State v. Bowers, 2022 Wisc. App. LEXIS 1178 (Dec. 29, 2022):
By defendant’s plea to a sex and child porn offense, the state could destroy the computer hard drives where the contraband was found. The seizure was in 2003, and the trial was 2017. State v. Forker, 323 Or. App. 323 (Dec. 29, 2022) (with an interesting dissent on the right to destroy as a property right).
“Even assuming that Black adequately raised this argument on appeal, we cannot say that the district court erred in considering the evidence found during the search of the Jeep Liberty because we have held that the exclusionary rule does not apply to supervised release revocation proceedings. See United States v. Hill, 946 F.3d 1239, 1242 (11th Cir. 2020).” United States v. Black, 2022 U.S. App. LEXIS 35886 (11th Cir. Dec. 29, 2022).*
Plaintiff’s suit over the search that led to his prosecution is barred by Heck. Mills v. Pivot Occupational Health, 2022 U.S. App. LEXIS 35862 (3d Cir. Dec. 29, 2022).*
When stopped, defendant wearing a big coat with his hands out walked behind a bulldozer. That gave justification for a frisk for weapons. Miller v. State, 2022 Ind. App. LEXIS 422 (Dec. 27, 2022).*
Plaintiff’s pretrial § 1983 case against his state case was properly denied as frivolous. Tuten v. Gause, 2022 U.S. App. LEXIS 35724 (11th Cir. Dec. 27, 2022).*
Ordering defendant out of his car while the officer had his DL in hand was not the Rodriguez moment since that’s long been permitted during traffic stops. United States v. Vazquez-Pagan, 2022 U.S. Dist. LEXIS 232096 (M.D. Pa. Dec. 27, 2022).*
Defendant was the subject of an NCIS search warrant while stationed in Japan. That led to his prosecution in the Northern District of Oklahoma. His guilty plea waived his claim the Posse Comitatus Act was somehow violated. United States v. King, 2022 U.S. Dist. LEXIS 232275 (N.D. Okla. Dec. 28, 2022).
Officers had a search warrant for defendant’s phone to look for images and messages about drug transactions. That led them to stumble upon child pornography as well. The warrant was valid. State v. Greenman, 2022 Tenn. Crim. App. LEXIS 550 (Dec. 27, 2022).*
“In this case, by contrast, there is no indication that law enforcement had a wealth of detailed information that was not reflected in the search warrant. The Premises Warrant was not required to provide more details regarding the specific electronic devices to be seized, because further details regarding the particulars of the electronic devices were not available.” United States v. Ramos, 2022 U.S. Dist. LEXIS 229903 (S.D.N.Y. Dec. 21, 2022).*
Posted inOverseizure, Probable cause, Waiver|Comments Off on N.D.Okla.: NCIS SW in Japan as violation of Posse Comitatus Act was waived by guilty plea
Parts of the NY red flag law concern the court. A taking of firearms should be based on a mental health professional’s assessment of danger to protect both Second and Fourth Amendment rights and procedural rights. G.W. v. C.N., 2022 NY Slip Op 22392, 2022 N.Y. Misc. LEXIS 8029 (Monroe Co. Dec. 22, 2022). Further, the rights of co-occupants need to be protected, too:
In a RICO prosecution of MS-13, the search warrant included “MS-13 paraphernalia, photographs, and/or graffiti” and this satisfied particularity. United States v. Saenz, 2022 U.S. Dist. LEXIS 231895 (E.D.N.Y. Dec. 27, 2022):
Officers had a search warrant for defendant’s phone to look for images and messages about drug transactions. That led them to stumble upon child pornography as well. The warrant and search were valid. State v. Greenman, 2022 Tenn. Crim. App. LEXIS 550 (Dec. 27, 2022).*
“In this case, by contrast, there is no indication that law enforcement had a wealth of detailed information that was not reflected in the search warrant. The Premises Warrant was not required to provide more details regarding the specific electronic devices to be seized, because further details regarding the particulars of the electronic devices were not available.” United States v. Ramos, 2022 U.S. Dist. LEXIS 229903 (S.D.N.Y. Dec. 21, 2022).*
Potential trespassing crimes into commercial buildings was reasonable suspicion justifying a stop and frisk. Miller v. State, 2022 Ind. App. LEXIS 422 (Dec. 27, 2022).*
Defendant’s being involved with a carjacked vehicle was probable cause. United States v. Whited, 2022 U.S. Dist. LEXIS 231845 (E.D. Tenn. Dec. 27, 2022).*
The SOL begins with plaintiff’s arrest and search, not the prosecution. Here it was time-barred. (Plaintiff also doesn’t establish any grounds for equitable tolling other than the library was inaccessible during Covid, and he did nothing for over two years.) Dates v. Winters, 2022 U.S. App. LEXIS 35643 (3d Cir. Dec. 27, 2022).
Reasonable suspicion supported extending this stop with a dog sniff. United States v. Edwards, 2022 U.S. Dist. LEXIS 229596 (D.S.C. Dec. 20, 2022).*
When defendant was swaying and likely intoxicated during a traffic stop, a blowtorch lighter and foil ball were in plain view and likely drug paraphernalia. That permitted an automobile exception search. United States v. Hinnard, 2022 U.S. Dist. LEXIS 229641 (E.D. Tenn. Nov. 22, 2022),*
Defendant had his full and fair opportunity to litigate his search claim in state court, and Stone bars further review. Hamilton v. Payne, 2022 U.S. Dist. LEXIS 229692 (E.D. Ark. Nov. 15, 2022).*
“[E]ven if a technical violation of Nebraska law occurred when signing the warrant that is not a basis for suppressing the evidence” under the Fourth Amendment. United States v. Becker, 2022 U.S. App. LEXIS 35626 (8th Cir. Dec. 27, 2022).
Defendant concedes the probation officer had reasonable suspicion for defendant outside his home. Here, that was justification to search his home and rental car. United States v. Chandler, 2022 U.S. App. LEXIS 35640 (2d Cir. Dec. 27, 2022).*
“The fact that the officers told Burnett that he was detained and not under arrest is immaterial to whether a seizure of his person occurred under the Fourth Amendment. Once Burnett was handcuffed and told he was not free to leave, Burnett’s detention amounted to a de facto arrest and needed to be supported by probable cause.” United States v. Burnett, 2022 U.S. Dist. LEXIS 229454 (E.D. Ky. Nov. 23, 2022).*
There was nexus to defendant’s home as a base of operations for drug sales based on circumstantial evidence in the affidavit for warrant. United States v. Pointer, 2022 U.S. App. LEXIS 35506 (6th Cir. Dec. 20, 2022).*
The search warrant was not stale. “But the age of the information alone does not require a court to deny a warrant if ‘other factors indicate that the information is reliable and that the object of the search will still be on the premises.’ …” United States v. Jones, 2022 U.S. App. LEXIS 35516 (7th Cir. Dec. 22, 2022).*
“After carefully reviewing the record, we agree with the district court’s determination that the challenged statements and omissions were not necessary to the probable cause finding, and, thus, that Davis’s suppression motion and request for a Franks hearing were properly denied.” United States v. Davis, 2022 U.S. App. LEXIS 35480 (11th Cir. Dec. 22, 2022).*
Defendant received ineffective assistance of counsel from counsel not answering questions about the search of defendant’s property, such that the plea offer ran out. The government is ordered to reoffer the 10-year plea agreement. Tingle v. United States, 2022 U.S. Dist. LEXIS 230277 (S.D. Ind. Dec. 22, 2022).
Defendant did raise standing, but he just didn’t have standing in the car. United States v. Elburki, 2022 U.S. Dist. LEXIS 230294 (W.D. Mo. Dec. 22, 2022).*
Defendant was on parole and stopped outside his residence county. That was reasonable suspicion for a parole search. Plus, defendant’s multiple and inconsistent explanations about his travels, which the police officers knew were false, coupled with his parole situation and his nervous demeanor throughout the encounter, combined to give the officers a founded suspicion of criminality ….” People v. Thomas, 2022 NY Slip Op 07263, 2022 N.Y. App. Div. LEXIS 7142 (3d Dept. Dec. 22, 2022).*
Reasonable suspicion supported extending this stop with a dog sniff. United States v. Edwards, 2022 U.S. Dist. LEXIS 229596 (D.S.C. Dec. 20, 2022).*
When defendant was swaying and likely intoxicated during a traffic stop, a blowtorch lighter and foil ball were in plain view and likely drug paraphernalia. That permitted an automobile exception search. United States v. Hinnard, 2022 U.S. Dist. LEXIS 229641 (E.D. Tenn. Nov. 22, 2022).*
The attachment to a warrant can provide particularity. While one ground to suppress was mostly litigated, it was apparent the other ground wasn’t waived or abandoned. Commonwealth v. Young, 2022 PA Super 220 (Dec. 23, 2022).*
“Here, the record demonstrates that the deputies who conducted the sweep watched an armed known gang member enter Nunez’s house, heard a commotion inside the house, and saw the gang member leave without the weapon. Subsequently, two other gang members left the house, and those two individuals could not confirm to the deputies whether anyone else was in the house. Based on these specific and articulable facts, the deputies had a reasonable belief that there may have been people in the home who had access to at least one firearm and thus posed a threat to the deputies’ safety. [¶] Further, the deputies did not exceed the permissible scope of the protective sweep because they only briefly and cursorily searched the home, including Nunez’s bedroom.” United States v. Nunez, 2022 U.S. App. LEXIS 35555 (9th Cir. Dec. 23, 2022).*
In a DL suspension proceeding, the fact defendant spun his tires for 3-4 seconds didn’t violate the statute at issue, so there was no reasonable suspicion for his stop. Garner v. Kan. Dep’t of Revenue, 2022 Kan. App. LEXIS 46 (Dec. 23, 2022).*
In a driver’s license suspension proceeding, reasonable suspicion supports the ALJ’s findings the stop was justified. Autery v. Tex. Dep’t of Pub. Safety, 2022 Tex. App. LEXIS 9373 (Tex. App. – Beaumont Dec. 22, 2022).*
"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.
