Overheard information that defendant was traveling to Cape Girardeau, Missouri to harm a CI was reasonable suspicion for his stop. When a dog alerted, too, that permitted a search anywhere in the car where drugs could be hidden. United States v. Smith, 2022 U.S. Dist. LEXIS 230771 (S.D. Ill. Dec. 22, 2022).*
Defendant had no standing in his CSLI through Uber. The warrant for defendant’s Gmail account was particular since it described the crimes under investigation. United States v. Medina, 2022 U.S. Dist. LEXIS 230727 (W.D.N.Y. Dec. 1, 2022).*
Defendant had his “full and fair opportunity” to litigate the search claim even though he didn’t appeal on that ground. United States v. Fleming, 2022 U.S. Dist. LEXIS 230839 (M.D. La. Dec. 21, 2022).*
Defendant consented to a search of his car despite asking whether he was being recorded and told they weren’t, but they were. United States v. Orlandella, 2022 U.S. Dist. LEXIS 230848 (D. Mass. Dec. 22, 2022).*
“Regardless, Officer Ashenfelter acknowledged that the traffic violation investigation was completed at 11:10. He called for the canine unit at 11:12, and the canine unit arrived at 11:18 a.m. [¶] Thus, the evidence reflects that the officer, after completing his traffic investigation, continued to detain Byrd to wait for the arrival of the canine unit. Officer Ashenfelter testified that Byrd’s license was not suspended and there was no outstanding warrant for her and, therefore, what remained to be investigated was the possibility that there were drugs or guns in her vehicle.” State v. Byrd, 2022-Ohio-4635, 2022 Ohio App. LEXIS 4325 (8th Dist. Dec. 22, 2022).
It’s obvious to the issuing magistrate from the CI’s information that he had a drug problem, given the number of times he contacted defendant to get drugs. Still, there was probable cause on the totality despite what information defendant contests. United States v. Brown, 2022 U.S. Dist. LEXIS 229988 (M.D. Pa. Dec. 21, 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).*
“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).*
“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).*
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).*
Posted inDog sniff, Particularity, Seizure|Comments Off on S.D.N.Y.: The SW was as particular as the information officers had would allow
Police officers are not legal scholars, and they don’t have to guess as to the constitutionality of the laws they enforced. They need only act reasonably in reliance on statute or ordinance. State v. Albarenga, 313 Neb. 72 (Dec. 23, 2022).
Plaintiff law student was stopped driving home from law school when in person classes were stopped because of Covid. At an exit, he started to get off and changed his mind. The officer stopped him claiming reasonable suspicion for a traffic offense based on the swerve (which the court credits). The vehicle was sniffed by a drug dog which allegedly alerted. A wholesale search of all his belongings in the U-Haul, trashing his stuff, lasted for an hour finding nothing. All the while, plaintiff was handcuffed, even after the search was complete while the officer was writing a warning ticket. Then he’s released. The officer gets qualified immunity for the stop and search but not the handcuffing. Humphrey v. Payton, 4:21-cv-00194-LPR (E.D.Ark. Dec. 20, 2022).* [A wholly unsatisfying outcome based on the facts, including chiding plaintiff for not bringing an equal protection claim for pretext, with 63 pages and 383 footnotes to the summary judgment record. In Arkansas, if you haven’t sued the ASP for overreaching, you’re not doing your job.]
With the video “Viewed in the light most favorable to Plaintiffs, the facts support a finding that Hames did not pose a sufficiently immediate threat to justify the use of deadly force.” Qualified immunity denied. R. H. v. City of Redding, 2022 U.S. App. LEXIS 35414 (9th Cir. Dec. 22, 2022).*
This administrative search warrant under OSHA became stale by the government’s delay in seeking it and litigation delays. Also, USMJs have jurisdiction to issue administrative inspection warrants. F.R.C.P. 72 objections do not apply to administrative warrants because they frustrate enforcement of the law. In re Establishment Insp. of Anthony Marano Co., 2022 U.S. Dist. LEXIS 230434 (N.D. Ill. Dec. 22, 2022).
“Robles’ and Cardona’s responses to Trooper Meeks’ questions raised reasonable suspicion. Robles’ statement that Cardona was traveling to visit her ill sister for a week was contradicted by Cardona’s version that they were in Arkansas to visit a friend for a day or two. Robles’ report of how they had acquired the suitcase from an unspecified person and that they were to take it to another person also gave rise to reasonable suspicion. Trooper Meeks also observed that both Robles and Cardona appeared nervous. Given these specific and articulable facts, Trooper Meeks had reasonable suspicion that further investigation was warranted.” United States v. Robles, 2022 U.S. App. LEXIS 35379 (8th Cir. Dec. 22, 2022).*
Defendant’s Franks challenge fails on appeal for lack of materiality, but he wins on his drug count for lack of proof of intent. Otherwise, affirmed. United States v. Belk, 2022 U.S. App. LEXIS 35468 (4th Cir. Dec. 22, 2022).*
“[T]he totality of the circumstances assessment to determine the existence of reasonable articulable suspicion is and remains an objective test.” Flight can also be consistent with innocence. Washington v. State, 2022 Md. LEXIS 524 (Dec. 19, 2022).
Reasonable suspicion developed during the traffic stop, and a vehicle frisk produced a gun. Defendant’s stop was justified and not unreasonably extended. United States v. Samilton, 2022 U.S. App. LEXIS 35208 (10th Cir. Dec. 20, 2022).*
This recorded jail call dispute is over whether the call to his wife originated on an attorney call phone in book-in or in general population. The district court held defendant was on notice calls were monitored. That’s enough. No CoA. Ayala v. United States, 2022 U.S. App. LEXIS 35258 (6th Cir. Dec. 20, 2022).*
Opening a car door is a search. State v. Gray, 2022 N.J. Super. LEXIS 144 (Dec. 20, 2022).
“In sum, the Court finds it is clear that Officer Spain’s purpose in opening Defendant’s door and asking him to step out of the vehicle were efforts to protect the welfare of the vehicle’s occupant — the Defendant. As such, Officer Spain’s actions to remove Defendant from the vehicle he was found unresponsive in were totally permissible pursuant to Officer Spain acting in a community caretaking capacity.” United States v. Hinnard, 2022 U.S. Dist. LEXIS 228658 (E.D. Tenn. Dec. 20, 2022).*
The smell of marijuana coming from inside defendant’s house (which had happened before) where the police knew there were two minors and that defendant allowed minors to ingest marijuana was exigency for this entry. State v. Sturgill, 2022-Ohio-4574, 2022 Ohio App. LEXIS 4278 (5th Dist. Dec. 16, 2022).*
Ultimately there was not reasonable suspicion on the totality. It was essentially a “well-tuned and correct” hunch. Many—but not all—of the remaining reasonable suspicion factors bear a close resemblance to those presented, but ultimately rejected, in United States v. Bowman, 884 F.3d 200 (4th Cir. 2018). United States v. Contreras, 2022 U.S. Dist. LEXIS 231158 (W.D. Va. Dec. 23, 2022). Suppressed. A checklist of factors used by the officer was put into evidence:
Defendant pled to the indictment, having written a letter to the court that he wanted to preserve his search claim. His pro se letter did not satisfy the conditional plea rule. United States v. Turner, 2022 U.S. App. LEXIS 35476 (7th Cir. Dec. 22, 2022).
This was a close call on reasonable suspicion, but, on the totality, the court can’t say that the stop was prolonged for the drug dog under existing circuit precedent. United States v. Guerue, 2022 U.S. Dist. LEXIS 230025 (D.S.D. Dec. 20, 2022).*
“In this case, the State established the decision to impound was made consistent with statutory authority in Section 304.155.1(5) and that the pre-impoundment inventory search was reasonable because the State was motivated by legitimate governmental concerns, not a desire to search for evidence.” State v. Creutz, 2022 Mo. App. LEXIS 821 (Dec. 21, 2022).*
Posted inInventory, Reasonable suspicion, Waiver|Comments Off on CA7: Pro se letter to court to preserve search claim wasn’t conditional plea
When the state doesn’t challenge standing, it’s taken as conceded. The trial court thus erred in deciding standing. People v. Bonilla, 2022 NY Slip Op 07304, 2022 N.Y. App. Div. LEXIS 7136 (1st Dept. Dec. 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).*
“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).*
The fact a cell phone was found at the scene of a car crash gives no probable cause to search it for evidence of distracted driving merely by its presence. “[*P1] In this appeal, we are asked to decide whether the good-faith exception to the exclusionary rule applies to the execution of a constitutionally deficient search warrant authorizing the search of cell phones found at the scene of a car crash, when nothing in the affidavit supporting the warrant connected the phones to the crash other than the police officer’s averment that evidence of how the accident occurred ‘may’ be found on the phones. We determine that the good faith-exception does not apply under the facts of this case. For the objective-good-faith exception to the exclusionary rule to allow the introduction of evidence obtained through a defective search warrant in violation of the Fourth Amendment to the United States Constitution, the affidavit supporting the warrant must evince a minimum connection between the item or place searched and the alleged criminal activity. This is not a difficult standard to meet; a minimum connection means only some modicum of evidence, however slight, that connects the criminal activity described in the affidavit to the item or place searched. See United States v. White, 874 F.3d 490, 497 (6th Cir.2017). The warrant affidavit at issue in this case, even when generously construed, does not meet this standard. Thus, the good-faith exception to the exclusionary rule does not apply to the search of the cell phones in this case.” State v. Schubert, 2022-Ohio-4604, 2022 Ohio LEXIS 2599 (Dec. 22, 2022).
Posted inCell phones, Good faith exception, Probable cause|Comments Off on OH: The fact a cell phone was found at the scene of a car crash gives no PC to search it for evidence of distracted driving merely by its presence
Posted inSurveillance technology|Comments Off on The Conversation: Not Big Brother, but close: a surveillance expert explains some of the ways we’re all being watched, all the time
When challenging the constitutionality of an ordinance or statute as making a search and seizure unreasonable, defendant must join the city or notify the AG to participate. Without it, that’s waiver. “Because Raddemann has not shown compliance with Wis. Stat. § 806.04(11), we decline to consider the merits of his constitutional challenge to the ordinance.” State v. Raddemann, 2022 Wisc. App. LEXIS 1162 (Dec. 21, 2022). [But then Krull would make good faith exception apply.]
“Here, however, Defendants fail to point to any misstatements or omissions in Detective Miller’s affidavit that, if stricken or supplemented, would undermine the reasonableness of the ultimate probable cause determination.” Here it was IP addresses, and the magistrate reasonably concluded there was probable cause. United States v. Fisher, 2022 U.S. App. LEXIS 35271 (9th Cir. Dec. 21, 2022).*
“The defendant’s contention that cocaine seized pursuant to a search warrant should have been suppressed because the search warrant was based on uncorroborated, unreliable hearsay is unpreserved for appellate review …. In any event, the Supreme Court properly concluded that the search warrant was supported by probable cause.” People v. Wyche, 2022 NY Slip Op 07250, 2022 N.Y. App. Div. LEXIS 7073 (2d Dept. Dec. 20, 2022).*
Posted inFranks doctrine, Waiver|Comments Off on WI: When statute or ordinance on which search was based is challenged, AG or city must be present
An attic apartment and a treehouse were not specifically within the terms of the warrant, but the search was still reasonable. United States v. Ayala, 2022 U.S. Dist. LEXIS 227976 (N.D. Cal. Dec. 19, 2022).
Defendant didn’t timely challenge his detention leading to a Fourth Amendment search until his motion for new trial, and this was waiver. Smith v. State, 2022 Ga. LEXIS 321 (Dec. 20, 2022).*
Two people sitting in a car in a parking lot was not reasonable suspicion. State v. McBride, 2022 Wisc. App. LEXIS 1153 (Dec. 20, 2022) (unpublished).*
A Franks showing for a state arrest warrant where defendant was later indicted federally fails here because there’s no showing of a lack of probable cause based on a false statement. The federal indictment establishes probable cause here. United States v. Stokes, 2022 U.S. Dist. LEXIS 228653 (W.D. Va. Dec. 20, 2022).*
NYLJ Law.com: Geofence Warrants, January 6 and the Fourth Amendment (“Recently, litigation in several of the January 6th cases has disclosed the extensive use of this geofence search warrants. The Fourth Amendment implications raised by the use of this new investigative tool will be discussed in this column.”)
NYT: Madison Square Garden Uses Facial Recognition to Ban Its Owner’s Enemies (“Facial recognition technology is legal in New York, but lawyers have sued MSG Entertainment, saying the exclusion list is forbidden. The use of facial recognition technology to enforce it has raised an outcry not just from people turned away from Knicks games, but from civil liberties watchdogs, who called it a startling new frontier that demonstrated why the federal government should regulate the technology. The local grudge match has become part of a national debate over the specter of a privatized surveillance state.”);
Fourteen years worth of emails wasn’t overbroad here. “The case involves a complex tax evasion scheme taking place over many years and across international borders. A wide variety of documents would be relevant to prove this scheme. The warrant in this case, even if it were found to be ‘overly broad,’ is ‘not so facially deficient […] that the executing officers could not have reasonably presumed it to be valid.’ Id. (citing United States v. Accardo, 749 F.2d 1477, 1481 (11th Cir. 1985)).” United States v. Gyetvay, 2022 U.S. Dist. LEXIS 227933 (M.D. Fla. Dec. 19, 2022).
This 2255 claim is based on the warrant issuing judge was also a victim of the crime. Aside from the merits, that’s not a challenge to the voluntariness of his guilty plea. Thibodeau v. Artis, 2022 U.S. App. LEXIS 34942 (6th Cir. Dec. 16, 2022).* [Interesting issue; but would it fail on good faith exception if raised before the plea?]
A valid frisk is the outer clothing, not the pockets. State v. Martin, 2022 Minn. App. LEXIS 160 (Dec. 14, 2022).*
Bailbondsman aren’t state actors under § 1983, and there is no private right of action under the federal kidnapping statute. Hutchins v. Billy Clark Bail Bonds, Inc., 2022 U.S. Dist. LEXIS 227949 (N.D. Fla. Nov. 8, 2022), adopted, 2022 U.S. Dist. LEXIS 227305 (N.D. Fla., Dec. 19, 2022).
Even constitutional challenges need to be preserved below. Jimenez v. Dep’t of Revenue, 370 Or. 543 (Dec. 15, 2022).
The court does not find the officer’s testimony credible. He claimed he saw defendant with binoculars from 100′ away buying liquor at a walkup window with a handgun with a tactical light attached tucked in defendant’s armpit. After the purchase, he claims it was moved to his right front pocket and an extended magazine was visible. United States v. Brown, 2022 U.S. Dist. LEXIS 227196 (S.D. Ill. Dec. 16, 2022).*
A tipster that calls in and leaves name and phone number and details is more believable than an anonymous informer. State v. Bearer, 2022-Ohio-4554 (9th Dist. Dec. 14, 2022)
Defendant’s original challenge to the search warrant was rejected on appeal. This one on 2255 only slightly changes the argument and doesn’t help. United States v. Rice, 2022 U.S. Dist. LEXIS 227279 (W.D. Pa. Dec. 16, 2022).*
“The Fourth Amendment does not apply to sentencing enhancements. … We have recognized a possible exception to this rule—when officers illegally seized the evidence for the very purpose of enhancing the defendant’s sentence—but Wyse makes no such allegation.” United States v. Wyse, 2022 U.S. App. LEXIS 34845 (6th Cir. Dec. 15, 2022).
The three officers in this appeal get qualified immunity because there was probable cause. They also had no personal involvement. Hugan v. City of Detroit, 2022 U.S. App. LEXIS 34842 (6th Cir. Dec. 15, 2022).*
Three months is not stale for a child pornography warrant. United States v. Gallagher, 2022 U.S. App. LEXIS 34844 (6th Cir. Dec. 15, 2022).*
Defendant challenges the reliability of the named informant. The information was corroborated enough and accurately predicted future events. Defendant also wants to inquire into the CI’s motive to inform, but the court finds it was for a beneficent purpose of her family. State v. Rosa, 2022 S.D. 76, 2022 S.D. LEXIS 143 (Dec. 14, 2022).*
“Handcuffing is ordinarily improper in a Terry stop absent an objective safety concern. See United States v. Smith, 373 F. Supp. 3d 223, 241 (D.D.C. 2019); Haynes v. Minnehan, 14 F.4th 830, 835 n.4 (8th Cir. 2021) (‘[A]bsent an objective safety risk, handcuffing is not a routine part of a Terry stop.’). For the reasons stated above, a jury could find—notwithstanding the fact that officers told Mr. Katz that he was being handcuffed ‘for everybody’s protection’—that it was unreasonable under the circumstances to think handcuffing Mr. Katz immediately was necessary for safety purposes.” Katz v. District of Columbia, 2022 D.C. App. LEXIS 420 (Dec. 15, 2022).
Under the state constitution, defendant’s backpack could not be searched as a matter of course on arrest, following State v. Edwards, 304 Ore. App. 293, 294, 466 P3d 1034 (2020). State v. Wilcox, 323 Or. App. 271 (Dec. 14, 2022).*
Defendant’s cell phone was searched without a warrant merely to get the serial number. The warrant was based on text messages sent to it, so the first search was constitutionally meaningless since the warrant was based on probable cause. Lanham v. United States, 2022 U.S. App. LEXIS 34758 (6th Cir. Dec. 15, 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.
