The protective sweep here looking under the bed was reasonable. It’s where people hide. Defendant’s contention the sweep went further isn’t clear. Some things were moved and opened, but a search warrant had been executed between the sweep and her reentering the house. United States v. Harrell, 2022 U.S. Dist. LEXIS 195776 (S.D. W.Va. Oct. 27, 2022).*
A state law violation on the jurisdiction of the officer is irrelevant under the Fourth Amendment. United States v. Nelson, 2022 U.S. Dist. LEXIS 195974 (S.D. Fla. Oct. 27, 2022)* (“I agree with Defendant that such a reading of the case law could lead to an absurd result. It cannot be that a local law-enforcement officer can traverse the country and, upon witnessing a potential crime that creates probable cause, stop and search people. But the Eleventh Circuit did not provide a limiting principle in Goings when it applied Moore to the question of jurisdiction, and I am bound by this precedent. Even so, this case is not one that pushes the scope of the rule to the edge.”)
The search of defendant’s backpack was a private search not even observed by the officers. United States v. Ramirez, 2022 U.S. Dist. LEXIS 196054 (D. Kan. Oct. 27, 2022).*
SWAT team entry into defendant’s Queens home at dawn for child pornography on a computer was not unreasonable. The police knew that only defendant, his wife, and their children (the children were “Potential Hazards” according to their operational plan) were in the house. The entry and search were not unreasonable under the Fourth Amendment. United States v. Joyce, 2022 U.S. Dist. LEXIS 195834 (E.D.N.Y. Oct. 27, 2022):
“Mr. Adams contends that the agents coerced him into giving consent involuntarily when they threatened to seize his phone and hold it until they obtained a search warrant. … I disagree. For the reasons stated below, I conclude that Mr. Adams’ consent was voluntary and that the agents’ statements about the existence of exigent circumstances and their ability to obtain a warrant were both supported by law and a fair characterization of how the investigation would proceed.” United States v. Adams, 2022 U.S. Dist. LEXIS 196352 (E.D. Pa. Oct. 28, 2022).*
The protective sweep here looking under the bed was reasonable. Defendant’s contention the sweep went further isn’t clear. Some things were moved and opened, but a search warrant had been executed between the sweep and her reentering the house. United States v. Harrell, 2022 U.S. Dist. LEXIS 195776 (S.D. W. Va. Oct. 27, 2022).*
A state law violation on the jurisdiction of the officer is irrelevant under the Fourth Amendment. United States v. Nelson, 2022 U.S. Dist. LEXIS 195974 (S.D. Fla. Oct. 27, 2022)* (“I agree with Defendant that such a reading of the case law could lead to an absurd result. It cannot be that a local law-enforcement officer can traverse the country and, upon witnessing a potential crime that creates probable cause, stop and search people. But the Eleventh Circuit did not provide a limiting principle in Goings when it applied Moore to the question of jurisdiction, and I am bound by this precedent. Even so, this case is not one that pushes the scope of the rule to the edge.”)
Affidavits for search warrants are judged by what they contain, not what they lack. United States v. Cass, 2022 U.S. Dist. LEXIS 195502 (D. Neb. Sep. 30, 2022), adopted, 2022 U.S. Dist. LEXIS 197043 (D.Neb. Oct. 26, 2022).
It was clearly established at the time that an officer putting his weight on his knee in the arrestee’s back can cause compression asphyxia and death and was excessive. Perkins v. Edgar, 2022 U.S. App. LEXIS 29926 (9th Cir. Oct. 25, 2022).*
Defendant abandoned the car that was searched and disclaimed any knowledge of the key found on his person which he then left behind. United States v. Lawson, 2022 U.S. App. LEXIS 29957 (11th Cir. Oct. 27, 2022).*
Defendant’s clothing reasonably matched the clothing of a suspect in an offense about a mile from where he was found 15 minutes later. It was enough to support a stop. United States v. Paul, 2022 U.S. Dist. LEXIS 195652 (E.D. Tenn. Sep. 26, 2022).*
Using defendant’s key fob on the key removed from him in a search incident did not violate any reasonable expectation of privacy and was reasonable. United States v. Gardner, 2022 U.S. Dist. LEXIS 196575 (D. Md. Oct. 27, 2022):
Defendant’s stop was for not having an LPN and a cracked windshield. There was a temporary permit for the vehicle and the crack wasn’t obstructing vision. Bringing in a drug dog for a sniff of car was unreasonable. The officer “and his comrades could have quickly, and easily, confirmed the validity of the permits if he or those assisting him wanted to. But they focused on something else — making a drug bust.” United States v. Hernandez, 2022 U.S. Dist. LEXIS 195744 (D.S.D. Oct. 22, 2022) (R&R).
Aside from the traffic violation with furtive movements, “the Jeep was idling in an area with a surge of gun violence and narcotics activity.” United States v. Wiggins, 2022 U.S. Dist. LEXIS 195688 (D.N.J. Oct. 27, 2022).*
Defendant has no standing to challenge the search of a codefendant’s cell phone. United States v. Major, 2022 U.S. Dist. LEXIS 195699 (W.D. Ky. Oct. 26, 2022).*
The court of appeals lacked certiorari jurisdiction to decide whether forced production of a passcode to a smartphone violated the Fifth Amendment. Therefore, there is no appellate jurisdiction here. The question can be answered by a direct appeal. State v. Garcia, 2022 Fla. LEXIS 1624 (Oct. 27, 2022).*
Here, failure to file a motion to suppress on the obtaining defendant’s passcode for his cell phone was ineffective assistance of counsel. At this point, it was debatable, and it should have been raised. The government had the phones, and defendant expressed a desire to consult with counsel but he couldn’t because they had the phones. The court permits defendant to withdraw his guilty plea. United States v. Raymond, 2022 U.S. Dist. LEXIS 195133 (D.D.C. Oct. 26, 2022):
Defendant encountered four officers standing on a landing, and they impeded his movements. This amounted to a seizure. United States v. Jackson, 2022 U.S. Dist. LEXIS 194856 (D.N.J. Oct. 26, 2022).
Mistaken identity on the person being seized is usually irrelevant. The question is objective reasonableness. Herndon v. Gillis, 2022 U.S. App. LEXIS 29815 (9th Cir. Oct. 26, 2022).*
Defendant claimed he was driving the car that was searched at some point, but he was removed from it from the passenger side. Another occupant fled and had the keys. Defendant said he was driving with permission, but he calls no witness to establish that. Also, his DL was suspended. No standing. United States v. Smith, 2022 U.S. Dist. LEXIS 194923 (E.D. Tenn. Sep. 16, 2022),* adopted, 2022 U.S. Dist. LEXIS 194141 (E.D. Tenn. Oct. 25, 2022).*
Posted inReasonableness, Seizure, Standing|Comments Off on D.N.J.: Encountering 4 officers at landing on stairs who wouldn’t let him pass was a seizure
Plaintiff’s complaint that AT&T provided real time CSLI to Reno police without a search warrant states enough of a claim to proceed for now. Houston v. AT&T, 2022 U.S. Dist. LEXIS 194789 (D. Nev. Oct. 26, 2022).
Defendant was found to have consented to this search. Being mentally agitated by the situation isn’t enough to show involuntariness. United States v. Bell, 2022 U.S. Dist. LEXIS 193926 (W.D. Mo. Sep. 14, 2022),* adopted, 2022 U.S. Dist. LEXIS 192993 (W.D. Mo. Oct. 24, 2022).*
“Here the stop and all actions occurring before the officers developed probable cause to search the vehicle took place within eight minutes. The officers’ questions about the presence of illegal items in the car were appropriate and took place during the normal course of handling the traffic infraction. Under the cases cited by Khalaf, his traffic stop was not unreasonably prolonged in violation of the Fourth Amendment.” United States v. Khalaf, 2022 U.S. Dist. LEXIS 194122 (W.D. Va. Oct. 24, 2022).*
The triggering condition in this anticipatory warrant was the package going inside the home. Here, the landlord took it in, not defendant. Still, under Grubbs, that was sufficient. United States v. Tabor, 2022 U.S. Dist. LEXIS 194653 (W.D. Pa. Oct. 26, 2022):
Posted inAnticipatory warrant|Comments Off on W.D.Pa.: Anticipatory SW’s triggering condition was package going in house; landlord’s taking it in sufficient
Disagreeing with the Sixth Circuit, the Ninth holds that chalking tires does not violate the Fourth Amendment. It was going on for nearly a century before anyone challenged it. Verdun v. City of San Diego, 2022 U.S. App. LEXIS 29803 (9th Cir. Oct. 26, 2022):
“This appeal presents the question of whether a police officer necessarily violates the Fourth Amendment when he makes an arrest that is prohibited by state law. Relying upon Virginia v. Moore, 553 U.S. 164, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008), we answer that question in the negative. Pursuant to Moore, the Fourth Amendment requires only that an officer’s warrantless arrest be based upon probable cause. Because the vast majority of the evidence presented at the suppression hearing in this case was focused solely upon the officer having made an arrest outside of his territorial jurisdiction in violation of state law — and we cannot discern the circuit court’s legal basis for granting the motion — we reverse the ruling and remand the case to allow the circuit court to determine whether the illegal arrest was supported by probable cause and rule accordingly.” State v. Barton, 2022 Mo. App. LEXIS 662 (Oct. 25, 2022).
Defendant’s traffic stop was unreasonably delayed for a drug dog to arrive, and the record shows the officer’s superiors directed that. United States v. Clark, 2022 U.S. Dist. LEXIS 194538 (W.D. Va. Oct. 24, 2022).*
Landlord’s photographic tip parolee had an AR-15 in his house was enough for a parole search. United States v. Fane, 2022 U.S. Dist. LEXIS 194166 (E.D. Mich. Oct. 25, 2022).*
With an “extreme display of authority and … ‘overbearing tactics” was not by consent. Dydek v. State, 2022 Fla. App. LEXIS 7253 (Fla. 2d DCA Oct. 26, 2022):
Courthouse News Service: Right to livestream traffic stops debated at Fourth Circuit by Erika Williams (“A shouting match erupted between a judge and an attorney at a hearing over whether passengers in cars pulled over by police can broadcast their encounters with officers.”):
Male occupant’s consent to search his house didn’t include the purse of a woman that lived there. The officer could not reasonably believe that he had apparent authority over that. Cinamon v. State, 2022 Ind. App. LEXIS 345 (Oct. 25, 2022).
Plaintiff in federal court was subject of an administrative forfeiture action in Tennessee and went to court thereafter. This suit in federal court is barred by the Rooker-Feldman doctrine. Tubbs v. Long, 2022 U.S. App. LEXIS 29606 (6th Cir. Oct. 24, 2022).*
Officer tailing a suspected DWI could cross into another jurisdiction with notice to the other agency based on statute. A suspected DWI is exigency. Jackson v. State, 2022 Ark. App. 420, 2022 Ark. App. LEXIS 425 (Oct. 26, 2022).*
Posted inAdministrative search|Comments Off on techdirt: Investigation: Child Protective Services Agencies Nearly Always Blow Off Warrant Requirements To Enter Homes
Officers with a search warrant for 8537 Old Rutledge Pike, Knox County, Tennessee also searched what they believed was an outbuilding at 8533 with a power cord running between them with no indication it was different property. At worst, this was negligence, if that. The remedy would be suppression of the search at 8533 and not 8537 too. United States v. Torres, 2022 U.S. App. LEXIS 29608 (6th Cir. Oct. 24, 2022).
Campus police had probable cause for their arrest of plaintiff for sexual assault. After acquired exculpatory evidence did not undermine it. Collick v. William Paterson Univ., 2022 U.S. App. LEXIS 29503 (3d Cir. Oct. 24, 2022).*
A criminal defendant can’t sue his lawyer under § 1983 for not opposing taking a buccal swab for DNA. Braithwaite v. Gaitman, 2022 U.S. Dist. LEXIS 193506 (E.D.N.Y. Oct. 24, 2022).*
Defense counsel wasn’t ineffective for not challenging the search warrant for defendant’s phone records because there was probable cause for the warrant independent of the specific challenge he makes. Willis v. State, 2022 Ga. LEXIS 280 (Oct. 25, 2022).*
A local officer’s arrest of an Indian in Indian country prior to McGirt was with good faith. United States v. Little, 2022 U.S. Dist. LEXIS 192907 (N.D. Okla. Oct. 24, 2022).
Drug interdiction officers working the Detroit Greyhound station because it was a source city saw defendant get out of car carrying some bags, get just inside the door of the bus station, stop, look at his hand, and turn around and get in a cab. Officers believed he saw them working the bus station and he left. The court finds no reasonable suspicion for his stop. He didn’t get far enough inside the station for them to even determine what bus he was going to take or to see them scanning people getting on certain buses. On the whole, the government says it points to reasonable suspicion but it doesn’t. United States v. Cottrell, 2022 U.S. Dist. LEXIS 192641 (E.D. Mich. Oct. 21, 2022).* [Heartening. A judge true to real reasonable suspicion and not just defaulting to what the police want to do.]
The LPN on defendant’s motorcycle was expired, and he couldn’t drive it. Thus, the ten minute wait for the drug dog was reasonable. United States v. Dadisman, 2022 U.S. Dist. LEXIS 192710 (N.D.W. Va. Oct. 21, 2022).*
The state in its statement of issues below addressed probable cause but did not mention inevitable discovery. That amounted to a waiver. “The inevitable discovery doctrine is not a subsidiary issue to a claim of adequate probable cause to support the issuance of a search warrant. This Court has repeatedly and without exception referred to the inevitable discovery doctrine as an exception to application of the exclusionary rule.” Commonwealth v. Price, 2022 Pa. LEXIS 1568 (Oct. 19, 2022).
Plaintiff claimed he was unreasonably detained at customs and sued. His case was ultimately dismissed. He sued again, this time in two suits, over the same actions. Collateral estoppel applies. Kordash v. United States, 2022 U.S. App. LEXIS 29420 (11th Cir. Oct. 21, 2022).*
Defendant was on parole in Nebraska which permits suspicionless parole searches. Here, the search was initiated by meeting him at his job site and talking to him privately. He argued that this was more intense than a “routine parole search” so it must be unreasonable. It wasn’t. United States v. Greuter, 2022 U.S. Dist. LEXIS 192159 (D. Neb. Sep. 2, 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.
