Defense counsel was ineffective in not moving to suppress one piece of evidence, but defendant can’t show he was prejudiced by it on the case as a whole. Szewczyk v. State, 2022 Fla. App. LEXIS 7180 (Fla. 2d DCA Oct. 21, 2022). (I read a lot of records for IAC claims, and that’s how most of them go: even if IAC, no prejudice on the record as a whole, and then it conceivably was strategy at that point.)
When the probable cause showing is stripped of the challenged provision defendant says is false, plenty of probable cause remains. United States v. Stevens, 2022 U.S. App. LEXIS 29332 (6th Cir. Oct. 20, 2022).*
Defendant’s car was stopped on Fulton Street in traffic in Brooklyn because he was apparently asleep at the wheel. NYPD came to the car and could see marijuana vape materials in plain view, and that led to a valid automobile exception search of the car. United States v. Harris, 2022 U.S. Dist. LEXIS 192053 (E.D.N.Y. Oct. 21, 2022).*
The detailed anonymous tip here was sufficient to support a stop when it was substantially corroborated at the scene. The caller observed an altercation in real time and described the two vehicles involved. It was at the top of a hill and not in a denser urban area where it would be harder to figure out who was involved, and that’s significant. “When Detective Carr arrived, he did not observe a fight, but he observed the two vehicles as described in the report, a male and two females, and the male immediately walked towards him in a brisk manner. The description of the vehicles and the individuals aligning with what was reported gave Detective Carr reasonable suspicion to stop the vehicles from leaving the area to determine if there was a dispute.” It all adds up to reasonable suspicion. People v. Dolphin, 2022 V.I. SUPER 88U, 2022 V.I. LEXIS 77 (Oct. 17, 2022).
Non-citizen defendants were arrested in international waters and brought to Southern Florida for prosecution. The Fourth Amendment’s 48 hour rule in County of Riverside doesn’t apply to them. United States v. Trench, 2022 U.S. Dist. LEXIS 192347 (S.D. Fla. Oct. 17, 2022),* citing United States v. Cabezas-Montano, 949 F.3d 567, 593-94 (11th Cir. 2020).
Defendant challenged the probable cause for the search warrant for his cell phones but not the seizure warrant. The probable cause was the same, and it’s sufficient. United States v. Bailey, 2022 U.S. Dist. LEXIS 192462 (E.D.N.Y. Oct. 21, 2022).*
Officers had reasonable suspicion for defendant’s patdown under Terry because they suspected he was just involved in a shooting incident. United States v. Barnes, 2022 U.S. Dist. LEXIS 192505 (S.D.N.Y. Oct. 21, 2022).*
The head of the Arizona GOP sued the January 6th Committee to block a subpoena to T-Mobile for her call records, not content, on First Amendment Free Association grounds. On appeal, the injunction is denied. This is similar to Eastman’s case where only call logs, not content, were sought. Ward v. Thompson, 22-16473 (9th Cir. Oct. 22, 2022):
Officer’s alleged threat to break down the door stated in a nice tone of voice was not coercive, even if true, because the officer could have. On the totality, there was consent to enter to execute the arrest warrant because it’s clear that the consenter wanted defendant out. The view inside led to a search warrant. United States v. Hankerson, 2022 U.S. Dist. LEXIS 191820 (M.D. Fla. Oct. 20, 2022)* (“Perhaps most importantly, it does not appear that Detective Von Leue’s ‘threat’ had any real impact on Ms. Mathis. Based on the testimony at the evidentiary hearing, it appears that Ms. Mathis wanted Washington out of her home first and foremost, telling the officers what room they would locate Washington in and even offering to go in and get him herself.”).
Defendant’s claim that the algorithm involved in the software to search for child porn on his computer was somehow a Franks violation isn’t. First, he doesn’t back that up except by essentially fantastic allegations and suggestions, i.e. no evidence. Second, how would that defeat probable cause? Doesn’t say. United States v. Gray, 2022 U.S. Dist. LEXIS 191656 (W.D. Va. Oct. 20, 2022).*
The search warrant was for firearms, and it incorporated information that defendant possessed a shotgun. That made the shotgun subject to seizure. United States v. Smith, 2022 U.S. Dist. LEXIS 191689 (E.D. Cal. Oct. 19, 2022).*
techdirt: Mississippi Courts Are Helping Cops Keep Search Warrants Out Of The Public’s Hands by Tim Cushing (“No-knock warrants remain under fire as they continue to needlessly increase the death toll of residents who often have no idea who’s violently entering their home and, therefore, respond in unpredictable ways. Supposedly obtained to increase officer safety, these warrants often seem like a handy way to put officers in ‘fear for your safety’ mode, thus justifying the violence that follows.”).
Posted inKnock and announce, Warrant papers|Comments Off on techdirt: Mississippi Courts Are Helping Cops Keep Search Warrants Out Of The Public’s Hands
“When Dhyne encountered police outside the house, he told them that he (1) rented a separate unit in the basement and (2) used the same IP address as the subscriber. In our view, this second piece of information is critical. It gave the police reason to believe that the area to be searched — the parts of the physical address from which the IP address could be accessed — was ‘used in common’ and ‘not secured against access by the other occupants.’ Martinez, 165 P.3d at 911 (quoting 2 LaFave, § 4.5(b), at 529 (3d ed. 1996)). Because police had information that the IP address linked to the subscriber’s physical address (the basis for probable cause) was commonly used by Dhyne in his separate residence at that physical address, the search of Dhyne’s apartment was authorized by the warrant, notwithstanding his separate unit.” People v. Dhyne, 2022 COA 122, 2022 Colo. App. LEXIS 1545 (Oct. 20, 2022).
The affidavit for search warrant showed probable cause to believe the defendants coordinated their actions to justify warrants for the phones. “The surveillance videos established that Defendant has at least one coconspirator who helped him hunt down the victim and get away from the scene. The affidavit also described how three vehicles, one of which was the suspects’ getaway car, moved in a coordinated fashion before the shooting. A reasonable inference is that communications needed to be instantaneously made to facilitate such an effort, most likely via phones. It is thus reasonable for the affiant, who had extensive law enforcement experience, to believe that probable cause existed to find exchanges between co-defendants related to the shooting on Defendant’s phones.” United States v. Peterson, 2022 U.S. Dist. LEXIS 190827 (E.D. Mich. Oct. 19, 2022).
Posted inProbable cause, Scope of search|Comments Off on CO: Basement apt could be searched on SW for premises based on CP coming from IP address of premises
“As soon as [the officer] accessed [the database from the police car], he saw an alert suggesting that Defendant was armed. Defendant argues that Davis could not be sure of the accuracy of this information, but that hardly matters. Reasonable suspicion can rest on mistakes of both fact and law. Heien, 574 U.S. at 60-61. The issue, then, is not whether the alert was accurate, but whether it was reasonable for Davis to rely on it.” United States v. Woods, 2022 U.S. Dist. LEXIS 190405 (N.D. Ind. Oct. 18, 2022).
Merely stating that a cell phone was seized two months after the crime doesn’t present a staleness argument. And, even if it did, information can be retrieved from cell phones long after. United States v. Peterson, 2022 U.S. Dist. LEXIS 190827 (E.D. Mich. Oct. 19, 2022).
When the probable cause is based on controlled buys, the CI’s criminal history is seemingly of less importance. United States v. Brown, 2022 U.S. Dist. LEXIS 191045 (S.D. Ill. Oct. 19, 2022) (citing United States v. Woodfork, 999 F.3d 511 (7th Cir. 2021)).*
Removing a cell phone’s battery, breaking the phone in half, and throwing it out the window of a moving car is indicative of abandonment. State v. Hurdel, 2022 Iowa App. LEXIS 784 (Oct. 19, 2022).
“While this [KC ordinance] provision requires officers to allow an arrestee time to arrange for the vehicle’s timely removal, it does not require officers to affirmatively ask arrestees if they would like someone to pick up their vehicle. Additionally, ‘[n]othing in the Fourth Amendment requires a police department to allow an arrested person to arrange for another person to pick up his car to avoid impoundment and inventory.’ Morris, 915 F.3d at 556 ….” United States v. Tripp, 2022 U.S. Dist. LEXIS 190003 (W.D. Mo. Sep. 9, 2022).*
Iowa reiterates it does not recognize reasonable mistakes of law by officers. State v. Friend, 2022 Iowa App. LEXIS 793 (Oct. 19, 2022).*
Posted inAbandonment, Cell phones, Reasonableness|Comments Off on IA: Breaking cell phone in half and throwing it out window of moving car shows abandonment
WaPo: They got a Ring doorbell alert, then opened fire on a bystander, police say by Justine McDaniel (“The incident may provide an extreme example of the type of neighborhood vigilantism sometimes cited by critics of doorbell cameras, the benefits and pitfalls of which have been debated over the past several years. Critics have raised alarm over the data the doorbells collect and the potential surveillance network they create, particularly as Ring, which is owned by Amazon, has shared footage with police departments. The technology has also raised concerns among people of color about its potential to exacerbate racial profiling.”)
Posted inVideo surveillance|Comments Off on WaPo: They got a Ring doorbell alert, then opened fire on a bystander, police say
A single telephone call 6 weeks before the search warrant was sought was stale. Nothing in between. “In the context of drug crimes, ‘information goes stale very quickly “because drugs are usually sold and consumed in a prompt fashion.”’” And, the good faith exception would not be applied. United States v. Granger, 2022 U.S. Dist. LEXIS 190063 (E.D. Mich. Oct. 18, 2022):
Police showed up at defendant’s house six hours after a 911 call. Whatever exigency there might have been had dissipated. Everyone in the house was asleep. United States v. Miller, 2022 U.S. Dist. LEXIS 189981 (D.S.C. Oct. 17, 2022).
The stop was objectively reasonable based on rolling through a stop sign. Defendant can’t show it was pretextual. Contraband was in plain view with a flashlight. State v. Hunter, 2022-NCCOA-683, 2022 N.C. App. LEXIS 704 (Oct. 18, 2022).*
Defendant’s motion to suppress after 10 trial continuances was untimely. United States v. Bridges, 2022 U.S. Dist. LEXIS 189837 (N.D. Ind. Oct. 18, 2022).
Reference in a search warrant application to a Facebook post showing defendant buying expensive jewelry with a backpack full of cash at a time when he claimed no taxable income since 2017 was not stale. United States v. Grandy, 2022 U.S. Dist. LEXIS 189588 (W.D.N.C. Oct. 18, 2022):
Officers who actually fired their weapons here do not get qualified immunity, but those who did not do. Peck v. Montoya, 2022 U.S. App. LEXIS 28822 (9th Cir. Oct. 18, 2022):
Posted in§ 1983 / Bivens, Excessive force|Comments Off on CA9: In excessive force case, those that did not shoot get QI; facts on those that did are in dispute
The officer’s reading from the search warrant affidavit at trial because it contained hearsay may have been error, but it wasn’t plain error. Defendant was free to cross-examine on all of that to mitigate prejudice [if he could]. State v. Booth, 2022-NCCOA-679, 2022 N.C. App. LEXIS 709 (Oct. 18, 2022).
Releasing BOP inmate medical records related to a civil case to the local USAO did not violate the Privacy Act or the Fourth Amendment. Sullivan v. Fed. Bureau of Prisons, No. 21-16527, 2022 U.S. App. LEXIS 28670 (9th Cir. Oct. 17, 2022).*
The officer’s encounter with defendant on foot who stopped his car on his own and the officer approached was consensual. People v. Tolliver, 2022 IL App (2d) 210080, 2022 Ill. App. LEXIS 446 (Oct. 17, 2022).*
Six controlled buys from the premises over a few months was probable cause on the totality. United States v. Trammell, 2022 U.S. Dist. LEXIS 188987 (W.D. Ky. Oct. 17, 2022).*
Defendant claimed she was lost and was stopped by police, blocking her exit. [Oversolicitously,] the court opines the officer probably thought he did nothing wrong but this was a seizure in defendant’s mind, and it was without reasonable suspicion. No reasonable person would think she was free to leave. State v. Eagle, 2022-NCCOA-680, 2022 N.C. App. LEXIS 711 (Oct. 18, 2022):
A lawyer is the target of a search warrant. The government was using a taint team (or “filter team”) to review the materials for privileged matters. The lawyer proposed a more restrictive approach, and the government agreed with part of it. The government would not agree with the lawyer making the privilege determination himself. The court declines to follow In re Search Warrant Issued June 13, 2019, 942 F.3d 159 (4th Cir. 2019), because that case was far more egregious on the facts. Moreover, the lawyer doesn’t have a constitutional right to participate in the initial document review. In re Search of the Person of O’Donovan, 2022 U.S. Dist. LEXIS 189199 (D. Mass. Oct. 17, 2022):
A 14-year-old kidnapping victim called 911 that she was taken three days earlier, and defendant was finally detained as a result. His phone was seized and a warrant obtained. The seizure of the warrant was reasonable based on all the police knew, and the search warrant was issued with probable cause. Child porn of the kidnap victim was found and not suppressed. United States v. Watson, 2022 U.S. Dist. LEXIS 188593 (M.D. Pa. Oct. 14, 2022).
Defendant was talking to a teenage friend in a park when he was surrounded by three officers on bikes who started questioning him. They learned he was a convicted sex offender and couldn’t be in the park. Two years later he was charged. He pled his Sixth Amendment and Fourth Amendment rights were violated. The court agreed on the Sixth Amendment. The dissent’s full discussion of his Fourth Amendment rights is essentially agreed to, but it is unnecessary to decide. He was seized in the park when he was surrounded by officers and no reasonable person would have thought he was free to leave. State v. Hintze, 2022 Utah App. LEXIS 121 (Oct. 14, 2022).*
It is unclear why the affiant officer didn’t include the source of a cell phone number in the affidavit for the search warrant, but it doesn’t defeat probable cause on the totality. It wasn’t bad enough to apply the exclusionary rule. State v. Bedsore, 2022-Ohio-3693, 2022 Ohio App. LEXIS 3492 (12th Dist. Oct. 17, 2022).*
After enforcement of an administrative subpoena, there may be a final order. After an execution of an administrative warrant, however, there usually isn’t because there are processes left with the agency and in court. In re Establishment Inspection of Anthony Marano Co., 2022 U.S. App. LEXIS 28802 (7th Cir. Oct. 18, 2022):
The Conversation: What is Fog Reveal? A legal scholar explains the app some police forces are using to track people without a warrant by Anne Toomey McKenna (“Government use of Fog Reveal highlights a problematic difference between data privacy law and electronic surveillance law in the U.S. It is a difference that creates a sort of loophole, permitting enormous quantities of personal data to be collected, aggregated and used in ways that are not transparent to most persons. That difference is far more important in the wake of the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision, which revoked the constitutional right to an abortion. Dobbs puts the privacy of reproductive health information and related data points, including relevant location data, in significant jeopardy.”)
Posted inSurveillance technology|Comments Off on The Conversation: What is Fog Reveal? A legal scholar explains the app some police forces are using to track people without a warrant
“Eli Martinez spent four and a half days in custody while he tried to explain to his jailers that his brother, Hector M. Rodriguez, was the one described in an arrest warrant. After Martinez was released, he sued two probation officers. He argued that they violated his right to due process. But the district court entered summary judgment for the probation officer defendants, concluding that they had investigated Martinez’s claims of innocence and were at most negligent for not figuring things out faster. [¶] We affirm. Although defendants could have improved aspects of their investigation, Martinez has not provided evidence showing that they were deliberately indifferent to his claims of mistaken identity and therefore violated his right to due process.” Martinez v. Santiago, 2022 U.S. App. LEXIS 28715 (7th Cir. Oct. 17, 2022).*
“The totality of the circumstances present here indicate that the deadly threat posed by Allen could have transformed into deadly action in a split second. The Fourth Amendment does not require an officer to make that gamble. See Thornton v. City of Columbus, 727 F. App’x 829, 837-38 (6th Cir. 2018). Thus, Huff’s use of deadly force was reasonable, his actions did not violate Francis’ Fourth Amendment rights, and Huff is entitled to qualified immunity.” Francis v. Huff, 2022 U.S. App. LEXIS 28595 (6th Cir. Oct. 14, 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.
