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NLJ: Will Judicial Polarization Lead to More Strategic ‘Unpublished’ Opinions?

Posted on August 29, 2022 by Hall

NLJ: Will Judicial Polarization Lead to More Strategic ‘Unpublished’ Opinions? (“Because unpublished opinions aren’t precedential and don’t typically get reviewed by full courts, some court watchers worry that panels could use them to get their desired outcome in a particular case without making changes to the law.”)

Posted in Uncategorized | Comments Off

NE: Changing the 4A argument between hearing and appeal is waiver

Posted on August 29, 2022 by Hall

Defendant’s Fourth Amendment ineffective assistance of counsel claim is presented on appeal differently than at the hearing level, and that’s waiver. State v. Lessley, 312 Neb. 316 (2022).

The affidavit for search warrant was issued with probable cause under the Fourth Amendment, and state constitution provides the same protection. State v. Mansulla, 2022 N.H. LEXIS 104 (Aug. 25, 2022) (unpublished).*

Defendant’s Fourth Amendment ineffective assistance of counsel claim fails for lack of standing. United States v. Jones, 2022 U.S. Dist. LEXIS 153751 (N.D. Okla. Aug. 26, 2022).*

The product of a search warrant is discussed after a detention hearing. No mention of the legality of the search, just that the “government’s case appears strong.” United States v. Gonzalez, 2022 U.S. Dist. LEXIS 153843 (D. Mass. Aug. 26, 2022).*

Posted in Probable cause, Standing, Waiver | Comments Off

CA11: § 1983 suit that only claimed violations of state law did not state 4A claim

Posted on August 28, 2022 by Hall

Plaintiff’s § 1983 suit that only claimed violations of state law did not state a Fourth Amendment claim. Lyons v. City of Abbeville, Ala., 2022 U.S. App. LEXIS 24110 (11th Cir. Aug. 26, 2022).

Defendant does not get return of property under 41(g) because it’s still evidence. The search started as a state tax search and a grenade was found, so ATF was called. United States v. Toombs, 2022 U.S. Dist. LEXIS 153451 (D. Kan. Aug. 25, 2022).*

HUD housing prohibitions against smoking in its buildings does not authorize searches. NYC C.L.A.S.H., Inc. v. Fudge, 2022 U.S. App. LEXIS 24020 (D.C. Cir. Aug. 26, 2022).*

A suppression motion filed during sentencing was both untimely and unmeritorious. United States v. Johnson, 2022 U.S. App. LEXIS 24037 (7th Cir. Aug. 26, 2022).*

Posted in § 1983 / Bivens, Administrative search, Rule 41(g) / Return of property, Waiver | Comments Off

D.D.C.: SW for documents permitted search of any place they could be, not just where def said they were

Posted on August 27, 2022 by Hall

Officers executing a search warrant for evidence of animal abuse in Washington D.C. used a battering ram on the door without waiting for defendant to come to the door. They had a warrant for veterinary documents on the animals and they were directed to a closet but also searched another closet finding a gun. The apparent abuse of a no-knock warrant had nothing to do with the finding of the gun. Motion to suppress denied. United States v. Ginyard, 2022 U.S. Dist. LEXIS 153298 (D.D.C. Aug. 25, 2022).

The delayed search of defendant’s cell phone after it was seized at the border was not unreasonable. United States v. Quarles, 2022 U.S. Dist. LEXIS 153348 (M.D. Fla. Aug. 25, 2022).*

The probation search of defendant’s property was based on reasonable suspicion and was reasonable. United States v. Huber, 2022 U.S. Dist. LEXIS 153391 (N.D. Ohio Aug. 22, 2022).*

Posted in Cell phones, Probation / Parole search, Scope of search | Comments Off

CA5: Multiple cell phones found with a quantity of drugs creates inference phones are for drug trafficking

Posted on August 26, 2022 by Hall

When multiple cell phones and drugs are found together in a car, it’s a reasonable conclusion the cell phones are related to drug trafficking. The search of the phones reasonably led to child porn. United States v. Morton, 2022 U.S. App. LEXIS 23735 (5th Cir. Aug. 22, 2022).

Just because the officer only had information that defendant was involved in misdemeanor possession doesn’t mean the investigation should cease under Virginia v. Moore. United States v. Logan, 2022 U.S. Dist. LEXIS 153497 (N.D. Ohio Aug. 25, 2022).*

“In sum, while the warrants contemplated a broad set of searches, the nature of the scheme for which probable cause was established—a conspiracy lasting more than one year involving numerous suspects and comprising multiple violent acts and possible motives—and the totality of the circumstances supporting probable cause made a broad search constitutionally permissible.” United States v. Zottola, 2022 U.S. Dist. LEXIS 153418 (E.D.N.Y. Aug. 25, 2022).*

Posted in Cell phones, Nexus, Particularity | Comments Off

E.D.Tenn.: Walmart Pay records do not require SW

Posted on August 26, 2022 by Hall

A search warrant isn’t needed for investigators to access information from Walmart Pay. Carpenter doesn’t apply. United States v. Whipple, 2022 U.S. Dist. LEXIS 153126 (E.D. Tenn. Aug. 25, 2022).

A claim that the officer presented false information to get the warrant was not newly discovered for a successor habeas. In re Davis, 2022 U.S. App. LEXIS 23923 (11th Cir. Aug. 25, 2022).

There was reasonable suspicion for defendant’s stop because of past actions and what happened at the time. United States v. Cedeño-Olivencia, 2022 U.S. Dist. LEXIS 152235 (D.P.R. Aug. 23, 2022).*

The search warrant was issued with probable cause, and the good faith exception applies. It was for child pornography, and two months wasn’t stale. United States v. Kluge, 2022 U.S. Dist. LEXIS 152433 (M.D. Fla. Aug. 24, 2022).*

Posted in Probable cause, Reasonable suspicion, Subpoenas / Nat'l Security Letters, Third Party Doctrine | Comments Off

E.D.Tex.: Burden on defense to show GFE doesn’t apply

Posted on August 26, 2022 by Hall

The good faith exception is determined before probable cause. If there is objective good faith, the rest doesn’t matter. The burden is on the defense to show the good faith exception doesn’t apply. United States v. Ledesma, 2022 U.S. Dist. LEXIS 152311 (E.D. Tex. Aug. 24, 2022)*:

Continue reading →

Posted in Uncategorized | Comments Off

MN: When prosecution shows private search doctrine applies, defense has burden to show government action

Posted on August 26, 2022 by Hall

When a defendant moves to suppress the evidence obtained from a warrantless search and the State proves that the private search doctrine applies, the burden to show that the private party was acting on behalf of the government falls on the party seeking suppression of the evidence. The Rules of Evidence do not apply with full force during suppression hearings. The warrantless search of defendant’s personal online cloud storage account did not violate the Fourth Amendment because the search by law enforcement officers did not exceed the scope of the private search performed by an employee of the online cloud storage account company. State v. Pauli, 2022 Minn. LEXIS 337 (Aug. 24, 2022).

A man in a red pickup truck was suspected of casing a convenience store, and the police pulled up on it. Then the occupant fled. The investigation put defendant in possession of the truck at the time (his brother owned it), and this was abandonment. Defendant’s efforts to distance himself from being at the scene only underscore his lack of a reasonable expectation of privacy. United States v. Tsatenawa, 2022 U.S. Dist. LEXIS 151843 (W.D. Tex. Aug. 24, 2022).

Officers on patrol passed a car parked on the street and thought they smelled marijuana coming from it. They turned around and came back and stopped along side it. The exchange became a stop and it was with reasonable suspicion. United States v. Lee, 2022 U.S. Dist. LEXIS 152057 (N.D. Ill. Aug. 24, 2022).*

Posted in Abandonment, Burden of proof, Private search, Seizure | Comments Off

E.D.Pa.: Work product privilege in product of a SW is burden of defense

Posted on August 26, 2022 by Hall

A special master reviewed the product of the search warrant for work product materials. The defendants have the burden of proof on work product, and they didn’t meet it. United States v. Vepuri, 2022 U.S. Dist. LEXIS 151833 (E.D. Pa. Aug. 24, 2022).

Defendant’s search claim wasn’t presented below, and it should be treated as waived. Going to the merits anyway, the search was justified by the automobile exception. Pollard v. State, 2022 Del. LEXIS 255 (Aug. 24, 2022).*

There was probable cause for this vehicle search based on an informant’s information. United States v. Reza, 2022 U.S. Dist. LEXIS 151626 (D.N.M. Aug. 23, 2022).*

The search warrant affidavit established nexus for the place to be searched. Also, the good faith exception applies. United States v. Esherick, 2022 U.S. Dist. LEXIS 151778 (D. Minn. Aug. 24, 2022).*

Posted in Automobile exception, Cell site location information, Nexus, Privileges | Comments Off

NJ: Arrest warrant executed at home of third-party requires SW

Posted on August 25, 2022 by Hall

Police entering defendant’s neighbor’s house to arrest him when he was visiting violated the Fourth Amendment. There was no exigency justifying it. State v. Bookman, 2022 N.J. LEXIS 678 (Aug. 24, 2022).

Even if the knock-and-announce rule applies to entries for an arrest, the government showed here that there was a officer safety justification for not announcing. United States v. Terrazas, 2022 U.S. Dist. LEXIS 150829 (W.D. Tex. Aug. 23, 2022).

There was probable cause for this vehicle search based on an informant’s information. United States v. Reza, 2022 U.S. Dist. LEXIS 151626 (D.N.M. Aug. 23, 2022).*

Posted in Arrest or entry on arrest, Automobile exception, Knock and announce | Comments Off

N.D.Ohio: PC showing raises the inference a cell phone was involved in crime for SW

Posted on August 25, 2022 by Hall

“The affidavit also attempts to establish the link between the use of cell phones and the drug trafficking under investigation. Metzger’s warning to McFaul on social media, which presumably was accomplished through the use of an electronic device like a cell phone or tablet, shows not only his connection to the DTO but his own use of an electronic device to further the mission of the DTO. Additionally, other reasonable inferences can be drawn from the facts contained in the affidavit. As previously noted, the affidavit detailed multiple drug runs where McFaul met different individuals at various locations and times to receive or distribute controlled substances. (See, e.g., ¶ 32.) This activity gives rise to a common sense inference that McFaul and others coordinated their actions and used their cell phones to do so.” United States v. Metzger, 2022 U.S. Dist. LEXIS 151460 (N.D. Ohio Aug. 23, 2022).

The smell of marijuana in a rental car that just crossed the state line into Arkansas was probable cause for a search despite state medical marijuana and federal legalization of hemp. United States v. Nava, 2022 U.S. Dist. LEXIS 150632 (W.D. Ark. Aug. 1, 2022), adopted, 2022 U.S. Dist. LEXIS 150288 (W.D. Ark. Aug. 22, 2022).*

There was probable cause for defendant’s arrest for threatening a person with a gun, and search incident of his backpack on him at the time was reasonable. United States v. Rodgers, 2022 U.S. Dist. LEXIS 151547 (E.D. Mich. Aug. 24, 2022).*

Posted in Arrest or entry on arrest, Cell phones, Nexus, Probable cause, Search incident | Comments Off

N.-M.: Forum shopping rejected because USMJ also had jurisdiction over search warrant

Posted on August 25, 2022 by Hall

NCIS presented a search authorization that a military judge later determined was likely lacking in the showing of probable cause. To remedy that, NCIS did a new affidavit for warrant and presented it to a USMJ also with potential jurisdiction over the offense. This suggested forum shopping, but the USMJ did have jurisdiction, so the exclusionary rule would not be applied. United States v. Kunishige, 2022 CCA LEXIS 494 (N.-M. Ct. Crim. App. Aug. 23, 2022) (unpublished):

Continue reading →

Posted in Uncategorized | Comments Off

N.D.Ohio: University exam proctor’s requirement of room scan before video test violates REP under 4A

Posted on August 24, 2022 by Hall

The proctor of this university examination on video required a room scan to prove the student was alone. The room scan violated plaintiff’s reasonable expectation of privacy. CSU’s reliance on Wyman v. James is rejected. That case is 51 years old and technology has outpaced it. Ogletree v. Cleveland State Univ., 2022 U.S. Dist. LEXIS 150513 (N.D. Ohio Aug. 22, 2022).

ATF describes fuel filters and solvent traps for firearms as silencers in a confidential bulletin. Still, that’s enough for a finding of probable cause here. United States v. Hay, 2022 U.S. App. LEXIS 23484 (8th Cir. Aug. 23, 2022).

Obstructing the URL on the bottom of a Pennsylvania license plate reasonably justifies a traffic stop. Commonwealth v. Ruffin, 2022 PA Super 146, 2022 Pa. Super. LEXIS 363 (Aug. 23, 2022).* (Spotlight PA: Your license plate frame is enough for police in Pa. to pull you over, court rules (“Critics argue the decision, by a three-judge Superior Court panel, raises concerns about racial bias and other potential abuses of power by law enforcement, and could give police another pretext to pull over a driver for a seemingly trivial reason, among other wide-reaching and unintended consequences.”)

Posted in Probable cause, Reasonable expectation of privacy, Reasonable suspicion, Video surveillance | Comments Off

S.D.Fla.: Threats against LEOs involved in execution of SW requires affidavit remain sealed

Posted on August 24, 2022 by Hall

Public threats against FBI agents involved in the search requires leaving the affidavit for the search warrant under seal. In re Warrant, 2022 U.S. Dist. LEXIS 150388 (S.D. Fla. Aug. 22, 2022).

Defendant’s traffic stop was factually based and not pretextual. The stop was reasonably extended on reasonable suspicion. Watson v. State, 2022 Ga. App. LEXIS 394 (Aug. 22, 2022).*

This school resource officer does not get qualified immunity for his alleged excessive force against a smaller 13-year-old student. Richmond v. Badia, 2022 U.S. App. LEXIS 23406 (11th Cir. Aug. 22, 2022).*

Plaintiff’s complaint over his parole search fails. It was reasonable based on plaintiff’s own facts. Houghtaling v. Downes, 2022 U.S. Dist. LEXIS 149759 (W.D.N.Y. Aug. 22, 2022).*

Posted in Pretext, Probation / Parole search, Qualified immunity, Warrant papers | Comments Off

CA6: No QI for 3 strip searches a day for inmate in segregation

Posted on August 22, 2022 by Hall

Plaintiff’s prison warden denied qualified immunity for ordering three strip searches a day on plaintiff when he was in segregation. Fugate v. Erdos, 2022 U.S. App. LEXIS 23208 (6th Cir. Aug. 18, 2022).

“The defendant officers were attempting to locate a child sexual abuse suspect when they came across Brad Grant, a person unrelated to the investigation, at a property where the officers expected to find the suspect. The officers, Officers Wilson and Frederick, conducted a warrantless entry and search of the home, and the officers encountered Grant as he was experiencing a mental health crisis and threatening himself with a shotgun. Officer Frederick shot and killed Grant. Grant’s estate sued under 42 U.S.C. § 1983, alleging Fourth Amendment violations from the unlawful entry of the home and the use of excessive force. As the district court concluded, the officers are not entitled to qualified immunity on the unlawful entry and search claim, but they are entitled to qualified immunity on the excessive force claim based on the lack of violation of clearly established law.” Grant v. Wilson, 2022 U.S. App. LEXIS 23207 (6th Cir. Aug. 18, 2022).*

Defendant’s Fourth Amendment appellate issues weren’t preserved after his guilty plea. United States v. Moralez, 2022 U.S. App. LEXIS 23211 (6th Cir. Aug. 18, 2022).*

Posted in Excessive force, Prison and jail searches, Qualified immunity, Waiver | Comments Off

W.D.Pa.: A request to show hands requires RS

Posted on August 22, 2022 by Hall

The facts not being in dispute, no hearing was required on defendant’s motion to suppress. A request to show hands required reasonable suspicion. United States v. Chambers, 2022 U.S. Dist. LEXIS 148692 (W.D. Pa. Aug. 19, 2022).

Defendant alluded to false statements in support of probable cause, but no specific Franks challenge was made. At any rate, the information wasn’t material to probable cause. United States v. Cutbank, 2022 U.S. Dist. LEXIS 148686 (D. Minn. Aug. 19, 2022).*

Defendant’s objection to the search warrant return wasn’t timely. Besides, what’s the prejudice? United States v. King, 2022 U.S. Dist. LEXIS 148690 (W.D. Pa. Aug. 19, 2022).*

Defendant challenges some facts as not supporting a probable cause finding, but excluding them anyway doesn’t show a lack of probable cause. United States v. Kubwa, 2022 U.S. Dist. LEXIS 148909 (E.D. Ky. Aug. 19, 2022).*

Posted in Franks doctrine, Motion to suppress, Probable cause, Reasonable suspicion | Comments Off

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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me
"Life is not a matter of holding good cards, but of playing a poor hand well."
–Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.”
—Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property."
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."

—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.”
– John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.

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