When there is reasonable suspicion a driver is armed, a protective sweep of his vehicle is permitted even though he’s outside of it. United States v. Dabney, 2022 U.S. App. LEXIS 21400 (8th Cir. Aug. 3, 2022).
Family member was arrested, then he committed suicide in the holding cell. “At no point has Jump presented us with a closely analogous case putting these officers on notice that their conduct violated the Fourth Amendment. He certainly has not shown any case law establishing what constitutes probable cause under the Wisconsin statutes for battery or even domestic abuse. We’ve seen no case in which officers confronted with these disturbing facts—a defenestrated man below an open window of an apartment containing broken glass and drops of blood in the early morning hours—were found to have violated the Fourth Amendment by arresting someone for battery.” Jump v. Vill. of Shorewood, 2022 U.S. App. LEXIS 21314 (7th Cir. Aug. 2, 2022).*
The federal legalization of hemp does not immunize the smell of marijuana which could be hemp during a traffic stop. State v. Luckett, 2022 Iowa App. LEXIS 602 (Aug. 3, 2022).*
Posted inProbable cause, Protective sweep|Comments Off on CA8: Protective sweep of vehicle on RS reasonable even if def standing outside
A DA advising police on a second search warrant was prosecutorial, not investigatory, for immunity purposes. Haworth v. City of Walla Walla, 2022 U.S. App. LEXIS 21370 (9th Cir. Aug. 2, 2022).
Local court rule for drug testing of bailbondsman on demand is dismissed for lack of Art. III standing. There’s no showing testing is imminent. Grumpy’s Bail Bonds, LLC v. Rutherford Cty., Tenn., 2022 U.S. Dist. LEXIS 137000 (M.D. Tenn. Aug. 2, 2022).
Putting a police bodycam in the complaint invites the court to review it. J.K.J. v. City of San Diego, 2022 U.S. App. LEXIS 21306 (9th Cir. Aug. 2, 2022).*
Seeing the grip of a handgun from defendant’s waistband was reasonable suspicion he was armed. United States v. Capozzoli, 2022 U.S. Dist. LEXIS 137103 (E.D. Mich. Aug. 2, 2022).*
The Fourth Amendment does not require medical personnel participate in a prison strip search. Graham v. Wright, 2022 U.S. Dist. LEXIS 136026 (E.D. Cal. Aug. 1, 2022).
Defendant’s stop for late night knocking on the door of a house where he was unknown was reasonable. The smell of marijuana during the stop was then probable cause. State v. Bates, 2022 Kan. LEXIS 91 (July 29, 2022).*
The smell of PCP during a traffic stop was probable cause for a vehicle search. United States v. Taylor, 2022 U.S. Dist. LEXIS 136211 (E.D. Pa. July 29, 2022).*
Defendants’ setting up a roadblock at the request of pursuing officers coming into his city to attempt to stop a fleeing motorcyclist was reasonable. Lankford v. City of Plumerville, 2022 U.S. App. LEXIS 21223 (8th Cir. Aug. 2, 2022).*
“Based on a substantial history of heavy regulation, we conclude that the nude dancing and adult entertainment industry is closely regulated for Fourth Amendment purposes so that no reasonable expectation of privacy could exist for the proprietor. From limitations concerning the hours of operation, to zoning restrictions, to prohibitions on their ability to serve alcohol, to rules governing the very size of the establishments, adult entertainment businesses are routinely — and pervasively — regulated by cities and municipalities.” The club’s reasons against it are rejected. Club Madonna Inc. v. City of Miami Beach, 2022 U.S. App. LEXIS 21160 (11th Cir. Aug. 1, 2022).
“This case involves allegations that Carrie Weisenburger restrained, secluded, and abused her students as a teacher in a special education classroom. The students’ parents sued Weisenburger, along with Aberdeen School District (“ASD”) and a host of its administrative officials, on their children’s behalf under 42 U.S.C. § 1983. The district court denied Weisenburger’s assertion of qualified immunity from claims for infringing the Fourth and Fourteenth Amendment rights of three students, identified as A.A., B.B., and C.C. We affirm in part and reverse in part.” They stated a Fourth Amendment claim but not a Fourteenth Amendment claim. Qualified immunity denied on Fourth Amendment claim. Doe v. Aberdeen Sch. Dist., 2022 U.S. App. LEXIS 21118 (8th Cir. Aug. 1, 2022).
Posted inSeizure|Comments Off on CA11: “the nude dancing and adult entertainment industry is closely regulated” for 4A purposes
“Based on the record developed at the suppression hearing, the Court finds that Detective McGee did not have reasonable suspicion to seize Defendant for the following reasons: (1) the Court does not credit Detective McGee’s testimony regarding the odor of marijuana; and (2) Defendant’s behavior did not provide an objective basis for reasonable suspicion.” United States v. Martin, 2022 U.S. Dist. LEXIS 135686 (W.D. Pa. Aug. 1, 2022):
“Finding no merit in any of Marvin Harris’ arguments, we affirm the order below holding him in indirect civil contempt for refusing to provide the passcode to access his iPhone in connection with a search warrant.” He has yet to be charged with a crime, and his Fourth Amendment claim is premature. Harris v. State, 2022 Fla. App. LEXIS 5232 (Fla. 2d DCA July 29, 2022).
This consent to search granted while defendant was sitting in a patrol car was voluntary. “In this case, the Court finds that the location of the detention inside the patrol car did not impact the voluntariness of Defendant’s consent. While Defendant twice remarked that he had never been inside a police car before, Defendant did not seem unduly nervous or stressed. Defendant spoke amiably with the trooper and initiated questions about the effect of the warning citation on his driver’s license renewal. Trooper Cotner was polite and spoke cordially to Defendant.” United States v. Cedillo, 2022 U.S. Dist. LEXIS 134865 (E.D. Tenn. June 3, 2022), adopted, 2022 U.S. Dist. LEXIS 132496 (E.D. Tenn. July 26, 2022).
Police entered defendant’s home during a bona fide emergency. Defense counsel wasn’t ineffective for not raising a meritless argument. United States v. Veras-Velasquez, 2022 U.S. Dist. LEXIS 134849 (E.D. Pa. July 28, 2022).*
Posted inCell phones, Consent, Ineffective assistance|Comments Off on FL2: Civil contempt for not providing cell phone passcode affirmed; 4A issue not yet ripe because no charges yet filed
Bivens should not be extended to an immigration detention. K.O. v. Sessions, 2022 U.S. App. LEXIS 20984 (D.C. Cir. July 29, 2022).
Plaintiff filed a § 1983 case against his prosecution which fails on Younger grounds. As to an illegal search claim, it is disposed of on qualified immunity and failure to state anything close to a claim without even discussing Heck or Younger. Kabutu v. Short, 2022 U.S. App. LEXIS 20997 (10th Cir. July 29, 2022).
Defendant makes a rule-based challenge to a search. “Because the Fourth Amendment issue lacks cogent reasoning and the issue raised under Article I, § 11 is not separately analyzed, we find them waived.” Weed v. State, 2022 Ind. App. LEXIS 264 (July 29, 2022).*
Defendant was a suspect in a series of 35 carjackings where the car was shortly thereafter used in an armed robbery. A geofence warrant was used to track defendant at the scenes of the robberies. After discussing the case law on geofence warrants, “based on the circumstances of this case, the undersigned sees no need to journey into the quagmire of geofence search warrants because even if Davis had a legitimate expectation of privacy in the area searched pursuant to the Google II Warrant, the Leon good faith exception applies. See Leon, 468 U.S. at 913. ‘[T]he exclusionary rule does not apply when the police conduct a search in “objectively reasonable reliance” on a warrant later held invalid.’ Davis v. United States, 564 U.S. 229, 239 (2011) (quoting Leon, 468 U.S. at 922).” United States v. Davis, 2022 U.S. Dist. LEXIS 134979 (M.D. Ala. July 1, 2022), adopted, 2022 U.S. Dist. LEXIS 134130 (M.D. Ala. July 28, 2022). [And, once again, the good faith exception stymies development of Fourth Amendment law.]
The smell of burnt marijuana coming from a car is probable cause even with medical marijuana. State v. Grant, 2022-Ohio-2601, 2022 Ohio App. LEXIS 2466 (2d Dist. July 29, 2022).
A protective sweep of a house was reasonable where the arrest was inside. United States v. Cedillo, 2022 U.S. Dist. LEXIS 132496 (E.D. Tenn. July 26, 2022);* United States v. Ackerman, 2022 U.S. Dist. LEXIS 134980 (N.D. Iowa July 29, 2022)* (also an issue of consent because help was sought finding a cell phone inside).
An intimidating police presence is not a seizure. Tyson v. Cty. of Sabine, 2022 U.S. App. LEXIS 20902 (5th Cir. July 28, 2022).
Defense counsel can’t be ineffective for not taking depositions in his criminal case to develop his search and seizure issue. Moreover, after the suppression hearing on defendant’s cell phone, the government decided not to use the product of that search. Therefore, no prejudice because the issue is moot. United States v. McBride, 2022 U.S. Dist. LEXIS 133833 (E.D. Va. July 27, 2022).*
Defendant doesn’t get return of his smartphone until the government decides whether it is trial evidence or not. United States v. Dygert, 2022 U.S. Dist. LEXIS 133843 (W.D.N.Y. July 11, 2022).
“Whether Deputy Murray received the information from an anonymous source or a confidential source is immaterial.” This is not a Franks issue. United States v. Lester, 2022 U.S. Dist. LEXIS 134197 (W.D. Tenn. July 28, 2022).*
Officers entered the home on an arrest warrant and consent. Inside, they saw a gun case. A search of a small closed container in the gun case was reasonable incident to arrest. If it was in a dresser drawer or elsewhere in the house, not so. United States v. Smith, 2022 U.S. Dist. LEXIS 133728 (N.D. Ohio July 27, 2022).
Pole camera surveillance of both front and back of defendant’s home was reasonable. United States v. Dennis, 2022 U.S. App. LEXIS 20807 (5th Cir. July 27, 2022).
The traffic stop was diligently pursued and not delayed. United States v. Garrett, 2022 U.S. App. LEXIS 20846 (2d Cir. July 28, 2022).*
In an IAC claim for failure to challenge entry onto the curtilage, the case is remanded to the district court for additional findings on whether the curtilage was violated and the prejudice from failure to challenge it. Chong v. United States, 2022 U.S. App. LEXIS 20838 (9th Cir. July 27, 2022).*
For defense lawyers wondering about the increase in searches of legal mail, this case involved a search warrant of the house of someone suspected to sending in drug laced fake legal papers into federal prisons. Barker v. United States, 2022 U.S. Dist. LEXIS 133681 (N.D.W.Va. July 27, 2022).
Two years after a seizure, a Bivens claim for recovery of property was filed. It was properly dismissed for failure to state a claim. The search warrant isn’t even challenged for lack of probable cause. Fosnight v. Jones, 2022 U.S. App. LEXIS 20743 (7th Cir. July 27, 2022).*
The smell of marijuana from a car during a valid traffic stop is probable cause. Here, the passenger in the back seat admitted he was carrying, too. State v. Mitchell, 2022-Ohio-2564, 2022 Ohio App. LEXIS 2423 (1st Dist. July 27, 2022).*
“When executing the search warrant, the police located the guns and drugs. … A defense motion to suppress would have been frivolous. Thus, counsel was not ineffective in failing to file one or in failing to get the person’s name from the traffic stop.” No CoA either. McNeil v. United States, 2022 U.S. Dist. LEXIS 133596 (E.D.N.C. July 27, 2022).*
The government had sufficient justification for a no-knock warrant knowing defendant had three guns in the house. And, even if it didn’t, Michigan v. Hudson shows there’s no suppression remedy. United States v. Dexter, 2022 U.S. Dist. LEXIS 133497 (D. Minn. June 6, 2022).
Plaintiff’s mere refusal to cooperate with the officers did not constitute obstruction, so there was no probable cause for her arrest. Webster v. Westlake, 2022 U.S. App. LEXIS 20681 (8th Cir. July 27, 2022).*
Plaintiffs’ arrest was with at least arguable probable cause, and the officers get qualified immunity. Brown v. City of St. Louis, 2022 U.S. App. LEXIS 20686 (8th Cir. July 27, 2022).*
Consent was shown on the video. Defendant was asked multiple times, and he explicitly consented twice, and the second was to make sure there was no miscommunication. United States v. Cedillo, 2022 U.S. Dist. LEXIS 132496 (E.D. Tenn. July 26, 2022).*
The hearing here got behind the boilerplate of the police reports and results in the stop being without reasonable suspicion, and it is suppressed. United States v. Wright, 2022 U.S. Dist. LEXIS 133312 (D.N.J. July 27, 2022):
Mere membership in a conspiracy of a drug trafficking organization does not show nexus to that conspirator’s home. Being the leader, however, does. United States v. Mubarak, 2022 U.S. Dist. LEXIS 133244 (D. Mass. July 27, 2022):
The search authorization for defendant’s cell phone for location data and images for a particular date was supported by probable cause. The Cellebrite download included 200,000 images, far more than the day in question. While looking for the day in question, child pornography was seen, too. The search stopped and another search authorization was obtained. While concerning in downloading 200,000 photographs when looking for one day’s worth, the process as a whole was reasonable, and the exclusionary rule would not be applied. United States v. Shields, 2022 CCA LEXIS 448 (N-M Ct. Crim. App. July 27, 2022).*
“Preliminarily, the specific arguments the defendant now makes to support his contention that the County Court erred in denying his motion to controvert a search warrant are unpreserved for appellate review, since they were not raised before the suppression court …. In any event, the court properly concluded that the search warrant was supported by probable cause ….” People v. Cardona, 2022 NY Slip Op 04733, 2022 N.Y. App. Div. LEXIS 4622 (2d Dept. July 27, 2022).*
Posted inCell phones, Overseizure, Waiver, Warrant execution|Comments Off on N-M: Cell phone search authorization for one day produced 200,000 images; but still not unreasonable because of how it was done
Defendant and another person in cars from opposite directions stopped on a road with no other cars to chat [as in: police do that all the time, usually off the road, like at the EV charging station near my house]. The officer decided that he was impeding traffic and pursued him up his long driveway and blocked the car. The stop was made on an unreasonable mistake of law. It’s not impeding traffic when there’s no other traffic. The stop in defendant’s driveway led to admissions and observations that must be suppressed. People v. Lucynski, 2022 Mich. LEXIS 1363 (July 26, 2022). from the syllabus:
The FAA rule requiring all drones when flying to transmit information about themselves violates no reasonable expectation of privacy. They operate in public airspace, which the federal government controls, and the rule requires a digital license plate but only electronically readable. The information transmitted is not generally available. Brennan v. Dickson, 2022 U.S. App. LEXIS 20973 (D.C.Cir. July 29, 2022):
USA Today: A lawyer in your pocket: Apps aim to change traffic stops forever with legal advice, live-streaming (“A review released this year of national police data gathered by the nonprofit Mapping Police Violence found police in the U.S. have killed nearly 600 people during traffic stops since 2017. But having easy access to your rights or legal support can offer a sense of protection during any traffic stop. The option to record allows the driver to have proof of the stop from their perspective — app creators say that’s protection against an inaccurate police account or evidence for a court date. Sometimes those videos go viral.”)
Posted inUncategorized|Comments Off on USA Today: A lawyer in your pocket: Apps aim to change traffic stops forever with legal advice, live-streaming
Posted inVideo surveillance|Comments Off on Reason: Pennsylvania Poaching Police Warrantlessly Installed Camera on Private Land To Surveil Hunting Club
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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.
