Texas high court finally approves of anticipatory warrants. Parker v. State, 2022 Tex. Crim. App. LEXIS 470 (July 27, 2022).
On his motion for reconsideration, defendant’s Franks challenge still fails. There’s probable cause without the challenged information. “Courts long have recognized that ‘motions for reconsideration should be granted sparingly and may not be used to rehash arguments which have already been briefed by the parties and decided by the Court.’ … Here, Defendant continues to argue issues that have been fully briefed and argued extensively. The Court already has decided those issues, and Defendant’s disagreement with the Court’s ruling is not a ground for reconsideration.” United States v. Rogers, 2022 U.S. Dist. LEXIS 132569 (W.D. Pa. July 26, 2022).*
Defense counsel wasn’t ineffective for not challenging the search warrant here because there was clearly probable cause. Smith v. United States, 2022 U.S. Dist. LEXIS 132429 (M.D. Tenn. July 25, 2022).*
Even if the officer arrests plaintiff outside the jurisdiction, state law is irrelevant under the Fourth Amendment. The search incident to the arrest was valid. Frey v. Town of Jackson, 2022 U.S. App. LEXIS 20652 (10th Cir. July 26, 2022).
Defendant says he told the officers he put the drugs in the trunk of someone else’s car, but the suppression hearing involved his denial. He doesn’t have standing under Rakas even if he did do that. United States v. Hull, 2022 U.S. Dist. LEXIS 131690 (E.D. Wash. July 25, 2022).*
Summary judgment for the defendants in a consent search case was erroneous. There is a question for trial. Jerger v. Blaize, 2022 U.S. App. LEXIS 20539 (7th Cir. July 26, 2022).*
A statutory search prohibition for the odor of marijuana was adopted after defendant’s search but before his trial. It didn’t bar the search. Montgomery v. Commonwealth, 2022 Va. App. LEXIS 317 (July 26, 2022).*
Posted inReasonableness, Standing|Comments Off on CA10: Arrest outside officer’s jurisdiction irrelevant under 4A
There is no reasonable expectation of privacy in a police interrogation room when a suspect is talking to anybody except their lawyer. State v. Allen, 2022 Ariz. LEXIS 235 (July 26, 2022).
The defendant argues no reasonable suspicion for his stop. “The government instead argues that the interaction between the agents and the defendant was a consensual encounter, not a stop, so reasonable suspicion was not required. … For the reasons discussed below, the Court concludes that the government has not met its burden in proving that the agents did not stop the defendant’s vehicle. As a result, the lack of reasonable suspicion requires suppression of the evidence seized from the vehicle.” United States v. Ramos, 2022 U.S. Dist. LEXIS 131703 (D. Ariz. July 25, 2022).*
Here, there was plenty of reasonable suspicion for defendant’s stop. United States v. Vezina, 2022 U.S. Dist. LEXIS 131633 (D. Idaho July 22, 2022).*
Washington is an open carry state, and the allegation defendant had a weapon on him was insufficient for a stop without some showing he was a danger to others per state law. United States v. Willy, 2022 U.S. App. LEXIS 20549 (9th Cir. July 26, 2022).
Here, both the search incident doctrine and the automobile exception apply. There was probable cause for the vehicle search. United States v. Lloyd, 2022 U.S. Dist. LEXIS 131210 (E.D. Pa. July 22, 2022).*
“[T]he credible evidence presented at the evidentiary hearing demonstrated that the officers observed Thomas handling a firearm with an extended magazine in a public location, which provided them with a reasonable suspicion to stop and detain Thomas.” United States v. Thomas, 2022 U.S. Dist. LEXIS 131386 (N.D. Ill. July 25, 2022).*
The cumulation of numerous things, finally coupled with a trash pull, showed probable cause for the warrant. United States v. Steen, 2022 U.S. Dist. LEXIS 131602 (D. Mont. July 22, 2022).*
The warrant’s direction to search for a shallow grave was not particularly described, and it was found a mile away from where the warrant directed. The attachment wasn’t incorporated. Still, however, the good faith exception applies. This was negligent at worst. “[T]he executing officers’ actions in their search for the shallow grave ‘did not reflect the type of deliberate, reckless, or grossly negligent disregard for the Fourth Amendment that the exclusionary rule can effectively deter.’ … Instead, the executing officers contacted the victim to get a better idea of where the shallow grave was located.” United States v. Sierra, 2022 U.S. Dist. LEXIS 131006 (D.S.D. July 21, 2022). {If it’s a mile off, what about open fields applying?]
Defendant seeks application of a narrower rule of particularity and relies on a Fifth Circuit case, except that case was vacated for rehearing en banc. Even if it later comes out as he hopes and then gets adopted in this circuit, the good faith exception would apply anyway. United States v. Deschambault, 2022 U.S. Dist. LEXIS 131106 (D. Me. July 25, 2022).*
To show standing in a rental car rented by another under Byrd, defendant has to show that he had permission to have the rental car from the renter. Here, he failed. United States v. Daniels, 2022 U.S. App. LEXIS 20392 (4th Cir. July 25, 2022).
The Grand Rapids PD’s policy of photographing and fingerprinting people without probable cause or reasonable suspicion in a Terry stop violated the Fourth Amendment. It was a trespass on the body. Johnson v. Vanderkooi, 2022 Mich. LEXIS 1359 (July 22, 2022):
This search is governed by the Fourth Amendment, not the Indian Civil Rights Act. United States v. Porche, 2022 U.S. Dist. LEXIS 130552 (D. Mont. July 21, 2022).
The record supports the district court’s conclusion defendant wasn’t impaired when he consented to the search. United States v. Holden, 2022 U.S. App. LEXIS 20282 (4th Cir. July 22, 2022).*
The government called this a Terry stop, but it was actually supported by probable cause. United States v. Westbrook, 2022 U.S. Dist. LEXIS 130541 (S.D. Fla. July 15, 2022).*
Defendant stop was objectively with reasonable suspicion, and the officer smelled marijuana. United States v. Thomas, 2022 U.S. Dist. LEXIS 130738 (D. Minn. June 6, 2022).*
Posted inConsent, Reasonableness|Comments Off on D.Mont.: 4A controls search and seizure, not the Indian Civil Rights Act
Driver’s going in and out of consciousness at the scene of a wreck was probable cause for a blood draw. Medical treatment at ER would interfere with it. “This case presents a textbook case of exigent circumstances under Mitchell.” State v. Miller, 312 Neb. 17, 2022 Neb. LEXIS 85 (July 22, 2022):
The warrant here was for computer files created in a one week period. That was particular. United States v. Riego, 2022 U.S. Dist. LEXIS 130233 (D.N.M. July 22, 2022).
The district court’s findings of fact support the finding of exigent circumstances, and they don’t show police created exigency. United States v. Davis, 2022 U.S. App. LEXIS 20168 (5th Cir. July 21, 2022).*
The dashcam video supports the officer’s testimony defendant was stopped because he was parked in the middle of the road waving his arm and yelling. State v. Davis, 2022-Ohio-2511, 2022 Ohio App. LEXIS 2373 (2d Dist. July 22, 2022).*
There was probable cause for a search warrant for defendant’s DNA in a rape case. He got a Franks hearing, and there was no showing of reckless disregard, State v. Williams, 2022-Ohio-2517, 2022 Ohio App. LEXIS 2374 (2d Dist. July 22, 2022).*
A report that a sex offender had been around children is reasonable suspicion for a parole search of his house. United States v. Sharp, 2022 U.S. App. LEXIS 20291 (6th Cir. July 22, 2022).
“Davis contends that the search was not justified by exigent circumstances because those circumstances were created by the government. The district court determined that there were exigent circumstances and that the police did not create the exigency by engaging in or threatening to engage in conduct that violated the Fourth Amendment.” United States v. Davis, 2022 U.S. App. LEXIS 20168 (5th Cir. July 21, 2022).*
One claim in this successor habeas petition alleges failure to investigate a search claim that is undefined. Dismissed. In re Horn, 2022 U.S. App. LEXIS 20179 (11th Cir. July 21, 2022).*
There was probable cause for defendant’s stop for traffic offenses. United States v. Lambert, 2022 U.S. Dist. LEXIS 129930 (S.D.N.Y. July 21, 2022).*
Officers planted a video camera hidden in a fake fire alarm in defendant’s apartment building hallway aimed at his door to record his comings and goings. The government argues whether this was reasonable doesn’t need to be decided because, even excluding it from the affidavit for the warrant, probable cause remains. True, but also considering the merits of the search, the court finds the good faith exception applies. United States v. Mayo, 2022 U.S. Dist. LEXIS 129555 (S.D. Iowa July 19, 2022):
Defendant was stopped for an LPN that didn’t match the vehicle. Defendant’s name came back as having 20 felonies, and the officer recognized him from arresting him for drugs two weeks earlier. Before any officer mentioned searching the vehicle, defendant said there was no probable cause for a search. All this added up to probable cause on the totality. United States v. Sellers, 2022 U.S. Dist. LEXIS 129416 (M.D. Ala. July 21, 2022).*
The search warrant was issued with probable cause, so the good faith question doesn’t even need to be reached. United States v. Gamble, 2022 U.S. Dist. LEXIS 129296 (W.D. Pa. July 21, 2022).*
Defendant’s stop was reasonable. He matched the description of a burglary suspect, and he was walking down the street smoking a joint. When stopped, he admitted he had a gun. United States v. Jones, 2022 U.S. Dist. LEXIS 129262 (S.D.N.Y. July 20, 2022).*
Posted inProbable cause, Reasonable suspicion|Comments Off on M.D.Ala.: Saying police couldn’t search when it hadn’t yet come up was part of PC on totality
The officer had reasonable suspicion that the owner of a vehicle parked at a gas station had a warrant. When he stopped the vehicle, the officer discovered that the owner of the vehicle was not there, but independent reasonable suspicion developed for the driver. United States v. Nault, 2022 U.S. App. LEXIS 20111 (9th Cir. July 21, 2022).
“Furthermore, the Court agrees that ‘[e]ven if there were flaws in the GPS warrant or subsequent warrants that undermine these three magistrates’ findings of probable cause, the Leon good-faith exception would apply.’ Dkt. #54 at 29 (citing, 468 U.S. at 920-21).” United States v. Hawkins, 2022 U.S. Dist. LEXIS 128850 (W.D. Wash. July 20, 2022).*
Defendant, a registered sex offender, was suspected of masturbating in his car in front of a house in Fargo. His PO had given him permission to travel to Fargo, and the probation office’s GPS put him near the house in Fargo. The search of his person was reasonable as search incident, and the search of the car was reasonable as a probation search. United States v. Richardson, 2022 U.S. App. LEXIS 20086 (8th Cir. July 21, 2022).*
There was reasonable suspicion on the totality for defendant’s frisk, and the finding of the gun was lawful. United States v. Faught, 2022 U.S. App. LEXIS 20078 (6th Cir. July 19, 2022).*
Defendant was arrested by tribal and federal officers on an outstanding warrant. The inventory search of his vehicle thereafter followed policy and was reasonable. United States v. Blacksmith, 2022 U.S. App. LEXIS 20084 (8th Cir. July 21, 2022).*
“Accordingly, considering the totality of the circumstances provided by the search warrant, the Court concludes Magistrate Judge White had sufficient information to find probable cause that a search of the Kennebec residence would provide evidence of narcotics trafficking.” And even if it didn’t, the good faith exception applies. United States v. Walker, 2022 U.S. Dist. LEXIS 128743 (E.D. Mich. July 20, 2022).*
Defense counsel wasn’t ineffective for not moving to suppress CSLI where a motion to suppress would not have been granted. Denton v. United States, 2022 U.S. Dist. LEXIS 128997 (E.D.N.C. June 19, 2022).*
Reasonable suspicion is not required for a knock-and-talk. United States v. Raley, 2022 U.S. Dist. LEXIS 128634 (W.D. Ky. July 20, 2022).
The officer ran defendant’s LPN and it came back with “verify proof of insurance status.” That justified the stop. Reasonable suspicion developed. United States v. Lawson, 2022 U.S. App. LEXIS 19988 (6th Cir. July 19, 2022).
The warrantless seizure of defendant’s already drawn blood was unreasonable because there was no exigency. Metabolizing of the blood was over, however, once it was drawn. Commonwealth v. Jones-Williams, 2022 Pa. LEXIS 1035 (July 20, 2022).
The affidavit for warrant justified a nighttime search. People v. Rose, 2022 NY Slip Op 04649, 2022 N.Y. App. Div. LEXIS 4509 (2d Dept. July 20, 2022).*
Posted inUncategorized|Comments Off on W.D.Ky.: RS not required for knock-and-talk
Police responded to a shots fired call. The bodycam video shows that there was consent for entry into the home, albeit granted reluctantly. (Based on the factual recitation, it was likely a warrantless entry could have occurred because there was good reason to believe there was a child injured by gunfire inside.) United States v. Barber, 2022 U.S. Dist. LEXIS 128877 (E.D. Tex. July 20, 2022).*
“After listening to the complete audio recorded interview between Nickas and the detectives, which has been detailed above, the court finds that although the detectives were persistent in asking Nickas about consenting to the seizure and search of her cell phone, in the end her consent was knowingly made and voluntary. The interview lasting about 55 minutes showed that Nickas was repeatedly advised of the purpose of the investigation and why detectives wanted to examine Nickas’ cell phone. Nickas’ statements to detectives indicated that she understood the investigation, the process, and why she was being interviewed.” United States v. Nickas, 2022 U.S. Dist. LEXIS 129077 (M.D. Pa. July 20, 2022).*
“Raley’s statement granting consent as described by the officers’ testimony strongly suggests that his consent was made freely and voluntarily. There is no indication in the record that Mr. Raley did not understand what he was doing when he gave consent.” United States v. Raley, 2022 U.S. Dist. LEXIS 128634 (W.D. Ky. July 20, 2022).*
Posted inVoluntariness|Comments Off on Three on consent from 7/20
Defendant’s first minute-long patdown was unreasonable, but produced nothing. There was no separate reasonable suspicion for the second one. State v. Barcus, 2022-Ohio-2491, 2022 Ohio App. LEXIS 2355 (5th Dist. July 20, 2022).
Police went to defendant’s house on a welfare check on his grandmother who took him in. Inside, the officer saw dried blood on the floor so police got a search warrant. Defendant’s cogent questions and response to the search warrant helped the state to show he wasn’t insane. State v. Stowe, 2022 Iowa App. LEXIS 560 (July 20, 2022).*
“Because defendant failed to present his relatively novel constitutional argument [about the search] below, we cannot conclude that the purposes of preservation—including ensuring that the trial court and the opposing party had an opportunity to address the issues raised—have been served.” State v. Moore, 321 Or. App. 28, 2022 Ore. App. LEXIS 1058 (July 19, 2022)* (unpublished).
AP: Lawsuit: Chicago police misused ShotSpotter in murder case by Garance Burke & Michael Tarm (“A federal lawsuit filed Thursday alleges Chicago police misused ‘unreliable’ gunshot detection technology and failed to pursue other leads in investigating a grandfather from the city’s South Side and charging him with killing a neighbor.”)
Posted inReasonable suspicion|Comments Off on AP: Lawsuit: Chicago police misused ShotSpotter in murder case
The government didn’t like the R&R so it moved to put on additional evidence before the USMJ. Granted. “Therefore, in light of the Court’s ‘responsibility to make an informed decision’ on Wright’s suppression motion, Khan, 2018 WL 2214813, at *2, it will afford the Government an opportunity to present additional testimony on a provisional basis from any individual present during the officer’s application for the 66th St. Warrant (other than the officer himself). This provisional presentation will allow the Court to assess the content and credibility of the additional witnesses’ testimony before entering a recommendation on whether the District Judge should consider it.” United States v. Wright, 2022 U.S. Dist. LEXIS 127858 (S.D. Ga. July 19, 2022).
The officer here used excessive force when he punched and tackled the detainee and put him in a chokehold, and this alleged use of force would have violated a clearly established constitutional right. Any officer in the situation should have known that punching and tackling the detainee and using a chokehold, without a warning, would have violated the Fourth Amendment. McWilliams v. Dinapoli, 2022 U.S. App. LEXIS 19843 (10th Cir. July 19, 2022).*
Officers suspected defendant for being at a drug house the DEA was watching. They found a warrant for his arrest. The stop led to the smell of marijuana and a vehicle search. United States v. Mayo, 2022 U.S. Dist. LEXIS 128099 (M.D. Ga. July 19, 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.
