“An officer’s reasonable mistake of law—that is, when ‘the law turns out to be not what was thought’—can justify probable cause. [Heien] at 61-64. The officer ‘deserve[s] a margin of error’ when ‘the application of a statute is unclear—however clear it may later become’ when reviewed by a state court. Id. at 66. In that situation, the officer’s misinterpretation of state law means ‘there was no violation of the Fourth Amendment in the first place.’ Id.” Mahone v. Georgia, 2022 U.S. App. LEXIS 18320 (11th Cir. July 1, 2022).*
Defendant wasn’t in custody when he came to the police station and talked to officers. State v. Jimenez, 2022 R.I. LEXIS 66 (June 29, 2022).*
Defendant wasn’t in custody when he talked to police, and there were exigent circumstances for seizure of his cell phone from him. United States v. Dickson, 2022 U.S. App. LEXIS 18250 (6th Cir. June 29, 2022).*
Posted inCustody, Reasonableness|Comments Off on CA11: Reasonable mistake of law on basis for stop was not 4A violation
“[O]fficers were entitled to search the car pursuant to the warrant because Defendant was stopped within the immediate vicinity of his residence.” United States v. Clayton, 2022 U.S. Dist. LEXIS 116345 (M.D. La. June 30, 2022).*
During a traffic stop, when the officer asked if defendant had anything illegal on him, the officer had already discovered an arrest warrant, so the question did not add to the stop. United States v. Smith, 2022 U.S. App. LEXIS 18253 (10th Cir. July 1, 2022).*
There was probable cause defendant was in actual physical control of his vehicle after it was found stopped. State v. Ballenger, 2022 OK CR 11, 2022 Okla. Crim. App. LEXIS 11 (June 30, 2022).* [11 criminal appeals in six months?]
In another court ordered video surveillance massage parlor case, this time a § 1983 case, the surveillance order was pre-Kraft where the 4th DCA suppressed surveillance there, so the defendants get qualified immunity. Taig v. Currey, 2022 U.S. Dist. LEXIS 115439 (S.D. Fla. June 28, 2022).
Officers get qualified immunity for using a roadblock to stop a bicycle. No clearly established law. Seidner v. De Vries, 2022 U.S. App. LEXIS 18112 (9th Cir. June 30, 2022).*
The qualified immunity issue here depends on disputed facts, so denied. Torres v. City of St. Louis, 2022 U.S. App. LEXIS 18243 (8th Cir. July 1, 2022).*
“Herbert Green previously appealed the denial of his motion to suppress drugs and firearms discovered in his apartment during a law enforcement search outside the scope of the police’s warrant. See United States v. Green, 9 F.4th 682, 691-93 (8th Cir. 2021) (holding law enforcement’s protective sweep of Green’s apartment violated the Constitution). We remanded the case to the district court to make factual findings necessary to determine whether the independent source doctrine supported denial of Green’s motion to suppress. Id. at 694. After additional briefing and an evidentiary hearing, the district court found law enforcement would have requested and obtained a federal warrant to search the apartment notwithstanding the protective sweep. Based on this finding, we hold that the independent source doctrine justified the district court’s denial of suppression.” United States v. Green, 2022 U.S. App. LEXIS 18238 (8th Cir. July 1, 2022).*
There is no reasonable expectation of privacy in the hash values on child porn images shared on a peer-to-peer network. Youngman v. State, 2022 Fla. App. LEXIS 4522 (Fla. 2d DCA July 1, 2022).*
Defendant’s car was seemingly abandoned, opened and unlocked, at a boat ramp. The officer discovered a warrant for her and a dog sniffed the car not alerting. The car was seized and inventoried, and it was reasonable. State v. Ramos, 2022 Ida. App. LEXIS 11 (July 1, 2022).*
Anonymous report of bad driving led officers to observe defendant who saw it themselves. The stop was justified. United States v. Menendez, 2022 U.S. App. LEXIS 18232 (11th Cir. July 1, 2022).
Defendant was suspected of building, buying, and selling firearms. The search warrant for the premises validly permitted a protective sweep of the garage. [A warrant for the house normally covers the attached garage.] State v. Stewart, 2022-Ohio-2306, 2022 Ohio App. LEXIS 2164 (5th Dist. June 29, 2022).*
This second successor habeas petition based on a Fourth Amendment claim filed a month after the first one was denied for the same reason. In re Shipman, 2022 U.S. App. LEXIS 18224 (11th Cir. June 30, 2022).*
Failing a FST is probable cause. Here there were claims of multiple but some weren’t approved by NHTSA. No matter. State v. Speicher, 2022 Del. Super. LEXIS 266 (June 29, 2022).*
The government’s untimely discovery response to defendant’s repeated requests for the product of his cell phone search doesn’t warrant dismissal of the indictment. Probable cause was shown for the cell phone search, and the motion to suppress is denied. United States v. Mason, 2022 U.S. Dist. LEXIS 115769 (S.D. Ind. June 30, 2022).
Defendant’s frisk during a traffic stop after he left a drug house monitored by the DEA was reasonable. “After the stop, Radford immediately behaved in a manner that would have alarmed any police officer. He failed to follow a directive to put down his phone, reached for a second phone after that directive, made quick movements with his hands while he was still in the car and after he exited, reached for his waistband more than once, and held his left arm stiffly and close to his side as if hiding something on that part of his body. The district court characterized Radford’s behavior as ‘nervous and at times noncompliant.’ As Maples tried to gain control of the situation, Radford never stopped moving, even as Maples told him that his movements were making the officer nervous. The indications from DEA surveillance that Radford might be involved in drug dealing, his nervous behavior and alarming movements, and his failure to comply with the officer’s directives all justified the officer’s decision to search for weapons.” A vacuum sealed bag of heroin was seen in plain view. United States v. Radford, 2022 U.S. App. LEXIS 18156 (7th Cir. June 30, 2022).*
Franks challenge fails to search warrant for not including a claim that defendant might have been in another state at the time of the crime. “None of Defendant’s arguments cite a shred of reliable evidence that Detective DiNardo (or, for that matter, any other police officer or the federal probation officer) knew or should have known by November 17 that Defendant was in Florida at the time of the shootings on November 4.” United States v. Harmon, 2022 U.S. Dist. LEXIS 115528 (D. Del. June 29, 2022).*
The officers lacked reasonable suspicion for a protective sweep of defendant’s car. His actions did not support any suggestion he might be armed. United States v. Trice, 2022 U.S. Dist. LEXIS 115463 (E.D. Va. June 29, 2022).*
Defendant’s refusal to get out of the car when instructed was at least probable cause to arrest him for obstruction of an officer. Reasonable suspicion developed around his having a gun because an empty holster was seen. The passenger also was uncooperative and she too was arrested for obstruction. A gun was found in her purse, and defendant spontaneously said that he made her hold it. Motions to suppress all denied. He also had no standing to challenge the search of her purse. United States v. Lewis, 2022 U.S. Dist. LEXIS 115417 (S.D. Ga. June 9, 2022).*
“The police stopped Dylan Noel Theobald after he allegedly struck an officer’s side mirror while driving on his motorcycle. Theobald denied doing so but offered to pay the officer whose mirror was hit $100. The police arrested Theobald for bribery, among other offenses. Theobald later moved to suppress the $100 offer because he hadn’t been given Miranda warnings even though he was interrogated while in custody. We adopt the federal new-crime exception to the Miranda exclusionary rule. Under this exception, a statement made by a person who is subject to custodial interrogation but not given Miranda warnings is still admissible if the statement itself is evidence of a new crime (such as bribery or a threat). We agree with the trial court that Theobald’s offer of money to the officer is admissible but disagree with the trial court that another statement Theobald made while in custody is admissible.” Theobald v. State, 2022 Ind. App. LEXIS 223 (June 30, 2022).*
A dog sniff after Amendment 64 legalized personal possession of marijuana in Colorado was unjustified, unreasonable, and suppressed. Other case law already put the issue in doubt before this search occurred. There was no reason to suspect the occupants of the car were doing anything illegal. People v. Lopez, 2022 COA 70, | 2022 Colo. App. LEXIS 958 (June 30, 2022).
Defendant’s stop was with reasonable suspicion, but the police never developed probable cause. “When the officers’ sensory perceptions failed to confirm their suspicions of drug activity following the stop of the GMC, police summoned the K-9 unit for the sole purpose of developing probable cause.” That unreasonably extended the stop. State v. Smart, 2022 N.J. Super. LEXIS 98 (June 30, 2022).
Defendant’s habeas claim defense counsel was ineffective for not pursuing lack of reasonable suspicion for this stop is foreclosed because it was litigated and appealed before. United States v. Prado, 2022 U.S. Dist. LEXIS 115386 (M.D. Pa. June 29, 2022).*
Posted inDog sniff, Reasonable suspicion|Comments Off on CO: Dog sniff after legal possession became law suppressed; no RS
In the ongoing Google privacy case involving its selling of personal information, another motion to dismiss is granted in part and denied in part. In re Google RTB Consumer Priv. Litig., 2022 U.S. Dist. LEXIS 115023 (N.D. Cal. June 13, 2022).* First is how it sells consumer information. Second is the holding:
A subjective intent (Whren) argument not presented to the USMJ is rejected. Even if the court got to the merits, the exclusionary rule wouldn’t apply to an equal protection challenge. United States v. Lewis, 2022 U.S. Dist. LEXIS 115137 (S.D. Ga. June 29, 2022):
WaPo: Okay, Google: To protect women, collect less data about everyone by Geoffrey A. Fowler (“In post-Roe America, Google searches and location records can be evidence of a crime. Here are four ways Google should protect civil rights in its products now.”)
Forbes: Warrants Can Force Google To Look Through Your Search History–A Tragic Arson Case May Decide If That’s Constitutional by Thomas Brewster (“This week, Mike Price, counsel for Seymour and Fourth Amendment Center litigation director at the National Association of Criminal Defense Lawyers, is launching the first ever constitutional challenge to keyword warrants in America by seeking to suppress the evidence provided by Google. Backing him up in Colorado State Court is an amicus brief signed by internet privacy advocacy group the Electronic Frontier Foundation (EFF). Price and the EFF shared their filings with Forbes as they were being registered with the court.”)
Posted inDigital privacy|Comments Off on Forbes: Warrants Can Force Google To Look Through Your Search History–A Tragic Arson Case May Decide If That’s Constitutional
The fact a search warrant was directed to all peace officers of the State of Georgia didn’t preclude the state from turning the evidence over to the Secret Service for forensic analysis. Oliver v. State, 2022 Ga. App. LEXIS 344 (June 29, 2022).
An iced-over rear window was obstructed and thus supported a traffic stop. State v. Jacobsen, 2022 Iowa App. LEXIS 488 (June 29, 2022).*
Crediting that swerving occurred, that was reasonable suspicion for a stop. State v. Wuol, 2022 Iowa App. LEXIS 502 (June 29, 2022).*
Driving a utility vehicle on public ice was subject to stop for OWI even though it was not a road. State v. Bakke, 2022 Iowa App. LEXIS 485 (June 29, 2022).*
There is no reasonable expectation of privacy nor HIPAA privacy in a drug prescription database. Commonwealth v. McFarland, 2022 PA Super 116, 2022 Pa. Super. LEXIS 288 (June 29, 2022).
Defendant’s Fourth Amendment claim was litigated before trial and on appeal and can’t be raised again. Holmes v. United States, 2022 U.S. Dist. LEXIS 113650 (W.D.N.C. June 27, 2022).*
Defendant’s pro se arguments on appeal were not presented below and aren’t preserved. United States v. Farmer, 2022 U.S. App. LEXIS 17812 (7th Cir. June 28, 2022).*
On remand from United States v. Davis, 970 F.3d 650, 666 (6th Cir. 2020), the court finds the good faith exception applies because this was a judicially authorized search warrant. United States v. Davis, 2022 U.S. Dist. LEXIS 114428 (N.D. Ohio June 28, 2022).*
Defense counsel wasn’t ineffective. The “hypothetical motion” to suppress would fail. Spriggs v. United States, 2022 U.S. App. LEXIS 17933 (11th Cir. June 29, 2022).* The rationale:
“While executing an arrest warrant, police discovered a closed bookbag with a plastic baggie stuck in its zipper. Without obtaining a search warrant, they opened the bookbag and discovered illegal drugs. The question for us is whether the warrantless search comports with the Fourth Amendment under the ‘single-purpose-container exception’ to the warrant requirement. We hold that it does not. The exception applies only when the illegal nature of the contents of a package are readily apparent because of the distinctive characteristics of the package. A bookbag could hold a variety of items—some illegal, some not.” State v. Burroughs, 2022-Ohio-2146, 2022 Ohio LEXIS 1278 (June 28, 2022).
Unlawful tint on the back window didn’t violate the law, so the stop for it was without reasonable suspicion. Once stopped, the officers saw furtive movements in the car that arouse further suspicion. State v. Smith, 2022 N.J. LEXIS 568 (June 28, 2022).*
It is not a jurisdictional argument that “the municipal judge lacked authority to issue the first search warrant because it depended on ‘federal probable cause’ but executed solely by state officers without the participation of any federal authorities.” It also lacked merit as a Fourth Amendment claim. No CoA. Jones v. Harris, 2022 U.S. App. LEXIS 17814 (6th Cir. June 27, 2022).
Posted inDigital privacy, Surveillance technology|Comments Off on NBC News: Police sweep Google searches to find suspects. The tactic is facing its first legal challenge
Reason: This Innocent Woman’s House Was Destroyed by a SWAT Team. A Jury Says She’s Owed $60,000 by Sam Binion (“When Vicki Baker cleared out her home in McKinney, Texas, in 2020, she filled two 40-foot dumpsters with her belongings. It wasn’t the way she’d pictured emptying the house as she prepared to begin retirement in Montana. But there was little else to be done with her tear-gas stained items after a SWAT team careened through her fence, detonated explosives to blow her garage door off its hinges, smashed several windows, and drove a BearCat armored vehicle through her front door to apprehend a fugitive that had barricaded himself inside.”)
Posted inWarrant execution|Comments Off on Reason: This Innocent Woman’s House Was Destroyed by a SWAT Team. A Jury Says She’s Owed $60,000
The collective knowledge of two officers justified this stop. One defendant’s pending drug case was not reasonable suspicion itself, but it was “a piece of the puzzle.” Guandong v. State, 2022 WY 83, 2022 Wyo. LEXIS 83 (June 28, 2022).
A search under a drug possession statute held unconstitutional four years later was reasonable at the time under Michigan v. DeFillippo. State v. Moses, 2022 Wash. App. LEXIS 1341 (June 27, 2022).
The officer intended to do an inventory search, but defendant’s admission there was marijuana in the car give probable cause. State v. Jones, 2022 Ind. App. LEXIS 218 (June 27, 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.
