“Colorado State Patrol (‘CSP’) Trooper Christian Bollen had a hunch, and then another hunch, and then another hunch. And he acted on those hunches, despite a circumstance directly undermining them.” “An officer’s hunch is insufficient to establish reasonable suspicion to believe criminal activity may be afoot, United States v. Arvizu, 534 U.S. 266, 273-74 (2002), and reasonable suspicion is a less demanding standard than probable cause, Illinois v. Wardlow, 528 U.S. 119, 123 (2000). Because probable cause is measured against an objective standard of reasonableness, it cannot be established ‘simply by piling hunch upon hunch.’ Valenzuela, 365 F.3d at 897.” The search of defendant’s car lacked probable cause. People v. Smith, 2022 CO 38, 2022 Colo. LEXIS 622 (June 27, 2022).
A cut and paste error in the search warrant papers was still in good faith. State v. Morton, 2022 Tenn. Crim. App. LEXIS 288 (June 27, 2022) (litigated as a prosecutorial misconduct claim).
Defense counsel wasn’t ineffective for not filing a motion because the search was reasonable. State v. White, 2022-Ohio-2182, 2022 Ohio App. LEXIS 2060 (12th Dist. June 27, 2022).*
The Hill: Period tracking apps are trying to protect users’ privacy now that Roe is overturned by Shirin Ali (“Flo, a period tracker app that’s used by 200 million users worldwide, announced it was developing an anonymous mode which will allow users to access their information anonymously without providing their name or email address.”)
Posted inDigital privacy, Surveillance technology|Comments Off on The Hill: Period tracking apps are trying to protect users’ privacy now that Roe is overturned
WaPo: Agents seize phone of lawyer who pushed Trump false elector claims by Devlin Barrett (“John Eastman, a lawyer who lobbied for Mike Pence to declare Donald Trump the winner of the 2020 election, is fighting the phone seizure”) The filing is here, and it will not succeed because (1) Rule 41(g) doesn’t prevent a criminal investigation, and (2) it is based on a search warrant entitled to a presumption of good faith.
Posted inRule 41(g) / Return of property|Comments Off on WaPo: Agents seize phone of lawyer who pushed Trump false elector claims
The seizure and inventory of a backpack in a car was reasonable where neither of the occupants could say who it belonged to. United States v. Montano, 2022 U.S. App. LEXIS 17544 (9th Cir. June 24, 2022).*
Plaintiff cannot claim an intrusion into private affairs because he took a job knowing he’d be drug tested. Espindola v. Wismettac Asian Foods, Inc., 2022 U.S. App. LEXIS 17542 (9th Cir. June 24, 2022).*
Defendant’s investigatory stop was reasonable, and he was not blocked or actually detained. The officer’s smelling marijuana then was probable cause for the automobile exception. United States v. Clark, 2022 U.S. App. LEXIS 17456 (11th Cir. June 24, 2022).*
Stone bars 2254 consideration of a search claim absent an allegation that the state provides a sham proceeding. Martin v. Forshey, 2022 U.S. Dist. LEXIS 112495 (N.D. Ohio June 24, 2022).*
Wisconsin explains ShotSpotter alerts and developing reasonable suspicion. Officers arrived almost immediately without lights and sirens and looked for people. They saw the defendant who was acting evasively. That, with the alert, was reasonable suspicion. State v. Nimmer, 2022 WI 47, 2022 Wisc. LEXIS 65 (June 23, 2022):
If the stop is too long for Rodriguez, the defense should at least attempt to show it. “Because there is nothing set forth in the facts alleged by both parties that shows Carter’s detention was lengthy or extended beyond the original stop until the K-9 sniff-search took place, the subsequent search of the vehicle is not ‘void’ due to the length of the stop and detention. Compare United States v. Davis, 2007 WL 1125763, at *4-6 (E.D. La. 2007).” So, it’s not on the government to show it wasn’t too long. United States v. Carter, 2022 U.S. Dist. LEXIS 111733 (W.D. La. June 2, 2022). [At least allege it in the motion to suppress.]
Defendant’s car was stopped for traffic violations at night. One of the officers involved knew that defendant was often armed, and his prior arrest of defendant was for unlawful possession of a weapon. In fact, he had two priors for that. There was reasonable suspicion for a frisk. Commonwealth v. Garner, 2022 Mass. LEXIS 294 (June 24, 2022).*
The tip to the probation officer did not provide reasonable suspicion for defendant’s probation search. McGraw v. State, 2022 Alas. App. LEXIS 86 (June 24, 2022).*
“Lack of scientific corroboration” defendant delivered a controlled substance is not a Franks violation. United States v. Moore, 2022 U.S. Dist. LEXIS 111382 (E.D. Tenn. June 23, 2022).*
“Here, under the totality of the circumstances, the Court finds that a reasonable person in Defendant’s position would ‘feel free to disregard the police and go about his business.’ Bostick, 501 U.S. at 434. TFO Ruisanchez and TFO Ayala testified that they calmly approached Escobar-Lopez and Ruemmele, identified themselves as officers, asked if they were willing to talk, received affirmative consent, and then proceeded to ask questions for as long as Escobar-Lopez and Ruemmele were willing to engage. … The TFOs did not show force and repeatedly testified that they did not order Defendant to say or do anything. Id. While they asked for identification, ‘that is the type of de minimis intrusion that [the First Circuit has] long agreed to tolerate as a necessary part of policing.’ …” United States v. Escobar-Lopez, 2022 U.S. Dist. LEXIS 111439 (D.P.R. June 22, 2022).*
The traffic stop was reasonable. And, “Even if the passenger’s flight from the traffic stop did not supply the requisite probable cause for the arrest for obstruction under Georgia law, the officers were objectively reasonable in their belief that it did.” United States v. Green, 2022 U.S. Dist. LEXIS 111621 (S.D. Ga. June 23, 2022).*
Posted inConsent, Franks doctrine, Reasonableness|Comments Off on E.D.Tenn.: Lack of forensic testing of drug from controlled buy is not a Franks issue
A third-party record keeper providing material to the January 6th Select Committee under subpoena is not a Fourth Amendment violation. “Here, under any of the above standards, it is plain that JPMorgan did not engage in state action when it complied with the congressional subpoena.” “Plaintiff may resist this conclusion, but as Star Trek’s Dr. Spock intoned, ‘Resistance is futile.’” Budowich v. Pelosi, 2022 U.S. Dist. LEXIS 111563 (D.D.C. June 23, 2022).*
The Fourth Amendment does not apply to a denial of medical care in jail. “Despite this mountain of authority, Colson contends that the Fourth Amendment is the constitutional prism through which we should review her claims that the officers failed to provide her with medical care. Doing so, however, is not only at odds with legions of prior decisions, but also with the Amendment’s text itself.” Colson v. City of Alcoa, 2022 U.S. App. LEXIS 17340 (6th Cir. June 23, 2022).*
New crime during allegedly suspect traffic stop not suppressed. State v. Penman, 2022 N.M. App. LEXIS 34 (June 23, 2022).
Defendant as a passenger in car could be ordered out during a stop without any specific evidence he did anything wrong. United States v. Royster, 2022 U.S. Dist. LEXIS 111284 (D.N.J. June 23, 2022).*
Defendant’s vehicle was blocked in by a police car, and a reasonable person would only believe he’d been seized whether the officers believed it or not. This was not justified by reasonable suspicion. His consent was thus not voluntary. “None of the exceptions to theexclusionary rule apply here to prevent suppression.” United States v. Rodgers, 2022 U.S. Dist. LEXIS 111117 (S.D.Ohio June 22, 2022).
Officers had reasonable suspicion defendant was involved in a credit card skimming scheme when they stopped him at a gas pump. United States v. Rodriguez, 2022 U.S. Dist. LEXIS 110217 (D. Mass. June 22, 2022).*
A drug search warrant led to probable cause defendant was involved in home invasion robberies, and that supported a second search warrant for evidence of that. Commonwealth v. Lavin, 2022 Mass. App. LEXIS 58 (June 23, 2022).*
A search warrant was executed here to determine defendant’s height with a tape measure. State v. Matthews, 2022 Md. LEXIS 260 (June 22, 2022).
Posted inConsent, Reasonable suspicion, Seizure|Comments Off on S.D.Ohio: Def was seized by blocking his car in, even if officers didn’t intend it
There is no hard rule that a bail hearing has to happen within 48 hours of arrest. PC finding, yes; bail, no. “[P]recedent dictates that only a probable-cause determination must be held within forty-eight hours. The constitutionally required timing of a bail hearing is an issue of first impression.” Mitchell v. Doherty, 2022 U.S. App. LEXIS 17181 (7th Cir. June 22, 2022).
An open container and possession of a civil penalty quantity of marijuana doesn’t justify a vehicle search. Commonwealth v. Branch, 2022 Va. App. LEXIS 245 (June 21, 2022) (unpublished).
“Based upon the record, we conclude that the purpose of the traffic stop was complete when Sergeant Slayback did not observe any indications of an impaired driver and issued the driver the warning for the traffic violations. Thus, continuing the traffic stop for any additional period of time required reasonable suspicion. See Rodriguez, 575 U.S. at 355 ….” Powers v. State, 2022 Ind. App. LEXIS 209 (June 22, 2022).*
Even with marijuana being partly legal, possession of more than 10 grams was a crime. The smell of marijuana from a group permitted a frisk, and a gun was found on one. “Although that odor, without more, does not provide probable cause to arrest a person for a criminal possession of marijuana, it does meet the less stringent standard of reasonable suspicion necessary to justify an investigatory stop.” The factors supporting reasonable suspicion included the evasive behavior and body language of D.D. and his companions, the discovery of what was claimed to be a BB gun on one of the other young men in the group, D.D.’s baggy clothing, the officers’ smelling the odor of marijuana, their concern that the group was trespassing, and the fact that the officers were outnumbered five to two.” In re D.D., 2022 Md. LEXIS 259 (June 21, 2022).
A search warrant for a garage space permitted a search of cabinets because that’s where the sought after things could be hidden. United States v. Perez, 2022 U.S. Dist. LEXIS 109948 (D. Minn. June 21, 2022).*
Posted inReasonable suspicion, Scope of search|Comments Off on MD: Smell of marijuana from a group of juveniles was RS for patdown but not PC
Trial questions to one officer about alleged false statements in a search warrant affidavit attributed to him but where it was not written by him were excluded. This was not an abuse of discretion since he wasn’t the affiant. Harris v. State, 2022 Ga. LEXIS 169 (June 22, 2022).*
The good faith exception applied here to gathering real time CSLI. On the merits of the warrant, the government showed sufficient justification for it. United States v. Lewis, 2022 U.S. App. LEXIS 17047 (7th Cir. June 21, 2022).*
There was probable cause on the totality to search defendant’s cell phone records. Copeland v. State, 2022 Ga. LEXIS 167 (June 22, 2022).*
Here a trash pull corroborated the CI. United States v. Ledee, 2022 U.S. Dist. LEXIS 109859 (M.D. Pa. June 21, 2022).
Defendant’s traffic stop for crossing the fog line was supported by the dashcam video. United States v. Webb, 2022 U.S. Dist. LEXIS 109389 (N.D. Miss. June 21, 2022).*
Defendant pro se banked on a meaningless motion to suppress to reject a 10 year plea offer and risk 15-life. Defense counsel was able to get the 10 year plea offer back and was not ineffective. “Brooks, in his autonomy, was entitled to prefer a plea over his suppression motion. For one reason or another, he may have now come to regret that decision. But he cannot now shift to Defense Counsel any miscalculation of litigation risks involved in his suppression motion when those risks were not Defense Counsel’s risks in the first place. To the extent Brooks suffered any ‘prejudice’ from pleading guilty, he brought it on himself. Defense Counsel was not ineffective.” State v. Brooks, 2022 Del. Super. LEXIS 257 (June 21, 2022).*
A condominium association installed a newer fire protection system, and it was subject to annual testing. The ordinance only required it be tested by somebody, and who would likely be a contractor. It did not compel a search under the Fourth Amendment. Camara distinguished. Vill. of Downers Grove v. Vill. Square III Condo. Ass’n, 2022 IL App (2d) 210098, | 2022 Ill. App. LEXIS 272 (June 21, 2022).
Search and seizure issues raised only on the objection to the R&R that raised issues not before USMJ are waived. United States v. Thomas, 2022 U.S. Dist. LEXIS 109105 (E.D.Mo. June 21. 2022).*
Petitioner does not get a CoA for appeal of his ineffective assistance of counsel claim for defense counsel’s failure to challenge two of three DNA swabs because he wouldn’t win. Davis v. United States, 2022 U.S. App. LEXIS 16998 (6th Cir. June 17, 2022).*
Testimony about how a search warrant was executed as it was could have prejudiced defendant by revealing the government thought he was violent before arrest. It was not, however, plain error on this record without an objection. United States v. Gibson, 2022 U.S. App. LEXIS 17039 (3d Cir. June 21, 2022).
“As discussed below, the Court concludes that the search warrant not only lacked probable cause, it lacked any indicia of probable cause which is required for the good faith exception to the exclusionary rule. The Court also concludes that the inevitable discovery doctrine does not apply based on a federal search warrant obtained a year after the seizure of the cell phone. Relatedly, the Court concludes that suppression is also warranted based on the unreasonable delay between the seizure of the phone and when the government obtained the federal search warrant. Accordingly, the Court recommends that the evidence recovered from search of the cell phone be suppressed.” United States v. Williams, 2022 U.S. Dist. LEXIS 108641 (D.Ariz. May 10, 2022),* adopted, 2022 U.S. Dist. LEXIS 108509 (D. Ariz. June 16, 2022).*
The FAA’s information about the movements of defendant’s single engine airplane gave the DEA reasonable suspicion to stop it on the tarmac. Then officers developed probable cause. United States v. Bodnar, 2022 U.S. App. LEXIS 17035 (2d Cir. June 21, 2022).
The record shows plaintiff consented to officers entering his home and his warrantless arrest. Johnson v. City of Morro Bay, 2022 U.S. App. LEXIS 16935 (9th Cir. June 17, 2022).*
There was probable cause for plaintiff’s arrest for criminal trespass. Reform Am. v. City of Detroit, 2022 U.S. App. LEXIS 16878 (6th Cir. June 17, 2022).*
There was probable cause for plaintiff’s arrest. Utley v. City of Houston, 2022 U.S. App. LEXIS 16907 (5th Cir. June 17, 2022).*
Posted inConsent, Reasonable suspicion|Comments Off on CA2: FAA information about movements of airplane gave DEA RS for stop on tarmac
The evidence supports the district court’s conclusion defendant consented to the second entry of his home. His actions and turning to lead officers into his house showed consent. United States v. Lozano, 2022 U.S. App. LEXIS 16894 (5th Cir. June 17, 2022).*
“Defendant’s argument that he did not freely and voluntarily consent to the search of his phone is highly unpersuasive. Defendant, in part, argues that he was coerced, because he is ‘a middle-aged tire truck delivery driver’ who ‘had never been arrested before and was not aware of the rights and protections afforded to him by the legal system.’ … Viewing Defendant’s personal characteristics first, as discussed above, the mere fact that Defendant is a middle-aged delivery driver does not support his claim that he did not know what he was doing or did not reasonably appreciate the nature and significance of his actions. In fact, Defendant’s conduct and speech throughout the interview show that he knew what he was doing and was aware of the consequences.” United States v. Worthy, 2022 U.S. Dist. LEXIS 109093 (W.D.Mo. June 21, 2022).*
The safety of a police dog is a valid concern for a police officer in use of force. A dog is an effect under the Fourth Amendment. This case deals with balancing the interests of a citizen’s family dog and a police dog. White v. City of Detroit, 2022 U.S. App. LEXIS 16876 (6th Cir. June 17, 2022).*
Posted inConsent, Excessive force|Comments Off on CA5: Def’s actions showed he consented to entry into house
Handcuffing did not turn this stop into an arrest. United States v. Walker, 2022 U.S. Dist. LEXIS 108170 (D.Conn. June 17, 2022).*
Petitioner’s 2254 claim was based on ineffective assistance of counsel for waiver of his claim that he was unlawfully arrested because he was located by cell phone pinging. It was litigated in state court and barred by Stone. Snowden v. Sheldon, 2022 U.S. App. LEXIS 16849 (6th Cir. June 16, 2022).*
There is no requirement that a search warrant be filed with the clerk before execution. (The Eighth District rejected the same argument.) State v. Haralson, 2022-Ohio-2052, 2022 Ohio App. LEXIS 1932 (2d Dist. June 17, 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.
