“The Court finds that the search warrant affidavit comes nowhere near to establishing probable cause for the search of the cell phone. Simply put, this is a no-brainer. In fact, the government’s conclusory argument noted above demonstrates the futility of their position in trying to save the search warrant for the cell phone.” Therefore, the good faith exception does not apply either. “However, once again, the government presents a half-hearted argument to support that position. The government merely asserts that the search warrant affidavit ‘was not so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ … The government does not explain why it claims the search warrant was not lacking any indicia of probable cause.” United States v. Williams, 2022 U.S. Dist. LEXIS 108641 (D.Ariz. May 10, 2022).*
The officer gets the credibility call here on the question of consent because defendant lied to the officer at the time of the stop. United States v. Burnaugh, 2022 U.S. Dist. LEXIS 108285 (W.D. Mo. June 2, 2022), adopted, 2022 U.S. Dist. LEXIS 108184 (W.D. Mo. June 17, 2022).*
The officer’s knowledge of defendant and the facts at the scene gave him reasonable suspicion for defendant’s patdown. Plain feel supported the search of his pockets when apparent contraband was found. State v. Tripp, 2022-NCSC-78, 2022 N.C. LEXIS 577 (June 17, 2022).*
There is a reasonable expectation of privacy in one’s CSLI. One can have a reasonable expectation of privacy in his or her movements on public roads. Commonwealth v. Reed, 2022 Ky. LEXIS 132 (June 16, 2022):
“These cases clearly establish that forced compliance with orders is a Fourth Amendment seizure. Mendenhall and Saari establish that words that compel compliance with the officer’s orders to exit a house constitute a seizure. Thus, when taking the facts in the light most favorable to the Hopkinses, Nichols’s commands to Mrs. Hopkins may have amounted to a clearly established constitutional violation. For those reasons, we conclude that the district court properly denied qualified immunity to defendants for the alleged seizure of Mrs. Hopkins.” Hopkins v. Nichols, 2022 U.S. App. LEXIS 16664 (6th Cir. June 16, 2022).
No CoA for this 2254 appeal. The Fourth Amendment ineffective assistance claim was procedurally defaulted in state court. Montelongo-Rangel v. Forshey, 2022 U.S. App. LEXIS 16603 (6th Cir. June 15, 2022).*
The search warrant for defendant’s blood was issued with probable cause. The record reviewed is that which was before the warrant issuing magistrate. State v. Green, 2022 WI 41, 2022 Wisc. LEXIS 61 (June 15, 2022).*
Posted inProbable cause, Seizure, Waiver|Comments Off on CA6: A police order to come out of one’s house is a seizure
The victim was shot in July 2016. In August, the police got a search warrant for his place and found nothing connecting him to it. In September, they got a second search warrant for a second place and found guns, drugs, and cash. The second warrant was not stale. Even though they had a better address for him two months before the search, they were still investigating. People v. Jackson, 2022 NY Slip Op 03936, 2022 N.Y. App. Div. LEXIS 3844 (3d Dept. June 16, 2022).
“In sum, the touchstone of any Fourth Amendment analysis is reasonableness. … The officers’ act of removing Williams at gun point and placing him in handcuffs, when considering the totality of the circumstances, was reasonable.” Williams v. State, 2022 Ga. App. LEXIS 306 (June 15, 2022).*
A Greyhound passenger in Albuquerque consented to a search of his person during a stopover. It started as a patdown and he consented to a full search, and that included manipulation of what was felt. United States v. Hill, 2022 U.S. Dist. LEXIS 106639 (D.N.M. June 15, 2022).*
A sheriff’s deputy showed up at defendant’s house to talk to her. He encountered her husband outside. The husband went in to get his wife, and the officer followed into the mudroom. There was no implied consent for the officer to enter the house. State carried the burden and failed. (Remanded, however, for other factfinding.) Hawken v. State, 2022 WY 77, 2022 Wyo. LEXIS 73 (June 16, 2022).*
Defendant was subjected to a valid probation search that revealed a firearm and led to a search warrant. No suppression here. Chu Ramos v. State, 2022 Fla. App. LEXIS 4100 (Fla. 2d DCA June 15, 2022).*
In a rural Oregon county, the police operated under a blanket dissipation of exigency rationale despite McNeely. “The Fourth Amendment, as the Court articulated its requirements in McNeely, requires the state to establish, under a totality of the circumstances approach, specific facts establishing exigency. Here, the totality of the circumstances does not support the existence of an exigency on this record. Accordingly, the warrantless seizure of defendant’s blood was a violation of the Fourth and Fourteenth Amendments to the United States Constitution, and the trial court erred in failing to suppress the evidence.” State v. Portulano, 320 Ore. App. 335, 2022 Ore. App. LEXIS 928 (June 15, 2022).*
Defendant was arrested for shoplifting, and, on her arrest, a search incident of a small canister attached to her keychain was reasonable, despite it being so small no evidence of theft would be there. State v. Meisenhelder, 2022 Wisc. App. LEXIS 517 (June 15, 2022):
On remand from Mitchell v. Wisconsin, 139 S. Ct. 2525, 2539 (2019), defendant’s blood draw was reasonable. State v. Mitchell, 2022 Wisc. App. LEXIS 518 (June 15, 2022):
When the Mitchell Court remanded this case, it did so for a very narrow purpose—to give Mitchell an opportunity to show that: (1) his blood “would not have been drawn if police had not been seeking BAC information,” and (2) the police “could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.” Mitchell, 139 S. Ct. at 2539. Because Mitchell has failed to make even the first showing, the officer’s decision to “order a warrantless blood test to measure [Mitchell’s] BAC [did not] offend[] the Fourth Amendment.” Id. Thus, the warrantless blood draw was lawful.
Posted inDrug or alcohol testing|Comments Off on WI: On remand in Mitchell v. Wisconsin blood draw reasonable
Failure to articulate one’s argument that the state constitution requires a different result is waiver. State v. Versteegh, 2022 Iowa App. LEXIS 434 (June 15, 2022).
“Here, the issuing judge reasonably concluded, based on all of the circumstances, that there was at least a fair probability that evidence of crime would be located based on authorization of the GPS tracking device for Petitfrere’s vehicle. First, the affidavit included detailed information indicating that the target residence was a drug trafficking premises.” At the least, the good faith exception applies, too. United States v. Petitfrere, 2022 U.S. Dist. LEXIS 105875 (E.D.Ky. June 14, 2022).*
Questions to a motorist about marijuana during gathering papers for the stop didn’t extend it. United States v. Patterson, 2022 U.S. Dist. LEXIS 106319 (E.D.Mich. June 14, 2022).*
“In his third numbered objection, Lee argues that contrary to Officer Kennedy’s testimony, the RV was completely immobile at the time it was searched and that it was being used as a residence. But whether the RV was mobile or being used as a residence is irrelevant to the Report’s conclusion regarding the good-faith exception.” United States v. Lee, 2022 U.S. Dist. LEXIS 106131 (E.D.Tex. June 14, 2022).
“‘The failure to file a motion to suppress does not constitute per se ineffective assistance of counsel; an appellant must make a strong showing that the evidence would have been suppressed had the motion been filed.’” “Because Rawls has established that the evidence would have been suppressed had a motion to suppress been filed and given that without the search no contraband would have been found for which to charge the instant crime, Rawls has established he received ineffective assistance of counsel.” Williams v. State, 2022 Ga. App. LEXIS 298 (June 14, 2022).*
The district court didn’t err in not deciding plaintiff’s Fourth Amendment claim because it wasn’t fairly presented. “(‘The district court was not obligated to comb the record in order to make [the plaintiff’s] arguments for him.’).” Valdez v. Grisham, 2022 U.S. App. LEXIS 16330 (10th Cir. June 14, 2022).*
50 years ago early this morning, the Watergate break-in occurred. And the rest is history. I was in the summer recess between being a 2L and 3L, probably already in summer classes. I studied for the bar exam to be held July 23-25, 1973 while watching all of the Select Committee on Presidential Campaign Activities of the U.S. Senate in the summer of 1973. I was watching on July 13th when Alexander Butterfield revealed the White House taping system that only four people knew about (Pres. Nixon who ordered it set up, Butterfield implemented the order, and two Secret Service agents who set it up). I remember sitting upright when I heard it. That was it.
I watched all of what the Committee did. I was somewhat fearful I wouldn’t pass the bar because of all the time watching the Committee hearings, but I did. I read all I could on Watergate, and I acquired, read, and reread the original bound volume of their report from the Government Printing Office.
It marked me for life as a lawyer. The Rule of Law is my religion. Liz Cheney is today’s Sam Ervin.
Posted inUncategorized|Comments Off on 50th Anniversary of the Watergate break-in
Posted inQualified immunity|Comments Off on Volokh Conspiracy: Qualifying Qualified Immunity: The Cases in Which the Fair Notice Rationale Clearly Supports …
And here, the defendant won on the search issue: ATL: Federal Judge Just Doesn’t Feel Like Reading The Fifth Circuit’s Cases by Kathryn Rubino (“Is this the most relatable a federal judge has ever been?”) discussing United States v. McKinney, 21-50308 (5th Cir. June 10, 2022), prior opinion, United States v. McKinney, 2020 U.S. App. LEXIS 36333 (5th Cir. Nov. 16, 2020) posted here, where the court remanded again for failure to make proper findings about the existence of reasonable suspicion (and the defendant has served his sentence):
Failure to deliver the whole search warrant to defendant violated Rule 41(f)(1)(C), but it wasn’t deliberate so no suppression. United States v. Manaku, 2022 U.S. App. LEXIS 16337 (9th Cir. June 14, 2022).
2254 petitioner’s ineffective assistance of counsel for not filing a motion to suppress can’t show that it would succeed. Willis v. Horton, 2022 U.S. App. LEXIS 16302 (6th Cir. June 13, 2022).*
“As to Marvin’s assertion that denial of his Medicaid benefits constituted an unconstitutional seizure, the district court properly determined that denial of his government benefit did not implicate the Fourth Amendment.” Marvin v. Peldunas, 2022 U.S. App. LEXIS 16345 (2d Cir. June 14, 2022).*
“While the detention was a seizure for Fourth Amendment purposes, it did not constitute custody for Miranda purposes ….” People v. Cabrera, 2022 NY Slip Op 03874, 2022 N.Y. App. Div. LEXIS 3789 (1st Dept. June 14, 2022).*
“These facts alone, without taking the protective sweep into consideration, would have provided a magistrate with probable cause to issue a search warrant. A sworn statement of an identified member of the community attesting to facts directly and personally observed by him is in and of itself sufficient to support the issuance of a search warrant …. Here, the warrant is based upon statements and observations made by a named individual, and as such is sufficient to support the issuance of a search warrant.” People v. Henry, 2022 NY Slip Op 50483(U), 2022 N.Y. Misc. LEXIS 2517 (Richmond Co. June 2, 2022).*
The officer’s pistol-whip violated the detainee’s Fourth Amendment right to be free of excessive force where the detainee no longer posed an immediate threat of harm and he was not actively resisting arrest or trying to flee. Wade v. Daniels, 2022 U.S. App. LEXIS 16227 (11th Cir. June 13, 2022).*
“We therefore conclude that the circuit court did not err by ruling that the officer lacked reasonable suspicion to warrant the stop. We further conclude that, because the officer lacked reasonable suspicion, the circuit court properly ruled that the officer violated Part I, Article 19 of the State Constitution when he initiated the motor vehicle stop. Accordingly, we need not address whether the stop violated the Federal Constitution. … The exclusionary rule requires the suppression of any evidence obtained derivatively through a violation of Part I, Article 19 of the State Constitution, …. Although there are exceptions to the exclusionary rule …, the State does not argue that any such exceptions apply here. Accordingly, we conclude that the circuit court did not err by suppressing any evidence obtained as a result of the unlawful motor vehicle stop.” State v. Monegro-Diaz, 2022 N.H. LEXIS 71 (June 14, 2022).*
While the search warrant wasn’t particular, it incorporated the affidavit which was. State v. Bugno, 2022-Ohio-2008, 2022 Ohio App. LEXIS 1882 (7th Dist. June 9, 2022).
The emergency aid exception applies: “[T]he presence of blood on the premises, coupled with two separate 911 calls reporting that a violent incident involving several people had just taken place on the Hillards’ property, provided officers with reason to believe others may have needed immediate aid, justifying a brief, warrantless search.” The re-entry to look at surveillance video inside the house produced nothing and is moot. State v. Hillard, 2022 Kan. LEXIS 69 (June 10, 2022).
“Police officers may handcuff a suspect during a Terry stop to protect their personal safety and maintain the status quo.” “The evidence favors the Government’s view that the Overland police officers had reasonable suspicion of criminal activity involving Smith and the rental car to temporarily detain him in order to verify or dispel Sgt. Lydon’s suspicions.” “Officers thereafter developed the probable cause to arrest Smith as the encounter evolved.” United States v. Smith, 2022 U.S. Dist. LEXIS 104983 (E.D.Mo. May 20, 2022),* adopted, 2022 U.S. Dist. LEXIS 104945 (E.D.Mo. June 13, 2022).*
Defendant’s car was inevitably going to be searched after impoundment, so the question of the drug dog jumping into the car doesn’t have to be decided. United States v. Overton, 2022 U.S. App. LEXIS 16158 (7th Cir. June 13, 2022).
Defendant did not receive ineffective assistance of counsel on defense counsel’s failure to file a motion to suppress that would not succeed. State v. Fenderson, 2022-Ohio-1973, 2022 Ohio App. LEXIS 1866 (6th Dist. June 10, 2022);* McNair v. State, 2022 Tenn. Crim. App. LEXIS 263 (June 13, 2022).*
Defendant’s patdown during a traffic stop was based on reasonable suspicion for the officer’s knowledge defendant was known to carry firearms. United States v. Alston, 2022 U.S. Dist. LEXIS 104712 (W.D.Pa. June 13, 2022).*
In a helicopter flyover case, defendant carried the burden of showing that the police conducted a “search” that violated his reasonable expectation of privacy by flying too low in violation of FAA rules. He didn’t here; remanded. State v. Jordan, 2022-Ohio-1992, 2022 Ohio App. LEXIS 1864 (3d Dist. June 13, 2022).
The traffic stop of a suspected heroin dealer was reasonable, and wasn’t longer than necessary. United States v. Henry, 2022 U.S. App. LEXIS 16131 (5th Cir. June 10, 2022).*
“As stated in Rodriguez, the Fourth Amendment tolerates police activities that do not lengthen the duration of the detention. However, the district court’s finding that ‘the court cannot determine if those [deviations] ‘measurably extended’ the duration of [the] seizure’ was clearly erroneous. The record confirms that while there were two deviations from the initial course of this traffic stop, the combined deviation was insufficient to change the overall length of the stop beyond the time when the drug dog alerted on the vehicle. When this occurred, it gave rise to a reasonable suspicion of drug activity and allowed officers to continue to investigate. Accordingly, we reverse the district court’s order granting Riley’s motion to suppress and remand the case for further proceedings.” State v. Riley, 2022 Ida. LEXIS 67 (June 10, 2022).*
Tennessee follows Kimmelman: “Upon our review of the record and applicable law, we conclude that to establish prejudice with this type of claim, the petitioner must prove that ‘his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence.’ Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). In applying this standard to the case before us, we conclude that the Court of Criminal Appeals properly affirmed the post-conviction court’s denial of relief. Accordingly, we affirm the judgment of the Court of Criminal Appeals.” Phillips v. State, 2022 Tenn. LEXIS 206 (June 10, 2022). [No surprise here.]
Police detained defendant as a peeping Tom and obtained a search warrant for his cell phone. That search produced evidence of another crime, and it was not suppressed. State v. McGovern, 311 Neb. 705 (June 10, 2022).*
“Smith’s attorneys’ choosing to focus on certain Fourth Amendment arguments over others was merely a strategic decision ‘about which competent lawyers might disagree.’” Smith v. United States, 2022 U.S. Dist. LEXIS 104074 (N.D.Ala. June 10, 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.
