A person in prison has no standing to contest a wiretap on a contraband cell phone. United States v. Yandell, 2022 U.S. Dist. LEXIS 91166 (E.D.Cal. May 20, 2022).
“The facts of this case indicate that [Officer] Leitzen, while conducting a lawful Terry frisk for weapons, determined based on his experience that the objects he felt in Hunt’s pocket were packaged drugs, specifically either powder cocaine, crack cocaine, or heroin. Unlike in Dickerson, the record in this case contains no evidence to suggest that Leitzen extended the pat-down or explored Hunt’s pocket further than permitted to discover if Hunt was armed. This determination that Hunt at that moment possessed illegal drugs, if founded, would establish probable cause for Hunt’s arrest and seizure of the drugs after a search incident to his arrest.” State v. Hunt, 2022 Iowa Sup. LEXIS 60 (May 20, 2022).* https://www.iowacourts.gov/courtcases/14183/embed/SupremeCourtOpinion
This stop was reasonably extended because reasonable suspicion developed during it. United States v. Taylor, 2022 U.S. Dist. LEXIS 91172 (E.D.Tenn. May 20, 2022).*
The government’s first justification for the stop, a traffic offense, fails. It’s “fall back argument” that there was reliable information from a CI does not. United States v. Boatright, 2022 U.S. Dist. LEXIS 90944 (N.D.Tex. May 20, 2022).*
Broad conclusory motions to suppress should be summarily denied. “The Government and the Court had no warning that Munguia-Lopez was going to challenge his own stop at the hearing. This Court does not look favorably on counsel filing motions with the broadest possible conclusory language that counsel later seeks to flesh out in court. Accordingly, the Court denied Munguia-Lopez’s request to challenge his own stop during the hearing but will allow Munguia-Lopez a grace period to file a Motion to Suppress. If Munguia-Lopez desires to file his own Motion to Suppress regarding any Fourth Amendment violations regarding his own traffic stop, he must do so within fourteen days of the issuance of this order.” And that order denies the co-defendants’ motions to suppress. United States v. Munguia-Lopez, 2022 U.S. Dist. LEXIS 90635 (D.Idaho May 18, 2022).
A witness’s statement that a search was by consent when it wasn’t is for cross-examination at trial. “Wanless believes that the witness’s statement misled the jury about the source of the ledger and financial documents. That the witness misstated the authority for the search, however, does not amount to prosecutorial misconduct or otherwise justify a new trial. If the nature of the authority for the search was relevant to the defense, then it was a proper subject for cross-examination.” United States v. Unpradit, 2022 U.S. App. LEXIS 13648 (8th Cir. May 20, 2022).*
Posted inBurden of pleading|Comments Off on D.Idaho: Broad conclusory motions to suppress should be summarily denied
The warrantless search of defendant’s brother’s garage where both had keys and defendant kept things from their construction business was unreasonable. Defendant had standing because it was used for business purposes, and he did not have to spend the night there to have standing. United States v. Arreola-Alvardo, 2022 U.S. Dist. LEXIS 90326, 2022 U.S. Dist. LEXIS 91453 (E.D.Mich. May 19, 2022).
The entry into defendant’s apartment was with weapons in hand, and it was consensual. The information gathered (defendant’s presence) is suppressed. United States v. Martin, 2022 U.S. App. LEXIS 13630 (9th Cir. May 19, 2022).
“At first blush, this case may present ‘thorny constitutional issues.’ The Court, however, ultimately finds that the issuing magistrate judge had a substantial basis to conclude that the Residence contained evidence of drug trafficking. But even if the Affidavit were lacking, the investigators relied on the Search Warrant in good faith, which precludes the exclusion of evidence.” United States v. Navedo, 2022 U.S. Dist. LEXIS 90640 (N.D.Ohio May 19, 2022).*
Posted inConsent, Good faith exception, Standing|Comments Off on E.D.Mich.: Def had standing in his brother’s garage where only they had keys and it was used for business purposes
Commercial fishing is a closely regulated industry. “Appellant also had a sea scallop permit, requiring the vessel to have a vessel monitoring system (VMS), which transmits global positioning system (GPS) coordinates every half hour to the National Marine Fisheries Service.” Those were subject to inspection. Benson v. State, Dept. of Environmental Mgmt., 2022 R.I. Super. LEXIS 38 (May 19, 2022).
Officers were dispatched to a “fight in progress” in a park and area known for juvenile fights.“ And from E.V.’s appearance and location — sweaty and out of breath and inside the apartment building — they reasonably suspected that he was involved in the assault.” There was thus reasonable suspicion. People v. E.V., 2022 COA 53, 2022 Colo. App. LEXIS 737 (May 19, 2022).*
The ticket writing process would take 7-8 minutes, and a second officer with a drug dog didn’t extend the stop. Defendant’s claim that the officer had a pretextual motive to search for drugs is factually evident, but barred by existing law. United States v. McMillin, 2022 U.S. Dist. LEXIS 89942 (D.Kan. May 18, 2022).*
Defendant was seized without reasonable suspicion, and defense counsel was ineffective for not raising it. State v. Demby, 2022 Del. Super. LEXIS 198 (Apr. 29, 2022).*
WaPo: Florida sheriff’s deputy uses Taser at gas station, setting man on fire by Lindsey Bever (“A Florida sheriff’s deputy is facing a criminal charge after using a Taser near gasoline, igniting a fire that severely burned a 26-year-old suspect and injured the deputy himself and two fellow officers.”). And, for excessive force purposes and municipal liability, it seems to evince a complete lack of training.
Posted in§ 1983 / Bivens, Excessive force|Comments Off on WaPo: Florida sheriff’s deputy uses Taser at gas station, setting man on fire
The third-party consent here was invalid because there was no reason to believe they had apparent authority. State v. Marcellus, 2022 N.J. Super. LEXIS 69 (May 18, 2022).
The vehicle safety checkpoint was set up with a valid programmatic purpose, and defendant avoided it and took the police on a high-speed chase. The checkpoint was valid. United States v. Britain, 2022 U.S. App. LEXIS 13447 (5th Cir. May 18, 2022).*
Officers here got a warrant for a dog sniff of a commercial building’s door seams. United States v. Escudero, 2022 U.S. Dist. LEXIS 89853 (D.Minn. Mar. 21, 2022).*
There was probable cause for the warrant. “Defendant failed to preserve his challenge to alleged technical defects in the search warrant as the issue was not raised in his omnibus motion or during the suppression hearing.” People v. Gillespie, 2022 NY Slip Op 03279, 2022 N.Y. App. Div. LEXIS 3227 (3d Dept. May 19, 2022).*
When one leaves his cell phone in a car, he or she assumes the risk that the phone will be found by the police and searched. United States v. Hagy, 2022 U.S. Dist. LEXIS 89437 (S.D.W.Va. May 18, 2022).
“They also propose facts they believe the police should have added to the affidavit. … But ‘[t]he affidavit is judged on the adequacy of what it does contain, not on what it lacks, or on what a critic might say should have been added.’ United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000); …” Franks challenge denied. United States v. Goddard, 2022 U.S. Dist. LEXIS 89143 (S.D.Ohio May 18, 2022).*
A parole search in Arkansas does not require reasonable suspicion. Hall v. State, 2022 Ark. App. 232, 2022 Ark. App. LEXIS 241 (May 18, 2022).*
Torrential Downpour warrant for child pornography was reasonable. United States v. Harper, 2022 U.S. Dist. LEXIS 89375 (W.D.Tenn. May 18, 2022).*
There was no probable cause for the tracking warrant for defendant. But, it was not so lacking in probable cause that the good faith exception does not apply. United States v. Escudero, 2022 U.S. Dist. LEXIS 89120 (D.Minn. May 18, 2022).*
There was reasonable suspicion to extend the stop when the officers abandoned the traffic stop and it became an investigation. United States v. Whitley, 2022 U.S. App. LEXIS 13398 (6th Cir. May 18, 2022).*
“Collado-Rivera has not shown he suffered ineffective assistance of trial counsel from counsel’s failure to obtain a Franks hearing because he has not provided prima facie proof that any search warrant affidavit in this case was falsified.” United States v. Collado-Rivera, 2022 U.S. Dist. LEXIS 89147 (S.D.Ohio May 17, 2022).*
The initial dog alert here did not provide probable cause for search of defendant’s vehicle. Thus, defense counsel was ineffective for not pursuing a Fourth Amendment challenge. “In summary, based on the record before us, a motion to suppress the evidence discovered in the vehicle appears meritorious—that is, it would have had a reasonable likelihood of success. The record contains no indication that the officers had probable cause at the outset or during Timber’s first entry into the car and, as a result, for the search following Timber’s re-entry to be permissible, Handler Officer must not have orchestrated it and Timber’s re-entry into the car must have been purely instinctual. In this instance, that was clearly not the case: Timber’s second entry into the vehicle was orchestrated by Handler Officer, who encouraged Timber to re-enter the car, whereupon Handler Officer shut the driver’s side door to keep Timber in the car to search for drugs.” State v. Beames, 2022 UT App 61, 2022 Utah App. LEXIS 64 (May 12, 2022).
Merely occupying a hotel room doesn’t give one standing to challenge its search. In the Second Circuit, an affidavit showing one’s reasonable expectation of privacy has to be presented with the motion to suppress. United States v. Wiley, 2022 U.S. Dist. LEXIS 89004 (D.Conn. May 18, 2022).*
A visitor had standing to contest the search of his own stuff while he was there. (And the alleged consent of his mother was suspect.) State v. Marcellus, 2022 N.J. Super. LEXIS 67 (May 18, 2022).
Defendant was stopped for a traffic offense, but she didn’t speak English. The three-minute delay in getting a translator on the phone was not unreasonable. United States v. Del Angel, 2022 U.S. App. LEXIS 13304 (5th Cir. May 17, 2022).
The district court properly dismissed plaintiffs’ Fourth Amendment excessive force claims against four officers as plaintiffs’ amended complaint simply made no allegations whatsoever regarding those officers in relation to the force used against the decedent. Carr v. City of Spring Valley Vill., 2022 U.S. App. LEXIS 13307 (5th Cir. May 17, 2022).*
The defense claim the officer somehow violated department policy in obtaining consent doesn’t bear on the constitutional question at all. There was at least reasonable suspicion for his stop and the encounter. United States v. Lopez-Garcia, 2022 U.S. Dist. LEXIS 88505 (N.D.Ill. May 17, 2022).
Officers had probable cause for defendant’s arrest for a sex trafficking crime for a meeting with a minor for sex during a biker rally. The search incident of his vehicle was reasonable. “Here, officers reasonably believed the car contained evidence of attempted commercial sex trafficking of a minor and attempted enticement of a minor for sexual activity. Slim agreed to bring a condom for the meeting, to pay $200, and used a phone to plan his meeting with Russell. It was reasonable for officers to believe they would find this evidence in the car.” [For what it’s worth, the description also supports the automobile exception.] United States v. Slim, 2022 U.S. App. LEXIS 13199 (8th Cir. May 17, 2022).*
The suppression hearing didn’t address a Franks claim. “But this hearing did not address any alleged omission in the search warrant affidavit. It addressed only whether the Algorithm was reliable enough to establish probable cause.” Therefore, plain error applies on appeal. United States v. Weyerman, 2022 U.S. App. LEXIS 13244 (3d Cir. May 17, 2022).*
Posted inConsent, Staleness, Voluntariness, Waiver|Comments Off on N.D.Ill.: Alleged violation of police dept policy on consent didn’t affect 4A claim here
The officer bumped defendant on a bike. It was potentially a seizure, but “Under Hodari D. and Torres, the seizure thus ended when Daniels got up and began running down the driveway.” United States v. Daniels, 2022 U.S. Dist. LEXIS 88072 (N.D.Cal. May 16, 2022).
It is harder to show staleness during an ongoing drug dealing offense. United States v. Fort, 2022 U.S. Dist. LEXIS 88117 (E.D.N.C. Mar. 29, 2022).*
During a traffic stop with the occupants out of the car, officers had reasonable suspicion for a protective sweep and found a gun. The tougher question of defendant’s standing as a passenger doesn’t have to be decided. United States v. Rodriguez, 2022 U.S. App. LEXIS 13021 (5th Cir. May 13, 2022).*
Posted inProtective sweep, Seizure, Staleness|Comments Off on N.D.Cal.: If bumping def on a bike was a seizure, it ended when he ran away
The good faith exception applies to the warrant affidavit’s showing of nexus. The showing wasn’t great, but it was sufficient to not be bare bones. The officer adequately connected defendant to the premises. United States v. Jackson, 2022 U.S. App. LEXIS 13147 (5th Cir. May 16, 2022).
The affidavit for search warrant here was based on an anonymous source, but it was corroborated by the officers through intel, records searches, and surveillance. [Remember Gates?] Probable cause and nexus were shown, and the good faith exception applies. United States v. Burrell, 2022 U.S. Dist. LEXIS 87168 (E.D.Mich. May 14, 2022).*
Defendant’s speeding at 20 over at 2:30 am then his slurred speech and appearance was reasonable suspicion of DUI. Tex. Dep’t of Pub. Safety v. Diaz, 2022 Tex. App. LEXIS 3295 (Tex. App. – Texarkana May 16, 2022).*
On Super Bowl weekend, Seminole Police Department officers were patrolling outside the Seminole Hard Rock Hotel and Casino and they saw defendant dressed as a security guard but with a “badge” they did not recognize as law enforcement or casino security. They talked to him and came to reasonable suspicion that he had a gun in a backpack. The encounter was consensual. United States v. Philpot, 2022 U.S. App. LEXIS 13113 (11th Cir. May 16, 2022).*
The government conceded no abandonment and sought other exceptions to the warrant requirement. The court of appeals finds abandonment anyway because the record is clear. In addition, an allegation of a Franks violation fails without alleging that probable cause does not remain without it is insufficient, and there is no Franks violation. United States v. Edwards, 2022 U.S. App. LEXIS 13122 (7th Cir. May 16, 2022):
Plead the Fifth Podcast: “May I search your phone, with good faith?” (“Can a police officer search a criminal suspect’s cell phone in full, when the only charge in the warrant was drug possession, and the affidavit provided barebone justification? This is the question the Fifth Circuit was presented in U.S. v. Morton. The Morton case presents an issue that is not fully resolved by the Supreme Court – what kind of protection a cell phone deserves under the Fourth Amendment? Treat it like a person’s home? Or, more than a home? We have the privilege to have two guest attorneys who are directly involved in this case to share some insights: Brandon Beck from the Federal Public Defender’s Office, who argued this case at the Fifth Circuit, and Aisha Dennis from the National Association of Criminal Defense Lawyers.”)
Posted inCell phones|Comments Off on Plead the Fifth Podcast: “May I search your phone, with good faith?”
Plaintiff’s detention after conviction is a due process issue (if at all) and not a Fourth Amendment issue. Jones v. York, 2022 U.S. App. LEXIS 13090 (7th Cir. May 16, 2022):
Greco v. Bruck, 2022 U.S. App. LEXIS 13074 (3d Cir. May 13, 2022), prior opinion Greco v. Bruck, 2021 U.S. App. LEXIS 33660 (3d Cir. Nov. 12, 2021) (posted here) reaffirms that state court proceedings bar federal litigation in a red-flag gun seizure case, a quasi-criminal proceeding:
The government violated the confrontation clause by putting into evidence a search warrant affidavit to seek to give context to the CS’s dealings with defendant. If that’s so important, then the government should call him. United States v. Hamann, 2022 U.S. App. LEXIS 13014 (5th Cir. May 12, 2022). Excellent discussion of informant hearsay and confrontation, and, in part:
Officers found defendant putting his kids in his car about five minutes after a ShotSpotter alert where no one had complained of gunfire. His ultimate frisk lacked reasonable suspicion. State v. Henson, 2022-Ohio-1571, 2022 Ohio App. LEXIS 1482 (1st Dist. May 11, 2022).*
There was more than just a bare bones application for search warrant here. There was more than a “mere modicum” of evidence, and a fair amount of information to support the good faith exception applying. United States v. Burrell, 2022 U.S. Dist. LEXIS 87168 (E.D.Mich. May 14, 2022).*
During the traffic stop, the diversion to call for a drug dog was without reasonable suspicion and it extended the stop. State v. Still, 166 Idaho 351, 458 P.3d 220 (App. 2019), is overruled. State v. Karst, 2022 Ida. LEXIS 52 (May 11, 2022).* https://isc.idaho.gov/opinions/48593.pdf
"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.
