The officer’s conclusion defendant violated a traffic law here wasn’t a reasonable conclusion, and the motion to suppress should have been granted. State v. Brown, 318 Ore. App. 713, 2022 Ore. App. LEXIS 585 (Apr. 6, 2022).
A named CI’s statement he witnessed defendant’s crime is a strong factor in the CI’s reliability. United States v. Bryant, 2022 U.S. App. LEXIS 9091 (6th Cir. Apr. 4, 2022).
Defendant’s car was validly searched either as a search incident or a protective sweep for weapons. It was unnecessary for the trial court to even go into Rodriguez. Creller v. State, 2022 Fla. App. LEXIS 2518 (Fla. 2d DCA Apr. 6, 2022).*
Defendant’s Franks motion fails because the alleged omissions were neither reckless or intended to mislead the magistrate. Moreover, the good faith exception applies. United States v. Roberts, 2022 U.S. Dist. LEXIS 63564 (E.D.Tex. Mar. 24, 2022).*
“Given the totality of the circumstances, the District Court erred in concluding as a matter of law that the use of force was objectively reasonable. See Giles v. Kearney, 571 F.3d 318, 327 n.4 (3d Cir. 2009) (denying summary judgment on the basis of a factual dispute over whether a plaintiff was ‘fully subdued’ when alleged excessive force occurred); cf. Abraham v. Raso, 183 F.3d 279, 290 (3d Cir. 1999) (‘[R]easonableness under the Fourth Amendment should frequently remain a question for the jury.’). Greene’s accounts are not so inconsistent, vague, or refuted by the record as to warrant summary judgment for Kelly and Valdivia. See Anderson, 477 U.S. at 255.” Greene v. Kelly, 2022 U.S. App. LEXIS 9200 (3d Cir. Apr. 6, 2022).
Posted inExcessive force, Reasonableness|Comments Off on CA3: “[R]easonableness [of force] under the Fourth Amendment should frequently remain a question for the jury”
State’s destruction of recording of a telephonic warrant application for weapons in a domestic violence case leads to suppression of the search in New Jersey. The prejudice to defendant is because he can’t now challenge the search without it. State v. M.B., 2022 N.J. Super. LEXIS 42 (Apr. 6, 2022):
Crime Report: Installing a Security Camera? In Chicago That Will Earn $$$ by TCR staff (“Chicago authorities have announced a new program that reimburses residents and businesses for installing security cameras. There’s one caveat: the cameras must be registered with the Chicago Police Department.”)
Posted inDigital privacy|Comments Off on Crime Report: Installing a Security Camera? In Chicago That Will Earn $$$
Whether a lower court judge could issue a telephonic search warrant under state law doesn’t matter in federal court or the Fourth Amendment. “To begin with, the defendant raises at best a state-law technicality that is not of federal constitutional stature. The defendant’s arguments are ones of state law, and he does not claim that any Fourth Amendment standard was breached by a municipal judge’s issuance of the warrant. Without more, there is no call for application of the federal exclusionary rule in such a situation.” Besides, the good faith exception would apply. United States v. Matthews, 2022 U.S. Dist. LEXIS 63408 (D.N.J. Apr. 4, 2022).
Defendant was stopped, detained, and ordered out of his car all without reasonable suspicion. They apparently suspected a hand-to-hand drug deal a little earlier, but the other person wasn’t seen close enough to the car to do that. United States v. Brown, 2022 U.S. Dist. LEXIS 63087 (D.Nev. Apr. 5, 2022).*
Defendant was shown to have consented to an entry and seizure of a cell phone. His mother also let the police in to retrieve it. That led to a valid search of a second cell phone which was not tainted by any illegality. United States v. Sanchez, 2022 U.S. App. LEXIS 9156 (11th Cir. Apr. 5, 2022).*
The CI’s statement coupled with police corroboration shows there was probable cause for the search warrant. It was also particular. In any event, the good faith exception would apply. United States v. Woods, 2022 U.S. Dist. LEXIS 63393 (W.D.N.C. Apr. 5, 2022).*
and I’ve been a criminal defender since November 1979 (after my stint at the local prosecutor’s office from mid-1973): WaPo: Cruz and Cotton cut to the chase on GOP’s suspicion of defense lawyers by Aaron Blake (“With their criticisms of Ketanji Brown Jackson’s professional background, Tom Cotton and Ted Cruz venture well into demagogue territory.”)
I defended a war criminal 2004-06; I represent accused child pornographers and pedophiles. To him, that makes me one of them. Defending the Bill of Rights from the likes of them …. Oh: I also represent two police officers in job related assaults and convicted Republican politicians. I guess I’m them too.
Posted inUncategorized|Comments Off on Since Sen. Cotton is one of my senators …
In a military prosecution for adultery, the military judge found the search of defendant’s cell phone unreasonable and a violation of the Fourth Amendment but refused to suppress in its cost-benefits analysis. The court of appeals disagreed and found the searcher’s actions more than mere negligence, and suppression was justified. United States v. Lee, 2022 CCA LEXIS 211 (N.-M. Ct. Crim. App. Apr. 5, 2022):
Posted inExclusionary rule|Comments Off on N.-M.: In applying cost-benefits analysis of exclusionary rule, this was more than mere negligence and exclusion was necessary
“We have ‘recognized the possibility that the Rodriguez moment occurs when an officer no longer pursues the tasks tied to the traffic stop even though he reasonably could have continued with those tasks.’ Garner, 961 F.3d at 270 (citing Green, 897 F.3d at 182). But there is no evidence to suggest that Officer Rankin deviated from the mission of his traffic stop or that he purposefully delayed completing those tasks. Officer Rankin did not have the opportunity to pursue any off-mission tasks before Hunter fled and thereby interrupted the process. Accordingly, we agree with the District Court that the stop was not prolonged for the canine unit.” United States v. Hunter, 2022 U.S. App. LEXIS 9067 (3d Cir. Apr. 5, 2022).
A child support garnishment under state law was not an unreasonable seizure of defendant’s person or his property. Williams v. Aetna, Inc., 2022 U.S. Dist. LEXIS 62021 (E.D.Cal. Mar. 31, 2022).* A connected case is Williams v. Vista, 2022 U.S. Dist. LEXIS 62034 (E.D.Cal. Mar. 31, 2022).*
“[T]his Court finds Officer Alford had sufficient probable cause for the initial traffic stop, as he observed Defendant violate a civil traffic ordinance.” During the stop, and outstanding warrant showed. United States v. Visintainer, 2022 U.S. Dist. LEXIS 62876 (S.D.Ohio Apr. 5, 2022).*
There was no apparent authority for defendant’s mother to consent to police entry. They knew she was a mere visitor herself, and she offered to let them in. She was not inside; she just came up when they were there. Commonwealth v. Lehnerd, 2022 PA Super 57, 2022 Pa. Super. LEXIS 144 (Apr. 5, 2022).
“On this interlocutory appeal, given that the facts and all reasonable inferences must be drawn in Warden’s favor, we cannot accept as true the disputed testimony of Officers Cowan and Weaver that Warden’s pushup movement gave him access to his waistband in a way that would allow him to shoot the officers or others, or otherwise create an immediate threat to their safety. Therefore, given Warden’s version of events, we cannot conclude that as a matter of law Officers Cowan and Weaver acted objectively reasonably when they shot Warden. Therefore, the district court did not err in finding that the question of whether a constitutional violation occurred was a matter for the jury to determine.” Warden v. Cowan, 2022 U.S. App. LEXIS 9016 (6th Cir. Apr. 4. 2022).*
Posted inApparent authority, Excessive force|Comments Off on PA: No apparent authority that def’s mother, a visitor outside, could consent to search
The probable cause analysis for arrest and search is the same. Defendant’s car was searched under the automobile exception in Colorado, and a quantity of marijuana was found. Federal law controls here (Virginia v. Moore), not state law and whether his possession was legal under Colorado law. United States v. Keys, 2022 U.S. Dist. LEXIS 62483 (D.Colo. Apr. 4, 2022):
Posted inAutomobile exception, Probable cause|Comments Off on D.Colo.: A vehicle search for MJ that might have been legally possessed under CO law was still potentially a violation of federal law, and federal law controls
Defendant had a reasonable expectation of privacy in a house he was visiting along with others late at night. When the police knocked, he answered the door, and that connoted some control over the premises. His disclaimer of ownership of some property came after illegal police conduct in a warrantless entry at night without exigent circumstances. Potential destruction of car keys was the claimed exigency. State v. Jordan, 2022-NCCOA-215, 2022 N.C. App. LEXIS 225 (Apr. 5, 2022).
On the affidavits as a whole, “Detectives Fassler and Dear had arguable probable cause, so they did not violate Mr. Sabeerin’s clearly established constitutional rights, and the district court properly granted them summary judgment based on qualified immunity on the Fourth Amendment claim.” Sabeerin v. Albuquerque Police Dep’t, 2022 U.S. App. LEXIS 9071 (10th Cir. Apr. 6, 2022).*
Failure to execute a cell phone search warrant within the time period specified by statute is not a constitutional violation warranting suppression of evidence. The warrant did not get stale in the meantime. Walker v. Commonwealth, 2022 Va. App. LEXIS 89 (Apr. 5, 2022).
WaPo: What to know about no-knock warrants by Courtney Kan, Nicole Dungca, and Jenn Abelson (“No-knock raids, considered one of the most dangerous and intrusive policing tactics, have been at the center of a debate in recent years over police use of force. Criminal justice experts estimate that police carry out tens of thousands of no-knock raids every year in the United States. Those who defend the tactic say that the majority of the raids do not lead to injuries and likely prevent violence and preserve evidence that otherwise would have been destroyed. But critics say that the risks outweigh the benefits and are often not worth the amount of drugs recovered.”)
Posted inKnock and announce|Comments Off on WaPo: What to know about no-knock warrants
Posted ingeofence|Comments Off on Techdirt: Law Prof Suggests Geofence Warrants Are A Net Gain For The Public, Even If They Invert The Probable Cause Standard
“The information provided to the agents came from a vetted CS who had known Thomas for years. The CS’s information, as noted above, was then corroborated using audio recordings and physical surveillance as well as the agents’ independent check of records. These facts blunt Thomas’s challenge to the CS’s reliability. Indeed, where the search warrant affidavit is based substantially on information provided by an informant, evidence of the informant’s reliability, veracity, and basis of knowledge is highly relevant to, but is not dispositive of, the probable cause determination. Gates, 462 U.S. at 230.” United States v. Thomas, 2022 U.S. Dist. LEXIS 62390 (E.D.Mo. Mar. 29, 2022).*
The government showed that the CI here was sufficiently reliable for a warrant to issue. United States v. McCawley, 2022 U.S. Dist. LEXIS 62242 (E.D.Ky. Apr. 4, 2022),* R&R 2022 U.S. Dist. LEXIS 62381 (E.D.Ky. Feb. 28, 2022).*
Plaintiff’s claims that the parties conspired to falsify evidence of this search against him, aside from being fantastical, was barred by Younger and qualified or absolute immunity for all the parties. Shaw v. Cnty. of Milwaukee, 2022 U.S. App. LEXIS 8947 (7th Cir. Apr. 4, 2022).*
2255 petitioner challenges three separate search warrants in an ineffective assistance of counsel claim, but none of them are shown to be constitutionally deficient. Mancillas v. United States, 2022 U.S. Dist. LEXIS 62232 (S.D.Ind. Apr. 1, 2022).*
Defendant’s ineffective assistance of counsel claim to withdraw his plea is denied because of an overlooked Fourth Amendment claim. All he has are conclusory allegations and he doesn’t show the issue had merit. Prentice v. United States, 2022 U.S. Dist. LEXIS 62137 (N.D.Tex. Apr. 4, 2022).*
Metadata in photographs of defendant’s property show that they were taken before the search warrant was issued. The search warrant was going to issue anyway, and nothing relied upon the photographs. Denied. United States v. Jefferson, 2022 U.S. Dist. LEXIS 62098 (E.D.La. Apr. 4, 2022).
Defendant’s giving a false name at the time of her arrest for shoplifting in a Walmart was reason enough for custodial arrest. In addition, she lived in a different county and had FTA charges under her real name. State v. Goodro, 2022 Kan. LEXIS 36 (Apr. 1, 2022).*
“The police saw the brothers panhandling. They insisted they were on private property. If they were, however, they were committing trespass in violation of a city ordinance. The police thus had reasonable suspicion to stop the brothers and investigate. Given the presence of reasonable suspicion, we affirm the dismissal of the Fourth Amendment claim.” Montgomery v. Bliley, 2022 U.S. App. LEXIS 8907 (10th Cir. Apr. 4, 2022).*
Posted inIndependent source, Probable cause|Comments Off on E.D.La.: Photographs taken before SW issued or the SW are not suppressed, they had nothing to do with getting the SW
A communication data warrant requires probable cause. Facebook’s data in hand is not “intercepted” for wiretapping purposes. Facebook, Inc. v. State, 2022 N.J. Super. LEXIS 40 (Apr. 4, 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.
