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MI drone over curtilage case update

Posted on April 5, 2022 by Hall

In the Michigan drone over the curtilage case (posted here), Long Lake Twp. v. Maxon, the parties are directed to brief application of the exclusionary rule to zoning disputes:

Continue reading →

Posted in Curtilage, Drones | Comments Off

SCOTUS: Thompson v. Clark

Posted on April 4, 2022 by Hall

Thompson v. Clark, 2022 U.S. LEXIS 1885 (Apr. 4, 2022) (ScotusBlog: “Larry Thompson’s showing that his criminal prosecution ended without a conviction satisfies the requirement to demonstrate a favorable termination of a criminal prosecution in a Fourth Amendment claim under Section 1983 for malicious prosecution; an affirmative indication of innocence is not needed.” 6-3, Alito, Thomas, Gorsuch dissenting)

Posted in § 1983 / Bivens, Arrest or entry on arrest, SCOTUS | Comments Off

Reason: One Cheer for Stephen Breyer

Posted on April 4, 2022 by Hall

Reason: One Cheer for Stephen Breyer by Damon Root:

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Posted in SCOTUS | Comments Off

CA6: There was PC for SW for real time pinging of def’s cell phone

Posted on April 4, 2022 by Hall

There was probable cause for a search warrant for real time pinging of defendant’s cell phone to try and find out where he was. United States v. Ennis, 2022 U.S. App. LEXIS 8779 (6th Cir. Apr. 1, 2022).

Defendant was a parolee, and his story about who owned the car he was driving added up to reasonable suspicion. It was his cousin’s but then he didn’t know anything about his cousin. United States v. Chan-Guillen, 2022 U.S. Dist. LEXIS 61398 (D.N.J. Apr. 1, 2021).*

Defendants’ stop for overtinted windows was reasonable even if it should have turned out the officer was reasonably mistaken as to how much. United States v. Rothwell, 2022 U.S. Dist. LEXIS 61447 (E.D.Ky. Apr. 1, 2022),* R&R 2022 U.S. Dist. LEXIS 61591 (E.D.Ky. Feb. 8, 2022).*

The affidavit for the search warrant for defendant’s home and workplace was based on probable cause from the “extensive affidavit” showing how the fraud scheme was believed to work and where things would be. United States v. Castro, 2022 U.S. Dist. LEXIS 61410 (D.Nev. Mar. 30, 2022).*

Posted in Cell site location information, Probation / Parole search, Reasonableness | Comments Off

CA8: Car seizure for overtinting and inventory were reasonable

Posted on April 4, 2022 by Hall

Defendant’s car was permissibly seized for overtinting, and the subsequent search was reasonable as inventory. United States v. Perez, 2022 U.S. App. LEXIS 8697 (8th Cir. Apr. 1, 2022).*

“Even assuming arguendo that Thrasher could make a substantial preliminary showing that the warrant affidavit knowingly or recklessly misrepresented the CI’s criminal history, the CI’s record of cooperation with law enforcement, or Thrasher’s criminal history, the inaccuracies Thrasher identifies are not material. The warrant affidavit made clear the CI’s significant criminal record, including a conviction for a crime of dishonesty. Many of the alleged inaccuracies regarding the CI’s record are minor or unproven allegations. Thrasher’s criminal history was not central to the warrant affidavit’s probable cause showing, and the warrant affidavit’s description does not materially alter the overall picture that Thrasher himself had a significant criminal history.” United States v. Thrasher, 2022 U.S. App. LEXIS 8686 (9th Cir. Mar. 31, 2022).*

Defendant’s credibility claim on voluntariness of consent to signing a consent form is rejected on appeal. United States v. Gonzalez, 2022 U.S. App. LEXIS 8688 (9th Cir. Mar. 31, 2022).*

Posted in Franks doctrine, Inventory, Standards of review | Comments Off

E.D.N.Y.: Visual surveillance of a car in a parking lot is not a search; no REP in the license plate

Posted on April 3, 2022 by Hall

Visual surveillance of plaintiff’s car in a parking lot is not a search. “Mr. Porter alleges that Investigator Tucci committed an unreasonable search by conducting surveillance of his vehicle in a parking lot and by looking up his plate and vehicle registration in a database without ‘reasonable suspicion of criminal activity.’ Pl.’s Opp’n 5-6. But Investigator Tucci did not need reasonable suspicion for those activities. Ordinary visual surveillance from a public place does not amount to a search.” Porter v. Port Auth. of N.Y. & N.J., 2022 U.S. Dist. LEXIS 61007 (E.D.N.Y. Mar. 31, 2022)

The Pennsylvania AG obtained a search warrant for records for insurance disability fraud. Federal crimes were revealed. The warrants were issued on probable cause and were particular enough. United States v. Capozzi, 2022 U.S. App. LEXIS 8712 (3d Cir. Apr. 1, 2022).*

Aside from citing the wrong authority to begin with, “Reasonable jurists would also agree that it was not unreasonable for the state court to conclude that Winbush failed to make the requisite showing of prejudice under Strickland. Winbush failed to show that the non-litigated suppression motions would have been meritorious.” Winbush v. Boyd, 2022 U.S. App. LEXIS 8732 (6th Cir. Mar. 31, 2022).*

Posted in Ineffective assistance, Probable cause, Reasonable expectation of privacy | Comments Off

WaPo: Cryptocurrency could help governments and businesses spy on us

Posted on April 2, 2022 by Hall

WaPo: Cryptocurrency could help governments and businesses spy on us by Eswar Prasad (“The popularity of digital currencies like bitcoin could erode the last vestiges of financial privacy online”)

Posted in Surveillance technology | Comments Off

CA7: Def’s detention during protective sweep looking for another was unreasonable

Posted on April 2, 2022 by Hall

Defendant’s detention in an apartment building during a protective sweep for a fugitive that clearly wasn’t him was unreasonable. The district court’s denial of the motion to suppress is reversed. United States v. Segoviano, 2022 U.S. App. LEXIS 8771 (7th Cir. Apr. 1, 2022).

Plaintiff’s claim officers coerced him out of his home to arrest him without a warrant fail on qualified immunity grounds. Reviewing the case law, it sure isn’t clear that’s a claim, even surveying all the cases. Gaddis v. Demattei, 2022 U.S. App. LEXIS 8768 (7th Cir. Apr. 1, 2022).

Defendant’s claim is that information was omitted from the affidavit, but none of it is material to the probable cause finding. United States v. Faulkner, 2022 U.S. Dist. LEXIS 61104 (D.Idaho Mar. 30, 2022).*

Posted in Arrest or entry on arrest, Franks doctrine, Protective sweep, Qualified immunity | Comments Off

MA: Cell “tower dumps” require SW on PC

Posted on April 2, 2022 by Hall

Cell “tower dump” of all numbers connected to it requires a search warrant issued on probable cause. Here it was lacking. Commonwealth v. Perry, 2022 Mass. LEXIS 151 (Apr. 1, 2022):

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Posted in Cell phones | Comments Off

MO: Def’s actions when coming upon a ruse checkpoint on I-44 was RS

Posted on April 2, 2022 by Hall

“[T]he procedures of the ruse drug checkpoint, coupled with Defendant’s conduct of abruptly changing lanes and taking Exit 33 at the last second, meets the standard for individualized suspicion required by Edmond and Mack.” State v. Barnum, 2022 Mo. App. LEXIS 174 (Mar. 30, 2022).

Failure to fully argue a suppression motion and then get a ruling was waiver. State v. Milstead, 2022 Tenn. Crim. App. LEXIS 144 (Mar. 30, 2022).*

The lack of a time limitation in the search warrant for complex business records was not overbroad. A lesser time period may have been ideal, but that doesn’t make this one unreasonable. United States v. Farhat, 2022 U.S. Dist. LEXIS 60240 (E.D.N.Y. Mar. 31, 2022).*

Posted in Particularity, Reasonable suspicion, Waiver | Comments Off

CA6: Misidentification and 24 days in jail for wrong man not shown to be pattern for city liability

Posted on April 1, 2022 by Hall

“‘Benny’ Lopez of Traverse City sold heroin to a confidential informant working with the Traverse Narcotics Team in northern Michigan. ‘Benjamin’ Lopez of Grand Rapids did not. Yet officers arrested Benjamin, not Benny, for this crime. The wrong Lopez languished in jail for 24 days due to this identification error. Benjamin Lopez brought this suit under 42 U.S.C. § 1983 alleging that various state actors unreasonably seized him in violation of the Fourth Amendment. Lopez, however, has since settled with the officer who misidentified him as Benny. He now pursues claims only against a supervisor, Detective Sergeant Randy Graham, and the Traverse Narcotics Team itself. But § 1983 does not allow Lopez to hold Graham or the Team liable for the other officer’s mistake. And Graham reasonably believed that the officer intended to arrest Benny from the Traverse City area. Lopez also failed to show that the Team had a history of making similar misidentifications. So despite our sympathies for Lopez’s predicament, we must affirm the grant of summary judgment to these two defendants.” Lopez v. Foerster, 2022 U.S. App. LEXIS 8591 (6th Cir. Mar. 29, 2022).*

Qualified immunity denied. “Accepting the Estate’s version of events, as we must at this stage, Knibbs was shot inside his own home while holding a loaded shotgun that was not aimed at Deputy Momphard. There is no record evidence that Knibbs, while holding his shotgun, made any furtive movement towards Deputy Momphard that would indicate his intent to cause physical harm. Further, as noted above, it is debatable whether Deputy Momphard was readily recognizable as a law enforcement officer in the middle of the night on Knibbs’ unlit porch. These contested material facts, when viewed in their totality, bear a strong resemblance to our previous rulings in Cooper, Hensley, and Betton–all of which held that a police officer used unconstitutionally excessive force in shooting a man holding a firearm on his own property who was neither pointing the weapon at the officer nor giving some other indicator of an immediate intent to harm.” Knibbs v. Momphard, 2022 U.S. App. LEXIS 8446 (4th Cir. Mar. 30, 2022).*

Posted in § 1983 / Bivens, Arrest or entry on arrest, Qualified immunity | Comments Off

D.Mass.: A foreign law enforcement agency can be a CI, and these are the standards

Posted on April 1, 2022 by Hall

“Given these facts, the Magistrate Judge reasonably relied on the foreign agency’s tip in concluding that probable cause existed to issue the search warrant because (1) ‘a tip from one federal law enforcement agency to another implies a degree of expertise and a shared purpose in stopping illegal activity,’ …; (2) the ‘working relationship’ between the United States and the FLA ‘bolsters the credibility of the information’ since the FLA’s ‘reputation can be assessed,’ and it ‘can be held responsible if its allegations turn out to be fabricated,’ …; and (3) ‘the source here was not only known to [federal law enforcement], but was also a repeat-player in the United States’ efforts’ at combatting child exploitation, …” United States v. Bateman, 2022 U.S. Dist. LEXIS 59570 (D.Mass. Mar. 31, 2022).

“The record establishes that Defendant abandoned his automobile after engaging law enforcement in a high speed chase. He fled on foot, leaving his car door open and his keys on the floorboard. Under these facts, Defendant retained no expectation of privacy in his vehicle and has no standing to assert a Fourth Amendment claim.” The vehicle was also subject to inventory. United States v. Pollard, 2022 U.S. Dist. LEXIS 59896 (D.S.C. Mar. 31, 2022).*

The smell of marijuana was probable cause. There were also multiple air fresheners, and that’s a tip off. The court of appeals doesn’t consider that the officer was inherently incredible on the dashcam. People v. Sims, 2022 IL App (2d) 200391, 2022 Ill. App. LEXIS 165 (Mar. 31, 2022).*

Posted in Abandonment, Informant hearsay, Reasonable suspicion | Comments Off

OH11: Dragging out the stop a few minutes to allow drug dog to arrive made it unreasonable

Posted on April 1, 2022 by Hall

In a state where the appellate courts are overly solicitous of police calling for drug dog sniffs in traffic stops, this court finds the stop prolonged for the drug dog to get there without reasonable suspicion. Neyhard v. State, 2022-Ohio-1098, 2022 Ohio App. LEXIS 987 (11th Dist. Mar. 31, 2022).

Omission of a claimed fact that defendant knew the age of the person in the alleged child pornography video isn’t relevant to probable cause. There was probable cause she was underage, and that’s what matters. (The question is whether the search is valid, not whether he is guilty of the offense.) United States v. Arroyo-Angelino, 2022 U.S. Dist. LEXIS 59152 (D.Md. Mar. 29, 2022).*

The district court having credited the officer’s testimony that defendant’s windows were overtinted, the appellate court was bound to follow that there was justification for the stop. United States v. Beauchamp, 2022 U.S. App. LEXIS 8445 (4th Cir. Mar. 30, 2022).*

Posted in Probable cause, Reasonable suspicion, Standards of review | Comments Off

NY3: SW address for 1013 Pleasant second floor permitted search when it was actually 1015 Pleasant

Posted on April 1, 2022 by Hall

The address of the place to be searched in the warrant was 1013 Pleasant Street, second floor. The second floor, however, was 1015 Pleasant Street, and it was searched. The warrant is not to be view hypertechnically, and it adequately described the place to be searched and it was searched. People v. Roberts, 2022 NY Slip Op 02157, 2022 N.Y. App. Div. LEXIS 2051 (3d Dept. Mar. 31, 2022).

The ongoing nature of the alleged crime made the search warrant affidavit for defendant’s cell phone not stale. United States v. Middleton, 2022 U.S. Dist. LEXIS 58829 (N.D.Ga. Mar. 30, 2022).*

Officers had a search warrant for defendant’s premises. His flight from the premises and interferences supported search of his car parked outside, too, under the automobile exception. United States v. Offutt, 2022 U.S. Dist. LEXIS 58915 (S.D.Ill. Mar. 30, 2022).*

Posted in Automobile exception, Particularity, Staleness | Comments Off

NY3: Electronic logging device requirement on large trucks reasonable under 4A

Posted on March 31, 2022 by Hall

A federal interstate truck requirement of an electronic logging device on the truck, incorporated under New York statute, for GPS, speed, and an event recorder is reasonable as an administrative search under the Fourth Amendment. It tracks the truck, not people, although people ride in it. In re Owner Operator Indep. Drivers Ass’n v. New York State DOT, 2022 NY Slip Op 02166, 2022 N.Y. App. Div. LEXIS 2057 (3d Dept. Mar. 31, 2022):

Continue reading →

Posted in GPS / Tracking Data, Uncategorized | Comments Off

MA: Firearms “improperly secured” found in search of house not forfeitable

Posted on March 31, 2022 by Hall

Firearms allegedly found “improperly secured” in defendant’s home during a search are not contraband subject to forfeiture. Commonwealth v. Fleury, 2022 Mass. LEXIS 149 (Mar. 31, 2022).*

Defendant was stopped for overtinted windows, and, when he got out of the car, loose cash and apparent drugs were in the door pocket. That was plain view. United States v. Walker, 2022 U.S. Dist. LEXIS 58081 (D.Mass. Mar. 30, 2022).*

Defendant’s showing up for an on-the-street gun deal and showing a gun was probable cause. United States v. Ngomba, 2022 U.S. Dist. LEXIS 58080 (D.Mass. Mar. 30, 2022).*

The officer’s 85 paragraph affidavit for search warrant described defendant’s activities, too, and it showed probable cause. United States v. Rech, 2022 U.S. Dist. LEXIS 57845 (W.D.N.Y. Mar. 29, 2022).*

Posted in Forfeiture, Plain view, feel, smell, Probable cause | Comments Off

TX: Affidavit incorporated in SW had specific description and saves SW from overbreadth argument

Posted on March 31, 2022 by Hall

“The issue before us is whether the particularity requirement of the Fourth Amendment is satisfied if a warrant describes the place to be searched as a fraternity house as a whole without specifying a suspect’s actual room in the house, but an incorporated affidavit provides both descriptions. We hold that the particularity requirement is satisfied if an affidavit that is incorporated into the warrant includes, somewhere, a specific description of the place that was searched. We reverse the judgment of the court of appeals.” Patterson v. State, 2022 Tex. Crim. App. LEXIS 187 (Mar. 30, 2022).

Defendant’s 2255 IAC claims are cumulative to evidence otherwise admitted in the case and don’t alter the outcome. United States v. Edwards, 2022 U.S. Dist. LEXIS 57914 (E.D.Pa. Mar. 30, 2022).*

There were multiple reasons to stop defendant. Denied. United States v. Banks, 2022 U.S. Dist. LEXIS 58610 (E.D.Ky. Feb. 23, 2022),* adopted, 2022 U.S. Dist. LEXIS 58246 (E.D.Ky. Mar. 30, 2022).*

2254 petitioner’s posse comitatus argument was decided in his direct appeal, and it doesn’t usually lead to suppression anyway. Kessler v. Sec’y of the Fla. Dep’t of Corr., 2022 U.S. Dist. LEXIS 58096 (N.D.Fla. Feb. 23, 2022).*

Posted in Ineffective assistance, Issue preclusion, Particularity, Warrant papers | Comments Off

M.D.Tenn.: Copies of what were notarized kept by the notary are third-party records

Posted on March 31, 2022 by Hall

Defendant had documents notarized at a Nashville law office where the practice of the lawyer-notary, not required by law, to copy what was notarized, and they did it for free. The government found out about it and subpoenaed the records. They were third party records where there was no reasonable expectation of privacy. [Attorney-client privilege not mentioned, but the lawyer wasn’t acting as a lawyer.] As to a storage unit, it was held abandoned before the search warrant was executed. United States v. Friedmann, 2022 U.S. Dist. LEXIS 56688 (M.D.Tenn. Mar. 29, 2022).

Passed out behind the wheel of one’s car after a crash into trees was reasonable suspicion. State v. Knauer, 2022 Del. Super. LEXIS 120 (Mar. 29, 2022).*

Defendant was stopped in a truck for speeding. When the officer got to the driver’s window, it was rolled down 3-4″. He asked defendant to roll it down more, and defendant replied that he felt uncomfortable doing so. The officer asked why. When the window came down, the smell of marijuana was evident. That led to a justified dog sniff. State v. Harning, 2022 MT 61, 2022 Mont. LEXIS 268 (Mar. 29, 2022).*

Posted in Plain view, feel, smell, Reasonable suspicion, Third Party Doctrine | Comments Off

D.Ariz.: To overcome Stone bar, pet’r has to proffer something about being denied “full and fair opportunity” to litigate 4A claim

Posted on March 31, 2022 by Hall

To overcome Stone in a 2254, the petitioner has to proffer that he was denied a full and fair opportunity to litigate his Fourth Amendment claim. Failure to do so is fatal to claim. Bartels v. Arizona, 2022 U.S. Dist. LEXIS 57547 (D.Ariz. Feb. 24, 2022).

Defendant makes a Franks challenge as to drugs whether “close at hand” actually means in a residence. No matter; striking those words still leads to probable cause. United States v. Medlock, 2022 U.S. Dist. LEXIS 56785 (M.D.La. Feb. 23, 2022).*

Not challenging defendant’s criminal history recitation in an affidavit for search warrant was sound legal strategy on defense counsel’s part. Thomas v. United States, 2022 U.S. Dist. LEXIS 57535 (N.D.Ohio Mar. 29, 2022).*

Posted in Franks doctrine, Ineffective assistance, Issue preclusion | Comments Off

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"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.

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