“Long-standing precedent makes clear that swearing to an arrest warrant affidavit and executing an arrest are traditional police functions, and performing such functions at the direction of a prosecutor does not transform them into prosecutorial acts protected by absolute immunity.” Washington v. Napolitano, 2022 U.S. App. LEXIS 7638 (2d Cir. Mar. 23, 2022).
Defendant’s 2255 argument that defense counsel was ineffective for not better arguing his search issue in the district court fails. None of the issues he raises would change the outcome. United States v. Aviles, 2022 U.S. Dist. LEXIS 51379 (M.D.Pa. Mar. 22, 2022).*
Defendant’s claim here is that a prior unlawful search led to this search warrant. There is no causal connection between the two. Motion to suppress denied. United States v. Henderson, 2022 U.S. Dist. LEXIS 51402 (D.Ore. Mar. 22, 2022).*
“As set forth above, the warrant was sufficiently supported by probable cause and the agent’s reliance on it was justified and reasonable.” United States v. Gonzalez-Rivera, 2022 U.S. Dist. LEXIS 51430 (W.D.N.Y. Feb. 17, 2022).*
A warrantless entry into defendant’s house because he’d been driving drunk was unreasonable. “Considering all the foregoing, we do not believe the Roland factors weigh in favor of an exigency here. Police were investigating a suspected drunk driver and nothing more. DUI is a misdemeanor, and there were no reported injuries, no reported property damage other than to the vehicle itself, and therefore nothing to support a finding of a high gravity offense here. There is no indication Appellant was armed, and no indication he would have attempted to escape. The Roland factors are not meant to support warrantless entry any time police have strong reason to suspect drunk driving. Moreover, the need to obtain BAC evidence is not sufficient, pursuant to McNeely, to create an exigency. We therefore cannot uphold the trial court’s denial of his suppression motion on this basis.” Commonwealth v. Edgin, 2022 PA Super 49, 2022 Pa. Super. LEXIS 130 (Mar. 22, 2022).
The warrant was issued with probable cause. In any event, the good faith exception applies. United States v. Potter, 2022 U.S. Dist. LEXIS 50899 (E.D.Tenn. Mar. 22, 2022),* R&R 2022 U.S. Dist. LEXIS 51150 (E.D.Tenn. Jan. 27, 2022).*
“The search here was generally unreasonable, but it was saved by inevitable discovery. “In the present case, the Government does not contend that Hobbs had probable cause to search Defendant’s vehicle. Hobbs did not have a warrant. His search was not intended to protect himself from hazards within Defendant’s arm reach or to prevent the destruction of evidence. His search was not in pursuit of evidence related to the crime of arrest. His alleged ‘inventory search’ of the vehicle was conducted sloppily, against protocol, and seemingly not for the purpose of inventorying the vehicle. Make no mistake: but for the inevitable-discovery exception, Hobbs’s search of Defendant’s vehicle was illegal and a violation of the Constitution.” United States v. Travis, 2022 U.S. Dist. LEXIS 49324 (E.D.Wis. Mar. 21, 2022).
Where the search warrant said to search electronic devices “at said place,” it didn’t mean at the site of the seizure. United States v. Kasnetz, 2022 U.S. Dist. LEXIS 50613 (N.D.Tex. Mar. 22, 2022).*
A search warrant already being sought was inevitable discovery for this allegedly illegal search. That warrant was issued with probable cause. United States v. Potter, 2022 U.S. Dist. LEXIS 50899 (E.D.Tenn. Mar. 22, 2022).*
For purposes of NY negligence law, execution of a no-knock warrant creates a “special duty” between the police and the public. Ferreira v. City of Binghamton, 2022 NY Slip Op 01953, 2022 N.Y. LEXIS 392 (Mar. 22, 2022):
After search warrant was issued, the issuing magistrate recused from the rest of the matter because defendant’s father was a longstanding employee of the court. There apparently was no relationship with defendant. This did not present a constitutional problem for issuance of the warrant. United States v. Guerrero, 2022 U.S. Dist. LEXIS 49996 (D.Guam Mar. 18, 2022).
The trial court’s redaction of search warrant papers before their release was shown justified. People v. Stephen, 2022 NY Slip Op 01974, 2022 N.Y. App. Div. LEXIS 1851 (1st Dept. Mar. 22, 2022).
Defendant’s failure to make a trial objection waived appeal of his motion to suppress. Hostetler v. State, 2022 Ind. App. LEXIS 80 (Mar. 22, 2022).*
“The Court finds that Chronister unlawfully prolonged the traffic stop by pursuing an investigation into whether or not Lewis was in violation of his parole conditions.” “The Court finds that Chronister did not believe at the time of the traffic stop that Lewis was in violation of any parole conditions.” United States v. Lewis, 2022 U.S. Dist. LEXIS 49465 (D.Nev. Mar. 21, 2022).
Opening a file of suspected child pornography that had been transmitted to NCMEC from Facebook and then to law enforcement was a search, but it was reasonable under the good faith exception and inevitable discovery. United States v. Holmes, 2022 U.S. Dist. LEXIS 49838 (D.Ariz. Mar. 21, 2022).
The exclusionary rule does not apply to revocation of supervised release proceedings. United States v. Williams, 2022 U.S. App. LEXIS 7348 (5th Cir. Mar. 18, 2022).*
Tribal membership confers no standing. “Article III standing is not Fourth Amendment standing, and Defendants’ argument that the Confederated Tribes [and Bands of Yakima Nation v. Yakima County, 963 F.3d 982 (9th Cir. 2020)] decision, by negative implication, means that any tribal member can validly move to suppress evidence recovered anywhere on the Yakima Nation’s land is unpersuasive.” United States v. Cloud, 2022 U.S. Dist. LEXIS 49247 (E.D.Wash. Mar. 8, 2022).
An authorized user of a car has standing, but here the evidence shows abandonment. United States v. Williams, 2022 U.S. Dist. LEXIS 49366 (W.D.Mo. Mar. 21, 2022),* R&R 2022 U.S. Dist. LEXIS 49670 (W.D.Mo. Feb. 4, 2022).*
The mission of the traffic stop was complete, but the officer went off on an unrelated investigation. Motion to suppress granted. United States v. Lewis, 2022 U.S. Dist. LEXIS 49465 (D.Nev. Mar. 21, 2022).*
“Moreover, even if Defendant is correct that SAPD lacked probable cause to search his vehicle, a motion to suppress is unlikely to succeed. Defendant focuses on one paragraph of the search warrant affidavits and ignores the other four paragraphs detailing additional bases for probable cause to search Defendant’s residence and storage unit. (Res. Warrant [#65-1], at 1-2, Storage Warrant [65-2], at 1-2.) Furthermore, even if probable cause was lacking, the evidence discovered as a result of the execution of those warrants would still likely be admissible under the good-faith exception.” United States v. Vann, 2022 U.S. Dist. LEXIS 49279 (W.D.Tex. Mar. 18, 2022).
The search warrant was particular. “Defendant claims the warrant sought much more information than it actually does because he cherry picks certain phrases from the warrant and ignores the limiting principles contained therein.” United States v. Rosario, 2022 U.S. Dist. LEXIS 49045 (M.D.Pa. Mar. 18, 2022).*
Posted inBurden of pleading|Comments Off on Not being candid about the SW or affidavit in the motion to suppress isn’t good for the defense
A dog alert on a parked Yukon did not require a search warrant before the search. It was parked on the property of a storage facility, and it was just driven to that spot while officers were getting a warrant for defendant’s storage unit. United States v. Barron, 2022 U.S. App. LEXIS 7278 (8th Cir. Mar. 21, 2022).
The CI’s information was not the only thing the officers had–they also had three days of surveillance. The CI was merely corroborative. There was probable cause. United States v. Lynch, 2022 U.S. Dist. LEXIS 49010 (N.D.Okla. Mar. 18, 2022).*
There was reasonable suspicion for defendant’s stop. “Regardless whether a traffic stop is actuated by a law enforcement officer’s safety-related concerns or their suspicions of criminal activity, the test of reasonable suspicion is the same.” State v. Ramos, 2022-Ohio-886, 2022 Ohio App. LEXIS 781 (3d Dist. Mar. 21, 2022).*
Posted inCell phones, geofence|Comments Off on WaPo: Cellphone dragnets can help catch criminals. Judges say they can also violate constitutional rights.
On the whole, there wasn’t reasonable suspicion for the dog sniff of the luggage they were carrying. Moreover, the court does not find they consented to it. The court declines to credit the testimony of the officer about nervousness and not looking him in the eye as defendants passed him on the Amtrak platform. Moreover, the bodycam wasn’t activated immediately leaving things out. United States v. Sparks, 2022 U.S. Dist. LEXIS 48891 (D.D.C. Mar. 19, 2022).
The delay in executing a search warrant for cell phones was not unreasonable, and exclusion would not be the proper remedy if it was. Also, defendant was in custody in the meantime, and he had no possessory interest in the phones while in jail. United States v. Horsley, 2022 U.S. Dist. LEXIS 48764 (W.D.Va. Mar. 18, 2022).
There is no evidence of falsity of the statement or that the issuing magistrate abandoned his or her judicial role in issuing the warrant. United States v. Hernandez, 2022 U.S. Dist. LEXIS 48984 (D.Neb. Feb. 22, 2022).*
Officer denied qualified immunity for pepper-spraying a non-violent protester in the face. “In sum, every reasonable officer had notice at the time of the incident that, if reasonable alternatives are available, even in somewhat chaotic circumstances, he or she cannot pepper-spray a person who has committed no serious crime and who is not a threat to anyone’s safety.” Senn v. Smith, 2022 U.S. App. LEXIS 7129 (9th Cir. Mar. 18, 2022) (2-1).*
Tasering plaintiff after resistance may have subsided was not violative of clearly established law. “Given this case law, Turner did not meet his burden of establishing that existing controlling precedent, or precedent embraced by a ‘consensus’ of courts outside our circuit, squarely governed Johnigan’s use of force. … Nor is Johnigan’s taser use so patently violative of constitutional rights that a reasonable officer would know without guidance from the courts that Johnigan’s taser use was unconstitutional.” Turner v. Johnigan, 2022 U.S. App. LEXIS 7135 (th Cir. Mar. 18, 2022).*
Boilerplate language alone in an affidavit for warrant does not establish nexus. State v. Bracy, 2022 Iowa Sup. LEXIS 29 (Mar. 18, 2022) (citing § 6.14 of Treatise (§ 3:13 of 3d ed.).
Omitting a CI’s criminal history from the affidavit for search warrant is not per se a Franks violation. It did include he was getting consideration in another case of his own. United States v. Delong, 2022 U.S. Dist. LEXIS 48429 (N.D.Ill. Mar. 18, 2022).
The officer did not unreasonably extend the stop here. The drugs were seen immediately in plain view. United States v. Amey, 2022 U.S. Dist. LEXIS 48702 (S.D.Ala. Mar. 18, 2022).*
One search warrant for searching defendant’s phone with Cellebrite was without time limitation and was overbroad. People v. Gonzalez, 2022 NY Slip Op 22074, 2022 N.Y. Misc. LEXIS 928 (N.Y.Co. Mar. 7, 2022).
Defendant claimed his jail calls after 48 hours of detention right after arrest should be suppressed. Since the detention itself wasn’t unreasonable, recording the calls was not error. United States v. Anderson, 2022 U.S. Dist. LEXIS 48201 (D.Md. Mar. 17, 2022).
The trial court’s order indefinitely retaining contemnor’s cell phone for allegedly recording in court was unreasonable. In re Gipson, 2022-Ohio-853, 2022 Ohio App. LEXIS 774 (1st Dist. Mar. 18, 2022); In re Sullivan, 2022-Ohio-852, 2022 Ohio App. LEXIS 772 (1st Dist. Mar. 18, 2022).
Plaintiff’s § 1983 suit against participants in the search of his property alleging the search was overbroad is dismissed for qualified immunity. The officers showed restraint and the items seized were reasonably related to the offense under investigation. Hoeltzel v. Smith, 2022 U.S. Dist. LEXIS 48222 (E.D.Mich. Mar. 17, 2022):*
“The evidence before the Court indicates the canine sniff in this case did not prolong the ‘mission’ of Officer Sautter’s traffic accident investigation. The total length of time from when Defendant’s vehicle was struck to when Officer Sautter’s canine alerted was approximately 14 minutes. While the relatively short length of time alone does not automatically mean Defendant’s detention was reasonable, it certainly suggests that the canine sniff did not measurably extend the traffic accident investigation.” United States v. Ruel, 2022 U.S. Dist. LEXIS 48134 (D.Neb. Feb. 14, 2022).
Defendant’s encounter with an off-duty officer was not an investigative detention. State v. Keister, 2022-Ohio-856, 2022 Ohio App. LEXIS 762 (2d Dist. Mar. 18, 2022).*
Defendant was in flight from the police at the time he discarded evidence. There was probable cause to arrest before his flight. People v. Penn, 2022 VI SUPER 17U, 2022 V.I. LEXIS 19 (Feb. 10, 2022).*
State officers outside their jurisdiction making an arrest is not alone a Fourth Amendment violation. Virginia v. Moore. United States v. Blair, 2022 U.S. Dist. LEXIS 47833 (D.Neb. Mar. 17, 2022).*
Defendant found to have consented to a search after being Mirandized. United States v. Demons, 2022 U.S. Dist. LEXIS 47929 (N.D.Ga. Mar. 17, 2022).*
Plaintiff’s § 1983 claim of false arrest and illegal search during the pendency of his criminal case is stayed pending resolution of the state case. Howard v. Kamimer, 2022 U.S. Dist. LEXIS 47818 (S.D.Ga. Feb. 16, 2022).*
Defendant’s Fourth Amendment claim on appeal was not adequately presented to the trial court. (Dissent: It was. The trial court’s ruling was “stream of consciousness,” and defense counsel sought clarification, and the trial court said he got it.) State v. Tower, 2022 Ida. LEXIS 34 (Mar. 17, 2022).*
The government “points to four circumstances as the basis for an independent reasonable, articulable suspicion to extend the stop for the K-9 deployment: (1) the time of night and location of Mr. Melendez’s vehicle; (2) Mr. Melendez’s nervousness; (3) Mr. Melendez’s travel plans, and (4) the cash found on Mr. Melendez’s person. These circumstances, considered in the totality of the circumstances of the stop, are not sufficient.” “While Deputy Warren’s initial investigative stop of Mr. Melendez was lawful, the purpose of that stop was complete when the NCIC report came back from dispatch. Because the NCIC report came back from dispatch before the K-9 was deployed, Deputy Warren’s decision deploy the K-9 extended the investigatory stop beyond its initial basis.” United States v. Melendez, 2022 U.S. Dist. LEXIS 47368 (D.Utah Mar. 16, 2022).*
The protective sweep here was reasonable and factually justified. United States v. Fischer, 2022 U.S. Dist. LEXIS 47335 (D.Idaho Mar. 14, 2022).*
Government’s fifth motion to keep search warrant records under seal granted. Redaction alone not helpful. In re Seized United States Currency, 2022 U.S. Dist. LEXIS 47620 (D.S.C. Mar. 15, 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.
