This cell phone was reasonably seized under a warrant. The second warrant was issued a few weeks later, but, because of covid, the delay was reasonable. United States v. Reaves, 2022 U.S. Dist. LEXIS 43243 (D.Md. Mar. 9, 2022).
“Defendant has not shown that the errors [in the search warrant affidavit] he has identified are anything more than innocent mistakes, nor would the omission of the allegedly erroneous information affect the probable cause calculus.” United States v. Rivera-Banchs, 2022 U.S. Dist. LEXIS 42770 (W.D.N.Y. Mar. 10, 2022).*
The search warrant here was issued on probable cause. Even if it wasn’t, the good faith exception applies. United States v. Santiago, 2022 U.S. Dist. LEXIS 42977 (W.D.N.Y. Mar. 10, 2022).*
The affidavit for search warrant here didn’t show nexus to defendant’s home, and the good faith exception doesn’t carry it. Smitherman v. State, 2022 Fla. App. LEXIS 1715 (Fla. 2d DCA Mar. 11, 2022):
“Plaintiff may not maintain an action on behalf for her child for this removal because ‘Fourth Amendment rights are personal rights which … may not be vicariously asserted.’ Alderman v. United States, 394 U.S. 165, 174 (1969); Southerland v. City of New York, 680 F.3d 127, 143 (2d Cir. 2011) (‘A Fourth Amendment child-seizure claim belongs only to the child, not to the parent’); …” Reeves v. New York, 2022 U.S. Dist. LEXIS 42690 (N.D.N.Y. Mar. 10, 2022).* See Grae-El v. City of Seattle, 2022 U.S. Dist. LEXIS 43007 (W.D.Wash. Mar. 10, 2022)* (same).
Plaintiff’s version of the facts of her being taken down and injured during a disorderly conduct arrest overcame qualified immunity, so there was no jurisdiction for this appeal. Windsor-Hart v. Genesee Twp., 2022 U.S. App. LEXIS 6260 (6th Cir. Mar. 9, 2022).* Compare King v. City of Columbus, 2022 U.S. App. LEXIS 6305 (6th Cir. Mar. 10, 2022) (factual dispute intertwined, so this is referred to the merits panel).
Posted inQualified immunity, Standing|Comments Off on Child removal claim is the child’s, not the parents’
A helicopter flyover of the curtilage at 500′ was within FAA regulations and thus was reasonable. Defendant’s racing to the spot of the grow operation was exigency for fear he was on his way to destroy evidence. United States v. Randolph, 2022 U.S. Dist. LEXIS 42630 (S.D.W.Va. Mar. 9, 2022).
“There was more than a fair probability that evidence of a crime would be found in Carrender’s car. The officers knew that Carrender had a prior history of manufacturing methamphetamine. The informant’s tip about the drug deal was confirmed when officers identified the location of the motel room, identified Carrender as the occupant, and discovered a large amount of methamphetamine in a truck whose driver had just left the room. … Carrender acted suspiciously once stopped, as if trying to hide something. And he had a bag in his car with cash sticking out, which the officers associated with drug trafficking. Add it all up and the officers had good reason to believe that Carrender would be in possession of methamphetamine.” United States v. Carrender, 2022 U.S. App. LEXIS 6160 (6th Cir. Mar. 8, 2022).*
There was probable cause for a stop, and that quickly developed into probable cause to search from marijuana residue around the driver’s seat. United States v. Estes, 2022 U.S. Dist. LEXIS 41951 (D.Minn. Mar. 8, 2022).*
Possession of a large quantity of meth doesn’t create automatic nexus to defendant’s home [but it can be close]. Here, there was information from a CI that added to that inference. United States v. Melvin, 2022 U.S. Dist. LEXIS 42092 (M.D.Pa. Mar. 9, 2022).*
Probable cause for plaintiff’s arrest was shown, and that defeats his false arrest claim. Henderson v. McClain, 2022 U.S. App. LEXIS 6155 (4th Cir. Mar. 9, 2022);* Ramirez v. City of Glendale, 2022 U.S. App. LEXIS 6220 (9th Cir. Mar. 10, 2022).*
Defendant’s search was valid as a parole search. He did not show unreasonableness that it was done by personal animus or to harass. United States v. Shelton, 2022 U.S. App. LEXIS 6159 (6th Cir. Mar. 8, 2022).*
Execution of a facially valid writ of execution is a reasonable seizure. Coonts v. Potts, 316 F.3d 745, 750-51 (8th Cir. 2003). Knight v. City of Omaha, 2022 U.S. Dist. LEXIS 41932 (D.Neb. Mar. 9, 2022).
“In sum, Price’s status as a parolee and the terms of his parole agreement lessened his privacy expectations while bolstering the government’s legitimate interests in conducting a search.” There was reasonable suspicion for the search. United States v. Price, 2022 U.S. App. LEXIS 6091 (7th Cir. Mar. 9, 2022).*
There was probable cause for defendant’s stop, so his pretext argument fails. United States v. Jones, 2022 U.S. Dist. LEXIS 41609 (W.D.Ky. Mar. 9, 2022).*
Accessing a child pornography website on the dark web and staying for a while creates an inference for probable cause that some was downloaded. United States v. White, 2022 U.S. Dist. LEXIS 41605 (W.D.Ky. Mar. 9, 2022).*
There was reasonable suspicion here from the officer’s observations and defendant’s non-answers to questions. United States v. Dunn, 2022 U.S. Dist. LEXIS 41610 (W.D.Ky. Mar. 9, 2022).*
Not filing a motion to suppress here was not ineffective assistance. Defendant was a social guest there maybe for a couple of hours at the time of the search. Defense counsel correctly concluded defendant had no standing. Carney v. United States, 2022 U.S. Dist. LEXIS 41734 (E.D.Tenn. Mar. 9, 2022).*
The collective knowledge doctrine was correctly applied in the R&R. “The collective knowledge doctrine applies even where there is only skeletal testimony and brief synopsis of what was happening on scene. Lyons, 687 F.3d at 769. The instant traffic stop was fast-moving. It involved multiple officers, multiple suspects, and multiple issues. In such circumstances, officers must act swiftly and cannot be expected to cross-examine their fellow officers on every point. Id. at 766.” United States v. Hill, 2022 U.S. Dist. LEXIS 41737 (E.D.Tenn. Mar. 9, 2022),* adopting United States v. Hill, 2022 U.S. Dist. LEXIS 41808 (E.D.Tenn. Jan. 20, 2022) (“[L]aw enforcement could properly have Defendant exit the vehicle, even if the only issue being investigated had been the suspected traffic violation.”).*
The search warrant for defendant’s home did not allege he was involved in a crime, but the government showed that evidence still could have been found there. The search of his electronic devices in the home is a closer call, but the presumption accorded warrants carries the day. United States v. Harvey, 2022 U.S. Dist. LEXIS 40979 (E.D.N.Y. Mar. 6, 2022).
The defense argued nexus wasn’t shown for the search warrant affidavit, but the good faith exception would have saved it. This was a post-conviction challenge to defense counsel not moving to suppress. Hamilton v. State, 2022 Ark. App. 122 (Mar. 9, 2022).*
A call about a shooting incident and defendant’s car led to a stop. Plain view supported a seizure. United States v. Khanya, 2022 U.S. Dist. LEXIS 41068 (D.Kan. Mar. 7, 2022).*
Buzzfeed News: ICE Conducted Sweeping Surveillance Of Money Transfers Sent To And From The US, A Senator Says (“Immigration and Customs Enforcement agents obtained millions of people’s financial records as part of a surveillance program that fed the information to a database accessed by local and federal law enforcement agencies, according to a letter sent Tuesday by Sen. Ron Wyden to the Department of Homeland Security inspector general requesting an investigation into whether the practice violated the US Constitution.”)
Posted inUncategorized|Comments Off on Buzzfeed News: ICE Conducted Sweeping Surveillance Of Money Transfers Sent To And From The US, A Senator Says
Hand-to-hand transaction as probable cause supports search incident to arrest. United States v. Campbell, 2022 U.S. App. LEXIS 6060 (2d Cir. Mar. 9, 2022).
This is a prison employee drug testing case. The employee left the premises rather than submit to a drug test. He is found to have consciously avoided raising the Fourth Amendment in the disciplinary process, instead presenting it on appeal. The circuit court remanded for more findings on that. The court of appeals, however, reversed for waiver. Commonwealth Dep’t of Corr. v. Garrett , 2022 Va. App. LEXIS 57 (Mar. 8, 2022) (unpublished).
“Case’s petition [for supervisory review] is insufficient to meet his threshold burden of demonstrating that the District Court is proceeding under a manifest mistake of law, much less that ordinary appeal will be an inadequate remedy.” He still has a right to appeal. Case v. Mont. Third Jud. Dist. Ct., 2022 Mont. LEXIS 198 (Mar. 8, 2022).*
The probation search condition permitting one without reasonable suspicion violates state law. Remanded to strike it from probation terms. Bowman v. State, 2022 Fla. App. LEXIS 1611 (Fla. 4th DCA Mar. 9, 2022).
Window tinting stop: “Moreover, because Trooper Otterson had an objectively reasonable articulable suspicion of a criminal activity on which to stop Defendant’s vehicle, the mere fact that Trooper Otterson may have also subjectively been looking to stop Defendant for other reasons is irrelevant.” United States v. Estes, 2022 U.S. Dist. LEXIS 41220 (D.Minn. Jan. 11, 2022).*
Summary judgment properly denied. Defendant officer shot decedent when objectively he knew decedent had dropped his gun. Williams v. City of Burlington, 2022 U.S. App. LEXIS 6051 (8th Cir. Mar. 9, 2022).*
“The Court concludes that the encounter transformed into a seizure only moments later, when Deputy Baptista asked Defendant to step out of the vehicle and have a seat on the curb. Although these requests were phrased as questions, they would have conveyed to a reasonable person that Deputy Baptista-who had possession of the identification card-would not allow the person to drive away or otherwise leave.” There was, however, reasonable suspicion. United States v. Guevara-Lopez, 2022 U.S. Dist. LEXIS 40869 (D.Ariz. Mar. 8, 2022).
The frisk of plaintiff’s groin area was too invasive and survives § 1983 summary judgment at least in part. Mwimanzi v. Wilson, 2022 U.S. Dist. LEXIS 40896 (D.D.C. Mar. 8, 2022).*
Defendant’s guilty plea waived his Fourth Amendment claim. United States v. Fluid, 2022 U.S. App. LEXIS 6039 (4th Cir. Mar. 8, 2022) (pro se points to Anders brief).*
Posted inReasonableness, Seizure, Waiver|Comments Off on D.Ariz.: Telling def to get out of vehicle and sit on curb is seizure
The search warrant wasn’t executed within 10 days as required by statute where it had to be returned to the court if not. Suppressed. People v. Tonner, 2022 NY Slip Op 50175(U), 2022 N.Y. Misc. LEXIS 833 (N.Y. Co. Feb. 25, 2022) (unpublished).
Defendant’s ineffective assistance of counsel claim on a Fourth Amendment issue is denied because the issue is meritless. CoA denied on this issue. Jones v. Fla. Dep’t of Corr., 2022 U.S. App. LEXIS 6011 (11th Cir. Mar. 8, 2022).*
Plaintiff complains his prison strip search violated the Fourth Amendment because it was viewed by a female guard. The defense disputes that. Be that as it may, that doesn’t make it unreasonable even if it happened that way. Hernandez v. McDowell, 2022 U.S. Dist. LEXIS 40203 (C.D.Cal. Jan. 24, 2022).*
The protective sweep of defendant’s house was reasonable. United States v. Dailey, 2022 U.S. Dist. LEXIS 40721 (E.D.Mo. Feb. 18, 2022).*
A fifth-wheel trailer parked, jacked, chocked, with extensions out and hooked up to electricity was on the property to be searched. It was not specified in the warrant, but it was treated as an outbuilding covered by the warrant. The automobile exception isn’t reached. State v. Lewis, 2022 Ida. App. LEXIS 6 (Mar. 4, 2022).
The search warrant application for child pornography here was deficient, but not so deficient that the good faith exception should not apply. Other affidavits more deficient have been sustained. United States v. Dumas, 2022 U.S. App. LEXIS 5957 (2d Cir. Mar. 8, 2022).*
The parents’ Fourth Amendment claim is forfeited for not having raised it in the trial court and getting a ruling. In re N.C., 2022 Ga. App. LEXIS 127 (Mar. 8, 2022).*
“In short, if the source of the information here had been a citizen-informant rather than a law enforcement officer, this assertion of personal knowledge by a known informant, under oath and personally present before the clerk-magistrate, combined with corroborating details about the residence, would readily suffice to establish the reliability of the information. Cf. Evans, 4 F.4th at 637. The Court sees no reason why a law enforcement officer’s personal knowledge would be subjected to a higher standard. Accordingly, the Court finds no merit to the defendant’s argument.” United States v. Dankemeyer, 2022 U.S. Dist. LEXIS 39798 (D.Neb. Mar. 7, 2022).
Having failed to argue the Dunn factors of open fields in the motion to suppress, defendant doesn’t get to in a motion to reconsider. United States v. Carney, 2022 U.S. Dist. LEXIS 39503 (M.D.Tenn. Mar. 4, 2022).
The smell of marijuana during a valid traffic stop was probable cause. THC pens were also in plain view. United States v. Colvin, 2022 U.S. Dist. LEXIS 39212 (W.D.Pa. Mar. 4, 2022).*
Omitting from the affidavit for an anticipatory warrant that there was no prior indication of drug dealing at the location isn’t material for Franks purposes. United States v. Espinoza, 2022 U.S. Dist. LEXIS 39195 (D.Neb. Jan. 28, 2022). [There’s always a first time.]
”The temporal proximity, the lack of intervening circumstances, and the lack of justification for the seizure all show that the abandonment resulted from the illegal seizure. Cadichon had no reasonable articulable suspicion for the warrantless seizure of McClendon and Poe. We find Cadichon illegally seized McClendon and Poe when he pointed his gun at them and ordered them to stay.” People v. McClendon, 2022 IL App (1st) 163406, 2022 Ill. App. LEXIS 106 (Mar. 7, 2022).*
A controlled buy by a CS is probable cause. United States v. Floyd, 2022 U.S. Dist. LEXIS 39440 (M.D.Ala. Mar. 7, 2022).*
Posted inAbandonment, Franks doctrine, Probable cause|Comments Off on D.Neb.: Omitting that there was no prior indication of drug dealing from anticipatory SW application not material
“We conclude that while the trial court erred in considering the officers’ subjective intent in effectuating the seizure, it was nonetheless correct that the officers lacked reasonable and articulable suspicion to detain Brown. Accordingly, we affirm the trial court’s order suppressing Brown’s statements, albeit on other grounds.” People v. Brown, 2022 CO 11, 2022 Colo. LEXIS 180 (Mar. 7, 2022).
A warrant for a duplex residential building was not overbroad here. Apparently only one unit was occupied, and the other was vacant. Two weeks of continuous surveillance only saw defendant as a resident coming and going. A records search was consistent. It was reasonable to conclude the vacant unit was used by defendant for storage. State v. Berry, 2022 N.J. Super. LEXIS 27 (Mar. 7, 2022).*
Defendant’s guilty plea waived his suppression motion appeal. State v. Milite, 2022-Ohio-656, 2022 Ohio App. LEXIS 582 (11th Dist. Mar. 7, 2022).*
Twitter deactivated defendant’s account for violation of its terms of service and reported him to NCMEC. Defendant had no reasonable expectation of privacy in the files Twitter had preserved on him. “The Court finds under the circumstances of the case and in light of Twitter’s express zero tolerance policy for child sexual exploitation, once Defendant violated that policy, he lacked a reasonable expectation of privacy in the Twitter account.” United States v. Sporn, 2022 U.S. Dist. LEXIS 39070 (D.Kan. Mar. 4. 2022).
The government showed that release of the search warrant papers would potentially interfere with the investigation, so it is ordered sealed for up to one year. In the Matter of the Application of the United States of America for a Search Warrant, 2022 U.S. Dist. LEXIS 38861 (D.S.C. Feb. 24, 2022).
The controlled buy here, with defendant coming from his house to another to deliver fentanyl, was probable cause. United States v. Ortiz, 2022 U.S. Dist. LEXIS 39102 (N.D.Ohio Mar. 4, 2022).*
No judge would reasonably debate that petitioner’s 2254 search claim is barred by Stone. CoA denied. Wynn v. Sec’y, 2022 U.S. App. LEXIS 5832 (11th Cir. Mar. 4, 2022).*
This geofence warrant violated the Fourth Amendment because it lacked particularity and caused capture of information of innocent persons. It was, however, saved by the good faith exception. [What about the next one?] United States v. Chatrie, 2022 U.S. Dist. LEXIS 38227, 2022 WL 628905 (E.D.Va. Mar. 3, 2022). This is an important case with thoughtful and thorough discussions. NACDL has all the pleadings on this issue, and presumably the order later today. I found the opinion free on PACER here.
Also, see Haley Amster & Brett Diehl, Note, Against Geofences, 74 Stan. L. Rev. 385 (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.
