The trial court could not conclude defendant consented to the frisk of his person. He was never asked for consent, and all his actions when the frisk was attempted in pulling away from the officer showed a lack of consent. Massey v. State, 2022 Tex. App. LEXIS 1521 (Tex. App. – Ft. Worth Mar. 3, 2022) (substituted op. on rehearing).
Defendant was stopped on a report of a hit-and-run involving a Raptor pickup truck. The officer headed to where it was going, saw it coming, and stopped it. Defendant had no standing in the truck, and his phone was ultimately subjected to an unreasonable search, but the good faith exception applies, “albeit by a thin margin.” “As to the phone, the warrant is invalid. The scope of the search was acceptable; the scope of the seizure was not. There was no substantial basis for the magistrate to find probable cause that the phone was permeated with fraud, so the warrant’s authorization to seize the entire contents of the phone ran afoul of the Fourth Amendment. Despite the warrant’s deficiency, reliance upon it was not entirely unreasonable, as it must be to justify the ‘extreme sanction of exclusion.’ See Leon, 468 U.S. at 926.” United States v. Almonte, 2022 U.S. Dist. LEXIS 38684 (W.D.W.Va. Mar. 4, 2022).*
Posted inGood faith exception, Standing|Comments Off on TX3: Def pulling away from officer did not consent to frisk of his person
The probation inquiry during a traffic stop lacked reasonable suspicion and was unreasonable. Defendant was always cooperative, and his criminal history and normal nervousness added nothing. “The Government does not argue that Officer Guajardo’s decision to tow Odom’s vehicle without a warrant was justified by a Fourth Amendment exception. It only argues that the tow was lawful under a section of the California Vehicle Code. … But the question ‘is not whether the search (or seizure) was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment.’ Sibron v. New York, 392 U.S. 40, 61 (1968) (quotations and citation omitted).” It was not. As to the frisk of the defendant, reasonable suspicion was not shown on the totality for it, either. “Considering the totality of the circumstances in this case, the Court finds that the Government has not established that Officer Guajardo possessed individualized, reasonable suspicion that Odom was armed and dangerous at the time of the stop. The factors that Defendants list do not justify the pat-down search, especially in light of Odom’s cooperative behavior.” “The Government must do more to carry its burden. The time of day does not provide individualized suspicion. And the fact that a person has a prior criminal record does not sufficiently establish that he is currently armed and dangerous. The Government has also not shown that the nervousness went beyond the normal behavior of a person who is pulled over by the police. The Government has therefore failed to carry its burden.” United States v. Odom, 2022 U.S. Dist. LEXIS 38196 (N.D.Cal. Mar. 4, 2022).
Posted inReasonable suspicion|Comments Off on N.D.Cal.: Criminal history and normal nervousness not RS
Defendant did not show that he had a reasonable expectation of privacy in his hospital room where police entered and saw his clothes in plain view and seized them. United States v. Mattox, 2022 U.S. App. LEXIS 5747 (8th Cir. Mar. 4, 2022).
Because defendant’s cell phone was lawfully seized as potential evidence, the motion for return was properly denied. State v. Martre, 2022-Ohio-639, 2022 Ohio App. LEXIS 567 (6th Dist. Mar. 4, 2022).
The smell of marijuana coming from the trunk of a car was probable cause and triggers the automobile exception. State v. Curry, 2022-Ohio-627, 2022 Ohio App. LEXIS 571 (1st Dist. Mar. 4, 2022).*
The 70 page search warrant affidavit in a bribery and kickback scheme showed probable cause for defendant’s residence. Records already seen showed a personal check on the home address was involved. He also was alleged to have diverted patients to a private clinic of his. United States v. Hills, 2022 U.S. App. LEXIS 5669 (6th Cir. Mar. 3, 2022).
The affidavit for the warrant for defendant’s premises did not state probable cause to show that he was involved in a drug overdose death and evidence would be there, but it did show probable cause based on controlled buys. United States v. Piner, 2022 U.S. Dist. LEXIS 37340 (S.D.Ohio Mar. 3, 2022).*
Officers did not violate the Fourth Amendment and were entitled to summary judgment on citizen’s excessive force claim. They took him to the ground and held him there face-down for only as long as it took to handcuff him, and they only brought him to the ground in response to movements by him that the officers reasonably believed to be resistance to arrest. Buehler v. Dear, 2022 U.S. App. LEXIS 5707 (5th Cir. Mar. 3, 2022).*
Posted inExcessive force, Nexus, Probable cause|Comments Off on CA6: Personal check with residence address used in scheme was nexus to home
The officer well knew defendant and his vehicle. “That information, combined with his recognition of Bastin as he drove by him on the highway, was enough reasonable suspicion to justify an investigatory stop, the Government contends. As for the pretext argument, the Government points out that the reasonableness of a traffic stop under the Fourth Amendment must be decided using an objective standard, not the officer’s actual purposes.” United States v. Bastin, 2022 U.S. Dist. LEXIS 37615 (N.D.Ind. Mar. 3, 2022).*
This warrant was not overbroad. “Here, the affiant set forth an itemized list of evidence relating to the crimes under investigation and a list of crimes. … Together, this provided objective standards to distinguish between items subject to seizure and not subject to seizure. … It told the officers they were limited to seizing items related to the enumerated criminal activity. Defendant Carillo Lopez’s arguments regarding other language such as ‘or similar items’ fails for the same reasons, and he does not provide authority to the contrary.” United States v. Rodriguez, 2022 U.S. Dist. LEXIS 36820 (W.D.Wash. Mar. 2, 2022).*
A covered suspected stolen Pac-Man videogame console was not in plain view because what was covered was not immediately apparent until uncovered. State v. Elwell, 2022 Wash. LEXIS 151 (Mar. 3, 2022) (on the entire record, however, this was harmless error because there was surveillance video of the theft and defendant wheeling it out).
Probable cause was shown on the totality for warrants for more than one house based on controlled buys, movement of suspects between them, and statements from informants. United States v. Ortiz, 2022 U.S. Dist. LEXIS 37125 (N.D.Ohio Mar. 2, 2022).*
Defendant did not make a sufficient showing for a Franks hearing for search of a trash container that the district court found was on the street but he contended was on his curtilage. United States v. Hansen, 2022 U.S. App. LEXIS 5617 (8th Cir. Mar. 3, 2022).*
Defendant was a suspect in a murder that just happened captured on surveillance video where the deceased was executed by five shots to the head. The police recovered no weapon, and defendant was on the run. They sought a cell phone ping from T-Mobile which was provided, and he was tracked and found. People v. Licona-Ortega, 2022 COA 27, 2022 Colo. App. LEXIS 306 (Mar. 3, 2022):
The target of this search had moved, so this was the search of the wrong house. Among a host of issues, service of an alleged illegible warrant is governed by qualified immunity. It was signed by a judge. The warrant sought marijuana plants in the garage. The fact they weren’t there doesn’t mean anything because they could have been moved. Some claims dismissed. Plaintiffs bought the house 2½ years before the search. Prokop v. Hileman, 2022 U.S. Dist. LEXIS 37130 (N.D.Ill. Mar. 2, 2022):
A person can’t pull into a private driveway and insulate him or herself from an officer investigating a traffic offense. Here, the officer was going to just issue a warning but saw drugs in plain view in the car in the driveway. “Accepting Ockert’s argument would mean that a driver being stopped by the police could merely pull into any private driveway to avoid a potential search of his or her vehicle.” United States v. Ockert, 2022 U.S. Dist. LEXIS 37092 (D.Kan. Mar. 2, 2022).
The officer gets qualified immunity for shooting plaintiff’s decedent who was wielding a sword, advanced on the officers, and ignored repeated commands to drop it. Lennen v. City of Casper, 2022 U.S. App. LEXIS 5513 (10th Cir. Mar. 2, 2022).*
“Contrary to Defendant’s assertions, the information contained in the affidavit was not stale where the affidavit provided that the affiant had downloaded child pornography files in November 2018, and the search was being sought in January 2019.” United States v. Thomas, 2022 U.S. Dist. LEXIS 36977 (M.D.Fla. Mar. 2, 2022).*
Posted inCurtilage, Qualified immunity|Comments Off on D.Kan.: One can’t pull in driveway to avoid traffic stop and prevent it by arguing curtilage
The state’s justification of rousting a person sleeping in a car was a seizure and not justified by the community caretaking function. The state bore the burden, and it failed. This was treated by the officers as a criminal investigation throughout. “Once a defendant has sufficiently raised a Fourth Amendment challenge—for example, by establishing he was seized without a warrant—the onus is squarely on the State to show that the seizure was nonetheless lawful. Here, the State failed to show that the facts alleged support application of the community caretaking exception. Rather, the facts indicate that the police’s seizure of Smith was incommensurate with either Smith’s minimal need for assistance or the low risk to the community of an impaired driver on the road. As such, we reverse the court of appeals and grant Smith’s motion to suppress.” State v. Smith, 2022 UT 13, 2022 Utah LEXIS 23 (Mar. 1, 2022).
Defendant’s CSLI was properly obtained, and even if it hadn’t been, it was harmless error on this record. People v. Farmer, 2022 NY Slip Op 01313, 2022 N.Y. App. Div. LEXIS 1322 (2d Dept. Mar. 2, 2022).*
Defendant was stopped for suspected DUI. The officer asked for consent to check him for weapons before having him get in the patrol car and got it. Alternatively, it was inevitable. United States v. Matthews, 2022 U.S. Dist. LEXIS 36624 (W.D.Tenn. Mar. 2, 2022).*
The seizure of defendant’s clothing from the hospital where he was taken after being shot was unreasonable. “The defendant had a legitimate expectation of privacy in his clothing, and the fact that the police perceived the defendant as a victim rather than a suspect at the time his clothing was seized did not strip the defendant of his Fourth Amendment protection ….” On this record, however, it was harmless error on this record. People v. Gough, 2022 NY Slip Op 01317, 2022 N.Y. App. Div. LEXIS 1320 (2d Dept. Mar. 2, 2022).
Although the patrol car’s dashcam did not capture the alleged traffic offense, the trooper’s testimony defendant was tailgating was credited and was reasonable suspicion. United States v. Richard, 2022 U.S. App. LEXIS 5501 (5th Cir. Mar. 2, 2022).*
Defense counsel wasn’t ineffective for not challenging probable cause for this warrant since there was. Rhodes v. State, 2022 Iowa App. LEXIS 176 (Mar. 2, 2022).*
Posted inReasonable suspicion, Seizure|Comments Off on NY2: Seizure of a shooting victim’s clothing at hospital implicates 4A
A syringe, although not contraband per se, satisfied the immediately apparent prong of plain view. State v. Wise-Welsh, 318 Ore. App. 146, 2022 Ore. App. LEXIS 357 (Mar. 2, 2022).
“Given these inconsistences, it is impossible to determine ‘exactly what happened’ … and what Ramos and Pimentel saw when they approached the minivan, and, consequently, whether the search of the vehicle under the automobile exception was lawful. Therefore, although we ordinarily defer to credibility determinations made by the hearing court … in the circumstances of this case, we conclude that the branch of the defendant’s omnibus motion which was to suppress the handgun should have been granted ….” People v. Austin, 2022 NY Slip Op 01306, 2022 N.Y. App. Div. LEXIS 1270 (2d Dept. Mar. 2, 2022).*
“In either event, the officers were justified in searching the wrecked vehicle to get it out of the ditch for an inventory or for officer safety. Officers searched the vehicle in an effort to find the purported driver’s name or some means of identification. Once they discovered the black and green Nike bag containing drug-like substances and multiple cell phones was discovered, the officer testified ‘the nature of the investigation changed.’ The trial court properly denied Defendant’s motion to suppress.” State v. Julius, 2022-NCCOA-135, 2022 N.C. App. LEXIS 142 (Mar. 1, 2022).
There was probable cause for this traffic stop while defendant was carrying a package the police were after. “Defendant appears to argue that the traffic stop was pretextual. However, the argument lacks merit considering clear evidence that a traffic violation was observed. It is well-established that an officer’s pretextual use of a traffic violation does not render a stop constitutionally unreasonable.” United States v. Ortiz-Ortiz, 2022 U.S. Dist. LEXIS 36169 (W.D.N.Y. Feb. 1, 2022).*
Posted inInventory, Pretext, Probable cause|Comments Off on NC: Inventory of a wrecked and apparently abandoned vehicle was reasonable
“Upon a review of the record, we find that the evidence adduced at the hearing did not establish the existence of facts sufficient to provide the police officer with reasonable grounds to believe that an emergency existed which required the immediate need for police assistance. The officer knew only that a 911 caller had stated that ‘there were six dogs in the apartment that were not being taken care of, they were not being fed, and there was dog feces, as well [as] garbage, in the apartment.’ These assertions do not support the application of the emergency doctrine, which is to be construed ‘narrowly,’ to justify the officer’s entry and search of the apartment, to ascertain that a ‘substantial threat of imminent danger’ to the dogs may have existed ….” People v. Hunter, 2022 N.Y. Misc. LEXIS 705 (2d Dept. Feb. 18, 2022) (unpublished).
“The fact that both trial counsel and appellate counsel did not succeed on the Fourth Amendment challenge despite their fervent efforts speaks more to the merits of the challenge than to counsel’s performance.” United States v. Hawkins, 2022 U.S. Dist. LEXIS 35754 (E.D.Ky. Feb. 7, 2022).*
Pole camera surveillance of a homeless shelter for 14 days observing defendant coming and going was not an unreasonable search under the state or federal constitution, even if it was his home. People v. Destefano, 2022 NY Slip Op 22052, 2022 N.Y. Misc. LEXIS 681 (Nassau Co. Feb. 18, 2022).
Defendant had no standing to contest an email search warrant where the email account wasn’t his. United States v. Almaleh, 2022 U.S. Dist. LEXIS 35260 (S.D.N.Y. Feb. 28, 2022).
“Vernon Hulett and Linda Heintzelman welcomed Roger Gillett to Mississippi by letting Gillett stay at their house; Gillett rewarded their hospitality by brutally murdering Hulett and Heintzelman and stealing Heintzelman’s truck.” The petitioner’s 2254 Fourth Amendment claim was Stone barred. Gilbert v. Director, 2022 U.S. Dist. LEXIS 34231 (S.D.Miss. Feb. 28, 2022).*
Posted inE-mail, Issue preclusion, Standing|Comments Off on NY Nassau: 14 days pole camera surveillance of def’s residence not unreasonable under 4A or state constitution
“Where ‘a plaintiff claims that excessive force was used multiple times, “the court must segment the incident into its constituent parts and consider the officer’s entitlement to qualified immunity at each step along the way.”’ Wright, 962 F.3d at 865 (quoting Smith v. City of Troy, 874 F.3d 938, 944 (6th Cir. 2017)). Here, Plaintiffs claim that Johns used excessive force in three ways: (1) by tasing Palma three times, (2) by taking initial shots at Palma, and (3) by continuing to shoot Palma even after Palma bent over with his hands on the ground. After viewing the facts in the light most favorable to Palma, if ‘a jury could conclude that [the defendant] engaged in gratuitous violence by using force beyond the scope of that which was reasonably necessary or justifiable,’ then the defendant is not entitled to qualified immunity at the summary judgment stage. …” Palma v. Johns, 2022 U.S. App. LEXIS 5252 (6th Cir. Feb. 28, 2022).*
This 2254 petitioner’s unspecific claim that defense counsel was ineffective for not properly presenting a Franks claim previously failed in state court for the same reason: No facts pled; no argument; no showing of ineffective assistance of counsel. Therefore, the state court’s resolution was not an unreasonable application of Franks. Morton v. Shaw, 2022 U.S. Dist. LEXIS 33481 (S.D.Miss. Jan. 31, 2022).*
An investigation by the DoD Inspector General is an exception to the Posse Comitatus Act. Besides, a violation of the Posse Comitatus Act is not subject to the exclusionary rule. United States v. Vaxima, Inc., 2022 U.S. App. LEXIS 5315 (4th Cir. Feb. 28, 2022) (see § 9.06 n.6).
The glove compartment of a vehicle can be searched under the automobile exception whether it was open or closed. United States v. Ganaway, 2022 U.S. Dist. LEXIS 35674 (E.D.Mo. Feb. 28, 2022).*
2255 petitioner’s Fourth Amendment claim is barred. Braswell v. United States, 2022 U.S. Dist. LEXIS 34525 (E.D.Tenn. Feb. 28, 2022);* Adams v. United States, 2022 U.S. Dist. LEXIS 34647 (D.Maine Feb. 28, 2022).*
“In this case, Defendant expressly indicated that he does not dispute the validity of his consent, but solely the scope of that consent. Detective Fox testified that he asked for Defendant’s general consent to search his person and that Defendant said that he could conduct a search. No evidence was provided to this Court to rebut Detective Fox’s testimony. No evidence was provided to suggest that Defendant’s consent was withheld or involuntary. And no evidence was provided to suggest that Defendant otherwise limited the scope of Detective Fox’s search to a pat-down for weapons. With no evidence to the contrary, and finding Detective Fox to have given credible testimony, the Court finds that defendant did consent to a search of his person and did not take steps to limit that search in the process.” United States v. Darden-Mosby, 2022 U.S. Dist. LEXIS 34684 (W.D.Mich. Feb. 28, 2022).*
Defendant was stopped for a traffic offense, and told the officer he was going to work in oil fields. The rental car (with a five-day rental) had no visible luggage and looked like it was for a short drug run. The officer correctly concluded that was all reasonable suspicion. The five-day rental didn’t match the story. United States v. Imhoff, 2022 U.S. App. LEXIS 5232 (9th Cir. Feb. 28, 2022).* (This could have gone either way in the district court.)
Posted inConsent, Reasonable suspicion, Voluntariness|Comments Off on W.D.Mich.: With no evidence to rebut the prosecution evidence def consented to search of his person, the govt met its burden of proof on consent
“Dr. Dong next asserts, without citation to case law, that ‘[e]gregious procedural deficiencies in the investigation, prosecution, trial and sentencing’ occurred such that his convictions and sentence must be reversed. Opening Br. 18. He first points to alleged deficiencies in the affidavit supporting Special Agent Leonard’s application for a search warrant during the investigative phase of this case. Having reviewed Special Agent Leonard’s affidavit, we agree with the district court that the affidavit and resulting search warrant complied with the Fourth Amendment. …” United States v. Dong, 2022 U.S. App. LEXIS 5314 (4th Cir. Feb. 28, 2022).*
“In sum, there was reasonable suspicion on three independent grounds: (a) the silver Lincoln’s attempted flight; (b) the officers’ knowledge about the controlled purchase of heroin from Green by the CS and their reasonable suspicion that Green was replenishing his heroin supply; and (c) the observations of marijuana smoke and odor.” There was no seizure until he was captured after the flight. United States v. Green, 2022 U.S. Dist. LEXIS 33933 (W.D.Pa. Feb. 25, 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.
