“The trial court erred in denying Appellant’s motion in limine and allowing the State to present evidence and argument referencing Appellant’s refusal to provide his cellphone PIN and his refusal to consent to a warrantless search of his entire cellphone. The State has not demonstrated beyond a reasonable doubt that the error did not contribute to the guilty verdict, thus it cannot be said that the error was harmless.” McRoberts v. State, 2022 Fla. App. LEXIS 1119 (Fla. 4th DCA Feb. 16, 2022).
Temporary pain from being slammed against a patrol car during arrest without lasting injury wasn’t excessive force. Howard v. City of Houston, 2022 U.S. Dist. LEXIS 27713 (S.D.Tex. Feb. 16, 2022).
A trash pull at a residence doesn’t prove much about defendant without a showing he lived there. Two trash pulls 28 days apart with the last three days before the warrant kept the first one from being stale. United States v. Brown, 2022 U.S. Dist. LEXIS 28232 (D.Kan. Feb. 16, 2022).*
“Police officers owe judges candor when seeking search warrants.” This officer’s wrong guess as to the place to be searched for a search warrant exposed the officer to liability. Taylor v. Hughes, 2022 U.S. App. LEXIS 4276 (7th Cir. Feb. 16, 2022):
Plaintiff’s claim that government agents intercepted telephone calls between some other person and his lawyer in violation of the attorney-client privilege fails because he had no standing to complain. Labreche v. Chambers, 2022 U.S. Dist. LEXIS 28163 (W.D.N.C. Feb. 16, 2022).*
Defendant can’t show ineffective assistance of counsel of counsel on a search claim without showing the claim was meritorious, and this one isn’t because it was valid as a probation search. United States v. Milton, 2022 U.S. Dist. LEXIS 26433 (W.D.La. Feb. 11, 2022).*
Failure to show that a motion to suppress counsel failed to file would have been successful defeats an IAC claim. Woodward v. Dir., 2022 U.S. Dist. LEXIS 27513 (E.D.Tex. Feb. 15, 2022).*
2255 petitioner doesn’t show what Fourth Amendment issues defense counsel should have raised, what should have been suppressed, or that the effort would have been successful. United States v. Masias, 2022 U.S. Dist. LEXIS 27958 (N.D.Ill. Feb. 14, 2022).*
Posted inPrivileges, Standing|Comments Off on W.D.N.C.: No standing to challenge alleged interception of calls between another person and his lawyer
The government can raise lack of standing for the first time on appeal unless it waived it below. At any rate, it can be reviewed for plain error. This also happened in United States v. Noble, 762 F.3d 509, 526-28 (6th Cir. 2014). “The government’s failure to raise the argument below was merely a forfeiture, not a waiver. … This is because the government took no steps to “expressly abandon” its objection. Denkins, 367 F.3d at 542. And, unlike in Noble, the government raised its objection to Russell’s standing in its opening brief on appeal. So the government didn’t waive its objection to Russell’s Fourth Amendment standing.” United States v. Russell, 2022 U.S. App. LEXIS 4241 (6th Cir. Feb. 16, 2022).
The “Court will dismiss all Plaintiff’s unlawful/false arrest, detention, or seizure claims under Heck as they necessarily would imply the invalidity of his underlying convictions for assault on a public servant and evading arrest or detention.” Crawford v. Pitts, 2022 U.S. Dist. LEXIS 27706 (N.D.Tex. Feb. 16, 2022).*
Posted inIssue preclusion, Waiver|Comments Off on CA6: Govt’s failure to argue standing below was mere “forfeiture” not “waiver”
The guest of an overnight guest on the premises of the owner but without the owner’s knowledge had standing. “Defendants contend that Furdge had no legitimate privacy interest because he was in the home temporarily, lacked Rundle’s knowledge or consent, didn’t keep personal property there, lacked property rights in the home, lacked an understanding of Young’s property rights in the home, didn’t know the layout of the home, and didn’t have a key, among other things. All these details are like those rejected as immaterial in Olson. The court concludes that, as Young’s overnight guest, Furdge had a legitimate expectation of privacy in the home.” Furdge v. City of Monona, 2022 U.S. Dist. LEXIS 27718 (W.D.Wis. Feb. 16, 2022).
Plaintiff’s suit over his DUI blood draw is barred by Heck because it implicates the validity of his conviction. Mills v. Superior Court, 2022 U.S. Dist. LEXIS 26904 (D.Del. Feb. 15, 2022).*
Defendant’s own cell phone searched with a warrant yielded location data that put him at the scene of a burglary. State v. Rios, 2022 Wisc. App. LEXIS 138 (Feb. 16, 2022) (unpublished).*
Posted inCell phones, Issue preclusion, Standing|Comments Off on W.D.Wis.: Guest of an overnight guest had standing, even where owner didn’t know
“Most eviction-type seizures do not violate the Fourth Amendment. Thomas v. Cohen, 304 F.3d 563, 574 (6th Cir. 2002) (citing Soldal v. Cook County, 506 U.S. 56, 71, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992)). Seizing an individual’s belongings during an eviction can rise to a Fourth Amendment violation only when that seizure is unreasonable.” Tasfay v. Ramos, 2022 U.S. Dist. LEXIS 27391 (S.D.N.Y. Feb. 14, 2022).
The officer here had probable cause to take the unlighted joint off defendant because he suspected it contained marijuana. United States v. Mardigras, 2022 U.S. Dist. LEXIS 27244 (S.D.Fla. Jan. 12, 2022).*
A conclusory motion to suppress can be denied without a hearing. People v. Highsmith, 2022 NY Slip Op 01038, 2022 N.Y. App. Div. LEXIS 1018 (2d Dept. Feb. 16, 2022).*
Where it was clearly shown defendant’s arrest was unlawful because he was told to come out of his house to be arrested, his resisting without violence conviction could not stand. Seiracki v. State, 2022 Fla. App. LEXIS 1040 (Fla. 2d DCA Feb. 16, 2022):
Posted inSurveillance technology|Comments Off on WaPo: Facial recognition firm Clearview AI tells investors it’s seeking massive expansion beyond law enforcement
Defendant had a red Nike bag on him when the car was stopped, and he got out of the car and dropped it on the ground and walked away from it. When questioned about the bag, he denied he’d dropped it. That’s abandonment. United States v. Chambers, 2022 U.S. Dist. LEXIS 26698 (D.Conn. Feb. 15, 2022).
A metal pipe was properly picked up during a traffic stop where the smell of marijuana was evident. The officer testified that pipes like that could be used for smoking drugs. Commonwealth v. Lutz, 2022 Pa. Super. LEXIS 63 (Feb. 14, 2022).*
Officers had at least reasonable suspicion for defendant’s stop based on both knowledge of a warrant and other observations. United States v. Woitaszewski, 2022 U.S. Dist. LEXIS 26467 (D.Neb. Jan. 6, 2022),* adopted, 2022 U.S. Dist. LEXIS 26223 (D.Neb. Feb. 14, 2022).*
A jail telephone provider can’t be sued under the Fourth Amendment for recording telephone calls. An alleged violation of the Illinois wiretapping statute is not a constitutional violation. Hunt v. Securus Techs., 2022 U.S. Dist. LEXIS 26452 (C.D.Ill. Feb. 15, 2022).
Defendant’s Franks challenge on a wiretap application fails. The affidavits involved were 260 pages long with over half of that showing why regular investigative measures weren’t enough. United States v. Alvarez-Quinonez, 2022 U.S. Dist. LEXIS 26293 (W.D.Wash. Feb. 14, 2022).*
Defendant’s initial encounter with the police at the Phoenix airport was consensual. He was told he was free to leave. He consented to search of a bag he was carrying when he handed it to the officer who asked to look at it. United States v. Glenn, 2022 U.S. Dist. LEXIS 25955 (S.D.W.Va. Feb. 14, 2022).*
The government’s extensive surveillance evidence of defendant showed probable cause for the warrant. United States v. Alvarez-Quinonez, 2022 U.S. Dist. LEXIS 26292 (W.D.Wash. Feb. 14, 2022).*
Defendant’s claim of racial profiling pleads no facts and is denied. He can, however, attempt to cross-examine the officers at trial on that. United States v. Hinds, 2022 U.S. Dist. LEXIS 25641 (E.D.Mich. Feb. 11, 2022).*
Officers in a traffic stop have the authority to ask passengers for their name and DOB without unreasonably extending the stop. United States v. Foster, 15 F.4th 874, 877 (8th Cir. 2021). United States v. Seid, 2022 U.S. Dist. LEXIS 25912 (D.S.D. Feb. 11, 2022).
Defendant’s resisting his arrest, including a search warrant, was a factor in denying release pending trial. United States v. Wagoner, 2022 U.S. Dist. LEXIS 25232 (W.D.Va. Feb. 11, 2022).
Questions of fact exist on whether plaintiff’s forced digital rectal exam for hidden drugs required by exigent circumstances. Rogers v. Cline, 2022 U.S. Dist. LEXIS 25486 (W.D.Ark. Jan. 3, 2022).*
While plaintiff’s conviction is still in effect, Heck bars a false arrest claim. Hall v. Nisbit, 2022 U.S. App. LEXIS 3904 (3d Cir. Feb. 11, 2022).*
Posted inBody searches, Issue preclusion, Warrant execution|Comments Off on W.D.Va.: Def’s resisting execution of a SW was a factor in finding dangerousness to deny release pending trial
The protective sweep of the bathroom was justified and defendant’s claim the officers didn’t need to enter the bathroom to look is rejected. United States v. Perez, 2022 U.S. Dist. LEXIS 26275 (N.D.Ga. Feb. 15, 2022).
Plaintiff inmate’s claim that the Governor’s Covid-19 task force allowed him to catch Covid in prison doesn’t state a claim under any theory, including the Fourth Amendment. Newell v. Cooper, 2022 U.S. Dist. LEXIS 26176 (E.D.N.C. Feb. 14, 2022).*
A habeas petitioner relying on a Fourth Amendment ineffective assistance of counsel claim has to show that he’d prevail on the search claim, and this doesn’t. Sewell v. Dir., 2022 U.S. Dist. LEXIS 26158 (E.D.Tex. Jan. 21, 2022).*
John Eastman’s claims against the Jan. 6 House Committee subpoena for records fail on his claim for injunctive relief. (Attorney-client privilege will be taken up later.) Eastman v. Thompson, 2022 U.S. Dist. LEXIS 25546 (C.D.Cal. Jan. 25, 2022). On the Fourth Amendment claim:
Posted inSubpoenas / Nat'l Security Letters|Comments Off on C.D.Cal.: Eastman’s claim 1/6 House Committee’s subpoena is without authority or overbroad is denied
Even assuming the exclusionary rule applies to the SEC in this case, the attenuation doctrine applies. There is no direct or indirect evidence derived from the SEC’s action. As to the direct, “The Court finds that, even if the exclusionary rule applies here, which is highly unlikely for several reasons,7 there is no tainted evidence, direct or indirect, at issue here, and the attenuation doctrine severs any link between the May 2018 interview and the evidence the SEC seeks to present at the Show Cause Hearing. [¶] As an initial matter, the Court finds that there is no direct evidence at issue here. It is undisputed that Defendant Xia did not produce any documents to the Examiners on the day of the May 2018 interview. … Defendants’ only argument regarding direct evidence is that ‘[t]he evidence gathered by the Examiners directly’ during the interview ‘includes Xia’s statements made during the interview.’ … Defendants do not explain what else they allege to be ‘included’ as direct evidence.” SEC v. Xia, 2022 U.S. Dist. LEXIS 25064 (E.D.N.Y. Feb. 11, 2022). As to note 7:
When being arrested, defendant pulled away from officers in his room and dove for his bed and reached under a pillow. Officers thought he was going for a gun, and a melee ensued. He was charged with assault and resisting arrest. Even if the arrest was unlawful, the new crime exception is adopted. His offense against the officers occurred after the alleged illegal entry [which it probably wasn’t anyway]. Picogna v. State, 2022 Ala. Crim. App. LEXIS 8 (Feb. 11, 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.
