The community caretaking exception did not apply to defendant’s stop leaving an apartment parking lot at 2:48 am. A child called the police about an argument in the house, but nothing in the call or the report from dispatch indicated that it was violent or that anyone was hurt in this argument. Thus, the stop was unreasonable. State v. Grassrope, 2022 SD 10, 2022 S.D. LEXIS 21 (Feb. 9, 2022).
A 911 call about gunshots fired in a duplex was exigency for entry. Nothing dispelled that when the officers arrived. United States v. Windham, 2021 U.S. Dist. LEXIS 253211 (W.D.Ky. Dec. 29, 2021),* adopted, 2022 U.S. Dist. LEXIS 24855 (W.D.Ky. Feb. 11, 2022).*
Probation officers had reasonable suspicion to search defendant’s storage unit. United States v. Sanchez, 2022 U.S. Dist. LEXIS 25059 (S.D.N.Y. Feb. 11, 2022).*
When a valid search warrant is executed, there is no Fifth Amendment taking. Young v. Haw. Island Humane Soc’y S.P.C.A., 2022 Haw. App. LEXIS 21 (Feb. 9, 2022) (unpublished).
“Here, the totality of the circumstances then appearing to the officers demonstrated that exigent circumstances existed, justifying the seizure of Defendant. The officers who arrived at the rural, wooded property before sunup on November 10 were armed with a 911 report from a neighbor nearby indicating that a murder may have occurred and that a man shouting in the woods may need help …. Upon arrival, the officers’ observations of Defendant’s yelling and frantic behavior confirmed the 911 report and the potential threat to the safety of Defendant, the officers, and those around them presented by the situation. …. Because of the darkness, the officers could not determine whether Defendant had a weapon …. Defendant’s aggressive behavior after the officers announced themselves only heightened the threat posed. … Defendant’s conduct and the surrounding circumstances created an objectively reasonable basis for the officers to conclude there was “an emergency situation demand[ing] immediate police action,” which justified the warrantless seizure of Defendant.” United States v. Partin, 2022 U.S. Dist. LEXIS 24927 (E.D.Tenn. Feb. 11, 2022).*
Five pole cameras were trained on defendant’s house. A “network of pole cameras” isn’t a Fourth Amendment violation. See United States v. Tuggle, 4 F.4th 505 (7th Cir. 2021). Moreover, he does not rebut the presumption of good faith with his argument with no citation of authority. United States v. Carrazco-Martinez, 2022 U.S. Dist. LEXIS 24849 (N.D.Ill. Feb. 11, 2022):
Pole camera surveillance in Massachusetts requires probable cause to set it up. Officers had it in defendant’s case, and his front door and left side of his house were watched for 15 days. Commonwealth v. Comenzo, 2022 Mass. LEXIS 54 (Feb. 11, 2022).
Defendant was in a car stopped for expired tags. There was a warrant for her arrest. Search of her purse in the car wasn’t valid under Gant as a search incident but it was for inventory and booking because he was arrested. That’s inevitable discovery, but the trial court made no findings of inevitable discovery. Reversed. Wall v. State, 2022 Fla. App. LEXIS 966 (Fla. 5th DCA Feb. 11, 2022).*
There was probable cause for the search warrant here, and, whether or not true, the good faith exception would apply because reliance was reasonable. United States v. Chamberlain, 2022 U.S. Dist. LEXIS 24664 (E.D.Pa. Feb. 11, 2022).*
Posted inInevitable discovery, Pole cameras|Comments Off on MA: State law requires PC for pole camera surveillance, and officers had it
There is no reasonable expectation of privacy in pawnshop records uploaded for the NYPD pawnshop detail. (Therefore, in the trial of this case, attacking the datamining of the NYPD for information is more prejudicial than relevant under F.R.E. 403.) Gem Fin. Serv. v. City of New York, 2022 U.S. Dist. LEXIS 24256 (E.D.N.Y. Feb. 10, 2022).
All alleged illegal search was not grounds for a petition for writ of error coram nobis. Also, this was always known, and a third party with more control over the property consented to the search. McFerrin v. State, 2022 Ark. 22 (Feb. 10, 2022).*
Plaintiff’s complaint he was wrongfully arrested for murder was barred by Heck because he was convicted of murder. Wright v. Ellis, 2021 U.S. Dist. LEXIS 253177 (C.D.Cal. Dec. 29, 2021).* [However, an illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction. Ker v. Illinois, 119 U.S. 436, 444 (1886); Frisbie v. Collins, 342 U.S. 519, 522 (1952); Gerstein v. Pugh, 420 U.S. 103, 119 (1975); United States v. Crews, 445 U.S. 463, 474 (1980). So what gives? Besides all that, as a practical matter, would a civil jury really care that a murderer was wrongfully arrested?]
Tearing down plaintiff’s building was a seizure under Soldal. The record thus far precludes summary judgment. Dvortsova v. City of Philadelphia, 2022 U.S. Dist. LEXIS 23868 (E.D.Pa. Feb. 9, 2022).
Defendant’s 2255 claim that defense counsel was ineffective for not filing a motion to suppress because the affidavit for the search warrant was “bare bones” is rejected. United States v. Session, 2022 U.S. Dist. LEXIS 23891 (E.D.La. Feb. 10, 2022).*
Defense counsel wasn’t ineffective for not pursuing a motion to suppress. “In the context of his challenge to counsel’s performance on the wiretap suppression motion, that means Garrison ‘must prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different, absent the excludable evidence, to demonstrate actual prejudice.’” The district court held he could not, and a CoA is denied. United States v. Garrison, 2022 U.S. App. LEXIS 3703 (10th Cir. Feb. 10, 2022).*
Posted inIneffective assistance, Seizure|Comments Off on E.D.Pa.: Tearing down plaintiff’s building was a seizure under Soldal
Plaintiff’s guilty plea in federal court was a waiver of his Fourth Amendment claims, and that was not judicial estoppel to a § 1983 case over the merits. Moreover, because the independent source doctrine was involved, the Heck bar did not apply. Riley v. Pensabene, 2022 U.S. Dist. LEXIS 23777 (E.D.Va. Feb. 8, 2022).
Rodriguez and Caballes were complied with because there was reasonable suspicion. “Officers Schanz and Lesesane had an objectively reasonable suspicion that Villanueva-Bautista was engaged in illegal activity when they asked if he had drugs in the car. He ran a red light in a high crime area. He was driving a car with a license plate from a state a long way from Philadelphia. He had nothing to show that he owned the car or was permitted to drive it; he produced a Hertz rental pamphlet, but no rental contract or other rental documents. He had no proof of insurance or registration information. He had no driver’s license or other proof of identification. The name and birthdate he gave the police could not be confirmed. All of this, combined with the informed assessments Officers Schanz and Lesesane made based on their training and experience, gave them reasonable suspicion that Villanueva-Bautista was up to no good and allowed them to expand the scope of their inquiry beyond the traffic violation.” United States v. Villanueva-Bautista, 2022 U.S. Dist. LEXIS 23860 (E.D.Pa. Feb. 10, 2022).*
Posted inIssue preclusion, Reasonable suspicion|Comments Off on E.D.Va.: Guilty plea with waiver of 4A claim not judicial estoppel to § 1983 claim
Defendant has no standing to challenge a codefendant’s patdown. In addition, admission of his jail calls was not a Fifth Amendment violation. (Finally, defense counsel wasn’t ineffective for withdrawing a motion to suppress that was destined to fail.) State v. Smith, 2022-Ohio-371, 2022 Ohio App. LEXIS 319 (4th Dist. Feb. 2, 2022).
It would have been better to have included the CI’s criminal history in the affidavit for warrant, but the abundance of probable cause doesn’t show it was material. United States v. Frick, 2022 U.S. Dist. LEXIS 23518 (W.D.Wash. Feb. 9, 2022).*
Defendant argues the motion to suppress was improperly denied because there’s no evidence he didn’t signal before turning from a state highway to a toll road. The dashcam shows it all. Hardy v. State, 2022 Tex. App. LEXIS 949 (Tex. App. – Tyler Feb. 9, 2022).* (Why is this published?)
The police gave chase to defendant, and he ran down an alley and threw his backpack over a wall into somebody else’s backyard. “In the present case, we assume without deciding that Mr. Kyle retained a subjective expectation of privacy in the backpack. We hold that throwing the backpack over a fence into someone else’s backyard while fleeing from the police precluded Mr. Kyle from retaining an objectively reasonable expectation of privacy in the backpack. We note that Mr. Kyle does not dispute that his action in throwing the backpack over the fence was voluntary for purposes of this case.” Importantly, it wasn’t his backyard (suggesting that would change the result). United States v. Kyle, 2022 D.C. App. LEXIS 58 (Feb. 10, 2022).
There was no misleading statement in the affidavit for warrant. The controlled buy was off “D,” and defendant and “D” had the same phone number. That was a reasonable inference. The falsity that the CI said he saw the drugs three weeks earlier ended up in the affidavit as 96 hours earlier. That was negligent at worst. No Franks violation. United States v. Thomas, 2022 U.S. Dist. LEXIS 23368 (D.Minn. Feb. 9, 2022).*
Posted inAbandonment, Franks doctrine|Comments Off on DC: Throwing backpack over a wall running from police is abandonment
The government’s brief in opposition to defendant’s motion to suppress suggests that the CI is a potential witness here, so the government is ordered to disclose his or her ID. Disclosure is enough. The court won’t go so far as to order the government to make the CI available for an interview. United States v. Finch, 2022 U.S. Dist. LEXIS 23369 (D.Minn. Feb. 9, 2022).
It was objectively reasonable to make a traffic stop for not signaling a turn pulling out of a private parking lot. The statute isn’t clear that’s an offense. State v. Stewart, 2022-Ohio-199, 2022 Ohio App. LEXIS 311 (8th Dist. Jan. 27, 2022).*
The court credits the officers that defendant didn’t stop before a crosswalk at a stop sign, and that’s a traffic offense. They discussed on bodycam the smell of marijuana as they approached the car. That was probable cause under the automobile exception. United States v. Sanders, 2022 U.S. Dist. LEXIS 23336 (E.D.Tex. Feb. 9, 2022).*
Posted inInformant hearsay, Reasonableness|Comments Off on D.Minn.: Govt’s suggestion in briefing in opposition to motion to suppress CI was a witness requires disclosure
A prosecutor is absolutely immune in presenting search warrant applications to a court. Miller v. Rivas, 2022 U.S. Dist. LEXIS 22754 (D.N.J. Feb. 8, 2022).
The affidavit for search warrant here was based on probable cause. The executing officers waited for defendant to come out and arrest him to facilitate executing the warrant. The government, however, doesn’t show probable cause for his arrest. State search warrants resulting in cases in federal court need only comply with the Fourth Amendment and not Rule 41. United States v. Espinoza, 2022 U.S. Dist. LEXIS 22547 (D.Mont. Feb. 8, 2022).*
Defendant’s Franks claim fails for lack of evidentiary support. United States v. Hawari-Rasulullah, 2022 U.S. Dist. LEXIS 22835 (M.D.Pa. Feb. 8, 2022).*
Petitioner’s 2254 Fourth Amendment claim was procedurally defaulted, completely aside from the Stone bar. Johnson v. District Attorney of Montgomery County, 2022 U.S. Dist. LEXIS 23217 (M.D.Pa. Jan. 11, 2022).*
Defendant stated a claim for ineffective assistance of counsel that defense counsel never obtained the search warrant materials to even investigate. Reversed to have the state produce it. People v. Tindley, 2022 NY Slip Op 00886, 2022 N.Y. App. Div. LEXIS 856 (2d Dept. Feb. 9, 2022).
“When the Defendant saw the lights from Officer Bishop’s vehicle, he fled from the police by reversing the vehicle at a high rate of speed. In doing so, he crashed the vehicle and damaged a street sign. He then opened the door of the vehicle and ran away. At that point, he forfeited any reasonable expectation of privacy in the vehicle.” United States v. Sullay, 2022 U.S. Dist. LEXIS 23028 (D.Mass. Feb. 9, 2022).*
Defendant’s Franks challenge doesn’t undermine the probable cause. United States v. Trujillo, 2022 U.S. Dist. LEXIS 23040 (D.N.M. Feb. 9, 2022).*
It was not well established that police need to warn armed people before shooting them. Here, the shooting victim was an innocent homeowner who had a gun on him around his own house investigating a prowler, and the police saw him and shot him. Powell v. Snook, 2022 U.S. App. LEXIS 3539 (11th Cir. Feb. 8, 2022)*:
The presence of U.S. Marshals helping execute an EPA administrative warrant did not make the search unreasonable. Ace Black Ranches v. United States EPA, 2022 U.S. Dist. LEXIS 22284 (D.Idaho Feb. 4, 2022).
Decedent’s shooting during an apparent child kidnapping was captured on body cams and seems reasonable. One of the witnesses originally supporting the officers recanted and, despite the video, that raises a jury question. Gambrel v. Knox County, 2022 U.S. App. LEXIS 3428 (6th Cir. Feb. 8, 2022).*
Plaintiffs’ claims against Colorado parole officers for conducting a suspicionless search, permitted under state law, are dismissed. A parolee remains in “custody” while on release, so the parolee plaintiff’s custody claim fails. Cappelli v. Hoover, 2022 U.S. App. LEXIS 3457 (10th Cir. Feb. 8, 2022).*
The district court did not plainly err in allowing supervised release searches of defendant’s computer for a gun crime. U.S.S.G. § 5D1.3(d)(7). Under precedent, a search condition does not have to be specifically related to the crime. United States v. Wyche, 2022 U.S. App. LEXIS 3367 (11th Cir. Feb. 7, 2022), citing United States v. Taylor, 997 F.3d 1352 (11th Cir. 2021).
The affidavit for the search warrant revealed a possible ongoing drug operation with observation of hand-to-hand drug deals outside observed six weeks apart. The warrant did not become stale before execution. The warrant was also particular. United States v. Beals, 2022 U.S. Dist. LEXIS 22081 (W.D.Mo. Feb. 8, 2022).*
Defendant’s Franks challenge to placement of a tracking device fails as conclusory. United States v. Long, 2022 U.S. Dist. LEXIS 22211 (D.N.J. Feb. 8, 2022).*
The knock-and-talk here was reasonable in its inception, but the officer violated the curtilage by inspecting a car parked there. The state’s argument that reasonable suspicion permitted approaching the car was not raised below so it’s waived. “Furthermore, even if the State had made this argument below, it abandoned this contention on appeal by failing to support it with legal argument and citation to relevant binding authority.” State v. Jennings, 2022 Ga. App. LEXIS 62 (Feb. 8, 2022).
The stop was justified by the state as based on a wanted flyer, but, when challenged, show nothing. Without it, the stop was unjustified. Johnson v. State, 2022 Ga. App. LEXIS 63 (Feb. 8, 2022).
The plaintiff was arrested on a warrant. Shortly after that was a show up, and the alleged victim said “[T]hat’s not her.” Plaintiff’s release didn’t happen for 20 hours. There was still probable cause for the detention on the warrant, and qualified immunity applies. Washington v. Durand, 2022 U.S. App. LEXIS 3420 (11th Cir. Feb. 7, 2022).
The exclusionary rule doesn’t apply to sentencing factors unless the illegal search was intended to enhance the sentence. United States v. Torres, 926 F.2d 321 (3d Cir. 1991). “[W]e refused to follow Verdugo in Torres because the facts in Torres did not present a situation ‘where the record showed that evidence was illegally seized for the purpose of enhancing the sentence.’” citing Verdugo v. United States, 402 F.2d 599 (9th Cir. 1968), cert. denied, 402 U.S. 961 (1971). United States v. Gilliam, 2022 U.S. App. LEXIS 3405 (3d Cir. Feb. 7, 2022).
Officers came to this residence for a welfare check because they’d heard there was a potential robbery and hostage situation inside. The SWAT team didn’t show up because the officers were still looking. Some of their information was proving correct, and the occupants were slow coming to the door. The occupants consented to an entry, and the officers weren’t limited to the living room. If a robbery were underway, it wouldn’t be limited to the living room. United States v. Johnson, 2022 U.S. Dist. LEXIS 21679 (N.D.W.Va. Feb. 7, 2022).*
Posted inEmergency / exigency, Exclusionary rule|Comments Off on CA3: Exclusionary rule doesn’t apply to sentencing unless enhancing sentence was reason for the search
Brady doesn’t apply here to impeachment information that could have been used to cross-examine the officer that only slightly would improve defendant’s chances on a motion he waived by pleading guilty. The law is split that Brady doesn’t apply to suppression motions after a guilty plea, and the Eighth Circuit hasn’t ruled. United States v. Colbert, 2022 U.S. Dist. LEXIS 21139 (W.D.Mo. Feb. 7, 2022).
Officer got to the scene of a bank robbery within a minute and saw the likely suspect where he’d run. The suspect got in a car and fled and then wrecked the car. Once out of the car, he made spontaneous admissions about how fast the officer got to him. The search of the car was with probable cause and exigency. United States v. Scrutchins, 2022 U.S. Dist. LEXIS 21333 (D.S.C. Feb. 7, 2022).*
A tinted license plate cover is reasonable suspicion for a stop under state law. United States v. Lemons, 2022 U.S. Dist. LEXIS 21380 (E.D.Tenn. Feb. 7, 2022).*
Posted inProbable cause, Waiver|Comments Off on W.D.Mo.: Brady doesn’t apply to suppression motions in this circuit yet
WaPo: U.S. Capitol Police rejects GOP congressman’s claim that check of his open office is illegal investigation (“Chief Tom Manger said a Capitol Police officer entered Rep. Troy E. Nehls’s office in November because the door was left ‘open and unsecured’”). Inside, there was a whiteboard with obvious information that suggested violence was in the offing, depending on how one takes it, as in “body armor.” [I have a client detained because he possessed body armor and a gun. Is there even a reasonable expectation of privacy in outer rooms at the Capitol these days or ever because of the policy to check unlocked offices?]
Posted inPlain view, feel, smell|Comments Off on WaPo: U.S. Capitol Police rejects GOP congressman’s claim that check of his open office is illegal investigation
"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.
