Defendant had a prior sex offense with a minor from 1997. HSI started investigating him in 2015 for his travels to Ukraine. “Skaggs frequently traveled overseas; Skaggs was the director of the Ukrainian Angels Resource Network, according to his LinkedIn profile; and Skaggs’s Facebook profile contained several photographs of him with young boys and girls. Skaggs’s social media also revealed that he had been involved with several other overseas orphanages, and Agent Barrett knew from his training and experience that it is common for sex offenders to be involved with child-related organizations to gain access to potential victims, including at-risk or vulnerable youth.” When he arrived at MSP airport, he said his electronics had been stolen in Ukraine. When his luggage was searched at the border, four thumb drives were found. A further search of the drives revealed child pornography. There clearly was reasonable suspicion for a border computer search. United States v. Skaggs, 2022 U.S. App. LEXIS 3018 (7th Cir. Feb. 2, 2022).
Defendant’s credibility argument that the officer should not be believed that he could smell marijuana is rejected. United States v. Green, 2022 U.S. Dist. LEXIS 18968 (S.D.Ga. Feb. 2, 2022).*
Petitioner’s claim relying on the colloquy during the suppression hearing isn’t newly discovered information for a successor petition. It’s also barred by Franks. In re Mattis, 2022 U.S. App. LEXIS 3030 (11th Cir. Feb. 2, 2022).*
Defendant started with the argument that the stop lacked reasonable suspicion, but he did not argue that the stop was continued with reasonable suspicion until the appeal. Failure to raise it that way in the trial court was waiver. State v. Meadows, 2022-Ohio-287, 2022 Ohio App. LEXIS 254 (4th Dist. Jan. 31, 2022).
Defense counsel wasn’t ineffective for not further pursuing his Franks claim. “Given that the Franks issue had already been thoroughly argued by Mr. Smith and found meritless by two judges, it was not unreasonable for Mr. Ovsiovitch to decide it was a relatively weak claim that was not worth pursuing.” Ferdandes v. United States, 2022 U.S. Dist. LEXIS 18893 (W.D.N.Y. Feb. 1, 2022).*
Defendant’s guilty plea waived his Fourth Amendment challenge on appeal. United States v. Alston, 2022 U.S. App. LEXIS 3041 (4th Cir. Feb. 2, 2022).*
Posted inBurden of pleading, Franks doctrine, Waiver|Comments Off on OH4: That stop was with RS isn’t arguing that it was continued with RS, and that’s waiver
The smell of marijuana from defendant’s car was probable cause. The district court didn’t say “automobile exception,” but that’s what it meant. United States v. Hall, 2022 U.S. App. LEXIS 2983 (6th Cir. Feb. 2, 2022).*
Defendant’s Franks allegation fails both showing knowing falsity and intent to deceive. “At the hearing, the Court discussed this lack of proof and extended Defendant additional time to submit an offer of proof for the Court’s consideration regarding his prima facie showing on the Franks issue. Defendant made no further submission.” United States v. Swanson, 2022 U.S. Dist. LEXIS 18868 (E.D.Tenn. Jan. 11, 2022),* adopted, 2022 U.S. Dist. LEXIS 17936 (E.D.Tenn. Feb. 1, 2022).*
Defendant’s 404(b) motion in limine against an otherwise valid Title III telephone call is denied. “Call 121 was the basis for the search warrant executed. Because Call 121 is intrinsic to the charged offense, the Court need not assess Pina’s Rule 404(b) argument.” United States v. Pina-Nieves, 2021 U.S. Dist. LEXIS 252270 (D.P.R. Feb. 2, 2022).*
Defendant was suspected of committing fraud with his computer, and that was probable cause for searching for and seizing the computer in his home. United States v. Nyamekye, 2022 U.S. App. LEXIS 2966 (3d Cir. Feb. 2, 2022).
Assuming reasonable suspicion was required for a state probation search of defendant’s car for an electronic device to access child pornography, probation officers had it. United States v. Kuhnel, 2022 U.S. App. LEXIS 2963 (8th Cir. Feb. 2, 2022).*
The search warrant here was based on probable cause [with no explanation, which is normal for NY appellate courts]. People v J.S. Atl. Dental, P.C., 2022 NY Slip Op 00681, 2022 N.Y. App. Div. LEXIS 674 (2d Dept. Feb. 2, 2022).*
Reason: A SWAT Team Wrongfully Raided Her Home. Now Cops Say Footage From the Raid Is Private Since No One Was Killed, by Elizabeth Nolan Brown (“In May 2020, a SWAT team burst into the Raleigh, North Carolina, home that Yolanda Irving shared with her five children. For nearly two hours, the cops poked around and pointed guns at the family, searching the home and three of Irving’s kids. ‘The entire family was terrified that they were about to be shot and killed,’ Irving’s lawyer said in court this week. The cops were looking for drugs and money, one officer told Irving.”)
Posted inBody cameras, Warrant execution|Comments Off on Reason: A SWAT Team Wrongfully Raided Her Home. Now Cops Say Footage From the Raid Is Private Since No One Was Killed.
The Texas exclusionary rule is statutory and not a constitutional remedy since 1922. Thus, harmless error analysis is required, and the case remanded for that. Holder v. State, 2022 Tex. Crim. App. LEXIS 72 (Feb. 2, 2022).
“Accordingly, under the totality of the circumstances, the imposition of a ten-year period of satellite-based monitoring following Defendant’s conviction for an aggravated offense does not constitute an unreasonable search under the Fourth Amendment. … We affirm the trial court’s order imposing satellite-based monitoring for a period of ten years following Defendant’s release from incarceration.” State v. McCauley, 2022-NCCOA-80, 2022 N.C. App. LEXIS 54 (Feb. 1, 2022).*
The officer stopped behind defendant’s car with its flashing hazard lights without turning on his emergency lights for a motorist assist. The officer smelled marijuana and that was reasonable suspicion. State v. Adams, 2022-NCCOA-72, 2022 N.C. App. LEXIS 76 (Feb. 1, 2022).*
Defendant objected at trial to admission of evidence, but it was not a timely motion to suppress. It is waived. State v. Draughon, 2022-NCCOA-58, 2022 N.C. App. LEXIS 53 (Feb. 1, 2022).
Defense counsel wasn’t ineffective for not moving to suppress a search alleged to be by involuntary consent and then a defective second search warrant. The first warrant, however, covered it all, and the second warrant was superfluous. Therefore, the motion to suppress never pursued would fail, and that can’t be ineffectiveness. United States v. Goodfleisch, 2021 U.S. Dist. LEXIS 252172 (N.D.Fla. Dec. 15, 2021).*
Defendant’s 2255 for failure to challenge his Fourth Amendment claim was waived by the guilty plea and the plea agreement. Moreover, he alleges nothing to attempt to show the search was unreasonable. Robertson v. United States, 2022 U.S. Dist. LEXIS 17940 (E.D.Tenn. Feb. 1, 2022).*
Posted inIneffective assistance, Waiver|Comments Off on NC: Objection to seized evidence without a motion to suppress is waiver
This 17-day delay in holding a package for investigation and developing probable cause for a search warrant was not unreasonable. There was reasonable suspicion for the initial detention, and, despite the delay, it was still reasonable. United States v. Martinez, 2022 U.S. App. LEXIS 2887 (5th Cir. Feb. 1, 2022). This is noteworthy:
Officers had defendant’s cell phone for nearly six years from 2015 to 2020, and he was in custody for much of the time. Searching the cell phone six years after seizure was unreasonable. United States v. Briscoe, 2022 U.S. Dist. LEXIS 17895 (D.Md. Feb. 1, 2022):
USMJ’s report is rejected in part. On the reasonable suspicion finding: “Here, the government relies on several factors to establish reasonable suspicion. The court has found that some of these factors, such as the visibly pulsing heartbeat and rapid breathing, did not occur as a factual matter, and that any suspicion arising from the other signs of nervousness were minimal, at best. There are explanations for the remaining factors that are consistent with innocent conduct, and the government has failed to articulate more than a hunch for how these facts warrant suspicion that Brown was committing a crime. Thus, Officer Pekarek did not have reasonable suspicion to prolong the traffic stop to deploy his canine. Because Officer Pekarek conceded that, but for the dog’s indication he would not have searched Brown’s vehicle, this search was in violation of the Fourth Amendment, and any evidence obtained from the search of Brown’s car, including the gun, is suppressed.” United States v. Brown, 2022 U.S. Dist. LEXIS 17867 (D.S.D. Feb. 1, 2022).
Under the circumstances at the time, the shooting rather than Tasing plaintiff’s family dog was reasonable. Kailin v. Greer, 2022 U.S. Dist. LEXIS 17805 (N.D.Ill. Feb. 1, 2022).*
Defendant’s move within his lane was clearly not a violation of the lane change statute, so the stop based on that was not objectively reasonable. The product of the stop is suppressed. People v. Jackson, 2022 IL App (3d) 190621, 2022 Ill. App. LEXIS 50 (Feb. 1, 2022).
“The factors relied upon by our Supreme Court in Williamson, 2009-NMSC-039, ¶ 28, to support the adoption of a deferential standard of review for a magistrate’s decision to issue a search warrant do not apply to the probable cause determination at preliminary hearing. The less demanding standard of review in Williamson was adopted in recognition of the often pressing demand for a quick decision on a warrant request in the lower court and to effectuate this state’s strong preference in favor of the warrant process. Id. (noting that searches conducted pursuant to a search warrant are reviewed under a less demanding standard ‘because deference to the warrant process encourages police officers to procure a search warrant’).” State v. Benedict, 2022 N.M. App. LEXIS 6 (Jan. 31, 2022).*
Posted inReasonableness, Standards of review|Comments Off on IL: Officer’s interpretation of lane movement statute was unreasonable and stop suppressed
Plaintiff’s excessive force claim occurred after arrest but before a judicial determination of probable cause. “If so, Mr. Willis would not have been a pretrial detainee for purposes of Plaintiff’s excessive force claim. However, because the parties characterize him as a pretrial detainee and rely on the Fourteenth Amendment, and the Tenth Circuit recently treated a plaintiff in a similar situation as a pretrial detainee, the Court will apply the Fourteenth Amendment standard. See Rowell v. Bd. of Cnty. Commissioners of Muskogee Cnty., 978 F.3d 1165, 1171 (10th Cir. 2020) (describing plaintiff as ‘a pretrial detainee’ when the alleged excessive force occurred while he was being processed into the jail following his arrest for public intoxication). In any event, the Court would reach the same conclusions regardless of whether the Fourteenth or Fourth Amendment standard applies. See McCowan v. Morales, 945 F.3d 1276, 1283 (10th Cir. 2019) (explaining that ‘the same objective standard now applies to excessive-force claims brought under either the Fourth or the Fourteenth Amendment’).” Willis v. Okla. County Detention Center, 2022 U.S. Dist. LEXIS 17793 (W.D.Okla. Feb. 1, 2022).
Posted inArrest or entry on arrest, Excessive force|Comments Off on W.D.Okla.: Whether 14A or 4A applies to ptf’s excessive force claim on arrest before PC found by judicial officer, result the same
Dismissal of a § 1983 excessive force case in federal court was not collateral estoppel for a state case under the state tort claims act. Hernandez v. Parker, 2022 N.M. App. LEXIS 5 (Feb. 1, 2022).
Extending this stop was with reasonable suspicion. “In this case, prior to stopping the vehicle, Officer Biesemann reasonably suspected that either the driver was intoxicated, or he and any passengers were involved in drug-related criminal activity. Officer Biesemann inferred this from his training and experience, drawing on the vehicle’s out-of-state license plates, heavily tinted windows, the soon-after-midnight time of night, the driver’s erratic driving, and the high-crime characteristic of the neighborhood.” United States v. Young, 2021 U.S. Dist. LEXIS 252153 (E.D.Mo. Dec. 1, 2021).*
“If a defendant fails to plead sufficient facts to show a reasonable expectation of privacy, ‘a trial court may refuse a defendant’s request for a suppression hearing’ and deny his motion to suppress.” United States v. Robinson, 2022 U.S. App. LEXIS 2802 (11th Cir. Jan. 31, 2022).
Franks hearing denied. “This purported discrepancy [in the affidavit] fell far short of an intentional or reckless statement.” People v. Ramos, 2022 NY Slip Op 00631, 2022 N.Y. App. Div. LEXIS 629 (1st Dept. Feb. 1, 2022).*
Fourth Amendment facial constitutional challenge fails because plaintiff can’t show it was unconstitutional in all its applications. Ballinger v. City of Oakland, 2022 U.S. App. LEXIS 2862 (9th Cir. Feb. 1, 2022).*
There was a six day delay between seizure of six cell phones and issuance of a search warrant for them. This was reasonable under CA11 precedent. Moreover, the good faith exception applies. United States v. Norwood, 2022 U.S. Dist. LEXIS 16851 (N.D.Ga. Jan. 28, 2022).
“Under the circumstances of this case, Officer Biesemann’s request that the driver and passengers exit the vehicle and stand at its rear, following a valid traffic stop with probable cause of a lane violation, does not violate the Fourth Amendment. Defendant’s objection is overruled.” United States v. Young, 2022 U.S. Dist. LEXIS 16789 (E.D.Mo. Jan. 31, 2022).*
2254 habeas petitioner cannot show he would prevail on this Fourth Amendment ineffective assistance of counsel claim. Looking at the merits, no motion to suppress would have prevailed, so defense counsel couldn’t be ineffective for not trying. “ Through the lens of double deference, Flowers did not act unreasonably in not pursuing this argument and there was also not a reasonable probability that this argument would have been successful. The state court’s resolution of those issues was certainly not an unreasonable application of Strickland.” Gayot v. New York, 2022 U.S. Dist. LEXIS 17009 (E.D.N.Y. Jan. 31, 2022).*
Police were called to a man slumped over his steering wheel maybe passed out. They roused him. Defendant’s patdown was not justified by reasonable suspicion. State v. Shoenberger, 2022-Ohio-253, 2022 Ohio App. LEXIS 232 (11th Jan. 31, 2022).
Defendant’s roadside detention was not “custody” under Berkemer. State v. Roswell, 2022-Ohio-260, 2022 Ohio App. LEXIS 217 (11th Jan. 31, 2022).*
There is no § 1983 claim for violation of defendant’s rights under HIPAA. The state did not violate defendant’s Fourth Amendment rights by entering data gathered from him for entry into its sex offender database. Doe v. Fluke, 2022 U.S. Dist. LEXIS 16817 (D.S.D. Jan. 31, 2022).
Plaintiff operated a gym entered by the police for an administrative search during Covid when it should have been temporarily closed under a state executive order. They accessed it with a keycard from the prior owner who sold it years ago. The keycard created some reasonable expectation of privacy in the commercial premises from such entries under Maryland v. Macon. Alexander Indus. v. Town of Holly Ridge, 2022 U.S. Dist. LEXIS 17108 (E.D.N.C. Jan. 31, 2022).
The traffic stop ended up diverting from its mission without reasonable suspicion to have defendant remove his shoes and socks, and drugs were found. The government concedes that was unlawful. Removing that information from the affidavit for the warrant for his car left no probable cause. United States v. Baker, 2022 U.S. Dist. LEXIS 16886 (S.D.W.Va. Jan. 31, 2022).*
Plaintiff’s § 1983 complaint over the searches that led to his conviction don’t necessarily call into question his conviction, so they aren’t Heck barred. Cooney v. Arkansas, 2022 U.S. App. LEXIS 2839 (8th Cir. Feb. 1, 2022).*
“Because it is the First and Fourteenth Amendment, and not the Fourth Amendment’s prohibition against unreasonable search and seizure that protects against the reading and confiscation of legal mail by prison officials, the Court will dismiss Plaintiff’s Fourth Amendment claim for failure to state a claim upon which relief may be granted.” Bray v. Mazza, 2022 U.S. Dist. LEXIS 16732 (W.D.Ky. Jan. 31, 2022).
“‘Generally, a mere passenger does not have standing to challenge a vehicle search where he has “neither a property nor a possessory interest in the automobile.”’” He had to allege some further connection to the vehicle such as ownership or greater permission to control than just sitting in it. United States v. Young, 2022 U.S. Dist. LEXIS 16789 (E.D.Mo. Jan. 31, 2022).*
Plaintiff has no standing to complain of a knock-and-announce violation of another person. “Here, Plaintiff does not even claim that he had a legitimate expectation of privacy in McMullen’s house. But even if he did make such a claim, the facts alleged in the Amended Complaint would not support it. By all appearances, Plaintiff has no relationship with McMullen or his family and had never been to McMullen’s house before the raid.” Murphy v. May, 2022 U.S. Dist. LEXIS 16468 (E.D.Mich. Jan. 28, 2022).
Plaintiff adequately pled for PLRA purposes a punitive strip search in jail. Gerez v. Castro, 2022 U.S. Dist. LEXIS 16427 (C.D.Cal. Jan. 28, 2022).*
French v. Merrill, 2022 U.S. App. LEXIS 2625 (1st Cir. Jan. 28, 2022) (3-3*) (panel decision 15 F.4th 116 (1st Cir. Oct. 1, 2021)). On why rehearing should not be granted:
"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.
