The government’s independent source argument was (1) tucked into another argument and then not fully developed, and (2) then essentially abandoned for years during the litigation. It was not fully developed. United States v. Osborne, 2022 U.S. App. LEXIS 2682 (9th Cir. Jan. 28, 2022).
The penalties for possession of marijuana were substantially reduced, and it wasn’t decriminalized, so the smell of marijuana supports a search of a car. People v. Lake, 2022 V.I. LEXIS 1 (V.I. Super. Jan. 27, 2022).
Posted inBurden of pleading, Plain view, feel, smell|Comments Off on CA9: Govt “tucked” independent source argument into another and then abandoned it for years; not fully developed
“We have held, however, that ‘[w]ithin a few seconds of reasonably perceiving a sufficient danger, officers may use deadly force even if in hindsight the facts show that the persons threatened could have escaped unharmed.’ … Though different decisions on the night of February 11, 2017, might have led to a better outcome, the record does not support an obvious causal connection between those alleged oversights and the officers’ decision to use force against a previously hidden and threatening Young. … Our precedent generally requires the excessive force analysis to focus on the moments immediately leading up to the use of force, which indicates the need for allegations and evidence that the immediately preceding conduct is part of the same event. … Due to the fact-intensive nature of excessive force claims, precise guidelines on what constitutes an analyzable unit of time for a particular event are absent from our cases. But our precedent shows that some causal connection between the preceding seconds or minutes to be included in the claim and the actual use of force is necessary. … Here, the record does not support the conclusion that the officers’ decision to enter the house to conduct a lawful search, and to continue that search on the second floor, is so ‘conceptually [in]distinct’ from the deadly force used that they should be analyzed as one ‘segment.’ [¶] Furthermore, the fact that a suspect has a disability is relevant to the use of force analysis, but only if the officers were aware that some disability exists.” The use of deadly force here was not unreasonable. Kirilova v. Braun, 2022 U.S. App. LEXIS 2649 (6th Cir. Jan. 27, 2022).*
Posted inExcessive force|Comments Off on CA6: Where there was a threat in the house on the second floor, it wasn’t unreasonable for officers to go check it out
GPS monitoring with a search waiver were reasonable conditions of defendant’s home confinement sentence. People v. Gerson, 2022 Cal. App. LEXIS 72 (4th Dist. Jan. 28, 2022).
“Although Defendant complied with Franks by (1) specifically identifying the portion of the warrant affidavit that is claimed to be false; and (2) providing an offer of proof and statement of supporting reasons, he failed to establish, or even allege, that the misstatements were deliberately false or reckless. Franks, 438 U.S. at 155-172. ‘Mere inaccuracies, even negligent ones, are not enough’ to warrant a Franks hearing.” The Franks challenge fails. On the question of consent, the motion essentially admits the search was by consent, so the court takes that at face value. United States v. Cedeño-Olivencia, 2022 U.S. Dist. LEXIS 16126 (D.P.R. Jan. 26, 2022).*
The attachments to the affidavits were attached but not incorporated by words in the affidavit. The court doesn’t decide that this is a Fourth Amendment violation because the good faith exception applies. The search of a cell phone attempted within the period in the warrant that wasn’t completed until later was still valid under Rule 41. United States v. Chavez, 2022 U.S. Dist. LEXIS 15713 (D.N.M. Jan. 27, 2022).
An affidavit for a search warrant does not have to be an exact recitation of the facts. “[I]t is insufficient to show that some of the information contained in the search warrant is false. … Rather, the defendant must show by a preponderance of the evidence that the affiant ‘intentionally or recklessly misrepresented facts in order to secure the search warrant.’ … [¶] Zulawski failed to carry his burden here.” United States v. Zulawski, 2022 U.S. App. LEXIS 2645 (6th Cir. Jan. 27, 2022).*
The officer picking up defendant’s cell phone and the screen lighting up was not a search. It was inadvertent, and the phone had to be picked up to do anything with it. Even if it was, the exclusionary rule should not apply because that was inadvertent. Defendant’s argument that the search of phone under a warrant was overbroad fails because he doesn’t analyze it, he just states it. The court won’t make his argument for him. United States v. Garcia, 2022 U.S. Dist. LEXIS 15632 (E.D.Cal. Jan. 26, 2022).
“The State contends that defendant’s unusual conduct in visiting Vernieri two days before the murder, the disparities in his account of the visit, his assertion that he slept until 11:00 a.m. on the date of the murder even though cell phone records placed his phone behind Vernieri’s home at 10:39 a.m., Logan’s statement that he heard a shriek from downstairs between 10:10 and 10:30 a.m., and defendant’s statement that he visited the Van Winkle property on the date of the murder, provided a sufficient basis for the search warrant.” It did. State v. Rochat, 2022 N.J. Super. LEXIS 10 (Jan. 28, 2022).*
“Paraphrased, this amounts to arguing that if the state courts got the Fourth Amendment issues really wrong, the habeas court can put Stone aside and decide the merits of the Fourth Amendment claims. [¶] Hashi cites no authority in support of this supposedly ‘fundamental distinction.’ Instead he cites United States v. Frady, 456 U.S. 152, 165 (1982), and Jackson v. Virginia, 443 U.S. 307, 332 (1979). These cases come nowhere near recognizing any such distinction. Frady holds the procedural default analysis developed in § 2254 cases … is fully applicable to § 2255 motions. Jackson holds the requirement for proof beyond a reasonable doubt in criminal cases is a constitutional requirement under the Due Process Clause. Thus Hashi has not shown the existence of the fundamental distinction he claims. Moreover, the Objections make no attempt to apply thus distinction: they do not attempt to show where the Fifth District’s analysis of the Fourth Amendment claims is wrong.” Hashi v. Cook, 2022 U.S. Dist. LEXIS 15538 (S.D.Ohio Jan. 28, 2022).
Officers can make objectively reasonable mistakes about whether the facts support their stop. Here, the video shows what a reasonable person would see was defendant’s rolling stop of his motorcycle. United States v. Melgoza, 2022 U.S. Dist. LEXIS 15522 (E.D.Cal. Jan. 27, 2022).*
Posted inIssue preclusion, Reasonableness|Comments Off on S.D.Ohio: There is no the state courts got it “really wrong” exception to Stone
Plaintiff sued a prosecutor for various things including the “privacy tort ‘of unreasonable intrusion into private facts.’” His computer was searched under a warrant and potential privileged material was obtained. Plaintiff’s own complaint says the prosecutor was given the information off the computer by law enforcement for his prosecution. That states no claim for relief; nothing was unreasonable about that. Ryno v. Hillman, 2022 Mo. App. LEXIS 39 (Jan. 27, 2022).
Appellate counsel wasn’t ineffective for not challenging a traffic stop as a part of GPS placement on his vehicle where it was clear the officer making the stop was completely unaware of the GPS. “Accordingly, the court is left with Thomas’s conclusory challenges to the traffic stop, which alone fall far short of meeting the demanding ‘deficient performance’ standard applicable to appellate counsel.” Thomas v. United States, 2022 U.S. Dist. LEXIS 14803 (W.D.Wis. Jan. 27, 2022).*
Plaintiff is an attorney pro se alleging, inter alia, a Fourth Amendment violation in Colorado against a member of the House of Representatives for the January 6th insurrection. He claims a Fourth Amendment in the “people’s house” when he doesn’t allege he was there. No standing. Even if he was, what’s the reasonable expectation of privacy? Murphy v. Lamborn, 2022 U.S. Dist. LEXIS 15146 (D.Colo. Jan. 27, 2022).* [And what did the Congressman do to keep him out of a public building under complete video surveillance.]
This 2254 petitioner seeks to relitigate his search on habeas, and Stone bars that. Tarvin v. Sec’y, Dep’t of Corr., 2022 U.S. Dist. LEXIS 15178 (M.D.Fla. Jan. 27, 2022).*
2241 petitioner was convicted in a court martial and the Air Force Court of Criminal Appeals affirmed. His ineffective assistance of counsel on all grounds fails, including allegations defense counsel failed to properly litigate his motion to suppress. Nothing he shows would change the outcome because the search claims were meritless. Bessmertnyy v. Kirk, 2022 U.S. Dist. LEXIS 15428 (S.D.Cal. Jan. 27, 2022).*
Appellant’s motion to reopen his appeal to reargue his Fourth Amendment claims is denied. Not one thing he proffers can change the outcome of the appeal. There was a basis for a GPS warrant on his vehicle, and there was probable cause for the stop and search. And he arguably had no reasonable expectation of privacy in the location information sent from the laptop he stole and which brought the police to him, based on information from the victim. That brought the police, and he fled in his car and crashed it. State v. Boyce, 2022 Ohio App. LEXIS 187 (10th Dist. Jan. 25, 2022), direct appeal 2021-Ohio-712, 2021 Ohio App. LEXIS 718 (10th Dist. Mar. 11, 2021).
Defendant moved to exclude jail telephone calls that led to a search warrant of defendant’s cell because he had discovery with him he was talking about in the calls and sought to post it on Facebook. The motion is based on Rule 401 and 403 lack of relevance or more prejudicial than relevant. Denied in part. United States v. Snow, 2022 U.S. Dist. LEXIS 15388 (W.D.Va. Jan. 26, 2022).* (I have a client who posted the jury instruction on the testifying informant on Facebook a week before trial. She’s going to get a 2 level obstruction enhancement for attempting to intimidate a witness.)
The government used Google satellite images and distancing to corroborate the officer’s testimony defendant didn’t signal his turn in time. After the stop, the smell of marijuana was apparent. United States v. Miles, 2022 U.S. Dist. LEXIS 14860 (S.D.Ind. Jan. 27, 2022).*
In an excessive force case, defendants object that an expert would testify that excessive force here violated the Fourth Amendment. Plaintiffs deny that but seek the expert’s testimony that policy was violated. That’s all denied. Kelly v. Stassi, 2022 U.S. Dist. LEXIS 15081 (M.D.La. Jan. 27, 2022).*
Defendant’s motion to suppress is conclusory and alleges no facts. You can’t get a hearing on that. Amend it. United States v. Aragon, 2022 U.S. Dist. LEXIS 15075 (D.Utah Jan. 26, 2022).*
This is an action to enforce a DEA administrative subpoena to the New Hampshire Prescription Drug Monitoring Program for specific prescriptions. The court declines to equate prescription records with other medical records because the pharmacy industry is closely regulated. It also declines to find Carpenter applies and that the third party doctrine should not apply. United States DOJ v. Jonas, 2022 U.S. App. LEXIS 2549 (1st Cir. Jan. 27, 2022):
A warrant for premises found a visitor there, and the record shows nothing about why he was searched and the trial court upheld it. “As discussed, the factors the trial court relied upon to validate the patdown of Mr. Bingman—his presence at a site the police were authorized pursuant to a warrant to search for marijuana and marijuana paraphernalia, and his possession of a knife of unknown description—do not support a reasonable determination that he was armed and dangerous.” Bingman v. United States, 2022 D.C. App. LEXIS 29 (Jan. 27, 2022) (2-1).
The officer’s tone and statements during the stop revealed on the bodycam showed defendant did not consent to the search. State v. Jackson, 2022-Ohio-187, 2022 Ohio App. LEXIS 185 (8th Dist. Jan. 27, 2022).
Probable cause to arrest and to search are different things. (One doesn’t automatically lead to the other.) Salcedo v. City of New York, 2022 NY Slip Op 00523, 2022 N.Y. App. Div. LEXIS 501 (1st Dept. Jan. 27, 2022).
The traffic stop was based on multiple possible violations and the trial court only applied one and found the stop valid. “ The trial court completely ignored the evidence of the other traffic violations. This is not a case where the trial court found the evidence of other traffic violations lacking in credibility; the trial court made no finding at all with respect to that evidence. We, therefore, find the trial court’s conclusion that Stewart did not commit a traffic violation is against the manifest weight of the evidence.” The stop being valid, “We, therefore, sustain the sole assignment of error and reverse the trial court’s judgment. We remand the case to the trial court to consider whether Ealom promptly informed police that he had a concealed weapon and, thus, whether police had probable cause to search Stewart’s vehicle following a lawful traffic stop.” State v. Stewart, 2022-Ohio-199, 2022 Ohio App. LEXIS 178 (8th Dist. Jan. 13, 2022).
Qualified immunity was denied for officers who were alleged to have arrested peaceful protestors in St. Louis in 2017. People were allowed to enter an area and then were arrested. As to force, “The pleadings before us and video evidence paint a picture of a compliant individual among a generally peaceful and compliant crowd who was boxed into an intersection by police, pepper sprayed, and forcefully arrested. Specific questions as to whether ‘kettling’ a crowd was in-and-of-itself excessive force, whether the application of the zip-ties caused the requisite ‘de minimis injury’ to establish a constitutional violation, or whether Baude was truly compliant cannot be answered on this limited record. Based on the allegations and on this record, we cannot conclude as a matter of law that the force used against Baude, when viewing the alleged facts in a light most favorable to him, was objectively reasonable.” Baude v. Leyshock, 2022 U.S. App. LEXIS 2510 (8th Cir. Jan. 27, 2022). See Law360: 8th Circ. Says No Immunity For ‘Kettling’ By St. Louis Cops
Mindgeek was sued for aiding sex trafficking because Doe’s boyfriend posted porn of her under 18 on some of its websites. A search warrant was executed for Mindgeek’s servers, but it’s not a federal criminal defendant. “[T]he Court must follow the mandatory language of §1595(b) and stay the case until the criminal action is resolved.” Doe v. Mindgeek USA, 2021 U.S. Dist. LEXIS 251759 (C.D.Cal. Dec. 28, 2021).*
Posted inQualified immunity|Comments Off on CA8: Ptfs stated claim to overcome qualified immunity and arguable probable cause during mass arrests of peaceful protesters
Police executed an arrest warrant at defendant’s house. It took him 5-6 minutes to show himself, coming from the basement. A protective sweep of the basement was reasonable, and firearms were found in plain view down there. A search warrant then was issued for the house and even more guns were found elsewhere. United States v. Shaulis, 2022 U.S. App. LEXIS 2503 (3d Cir. Jan. 26, 2022).
“It is well-settled that ‘the imposition of a penalty upon a landlord for renting his [or her] premises without first consenting to a warrantless search violates the property owner’s Fourth Amendment rights’ (Sokolov v Village of Freeport, 52 NY2d 341, 343 …) Here, however, the Town’s rental permit law does not ‘expressly require … an inspection before the issuance or renewal of a permit’ … since a property owner who is applying for a rental permit has the option of obtaining a certification from a state-licensed professional engineer in lieu of submitting to an inspection by a Town building inspector (see Town Code former § 153-6[B]). Accordingly, the provisions did not violate constitutional provisions against unreasonable searches and seizures ….” Infinite Green, Inc. v. Town of Babylon, 2022 NY Slip Op 00407, 2022 N.Y. App. Div. LEXIS 432 (2d Dept. Jan.26, 2022).*
Defendant’s claim the information about a co-conspirator’s phone search must be fabricated because that search warrant wasn’t in his discovery was “specious.” He doesn’t even have standing. Edwards v. United States, 2022 U.S. Dist. LEXIS 14407 (E.D.N.Y. Jan. 26, 2022).* [Making stupid arguments never gets one far.]
The affidavit was false but merely mistaken. Moreover, it wasn’t even material to the probable cause finding. United States v. Osterman, 2022 U.S. Dist. LEXIS 13852 (E.D.Mich. Jan. 26, 2022).*
2255 petitioner’s Fourth Amendment claims fail for no affirmative showing he couldn’t have raised it before in district court. Smith v. United States, 2022 U.S. Dist. LEXIS 14213 (E.D.Tenn. Jan. 26, 2022).*
Posted inFranks doctrine, Issue preclusion, Standing|Comments Off on E.D.N.Y.: Complaint about co-def’s cell phone search was “specious,” and def doesn’t even have standing
Defendant was indicted in Florida for endangered species trafficking, occurring partly in California and Florida. The fact he talked 186 minutes with a co-conspirator over a year was probable cause to search his phone for evidence. Also, the good faith exception applies. United States v. Hammonds, 2022 U.S. Dist. LEXIS 14316 (M.D.Fla. Jan. 26, 2022).* (Actually, 186 minutes in a year isn’t much. That’s 15 minutes or so a month.)
“The Court concludes that based on the totality of the circumstances, a reasonable person in Belitz’s situation would have felt free to leave. Belitz was in his own home, was not handcuffed, and was explicitly told by the agents that he was free to leave. While the home was filled with fifteen law enforcement agents executing a search warrant, only two agents were in the room interviewing Belitz. The agents asked if he wanted the door to the bedroom where he was interviewed left open; when Belitz said he did not care, the door was left at least partly open. The agents spoke in a measured, conversational tone. The interview lasted about 85 minutes, and as soon as he asked, Belitz was allowed to go to the bathroom, even though he was asked to leave the door cracked.” United States v. Belitz, 2022 U.S. Dist. LEXIS 13627 (S.D.N.Y. Jan. 24, 2022).*
Posted inCell phones, Consent, Probable cause|Comments Off on M.D.Fla.: Cell phone calls with co-conspirator was PC for phone, and GFE applies anyway
The DoJ appropriations rider* that limits spending any federal funds of medical marijuana-type cases does not permit the court of appeals enjoining the prosecution by interlocutory appeal. That does not implicate the grand jury’s power to consider the case, nor does it implicate the exclusionary rule. United States v. Bilodeau, 2022 U.S. App. LEXIS 2383 (1st Cir. Jan. 26, 2022):
“To prove a Fourth Amendment violation, Orrock needed to show by clear and convincing evidence that an IRS agent induced a consent search by deceit, trickery, or an affirmative misrepresentation. … No IRS agent made an affirmative misrepresentation. Rather, Orrock was provided with IRS Notice 609, informing him of the possibility that information obtained could be used for criminal investigation and prosecution.” United States v. Orrock, 2022 U.S. App. LEXIS 2376 (9th Cir. Jan. 26, 2022).*
There was at least reasonable suspicion so the immigration search and arrest was not an egregious violation of the Fourth Amendment. Rivera v. AG of the United States, 2022 U.S. App. LEXIS 2359 (3d Cir. Jan. 26, 2022).*
Posted inConsent, Immigration arrests|Comments Off on CA9: IRS didn’t coerce consent, def was advised of rights in writing
Petitioner gets remand and a hearing that a police officer caught in lies on multiple search warrant applications around the same time could have here, too. Ex parte Mathews, 2022 Tex. Crim. App. LEXIS 36 (Jan. 26, 2022).
Defendant’s father died, and his daughter at the house consented to search and seizure of an Apple iBook that could be used in evidence against defendant. United States v. Hadden, 2022 U.S. Dist. LEXIS 13280 (S.D.N.Y. Jan. 25, 2022).*
Posted inConsent, Franks doctrine, Probable cause|Comments Off on TX: Pet’r gets remand over alleged pattern of lies elsewhere of one officer on SW application
"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.
