An officer found defendant selling fake IDs via Facebook. “The Facebook Warrant contained posts from this account indicating that the account-operator was selling fake IDs, including by specifying that the IDs could help people avoid warrants, fines, and jail time. … Given these posts, the issuing–judge had a substantial basis for concluding that a fair probability existed that evidence of a forgery–crime would be found in Kizzy Chapo’s Facebook account.” The warrant was also not overbroad. United States v. Turner, 2021 U.S. Dist. LEXIS 251554 (D.Nev. Dec. 7, 2021),* adopted, 2022 U.S. Dist. LEXIS 11183 (D.Nev. Jan. 21, 2022).*
The district court credited the first officer at the scene of this stop that he could smell marijuana, despite not putting it in his reports. The second officer testified he didn’t smell marijuana. The following dog alert gave probable cause for an automobile exception search. United States v. Fuchs, 2022 U.S. App. LEXIS 2266 (6th Cir. Jan. 25, 2022).*
El Chapo’s case: The district court was correct in not suppressing telephone calls on a drug cartel network set up in the Netherlands to facilitate their drug trafficking. The information was obtained by an MLAT treaty request, and it was a search in a foreign country complying with their law. Also, defendant doesn’t show standing that he owned the server. He also has no reasonable expectation of privacy in the product of spyware software defendant had put on his girlfriends’ and coconspirator’s phones, even if he could show standing. That information was also turned over to the government from the Netherlands. United States v. Loera, 2022 U.S. App. LEXIS 2182 (2d Cir. Jan. 25, 2022).
“Next, Hudson contends that counsel was ineffective for failing to pursue a motion to suppress and for failing to file objections to certain information in the PSR. Like his first argument, this argument is going nowhere.” The search warrant was supported by clear probable cause from an informant providing detailed information. United States v. Hudson, 2022 U.S. Dist. LEXIS 13091 (N.D.Ind. Jan. 25, 2022).*
The government concedes after conviction on seven counts that three of the counts against defendant were the product of an illegal search. They argue the remainder can stand without it. It can’t because, if there was any doubt for any jurors, this evidence extinguished it. “Drugs, guns, and money. That is how the Government summarized its case against Matt Jones. The Government now concedes that the drugs, guns, and money from Jones’ residence were seized in violation of the fourth amendment. After seeing this evidence at trial, the jury convicted Jones of seven counts related to heroin distribution and gun possession. The question now before the Court is whether any of those seven counts can withstand the admitted violation of Jones’ fourth amendment rights.” United States v. Jones, 2022 U.S. Dist. LEXIS 12914 (E.D.Pa. Jan. 25, 2022).*
On defendant’s Franks claim: “At best, the defendant has pointed out inartful drafting on Fenner’s part and a small transcription error. The defendant has presented no direct evidence of Fenner’s state of mind or showed any intent to deceive, and the evidence Fenner had indicates that there was no need for him to lie or be reckless with the truth. Because Judge Dries did not commit clear error in concluding that the defendant had not made the necessary preliminary showing for a Franks hearing, the court will not reverse that ruling and will not order a Franks hearing.” And, “Even if the defendant had demonstrated that Fenner made a material false statement or misrepresentation, he would have been required to demonstrate that absent the false statement or misrepresentation, probable cause would not have existed.” It does. United States v. Massey, 2022 U.S. Dist. LEXIS 12938 (E.D.Wis. Jan. 25, 2022).*
Posted inFranks doctrine, Standards of review|Comments Off on E.D.Pa.: Govt’s post-trial concession search was illegal undermines half the counts of conviction, and no harmless error on remainder
In this murder case, officers had a search warrant for defendant’s house and any cars on the property. They learned he had another car at a ranch of a friend. They entered the friend’s property and seized the car and towed it in. Then they got a search warrant for the car. The automobile exception doesn’t apply here because the state can’t show probable cause for the car to seize it without a warrant. DNA from the car was used in the murder trial. People v. Rorabaugh, 2022 Cal. App. LEXIS 60 (3d Dist. Jan. 25, 2022).
Defendant’s admission he had a couple of ounces of meth on him led to a search, and it was reasonable to conclude he also consented to search of the bag it was in. United States v. Alonso, 2022 U.S. Dist. LEXIS 12776 (D.Alaska Jan. 24, 2022).
Posted inAutomobile exception, Consent|Comments Off on Cal.3: Warrantless seizure of car to get a warrant for it was without PC and search suppressed
“Bruce Nicholson, an Alabama man convicted of federal child sex crimes and sentenced to life in prison, challenges his conviction on direct appeal. The main question in this criminal appeal is, as it often is, whether a criminal should ‘go free because the constable has blundered.’ People v. Defore, 242 N.Y. 13, 150 N.E. 585, 587 (N.Y. 1926). Nicholson was convicted of heinous crimes—the long-term sexual exploitation of two children that came to light only after one became pregnant and he spirited both away across the country. But the FBI dawdled during its investigation. The FBI let physical evidence sit in a wrecker service’s office in Kentucky for months before securing a warrant to seize it. And it searched a laptop seized in New York six months after its warrant’s deadline. Nonetheless, the answer to the question on appeal is that the constable’s blunders do not warrant reversing Nicholson’s conviction as a matter of law. Accordingly, after careful consideration and with the benefit of oral argument, we affirm.” It is summed up in this heading: “The FBI’s Negligence Does Not Justify Excluding the New York or Kentucky Evidence.” United States v. Nicholson, 2022 U.S. App. LEXIS 2143 (11th Cir. Jan. 24, 2022).
There was probable cause for a search warrant for defendant’s SnapChat account as linked to his crime by two CIs. Jan. 24, 2022).*
Even assuming that a tow and inventory is permissible for an illegal tint violation (comparing Atwater v. Lago Vista on trivial arrests not being unreasonable), the inventory police did not address such incidents and the inventory itself mentioned “backpack” without the $150,000 in it, which was turned over to the DEA and not inventoried at all. The inventory was unreasonable. There also was no probable cause for the search of the car. United States v. Clayton, 2022 U.S. Dist. LEXIS 12002 (E.D.Wis. Jan. 24, 2022).
“Although the affidavit supporting the warrant to search Arwood’s house was imperfectly drafted, it was not so lacking in indicia of probable cause as to preclude the application of the good faith exception. The affidavit connected Arwood, the place to be searched, and the alleged criminal activity and provided additional information establishing the confidential source’s reliability. … Reading the affidavit ‘hypertechnical[ly],’ it does not say when the CS saw methamphetamine in Arwood’s house, but we cannot undertake such a reading. … Applying a ‘realistic and commonsense approach,’ … it is reasonable to read ‘[w]ithin the last 48 hours’ as describing when the CS saw methamphetamine in Arwood’s house.” United States v. Arwood, 2022 U.S. App. LEXIS 2048 (11th Cir. Jan. 24, 2022).* [Actually, the affidavit wasn’t nearly as “imperfectly drafted” as all that. It wasn’t perfect, but few are.]
Posted inGood faith exception, Inventory|Comments Off on E.D.Wis.: Inventory was unreasonable where SOP didn’t mention inventory for overtinting and cash found wasn’t inventoried but was instead delivered to DEA
Defendants were stopped in a car ¾ of a mile and driving away from the scene of a 7-11 robbery. All the officer knew was there were two black males involved. In their car, there were three black males. That and the fact they didn’t seem alarmed when he shined his car spotlight into the car was the cause for the stop. This was not reasonable suspicion on the totality. It was a generic description that applied to all black males in the vicinity. State v. Nyema, 2022 N.J. LEXIS 67 (Jan. 25, 2022).
Defendant tries here to turn a Franks challenge into a motion to dismiss for perjury before the grand jury. The claim of perjury is speculative and fails. United States v. Torres-Mejias, 2022 U.S. Dist. LEXIS 12715 (D.P.R. Jan. 24, 2022).*
Plaintiff failed to raise a genuine issue of fact for his claim of excessive force during a blood draw. Kennedy v. Watts, 2022 U.S. App. LEXIS 2127 (9th Cir. Jan. 25, 2022).*
During the trial, NYPD officers revealed they were in the premises and conducted plain views during a walk around as a protective sweep and then sought a search warrant . It was also revealed that they routinely left information about these prior entries out of affidavits for warrants. The state also argued that the defendant was aware of the police being there, but the court declines to credit that theory unless she was well versed in criminal procedure to know its significance to tell her lawyers. The trial court erred in denying the motion with no hearing at all on an inevitable discovery theory. People v. Esperanza, 2022 NY Slip Op 00383, 2022 N.Y. App. Div. LEXIS 368 (1st Dept. Jan. 25, 2022):
Posted inInevitable discovery, Protective sweep|Comments Off on NY1: Routine of leaving out of affidavit for SW that protective sweep saw drugs first revealed during trial required hearing
Defendant filed and lost a Franks motion. He renewed it mid-trial after testimony. This one fares no better. It’s based on a claim defense counsel should have interviewed the witness earlier for the Franks motion, but all this is speculative. United States v. Mazzulla, 2022 U.S. Dist. LEXIS 12468 (D.Neb. Jan. 24, 2022).
The affiant’s statement that defendant possessed trigger switches to convert Glock handguns into machine guns was not material nor misleading. He contended that they could be used on airsoft guns, but he provides nothing to show that. United States v. Hammond, 2022 U.S. Dist. LEXIS 11967 (E.D.Pa. Jan. 24, 2022).*
The trial starts tomorrow. Defendant’s motion in limine to bar admission of the product of a search as 404(b) evidence is denied. Prejudice does not outweigh relevance. United States v. Cooley, 2022 U.S. Dist. LEXIS 12517 (D.N.D. Jan. 24, 2022).*
Defendant’s petition for writ of error coram nobis is denied as untimely, even if available at all. The claim was authentication of warrant papers as an exhibit in 2013. That’s not even a basis for the writ. He was charged with knowledge back then, and this isn’t timely. Moreover, he didn’t even file a 2255. Calzada v. United States, 2022 U.S. Dist. LEXIS 12255 (W.D.Tex. Jan. 18, 2022).
“Contrary to Hill’s assertions, the search warrant affidavit did not misrepresent the informant’s level of certainty. While one sentence of the detective’s affidavit misquoted the informant, when read in its entirety, the affidavit states that the informant saw Hill bury something in his backyard and that the informant believed the item to be stolen car keys. The affidavit does not state that the informant was positive that he saw Hill bury stolen car keys, as Hill claims. Because Hill did not establish that the alleged false statement was made intentionally or with reckless disregard for the truth, the district court did not clearly err in denying his motion to suppress.” United States v. Hill, 2022 U.S. App. LEXIS 1963 (5th Cir. Jan. 24, 2022).*
Posted inFranks doctrine, Warrant papers|Comments Off on W.D.Tex.: Writ of error coram nobis not a remedy nor timely for evidentiary claim in 2013 suppression hearing
On this fourth motion to extend deadline, the warrant materials here are ordered sealed for another year because of an ongoing investigation. The court finds redactions aren’t reasonably possible. In re Seized Misc. United States Currency, 2022 U.S. Dist. LEXIS 12231 (D.S.C. Jan. 21, 2022).
The affiant’s statement that defendant possessed trigger switches to convert Glock handguns into machine guns was neither material nor misleading. He contended that they could be used on airsoft guns, but he provides nothing to show that. Other alleged false statements weren’t material. United States v. Hammond, 2022 U.S. Dist. LEXIS 11967 (E.D.Pa. Jan. 24, 2022).*
Defendant’s search claim was decided against him on appeal, so he can’t bring the same claim by 2255. United States v. Thornton, 2022 U.S. Dist. LEXIS 12148 (E.D.Ky. Jan. 24, 2022).*
Defendant was involved in an immigration stop where officers were looking for another person allegedly illegally reentering. After finding he was not the person they were looking for, they tried to confirm his identity, and the detention might have been overlong. Even if it was, the detention was not an egregious violation leading to his indictment for illegal reentry. United States v. Mitra-Hernandez, 2022 U.S. App. LEXIS 1933 (3d Cir. Jan. 24, 2022) (2-1) (dissent argues the stop should have ended when the officers knew he wasn’t the person they were looking for).
Plaintiff was dragged from a city meeting where she was disruptive and ordered out. She didn’t go, so the police dragged her out. She claims injuries from the dragging, but it’s clear there was no excessive force used against her. Summary judgment properly granted. Williamson v. City of Nat’l City, 2022 U.S. App. LEXIS 1945 (9th Cir. Jan. 24, 2022).*
Whether a traffic stop was unreasonably extended for a drug dog to arrive is reviewed for clear error. The stop here was for overtinting, and the officer processed a warning by entering the information into the patrol car’s computer. He texted the drug dog officer to hurry who got there before the stop was completed. The district court’s finding that Rodriguez was complied with is supported by the record. The finding the stop was not unreasonably extended is affirmed. United States v. Goodwill, 2022 U.S. App. LEXIS 1844 (7th Cir. Jan. 21, 2022).
Defense counsel was not ineffective for not further challenging defendant’s DNA seizure based on a CODIS hit. Defendant can’t show that the officer was lying based on a discrepancy of dates on reports (when all this started on Christmas Eve and the reports were completed after). Wallace v. Tice, 2022 U.S. Dist. LEXIS 11770 (M.D.Pa. Jan. 21, 2022).*
The jury found for plaintiff on his false arrest claim. The district court set it aside. There was no actual probable cause, but there was arguable probable cause, and that grants the officer qualified immunity. Triolo v. Nassau County, 2022 U.S. App. LEXIS 1786 (2d Cir. Jan. 21, 2022).*
Defendants were in jail together, in separate cells 20′ apart (#1 & #4) and talking about their case through the doors’ openings. Jailers could overhear them. “When jail personnel noticed that defendants were communicating with each other by speaking loudly through their respective ‘bean chutes’ [the door slots], they activated the cells’ intercoms and recorded defendants’ conversations. Defendants made incriminating statements during the conversations.” People v. Bembeneck, 2022 Mich. App. LEXIS 380 (Jan. 20, 2022).
Defendant lacked standing in one cell phone that was searched but not another. United States v. Currie, 2022 U.S. Dist. LEXIS 11338 (D.Md. Jan. 21, 2022).*
In a state search warrant, there was probable cause for installation of a GPS device on defendant’s girlfriend’s car that he often drove and for his apartment. Moreover, the good faith exception applies. United States v. Clark, 2021 U.S. Dist. LEXIS 251322 (W.D.N.Y. Dec. 3, 2021).*
Defendant was in a car that was stopped for overtinting, and that led to a tow and inventory. The police searched for and obtained the serial numbers of four cell phones found during the inventory. They were not otherwise searched, and the next day they were returned to the owner. The next day, the police got a search warrant for the phones which was with probable cause. The removal of the back cover to get the serial numbers was not an unreasonable search. United States v. Andrade, 2022 U.S. Dist. LEXIS 11556 (D.R.I. Jan. 20, 2022):
When there’s a seizure for forfeiture and the DEA adopts it, the state court loses jurisdiction to return it. Hare v. Mack, 2022 Ala. LEXIS 8 (Jan. 21, 2022).
Police responded to a shots fired call at an apartment where the shots came from the back of a three-story building. Defendant was seen on a balcony staring off. Officers came to his apartment, and consent to enter was denied by another occupant, but they entered anyway. Inside were .223 casings and ammunition. They secured the premises for a search warrant. One officer stayed behind, seeing the butt of a partially hidden rifle when alone. The entry was justified by the community caretaking function, and the discovery was inevitable, not even mentioned in the warrant application. Green v. State, 2022 Md. App. LEXIS 31 (Jan. 21, 2022).*
Police executed a search warrant for a house for methamphetamine. Defendant didn’t live there, but she was named in the affidavit as a frequent visitor, and she was asleep on the couch when the police came in. After getting her name, her purse was searched, and meth was found. The search of her purse was reasonable considering her connection to the premises, albeit as a visitor. In re Powers, 2022 Ala. LEXIS 12 (Jan. 21, 2022):
Posted inScope of search, Warrant execution|Comments Off on AL: SW for premises permitted search of visitor found asleep with at least some known connection to the premises
Collateral estoppel bars plaintiff’s suit against officers who arrested and searched him. He lost on the same search issue in state court, and that’s order is final. Bertaux v. Aurora Police Dep’t, 2022 U.S. Dist. LEXIS 11260 (N.D.Ill. Jan. 21, 2022).
Defendant’s motion to reconsider a search issue filed under F.R.C.P. 60(b)(6) six years after his guilty plea wasn’t timely. There’s no time limit, but delays have to be reasonable. United States v. Yazzie, 2022 U.S. Dist. LEXIS 11168 (D.N.M. Jan. 21, 2022).*
“[T]he Court finds that there was probable cause for the issuing judge to grant the Facebook warrant for both accounts, that the Facebook warrant was not overbroad, and that even if the warrant were overbroad, the good faith exception would apply.” United States v. Turner, 2022 U.S. Dist. LEXIS 11183 (D.Nev. Jan. 21, 2022).*
Posted inIssue preclusion, Social media warrants|Comments Off on N.D.Ill.: Losing search issue in state court collaterally estops civil § 1983 case over same search
“Koyanagi next challenges the special condition of supervised release requiring him to submit to periodic suspicionless searches of his electronic data. [¶] Koyanagi’s constitutional challenges to this condition are unavailing. See United States v. Bare, 806 F.3d 1011, 1018 n.4 (9th Cir. 2015) (Fourth Amendment does not prohibit searches of federal supervisees’ electronic data); United States v. Betts, 511 F.3d 872, 876 (9th Cir. 2007) (suspicionless searches of federal supervisees do not violate Fourth Amendment).” This was a result of his crime. United States v. Koyanagi, 2022 U.S. App. LEXIS 1752 (9th Cir. Jan. 21, 2022)*
The affidavit for warrant showed probable cause and the warrant was sufficiently particular. United States v. Briscoe, 2022 U.S. Dist. LEXIS 10586 (D.Md. Jan. 20, 2022).*
PCR petitioner’s claim that defense counsel was ineffective for not challenging nexus to his cell phone for its search fails. Defense counsel did, and that issue failed on the merits. Dunnell v. State, 2022 Del. LEXIS 26 (Jan. 20, 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.
