“We conclude that a police officer’s act of positioning the cruiser in a way that made it difficult, albeit not impossible, for Jones to drive away constituted a show of authority sufficient to cause a reasonable person in Jones’ position to believe he was not free to leave. Because police seized Jones without any suspicion of criminal activity, the trial court properly suppressed evidence subsequently found in his vehicle.” State v. Jones, 2022-Ohio-149, 2022 Ohio App. LEXIS 125 (2d Dist. Jan. 21, 2022).
“While Staggers does not so state, presumably the warrant he seeks to suppress is the warrant for his residence at 2116 Greenwood Drive. However, Staggers’ argument on this issue is completely conclusory. In his memorandum, he does not state what Fourth Amendment violation occurred, or reference any facts to support one. The court’s review of the record does not suggest a Fourth Amendment violation occurred. To the contrary, it reflects that probable cause existed for the warrant. The warrant was supported by an 11-page affidavit that detailed a long-running wiretap narcotics investigation. … Under the totality of the circumstances, they establish probable cause for the search of 2116 Greenwood Drive.” United States v. Staggers, 2022 U.S. Dist. LEXIS 10342 (E.D.La. Jan. 20, 2022).*
A criminal defense lawyer stated a claim against a private prison operator under the wiretapping laws for recording attorney-client calls. Bliss v. Corecivic, 2022 U.S. Dist. LEXIS 10953 (D.Nev. Jan. 18, 2022).
2254 petitioner’s illegal search claim barred by Stone. His attempt to amend it to turn it into an ineffective assistance of counsel claim fails, too. Anthony v. S.C. Dep’t of Prob., 2021 U.S. Dist. LEXIS 251148 (D.S.C. Dec. 10, 2021).*
A private search led to information in the search warrant application for child pornography. Therefore, the warrant was based on reasonable searches. United States v. Eley, 2022 U.S. Dist. LEXIS 10387 (D.Nev. Jan. 20, 2022).*
Defendant’s refusal to submit to a search warrant for his blood or urine in a DUI case supported his conviction for obstruction of justice. People v. Hutt, 2022 IL App (4th) 190142, 2022 Ill. App. LEXIS 28 (Jan. 18, 2022).
The affidavit for this search warrant clearly shows probable cause. United States v. Briscoe, 2022 U.S. Dist. LEXIS 10586 (D.Md. Jan. 20, 2022).*
Another person with authority consented to the police entry. United States v. Walking Eagle, 2022 U.S. Dist. LEXIS 9364 (D.S.D. Jan. 12, 2022).*
Defense counsel wasn’t ineffective for not making a greater challenge of his search claim such that he wouldn’t have pled guilty and then suffer immigration consequences. The search warrant application is reviewed in camera and it clearly shows probable cause. People v. Johnson, 2022 NY Slip Op 50029(U), 2022 N.Y. Misc. LEXIS 163 (N.Y.Co. Jan. 20, 2022).*
The trial court suppressed the search of defendant’s backpack as incident to his arrest. The trial court heard conflicting testimony on whether it was within his reach, and concluded it was not. That’s binding on the standard of review. State v. Branson, 2022 Mo. App. LEXIS 21 (Jan. 18, 2022).
“Defendants contend that the magistrate judge improperly relied on the officers smelling marijuana and Perez’s hasty exit from the vehicle in concluding that reasonable suspicion justified their investigatory detention.” They contend that’s not reasonable suspicion, but it is. United States v. Jocktane, 2022 U.S. Dist. LEXIS 9950 (M.D.Pa. Jan. 19, 2022).*
Google transferred suspected child pornography in files to NCMEC, and this was a private search. United States v. Eley, 2022 U.S. Dist. LEXIS 10387 (D.Nev. Jan. 20, 2022).*
“Because the Court will not find trial counsel ineffective for failing to ‘effectively’ raise an issue of first impression [on GPS placement], and because the Court believes that even if he had done so effectively, the issue would not have been decided in his favor and he therefore suffered no prejudice, the Court concludes that Defendant’s … claim for relief must be denied.” Lewis v. State, 2022 Del. LEXIS 22 (Jan. 20, 2022).*
Defendant failed to raise his Fourth Amendment claim in state court when he could have, so it’s barred by Stone. Anthony v. S.C. Dep’t of Prob., 2021 U.S. Dist. LEXIS 251148 (D.S.C. Dec. 10, 2021).*
In petitioner’s state court PCR case, he asserted an ineffective assistance of counsel claim for failure to argue lack of nexus, and his claim was decided on the merits of nexus. That’s a reasonable application of Strickland under 2254. Shauf v. Marsh, 2022 U.S. Dist. LEXIS 9892 (M.D.Pa. Jan. 19, 2022).*
The officer testified that he first smelled raw marijuana about a minute into the stop. When he got defendant into the patrol car, he could smell it on defendant’s person. That was probable cause for a search of the car under the automobile exception. United States v. Brown, 2021 U.S. Dist. LEXIS 250888 (E.D.Tenn. Dec. 21, 2021).
“Thompson generally recites the law concerning the propriety of a traffic stop, but he never develops an argument that the trial court erred by finding the stop here proper. He has therefore waived that argument.” Deciding that issue anyway, the stop was proper. State v. Thompson, 2022 Ariz. LEXIS 37 (Jan. 19, 2022).
Defendant had standing in a borrowed car. “Property concepts are instructive on whether privacy interests are reasonable, but privacy rights need not be based on a common-law interest in property. Byrd v. United States, 138 S.Ct. 1518, 1526 (2021). ‘The proponent of a motion to suppress has the burden of adducing facts at the suppression hearing indicating that his own rights were violated by the challenged search.’ United States v. Eckhart, 569 F.3d 1263, 1274 (10th Cir. 2009) (citations and quotation marks omitted).” United States v. Romero, 2022 U.S. Dist. LEXIS 9246 (D.N.M. Jan. 19, 2022).
The public electric utility cutting off one’s power is not a Fourth Amendment seizure. Lull v. County of Sacramento, 2022 U.S. App. LEXIS 1408 (9th Cir. Jan. 19, 2022).
There was probable cause on the totality, including a showing of nexus to defendant’s property. United States v. Arrington, 2022 U.S. Dist. LEXIS 9094 (E.D.Mich. Jan. 18, 2022).*
“In this case, even if Plaintiff’s allegation that defendant Myers (or any other defendant) searched his cell four times over two months leaving it in disarray and damaging his property (hygiene items/soap, pictures) to harass him is true, such conduct, while unprofessional, is insufficient to establish cruel and unusual punishment under the Eighth Amendment.” Montanez v. Salinas, 2022 U.S. Dist. LEXIS 9103 (E.D.Mich. Jan. 18, 2022).*
Defendant preserved his Rodriguez argument by stating that the stop was continued without reasonable suspicion but not citing the case. Nevertheless, he loses on the merits. United States v. Reyes, 2022 U.S. App. LEXIS 1417 (1st Cir. Jan. 19, 2022).
The court does not have to decide the legality of helicopter flyover of defendant’s property in a dog fighting case. Sufficient other evidence in the affidavit for the search warrant established probable cause. People v. Barizone, 2022 NY Slip Op 00312, 2022 N.Y. App. Div. LEXIS 310 (2d Dept. Jan. 19, 2022).
An IAC claim that defense counsel didn’t pursue a Fourth Amendment claim that was based on speculation on the facts fails. Defense counsel considered it and rejected it. United States v. Santana, 2022 U.S. Dist. LEXIS 9031 (E.D.Cal. Jan. 18, 2022).*
The state failed to prove that the stop was with reasonable suspicion. “While Officer Ianson’s questioning was not expressly coercive, the circumstances surrounding the request to search made the questioning impliedly coercive. Thus, the circumstances suggest that Massey merely submitted to a claim of lawful authority rather than consenting as a voluntary act of free will.” State v. Massey, 2022-Ohio-100, 2022 Ohio App. LEXIS 88 (12th Dist. Jan. 18, 2022).*
The evidence supports the trial court’s conclusion of consent under the standard of review. State v. Wykert, 2022 Mo. App. LEXIS 19 (Jan. 18, 2022).*
The officers did not use excessive force in Tasering defendant during a domestic disturbance call. While he was in his shorts and unarmed, he was hostile, and he only got more so. Coronado v. Olsen, 2022 U.S. App. LEXIS 1300 (10th Cir. Jan. 18, 2022).*
A visitor to premises has no standing in the curtilage. United States v. Castellanos, 2022 U.S. App. LEXIS 1278 (9th Cir. Jan. 18, 2022).
The officer had reasonable suspicion to stop defendant when the officer shined a flashlight on him, which wasn’t necessarily a seizure. But he abandoned his backpack at that point. United States v. Ehrman, 2022 U.S. Dist. LEXIS 8242 (N.D.Cal. Jan. 14, 2022).*
The driver was pulled over for suspected DUI and was ultimately arrested for it. The passenger had no authority to drive. Her detention was no longer than his, and the search of her purse was by consent. State v. Morris, 2022-Ohio-94, 2022 Ohio App. LEXIS 91 (2d Dist. Jan. 14, 2022).*
“In analyzing whether law enforcement officers have qualified immunity in a false arrest claim pursuant to § 1983, the issue is not whether probable cause actually exists but whether a reasonable officer in the officer’s position would have believed he had probable cause to arrest.” King v. Utt, 2021 U.S. Dist. LEXIS 250652 (N.D.W.Va. Dec. 15, 2021).
The screening of plaintiff’s complaint resulted in a recommendation of dismissal for res judicata and statute of limitations. This was all brought before. Asked to respond and explain, plaintiff doesn’t so dismissal affirmed. Skinner v. GPCH-GP, 2022 U.S. App. LEXIS 1236 (5th Cir. Jan. 17, 2022).*
Fourth Amendment curtilage principles do not define curtilage for self-defense and deadly force. State v. Canfield, 2022 N.J. Super. LEXIS 5 (Jan. 10, 2022).* (This is a common outcome around the country.)
Of two coconspirators in a package containing drugs, the named sender has standing but the coconspirator does not. Stopping the UPS truck for a dog sniff of the packages did not interfere with any reasonable expectation of privacy. Besides, there was reasonable suspicion. United States v. Brown, 2022 U.S. Dist. LEXIS 8024 (M.D.Pa. Jan. 14, 2022).
Knowing there were likely more weapons, a protective weapons search of a vehicle led to a plain view of an owner’s manual for an AR-15 which was admissible in evidence. United States v. Williams, 2022 U.S. App. LEXIS 1156 (4th Cir. Jan. 14, 2022).
At 3 am, the officer was looking for potential car break-ins by a man previously described as carrying a black backpack. Then he found defendant entering cars wearing a black backpack. At this point, there was reasonable suspicion. The officer pulling his gun at first didn’t convert the stop into a de facto arrest. United States v. Morrison, 2022 U.S. Dist. LEXIS 8038 (M.D.Pa. Jan. 14, 2022).*
Plaintiff was arrested for possession of brass knuckles. The state court suppressed, so the state’s attorney nolle prossed. He sued under 1983. There was probable cause to arrest, and the exclusionary rule [even if the state court was right, which we don’t know] doesn’t apply in civil cases. His malicious prosecution claim fails because there was probable cause, and he indisputably was in possession when arrested. McWilliams v. City of Chicago, 2022 U.S. App. LEXIS 1152 (7th Cir. Jan. 14, 2022).
Plaintiff stated a claim for unlawful entry into a house to investigate a domestic violence complaint when they knew the assaulter wasn’t inside. Three officers Tased the plaintiff who wasn’t resisting. Oakry v. Tempe, 2022 U.S. Dist. LEXIS 7872 (D.Ariz. Jan. 14, 2022).*
No case law says that a warrantless arrest on the curtilage is unreasonable or not. Therefore, qualified immunity applies. Seidman v. Colby, 2022 U.S. Dist. LEXIS 8001 (N.D.N.Y. Jan. 14, 2022).*
The officer obtaining the search warrant here was found to have mistakenly testified in federal court that he did not personally present this warrant to the magistrate. Admission of that mistake was credited here that he did present the affidavit. The motion to suppress was properly denied. State v. Parrish, 2022 W. Va. LEXIS 75 (Jan. 12, 2022).*
Defendant’s argument that the officers weren’t credible for the reason for his stop is rejected. They had a description of a vehicle with an LPN they were directed to stop, and defendant was driving it. Once stopped, defendant’s furtive movements were reasonable suspicion. Then the officers found outstanding warrants, and that led to a search. United States v. Davis, 2021 U.S. Dist. LEXIS 250371 (E.D.Mo. Dec. 23, 2021).*
Review of an affidavit for a search warrant is “four corners” review. Defendant sought to offer a police report and the government objected. The court inquired into whether a Franks challenge was coming. He agreed, so he gets leave to file the police report to see where it goes. United States v. Malone, 2022 U.S. Dist. LEXIS 7875 (D.Minn. Jan. 14, 2022).*
Defendant’s Franks challenge essentially claimed an alibi that it wasn’t him involved in a delivery that’s recounted in the affidavit. His statement is conclusory and isn’t a “substantial preliminary showing” for Franks. United States v. Best, 2022 U.S. Dist. LEXIS 7889 (D.Conn. Jan. 14, 2022).*
Defendant makes a Franks challenge to a wiretap affidavit. Removing the challenged statement leaves probable cause anyway, so it doesn’t have to be decided. United States v. Thomas, 2022 U.S. Dist. LEXIS 7893 (D.Conn. Jan. 14, 2022).*
“Movant is not entitled to relief on Ground One because he fails to show that a motion to suppress on such grounds would have been meritorious because (1) his detention during the search was not unlawful and (2) he fails to show a causal connection between his allegedly unlawful detention and the discovery of the evidence he wanted to suppress.” Taylor v. United States, 2022 U.S. Dist. LEXIS 7610 (D.Ariz. Jan. 13, 2022).*
Defense counsel wasn’t ineffective for not raising a Fourth Amendment claim that would not have prevailed. [It’s more elaborate than that, but that’s the bottom line.] Howard v. United States, 2022 U.S. Dist. LEXIS 7673 (E.D.Tenn. Jan. 14, 2022).*
Posted inIneffective assistance|Comments Off on Never 4A IAC without a meritorious claim
The fact defendant paid for the car for his girlfriend but was a mere passenger at the time of the stop was not enough for standing under Byrd. He still had no reasonable expectation of privacy in it. State v. Scheuerman, 2022 Kan. LEXIS 8 (Jan. 14, 2022), rev’g in part, aff’g in part 60 Kan. App. 2d 48, 486 P.3d 676 (2021):
The warrantless entry into defendant’s apartment for a misdemeanor charge was unreasonable. She didn’t waive her reasonable expectation of privacy by partially opening the door to respond to the officers’ knock. Her obstruction charge thereafter, however, was independent of the illegal entry. State v. Wilson, 2022 Iowa Sup. LEXIS 1 (Jan. 14, 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.
