Defendant’s Fourth Amendment argument on appeal is moot. The evidence he complains was wrongly seized wasn’t used at trial. People v. Gordon, 2022 NY Slip Op 00055, 2022 N.Y. App. Div. LEXIS 63 (1st Dept. Jan. 6, 2022).
The omitted information in defendant’s affidavit for search warrant was material, but probable cause remains. United States v. Wright, 2022 U.S. App. LEXIS 373 (9th Cir. Jan. 6, 2022).*
Even if the prior searches of defendant’s property were illegal, the remainder of the affidavit for search warrant shows probable cause. United States v. Bullcoming, 2022 U.S. App. LEXIS 412 (10th Cir. Jan. 6, 2022).*
It was clearly established that using “intermediate force” against a nonresisting arrestee is unreasonable. “To be clear, we are generally loath to second-guess law enforcement officers’ actions in a dangerous situation by analyzing each act without looking at the entire event and considering the officers’ mindset amid the uncertainty and chaos. We should not scrutinize an officer’s every minor move in a frantic and chaotic situation as if we were examining the Zapruder film in slow-motion. But here, Pralgo and Callahan-English had two minutes to realize that Hyde—who was handcuffed, shackled, and exhausted—could no longer resist and did not pose a threat. It is clearly established that officers cannot use intermediate force when a suspect is restrained, has stopped resisting, and does not pose a threat. These two officers thus cannot shield themselves by invoking qualified immunity. We affirm this aspect of the district court’s ruling.” Hyde v. City of Wilcox, 2022 U.S. App. LEXIS 375 (9th Cir. Jan. 6, 2022).
Posted inExcessive force, Qualified immunity|Comments Off on CA9: It is clearly established that using “intermediate force” against a nonresisting arrestee is unreasonable
Defendant went through airport security in Long Beach with a gun in a bag. A further stop and search of him found seven cell phones. They were ultimately searched with a warrant finding text messages detailing drug deals. The delay in the search was reasonable. United States v. Burris, 2022 U.S. App. LEXIS 355 (8th Cir. Jan. 6, 2022):
Posted inCell phones, Warrant execution|Comments Off on CA8: “Delay in searching a phone is immaterial to the reasonableness of a seizure, however, when the device has independent evidentiary value.”
The purely private search of defendant’s cell phone finding child pornography that was reported to police was not subject to exclusion under Texas’s art. 38.23(a). If a laptop search is not subject to exclusion, neither is a cell phone. Horne v. State, 2022 Tex. App. LEXIS 72 (Tex. App. – Texarkana Jan. 6, 2022).
Chicago police heard loud music coming from a parked car at night. They pulled up behind the car and then smelled burning marijuana coming from it. As they approached, the driver made furtive movements with his hands and then fled. There was reasonable suspicion. United States v. Shaffers, 2022 U.S. App. LEXIS 292 (7th Cir. Jan. 5, 2022).*
Defendant was on state probation, and ATF passed on a tip that defendant was in possession of firearms and maybe dealing drugs. That was a proper basis for a probation search. United States v. Black, 2022 U.S. App. LEXIS 301 (11th Cir. Jan. 5, 2022).*
A lawyer telling his girlfriend-client to refuse to cooperate in DUI blood draw by search warrant is suspended for 30 days. Multiple officers were ultimately involved with a restraint chair brought in before she relented. The lawyer was also convicted of obstructing a peace officer and received a deferred sentence which had already been affirmed. In re Gardner, No. PR 21-0100, 2021 Mont. LEXIS 1051 (Dec. 21, 2021).
The failure of the search warrant affidavit to show the proximity of two locations isn’t a lack of probable cause. The magistrate lives in the community and may know. Moreover, the issuing magistrate may take judicial notice of proximity of two locations. Probable cause was shown in the four corners of the affidavit, and the good faith exception would apply. United States v. Davis, 2021 U.S. Dist. LEXIS 249096 (E.D.N.C. Dec. 7, 2021).
This 2255 petitioner claims defense counsel’s failure to fully investigate his Fourth Amendment and Rule 41 claims didn’t state a claim that he wouldn’t have pled guilty. There was no showing that any Fourth Amendment violation even occurred. Obadiah v. United States, 2022 U.S. Dist. LEXIS 2011 (S.D.Fla. Jan. 5, 2022).*
Defense counsel had the discretion not to make every argument defendant wanted on a suppression motion. “It is well within counsel’s constitutional discretion to make the decision to raise or not raise certain arguments at a suppression hearing. That counsel did not make the specific arguments suggested by Petitioner is not a constitutional error. Petitioner has made no colorable argument that raising any of these arguments would have changed the outcome of the suppression/in limine hearing.” And would those omitted arguments have prevailed? United States v. Sullivan, 2021 U.S. Dist. LEXIS 248956 (N.D.Ohio Dec. 27, 2021).*
There was reasonable suspicion for defendant’s detention, so the motion to dismiss his fleeing charge was properly denied. State v. Thompson, 2022-NCCOA-6, 2022 N.C. App. LEXIS 6 (Jan. 4, 2022).*
Defendant did not violate the law by flashing his headlights at oncoming officers with their highbeams on. His stop lacked reasonable suspicion, so his aggravated DUI conviction is reversed. State v. Gardner, 2022 MT 3, 2022 Mont. LEXIS 2 (Jan. 4, 2022).*
One officer stopped defendant at the request of another. Defendant challenges its basis. “The question here is not whether the stop was authorized by [state law]. The question is rather whether the car stop was reasonable under the Fourth Amendment.” It was. United States v. Perez Minaya, 2022 U.S. Dist. LEXIS 1084 (D.Del. Jan. 3, 2022):
Torres v. Madrid did not announce a new constitutional rule for an ineffective assistance of counsel claim in a successor habeas. In re Foster, 2022 U.S. App. LEXIS 141 (6th Cir. Jan. 3, 2022).
“Considering that reasonable suspicion ‘is not, and is not meant to be, an onerous standard,’ the Court concludes that the totality of the circumstances and Officer Harjo’s experience and discretion–particularly when viewed alongside the heightened officer-safety rationale–combined to give Officer Harjo reason to believe Portillo might be armed in violation of tribal law and might be a danger to the officers or to others. Accordingly, the Court finds that the initial conversation with Portillo and subsequent detention and patdown did not violate the Fourth Amendment.” United States v. Portillo, 2022 U.S. Dist. LEXIS 972 (W.D.Okla. Jan. 4, 2022).*
Defense counsel’s failure to cross-examine the officer over a search warrant here that came up in an isolated circumstance would have been extrinsic evidence and inadmissible. United States v. Thomas, 2022 U.S. Dist. LEXIS 962 (N.D.Ind. Jan. 3, 2022).*
“Officer Allen admits that he was not printing the police department’s copy of the first citation or processing the second citation during the drug sniff. Rather, he completely stopped his traffic-related mission as soon as Officer Wiebe arrived and worked to ensure the safety of Officer Wiebe and support the completion of the canine officer’s mission. And, indeed, Officer Allen did not resume processing the two citations until after he had returned to the police station upon Sykes’s arrest.” Motion to suppress granted. United States v. Sykes, 2022 U.S. Dist. LEXIS 978 (N.D.Ill. Jan. 4, 2022).
Petitioner’s 2241 habeas to attempt to dismiss state criminal charges fails on Younger abstention. Ingram v. Lombardo, 2022 U.S. Dist. LEXIS 915 (D.Nev. Jan. 3, 2022).
Information and metadata from pictures on one cell phone in a conspiracy led to probable cause for the phones of others for their cell pictures of their criminal exploits. United States v. Baines, 2022 U.S. Dist. LEXIS 831 (D.Conn. Jan. 4, 2022).*
Garnishment of wages is not a Fourth Amendment seizure. Williams v. Drakaina Logistics, 2021 U.S. Dist. LEXIS 248750 (E.D.Cal. Dec. 30, 2021).
Defendant’s property was seized on exigency after an apparent crime, and seizure was required to prevent destruction. United States v. Bowles, 2022 U.S. App. LEXIS 82 (4th Cir. Jan. 3, 2022).*
Defendant likely did not have standing in a car that wasn’t his that he was driving but where he couldn’t show enough connection under Byrd. But that doesn’t matter because the plain view after the traffic stop was reasonable. United States v. Brooks, 2022 U.S. Dist. LEXIS 765 (E.D.Mich. Jan. 3, 2022).*
The two officers involved in defendant’s stop and search of his person and car had somewhat different versions of what happened. Under either, the search of his person and car were both reasonable. Defendant had no DL which was an arrestable offense. As to one, the patdown incident to that led to drug paraphernalia, and that led to a search of his car. As to the other, the car was validly inventoried. Either was reasonable. United States v. Harris, 2022 U.S. Dist. LEXIS 767 (E.D.Mich. Jan. 3, 2022).
The affidavit for the warrant here was based on a CI’s information, but it was detailed enough and suspicious circumstances were corroborated by the police, including that he was a drug dealer, he’d received 25 bricks of heroin or fentanyl at his address, the address confirmed through the Parole Board, and then an apparent hand-to-hand sale right outside the house. United States v. Stevens, 2022 U.S. App. LEXIS 100 (3d Cir. Jan. 3, 2022).*
Defendant’s tracking warrant issue wasn’t raised until after trial, so it’s waived. United States v. Pickens, 2022 U.S. Dist. LEXIS 344 (D.Minn. Jan. 3, 2022).*
Applying Dunn to defendant’s apartment hallway curtilage, defendant had a reasonable expectation of privacy at his apartment door. There was a locked gate to enter the area that the police somehow bypassed to get in for a dog sniff. State v. Arroyo, 2022 Ga. App. LEXIS 1 (Jan. 4, 2022):
Tennessee recognizes that impoundment and inventory can be avoided if there are reasonable alternatives to it at the time. Here, defendant’s car was abandoned on the road and, when they arrived, it was in the process of being towed and searched. Thus, there were no reasonable alternatives at the time. State v. Holmes, 2022 Tenn. Crim. App. LEXIS 1 (Jan. 4, 2022).
“The Court concurs with the Magistrate Judge’s determination that the stop was not unreasonably prolonged. Contrary to Hardin’s assertion, this was not a simple matter. Officer Wiggins had reasonable suspicion that Hardin committed a serious crime that involved a minor victim. Thus, this investigation reasonably required time, attention, and care. In other contexts, courts have approved lengthy detentions when law enforcement officers acted with reasonable diligence under the circumstances to confirm or dispel their reasonable suspicion.” United States v. Hardin, 2022 U.S. Dist. LEXIS 513 (M.D.Fla. Jan. 3, 2022).*
Posted inInventory, Reasonable suspicion|Comments Off on TN: Where car was abandoned, there were no reasonable alternatives to impoundment available to the police
2254 petitioner chose to attempt to exclude cell phone evidence in his state trial based on the claim it was not timely turned over and not that it was illegally seized. That was his choice, and the state did not hamper his ability to make a Fourth Amendment claim. Thus, his claim is barred by Stone. Guyton v. Tampkins, 2021 U.S. Dist. LEXIS 248668 (C.D.Cal. Dec. 2, 2021)*:
Techdirt: Boston Police Department Used Forfeiture Funds To Hide Purchase Of Surveillance Tech From City Reps by Tim Cushing (“We’ve seen this happen (obviously months or years after the fact thanks to the secretive source of funds) in some of the largest police departments in the country. Both the Chicago and New York City police departments have used secret funds to buy surveillance tech. In Chicago’s case, the secret slush fund was powered by forfeitures. In New York, it was a fund the city gave explicit permission to the NYPD to spend as it wanted.”)
Posted inForfeiture|Comments Off on Techdirt: Boston Police Department Used Forfeiture Funds To Hide Purchase Of Surveillance Tech From City Reps
A prosecutor allegedly drafting a false affidavit without probable cause for arrest warrant has no absolute immunity. There is no absolute immunity for drafting questions for a witness interview by another that explicitly avoids exculpatory information. Macmaster v. Busacca, 2021 U.S. Dist. LEXIS 248536 (E.D.Mich. Dec. 31, 2021).
Plaintiff was stopped and detained, often at gunpoint, mistaken for another man with the same first and last name, about 60 times since 2006. Each event is discrete. The statute of limitations is two years from the end of detention, and everything time barred doesn’t state a claim [would be 404(b) evidence, though]. Plaintiff states enough to go forward on the recent detentions. He seeks leave to amend to overcome a Monell bar against the City for never remedying all this, and leave is granted. Cole v. City of Chicago, 2022 U.S. Dist. LEXIS 215 (N.D.Ill. Jan. 3, 2022).*
Oregon Supreme Court holds that the exigency for an automobile exception search under the state constitution must actually exist at the time of the search. The per se rule from 1986’s Brown case is overruled. Technological changes and statute since then enable oral warrants by telephone or written by fax machine or email. State v. McCarthy, 369 Or. 129, 2021 Ore. LEXIS 1025 (Dec. 30, 2021):
Posted inAutomobile exception, State constitution|Comments Off on OR: Exigency for automobile exception has to exist at the time of search; telephonic warrant preferred
The officers had information that defendant routinely deleted information from his call logs and text messages. That was exigency for a warrantless seizure of the phone. A later warrant was obtained for the phone. Veal v. State, 2021 Tex. App. LEXIS 10257 (Tex. App. – Dallas Dec. 31, 2021).
The 171 page affidavit for search warrant shows probable cause on the totality. “Officers executing the search were more than sufficiently guided with respect to what evidence they were seeking and could collect.” The good faith exception would apply, too. United States v. Morales, 2021 U.S. Dist. LEXIS 246872 (W.D.N.Y. Dec. 28, 2021).*
The district court’s finding the officers could smell marijuana is supported by the record and is not clearly erroneous. They were consistent and credible. The video supports it, too. United States v. Shumaker, 2021 U.S. App. LEXIS 38467 (8th Cir. Dec. 29, 2021).*
The smell of marijuana coming from defendant’s vehicle was probable cause for an automobile exception search. State v. Johnson, 2021 La. App. LEXIS 2101 (La. App. 4 Cir. Dec. 29, 2021).*
Just saying something is clearly established doesn’t make it so for qualified immunity. “Stallworth has not met her burden. Although Stallworth argues that Hurst violated her ‘clearly established rights,’ she has not presented a case with materially similar facts, demonstrated that a broad statement of constitutional law clearly established a constitutional right, or shown conduct so egregious that her rights were clearly violated. Instead, her discussion of malicious prosecution focuses exclusively on the district court’s alleged error in deciding the case on a ground not argued by Hurst. But because Hurst has argued qualified immunity as an alternative basis for affirmance, Stallworth was required to meet her burden regardless of whether the district court might have erred on some other ground. Stallworth failed to demonstrate a violation of clearly established law, so Hurst is entitled to qualified immunity.” Stallworth v. Hurst, 2021 U.S. App. LEXIS 38601 (11th Cir. Dec. 30, 2021).
Posted inQualified immunity|Comments Off on CA11: Just saying something is clearly established doesn’t make it so for QI
"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.
