The Fourth Amendment does not require that a motorist who’s car is about to be towed and would be inventoried can make alternative arrangements to avoid the tow. State v. Patterson, 2021-Ohio-4617, 2021 Ohio App. LEXIS 4542 (11th Dist. Dec. 30, 2021).
Defendant court officers get qualified immunity for plaintiff’s arrest in court for using an electronic tablet in court after being told to stop. There was a sign prohibiting such use without citation of authority. It was up to the discretion of the judge. Johnson v. Lewis, 2021 U.S. App. LEXIS 38520 (11th Cir. Dec. 29, 2021).*
CoA denied. Defendant’s guilty plea waived his Fourth Amendment claim, and he received a substantial sentencing reduction for taking the plea. Lee v. United States, 2021 U.S. App. LEXIS 38539 (11th Cir. Dec. 29, 2021).*
Posted inInventory, Qualified immunity|Comments Off on OH11: 4A doesn’t require alternative arrangements to towing be offered
Defendant getting wide eyed on seeing police and then hiding from them understandably would get their attention, but it’s not reasonable suspicion. United States v. Winecoff, 2021 U.S. Dist. LEXIS 248279 (D.D.C. Dec. 30, 2021):
The officer had reasonable suspicion on the totality to detain defendant for car theft. Defendant had a general reputation for that in the community. United States v. Madrigal, 2021 U.S. Dist. LEXIS 247007 (D.N.M. Dec. 28, 2021)* [one of those cases where the defendant’s being in a different car is itself almost reasonable suspicion; I’ve had a few]:
NCMEC is not a government actor for Fourth Amendment purposes. Even if it was, its search did not exceed that of the private searcher that forwarded the information to it. “Because Meals has not carried his burden concerning NCMEC’s participation in the search, NCMEC’s review of Facebook’s cyber tip did not violate his Fourth Amendment rights.” United States v. Meals, 2021 U.S. App. LEXIS 38589 (5th Cir. Dec. 30, 2021).
Defendant objected to the breadth of his search condition on supervised release. The district court failed to adequately deal with it, so remanded. United States v. Johnson, 2021 U.S. App. LEXIS 38602 (4th Cir. Dec. 30, 2021).*
Defendant was ordered to provide an affidavit of standing. He didn’t. Motion to suppress denied for lack of standing. United States v. Medina, 2021 U.S. Dist. LEXIS 246873 (W.D.N.Y. Nov. 30, 2021).*
The psychotherapist-patient privilege does not bar use of a report from defendant’s psychotherapist to law enforcement that defendant admitted viewing child pornography. The psychotherapist discussed with others and concluded that a report was necessary. Whatever the privilege for trial, it does not bar use of the psychotherapist’s statement to obtain a search warrant. See also F.R.E. 1101 (privileges apply in hearings other than trials). Even so, the good faith exception applies. United States v. Richter, 2021 U.S. Dist. LEXIS 248223 (N.D.Ohio Dec. 30, 2021).
Officers decided to encounter defendant in a high crime area for staring at them as they drove by and then noticing a small plastic bag at his feet. As they approached, he fled. That was all reasonable suspicion. United States v. Ridley, 2021 U.S. Dist. LEXIS 247116 (M.D.Ga. Dec. 29, 2021).*
Officers stopping defendant already had probable cause for his arrest based on their prior investigation. If they didn’t, they had reasonable suspicion to stop and detain him and get him out of the car at gunpoint. United States v. Younglove, 2021 U.S. Dist. LEXIS 247869 (S.D.Fla. Dec. 14, 2021).*
A defendant can’t use a 2241 habeas as a way to appeal denial of a motion to suppress by another district judge. Butler v. Cook, 2021 U.S. Dist. LEXIS 247876 (N.D.Fla. Nov. 30, 2021).
Controlled buys from defendant a few weeks early is probable cause for a vehicle search. United States v. Younglove, 2021 U.S. Dist. LEXIS 247869 (S.D.Fla. Dec. 15, 2021),*
The officer here encountered defendants asleep in a car in the parking lot of a public housing project. They said they were looking for a place to stay, but there was no motel nearby. Neither had a DL, so how did the car get there? Routine questions led to the belief the car was stolen, and that justified a patdown. The gun found is not suppressed. United States v. Conley, 2021 U.S. Dist. LEXIS 247323 (E.D.Mo. Nov. 22, 2021),* adopted, 2021 U.S. Dist. LEXIS 246564 (E.D.Mo. Dec. 28, 2021).*
“Defendant’s own characteristics show his consent was voluntary. Defendant was an adult and conversed easily with officers prior to the search. He appeared to be at least of average intelligence. Defendant’s answers to the officer’s questions and his overall demeanor showed he understood what was happening and what was being asked. The record also shows Defendant was no stranger to law enforcement and would have been aware of his rights. … [¶] Defendant’s environment and his interaction with officers also suggest consent to search was voluntary. …” United States v. Mathijssen, 2021 U.S. Dist. LEXIS 247593 (D.Neb. Dec. 29, 2021).*
Defendant’s 2254 for an alleged IAC claim for his pleading guilty and waiving his suppression motion is denied. The motion filed and waived by the plea was not going to be successful. United States v. Mauldin, 2021 U.S. Dist. LEXIS 247431 (N.D.Fla. Nov. 16, 2021),* adopted, 2021 U.S. Dist. LEXIS 246379 (N.D.Fla. Dec. 28, 2021).*
Posted inVoluntariness|Comments Off on D.Neb.: “Defendant’s own characteristics show his consent was voluntary.”
Torres v. Madrid, 141 S. Ct. 989 (2021) on remand: Defendants get qualified immunity because it wasn’t clearly established in 2014 that a shooting was an arrest. Torres v. Madrid, 2021 U.S. Dist. LEXIS 248358 (D.N.M. Dec. 30, 2021). [Once again, the litigant who makes the law loses on remand for qualified immunity or the good faith exception. What’s the point of litigating in these areas, anyway? This will definitely be appealed. It should have gone the other way, given the SCOTUS opinion.]
The government decided not to use evidence from defendant’s search against him, so it’s moot. His Franks challenge [to the moot claim] fails for lack of a proper offer of proof. United States v. Zhongsan Liu, 2021 U.S. Dist. LEXIS 248286 (S.D.N.Y. Dec. 14, 2021).*
Posted in§ 1983 / Bivens, Qualified immunity|Comments Off on D.N.M.: In Torres v. Madrid on remand, defs get QI; right not clearly established in 2014
There was no probable cause for the search of defendant’s house for evidence of a nearly two-year-old murder. Even if what was sought was there, it was highly unlikely it would prove anything. Finally, the probable cause was so lacking the good faith exception does not apply. United States v. Lopes, 2021 U.S. Dist. LEXIS 247927 (D.Mass. Dec. 30, 2021):
Posted inGood faith exception, Staleness|Comments Off on D.Mass.: SW for def’s old car and iPhone on two-year-old information they were maybe connected to a murder was stale and probative of little; no GFE either
When a sheriff’s deputy came on the curtilage to talk to defendant, defendant asserted his right to a warrant and refused to talk to him. While there were no No Trespassing signs, defendant’s assertion was enough to manifest his reasonable expectation of privacy that society would recognize. There was no exigency excusing a warrant. State v. Smith, 2021 MT 324, 2021 Mont. LEXIS 1041 (Dec. 28, 2021) (decided under Fourth Amendment and state constitution).
Defendant’s interactions with a state trooper in Illinois can form reasonable suspicion for a violation of supervised release in Missouri and then a search. United States v. McNair, 2021 U.S. Dist. LEXIS 245647 (E.D. Mo. Dec. 27, 2021).*
Defendant wasn’t seized by being approached by an officer until he was directed to step out of the vehicle and he did. A plain view on the seat was inevitable discovery because the vehicle was subject to impoundment and inventory. The automobile exception also applies. United States v. Goerig, 2021 U.S. Dist. LEXIS 246286 (E.D.Pa. Dec. 28, 2021).*
The address on the search warrant was wrong, but the physical description for defendant’s place was different than place with the wrong address. Defendant’s place was the target and it was searched under the warrant. The search warrant was sufficiently particular, even with the wrong address. Lundquist v. State, 2021 Ind. App. LEXIS 407 (Dec. 30, 2021).
The court finds the third party consenter did so on the totality of circumstances. It seems she was a regular marijuana user, and there was a marijuana smell about her car, but there’s no evidence she was under the influence at the time of the consent. Miranda warnings are not required to validate consent. United States v. Mason, 2021 U.S. Dist. LEXIS 246378 (M.D.Ga. Dec. 28, 2021).*
Defendant’s jail cell was searched with a warrant and non-privileged documents were seized. The terms of the search warrant were not violated in the search. Bowie v. Lee, 2021 U.S. Dist. LEXIS 246647 (S.D.N.Y. Dec. 28, 2021).*
Posted inConsent, Particularity, Voluntariness, Warrant requirement|Comments Off on IN: Even with a typo in the address of the place to be searched in the warrant, the correct otherwise particularly described place was searched
Pennsylvania is a medical marijuana state. “Like the Superior Court, we hold that the smell of marijuana may be a factor, but not a stand-alone one, in determining whether the totality of the circumstances established probable cause to permit a police officer to conduct a warrantless search of a vehicle. However, we respectfully disagree with the Superior Court’s decision to remand the matter to the trial court for reconsideration of its order granting the motion to suppress filed by Timothy Barr, II (‘Appellant’). Instead, for the reasons that follow, we vacate the Superior Court’s judgment, reinstate the trial court’s order which granted Appellant’s motion to suppress, and remand for further proceedings that are consistent with this opinion.” Commonwealth v. Barr, 2021 Pa. LEXIS 4375 (Dec. 29, 2021), rev’g Commonwealth v. Barr, 2020 PA Super 236, 240 A.3d 1263 (2020). Update: techdirt: Pennsylvania Says Legal Medical Marijuana Means Cops Can’t Just Sniff Their Way Into Warrantless Searches by Tim Cushing
An alleged violation of conditions of pretrial release that is not criminal activity does not support extending a traffic stop without reasonable suspicion of an actual crime. State v. Sargent, 2021 Minn. LEXIS 672 (Dec. 29, 2021) (under state constitution):
Plaintiff’s action for recovery of electronic and physical evidence seized is denied because the government asserts it is still needed for investigation. Stillwell v. United States, 2021 U.S. Dist. LEXIS 246407 (M.D.N.C. Dec. 28, 2021).
Defendant was stopped for driving 94 in a 75. He was driving with an apparent expired Texas license, an arrestable offense in Kansas. In addition, reasonable suspicion developed during the stop. Motion to suppress his 100 pounds of meth is denied. United States v. Jones, 2021 U.S. Dist. LEXIS 245511 (D.Kan. Dec. 27, 2021).*
The government’s collection of taxes under the Sixteenth Amendment does not violate the Fourth Amendment, or any other. Conner v. United States, 2021 U.S. Dist. LEXIS 245613 (D.Nev. Dec. 27, 2021).*
The Covid vaccination mandate for the military does not exempt the National Guard. Oklahoma v. Biden, 2021 U.S. Dist. LEXIS 246534 (W.D.Okla. Dec. 28, 2021). As to the Fourth Amendment claim:
Crediting the police officers’ version, the district court found that the officers had substantial reason to believe the person granting consent was an occupant of the place searched. United States v. Vega, 2021 U.S. App. LEXIS 38169 (2d Cir. Dec. 27, 2021).*
Defense counsel wasn’t ineffective for not filing a Franks challenge over the search warrant for defendant’s house in a child pornography case. The IP address led back to defendant’s house, and a site visit produced no non-secure works around it. The officer in the affidavit did not have to plead that he could tell with absolute certainty that defendant’s house was the source. The question is probable cause. Walsh v. United States, 2021 U.S. Dist. LEXIS 246074 (S.D.Cal. Dec. 27, 2021).*
Even redacting all the challenged information (which might not even be required) probable cause remains on the totality for the warrant. There is no Franks violation. United States v. Kucko, 2021 U.S. Dist. LEXIS 246284 (N.D.Iowa Nov. 15, 2021).*
Posted inConsent, Franks doctrine, Voluntariness|Comments Off on CA2: Officers had reasonable belief the person granting consent was a co-occupant
Defendant was placed on electronic monitoring for his pretrial release in a gun case. The conditions he agreed to included home inspections necessary to determine his adherence to conditions. When the device signaled it had been tampered with, pretrial officers could enter to inspect. People v. Garcia, 2021 IL App (1st) 190026, 2021 Ill. App. LEXIS 705 (Dec. 28, 2021):
Defense counsel wasn’t ineffective for not filing a suppression motion and working a plea deal instead. First, with the mountain of evidence against defendant, it was wise to work out a deal and avoid sentencing after trial for sexual assault and manufacturing child porn. Second, the search was valid as a private search, so he’d lose a suppression motion. Harris v. State, 2021 Tenn. Crim. App. LEXIS 585 (Dec. 22, 2021).*
The citizen informant here called to say that defendant was smoking marijuana in her car, and he even testified at the suppression hearing. There was objective reason to credit him for reasonable suspicion for the encounter. State v. Rasheed, 2021-Ohio-4509, 2021 Ohio App. LEXIS 4418 (6th Dist. Dec. 22, 2021).*
Including the omitted information in the showing of probable cause that defendant complains about, there still was probable cause. United States v. Hampton, 2021 U.S. Dist. LEXIS 244825 (C.D.Ill. Nov. 18, 2021), adopted, 2021 U.S. Dist. LEXIS 244104 (C.D.Ill. Dec. 21, 2021).*
Posted inIneffective assistance, Informant hearsay, Probable cause|Comments Off on TN: Even if a viable motion to suppress existed, it was reasonable strategy to work a plea deal considering all the evidence of guilt
There was no reasonable expectation of privacy in a police interview room. The defendants were not misled, and their actions and hushed tones in the room showed they knew they could be overheard. United States v. Cook, 2021 U.S. Dist. LEXIS 245891 (W.D.N.Y. Dec. 27, 2021):
"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.
