Defendant’s house burned in a fire, and the fire investigator came in before the firemen left. Drugs were found in plain view and in a safe with an open door. The trial court suppressed, but the court of appeals reversed. A plain view of drugs has been held in many other cases to be reasonable, as is this. The police can be called to investigate during the immediate fire investigation. State v. Hommes, 2021-Ohio-4568, 2021 Ohio App. LEXIS 4474 (11th Dist. Dec. 27, 2021).
Plaintiff’s claim that he was convicted on false testimony is Heck barred. Moreover, witnesses are immune from civil liability. McGhee v. Acosta, 2021 U.S. Dist. LEXIS 245437 (C.D.Cal. Dec. 1, 2021).*
Defendant had a reasonable expectation of privacy in his telephone call from a precinct interrogation room from being recorded. While there is a diminished expectation of privacy in an interrogation room, there was no warning what happened in the room was recorded. The police essentially created a belief it was a private call. “Here, because there was neither notice to defendant nor evidence in the record that the recording equipment in the interrogation room was clearly visible and the monitoring of defendant apparent, this court concludes that it was reasonable for defendant to expect privacy in calls he made with the encouragement of the police and their ostensibly affording him privacy by leaving him alone in the interrogation room to make those calls.” People v Williams, 2021 NY Slip Op 21352, 2021 N.Y. Misc. LEXIS 6650 (Kings Co. Dec. 23, 2021). Seemingly recognizing United States v. Cook, 2021 U.S. Dist. LEXIS 245891 (W.D.N.Y. Dec. 27, 2021) (recognizing REP if defendant misled; posted above).
Officers had reasonable suspicion defendant was involved in a homicide when he was stopped. Witnesses described a tattooed man with the street name “Money” which was how defendant referred to himself on Facebook. He also had the tattoos. State v. Cyprian, 2021 La. App. LEXIS 2077 (La. App. 1 Cir. Dec. 22, 2021).*
The exception to the exclusionary rule that suppressed evidence can be used for impeachment purposes did not apply to outright perjury about the finding of a gun. Defendant pro se here stated in opening and in cross that the gun was never recovered. It was recovered. But, it was an abuse of discretion for the trial court to hold that opened the door to making the gun admissible after it was already suppressed. Nevertheless, the proof was otherwise overwhelming, so it was harmless. People v. Coppage, 2021 Ill. App. Unpub. LEXIS 2280 (Dec. 23, 2021) (unpublished).* (This could have gone the other way. That’s why it’s unpublished.)
Officers had reasonable suspicion to talk to defendant about being a shooter or witness to it. When they arrived to the shots fired call, he saw them and ran, and he was the only one around. The fact this was a high crime area isn’t even considered. He tossed a gun in flight. Suppression order reversed. Commonwealth v. Jackson, 2021 PA Super 253, 2021 Pa. Super. LEXIS 742 (Dec. 22, 2021).*
Plaintiff’s Fourth Amendment pretrial detention claim accrued when he was released from detention, so it was barred by the statute of limitations. His post trial detention claim based on malicious prosecution is a due process claim, and it was improperly dismissed. Brown v. City of Chicago, 2021 U.S. App. LEXIS 37984 (7th Cir. Dec. 22, 2021).*
Plaintiffs’ house was destroyed by fire, and State Farm paid off on the house but not the contents. About a year later, State Farm caused state officials to prosecute for insurance fraud, but it was dismissed for lack of evidence. Plaintiffs’ claim against the state officials for not further investigating is dismissed. There was probable cause as far as they knew. Davis v. State Farm Fire & Cas. Co., 2021 U.S. Dist. LEXIS 244720 (N.D.Ga. Dec. 23, 2021).*
Plaintiff was tried and acquitted for murder. He sued under § 1983 after two years in custody alleging evidence for his trial was fabricated and exculpatory evidence was withheld. The district court denied qualified immunity, and the defendants appealed. Defendants get qualified immunity on the Brady claim but not the manufactured evidence claim. “Only the legal theory, however, is out of the case. We do not understand Curt to be conceding any issue of fact that underlies his Fourteenth Amendment argument. If and when this case goes to trial on Count II and the other remaining claims, Curt may continue to allege that Gibson and Keller fabricated, manipulated, and withheld evidence, subject only to the ordinary relevance standards imposed by the Federal Rules of Evidence, as applied to his Fourth Amendment theory. And he may continue to argue that such conduct resulted in his detention without probable cause.” Lovelace v. Gibson, 2021 U.S. App. LEXIS 37993 (7th Cir. Dec. 22, 2021).* Update 1/5/22: techdirt: Appeals Court Denies Immunity To Bored Cop Who Decided To Turn A Natural Death Into A Murder by Tim Cushing
“The officers argue that Leng’s preexisting spinal condition exacerbated injuries from relatively low-level force. A trier of fact could accept that view of the evidence, but it would not be required to do so. Viewing the facts in the light most favorable to Leng’s estate, the application of a substantial level of violent force in these circumstances would have violated Leng’s clearly established Fourth Amendment rights.” Estate of Leng v. City of Issaquah, 2021 U.S. App. LEXIS 37786 (9th Cir. Dec. 21, 2021).*
“Officer Nisivaco’s questions about the offense for which Carson was on parole and the recency of his gun offense were permissible, ‘negligibly burdensome precautions’ taken to ensure officer safety. Rodriguez, 575 U.S. at 356.” Asking about whether he was up to date on his carry registration was also reasonable for officer safety. United States v. Carson, 2021 U.S. Dist. LEXIS 245221 (N.D.Ill. Dec. 22, 2021).
Defendant’s 2255 doesn’t show at all how defense counsel was ineffective for not filing a motion to suppress, let alone that it would be granted or would have been prejudicial to him. United States v. Ewell, 2021 U.S. Dist. LEXIS 244861 (N.D.Okla. Dec. 23, 2021).*
Defendant’s agitation during his justified traffic stop for missing a front license plate was reasonable suspicion. But the decision to tow the vehicle had already been made before the stop was allegedly unreasonably extended, so the extension doesn’t matter. United States v. Leeper, 2021 U.S. Dist. LEXIS 245057 (N.D.N.Y. Dec. 22, 2021).*
“The Court acknowledges that not all Fourth Amendment claims are barred by Heck. Indeed, a civil rights claim may go forward before a conviction is invalidated where the civil rights violation ‘does not inevitably undermine a conviction.’ Booker v. Ward, 94 F.3d 1052, 1056 (7th Cir. 1996). But Mr. Allen’s numerous filings have a consistent theme — that his convictions are invalid because Defendants’ actions that led to his arrest, detention, prosecution, and incarceration violated his rights under the Constitution. Through his own allegations, reiterated in his responses to the Order to Show Cause, Mr. Allen has pled himself into a Heck bar. As a result, unless and until Mr. Allen successfully demonstrates that his convictions or sentences have been ‘reversed on direct appeal, expunged by executive order, declared invalid by a state…or called into question by a federal … writ of habeas corpus,’ this Court has no authority to consider Mr. Allen’s civil rights claims. Heck, 512 U.S. at 486-87.” Allen v. Barber, 2021 U.S. Dist. LEXIS 245175 (S.D.Ind. Oct. 28, 2021)
The search warrant for child pornography on electronic devices in Mississippi was issued with probable cause. The acts depicted happened in Louisiana. State v. Lurding, 2021 La. App. LEXIS 2031 (La. App. 1 Cir. Dec. 22, 2021).*
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“Although we have said that ‘face-to-face contact between the agent and informant’ and an agent’s opportunity to personally question him generally provides indicia of that informant’s reliability, see, e.g., Dixon, 787 F.3d at 59; Greenburg, 410 F.3d at 67, the absence of such an opportunity does not necessarily render the tip unreliable. Particularly here, where the tip was relayed from another officer who had such face-to-face contact with the informant. Maglio’s other challenges to the court’s factual findings, are similarly unconvincing. The court’s reading of the affidavit was reasonable, consistent with the information provided therein, and not clearly erroneous.” United States v. Maglio, 2021 U.S. App. LEXIS 38056 (1st Cir. Dec. 23, 2021) http://media.ca1.uscourts.gov/pdf.opinions/20-1359P-01A.pdf
Defendant’s Franks challenge fails. Even if the omitted information had been included in the affidavit, the magistrate would have found probable cause. The 911 caller’s information was sufficiently corroborated to show probable cause. United States v. Smith, 2021 U.S. App. LEXIS 38038 (8th Cir. Dec. 23, 2021).*
Posted inFranks doctrine, Informant hearsay|Comments Off on CA1: “Face-to-face” contact with CI by another officer was sufficient
On the totality, defendant’s consent was not freely given. The situation was coercive and in his own home. United States v. Simpson, 2021 U.S. Dist. LEXIS 243401 (D.Mont. Dec. 21, 2021)*:
A state search warrant was issued for defendant’s electronics. They went to the State Police computer lab to analyze, but they were in a long queue. A few months into the delay, the federal government sought its own search warrant. On balance, the delay in the search was not unreasonable. United States v. Brady, 2021 U.S. Dist. LEXIS 245277 (E.D.Va. Dec. 23, 2021):
Defendant was suspected of attempted video voyeurism, and a search warrant was issued for his gray cell phone. Shortly thereafter, it was discovered that was the wrong phone because it was a white one. Under plain error review, the warrant for neither phone was so overbroad that it should be suppressed without the court being asked. The probable cause for the first phone had not dissipated by the time the warrant had been executed despite the new information. The better practice is to return to the magistrate with the new information and seek clarification. See, e.g., United States v. Marin-Buitrago, 734 F.2d 889 (2d Cir. 1984) (the change in information must be material). This wasn’t material. State v. Hoffman, 2021 UT App 143, 2021 Utah App. LEXIS 145 (Dec. 23, 2021).
“The record establishes that the officers’ entry into and protective sweep of Garza’s sister’s home was valid both because they had a reasonable suspicion to believe the arrest warrant could be executed there and because the owner gave consent for them to enter.” Their plain view resulted in a search warrant. United States v. Garza, 2021 U.S. App. LEXIS 38072 (5th Cir. Dec. 23, 2021).*
“Here, the facts known to Broussard at the time of the search—Dyson’s prior arrest for the illegal possession of a firearm and drugs, and the smell of marijuana emanating from the vehicle during the present stop—support a Terry pat-down search under Supreme Court and Fifth Circuit precedent. [Officer] Broussard’s testimony about his subjective assessment of the danger posed by Dyson does not eliminate the basis for a valid search.” United States v. Xzavier, 2021 U.S. Dist. LEXIS 243638 (W.D.La. Dec. 20, 2021).*
A detailed 911 call about a fresh crime can provide probable cause to search a vehicle, as this one did. United States v. Duplessis, 2021 U.S. Dist. LEXIS 244715 (E.D.Mich. Dec. 22, 2021).*
Defendant’s suppression motion was denied pretrial based on the good faith exception. He can’t relitigate it in a 2255. Lickers v. United States, 2021 U.S. Dist. LEXIS 244871 (C.D.Ill. Dec. 23, 2021).*
The maintaining one’s lane statute has long been construed to require that any movement be unsafe. The officer’s mistaken belief defendant violated the statute here without being unsafe was unreasonable under Heien and state cases. Daniel v. State, 2021 Tex. App. LEXIS 10125 (Tex. App. – Austin Dec. 23, 2021) (2-1, dissent here).
Defendant’s arguments on the technology behind NIT warrants don’t help him. Following precedent, this same warrant has been upheld in other cases, so the court affirms based on the good faith exception. United States v. Nobles, 2021 U.S. App. LEXIS 37989 (11th Cir. Dec. 22, 2021).*
2255 petitioner’s Fourth Amendment claim was procedurally defaulted. Even if it wasn’t, he’d lose on the merits for lack of standing. McGregor v. United States, 2021 U.S. Dist. LEXIS 244609 (S.D.Fla. Dec. 21, 2021).*
The warrantless pinging of a fleeing murder suspect’s cell phone was with exigent circumstances and was reasonable under the Fourth Amendment and the [even more protective] Oregon Constitution. The information the police had showed defendant was still a threat to others. State v. Hawthorne, 316 Ore. App. 487, 2021 Ore. App. LEXIS 1807 (Dec. 22, 2021):
The evidence technician’s testimony at the suppression hearing did not establish that a further search of the premises was necessary as part of an emergency. She knew dead person on the premises had already been pronounced when she got there. A room to room search wasn’t necessary at the time. People v. Hidalgo-Hernandez, 2021 NY Slip Op 07404, 2021 N.Y. App. Div. LEXIS 7251 (4th Dept. Dec. 23, 2021).*
Defendant’s Franks challenge fails for lack of a “substantial preliminary showing” of falsity or materiality. People v. Porter, 2021 NY Slip Op 07363, 2021 N.Y. App. Div. LEXIS 7284 (4th Dept. Dec. 23, 2021).*
Defense counsel was not ineffective for not raising a meritless search claim. The search was valid under the automobile exception. United States v. Derrick, 2021 U.S. Dist. LEXIS 244683 (W.D.La. Dec. 21, 2021).*
The officer’s holding defendant’s driver’s license and rental agreement is not itself a seizure. The question is how long they are held and the circumstances they were held. United States v. Ahmad, 2021 U.S. App. LEXIS 37991 (7th Cir. Dec. 22, 2021):
Because of the nature of the invasion into privacy, a cell phone search has to be as limited as the search of a home, and the probable cause defines the scope of the search. All they had for starters was an IP address and a home, and that got them inside. The self-limiting language of the warrant was clear enough. The search had to start to know what they had and were dealing with. “[J]ust as with a search of a home and other spaces where an individual maintains a privacy interest, if there is probable cause that evidence of a crime will be found within an electronic device, that evidence should not be shielded simply because a defendant commingles it with personal information in a digital space with vast storage capacity. This is particularly so when, like here, the nature of the crime is electronic or internet based.” Commonwealth v. Green, 2021 Pa. LEXIS 4283 (Dec. 22, 2021) (4–3) (dissents here and here):
Two year delay between seizure of gambling machines under a warrant and initiating forfeiture proceedings was unreasonable. “In conclusion, the failure of HPD and the Prosecutor to comply with the twenty day and forty-five day statutory deadlines contained in HRS §§ 712A-7 and 712A-9 applicable to seizure of Petitioner’s property require its return.” The 2017 appellate court order is reversed. Alm v. Eleven (11) Prods. Direct Sweepstakes Machs., 2021 Haw. LEXIS 280 (Dec. 22, 2021) (talk about lack of timeliness).
Officers had reasonable suspicion to talk to defendant about being a shooter or witness to it. When they arrived to the shots fired call, he saw them and ran, and he was the only one around. The fact this was a high crime area isn’t even considered. He tossed a gun in flight. Suppression order reversed. Commonwealth v. Jackson, 2021 PA Super 253, 2021 Pa. Super. LEXIS 742 (Dec. 22, 2021).*
Posted inForfeiture, Reasonable suspicion|Comments Off on HI: Two year delay between seizure and attempted forfeiture of gambling devices violated statute and was unreasonable
The absence of the judge’s signature on an arrest warrant was not fatal where the affidavit for probable cause sworn by the witness was attested to by the judge and attached. The good faith exception also applies. (Finally, the state’s alternative argument for a warrantless arrest was waived by failing to present it to the trial court.) State v. Harrison, 2021-Ohio-4465, 2021 Ohio LEXIS 2530 (Dec. 22, 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.
