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):
Defendant’s car was totaled in a wreck. He never came to get it or the stuff from it. His insurance company sent it to an auto auction for disposal. The police went there and retrieved the black box information without a warrant. Defendant had no standing in a car he abandoned. Vitela v. State, 2021 Tex. App. LEXIS 10090 (Tex. App. – San Antonio Dec. 22, 2021).
Defense counsel was not ineffective for not challenging his search. Based on the facts on the plea agreement alone, the automobile exception applies. Doran v. United States, 2021 U.S. Dist. LEXIS 243089 (E.D.Mo. Dec. 21, 2021).*
Defendant’s speeding stop revealed he couldn’t drive and the vehicle couldn’t be driven. That was reasonable suspicion for more. United States v. Vasquez, 2021 U.S. Dist. LEXIS 243150 (D.Me. Dec. 21, 2021).*
Defendant did not seek review of the R&R by the USDJ, so appellate review was waived. Also, plain error review not sought. United States v. Fisher, 2021 U.S. App. LEXIS 37847 (11th Cir. Dec. 21, 2021).
Citizen complaint from the owner of a business complaining that drug use was happening on his parking lot after hours wasn’t enough of a basis for a stop. The officers had to corroborate something. When they came to roust the cars, they saw drugs in plain view. Suppression order affirmed. [Elsewhere this probably would have gone differently.] Commonwealth v. Rohrbach, 2021 PA Super 254, 2021 Pa. Super. LEXIS 744 (Dec. 22, 2021).*
Defendant former Chicago PD officers’ conspiracy convictions affirmed. They were convicted of conspiring to present false search warrant affidavits, among other things, and stealing the product of searches, giving some to informants. The FBI finally ran a sting on them. United States v. Elizondo, 2021 U.S. App. LEXIS 37843 (7th Cir. Dec. 21, 2021).*
During a traffic stop, the driver and front seat passenger were argumentative and threatening for a fight. The officers surmised that this was a distraction from the vehicle because it could have a firearm in it. On the totality, there was reasonable suspicion. “Factors that the motion judge considered included Paris’s ‘uncharacteristic’ behavior during the traffic stop, which officers interpreted as an effort to draw their attention away from the vehicle and its contents, the prior involvement with firearms of the three male passengers in the car, their known gang affiliations, and the high crime area in which the traffic stop occurred. Although each of these factors standing alone would be insufficient to justify the patfrisk of the defendant, the totality of these factors justified not only the exit order, but also the patfrisk.” The frisk of the defendant who was in the backseat was reasonable. Commonwealth v. Sweeting-Bailey, 2021 Mass. LEXIS 690 (Dec. 22, 2021).*
Defense counsel wasn’t ineffective for not arguing waiver of a claim when the state supreme court wanted briefing on the merits. “For the petitioner to suggest that his search warrant would have been analyzed under the former Jacumin standard if only trial counsel had argued waiver strains credulity. The petitioner is not entitled to relief on this issue.” Tuttle v. State, 2021 Tenn. Crim. App. LEXIS 578 (Dec. 21, 2021).*
Posted inIneffective assistance, Stop and frisk|Comments Off on MA: Driver’s and passenger’s conduct during traffic stop helped create RS for frisk of passenger in backseat
The cell phone search warrant in this sex trafficking case allowed search of everything on the phone that could contain evidence of sex trafficking as defined under Oklahoma law. It was not overboard because the information sought could have taken many forms. United States v. Palms, 2021 U.S. App. LEXIS 37803 (10th Cir. Dec. 21, 2021):
The Baltimore Office of State’s Attorney cannot plead a personnel exemption to a public records request to keep private its “do not call list” [those with “integrity issues” or, in some locales, “the liar’s list”] of those who may have falsified reports, search warrant papers, or testified falsely. Baltimore Action Legal Team v. Office of the State’s Atty., 2021 Md. App. LEXIS 1093 (Dec. 17, 2021).
Defendant’s parole search was justified and reasonable. United States v. Turner, 2021 U.S. Dist. LEXIS 242565 (S.D.N.Y. Dec. 21, 2021).*
Plaintiffs have standing to complain that they and their children are on a terrorist watch list and subjected to unreasonable searches at the border. They were so informed and searched in 2018. They regularly travel to Jordan to see relatives, and the government won’t admit or deny they’re still on the list. Jibril v. Mayorkas, 2021 U.S. App. LEXIS 37675 (D.C.Cir. Dec. 21, 2021).*
Posted inStanding|Comments Off on MD: State’s Attorney’s “do not call list” of officers with credibility issues not FOIA exempt
The good faith exception applies to this warrantless detention which resulted from a regular state computer request which flagged to “verify insurance.” United States v. Warren, 2021 U.S. App. LEXIS 37674 (6th Cir. Dec. 20, 2021):
The gun under defendant’s pickup truck seat at knee high was not visible to the officer standing outside the truck looking down. The picture in the record belies it, so the officer isn’t credible. Suppressed. United States v. Bumgarner, 2021 U.S. Dist. LEXIS 242253 (S.D.W.Va. Dec. 20, 2021):*
Court rejects claim that search warrant could be pretextual to seize something else in plain view. That’s a foray into subjective intent the court won’t do. United States v. Contreras, 2021 U.S. Dist. LEXIS 242185 (N.D.Ill. Dec. 20, 2021):
“When a driver is unconscious, the general rule is a warrant is not needed. (Mitchell, supra, 139 S.Ct. at p. 2531.) The Fourth Amendment “almost always” permits a warrantless blood test when police officers do not have a reasonable opportunity for a breath test before hospitalization. (Id. at p. 2539.) [¶] The general rule governs here. Exigent circumstances justified this blood draw. [¶] Nault created the exigency by injuring himself badly. He was unconscious and had to be helicoptered to surgery. Whoever called for the helicopter judged the situation dire. Nault does not suggest this decision was a manipulation. Caring for Nault’s medical need left no time for a breath test.” People v. Nault, 2021 Cal. App. LEXIS 1068 (2d Dist. Dec. 20, 2021).
The officer here entered the curtilage to the front door. Contrary to defendant’s argument, the findings of fact do not support the conclusion the officer stuck his head over the threshold for a look inside. Ingram v. Commonwealth, 2021 Va. App. LEXIS 235 (Dec. 14, 2021).*
Defendant’s stop was valid, and the smell of burnt marijuana coming from the car was probable cause. United States v. Harden, 2021 U.S. Dist. LEXIS 242186 (D.Minn. Nov. 15, 2021).*
The tow and inventory of the car defendant was driving, his grandmother’s, without a valid license was an abuse of the officer’s discretion. Here, the vehicle was parked in the grandmother’s driveway when the stop occurred. The officer’s practice of towing every vehicle where the driver is arrested is unreasonable here. State v. Ontiveros, 2021 N.M. App. LEXIS 70 (Dec. 20, 2021).
There was a sufficient showing for probable cause based on inference that drugs would be found in the premises to support the search warrant. Moreover, the good faith exception would apply if not. United States v. Barnes, 2021 U.S. Dist. LEXIS 241876 (W.D.Pa. Dec. 20, 2021).*
Defendant was seen with another dumping trash from a truck on an empty lot at 1:15 am. The officer made a U-turn and found defendant alone maybe 100 yards away. He admitted to dumping the trash. Running his name produced a warrant, and a search of his person produced drugs. There was reasonable suspicion for the encounter. State v. Wing, 2021 N.M. App. LEXIS 69 (Dec. 20, 2021).*
Resolving an apparent conflict between Rodriguez and pre-Rodriguez case law, the officer’s normal inquiries here about defendant’s travel plans were legitimate and produced answers that he could legitimately doubt. Defendant volunteered seven states other than where the stop occurred, and he got more and more nervous in the minutes that followed. That led to reasonable suspicion for a dog sniff. United States v. Cole, 2021 U.S. App. LEXIS 37398 (7th Cir. Dec. 17, 2021) (en banc (7-3), dissent here).
Ordering occupants out of the car during a simple traffic stop requires some level of reasonable suspicion or need for officer safety in Pennsylvania. Here, nothing had been established by the time the occupants were out of the car and the stop escalated as more was learned. As to the passenger, the pill bottle ultimately in the driver’s lap couldn’t be connected to him. Commonwealth v. Singletary, 2021 PA Super 251, 2021 Pa. Super. LEXIS 730 (Dec. 17, 2021).
Posted inReasonable suspicion, Reasonableness|Comments Off on CA7 (en banc): Questions about travel plans during traffic stop not unreasonable
A DEA officer’s lifting but not manipulating defendant’s duffle bag on a Greyhound bus that stopped in Albuquerque for passengers and service was not timely raised by the defense. But it was not a search. “It is not unusual on a common carrier for other passengers to push, move, and even momentarily remove an item from a common luggage area, such as an overhead rack or compartment, in order to make room for their own carry-on bags. SA Perry’s actions did not depart from the type of handling a commercial bus passenger would reasonably expect his baggage to be subjected to, and therefore did not constitute a search within the meaning of the Fourth Amendment.” United States v. Fernandez, 2021 U.S. App. LEXIS 37370 (10th Cir. Dec. 17, 2021).
Defendant’s encounter with the police on an Amtrak train at the front of the car where he was seemingly alone because other passengers were way behind him didn’t show he was “isolated” and alone affecting the nature of the encounter. On the totality, defendant’s interaction with the officer was consensual. United States v. Rodriguez, 2021 U.S. App. LEXIS 37369 (10th Cir. Dec. 17, 2021).*
Posted inConsent, Search|Comments Off on CA10: Buses and trains in ABQ
The search warrant used the word “electronics” and “passwords” to access them, but it did not say “computers.” “Because the warrant specifically permitted seizure of “electronics,” a category into which computers and tablets would fall under the plain text, not to mention passwords that would allow access into those electronics, the warrant by its plain text allows the seizure of the computer and tablet.” By waiting six months to challenge the search, defendant waived it. Under Rule 41, the hard drive could be copied for later review. United States v. Folks, 2021 U.S. App. LEXIS 37361 (2d Cir. Dec. 17, 2021).
Defendant didn’t challenge the search of his iPhone before trial and objected at trial. Based on the trial record and on plain error review, the court finds that the search warrant for the phone might be unreasonable because of a lack of probable cause and nexus. However, there was also consent to search the phone, so denied on this point. People v. Lee, 2021 Mich. App. LEXIS 7078 (Dec. 16, 2021) (unpublished).*
The fact a female prison guard saw the male plaintiff inmate sitting on a toilet during count didn’t violate his Fourth Amendment rights. Sublett v. Hall, 2021 U.S. Dist. LEXIS 241273 (W.D.Ky. Dec. 17, 2021).*
No reasonable jury could conclude that plaintiff’s Fourth Amendment rights were violated by this probation search on reasonable suspicion. Summary judgment granted. Miller v. Gaylor, 2021 U.S. Dist. LEXIS 241367 (W.D.Ky. Dec. 17, 2021).*
There is no reasonable expectation of privacy in jail telephone calls. They were admitted in the penalty phase and there was no prejudice anyway. Keaton v. State, 2021 Ala. Crim. App. LEXIS 87 (Dec. 17, 2021).*
Posted inProbation / Parole search|Comments Off on W.D.Ky.: Female prison guard seeing ptf on toilet during count didn’t violate 4A
Defendant was stopped for a traffic offense, but the officer readily abandoned it by seeking consent and “repeatedly threatened the use of a dog sniff” if he didn’t. Commonwealth v. Conner, 2021 Ky. LEXIS 419 (Dec. 16, 2021):
A Fourth Amendment child seizure claim requires the child be a party, even if the parents assert the child’s rights. Spahr v. Collins, 2021 U.S. Dist. LEXIS 241127 (D.Del. Dec. 17, 2021).
Defendant in his 2255 cannot show defense counsel was ineffective for not moving to suppress where defendant had no standing anyway. Nettles v. United States, 2021 U.S. Dist. LEXIS 241260 (E.D.Mo. Dec. 17, 2021).*
Under plaintiff’s version of events, the law was clearly established that a false child abuse investigator’s report leading to an arrest would violate the Fourth Amendment and Franks. The parties dispute the falsity, and a jury will decide. Qualified immunity denied. O’Connell v. Tuggle, 2021 U.S. App. LEXIS 37190 (10th Cir. Dec. 16, 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.
