“Wimer contends that the probation officers who visited his home lacked reasonable suspicion to search his person. We find that, based on the totality of the circumstances, the officers had reasonable suspicion to search him. At the outset of the home visit, one of the occupants of the residence abruptly shut the door to the residence when the officers approached; the officers could then hear shuffling inside the residence before knocking, and once the officers were inside, the occupants of the residence exhibited nervousness. When Wimer voluntarily produced gloves and cash from his pockets, the officer was surprised and concerned about his safety and the situation. These facts, taken together, gave, the officers reasonable suspicion to search Wimer’s person.” United States v. Wimer, 2021 U.S. App. LEXIS 37218 (4th Cir. Dec. 16, 2021). (The analysis is quite the same as for reasonable suspicion for a no-knock entry.)
The operator of Kik Messenger flagged a child pornography photo and sent it to police. The police search, if it was one, was the same as Kik’s. “Even if, in this case, a Kik employee did not view the image prior to sending it to law enforcement, the good faith exception to the exclusionary rule would apply.” United States v. Gianatasio, 2021 U.S. Dist. LEXIS 241133 (D.Mass. Dec. 17, 2021).*
Appellant was a visitor with a backpack on the premises when a search warrant was executed, and the backpack was searched. The search was valid. “That Congo was not identified in the warrant as a co-conspirator is simply not relevant in this case to the question of whether his backpack, a container in the apartment subject to a valid search warrant, was properly subject to search.” (Also, there was no plain error in executing the warrant without knocking.) United States v. Congo, 2021 U.S. App. LEXIS 37303 (1st Cir. Dec. 17, 2021).
Defendant’s 2254 habeas claim that there was no meaningful review of his search and seizure claim is still barred by Stone. In fact, there was a contested motion to suppress he lost, and then an appeal to the court of appeals and review in the state supreme court. Baker v. Deville, 2021 U.S. Dist. LEXIS 241032 (E.D.La. Dec. 17, 2021).*
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The search warrant for defendant’s cell phone sought everything on it when a limited time period was at issue. The law is settled in New York. “Here, the search warrant issued allows for an essentially unrestrained search of defendant’s cell phone without any date restriction whatsoever and, thus, fails to satisfy the particularity requirement of both the state and federal constitutions. Accordingly, defendant’s motion to controvert the search warrant is granted.” People v. Clarke, 2021 NY Slip Op 51210(U), 2021 N.Y. Misc. LEXIS 6368 (Queens Co. Dec. 10, 2021).*
District Court’s failure to find a nexus between defendant’s use of electronics and the offense he was convicted of means suspicionless searches of electronics can’t be a condition of supervised release. Remanded. United States v. Yu Sung Park, 2021 U.S. App. LEXIS 37145 (9th Cir. Dec. 16, 2021).
There was probable cause for the document search warrant in this health care fraud case. United States v. Steiner, 2021 U.S. Dist. LEXIS 240461 (E.D.N.Y. Nov. 10, 2021).*
The smell of burnt marijuana coming from a car in California isn’t probable cause. Blakes v. Superior Court, 2021 Cal. App. LEXIS 1057 (3d Dist. Nov. 24, 2021) (published Dec. 16, 2021).
Officers had probable cause for the automobile exception here based on a controlled buy where the car was used and then the smell of marijuana coming from it. United States v. Hall, 2021 U.S. App. LEXIS 37136 (6th Cir. Dec. 16, 2021).*
If the defendant officer’s use of force was objectively unreasonable, it isn’t entitled to qualified immunity. And, Heck doesn’t usually bar excessive force claims. Jefferson v. Lias, 2021 U.S. App. LEXIS 37115 (3d Cir. Dec. 16, 2021).
The Eighth Circuit again holds that stopping innocent persons at gunpoint with almost any reason at all almost always results in qualified immunity for the officer. Irvin v. Richardson, 2021 U.S. App. LEXIS 37110 (8th Cir. Dec. 16, 2021):
In a § 1983 suit over a search warrant, the defendants plead informer privilege to prevent disclosure of the CI that led to the search. Denied. Informant privilege stronger in civil cases than criminal. There was also significant other information for issuance of the warrant. Senegal v. Beauregard Parish, 2021 U.S. Dist. LEXIS 239878 (W.D.La. Dec. 15, 2021).*
Defendant’s 2255 fails. On his Fourth Amendment claim, he’s incorrect that the search was without a warrant. It was with a warrant supported by probable cause. Therefore, no ineffective assistance. Shannon v. United States, 2021 U.S. Dist. LEXIS 239644 (D.N.J. Dec. 15, 2021).*
Defendant’s Franks challenge fails because the statements are not knowingly false, and they don’t matter to the final probable cause finding. United States v. Rangel-Rubio, 2021 U.S. Dist. LEXIS 239773 (S.D.Ga. Dec. 15, 2021).*
Petitioner filed a habeas over a state court conviction that happened days earlier claiming a Fourth Amendment violation. State remedies haven’t been exhausted. Dismissed. Dick v. Dist. Court for Lincoln County, 2021 U.S. Dist. LEXIS 239860 (E.D.Wash. Dec. 15, 2021).*
The government sought palmprints from this indicted defendant to compare to palmprints on boxes that were recovered in an investigation. The court concludes under Davis v. Mississippi (1969) and Hayes v. Florida (1985) that the standard is reasonable suspicion to compel production, and the government satisfies that burden. United States v. Crawford, 2021 U.S. Dist. LEXIS 239455 (E.D.Ky. Dec. 15, 2021).
There was a hearing over a warrant for the GPS device in defendant’s van, and the trial court ruled against him. In a bench trial, however, the state never admitted that evidence. It’s not mentioned in the findings of fact, so there is no showing it was relied in the findings. [Therefore, it’s moot.] State v. Taylor, 2021 Mo. App. LEXIS 1081 (Dec. 14, 2021).*
A hotel’s cleaning staff entered a room that appeared to have been vacated and never used. The manager showed up, too, and he noticed the bed was misaligned on the springs. He moved it back and found a plastic container that appeared to have meth in it. He re-keyed the room and locked out the defendant renter. He called the police, and they looked then obtained a search warrant for full search the room. Defendant was evicted from the room and lost his reasonable expectation of privacy in it, too. United States v. Winder, 2021 U.S. Dist. LEXIS 239297 (W.D.Mo. Dec. 15, 2021), adopting 2021 U.S. Dist. LEXIS 240761 (W.D.Mo. Nov. 10, 2021).*
After a motion to suppress was filed and briefed and the government responded, new issues in the reply brief are usually treated as waived. Here, however, the court will let him proceed on those issues and he can file a new brief. United States v. Johnson, 21-cr-332 (D.D.C. Dec. 15, 2021).
There was no showing that the police manipulated the automobile exception’s exigency requirement. State v. Hopkins, 316 Or. App. 466, 2021 Ore. App. LEXIS 1779 (Dec. 15, 2021) (under state constitution).*
Defendant was validly arrested with an immigration warrant, and then a search warrant was obtained for his cell phone seized during the arrest. United States v. Cisneros, 2021 U.S. Dist. LEXIS 239032 (N.D.Cal. Dec. 14, 2021).*
Plaintiff “Xie worked as a professor and researcher at MDA for several years.” MDA believed he computer manipulated a document submitted to the state for expense reimbursement and opened an investigation. That led to search warrants for his electronics. There was a typographic error on the warrant that showed it executed at 1:04 am rather than 1:04 pm which was accurate. The parties agree there was a mistake. That typo can’t form the basis of a § 1983 claim against the officer. His false arrest claim fails. There was probable cause for it even though the criminal case later was dismissed. Xie v. Univ. of Tex. M.D. Anderson Cancer Ctr., 2021 U.S. App. LEXIS 37005 (5th Cir. Dec. 15, 2021).
It’s not ineffective assistance for defense counsel to not raise a meritless Fourth Amendment claim. Clark v. United States, 2021 U.S. Dist. LEXIS 238976 (E.D.Mo. Dec. 15, 2021).*
A wildlife officer responding to a call to a poaching tip line encountered “Ted from Minnesota” about taking an antlered deer. The stop and encounter was with reasonable suspicion because the officer already knew defendant had an out-of-state hunting license for only unantlered deer. Then he saw in plain view marijuana and paraphernalia in defendant’s truck. State v. Buselmeier, 2021 Iowa App. LEXIS 1057 (Dec. 15, 2021).*
A single controlled buy from defendant’s home is probable cause without additional corroboration. Moreover, the CI had worked for MPD for a decade. United States v. Hill, 2021 U.S. Dist. LEXIS 238824 (D.D.C. Dec. 14, 2021).
The fire department responded to plaintiff’s house. In the course of their work to render the place safe, they called for a code inspector for the basement. The code inspector’s entry into the basement was reasonable under the fire scene exception. Cannarozzo v. Borough of W. Hazleton, 2021 U.S. Dist. LEXIS 238006 (M.D.Pa. Dec. 13, 2021).
Plaintiff’s decedent’s shooting isn’t sufficiently different from other cases to not get qualified immunity. Gordon v. Bierenga, 2021 U.S. App. LEXIS 36867 (6th Cir. Dec. 14, 2021).*
The court issued a search warrant for defendant’s cell phone for photographs of nude minors. The fact he had an account that allegedly deleted pictures when they were viewed doesn’t undermine the probable cause. United States v. Young, 2021 U.S. Dist. LEXIS 238747 (D.Idaho Dec. 13, 2021).
In his 2254 successor petition after the first was denied in 2009, petitioner raises Daubert (1993) challenge as new constitutional rule. It’s not new and it’s not a constitutional rule. In re Hall, 2021 U.S. App. LEXIS 36949 (6th Cir. Dec. 14, 2021).*
CoA denied: “Reasonable jurists would agree that Peake’s Fourth Amendment claim is not meritorious and that counsel therefore did not render ineffective assistance. Peake fails to cite any legal authority that the police acted improperly, even if they did in fact suggest to Brown that Peake had the gun and she nodded in response. He also fails to show that the statement he identifies in the affidavit as false meets the Franks standard.” Peake v. United States, 2021 U.S. App. LEXIS 36948 (6th Cir. Dec. 14, 2021).*
Officers can’t falsely claim they have a search warrant and then use the target’s response to claim exigency for a warrantless entry into a home. United States v. Lark, 2021 U.S. Dist. LEXIS 238720 (S.D.W.Va. Dec. 14, 2021):
Defendant lacked standing to contest the detention of a package in transit in the Post Office because he was neither shown as the addressee nor the recipient. Even so, there was reasonable suspicion to detain the package. The dog sniff of the package led to a search warrant on probable cause for defendant’s house. State v. Jordan, 2021-Ohio-4402, 2021 Ohio App. LEXIS 4296 (6th Dist. Nov. 19, 2021).
Officers had reasonable suspicion of various violations of probation conditions in a gun store and pawn shop involving a false identity. That gave reasonable suspicion to search his car under the probation search condition, too. United States v. Osse, 2021 U.S. Dist. LEXIS 237803 (D.Mont. Dec. 13, 2021).*
Defendant’s Franks challenge fails. The statement was not materially false, and probable cause exists without it. United States v. Franks, 2021 U.S. Dist. LEXIS 238629 (D.Minn. Dec. 14, 2021).*
Plaintiff sued under § 1983 claiming that his prosecution is proceeding in bad faith and that his cell phone was wrongfully seized and searched. This is all barred by Younger v. Harris. Kabutu v. Short, 2021 U.S. Dist. LEXIS 238360 (D.Kan. Dec. 14, 2021).
Defendant has no standing in a stolen car. United States v. Vittetoe, 2021 U.S. Dist. LEXIS 238439 (W.D.Mo. Dec. 14, 2021).*
The government showed that the protective sweep here was reasonable for officer safety. United States v. Johnson, 2021 U.S. Dist. LEXIS 238358 (W.D.Pa. Dec. 14, 2021).
Officer “Mathieson testified that it is his habit to ask about drugs, weapons, and dead bodies during traffic stops. In any event, police officers are permitted to stop a vehicle for a traffic violation and look for evidence of a crime, even if the traffic stop is a pretext and the officers have no independent suspicion of criminal activity.” Those questions did not extend the stop. United States v. Arrington, 2021 U.S. App. LEXIS 36780 (6th Cir. Dec. 13, 2021).
A Chicago police officer and two ATF agents stopped and frisked defendant for a gun. It lacked reasonable suspicion. Motion to suppress granted. United States v. Holloway, 2021 U.S. Dist. LEXIS 237671 (N.D.Ill. Dec. 13, 2021).*
The sealed portion of the CI’s testimony in support of the search warrant shows probable cause and there’s no reason for the defense to even see it. People v. Jenkins, 2021 NY Slip Op 06965, 2021 N.Y. App. Div. LEXIS 7003 (1st Dept. Dec. 14, 2021).*
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“Tippins does not dispute that the state courts provided him a mechanism by which to present his Fourth Amendment claim. He instead argues that because the state courts did not squarely address the cases he raised on direct appeal, Powell does not bar his claim from habeas review. But as this court has explained, an adverse suppression ruling does not equate to a ‘failure’ of the state court process: ….” Tippins v. Parish, 2021 U.S. App. LEXIS 36800 (6th Cir. Dec. 13, 2021).
The 2254 Stone bar applies to arrest allegedly without probable cause, too. Khamisi v. Neil, 2021 U.S. Dist. LEXIS 237834 (S.D.Ohio Dec. 13, 2021).
Posted inIssue preclusion|Comments Off on CA6: 2254 petitioner’s argument state court “did not squarely address” his 4A argument still barred by Stone
Plaintiff had no reasonable expectation of privacy in her workplace computer from a search by the employer during an audit of her time off related to a second job instigated after a discrimination complaint. The fact she backed her iPhone up to the workplace computer doesn’t change the calculus. Otherwise, the district court erred in finding that there was no retaliation because of the timing and circumstances of the complaint and then the search. Smith v. Pelham, 2021 U.S. App. LEXIS 36591 (11th Cir. Dec. 10, 2021).
There was no omission of material information in the affidavit for this search warrant about defendant’s alleged support of a terrorist organization. There was still probable cause, and defendant’s claim is more of a trial issue. United States v. Saab, 2021 U.S. Dist. LEXIS 237277 (S.D.N.Y. Dec. 10, 2021).*
The fact other persons residing in the house had their property searched under the search warrant for defendant’s property didn’t justify blanket suppression of evidence. Moreover, he doesn’t have standing to contest their individual searches. United States v. Sharp, 2021 U.S. Dist. LEXIS 237484 (E.D.N.C. Dec. 13, 2021).*
“Considering the totality of circumstances, the search warrant affidavit established probable cause that evidence or contraband would be found at Conard’s residence. The affidavit supplied sufficient indicia that the first confidential informant (‘CI 1′) was reliable. To begin, CI 1 was known to law enforcement, so CI 1 may be held accountable for providing false information in violation of the law. … Further, CI 1’s tip that on a certain date Conard would be in Kalispell purchasing methamphetamine from a dealer near a K-Mart store was partially corroborated by Conard’s traffic stop that took place that day.” And there was a controlled buy off defendant, too. United States v. Conard, 2021 U.S. App. LEXIS 36505 (9th Cir. Dec. 10, 2021).*
2255 petitioner’s Fourth Amendment claim is barred. It was fully litigated before. Even granting leave to amend is pointless. Gates v. United States, 2021 U.S. Dist. LEXIS 237054 (W.D.Wash. Dec. 10, 2021).*
Defendant’s stop was without reasonable suspicion. His alleged consent was not voluntary and his flight and abandonment were not attenuated but were caused by the illegal stop and frisk. Massey v. State, 2021 Tex. App. LEXIS 9820 (Tex. App. – Ft. Worth Dec. 9, 2021):
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"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.
