The search warrant application didn’t mention that the premises was actually a multifamily dwelling. It appeared not to be, and the IP information for a child pornography search warrant came back to that address as a whole. “Regardless of whether the sunroom could be considered a separate ‘apartment,’ the search warrant satisfied the Fourth Amendment’s particularity requirement.” United States v. Gibeault, 2021 U.S. App. LEXIS 36162 (2d Cir. Dec. 8, 2021).
There was an objective basis for defendant’s traffic stop. Not only that, there was reasonable suspicion of drugs based on collective knowledge of the officer reporting to the stopping officer. United States v. Vazquez, 2021 U.S. Dist. LEXIS 235683 (S.D.Tex. Dec. 9, 2021).*
In this child pornography case, the defendant moves to suppress the search of defendant’s iCloud storage off a cell phone search warrant. The government says it will not be using anything from there, so it’s now moot. United States v. Glatz, 2021 U.S. Dist. LEXIS 235909 (E.D.Tenn. Dec. 9, 2021).*
“If a defendant makes a prima facie showing of an illegal search or seizure, the burden shifts to the government to show an exception applies.” Here there was no seizure until the officer took defendant’s keys and turned off his car. His breath provided reasonable suspicion for the detention. State v. Vannett, 2021 ND 225, 2021 N.D. LEXIS 220 (Dec. 9, 2021).
“It is quite clear from the governing law cited in the report that Defendant has no Fourth Amendment standing to object (1) to the search of the back porch stairs of a home where he was not an invited guest, resident, or owner; and (2) the seizure of the narcotics and gun found under those stairs to which he disclaims any ownership or possessory interest. It is equally clear that even assuming Defendant had standing to contest the search and seizure, he is not entitled to a Franks hearing. Once any allegedly false or misleading statements are removed from the affidavit used to obtain the warrant, there still existed more than sufficient probable cause.” United States v. Blair, 2021 U.S. Dist. LEXIS 236612 (W.D.Mo. Dec. 10, 2021).*
Posted inBurden of proof, Standing|Comments Off on ND: A prima facie showing of an illegal search or seizure shifts burden to state to justify
“While those facts do not necessarily compel the conclusion that the warrantless search of the garbage tote was justified by the emergency exception, that is not the question before me. As stated, it is not this Court’s function to second-guess the state courts, or to decide whether I would have reached the same conclusion. The question is whether the state court’s ruling was contrary to clearly established Supreme Court precedent, or was based on an unreasonable determination of the facts in light of the evidence. The answer to both questions is ‘no.’ Since the Appellate Division reasonably determined that a motion to suppress would not have been successful, its conclusion that trial counsel was not ineffective for failing to make such a motion was likewise neither unreasonable nor contrary to clearly established federal law.” Lively v. Royce, 2021 U.S. Dist. LEXIS 237025 (W.D.N.Y. Dec. 10, 2021).*
Plaintiff does not show a reasonable expectation of privacy in his cell from seizure of his legal materials. As to the First Amendment claim for access to the courts, he doesn’t show that actually happened to cause him any harm. Rickerson v. Rust, 2021 U.S. App. LEXIS 36489 (5th Cir. Dec. 10, 2021).*
There is no immigration exception to the Fourth Amendment. The City can conclude that immigration administrative detainers violate the Fourth Amendment. City of Gary v. Nicholson, 2021 Ind. App. LEXIS 381 (Dec. 10, 2021):
Officers received a disorderly conduct call at a fitness center. When officers arrived, defendant was pointed out, and the officers detained him. They hadn’t seen anything illegal at that point, but the employee’s call as a citizen informant was enough for reasonable suspicion. Suppression order reversed. State v. Taylor, 2021-Ohio-4338, 2021 Ohio App. LEXIS 4243 (2d Dist. Dec. 9, 2021).
“Officer Hendrix had several objective reasons to suspect Easterly of criminal activity. For one, the DEA had alerted Hendrix to its ongoing investigation into Easterly’s activities.” There was reasonable suspicion on the totality. United States v. Easterly, 2021 U.S. App. LEXIS 36415 (11th Cir. Dec. 9, 2021).*
2255 petitioner claims that the state search warrant returns were fabricated to show that state law was not violated in the search of his property. “Aside from conclusory allegations, Petitioner fails to produce any evidence, or otherwise demonstrate, that the search warrants were invalid or illegal. To the extent Petitioner argues that Rodriguez should have raised issues of state law violation, ‘federal law, not state law, governs the admissibility of evidence in federal court, and complaints that the evidence was obtained in violation of state law are of no effect.’ United States v. Noriega, 676 F.3d 1252, 1263 n.4 (11th Cir. 2012) …” Prive v. United States, 2021 U.S. Dist. LEXIS 236206 (M.D.Fla. Dec. 9, 2021).*
Officers had a search warrant for defendant’s house that included vehicles that were parked or came there. Defendant’s vehicle was parked two houses down from his house. The search of the vehicle was justified by the automobile exception. United States v. Pierce, 2021 U.S. Dist. LEXIS 236461 (E.D.Mich. Dec. 9, 2021).
On the merits, the district court credits that defendant went over the search warrant materials before the guilty plea. The guilty plea waived this issue anyway. Graham v. United States, 2021 U.S. Dist. LEXIS 236228 (S.D.Ga. Nov. 11, 2021), adopted, 2021 U.S. Dist. LEXIS 235142 (S.D.Ga. Dec. 8, 2021).*
At least 13 judges found probable cause to issue 15 search warrants for Title III wiretaps. They were all with probable cause. United States v. Garcia, 2021 U.S. Dist. LEXIS 236277 (S.D.N.Y. Dec. 8, 2021).*
Posted inAutomobile exception, Waiver, Warrant execution|Comments Off on E.D.Mich.: When SW arrived for house, def’s vehicle parked two doors down could be searched with PC under automobile exception
The officer had to kneel down to look under defendant’s bed in a protective sweep, and he saw a gun. The gun was still in plain view, and the officer was legitimately in place. United States v. Fields, 2021 U.S. App. LEXIS 36153 (6th Cir. Dec. 7, 2021).
The search warrant service requirement on the target in state Rule 41 is to provide notice of the search. Defendant had knowledge of the search because he was there, and he was confronted with the items seized. Defendant says he didn’t get a copy. The officer testified he couldn’t specifically remember because it was two years prior, but he always did serve the warrant. The trial court credited the officer that it was almost certainly served. The state supreme court had previously signaled that it would likely create a good faith exception for this type of failure where the defendant had notice. This case doesn’t have to go that far (but they would have but for the fact finding). State v. Turchin, 2021 Tenn. Crim. App. LEXIS 560 (Dec. 9, 2021).
Defendant’s alleged continual drug dealing from his apartment was probable cause for issuance of this search warrant. United States v. Cruz-Martinez, 2021 U.S. Dist. LEXIS 235578 (D.Minn. Nov. 1, 2021), adopted, 2021 U.S. Dist. LEXIS 235973 (D.Minn. Dec. 8, 2021).*
In this post-conviction case, trial defense counsel wasn’t asked and didn’t provide an affidavit why he said “no objection” to admission of allegedly illegally seized evidence at trial. Without knowing why, it can’t be ineffective (it was argued it was “outrageous”). The defense at trial was lack of knowledge, and the trial court found that a reasonable strategy on post-conviction. Ex parte Kershaw, 2021 Tex. App. LEXIS 9803 (Tex. App. – Waco Dec. 8, 2021).
The state supported the CI’s story at the hearing, and that provided probable cause. People v. High, 2021 NY Slip Op 06884, 2021 N.Y. App. Div. LEXIS 6955 (3d Dept. Dec. 9, 2021).*
Posted inIneffective assistance, Informant hearsay|Comments Off on TX10: Not challenging search when lack of knowledge was the issue for trial is reasonable strategy
In a 2255, the search was valid on the merits of consent, so the Strickland factors don’t have to be considered. Alonzo v. United States, 2021 U.S. Dist. LEXIS 235017 (E.D.Tenn. Dec. 8, 2021).
Rule 41 does not require that an application for search warrant include references to venue. Still, venue has to be shown at some point with the issuing magistrate because magistrates have some jurisdictional limits. Here, venue was shown. United States v. Jumaev, 2021 U.S. App. LEXIS 36168 (10th Cir. Dec. 8, 2021).
The Coast Guard had the authority under 14 U.S.C. § 522(a) to conduct a pollution inspection of defendant’s vessel and look at the Oil Record Book. “The Coast Guard’s preliminary examination of the Oil Record Book and Oily Water Separator was within its inspection authority under the Act to Prevent Pollution.” The book was properly admitted into evidence. United States v. Vastardis, 2021 U.S. App. LEXIS 36034 (3d Cir. Dec. 7, 2021).
There was reasonable suspicion on the totality for defendant’s parole/probation search. The search warrant for premises also was with probable cause. United States v. Devin, 2021 U.S. Dist. LEXIS 234702 (D.Minn. Oct. 22, 2021),* adopted, 2021 U.S. Dist. LEXIS 233901 (D.Minn. Dec. 7, 2021).*
Male plaintiff’s claim that a jail strip search was video recorded on a cell phone by a female guard stated a Fourth Amendment claim, even in prison. Langron v. Koniecko, 2021 U.S. Dist. LEXIS 234758 (D.Conn. Dec. 8, 2021).*
Officers had sufficient information for a Terry stop. They arrested defendant and got his DL and identifiers. Even if the arrest was illegal, the Terry stop would not have been and the same information would have been available. Therefore, there was no exploitation of a prior illegality. People v. Jenkins, 2021 IL App (1st) 200458, 2021 Ill. App. LEXIS 665 (Dec. 8, 2021).
“It is undisputed that the police seized the firearm at issue from a trashcan in the yard of a residence with no connection to Brown. It was neither seized from Brown’s person nor the Jeep Brown occupied during the police pursuit. On these facts, the government contends that Brown lacks standing to challenge the seizure of the firearm. The government is correct.” In addition, the police pursuit in this case was not unconstitutional thereby causing the abandonment. United States v. Brown, 2021 U.S. Dist. LEXIS 234705 (E.D.Mo. Nov. 15, 2021), adopted, 2021 U.S. Dist. LEXIS 233781 (E.D.Mo. Dec. 7, 2021)* (Abandonment is abandonment and a lack of “standing”; it’s too hard to realistically argue that the police caused it.)
Defendant’s stop was valid because the LPN was expired. While that proved to be untrue, the officer also learned early on the car was uninsured. With defendant arrested, the officer searched his person finding cocaine. That authorized a search of the car for more. United States v. Ballard, 2021 U.S. Dist. LEXIS 234256 (E.D.Mich. Dec. 7, 2021).
The officer did not have time to leave the hospital to acquire a search warrant because defendant was badly injured. The totality of the circumstances showed the lack of time to acquire a warrant in light of the compelling need to perform a blood test on defendant. State v. Bucklew, 2021-NCCOA-659, 2021 N.C. App. LEXIS 689 (Dec. 7, 2021).*
Probable cause existed for this search warrant. Officers did a trash pull and then surveilled the house, and traffic to the house strongly suggested drug sales inside. Defendant’s regular and continuing objections to the evidence from the search preserved the record. The pretrial ruling after the hearing was final, and that should have been enough. (The Court of Appeals held it was not preserved, and it was wrong.) State v. Jones, 2021 S.C. LEXIS 163 (Dec. 8, 2021).*
“The Reporters Committee for Freedom of the Press (‘RCFP’), claiming rights of access grounded in the common law, asks the Court to unseal documents relating to a search warrant dated November 5, 2021 (the ‘Search Warrant’), which was executed at the residence of James E. O’Keefe, III, the founder and Chief Executive Officer of Project Veritas, in connection with an ongoing federal grand jury investigation (the ‘Motion’).” The government’s claim that the investigation is ongoing and not yet submitted to a grand jury prevails. No disclosure yet. In re Search Warrant Dated November 5, 2021, 2021 U.S. Dist. LEXIS 234234 (S.D.N.Y. Dec. 7, 2021).
The CI provided information about defendant’s drug dealing, and the police surveilled his house. The surveillance essentially corroborated the informant, and the search warrant was issued five days after the tip. There was probable cause for the warrant. United States v. Mitchell, 2021 U.S. App. LEXIS 36064 (6th Cir. Dec. 7, 2021).*
Posted inInformant hearsay, Warrant papers|Comments Off on S.D.N.Y.: Press motion for disclosure of SW affidavit denied because investigation ongoing
This black defendant’s stop six minutes after a shooting call in a heavily black neighborhood (2,000 within a half mile radius) was completely lacking in reasonable suspicion. The court goes on for many pages about the government’s proffered reasonable suspicion factors and finds them all lacking. United States v. Smith, 2021 U.S. Dist. LEXIS 234149, 2021 WL 5771219 (E.D.Mich. Dec. 6, 2021) (For litigators, this is an important case to read if you can, and I provided the Westlaw cite, too, because it shows how the defense completely undermined the government’s claim of reasonable suspicion. (Good work deserves to be admired.)):
The officer’s mistaken view of the law allegedly justifying the stop was not objectively reasonable under Heien and thus completely without reasonable suspicion. State v. Jonas, 2021-NCCOA-660, 2021 N.C. App. LEXIS 678 (Dec. 7, 2021).
This probation search was valid: “The R&R also properly concluded that the search was supported by reasonable suspicion, because Agent Vierzba had been informed by a colleague that Devin and another probationer had recently exchanged text messages and a photo of methamphetamine. Under the totality of the circumstances, the search of Defendants’ apartment was reasonable under the Fourth Amendment.” United States v. Blom, 2021 U.S. Dist. LEXIS 233901 (D.Minn. Dec. 7, 2021).*
Posted inProbation / Parole search, Reasonableness|Comments Off on NC: This traffic stop was not based on an objectively reasonable view of statute; stop suppressed
There is no reasonable expectation of privacy in a contraband cell phone in prison. United States v. Jackson, 866 F.3d 982 (8th Cir. 2017). Walker v. State, 2021 Miss. App. LEXIS 502 (Dec. 7, 2021). Accord: United States v. Basaldua, 2021 U.S. Dist. LEXIS 236014 (M.D.La. Dec. 9, 2021) (citing many cases in n.36).
The AG’s civil investigative demand in this case was broad, yet still reasonable in scope and complied with the Fourth Amendment and state privacy limits. If there are further objections, state law requires a “meet and confer” with the parties to attempt to narrow, and that could still happen. In re Confidential Consumer Prot. Investigation, 2021 Wash. App. LEXIS 2894 (Dec. 7, 2021) (unpublished).*
The information for the warrant was not stale because it was apparent that the alleged crime was ongoing, here a drug crime with customers in two states. United States v. Desousa, 2021 U.S. Dist. LEXIS 233790 (D.Mass. Dec. 7, 2021).*
In this 2254, the argument was that the state court’s application of law violated 2254’s “unreasonable” application standard, but it didn’t. The question was whether Michigan v. Long or Arizona v. Gant applies. “In sum, the State courts’ reliance on Long rather than Gant was appropriate given the finding that Calligan was not under arrest at the time of search and given that the record contained sufficient evidence to support that finding. Calligan thus cannot demonstrate that the State courts’ reliance on Long deprived him of a full and fair opportunity to litigate his claims. Therefore, the claim that Calligan was subjected to an unlawful search and seizure is not a basis for habeas relief.” Calligan v. Warden, 2021 U.S. Dist. LEXIS 233849 (N.D.Ind. Dec. 7, 2021).
The officer’s claim that a shooting isn’t a seizure without an arrest, too, is “implausible” and completely contrary to precedent. His qualified immunity claim is based on his version of the facts, not the factual disputes. Yatsko v. Graziolli, 2021 U.S. App. LEXIS 36006 (6th Cir. Dec. 6, 2021).*
The trial court’s denial of suppress is affirmed. There were two CIs. One provided details about defendant’s drug operation and the places and vehicles involved. The other provided predictive information that panned out. By the time defendant’s vehicle was stopped, there was reasonable suspicion, and an actual traffic offense was not required. State v. Abrego, 2021 La. App. LEXIS 1852 (La. App. 5 Cir. Dec. 1, 2021).
2255 petitioner’s generalized claim of ineffective assistance of counsel for a search claim fails. Defense counsel litigated a motion to suppress which was denied. It can’t be re-raised in a 2255. United States v. Meadows, 2021 U.S. Dist. LEXIS 233549 (N.D.Ohio Dec. 7, 2021).*
Having smelling marijuana during a traffic stop, the officer asked the defendant to get out of the car. A bag of heroin was in plain view. State v. Brunk, 2021-Ohio-4270, 2021 Ohio App. LEXIS 4163 (5th Dist. Dec. 6, 2021).*
Defendant’s citation of a case in his motion to suppress that was on point to only one issue but not the others was insufficient to put the state and court on notice as to the others. State v. Hollar, 2021 Del. Super. LEXIS 694 (Dec. 7, 2021):
Posted inBurden of pleading, Motion to suppress|Comments Off on DE: Mere citation of a case in motion to suppress didn’t put state and court on notice as to other issues
The trial court is reversed. There was probable cause for defendant’s stop. “Under the law, ‘the subjective beliefs or expectations of the detaining officer’ are irrelevant.” State v. Lee, 2021 La. App. LEXIS 1840 (La. App. 1 Cir. Dec. 6, 2021).
There was probable cause for seizure and search of defendant’s vehicle, and then a search warrant was obtained because it was locked. “For Fourth Amendment purposes, once that probable cause exists there is ‘no difference’ between that warrantless vehicle search and what the officers did here—‘seizing and holding a car before presenting the probable cause issue to a magistrate.’ See Chambers v. Maroney, 399 U.S. 42, 51-52 (1970).” United States v. Penny, 2021 U.S. App. LEXIS 36003 (5th Cir. Dec. 7, 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.
