Even if defense counsel was ineffective for not moving to suppress files found on his computer that corroborated his child rape victim, he can’t show prejudice because of other exhibits in evidence which were incontestable. The post-conviction court erred in finding prejudice. Miller v. State, 2021 Mo. App. LEXIS 1049 (Dec. 1, 2021).
The 2016 authorization for obtaining defendant’s cell phone records was by court order and valid. (Carpenter was 2018.) United States v. Lopez, 2021 U.S. Dist. LEXIS 231188 (W.D.N.C. Dec. 2, 2021).*
There was reasonable suspicion for defendant’s stop for possession of a firearm. Defendant argues that the probable cause standard should apply, but it’s reasonable suspicion. United States v. Elliott, 2021 U.S. Dist. LEXIS 231290 (D.N.J. Dec. 2, 2021).*
It was not a Franks violation to refer to defendant’s social media posts as “open source” when defendant limited it to only “friends.” United States v. Smith, 2021 U.S. Dist. LEXIS 230826 (N.D.Iowa Dec. 2, 2021), adopting 2021 U.S. Dist. LEXIS 231442 (N.D.Iowa Nov. 3, 2021):
Reasonable suspicion here from, inter alia, conflicting travel plans, admitting heading to South Carolina for further instructions from an unknown person [dumb], and having on a t-shirt with Pablo Escobar on it. United States v. Lopez, 2021 U.S. Dist. LEXIS 230712 (N.D.Tex. Dec. 2, 2021)*:
Georgia has allowed video conferencing search warrant application for years. The statute requires a recording, but the federal courts have never held that a failure to record violates the Fourth Amendment when a state search warrant ends up in federal court. See, e.g., United States v. Gordon, 686 Fed. Appx. 702 (11th Cir. 2017). United States v. Hunt, 2021 U.S. Dist. LEXIS 230558 (N.D.Ga. Dec. 2, 2021). (So, even if the state courts would suppress, and there aren’t any state cases under the statute on Lexis, the federal courts won’t because the Fourth Amendment reasonableness requirement does not mandate a recording.)
Defendant’s claim that a sex offender compliance check was unreasonable is rejected. It was reasonable. The fact an officer was rude doesn’t state a claim. Simpson v. Mayer, 2021 U.S. Dist. LEXIS 229909 (E.D.Mo. Dec. 1, 2021).*
There was probable cause for the search warrant, and, even if not, the plain view exception led the seizure. Finally, the good faith exception applies. United States v. Morgan, 2021 U.S. Dist. LEXIS 228710 (E.D.N.C. Nov. 24, 2021).*
“Suppression of digital photographs, videos and bank records that fell outside the April 1, 2019 through October 25, 2019 timeframe seized from the Subject Device is not warranted, as the December 2020 Warrant was sufficiently particularized and not overbroad.” On the totality of the circumstances: “The information in the December 2020 Warrant’s affidavit provides a substantial basis for the magistrate judge to conclude that probable cause existed with respect to photographic, video, and financial-record evidence of the Subject Offenses, irrespective of timeframe. For example, the affiant states that based on his ‘training and experience’ he knows that ‘individuals who engage in narcotics trafficking store records relating to their illegal activity’ including ‘stored photographs and other data regarding narcotics and/or illegal firearm possession.’ (See Mot., Ex. G at 6.) Under a ‘practical, common-sense’ probable cause determination, this Court is persuaded that the Subject Device could contain photographic, video, or financial-record evidence relating to the Subject Offenses that fall outside of the timeframe imposed on other categories of information.” Finally, the actual probable cause question doesn’t even have to be decided because the good faith exception applies. United States v. Rosario, 2021 U.S. Dist. LEXIS 230459 (S.D.N.Y. Dec. 1, 2021).
This case started with a knock-and-talk about defendant visiting websites involving commercial sex acts with children. “While talking with William Meyer outside his home, federal agents grew worried that, if he went back inside, he would destroy evidence. Rather than take that risk, they entered his home without a warrant and took two computers, a cellphone, and a hard drive. The main question in this case is whether their actions violated the Fourth Amendment. We agree with the district court that they did not.” They got a search warrant, of course, before searching the devices. United States v. Meyer, 2021 U.S. App. LEXIS 35593 (8th Cir. Dec. 2, 2021). (This isn’t unusual. This isn’t the first case like this. We’ve seen this repeatedly in drug cases, too.)
Defendant argues on appeal that the two officers’ testimony at the suppression hearing was implausible and contradictory, but it’s not implausible at all. One officer’s not mentioning something doesn’t matter if he wasn’t even asked. Also, the automobile exception supports the search, and alternative arguments of plain view and search incident don’t need to be decided. United States v. Reed, 2021 U.S. App. LEXIS 35565 (11th Cir. Dec. 3, 2021).*
The affidavit for search warrant here failed to show probable cause at all. It relied on informant hearsay from an identified informant. The trial court erroneously concluded that an identified informant didn’t have to be corroborated. In addition, probable cause was so lacking that the good faith exception doesn’t apply either. State v. Siegel, 2021-Ohio-4208, 2021 Ohio App. LEXIS 4108 (4th Dist. Nov. 24, 2021) (excellent discussion of Ohio cases):
Defendant’s 2255 doesn’t show that the failure to move to suppress a silencer was unreasonable or would have even been successful. How did the failure to move to suppress affect the decision to plead? Seamster v. United States, 2021 U.S. Dist. LEXIS 230244 (D.Utah Nov. 29, 2021):
The officer violated no reasonable expectation of privacy of defendant by creating a fictitious Facebook account and then getting “friended” by defendant. Then on defendant’s Facebook account, the officer saw that defendant parolee had firearms. That led to a valid parole search. State v. Briscoe, 2021 Del. Super. LEXIS 677 (Nov. 30, 2021).
Whether the state court violated Texas’ art. 38.23 exclusionary rule is barred from federal review. There was litigation in state court, and that invokes Stone, successful or not. Patton v. Director, 2021 U.S. Dist. LEXIS 230919 (N.D.Tex. Oct. 29, 2021).
Posted inIssue preclusion, Social media warrants|Comments Off on DE: Officer’s use of fictitious “friend” account didn’t violate REP in Facebook account
“Cifuentes-Cuero also argues that the manner in which the United States government brought him into this country, by using ‘falsification [and] unconscionable action[s]’ violated his due process rights and divested the Court of jurisdiction. (Doc. # 1-1 at 14-19). Cifuentes-Cuero has produced not a scrap of evidence to support this theory, but even if he had, ‘[t]he manner in which [Cifuentes-Cuero] was brought to trial, however, does not affect the ability of the government to try him.’ United States v. Mitchell, 957 F.2d 465, 470 (7th Cir. 1992) (citing Ker-Frisbie doctrine).” In addition, the Fourth Amendment doesn’t apply to a foreign citizen arrested in his own country. Cifuentes-Cuero v. United States, 2021 U.S. Dist. LEXIS 229755 (M.D.Fla. Dec. 1, 2021).
“However, Fridell fails to explain how the police engaged in or threatened to engage in conduct that violated the Fourth Amendment. The superior court found, and Fridell does not dispute, that the police had probable cause to arrest Fridell outside of his hotel room and that Fridell was, in fact, outside of his hotel room when the police made initial contact. Under these circumstances, the exigency was not created by police engaging in or threatening to engage in conduct that violated the Fourth Amendment. Rather, the exigency was created by Fridell fleeing a lawful arrest. The superior court therefore did not err in denying Fridell’s motion to suppress the drugs and drug paraphernalia.” Fridell v. State, 2021 Alas. App. LEXIS 168 (Dec. 1, 2021).*
“[T]he totality of the circumstances described in the search warrant affidavit establishes the requisite nexus between Kyle Clark’s Facebook account and evidence of suspected drug-trafficking activities.” United States v. Clark, 2021 U.S. Dist. LEXIS 229926 (D.Minn. Dec. 1, 2021).*
The record supports that defendant’s first counsel got discovery of the search warrant materials. “There is no indication that the defendant’s new counsel made any effort to obtain such materials from the defendant’s prior counsel, and the defendant otherwise failed to demonstrate that the People were obligated to provide these materials to his new counsel ….” People v. McCray, 2021 NY Slip Op 06707, 2021 N.Y. App. Div. LEXIS 6713 (2d Dept. Dec. 1, 2021).*
Defendant is recently charged with a murder in aid of a drug transaction from 1989. The officers had reasonable suspicion for the encounter. United States v. Merced, 2021 U.S. Dist. LEXIS 229659 (S.D.N.Y. Nov. 30, 2021)*:
The DEA had reasonable suspicion based on collective knowledge to believe a traffic offense occurred to stop defendant’s car. United States v. Camacho, 2021 U.S. Dist. LEXIS 229674 (N.D.Tex. Nov. 30, 2021).
Defendant challenged the search warrant for his blood in a DUI case, and one was a Franks challenge which fails for lack of a sufficient offer of proof of falsity and materiality. Villa v. State, 2021 Tex. App. LEXIS 9538 (Tex. App. – Eastland Nov. 30, 2021).*
The dog sniff did not unreasonably extend this stop. “No testimony indicated that the dog sniff took an unreasonably extended period of time. There was no wait for the canine unit to arrive.” United States v. Campbell, 2021 U.S. Dist. LEXIS 228190 (E.D.Ky. Nov. 29, 2021).*
When a firearm was seen in defendant’s car, the officer did not have to even consider whether he was had a concealed carry license to seize it. Ferguson v. United States, 2021 U.S. Dist. LEXIS 229451 (N.D.Ohio Dec. 1, 2021); United States v. Stevenson, 2021 U.S. Dist. LEXIS 229536 (N.D.Ohio Nov. 30, 2021).
“Based upon the foregoing, the automobile exception applies in this case and a warrant was not required for Rannigan to search the contents of the BMW. He had probable cause to believe that the BMW contained evidence of contraband or criminal activity. As such, this Court need not consider whether the search falls within any other exceptions to warrant requirements, such as a lawful search incident to arrest.” United States v. Williams, 2021 U.S. Dist. LEXIS 227688 (W.D.Pa. Nov. 29, 2021).*
No reasonable jurist (for CoA standard) would conclude that defense counsel was ineffective for not challenging the execution of the search warrant. She investigated and concluded that defendant’s information from a friend that the warrant was executed at 3 pm when it was issued at 6 pm was just wrong. No evidence at all supported the argument that the warrant was prematurely executed. Therefore, no ineffective assistance of counsel. Plaster v. Parish, 2021 U.S. App. LEXIS 35222 (6th Cir. Nov. 29, 2021).*
Defendant sought a subpoena from Instagram to see who was involved in reporting CyberTips to NCMEC. The question of admissibility relates to a potential suppression motion, not trial. Subpoena granted. United States v. Weber, 2021 U.S. Dist. LEXIS 229264 (D.Mont. Nov. 30, 2021):
Officers got a geolocation warrant for two cell phones, one owned by this defendant. They tracked him from Sacramento to near Portland. Finally, he was at a motel. The officers didn’t apply for a search warrant for the hotel room but did a knock-and-talk and also believed that defendant used his cell phone in his drug crime. Whispering and other sounds from inside made exigent circumstances for the entry. United States v. Canchola, 2021 U.S. Dist. LEXIS 229047 (D.Ore. Nov. 29, 2021)*:
Using key obtained from a teenage daughter’s bra, in handcuffs a block away, the mom and two other daughters get to present their case to a jury that police used the key to unreasonably enter the house without announcement. E.R. v. Jasso, 2021 U.S. Dist. LEXIS 228578 (W.D.Tex. Nov. 30, 2021)*:
Posted inKnock and announce, Qualified immunity|Comments Off on W.D.Tex.: Case on taking key from a child for police to enter house will go to a jury; no exigency, no QI
There is no reasonable expectation of privacy in text messages exchanged with another, even under the state’s more protective constitution of “private affairs.” State v. Pouncy, 2021 Wash. App. LEXIS 2811 (Nov. 30, 2021) (unpublished).*
The reasonableness of a traffic stop doesn’t depend on whether a traffic violation actually occurred–it’s whether it was reasonable to believe one occurred. United States v. Cloudy, 2021 U.S. Dist. LEXIS 228405 (N.D.Ind. Nov. 12, 2021).*
“Because Trooper Sullivan had a reasonable basis to believe that Defendant was armed and potentially dangerous, pointing his service weapon for a matter of seconds before holstering it upon Defendant’ s cooperation with his orders, patting Defendant down for weapons, and then placing Defendant in handcuffs so that he could not access his backpack were reasonable measures to ensure officer safety consistent with the Fourth Amendment.” United States v. Lefebvre, 2021 U.S. Dist. LEXIS 228369 (D.Vt. Nov. 29, 2021).*
Officers had a search warrant for defendant’s car for firearms, but they also searched for gunshot residue which was not particularly described. Still, searching for GSR is reasonable on execution of the warrant. Brown v. State, 2021 Tex. App. LEXIS 9555 (Tex. App. – Dallas Nov. 30, 2021) (unpublished):
"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.
