As to probable cause: “The Fourth Amendment does not require an officer to be right, only to be reasonable.” Allen v. City of Ecorse, 2021 U.S. App. LEXIS 34348 (6th Cir. Nov. 18, 2021).
Defendant’s guilty plea included a comprehensive waiver of his right to appeal the denial of suppression. People v. Perez, 2021 NY Slip Op 06396, 2021 N.Y. App. Div. LEXIS 6395 (3d Dept. Nov. 18, 2021).*
“Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the arrest of the plaintiff was lawful and that the use of handcuffs during her arrest was not objectively unreasonable …. In opposition, the plaintiff failed to raise a triable issue of fact ….” Fischetti v. City of New York, 2021 NY Slip Op 06343, 2021 N.Y. App. Div. LEXIS 6425 (2d Dept. Nov. 17, 2021).*
Sexual intercourse with a court transport officer stated an excessive force claim. Plaintiff raised a factual dispute that the sex wasn’t consensual because of his control over her and a threat he made after he found out she talked about it to another inmate. Hale v. Boyle County, 2021 U.S. App. LEXIS 34249 (6th Cir. Nov. 18, 2021):
Possession of small quantities of marijuana is legal in Colorado. Where the drug dog doesn’t discriminate between marijuana and other drugs, a dog alert can be an unreasonable search for a legal substance. Therefore, the district court did not err in granting the motion to suppress. The good faith exception does not apply in this situation. People v. Restrepo, 2021COA139, 2021 Colo. App. LEXIS 1576 (Nov. 18, 2021).
Seizure of defendant’s underwear and socks during his hospital stay was unreasonable. The state argued plain view below, but it didn’t apply. But, the Fourth Amendment error was harmless on the totality. State v. Larosa, 2021-Ohio-4060, 2021 Ohio LEXIS 2313 (Nov. 18, 2021)
The time for a malicious prosecution Fourth Amendment claim in the Eighth Circuit runs from the initiation of proceedings (here, 2011), not when the charges were nolle prossed (2016). The case was filed two years after the nolle pros and was time barred. Martin v. Julian, 2021 U.S. App. LEXIS 34232 (8th Cir. Nov. 18, 2021).*
It is not unreasonable under the Fourth Amendment for a DEA agent to stop a car on state highways for an alleged traffic violation. There was probable cause for an automobile exception search. United States v. Vallejos, 2021 U.S. Dist. LEXIS 221815 (D.N.M. Nov. 17, 2021).
“Defendant-appellant Arthur Miles argues that the stop flouted the Fourth Amendment because the officer’s stated reason for making the stop was pretextual and his real reason was based on nothing more than a hunch. The appellant’s argument runs headlong into Supreme Court precedent holding that the Fourth Amendment calculus depends on objective reasonableness, not subjective intent. See Whren v. United States, 517 U.S. 806, 812-13 (1996).” It was objectively reasonable. United States v. Miles, 2021 U.S. App. LEXIS 34122 (1st Cir. Nov. 17, 2021).*
Defendant’s claim defense counsel was ineffective for not challenging the search that revealed drugs on a codefendant is denied for lack of standing. Williams v. United States, 2021 U.S. Dist. LEXIS 222165 (S.D.N.Y. Nov. 16, 2021).*
The reference to another unknown person in the search warrant affidavit appears to be a word processing mistake and not a material false statement for Franks purposes. Denied. United States v. Moss, 2021 U.S. Dist. LEXIS 221619 (D.Kan. Nov. 17, 2021).*
“Defendant contends that the search warrant was a general warrant. This is not the case. The search warrant for 37 Avenue D identified a specific location to be searched (37 Avenue D, Downstairs Apartment) and it included a specific schedule of seven categories of items to be seized. The officers executing the warrant were directed and guided by the warrant with respect to what type of evidence could be seized. The warrant also guided the officers as to how to search for digital media that could be found on cell phones, computers and other digital media seized.” United States v. Morales, 2021 U.S. Dist. LEXIS 221404 (W.D.N.Y. Nov. 16, 2021).*
Posted inFranks doctrine, Particularity|Comments Off on D.Kan.: Word processing error in affidavit didn’t make a Franks issue
Defendant lacked standing to challenge the search of a parcel of drugs. “Even if Defendant could challenge the delay of delivering the Target Parcel, his argument fails. While ‘theoretically’ the ‘detention of mail could at some point become an unreasonable seizure of “papers” or “effects” within the meaning of the Fourth Amendment,’ United States v. Van Leeuwen, 397 U.S. 249, 252 (1970), the Target Parcel’s detention here did not rise to that level. Defendant measures the interference from the time the package was placed in the mail, not when the government agents intercepted it. Starting from that period, the agents’ behavior was more than reasonable. In the span of one day, they retrieved the parcel, conducted further investigation, sought a search warrant, obtained a search warrant and searched the Target Parcel. Investigators then confirmed the substance of the blue pills and still delivered the Target Parcel before 1:00PM the next business day. Thus, any delay in the delivery of the Target Parcel was reasonable and Defendant’s challenge fails on its merits.” United States v. Lanier, 2021 U.S. Dist. LEXIS 221277 (N.D.Ohio Nov. 17, 2021).
“Accordingly, C.S. had a clearly established constitutional right not be tased where he showed no resistance other than a passive failure to respond to an order to show his hands, and where an obvious reason not to respond was the shock of the collision.” Browning v. Edmonson County, 2021 U.S. App. LEXIS 34090 (6th Cir. Nov. 17, 2021).
The trial court’s suppression order is affirmed. Defendant had a reasonable expectation of privacy in his curtilage and his car parked there. The plain view inside his car and then the search was unreasonable. State v. Serna, 2021 Tex. App. LEXIS 9302 (Tex. App. – Austin Nov. 17, 2021).
In an FLSA overtime case, the employer “‘did not have any reasonable expectation of privacy in areas of [his office] where the public was invited to enter and to transact business.’ Maryland v. Macon, 472 U.S. 463, 469 (1985). Therefore, the officers did not violate the Fourth Amendment when they walked into the public entrance of Lovett’s clinic.” United States Dep’t of Labor v. Lovett, 2021 U.S. App. LEXIS 33883 (11th Cir. Nov. 16, 2021).
Disclosure of national security letters denied. The court assumes that the government has otherwise complied with Brady and other constitutional limitations unless the contrary has been shown. United States v. Chaoqun, 2021 U.S. Dist. LEXIS 220982 (N.D.Ill. Nov. 16, 2021).
The warrant papers remain sealed for one year. A person with interest can apply for unsealing. In re Seized United States Currency, 2021 U.S. Dist. LEXIS 221120 (D.S.C. Nov. 15, 2021).
Defendant’s argument is that Facebook screenshots showing probable cause in the affidavit for the search warrant don’t specify dates of the electronic data that’s being sought from his place. What was being sought is of enduring utility by its nature, so time is less important. Moreover, it shows a course of conduct. State v. Kochetkov, 2021-NCCOA-617, 2021 N.C. App. LEXIS 626 (Nov. 16, 2021).
Defendant pro se claims that the search warrant for his place lacked probable cause. It doesn’t. He also claims wiring the CI who came in for the buy wasn’t “legal authorized” (whatever that’s supposed to be). One selling drugs in his own house runs the risk the buyer is a CI or will become one. United States v. Snowden, 2021 U.S. Dist. LEXIS 220725 (S.D.Ill. Nov. 16, 2021).*
The officer had reasonable suspicion based on defendant’s multiple trips in his vehicle to distribute drugs and proceeds and his admission to the CI that the vehicle had a hidden compartment to hide drugs and money. United States v. Perdomo-Gomez, 2021 U.S. Dist. LEXIS 220991 (N.D.Ill. Nov. 16, 2021).*
The district court erred by granting the police officer summary judgment as to plaintiff’s excessive force claim under the Fourth Amendment. Accepting plaintiff’s account of the incident, the officer violated plaintiff’s clearly established rights when he shot him six times from behind without warning and without any indication that plaintiff would use his lawfully carried gun to harm officers or others. Redrick v. City of Akron, 2021 U.S. App. LEXIS 33892 (6th Cir. Nov. 15, 2021)* (This is an example of how brazen a qualified immunity argument can become. “I shot him in the back just because he was lawfully carrying a gun.”)
Officers acted reasonably in tackling plaintiff who was resisting arrest and ignored 13 commands. Finally, he was also Tased when resisting, and that was reasonable, too. Charles v. Johnson, 2021 U.S. App. LEXIS 33957 (11th Cir. Nov. 16, 2021).*
Posted inExcessive force, Qualified immunity|Comments Off on CA6: Shooting a man in the back for lawfully carrying a gun doesn’t get QI [yet D.Ct. bought it]
New York Daily News: Is our government buying our data? We need a federal investigation. by Elizabeth Holtzman and Mark Udall (Nov. 18, 2021) (“Tech companies, eager to sell us ads, promise to anonymize any of our shared data, a promise sometimes observed in the breach by the data brokers who buy that bulk data by the terabyte. But ironically, the gravest threat to our privacy comes not from unscrupulous businesses, but from a customer with the biggest wallet in the world, the U.S. government.”) Maybe with this, Congress can find a way to start limiting the third party doctrine. Carpenter might give us a way into the third party doctrine here, but none of us should have any confidence that SCOTUS will go along unless a Carpenter-like record could be presented.
Posted inThird Party Doctrine|Comments Off on New York Daily News: Is our government buying our data? We need a federal investigation.
ACLU No. Cal.: Spies in the California Skies: New Records Expose State Police Aerial Surveillance of Racial Justice Protesters (Nov 16, 2021) (“If you were one of the thousands of people in California protesting the murder of George Floyd, Breonna Taylor, and the countless other Black lives taken by police violence, there’s a good chance you heard California Highway Patrol helicopters circling over your head. And CHP may have recorded you too.”)
Posted inReasonable expectation of privacy|Comments Off on ACLU No. Cal.: Spies in the California Skies: New Records Expose State Police Aerial Surveillance of Racial Justice Protesters
Defendant connected to the wifi at his college, and he was aware of the computing access policy that said that he had no Fourth Amendment reasonable expectation of privacy in the information that moved back and forth over his connection. “These acts by appellant provide clear intent to relinquish any purported expectation of privacy in the WiFi connection records. Furthermore, this abandonment by appellant was voluntary.” Commonwealth v. Dunkins, 2021 Pa. LEXIS 3994 (Nov. 17, 2021).
The state’s acquisition by a court order (“the functional equivalent of a warrant”) based on probable cause for 108 days of defendant’s CSLI was reasonable and complied with Carpenter, albeit nearly three years before Carpenter. There was an individualized showing of probable cause and nexus for this CSLI. The lack of any geographical limitation did not violate the particularity requirement. Commonwealth v. Pacheco, 2021 Pa. LEXIS 3999 (Nov. 17, 2021)
Plaintiff showed sufficient evidence to have a jury decide that her jaywalking arrest was bogus and that led to finding alleged cocaine. Instead, the supposed cocaine was sand leaking from a stress ball that allegedly tested positive for cocaine in a field test. The state crime lab determined two months later that it was sand and not cocaine, but plaintiff remained in jail another four months, unable to afford bond. Qualified immunity denied. Goldring v. Henry, 19-13820 (11th Cir. Nov. 12, 2021). See Reason: Cops Thought Sand From Her Stress Ball Was Cocaine. She Spent Nearly 6 Months in Jail. by C.J. Ciaramella (“And now an appeals court has ruled the cops who arrested her aren’t entitled to qualified immunity from her lawsuit.”)
Posted inArrest or entry on arrest, Qualified immunity|Comments Off on CA11: No QI where ptf showed potential false arrest and lengthy detention where crime lab found no drugs
The government moved for an order requiring defendant to submit to a buccal swab for DNA to include or exclude him from certain evidence in a homicide case. “Accordingly, the Court finds that, although a buccal swab of the cheek is a search, pursuant to King, the Government’s interests outweigh Defendant’s reduced expectation of privacy and the intrusion of a buccal swab is minimal.” United States v. Bravo, 2021 U.S. Dist. LEXIS 220162 (D.Ariz. Nov. 12, 2021).
Accepting plaintiff’s version that he only showed the butt of his gun according to his CCW training in a concealed carry state, he was not a danger. “Redrick was in lawful possession of a firearm, which he kept at his side. But mere possession of a weapon without more is insufficient to justify deadly force. … And where it is feasible, non-lethal means must be utilized before resorting to deadly force. Garner, 471 U.S. at 11–12.” Redrick v. City of Akron, Ohio, 21-3027 (6th Cir. Nov. 15, 2021).*
Defense counsel wasn’t ineffective for not challenging by a motion to suppress a search of his motel room after he should have left but didn’t. “The postconviction court concluded that the time difference was ‘fribbling’ and found that even if a suppression motion had been granted, Sholar made ‘no showing on how suppression … would have been reasonably probable to alter the result of the trial in any respect whatsoever.’ Ultimately, we conclude that Sholar’s claim based on the suppression motion has been previously litigated and he is therefore barred from raising the claim again.” The trial court was right, and, even if not, harmless error. State v. Sholar, 2019AP1636 (Wis. App. Nov. 16, 2021).*
Officers conducted a valid protective sweep and found defendant’s cell phone. It was seized in plain view, and then a search warrant was obtained for it. All searches were valid. United States v. Salaman, 2021 U.S. Dist. LEXIS 219785 (D.Conn. Nov. 15, 2021).
Defendant didn’t have standing to contest the search of a storage unit without alleging he used it. United States v. Lowe, 2021 U.S. Dist. LEXIS 219771 (D.Colo. Nov. 15, 2021).
There was no reasonable suspicion for defendant’s stop on the Maine turnpike driving at 10:24 pm. “Here, I conclude that Green’s three de minimis contacts with the inner edge of the fog line (if they occurred at all), with no other indicators of impaired driving or danger to public safety, do not constitute a violation of Maine’s traffic laws sufficient to justify the stop. Viewing the totality of the circumstances through the lens of a reasonable police officer, there was no basis, in fact or in law, to suspect Green of a traffic violation. Because the Government fails to meet its burden of showing a particularized and objective basis for stopping Green’s car, I find that Darcy’s initial stop was not justified by reasonable articulable suspicion and therefore violates the Fourth Amendment.” United States v. Boyd, 2021 U.S. Dist. LEXIS 220080 (D.Me. Nov. 15, 2021).*
Defendant is charged with killing his wife. He didn’t have standing to challenge a search warrant for his father’s cell phones where attorney-client privilege in their contents was asserted because the father was communicating with expert witnesses in his case. State v. Cunningham, 2021-Ohio-4052, 2021 Ohio App. LEXIS 3943 (11th Dist. Nov. 15, 2021).
Defendant claimed a lack of consent and not understanding the consent form, but the questions he asked of the officer afterward showed that he did. United States v. Roberson, 2021 U.S. Dist. LEXIS 219620 (D.D.C. Nov. 15, 2021).*
The protective patdown of defendant’s person was based on reasonable suspicion. United States v. Teter, 2021 U.S. Dist. LEXIS 219488 (M.D.Pa. Nov. 12, 2021).*
Tossing aside a suitcase when confronted by officers was an abandonment. United States v. Grantz, 2021 U.S. App. LEXIS 33826 (4th Cir. Nov. 15, 2021).*
“This appeal arises from a tragic incident that led to the death of Joshua Lawhon, an unarmed mentally ill man. Invoking 42 U.S.C. § 1983 and Virginia state law, Lawhon’s mother, as administrator of his estate, brought this action against the police officers and paramedics whose assertedly improper actions cost her son his life.” They created a ruse to take him down from behind, and he died from the use of force. “In addition to applying the Graham factors, we also take into account the severity of the injuries in our determination of whether officers used excessive force. … Here, Lawhon suffered the most severe injury possible — death. There is no doubt that continuing to apply force to a secured unarmed man, to effectuate a seizure for which the individual’s own benefit provides the only justification, constitutes excessive force in violation of the Fourth Amendment. …” Qualified immunity denied. Lawhon v. Mayes, 2021 U.S. App. LEXIS 33823 (4th Cir. Nov. 15, 2021).
The police had probable cause for appellant’s arrest when the victim identified him in a lineup and when they located clothes in his home matching the victim’s description of the perpetrator’s dress. Commonwealth v. Bishop, 2021 PA Super 222, 2021 Pa. Super. LEXIS 674 (Nov. 15, 2021).*
The Attorney General’s request for information (a subpoena) in a deceptive trade practices case was reasonable in scope and reasonably related to the AG’s authority under the statute. In re Investigation of Wall & Assocs., 2021 Tenn. App. LEXIS 449 (Nov. 12, 2021).
“Addressing the claims against the individual officers, the panel held that the amended complaint failed to allege facts that would demonstrate either objective unreasonableness or objective deliberate indifference by either officer. Considering all the facts in the amended complaint and the incorporated video, the panel could not say that it was objectively unreasonable—much less an instance of objective deliberate indifference akin to reckless disregard—for the officers to conclude that paramedics were not needed at the traffic stop. The panel further concluded that the alleged violative nature of the officers’ conduct, in failing to recognize and respond to Jenkins’ serious medical need, was not clearly established in the specific context of this case. Defendants were therefore also entitled to qualified immunity under the second prong of the qualified immunity test.” J.K.J. v. City of San Diego, 2021 U.S. App. LEXIS 33778 (9th Cir. Nov. 15, 2021).*
Federal court should abstain under Younger from a state red-flag law proceeding to remove firearms from the plaintiff. Greco v. Bruck, 2021 U.S. App. LEXIS 33660 (3d Cir. Nov. 12, 2021).
Defendant’s being in an alley known for druggies and seen with drug paraphernalia at his feet was reasonable suspicion. His alternative argument as to what it could show doesn’t undermine reasonable suspicion. State v. Goddard, 2021 UT App 124, 2021 Utah App. LEXIS 125 (Nov. 12, 2021).
Defendant officer was not entitled to qualified immunity for seizing plaintiff’s dogs by shooting them to death during a security check where they alleged the dogs posed no threat. Lemay v. Mays, 2021 U.S. App. LEXIS 33758 (8th Cir. Nov. 15, 2021).
Defendant intentionally shot himself in the leg and called 911 for help. Police arrived and seized the gun, and he was a felon. The entry and remaining in the house was reasonable. United States v. Culpepper, 2021 U.S. Dist. LEXIS 219340 (D.Kan. Nov. 12, 2021).
“Lopez and Bautista’s motion to suppress is denied because Frantz had reasonable suspicion to detain them to conduct a K9 sniff of the van. The initial traffic stop was valid. During the initial stop—before the ‘two-step’ maneuver—Trooper Frantz developed reasonable suspicion to detain Lopez and Bautista for a K9 sniff. And even if there was not reasonable suspicion by the end of the initial stop, reasonable suspicion developed during the subsequent, consensual encounter that followed the two-step.” United States v. Lopez, 2012 U.S. Dist. LEXIS 219341 (D.Kan. Nov. 12, 2021).*
Posted inEmergency / exigency, Reasonable suspicion|Comments Off on D.Kan.: Felon in possession’s intentionally shooting himself and calling 911 led to reasonable entry
"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.
