Defendant had a relationship with the property of another but he didn’t spend the night. He could come and go. That was sufficient for standing. The co-defendant’s case, however, already found probable cause. United States v. Futrell, 2021 U.S. Dist. LEXIS 219209 (E.D.Mo. Oct. 21, 2021).
The search warrant was executed shortly after 6 am and did not violate the terms of the warrant. The officers testified they were aware of the time limitation and adhered to it. Defendant’s Franks and probable cause challenges also fail. United States v. Eddings, 2021 U.S. Dist. LEXIS 218796 (W.D.Pa. Nov. 12, 2021).*
Defendant’s speeding 57 in a 35 was a basis for his stop. United States v. Holt, 2021 U.S. Dist. LEXIS 218847 (D.Conn. Nov. 12, 2021).*
Posted inStanding, Warrant execution|Comments Off on E.D.Mo.: One who could freely come and go from the house of another had standing
Politico: FBI raid on Project Veritas founder’s home sparks questions about press freedom by Josh Gerstein (“The action against James O’Keefe has prompted concern about the Biden administration’s commitment to the First Amendment.”) Is O’Keefe a “journalist” or not? He was given Ashley Biden’s diary, published nothing, and turned it over to the police (which was the right thing to do). Then the warrant.
Posted inPrivileges|Comments Off on Politico: FBI raid on Project Veritas founder’s home sparks questions about press freedom
There was probable cause for the first and second search warrants for child pornography on defendant’s devices (took ~100 pages to say that). No exclusionary rule; good faith exception applies, too. United States v. Pena, 2021 U.S. Dist. LEXIS 218914 (D.N.M. Nov. 12, 2021).*
Plaintiff sued only the prosecutor’s office for an illegal search. It’s not a proper party in a § 1983 case. Smith v. Cape May Cty. Prosecutor’s Office, 2021 U.S. Dist. LEXIS 219000 (D.N.J. Nov. 10, 2021).*
Habeas petitioner can’t relitigate his Fourth Amendment stop and search claim in federal court. Williams v. Greene, 2021 U.S. Dist. LEXIS 219069 (D.Md. Nov. 10, 2021).*
In federal bribe case under § 666, defendant’s CSLI was legally obtained and usable to prove he wasn’t where he said he was. United States v. Pizzonia, 2021 U.S. Dist. LEXIS 219094 (S.D.N.Y. Nov. 12, 2021).*
Defendant’s amended 2255 Fourth Amendment claim doesn’t relate back so it’s barred (completely aside from the Stone bar). Dorsey v. United States, 2021 U.S. Dist. LEXIS 219301 (W.D.Wash. Nov. 12, 2021).*
“We reject defendant’s contention that the search warrant for his cell phones was issued without probable cause. According ‘great deference to the issuing [Justice]’ …, we conclude that Supreme Court properly determined that there was sufficient information in the warrant application to support a reasonable belief that evidence of a crime was on defendant’s cell phones …. Contrary to defendant’s related contention, we conclude that the “‘[m]inor discrepancies or misstatements [in the application] do not amount to egregious inaccuracies affecting [the] probable cause determination”’ ….” People v. Miller, 2021 NY Slip Op 06236, 2021 N.Y. App. Div. LEXIS 6291 (4th Dept. Nov. 12, 2021).
Officers got a search warrant for defendant’s jail cell and seized rap lyrics that were inculpatory to the crime. On 2254, the search claim would have failed. The question was admissibility at trial, not the search itself, and they probably would have been admitted. Woodson v. Clarke, 2021 U.S. Dist. LEXIS 218284 (E.D.Va. Nov. 9, 2021).*
Defendant does not get a hearing on application of the good faith exception. The papers as a whole establish it for the government. The affidavit for the warrant showed sufficient information from observations for an inference that drugs were being dealt out of the apartment. United States v. Lyon, 2021 U.S. Dist. LEXIS 218380 (E.D.Wis. Sept. 29, 2021), adopted, 2021 U.S. Dist. LEXIS 217366 (E.D.Wis. Nov. 10, 2021).
The court grants a Franks hearing on defendant’s substantial preliminary showing of omissions from the affidavit. United States v. Hueston, 2021 U.S. Dist. LEXIS 217596 (N.D.Ind. Nov. 10, 2021).* (After the court tells us what’s missing from the affidavit, one wonders why it didn’t just grant the motion to suppress for lack of a showing of probable cause, unless, of course, this is a reflection of how easy it is for the government to show probable cause in obtaining a warrant that is practically not subject to review if it’s anywhere close.)
While an arrested person has a right to a prompt judicial determination of probable cause for the arrest, it’s not necessarily on the officer to get the person before a magistrate. “[I]t was not objectively unreasonable for Wynkoop to expect the process to occur in a timely manner as it normally does. Wynkoop’s actions here make him neither a willful violator of the law nor plainly incompetent.” The officer gets qualified immunity. Roberson v. Wynkoop, 2021 U.S. App. LEXIS 33553 (6th Cir. Nov. 9, 2021).
Defendant parolee listed 159 Peacock Road as his residence. After a dispute with his wife and reconciling, he also listed 153 as an address. “Based on the evidence presented at the evidentiary hearing, the Court finds that Defendant Mills lived at 153 Peacock Road, even if he occasionally stayed in the RV across the street. Moreover, the trailer at 153 Peacock Road was the residence known to and approved by his parole officer. The Court finds that the officers could properly search 153 Peacock Road pursuant to the Defendant’s parole search condition.” United States v. Mills, 2021 U.S. Dist. LEXIS 217574 (E.D.Tenn. Oct. 8, 2021).*
Defendant’s emailing a reporter search warrant materials subject to a protective order results in his conviction for contempt. Defendant understood the order, and only defense counsel was able to use the materials, not him. He was later pro se but not when it was emailed. United States v. Schulte, 2021 U.S. Dist. LEXIS 218220 (S.D.N.Y. Nov. 9, 2021).
The officer had probable cause to stop defendant despite the claim of pretext. State v. Harris, 2021-Ohio-4007, 2021 Ohio App. LEXIS 3891 (5th Dist. Nov. 9, 2021).*
The officers’ encounter with defendant in an apartment building parking lot was consensual as it started. United States v. Taylor, 2021 U.S. Dist. LEXIS 217702 (D.S.C. Nov. 10, 2021).*
Posted inPretext, Probable cause, Warrant papers|Comments Off on S.D.N.Y.: Emailing SW materials subject to protective order results in contempt conviction
Defendant was suspected of leaving a Lowes with a stolen shop vac. He was seen at a nearby McDonalds and officers came up to him. He volunteered that the receipt was in his console and they could look for it. The discovery of drugs was in plain view. Rathbun v. State, 2021 Tex. App. LEXIS 9158 (Tex. App. – Waco Nov. 9, 2021).*
No findings on the officer’s show of authority so remanded. Crews v. United States, 2021 D.C. App. LEXIS 321 (Nov. 10, 2021).*
Defendant’s 2254 appeal also involves a Stone bar. CoA denied. Ables v. Ducote, 2021 U.S. App. LEXIS 33419 (5th Cir. Nov. 10, 2021).*
Defendant’s place was searched by private parties retrieving a mini-spy camera and SIM card. State v. Alisna, 2021 Haw. App. LEXIS 334 (Nov. 8, 2021)* (unpublished).
A court can take judicial notice that execution of a search warrant at 11 pm is not during daylight hours in Mississippi. Doe v. Doe, 2021 Miss. App. LEXIS 473 (Nov. 9, 2021) (only recognizing rule; this is not a search and seizure case).
Defendant raises a host of 2255 ineffective assistance issues. On the merits of the search claim, he claims defense counsel was ineffective for not pursuing probable cause for his stop, but it was in fact litigated in the district court before his guilty plea. United States v. Rootes, 2021 U.S. Dist. LEXIS 217675 (D.Minn. Nov. 10, 2021).*
Defendant was not seized by his initial encounter with the police. His merely opening the door to talk to the officer does not constitute submission to a claim of lawful authority. The smell of marijuana was probable cause for a search. United States v. Taylor, 2021 U.S. Dist. LEXIS 217702 (D.S.C. Nov. 10, 2021).*
Reason: SCOTUS Has Made It Practically Impossible To Sue a Rights-Violating Federal Officer by Damon Root (“Several recent Supreme Court decisions have made it practically impossible to sue a federal officer over alleged violations of constitutional rights. Now the Court has agreed to hear a case that could either slow this sorry trend or continue it. The case is Egbert v. Boule. Robert Boule is the owner of a bed-and-breakfast in Washington state near the Canadian border.”)
Posted in§ 1983 / Bivens, Excessive force|Comments Off on Reason: SCOTUS Has Made It Practically Impossible To Sue a Rights-Violating Federal Officer
DNA from a cold case murder was sent to a DNA genealogy company who tentatively matched defendant to the crime. Police did a trash pull and got more of a DNA match. Then they got a search warrant for his DNA. Also, the knock-and-talk at his house was not barred by Jardines; police could approach as anyone could going to the door. Corbett v. State, 2021 Ind. App. LEXIS 349 (Nov. 10, 2021).
Text message exchange with a third party is not subject to a reasonable expectation of privacy under the Fourth Amendment or Washington Constitution (refusing to extend State v. Hinton, 179 Wn.2d 862, 319 P.3d 9 (2014)). “Consistent with long-standing precedent, we hold that a cell phone owner’s voluntary consent to search text messages on their phone provides law enforcement with the authority of law necessary to justify intruding on an otherwise private affair. We also hold that a subsequent police ruse using lawfully obtained information does not constitute a privacy invasion or trespass in violation of either our state constitution or the United States Constitution.” State v. Bowman, 2021 Wash. LEXIS 655 (Nov. 10, 2021).
The trial court’s order denying return of patient records taken by search warrant from the petitioner youth services provider failed to comply with HIPAA requirements should have been granted. While the records have been returned and the case is otherwise moot, the court decides it in the public interest. Daybreak Youth Servs. v. Clark County Sheriff’s Office, 2021 Wash. App. LEXIS 2639 (Nov. 9, 2021).
Defendant “narrowly” showed standing to search three apartments he visited during the day, had the keys to, and had in his name although he never spent the night during the investigation. Probable cause was shown for the search warrants. United States v. Shipp, 2021 U.S. Dist. LEXIS 216375 (E.D.Mo. Sept. 30, 2021).
The state court resolved this 2254 petitioner’s Strickland Fourth Amendment IAC claim against him. The state court decided the Fourth Amendment claim against him so defense counsel wasn’t ineffective for not litigating it. Larkins v. Noeth, 2021 U.S. Dist. LEXIS 216834 (N.D.N.Y. Nov. 9, 2021).*
The petitioner doesn’t show that the civil investigative demand in a fraud case was unreasonable under the Fourth Amendment or that it could not reach accommodation with the government. In re Civil Investigative Demand No. 21mc24 WJ/SCY, 2021 U.S. Dist. LEXIS 216377 (D.N.M. Nov. 9, 2021).
“In sum, the district court erred in drawing conclusions about Mr. Harmon’s movements that were contrary to the Estate’s allegations and were not blatantly contradicted by the record including the video footage. Based on the totality of the circumstances, a reasonable trier of fact could view Officer Fox’s actions as objectively unreasonable. Accordingly, the Estate has established a plausible claim that Mr. Harmon’s right to be free from excessive use of force under the Fourth Amendment was violated.” Estate of Harmon v. Salt Lake City, 2021 U.S. App. LEXIS 33388 (10th Cir. Nov. 10, 2021).*
The Fourth Amendment and Ohio Constitution permit felony arrests in public on probable cause without exigency. Statute doesn’t change that. State v. Jordan, 2021-Ohio-3922, 2021 Ohio LEXIS 2213 (Nov. 9, 2021).
“Here, the collective knowledge of Troopers Schulz, Colindres, and Avery provided an articulable basis for suspecting the Chevy Silverado driven by Perez was carrying illegal drugs.” One trooper translated words on the dashcam into English. United States v. Perez, 2021 U.S. Dist. LEXIS 215526 (D.Neb. Oct. 13, 2021).
The USMJ had a substantial basis for the showing of nexus to the property and the things to be found. Inference is permissible, and direct evidence is not always available. United States v. Torres, 2021 U.S. Dist. LEXIS 215781 (M.D.Pa. Nov. 8, 2021).*
Being a church minister with several locations does not confer standing as to search warrants for the church as a whole. United States v. Torres, 2021 U.S. Dist. LEXIS 215682 (S.D.Cal. Nov. 8, 2021):
Defendant’s motion to reconsideration seems to raise a Franks-type challenge to the search which was not the focus of his original motion to suppress. What he raises “may be interesting cross-examination at trial, [but] they fail entirely to undermine the truth of the statement in the warrant application.” United States v. Del Villar, 2021 U.S. Dist. LEXIS 215303 (S.D.N.Y. Nov. 7, 2021).
Plaintiff’s theory that the stop was unreasonably extended wasn’t in his complaint; it was in a response to the motion to dismiss. If it were in an amended complaint, it would state a claim. In ruling on the motion, the court goes by the face of the complaint, and plaintiff fails to state a claim. Friedson v. Shoar, 2021 U.S. App. LEXIS 33081 (11th Cir. Nov. 8, 2021).*
“Here, Defendant has not articulated the basis for her conclusory statement that her rights were violated, leaving the Court to speculate.” “Upon its review of the affidavit and search warrant, the undersigned finds no basis for Defendant’s conclusion that the search warrant was defective.” United States v. Rivera-Banchs, 2021 U.S. Dist. LEXIS 215696 (W.D.N.Y. Nov. 8, 2021).*
Defendant’s flight from the police and abandonment of items in flight was not while he was “seized.” Thus, the need to decide reasonable suspicion for a stop is obviated. United States v. Sockwell, 2021 U.S. Dist. LEXIS 215294 (D.Conn. Nov. 8, 2021).
Defendant’s jail phone call to a friend to remove the gun from his car before the police got a search warrant for it supported his conviction for both possession of the firearm and tampering with evidence. State v. Camacho, 2021-Ohio-3975, 2021 Ohio App. LEXIS 3873 (11th Dist. Nov. 8, 2021).
Defendant was subjected to a parole search without cause. Review denied. Concurrence: No argument is advanced under the state constitution that reasonable suspicion standard should apply. People v. Montgomery, 2021 Mich. LEXIS 2032 (Nov. 5, 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.
