Assuming without deciding that removal of a cell phone’s SIM card is a search, it wasn’t unreasonable to merely obtain defendant’s telephone number off it to direct a search warrant to the phone. Defendant also complains of the protective sweep of his house, but he alleges nothing was seized from it. United States v. Bacon, 2021 U.S. Dist. LEXIS 210216 (D.Del. Nov. 1, 2021).
Defendant’s post-conviction claim he was not apprised of the search warrant is rejected. Defense counsel filed a motion to suppress and the state responded. It was withdrawn as a part of a plea agreement which included a statement on the record in the plea colloquy he was waiving the search issue. State v. Miller, 2021-Ohio-3882, 2021 Ohio App. LEXIS 3785 (11th Dist. Nov. 1, 2021).*
Defense counsel wasn’t ineffective for not filing a motion to suppress the warrant for defendant’s house. Reviewing the warrant papers, the government showed probable cause and nexus, and any motion would have been denied. United States v. Wells, 2021 U.S. Dist. LEXIS 210127 (E.D.La. Nov. 1, 2021).*
Posted inCell phones, Ineffective assistance, Waiver|Comments Off on D.Del.: Removing cell phone SIM card to find its phone number was not an unreasonable search
Gothamist: Judge Tosses Staten Island Man’s Conviction Following NYPD Drug Planting Allegations by George Joseph (“In a court decision on Friday, a Staten Island judge vacated a man’s 2018 conviction, citing body camera footage which appears to show an NYPD officer planting marijuana in a car he was riding in.”) The officer’s other prior disciplinaries suggested this, and it was undisclosed Brady material.
Posted inBody cameras|Comments Off on Gothamist: Judge Tosses Staten Island Man’s Conviction Following NYPD Drug Planting Allegations
The California Supreme Court’s holding that Simmons did not bar using defendant’s suppression hearing testimony in the death penalty phase of his criminal trial (People v. Ochoa, 19 Cal. 4th 353, 79 Cal. Rptr. 2d 408, 966 P.2d 442, 464, 469-70 (1998)) was not an unreasonable application of Simmons. The answer isn’t by any means clear that the Fifth Amendment was violated. Ochoa v. Davis, 2021 U.S. App. LEXIS 32465 (9th Cir. Nov. 1, 2021) (applying 2254 standard).
In this federal Hobbs Act murder-robbery case, there was probable cause for defendant’s arrest. “Dickerson appears to concede that a lawful arrest would permit the seizure and search of the vehicle. … Having determined that Dickerson’s de facto arrest was supported by probable cause, we have little difficulty finding that officers’ seizure of the Equinox while they applied for a search warrant was also appropriate.” United States v. Dickerson, 2021 U.S. Dist. LEXIS 209740 (M.D.Pa. Oct. 29, 2021).*
“[T]he officer’s acknowledgment that he was looking for a reason to stop Ordaz does not contradict or otherwise undermine his testimony that he found one.” United States v. Ordaz, 2021 U.S. App. LEXIS 32449 (6th Cir. Oct. 29, 2021).
Pre-Carpenter CSLI subject to good faith exception. United States v. Wright, 2021 U.S. App. LEXIS 32464 (9th Cir. Nov. 1, 2021).*
“The materiality element is also not met because probable cause would still have been satisfied in light of other incriminating evidence.” Franks motion denied. United States v. Gbanapolor, 2021 U.S. Dist. LEXIS 209585 (D.N.J. Oct. 29, 2021).*
Posted inFranks doctrine, Good faith exception, Pretext|Comments Off on CA9: “[T]he officer’s acknowledgment that he was looking for a reason to stop Ordaz does not contradict or otherwise undermine his testimony that he found one.”
“In light of the Supreme Court’s decision in Cooley, we conclude the federal law enforcement officer working as an agent for the tribal drug enforcement agency had jurisdiction to detain Suelzle for a reasonable time while awaiting a state officer and affirm the district court’s denial of his motion to suppress related to his detention by the federal law enforcement officer.” Defendant was stopped for weaving and suspicion of DUI. State v. Suelzle, 2021 ND 194, 2021 N.D. LEXIS 194 (Oct. 28, 2021).
There was justification for an impoudment of defendant’s car; thus the inventory search was reasonable. The alleged threat to arrest defendant for not producing a key to the glove box was rejected because there was justification for arrest already for something else and the search. State v. Atkinson, 2021-Ohio-3844, 2021 Ohio App. LEXIS 3758 (2d Dist. Oct. 29, 2021).*
The officers had probable cause to stop defendant for a traffic offense, regardless of their pretextual motive to investigate drug crimes. Ordering defendant out of the car was reasonable, and then the bulge of a gun was seen. United States v. Hill, 2021 U.S. Dist. LEXIS 209302 (N.D.Ill. Oct. 29, 2021).*
The local statewide newspaper sought search warrant materials involving a 2019 search warrant and four follow-up warrants in 2020. There was no showing by the issuing court to keep the information sealed under state statute. The person implicated in the investigation can’t keep it sealed. In re Appeal by an Implicated Individual, 2021 SD 61, 2021 S.D. LEXIS 113 (Oct. 27, 2021):
“Here, the Agents did not, in the end, violate the Fourth Amendment. So, the question this Court confronts now is whether the announcement of an unlawful search, which is not in fact completed, render an elicited confession involuntary and inadmissible? The Court holds that it can, and that in this case, it did.” United States v. Sanchez, 2021 U.S. Dist. LEXIS 209398 (D.N.M. Oct. 28, 2021).
The officer entered the curtilage for a welfare check and allegedly exceeded the scope of his limited authority. The trial court’s findings on the look from on the curtilage are inadequate for appeal, and the case is remanded. State v. Calabrese, 2021 VT 76A, 2021 Vt. LEXIS 107 (Oct. 29, 2021).
A compelling governmental need was shown here for lifetime satellite based monitoring. State v. Strudwick, 2021-NCSC-127, 2021 N.C. LEXIS 1019 (Oct. 29, 2021).*
NYT: Former Shoe Shiner Wins Back Nearly $30,000 Seized by Federal Agents by Michael Levenson (“Authorities at an airport last year seized a bag of cash that Kermit Warren was carrying to buy a truck. It was his life’s savings but prosecutors contended the money was linked to drugs.”):
Officers knew that defendant had communicated with the alleged minor on Grindr, an app allegedly on his cell phone, and that made the cell phone subject to seizure. “Wise next alleges that law enforcement officers violated his Fourth Amendment rights when they entered his phone prior to obtaining his written and verbal consent. … Wise alleges three forms of purportedly illegal entry: (1) the Government searched Wise’s phone for the phone number, (2) the Government searched Wise’s phone for the IMEI number, and (3) the Government took a photograph of Wise’s unlocked phone. … The Court disagrees that any of these actions constituted Fourth Amendment violations.” Inevitable discovery supports the search of the phone even if it was premature. United States v. Wise, 2021 U.S. Dist. LEXIS 208623 (D.N.J. Oct. 28, 2021).
The affidavit for firearms in the hands of a convicted felon and an “auto switch” to convert a handgun to fully automatic was more than bare bones. United States v. Yates, 2021 U.S. Dist. LEXIS 208162 (S.D.Tex. Oct. 28, 2021).*
Posted inCell phones|Comments Off on D.N.J.: Search of phone for phone and IMEI number was reasonable
A subpoena duces tecum in a civil case for a plaintiff’s cell phone records was quashed and affirmed on appeal. Because of the substantial reasonable expectation of privacy in phone records, this was not proportionate to the case or the need. Hendricks v. Wells Fargo Ins., 2021 La. App. LEXIS 1603 (La. App. 4 Cir. Oct. 27, 2021).
Defendant was a law enforcement officer in a personal dispute with the plaintiff, and the plaintiff alleged that he used his power as an officer to violate the Fourth Amendment. Plaintiff states a claim, but his conspiracy claim fails. Kansas Motorcycle Works USA, LLC v. McCloud, 2021 U.S. Dist. LEXIS 208223 (D.Kan. Oct. 27, 2021).*
Defendant’s 2254 raising an unlawful detention issue before charges were formally lodged was barred as a successor petition. White v. Farris, 2021 U.S. Dist. LEXIS 208270 (E.D.Okla. Oct. 28, 2021).*
Defendant’s enclosed porch, which also was a living space, was part of the house and not just curtilage. Police entry was unreasonable. The fact there was another solid door to the main house isn’t determinative. There was no implied right to enter to knock on the inside door. [Inside doors are solid, too.] State v. Beauchemin, 161 N.H. 654, 20 A.3d 936 (2011), with an unenclosed porch is distinguished. State v. Davis, 2021 N.H. LEXIS 162 (Oct. 28, 2021).
“In making this objection, defendant Harden either miscalculates the weight of the information available to law enforcement officers or misunderstands the probable cause standard. As Judge Roberts noted, the facts here are indeed complicated. (Doc. 92, at 4). The events of the evening of November 4, 2020, involved a number of moving parts and required law enforcement officers to piece together often fleeting and seemingly disparate facts and observations. Even so, after considering the quantum of information available to law enforcement officers and the relatively low standard that constitutes probable cause, the Court agrees that there was sufficient evidence to establish probable cause that evidence of the armed robbery would be located within defendant Harden’s house.” United States v. Harden, 2021 U.S. Dist. LEXIS 208240 (N.D.Iowa Oct. 28, 2021),* adopting R&R 2021 U.S. Dist. LEXIS 209365 (N.D.Iowa Oct. 1, 2021).*
Posted inCurtilage, Probable cause|Comments Off on NH: Enclosed porch is part of the house, not just part of curtilage
The trial court held defendant’s consent was involuntary. She was asked for consent and told that a drug dog was coming so she might as well give it up. The conclusion is supported by the evidence and isn’t clearly erroneous. State v. Flink, 2021-Ohio-3833, 2021 Ohio App. LEXIS 3726 (5th Dist. Oct. 28, 2021).
The execution of this search warrant in Broome County (Binghamton), New York included taking wastewater from the trap of the kitchen sink. Defendant was charged with meth in the wastewater. People v. Dickerson, 2021 NY Slip Op 05895, 2021 N.Y. App. Div. LEXIS 5948 (3d Dept. Oct. 28, 2021).
Defendant was reasonably ordered out of his car during a traffic stop and that led to a valid plain view of a firearm. United States v. Wright, 2021 U.S. Dist. LEXIS 207896 (S.D.Fla. Oct. 28, 2021).*
When the police came to his house, defendant threw a backpack with a sawed-off rifle from his second floor window into a window of the house next door. He claimed that house was his uncle’s, but it was unsecured and apparently abandoned because the door was always open and it was dusty and dirty inside. That was a waiver of any reasonable expectation of privacy in the backpack. Also, his jail calls made with his phone account PIN had no reasonable expectation of privacy. People v. Logan, 2021 NY Slip Op 05893, 2021 N.Y. App. Div. LEXIS 5935 (3d Dept. Oct. 28, 2021).
Defendant’s car was stopped for suspected shoplifting, the LPN and description matching the radio report. The passenger admitted the theft. There was thus probable cause for a search of the car. The police had independent evidence of him being involved in the local meth trade. A search warrant for his house was also executed. All the searches were valid. State v. Warburton, 30 Neb. App. 315, 2021 Neb. App. LEXIS 250 (Oct. 26, 2021).*
NYT: Pulled Over: Why Many Police Traffic Stops Turn Deadly by David D. Kirkpatrick, Steve Eder, Kim Barker and Julie Tate (“Officers, trained to presume danger, have reacted with outsize aggression. For hundreds of unarmed drivers, the consequences have been fatal.”):
Defendant retained a reasonable expectation of privacy in his cell phone that was left in the semi he was driving for a commercial carrier when he was arrested. The owner of the truck retrieved the phone and sent it to the police. The police had executed a search warrant on the truck before but didn’t seize the phone. The phone had child pornography on it. There was no intervening circumstance, and the police exploited the illegality. Reversed. Defendant was convicted of assault of a child. King v. State, 2021 Tex. App. LEXIS 8696 (Tex. App. – Houston (1st Dist.) Oct. 27, 2021).
Defendant’s illegal arrest required suppression of the strip search at book-in. State v. Astorga, 2021 Tex. App. LEXIS 8678 (Tex. App. – El Paso Oct. 27, 2021).
Defendant’s request for search warrant materials five years after his conviction is denied. There’s been an endless stream of appeals and motions and he doesn’t say for what. No Fourth Amendment challenge was made before conviction, and it’s too late for a 2255. Parks v. United States, 2021 U.S. Dist. LEXIS 207271 (E.D.Mo. Oct. 27, 2021).
Officers saw a gun in defendant’s waistband. They approached him, and he ran. Michigan is an open carry state, but the question then was probable cause, not beyond a reasonable doubt. United States v. Steen, 2021 U.S. Dist. LEXIS 206889 (E.D.Mich. Oct. 27, 2021).*
“For the reasons that follow, the Court DENIES Defendant Eben Anderson’s motion to suppress. With respect to Defendant Anthony Anderson, the affidavit supporting the warrant lacks probable cause justifying the search because there is no nexus between the phones and any suspected criminal conduct. Whether the good-faith exception to the requirement for probable cause applies presents a close and difficult question on the facts and circumstances of this case. Indeed, the question could scarcely be closer. Under that exception, a search requires only a minimally sufficient nexus between the items to be searched and the alleged criminal conduct. On the facts and circumstances of this case, the Court determines that there is such a nexus, if barely. Therefore, the Court DENIES Defendant Anthony Anderson’s motion to suppress. Finally, because Defendants make only legal arguments and not factual arguments, the Court also declines to hold evidentiary hearings on the motions.” United States v. Anderson, 2021 U.S. Dist. LEXIS 206717 (N.D.Ohio Oct. 27, 2021).*
The dispute on the facts as to plaintiff’s shooting shows, if he is believed, that clearly established law was violated. The district court erred in granting summary judgment. Thomas v. Cty. of Sacramento, 2021 U.S. App. LEXIS 32199 (9th Cir. Oct. 27, 2021).*
Posted inExcessive force, Good faith exception|Comments Off on N.D.Ohio: Where there was no nexus and whether GFE should apply was a really close question, govt essentially gets the benefit of the doubt
Defendant was asked by the police for his ID. He gave it over and they noted it and gave it back. This was not a seizure. United States v. Stephenson, 2021 U.S. Dist. LEXIS 206467 (E.D.N.Y. Oct. 26, 2021).*
Defendant’s Franks challenge fails because he can’t show the allegedly false statements were at all material to the probable cause finding. Diaz v. State, 2021 Tex. Crim. App. LEXIS 1033 (Oct. 27, 2021).*
“In Claim 1, Defendant argues his trial counsel was constitutionally ineffective for failing to argue at his suppression hearing that ‘background positive law’ [whatever that is] required the government to secure a warrant to search trash on the curb outside Defendant’s home. Had counsel done so, he argues, he would have prevailed at that hearing, ….” Hardly. Trash pulls are not unreasonable searches. United States v. Mathis, 2021 U.S. Dist. LEXIS 206726 (N.D.Ohio Oct. 26, 2021).*
“Officer Bau Tran fatally shot O’Shea Terry, who was trying to drive his SUV away while Tran stood on the vehicle’s running board.” The officer was entitled to qualified immunity. Harmon v. City of Arlington, 2021 U.S. App. LEXIS 32142 (5th Cir. Oct. 26, 2021).*
Using defendant’s key to unlock a lockbox within the terms of the search warrant was not unreasonable. United States v. Frady, 2021 U.S. Dist. LEXIS 205784 (W.D.N.C. Oct. 26, 2021).* [Does he really expect that breaking into it is the only way to search? Officers should be encouraged to not destroy property during raids.]
The district court made no specific findings of voluntariness of consent, but the record supports the conclusion that it was. United States v. Ojedokun, 2021 U.S. App. LEXIS 32122 (4th Cir. Oct. 26, 2021).*
This heading in the opinion says it all: “Because the warrant’s false statements are immaterial to a finding of probable cause, Defendant is not entitled to a Franks hearing.” United States v. Segura, 2021 U.S. Dist. LEXIS 206023 (D.N.M. Oct. 26, 2021).*
An unlawful detention claim accrues when the detention ends. The statute of limitations here has expired. Banter v. Adams Cty., 2021 U.S. Dist. LEXIS 206107 (N.D.Ind. Oct. 26, 2021).*
Posted inFranks doctrine, Voluntariness, Warrant execution|Comments Off on W.D.N.C.: Using a key to open a lockbox named in a SW rather than breaking it open is hardly unreasonable
"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.
