The officers’ claim they didn’t have time to get a search warrant before entering because the magistrate was 30 minutes away was belied by the fact that they waited 45 minutes and then got a telephone authorization to search after the entry. On the totality, there was no exigency. White v. Commonwealth, 2021 Va. App. LEXIS 182 (Oct. 12, 2021).
Crime victim’s report as basis for a search warrant is not governed by the same standards as unidentified informants. Huff v. State, 2021 Alas. App. LEXIS 141 (Oct. 13, 2021).
Defendant’s encounter with the police at the Kansas City Greyhound station was consensual. By the time a dog sniff occurred, there was reasonable suspicion. The dog alert was probable cause. United States v. Matthews, 2021 U.S. Dist. LEXIS 196197 (W.D.Mo. Sept. 17, 2021).*
Defendant’s furtive movements alone during a traffic stop did not rise to reasonable suspicion to extend the stop. State v. Snow, 2021-Ohio-3644, 2021 Ohio App. LEXIS 3559 (5th Dist. Oct. 8, 2021).
The officer was drawn to encounter defendant because of a CI’s report, but he found the vehicle illegally parked in a handicapped spot. Then he saw a gun in plain view and ordered defendant out of the car away from the gun. All this was reasonable. United States v. Prigmore, 2021 U.S. App. LEXIS 30367 (6th Cir. Oct. 12, 2021).*
The information from this identified citizen informant was detailed and reliable enough to justify a stop on the totality. State v. Angers, 2021-Ohio-3640, 2021 Ohio App. LEXIS 3550 (3d Dist. Oct. 12, 2021).*
A retired LEO experienced in drug cases who was now a civilian employee of the department could here be included within the collective knowledge doctrine. United States v. McCoy, 2021 U.S. App. LEXIS 30364 (9th Cir. Oct. 12, 2021).
Probable cause for any offense defeats a § 1983 false arrest case. Ivchenko v. City of Scottsdale, 2021 U.S. App. LEXIS 30362 (9th Cir. Oct. 12, 2021).*
Appellant didn’t plead the state constitutional rule announced in Alexander and the need for true exigency for an automobile exception search decided after the suppression hearing but before the appeal, so he doesn’t get the benefit of it. Commonwealth v. Moore, 2021 PA Super 202, 2021 Pa. Super. LEXIS 627 (Oct. 12, 2021).
During fingerprinting on defendant’s arrest when he came in with defense counsel, DHS officers noticed a scar on his thumb, and they photographed it as a part of the identification process. This violated neither the Fourth or Sixth Amendment under Dionisio. The scar linked him to an alleged child pornography photograph he is alleged to have taken. United States v. Duggar, 2021 U.S. Dist. LEXIS 197305 (W.D.Ark. Oct. 13, 2021).
The officer acted reasonably in stopping this defendant because of a cracked windshield. It later appeared that the cracked windshield didn’t block the driver’s view. Still the stop was reasonable and was reasonably extended. United States v. Foster, 2021 U.S. App. LEXIS 30346 (8th Cir. Oct. 12, 2021).
Courthouse News Service: High court hears debate over civil rights claims for dismissed charges by Alexandra Jones (“In a case lodged by a father who says he was wrongly accused of sexually abusing his infant daughter, the Supreme Court heard arguments over his ability to seek damages for unreasonable seizure.”)
Posted inReasonableness, Seizure|Comments Off on CNS: High court hears debate over civil rights claims for dismissed charges
Paramedics and an officer arrived at a medical emergency call. While defendant was being prepared for transport, the officer checked defendant’s coat and felt a pill bottle which he looked at in case it had anything to do with his condition. The search of the coat was reasonable and related to the emergency. Byrd v. State, 2021 Ala. Crim. App. LEXIS 68 (Oct. 8, 2021) (3-2).
The seizure of defendant’s cell phone, determined to be relevant during defendant’s booking inventory, was reasonable. It was later searched with a warrant. State v. Magee, 2021 La. App. LEXIS 1448 (La. App. 1 Cir. Oct. 8, 2021).
“The answer to this question doesn’t hinge on ‘whether the dog sniff occurs before or after the officer issues a ticket’ but whether the dog sniff ‘prolongs’ the stop. [Rodriguez] at 357. The answer today is undoubtedly no. Deputy Samuelson, a credibly precise witness, testified that much of any time eaten up in the (at most) nine-minute encounter-and only six minutes from engagement with the driver to the canine’s alert-was attending to safety concerns, waiting for the driver to find the rental agreement, awaiting license or Illinois fleet plate return, going back and forth from the vehicles initially and later for the registration, and then completing the warning ticket. The deputy even worked around the delay occasioned by the Illinois fleet return rather than hold up the stop. That displayed diligence, not delay.” United States v. Devalois, 2021 U.S. Dist. LEXIS 194889 (N.D.Ind. Oct. 8, 2021).*
The validity of the traffic stop was uncontested, and it led to a plain view of drugs which led to an automobile exception search. People v. Brown, 2021 NY Slip Op 05433, 2021 N.Y. App. Div. LEXIS 5556 (4th Dept. Oct. 8, 2021).*
Posted inAutomobile exception, Dog sniff|Comments Off on N.D.Ind.: The Rodriguez question is: Did the use of the dog prolong the stop
“As outlined above, Smith has put forth no evidence that he could have made a successful Fourth Amendment challenge to the stop and search of his vehicle. Even if he did, Smith could not demonstrate prejudice. As noted above, Trooper Withers would still have inevitably discovered (and seized) the narcotics in Smith’s vehicle following Smith’s arrest on the California warrant. Smith therefore cannot demonstrate that Mr. de Montreux was ‘completely unreasonable’ in declining to appeal the suppression ruling on his Fourth Amendment claim.” Smith v. United States, 2021 U.S. Dist. LEXIS 193347 (D.Utah Oct. 5, 2021).*
Briefly leaving plaintiff shirtless in a cold room while the police secured the room was reasonable. Brooker v. Abate, 2021 U.S. App. LEXIS 30127 (7th Cir. Oct. 7, 2021).*
Posted inInevitable discovery|Comments Off on D.Utah: Officer finding an arrest warrant led to inevitable discovery
Defendant’s stop in the recheck line at JFK shortly after clearing customs was still within the border search area. United States v. Newton, 2021 U.S. Dist. LEXIS 195145 (E.D.N.Y. Oct. 8, 2021).
Reversed yet again for lack of proper findings whether defendant was seized at the time of his patdown that found cocaine. “The trial court focused its findings on whether it was reasonable to seize Maye and whether Maye voluntarily consented to a search regardless of whether he was seized. But it never focused on the related and we think dispositive question of whether Maye was seized at the moment of his purported consent. For instance, while the court stressed that Ronald Hall—Maye’s friend at the scene—testified to facts that ‘did not materially contradict the officers’ testimony,’ his testimony did diverge from the officers’ in respects critical to assessing when Maye was seized. Because further factual findings are potentially dispositive as to whether Maye was seized when he agreed to be searched, we remand the case for further findings.” Maye v. United States, 2021 D.C. App. LEXIS 286 (Oct. 7, 2021).*
Posted inBorder search|Comments Off on E.D.N.Y.: Stop in the recheck line at JFK shortly after clearing customs was still within the border search area
A firearm in defendant’s bedroom is at least probable cause for constructive possession. A search warrant for the premises here permitted police to break into a safe that could have held the object of the search. United States v. Mitchell, 2021 U.S. App. LEXIS 30183 (6th Cir. Oct. 6, 2021).
The search warrant for defendant’s computer for child pornography while in the hands of the police forensic lab was particular. United States v. Lukassen, 2021 U.S. Dist. LEXIS 194138 (D.Neb. Sept. 10, 2021), adopted, 2021 U.S. Dist. LEXIS 193179 (D.Neb. Oct. 6, 2021).*
Officers were surveilling defendant and he accidentally backed into an undercover vehicle and left. There was not justification for a stop because there was no sign of damage which was required by state law for a stop. Also, there was no reasonable suspicion for a frisk of his person for a weapon. United States v. Anderson, 2021 U.S. Dist. LEXIS 194145 (D.Nev. Sept. 11, 2021), adopted, 2021 U.S. Dist. LEXIS 192842 (D.Nev. Oct. 6, 2021).*
On four corners review of the affidavit for search warrant, “This Court concludes that the statements made in the affidavit about Defendant living at the Euclid address were not untruthful or recklessly made; therefore, they permissibly allowed a judicial officer to draw inferences about where Defendant’s primary residence would have been, and therefore, where Defendant likely would store weapons or narcotics. Therefore, the warrant application provides the required nexus and is supported by probable cause.” United States v. Nelson, 2021 U.S. Dist. LEXIS 194129 (D.Minn. Aug. 11, 2021), adopted, 2021 U.S. Dist. LEXIS 192930 (D.Minn. Oct. 6, 2021).*
Defendant appealed the denial of his motion to suppress where he claimed the affidavit for the search warrant was “shaky and vague.” But, “After careful review, we find Shary has failed to carry his burden in rebutting the presumed validity of the affidavit in the absence of any evidence of deliberate falsehood or reckless disregard for the truth.” And, there was probable cause on the totality. State v. Shary, 2021-Ohio-3604, 2021 Ohio App. LEXIS 3509 (8th Dist. Oct. 7, 2021).*
Posted inFranks doctrine, Probable cause|Comments Off on D.Minn.: On “four corners review,” the affidavit is not misleading and it shows PC
“From all the foregoing, Officer Lojacono could reasonably believe that there was a fair probability that the amount of marijuana he saw in the car exceeded the legally permissible amount” of two ounces. Thus, the automobile exception applied. Harris v. United States, 2021 D.C. App. LEXIS 285 (Oct. 7, 2021).
Defendant called the police because his girlfriend had apparently overdosed and was unconscious. The observations on the initial entry supported a search warrant under the independent source doctrine. United States v. Dang, 2021 U.S. App. LEXIS 30091 (6th Cir. Oct. 6, 2021).*
Posted inIndependent source, Probable cause|Comments Off on DC: PC from the fair inference def had more than the “permissible amount” of MJ
It was reasonable for officers to conclude that reasonable suspicion existed when they arrived within 30 seconds of a Shotspotter alert. “This immediacy also limits the possibility that the culprit (or culprits) could have fled before the officers arrived. In United States v. Jones, the D.C. Circuit held that officers arriving ‘within a minute and a half of MPD’s call reporting the ShotSpotter alert’ sufficiently limited the possibility that the suspect fled. Here, the officers arrived even sooner — not a minute and a half after a crime was reported, but thirty seconds after the crime actually occurred. Of course, it was possible that the shooter(s) had fled in those thirty seconds. But Jones recognized that officers need not eliminate that possibility to justify a stop of the person(s) still on the scene. That is because reasonable suspicion requires ‘far less than certainty.’ It demands only reasonableness, and it was not unreasonable to think the shooter(s) had yet to leave, given how rapidly the officers arrived. Also pertinent is that the ‘commotion’ the officers heard when they arrived was the same ‘commotion’ they heard when the shots rang out, which suggests that the source of the clamor had yet to leave the scene. Thus, the officers had reasons to think people involved in the shooting remained there, and they had no indication anyone had left.” Funderburk v. United States, 2021 D.C. App. LEXIS 289 (Oct. 7, 2021).
Posted inReasonable suspicion|Comments Off on DC: Police on the scene in less than 30 seconds after Shotspotter alert was RS here
Neither the affidavit nor search warrant apparently sufficiently limit the search. The court has difficulty applying the good faith exception without a hearing on the motion to suppress. United States v. Mokbel, 2021 U.S. Dist. LEXIS 191789 (S.D.Tex. Oct. 5, 2021)*:
“‘A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct. Terry accepts the risk that officers may stop innocent people.’” State v. Kleintop, 2021-Ohio-3584, 2021 Ohio App. LEXIS 3493 (9th Dist. Oct. 6, 2021).
Failure to include the search warrant in the appeal documents precludes review. State v. Hines, 2021 La. App. LEXIS 1390 (La. App. 1 Cir. Oct. 5, 2021).
The court agrees with the state court that, excising the false information from the affidavit for search warrant, probable cause still remains. CoA denied. Guice v. Little, 2021 U.S. App. LEXIS 29991 (10th Cir. Oct. 6, 2021).*
Posted inFranks doctrine, Reasonable suspicion, Waiver|Comments Off on OH9: ‘A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct. Terry accepts the risk that officers may stop innocent people.’”
Three weeks passed in a murder investigation between officers thinking they might have to search and getting the search warrant. Other search warrants were obtained in the interim, and the investigation was ongoing. The delay was reasonable. United States v. Clark, 2021 U.S. Dist. LEXIS 191627 (W.D.N.Y. Oct. 4, 2021).
Defendant consented to recording and monitoring of jail phone calls. The inmate handbook explains it, and it’s not ambiguous. It’s not presented as a Fourth Amendment claim, but, if it was, there’s no reasonable expectation of privacy in jail calls. United States v. Salgado, 2021 U.S. Dist. LEXIS 191905 (D.N.J. Oct. 5, 2021).*
There was probable cause for the search warrant, and the good faith exception also applies. United States v. Clark, 2021 U.S. Dist. LEXIS 191627 (W.D.N.Y. Oct. 5, 2021);* United States v. Padron-Perez, 2021 U.S. Dist. LEXIS 192109 (W.D.N.Y. Oct. 4, 2021).*
Posted inUncategorized|Comments Off on W.D.N.Y.: Ongoing murder investigation with other SWs executed did not make this SW stale
Defense counsel considered and chose not to file a motion to suppress. At the time (2008) the law was less clear than now about automobiles on the curtilage and computers in the car as a “container.” Jardines and Collins came much after. CoA denied. Alberts v. Perry, 2021 U.S. App. LEXIS 29927 (6th Cir. Oct. 5, 2021)*:
Posted inAutomobile exception, Ineffective assistance|Comments Off on CA6: Def counsel not ineffective for not challenging car search on curtilage from 2008 under Jardines and Collins
The court sua sponte reconsiders its prior denial of a motion to suppress for a Franks violation and grants it. The critical paragraph in the affidavit identifying defendant was clearly misstated. United States v. Hallman, 2021 U.S. Dist. LEXIS 191780 (D.Mass. Oct. 5, 2021)*:
“Based upon the magnitude of the facts described in the search warrant affidavit, the issuing judge was justified in drawing a reasonable inference that physical evidence of Defendant’s alleged robberies would be found at his home. Defendant’s charged crimes, two counts of robbery and two counts of using a firearm in connection with a crime of violence, involve physical evidence that was expected to be found in the perpetrator’s home, such as cash, a gun, and clothing.” United States v. Wright, 2021 U.S. Dist. LEXIS 191663 (E.D.Pa. Oct. 4, 2021).
A monitored call between a CI and defendant was probable cause for a search. United States v. Badley, 2021 U.S. Dist. LEXIS 191482 (N.D.Ohio Oct. 5, 2021).*
There was probable cause for the search warrant for defendant’s place, and his Franks challenge fails for a conclusory offer of proof. Collier v. United States, 2021 U.S. Dist. LEXIS 191527 (D.N.D. Oct. 5, 2021).*
Posted inFranks doctrine, Nexus|Comments Off on E.D.Pa.: Multitude of facts supports nexus of evidence of robbery to def’s home
"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.
