Grabbing at one’s waistband while running from the police may have innocent explanations, too, but it signals contraband. Newman v. United States, 7-CF-520 (D.C. Sept. 2, 2021).
A delay between the traffic stop and an ultimate search is not per se unreasonable. “Here, when viewed collectively, the circumstances known to Officer Rodriguez provided reasonable suspicion that justified the thirty-eight-minute wait for the canine unit to arrive at the scene.” State v. Martinez, 11-20-00144-CR (Tex. App. – Eastland Sept. 2, 2021).*
Approaching defendant on the street was not a seizure. It was consensual. State v. Alvarenga-Lopez, 47914 (Idaho Aug. 31, 2021).*
Posted inCustody, Reasonable suspicion, Seizure|Comments Off on DC: Grabbing one’s waistband while running from the police signals contraband, despite possible innocent explanations
The good faith exception does not apply to warrantless searches. State v. Peeks, 2021-Ohio-3045 (10th Dist. Sept. 2, 2021).
The trial court erred in finding the affidavit for search warrant to be bare bones and not entitled to the good faith exception. “Under this legal framework, we conclude, after reading the affidavit holistically, examining the totality of the circumstances, and employing a healthy dose of common sense, that it is not a ‘bare bones’- affidavit. The affidavit contains much more than simply ‘suspicions or conclusions.’ The affidavit includes sufficient factual content to establish ‘some connection’ between suspected illegal activity, i.e., drug trafficking, and Clover Glade. In particular, the affidavit includes detailed facts about all three controlled drug buys, including the dates of the first and third transactions and Pollard’s personal involvement in those transactions.” State v. Battles, 2021-Ohio-3005 (10th Dist. Aug. 31, 2021).*
Posted inGood faith exception|Comments Off on OH10: GFE does not apply to warrantless searches
Nearly three year delay between seizure of defendant’s cell phone and electronics and their search was not unreasonable here where defendant was in jail throughout and thus he had a far diminished possessory interest. Nelson v. State, S21A0773 (Ga. Sept. 8, 2021):
Some smell of marijuana in car with three people didn’t establish probable cause without the officer being able to say it came from defendant’s person. I.G. v. State, 21A-JV-479 (Ind. App. Sept. 10, 2021).
Defendant ran from a fight in a high school parking lot and he abandoned his backpack. Richardson v. State, No. 2386, Sept. Term, 2019 (Md. App. Sept. 7, 2021).*
Defendant’s removal from the van because of his movements were for safety concerns, and they did not unreasonably extend the stop. A bag of drugs ended up in plain view. State v. Metz, 2021-Ohio-3060 (6th Dist. Sept. 3, 2021).*
Officer’s vague and untimely identification of the odor of marijuana was not probable cause in itself on the totality of these circumstances. Juliano v. State, 320, 2019 (Del. Sept. 10, 2021):
The use of a body camera in the home responding to a domestic disturbance was reasonable. However, reviewing the body cam recording for the purposes of a later and unrelated investigation without a search warrant was unreasonable. The second look was a separate invasion of privacy. Commonwealth v. Yusuf, SJC-12989 (Mass. Sept. 10, 2021):
A drug dog’s instinctive leap through a left open car window was reasonable and didn’t violate the Fourth Amendment. State v. Ruiz, 2021 UT App 94 (Sept. 2, 2021):
Posted inDigital privacy, Surveillance technology|Comments Off on Ars Technica: LA police ask people they stop for their Facebook and Twitter account info
Removal of children from the home on reasonable suspicion of exposure to toxic fumes, even if governed by the Fourth Amendment, was based on reasonable suspicion and was subject to qualified immunity. Stanley v. Hutchinson, 20-1822 (8th Cir. Sept. 8, 2021).
Defendant was stopped for 83 in a 70 and was gotten out for a field sobriety test. She passed the FST but seemingly failed the HGN test, smelled of alcohol, and admitted to consuming alcohol. “We acknowledge this case is a close call,” but there’s a case a lot like this where a motion to suppress was denied and affirmed on appeal. Reversed. State v. Coyle, 2021-Ohio-3023, 2021 Ohio App. LEXIS 2965 (5th Dist. Sept. 2, 2021).*
Posted inUncategorized|Comments Off on CA8: Removal of children from home on exigency, if a 4A claim, can be based on RS
The use of a pen register order to track IP address in cyberattack investigation governed by third-party doctrine and not Carpenter. United States v. Soybel, 19-1936 (7th Cir. Sept. 8, 2021):
The distinctive smell of marijuana is enough for probable cause, and the officer’s training is enough to tell it. Bunnell v. State, 2021 Ind. LEXIS 545 (Sept. 2, 2021):
Defendant pawned property that wasn’t his. The police went and picked it up within the period he could have redeemed. There was no reasonable expectation of privacy in bailed property at a pawnshop. Moreover, pawnshops are highly regulated businesses where stolen property is often left. Powell v. State, 2021 Tex. App. LEXIS 7390 (Tex. App. – Fort Worth Sept. 2, 2021).
There was reasonable suspicion of criminal activity other than a traffic offense for extending the stop. Also, part of the time was used by defendant talking about his being arrested by the same officer before. Therefore, the delay in the arrival of the drug dog was not unreasonable. State v. Martinez, 2021 Tex. App. LEXIS 7352 (Tex. App. – Eastland Sept. 2, 2021).*
There was probable cause for defendant’s arrest after a 2 am collision with a police car on its way to an emergency where defendant appeared to the officer to be under the influence and there as a strong odor of intoxicants. Bakhoum v. State, 2021 Tex. App. LEXIS 7362 (Tex. App. – Houston Sept. 2, 2021).*
Indiana University’s CrimsonCard, a key card, that tracks movement into University buildings and facilities, does not carry a reasonable expectation of privacy. This case arose from an investigation of a hazing incident, and the University was corroborating alleged alibis. There is also video surveillance around the campus. Gutterman v. Indiana University, 2021 U.S. Dist. LEXIS 165841 (S.D.Ind. Sept. 1, 2021):
This cell phone search warrant was for a black Samsung in a black case at defendant’s address. It was executed at the police department, not defendant’s house. The trial court properly suppressed and properly held the good faith exception did not apply. State v. Bales, 2021 Mo. LEXIS 265 (Aug. 31, 2021).
“Considering the totality of the circumstances in this case, Trooper Pettit had reasonable suspicion to extend the stop. Trooper Pettit, a law enforcement officer with over 25 years of experience, has attended numerous drug-interdiction trainings each year since 2008 and has participated in as many as 100 traffic stops resulting in criminal seizures. Numerous facts alerted this experienced officer that criminal activity was afoot.” Individually, maybe not, but there was on the totality. Defendant also consented to a search of his car. United States v. Gastelum, 2021 U.S. App. LEXIS 26351 (8th Cir. Sept. 1, 2021) (2-1).*
Defendant waived the suppression issue for appeal. (1) With a partial record, the issues have to be identified and they weren’t. (2) Defendant didn’t object at trial when the evidence was offered. McAfee-Jackson v. State, 2021 Tex. App. LEXIS 7297 (Tex. App. – Beaumont Sept. 1, 2021).*
There is no reasonable expectation of privacy in one’s name. Livingstone v. Hugo Boss Store, 2021 U.S. Dist. LEXIS 165848 (D.N.J. Sept. 1, 2021).
Officers working off duty security came upon decedent’s car at night parked across parking spaces, and he appeared to be asleep with a gun in his lap or waistband. Startled, he woke up and started to pull the gun. One of them said “don’t do it,” but he continued and they shot and killed him. “Viewing the evidence in the light most favorable to Ms. Murray as the nonmoving party, no rational jury could find Officer Galyon did not reasonably perceive Mr. Simms was drawing his firearm. Although there are some discrepancies between Officer Galyon’s and Officer Escobar’s testimony, they are consistent on the key point: Mr. Simms was reaching for his firearm. No record evidence, direct or circumstantial, suggests otherwise.” Summary judgment properly granted. Redd v. City Of Okla. City, 2021 U.S. App. LEXIS 26396 (10th Cir. Sept. 1, 2021).*
Reasonable suspicion defendant was driving a car with a child in it in violation of an order of protection was justification for his stop. When the car was stopped, the smell of marijuana justified its further search. United States v. Wertenberger, 2021 U.S. Dist. LEXIS 164937 (W.D.Mo. Aug. 10, 2021), adopted (W.D.Mo. Aug. 30, 2021).
The affidavit for the search warrant for defendant’s cell phone did not establish probable cause it would contain evidence of child sexual abuse. The motion to suppress should have been granted. State v. Ritter, 314 Or. App. 241, 2021 Ore. App. LEXIS 1169 (Sept. 1, 2021) (per curiam).*
There was an objective basis for reasonable suspicion for defendant’s stop for speeding where the officer also had information defendant might be under the influence. Radar isn’t needed to judge speed for reasonable suspicion purposes. Williams v. State, 2021 Tex. App. LEXIS 7351 (Tex. App. – Austin Sept. 12, 2021).*
Posted inCell phones, Reasonable suspicion|Comments Off on W.D.Mo.: RS def was in violation of order of protection justified vehicle stop
Defendant’s excessive nervousness, denial that some of the contents of the car were even his, and repeatedly talking on the phone with someone the officer suspected was coaching him what to do and say even after being repeatedly told to stay off the phone added up to reasonable suspicion. United States v. Braddy, 2021 U.S. App. LEXIS 26230 (11th Cir. Aug. 31, 2021).*
Plaintiff’s arrest for continually arguing with an officer called to deal with him as disorderly was with arguable probable cause, so the officer gets qualified immunity. The officer was also disciplined for a department rule violation. Raeburn v. Gibson, 2021 U.S. App. LEXIS 26179 (8th Cir. Aug. 31, 2021).*
Plaintiff failed to respond to requests for admission that a body cavity search did not occur, so it was deemed admitted. That precludes his appeal over the body cavity search. Amador v. Wolfe, 2021 U.S. App. LEXIS 26201 (5th Cir. Aug. 31, 2021).*
A search warrant was issued after two of three controlled buys with defendant’s white Ford and him going home thereafter. The warrant was sought three days after the last transaction. Aside from the probable cause question, the warrant was executed in good faith. The trial court erred in suppressing. State v. Battles, 2021-Ohio-3505, 2021 Ohio App. LEXIS 2950 (10th Dist. Aug. 31, 2021).*
While an officer cannot arrest for a completed misdemeanor without an arrest warrant under the state constitution, the officer reasonably believed here that it could be a felony. SCOTUS’s recent opinion on the community caretaking function in Caniglia v. Strom applies to home, not to cars. State v. Porter, 2021 Ida. App. LEXIS 30 (Aug. 30, 2021).
Just because defendant was pulled over for a traffic offense, he wasn’t in custody. The questioning that followed was all consensual. State v. Alvarenga-Lopez, 2021 Ida. LEXIS 144 (Aug. 31, 2021).
The entry into plaintiffs’ home was reasonable based on consent on the totality. On qualified immunity, plaintiff can’t show that the right was clearly established. Pethtel v. Anderson County CASA, 2021 U.S. Dist. LEXIS 164168 (E.D.Tenn. Aug. 31, 2021).*
Posted inArrest or entry on arrest, Consent, Custody|Comments Off on ID: Where state constitution requires arrest warrant for completed misdemeanors, it was sufficient there was a reasonable belief officer was arresting for a completed felony
"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.
