The provider of the IP address could not tell police for certain that defendant had the particular IP address at the particular time sought, but they could opine it was highly likely. That’s certainly enough for probable cause. Defendant’s certified question for appeal conflated probable cause and particularity, and that defeated his appeal. State v. McBride, 2021 Tenn. Crim. App. LEXIS 405 (Aug. 31, 2021).
Amazon allegedly discovered a kickback scheme involving its land acquisitions in Northern Virginia, and federal search warrants were issued. Amazon obtained injunctive relief and a requirement of the district court of a $21 million bond. Preliminary injunction affirmed. “Because Amazon has pleaded viable equitable claims, Northstar has failed to identify any abuse of discretion in the district court’s conclusion that Amazon is likely to prevail on the merits.” Damages need not be the exclusive remedy, particularly when the defendant could become insolvent during the litigation. Amazon, Inc. v. WDC Holdings LLC, 2021 U.S. App. LEXIS 26226 (4th Cir. Aug. 31, 2021).*
Posted inProbable cause|Comments Off on TN: “Highly likely” information is sufficient for PC
The officers’ investigation had progressed enough to have embarked on a course to readily identify defendant’s victims before the illegal search of the motel room. The government proved inevitable discovery. In addition, this wasn’t so flagrant, despite the granting of a motion to suppress the search of the motel room that dismissal of the indictment was warranted. United States v. Cano, 2021 U.S. App. LEXIS 26237 (9th Cir. Aug. 31, 2021).
Smell of marijuana justifies prolonging traffic stop and ultimately a search. United States v. Langley, 2021 U.S. Dist. LEXIS 164750 (W.D.Okla. Aug. 31, 2021).*
Where this Fourth Amendment § 1983 complaint was untimely, the court did not have to resolve the service issues. Ajayi v. District of Columbia, 2021 U.S. Dist. LEXIS 164611 (D.D.C. Aug. 31, 2021).*
“[T]he district court correctly instructed the jury that under California law, finding for Defendants on Rosier’s Fourth Amendment excessive force claim would necessarily yield the same result for his negligence claim.” Rosier v. City of Huntington Beach, 2021 U.S. App. LEXIS 26235 (9th Cir. Aug 31, 2021).*
A concealed carry permit is not cause for handcuffing a motorist. Soukaneh v. Andrzejewski, 2021 U.S. Dist. LEXIS 147750 (D.Conn. Aug. 6, 2021).
The lack of an arrest warrant isn’t relevant in an excessive force case where officers came to a house during a domestic disturbance and ended up using force against plaintiff. Aponte v. Kanbur, 2021 U.S. App. LEXIS 26053 (2d Cir. Aug. 30, 2021).*
The seizure of all of defendant’s clothing leaving him only with a blanket to cover himself and taking pubic hair and penile swabs under a search warrant certainly wasn’t pleasant, but it wasn’t designed to cause him to make a statement. State v. Rodriguez, 2021 Del. Super. LEXIS 569 (Aug. 25, 2021).
The Atlantic: Your Phone Is Your Private Space (“Without evidence of wrongdoing, neither public agents nor private companies should be rifling through the photos on your personal devices.”)
Posted inCell phones|Comments Off on The Atlantic: Your Phone Is Your Private Space
An order to get out of a car does not unreasonably prolong the stop. United States v. Malone, 2021 U.S. App. LEXIS 26136 (10th Cir. Aug. 30, 2021). Summarizing the law:
WaPo: Prince George’s officer accused of erasing cellphone as agents executed search warrant by Katie Mettler (“Edward “Scott” Finn, a former Prince George’s County police officer who faced previous allegations of misconduct, has been indicted by a federal grand jury on charges of tax evasion and obstruction of justice, prosecutors announced Friday”)
Posted inWarrant execution|Comments Off on WaPo: Prince George’s officer accused of erasing cellphone as agents executed search warrant
Posted inQualified immunity, SCOTUS|Comments Off on ABAJ: Chemerinsky: The Supreme Court has done a poor job protecting against police abuse of power and racism
Posted inCell phones, Third Party Doctrine|Comments Off on Raw Story: Mo Brooks bellyaches about Congress seizing his phone records: ‘They should not have access to anything’
The officer’s order for defendant to get out of the car was reasonable and did not unreasonably prolong the stop. United States v. Malone, 2021 U.S. App. LEXIS 26136 (10th Cir. Aug. 30, 2021).
“While Fisk brings his assignment of error under both the Fourth Amendment and Article I, Section 14 of the Ohio Constitution, he offers no argument as to why we should conclude that the analysis in this case should differ under these two constitutional provisions. Because Fisk has not offered any ‘persuasive reasons’ to find that Article I, Section 14 of the Ohio Constitution and the Fourth Amendment differ with respect to his claims, we will analyze the two together.” State v. Fisk, 2021-Ohio-2989, 2021 Ohio App. LEXIS 2946 (12th Dist. Aug. 30, 2021).
“However, we are unable to consider this facet of Thompson’s ineffective-assistance argument because the supposedly deficient search-warrant affidavit is not part of the record on appeal.” State v. Thompson, 2021-Ohio-2979, 2021 Ohio App. LEXIS 2934 (3d Dist. Aug. 30, 2021).
The use of a government filter time to review seized materials implicating the attorney-client privilege is not per se unreasonable. The USMJ ordered compliance with a more stringent protocol than approved in other cases. Injunction denied. In re Sealed Search Warrant & Application for a Warrant by Tel. Or Other Reliable Elec. Means, 2021 U.S. App. LEXIS 26063 (11th Cir. Aug. 30, 2021):
Nexus for the premises was shown in the search warrant affidavit. Defendant’s personal relationship to the premises is relevant and has to be evaluated in context of the totality. On sufficiency of the evidence, however, defendant’s conviction is reversed for lack of proof of constructive possession. People v. Davis, 2021 IL App (3d) 180146, 2021 Ill. App. LEXIS 467 (Aug. 27, 2021)*:
Posted inNexus, Probable cause|Comments Off on IL: Def’s personal relationship to premises to be searched is relevant and has to be viewed in the context of the totality
The affidavit for search warrant was based on probable cause. Review in a motion to suppress is not de novo. United States v. Harper, 2021 U.S. Dist. LEXIS 162543 (D.N.J. Aug. 26, 2021).
Defendant was stopped with reasonable suspicion, and he consented to the officer looking at text messages with one person (whom the officers believed was a co-conspirator) and one confirmed drug sales. “As discussed above, having found that Defendant’s initial detention was constitutional, the Court need not address the second step. As such, the Court finds that Defendant’s limited consent to search his text messages with Johnson was valid.” United States v. Rideaux, 2021 U.S. Dist. LEXIS 162953 (W.D.La. July 28, 2021).*
Remote communication technology has been used for court proceedings under Covid. It is expressly authorized for many other proceedings, including issuance of search warrants. The swearing of the affiant can be remote. Use of Remote Communications Technology, 2021 S.C. LEXIS 114 (Aug. 27, 2021).
“Here, the Court concludes that the issuing judge had a substantial basis for concluding that probable cause existed. The four corners of the affidavit support a conclusion that there was a fair probability that evidence of a crime would be found in Room 35 of the Tewa hotel.” The CI’s information was sufficiently corroborated. Defendant’s Franks challenge is that it’s all made up: “As to the first step identified in Herrera, Defendant has not supported his allegation that the affidavit was entirely false with an offer of proof or other evidence.” United States v. Jones, 2021 U.S. Dist. LEXIS 162947 (D.N.M. Aug. 27, 2021).*
Search of a NYC DOC employee’s belongings for drug soaked paper after passing the metal detector at Riker’s Island was reasonable either under special needs or because there is no reasonable expectation of privacy and it’s not even a Fourth Amendment search. She’s indicted federally for allegedly being bribed to bring drugs in, and the IG of the DOC and FBI were investigating. United States v. Lewis, 2021 U.S. Dist. LEXIS 162713 (S.D.N.Y. Aug. 27, 2021):
Posted inPrison and jail searches, Special needs|Comments Off on S.D.N.Y.: Search of DOC employee’s papers for drug soaked paper on entering prison was reasonable
Defendant was the subject of a pre-Carpenter CSLI production, and his case was GVR’ed in light of Carpenter. On remand in the District Court he raised a new issue which the court finds waived. “We conclude that the district court didn’t err in denying Thompson relief, on forfeiture grounds (he didn’t make his present argument as part of his previous appeal to this court) and on mandate grounds (his revised argument isn’t Carpenter-based in that it no longer concerns § 2703(d)).” United States v. Thompson, 2021 U.S. App. LEXIS 25949 (10th Cir. Aug. 27, 2021).
Defendant’s habeas petition alleging the government has an audio of an interview with him that would have aided in his suppression hearing is denied. There’s no proof there is or ever was a recording. United States v. Parrish, 2021 U.S. Dist. LEXIS 162273 (S.D.Ohio Aug. 26, 2021).*
The CIs here were sufficiently corroborated. There were also controlled buys for probable cause. United States v. Campbell, 2021 U.S. Dist. LEXIS 162268 (S.D.Ohio Aug. 27, 2021).*
Posted inInformant hearsay, Waiver|Comments Off on CA10: Changing argument on a Carpenter remand is waiver
Where the officer’s affidavit consisted only of years-old stale information and present evidence of personal drug use, there was no probable cause to search the defendant’s residence for evidence of drug trafficking, and the trial court erred in applying the good-faith exception to the exclusionary rule, because the affidavit was so lacking in indicia of probable cause that no reasonable official could have believed in its existence. Dissent: The good faith exception should apply. State v. Stonitsch, 2021-Ohio-2953, 2021 Ohio App. LEXIS 2927 (1st Dist. Aug. 27, 2021).
“Nor does the outbound nature of Brown’s travel remove the search from the border search exception to the warrant requirement. ‘Every circuit that has considered the question has ruled that the rationales for the “border exception apply both to incoming and outgoing persons and instrumentalities.”’” United States v. Brown, 2021 U.S. Dist. LEXIS 162267 (N.D.Ga. Aug. 27, 2021).
Posted inBorder search, Staleness|Comments Off on OH1: Years-old information of trafficking with current info of personal use isn’t PC for trafficking
“We nevertheless vacate the suspicionless search condition because the district court ordered suspicionless searches of Leonard’s ‘electronic devices and their data, including cell phones, computers, and electronic storage media’ without making ‘a properly supported factual finding’ that ‘establish[es] some nexus between computer use’ and the supervised release goals of deterrence, public protection, or rehabilitation. United States v. Bare, 806 F.3d 1011, 1013, 1017 (9th Cir. 2015) (citing 18 U.S.C. §§ 3553(a)(2)(B)-(D)). Any nexus is not apparent from the record.” United States v. Leonard, 2021 U.S. App. LEXIS 25935 (9th Cir. Aug. 27, 2021).*
The smell of marijuana here was probable cause to search defendant’s car. United States v. Grayer, 2021 U.S. App. LEXIS 25827 (6th Cir. Aug. 26, 2021).*
“An objectively reasonable officer, having consulted with the State’s Attorney in the preparation of the complaint and affidavit accompanying the application for the warrant, could have relied in good faith on the search warrant that he obtained from a judge. The warrant here, although incomplete, was not so utterly lacking in indicia of probable cause that suppression is justified.” United States v. Matthews, 2021 U.S. App. LEXIS 25905 (7th Cir. Aug. 27, 2021).
“Considering the above factors together, the State has met its burden of proving the deputy had reasonable suspicion to prolong the traffic stop based on the deputy’s objective observations during the stop: Appellee’s travel from one notorious drug-related destination to another, the prior criminal drug-related histories of all three occupants of the vehicle and the nervousness of at least two of the three occupants. Under the totality of the circumstances test, these facts justify ‘a particularized and objective basis for suspecting legal wrongdoing.’ … As the evidence was sufficient to support a finding of reasonable suspicion that the occupants were engaged in drug trafficking, we find no Fourth Amendment violation in Deputy Girdner’s continued detention of Appellee to allow for the open air sniff by the drug detection dog.” Included was excessive nervousness, manifested by constant talking, that only increased and didn’t subside. State v. Lewis, 2021 OK CR 22, 2021 Okla. Crim. App. LEXIS 22 (Aug. 26, 2021).*
“As such, the People failed to establish a nexus, supported by probable cause, that the cell phone recovered was the cell phone used at the time they allege the defendant committed the charged crimes and therefore cannot satisfy the required element of probable cause to believe evidence of the crime will be found in the location to be searched.” People v. Chen, 2021 NY Slip Op 50808(U), 2021 N.Y. Misc. LEXIS 4569 (Kings Co. Aug. 23, 2021) (unpublished).
Defendant met his Franks burden to make a substantial preliminary showing to get a hearing. The offending paragraph was critical to the finding of probable cause. At the hearing, however, “Burgos did not demonstrate by a preponderance of the evidence that Det. Arroyo knowingly and intentionally made a false statement.” “With overwhelming evidence to support probable cause, Det. Arroyo lacked any reason to have intentionally and knowingly misstated facts in the Complaint.” “The remaining question is whether Det. Arroyo’s ‘sloppy drafting’ rises to the level of ‘reckless disregard for the truth.’ The Court finds that it does not.” United States v. Burgos, 2021 U.S. Dist. LEXIS 161836 (S.D.N.Y. Aug. 25, 2021).
Posted inCell phones, Nexus|Comments Off on NY (Kings Co.): SW for cell phone failed to show nexus to the crime
"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.
