“New York is no outlier on this issue. Indeed, as far as we can discern, every single court in the United States to ever consider this precise issue has come to the same conclusion as Darby and Sanchez: a trained officer’s olfactory detection of PCP, standing alone, constitutes probable cause.” People v. Fudge, 2021 NY Slip Op 04801, 2021 N.Y. App. Div. LEXIS 4967 (4th Dept. Aug. 26, 2021).
No reasonable suspicion for defendant’s stop: “In any event, the Court finds that the two encounters reveal something different. The video shows only three customers in the store when the officers entered: Defendant and his sister and the man in the black jacket. Officer Turner stopped both men to investigate whether they were carrying weapons. Rather than truly having reasonable suspicion to believe that either individual was armed, the officers appear to have been targeting individuals who happened to be going about their business in a heavy crime area, without any basis for believing the individuals were illegally carrying weapons, with the hope of eventually catching someone who was.” United States v. Mills, 2021 U.S. Dist. LEXIS 161819 (E.D.Mich. Aug. 26, 2021).*
“The plaintiffs contend that the record contains evidence that could lead a jury to conclude that Officer Benton merely used the tag violation as a pretext for an otherwise unlawful stop. But Officer Benton’s subjective purpose for conducting the traffic stop is immaterial. See Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996); …. Under the reasonable suspicion standard, we need not guess at Officer Benton’s motivation for initiating the stop. We need only consider whether, given the totality of the circumstances, an objective and particularized basis for the stop existed. Brent, 247 F.3d at 1300. Here, one did.” He had reasonable suspicion. Bradley v. Benton, 2021 U.S. App. LEXIS 25755 (11th Cir. Aug. 26, 2021).
Defendant had standing to challenge the search of the house of the mother of his child where he frequently spent the night, and did on the night in question. “Deputy Lowe candidly admitted that without Cameron Tillman’s consent, the officers were not in possession of facts which would justify their entry into the home otherwise.” On the credibility of consent for the entry, the officers were. United States v. Mitchell, 2021 U.S. Dist. LEXIS 161471 (D.S.D. July 6, 2021),* adopted, 2021 U.S. Dist. LEXIS 160717 (D.S.D. Aug. 25, 2021).*
Posted in§ 1983 / Bivens, Consent, Pretext, Standing|Comments Off on CA11: There was justification for ptf’s stop, so pretext question doesn’t get to jury
Wired: An Explosion in Geofence Warrants Threatens Privacy Across the US by Sidney Fussell (“New figures from Google show a tenfold increase in the requests from law enforcement, which target anyone who happened to be in a given location at a specified time.”)
Posted ingeofence|Comments Off on Wired: An Explosion in Geofence Warrants Threatens Privacy Across the US
An Oakland officer’s accessing the local Automated License Plate Reader (ALPR) database was not an illegal search nor a violation of the Fourth Amendment. That information helped to provide information to enable police to apply for a GPS tracking warrant on defendant’s car which was issued with probable cause. United States v. Rubin, 2021 U.S. Dist. LEXIS 161047 (N.D.Cal. Aug. 25, 2021).
Generally, the exclusionary rule doesn’t apply to sentencing. Defendant pled guilty waiving his Fourth Amendment claims, but argued in habeas that an illegal search was used at sentencing. But, he doesn’t even show a reasonable probability of a different outcome. Cole v. United States, 2021 U.S. Dist. LEXIS 160834 (N.D.Tex. July 14, 2021), adopted, 2021 U.S. Dist. LEXIS 159323 (N.D.Tex. Aug. 24, 2021).
A fascinating case on issue preclusion. A prior grant of a motion to suppress and a dismissal without prejudice and then a reindictment wasn’t binding now because it wasn’t integral to the prior outcome. United States v. Koerber, 2021 U.S. App. LEXIS 25749 (10th Cir. Aug. 26, 2021).
Defendant’s argument is really an evidentiary objection, not a ground to suppress. Suppression is denied. United States v. Sterling, 2021 U.S. Dist. LEXIS 160728 (M.D.La. Aug. 24, 2021).
“Here, the credited testimony of all three officers is that Deputy Lowe asked Mr. Tillman for consent to search the house for Richards. All three officers also testified that they did not enter the house until Mr. Tillman stepped to the side of the doorway, allowing them entry. Regardless of whether Mr. Tillman ever provided express consent, his conduct in stepping to the side of the doorway ‘would have caused a reasonable person to believe’ he consented to the officers’ entry to look for Richards. See Faler, 832 F.3d at 853 (quoting Jones, 254 F.3d at 695). Thus, the court finds that Mr. Tillman impliedly consented to the officers’ search of the residence.” The hearing further showed defendant’s consent. United States v. Mitchell, 2021 U.S. Dist. LEXIS 160717 (D.S.D. Aug. 25, 2021).*
The inclusion of one piece of information in the affidavit for the warrant was not a Franks violation. Even so, the remainder shows probable cause. United States v. Reis, 2021 U.S. Dist. LEXIS 160719 (D.S.D. Aug. 25, 2021).*
A Franks claim must do more than allege problems with the warrant – it needs to make an offer of proof that something is at least recklessly false and then it needs to affect the outcome. United States v. Weeden, 2021 U.S. Dist. LEXIS 160737 (N.D.Okla. Aug. 25, 2021).*
The government’s use of a cell site simulator to track another person’s cell phone didn’t infringe on defendant’s rights. United States v. Goldsby, 2021 U.S. Dist. LEXIS 160651 (D.Nev. Aug. 25, 2021).
The court order (six years pre-Carpenter) showed probable cause for CSLI. People v. Costan, 2021 NY Slip Op 04760, 2021 N.Y. App. Div. LEXIS 4879 (2d Dept. Aug. 25, 2021).*
In a § 1983 Franks claim, removing the offending information from the application for the warrant still left probable cause. The district court erred in not granting the officer qualified immunity. Davis v. Hodgkiss, 2021 U.S. App. LEXIS 25587 (5th Cir. Aug. 25, 2021).*
On the totality, defendant consented to a search of his cell phone. United States v. Hovan, 2021 U.S. Dist. LEXIS 160475 (E.D.Pa. Aug. 25, 2021).*
9to5Mac: Apple’s Find My app leads police to arrest suspect after searching for lost iPhone by Filipe Espósito. (Using the Find My app of the officer’s phone, “The police then succeeded in arresting Sandoval after tracking him for about an hour. While the story had a happy ending for the police, it raised concerns related to the protections against illegal search guaranteed by the Fourth Amendment.” No, not really.)
Posted inCell phones|Comments Off on 9to5Mac: Apple’s Find My app leads police to arrest suspect after searching for lost iPhone
Reason: Cops Are Dressing Up Like FedEx Guys and Arresting People for Drugs (“A little-known agreement allows police officers to seize packages at FedEx sorting centers.”) Actually, the writer was surprised to learn this has been going on for decades. My first exposure was in the 1980’s.
Posted inAnticipatory warrant|Comments Off on Reason: Cops Are Dressing Up Like FedEx Guys and Arresting People for Drugs
“The City of Saginaw routinely chalked car tires to enforce its parking regulations. In our prior opinion, we held that doing so is a search for Fourth Amendment purposes, and that ‘based on the pleadings stage of this litigation, … two exceptions to the warrant requirement—the “community caretaking” exception, and the motor-vehicle exception—do not apply here.’ Taylor v. City of Saginaw, 922 F.3d 328, 336 (6th Cir. 2019) (Taylor I). However, we left for another day whether the search could be justified by ‘some other exception’ to the warrant requirement. Id. [¶] We consider one of those other exceptions today—specifically, whether suspicionless tire chalking constitutes a valid administrative search. Because we conclude that it does not, we reverse the district court’s grant of summary judgment in favor of the City. But because we conclude that the alleged unconstitutionality of suspicionless tire chalking was not clearly established, the City’s parking officer, defendant Tabitha Hoskins, is entitled to qualified immunity. We therefore affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.” Taylor v. City of Saginaw, 2021 U.S. App. LEXIS 25573 (6th Cir. Aug. 25, 2021).
Posted inAdministrative search, Qualified immunity|Comments Off on CA6: Parking enforcement chalking not a valid administrative search but QI immunity applies
The second officer on the scene did not materially extend the stop by 38 seconds of additional questioning of the passenger while the first officer was writing a ticket. United States v. Salkil, 2021 U.S. App. LEXIS 25511 (8th Cir. Aug. 25, 2021).
Defendant raised a Franks claim in search warrant in a FISA case, which is nearly summarily rejected on appeal. United States v. Kokayi, 2021 U.S. App. LEXIS 25370 (4th Cir. Aug. 24, 2021).*
Defendant had no standing to seek to suppress a photograph of a place he had no reasonable expectation of privacy in. United States v. Graham-Jones, 2021 U.S. Dist. LEXIS 159498 (E.D.Mich. Aug. 24, 2021).*
The Playpen warrant here was saved by the good faith exception. United States v. Dorosheff, 2021 U.S. Dist. LEXIS 159714 (C.D.Ill. Aug. 23, 2021).*
Defendant does not get discovery of every search warrant affidavit over the last 2½ years prepared by the detective in this case. “Defendant has offered no justification for the request of all affidavits prepared by Detective Jackson over the last two and one half years, and it is difficult to discern how the requested information would materially affect the defense. A determination of the legal sufficiency of a search warrant is based upon an objective assessment of the information available to the magistrate at the time of the issuance of the search warrant. In this case, information derived from an affidavit prepared by Detective Jackson was the basis of the magistrate’s finding of probable cause. … The contents of other affidavits prepared by Detective Jackson in other criminal cases would have no material impact on the determination of the legal sufficiency of the search warrant issued in Defendant’s case.” United States v. Jackson, 2021 U.S. Dist. LEXIS 160155 (D.S.C. Aug. 24, 2021).
The government established that the officer smelled marijuana coming from defendant’s car, and that gave probable cause for the search of the car. Defendant’s credibility attack fails. United States v. Vereen, 2021 U.S. Dist. LEXIS 159912 (S.D.N.Y. Aug. 23, 2021).*
Defendant had the burden of showing standing, and he couldn’t rely on the state not proving he didn’t have standing. Wilson v. State, 2021 Ind. App. LEXIS 264 (Aug. 24, 2021).
Finding that defendant was on federal supervised release was reasonable suspicion for continuing the stop. United States v. Douglas, 2021 U.S. App. LEXIS 25342 (9th Cir. Aug. 24, 2021).
“Here, the officers consulted with an assistant district attorney before either arresting Michael, or searching his home, and therefore are entitled to qualified immunity. As to the claims for false arrest, false imprisonment, and malicious prosecution, Officer Blood sought the advice of ADA Markovits to determine for what charges probable cause existed.” Morency v. City of Allentown, 2021 U.S. App. LEXIS 25133 (3d Cir. Aug. 23, 2021).*
Failure to execute a state search warrant within 10 days (F.R.Crim.P. 41) where state law says 60 days does not automatically trigger the exclusionary rule. The affidavit for the warrant showed probable cause, and the good faith exception also applies. United States v. Felton, 2021 U.S. Dist. LEXIS 158685 (C.D.Ill. Aug. 23, 2021):
The officer had no suspicions of defendant before drawing his gun on him. The smell of marijuana on defendant’s person, but not his car, was not probable cause for a search of the car. The officer testified he was quite familiar with the impoundment policy of his department, but the court notes he had to constantly refer to it during his testimony. “Although the Court agrees with the United States that an officer need not specifically articulate or state an intention to invoke a towing policy before conducting an inventory search, the facts in this case show that the search was investigative. Suspicion that the car might have contraband will not invalidate an otherwise valid search conducted pursuant to a towing policy.” United States v. Kyle, 2021 U.S. Dist. LEXIS 158264 (N.D.Ohio Aug. 23, 2021).
Defense counsel was not ineffective for not filing a motion to suppress the search of the car defendant abandoned. United States v. Odom, 2021 U.S. Dist. LEXIS 158575 (E.D.N.C. Aug. 23, 2021).*
Defendant had no standing to challenge GPS tracking of someone else’s car. There was also probable cause to arrest defendant for a string of robberies. United States v. Simmons, 2021 U.S. Dist. LEXIS 158619 (W.D.Mo. July 8, 2021),* adopted, 2021 U.S. Dist. LEXIS 157644 (W.D.Mo. Aug. 20, 2021).*
EFF: Chicago Inspector General: Police Use ShotSpotter to Justify Illegal Stop-and-Frisks by Matthew Guariglia and Adam Schwartz (“[T]he OIG report finds a pattern of CPD officers detaining and frisking civilians—a dangerous and humiliating intrusion on bodily autonomy and freedom of movement—based at least in part on “aggregate results of the ShotSpotter system.” This is police harassment of Chicago’s already over-policed Black community, and the erosion of the presumption of innocence for people who live in areas where ShotSpotter sensors are active. This finding is based on the OIG’s qualitative analysis of a random sample of officer-written investigatory stop reports (ISRs). [¶] The scathing report comes just days after the AP reported that a 65-year-old Chicago man named Michael Williams was held for 11 months in pre-trial detention based on scant evidence produced by ShotSpotter.”)
Posted inStop and frisk|Comments Off on EFF: Chicago Inspector General: Police Use ShotSpotter to Justify Illegal Stop-and-Frisks
Defendant waived any reasonable expectation of privacy in a cigarette butt he through away where the police found his DNA. It was used to solve a cold case of rape and attempted murder from 1993. State v. Bortree, 2021-Ohio-2873, 2021 Ohio App. LEXIS 2828 (3d Dist. Aug. 23, 2021).
It doesn’t require an admission of consumption of alcohol for reasonable suspicion of DUI to exist, as the trial court held. It can come from defendant’s demeanor and looks and smell. State v. Asbury, 2021-Ohio-2877, 2021 Ohio App. LEXIS 2822 (12th Dist. Aug. 23, 2021).
There was probable cause shown for defendant’s CSLI information despite it being based only in part on a CI’s information. The rest was sufficient, too. State v. Giles, 2021-Ohio-2865, 2021 Ohio App. LEXIS 2820 (6th Dist. Aug. 20, 2021).*
The state established reasonable belief in common authority of defendant’s wife over his micro-SD card where there was child pornography. To rebut the state’s consent case, defendant would have to show that she actually had limited authority over the card, and he didn’t. People v. Baker, 2021 IL App (3d) 190618, 2021 Ill. App. LEXIS 453 (Aug. 20, 2021).
“The Government presented sufficient evidence to show that Officer O’Neil had probable cause to believe that Kinloch had committed traffic violations. That probable cause was sufficient to justify both the initial stop and the subsequent arrest, despite any dispute about whether officers also had probable cause to believe Kinloch was driving under the influence of an intoxicant. Kinloch’s behavior after he was stopped created reasonable suspicion sufficient to justify a pat down.” United States v. Kinloch, 2021 U.S. Dist. LEXIS 158079 (S.D.Ga. July 27, 2021).*
Posted inConsent, Probable cause|Comments Off on IL: State showed reasonable belief in common authority for consent
Defendant already lawfully arrested wasn’t unreasonably seized by also taking him to ATF for further questioning. United States v. Rodriguez, 2021 U.S. Dist. LEXIS 158008 (E.D.N.Y. Aug. 20, 2021).
The affidavit showed “ample probable cause” and the Franks challenge is denied. United States v. Hillman, 2021 U.S. Dist. LEXIS 157395 (N.D.Ohio Aug. 20, 2021).*
Officers had a search warrant for defendant’s house for drug dealing. Surveilling the house, they saw him leave and go to another house known to be a drug house. When he emerged they followed and waited for a traffic offense. There was reasonable suspicion for continued detention. State v. Jackson, 2021 N.M. App. LEXIS 47 (Aug. 19, 2021).*
Posted inProbable cause, Reasonable suspicion, Seizure|Comments Off on E.D.N.Y.: Def already lawfully arrested suffered no separate 4A violation by being taken to ATF, too
“[F]ederal decisions outside this circuit do not change the Court’s conclusion that Anthony Marano has no pre-execution right to judicial review of the administrative inspection warrant.” In re Establishment Inspection of Anthony Marano Co., 2021 U.S. Dist. LEXIS 157819 (N.D.Ill. Aug. 20, 2021).
Officers received an anonymous call that a house was probably being burgled. They found defendant’s car and stopped for a traffic offense. He couldn’t connect himself to the address maybe being burgled, and he had a TV in the backseat he couldn’t explain. That led to a valid search under the automobile exception. State v. Brown, 2021-Ohio-2853, 2021 Ohio App. LEXIS 2813 (7th Dist. Aug. 12, 2021).*
A fabricated evidence claim for arrest and prosecution is a due process claim, not a Fourth Amendment claim. Smalls v. Collins, 2021 U.S. App. LEXIS 24882 (2d Cir. Aug. 20, 2021).
Defendant’s DNA obtained from an arrest with probable cause but where he wasn’t formally charged could be used to link him to a prior murder, relying on Maryland v. King. People v. Roberts, 2021 Cal. App. LEXIS 692 (3d Dist. Aug. 20, 2021).
An officer walking through a bar parking lot could use a flashlight to look in a car where the driver was asleep or unconscious and the engine was running. State v. Bursey, 2021-Ohio-2857, 2021 Ohio App. LEXIS 2809 (2d Dist. Aug. 20, 2021).*
Defendant was found to have consented to his patdown, but no matter because there was reasonable suspicion for it anyway. United States v. Pentecost, 2021 U.S. Dist. LEXIS 157369 (E.D.Va. Aug. 19, 2021).*
Posted inDNA, Plain view, feel, smell|Comments Off on Cal.3d: DNA obtained from def’s arrest in another unprosecuted case could be used to link him to a prior murder
"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.
