Defendant satisfied his Franks burden of showing a material false statement in support of the probable cause showing for the warrant. That information undermined the probable cause. As to the good faith exception, this is what the exclusionary rule is for. [There was evidence the officer had it out for defendant for motive, too.] United States v. Ellis, 2021 U.S. Dist. LEXIS 139218 (N.D.Ohio July 27, 2021).
No standing in a vehicle defendant didn’t own or possess or wasn’t in at the time of the search. There was probable cause the vehicle carried a parcel of drugs. United States v. Reed, 2021 U.S. Dist. LEXIS 139458 (E.D.Mich. July 27, 2021).*
Plaintiff was arrested for public intoxication and sued over it, contending her condition was caused by MS. “The officers observed Janet stumbling and unable to stand without assistance. She admitted to drinking on the night of the concert. A reasonable officer could have concluded that Janet was intoxicated and that she posed a danger to herself or others if she tried to walk home with Eric. The officers had probable cause to arrest Janet. We thus affirm the summary judgment in favor of the County and its officers.” Prim v. Stein, 2021 U.S. App. LEXIS 22273 (5th Cir. July 27, 2021).*
Police raided the wrong house and got sued. Summary judgment is denied. The supervising officer and others there knew within one minute they had the wrong house, but they continued and kept plaintiff handcuffed. And nobody in the raiding party even admitted to handcuffing her. B.B. v. Hancock, 2021 U.S. Dist. LEXIS 139394 (W.D.Tex. June 11, 2021). On alleged failure to knock-and-announce:
The question is not whether defendant actually made a left turn traffic violation; it’s whether the officer reasonably believed he did. Even the Ohio courts aren’t sure, and that makes the officer’s belief reasonable. United States v. Pacelli, 2021 U.S. Dist. LEXIS 139145 (N.D.Ohio July 27, 2021).
The court finds reasonable suspicion for the encounter with defendant despite his concerns over the legitimacy of the alleged citizen informant essentially being one from the criminal milieu because she provided information for 11 years and had the officer’s personal cell phone number. The informant hearsay question [although interesting and] seemingly important isn’t. Diggs v. State, 2021 Del. LEXIS 241 (July 27, 2021).*
Defendant’s Fourth Amendment unreasonableness claim fails just because he was handcuffed within a minute of his stop without his identity having been established. There was justification for officer safety. United States v. Mathis, 2021 U.S. Dist. LEXIS 139146 (N.D.Ohio July 27, 2021).*
Posted inUncategorized|Comments Off on N.D.Ohio: Officer reasonably believed a traffic violation occurred, whether or not it did
The record supports the trial court’s finding of consent. Neither officer exhibited a firearm, spoke in a harsh or loud tone, or indicated to defendant that he could not leave. Instead, both officers were trying to help defendant understand what the officer meant when he asked defendant for his consent to search him. Monjaras v. State, 2021 Tex. App. LEXIS 5941 (Tex. App. – Houston (1st Dist.) July 27, 2021) (2-1).
Defendant’s claim that the search warrant for his car for evidence of a Hobbs Act robbery was unreasonably issued was, as counsel admits, frivolous. His claim his cell phone was unreasonably tracked wasn’t raised below so it’s waived. United States v. Fowler, 2021 U.S. App. LEXIS 22180 (7th Cir. July 27, 2021).*
Defendant waived his Fourth Amendment rights in his guilty plea, and he’s also barred by Stone v. Powell from raising it in a 2255. United States v. Sheehan, 2021 U.S. Dist. LEXIS 138824 (D.Mont. July 26, 2021).*
Posted inConsent, Waiver|Comments Off on TX1: Voluntariness of consent shown by officers’ efforts to insure def understood what they were asking
Request for proof of payment of a public transportation fare is not a seizure under the Fourth Amendment or the state constitution. Defendant consented to the terms of ridership by boarding the bus, which included paying the fare and having proof of payment. State v. Meredith, 2021 Wash. App. LEXIS 1798 (July 26, 2021):
There was probable cause for defendant’s constructive possession of a firearm. The government didn’t have to show he was in actual possession for probable cause. He also presumably knew he had a prior conviction to support his being a felon in possession. United States v. Arcurms, 2021 U.S. Dist. LEXIS 138384 (S.D.Fla. July 23, 2021).*
Plaintiff doctor’s complaint against Blue Cross “is more than one thousand paragraphs long and includes sixty-four claims against IBC.” His Fourth Amendment claim is rejected because Blue Cross is not a state actor. Anand v. Independence Blue Cross, 2021 U.S. Dist. LEXIS 138414 (E.D.Pa. July 23, 2021).*
Defense counsel wasn’t ineffective for not filing a motion to suppress he found frivolous and which defendant can’t show would have been granted. And, there was no prejudice at trial even. Vereen v. United States, 2021 U.S. Dist. LEXIS 138494 (M.D.Fla. July 23, 2021).*
Defendant’s consent to search a vehicle included hidden compartments, here a speaker box. Here, the speaker box itself was suspicious because it wasn’t wired and screws were missing. United States v. Romero, 2021 U.S. Dist. LEXIS 138655 (W.D.Ark. June 28, 2021).*
Not a search issue but interesting: After a prompt taking of samples, defendant’s saliva was found on the child victim’s labia thus corroborating outcry evidence. His DNA was obtained by search warrant. Sanchez v. State, 2021 Tex. App. LEXIS 5923 (Tex. App. – Amarillo July 26, 2021) (unpublished).*
There is no reasonable expectation of privacy in Facebook posts, no matter who reads them, “friend” or not. Defendant posts to Facebook at his peril. Moreover, he already lost this in the Sixth Circuit. Farrad v. United States, 2021 U.S. Dist. LEXIS 138727 (E.D.Tenn. July 26, 2021).*
Defendant challenged the search warrant for his house based in part on his illegally obtained statement. Even if it was fruit of the poisonous tree, there was other evidence for probable cause, and the physical evidence is not suppressed. The statement, however, is suppressed. United States v. Terry, 2021 U.S. Dist. LEXIS 138222 (D.Neb. June 17, 2021).*
Defendant’s appeal of denial of his suppression motion is based on a credibility determination and clear error, and none is shown. United States v. Sharp, 2021 U.S. App. LEXIS 22110 (5th Cir. July 26, 2021).*
Defendant’s 2255 for counsel ignoring his Fourth Amendment claim is denied. “The memorandum was obviously written by someone not familiar with the facts of the case, making allegations that there was no search warrant, that movant was not aware of his rights, and the like. The record reflects that these allegations are not true.” Castaneda v. United States, 2021 U.S. Dist. LEXIS 138246 (N.D.Tex. July 26, 2021).*
Defendant’s motion to suppress must show a fact dispute to get a hearing, including on application of the good faith exception. United States v. Bailey, 2021 U.S. Dist. LEXIS 138557 (N.D.Okla. July 26, 2021):
Defendant fled from a police stop, and he wasn’t seized until the police laid hands on him. The hunch he was carrying a gun was correct. “First, as Officer Nash was attempting to exit his marked police car to engage Ingram, and before Officer Nash even uttered a word, Ingram fled the area on foot. Ingram did not simply walk away or ignore Officer Nash; he ran away. Officer Nash credibly testified that Ingram’s flight was suspicious. Such flight may be considered as part of the reasonable suspicion determination.” He abandoned a gun in flight. United States v. Ingram, 2021 U.S. Dist. LEXIS 138224 (E.D.Mo. June 29, 2021),* adopted, 2021 U.S. Dist. LEXIS 137663 (E.D.Mo. July 23, 2021).*
The officer was credible that defendant committed a traffic offense justifying the stop and then that marijuana was smelled coming from the car. That justified a search of the car. United States v. Nettles, 2021 U.S. Dist. LEXIS 138227 (E.D.Mo. June 7, 2021),* adopted, 2021 U.S. Dist. LEXIS 137675 (E.D.Mo. July 23, 2021).*
2255 petitioner claimed his lawyer failed to raise a Fourth Amendment claim before trial, but he doesn’t articulate what it was or that it would prevail. Denied. Roper v. United States, 2021 U.S. Dist. LEXIS 137982 (S.D.Fla. July 23, 2021).*
Courthouse News Service: Michigan city defends tire-chalking policy at Sixth Circuit by Kevin Koeninger (“The federal appeals court heard debate for the second time over whether chalking the tires of a parked car is an unconstitutional search under the Fourth Amendment.”)
Posted inTrespass|Comments Off on CNS: Michigan city defends tire-chalking policy at Sixth Circuit
“Assuming without deciding that Thompson has ‘standing’ to challenge the search, the protective sweep was justified.” “There was good reason here for a sweep. First, Thompson was suspected of stealing several guns from a pawn shop in a burglary, committing a robbery, and possessing a handgun during a gunfight. That meant Thompson could have left guns behind in the house for another person to use against officers. Second, after announcing their presence, officers were forced to wait for minutes while the blinds on either side of the door moved and they heard movement (and possible preparation for an attack) inside. Third, officers thought the house belonged to Thompson’s girlfriend, who was not located. And after Richards was asked whether anyone else was still in the house, he was silent at first and then gave the odd, ambiguous answer that there was ‘[n]obody else’ in the home ‘that [he] kn[e]w of.’” United States v. Thompson, 2021 U.S. App. LEXIS 22041 (8th Cir. July 26, 2021).
Posted inProtective sweep|Comments Off on CA8: Protective sweep justified by multiple factors: maybe guns, movement and maybe others inside
Failure to put the video of defendant’s stop in the record means the court can’t consider it on appeal, and it goes from the trial court’s findings. State v. Slepikas, 2021 SD 43, 2021 S.D. LEXIS 82 (July 21, 2021)
Excising any tainted information from the search warrant affidavit, there was still probable cause for issuance of the warrant on the totality. State v. Griffin, 2021 Conn. LEXIS 209 (July 22, 2021).
Plaintiff’s claim of strip and body cavity searches in prison aren’t good enough. He’s given leave to amend to attempt to allege they were done unreasonably or in a harassing manner, if he can. Best v. Willox, 2021 U.S. Dist. LEXIS 137926 (E.D.Cal. July 23, 2021).*
The government sought a search warrant under Rule 41 and also cited the forfeiture seizure statute, 18 U.S.C. § 983. Failure to seek forfeiture doesn’t void the search. United States v. Palma, 2021 U.S. Dist. LEXIS 137870 (E.D.Wis. May 27, 2021).
Defendant’s short stop at a house the police had been surveilling and were in the process of getting a search warrant for it was reasonable suspicion. United States v. Clayton, 2021 U.S. App. LEXIS 21954 (6th Cir. July 23, 2021).
Officers came to defendant’s hotel room with reasonable suspicion of theft. When he opened the door, evidence was seen in plain view, and reaching across the threshold to grab him was reasonable. State v. Stands, 2021 ND 135, 2021 N.D. LEXIS 133 (July 22, 2021).
“[T]he Government notes Berryhill fails to point to any Fourth Amendment violation that would have supported a motion to suppress on the conspiracy charge or how the failure to file a motion to suppress prejudiced him.” Berryhill v. United States, 2021 U.S. Dist. LEXIS 137801 (S.D.Ga. July 23, 2021).*
The return of the search warrant materials was late, but defendant shows no prejudice, and he had them in discovery. United States v. Lesane, 2021 U.S. Dist. LEXIS 137777 (S.D.N.Y. July 23, 2021).
Defendant’s discovery claim that the government must have installed malware on his computer in violation of the Fourth Amendment to discover his IP is purely speculative and doesn’t merit relief. United States v. Bateman, 2021 U.S. Dist. LEXIS 135091 (D. Mass. July 20, 2021)
State’s attorney’s subpoena duces tecum for materials for trial preparation returnable in court and pursuant to state statute was not a violation of the Fourth Amendment. Subpoena Duces Tecum v. Reardon, 2021 Ill. App. Unpub. LEXIS 1232 (July 22, 2021) (unpublished).
The consenter had actual or apparent authority to consent, and defendant didn’t contest that assertion. He had joint access and control. United States v. McDonald, 2021 U.S. Dist. LEXIS 137653 (C.D.Ill. July 23, 2021).*
Slate: The One Area Where Supreme Court Jurisprudence Is Actually Improving Thanks to Originalism by David Gans (“For decades, the Supreme Court has repeatedly deferred to the police when judging the validity of searches and seizures by the government. For that reason, it is no small feat that, in the recently concluded Supreme Court term, individuals challenging abuse of police authority won every one of the Fourth Amendment cases on the Supreme Court’s merits docket. Surprisingly—but quietly and without much fanfare—progressives have racked up a number of important victories before a deeply conservative Supreme Court, succeeding in reversing a string of lower court rulings that had sided with the police.”)
Posted inSCOTUS|Comments Off on Slate: The One Area Where Supreme Court Jurisprudence Is Actually Improving Thanks to Originalism
Debit card financial records are basic third party records, like the bank records in Miller, and Carpenter offers no protection to the petitioner despite his claim of privacy interest in the information. And, if it did, the good faith exception applies. Witaschek v. District of Columbia, 2021 D.C. App. LEXIS 191 (July 22, 2021).
The seizure here was justified by plain view after a valid traffic stop. (Anders brief.) United States v. Jones, 2021 U.S. App. LEXIS 21734 (3d Cir. July 22, 2021).*
Probable cause supported the criminal case against plaintiff sufficient to support summary judgment in his § 1983 case. Everette-Oates v. Chapman, 2021 U.S. App. LEXIS 21770 (4th Cir. July 22, 2021).*
"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.
