Shooting victim or suspect? Officers couldn’t tell and that was reasonable suspicion. “Here, the officers knew that two black males were shooting firearms, and Defendant and Jackson were two black males who had been involved in the shooting. While the officers knew that Defendant and Jackson were witnesses to a crime, they did not know if their involvement went further; that is, the officers did not know if Jackson or Defendant were one or both of the men who had been shooting firearms. And given the nature of the crime involved, a concern for officer and public safety was reasonable. Therefore, the Court holds that the officers had reasonable suspicion to conduct the frisk.” United States v. Beasley, 2021 U.S. Dist. LEXIS 128991 (W.D. Mo. July 12, 2021).
“The exclusionary rule is generally not available in immigration proceedings, but we hold that once an alien makes a prima facie showing of an egregious regulatory or Fourth Amendment violation warranting suppression and submits specific evidence that the government’s evidence is tainted, the government has the burden and opportunity to rebut that claim of taint. The IJ erred in failing to credit B.R.’s specific evidence of taint. We grant B.R.’s petition for review on this issue and remand for further development of the record.” B.R. v. Garland, 2021 U.S. App. LEXIS 20528 (9th Cir. July 12, 2021).
Posted inImmigration arrests, Reasonable suspicion|Comments Off on W.D.Mo.: Shooting victim or suspect? Officers couldn’t tell and that was reasonable suspicion.
There was no reasonable expectation of privacy in mental health information voluntarily provided to a social worker. It become a third party record. Stiggle v. Reichard, 2021 U.S. Dist. LEXIS 128977 (D. Conn. July 12, 2021).
“[T]here is no case that establishes that pointing a weapon at a suspect believed to be armed during an investigatory stop, where that suspect is not yet secure, violates the Fourth Amendment.” Therefore, plaintiff loses on the merits, and there is no need to consider qualified immunity. Magwood v. Fowler, 2021 U.S. Dist. LEXIS 128961 (D. S.C. May 19, 2021).*
Defendant’s guilty plea waives his Fourth Amendment claim for 2255 purposes. United States v. Altunar-Jimenez, 2021 U.S. Dist. LEXIS 128870 (S.D. Ohio July 12, 2021).*
Whether failure to signal while exiting a roundabout is a traffic offense is a valid reason for a stop or not, it was reasonable for the officer to conclude it was, and that justifies the stop under Heien. City of Lincoln v. Schuler, 2021 ND 123, 2021 N.D. LEXIS 125 (July 8, 2021).
Government’s response to motion to suppress that it does not plan to use the evidence found at trial moots the motion. United States v. Barnaby, 2021 U.S. Dist. LEXIS 128442 (E.D. N.Y. July 8, 2021).*
Two day old information about defendant at a motel wasn’t stale. The CI provided probable cause, and the good faith exception applies. United States v. Key, 2021 U.S. Dist. LEXIS 128565 (S.D. Ga. July 9, 2021).*
The officer’s testimony about a traffic offense justifying defendant’s stop is not credited, and neither is his alleged probable cause to search on smell of or seeing marijuana. State v. Cornelius, 2021 Del. Super. LEXIS 501 (July 8, 2021).*
“While this appears to be a case of first impression in Ohio, other states have uniformly held the Fourth Amendment’s exclusionary rule does not apply in child protection cases.” It follows State ex rel. A.R. v. C.R., 1999 UT 43, 982 P.2d 73, ¶s 19-21, holding that it does not in Ohio. In re R.R., 2021-Ohio-2369, 2021 Ohio App. LEXIS 2324 (5th Dist. July 7, 2021).
Denial of a motion to suppress would not be reconsidered in a 2255 because the prior ruling on the merits is res judicata, and the 2255 is untimely. United States v. White, 2021 U.S. Dist. LEXIS 127938 (S.D. Ohio July 9, 2021).*
A search warrant that includes particular attachments is particular. United States v. Bowers, 2021 U.S. Dist. LEXIS 127998 (W.D. Pa. July 8, 2021).*
Officer’s testimony a small quantity of marijuana in two sandwich bags could be smelled as a car drove by is found incredible and contrary to common sense. United States v. Gray, 2021 U.S. Dist. LEXIS 128199 (S.D. Ind. July 9, 2021):
Defendant had no reasonable expectation of privacy in FedEx packages with drugs sent to a friend’s house in the name of the friend’s deceased brother. United States v. Rose, 2021 U.S. App. LEXIS 20406 (4th Cir. July 9, 2021).
When the judge hearing a motion to exclude retires, the successor can read the transcript and make his or her own determination of the merits. People v. Grimes, 2021 NY Slip Op 04326, 2021 N.Y. App. Div. LEXIS 4407 (4th Dept. July 9. 2021).
The inventory of defendant’s car followed ATF procedures. United States v. Markeith, 2021 U.S. Dist. LEXIS 127931 (N.D. Ga. July 9, 2021).*
Probable cause was lacking to search a backpack removed from a vehicle shortly after the stop but before the dog alerted on the car. Search incident also did not apply: “In the absence of either a concern for officer safety, or a need to preserve evidence from destruction or concealment, the search incident to arrest exception to the requirement to obtain a warrant does not apply.” Neither does inevitable discovery. State v. Lelm, 2021 ND 118 (July 8, 2021).
The CI consented to planting a recording device in his car to record defendant, and that made recording their conversation reasonable. United States v. Sandeen, 2021 U.S. Dist. LEXIS 127804 (D. Haw. July 7, 2021).
Shooting a man making a suicide threat and holding a shotgun as he advanced on the officers was reasonable. Tucker v. Marquette Cty., 2021 U.S. App. LEXIS 20366 (6th Cir. July 7, 2021).*
In a traffic stop, obtaining the passenger’s ID to check for warrants without reasonable suspicion violates the state constitution. Perozzo v. State, 2021 Alas. App. LEXIS 87 (July 9, 2021).
Defendant’s ineffective assistance of counsel claim for failure to object to a cell phone search before the state court ever addressed it in 2014 provides no relief. Defense counsel wasn’t charged with forecasting changes in the law. Commonwealth v. Prater, 2021 PA Super 141, 2021 Pa. Super. LEXIS 428 (July 9, 2021).*
“Where an inmate is not merely slow to comply with an order, but is engaged in aggressive, disruptive, or threatening conduct, an officer’s use of a taser may be a permissible use of force.” It was here. Shockley v. Foster, 2021 U.S. Dist. LEXIS 127382 (E.D. Va. July 8, 2021).*
Plaintiff stated a claim for unnecessary destruction of his home by police in executing a search warrant. Denby v. Engstrom, 2021 U.S. App. LEXIS 20397 (9th Cir. July 9, 2021):
Cell phone tower warrant in an effort to solve multiple robberies by identifying repeated phone use was reasonable when the question is a “substantial basis,” which there was. United States v. James, 2021 U.S. App. LEXIS 20336 (8th Cir. July 8, 2021):
Defendant was arrested and searched incident to arrest, and the court finds no valid basis for the search. He was too far away from and out of sight of the drugs the government was attempting to link to him. United States v. Sanders, 2021 U.S. Dist. LEXIS 127697 (W.D. N.Y. July 8, 2021).
In the Waco Twin Peaks shooting arrest where 177 people were arrested for motorcycle gang affiliation and thus gang crimes, and no one was convicted, a Franks claim was stated as to a [rather shallow] bform arrest warrant that become woefully insufficient as to many of them. Qualified immunity denied. Remanded. Terwilliger v. Reyna, 2021 U.S. App. LEXIS 20322 (5th Cir. July 8, 2021).*
Defendant’s ineffective assistance of counsel claim is outside the record and can’t be raised on direct appeal. State v. Jordan, 2021-Ohio-2332, 2021 Ohio App. LEXIS 2299 (2d Dist. July 9, 2021).*
Bitcoin.com: NCLA Files Appeal Against the IRS — Law Firm Claims Tax Agency Unlawfully Seizes Crypto Data of Thousands by Jamie Redman (“On Friday, the public interest law firm New Civil Liberties Alliance (NCLA) filed an opening brief in the cryptocurrency case of James Harper v. Charles P. Rettig. The NCLA argues that Harper’s Fourth and Fifth Amendment constitutional rights were violated by the Internal Revenue Service (IRS). The U.S. tax agency is accused of obtaining Harper’s information from crypto asset exchanges without valid subpoenas or statutory limitations.”) They argue that they contracted for privacy and should have gotten it.
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The omission here was not a Franks violation. “Here, even if Jackson’s statement had been included in the affidavit, it would not have tipped the balance. The officers still would have had probable cause to search the home, because the totality of the circumstances indicated a fair probability—at least—of finding contraband or evidence in the home.” United States v. Leonard, 2021 U.S. App. LEXIS 20267 (11th Cir. July 8, 2021).*
“The case at bar does not present any circumstance that warrants suppression. Although the Court harbors doubts about the warrant’s support, the Affidavit was not so lacking in indicia of probable cause as to make belief in its existence objectively unreasonable. In addition, the warrant was not so facially deficient in terms of particularity as to preclude good faith reliance thereon.” United States v. Bowers, 2021 U.S. Dist. LEXIS 127037 (W.D. Pa. July 8, 2021).*
IP subscriber information is not protected by the Fourth Amendment. United States v. Bowers, 2021 U.S. Dist. LEXIS 127036 (W.D. Pa. July 8, 2021).*
There was probable cause for defendant’s arrest away from the place of execution of the search warrant (Summers and Bailey). United States v. Pelayo, 2021 U.S. Dist. LEXIS 126671 (W.D. Wash. July 7, 2021).
When defendant opened his door, the officer standing there could see drugs in plain view, and defendant sought to close the door. This was exigency for a warrantless entry. Frost v. State, 2021 Tex. App. LEXIS 5418 (Tex. App. – Corpus Christi – Edinburg July 8, 2021).
Officers merely approaching defendant didn’t seize him until they got him out of the car. United States v. Cox, 2021 U.S. App. LEXIS 20279 (4th Cir. July 8, 2021).*
The informant’s information gave probable cause. Thus, “With probable cause, the police could search the shoebox under the automobile exception.” United States v. Gondres-Medrano, 2021 U.S. App. LEXIS 20283 (4th Cir. July 8, 2021). As to establishing the reliability of informant hearsay:
“Plaintiffs’ Fourth Amendment theories are without merit. The information sought by the Ordinance’s annual reporting requirement-including a given unit’s address, monthly rent, and other details routinely found in a ‘for-rent’ advertisement–does not give rise to a reasonable expectation of privacy. Hotop v.City of San Jose, 982 F.3d 710, 715-16 (9th Cir. 2020).” City of L.A. AIHM Hotel/Motel Ass’n v. City of L.A., 2021 U.S. App. LEXIS 20101 (9th Cir. July 7, 2021).
It was clearly established in 2016 that the community caretaking justification for a police officer’s standby entry wasn’t reasonable without exigency, even before 2021’s Caniglia v. Strom. Reversed. Clemons v. Couch, 2021 U.S. App. LEXIS 20112 (6th Cir. July 7, 2021).*
A massage parlor is a closely regulated business under New York v. Burger, and it has been for 40 years. The operators thus had no reasonable expectation of privacy against inspections. Killgore v. City of S. El Monte, 2021 U.S. App. LEXIS 20244 (9th Cir. July 8, 2021). Syllabus by the court:
The court adopts the R&R finding on the totality that defendant consented to a search of his backpack, despite some intoxication. His saying “What’s going on?” was not withdrawal of consent. United States v. Harden, 2021 U.S. Dist. LEXIS 126242 (N.D. Iowa July 7, 2021).*
The court granted preliminary discovery as to how police in another country found his IP address to report it to American authorities because he made a prima facie case of potential U.S. government involvement. On the merits of that discovery claim, however, he fails: “ As far as the Government’s Rule 16 discovery obligations go, there is nothing left to be done. The Government must turn over what it possesses, but it cannot be faulted under Rule 16 for not turning over materials that it tried but was unable to obtain.” United States v. Mitrovich, 2021 U.S. Dist. LEXIS 126272 (N.D. Ill. July 7, 2021).*
Defendant was the passenger in a rental car driven by her codefendant, and neither was on the rental agreement. Under Byrd, they had permission to have it, and, therefore, standing. Asking them to exit the vehicle was reasonable under Mimms. During the traffic stop, reasonable suspicion developed, and the search was not unreasonably extended. United States v. Garmon, 2021 U.S. Dist. LEXIS 126338 (E.D. Va. July 6, 2021).*
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"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.
