“At most, Gowen’s assertion about the similarity of the smells of hemp and marijuana calls into question the reasonableness of the officer’s belief that he smelled burnt marijuana. Assuming for purposes of this appeal that Gowen’s assertion is correct (even though the trial court made no such finding and may have assigned no weight to the testimony Gowen elicited in support of that assertion), the officer could have reasonably, but mistakenly, believed that he smelled burnt marijuana; the smell could have been hemp but it also could have been marijuana since, according to Gowen, they smell the same. Because the officer reasonably—even if mistakenly—believed that he smelled marijuana, he had probable cause to search the van. See, e.g., ….” Gowen v. State, 2021 Ga. App. LEXIS 316 (June 25, 2021).
6½ month old information in child pornography case not stale. Macky v. State, 2021 Ga. App. LEXIS 322 (June 25, 2021).*
Posted inReasonableness, Staleness|Comments Off on GA: Mistake as to smell of MJ v. hemp was reasonable, if there was one
“The officer’s order to step out of the vehicle and his directive to stand by the patrol car were reasonable under the Fourth Amendment. See Pennsylvania v. Mimms, 434 U.S. 106, 109-11 (1977) (per curiam). The officer lawfully initiated the traffic stop because Lugo was driving erratically and changed lanes without signaling. After ‘police ha[d] already lawfully decided that the driver shall be briefly detained’ in a traffic stop, the order to exit the truck was a ‘de minimis’ intrusion on his liberty justified to ensure officer safety. Id. at 111. Lugo had not pulled over very far onto the shoulder, so the officer standing on the driver’s side of the vehicle faced a ‘hazard of accidental injury from passing traffic.’ Id.” United States v. Lugo, 2021 U.S. App. LEXIS 18992 (9th Cir. June 25, 2021).
Petitioner sought coram nobis for alleged recent discovery of forged search warrant papers. “The Petitioner’s claims of newly discovered evidence are unconvincing. The Petitioner’s challenges relate to alleged inconsistencies or deficiencies in various witnesses’ trial testimony and the lack of probable cause in the search warrant affidavit. These do not amount to newly discovered evidence or unknown facts occurring after the Petitioner’s trial had concluded.” Aguilar v. State, 2021 Tenn. Crim. App. LEXIS 282 (June 25, 2021).*
Posted inReasonable suspicion, Reasonableness|Comments Off on CA9: Order to get out of car permitted in Mimms doesn’t unreasonably extend stop
“Whitmore’s motions are granted in part and denied in part. Specifically, his motion to exclude evidence from his arrest is denied. With respect to the search of the cell phone, the affidavit provides no probable cause for seeking evidence of other, unspecified commercial robberies. But, because those provisions are severable, the remaining evidence obtained from the search of his phone is permissible.” United States v. Whitmore, 2021 U.S. Dist. LEXIS 118404 (D. Kan. June 24, 2021).
“Under this proper deferential standard, the Magistrate Judge correctly determined that the affidavit in support of the warrant application provided, at least, a substantial basis for finding probable cause. … Defendant’s objection merely reiterates his contention that the affidavit’s contents are ‘conclusory,’ without responding substantively to the Magistrate Judge’s determination that, though several statements in the affidavit are based on the affiant’s ‘knowledge, training, and experience,’ they were, nevertheless, properly considered in the probable cause evaluation.” United States v. Brown, 2021 U.S. Dist. LEXIS 118314 (S.D. Ga. June 24, 2021).*
Posted inOverseizure, Standards of review|Comments Off on D.Kan.: Seizure under part of SW without PC is suppressed, but remainder valid
Because a jury would never understand the question of law in reasonable suspicion, a Texas defendant doesn’t get an art. 38.23 jury instruction on it. “Appellant’s second alleged disputed fact concerns the existence or nonexistence of reasonable suspicion and probable cause. As the Court of Criminal Appeals in Madden noted, ‘The jury, however, is not an expert on legal terms of art or the vagaries of the Fourth Amendment. It cannot be expected to decide whether the totality of certain facts do or do not constitute “reasonable suspicion” under the law.’ 242 S.W.3d at 511. Thus, because appellant’s second contested issue involves a legal, and not factual, matter, it does not entitle him to an Article 38.23 instruction.” Haynes v. State, 2021 Tex. App. LEXIS 5097 (Tex. App. – Austin June 25, 2021).
Defense counsel wasn’t ineffective for not challenging the search warrant for not having the affidavit attached because it would fail. United States v. White, 2021 U.S. Dist. LEXIS 118297 (S.D. Ohio June 24, 2021).*
“Inasmuch as Mr. Mitchem was unaware that his car was blocked given his somnambulant state, the mere blocking of his vehicle is of no Fourth Amendment consequence.” United States v. Mitchem, 2021 U.S. Dist. LEXIS 118388 (S.D. W.Va. June 25, 2021).
Defendant’s cell phone is suppressed because of the government’s stipulations. United States v. Graham, 2021 U.S. Dist. LEXIS 118315 (S.D. Ga. June 24, 2021).*
Dashcam video flatly contradicted the plaintiff’s version of events, so summary judgment granted against his claim. The use of spike strips was reasonable and based on probable cause. Steed v. Mo. State Highway Patrol, 2021 U.S. App. LEXIS 18952 (8th Cir. June 25, 2021).*
2254 petition relitigating his search fails. “Petitioner does not argue that he was precluded from using the corrective procedures below; indeed, he could not make such an argument because he did, in fact, fully litigate his Fourth Amendment claim.” Ormejuste v. Artus, 2021 U.S. Dist. LEXIS 118323 (E.D. N.Y. June 23, 2021).*
“Harris’ objection to the Magistrate Judge’s recommendation that the seizure of the firearm was permissible focuses on whether the submitted video evidence clearly showed that the object in his waistband was a firearm, and whether the officers had sufficient reasonable suspicion that Harris was ‘armed and dangerous.’ (See doc. 50 at 2-3.) Harris’ attempt to quibble with the video evidence is unavailing, however, as the Magistrate Judge relied principally, not on the recordings, but on Officer Fregeau’s ‘wholly credible testimony that he immediately observed the firearm in Harris’ possession ….’ (Doc. 48 at 7.) Harris does not object to the Magistrate Judge’s credibility determination and, even if he had, that objection would be unavailing. (See doc. 50 at 2-3.)” United States v. Harris, 2021 U.S. Dist. LEXIS 118265 (S.D. Ga. June 24, 2021).*
“Although some of our cases have applied the Fourth Amendment to school official’s use of force, other cases have held that such claims cannot be brought. That divide in our authority is the antithesis of clearly established law supporting the existence of Fourth Amendment claims in this context. As a result, the defendant prevails on his qualified immunity defense.” J.W. v. Paley, 2021 U.S. App. LEXIS 18741 (5th Cir. June 23, 2021).*
Posted inQualified immunity, Standards of review|Comments Off on S.D.Ga.: Attacking dashcam video unavailing where credibility of officer seeing gun wasn’t challenged
A clerk’s affidavit of nonpayment said nothing about willfulness of nonpayment, and there was no showing of an “ability to pay analysis” for probable cause. Writ of prohibition against the contempt arrest is granted. Beck v. Elmore County Magistrate Court, 2021 Ida. LEXIS 110 (June 24, 2021).
“Brown cites Article 1, section 14 of the Indiana Constitution as well, but does not advance a separate argument with respect to the state constitution. Any state constitutional argument is therefore waived. See White v. State, 772 N.E.2d 408, 411 (Ind. 2002) (‘Because the defendant does not argue that the search and seizure provision in the Indiana Constitution requires a different analysis than the federal Fourth Amendment, his state constitutional claim is waived, and we consider only the federal claim.’).” Brown v. State, 2021 Ind. App. LEXIS 206 (June 24, 2021).
“The Fourth Amendment’s prohibition of unreasonable searches and seizures does not forbid a police officer from initiating a brief investigatory stop of a person if the officer has reasonable suspicion to believe that the person is or is about to be engaged in criminal activity. In this case, the issue is whether a police officer had reasonable suspicion to briefly detain appellee, Sherry Tidwell, in order to confirm or dispel an unidentified witness’s assertion that Tidwell was operating a motor vehicle while intoxicated. Based on the totality of the circumstances then confronting the officer, we hold that his investigatory stop of Tidwell was reasonable and thus did not violate the Fourth Amendment to the United States Constitution. We accordingly reverse the judgment of the First District Court of Appeals that upheld the Hamilton County Municipal Court’s order granting Tidwell’s motion to suppress, and we remand this case to the trial court for further proceedings.” State v. Tidwell, 2021-Ohio-2072, 2021 Ohio LEXIS 1229 (June 24, 2021), rev’g 2019-Ohio-4493, 2019 Ohio App. LEXIS 4559 (5th Dist. 2019).
Posted inInformant hearsay, Reasonable suspicion|Comments Off on OH: Unidentified report of def driving under influence justified officer’s stop on totality
There was no reasonable suspicion for defendant’s detention before he fled the officer. The alleged abandonment occurred after the unreasonable seizure, so it was involuntary. United States v. Dudley, 2021 U.S. Dist. LEXIS 117108 (D. Nev. June 23, 2021).
Florida’s probation form requires reasonable suspicion for a probation search, and the government concedes it didn’t have it. Suppressed. United States v. Logan, 2021 U.S. Dist. LEXIS 116959 (S.D. Fla. June 23, 2021).*
There was reasonable suspicion to search defendant’s waistpack when it was stopped. United States v. Gadson, 2021 U.S. Dist. LEXIS 117017 (D. N.J. June 23, 2021).*
Defendant’s motion to suppress was properly denied by the trial court. Defendant’s reliance on when a field test of the product of the search showed only a typographical error as to the date it was done and doesn’t undermine the search. People v. Guichard, 2021 NY Slip Op 04030, 2021 N.Y. App. Div. LEXIS 4118 (2d Dept. June 23, 2021).
There was probable cause shown in the face of the papers for the search warrant in this murder case. People v. Morel, 2021 NY Slip Op 04032, 2021 N.Y. App. Div. LEXIS 4150 (2d Dept. June 23, 2021).*
The trial court properly found that the search warrant did not contain any misleading information because the detective’s references in the affidavit to information gleaned by “officers,” “they,” and “her sister” created a reasonable inference that the information was not obtained by the detective directly and a witness was listed on the warrant. State v. Edwards, 2021 Tenn. Crim. App. LEXIS 281 (June 22, 2021).*
Officers obtained a search warrant for defendant possessing child pornography based on his interest in unclothed children and taking pictures. The district court suppressed, but the good faith exception applies to save the search. The government appealed on both probable cause being shown and good faith. On appeal, only good faith need be decided, and it was objectively reasonable to rely on the warrant. United States v. Caesar, 2021 U.S. App. LEXIS 18692 (3d Cir. June 23, 2021).
“We conclude that, under the totality of the circumstances, defendant was seized at the time that Kendoll asked defendant to consent to the patdown. We discuss the factors that lead us to that conclusion below. We emphasize that, although no single act of the troopers may have constituted a seizure of defendant, we do not view each action or the surrounding circumstances in isolation but analyze the encounter as a whole.” State v. Prouty, 312 Ore. App. 495, 2021 Ore. App. LEXIS 859 (June 23, 2021).*
Defendant lost his motion to suppress in state court over a warrantless entry into his garage. He later sued over the search under § 1983 in federal court. The federal case was precluded by the state denial of the motion to suppress. Fodrey v. City of Rialto, 2021 U.S. App. LEXIS 18700 (9th Cir. June 23, 2021).
It was objectively reasonable to stop defendant because of an open container violation. United States v. Helton, 2021 U.S. Dist. LEXIS 116497 (D. Kan. June 22, 2021).*
Tasing plaintiff in his own home for resisting arrest during an unlawful entry was entitled to qualified immunity. Gerling v. City of Hermann, 2021 U.S. App. LEXIS 18665 (8th Cir. June 23, 2021).*
The Baltimore Police Department’s aerial surveillance program is a search under Carpenter because of the detail it provides and the viewers of the information can go back in time. Leaders of a Beautiful Struggle v. Baltimore Police Department, 2021 U.S. App. LEXIS 18868 (4th Cir. June 24, 2021) (en banc; 8-7):
“Appellant’s expectation of privacy in the hotel room was extinguished once the hotel staff took affirmative steps to evict him on suspicion that he was using illegal drugs in his room in violation of hotel policy. Thus, the police officers’ entry into his room at the request of hotel staff to facilitate the eviction was lawful. Because we conclude that the court of appeals erred in holding otherwise, we reverse.” Tilghman v. State, 2021 Tex. Crim. App. LEXIS 607 (June 23, 2021), rev’g Tilghman v. State, 576 S.W.3d 449 (Tex. App.—Austin 2019).
Contrast:
The officers here were sent to defendant’s room because of hotel management complaining of the smell of marijuana. After one knocked on the door, a woman opened the door. The lead officer’s testimony showed he had half crossed the threshold into the room when he saw defendant’s gun and entered to retrieve it. Suppressed; entry without exigency. Commonwealth v. Martin, 2021 PA Super 128, 2021 Pa. Super. LEXIS 387 (June 23, 2021).
A search warrant for what’s ostensibly a single family dwelling is sufficient to search the entire building, despite the fact that it turned out that there was a renter in one room. The good faith exception applies, too. United States v. Garnes, 2021 U.S. Dist. LEXIS 116491 (E.D. Cal. June 22, 2021) (following United States v. Ayers, 924 F.2d 1468 (9th Cir. 1991)).
Defendant’s statement outside his house after his arrest on a waiver of Miranda was admissible, and, even if not, it was harmless beyond a reasonable doubt based on overwhelming evidence of guilt. United States v. Jackson, 2021 U.S. App. LEXIS 18532 (9th Cir. June 22, 2021).*
“The Fourth Amendment did not prohibit the [prison] library coordinator’s scrutiny of the documents that Matthews wished to print or copy so that she could ensure that those documents conformed to library rules” under Hudson v. Palmer. Matthews v. Hascall, 2021 U.S. App. LEXIS 18527 (9th Cir. June 22, 2021).*
There is no reasonable expectation of privacy in text messages defendant sent to an undercover federal officer posing as a prostitute, despite Montana’s enhanced right of privacy under its state constitution. State v. Staker, 2021 MT 151, 2021 Mont. LEXIS 573 (June 22, 2021):
Posted inArrest or entry on arrest, Emergency / exigency, SCOTUS|Comments Off on SCOTUS: Lange v. California: “Under the Fourth Amendment, pursuit of a fleeing misdemeanor suspect does not always—that is, categorically—justify a warrantless entry into a home.”
Court finds the officers lacked credibility on the claim they could smell marijuana from fruit flavored edibles in sealed packages. United States v. Clark, 2021 U.S. Dist. LEXIS 115872 (S.D. Ill. June 22, 2021):
Successor habeas on ground that audio of dashcam video was muted to conceal a Fourth Amendment violation denied. It doesn’t show actual innocence for 2255(h). In re Jelks, 2021 U.S. App. LEXIS 18552 (6th Cir. June 21, 2021).
Defendant had his “full and fair opportunity” to litigate suppression in state court, so he has no 2254 habeas claim. Phillip v. Floyd, 2021 U.S. App. LEXIS 18544 (6th Cir. June 21, 2021).*
Defendant had opportunity to litigate search before direct appeal. Stone v. Powell rule applies to 2255s as well. Johnston v. United States, 2021 U.S. Dist. LEXIS 116187 (N.D. Ill. June 22, 2021).*
This civil Franks claim fails for lack of materiality; without the challenged information, the search warrant would still have issued. Ross v. James, 2021 U.S. App. LEXIS 18498 (11th Cir. June 22, 2021).*
Posted inFranks doctrine, Issue preclusion|Comments Off on CA6: Successor habeas trying to make search claim a Brady issue fails
"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.
