Defendant was accused of DUI and aggravated assault, and the officer decided that the additional complexity of investigating the assault charge made a warrantless blood draw exigent. It didn’t matter that the state charged him with the assault two months later. Commonwealth v. Hand, 2021 PA Super 113, 2021 Pa. Super. LEXIS 347 (May 28, 2021).
Defendant’s second frisk was not justified by reasonable suspicion after the first one produced nothing. He was actually armed but it wasn’t found on the first try. State v. Bui-Cornethan, 2021 UT App 56, 2021 Utah App. LEXIS 57 (May 27, 2021).*
Both sides present reasonable arguments on whether defendant’s stop before crossing a crosswalk in an apartment building complex, so no suppression under Heien. United States v. Stevenson, 2021 U.S. Dist. LEXIS 101111 (N.D. Ohio May 27, 2021).*
Plaintiff failed to state a claim for a prisoner body cavity search where it was more a reasonable strip search with no cavity search. Board v. Radtke, 2021 U.S. App. LEXIS 16100 (6th Cir. May 27, 2021).*
The DA declined to prosecutor the plaintiff because of a Franks violation in the affidavit for the search warrant. Plaintiff sued, and qualified immunity is found not inapplicable. Dahlin v. Frieborn, 2021 U.S. App. LEXIS 16077 (9th Cir. May 28, 2021).
The grassy area between two houses wasn’t on the curtilage of defendant’s place. It was also out in the open visible to passersby. All four of the Dunn factors weigh against curtilage here. United States v. Kelly, 2021 U.S. Dist. LEXIS 100794 (D. Idaho May 25, 2021).
There were two separate search warrants for defendant’s property, both based on the same showing of probable cause. The first was valid because it was based on probable cause, so that made the second valid, too, and it is not the fruit of the poisonous tree. United States v. Bibbs, 2021 U.S. Dist. LEXIS 100944 (E.D. Tenn. May 28, 2021),* R&R 2021 U.S. Dist. LEXIS 101478 (E.D. Tenn. Apr. 12, 2021).*
Inevitable discovery also supports the consent search of defendant’s cell phone obtained at the Sarita, Texas checkpoint. The officers had probable cause and told him they’d get a search warrant and he consented instead. The matter was clearly under active investigation. United States v. Reyes-Herrera, 2021 U.S. Dist. LEXIS 101416 (S.D. Tex. May 28, 2021).*
Defendant’s objection to the R&R was general and pointed out no particular error, and thus there was no clear error. United States v. Latourell, 2021 U.S. Dist. LEXIS 101555 (D. Minn. May 28, 2021).*
Plaintiff’s Tasing during an apparent psychotic break when police were called a second time was objectively reasonable. Estate of Erwin v. Greene County, 2021 U.S. App. LEXIS 16102 (6th Cir. May 26, 2021).*
Directing defendant during a traffic stop to get out of the car and stand on the sidewalk was a detention, but it was reasonable. State v. Hampton, 2021-Ohio-1834, 2021 Ohio App. LEXIS 1787 (2d Dist. May 28, 2021).*
“The undersigned believes, as he originally did when reviewing Smith’s affidavit and signing the search warrant for 45 Southview Terrace, that the information contained in Smith’s affidavit demonstrated a ‘fair probability that contraband or evidence of a crime’ would be found at 45 Southview Terrace. Gates, 462 U.S. at 238. While Defendant focusses only on the paragraphs contained in Smith’s affidavit related to the search of 45 Southview Terrace, the Court is permitted to consider the entirety of Smith’s application when determining whether probable cause existed to execute a search warrant for that premises. Smith’s affidavit, which was 171 pages in length, containing 454 paragraphs, provided a vast amount of detail regarding the trafficking activities of those involved in this drug ring. This included, in Smith’s opinion, certain drug activities of Budd, who was directly linked to 45 Southview Terrace by his short visit to that premises on April 15, which Smith believed was for the purpose of engaging in a drug transaction.” The good faith exception would also apply. United States v. Donaldson, 2021 U.S. Dist. LEXIS 100761 (W.D. N.Y. Apr. 1, 2021).*
Defendant didn’t show standing in a rural tract of land owned and occupied by another. Besides, the person with the power to consent did. United States v. Woody, 2021 U.S. Dist. LEXIS 100609 (W.D. Mo. Apr. 29, 2021).*
Posted inProbable cause|Comments Off on W.D.N.Y.: 171 page affidavit for SW with 454 paragraphs showed a fair probability evidence would be found
The officer’s reference to “criminal history” in a warrant affidavit doesn’t necessarily mean convictions. Therefore, the court finds no Franks violation. Even striking that reference leaves probable cause. United States v. Woody, 2021 U.S. Dist. LEXIS 100605 (W.D. Mo. Apr. 21, 2021).
When dispatch reported that the LPN on defendant’s vehicle returned to a different vehicle, there was reasonable suspicion for a stop. The stop wasn’t unreasonably extended for use of a drug dog. United States v. Shepard, 2021 U.S. Dist. LEXIS 100405 (E.D. N.C. May 27, 2021).*
Defendant’s stop was reasonable under the community caretaking function. In addition: “Lastly, Officer Miranda’s decision to intervene was not ‘a mere subterfuge for investigation’ of a crime, as he credibly testified that by the time he detained Wetmore, any concerns about a potential impaired driver had left his mind.” United States v. Wetmore, 2021 U.S. Dist. LEXIS 100985 (D. N.H. May 28, 2021).*
There was reasonable suspicion for defendant’s stop. “But the touchstone of the Fourth Amendment is reasonableness, not perfection. See Heien v. North Carolina, 574 U.S. 54, 60-61, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014). The facts reported by the caller and those observed on scene, though not an exact match, were similar enough for the officer reasonably to believe that Moberly was the suspect who the caller had said was potentially armed: the gray sweatshirt was dark; Moberly was the only person onsite with dreadlocks; and the color, make, and model of the Buick closely resembled a silver Oldsmobile.” United States v. Moberly, 2021 U.S. App. LEXIS 15987 (6th Cir. May 27, 2021).*
A prison inmate has no reasonable expectation of privacy in his medical information in prison. Here, he made a due process informational privacy claim for a prison medical person negligently revealing his HIV status within earshot of other inmates. Payne v. Taslimi, 2021 U.S. App. LEXIS 15972 (4th Cir. May 27, 2021).
Defendant had standing to challenge the search of his hotel room, but he did not have any reasonable expectation of privacy in a stolen laptop he possessed. If the entry into the hotel room is unreasonable, the seizure of the laptop would be, too. United States v. Polequaptewa, 2021 U.S. App. LEXIS 15742 (9th Cir. May 26, 2021).
“Beginning with preservation, defendant has always maintained that she was unlawfully seized. We agree with the state, however, that the particular claim of error that she raises on appeal—that the police unlawfully expanded the scope of the traffic stop, even if they did not unlawfully extend its duration—is unpreserved.” State v. McIntyre, 311 Ore. App. 726, 2021 Ore. App. LEXIS 704 (May 26, 2021).
When police raided defendant’s house, they asked who resided in what room. The answer was not “pedigree information.” That link to child pornography on a computer in the room is suppressed. People v. Rottela, 2021 NY Slip Op 03337, 2021 N.Y. App. Div. LEXIS 3408 (2d Dept. May 26, 2021).
The warrantless entry into defendant’s house and body cam recording of him violated the Fourth Amendment. The other evidence, however, was overwhelming, so was harmless. United States v. Holiday, 2021 U.S. App. LEXIS 15884 (9th Cir. May 27, 2021).
Where the search warrant was arguably overbroad on its face, it was saved by the particularity of the two incorporated attachments. The search was properly limited, whether the attachments were all there or not at the time of execution. United States v. Nolan, 2021 U.S. App. LEXIS 15765 (10th Cir. May 26, 2021).
Defendant didn’t consent to a search of her hotel room when the police picked her up elsewhere and brought her back questioning her about her cell phone they wanted to search. State v. Yaeger, 311 Ore. App. 626, 2021 Ore. App. LEXIS 696 (May 26, 2021).
While generally subject to disclosure, search warrant materials here remain sealed for the time being because the investigation has not been disclosed. In re L.A. Times Communications, LLC, 2021 U.S. Dist. LEXIS 99766 (C.D. Cal. May 26, 2021).
Disputed facts on plaintiff’s aggression toward the officer who allegedly used excessive force precluded summary judgment. Banks v. Hawkins, 2021 U.S. App. LEXIS 15860 (8th Cir. May 27, 2021).*
Prolonged use of a Taser wasn’t unreasonable here. Plaintiff’s verdict for $425,000 for being unreasonably dropped on his face is affirmed. Masters v. City of Independence, 2021 U.S. App. LEXIS 15861 (8th Cir. May 27, 2021).*
Posted inExcessive force, Warrant requirement|Comments Off on C.D.Cal.: SW materials remain sealed because investigation is “undisclosed”
Monitoring a lawfully placed GPS device on a car is not a separate search. It is lawful under Knotts, well before CSLI. United States v. Howard, 2021 U.S. App. LEXIS 15856 (11th Cir. May 27, 2021).
The affidavit for the warrant here clearly showed probable cause to search the apartment. “Thus, Defendant’s attempt to counter that information has no bearing on whether the search warrant was supported by probable cause.” United States v. Donaldson, 2021 U.S. Dist. LEXIS 99586 (W.D. N.Y. May 26, 2021).*
“While the victim may have been uncooperative, the victim was not confidential, unknown or anonymous.” A crime victim’s veracity isn’t treated the same as a CI. United States v. Berry, 2021 U.S. Dist. LEXIS 99601 (M.D. Ala. May 26, 2021).
Just because a motorist can be ordered out of the car, that doesn’t enable the officer to open the door for him. “As explained above, however, Trooper Miller’s stated purpose included an investigatory motive—verifying whether ‘something’ had been concealed—and his officer safety rationale is unsupported by the evidence. Accordingly, this Court finds the Ninth Circuit’s reasoning in Ngumezi to be persuasive.” However, “Because Defendant has not demonstrated a causal nexus between the illegal search and his subsequent consent, the firearm will not be suppressed.” There otherwise was reasonable suspicion to extend the stop. The door opening was harmless. United States v. Jones, 2021 U.S. Dist. LEXIS 99998 (E.D. Mich. May 27, 2021).
“[O]fficers may consider hearsay when determining probable cause.” United States v. Wright, 2021 U.S. Dist. LEXIS 99866 (S.D. Ga. May 7, 2021).
Reference to a “criminal history” was not misleading under Franks. “Case law furthermore indicates that a ‘criminal history’ may include arrests. United States v. Stevens, 530 F.3d 714, 719 (8th Cir. 2008). Therefore, the Court finds that there was no false statement in the warrant affidavit, and Defendant cannot satisfy the first prong of Franks.” Even without the statement, there’s still probable cause. United States v. Woody, 2021 U.S. Dist. LEXIS 99985 (W.D. Mo. May 26, 2021).
“Defendant accurately points out that Officer Delk failed to include in his affidavit details about the possibility of retaliatory gang violence and Defendant’s presence at the Merriweather house. … But the Court should not engage in ‘line-by-line scrutiny of the warrant application’s affidavit.’ United States v. Williams, 544 F.3d 683, 686 (6th Cir. 2008). The affidavit should be judged ‘on the adequacy of what it does contain, not on what it lacks, or what a critic might say should have been added.’ United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000).” United States v. Presley, 2021 U.S. Dist. LEXIS 99411 (S.D. Ohio May 26, 2021).
“The above information was more than sufficient to establish probable cause to search 1427 W. 84th Street for illegal drugs. In an attempt to defeat this conclusion, Jenkins attempts to remove the individual facts provided by McNamara and examine them without any additional context.” No; it must be the totality. United States v. Jenkins, 2021 U.S. Dist. LEXIS 99346 (N.D. Ohio May 26, 2021).
Alleged omissions in the search warrant for defendant’s iCloud account don’t undermine the probable cause. The omissions were directed to credibility of CIs but weren’t materially helpful on that question. Moreover, that person’s reports cannot be viewed in isolation. United States v. Ray, 2021 U.S. Dist. LEXIS 99789 (S.D. N.Y. May 26, 2021).*
Posted inProbable cause|Comments Off on In showing PC for a SW, context of the whole is everything
Posted inStrip search|Comments Off on Reason: Baton Rouge Cops Strip-Searched a Minor During a Traffic Stop and Entered a Family’s Home Without a Warrant.
At least for standing, “the burden of proof for a motion to suppress is on the party seeking to suppress the evidence. United States v. Dickerson, 655 F.2d 559, 561 (4th Cir. 1981).” United States v. Anderson, 2021 U.S. Dist. LEXIS 99022 (N.D. W. Va. Apr. 14, 2021). As to standing yes; as to everything else, no. A warrantless search is presumptively invalid. See, e.g., McDonald v. United States, 335 U.S. 451, 456 (1948); United States v. Jeffers, 342 U.S. 48, 51 (1951). When the government seeks to introduce evidence that was seized during a warrantless search, it bears the burden of showing an exception from the warrant requirement and that its conduct fell within the bounds of an exception to the warrant requirement. Mincey v. Arizona, 437 U.S. 385, 390-91 (1978). If this case is limited to standing, it might be right. Defendant has to show standing, and the court holds he failed.
The stop was based on a traffic offense, and reasonable suspicion developed after. State v. Ouverson, 2021 Iowa App. LEXIS 428 (May 26, 2021).*
Posted inBurden of proof, Standing|Comments Off on N.D.W.Va.: Def has burden (at least) on standing
The probation or parole search law and reasonableness is a Fourth Amendment question but it’s shaped by state law on how those searches are permitted as a condition of release. This one was reasonable. United States v. Beechler, 2021 U.S. Dist. LEXIS 98635 (S.D. Ind. May 25, 2021).
Defendant’s traffic violation was justification for his stop. He wasn’t seized, however, until after he crashed his car in flight. State v. Ganaway, 2021 Mo. App. LEXIS 567 (May 25, 2021).
“The totality of the circumstances shown by the facts stated in the search warrant affidavit provided a substantial basis for the magistrate to conclude there was a fair probability heroin would be found in Soto’s residence. Both an informant and police surveillance established Soto and Maldonado were dealing heroin from vehicles. Soto and Maldonado were observed on multiple occasions leaving the residence, getting into one of the several vehicles listed in the affidavit, and driving to a location where they made a ‘drop.’ Officers confirmed [with] … controlled buys and by contacting the other party to the transaction after observing a drop. Soto took steps to conceal where he lived, and he lied to officers about his address when he was arrested. The magistrate could have reasonably inferred from these facts that it was fairly probable Soto kept heroin in his residence. Under our highly deferential review, we hold the facts provided in the search warrant affidavit, along with the reasonable inferences that could be drawn from them, were sufficient to establish probable cause.” Soto v. State, 2021 Tex. App. LEXIS 4095 (Tex. App. – Austin May 26, 2021).*
Officers don’t need reasonable suspicion to approach a person for a potential consensual encounter. State v. Howard, 2021-Ohio-1792, 2021 Ohio App. LEXIS 1734 (10th Dist. May 25, 2021).
Defendant’s Facebook Live posting of him holding an AK-47 and smoking marijuana in a car while a convicted felon was reasonable suspicion for his stop. United States v. Perry, 2021 U.S. Dist. LEXIS 98540 (E.D. Mich. May 25, 2021).*
The CI had a lengthy track record, his name was disclosed to the issuing magistrate, and he had detailed information about a drug deal. Under “the totality of the circumstances, including the timing of the traffic stop, proximity of the stop to the identified address, and nature of what officers found in the course of the stop (methamphetamine in packaging and an amount matching the Informant’s description of what he acquired at Defendant’s residence, used syringes, and two passengers requiring medical attention related to their recent drug use), the issuing judge had a ‘substantial basis’ with which to make a ‘commonsense, practical’ determination that there was probable cause to support the search.” United States v. Gamble, 2021 U.S. Dist. LEXIS 98662 (E.D. Ky. May 25, 2021).*
“[T]he disclosure of the plaintiffs’ medical records to law enforcement officers for the purpose of investigating Dr. Pompy’s allegedly illegal activities did not violate their Fourth Amendment rights or their constitutional right to privacy.” Micks-Harm v. Nichols, 2021 U.S. App. LEXIS 15487 (6th Cir. May 24, 2021).
There was reasonable suspicion for defendant’s stop and patdown when he was encountered, smelled of marijuana, kept his hands in his pockets, and backed away from the officer, creating the impression in the officer that flight was imminent and that defendant was likely a drug dealer. State v. Byrd, 2021 Tenn. Crim. App. LEXIS 228 (May 24, 2021).*
Carpenter is not retroactive on collateral relief. State v. Taylor, 2021-Ohio-1745, 2021 Ohio App. LEXIS 1692 (2d Dist. May 21, 2021).*
Defendant’s way overly tinted windows was reasonable suspicion for his stop. The officer couldn’t see into the car at all. State v. Hubbard, 2021-Ohio-1740, 2021 Ohio App. LEXIS 1691 (2d Dist. May 21, 2021).*
The impeachment exception to the exclusionary rule does not bar truthful testimony under the right to present a defense. The trial court has to tailor working around suppressed evidence to enable the defendant to testify truthfully, albeit incompletely because of the suppressed evidence. People v. Johnson, 2021 CO 35, 2021 Colo. LEXIS 366 (May 24, 2021):
Posted inUncategorized|Comments Off on CO: Impeachment exception to exclusionary rule permits defendant to testify truthfully without opening door to suppressed evidence
Oregon Public Broadcasting: Police in Oregon are searching cellphones daily and straining civil rights by Jonathan Levinson (“‘The police showed up with search warrants and the magistrate looked at it and said, ‘No, this is not tailored enough. Think about how much data is on this phone. Go back and do it again,’ said Michael Price, senior litigation counsel for the Fourth Amendment Center at the National Association for Criminal Defense Lawyers. ‘It kicked off the idea that this is something that defense lawyers should be challenging.'”)
Posted inUncategorized|Comments Off on OPB: Police in Oregon are searching cellphones daily and straining civil rights
NBC (KARK): Madison County K-9 collapses during drug search; 3 arrested by Heath Higgs (“Three people were arrested on multiple charges in Madison County on Sunday after a traffic stop that resulted in the apparent drug overdose of a police K-9. According to a press release from Madison County Sheriff’s Office (MCSO), the K-9 officer, named Kandy, collapsed during a vehicle sniff after having a “severe reaction presumably to something she had encountered.”)
Posted inDog sniff|Comments Off on NBC (KARK): Madison County K-9 collapses during drug search; 3 arrested
"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.
