Officer’s certain knowledge of a syringe in defendant’s pocket defendant lied about after a consensual patdown for weapons justified a search incident. The officer sought a patdown because of his nervousness. State v. Budka, 2021 Ida. App. LEXIS 20 (May 21, 2021).
One who flees could still have been seized by the time he flees. Here, the court finds defendant was seized before he fled. The district court erred in holding that he wasn’t. “We conclude Officer Volcin’s persistent questioning, viewed in the totality of the circumstances, would leave a reasonable person with the view that he was not free to leave. We also conclude Mabry submitted to that show of authority by remaining where he was for a time. Therefore, we reverse the district court’s denial of Mabry’s motion to suppress, vacate Mabry’s conviction, and remand this case for further proceedings consistent with this opinion.” United States v. Mabry, 2021 U.S. App. LEXIS 15145 (D.D. Cir. May 21, 2021). [Watch what you ask for. Is this then escape from an officer? D.C. Code § 22–2601. The remand will be interesting.]
Police had probable cause defendant uploaded child pornography from home. Then he moved. It was reasonable to assume his computers went with him to the new address, so nexus was sufficiently shown for probable cause there. United States v. Kilgore, 2021 U.S. App. LEXIS 15159 (10th Cir. May 21, 2021). [Note: This is based in substantial part on the possessor’s keeping the CP for long periods of time, which means an affidavit is never stale. This won’t apply to other types of searches without applying the actual facts and the government showing nexus with proof or inference.]
The state post-conviction court found no ineffective assistance of counsel for failure to file a meritless motion to suppress, and that’s affirmed under 2254(d). Nettles v. Stange, 2021 U.S. Dist. LEXIS 96905 (E.D. Mo. May 21, 2021).*
TRO denied against electronic search condition imposed on plaintiff. He can’t possibly prevail under Samson. Holston v. Rosa, 2021 U.S. Dist. LEXIS 97147 (E.D. Cal. May 21, 2021).*
The officer could approach defendant’s car to talk to him about his being illegally parked. The officer saw a package of heroin sticking out of defendant’s pocket. That was probable cause under the automobile exception. United States v. Felder, 2021 U.S. Dist. LEXIS 97141 (D.N.J. May 21, 2021).*
Officers pointing their sidearms at a group of men wasn’t necessarily a seizure. At any rate, it was with reasonable suspicion. “Despite Williams’ argument to the contrary …, the officers’ display of their guns, without any physical contact, did not qualify as ‘an application of physical force.’ See United States v. Waterman, 569 F.3d 144, 146 (3d Cir. 2009) (‘While this act [of police officers drawing their guns] definitely constituted a display of force, we conclude that it fell short of the physical force required under Hodari D.’).” Nettles v. Stange, 2021 U.S. Dist. LEXIS 96905 (D.N.J. May 21, 2021).
The court considers the untimely motion to suppress in April 2020, despite the fact defense counsel offered no justification, because of the pandemic and probably inability to meet with clients. [What about the fact it took 13 months to rule on it?] A valid traffic stop occurred. Then defendant had no ID on him. That prolonged the stop. “After he was Mirandized, Williams admitted that he had ‘a little weed’ in his car. His admission was clearly evidence of criminal activity, and probable cause to search the vehicle.” United States v. Williams, 2021 U.S. Dist. LEXIS 96856 (S.D. Ind. May 21, 2021).*
Posted inProbable cause, Seizure|Comments Off on D.N.J.: Officers pointing guns at a group of men wasn’t necessarily a seizure
The request for an evidentiary hearing on a suppression motion based on the mere hope something might turn up is really just speculation and should be denied. United States v. Dfouni, 2021 U.S. App. LEXIS 15091 (3d Cir. May 19, 2021).
At the § 1997e screening phase, plaintiff who might only be able to recover nominal damages still states a claim. Bartleson v. Parker, 2021 U.S. App. LEXIS 14957 (6th Cir. May 19, 2021).
Plaintiff’s claim his jail strip search was “sexually abusive” didn’t state a claim for relief because it was found to still be reasonable. Hunter v. Palmer, 2021 U.S. App. LEXIS 14961 (6th Cir. Mar. 19. 2021).*
2255 petitioner doesn’t get the benefit of Carpenter because it factually and legally didn’t even apply to the case, it was waived by the guilty plea, and it doesn’t apply on collateral review [not to mention good faith]. Graybeal v. United States, 2021 U.S. Dist. LEXIS 96368 (E.D. Tenn. May 21, 2021).*
An electronic search condition for supervised release was not an abuse of discretion where defendant was an admitted “chronic lawbreaker” and not even a sex offender. United States v. Taylor, 2021 U.S. App. LEXIS 15125 (11th Cir. May 21, 2021):
In Arizona, Fourth Amendment claims are decided first, then state constitutional claims. Google+, acting completely on its own, searched defendant’s photos folder stored with there. Moreover, it was only shown to be protecting its private business interests, not aid the police. Assuming without deciding NCMEC (Ackerman) is a government actor, it did not expand the private search. (Same result under state constitution.) State v. Fristoe, 2021 Ariz. App. LEXIS 106 (May 20, 2021).
“An ‘officer’s Fourth Amendment burden of production is to (1) identify the ordinance or statute that he believed had been violated, and (2) provide specific, articulable facts that support an objective determination of whether any officer could have possessed reasonable suspicion of the alleged infraction. As long as both prongs are met, an officer’s subjective understanding of the law at issue would not be relevant to the court’s determination.’ United States v. Delfin-Colina, 464 F.3d 392, 399 (3d Cir. 2006).” The smell of burnt marijuana in the car was reasonable suspicion for further detention. United States v. Saxton-Smith, 2021 U.S. Dist. LEXIS 95842 (W.D. Pa. May 20, 2021).
Once a building is legally condemned, a separate search warrant isn’t required to tear it down. It is then a reasonable seizure. Keene Grp., Inc. v. City of Cincinnati, 2021 U.S. App. LEXIS 15074 (6th Cir. May 20, 2021):
A pretrial detainee at Riker’s Island didn’t have an equal protection right or a reasonable expectation of privacy in his telephone calls from the jail. People v. Jennings, 2021 NY Slip Op 03262, 2021 N.Y. App. Div. LEXIS 3363 (1st Dept. May 20, 2021).
“The Government argues that, although the Officers’ marijuana observations provided Scimia with reasonable suspicion to stop Defendant, even without the marijuana observations, the Officers had reasonable suspicion to stop Defendant. Although it is admittedly a close call, the Court agrees.” United States v. Krubally, 2021 U.S. Dist. LEXIS 95249 (S.D. N.Y. May 19, 2021).*
There was reasonable suspicion in ordering defendant and the occupants out of a van at gunpoint. The defendant driver had a gun in hand when the officers approached the vehicle. United States v. Davis, 2021 U.S. Dist. LEXIS 95725 (N.D. Ohio May 20, 2021).*
There was no justification for officers to pull prescription bottles from the door of his car during a traffic stop and manipulate them. Plain view didn’t support the seizure and search because the incriminating nature wasn’t immediately apparent even on manipulation because the content wasn’t obvious. People v. Alemayehu, 2021 COA 69, 2021 Colo. App. LEXIS 727 (May 20, 2021).
Probable cause was shown on the totality for defendant’s house. Information left out by the officers did not detract from probable cause. United States v. McCoy, 2021 U.S. Dist. LEXIS 95131 (D. Minn. May 19, 2021).*
Defendant contends he did not consent to a search of his cell phone on a stopped vessel. The court, however, finds that there were two instances of consent which is found. United States v. Potter, 2021 U.S. Dist. LEXIS 95194 (D. V.I. May 19. 2021).*
Defendant was stopped for a traffic offense, and the government’s proof showed that he voluntarily consented to a search of the vehicle. United States v. De LaRosa-Castillo, 2021 U.S. Dist. LEXIS 95600 (N.D. Ind. May 20, 2021).*
Posted inConsent, Franks doctrine|Comments Off on CO: Prescription bottles in car door weren’t subject to plain view search
On a matter of first impression, NY’s Third Department concludes that reasonable suspicion is required for a dog sniff of the person, and here there was reasonable suspicion. People v. Butler, 2021 NY Slip Op 03222, 2021 N.Y. App. Div. LEXIS 3323 (3d Dept. May 20, 2021):
WaPo: The latest feature on crime app Citizen raises alarms as it accuses the wrong man of arson by Rachel Lerman & Heather Kelly (“Citizen, a popular app that tracks crimes in cities, offered a $30,000 reward this weekend for information on a man they said was an arson suspect in a Los Angeles wildfire. Los Angeles law enforcement did briefly detain and question the man, but released him and later charged a different suspect. Citizen took down the post and apologized for the accusation — but only after broadcasting his photo to a reported 861,000 viewers.”)
Good faith basis for a stop or arrest?
Posted inSurveillance technology|Comments Off on WaPo: The latest feature on crime app Citizen raises alarms as it accuses the wrong man of arson
CBS19 News: State data shows Black drivers are most pulled over during traffic stops by Macy Moors (“When it comes to African-American drivers, things shift. Black drivers account for 30 percent of traffic stops but only make up 19 percent of the population. ‘My initial reaction is that it was nothing new. As African-Americans, especially males, we’ve known this all the time,’ said Robert Barnette, the NAACP Virginia president. He says data just confirms there’s a problem between the African-American community and police.”)
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WaPo: Giuliani’s legal profession does not shield him from seizure of electronics, prosecutors say by Shayna Jacobs (“Rudolph W. Giuliani, the onetime personal attorney to former president Donald Trump, cannot claim his profession should have shielded him from the search warrant for electronics executed at his home and office last month, federal prosecutors argued in a filing unsealed Thursday evening.”)
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WaPo: Police told a man a container in his car tested positive for drugs. It was his daughter’s ashes. By Andrea Salcedo (“Dartavius Barnes sat handcuffed inside a squad car in Springfield, Ill., looking confused as police told him they’d found a container in the center console of his car that tested positive for meth or ecstasy. … Barnes has filed a federal lawsuit alleging officers with the Springfield Police Department unlawfully took the sealed urn containing his daughter’s remains, opened it without his consent, and spilled some of the ashes while testing for drugs. Roughly 47 minutes of body-camera footage of the encounter was published by WICS and WRSP last week.”)
Posted inUncategorized|Comments Off on WaPo: Police told a man a container in his car tested positive for drugs. It was his daughter’s ashes.
Social workers are subject to the Fourth Amendment. Here, they used a court order to enter plaintiff’s home. The order wasn’t clear on what information that brought it about or that it was particular. Nevertheless, the social workers get qualified immunity. “Because the presence of the court order meaningfully distinguishes this case from Andrews, a reasonable social worker in the position of the defendants would not have understood that he was violating the Clarks’ Fourth Amendment rights. Indeed, this case represents precisely the type of haziness that Andrews alluded to in this area of law.” Clark v. Stone, 2021 U.S. App. LEXIS 14921 (6th Cir. May 19, 2021).*
Defendant’s CSLI argument isn’t preserved, and defense counsel wasn’t ineffective for not anticipating Carpenter. People v. Cunningham, 2021 NY Slip Op 03195, 2021 N.Y. App. Div. LEXIS 3269 (2d Dept. May 19, 2021).*
The consenter had control over the entire premises defendant was visiting, and that included the bedroom he was staying in. It was reasonable for the officers to believe he had control over the entire premises. Moreover, defendant didn’t object to the search of the room he was in. United States v. Peoples, 2021 U.S. Dist. LEXIS 94928 (D. N.J. May 19, 2021).
Defense counsel wasn’t ineffective for not challenging the affidavit for the warrant for his cell phone because it was not overbroad and was confined to communications about drug trafficking which were expected to be found. Alvarez-Maldonado v. State, 2021 Ga. App. LEXIS 226 (May 19, 2021).*
The person giving consent had the requisite degree of authority. He was also a member of the NYPD who wanted to cooperate. People v. Clark, 2021 NY Slip Op 03192, 2021 N.Y. App. Div. LEXIS 3267 (2d Dept. May 19, 2021).*
Defendant’s cell phone was seized in April 2017 but not finally searched until April 2019. This was still reasonable under Rule 41. United States v. Dixon, 2021 U.S. Dist. LEXIS 95041 (N.D. Ga. Apr. 15, 2021):
Partially lifting a curtain in jail to observe defendant in the bathroom was not a violation of his reasonable expectation of privacy under the State Constitution nor the Fourth Amendment. State v. Taplin, 311 Or. App. 542, 2021 Ore. App. LEXIS 665 (May 19, 2021).
It took an hour for defendant to arrive at the ER after his accident. Officers considered him a flight risk, and there was no downtime found where the officers could have applied for a search warrant for his BAC. “That evidence adequately supports the trial court’s findings, as set out in its letter opinion, about the need for prompt blood draws and the additional delay that would have been caused if Hargis had applied for and obtained a search warrant before the draws occurred. Under Perryman and Mitchell, those circumstances created an exigency of sufficient magnitude to justify the warrantless blood draws under the Fourth Amendment.” State v. Stephens, 311 Or. App. 588, 2021 Ore. App. LEXIS 659 (May 19, 2021).
A search of a CHP’s private cell phone for law enforcement work product was on the broad waiver plaintiff signed. Quon’s language isn’t limited to work phones only. Therefore, the CHP officers have qualified immunity. Larios v. Lunardi, 2021 U.S. App. LEXIS 14911 (9th Cir. May 19, 2021).
A five year old boy found wandering at 2:30 am in an apartment building parking lot was exigency for the police to further open defendant’s partially open door when the apartment was found. United States v. Shorter, 2021 U.S. Dist. LEXIS 94755 (N.D. Ohio May 19, 2021).
Private parties stumbling on child pornography on defendant’s computer weren’t government agents when they turned it over to the police. The police got search warrants. The PC for that was the report of one of the inadvertent private searchers as to what he saw. United States v. Castaneda, 2021 U.S. App. LEXIS 14839 (11th Cir. May 19, 2021).
Defendant’s second motion to suppress included a claim the CI was under the influence of methamphetamine when he reported to the police so he lacks credibility.” This is a four-corners challenge. “Lee’s statement, newly proffered almost a year after the execution of the search warrant, that he was under the influence of methamphetamine when he was interviewed by federal agents is therefore irrelevant. The search warrant affidavit does not allude to Lee being under the influence of methamphetamine and it is not even established that such information was known to the agents who interviewed him. Further, the Court notes that Lee was lucid enough to provide specific details to the agents, including precise quantities of methamphetamine purchased from a co-defendant and the prices paid thereof.” United States v. Solomon, 2021 U.S. Dist. LEXIS 94692 (W.D. Tenn. May 19, 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.
