The state’s justification for inquiries about travel plans isn’t reached on appeal because it wasn’t briefed or even developed below. Instead, the questions about it related only to initial reasonable suspicion. “We conclude that the record could have developed differently had the state’s argument been raised in the trial court. The parties could have elicited testimony from McKaig about his purpose when he asked defendant about his travel plans, a topic that was not explored on this record but which is highly relevant to whether the travel question was reasonably related to the traffic investigation.” State v. Mock, 310 Ore. App. 454, 2021 Ore. App. LEXIS 463 (Apr. 7, 2021).
There was probable cause because the CI here provided detailed information of his personal observations of drugs at defendant’s place, and the CI was corroborated as much as possible by cell phone records. Defendant’s criminal history of extensive drug trafficking and hand-to-hand transactions also provided a showing a nexus. United States v. Hill, 2021 U.S. Dist. LEXIS 67526 (S.D. Ohio Apr. 7, 2021).*
The record doesn’t support the trial court’s finding of consent to a squeeze of a bag that revealed a gun. The officer was reaching for the bag asking for consent. “The government played footage from Denton’s body worn camera (‘BWC’), which corroborated Denton’s testimony up to that point. In the footage, Denton can be heard asking Hawkins, ‘you mind if, you mind if I just squeeze that man?’ Under cross-examination, Denton admitted that, in the video, his hands were moving toward the satchel as he asked for consent to squeeze it. Denton agreed that Hawkins did not verbally respond to his request to search the bag, but he said that Hawkins had nodded his head in consent.” The court also discusses the standard of review of findings of consent to a search. Hawkins v. United States, 2021 D.C. App. LEXIS 88 (Apr. 8, 2021).
“No reasonable jurist could debate the district court’s denial of Patton’s Second Amendment, Fourth Amendment, and subject-matter-jurisdiction claims as barred by the Younger abstention doctrine. Patton has not made a substantial showing that he would be irreparably injured by having to litigate those claims in his state criminal case. See Younger, 401 U.S. at 53.” Patton v. Bonner, 2021 U.S. App. LEXIS 10080 (6th Cir. Apr. 7, 2021).*
Posted inConsent, Issue preclusion, Standards of review|Comments Off on D.C.: Body cam didn’t support trial court finding of consent to feel a bag; it essentially happened as one move as officer asked for consent
Defendant’s claim was that alleged cocaine wrappers found were actually wrappers for peanut butter and jelly sandwiches and that’s a Franks violation. “The only evidence that Defendant has produced to support his contention that the bags contained sandwiches is the affidavit of a convicted felon who was deported to Trinidad and Tobago in August of 2016 and who may have been an unindicted co-conspirator in the Dickson DTO. This is not the kind of ‘reliable statement’ that can overcome a search-warrant affidavit’s presumed validity.” There’s no attempt at showing a knowing falsity. And, setting aside the challenged statements, there still was probable cause. United States v. Badenock, 2021 U.S. Dist. LEXIS 67856 (S.D. Tex. Apr. 7, 2021).
This successive habeas petition is denied because it’s not based on new constitutional law; it’s based on alleged newly discovered evidence of a Fourth Amendment violation which petitioner can’t show was really new. In re Green, 2021 U.S. App. LEXIS 10083 (6th Cir. Apr. 7, 2021).*
Posted inFranks doctrine|Comments Off on S.D.Tex.: Affidavit of convicted felon who may have been conspirator and was deported wasn’t sufficient offer of proof under Franks in face of other evidence
Zooming in on a pole cam video, officers determined that defendant had a blunt in his hand when he was getting in his car. The question is reasonable suspicion, and officers don’t have to exhaust the innocent possibilities before acting on it. United States v. Ford, 2021 U.S. Dist. LEXIS 67519 (S.D. Ohio Apr. 5, 2021).*
Plaintiff’s Fourth Amendment malicious prosecution claim under § 1983 was time barred. Smith v. Mitchell, 2021 U.S. App. LEXIS 10021 (11th Cir. Apr. 7, 2021).*
A dog sniff within the normal time to conduct a basic traffic stop was reasonable, here 19 minutes before the dog arrived and alerted. United States v. Hill, 2021 U.S. Dist. LEXIS 67281 (S.D. Ohio Apr. 7, 2021).*
Defendant’s Fourth Amendment rights were not violated when he was arrested without a warrant with probable cause in a public place. Reaching in defendant’s sweat shirt pocket to retrieve a gun was reasonable. United States v. Kelly-Sizer, 2021 U.S. Dist. LEXIS 67103 (E.D. Pa. Apr. 6, 2021).
Either of the two competing theories of defendant’s lane change violation stop provides reasonable suspicion. Dugar v. State, 2021 Tex. App. LEXIS 2626 (Tex. App. – Beaumont Apr. 6, 2021).*
The trial court denied defendant’s motion to suppress without adequate findings. The case was remanded, and the original judge had retired. The new judge also failed to make the requisite findings. Remanded again. State v. Swain, 2021-NCCOA-101, 2021 N.C. App. LEXIS 128 (Apr. 6, 2021).*
Defendant’s 2255 claim that the government used a cell site simulator prior to Carpenter to capture his unlisted burner phone numbers is saved by the good faith exception. Powell v. United States, 2021 U.S. App. LEXIS 9850 (6th Cir. Apr. 5, 2021).
The issues underlying defendant’s ineffective assistance claim, including his Fourth Amendment claim, was resolved in his direct appeal and is thus denied. In re Hammond, 2021 U.S. App. LEXIS 9942 (11th Cir. Apr. 6, 2021).*
Plaintiff’s resisting arrest justified the use of a Taser. Cloud v. Stone, 2021 U.S. App. LEXIS 9955 (5th Cir. Apr. 6, 2021).*
Plaintiff, an inmate at Corcoran, stated enough to survive screening for his prison strip search case. Jacobs v. CDCR, 2021 U.S. Dist. LEXIS 66813 (E.D. Cal. Apr. 6, 2021):
An AUSA’s request of defense counsel for defendant’s cell phone’s passcode was not a request for consent. It was merely to avoid the delay of decryption. United States v. Mangini, 2021 U.S. Dist. LEXIS 66764 (S.D. N.Y. Apr. 6, 2021):
Plaintiff’s false arrest claim claiming, inter alia, a Fourth Amendment violation, two years into his pending state criminal case was barred by the Younger doctrine. Sweeting v. Garrett, 2021 U.S. Dist. LEXIS 66705 (S.D. Ala. Apr. 6, 2021).
Under Washington’s privacy act, a body wire order was shown reasonably necessary for the CI’s safety. The need for a showing isn’t high, but it needs to show more than just general truisms. State v. Gonzalez, 2021 Wash. App. LEXIS 779 (Apr. 6, 2021).*
The affiant showed probable cause for the search warrant. “Here, there are at least 13 instances between March and late May 2019 which implicated 69 Cutler Street as premises where it was reasonable to assume that evidence of drug deals would be found. The issuing magistrate judge had more than sufficient probable cause to believe that evidence of drug trafficking would be found at 69 Cutler Street.” The good faith exception also applies. United States v. Rodriquez, 2021 U.S. Dist. LEXIS 66504 (D. Mass. Apr. 5, 2021).*
Posted inIssue preclusion, Probable cause|Comments Off on S.D.Ala.: Younger doctrine precludes ptf’s 4A claim over pending state criminal case
Defendant showed standing on the totality to challenge the search of the property where he rented a room. Particularity was shown for the place to be searched. United States v. Dolphay, 2021 U.S. Dist. LEXIS 66415 (D. Mont. Apr. 6, 2021). The court explains the Ninth Circuit’s particularity standard:
The warrantless seizure of defendant’s computer was justified by exigent circumstances that it contained evidence of fraud. United States v. Mays, 2021 U.S. App. LEXIS 9861 (8th Cir. Apr. 6, 2021).
“Because we conclude that the officer’s initial question about the defendant’s itinerary did not alter the fundamental nature of the stop, and that the defendant’s dishonest response, combined with other information known to the officer, created reasonable suspicion that she was involved in illegal activity before he expanded the scope of the stop, we find no violation of the State Constitution.” Nor did it violate the Fourth Amendment. State v. Janvrin, 2021 N.H. LEXIS 56 (Mar. 18, 2021).
The deposition testimony of the officer here leaves a jury question on probable cause for plaintiff’s arrest. The officer doesn’t get qualified immunity here, either. Gatling v. West, 2021 U.S. App. LEXIS 9837 (2d Cir. Apr. 6, 2021).*
Defendant granted consent to search only his son’s files on his computer. The forensic analyst searched the recycle bin, too, and that exceeded the scope of consent. Shared files were not within the scope of consent. State v. Jereczek, 2021 Wisc. App. LEXIS 166 (Apr. 6, 2021).
Summary judgment denied on entry into plaintiff’s home. “[T]here are genuine disputes of material fact as to whether Lofton had even arguable probable cause, or exigent circumstances, justifying his entry into Hardigree’s home.” Hardigree v. Lofton, 2021 U.S. App. LEXIS 9845 (11th Cir. Apr. 6, 2021).*
“Petitioner contends his counsel should have conducted further investigation into particular aspects of the case, including: (1) that Petitioner’s behavior was not consistent with people who possess child pornography; (2) whether his computer was hacked or used by others; and (3) that the task force officer could not have opened the identified file, thereby misleading the magistrate judge and framing Petitioner.” He fails to show ether facts or prejudice. Rees v. United States, 2021 U.S. Dist. LEXIS 66168 (C.D. Ill. Apr. 6, 2021).*
Posted inConsent, Ineffective assistance, Scope of search|Comments Off on WI: Consent to search a computer was limited to def’s son’s user files; forensically searching recycle bin exceeded the scope of consent
Defendant’s motion to unseal the affidavit for the search warrant is denied because of an ongoing investigation it would reveal and because he can’t show a lack of probable cause for the search. United States v. Calleta, 2021 U.S. Dist. LEXIS 66081 (D. Ariz. Apr. 2, 2021). [Which he can’t do without it? “‘That’s some catch, that Catch-22.’ [Yossarian] observed. “It’s the best there is,’ Doc Daneeka agreed.”]
Defendant abandoned his phone in flight from the police. Alternatively, they showed probable cause for the warrant and his Franks offer fails. United States v. Krieger, 2021 U.S. Dist. LEXIS 66003 (W.D. N.Y. Mar. 9, 2021).*
Defendant under surveillance got out and back in his car in less than a minute meeting up with someone in a high crime area known for drug sales. He was clutching his pocket. That was reasonable suspicion. United States v. Green, 2021 U.S. Dist. LEXIS 66123 (N.D. Ill. Apr. 5, 2021).*
Crime Stoppers tip was sufficiently corroborated to show probable cause [under Gates]. United States v. Gaston, 2021 U.S. Dist. LEXIS 65724 (D. Minn. Apr. 5, 2021):
Defendant was stopped on his bicycle for no headlight, and that led to finding an arrest warrant for him. Under Strieff, the legality of the stop becomes almost irrelevant to the search incident for the arrest warrant as attenuated. State v. Stout, 2021-Ohio-1125, 2021 Ohio App. LEXIS 1141 (12th Dist. Apr. 5, 2021).
The police received a tip about defendant and drugs and the officer followed his car. The officer could smell raw marijuana probably coming from his car for that 5-6 minutes. Defendant doesn’t undermine the trial court’s credibility finding of the officer. State v. Alvaranga, 2021-Ohio-1130, 2021 Ohio App. LEXIS 1142 (3d Dist. Apr. 5, 2021).*
The government’s theories justifying defendant’s probation search weren’t briefed and are treated as waived. United States v. Bogard, 2021 U.S. Dist. LEXIS 65479 (D. Mont. Apr. 5, 2021).
Posted inAttenuation, Probable cause, Waiver|Comments Off on OH12: Stop of bicyclist for no light produced arrest warrant; valid under Strieff
A search warrant for drug proceeds properly included jewelry that the officer, in his experience, believed drug traffickers converted cash to. United States v. Thomas, 2021 U.S. Dist. LEXIS 65553 (W.D. Pa. Apr. 5, 2021).
The officer here saw a Crown Royal bag partially sticking out of a flat safe in the back seat area of defendant’s car. Her experience that Crown Royal bags “more often than not” contain drug paraphernalia was a reasonable basis to extend the stop with reasonable suspicion. State v. Cash, 2021 Kan. LEXIS 36 (Apr. 2, 2021).*
A controlled by with a CI was probable cause for defendant’s stop. United States v. Idleman, 2021 U.S. App. LEXIS 9780 (4th Cir. Apr. 5, 2021).
The officer pushing down the plaintiff causing injury was a seizure. “A reasonable officer in Sasse’s position would not have thought it appropriate to shove Martinez so forcefully without first at least requesting that Martinez step back or step away from the door. Considering the three Graham factors, the Court cannot conclude that Sasse’s use of force was objectively reasonable as a matter of law.” “There is sufficient caselaw in the Eighth Circuit that gave Sasse fair warning that shoving a nonviolent, nonthreatening individual such as Martinez to the ground with enough force to break her foot and cause a concussion without first requesting that she step aside or wait to enter the building was unconstitutional.” Martinez v. United States, 2021 U.S. Dist. LEXIS 65465 (W.D. Mo. Mar. 2, 2021).
“Bloxham’s grabbing of Harmon’s wrist was a seizure and even if probable cause was lacking, Harmon does not contend that Office Wright’s warrant application was ‘so lacking in indicia of probable cause as to render official belief in its existence unreasonable.’ Malley, 475 U.S. at 345. Without reaching the issue of whether an unlawful arrest occurred, we affirm the district court’s summary judgment on the ground that it did not err in granting Officers Bloxham and Vail qualified immunity.” Harmon v. City of Pocatello, 2021 U.S. App. LEXIS 9772 (9th Cir. Apr. 5, 2021).*
Plaintiff’s § 1983 claim was tried in federal court resulting in a verdict for the defendants. His state law claims were severed. In state court, the federal verdict forecloses the state claims. Shuler v. City of L.A., 2021 Cal. App. LEXIS 290 (2d Dist. Apr. 5, 2021).*
Posted inIssue preclusion, Seizure|Comments Off on W.D.Mo.: Pushing down the ptf causing injury was a seizure
There is probable cause on the totality of the affidavit. Defendant challenges the lack of order and “slapdash” nature of the showing. Courts don’t grade warrant applications for style, just substance. United States v. Wilson, 2021 U.S. App. LEXIS 9619 (3d Cir. Apr. 2, 2021):
Posted inProbable cause, Standards of review|Comments Off on CA3: There was PC on the totality of the SW affidavit despite its alleged “slapdash” format; courts don’t grade warrant requests except for totality
Involving pre-Carpenter CSLI, the defense had valid strategic reasons to forego a motion to suppress to support the defense arguments at trial. “Because we hold that Thomas’s trial counsel did not perform deficiently because she had a reasonable strategic purpose for withdrawing the motion to suppress, we need not address whether her decision constituted ineffective assistance of counsel related to the merits of the underlying motion.” Thomas v. State, 2021 Ga. LEXIS 134 (Apr. 5, 2021) [see § 60.19; could have been decided on good faith alone, but wasn’t].
Carpenter isn’t retroactive to cases on collateral review. CoA denied. Bowers v. United States, 2021 U.S. App. LEXIS 9700 (11th Cir. Apr. 2, 2021).*
In a civil dispute, defendant can get discovery of plaintiff’s text messages. Her Fourth Amendment and reasonable expectation of privacy argument is unavailing because they don’t apply to private parties. Petty v. Bluegrass Cellular, 2021 U.S. Dist. LEXIS 64853 (W.D. Ky. Apr. 2, 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.
