Defendant repeatedly asked for a search warrant when the officers sought consent, so there was no consent. He was present and objecting, and they couldn’t look to another to provide consent. “Considering the agents’ repeated representations, the Court cannot expect a lay person such as defendant or Mrs. Laboy to eloquently challenge the agents’ assertions on legal requirements or standards. Defendant, in this Court’s view, did enough to object when he repeated his request for a search warrant even after the agents manifested their understanding that they could bypass his request with Ms. Laboy’s consent. Defendant did not remain silent in an acquiescence state, instead he voiced his request for a search warrant over and over after the agents’, unilaterally decided Ms. Laboy’s consent would suffice.” United States v. Bernardy-Laboy, 2021 U.S. Dist. LEXIS 65006 (D.P.R. Mar. 31, 2021).
The omissions from the affidavit in support of the warrant don’t rise to the level needed to show that the warrant wouldn’t have issued if they were included. United States v. Campbell, 2021 U.S. App. LEXIS 9666 (4th Cir. Apr. 2, 2021).*
Posted inConsent, Franks doctrine|Comments Off on D.P.R.: When def asks for a SW and refuses consent, officers can’t just ask others
“Measuring the facts of this case against the above factors, Deputy Ward acted reasonably when he used force against Duncan after she did not obey his orders to get on the ground. Even accepting as true that Duncan did not hear Deputy Ward, nothing in the record indicates that Deputy Ward knew that. See White, 137 S. Ct. at 550 (‘[T]he Court considers only the facts that were knowable to the defendant officers.’). Acting under a reasonable-but-mistaken belief that Duncan had heard his instruction after Deputy Ward gave it three times, Deputy Ward was not required to ‘wait and hope for the best’ before making the split-second decision to tase Duncan.” Duncan v. Wade, 2021 U.S. App. LEXIS 9657 (11th Cir. Apr. 2, 2021).
Defendant’s car was inventoried, and the police overlooked $10,000 in cash hidden there. After defendant talked about it on a recorded jail call, officers got a search warrant for the car and found it. As for the evidence found from the inventory, the inventory was valid and the evidence obtained was admissible. United States v. Sylvester, 2021 U.S. App. LEXIS 9660 (1st Cir. Apr. 2, 2021).*
Posted inExcessive force, Inventory, Qualified immunity|Comments Off on CA11: Tasing someone ignoring three commands to get on the ground was reasonable for QI purposes
Officers stated an improper lane change as their basis for a stop, but it might not have been illegal under Nebraska law. However, they already had reason to believe the registration on the vehicle was lapsed, and that’s a proper basis for the stop no matter what they said. The passenger refused to identify himself, so a fingerprint reader and a drug dog were called for. Affirmed. United States v. Hanel, 2021 U.S. App. LEXIS 9627 (8th Cir. Apr. 2, 2021).
There was ample probable cause for the search warrant here, and, in any event, the good faith exception applies. United States v. Cawthorn, 2021 U.S. Dist. LEXIS 64461 (D. Md. Apr. 1, 2021).*
Posted inAttenuation, Good faith exception|Comments Off on CA8: While the stated reason for the stop was maybe legally erroneous, there was a valid unstated alternative basis
Posted inSurveillance technology|Comments Off on Virginian Pilot: Virginia State Police admit — after repeated denials — that they used controversial facial recognition app
The search warrant for a blood draw said it had to be within 3 hours [a statutory artifact] and as soon as possible, but it took 5. The trial court found it was executed as soon as possible, and that’s affirmed. State v. Moore, 2021-Ohio-1114, 2021 Ohio App. LEXIS 1129 (2d Dist. Apr. 2, 2021).*
Officers approached defendant in a parking lot with his car with guns drawn but he sped away. He wasn’t seized under Hodari D. After that, they had probable cause for a stop and search. United States v. Flores-Lagonas, 2021 U.S. App. LEXIS 9626 (8th Cir. Apr. 2, 2021).*
A jury needs to decide whether this officer’s use of deadly force on a suicidal suspect was reasonable. it was “clearly established — and possibly even obvious — that an officer violates the Fourth Amendment if he shoots an unarmed, incapacitated suspect who is moving away from everyone present at the scene.” “The Fourth Amendment turns on reasonableness. And ‘[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.’ This allowance is particularly understandable when police officers encounter suicidal suspects. At some point, however, and even in the most difficult circumstances, the reasonableness rope ends. Here, the district court decided a jury should determine whether it ended after Officer Harvel’s first shot. We agree and therefore affirm the district court’s denial of summary judgment.” Roque v. Harvel, 2021 U.S. App. LEXIS 9547 (5th Cir. Apr. 1, 2021).*
Plaintiff sued over a state court seizure order of records of a bail bond business, but he fails to state a claim under § 1983 because none of the defendants sued applied for the supposed invalid order. His proposed amended complaint also fails to state a claim under qualified immunity and leave to amend is denied. McClain v. Trendel, 2021 U.S. Dist. LEXIS 63828 (M.D. N.C. Apr. 1, 2021).* [Sounds also like Younger would bar relief.]
Defense counsel’s strategic decisions about to argue a suppression motion is entitled to nearly total deference. Brown v. United States, 2021 U.S. Dist. LEXIS 63948 (S.D. N.Y. Apr. 1, 2021).
Petitioner’s 2255 claim is based on defense counsel’s not raising an argument what was rejected two years later by the court of appeals. Therefore, defense counsel wouldn’t be ineffective or the good faith exception would apply. Yang v. United States, 2021 U.S. Dist. LEXIS 64126 (M.D. N.C. Apr. 1, 2021).*
The officer had reasonable suspicion defendant was a material witness to a crime to be stopped to inquire. State v. Lira, 310 Ore. App. 237, 2021 Ore. App. LEXIS 433 (Mar. 31, 2021).*
Posted inGood faith exception, Reasonable suspicion|Comments Off on S.D.N.Y.: Def counsel’s strategic decisions about how to argue a suppress issue is entitled to deference
The search warrant for defendant’s cell phone permitted officers to search for location information, texts, and calls around the time of the murder. It also permitted a search for evidence of attempted murder. Officers found a picture of a gun on the phone that was similar to the gun found discarded at the scene. This part of the search was general, considering the weighty privacy interests in a cell phone as a repository of personal information, and the picture should have been suppressed. The plain view doctrine doesn’t readily apply to the contents of cell phones. State v. Bock, 310 Ore. App. 329, 2021 Ore. App. LEXIS 426 (Mar. 31, 2021):
Defense counsel wasn’t ineffective for not challenging the tracking warrant in defendant’s case based on the fact the officer who got it was fired for falsifying other tracking orders. “Bettis alleges that his counsel was ineffective by failing to challenge the tracking warrant. But the tracking warrant and the underlying affidavit are not facially defective, nor does Bettis credibly identify a specific defect in the tracking warrant or the underlying affidavit that his counsel failed to challenge.” A second search issue was defense counsel’s failure to challenge the probable cause for search of his rental vehicle. The dispute in the facts was thoroughly explored in the suppression hearing and it doesn’t undermine materiality of the facts in the affidavit. United States v. Bettis, 2021 U.S. Dist. LEXIS 63986 (D. Minn. Apr. 1, 2021).*
2254 petitioner convicted of murder claimed defense counsel was ineffective for not challenging the probable cause for the search warrant for the gun he buried on his property on the ground it should have been argued he wasn’t the aggressor. Defense counsel’s decision not to was strategic, and the state court’s finding on that wasn’t an unreasonable application of constitutional law. White v. Ames, 2021 U.S. Dist. LEXIS 63796 (S.D. W.Va. Feb. 9, 2021).* [Whether he was the aggressor or not, that wouldn’t be a defense to issuance of a search warrant.]
Posted inIneffective assistance, Unreasonable application / § 2254(d)|Comments Off on D.Minn.: Because tracking order affiant was fired for falsifying other tracking requests doesn’t mean this one was false when def can’t show anything
When the question of nexus of probable cause of a crime to a defendant’s home is close, the good faith exception provides the answer. United States v. Reed, 2021 U.S. App. LEXIS 9526 (6th Cir. Apr. 1, 2021):
Defendant’s mid-trial suppression motion was untimely despite the defense claim that this was a second search he wasn’t aware of until it came up at trial. United States v. Elcock, 2021 U.S. App. LEXIS 9503 (3d Cir. Apr. 1, 2021).
Defendant was sitting in his car on a Hampton Inn parking lot and was suspiciously loitering as far as hotel management was concerned, so they called the police. When the police arrived, defendant left and the officer followed. Defendant then fled in a high speed chase. Defense counsel wasn’t ineffective for not challenging the officer’s just showing up. [As if this is justification for his flight.] Moreover, “In the instant appeal, Morrison does not even mention Terry v. Ohio, nor does he discuss or argue that the officer’s actions are violative of the “reasonable suspicion” standard for initiating a Terry stop.” Morrison v. State, 2021 Mo. App. LEXIS 424 (Mar. 30, 2021).
A driver’s tip was sufficiently corroborated to be reasonable suspicion. At defendant’s stop, “Demeanor counts for a lot.” United States v. Martinez, 2021 U.S. App. LEXIS 9480 (11th Cir. Apr. 1, 2021):
WaPo: How America’s surveillance networks helped the FBI catch the Capitol mob by Drew Harwell and Craig Timberg (“Federal documents detailing the attacks at the U.S. Capitol show a mix of FBI techniques, from license plate readers to facial recognition, that helped identify rioters. Digital rights activists say the invasive technology can infringe on our privacy.”):
CSLI data obtained 11 years before Carpenter was obtained in good faith at the time and would not be suppressed. People v. Potts, 2021 IL App (1st) 161219, 2021 Ill. App. LEXIS 166 (Mar. 31, 2021).
Defense counsel was not ineffective in not challenging a search warrant premised on a man in a house shooting a gun from it. The entire issue revolved around whether defendant “barricaded” himself inside and what that meant. He wasn’t answering the door. State v. Struckman, 2021-Ohio-1043, 2021 Ohio App. LEXIS 1075 (1st Dist. Mar. 31, 2021).*
Defendant was involved in a DUI traffic accident with a fatality in the Creek Nation in Oklahoma. He was charged originally in state court and then indicted federally after McGirt v. Oklahoma. The DUI blood draw wasn’t unreasonable and was in good faith at the time based on directions from the DA and Chief of Police. United States v. Elliott, 2021 U.S. Dist. LEXIS 63069 (E.D. Okla. Mar. 1, 2021).*
Plaintiff did not have a sufficient possessory interest in property of the University of Michigan that he’d been entrusted with. It belonged to the University who could recapture it. Hoeltzel v. Pillsbury, 2021 U.S. Dist. LEXIS 62371 (E.D. Mich. Feb. 4, 2021).
Plaintiff was arrested on a controlled delivery of a package from India with heroin in it. He was indicted in Westchester County, NY. Nine months later, he was sufficiently exonerated that the state dropped the charge. There was no judicial probable cause determination and that precluded a defense argument of collateral estoppel. The county grand jury’s indictment was presumptively probable cause which plaintiff did not overcome because there was no showing of fraud or perjury. DuBois v. City of White Plains, 2021 U.S. Dist. LEXIS 62527 (S.D. N.Y. Mar. 31, 2021).*
Posted inProbable cause, Standing|Comments Off on E.D.Mich.: No possessory interest in UM property ptf had for access to buildings
“Johnson argues that by taking his keys, Parker transformed the routine traffic stop into a custodial interrogation. We disagree. The traffic stop was the equivalent of a ‘Terry stop.’ Berkemer, 468 U.S. at 439. ‘During a Terry stop, officers are “authorized to take such steps as are reasonably necessary to protect their personal safety and to maintain the status quo …”’” Johnson v. State, 2021 Miss. App. LEXIS 144 (Mar. 30, 2021).
Plain view of marijuana during defendant’s arrest in his apartment: “To cut to the chase, the presence of marijuana in Clarke’s apartment at the time of his arrest provided probable cause for the search warrant.” United States v. Clarke, 2021 U.S. Dist. LEXIS 62550 (N.D. Ind. Mar. 31, 2021).*
Posted inCustody, Probable cause|Comments Off on MS: Taking car key from DUI detainee wasn’t a custodial interrogation; it was reasonable to maintain status quo
The business records search here was not overbroad as enabling a search of all records; just for violations of firearms offenses under 18 U.S.C. § 922(a)(1). It was particular enough. United States v. Warner, 2021 U.S. Dist. LEXIS 62302 (D. N.M. Mar. 31, 2021).
“Melendez attacks the affidavit in piece-meal fashion trying to discredit each observation as individually insufficient to establish probable cause. However, this court must consider ‘the totality of the circumstances in determining whether the affidavit demonstrates probable cause to search.’ … In this case the affidavit provides more than sufficient probable cause to believe that the Facebook account would contain evidence of criminal activity. Both confidential sources provided material information that was based in part on first-hand knowledge.” United States v. Melendez, 2021 U.S. Dist. LEXIS 62165 (D.Mass. Mar. 30, 2021).*
Plaintiff’s claim he was unnecessarily punched while double handcuffed and bent over the patrol car survives summary judgment. Koger v. Carson, 2021 U.S. App. LEXIS 9258 (11th Cir. Mar. 30, 2021).*
The affidavit showed probable cause for the search warrant, and nexus to his cell phone and the crime under investigation is shown in a wiretap. Anderson v. State, 2021 Del. LEXIS 121 (Mar. 30, 2021).*
Defendant did not show a reasonable expectation of privacy in a glove in a garage because the record was silent as to who owned the garage and its contents, whether it was a proper commercial business, defendant’s possessory relationship to the garage and its contents, such as whether he stored his tools, clothing, or gloves there, and his ability to exclude others from the garage. Thus, defendant could not establish that the police violated his rights when they entered the garage without a warrant. People v. James, 2021 IL App (1st) 180509, 2021 Ill. App. LEXIS 151 (Mar. 30, 2021).*
In a 2255 case: petitioner “has not shown, however, that he had any valid Fourth Amendment claim, much less that the outcome of the case would have been different had any particular evidence been excluded. … A mere allegation of prejudice is not sufficient.” Evans v. United States, 2021 U.S. Dist. LEXIS 60614 (N.D. Tex. Mar. 30, 2021).*
A summons to appear is not a seizure. Jianjun Li v. Village of Saddle Rock, 2021 U.S. Dist. LEXIS 60705 (E.D. N.Y. Mar. 30, 2021).
New York statute that special prosecutors have to give notice to elected DAs about, inter alia, search warrant requests is notice only – not getting permission. People v. Viviani, 2021 NY Slip Op 01934, 2021 N.Y. LEXIS 500 (Mar. 30, 2021).*
Defendant’s ineffective assistance of counsel claim for not challenging a search fails because his own evidence shows multiple reasons why the search was valid. United States v. Wyche, 2021 U.S. Dist. LEXIS 60701 (E.D. Va. Mar. 29, 2021).*
There was at the minimum implied consent for officers to enter. There was also exigency shown. United States v. Buck, 2021 U.S. Dist. LEXIS 60418 (C.D. Cal. Mar. 24, 2021).*
A citizen informant’s complaint defendant flashed a gun was justification for both a patdown and a protective weapons search of his car. State v. Shalash, 2021-Ohio-1034, 2021 Ohio App. LEXIS 1043 (10th Dist. Mar. 30, 2021).
Calling for a drug dog within a couple of minutes of a stop for a vehicle sniff was reasonable where the stop was completed within the time normally required for the officer to write a traffic ticket. State v. Miles, 2021-Ohio-1029, 2021 Ohio App. LEXIS 1049 (5th Dist. Mar. 29, 2021).
Touching the fog line justifies a stop as the court reads the statute. Soucie v. Comm’r of Pub. Safety, 2021 Minn. App. LEXIS 200 (Mar. 29, 2021).*
Posted inDog sniff, Protective sweep, Stop and frisk|Comments Off on OH10: Citizen informant’s complaint of def flashing gun from car justifies frisk of person and car
"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.
