Qualified immunity is denied officers for excessive force in a violent take down on a passively resisting plaintiff in a traffic stop without there being any exigency justifying it. “Viewing the facts, as we must, in the light most favorable to Rice, we conclude that a reasonable jury could find that Rice engaged in passive resistance and that Morehouse’s and Shaffer’s take-down of Rice involved unconstitutionally excessive force. Furthermore, because the right to be free from ‘the application of non-trivial force for engaging in mere passive resistance’ was clearly established before December 2011, Morehouse and Shaffer are not immune from suit.” Rice v. Morehouse, 2021 U.S. App. LEXIS 6626 (9th Cir. Mar. 8, 2021).
“Ordinarily, we would be required to decide a case of this posture on the plaintiff’s version of the facts. In this case, however, Plaintiff’s account is based on a blurry surveillance video that depicts little more than two persons engaged in a two-minute-long struggle in the dark beside a busy highway. We must therefore take the facts as told by the only living eyewitness of those critical two minutes—Defendant Martin. On those facts, we affirm the District Court’s decision to grant summary judgment.” Prosper v. Martin, 2021 U.S. App. LEXIS 6466 (11th Cir. Mar. 5, 2021).*
Defendant was a passenger in a car in which he claimed he had a possessory interest because it belonged to his domestic partner and he claimed to have paid $2000 toward the car. The district court didn’t credit that testimony because no corroboration was provided at all, and it held that he had no expectation of privacy in the car. United States v. Johnson, 2021 U.S. App. LEXIS 6599 (5th Cir. Mar. 5, 2021).
The parties agree that a syringe was unreasonably seized by the police, but the Court of Appeals erred in not considering harmless error. The Supreme Court finds that the seizure was harmless beyond a reasonable doubt on this record. State v. Thornton, 2021 Kan. LEXIS 20 (Mar. 5, 2021).*
Defendant’s assault on a police officer attempting to arrest her can’t be suppressed because the arrest might be unreasonable. State v. Schumacher, 2021 SD 16, 2021 S.D. LEXIS 28 (Mar. 3, 2021).
The stop was valid based on a registration violation, and the officer saw a gun on the floorboard. That plus the smell of marijuana justified a search of the car. Looking through the windshield with a flashlight was reasonable. United States v. Smith, 2021 U.S. App. LEXIS 6490 (8th Cir. Mar. 5, 2021).*
Defendant makes conclusory allegations defense counsel was ineffective for not properly challenging a search. He doesn’t show that the outcome would be different had counsel done so. Hall v. United States, 2021 U.S. Dist. LEXIS 41860 (E.D. Tex. Jan. 27, 2021).*
Posted inArrest or entry on arrest|Comments Off on SD: Def’s assault on police officer can’t be suppressed because the arrest was illegal
A parking violation justifies a police encounter with the driver. Here, the vehicle was obstructing, and the officer wasn’t obliged to merely leave a parking ticket on the car. The encounter led to an OWI arrest and conviction. State v. Warren, 2021 Iowa Sup. LEXIS 19 (Mar. 5, 2021):
The affidavit for search warrant based on an uncorroborated CI for sale of a ½ ounce of marijuana failed to show probable cause and it did not justify a search for virtually every document in the house or on his cell phone. The good faith exception also did not apply. United States v. Whitted, 2021 U.S. Dist. LEXIS 41645 (N.D. Ohio Mar. 5, 2021):
Posted inInformant hearsay, Overbreadth|Comments Off on N.D.Ohio: “Days-old sale” of ½ ounce of marijuana didn’t justify wholesale search of records at home
Omission of two allegedly exculpatory pieces of information from the affidavit for search warrant didn’t undercut the probable cause shown by what was there. Not all exculpatory information needs to be provided: “Moreover, it is unreasonable to expect a police officer to include every piece of exculpatory information gathered about the case in the affidavit because the standard for obtaining a search warrant is lower than the standard to convict.’ United States v. Sawyers, 127 F.App’x 174, 183, 2005 WL 647774, at *9 (March 22, 2005).” And the good faith exception would apply. United States v. Burdette, 2021 U.S. Dist. LEXIS 41503 (E.D. Ky. Feb. 3, 2021).
Defendant didn’t back up his Franks challenge with affidavits or other documentation for an offer of proof. Moreover, he fails on the materiality prong of Franks because striking the offending paragraph still leaves probable cause. United States v. Dove, 2021 U.S. Dist. LEXIS 41557 (M.D. Fla. Mar. 5, 2021).*
Posted inFranks doctrine|Comments Off on E.D.Ky.: Not all exculpatory evidence needs to be in the affidavit for SW under Franks
Defendant’s cell phone was searched without a warrant pre-Riley under law at the time. “If the evidence collected during the search was to be admitted, he contends, it was only through the application of the good-faith exception recognized in Davis v. United States, 564 U.S. 229, 241 (2011), and he argues that his case does not fit within Davis. We all agree that this was a close call. In the end, however, we conclude that although there was no binding precedent that would have exempted this search from the exclusionary rule, the independent-source rule allowed the admission of the limited evidence the government used. We therefore affirm Berrios’s conviction.” United States v. Berrios, 2021 U.S. App. LEXIS 6472 (7th Cir. Mar. 5, 2021).
A digital camera was seized as a potential weapon. A second search warrant was issued for the contents of the camera, but it was not challenged for probable cause or particularity, the defense conceding it was precise. That being the issue, the Fourth Amendment was not violated. State v. Depina, 2021 R.I. LEXIS 12 (Mar. 3, 2021).*
It was clearly established law in January 2015 that an officer’s unconfirmed hunch that an arrest warrant might possibly exist, coupled with nothing more than the officer’s recognition of a suspect from prior arrests, did not constitute reasonable suspicion justifying a Terry stop or frisk. Therefore, no qualified immunity. Vasquez v. Maloney, 2021 U.S. App. LEXIS 6356 (2d Cir. Mar. 4, 2021).
Defendant officer’s claim that the district court erred in denying summary judgment on qualified immunity is affirmed because there are factual disputes for trial. Vette v. Sanders, 2021 U.S. App. LEXIS 6462 (10th Cir. Mar. 5, 2021).*
A prior controlled buy with defendant showing up for another one justifies a vehicle search under the automobile exception. United States v. Smith, 2021 U.S. App. LEXIS 6166 (7th Cir. Mar. 3, 2021).
The trial court credited the officer’s testimony that a computer warrant check on defendant received a positive response. The dashcam audio only confirmed it. The vehicle was searched for inventory before towing. State v. Scofield, 2021-Ohio-569, 2021 Ohio App. LEXIS 590 (5th Dist. Mar. 1, 2021).*
Defense counsel pursued two motions to suppress in defendant’s case but did not allege lack of particularity. That was treated here as a strategic choice. Moreover, defendant doesn’t even attempt to show that the argument would have prevailed if made. Roy v. United States, 2021 U.S. Dist. LEXIS 39964 (S.D. Fla. Mar. 2, 2021).*
Officers on patrol saw defendant in an apartment building’s parking lot. They saw the bulge they reasonably believed was a gun, and they knew he was a convicted felon. They sought an encounter with him, but defendant refused to stop walking and attempted to enter the apartment he was visiting. They reached him at the door. “Once the officer attempted a Terry-stop, and a struggle ensued, officers had probable cause to arrest Rivera and Rivera’s search was justified under the search-incident-to-arrest doctrine. Additionally, we note that while Rivera had permission to be at his girlfriend’s apartment and thus makes arguments about the officer crossing the threshold, even assuming the officer did so, Rivera was apparently merely invited to the apartment, which does not allow him to claim Fourth Amendment protection.” United States v. Rivera, 2021 U.S. App. LEXIS 6183 (11th Cir. Mar. 3, 2021).
Posted inArrest or entry on arrest|Comments Off on CA11: Arrest at the threshold that continued inside where def tried to enter was reasonable
Defendant’s 2254 claim that his arrest was without probable cause on mistaken identity is foreclosed by Stone v. Powell the same as Fourth Amendment search claims. “The opportunity, regardless of whether it is acted upon at the state level, is all that is required to preclude federal habeas review. … Crucially, even errors in adjudicating Fourth Amendment claims are not an exception to Stone’s bar.” Fagans v. Dir., 2021 U.S. Dist. LEXIS 39466 (E.D. Tex. Jan. 25, 2021).
Defendant contended the affidavit for the search warrant omitted that he’d moved from the property between trash pulls so the second trash pull was wrong. Even omitting it there was probable cause. United States v. Juneau, 2021 U.S. Dist. LEXIS 39805 (D. Minn. Mar. 3, 2021).*
The officers do not get qualified immunity in this 1983 case. “Certainly, this was not an ‘obvious case’ where the officers so blatantly violated the Fourth Amendment that recourse to factually analogous case law is unnecessary. Wesby, 138 S. Ct. at 590 (quoting Brosseau, 543 U.S. at 199).” The Fourth Amendment use of force question was “segmented” into two parts, separately analyzed: a push and kneel. Breaking it down like this results in a denial of qualified immunity on this record. Lachance v. Town of Charlton, 2021 U.S. App. LEXIS 6189 (1st Cir. Mar. 3, 2021).
In a civil case with an immunity issue, the state’s failure to reply on Heien for a reasonable mistake of law argument in the intermediate appellate court denied it the opportunity to argue it in the state high court. State v. Rovin, 2021 Md. LEXIS 102 (Mar. 2, 2021).*
Posted in§ 1983 / Bivens, Qualified immunity, Waiver|Comments Off on CA1: Breaking the excessive force claim into parts for analysis results in a denial of QI
Exigent circumstances permitted the police to take DNA samples from defendant’s genitalia within minutes of an alleged rape. Time was of the essence because the DNA could be lost if defendant were left to his own devices or even possibly just went to the bathroom alone. State v. Kirui, 2021 Mo. App. LEXIS 259 (Mar. 2, 2021).
“The precise question is not whether any of the home occupants consented subjectively, but whether their conduct would have caused a reasonable person to believe they collectively consented to the entry of the residence. Having reviewed Lieutenant Marrufo’s body-camera recording, the Court concludes that the occupants’ actions would have engendered just such a belief.” United States v. White Horse, 2021 U.S. Dist. LEXIS 39186 (D.S.D. Feb. 11, 2021).*
Posted inBody searches, Consent, DNA|Comments Off on MO: DNA could be taken from def’s genitalia without a warrant on arrest shortly after alleged crime because of exigency
HomeAway.com and AirBnb.com were prevailing parties in their Fourth Amendment claims against the City of New York for sweeping data production, and they are awarded $595,000 in attorneys fees. HomeAway.com, Inc. v. City of New York, 2021 U.S. Dist. LEXIS 37643 (S.D. N.Y. Mar. 1, 2021).*
There was no dispute that plaintiff was noncompliant with arresting officers and that there was probable cause for his detention. Qualified immunity applies. Westry v. Leon, 2021 U.S. App. LEXIS 6013 (2d Cir. Mar. 2, 2021).*
Posted in§ 1983 / Bivens, Qualified immunity|Comments Off on S.D.N.Y.: HomeAway and AirBnb prevailing parties in their data collection suit v. NYC
Assuming random Covid testing of NYC school children is a Fourth Amendment search, the court applies Vernonia School District 47J and special needs and finds it reasonable. Aviles v. De Blasio, 2021 U.S. Dist. LEXIS 38930 (S.D. N.Y. Mar. 2, 2021):
Defendant’s searching officer’s arrest two years after defendant’s conviction didn’t qualify for a successor habeas because he couldn’t show that the new information would have affected the officer’s credibility at a suppression hearing or trial, nor does he allege prejudice. In re Bradley, 2021 U.S. App. LEXIS 6084 (11th Cir. Mar. 2, 2021):
Posted inUnreasonable application / § 2254(d)|Comments Off on CA11: Def doesn’t show searching officer’s arrest two years after his trial would have changed outcome for successor habeas
A vehicle could be stopped just because there was a warrant on the passenger. Here, ICE made the stop, and it was reasonably related to its justification. United States v. Murillo-Gonzalez, 2021 U.S. Dist. LEXIS 38494 (D. N.M. Mar. 1, 2021).
The search warrant here sought firearms and drugs. There was clearly probable cause for firearms, but defendant argues there was no probable cause for drugs. Even if the affidavit didn’t show probable cause for drugs, the plain view doctrine applied as did the the good faith exception. United States v. Davis, 2021 U.S. Dist. LEXIS 38037 (N.D. W.Va. Mar. 2, 2021).*
Defendant’s “frantic” furtive movements as he stopped during a traffic stop justified officers drawing down on him as they approached the car. “Then during Solis’s temporary detention, other facts arose establishing probable cause to arrest him. The Court therefore concludes that the Officers’ seizure of Solis was lawful because of an officer safety exigency and Solis’s subsequent arrest was lawful because it was based on probable cause.” United States v. Solis, 2021 U.S. Dist. LEXIS 38134 (D. Kan. Mar. 2, 2021).
It is settled that the exclusionary rule does not apply in federal supervised release revocation proceedings. United States v. Banks, 2021 U.S. App. LEXIS 6057 (4th Cir. Mar. 2, 2021).
Posted inExclusionary rule, Reasonable suspicion|Comments Off on D.Kan.: “Frantic” furtive movements as officers approached stopped car justified drawing weapons
The traffic stop evolved into reasonable suspicion of drug trafficking and then a drug dog could be used on the vehicle. After completing the stop, “As Mercado-Gracia walked back to his vehicle, however, Officer Wood invoked ‘the old highway patrol “two-step”’” of asking more questions. This was consent that led to reasonable suspicion because defendant became increasingly and obviously nervous. The questions followed up on nonsensical answers during the stop. United States v. Mercado-Gracia, 2021 U.S. App. LEXIS 6034 (10th Cir. Mar. 2, 2021).
There was reasonable suspicion for pulling over defendant’s PT Cruiser as being involved in a recent shooting incident. State v. Kea, 2021 Tenn. Crim. App. LEXIS 72 (Mar. 2, 2021).*
Posted inDog sniff, Reasonable suspicion|Comments Off on CA10: Officer’s questions after completion of stop extended it by consent
"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.
