Assuming defendant’s tent in an “open field” area had a reasonable expectation of privacy (as the Ninth Circuit would hold), the tent was open and the officer could see in. There was no curtilage to the tent in an open field. Further search was justified by consent. United States v. Madziarek, 2021 U.S. Dist. LEXIS 38141 (M.D. Pa. Mar. 2, 2021).
“Based on a de novo review, the Court finds that the issuing judge could reasonably have concluded that a fair probability existed that evidence of the alleged assault would be found in the residence where Warren was arrested.” Moreover, the good faith exception applies. As to a cell phone found in a car, defendant didn’t show any reasonable expectation of privacy in it to challenge the search. As to a Facebook account warrant, a fair probability was shown that communications between defendant and drug customers would be found there, and the good faith exception also applies. United States v. Warren, 2021 U.S. Dist. LEXIS 37607 (D. Minn. Mar. 1, 2021).*
Defendants argued that an administrative search was a pretext for a criminal search. A later search warrant was based on independent information from state wiretaps. “Here, assuming arguendo that the administrative search was improper, suppression of the evidence obtained from the restaurant search was not required because the search warrant later obtained by law enforcement was supported by independent sources, and the administrative search did not prompt the warrant application. As the district court concluded, the search warrant application relied on more than six months’ worth of wiretaps carried out prior to the NYSSA inspection. That investigation had revealed that Defendants-Appellants were importing cocaine, and that there was a fair probability that contraband or evidence of a crime would be found in the restaurant. Law enforcement had further seized 55 kilograms of cocaine from produce containers connected with one of Gregorio’s produce import/export companies, suggesting that Gregorio used his businesses as a cover for his criminal operations.” United States v. Gigliotti, 2021 U.S. App. LEXIS 6009 (2d Cir. Mar. 2, 2021).
Posted inAdministrative search, Independent source|Comments Off on CA2: Even if an administrative search was pretext for a criminal search, there was an independent basis for later SW
Defendant was convicted of surreptitiously recording a tenant in another apartment with planted wireless camera. Some evidence in the criminal proceeding was suppressed. In a civil case to void his tenancy under the rent control laws, the exclusionary rule is not applied in this civil case to anything that was suppressed in the criminal case. 36170 Realty Ltd v. Boyd, 2021 NY Slip Op 21041, 2021 N.Y. Misc. LEXIS 728 (Kings Co. Feb. 22, 2021).
Defendant’s admission during a stop she was armed was justification for her patdown. United States v. Riley, 2021 U.S. Dist. LEXIS 37124 (C.D. Ill. Mar. 1, 2021).*
The passenger was left sitting in the car during the traffic stop for the driver’s suspended license. Then the passenger was arrested, too. The mission of the traffic stop hadn’t completed until the vehicle was being towed, so it was still ongoing. United States v. Riley, 2021 U.S. Dist. LEXIS 37124 (C.D. Ill. Mar. 1, 2021).*
Posted inExclusionary rule, Reasonable suspicion|Comments Off on NY Kings Co.: Exclusionary rule not applied in civil case to end tenancy under rent control statute
“Applying this standard, the Field Affidavit is clearly not a bare bones affidavit. Intercepted phone calls, physical surveillance and trash pulls, along with information learned from confidential sources, would allow a reasonable officer ‘employing a healthy dose of common sense’ to conclude that the parking lot of Luxury Sports was an ongoing site of drug trafficking. See id. at 502 (citing United States v. Greene, 250 F.3d 471, 479 (6th Cir. 2001)). One of the traffickers, Jerry Vaughn, was associated on paper with Luxury Sports, the corporate entity. Plus, Vaughn entered the Luxury Sports office building structure after one of his suspected drug sales. Plus, another suspected trafficker, who drove a vehicle registered to Luxury Sports, entered the structure with Vaughn, first checking the Luxury Sports mailbox. These details more than suffice to connect drug trafficking with the inside of the Luxury Sports office building as well.” United States v. Scott, 2021 U.S. Dist. LEXIS 37302 (S.D. Ohio Mar. 1, 2021).
Posted inNexus|Comments Off on S.D.Ohio: Nexus shown for SW of business premises for drugs
It wasn’t obvious that the search warrant did not permit a nighttime search, and it was presented to the state judge at night involving a shooting that night. The circumstances were apparent that the search was to happen then. Moreover, even a violation of the state’s nighttime search rule wasn’t complete justification for suppressing the search. “There is no evidence that the affidavit contained false information, and the fact that it contained inconsistent references for the time of execution falls far short of the requirement that it be ‘facially deficient.’” [And not completely inconsistent. On the totality, it’s the only real inference that makes sense to preserve evidence of a recent shooting.] United States v. McCullough, 2021 U.S. Dist. LEXIS 37416 (N.D. Ohio Mar. 1, 2021).
Posted inNighttime search|Comments Off on N.D.Ohio: Alleged ambiguity in whether nighttime search authorized resolved by all the circumstances in favor of it
The Franks hearing established that the officer didn’t know that certain things happened during the investigation, so the officer wasn’t withholding information or misleading the court. Probable cause and nexus is [less than] tenuous: “This evidence, standing alone, does not establish probable cause to support the search of the Kipling Avenue address. The affidavit contains no indication that the CI linked Torbert’s alleged drug trafficking to his residence. In addition, the only fact in the affidavit linking Torbert to illegal drugs was his possession of fentanyl miles away from Kipling Avenue after Torbert and two others were in a known drug trafficking area half an hour after leaving his residence.” The good faith exception is also a close question, but there’s enough link to the residence for good faith to apply. United States v. Torbert, 2021 U.S. Dist. LEXIS 37301 (S.D. Ohio Mar. 1, 2021).*
Posted inFranks doctrine, Good faith exception, Nexus|Comments Off on S.D.Ohio: GFE overcomes lack of nexus; officer unaware of some facts didn’t commit Franks violation
Nexus was shown to a business where drug transactions outside appeared to have continued inside, or at least the participants went inside right after. In any event, the good faith exception applies. United States v. Scott, 2021 U.S. Dist. LEXIS 37302 (S.D. Ohio Mar. 1, 2021).
Standing in a parking lot wearing a bulletproof vest and with a walkie-talkie holding a crowbar and an open knife was justification for further inquiry by police. Defendant’s implausible explanation was justification for detention and a patdown. United States v. Reedy, 2021 U.S. App. LEXIS 5922 (7th Cir. Mar. 1, 2021).*
After a police foot chase, officers entered an unlocked basement of an apartment building and found a firearm that looked like one they were looking for. Defendant can’t show a reasonable expectation of privacy in the basement because everybody in the building had access to it, and others outside too because of no locks. Commonwealth v. DeJesus, 2021 Mass. App. LEXIS 27 (Mar. 1, 2021).
2255 petitioner’s stand alone Fourth Amendment claim was barred by his plea agreement. He did not bring it as an ineffective assistance of counsel claim. United States v. Pittman, 2021 U.S. Dist. LEXIS 37087 (D. Kan. Mar. 1, 2021).
The state didn’t rely on a “reasonable mistake of fact” justification for the stop in the trial court, so it can’t for appeal. State v. Turner, 2021-Ohio-541, 2021 Ohio App. LEXIS 564 (12th Dist. Mar. 1, 2021).
Defendant had some limited connection to the premises searched and stayed there on occasion, but he wasn’t around when the search occurred. He didn’t even know who owned it, and he had no key. He doesn’t object to any facts in the R&R, just the application of the law. United States v. Reverand, 2021 U.S. Dist. LEXIS 37077 (W.D. Tenn. Mar. 1, 2021).*
An officer responded to an animal abuse complaint of a maltreated dog in defendant’s backyard. He parked in the driveway and walked to the door to inquire. No answer. He could see a fence with a missing board from the driveway and walked over and could see the dog in the yard. The entry to seize the dog was justified by exigency. The entry into the curtilage was the same license as anyone. “To the limited extent that appellant argues the warrantless seizure of the dog violated his Fourth Amendment rights, that argument also lacks merit. We recognize that even if an object is in open view, its ‘seizure cannot be justified if it is effectuated “by unlawful trespass.”’ Collins v. Virginia, ___ U.S. ___, 138 S.Ct. 1663, 1672 (2018). The warrantless seizure must be justified by one of the established exceptions to the Fourth Amendment’s warrant requirement. State v. Braxton, 12th Dist. Warren No. CA2019-03-019, 2020-Ohio-424, ¶ 14.” State v. Neanover, 2021-Ohio-540, 2021 Ohio App. LEXIS 565 (12th Dist. Mar. 1, 2021).
Posted inCurtilage, Emergency / exigency|Comments Off on OH12: Officer responding to a mistreated dog call could walk to fence and look through then seize dog on exigency
Failure to renew a suppression issue decided against you pretrial when the evidence is admitted is waiver in Nebraska. Besides, the issue on appeal would lose on the merits because the officer had reasonable suspicion for the stop and then search for weapons after a plain view of the car suggested ongoing criminal activity. State v. Lowman, 308 Neb. 482, 2021 Neb. LEXIS 31 (Feb.26, 2021).
Trial court’s order refusing to suppress CSLI years before Carpenter was not error. Swinson v. State, 2021 Ga. LEXIS 73 (Mar. 1, 2021) (three years);* Gialenios v. State, 2021 Ga. LEXIS 79 (Mar. 1, 2021) (one year).*
NIT warrant was valid. United States v. Collard, 2021 U.S. App. LEXIS 5824 (6th Cir. Feb. 25, 2021).*
Defendant was wanted for assault and found at an Indian casino hotel on a reservation. They took him into custody and towed his vehicle. The search of his hotel room and vehicle by search warrants was reasonable and respected tribal sovereignty. Also, officers knew from looking in the window that he was in his room, but he wasn’t responding to calls to the room and his cell phone. The warrantless entry was reasonable. State v. Evans, 2021 SD 12, 2021 S.D. LEXIS 17 (Feb. 26, 2021):
An officer’s order to get out of the car during a traffic stop does not expand the stop, and it is reasonable. Agreeing in the trial court that the stop was valid bars litigating it on appeal. State v. Jackson, 2021-Ohio-517, 2021 Ohio App. LEXIS 559 (1st Dist. Feb. 26, 2021).
“Because the officers stopped Cofano pursuant to a [state §] 7302 warrant relying on the issuing authority’s finding that Cofano was dangerous to himself and others, they had valid Fourth Amendment justification. Consequently, the Court holds that the evidence cannot be suppressed as the good faith exception would indeed apply.” United States v. Cofano, 2021 U.S. Dist. LEXIS 36683 (W.D. Pa. Feb. 26, 2021).*
Defendant’s 2255 claimed that defense counsel was ineffective for not making a Franks challenge. Defendant’s offer of proof is rejected as just without any credibility at all in light of the record previously made. United States v. Petruk, 2021 U.S. Dist. LEXIS 36443 (D. Minn. Feb. 26, 2021)*:
The target of a search warrant long ago served is entitled to unsealing the affidavit, but the government can redact the affiant’s name and identifying information. United States v. Storage Room Numbers, 2021 U.S. Dist. LEXIS 35977 (E.D. N.Y. Feb. 25, 2021).
Plaintiff’s prison strip search where others could see didn’t state a Fourth or Eighth Amendment claim. Ibrahim v. Defilippo, 2021 U.S. Dist. LEXIS 36249 (D. N.J. Feb. 26, 2021).*
Defendant didn’t challenge the search below and waived it. He had the full and fair opportunity to litigate it and didn’t so it’s barred from 2255 under Stone v. Powell. Bullard v. United States, 2021 U.S. Dist. LEXIS 36410 (N.D. Miss. Feb. 26, 2021).*
There may have been suspicion for defendant’s stop, but it wasn’t reasonable suspicion. He was potentially dumpster driving at a closed business at night, and he left when he saw the police officer. Vonlydick v. State, 2021 Fla. App. LEXIS 2875 (Fla. 2d DCA Feb. 26, 2021).*
Defendant was a passenger in the vehicle searched without an ownership or possessory interest, so he lacks standing. United States v. Norton, 2021 U.S. Dist. LEXIS 35512 (E.D. Tenn. Feb. 18, 2021).*
Defense counsel wasn’t ineffective for not challenging defendant’s search because it was lawful incident to arrest. United States v. Cox, 2021 U.S. Dist. LEXIS 35636 (D. Mont. Feb. 24, 2021).*
“Here, the state judge who issued the warrant interviewed the cooperating witness in camera. Two federal judges reviewed the state judge’s notes and also found probable cause for the issuance of the warrant. Hence, three judges independently found there was ‘a fair probability that contraband or evidence of a crime [would] be found’ at 23 Roosevelt. See Gates, 462 U.S. at 238. But even assuming, arguendo, that the warrant issued without probable cause because it could have been more specific, Pettway has put forth no evidence or argument that the officers who executed the warrant acted in bad faith. See Herring, 555 U.S at 143 44. Accordingly, the district court properly denied Pettway’s motion to suppress.” United States v. Black, 2021 U.S. App. LEXIS 5745 (2d Cir. Feb. 26, 2021).*
The record doesn’t support defendant’s claim that he was removed to avoid his ability to object to consent under Randolph. In addition, his detention was otherwise objectively reasonable. United States v. Shaw, 2021 U.S. Dist. LEXIS 35405 (E.D. Tenn. Feb. 25, 2021).
A question of fact remains on the parties’ positions of when defendant fled and whether that was reasonable suspicion. United States v. Krubally, 2021 U.S. Dist. LEXIS 35432 (S.D. N.Y. Feb. 25, 2021).*
“Plaintiff’s attempt to defeat summary judgment by reframing his false arrest claim as a claim based on a warrantless arrest in his home is unavailing since he did not plead that theory of liability in his notice of claim or complaint …. In any event, the existence of probable cause defeats a false arrest claim based on violation of Fourth Amendment rights or lack of a warrant ….” Berry v. City of New York, 2021 NY Slip Op 01189, 2021 N.Y. App. Div. LEXIS 1275 (1st Dept. Feb. 25, 2021).*
While there was some exigency, the government failed on its burden of proving exigency necessitated its action. Instead, the court finds inevitable discovery. United States v. O’Neil, 2021 U.S. Dist. LEXIS 35424 (D. N.M. Feb. 25, 2021):*
The government’s ruse that defendant’s name was being used to fraudulently get prescriptions to gain entry into his house made his consent involuntary. United States v. Burch, 2021 U.S. Dist. LEXIS 35265 (E.D. N.C. Feb. 25, 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.
