Defendant was long under surveillance for drug deals, and a search warrant was obtained for his person and premises. It did not include his vehicles. The search authorization did not encompass his vehicle on the premises outside the house, and there was no specific probable cause for the vehicle. People v. Gordon, 2021 NY Slip Op 01093, 2021 N.Y. LEXIS 102 (Feb. 18, 2021) (see § 56.09 “Place” as including outbuildings and vehicles).
Historical CSLI validly recovered pre-Carpenter was protected by the good faith exception. United States v. Kent, 2021 U.S. Dist. LEXIS 30291 (N.D.Ga. Jan. 28, 2021).*
Defense counsel made a logical choice to exploit certain facts from the search in defense on the merits. “Given the tumultuous relationship between Lucas and Parker, given the fact that she shot at him through a door, given his admitted anger on July 5, that she would not prosecuted, and given the evidence of a gunshot into her bedroom, it is understandable that appellate counsel would decide in the exercise of professional judgment not argue the issue of probable cause for the search warrant. Obtaining evidence of where Lucas was in the early morning of July 7, 2016, would help determine whether he did or did not commit the crime.” [Aside from the fact it was frivolous.] State v. Lucas, 2021-Ohio-437, 2021 Ohio App. LEXIS 436 (8th Dist. Feb. 17, 2021) (see § 60.19, “Not all illegally seized evidence needs to be suppressed. It might be important to the defense case.”).
Posted inIneffective assistance|Comments Off on OH8: Defense counsel made logical choice to forego suppression for benefit to merits of case
Defendant’s providing his iPhone passcode during his proffer session did not immunize the contents of the phone from the government’s use at trial. Kastigar hearing (a misnomer) denied. United States v. Otunyo, 2021 U.S. Dist. LEXIS 30000 (D.D.C. Feb. 18, 2021):
For a century, state officers investigated offenses on land that McGirt v. Oklahoma found were actually Indian lands. The good faith exception applies. The officer couldn’t have been expected to know that SCOTUS would finally hold as it did, and then it did 5-4. The good faith exception clearly applies. [Also, this case is in federal court on a case investigated by a state officer.] United States v. Patterson, 2021 U.S. Dist. LEXIS 29906 (E.D. Okla. Feb. 18, 2021), adopting 2021 U.S. Dist. LEXIS 31162 (E.D. Okla. Jan. 5, 2021).
Plaintiff’s Fourth Amendment malicious prosecution claim fails for lack of evidence vitiating probable cause for the arrest. Rivera v. Granillo, 2021 U.S. App. LEXIS 4671 (10th Cir. Feb. 18, 2021).*
The government disclosed an exculpatory document during trial and buried in a disclosure of previously disclosed information. “Astonishingly, even in its latest filings, the Government has informed the Court of yet another failure of disclosure in this case related to the FBI’s review of raw state search-warrant returns.” The government owned up and moved to dismiss the case after the jury convicted. Granted, and government referred to OPR. United States v. Nejad, 2021 U.S. Dist. LEXIS 29580 (S.D. N.Y. Feb. 17, 2021), prior order here.
Officers hearing shots fired saw defendant in the vicinity of the shots. Defendant wasn’t seized when officers encountered him while they were in their police car and requested he lift his shirt. He revealed his right waistband. They asked to see the left, too, and then he ran off dropping something with a metallic sound. A gun was recovered. When he was apprehended, he was searched incident to the arrest and drugs were found. The encounter was reasonable and escalated when defendant ran. United States v. Wade, 2021 D.C. Super. LEXIS 5 (Feb. 12, 2021).*
Posted inReasonable suspicion, Warrant execution|Comments Off on S.D.N.Y.: Brady violation included govt’s review of “raw state search warrant returns” disclosed during trial
Impoundment of defendant’s vehicle was reasonable and under standardized procedure, even though he was present. “I conclude Directive 406.3/2.3.4 was a reasonable standardized procedure. The officers’ decision to enforce Directive 406.2/2.3.4 and impound the vehicle, even though the lawful owner was present, did not violate the Fourth Amendment. Because the officers legally impounded the vehicle, the search incident to the impoundment did not violate the Fourth Amendment for the reasons stated in my previous opinion.” United States v. Boxx, 2021 U.S. Dist. LEXIS 29589 (N.D. Ohio Feb. 17, 2021).
The government disclosed its reliance on the collective knowledge doctrine before the motion to suppress was resolved. Defendant’s motion to dismiss for allegedly withholding it, which the court doesn’t find it did, is denied. United States v. Tuschoff, 2021 U.S. Dist. LEXIS 29515 (D. Idaho Feb. 16, 2021).*
Posted inCollective knowledge, Inventory|Comments Off on N.D.Ohio: Impoundment under SOP was reasonable even though owner was present
“Based on the previous controlled drug sales in which agents had seen Ochan participate — including the sale that day — agents had specific knowledge that Ochan sold drugs. From there, the sequence of events on the day of Tom’s arrest — and the reasonable inferences generated by that sequence of events — is central in the reasonable suspicion calculation.” United States v. Tom, 2021 U.S. App. LEXIS 4512 (1st Cir. Feb. 17, 2021).
Requiring a female detainee during execution of a search warrant could leave the door ajar so a female officer to observe wasn’t an unreasonable violation of bodily privacy at the time. Officer “Devage’s open-door requirement was reasonably limited in scope and in duration.” Paylan v. Dirks, 2021 U.S. App. LEXIS 4504 (11th Cir. Feb. 17, 2021).
Defendant is not entitled to return of property that the government has deemed “classified.” United States v. Montgomery, 2021 U.S. Dist. LEXIS 29115 (S.D. Ohio Feb. 17, 2021) (“In re Search Warrant for the Person of John F. Gill, 2014 WL 1331013, at *2 (E.D.N.C. Mar. 31, 2014) (denying motion for return of iPhone containing classified information); Roark v. United States, 2015 WL 2085193, at *3 (D. Or. May 15, 2015) (classified files belong to the United States and cannot be returned to a claimant).”).
Posted inRule 41(g) / Return of property|Comments Off on S.D.Ohio: Def not entitled to return of property deemed “classified”
Rodriguez was not a new rule of law; it restated Caballes. The state doesn’t get the benefit of the good faith exception by pointing to it. “At the outset, we note that the State acknowledges that the trial court erred in holding that Thulen’s actions were protected by the good faith exception to the exclusionary rule regarding traffic stops. The court held that the good faith exception applied because the officers relied on precedent established before Rodriguez was decided. However, the defendant and the State point out, and we agree, that Rodriguez did not create new law but merely restated precedent established in Illinois v. Caballes, 543 U.S. 405, 407 (2005), which was in effect at the time of the traffic stop, here. Therefore, the court erred in holding that the good faith exception applied.” People v. Sanchez, 2021 IL App (3d) 170410, 2021 Ill. App. LEXIS 50 (Feb. 17, 2021).
Posted inReasonable suspicion|Comments Off on IL: Rodriguez was not a new rule of law; it restated Caballes
When the executing officers arrived at the place of search, they realized that the particular description of the place to be searched was wrong. The affiant (apparently) called the issuing judge and got permission to amend the warrant’s place to be searched. [That argument was waived on appeal. If telephonic or electronic warrants are permissible, why not a telephonic or electronic amendment before the search occurs? Police competence in search and seizure law should be fully rewarded, not penalized. So, even if the issue was litigated and the state lost on the merits, the good faith exception should save the search?] State v. Palmateer, 2021 Iowa App. LEXIS 131 (Feb. 17, 2021).*
Riley was decided while this 2254 petitioner’s direct appeal was pending. On post-conviction, the state court rejected his ineffective assistance of counsel claim for not raising a Riley issue because the good faith exception would sustain the search. That’s binding on habeas. Gary v. Bolling, 2021 U.S. Dist. LEXIS 28920 (M.D. Ala. Feb. 12, 2021).*
The trial court’s order finding probable cause to search a car just based on the smell of marijuana alone from the passenger compartment is contrary to two state decisions involving medical marijuana and is reversed. Commonwealth v. Shaw, 2021 Pa. Super. LEXIS 62 (Feb. 17, 2021).*
California negligence law permits negligent excessive force actions where the Fourth Amendment might not. Plaintiff adequately stated and supported a claim for a police shooting death of a mentally ill man. Tabares v. City of Huntington Beach, 2021 U.S. App. LEXIS 4470 (9th Cir. Feb. 17, 2021). Syllabus by the court:
Terry stop questioning doesn’t require a Miranda warning until it gets confrontational and adversarial and the detainee isn’t free to leave. State v. Decanini-Hernandez, 2021 Iowa App. LEXIS 172 (Feb. 17, 2021).
Defense counsel wasn’t shown to be ineffective for not challenging a search of a cell phone that wasn’t his for which a state warrant had been executed. Bradford v. Crim. United States, 2021 U.S. Dist. LEXIS 28454 (M.D. Tenn. Feb. 16, 2021).*
Defendant in his 2255 can’t show prejudice by defense counsel because he can’t show that his dog sniff motion to suppress would have been granted. Jones v. United States, 2021 U.S. Dist. LEXIS 28921 (C.D. Ill. Feb. 17, 2021).*
Plaintiffs run a bar, and they complain they were required to have police on duty and in the premises on certain nights. Without an allegation that the officers entered any part of the business that is private [such as an office or back room], they don’t state a Fourth Amendment claim. East Coast Serv. Indus. Co. v. N.H. State Liquor Comm’n, 2020 U.S. Dist. LEXIS 170490 (D. N.H. Sept. 17, 2020), reaffirmed 2021 U.S. Dist. LEXIS 28922 (D. N.H. Feb. 17, 2021).
On objection to the R&R, the district court viewed the in-car and dashcam videos of the interaction between defendant and the officer. There’s disagreement on exactly what was said, but, on the totality, the court finds consent. “In sum, this case highlights why context matters. Examining the conversation in its entirety, this Court finds that Leddon consented to a search of his car.” Moreover, defendant had a probation search waiver on file. United States v. Leddon, 2021 U.S. Dist. LEXIS 28491 (D.S.D. Feb. 16, 2021).*
Defendant’s conduct that aroused police suspicion didn’t suggest drug activity, but “Common sense takes context into account.” It was suspicious enough on the totality to permit a Terry stop. People v. Flores, 2021 Cal. App. LEXIS 130 (2d Dist. Feb. 16, 2021):
Posted inReasonable suspicion|Comments Off on Cal.2: Conduct didn’t suggest drug activity, but it justified a stop. “Common sense takes context into account.”
Plaintiff’s complaint that his arrest was without probable cause doesn’t necessarily implicate his guilt or innocence, and it isn’t barred by Heck. He doesn’t even mention the conviction. Dizzley v. Garrett, 2021 U.S. App. LEXIS 4314 (4th Cir. Feb. 16, 2021).
Defendant was reported by a non-law enforcement witness to say she didn’t have time to consent to a warrantless search; even if it was a comment on her exercise of rights, it was admissible to show she was fully cooperative. United States v. Myres, 2021 U.S. App. LEXIS 4288 (9th Cir. Feb. 16, 2021).*
A warrant check on the passenger extended the stop, but it was with reasonable suspicion (without deciding the reasonableness of the warrant check without reasonable suspicion). United States v. Burrus, 2021 U.S. App. LEXIS 4295 (3d Cir. Feb. 16, 2021).*
Police looking for a taxicab fare skipper at 3 am found a door to a garage ajar and entered plaintiffs’ home with guns drawn. They encountered plaintiffs outside their bedroom but never found the fare skipper. Plaintiffs sued. The court gives the officers the benefit of the doubt for entry on to the curtilage and the open door to the garage, but not being inside the house no longer even in hot pursuit, if it ever was. Luer v. Clinton, 2021 U.S. App. LEXIS 4265 (8th Cir. Feb. 16, 2021). This is a remarkable case.
"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.
