Defendant was stopped for a traffic offense, and he was unusually nervous. Sitting on his left leg was a cell phone with the screen on showing a picture of meth on a scale. That justified a dog sniff while a traffic citation was written. Key v. State, 2021 Fla. App. LEXIS 1943 (Fla. 1st DCA Feb. 10, 2021).
There are two prongs to a Franks challenge: intentionality and materiality. “On appeal, Pulley does not challenge the district court’s finding that the affiant neither made false statements nor omitted information from her affidavit with the intent to mislead the state magistrate who issued the search warrants.” United States v. Pulley, 2021 U.S. App. LEXIS 3723 (4th Cir. Feb. 10, 2021).*
Defendant’s motion to suppress letters to and from victims in sex assault cases on a reservation was denied by the district court over the objection of lack of particularity. On appeal, the letters were either insignificant or barely touched on, and the court finds it harmless error at best. United States v. Weber, 2021 U.S. App. LEXIS 3662 (8th Cir. Feb. 10. 2021).*
Posted inDog sniff, Franks doctrine, Standards of review|Comments Off on FL1: Screen shot of of meth on a scale on driver’s cell phone permitted dog sniff during writing of traffic ticket
Crashing a fleeing car here wasn’t unreasonable as excessive force. “Here, we agree with the District Court’s determination that no reasonable juror could find that the force used by Officer Biagini was excessive. It is beyond dispute that, in the course of executing a warrant for Desabetino’s arrest, it was objectively reasonable for Officer Biagini to determine that Desabetino was attempting to evade arrest by flight. The force that Officer Biagini used to prevent Desabetino from fleeing in his vehicle, resulting in no serious injuries, was not excessive under the circumstances. Similarly, the non-deadly force that Officer Snider initially used to assist Officer Biagini in the struggle with Desabetino was objectively reasonable under the circumstances.” Desabetino v. Biagini, 2021 U.S. App. LEXIS 3693 (3d Cir. Feb. 10, 2021).
Parents don’t have a Fourth Amendment claim for seizure of the child; the child does. A family court order is functionally a warrant, and it has to be issued on probable cause. Smith v. Tkach, 2021 U.S. App. LEXIS 3669 (2d Cir. Feb. 10, 2021).*
Defendant is represented by counsel, then files a motion to suppress. “Defendant’s pro se motion reflects a misunderstanding of court proceedings. The Defendant fails to specify which search warrant he objects to, fails to provide a copy, or copies, of the offending affidavit(s) he quotes throughout his motion, and fails to provide valid cites to relevant case law required to establish the burden of proof or legal standards. See generally (Doc. 32.) The filing of such motions only serves to waste court resources and make manifest the wisdom of not permitting hybrid representation.” United States v. Moss, 2021 U.S. Dist. LEXIS 25042 (D. Kan. Feb. 10, 2021).
The district court resolved the factual question of whether the passenger’s seat belt was fastened while the car was moving and then was fastened before the officer got to the window. That was a factual basis for the stop, and it was not unreasonable because it was allegedly pretextual (but not shown to be racially motivated) and the fact a large number of officers were involved. United States v. Brooks, 2021 U.S. App. LEXIS 3546 (6th Cir. Feb. 9, 2021).*
Posted inMotion to suppress, Pretext, Standards of review|Comments Off on D.Kan.: Pro se motion to suppress of represented def doesn’t attach affidavits, say why 4A or statute violated, or cite any law; denied for having counsel
A 6 am knock-and-talk was not shown to be unreasonable [on the totality] under Jardines. Defendant doesn’t claim that he was too sleepy to respond to them. United States v. Ofsink, 2021 U.S. Dist. LEXIS 24933 (E.D. N.Y. Feb. 8, 2021):
“It is true that defendant made multiple requests to contact AAA to tow his truck, and he eventually suggested arranging for his father or friends, who were purportedly nearby, to move his truck to avoid impoundment. There was no telling how long it would have taken for the AAA, defendant’s father or any of his friends to arrive, or whether any of them would agree to take custody of the truck at all. The officers were not required by the Fourth Amendment to wait around to find out, given that California law does not require the consideration of such alternatives. Presumably, they had more important official duties to perform. Accordingly, the impoundment of defendant’s truck and the subsequent inventory search were permissible.” United States v. Gonzalez, 2021 U.S. Dist. LEXIS 24840 (E.D. Cal. Feb. 9, 2021).
Defendant wasn’t entitled to a 38.23 exclusionary rule jury instruction where there was a separate tampering count. State v. Jaquez, 2021 Tex. App. LEXIS 1019 (Tex. App. – Austin Feb. 10, 2021).*
Posted inExclusionary rule, Inventory|Comments Off on E.D.Cal.: Officer wasn’t required to wait around for alternative means to tow vehicle before impoundment
An officer who observed a traffic offense and waited for defendant to drive another five blocks could reasonably still stop the car. “Although the officers did not initiate the traffic stop for seven minutes, and did not pull Brown over for five blocks, that delay did not extinguish probable cause because the officers witnessed the traffic infraction firsthand and this Court has not extended the staleness doctrine to these circumstances. … Further, because probable cause existed, the officers’ other motivations in initiating the stop-to further investigate Brown’s behavior going into and exiting the convenience store or to find a place to effectuate the stop-did not undermine the reasonableness of the stop.” United States v. Brown, 2021 U.S. App. LEXIS 3478 (11th Cir. Feb. 9, 2021). [This is the same as probable cause to arrest. There is no constitutional requirement that an arrest occur as soon as probable cause forms. The only limit is whether probable cause dissipates or goes stale in the meantime.]
Defendant was indicted for a revenge porn threat. A search warrant was obtained for his phone to prove he had the picture in the threat. He argued the search warrant was void because the revenge porn statute was unconstitutional. Whether it is or not, the search was valid under good faith exception. Taylor v. State, 2021 Tex. App. LEXIS 1020 (Tex. App. – Austin Feb. 10, 2021).
A prison strip search case stated enough of a fact dispute to overcome summary judgment on qualified immunity for alleged sexual battery during the search. Johnson v. Heins, 2021 U.S. App. LEXIS 3559 (9th Cir. Feb. 9, 2021).*
There was reasonable suspicion for defendant’s traffic stop for 52 in a 40 despite defendant’s claim that pacing is unreliable. [Is it really? It’s still reasonable suspicion; that’s a fact argument for trial.] United States v. Marsh, 2021 U.S. Dist. LEXIS 24187 (N.D. W.Va. Feb. 9, 2021).*
Posted inGood faith exception, Strip search|Comments Off on TX3: Even if revenge porn statute was unconstitutional, that doesn’t nullify a SW issued for it
New Jersey adopts a specific preliminary showing requirement for additional discovery of a Franks violation. State v. Desir, 2021 N.J. LEXIS 127 (Feb. 9, 2021). From the syllabus:
On the totality of circumstances, there was exigency for the police entry, despite their delay. All in all, the delay was reasonable as information was learned, and then it was time to act. People v. Kulpin, 2021 IL App (2d) 180696, 2021 Ill. App. LEXIS 41 (Feb. 8, 2021):
Defendant was charged with stalking a former boss. A disguised email was traced by metadata to defendant’s router. His computer was searched, and the email was found. The question of probable cause for the search warrant does not require the government to exclude all other Comcast users in the area. The question is fair probability evidence will be found. United States v. Bandy, 2021 U.S. Dist. LEXIS 22238 (D. N.M. Feb. 5, 2021).
There was an omission from the affidavit for the warrant, but it was not shown to be material to the finding of probable cause. State v. Rivera, 2021 Del. Super. LEXIS 106 (Feb. 4, 2021).*
Even if the search of defendant’s bag was invalid, he was taken to the police station and his bag was validly searched again an inventory. United States v. Ruffin, 2021 U.S. App. LEXIS 3351 (2d Cir. Feb. 8, 2021).
Defendant’s pointing to a civil deposition to show the affiant had a somewhat different view of the facts for the affidavit for the warrant 13 months after the warrant affidavit didn’t show recklessness. United States v. Turner, 2021 U.S. Dist. LEXIS 23446 (W.D. Ky. Feb. 8, 2021).*
2255 petitioner’s Fourth Amendment claim was barred by Stone. Moore v. Warden, 2021 U.S. App. LEXIS 3448 (11th Cir. Feb. 8, 2021).*
Applying the Ornelas de novo review standard, the court reassesses the evidence and finds reasonable suspicion for the detention. The district court’s view of the evidence of reasonable suspicion was heavily skewed toward the government’s proof. Still, there is reasonable suspicion. United States v. Torres, 2021 U.S. App. LEXIS 3393 (10th Cir. Feb. 8, 2021).
Defendant reframed his probable cause argument from the trial court to the appeal and thus waived it. The court alternatively finds no fundamental error because the officer smelled marijuana on the stop. Alexander-Woods v. State, 2021 Ind. App. LEXIS 33 (Feb. 3, 2021).*
Posted inStandards of review, Waiver|Comments Off on CA10: De novo review overcomes a “skewed” finding of district court
There was reasonable suspicion for the stop of defendant’s vehicle on a three day old report of it being involved in a shooting. On appeal from a denial of a motion to suppress, the evidence from both the suppression hearing and trial is considered. State v. Thomas, 308 Neb. 312 (Feb. 5, 2021):
Defendant was a visitor at a house that was searched under a warrant for drugs. Her purse was searched, too. “Because Powers was more than a ‘transient visitor’ at Moyers’s house and had a known relationship to the premises, and because Powers’s purse was a container that could conceivably conceal the “illegal drugs” that law-enforcement officers were looking for in Moyers’s house, Powers’s Fourth Amendment rights were not violated when the officers searched her purse. Thus, the trial court did not err when it denied Powers’s motion to suppress.” (among conflicting authorities). Powers v. State, 2021 Ala. Crim. App. LEXIS 9 (Feb. 5, 2021).
The stop of defendant’s vehicle was justified by a traffic violation. The officer approaching the car saw in plain view a digital scale in the cupholder. This was reasonable suspicion. United States v. McIntyre, 2021 U.S. Dist. LEXIS 22712 (W.D. La. Jan. 20, 2021).*
“[T]he mere presence of marijuana or the commission of a marijuana-related vehicle infraction in a state where adults may legally possess and transport it does not give officers probable cause to suspect that a vehicle contains contraband.” United States v. Stokes, 2021 U.S. Dist. LEXIS 21950 (N.D. Cal. Feb. 4, 2021).
Officers decided to run a firearm’s serial number to see if it was registered to the defendant, something not even required under state law. There was no reason to believe the firearm wasn’t lawfully possessed. That unreasonably extended the stop. “Thus, the evidence obtained during the illegal extension of the traffic stop is suppressed pursuant to the exclusionary rule.” United States v. Estrella, 2021 U.S. Dist. LEXIS 22127 (D. Conn. Feb. 5, 2021).
There were sufficient remaining questions of fact that qualified immunity is denied in this excessive force case. Estate of Davis v. Ortiz, 2021 U.S. App. LEXIS 3295 (7th Cir. Feb. 5, 2021).*
The fact an officer knew a suspect from prior interactions doesn’t mean that the officer can’t run the name and dob for warrants. New Covenant Church v. Futch, 2021 U.S. Dist. LEXIS 22523 (S.D. Ga. Feb. 5, 2021).
Defense counsel can’t be ineffective for not making a motion to suppress that wouldn’t succeed. People v. Barksdale, 2021 NY Slip Op 00748, 2021 N.Y. App. Div. LEXIS 744 (4th Dept. Feb. 5, 2021).*
The affidavit for the search warrant was based on an alleged ongoing drug operation, so there was probable cause. People v. Miller, 2021 NY Slip Op 00749, 2021 N.Y. App. Div. LEXIS 741 (4th Dept. Feb. 5, 2021).
911 was called by defendant’s mother about his possible cardiac arrest. When the officer arrived, defendant was alert and fine, and his drugs were in plain view. Their seizure was valid. Glanden v. State, 2021 Md. App. LEXIS 80 (Feb. 5, 2021).
The officers followed the inventory SOP “to the letter,” and it’s not unreasonable. Some discretion not exercised is not unreasonable. United States v. Isaac, 2021 U.S. App. LEXIS 3263 (11th Cir. Feb. 5, 2021).*
Defendant failed in his Franks offer of proof, so trial court didn’t err in denying a hearing. People v. Edwards, 2021 NY Slip Op 00752, 2021 N.Y. App. Div. LEXIS 737 (4th Dept. Feb. 5, 2021).*
The good faith exception supports this search warrant, even if there wasn’t probable cause after a trash pull, an issue not decided. The existence of probable cause was “hotly contested.” United States v. Morales, 2021 U.S. App. LEXIS 3260 (11th Cir. Feb. 4, 2021):
Defendant’s misdemeanor vandalism arrest while officers were inside his house was reasonable under the Fourth Amendment. Common law on misdemeanor arrests applies, too. United States v. Barajas, 2021 U.S. Dist. LEXIS 21651 (N.D. Cal. Feb. 4, 2021).
Defendant was convicted of assault for spitting on officers inside her house. The attenuation doctrine applies to her crime against the officers even if the entry was unreasonable. People v. Plemmons, 2021 COA 10, 021 Colo. App. LEXIS 141 (Feb. 4, 2021).
New Mexico brought an administrative action against the appellant, but it was dismissed after a lawyer used a deceptive and misleading document. Plaintiff filed a malicious prosecution case including a Fourth Amendment claim, but it was dismissed as to these parties for lack of personal participation in the state case. Advantageous Cmty. Servs. v. King, 2021 U.S. App. LEXIS 3243 (10th Cir. Feb. 5, 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.
