Defendant had no objective reasonable expectation of privacy in an apartment he wrongfully entered and assaulted the occupant. A black case he kept there had a subjective expectation of privacy but not an objective one. United States v. John, 2021 U.S. Dist. LEXIS 18114 (D. Mass. Feb. 1, 2021).
This stop was extended because defendants refused to identify themselves for a while. State v. Spratley, 2021-Ohio-262, 2021 Ohio App. LEXIS 272 (3d Dist. Feb. 1, 2021).*
Officers observing an apparent hand-to-hand drug deal had reasonable suspicion for defendant’s stop, and that produced a plain view of heroin and cash. Then, the automobile exception permitted a search of the car. United States v. Venable, 2021 U.S. Dist. LEXIS 19430 (E.D. N.C. Feb. 1, 2021).*
The affidavit showed probable cause, but it completely failed to show nexus to defendant’s place. It was so deficient in the showing of nexus that the good faith exception cannot apply. United States v. King, 2021 U.S. Dist. LEXIS 18956 (E.D. N.C. Jan. 31, 2021).
Defendant’s stop violated the Fourth Amendment because the officer’s belief that state law prohibited lane changes within an intersection was not objectively reasonable under Heien. People v. Rice, 2021 IL App (3d) 180549, 2021 Ill. App. LEXIS 27 (Jan. 29, 2021).*
Plaintiff’s complaint about his strip search at jail doesn’t rise to a constitutional violation. Peeples v. Fiorito, 2021 U.S. Dist. LEXIS 18332 (N.D. N.Y. Feb. 1, 2021).*
The day before defendant’s parole search, the state supreme court put the legality of his parole status in doubt. Nobody involved even knew about the case. The court agrees that the good faith exception applies to the search because there was no deterrent value. State v. Sanders, 2021-Ohio-275, 2021 Ohio App. LEXIS 269 (12th Dist. Feb. 1, 2021):
Posted inExclusionary rule, Good faith exception|Comments Off on OH12: GFE applies to precedent decided day before search where nobody knew of the case
The government showed sufficient grounds to have the search warrant application remain under seal to protect the integrity of the investigation. United States ex rel. Childress v. Carolina Comprehensive Health Network, 2021 U.S. Dist. LEXIS 18389 (M.D. N.C. Feb. 1, 2021):
“Second, the affidavits supported the Magistrate’s determination that there was a nexus between the murder and Defendant’s iPhone. The affidavits averred that Witness 2 texted Defendant throughout the day of the murder.” State v. Wilson, 2021 Del. Super. LEXIS 84 (Jan. 29, 2021).
A 911 call of a battery in progress in an apartment building provided a reasonable basis on the totality of exigency for officers entering the apartment. People v. Aljohani, 2021 IL App (1st) 190692, 2021 Ill. App. LEXIS 23 (Jan. 28, 2021).*
Defendant’s Franks challenge fails because nothing from the complained about search warrant was admitted at trial against him. This is a moot claim. Beckwitt v. State, 2021 Md. App. LEXIS 57 (Jan. 29, 2021).*
Plaintiff stated a FTCA claim for trespass and intentional infliction of emotional distress for an alleged unjustified protective sweep entering his house to arrest him as a material witness in a military commission case. Gill v. United States, 2021 U.S. Dist. LEXIS 18117 (D. Mass. Jan. 29, 2021).
Defendant’s 2255 merits challenge to his search claim was different than the one presented and procedurally barred by the mandate of the direct appeal. In any event, it seems lawful. Jones v. United States, 2021 U.S. Dist. LEXIS 17212 (D. Conn. Jan. 29, 2021).*
Posted inArrest or entry on arrest, Waiver|Comments Off on D.Mass.: Ptf stated claim for trespass for wrongful protective sweep in material witness arrest
The affidavit for this search warrant didn’t show probable cause to search for drugs, but it did for stolen property. Severing that part, when the officers searched for stolen property, they found drugs, and they were thus in plain view. Thus, the good faith exception is moot. United States v. Newell, 2021 U.S. Dist. LEXIS 18066 (W.D. N.C. Feb. 1, 2021).
“[L]aw enforcement officers[] discover[ed] during the execution of a search warrant of Petitioner’s home that Petitioner’s computer was logged into the Playpen website as the main administrator …; and a text file found on Petitioner’s computer containing various passwords associated with the Playpen administrator ….” The argument defense counsel was ineffective for not seeking to prove the computer must have been hacked too would not change the outcome. Chase v. United States, 2021 U.S. Dist. LEXIS 18057 (W.D. N.C. Feb. 1, 2021).*
Posted inOverbreadth|Comments Off on W.D.N.C.: The part of the SW for drugs was severable and without PC; drugs found, however, were in plain view in stolen property search
Techdirt: Federal Court Orders Destruction Of Illegally-Obtained Sex Trafficking Sting Recordings by Tim Cushing (“The expiring breaths of a sensationalistic failure are emanating from a Florida sex trafficking investigation’s soon-to-be corpse. A massive sting operation — built on surreptitious recordings of massage parlor employees and their customers — ended with nothing more than a bunch of solicitation charges. The alleged massive sex trafficking operation was actually just a bunch of consensual activity, with massage parlor employees free to come and go as they pleased.”)
CBS Baltimore: Baltimore’s Board Of Estimates Ends Agreement With Company Running Aerial Surveillance Program (“The Baltimore City Board of Estimates on Wednesday unanimously approved ending the city’s agreement with the company undertaking the controversial aerial surveillance program. In April 2020, the city approved a contract with Ohio-based Persistent Surveillance Systems for the pilot program aimed at reducing crime by providing police officers visual data collected by surveillance planes.”)
Posted inSurveillance technology|Comments Off on CBS Baltimore: Baltimore’s Board Of Estimates Ends Agreement With Company Running Aerial Surveillance Program
Ex ante search restrictions are rare. The warrant process is concerned with what may be searched for and seized, not necessarily how, and a taint teams isn’t always required. The officers could seize a large number of emails and then do a word or date search to find what is particularly described. The plain view doctrine may thus apply. United States v. Keleher, 2021 U.S. Dist. LEXIS 17345 (D.P.R. Jan. 28, 2021):
Posted inE-mail, Particularity|Comments Off on D.P.R.: When emails are searched, a taint team isn’t always required; a large amount may be seized for later search
M.R.E. 315 provides for search authorizations, and this one wasn’t an anticipatory warrant with conditions. Oral applications and authorizations are constitutionally proper per United States v. Brown, 784 F.2d 1033, 1036 (10th Cir. 1986). An Air Force regulation on the subject wasn’t binding and was advisory only because it was couched in permissive terms. Indeed, the regulation didn’t even appear to be commonly known among JAG lawyers. United States v. Justice, 2021 U.S. Dist. LEXIS 17264 (D.N.M. Jan. 29. 2021).
Defendant’s traffic stop for riding a bicycle at night without a light and on the wrong side of the street was factually justified. United States v. Jeffries, 2021 U.S. Dist. LEXIS 17408 (E.D. Mo. Jan. 29, 2021).*
Defendant’s actions that the district court held were reasonable suspicion were innocuous on the totality, and the CI was not corroborated. The motion to suppress should have been granted. United States v. Bullock, 2021 U.S. App. LEXIS 2499 (3d Cir. Jan. 29, 2021):
Defendant sought to challenge his search warrant as a lack of probable cause but couched it in terms that sounded like Franks. He needs to make this clear so the government can appropriately respond. United States v. McComas, 2021 U.S. Dist. LEXIS 16617 (D. Idaho Jan. 26, 2021):
VICE: How New York Quietly Ended Its Street Drug War by Max Daly (“New data analyzed by VICE News reveals a monumental drop in arrests and convictions for low level drug crime in NYC, as the city finally tries to disentangle itself from a war on drugs that it once led on the world stage.”)
Posted inUncategorized|Comments Off on VICE: How New York Quietly Ended Its Street Drug War
The affidavit for a phone warrant for an electronic boarding pass was issued with probable cause. The affidavit statement that the amount of drugs was enough for “distribution” was neither false nor reckless, just because defendant disagrees with it. United States v. Reyes, 2021 U.S. Dist. LEXIS 16566 (S.D. N.Y. Jan. 28, 2021).
Defendant’s discovery request for certain records about the CI to attempt to show a false statement was speculative. “The final item at issue in the Motion to Compel was KPD’s policies and procedures for controlled buy operations and use of confidential informants. As previously discussed, the burden was on Defendants to show something ‘more than conclusory’ in order to overcome the presumption that the affidavit supporting the search warrant was valid.” State v. Salvas, 2021 Haw. App. LEXIS 17 (Jan. 27, 2021)* (unpublished).
Posted inFranks doctrine, Informant hearsay|Comments Off on S.D.N.Y.: Opinion in affidavit that amount of drugs involved was enough for distribution was not a Franks issue
The fact the passenger had an outstanding warrant didn’t show reasonable suspicion for a frisk of the driver for officer safety. State v. Goguen, 308 Ore. App. 706, 2021 Ore. App. LEXIS 75 (Jan. 27, 2021).*
“We agree with the state that, even if the trial court erred in denying suppression of certain statements made by defendant during his police interview, any error was harmless. Because the harmlessness issue is dispositive, we assume without deciding both (1) that defendant’s motion to suppress encompassed statements made in his police interview, a preservation issue that we need not resolve given our disposition, and (2) that the trial court erred in denying suppression.” State v. Thompson, 308 Ore. App. 729, 2021 Ore. App. LEXIS 86 (Jan. 27, 2021).*
“[W]e focus on three facts set out in the affidavit: (1) defendant dropped the phones while attempting to evade police; (2) defendant disclosed, in a recorded telephone call made from jail, that he ‘threw’ his phone and appeared upset that it was lost; and (3) Howden knows from his training and experience that suspects of these types of crimes use digital devices to ‘often communicate with others regarding buying or selling weapons and firearms,’ and to ‘often take photos and videos of them possessing firearms and weapons.’ Taken together, those facts fail to establish probable cause to search defendant’s phones.” “Accordingly, because the affidavit failed to substantiate a probability that evidence of defendant’s suspected crimes would be found on the phones, the trial court erred in denying defendant’s motion to suppress.” State v. Hernandez, 308 Ore. App. 783, 2021 Ore. App. LEXIS 83 (Jan. 27, 2021).*
There was probable cause for search and seizure of defendant’s cell phone for pictures. State v. Cazee, 308 Ore. App. 748, 2021 Ore. App. LEXIS 84 (Jan. 27, 2021).*
The stop was unreasonably extended for a dog sniff. The paperwork had been returned and they were told they were free to go. “Thus, the officers prolonged the traffic stop after the mission of the stop was completed in order to conduct an open-air dog sniff, which renders the seizure at issue unlawful. And this is true even if that process added ‘very little time to stop.’” Terry v. State, 2021 Ga. App. LEXIS 34 (Jan. 28, 2021).
Defendant’s post-conviction claim that the inventory sheet was forged was known before his plea and is waived by the plea, even if true. “Even if, for the sake of discussion, we presume the inventory sheets somehow impacted his decision to plead guilty, Mitchell was aware of the potential issues with the inventory sheets and disclosed those issues to his trial counsel before deciding to plead guilty.” State v. Mitchell, 2021-Ohio-210, 2021 Ohio App. LEXIS 212 (8th Cir. Jan. 28, 2021).* [If the inventory sheets are otherwise correct, it probably doesn’t matter that they were “forged” because the defense can’t show prejudice.]
An actual traffic offense overcomes defense claims the stop was actually a motive for searching for drugs. Defendant didn’t produce current proof of insurance, and that led to extension of the stop. The officer wasn’t just obliged to have noted on the ticket that insurance wasn’t provided. State v. Newman, 2021-Ohio-197, 2021 Ohio App. LEXIS 198 (5th Dist. Jan. 27, 2021).
Defendants arrested an Al-Jazeera TV crew covering the Ferguson protests, and they sued claiming First and Fourth Amendment violations. On the defense motion for summary judgment, the district court said the case should go to trial. The plaintiffs’ video of the events preceding the arrest was enough to show that summary judgment should be denied because there might not be probable cause for arrest. The defense relies on the reasonable officer standard, but it doesn’t overcome the showing of a question for trial. Quraishi v. St. Charles County, 2021 U.S. App. LEXIS 2379 (8th Cir. Jan. 28, 2021).*
Proof of the totality of circumstances of reasonable suspicion is less than a preponderance of the evidence or even a prima facie case. It depends a lot on “those who can read between the lines,” the investigating officers. Freeman v. State, 2021 Md. App. LEXIS 53 (Jan. 28, 2021):
ICE officers could approach appellant’s door under Jardines with an immigration arrest warrant even though it is not a judicial warrant. “The immigration warrant licensed the officers to solicit consent to entry for the limited purpose of enforcing the civil immigration laws, a context that implicates distinct constitutional interests from those involved in a criminal case. See Lopez-Mendoza, 468 U.S. at 1042.” A co-occupant consented to entry. Rauda v. Wilkinson, 2021 U.S. App. LEXIS 2443 (9th Cir. Jan. 28, 2021).
Plaintiff’s cursory Fourth Amendment qualified immunity briefing was inadequate. “By failing properly to assert qualified immunity in his Rule 12(b)(6) motion to dismiss, Healy has forfeited this issue.” Watkins v. Healy, 2021 U.S. App. LEXIS 2411 (6th Cir. Jan. 28, 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.
