The district court did not abuse its discretion in declining equitable jurisdiction under Rule 41(g) for lack of a threshold showing of standing and justiciability. United States v. Stoune, 2021 U.S. App. LEXIS 1178 (11th Cir. Jan. 15, 2021).
The officer watched defendant leave a house party and get in his car to drive off. Defendant walked by and exhibited apparent signs of intoxication which would justify a stop. State v. Casatelli, 2021 ND 11, 2021 N.D. LEXIS 8 (Jan. 12, 2021).*
Probable cause was shown for the search warrant for defendant’s place based on his being an enforcer for a DTO, not just a drug dealer. Moreover, the good faith exception applies. United States v. Cater, 2021 U.S. Dist. LEXIS 7866 (W.D. Ky. Jan. 15, 2021).*
There’s no Fourth Amendment issue raised here, but this is a particularly ugly child pornography case involving live child rape broadcast by Zoom. Police gathered sign-in and logs from Zoom used to share the child pornography. It was captured first by a Toronto detective and shared with the FBI in Pennsylvania for further investigation. The chat logs from Zoom supported the conspiracy conviction. Needing the chat room ten-digit code to get in and then following directions to leave their webcam on also supported the conspiracy conviction. United States v. Heatherly, 2021 U.S. App. LEXIS 1214 (3d Cir. Jan. 14, 2021):*
Defense counsel’s strategic choice to not challenge a search and embrace the result of the search for cross-examination was reasonable. And it was justified because it resulted in acquittal on a big count. State v. Baker, 2020-Ohio-7023, 2020 Ohio App. LEXIS 4860 (7th Dist. Dec. 30, 2020) (see Treatise § 60.19 n.7):
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Where buy money has recorded serial numbers, that’s required in a search warrant for the money to satisfy particularity. Also, the good faith exception did not apply. United States v. Contreras-Aguilar, 2021 U.S. Dist. LEXIS 8613 (E.D. Wash. Jan. 15, 2021) (denying reconsideration of order granting motion to suppress).
In criminal restitution litigation, defendant’s wife doesn’t show an interest in his 401(k) being garnished. She assumes a Fourth Amendment issue that isn’t there. United States v. Abell, 2021 U.S. App. LEXIS 1199 (1st Cir. Jan. 15, 2021).*
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Plaintiff failed to show a Franks violation in the affidavit for warrant. “To be sure, if the affiant for a warrant possesses information that would cast substantial doubt on the existence of probable cause, that information should not be intentionally withheld from the judge asked to approve the warrant. But Detective Reid’s affidavit discloses how she made the identification, so any weaknesses of the procedure were apparent to the judge.” Metzler v. City of Colo. Springs, 2021 U.S. App. LEXIS 1167 (10th Cir. Jan. 15, 2021).
There was a factual dispute underlying the district court’s denial of summary judgment for qualified immunity, so there is no jurisdiction for this appeal. Estate of Anderson v. Marsh, 2021 U.S. App. LEXIS 1153 (9th Cir. Jan. 15, 2021).*
The 15-month delay between seizure of a cell phone with probable cause is was unreasonable, applying United States v. Smith, 967 F.3d 198, 202 (2d Cir. 2020). However, the court finds that the good faith exception applies, and the court will not suppress. United States v. Berroa, 2021 U.S. Dist. LEXIS 7947 (D. Mass. Jan. 15, 2021):
Before an officer files a criminal complaint, there is no constitutional duty to review potential video of the occurrence. The video here wasn’t quickly accessible to the officer. Here, there was probable cause and this other constitutional claim is not even partly established anywhere. Craft v. White, 2021 U.S. App. LEXIS 1002 (10th Cir. Jan. 14, 2021).
Defendant’s stop for having a taillight blinking was reasonable; the dashcam proved it. “But at best the taillight’s on-again-off-again functioning provided an objective reason for Trooper Shively to investigate the matter. “The ultimate touchstone of the Fourth Amendment is reasonableness.” Heien, 574 U.S. at 60 (cleaned up). Under these facts, Trooper Shively’s decision to initiate a stop was reasonable.” United States v. Leander, 2021 U.S. Dist. LEXIS 7571 (D. Idaho Jan. 12, 2021).*
Posted inProbable cause, Reasonable suspicion|Comments Off on CA10: 4A imposes no duty for officer to seek out a video to confirm PC officer already has
Defendant’s stop for expired tags in another state was objectively reasonable because the officer couldn’t have known that there was a Covid executive order extending the time to renew vehicle licenses in the other state. Maybe in the officer’s own state, but surely not of another state. United States v. Morris, 2021 U.S. Dist. LEXIS 7548 (S.D. W.Va. Jan. 14, 2021):
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A city code enforcement officer who came to plaintiff’s door for a couple of minutes to attempt to talk to him about a sign code violation did not violate the curtilage. Clark v. City of Williamsburg, 2021 U.S. App. LEXIS 1001 (10th Cir. Jan. 14, 2021).
Defendant failed in his burden of proof to show a Franks violation or a lack of probable cause. There was no plain error that the search warrant was stale, either. United States v. Pettaway, 2021 U.S. App. LEXIS 1005 (11th Cir. Jan. 14, 2021).*
Failure to file a motion to suppress a witness’s testimony isn’t ineffective assistance of counsel since that’s not a valid claim. Galbreth v. United States, 2021 U.S. Dist. LEXIS 7371 (S.D. Miss. Jan. 14, 2021).*
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The Michigan state courts’ conclusion that the judge who issued a search warrant was not barred from hearing the trial was based on precedent, the judge didn’t remember the search warrant, and it is not an unreasonable application of existing precedent under 28 U.S.C. § 2254(d). Cameron v. Rewerts, 2021 U.S. App. LEXIS 987 (6th Cir. Jan. 14, 2021):
An airline pilot nude in his room who was seen through the window doesn’t state a Fourth Amendment claim that the hotel had a duty to protect him from being seen by the public. Besides that, he doesn’t state any other Fourth Amendment claim against the hotel. Collins v. Westin DIA Operator, LLC, 2021 U.S. Dist. LEXIS 7294 (D. Colo. Jan. 14, 2021):
Defendant’s jail calls to his wife were not privileged because he knew from the recording at the start of the call that it was being recorded. Newman v. State, 2021 Tex. App. LEXIS 293 (Tex. App. – Eastland Jan. 14, 2021).
Summary judgment for the defense is denied for the time being on plaintiff’s claim she was unreasonably strip searched in temporary custody at jail without reasonable suspicion and where she never went into general population. While her burden is heavy, on defendants’ motion, she could never prevail despite undisputed facts that favor her. Blake v. Lambert, 2021 U.S. Dist. LEXIS 6677 (N.D. Miss. Jan. 12, 2021).*
Petitioner’s successor petition is based on the court’s supposed failure to properly address his motion to suppress via a denied mistrial motion. That was previously ruled on, and it’s now barred. In re Garrett, 2021 U.S. App. LEXIS 956 (11th Cir. Jan. 13, 2021).*
Defendant filed a motion to suppress a statement and a search. At the hearing, however, the search wasn’t challenged. Defendant has to show cause why that part of the motion should not be denied. United States v. Henry, 2021 U.S. Dist. LEXIS 6636 (D.V.I. Jan. 13, 2021).
Defendant wasn’t “stopped,” but if he was, there was reasonable suspicion. Agudo-Monroy v. United States, 2021 U.S. Dist. LEXIS 6215 (S.D. Cal. Jan. 12, 2021).*
On the totality, the CI was sufficiently corroborated. “There is no doubt the affidavit for the search warrant could have provided more about the informant’s history and the investigating officer could have done more to corroborate what was reported. The affidavit as presented was not an exemplar, but it was legally sufficient.” United States v. Upshaw, 2020 U.S. Dist. LEXIS 247176 (M.D. Ala. Nov. 24, 2020).*
Defendant’s regular borrowing of a vehicle gave him standing in the vehicle when he was driving it. “In sum, the affidavit in support of the December 8, 2017 search warrant fails to provide the requisite ‘“nexus between the place to be searched and the evidence sought.’” Therefore, even viewing the affidavit with great deference, the affidavit fails to establish probable cause to search Everett’s home and vehicle.” The affidavit is bare bones: “Because this ‘bare bones’ affidavit failed to state any connection between the illegal activity and the places to be searched, the good-faith rule does not apply. Therefore, all evidence seized pursuant to the December 8, 2017 warrant must be excluded.” United States v. Bradford, 2021 U.S. Dist. LEXIS 6595 (N.D. Ohio Jan. 13, 2021).
“Officer Kehoe had probable cause to stop and arrest Fogleman and, given the circumstances, the search of the vehicle was lawful.” Fogleman v. State, 2021 Miss. App. LEXIS 17 (Jan. 12, 2021).*
A police officer fired at a vehicle driven by an armed man that was trying to hit him, and a passenger was hit. On the undisputed facts, the use of force was reasonable. Fagre v. Parks, 2021 U.S. App. LEXIS 887 (1st Cir. Jan. 13, 2021).*
“The district court correctly applied the multi-part legal analysis and did not commit error, much less clear error, in its factual finding that Det. Tupper’s statement to Mumme that he would seek a search warrant did not vitiate Mumme’s consent to enter his home and to seize his electronic devices. ‘[C]onsent to a search is not invalid merely because it is secured by an officer’s accurate assurance that there will soon be a lawful search anyway,’ and while ‘the law rejects consent secured by knowingly false representations … [,] at the same time [it] see[s] no reason to deter officers from securing convenient and prompt consensual access by conveying accurate information to a recipient.’ United States v. Vázquez, 724 F.3d 15, 22 (1st Cir. 2013) (collecting cases) ….” United States v. Mumme, 2021 U.S. App. LEXIS 888 (1st Cir. Jan. 13, 2021).*
Running wants or warrants on a sex offender involved in a stop didn’t violate the Fourth Amendment. United States v. McCowan, 2021 U.S. Dist. LEXIS 6500 (D. Nev. Jan. 13, 2021).*
The affidavit for the search warrant shows probable cause. “Even if the affidavit did not establish probable cause, it is undisputed that the officers searched the residence only after securing a search warrant issued by Judge Hughes. The Defendant does not argue that the officers’ reliance on the warrant was so objectively unreasonable as to warrant suppression of any evidence subsequently seized” under Leon. United States v. Upshaw, 2021 U.S. Dist. LEXIS 6165 (M.D. Ala. Jan. 13, 2021).*
Defendant fails in his PCR to show that defense counsel was ineffective for not raising a Gerstein unlawful detention claim. He can’t show that a Gerstein claim has anything to do with his conviction. McKaughan v. State, 2021 Tenn. Crim. App. LEXIS 21 (Jan. 13, 2021).*
Posted inProbable cause, Search|Comments Off on D.Nev.: Running wants or warrants on a sex offender involved in a stop didn’t violate 4A
"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.
