“We begin with Price’s Fourth Amendment excessive force claims as alleged in his proposed amended complaint. The district court concluded that Price’s claims, even as amended, remained ‘inseparable’ from his conviction for battery of an officer and, thus, were barred by Heck. We agree.” Price v. City Of Bossier, 2021 U.S. App. LEXIS 150 (5th Cir. Jan. 5, 2021).*
CoA denied. “Here, Walker is attacking the underlying judgment of the state trial court rather than any action in the district court that is governed by this rule. Moreover, Walker’s bare unsupported allegation that the state trial judge was attempting to conceal evidentiary information by transferring the case to another judge for a determination on the suppression motion according to state court rules does not support a finding of fraudulent conduct. Based on the above, a reasonable jurist could not conclude that the district court abused its discretion in denying Walker’s Rule 60(d)(3) motion.” Walker v. Mazza, 2021 U.S. App. LEXIS 169 (6th Cir. Jan. 5, 2021).*
Posted inIssue preclusion|Comments Off on CA5: Ptf’s underlying conviction is attacked by his 4A claim and thus barred by Heck
The CI’s story was substantially corroborated to provide probable cause. “In this case, Frampton’s affidavit provides substantial information about the CI’s reliability, from which the issuing judge could have inferred probable cause. The affidavit recounted the reliability of the CI’s past contacts with law enforcement, which led to multiple convictions and seizures of drugs and money. The affidavit disclosed law enforcement efforts to corroborate independently the information provided by the CI about McKinnon, including a search of McKinnon’s criminal history, review of property ownership records, a photograph identification (discussed in more detail below), and surveillance of the locations. Most importantly, the police officers corroborated the CI’s information about McKinnon’s drug dealing by observing the CI engage in multiple controlled purchases of drugs from McKinnon. In sum, McKinnon’s contention that the evidence should be suppressed due to a failure to establish the credibility of the CI is without merit.” United States v. McKinnon, 2021 U.S. Dist. LEXIS 863 (W.D. Pa. Jan. 5, 2021).*
Posted inInformant hearsay|Comments Off on W.D.Pa.: CI’s story was substantially corroborated to provide PC; controlled buys the clincher
The consenter’s uncertainty that defendant was alone in the apartment justified a protective sweep, and ultimately she consented and the evidence supports that conclusion. United States v. Phyfier, 2021 U.S. App. LEXIS 133 (11th Cir. Jan. 5, 2021). [Even so, case law uniformly says they don’t have to take her at her word.]
Qualified immunity was properly granted on the facts that the officers’ use of force was reasonable. Edwards v. City of Muskogee, 2021 U.S. App. LEXIS 124 (10th Cir. Jan. 5, 2021).*
Plaintiff was charged in state court with possession, and the state court credited his version over that of the officers on the basis for the stop because their testimony was contradictory and confusing. Still, that doesn’t have preclusive effect in his § 1983 case over the stop. That’s a fact question for trial, and it may be admissible. Moore v. Monaghan, 2021 U.S. Dist. LEXIS 849 (E.D. Pa. Jan. 5, 2021):
PA grants review on the authority of Child Protective Services to enter without a warrant on a report of a “child in need of services” under (1) state constitution, and (2) Fourth Amendment. In interest of Y.W.-B., 2021 Pa. LEXIS 37 (Jan. 5, 2021)*:
Defendant’s Franks argument on appeal fails because the motion to suppress was based on a lack of probable cause and didn’t direct the court to any alleged false statement under Franks. United States v. Baker, 2021 U.S. App. LEXIS 113 (6th Cir. Jan. 5, 2021):
CoA denied for an ineffective assistance of counsel claim that defense counsel didn’t investigate the claim that the state court search warrant hadn’t been properly issued and then filed and was thus invalid. It wouldn’t be because there was essentially an admission there was a warrant signed by a judge. Boyd v. United States, 2021 U.S. App. LEXIS 107 (6th Cir. Jan. 4, 2021):
CNS: Judges Grapple With Phone, Laptop Searches at US Customs by Thomas Harrison (“The First Circuit struggled Tuesday with a policy that lets border agents look through the phones or laptops of travelers returning from abroad.”)
Crime Online: School principal ordered to pay $3.6M for sharing students’ nude pictures online by Jacquelyn Gray (“A former principal in Kentucky who is serving a nine-year federal prison sentence was ordered last week to pay $3.6 million for confiscating students’ phones and uploading their nude photos to the internet. According to the Louisville Courier-Journal, six accusers named ex-LaRue County High School principal Stephen Goodlett, 40, and the LaRue County School District in a civil lawsuit which alleged Goodlett’s actions were libelous, defamatory, damaged their reputations, and violated their Fourth Amendment rights.”)
Posted inCell phones, School searches|Comments Off on Crime Online: School principal ordered to pay $3.6M for sharing students’ nude pictures online
Plaintiff’s detention outside the police station for engaging in confrontational behavior went beyond any constitutionally protected recording activity. Defendants’ actions, when combined with their knowledge of vehicles being vandalized and stolen in the area and their personal knowledge that a previous filming incident led to the murder of two officers, could cause an objectively reasonable person in the officers’ position to suspect plaintiff was up to more than simply recording police. The court cannot say the officers’ conduct was objectively unreasonable under clearly established law, nor in violation of the First Amendment. Defendants are entitled to qualified immunity for the Terry stop they made because they had at least arguable reasonable suspicion given their knowledge of past incidents and plaintiff’s evasive and uncooperative behavior. However, the officers lacked probable cause for plaintiff’s arrest and they are not entitled to qualified immunity on his claim for false arrest. Under the facts of the case, the government interests did not outweigh plaintiff’s possessory interest in his phone and camera. The warrantless seizure of the items violated plaintiff’s clearly established right to be free of unreasonable seizures of his property, and the officers were not entitled to qualified immunity on this claim. Robbins v. City of Des Moines, 2021 U.S. App. LEXIS 83 (8th Cir. Jan. 5, 2021).*
Posted inQualified immunity, Reasonableness|Comments Off on CA8: Detention of ptf for videoing outside of police station was reasonable given the officers’ concerns about other crimes and vandalism there
Analysis: The Myriad Problems With Qualified Immunity (“In his Section 1983 Litigation column, Martin Schwartz joins jurists and academics who, over the last several years, have criticized the Supreme Court’s qualified immunity jurisprudence, calling for its elimination or at least reform.”)
Posted inQualified immunity|Comments Off on NYLJ: The Myriad Problems with Qualified Immunity
When a California local government agency buys a cell site simulator, state law requires a privacy policy be adopted for it. A writ of mandate is granted preventing the respondent city from using it until a policy complying with state law is adopted. Oakland Privacy v. Vallejo, FCS054805 (Super. Ct. Solano Co. Nov. 23, 2020).
The officer had reasonable suspicion to continue the stop after seeing the paperwork on the vehicle and the driver because of how he drove, taking his time to stop, and other things. The nearly four minute wait for a Spanish speaking officer to arrive thus wasn’t unreasonable. Avila-Trujillo v. State, 2021 Tex. App. LEXIS 16 (Tex. App. – Austin Jan. 5, 2021).*
Posted inCell site simulators, Reasonable suspicion|Comments Off on CA, Solano Co.: City govts can’t use cell site simulators without adopting a specific privacy policy under CA law
Police responded to a potential burglary call and encountered a vehicle. In plain view the officers could see what was likely methamphetamine. That led to a search that found explosive devices. The plain view was reasonable. United States v. Miller, 2021 U.S. App. LEXIS 35 (5th Cir. Jan. 4, 2021).*
The video of defendant’s custodial interview shows that defendant’s consent was voluntary. United States v. Calderon, 2021 U.S. Dist. LEXIS 180 (D. Colo. Jan. 4, 2021).*
Posted inConsent, Plain view, feel, smell|Comments Off on CA5: Burglary call led to plain view of drugs in car, then a search
“The evidence in this case supports the conclusion that the length of the stop was supported by reasonable suspicion, and the encounter was reasonably related in scope to the purpose of the stop. Trooper Vanhoose testified that after he stopped Simms, he asked for his license, registration and proof of insurance, all routine requests to ensure that the vehicle and driver follow the law. What he observed was that Simms related travelling from Louisville to Ashland to visit family for three days. However, he had no luggage and informed officers he only needed the clothes he was wearing, he presented with nervous twitches such as tapping on the steering wheel and avoided eye contact with the officers, and stated that he had not rented the vehicle he was driving. Finally, Vanhoose testified that based upon his training, two vehicles traveling close together, one matching description of vehicle allegedly moving narcotics, all led him to believe that something else was going on.” The stop was about 14 minutes until the search occurred. United States v. Simms, 2020 U.S. Dist. LEXIS 245232 (E.D. Ky. Nov. 16, 2020),* adopted as modified, 2020 U.S. Dist. LEXIS 244568 (E.D. Ky. Dec. 30, 2020).*
Posted inReasonable suspicion|Comments Off on E.D.Ky.: Continuation stop was supported by RS based on routine questions and observations
Execution of a search warrant on a cell phone for one crime doesn’t permit a search of the cell phone for another crime. A separate warrant has to be obtained. The first warrant does not extinguish the owner’s reasonable expectation of privacy in the phone for all purposes. The phone was searched with Cellebrite. People v. Hughes, 2020 Mich. LEXIS 2307 (Dec. 28, 2020):
Posted inCell phones, Warrant execution|Comments Off on MI: Separate SW for cell phone contents required when another potential crime discovered during search
Failure to tell the target of a search warrant or his lawyer who showed up what’s being seized by showing the warrant itself doesn’t justify applying the exclusionary rule. The attachments incorporated into the affidavit were present at the scene of the search, and this was not a general search. United States v. Jackson, 2021 U.S. Dist. LEXIS 104 (D. V.I. Jan. 4, 2021).
Defendant waived his search issue by pleading guilty, and based on all that’s in the record, he had no reasonable expectation of privacy in the place searched so he’d lose on the merits. Woods v. United States, 2021 U.S. Dist. LEXIS 60 (E.D. Mo. Jan. 4, 2021).*
Posted inParticularity, Waiver, Warrant execution|Comments Off on D.V.I.: Not showing target a “particularized list” of things to be seized doesn’t justify exclusion
A man remodeling defendant’s house found a USB port in the bathroom, and he gathered that the USB could be used to hook up a camera in the bathroom to record children visiting there. He took the device he found home and later looked at it. He talked to his girlfriend and decided to take it to the police. His own look at the device was a private search, and there was no agency with the police. Finally, the police did not need a warrant to obtain it from him because of exigency. United States v. Stephen, 2021 U.S. App. LEXIS 3 (8th Cir. Jan. 4, 2021).
Plaintiff’s Franks challenge fails because, removing the challenged statements from the search warrant affidavit, probable cause remained. Onwenu v. Bacigal, 2021 U.S. App. LEXIS 16 (6th Cir. Jan. 4, 2021).*
Police manipulating the emergency function of a locked cell phone screen to attempt to see if a particular call came in was an impermissible search, but the government showed inevitable discovery applies. United States v. Jones, 2021 U.S. Dist. LEXIS 55 (E.D. Wis. Jan. 4, 2021), R&R, 2020 U.S. Dist. LEXIS 245645 (E.D. Wis. Nov. 24, 2020):
“Williams first argues that the police officers violated the Fourth Amendment by approaching him without reasonable suspicion. R. 33 at 17. But reasonable suspicion is only required when a suspect has been seized. United States v. Douglass, 467 F.3d 621, 623 (7th Cir. 2006).” “Nor, for the matter, was reasonable suspicion required for the officers to give chase once Williams started running. ‘[A] fleeing suspect–even one who is confronted with an obvious show of authority–is not seized until his freedom of movement is terminated by intentional application of physical force or by the suspect’s submission to the asserted authority.’ Mays, 819 F.3d at 956. Rather, a ‘seizure effected by a show of authority occurs when the suspect submits.’ … So, like the initial approach toward Williams, no amount of suspicion was needed to chase Williams–he was not ‘seized’ under the Fourth Amendment.” “Indeed it was not until Williams leapt the security fence for a second time and obeyed Officer Callahan’s command to ‘get on the ground’ that a seizure was effectuated.” United States v. Williams, 2021 U.S. Dist. LEXIS 14 (N.D. Ill. Jan. 1, 2021).*
Posted inReasonable suspicion, Seizure|Comments Off on N.D.Ill.: RS not required to approach a person to talk to him
Defendant’s 2255 claim that defense counsel was ineffective for not challenging a search is belied by trial testimony, the only suggestion there is, that the search was by consent. Francis v. United States, 2020 U.S. Dist. LEXIS 245228 (N.D. Ohio Dec. 30, 2020).*
“Because the challenged statements in the affidavit were not necessary to a showing of probable cause, Higareda’s attorney cannot have been ineffective for failing to request a Franks hearing.” United States v. Higareda, 2020 U.S. Dist. LEXIS 245175 (E.D. Ky. Dec. 31, 2020).*
The state affidavit for search warrant, at least as supplemented by oral testimony, showed probable cause, and the good faith exception also applies. United States v. Allen, 2020 U.S. Dist. LEXIS 245179 (M.D. Ala. Dec. 4, 2020),* adopted, 2020 U.S. Dist. LEXIS 244557 (M.D. Ala. Dec. 30, 2020).*
"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.
