The warrant for installing a GPS tracker on defendant’s vehicle showed probable cause, the subject of the tracking to places he’s been and to locate potential conspirators. State v. McNeill, 2020 N.C. App. LEXIS 947 (Dec. 31, 2020).*
Not having a temporary paper tag in the proper place justified a stop. People v. Hayes, 2020 CAO 175, 2020 Colo. App. LEXIS 2140 (Dec. 31, 2020).*
Defense counsel wasn’t ineffective for not pursuing a motion to suppress to bar an undercover officer’s testimony that he’d been invited into the house for the drug deal. That was an entry by consent. Griffin v. United States, 2020 U.S. Dist. LEXIS 244617 (E.D. Mo. Dec. 30, 2020).*
In a Fourth Amendment § 1983 case tried to a jury, the claim of an unreasonable inventory search prevailed before the jury. Yet, there was no written policy put into evidence by the parties. Affirmed on this ground. Watley v. Felsman, 2020 U.S. App. LEXIS 40761 (3d Cir. Dec. 30, 2020).*
There wasn’t probable cause for defendant’s detention at the scene of a murder. Among other reasons, his lack of an appropriate emotional response to death didn’t add anything. State v. Williams, 2020 La. App. LEXIS 1901 (La. App. 5 Cir. Dec. 30, 2020).*
“Defendant concedes and we agree that the trial court correctly determined that the checkpoint had a legitimate primary purpose. The trial court found that the purpose of the checkpoint was to check ‘each driver stopped for a valid driver’s license and evidence of impairment[,]’ both of which are lawful programmatic purposes. See Edmond, 531 U.S. at 37-38, 121 S. Ct. at 452. However, the trial court did not adequately weigh the three Brown factors and thus could not assess whether the public interest in this checkpoint outweighed its infringement on Defendant’s Fourth Amendment privacy interests.” The constitutionality of a state statute isn’t preserved. State v. Cobb, 2020 N.C. App. LEXIS 963 (Dec. 31, 2020).
Posted inChekpoints|Comments Off on NC: Trial court erred in not considering Brown factors in considering reasonableness of a checkpoint
I see cases like this all time time, and it really happens. Clients admit it, and I’ve seen the video. But I’m not going to stop arguing they felt compelled to consent: “So, the question now before the court is whether a reasonable person would have felt free to decline consent. Based upon the standard stated above, the undersigned cannot find that Simms was forced to consent to the search of his vehicle, and the evidence supports a finding that the United States has proven, by clear and positive testimony, that Simms freely gave voluntary consent to search his vehicle. Simms had been pulled over, presented as being very nervous, and failed to provide officers with a rental agreement for the vehicle in his name. In addition, he related traveling to visit family for three days, yet did not even have an overnight bag. He was, finally, in the presence of two officers, but that is the extent of evidence of coercion, and the undersigned does not find it sufficiently coercive to justify a belief that he was unable to refuse to allow a search of his vehicle. Trooper Vanhoose testified that Simms was never told he was not free to leave, he was never told he was being detained. The trooper testified that he and Trooper Mirus just asked him ‘straight up’ if they could search his vehicle, and he provided consent to do so. Therefore, the search of Simms’s vehicle was not in violation of his rights under the Fourth Amendment.” United States v. Simms, 2020 U.S. Dist. LEXIS 245232 (E.D. Ky. Nov. 16, 2020),* adopted, 2020 U.S. Dist. LEXIS 244568 (E.D. Ky. Dec. 30, 2020).*
Posted inConsent|Comments Off on E.D.Ky.: Def consented to search of car; request was “not … sufficiently coercive”
A police officer came upon a cell phone tower at night where the door was open and a car was parked outside. He could hear music inside. He came in and asked what was going on and saw a bong. Defendant was performing service on the tower at night to avoid service interruptions. The entry could not be justified on exigent circumstances. State v. Haputa, 2020-Ohio-6925, 2020 Ohio App. LEXIS 4778 (5th Dist. Dec. 28, 2020) (2-1):
State statute authorized searches of the person or parolees, not places, and the search here exceeded the authority granted by statute, applying Samson v. California. State v. McCants, 2020 N.C. App. LEXIS 969 (Dec. 31, 2020).
The search warrant was issued on probable cause. “In short, Defendant has not shown that the warrant affidavit was lacking in indicia of probable cause. [¶] For the foregoing reasons, the Court finds Defendant has not carried his burden of demonstrating the good faith exception does not apply. Thus, the items seized pursuant to the search warrant should not be suppressed.” United States v. Rose, 2020 U.S. Dist. LEXIS 243674 (E.D. Tex. Nov. 17, 2020).*
Defendant was invited to a party at a vacant building loaned to a friend for purposes of the party. He wasn’t staying past the end of the party. He had no reasonable expectation of privacy in the place searched. People v. Scharborough, 2020 NY Slip Op 08124, 2020 N.Y. App. Div. LEXIS 8319 (3d Dept. Dec. 31, 2020).
“[A]n officer approaching a parked car and questioning the driver more closely resembles an officer approaching a pedestrian on the sidewalk.” The contact was consensual and not a traffic stop. A gun was seen in plain view, and that justified a vehicle search. United States v. Butler, 2020 U.S. Dist. LEXIS 245053 (E.D. Va. Dec. 30, 2020).*
Posted inSeizure, Standing|Comments Off on NY3: Visitor at a party had no REP
Prior case law on inserting a key in a car door is not a search is contrary to Jones and Jardines. As a parole search, however, it can be reasonable if the car is connected to the parolee. United States v. Dixon, 2020 U.S. App. LEXIS 40827 (9th Cir. Dec. 31, 2020):
The district court’s finding of fact is not clearly erroneous. The officer said he said “please” and defendant said he said “Hey, man. … Hey, come here,” and when defendant continued to walk, the officer supposedly yelled, “Hey, man, I said come here.” “The body camera video gives further support to Officer Hodge’s version of events and to the district court’s conclusion that the search was consensual.” United States v. Gyurnek, 2020 U.S. App. LEXIS 40806 (6th Cir. Dec. 30, 2020).
A three month lag between the government obtaining child pornography and linking it to defendant’s IP address in a search warrant affidavit wasn’t stale. [Perhaps if he could show he wasn’t living there three months ago?] Besides, the good faith exception exception applies. United States v. Pace, 2020 U.S. Dist. LEXIS 243541 (E.D. Mich. Dec. 29, 2020).*
Posted inConsent, Staleness|Comments Off on CA6: “Hey, man, I said come here” was still a consensual encounter
Defendant was a visitor on the premises when a search warrant was executed. A full search of his person was unreasonable because there were no facts shown justifying a belief he was armed or dangerous. The dissents view would hollow out Summers. State v. Tripp, 2020 N.C. App. LEXIS 921 (Dec. 31, 2020).
The lifetime order for SBM of these non-recidivist convicted sex offenders was unreasonable based on the record. State v. Westbrook, 2020 N.C. App. LEXIS 916 (Dec. 31, 2020);* State v. White, 2020 N.C. App. LEXIS 911 (Dec. 31, 2020);* State v. Harris, 2020 N.C. App. LEXIS 957 (Dec. 31, 2020).*
“Heck bars Mr. Hooks from recovering damages based on the first four alleged uses of force. Mr. Hooks’s no contest plea to two counts of assault and battery of a police officer means he admitted repeatedly hitting the officers before he was subdued. For Mr. Hooks to prevail on his excessive force claim with respect to these uses, he would need to prove that it was unreasonable for the officers to defend themselves by subduing him. In other words, Mr. Hooks would need to show ‘he did nothing wrong.’ … That inquiry would necessarily entail an evaluation of whether and to what extent Mr. Hooks used force against the officers, an inquiry that would take aim at the heart of his criminal plea, thereby violating the spirit of Heck. [¶] The fifth and sixth uses of force are different. …” Hooks v. Atoki, 2020 U.S. App. LEXIS 40692 (10th Cir. Dec. 29, 2020).
Posted in§ 1983 / Bivens, Issue preclusion|Comments Off on CA10: Heck bars excessive force claim where it attacks ptf’s guilty plea
The search warrant wasn’t stale because the conduct under investigation was “protracted.” “Williams’ piecemeal approach to the facts of the affidavit fails to acknowledge that probable cause is a holistic, totality-of-the-circumstances assessment. … The age of some of the historical information provided by Trooper Panchik4Link to the text of the note does not diminish the relevance of two completed controlled buys and a third controlled buy event, which led to a lawful arrest of Williams with three ounces of cocaine on her person. … Trooper Panchik’s first paragraph describing his investigation into Williams’ notes that five different confidential sources provided information in 2012, claiming Williams ran “a large-scale cocaine (powder and crack cocaine) distribution network in Harrisburg City.” … Subsequent pages describe multiple CIs who confirmed these claims in 2016, 2017, and 2018. … His affidavit describes a years-long investigation into ‘protracted and ongoing’ drug trafficking, meaning the age of any particular fact loses its importance. …” The CI was also properly supported. United States v. Williams, 2020 U.S. Dist. LEXIS 243471 (M.D.Pa. Dec. 29, 2020).
Posted inStaleness|Comments Off on M.D.Pa.: Conduct shown in affidavit was “protracted” and it wasn’t stale
Based on prior cases, the court finds this encounter was a consensual encounter. “We find that the Trooper’s request that appellant ‘come here’ did not turn the encounter into a seizure.” State v. Nichols, 2020-Ohio-6960, 2020 Ohio App. LEXIS 4782 (5th Dist. Dec. 29, 2020).
Defendant was not seized when a police car with overhead lights on pulled up next to him after a ShotSpotter alert in the area. He was parked 3-6’ from the curb another car had to swerve to avoid. “We thus find that defendant was seized within the meaning of the fourth amendment when police turned on the vehicle’s rotating lights, blocked defendant’s vehicle from moving forward, and then approached his vehicle on either side with flashlights, and when Officer Ali specifically requested that defendant show his hands.” People v. Edwards, 2020 IL App (1st) 182245, 2020 Ill. App. LEXIS 900 (Dec. 29, 2020).
Posted inUncategorized|Comments Off on OH5: “Request” to “come here” was not a seizure
“In fact, ‘conduct does not need to be illegal (or acted upon if so) to be suspicious.’ Weakley v. State, 273 So. 3d 283, 286 (Fla. 1st DCA 2019) (observing that in District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018), the Supreme Court explained that ‘the whole is often greater than the sum of its parts-especially when the parts are viewed in isolation’ and that the ‘totality-of-the-circumstances test “precludes this sort of divide-and-conquer analysis.”’ Here, the collection of facts was reasonable suspicion on the totality. Calhoun v. State, 2020 Fla. App. LEXIS 18619 (Fla. 1st DCA Dec. 30, 2020):
There is no reasonable expectation of privacy in cell phone subscriber information such that a warrant is required to obtain it v. a subpoena duces tecum. United States v. Brooks, 2020 U.S. App. LEXIS 40561 (3d Cir. Dec. 29, 2020).
Defendants obtained a juvenile court record from a county for use by counsel in litigation without a court order ostensibly in violation of the Welfare & Institutions Code. Prior case law on this being a civil rights violation was “opaque” and didn’t put them on notice. Denial of qualified immunity reversed. Nunes v. Arata, Swingle, Van Egmond & Goodwin (PLC), 2020 U.S. App. LEXIS 40567 (9th Cir. Dec. 29, 2020).*
Denial of a motion to suppress is not immediately appealable in Ohio. Here, there was an appealable pretrial issue of a grant of dismissal for pretrial delay, and the court finds the suppression issue was still viable and could be reconsidered below and should be appealed later. Thus, defendant’s cross-appeal of the denial of the suppression motion dismissed; reversed on the pretrial delay issue. State v. Ling, 2020-Ohio-6889, 2020 Ohio App. LEXIS 4716 (3d Dist. Dec. 28, 2020).
2254 petitioner’s claim that his Fourth Amendment issue was withheld from him didn’t provide basis for equitable tolling because he knew in time to act on it. Morris v. Fluke, 2020 U.S. Dist. LEXIS 243297 (D.S.D. Dec. 29, 2020).
Posted inUncategorized|Comments Off on OH3: When state appeals dismissal for pretrial delay, def can’t appeal denial of suppression motion
“Although the distinction between the independent-source and inevitable-discovery doctrines is not sharp …, where exactly one draws the line between the two doctrines is unimportant.” United States v. Baez, 2020 U.S. App. LEXIS 40551 (8th Cir. Dec. 29, 2020):
Posted inIndependent source, Inevitable discovery|Comments Off on CA8: “where one draws the line between” independent source and inevitable discovery doctrines “is unimportant”
“The fact that Customs and Border Patrol (CBP) officers had reasonable suspicion cannot serve to heighten the standard attached to the border search.” The use of a drug dog at the border doesn’t require reasonable suspicion. United States v. Meraz-Campos, 2020 U.S. App. LEXIS 40434 (9th Cir. Dec. 28, 2020).
Defendant was stopped in a murder investigation, likely without probable cause, not that it matters, and running his name produced an arrest warrant. A search incident produced evidence and it was admissible by the attenuation doctrine. United States v. Ligon, 2020 U.S. Dist. LEXIS 242686 (M.D. Ala. Dec. 28, 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.
