“The government defends the district court’s rationale, but argues alternatively that other facts independently provided reasonable suspicion to seize LaGrange in the restaurant parking area. We may affirm the district court’s denial of a motion to suppress on any ground supported by the record. United States v. Pratt, 355 F.3d 1119, 1121 (8th Cir. 2004). Because we conclude that the officers had reasonable suspicion to believe that LaGrange unlawfully possessed a firearm, we need not address the grounds relied on by the district court.” A firearm around drugs is enough. United States v. LaGrange, 2020 U.S. App. LEXIS 38321 (8th Cir. Dec. 9, 2020).
Defendant’s 2255 cell phone and phone records search claim was waived in his plea agreement, and it would lose on the merits anyway. It wasn’t his phone. United States v. Gordon, 2020 U.S. Dist. LEXIS 230764 (E.D. Mich. Dec. 1, 2020).*
Posted inStandards of review, Waiver|Comments Off on CA8 finds stop valid for grounds not relied on by Dist. Ct.
The respondent former judge told a friend to avoid a certain person when a drug task force search warrant was signed by him for the target. He was federally charged and pled guilty to obstruction of justice and was disbarred by the state for the leak. He was censured as a former judicial officer here. Federal sentencing awaits. In re Kamada, 2020 CO 83, 2020 Colo. LEXIS 1056 (Colo. Comm. on Jud. Dis. Dec. 7, 2020).
A DoD contractor using a government computer had no reasonable expectation of privacy in it. There was a signed user agreement and constant warnings on the screen. A password alone does not create a reasonable expectation of privacy. United States v. Wang, 2020 U.S. Dist. LEXIS 230419 (S.D. Cal. Dec. 8, 2020).
Defendant’s impending surgery was an exigent circumstance for a warrantless blood draw. “We have held that imminent medical care that threatens to destroy BAC evidence through blood transfusions, intravenous fluids, or natural dissipation over time may create exigent circumstances. … Therefore, Vortherms’s argument primarily hinges on whether law enforcement’s failure to obtain a warrant in the thirty-five minutes between Bumann’s arrival at the hotel and his arrival at the hospital was unreasonable.” State v. Vortherms, 2020 SD 67, 2020 S.D. LEXIS 142 (Dec. 2, 2020).
Whether defense counsel was ineffective for not making a Fourth Amendment challenge to taking gunshot residue tests from defendant’s hands at the time of his arrest can’t be decided on the direct appeal record. Do it in a PCR proceeding. Mosley v. State, 2020 Miss. App. LEXIS 678 (Dec. 8, 2020).
“Our precedent clearly establishes that releasing a police dog to bite a person who neither endangers officers nor attempts to flee or resist arrest violates that person’s Fourth Amendment right to be free from unreasonable seizure. … Viewing the evidence in the light most favorable to Goode, Zirkle intentionally released Boda to bite a woman who posed no threat to officers and who was not fleeing or resisting arrest. We therefore conclude that the district court did not err in denying Zirkle’s motion for summary judgment on the basis of qualified immunity.” Penaloza v. City of Rialto, 2020 U.S. App. LEXIS 38050 (9th Cir. Dec. 7, 2020).*
Defendant didn’t show a reason or justification for a different interpretation of the state constitution from the Fourth Amendment. The state supreme court has only guardedly done so, and there’s no reason to do so here. People v. Williams, 2020 IL App (3d) 180024, 2020 Ill. App. LEXIS 826 (Dec. 7, 2020).*
While it was assumed by everyone that defendant was an overnight guest, the proof at the hearing was wanting that he was. “Here, Morris testified that she had four bedrooms in her house, two upstairs and two downstairs along with the den. Hr’g Tr. 55. Kilgore testified that Howard had “no reason” to be downstairs at the time of the arrest. Id. at 81. If Howard was an overnight guest, it is unclear from the record where he may have slept, where he kept any personal belongings, and where in the home he may have had a legitimate expectation of privacy.” Additional briefing is ordered based on the hearing. United States v. Howard, 2020 U.S. Dist. LEXIS 229211 (W.D. Va. Dec. 4, 2020).
Defense counsel asked for more time to get an affidavit of standing and was given 30 days. That was eight months ago. There was a tracking device on a trailer, and the motion is denied. The long and detailed affidavit for the CSLI was with probable cause. Even if there wasn’t, the good faith exception applies. United States v. Valdez, 2020 U.S. Dist. LEXIS 229498 (W.D. N.Y. Oct. 9, 2020).*
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The officer’s statement seeking consent that he’d sought and obtained 222 search warrants and never been turned down for one was coercive. Thus, there had to be a showing of probable cause to the defendant and probable cause here was lacking. State v. Lovato, 2020 N.M. LEXIS 43 (Dec. 3, 2020):
NPR: Virginia Gov. Northam Signs ‘Breonna’s Law’ Banning No-Knock Warrants by Daniella Cheslow (“Virginia Gov. Ralph Northam ceremonially signed a law Monday that will prohibit police from using no-knock warrants, which allow police to enter and search a home without notifying residents.”)
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Husband’s interception of his wife’s work emails for advantage in their divorce case violated the Stored Communications Act as well as her right of privacy. The district court erred in granting him summary judgment. Clare v. Clare, 19-36039 (9th Cir. Dec. 8, 2020)
Landlords sued over having to provide rental information to the City to justify rent increases. Summary by the court: “The panel noted that the complaint did not contain any factual allegations distinguishing the information at issue in this case from the similar information landlords already provide to the City in other contexts under regulations whose validity has not been challenged. Because plaintiffs had not plausibly alleged that the challenged provisions effected a search, their Fourth Amendment claim failed.” Hotop v. City of San Jose, 2020 U.S. App. LEXIS 38034 (9th Cir. Dec. 7, 2020).
Even if warrantless monitoring of a package into defendant’s house violated the Fourth Amendment, inevitable discovery applies. There was an intensive investigation and time was of the essence. The exclusionary rule should not be applied. United States v. Watkins, 2020 U.S. App. LEXIS 37794 (11th Cir. Dec. 3, 2020).
Defendant waived his challenge to the knock-and-talk by not fully addressing it. Observation of stolen ATVs on the curtilage was moot because it was covered by the search warrant. United States v. Ross, 2020 U.S. App. LEXIS 37793 (10th Cir. Dec. 3, 2020).
There is a presumption qualified immunity applies where a magistrate has signed off on a search warrant. Handy v. Palmiero, 2020 U.S. App. LEXIS 37862 (3d Cir. Dec. 4, 2020):
The affidavit for search warrant actually was deficient in showing probable cause from the CIs and the concerned citizen, but it wasn’t so lacking in probable cause that the good faith exception should not apply. United States v. Stanley, 2020 U.S. Dist. LEXIS 227388 (D. Mont. Dec. 3, 2020):
“Although Officer Lindsey asked White if he (the officer) could search the vehicle prior to deciding to tow the vehicle, that question alone did not require a conclusion that the subsequent inventory search was pretextual. The Dayton Police Department tow policy authorized the inventory search under the circumstances in this case, and the evidence demonstrated that Officer Gianangeli complied with that policy when she conducted the inventory search.” State v. White, 2020-Ohio-5544, 2020 Ohio App. LEXIS 4406 (2d Dist. Dec. 4, 2020).
Defendant crossed the centerline making a left turn. His excuse that the snow caused him to do it isn’t credited. United States v. Bare, 2020 U.S. App. LEXIS 37805 (4th Cir. Dec. 3, 2020).*
There were enough connections to defendant’s premises to show nexus. And, even if not, the officers still acted in good faith. United States v. Dear, 2020 U.S. Dist. LEXIS 227017 (D.Conn. Dec. 3, 2020).*
Posted inInventory, Nexus|Comments Off on OH2: Officer’s asking for consent to search before inventory doesn’t make it pretextual
There was probable cause for the search warrant of defendant’s premises (a tattoo parlor) for silencers. The defense of entrapment is a trial defense, not a defense to the search warrant, especially when the charge is possession not delivery. Also, the warrant wasn’t stale. United States v. Watson, 2020 U.S. Dist. LEXIS 226987 (W.D. Pa. Dec. 3, 2020):
Officers looking at the hash information on child pornography images sent from NCMEC who got them from gmail wasn’t expansion of the private search under Jacobsen and Walter. United States v. Miller, 2020 U.S. App. LEXIS 37787 (6th Cir. Dec. 3, 2020):
VICE: The DEA Abruptly Cut-Off Its App Location Data Contract by Joseph Cox (“The DEA cancelled its contract with Venntel, which obtains granular location data from ordinary apps and sells access to law enforcement agencies.”)
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NYTimes: Police Drones Are Starting to Think for Themselves by Cade Metz (“In one Southern California city, flying drones with artificial intelligence are aiding investigations while presenting new civil rights questions.”)
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Probable cause that a vehicle had open containers in it permitted a search of the locked glove compartment because it was a place where an open container could be. People v. McGhee, 2020 IL App (3d) 180349, 2020 Ill. App. LEXIS 818 (Dec. 3, 2020).
There was justification for defendant’s stop because his headlight was out. The stop being justified, the ultimate search warrant was valid. People v. Garcia, 2020 NY Slip Op 07220, 2020 N.Y. App. Div. LEXIS 7356 (2d Dept. Dec. 2, 2020).*
The information about defendant’s alleged drug operation was ongoing, so the search warrant wasn’t stale. United States v. Bell, 2020 U.S. Dist. LEXIS 226669 (W.D. Ky. Oct. 27, 2020).*
This case involves a civil discovery dispute between the state and a recycling business for an environmental inspection. The court of appeals erred in jumping to a Fourth Amendment claim without attempting to decide the case on nonconstitutional grounds under the rule that constitutional claims should be avoided, which it apparently could have done. People ex rel. Madigan v. Stateline Recycling, LLC, 2020 IL 124417, 2020 Ill. LEXIS 1044 (Dec. 3, 2020).
Defendant’s swerving in his lane and touching the lines was justification for the stop. Questioning thereafter was by consent. Reasonable suspicion developed from the DL not matching the state of the LPN, an absent third-party owner, odd travel plans, and the overwhelming odor of air freshener. Defendant’s consent found by the district court is supported by the record. The scope of that consent was broad. United States v. Gomez-Arzate, 2020 U.S. App. LEXIS 37657 (10th Cir. Dec. 2, 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.
