Without Carpenter having already been made retroactive, it can’t support a successor habeas. In re Toth, 2020 U.S. App. LEXIS 29956 (11th Cir. Sept. 18, 2020).
The record supports the district court’s conclusion defendant consented to the search of his car. He’d been stopped for a traffic offense and admitted his driver’s license had been expired for two years. “Rodriguez did not inform him of his right to refuse consent; and Soriano likely believed that incriminating evidence would be found. It also found that three factors favored a finding of voluntariness: the lack of coercive police procedures; the extent of Soriano’s cooperation; and Soriano’s education and intelligence. Although the factors were essentially even on both sides, the district court concluded that, based on the totality of the circumstances, Soriano’s consent was voluntary. We agree and will discuss each factor in turn.” United States v. Soriano, 2020 U.S. App. LEXIS 29925 (5th Cir. Sept. 18, 2020).*
Posted inAbstention, Cell site location information|Comments Off on CA11: Without Carpenter having already been made retroactive, it can’t support a successor habeas
CNS: Seventh Circuit Examines Lifetime GPS Tracking of Sex Offenders by Joe Kelly (“The Seventh Circuit on Friday weighed the intrusiveness of a Wisconsin statute that institutes lifetime GPS monitoring of certain convicted sex offenders against the necessity of preventing further offenses from that particular class of criminals. The underlying suit was first filed as a federal class action by eight registered sex offenders in March 2019. They argued that a 2017 statutory interpretation by former Wisconsin Attorney General Brad Schimel that broadened the class of sex offenders subjected to lifetime GPS monitoring after the completion of their sentences constitutes an unreasonable search under the Fourth Amendment, calling the tracking ‘an intrusive search that provides the government detailed, real-time data about a person’s every move.’ Individuals convicted of sex offenses on two or more occasions were already subject to GPS monitoring under Wisconsin law, but Schimel’s 2017 interpretation and the subsequent application of his guidance the following year applied GPS monitoring to anyone convicted of more than one count.”)
Posted inGPS / Tracking Data|Comments Off on CNS: Seventh Circuit Examines Lifetime GPS Tracking of Sex Offender
“Advising a person of legitimate consequences [of a BAC test] is not considered coercion. Being advised of potential lawful authority is not a violation of Fourth Amendment Rights.” State v. Street, 2020 Del. Super. LEXIS 2791 (Sept. 17, 2020).
When defendant declined to stipulate he was in his own home when the search warrant was executed when it became relevant, a photograph of him handcuffed on the couch was admissible to show he was in his house. “In identifying the photograph, a Des Moines police officer testified it is ‘standard practice to secure individuals during a search warrant.’ The district court immediately gave the jury a cautionary instruction to minimize prejudice: ‘The mere fact that for officer safety the defendant was handcuffed isn’t evidence of anything, other than it’s a plan for officer safety.’ Admission of the photograph was not an abuse of discretion and does not warrant a new trial.” United States v. Jefferson, 2020 U.S. App. LEXIS 29633 (8th Cir. Sept. 17, 2020).
Posted inReasonableness, Seizure|Comments Off on DE: “Being advised of potential lawful authority is not a violation of Fourth Amendment Rights.”
NJLJ: Analysis: Give Us Your Cell Phone Password and Constitutional Rights, Please by Louis Locascio (“The issue, of first impression, was whether requiring a defendant to disclose the passcode of his cell phone violates his protection against self-incrimination provided by the Fifth Amendment of the U.S. Constitution and New Jersey law.”)
Posted inCell phones, Privileges|Comments Off on NJLJ: Analysis: Give Us Your Cell Phone Password and Constitutional Rights, Please
An agency order to employees to search their personal cell phones for copies of public records is in excess of agency authority. Comm’r of the Dep’t of Corr. v. Freedom of Info. Comm’n, 2020 Conn. Super. LEXIS 1004 (Tax & Admin. Appeals July 30, 2020):
Posted inAdministrative search, Cell phones|Comments Off on CT Tax & Admin.: Order to DoC employees to search their cell phones for public records was excessive
Defendant had his opportunity to litigate his Fourth Amendment claim in state court, and that bars habeas relief. Mere disagreement isn’t enough under Stone. Smith v. Superintendent, 2020 U.S. Dist. LEXIS 171480 (N.D. N.Y. Sept. 17, 2020)*:
While protective sweep was unreasonable, excising it from the affidavit for search warrant, still leaves probable cause. United States v. Lee, 2020 U.S. Dist. LEXIS 171270 (E.D. N.C. Sept. 18, 2020).
“In sum, counsel reasonably could have concluded that movant did not have a reasonable expectation of privacy in the apartment or its contraband and/or that movant abandoned any such expectation. [¶] For the same reasons, counsel could have reasonably concluded that the private-search doctrine barred any Fourth Amendment challenge to the officers’ seizure of the contraband.” Silvene v. United States, 2020 U.S. Dist. LEXIS 171446 (S.D. Fla. Sept. 16, 2020).*
After the case was transferred to a different judge after denial of a motion to suppress, defendant sought reconsideration of denial of his suppression motion. He didn’t show that there was justification for reconsideration because of new evidence or other justification. State v. Reed, 2020 Tenn. Crim. App. LEXIS 620 (Sept. 18, 2020):
Posted inMotion to suppress|Comments Off on TN: No right to reconsideration of denial of motion to suppress on transfer to a different trial judge after denial
Defendant contended that the officer executing an invalid state arrest warrant had a duty to verify the validity of the warrant before executing it. He didn’t, and the officer acted in otherwise good faith. Therefore, the exclusionary rule would not be applied. United States v. Martin, 2020 U.S. App. LEXIS 29880 (6th Cir. Sept. 17, 2020).
The IAC allegation defense counsel failed to argue particularity of the search warrant was resolved in the state courts and it wasn’t an unreasonable determination of precedent. “Reasonable jurists would not debate the district court’s conclusion that the state appellate court’s decision was not an unreasonable application of Supreme Court precedent. The record supports the state appellate court’s determination that the search warrant, which expressly incorporated documents particularly describing Rogers’s property, was not ambiguous regarding the location to search. In fact, the exhibit to the affidavit provided detailed directions to Rogers’s residence and a detailed description of his residence. Thus, counsel had no reason to challenge the search warrant on the ground that it did not particularly describe the location subject to search.” Rogers v. Hutchinson, 2020 U.S. App. LEXIS 29866 (6th Cir. Sept. 17, 2020).*
The affidavit for the search warrant here didn’t state the second CI was reliable, but reliability was shown by closely monitoring the controlled buy, and that showed probable cause. United States v. Jones, 2020 U.S. App. LEXIS 29878 (6th Cir. Sept. 17, 2020).
When there are two bases given by the trial court for sustaining a search, both must be argued on appeal or it will be affirmed. State v. Morales, 2020 Tenn. Crim. App. LEXIS 619 (Sept. 18, 2020).
Plaintiff’s complaint for false arrest after a search warrant issued had the affidavit for search warrant attached, and it shows arguable probable cause. Cruickshank v. McLeod, 2020 U.S. App. LEXIS 29883 (6th Cir. Sept. 17, 2020).*
Posted inInformant hearsay, Waiver|Comments Off on CA6: Closely monitored controlled buy shows CI’s reliability
The affidavit for this GPS tracking warrant said that other investigative techniques had been exhausted, and defendant claims it was false. “Colldock also contests the affidavit’s statement that law enforcement had, before seeking a GPS tracking warrant, ‘exhausted its investigative techniques.’ Colldock has failed to show, however, that this statement is material to the assessment of whether there was probable cause to track Colldock’s location. To the extent Colldock intends to suggest either that there was an exhaustion requirement distinct from the probable cause requirement, or that he is entitled to relief based on a false statement in the affidavit, we deem any such challenges forfeited for failure to develop these points in Colldock’s appellate briefs.” United States v. Colldock, 2020 U.S. App. LEXIS 29837 (9th Cir. Sept. 18, 2020).
Posted inGPS / Tracking Data, Waiver|Comments Off on CA9: There is no exhaustion requirement for other investigative techniques for a tracking warrant, but failure to adequately brief it is waiver anyway
Defendant’s CSLI claim can’t be brought as a successor habeas petition. Carpenter isn’t retroactive. In re Witherspoon, 2020 U.S. App. LEXIS 29717 (11th Cir. Sept. 17, 2020).
Defendant was in a stolen vehicle and had a backpack in it while he went into a convenience store. The vehicle was driven off by another and left nearby. The search of defendant’s backpack found in the vehicle violated his reasonable expectation of privacy because defendant did not relinquish his privacy interest in the backpack. He intended to reclaim it. State v. Lewis, 306 Ore. App. 492, 2020 Ore. App. LEXIS 1106 (Sept. 16, 2020). https://cdm17027.contentdm.oclc.org/digital/collection/p17027coll5/id/27357/rec/1
NH state liquor agents didn’t violate the Fourth Amendment by entering public space of a regulated establishment to issue verbal warnings. The state supreme court has already held that liquor licensees were highly regulated businesses. E. Coast Serv. Indus. Co. v. N.H. State Liquor Comm’n, 2020 U.S. Dist. LEXIS 170490 (D.N.H. Sept. 17, 2020).
The search of defendant’s car was justified by the automobile exception but not the search incident doctrine. United States v. Moore, 2020 U.S. Dist. LEXIS 170472 (S.D. Ohio Sept. 17, 2020).*
The Office of Foreign Asset Control’s sanctions for certain transactions that results in a block of the transaction wasn’t a Fourth Amendment seizure. US VC Partners GP LLC v. United States Dep’t of the Treasury, 2020 U.S. Dist. LEXIS 170713 (S.D. N.Y. Sept. 17, 2020):
Defendant’s evasiveness during a patdown justified it being more intrusive. “Casey’s argument seemingly ignores the circumstances that led to the retrieval of the drugs. First, as Deputy Putnam began his first attempt at a weapons pat-down, Casey suddenly took his hand off the back windshield and reached into his pants pocket. This action required Putnam to place Casey in handcuffs so that Putnam could attempt to complete the pat-down in a safer manner. Putnam then continued with the pat-down, and when he patted Casey’s right thigh for a weapon, Putnam felt an object that he thought may have been a weapon. But Putnam was not able to dispel his suspicions of a weapon because just as Putnam felt what he believed to be a weapon, Casey resisted and attempted to pull away. Indeed, video of the traffic stop irrefutably shows Casey’s evasiveness.” Casey v. State, 2020 Miss. LEXIS 328 (Sept. 17, 2020).
Posted inStop and frisk|Comments Off on MS: Def’s evasiveness during a patdown justified it being more intrusive
Defendant’s arrest after an NCIC check showed warrants for him was reasonable. State v. Widmer, 2020 N.M. App. LEXIS 41 (Sept. 15, 2020).
To the same effect is United States v. Bullock, 020 U.S. Dist. LEXIS 170229 (N.D. Iowa Aug. 10, 2020). Also, the officer saw defendant’s arrest for a felony but not the disposition, and continuing the stop a bit was reasonable:
Massachusetts SJC revises and loosens its standard for claiming racial motivation for traffic stops under state constitution. Commonwealth v. Long, 2020 Mass. LEXIS 520 (Sept. 17, 2020):
Posted inState constitution, Stop and frisk|Comments Off on Massachusetts SJC revises and loosens its standard for claiming racial motivation for traffic stops under state constitution
An EPA subpoena to determine whether this mine could pay for the cost of a cleanup was within the agency’s jurisdiction and valid and did not violate the Fourth Amendment. United States v. United Park City Mines Co., 2020 U.S. App. LEXIS 29445 (10th Cir. Sept. 16, 2020).
Defendant was seized by officers following him in a patrol car as he was walking in an area near and away from the scene of the shooting and there was no one else around. He had his hands in his pocket and his pocket looked like he had a gun. That was reasonable suspicion. Commonwealth v. Evelyn, 2020 Mass. LEXIS 519 (Sept. 17, 2020).
“The district court did not err by denying Turner’s motion to suppress. Delgado was entitled, ‘without any level of suspicion,’ to approach a car in a dangerous locale with an unknown number of occupants parked near a residence where he and fellow officers were about to execute a warrant. See Miller v. Harget, 458 F.3d 1251, 1257 (11th Cir. 2006) (stating that police do not violate the Fourth Amendment by ‘approaching a person in a parked car’). When Delgado saw a gun in plain view in the front passenger’s waistband, the detective had reasonable suspicion to remove the passenger from the car to determine whether he possessed a valid permit to carry a concealed weapon, …” United States v. Turner, 2020 U.S. App. LEXIS 29611 (11th Cir. Sept. 17, 2020).
The motion to suppress was filed four months after the motions deadline and a week before trial. The district court found no good cause, and defendant doesn’t even challenge that on appeal. That alone provides justification for the district court’s denial. On the merits of the motion to suppress, he’d lose anyway. United States v. Abdi, 2020 U.S. App. LEXIS 29601 (6th Cir. Sept. 16, 2020).*
Defendant’s efforts to distinguish Hudson and its refusal to apply the exclusionary rule to knock-and-announce violations fail. United States v. Pyles, 2020 U.S. Dist. LEXIS 169623 (E.D. Tex. Sept. 16, 2020).
Petitioner gets a CoA on the following habeas issue: “Whether the district court violated Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc), by failing to address Petitioner’s claim that counsel was ineffective for failing to address the confidential informant’s credibility, including his testimony about the amount of drugs involved?” Williams v. United States, 2020 U.S. App. LEXIS 29600 (11th Cir. Sept. 16, 2020).* [That sounds too simplistic to me: It’s the officer’s addressing CI credibility in the affidavit, actually.]
"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.
