“Spaulding is civilly committed to the Florida Civil Commitment Center (‘FCCC’) under the Sexual Violent Predators Act” and his Xbox and blu-ray player were seized because having them wasn’t appropriate for his custody level. His due process and Fourth Amendment claims fail. It’s the same as if he’s in jail. For the due process claim, he has a post-deprivation remedy. Spaulding v. Sawyer, 2020 U.S. Dist. LEXIS 167068 (M.D. Fla. Sept. 14, 2020).
Arguable probable cause for plaintiff’s arrest in a sex case later dismissed was qualified immunity. The alleged Franks violation of omission of alleged exculpatory information wasn’t sufficient to call the probable cause into doubt. Matthews v. McNeil, 2020 U.S. App. LEXIS 29025 (8th Cir. Sept. 14, 2020).*
Posted inPrison and jail searches, Qualified immunity|Comments Off on M.D.Fla.: Civilly committed sexually violent predator was effectively in prison for his 4A claim against room search
Based on the officer’s observation of baggies of drugs hanging out of a bookbag, the contents were readily apparent. State v. Burroughs, 2020-Ohio-4417, 2020 Ohio App. LEXIS 3301 (3d Dist. Sept. 14, 2020).
Defendant’s objection to the R&R had a new Fourth Amendment argument. Considered on the merit [which the court didn’t have to do], it is denied because the wiretap order wasn’t violated. United States v. Stubbs, 2020 U.S. Dist. LEXIS 166897 (D. Nev. Sept. 11, 2020).*
Plaintiff’s Franks challenge in this Bivens case over an extortion bank robbery is actually a challenge to the conviction which is barred by Heck. Benanti v. Poynter, 2020 U.S. Dist. LEXIS 166995 (W.D.N.C. Sept. 11, 2020).*
Defendant in a criminal case will get the benefit of a motion in limine to prevent alleged admissions under the Fifth Amendment in his forfeiture case from being used against him. United States v. Mendoza, 2020 U.S. Dist. LEXIS 166898 (D. N.M. Sept. 11, 2020):
Cato Institute: Qualified Immunity: A Legal, Practical, and Moral Failure by Jay Schweikert (“Qualified immunity is a judicial doctrine that protects public officials from liability, even when they break the law. The doctrine has no valid legal basis, it regularly denies justice to victims whose rights have been violated, and it severely undermines official accountability, especially for members of law enforcement.”)
Posted inQualified immunity|Comments Off on Cato Institute: Qualified Immunity: A Legal, Practical, and Moral Failure
AP: Appeals court hears Baltimore’s aerial surveillance case by Regina Garcia Cano (“A panel of federal appeals court judges on Thursday appeared to have differing views on whether an aerial surveillance program in Baltimore should continue to be tested as a crime-fighting tool.”)
Posted inSurveillance technology|Comments Off on AP: Appeals court hears Baltimore’s aerial surveillance case
2254 petitioner was barred from a CSLI claim because it wasn’t raised in state court where he had an opportunity to litigate. It’s no defense to attempt to overcome Stone preclusion that Carpenter came after the trial court decision because it’s clear where decided that Carpenter wasn’t retroactive. Darby v. Vannoy, 2020 U.S. Dist. LEXIS 166854 (E.D. La. Aug. 14, 2020):
“Standing alone, foreign law enforcement officials sharing information gleaned from their own activities with United States authorities — even if cloaked in cooperative terms in agency reports — is not indicative of an impermissible joint venture, and thus, the District Court did not abuse its discretion in admitting the wiretap evidence. For the same reasons, we discern no error in the District Court’s denial of Minaya’s motion to reconsider the suppression of the wiretap evidence.” United States v. Minaya, 2020 U.S. App. LEXIS 28852 (3d Cir. Sept. 11, 2020).
Posted inForeign searches|Comments Off on CA3: Foreign search didn’t violate 4A
Defendant didn’t adequately plead an ineffective assistance of counsel claim for defense counsel not arguing that defendant wasn’t given a copy of the search warrant at the time of the search so he could challenge the search. Smith v. State, 2020 Ala. Crim. App. LEXIS 68 (Sept. 11, 2020).
A traffic offense justified the stop and its continuation was justified by reasonable suspicion. United States v. Mendez-Bernal, 2020 U.S. Dist. LEXIS 166429 (N.D. Ga. Sept. 11, 2020).*
The CI was reliable and the information was credible. United States v. Carter, 2020 U.S. Dist. LEXIS 166598 (S.D. Fla. Aug. 24, 2020).*
The affidavit showed probable cause for making explosives despite defendant’s claim it was free speech. United States v. Sorey, 2020 U.S. Dist. LEXIS 166601 (N.D. Iowa Aug. 12, 2020).*
The government showed nexus between defendant’s Facebook account and the crime under investigation to justify the warrant, despite 19 paragraphs of boilerplate. United States v. Mize, 2020 U.S. Dist. LEXIS 166759 (S.D. Ohio Sept. 11, 2020):
A stop of a regulated truck for a regulatory inspection by an nonregulatory officer was unreasonable under the administrative search doctrine. Otherwise, it upends the Burger scheme. United States v. Feliciana, 2020 U.S. App. LEXIS 28881 (4th Cir. Sept. 11, 2020):
Gerstein applies to immigration arrests in this class action. Plaintiff was a U.S. citizen detained by ICE. Gonzalez v. U.S. Immigration & Customs Enforcement, 2020 U.S. App. LEXIS 28827 (9th Cir. Sept. 11, 2020).
There was probable cause for a vehicle search here because the vehicle had a strong smell of marijuana coming from it and defendant couldn’t explain where he was going pointing at different houses depending on when he was asked and he was excessively nervous. Commonwealth v. Richard, 2020 Pa. Super. LEXIS 782 (Sept. 11, 2020).*
The search warrant authorized a search of a safe in a house even though the room it was in wasn’t occupied by the target of the search. The search warrant wasn’t stale because the drug activities it refers to were ongoing. United States v. Jordan, 2020 U.S. Dist. LEXIS 166158 (E.D. Va. Sept. 10, 2020).
Defendant made a prima facie ineffective assistance of counsel claim for defense counsel not objecting to the voluntariness of the confession and stipulating it was admissible, ostensibly because defense counsel didn’t want to lose credibility in the eyes of the trial judge. Khalil-Alsalaami v. State, 2020 Kan. LEXIS 93 (Sept. 11, 2020).* The dissent argues that the merits of the voluntariness claim should be decided too if it can be rather than remand as in Fourth Amendment cases.
Defendant’s objection to the R&R is overruled because he doesn’t show that the finding of consent to search his cell phone was erroneous. United States v. Mendez-Bernal, 2020 U.S. Dist. LEXIS 166142 (N.D. Ga. Sept. 11, 2020).*
Plaintiff’s case for a mistaken identity arrest when his half-brother with the same name was the target fails on qualified immunity. Baker v. McCollan, 443 U.S. 137 (1979) is close enough to show qualified immunity. Nerio v. Derekevans, 2020 U.S. App. LEXIS 28796 (5th Cir. Sept. 10, 2020).
Omissions from the affidavit for this search warrant, issued three days after defendant was indicted by a grand jury, was more than bare bones. The omissions were material. “As a result, Special Agent Endy’s failure to include the facts does not evince the level of culpability necessary to trigger the exclusionary rule. The costs of suppression here would far outweigh any concomitant deterrence effect.” United States v. Williams, 2020 U.S. App. LEXIS 28730 (3d Cir. Sept. 10, 2020).*
Plaintiff does not overcome the dashcam video with any evidence to contradict it on summary judgment. The officer gets qualified immunity. Renfroe v. Parker, 2020 U.S. App. LEXIS 28794 (5th Cir. Sept. 10, 2020).*
Defendant’s equal protection claim that his stop was racially motivated fails on the merits because there was a factual basis for the stop and the claim of racial bias has no evidentiary support. His effort to put the officer’s social media posts into evidence has a relevance problem. United States v. Buford, 2020 U.S. Dist. LEXIS 165598 (E.D. Mo. Aug. 18, 2020):
The Idaho Dep’t of Fish & Game division’s wildlife checkpoint here was reasonable under all the circumstances. Plaintiff wasn’t a hunter and his stop would have resulted in one question and he’d have been on his way. Tanner v. Schriever, 2020 U.S. Dist. LEXIS 165212 (D. Idaho Sept. 9, 2020).
“With respect to the use of Allen’s statement in the affidavit, De Aza provided no evidence showing that Officer Webster recounting Allen’s statement that ‘an ounce’ of methamphetamine was present in De Aza’s home was intentionally or recklessly false. See Franks, 438 U.S. at 155-56. While De Aza attempts to cast doubt on Allen’s reliability, it is Officer Webster’s veracity that is relevant. See Novaton, 271 F.3d at 986. And Officer Webster did not recklessly rely on Allen’s statement. The methamphetamine found in the car corroborated Allen’s assertion that De Aza had methamphetamine in his home, and Allen’s reliability was bolstered by the fact that he also provided inculpatory statements. [¶] Even assuming Officer Webster acted wrongly, probable cause existed independent of the challenged statement.” United States v. De Aza, 2020 U.S. App. LEXIS 28708 (11th Cir. Sept. 10, 2020).*
Posted inChekpoints, Franks doctrine|Comments Off on D.Idaho: Dep’t of Fish & Game checkpoint was reasonable
Alleged violations of the Posse Comitatus Act, here by AFOSI, must be “widespread and repeated” to justify suppression. Defendant didn’t show this was. United States v. Salinas, 2020 U.S. App. LEXIS 28616 (5th Cir. Sept. 9, 2020).
“A detective assigned to a DEA task force signed an affidavit in support of a warrant to search a townhome. The affidavit contained errors and omissions, and a prosecutor submitted it to the magistrate judge without catching or correcting the errors. The judge approved the warrant and the search turned up incriminating evidence against defendant Calvin Carter. He moves to suppress the evidence and, at a minimum, requests a hearing to challenge the warrant under Franks v. Delaware, 438 U.S. 154 (1978).” The false statements and the omissions about what was done or not done don’t undermine the probable cause. The search warrant was based on controlled buys. And the good faith exception applies, too. United States v. Carter, 2020 U.S. Dist. LEXIS 164423 (N.D. Ill. Sept. 9, 2020).*
Posted inExclusionary rule, Franks doctrine|Comments Off on CA5: Alleged violations of the Posse Comitatus Act must be “widespread and repeated” to justify suppression
The officers’ warrantless entry into defendant’s home thinking he needed emergency assistance wasn’t justified. They took him out. They found he had a supervised release search waiver on file which they didn’t know about before. They reentered and searched under the search waiver. The search is suppressed, and the exclusionary rule applied to deter this conduct. United States v. Garcia, 2020 U.S. App. LEXIS 28650 (9th Cir. Sept. 10, 2020). Summary by the court:
Posted inExclusionary rule, Probation / Parole search|Comments Off on CA9: Unjustified emergency entry didn’t become justified by learning of a supervised release search waiver
Defendant’s new crime during alleged illegal detention will not be suppressed. Here, he doesn’t even plead enough to get a hearing. People v. Chavez, 2020 Cal. App. LEXIS 858 (2d Dist. Sept. 10, 2020).
There was a substantial basis for the USMJ finding probable cause, and the good faith exception would apply anyway. United States v. Sorey, 2020 U.S. Dist. LEXIS 164970 (N.D. Iowa Sept. 10, 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.
