Because the reasonableness standard is based on objective evidence confronting the officer, the use of 404(b) evidence here would be too extraneous to show subjective intent. “Because reasonableness under the Fourth Amendment is disconnected from an officer’s subjective intent, the plaintiffs’ proffered use for the evidence-to establish Sloan’s alleged wrongful intent and motive in instigating the search and seizure-is irrelevant to the claims before the Court. Accordingly, the irrelevant evidence related to Sloan’s alleged past misconduct is inadmissible.” Geiger v. Adm’x of the Estate of Keeton, 2020 U.S. Dist. LEXIS 164329 (N.D. Miss. Sept. 9, 2020).
“The court does not need to resolve the issue of whether the insertion of the key into the door to and the initial entry into Apartment A4 constituted Fourth Amendment violations because there was untainted evidence sufficient to support the search warrant without considering the information obtained as a result of the challenged conduct. Moreover, the investigators acted in good faith reliance on a facially valid search warrant.” United States v. Palermo, 2020 U.S. Dist. LEXIS 164038 (D. Conn. Sept. 8, 2020).*
Posted inAttenuation, Reasonableness, Search|Comments Off on N.D.Miss.: In wrongful death action, officer’s subjective intent offered by 404(b) evidence is inadmissible; reasonableness is objective
CNN Business: Portland passes broadest facial recognition ban in the US by Rachel Metz (“The city of Portland, Oregon, on Wednesday banned the use of facial-recognition technology by city departments — including local police — as well as public-facing businesses such as stores, restaurants and hotels.”)
Posted inSurveillance technology|Comments Off on CNN Business: Portland passes broadest facial recognition ban in the US
Posted inStrip search|Comments Off on ProPublica: Over a Dozen Black and Latino Men Accused a Cop of Humiliating, Invasive Strip Searches. The NYPD Kept Promoting Him.
The officers’ entry into defendant’s home was illegal and the drug evidence should have been suppressed. Defendant’s assault on the officers, however, would not be suppressed because it was a separate crime. Commonwealth v. Schneider, 2020 Pa. Super. LEXIS 775 (Sept. 9, 2020):
Just because none of the officers could recall the exact words used, they were consistent that defendant consented, and the district court’s crediting that was entitled to substantial weight. United States v. Frye, 2020 U.S. App. LEXIS 28465 (2d Cir. Sept. 8, 2020):
The search of plaintiff’s wallet for her ID was reasonable when she refused to identify herself when stalled on an interstate highway. A search of the car for her wallet and then the search of the wallet was thus reasonable under the circumstances because it was just to identify her. McCullough v. Wright, 2020 U.S. App. LEXIS 28474 (5th Cir. Sept. 9, 2020).
Prison cell search is reasonable, but it could be “relevant to DeShazor’s retaliation and excessive force claims; but the search itself does not constitute a Fourth Amendment violation. Summary judgment is granted in Defendants’ favor on this allegation.” DeShazor v. Barb, 2020 U.S. Dist. LEXIS 163912 (D. Md. Sept. 8, 2020).
Posted inPrison and jail searches, Search incident|Comments Off on CA5: Search for ptf’s ID was reasonable when she refused to ID self and was charged with obstruction
The warrantless police entry into defendant’s home for a mental health check wasn’t justified by the facts because of a lack of danger. The plain view is suppressed for lack of a proper view. Commonwealth v. Schneider, 2020 Pa. Super. LEXIS 775 (Sept. 9, 2020):
“Mglej’s refusal to provide Deputy Gardner with his driver’s license or some other form of identification, then, as Deputy Gardner demanded, did not create probable cause to arrest Mglej under Utah Code § 76-8-301.5(1). Thus, sufficient to defeat summary judgment, the record establishes that Deputy Gardner’s decision to arrest Mglej violated the Fourth Amendment. See Donahue, 948 F.3d at 1189.” “Here, then, only for purposes of Mglej’s excessive force claim, we assume Deputy Gardner lawfully arrested Mglej, see id., and determine whether the force the deputy used to handcuff Mglej during that arrest was objectively reasonable, see Graham, 490 U.S at 397. Mglej asserts two theories as to why the force Deputy Gardner used in handcuffing Mglej was not objectively reasonable. He first asserts that the use of any handcuffs at all during his arrest was excessive and, alternatively, that even if it was objectively reasonable to handcuff him, the force Deputy Gardner used to do that was excessive. Mglej’s first theory does not survive qualified immunity, but his second theory does.” Plaintiff overcame qualified immunity at summary judgment stage. Mglej v. Gardner, 2020 U.S. App. LEXIS 28453 (10th Cir. Sept. 9, 2020).
Just because the evidence was suppressed in plaintiff’s criminal case and then affirmed on appeal doesn’t mean the criminal case was terminated in his favor on the facts. He possessed heroin, and that’s not in dispute, and there was probable cause. Allen v. N.J. State Police, 2020 U.S. App. LEXIS 28461 (3d Cir. Sept. 9, 2020).
“In conclusion, Trooper Corrie, while participating in a coordinated effort to serve an arrest warrant on an armed robbery suspect, reasonably used lethal force against a dog who, unrebutted testimony shows, aggressively charged at him, growled, and showed his teeth, as though about to attack. We will thus affirm the District Court’s order granting summary judgment.” This was not a passive dog that was shot. Specific training isn’t the issue; it’s reasonableness. Bletz v. Corrie, 2020 U.S. App. LEXIS 28463 (3d Cir. Sept. 9, 2020).*
Posted in§ 1983 / Bivens, Reasonableness|Comments Off on CA3: State court suppression of search isn’t favorable termination for malicious prosecution case
Chain of custody after execution of a search warrant isn’t a 2255 ground. It’s a trial issue that was waived and only goes to credibility of evidence for the jury. United States v. Smith, 2020 U.S. Dist. LEXIS 163635 (E.D. Cal. Sept. 8, 2020).
Defendant’s trespassing on private property at 2 am justified a stop and frisk. United States v. Flores, 2020 U.S. Dist. LEXIS 163205 (D. Colo. Sept. 8, 2020).
In a motion for new trial, “Defendant attacks a search warrant that he says lacked probable cause. But he did not make a pretrial motion to suppress evidence obtained through the search warrant. Fed. R. Crim. P. 12(b)(3)(C). He offers no excuse for this delay, and only dedicates three sentences of his brief to the issue. The Court finds that this late and undeveloped argument does not justify a new trial.” United States v. Wills, 2020 U.S. Dist. LEXIS 163174 (S.D. Tex. Sept. 8, 2020).*
Posted inStop and frisk|Comments Off on E.D.Cal.: Chain of custody after execution of a SW isn’t a 2255 ground
A ruse police text message exchange with defendant with one of his known contacts violated his reasonable expectation of privacy under the state constitution’s right of privacy. State v. Bowman, 2020 Wash. App. LEXIS 2463 (Sept. 8, 2020):
Techdirt: Government’s ‘Reverse’ Warrant Rejected By Two Consecutive Federal Judges by Tim Cushing (“Warrants are supposed to have a certain amount of particularity. These warrants have none. All they have are some coordinates and a clock. Fortunately, as the EFF reports, some judges are pushing back. ‘Two federal magistrate judges in three separate opinions have ruled that a geofence warrant violates the Fourth Amendment’s probable cause and particularity requirements. Two of these rulings, from the federal district court in Chicago, were recently unsealed and provide a detailed constitutional analysis that closely aligns with arguments EFF and others have been making against geofence warrants for the last couple years.’ The unsealed order [PDF] — written by Magistrate Judge M. David Weisman — deals with a stolen pharmaceuticals investigation. Judge Weisman has a big problem with the vast amount of data this would give investigators and the lack of limits they’re willing to apply to themselves.”)
Posted inGPS / Tracking Data|Comments Off on Techdirt: Government’s ‘Reverse’ Warrant Rejected By Two Consecutive Federal Judges
“A claim for false arrest or pretrial detention based on fabricated evidence sounds in the Fourth Amendment right to be free from seizure without probable cause.” Patrick v. City of Chicago, 2020 U.S. App. LEXIS 28380 (7th Cir. Sept. 8, 2020):
“The [postal] inspector had reasonable suspicion. [¶] The inspector acted reasonably. Five signs aroused his suspicion: First, the package was from Puerto Rico, a common source of illegal cocaine shipments. Second, the package was sent by Priority Mail, a common way to ship drugs. Third, according to the databases used by the Postal Service, the sender and addressee listed on the package matched no one living at their purported addresses. Fourth, the package was mailed from a zip code different from the one on its return address. And fifth, three other Priority Mail packages had been sent from Puerto Rico to that address. [¶] Each of these facts (except perhaps the third) would be too generic to support a reasonable suspicion on its own. But we cannot evaluate these four facts ‘in isolation.’ Arvizu, 534 U.S. at 274. A ‘series of acts[, each] perhaps innocent in itself, [can], taken together, … warrant[ ] further investigation.’ Id. [¶] Taken together, these facts justified the inspector’s suspicion. ….” United States v. Ramos, 2020 U.S. App. LEXIS 28379 (3d Cir. Sept. 8, 2020).
A 911 burglary call by defendant’s neighbor led to police coming to the house, and the police entered to look for suspects. This was a reasonable entry based on exigency. United States v. Booth, 2020 U.S. App. LEXIS 28377 (9th Cir. Sept. 8, 2020).
Defendant was stopped on I-84 and the officer stopped for concern he was illegally parked on the highway. The state didn’t have to prove that I-84 was a controlled access highway [and why couldn’t that be subject to judicial notice?] for there to be reasonable suspicion. State v. Jay, 2020 Ida. App. LEXIS 67 (Sept. 8, 2020).*
Vice: Faulty Facial Recognition Led to His Arrest—Now He’s Suing by Natalie O’Neill (“Michael Oliver is the second Black man found to be wrongfully arrested by Detroit police because of the technology—and his lawyers suspect there are many more.”)
Posted inSurveillance technology|Comments Off on Vice: Faulty Facial Recognition Led to His Arrest—Now He’s Suing
Posted inFISA, National security|Comments Off on Reason: Did the Ninth Circuit Create a New Fourth Amendment Notice Requirement for Surveillance Practices?
There is no reasonable expectation of privacy in an inmate’s criminal history search that led to a detainer. Brink v. Herron, 2020 U.S. Dist. LEXIS 162680 (D. Ariz. Aug. 7, 2020).
Defendant’s application for a successor 2255 based on defense counsel not telling him Carpenter was pending is denied. CSLI was obtained under existing law; it wouldn’t benefit [and he waited two years to raise it]. In re McConico, 2020 U.S. App. LEXIS 28322 (6th Cir. Sept. 4, 2020).*
A police dog bit plaintiff while he was handcuffed and on the ground. That’s excessive force if a jury believes it was gratuitous. Qualified immunity denied. Hammond v. County of Oakland, 2020 U.S. App. LEXIS 28285 (9th Cir. Sept. 4, 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.
