“Because the defendants had at least arguable probable cause to arrest Barnes for an open container violation, the search was also lawful. A search incident to arrest is lawful where the officer reasonably believed he had probable cause, regardless of whether the officer actually intended to arrest the suspect (or simply issue a ticket or violation) prior to the search.” Barnes v. Carolan, 2020 U.S. App. LEXIS 28174 (2d Cir. Sept. 3, 2020).*
Raising a Fourth Amendment claim for the first time on appeal is waiver. Besides, the Court of Federal Claims has no jurisdiction over Fourth Amendment claims. Hitsman v. United States, 2020 U.S. App. LEXIS 28260 (Fed. Cir. Sept. 4, 2020).*
Aerial surveillance of a residential backyard to photograph it with a telephoto lens violates the Alaska Constitution where the landowner took precautions to protect his privacy at ground-level. McKelvey v. State, 2020 Alas. App. LEXIS 71 (Sept. 4, 2020):
“Kinsella misinterpreted an unambiguous statute, thereby committing an unreasonable mistake of law. See Gaytan, 2015 IL 116223, ¶ 45; see also United States v. Stanbridge, 813 F.3d 1032, 1037-38 (7th Cir. 2016) (‘[The officer] simply was wrong about what the provision required, yet “an officer can gain no Fourth Amendment advantage through a sloppy study of the law he is duty-bound to enforce.”’ (quoting Heien, 574 U.S. at 67)). Due to Kinsella’s unreasonable mistake of law, the traffic stop at issue violated the fourth amendment, as it was not supported by reasonable suspicion or probable cause. The evidence seized pursuant to the stop should be suppressed.” People v. Kaczkowski, 2020 IL App (3d) 170764, 2020 Ill. App. LEXIS 589 (Sept. 4, 2020).
Defendant didn’t show ineffective assistance of counsel from defense counsel’s not moving to suppress text messages on his cell phone where the proof at trial was that the text messages came from the victim’s phone. Bumpus v. State, 2020 Tenn. Crim. App. LEXIS 599 (Sept. 4, 2020).*
Posted inIneffective assistance, Reasonableness|Comments Off on IL: Mistaken application of unambiguous statute not a Heien reasonable mistake of law
The trial court erroneously held that there was an objective basis for finding probable cause to enter defendant’s apartment for a welfare check. There wasn’t. There had been an altercation in the laundry room. The fact his car was parked there and he didn’t answer the door means as likely he wasn’t home. The hour-long wait to enter belies exigency, too. State v. Curet, 2020 Conn. App. LEXIS 262 (Sept. 8, 2020):
Defendant had no reasonable expectation of privacy in a camera planted for video voyeurism in someone else’s bedroom. Powell v. State, 2020 Ark. App. 371, 2020 Ark. App. LEXIS 416 (Sept. 2, 2020):
District court’s denial of qualified immunity affirmed. Omissions from the affidavit for the search warrant were material to the finding of probable cause. Pourkavoos v. Town of Avon, 2020 U.S. App. LEXIS 28183 (2d Cir. Sept. 3, 2020):
Defendant was seized by a police car parked face-to-face with his car and spotlights shining in. Defendant couldn’t be expected to drive on the sidewalk to just leave. “The Court concludes that when the uniformed police officer here parked a marked police cruiser in a way that restricted the ability of the Corolla to exit in a reasonable manner, the officers seized the car (and its occupants). One need only turn on a television or open a newspaper for a reminder that people in this country, and particularly people of color, can be shot while walking away, let alone driving on the sidewalk, during encounters with armed officers. No reasonable person in Defendant’s position would have felt free to leave or terminate the encounter on the undisputed facts here, and the Defendant was seized for Fourth Amendment purposes.” United States v. Scallion-Martinez, 2020 U.S. Dist. LEXIS 161513 (N.D. Cal. Sept. 2, 2020).
Posted inConsent, Reasonable suspicion, Seizure|Comments Off on N.D.Cal.: Court doesn’t credit that a person could just walk away from a police encounter; people get shot for that
“Because the evidence presented by the government at the evidentiary hearing in this case was largely undisputed, we conclude that the district court’s factual findings were not clearly erroneous, and that its misapplication of the standard of review does not constitute reversible error.” United States v. Madrid-Mendoza, 2020 U.S. App. LEXIS 28085 (10th Cir. Sept. 3, 2020).
Defendant’s detention during the traffic stop was reasonable, and the plain view was valid. State v. Howard, 2020 Ida. App. LEXIS 66 (Sept. 3, 2020).*
While executing a search warrant, a cell phone that was likely to have incriminating evidence on it was seen in plain view. Lopezgamez v. State, 2020 Tex. App. LEXIS 7208 (Tex. App. – Ft. Worth Sept. 2, 2020).*
Posted inPlain view, feel, smell, Standards of review|Comments Off on CA10: Where wrong standard of review applied below, undisputed facts allow appellate court to still decide
Plaintiff’s proposed arrestee strip search class definition is denied for not limiting it to those strip searched without reasonable suspicion. Lewis v. District of Columbia, 2020 U.S. Dist. LEXIS 160706 (D. D.C. Sept. 3, 2020):
“This fatal shooting ‘lies so obviously at the very core of what the Fourth Amendment prohibits that the unlawfulness of the conduct was readily apparent’ even without a prior case on point.” No qualified immunity. Cantu v. City of Dothan, 2020 U.S. App. LEXIS 28074 (11th Cir. Sept. 3, 2020):
Bivens won’t be extended to an alleged unprovoked attack at a VA hospital metal detector. Oliva v. Nivar, 2020 U.S. App. LEXIS 28052 (5th Cir. Sept. 2, 2020).
“The issue before the Court is whether the Government violated Rule 16 when it obtained over 13,000 pages of Defendant’s Facebook account by search warrant in April 2020 but did not produce the discovery to the defense until August 25, 2020” when trial started September 3, 2020. Exclusion isn’t the proper remedy, but a continuance is. United States v. Barber, 2020 U.S. Dist. LEXIS 160550 (D. Alaska Sept. 2, 2020).*
The officer here saw a car parked behind a bar about midnight where it was completely dark. The department regularly patrolled area lots at that hour. Defendant was sitting in the car with the door open and his legs out. He only was going to check on him. He admitted defendant was doing nothing wrong. He parked his patrol car (no blue lights) and walked up to defendant. This was a consensual encounter. Lafave v. State, 2020 Tex. App. LEXIS 7141 (Tex. App. – Eastland Sept. 2, 2020).*
Based on some other circuits, digital forensic searches require at least reasonable suspicion and no warrant. Defendant’s digital search complied with the rules of other circuits, so it was at least in good faith. United States v. Aguilar, 2020 U.S. App. LEXIS 28057 (5th Cir. Sept. 2, 2020):
Bulk data collection under FISA violated the Fourth Amendment. A criminal defendant is entitled to notice of FISA collection. However, exclusion not applied in this case because defendants weren’t prejudiced. United States v. Moalin, 2020 U.S. App. LEXIS 28119 (9th Cir. Sept. 2, 2020):
Posted inFISA, National security|Comments Off on CA9: Bulk data collection under FISA violates 4A and defs were entitled to notice of it; no exclusion, however
The City of Springfield mask ordinance does not violate, inter alia, the Fourth Amendment right to privacy. Shelton v. City of Springfield, 6:20-cv-03258 (W.D. Mo. Sept. 2, 2020).
“In specifically detailing the criminal conduct under investigation, the search warrants provide the necessary guidance to the executing officers as to which items may be seized as potential evidence based on probable cause as distinct from electronic information which may be briefly viewed to see if they fall within that category. And the search warrants clearly identify the Redzepagic computer devices and social media sites as the objects to be searched. [¶] In view of the foregoing, the search warrants pass muster as to ‘particularity’ under Second Circuit law.” United States v. Redzepagic, 2020 U.S. Dist. LEXIS 160241 (E.D. N.Y. Sept. 2, 2020).
The search of defendant’s cell phone did not unreasonably exceed the search warrant for it which was necessarily broad. “As a threshold matter, the search did not exceed the scope of the warrant. Without contesting the validity of the warrant itself, Defendant concedes ‘the warrant authorized the wholesale search of several types of data from [Defendant’s] cell phone including messages, multimedia files, web browser and internet files.’ To this point, the Ninth Circuit has recognized that, ‘[b]ecause seizable materials are seldom found neatly separated from their non-seizable counterparts,’ it is reasonable under the Fourth Amendment to authorize a wholesale seizure if the supporting affidavit explains why such a seizure is necessary. Here, the supporting affidavit explains that people carry and use cell phones before, during, and after the commission of crimes; the data streams left behind from the cell phone usage can include ‘GPS locations, contact lists, e-mails, SIMS cards, pictures, videos or audio files, and electronic data.’ Furthermore, the exclusionary rule does not apply when officers act in good faith on a facially-valid warrant. Because the warrant in this case justifiably authorized a broad search of Defendant’s cell phone, the subsequent search did not exceed the scope of the warrant.” United States v. O’Dell, 2020 U.S. Dist. LEXIS 159960 (D. Alaska Sept. 2, 2020).
Posted inCell phones, Scope of search|Comments Off on D.Alaska: SW for cell phone was broad; it had to be, but not unreasonably so
A state licensed private security guard was not a state actor under the Fourth Amendment when he searched defendant’s cell phone trying to determine the owner. State v. Simpson, 2020 Tenn. Crim. App. LEXIS 594 (Sept. 1, 2020).
“Additionally, we agree with the Supreme Court that the redactions to the search warrant application and hearing minutes were necessary to protect the anonymity of the confidential informant and to protect him or her from danger.” People v. Hedrington, 2020 NY Slip Op 04859, 2020 N.Y. App. Div. LEXIS 4939 (2d Dept. Sept. 2, 2020).*
Posted inInformant hearsay, Private search|Comments Off on TN: A security guard’s state license is not “state action” for 4A
“Here, Watkins did not state a plausible claim that Willson violated his Fourth Amendment rights because Willson did not arrest him, detain him, or restrain his movement. Instead, Willson gave Watkins notice to leave the premises, as required by Florida trespass law, and Watkins left without further incident.” Watkins v. Willson, 2020 U.S. App. LEXIS 27920 (11th Cir. Sept. 2, 2020).
Plaintiff was aware of his search claims when his hotel room was searched, and that claim is barred by limitations. Another claim that his car was the subject of a tracking warrant wasn’t disclosed to him until much later, and he at least stays in court on that claim for now. Villalona v. Holiday Inn Express & Suites, 2020 U.S. App. LEXIS 27941 (11th Cir. Sept. 2, 2020).*
Posted in§ 1983 / Bivens, Seizure|Comments Off on CA11: Telling ptf to move along wasn’t a 4A seizure
Posted inForfeiture|Comments Off on Reason: After the DEA Robbed Her of $43,000 at an Airport, She Joined a Class Action Challenging the Agency’s Cash Grabs
"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.
