Defendant’s arrest in a motel room resulted in a plain view of a distinctive sneaker that was probably worn in a robbery. That supported a search warrant. Defendant’s protective sweep argument wasn’t timely raised, but it would lose anyway because there were more than one person involved in the robbery. United States v. Rivera, 2020 U.S. App. LEXIS 27910 (11th Cir. Sept. 2, 2020).*
“Here, we conclude that factual findings are necessary to determine whether the prosecution met its burden to establish that there was clear and convincing evidence that the data retrieved from Rosa’s Phone would have been inevitably discovered. Thus, this case must be remanded for further proceedings to determine whether the evidence obtained from Rosa’s Phone should have been suppressed.” State v. Rosa, 2020 Haw. App. LEXIS 312 (Aug. 31, 2020).*
The CI was reliable because of past information that proved true, self-incrimination, and personal observation of defendant’s activities. United States v. Spradling, 2020 U.S. Dist. LEXIS 159079 (E.D. Tenn. Sept. 1, 2020).*
Defendant rented an outbuilding as a residence from a person on probation. His separate room was not subject to the landlord’s probation search waiver. In addition, one doesn’t have to lock his residence to have a reasonable expectation of privacy in it. State v. Thomas, 2020 MT 222, 2020 Mont. LEXIS 2283 (Sept. 1, 2020):
The stop here was based a license plate search. The Buffalo impound lot had not updated its records that defendant got his car out of impound more than a week earlier. There was no traffic violation. The stop was unreasonable just to inquire. People v. Hinshaw, 2020 NY Slip Op 04816, 2020 N.Y. LEXIS 1905 (Sept. 1, 2020):
Posted inReasonable suspicion, Reasonableness|Comments Off on NY: Stop because license plate reader erroneously said car should have still been in impound lot was unreasonable
Plaintiff, a Monroe County deputy sheriff, stated a claim so far for false imprisonment against ATF agents who stopped him for no reason while he was working Hurricane Irma in the Florida Keys. His excessive force claim, however, is dismissed. Jones v. United States, 2020 U.S. Dist. LEXIS 158884 (S.D. Fla. Aug. 31, 2020).
“Upon review, none of the statements in the affidavit were deliberately or recklessly false, nor was any of the omitted information clearly critical to a finding of probable cause. Further, omitting the alleged false information or including the omitted information would have no material effect on the finding of probable cause.” United States v. Bradley, 2020 U.S. Dist. LEXIS 158646 (W.D. Mo. July 24, 2020).*
Defendant didn’t meet the Franks threshold in his motion to suppress, but he got a suppression hearing on it anyway, and then he didn’t satisfy his burden. United States v. Shine, 2020 U.S. Dist. LEXIS 158911 (N.D. Ala. Sept. 1, 2020).*
Posted in§ 1983 / Bivens, Franks doctrine|Comments Off on S.D.Fla.: Deputy sheriff stated false imprisonment claim against ATF officers
A preliminary search of an electronic device under a warrant was permissible to determine what folders on it might be responsive to the search warrant without it being overbroad. United States v. Weigand, 2020 U.S. Dist. LEXIS 158771 (S.D. N.Y. Aug. 31, 2020):
“Hawkins conceded in his criminal proceeding that he consented to Fults’s search of his vehicle. To the extent that he now claims that his consent was insufficient because he did not own the vehicle, reasonable jurists would agree that his argument is meritless.” “Hawkins was the only occupant of the vehicle and had been sleeping in the car for some time before Fults arrived, so reasonable jurists would agree that a man of reasonable caution would be warranted in believing that Hawkins had authority over the car. Because reasonable jurists would agree that Hawkins failed to make a substantial showing ‘that his Fourth Amendment claim is meritorious,’ he is not entitled to a COA on his ineffective-assistance claim.” Hawkins v. United States, 2020 U.S. App. LEXIS 27792 (6th Cir. Aug. 31, 2020).* [Isn’t this likely a concession of lack of standing?]
The video of plaintiff’s Tasering didn’t “blatantly” belie his excessive force claim, so he withstands summary judgment. Emmett v. Armstrong, 2020 U.S. App. LEXIS 27806 (10th Cir. Sept. 1, 2020).*
Posted inConsent, Excessive force|Comments Off on CA6: CoA denied; consent conceded in guilty plea, and def now claims it was insufficient
Defendant would get the benefit of Birchfield because he developed and preserved the same argument below. He loses on the merits, however, because he voluntarily consented before the officer told him of the criminal penalties for refusal, so his consent wasn’t caused by that. Commonwealth v. Gaston, 2020 Pa. Super. LEXIS 746 (Sept. 1, 2020).
On the totality of circumstances, defendant’s consent during a traffic stop and recorded by a camera was voluntary. Commonwealth v. Carmenates, 2020 Pa. Super. LEXIS 748 (Sept. 1, 2020).*
Posted inConsent, Drug or alcohol testing|Comments Off on PA: Def gets benefit of Birchfield by adequately raising issue before it was even decided; but he loses on merits
“As in Hernandez, ‘it is glaringly obvious that [Hobbs’s] claims involve a new context.’ Id. at 744. And the same extraterritorial concerns that foreclosed a Bivens claim in Hernandez apply here with greater force. Unlike in Hernandez, all of the critical events that provide the basis for Hobbs’s constitutional claims occurred in Thailand. To recognize a malicious-prosecution suit in this context would touch upon relations between the Thai and American governments, given that Hobbs was arrested and prosecuted by the Royal Thai Police. Hobbs stresses that Devine–not Thai authorities–orchestrated the wrongful accusation, but that argument does not undermine the strong presumption against interfering in the Executive Branch’s relations with foreign countries. These same concerns also apply to Hobbs’s Fourth Amendment false-arrest claim. The district court did not err in dismissing Hobbs’s complaint.” Hobbs v. Devine, 2020 U.S. App. LEXIS 27835 (9th Cir. Sept. 1, 2020).
Posted in§ 1983 / Bivens|Comments Off on CA9: Hernandez bars Bivens claim against false arrest in Thailand U.S. allegedly participated in
A mistake as to the name of the person’s BAC to be searched for and seized in the warrant could be overlooked where it correctly appeared 50 times in the affidavit. The officer’s altering the search warrant application with the knowledge of the prosecutor after the warrant issued was strongly disapproved but didn’t undermine the probable cause showing. Schmidt v. Dir. of Revenue, 2020 Mo. App. LEXIS 1088 (Sept. 1, 2020):
Posted inWarrant requirement|Comments Off on MO: Alteration of SW application after warrant issued is strongly disapproved of, but here did not undermine PC
Affidavits for search warrants are presumed to be accurate under Franks, and that’s why the defense has to make a substantial preliminary showing of falsity. Alleging merely that other more timely reports would shed light on the subject is not a substantial preliminary showing. United States v. Bradley, 2020 U.S. Dist. LEXIS 157748 (W.D. Mo. Aug. 31, 2020).
Plaintiff doesn’t show that the bankruptcy trustee violated the Fourth Amendment as to the debtor’s property by aggressive actions. Mortimer v. Sorvino, 2020 U.S. Dist. LEXIS 157708 (S.D. N.Y. Aug. 31, 2020).*
“Assuming without deciding that Alton ordering Sauls to the ground constituted an arrest that was not supported by probable cause (a contention that the State disputes), the record supports a finding that before being ordered to the ground, Sauls threw the marijuana into a trash can that he did not own, while at a residence where he did not live. Thus, as a threshold matter, we must determine if Sauls has standing to challenge the search of the trash can and the seizure of the marijuana found within it.” He doesn’t. That wasn’t even his trash can, and the marijuana was in plain view where it was tossed. Genero v. State, 2020 Tex. App. LEXIS 7049 (Tex. App. – Austin Aug. 31, 2020).
The CI was the target of a search, and he snitched off defendant as his source for about ten sales, the most recent the day before. That was a statement against penal interest. State v. Stone, 2020 Ind. App. LEXIS 374 (Aug. 31, 2020).
A prosecutor’s application for a material witness arrest warrant is entitled to absolute immunity. Qadri v. Rivera-Mercado, 2020 Fla. App. LEXIS 12334 (Fla. 5th DCA Aug. 31, 2020).
The officer had reasonable suspicion based on training and experience from talking with defendant during a traffic stop where there was “circumspect behavior and [a] dubious story.” United States v. Ambriz-Villa, 2020 U.S. Dist. LEXIS 157602 (S.D. Ill. Aug. 31, 2020).*
The information for the search warrant was not stale: “In this light, the information about child abuse was not stale. Indeed, the character of the alleged crime—abuse of a child—was grounds for continuing concern.” As to continuing a traffic stop: “Under the circumstances here, the officers had both reasonable suspicion and statutory grounds for extending the stop.” United States v. Rashid, 2020 U.S. Dist. LEXIS 157281 (S.D. Ohio. Aug. 31, 2020).
An internet service provider viewed one image of child pornography which was a private search and the government saw that image. The government also saw another image that wasn’t subject to the private search. No matter because the first was enough to show probable cause. United States v. Wilbert, 2020 U.S. App. LEXIS 27578 (2d Cir. Aug. 28, 2020).*
Posted inPrivate search, Staleness|Comments Off on S.D.Ohio: Child abuse allegation isn’t stale because it’s of “continuing concern”
“The central question here is whether Transportation Security Administration (TSA) screening personnel, known as Transportation Security Officers (TSOs), satisfy the FTCA’s definition of an investigative or law enforcement officer. Holding that they do, we reverse and remand.” “Two of our sister circuits have addressed it but are divided on the answer. See generally Pellegrino v. U.S. Trans. Sec. Admin., 937 F.3d 164, 180 (3d Cir. 2019) (en banc) (finding that TSOs constitute investigative or law enforcement officers); Corbett v. Transp. Sec. Admin., 568 F. App’x 690, 701 (11th Cir. 2014) (per curiam) (finding that TSOs do not constitute investigative or law enforcement officers). Most recently, the Third Circuit, sitting en banc, found that TSOs satisfy the proviso’s definition. See Pellegrino, 937 F.3d at 180.” Iverson v. United States, 2020 U.S. App. LEXIS 27634 (8th Cir. Aug. 31, 2020).*
321 Fifth had four doors and appeared to be one address. It was actually three. Defendant disclaimed control of the unit where the grow operation was. He lacked standing to challenge it, but, even if he did, the warrant was with probable cause and the good faith exception applied. United States v. Rice, 2020 U.S. App. LEXIS 27638 (3d Cir. Aug. 31, 2020).*
Posted in§ 1983 / Bivens, Standing|Comments Off on CA8: TSA’s officers “satisfy the FTCA’s definition of an investigative or law enforcement officer” for FTCA
On the totality, defendant’s consent to BAC testing was voluntary. The police department’s implied consent form was accurate. State v. Hosaka, 2020 Haw. LEXIS 256 (Aug. 28, 2020)*:
The government contention a protective sweep or exigent circumstances justified the entry was speculative and lacked foundation. Motion to suppress granted. United States v. Lara-Mejia, 2020 U.S. Dist. LEXIS 156946 (M.D. Pa. Aug. 28, 2020).
The automobile exception doesn’t apply on the curtilage (Collins), but the court finds this car wasn’t on the curtilage. United States v. Townsend, 2020 U.S. Dist. LEXIS 156768 (S.D. W.Va. Aug. 28, 2020).
CI’s corroborated information along with a controlled buy was probable cause. United States v. Rieves, 2020 U.S. Dist. LEXIS 156726 (D. Mass. Aug. 28, 2020).*
Posted inCurtilage, Probable cause, Protective sweep|Comments Off on M.D.Pa.: Govt’s justification for protective sweep or exigency based entry were speculative so motion to suppress granted
Posted inQualified immunity, Strip search|Comments Off on pjmedia: Judge Denies Qualified Immunity for Kentucky Child Welfare Workers Who Illegally Strip-Searched Children
Posted inWarrant requirement|Comments Off on Reason: More Than a Year Before Breonna Taylor’s Death, Some of the Same Cops Were Involved in Another Home Invasion Based on Dubious Evidence
An attempt to order a cell phone owner to provide his password to the phone is testimonial under the Fifth Amendment. The court also concludes the foregone conclusion doctrine does not apply. Garcia v. State, 2020 Fla. App. LEXIS 12232 (Fla. 5th DCA Aug. 28, 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.
