Plaintiff’s response “absolutely” during a frisk to looking in his wallet was reasonably determined to be consent. His argument over the words used didn’t create a sufficient question of fact. Gale v. O’Donohue, 2020 U.S. App. LEXIS 25752 (6th Cir. Aug. 11, 2020) (“Gale’s linguistic argument boils down to whether Gale’s word choice in this case, without context, creates a dispute on his consent to the search and seizure. We find it does not. It may be that, without context, an affirmative answer—e.g. “absolutely”—in response to the type of question posed here ‘is ambiguous[.]’ United States v. Price, 54 F.3d 342, 346 (7th Cir. 1995) (explaining that ‘[s]ure’ in response to ‘[d]o you mind[?]’ is ‘capable of being interpreted as either “Go ahead” or “No way”’). An ordinary person could understand Gale’s response ‘absolutely’ to mean ‘absolutely [I mind]’ and as a refusal to consent. But an ordinary person could also interpret Gale’s response ‘absolutely’ to mean ‘absolutely [you may search my wallet]’ or ‘absolutely [not, I don’t mind]’ and as consent.”).*
The 2017 affidavit for the order for CSLI showed a substantial basis for probable cause. United States v. Alvarez, 2020 U.S. Dist. LEXIS 146084 (N.D. Cal. Aug. 13, 2020).*
Posted inCell site location information, Consent|Comments Off on CA6: Ptf still doesn’t show a question of fact whether he consent to officer looking in his wallet
When the defense makes a motion to suppress, it is obligated to put the state on notice as to all the issues. This suppression hearing took nine days, and still the defense claims the state didn’t fully get the issues. That’s on the defense. Still, the proof shows there was reasonable suspicion for the stop. People v. Silveria, 2020 Cal. LEXIS 5356 (Aug. 13, 2020):
The affidavit for the search warrant of a trailer and curtilage as a crime scene showed probable cause to believe evidence could be there. People v. Suarez, 2020 Cal. LEXIS 5355 (Aug. 13, 2020).
Defendant’s appeal raised a substantial question of law or fact on whether there was reasonable suspicion for his stop which warranted his release pending appeal. It was not more likely than not standard, and the trial court was not required to find error in its own ruling. Mitchell v. United States, 2020 D.C. App. LEXIS 313 (Aug. 13, 2020).*
In a California specific holding, a criminal defense subpoena to Facebook for a shooting victim’s Facebook account (private and public) made enough of a sufficient showing of necessity to get a remand for consideration of the factors that justify intrusion into the victim’s privacy under the California Constitution. Facebook, Inc. v. Superior Court, 2020 Cal. LEXIS 5354 (Aug. 13, 2020):
Posted inState constitution, Subpoenas / Nat'l Security Letters|Comments Off on Cal.: Defense SDT for Facebook account of shooting victim remanded for reconsideration under standards of state constitution of victim’s privacy rights
It doesn’t matter that the officer didn’t cite the right offense as long as the facts of probable cause support any offense. United States v. Simmons, 2020 U.S. Dist. LEXIS 145562 (N.D. Ga. June 15, 2020):
Failure to get a ruling on a search claim in the trial court is waiver of the issue for appeal. People v. Collins, 2020 NY Slip Op 04517, 2020 N.Y. App. Div. LEXIS 4610 (1st Dept. Aug. 13, 2020).
Drug dog’s unexpected jumping into defendant’s car wasn’t a search. The dog had already alerted. The officer had reasonable suspicion from defendant’s contradictory and suspicious explanation of his travels which was contrary to his first explanation. State v. Randall, 2020 Ida. App. LEXIS 62 (Aug. 13, 2020).
Older trash pull wasn’t stale when combined with another three days before search warrant issued. United States v. Threalkill, 2020 U.S. Dist. LEXIS 145259 (M.D. Tenn. Aug. 13, 2020).*
Defendant was lawfully stopped for riding his bicycle on the sidewalk over a bridge, but it was only an infraction and a search incident was unreasonable. United States v. Harris, 2020 U.S. Dist. LEXIS 145000 (E.D. Cal. Aug. 12, 2020).
Defendant was stopped for riding a bicycle at night without a light. During the stop, his body language changed and the officer could smell marijuana on defendant. That justified a frisk for officer safety. United States v. Overton, 2020 U.S. Dist. LEXIS 145276 (N.D. Tex. Aug. 12, 2020).*
Posted inSearch incident, Stop and frisk|Comments Off on E.D.Cal.: SI for a bicycle riding infraction is unjustified
Alleged false statement to get an arrest warrant overcame qualified immunity. Tlapanco v. Elges, 2020 U.S. App. LEXIS 25595 (6th Cir. Aug. 12, 2020).
The state failed to show exigent circumstances excused obtaining a search warrant for defendant’s BAC. Commonwealth v. Jones-Williams, 2020 Pa. Super. LEXIS 674 (Aug. 11, 2020).*
Defendant’s warrantless arrest was with probable cause, and the warrantless seizure of his cell phone incident to arrest was valid. United States v. Killingsworth, 2020 U.S. Dist. LEXIS 144826 (N.D. Ohio Aug. 12, 2020).*
“Here, McKee testified that the FBI notice describing Robinson stated that he was armed and dangerous. McKee also testified that Robinson failed to comply with his first order to put his hands up and kept reaching for his waistband. These facts provided justification for McKee to pull his weapon and for the other officers to handcuff and frisk Robinson to effectuate the valid Terry stop.” United States v. Robinson, 2020 U.S. App. LEXIS 25589 (3d Cir. Aug. 12, 2020).
The affidavit as a whole showed probable cause to believe heroin would be found in defendant’s house, and that’s nexus. State v. Haithcote, 2020 Tenn. Crim. App. LEXIS 550 (Aug. 11, 2020).*
Posted inNexus, Stop and frisk|Comments Off on CA3: FBI notice of being “armed and dangerous” justified stop and furtive movement a frisk
Some discretion in the seizing officers as to what should be seized was not unreasonable or a lack of particularity. An unfilled-in blank on the warrant didn’t make it vague, either. Also, defendant waived his probable cause argument on appeal by counsel’s statement in the trial court that the constitutionality of the contact of the warrant was the only issue and probable cause was not an issue. State v. Aaron, 2020 Fla. App. LEXIS 11332 (Fla. 3d DCA Aug. 12, 2020). As to particularity:
Posted inParticularity, Waiver|Comments Off on FL3: Some discretion in the seizing officers as to what should be seized was not unreasonable or a lack of particularity
Police received a 911 call that a man was carrying an “AK”-like long gun, hiding from passersby, and was apparently going to rob a store. Defendant was encountered openly carrying a gun, legal conduct, but he wasn’t hiding because the police easily found him. On the totality, there wasn’t reasonable suspicion for the stop and frisk, and the appellate court disagrees with the trial court’s findings. State v. Gates, 2020-Ohio-4027, 2020 Ohio App. LEXIS 2932 (5th Dist. Aug. 5, 2020).*
Defendant’s Fourth Amendment claim on habeas is not only precluded by Stone, it completely fails on the merits and “This claim does not deserve encouragement to proceed further.” CoA denied. Dew v. Eppinger, 2020 U.S. App. LEXIS 25468 (6th Cir. Aug. 11, 2020).*
A notebook in defendant’s purse was properly searched incident to her arrest, even without probable cause it contained evidence. United States v. Ouedraogo, 2020 U.S. App. LEXIS 25519 (11th Cir. Aug. 12, 2020):
Once a search warrant issues for a cell phone, there is no privilege of self-incrimination in the phone barring compelled production of the password. The foregone conclusion exception to the Fifth Amendment applies. State v. Andrews, A-72-18 (N.J. Aug. 10, 2020) (syllabus by the court):
Posted inCell phones, Privileges|Comments Off on NJ: Once SW issues for cell phone, foregone conclusion exception to self-incrimination applies and password can be compelled
Prison inmates retain a Fourth Amendment reasonableness right against abusive strip and body cavity searches enough to state a claim here. Qualified immunity is reserved for later. Henry v. Hulett, 2020 U.S. App. LEXIS 25390 (7th Cir. Aug. 11, 2020) (Easterbrook dissents that this right has to be found in the Eighth Amendment, not the Fourth):
Posted inPrison and jail searches, Reasonableness|Comments Off on CA7: Prison inmates have 4A reasonableness protection against abusive strip and body cavity searches
Police released defendant’s cell phone two days after its seizure, but defendant never sought to recover it. This was considered an abandonment. Standing to challenge CSLI could be an issue because the phones weren’t claimed, but, without deciding that, the order for the date in 2013 complied with existing law so good faith applies. The same applies to real time tracking information. United States v. Green, 969 F.3d 1194 (11th Cir. Aug. 11, 2020), substituted opinion 2020 U.S. App. LEXIS 37186 (11th Cir. Nov. 25, 2020) [Note: There’s a serious problem with this abandonment rationale: How does the person from whom the cell phone was seized know that the phone was released? In my experience, the police almost never tell the owner that they are done with the phone, just like any other property they seize. They can’t call the owner because they have the phone, unless the owner got another phone with the same number, but how would the police know that? Did they ship it back to him? Never. Abandonment is an exception to the warrant requirement, so the government would have to prove it and that defendant was on actual notice that the phone was released and then did nothing to recover it.]
Posted inUncategorized|Comments Off on CA11: Def’s failure to claim cell phone once it was released was abandonment
Reasonable reliance on apparent authority to consent is good faith. “And relying on consent in good faith is circular and redundant. Whether there is apparent authority to consent already addresses the officers’ good-faith belief in the consenters’ authority. Put differently, if Yahia’s consent was invalid because the searching officers’ belief that Yahia had authority to consent was objectively unreasonable, they couldn’t have relied on that consent in good faith and no precedent suggested that they could.” Hamdan v. United States, 2020 U.S. Dist. LEXIS 143289 (N.D. Ill. Aug. 11, 2020).
Defendant’s controlled buy to the CI was probable cause, so further supporting the CI wasn’t necessary. United States v. McCallister, 2020 U.S. Dist. LEXIS 143178 (S.D. W.Va. Aug. 12, 2020).*
Posted inApparent authority, Probable cause|Comments Off on N.D.Ill.: Reasonable reliance on apparent authority is good faith in itself
As pretrial detainee, it’s unclear whether the Fourth Amendment applies to his claims. The Fourteenth Amendment clearly does, and, in any event the standards would be applied the same. Patel v. Lanier County, 2020 U.S. App. LEXIS 25345 (11th Cir. Aug. 11, 2020):
“As noted above, however, some of these alleged omissions and misstatements are simply not supported by the record. And, the omissions that are supported by the record were not material given the strength of the evidence supporting a finding of probable cause. Further, LaPan made no offer of proof to support his allegations that omissions and misstatements were made knowingly, intelligently, or with reckless disregard for the truth. Notably, the affiant detective was present at the hearing on LaPan’s motion to suppress, but LaPan did not call her to testify or otherwise submit ‘a detailed offer of proof and statement of supporting reasons.’” State v. LaPan, 2020 Ariz. App. LEXIS 720 (Aug. 11, 2020).
A warrant for historical CSLI was not a tracking warrant, and it was valid at the time it was issued. Defense counsel was not ineffective for not challenging the territorial jurisdiction of the issuing judge. Moreover, exclusion hasn’t been recognized for a violation of § 3117(a). Broomfield v. United States, 2020 U.S. Dist. LEXIS 142613 (M.D. Fla. Aug. 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.
