Drug officers had probable cause but used patrol officers to make a stop based on a traffic offense, which there also was. The initial probable cause controls here. United States v. Green, 2020 U.S. Dist. LEXIS 126663 (N.D. Fla. July 20, 2020).
Defendant didn’t have standing in a truck he had no possessory interest in that he was just a passenger in. Brendlin gives standing to contest a stop but it doesn’t alter the Rakas analysis for standing to contest a search. United States v. Ramos, 2020 U.S. Dist. LEXIS 126955 (N.D. Ga. June 29, 2020),* adopted, 2020 U.S. Dist. LEXIS 126829 (N.D. Ga. July 20, 2020).*
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“The Fourth Amendment does not require best practices in criminal investigations.” That a controlled buy could have been done better doesn’t mean there wasn’t probable cause. United States v. Glenn, 2020 U.S. App. LEXIS 22544 (7th Cir. July 20, 2020):
When a defendant makes a Franks challenge, the court is not obliged to make the same inference he makes in determining whether he gets a hearing. Franks requires a “substantial preliminary showing” of recklessness or acting intentionally along with materiality. United States v. Moses, 2020 U.S. App. LEXIS 22477 (10th Cir. July 20, 2020).
Posted inUncategorized|Comments Off on CA10: USDC isn’t obligated to draw same Franks inferences the def does
“In light of the significant differences between a tower dump CLSI and long term CSLI targeted at the whole of an individual’s movements, as highlighted by the court’s decision in Carpenter, the court finds no basis for attaching a Fourth Amendment interest to tower dump CLSI.” Therefore, a § 2703 order suffices under Carpenter. United States v. Walker, 2020 U.S. Dist. LEXIS 126774 (E.D. N.C. July 20, 2020).
Posted inUncategorized|Comments Off on E.D.N.C.: Tower dump order different than long term CSLI; § 2703 order suffices under Carpenter
Broad email search warrants were not unreasonable just because they were broad. The breadth of the financial crime under investigation justifies it. In addition, the good faith exception applies and it’s too early to tell if any has to be suppressed because the government hasn’t decided how much will be used [using the example of 11,000 pages seized and two messages used at trial in United States v. Flores, 802 F.3d 1028 (9th Cir. 2015)]. United States v. Babichenko, 2020 U.S. Dist. LEXIS 126561 (D. Idaho July 16, 2020):
Police approach to defendant’s house at 3:30 am was reasonable because it was based on a domestic violence report to check on his wife. “Finally, Jardines, King, and Manzanares do not apply here. The Officers did not search Mr. Martinez’s property, see Jardines, 569 U.S. at 11-12, nor compel him to answer questions, see King, 563 U.S. at 469-70. Nor did they ‘remain[] in his home without a warrant or valid exception to the warrant requirement’ after he ‘unequivocally asked [them] to leave.’ Manzanares, 575 F.3d at 1143, 1146.” Martinez v. United States, 2020 U.S. App. LEXIS 22263 (10th Cir. July 17, 2020).*
Defendant’s motion to suppress was denied, and then his guilty plea waived the issue. State v. Merrick, 2020-Ohio-3744, 2020 Ohio App. LEXIS 2669 (2d Dist. July 17, 2020).*
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The police had a reasonable belief defendant had used a sawed off shotgun to threaten someone and that it was likely in his backyard. They waited for him to reappear to attempt to recover the gun, and when he did, they moved in. This was with exigent circumstances and was reasonable. State v. Ingala, 2020 Conn. App. LEXIS 239 (July 21, 2020).*
The search of defendant’s glove was by consent. Whether the automobile exception applied, didn’t matter. State v. Satita, 306 Neb. 499 (July 17, 2020).*
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A jurisdictional claim to issue the warrant was waived below well before the guilty plea. People v. Mitchell, 2020 NY Slip Op 04029, 2020 N.Y. App. Div. LEXIS 4188 (4th Dept. July 17, 2020).
It’s settled that the exclusionary rule does not apply in administrative proceedings, and, even if it did, the court would find good faith based on cases the driver relies upon coming after this happened. Johnson v. Kan. Dep’t of Revenue, 2020 Kan. App. LEXIS 50 (July 17, 2020).* See also Sandate v. Kan. Dep’t of Revenue, 2020 Kan. App. LEXIS 48 (July 17, 2020)* (exclusionary rule).
Posted inExclusionary rule, Waiver|Comments Off on NY4: Jurisdiction of magistrate to issue SW is waivable by guilty plea
The district court’s conclusion the impoundment of the car and inventory search was pretextual is supported by the evidence and is affirmed. United States v. Turnbow, 2020 U.S. App. LEXIS 22341 (9th Cir. July 17, 2020).
Defendant’s argument over the credibility of the affiant because of a contradiction with text messages from the CI was resolved by the district court and wouldn’t be considered on appeal. United States v. Goolsby, 2020 U.S. App. LEXIS 22376 (2d Cir. July 16, 2020).*
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CNN: Police used drones to monitor nudity at a Minnesota beach by Jay Croft (“Police near Minneapolis used drones last week to check if sunbathers at a lakeside beach were breaking the law by going nude or topless. The Golden Valley Police Department used the high-tech surveillance devices at Twin Lake on July 10 after receiving complaints from the public, city communications director Cheryl Weiler told CNN. ‘This stuff has been going on there for decades,’ she said. ‘When the police are called to the park it’s because someone has complained.’”)
Posted inDrones, Open fields|Comments Off on CNN: Police used drones to monitor nudity at a Minnesota beach
Defendant’s stop for following too close was without probable cause and unreasonable because a truck pulled in front of him, and the officer didn’t give him time to back off before the stop occurred. United States v. Grant, 2020 U.S. Dist. LEXIS 126344 (W.D. Ark. July 10, 2020) (R&R; FPD represented the defendant; PACER shows the government moved to dismiss the indictment three days later rather than challenge the R&R; 26 pounds of cocaine).
Defendant was a mere passenger in the car stopped by the police, and he thus lacked standing in the car. Stuff piled on the ground was properly searched by the police with exigent circumstances and probable cause on belief there might be a weapon in there. United States v. Michael, 2020 U.S. Dist. LEXIS 125614 (W.D. N.Y. May 22, 2020).*
Posted inProbable cause, Standing|Comments Off on W.D.Ark.: Stop for following too close was without PC when truck pulled in front of car and officer didn’t give time for def to widen the gap
A six week delay between seizure of electronic devices and then seeking a warrant was reasonable. There likely was probable cause based on the seizure, but the affidavit for the warrant showed what the officers were doing in their “robust” investigation of defendant’s fraud case. United States v. Newman, 2020 U.S. Dist. LEXIS 126160 (E.D. Wis. July 17, 2020):
Posted inCell phones, Staleness|Comments Off on E.D.Wis.: Six week delay in getting SW for electronics was reasonable; affidavit for SW showed scope of investigation
The officer’s entering through an open door didn’t require knock-and-announce at common law. United States v. Sherrod, 2020 U.S. App. LEXIS 22296 (8th Cir. July 17, 2020):
A Bivens remedy should not exist for actions against prisons for seizure of an inmate’s artwork that allegedly violated prison regulations. Courts don’t want to get into monitoring prisons. Callahan v. Fed. Bureau of Prisons, 2020 U.S. App. LEXIS 22115 (6th Cir. July 16, 2020).
Defendant pled guilty. Defense counsel was told of an error in the search warrant application by the DA, but didn’t pursue the issue to conclusion. Defendant can’t show that the error was dispositive of any search issue. People v. Powell, 2020 NY Slip Op 03999, 2020 N.Y. App. Div. LEXIS 4090 (1st Dept. July 16, 2020).*
Posted in§ 1983 / Bivens, Waiver|Comments Off on CA6: No Bivens remedy for seizure of BoP prisoner’s property
Defendant is not entitled to return of electronic devices and media containing child pornography because of the mere possibility that the contraband could be recovered from it even after erasure. United States v. Buttercase, 2020 U.S. Dist. LEXIS 125078 (D. Neb. July 16, 2020).
Comparing the video with enhancement, the court can’t make out what the transcript provided says. That might create a false sense of what was said. But, for various “reasons, the Court finds credible Agent Perry’s testimony that he did not hear Defendant tell him he was asleep and so Perry did not violate Defendant’s Fourth Amendment rights by continuing the encounter and asking Defendant for identification.” The encounter remained consensual. “The Court also finds, based on the evidence and testimony, that Defendant consented to a search of the plastic bag with his response, ‘Go for it.’ Therefore, Agent Perry’s search of the plastic bag did not violate Defendant’s Fourth Amendment rights.” United States v. Rodriguez, 2020 U.S. Dist. LEXIS 124525 (D.N.M. July 15, 2020).*
Posted inConsent, Rule 41(g) / Return of property|Comments Off on D.Neb.: No return of electronic media that had CP on it because def could possibly recover the contraband after erasure
"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.
