A factual mistake in a state court’s decision on defendant’s Fourth Amendment claim for the inventory of his property still doesn’t merit habeas relief. Marling v. Littlejohn, 2020 U.S. App. LEXIS 21616 (7th Cir. July 13, 2020).
Plaintiff’s claim for malicious prosecution survives summary judgment by the defense. He was shot by officers during a traffic stop and then spent two months in the hospital and then 16 months in pretrial detention before the dashcam video showed that plaintiff’s version was correct that he dropped any weapon and had his hands up when he was shot. Interesting discussion of the Fourth Amendment and malicious prosecution. Williams v. Aguirre, 2020 U.S. App. LEXIS 21596 (11th Cir. July 13, 2020).*
Plaintiff was subjected to two body cavity searches of her rectum and vagina for drugs she was reasonably believed to have smuggled into the jail through booking. It was invasive, but it was reasonable on balance with the jail’s security needs. It wasn’t a blanket strip search—it was fact based and reasonably conducted. Brown v. Polk County, Wisconsin, 2020 U.S. App. LEXIS 21622 (7th Cir. July 13, 2020):
“Here, the Court finds that Trooper Amick did not have reasonable suspicion to extend the stop. Trooper Amick testified that he had asked for consent to search the vehicle because the conflicting stories by Mr. Gonzalez and Mr. Diaz indicated some sort of deception. … Trooper Amick noted that he did not know what specific crime may have occurred but was suspicious that something was going on. … Trooper Amick also testified, however, that he asked Mr. Gonzalez where he was going a second time because the enforcement action was completed, and he thought Mr. Gonzalez would be less nervous answering. … Trooper Amick observed that ‘[s]ometimes people are nervous when they’re talking to law enforcement and I always try to give them a chance to not be nervous because the enforcement action has already been completed, the warning.’ … Trooper Amick’s recognition that sometimes responses are inconsistent due to nerves demonstrates that Mr. Gonzalez’s and Mr. Diaz’s conflicting stories cannot form reasonable suspicion standing alone. Trooper Amick did not have any other reason for extending the stop and seeking permission to search beyond his hunch that criminal activity was afoot. This is insufficient under the Fourth Amendment. As such, Defendant Gonzalez’s motion to suppress regarding the Fourth Amendment should be granted.” United States v. Gonzalez, 2020 U.S. Dist. LEXIS 121431 (D. Ariz. July 9, 2020).
Posted inReasonable suspicion|Comments Off on D.Ariz.: Nervousness alone can’t be RS
A subpoena duces tecum from the State Escheator is subject to Fourth Amendment reasonableness. “The resulting legal framework for enforcing an administrative subpoena involves a shifting burden of proof. The agency has the initial burden of showing that its subpoena is authorized. ‘If the [agency] makes this preliminary showing, the burden then shifts to the respondent to prove that enforcement of the subpoena would be improper under the test enunciated in Powell.’” State, Dept. of Finance v. AT&T Inc., 2020 Del. Ch. LEXIS 233 (July 10, 2020):
The subpoena for records here was reasonable, and there was no reasonable expectation of privacy in them where the court could analogize the subpoena as a search. State v. Doyle, 2020 R.I. LEXIS 65 (July 8, 2020):
“At the summary judgment stage, in deciding the issue of qualified immunity, our jurisprudence requires that the evidence be viewed in the light most favorable to Baskin. Therefore, for summary judgment purposes, we must accept as true the sworn deposition testimony of Baskin and the independent eyewitness, who both stated that Baskin’s hands were above his head, in an act of surrender, when Detective Martinez fired the shot. Under that scenario, a police officer would not have had an objectively reasonable basis to use deadly force. The law prohibiting the use of deadly force against a non-threatening and surrendering suspect was clearly established, as evidenced by cases in jurisdictions that have addressed the issue. Thus, Detective Martinez was not entitled to qualified immunity on summary judgment. [¶] The disputed issues of material fact — whether Detective Martínez’s use of deadly force was objectively reasonable — are for a jury to resolve, not for a court. Accordingly, we remand this matter for further proceedings consistent with this opinion.” Baskin v. Martinez, 2020 N.J. LEXIS 803 (July 9, 2020).*
Posted inExcessive force, Qualified immunity|Comments Off on NJ: Ptf’s and eyewitness’s testimony ptf’s hands were over his head in act of surrender when he was shot overcame QI at summary judgment stage
Pocket knife on the console of a defendant’s car was not reasonable suspicion to search his person. State v. Duncan, 2020 N.C. App. LEXIS 525 (July 7, 2020).
Where initial stop was valid, smell of marijuana and defendant’s furtive movements were probable cause. United States v. Freeman, 2020 U.S. App. LEXIS 21383 (8th Cir. July 10, 2020).*
A ShotSpotter alert led to defendant’s stop in a high-crime area late at night. On the totality, there was no reasonable suspicion for defendant’s stop. Therefore, his flight after the stop began didn’t end the inquiry. United States v. Carter, 2020 U.S. Dist. LEXIS 121181 (D.D.C. July 10, 2020):
“Although Plaintiff references her Fourth Amendment claims against the unidentified police officers in her list of ‘questions presented,’ she makes no argument to support those claims in her brief. See Appellant Br. 2, 6-13. We therefore view these claims as abandoned and decline to consider them on appeal.” Aouatif v. City of New York, 2020 U.S. App. LEXIS 21265 (2d Cir. July 7, 2020).*
The traffic stop was justified by following too close, and basic questioning developed reasonable suspicion. United States v. Howard, 2020 U.S. App. LEXIS 21269 (6th Cir. July 7, 2020).*
Where the stop and seizure of the vehicle was with probable cause, its automobile exception search could occur later. United States v. Brown, 2020 U.S. Dist. LEXIS 120634 (W.D. Ky. July 9, 2020).*
A private person finding defendant’s SD card with child pornography on it was a private search. Contacting the police and their attempting to get a search warrant was after the fact, so it was not in conjunction with the private search that revealed it. United States v. Farrar, 2020 U.S. Dist. LEXIS 120629 (D. Mont. July 9, 2020).*
Using a ruse of a missing child to gain entry invalidated the alleged consent. Motion to suppress granted. United States v. Turner, 2020 U.S. Dist. LEXIS 120630 (E.D. Ky. July 9, 2020):
Use of cell site simulator merely to capture defendant’s cell phone numbers and not to track him was reasonable because he had no reasonable expectation of privacy in his numbers. United States v. Powell, 2020 U.S. Dist. LEXIS 120229 (E.D. Mich. July 9, 2020).
Based on how the purported inventory occurred and the nature of the search of the vehicle, the search of the vehicle was unreasonable and inventory was a pretext. Combs v. State, 2020 Ind. App. LEXIS 289 (July 9, 2020).
Defendant wasn’t denied access to the search warrant materials to claim justification for a motion for new trial. State v. Mock, 2020-Ohio-3667, 2020 Ohio App. LEXIS 2605 (8th Dist. July 9, 2020).*
Posted inCell site simulators, Inventory|Comments Off on E.D.Mich.: Use of cell site simulator to capture phone numbers and not track was reasonable
While six officers were wrestling plaintiff, this one’s stomping plaintiff’s ankle and breaking it was on the surface unreasonable, but under all the circumstances, it was all hazy enough on the law to require qualified immunity. Shelton v. Stevens, 2020 U.S. App. LEXIS 21274 (8th Cir. July 8, 2020)*:
Posted inExcessive force, Qualified immunity|Comments Off on CA8: On totality, stomping ptf’s ankle and breaking it when six officers were trying to control him was covered by QI
“[W]hile waiting for the drug dog to arrive, Morphis placed Gibbs in handcuffs. It’s not clear from this record that that was justified. … But Morphis had reasonable suspicion to extend the stop to wait for the drug dog; and the dog’s alert provided probable cause to search the car. Thus, the car’s contents would have inevitably been discovered by lawful means. Even if Morphis violated the Fourth Amendment in handcuffing Gibbs, suppression of the search’s results is therefore not warranted on that basis. United States v. Sallis, 920 F.3d 577, 582-83 (8th Cir. 2019).” United States v. Gibbs, 2020 U.S. Dist. LEXIS 119381 (E.D. Ark. July 8, 2020).*
A controlled buy was probable cause for defendant’s stop, and reasonable suspicion wasn’t required. United States v. Cain, 2020 U.S. Dist. LEXIS 119425 (E.D. Ky. May 14, 2020),* adopted, 2020 U.S. Dist. LEXIS 120282 (E.D. Ky. July 8, 2020).*
Posted inProbable cause, Reasonable suspicion|Comments Off on E.D.Ark.: If handcuffing on RS to maintain status quo wasn’t reasonable, it doesn’t make the vehicle search unreasonable
U.S. Marshals entered defendant’s home on an arrest warrant and, instead of just securing it, they succeeded in searching it, too. The search violated the Fourth Amendment and is suppressed. Green v. United States, 2020 D.C. App. LEXIS 240 (July 9, 2020):
Defendant’s house was seized to get a search warrant. Defendant does not show that the search warrant was tainted by the warrantless seizure. State v. Dehong, 305 Ore. App. 325, 2020 Ore. App. LEXIS 844 (July 8, 2020).*
“Here, considering deputy Taylor’s awareness that defendant is known drug trafficker, and her prior sightings of him at the residence; Lenzy’s brief visit to the residence, and his behavior suggesting he ingested narcotics shortly thereafter; defendant’s possession of a large amount of United States currency, and his mother’s acknowledgement that he had just left the residence, where he lives with her; and the suspicious and contradictory accounts provided by Lenzy and defendant; it reasonably could be inferred from the circumstances that contraband and narcotics would be found at the residence, and the issuing judge had a substantial basis for concluding that probable cause [for the search warrant] existed.” In any event, the good faith exception applied. United States v. Greene, 2020 U.S. Dist. LEXIS 119625 (E.D.N.C. July 8, 2020).*
Posted inAttenuation, Probable cause|Comments Off on OR: Warrantless seizure of house wasn’t shown to taint SW for house
Facebook posts of defendant’s wife with a pink assault rifle and a cropped photo of a male holding a gun with face not shown was probable cause to search his residence for firearms. United States v. Walker, 2020 U.S. Dist. LEXIS 120030 (E.D. Cal. July 7, 2020).*
“Based upon our independent review of the record and the aforementioned body camera video recordings, we find that at the time the officers observed Carson in his vehicle, the officers did not possess a reasonable and articulable suspicion of criminal activity before initiating a search of the vehicle. At every instance of Officer Forester’s testimony, he insisted that he was checking on Carson’s well-being. [¶] Although we must accept the trial court’s findings of fact in ruling on a motion to suppress, we must only do so if the findings are supported by competent, credible evidence. We find that the record does not support the trial court’s findings of fact that the officers engaged Carson in a consensual encounter.” State v. Carson, 2020-Ohio-3669, 2020 Ohio App. LEXIS 2596 (8th Dist. July 8, 2020).*
Posted inConsent, Probable cause|Comments Off on E.D.Cal.: Facebook posts of def’s wife with gun was PC for SW for residence
Two months of CSLI seven years before Carpenter was subject to the good faith exception. United States v. Pritchard, 2020 U.S. App. LEXIS 21030 (6th Cir. July 7, 2020)* (a valiant try based on the circuit’s Warshak email decision).
“What is more relevant than whether Mr. Atlas violated the statute is whether Deputy Zide reasonably believed that he did. This is because ‘the ultimate touchstone of the Fourth Amendment is “reasonableness.”’ Heien v. North Carolina” … “While this Court is not convinced that Deputy Zide’s interpretation of the statute was correct, for purposes of the joint Motion to Suppress, what matters is whether his interpretation was reasonable. It was.” United States v. Atlas, 2020 U.S. Dist. LEXIS 118739 (S.D. Ohio July 7, 2020).*
The State: SC Chief Justice Beatty orders magistrates to stop issuing ‘no knock’ search warrants by John Monk (“State Supreme Court Chief Justice Donald Beatty late Friday afternoon ordered state judges and magistrates to stop issuing ‘no-knock’ search warrants to police. With such a judge-approved warrant in hand, a squad of police can show up at a house and, without any warning, use a battering ram to smash in a door if they suspect a potentially violent suspect might destroy evidence or start a gunfight if given even a few seconds’ warning.”)
Posted inKnock and announce|Comments Off on The State: SC Chief Justice Beatty orders magistrates to stop issuing ‘no knock’ search warrants
"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.
