Stopping defendant for mere curiosity to get his name and then run warrants was an unreasonable stop. When a warrant came up, it wasn’t attenuated under Strieff. “Here, Officer Hernandez testified that it was his practice when working the night shift, regardless of whether a crime had been reported or not, to stop anyone he did not know and ask for their name and date of birth. He explained that his reason for doing this was to establish a database of people walking around Silver City at night, so that if a crime was committed later in the night, he could review the names of the people with whom he had had contact. This was a standard practice of the Silver City Police Department.” State v. Ramey, 2020 N.M. App. LEXIS 31 (June 29, 2020).
“[T]o the extent Stockley argues that the allegations of the misrepresentation and omissions in the probable cause affidavit support a claim that Deeken violated Stockley’s substantive due process rights solely because the judge would not have found there was probable cause to issue the arrest warrant if the affidavit had included complete and accurate information, this argument is foreclosed by Manuel v. City of Joliet, 137 S. Ct. 911, 197 L. Ed. 2d 312 (2017).” In addition, there was probable cause for the prosecution, so his malicious prosecution claim fails. Stockley v. Joyce, 2020 U.S. App. LEXIS 20117 (8th Cir. June 29, 2020).*
FDLE’s failure to remove defendant’s DNA from the state CODIS database after his acquittal in a prior case wasn’t a Fourth Amendment violation nor subject to the exclusionary rule to keep it from being used in this case. The evidence was properly seized in the first place, and there was no bad faith. Porter v. State, 2020 Fla. App. LEXIS 9305 (Fla. 1st DCA June 29, 2020):
Posted inDNA, Exclusionary rule, Seizure|Comments Off on FL1: FDLE’s failure to remove DNA after acquittal in prior case wasn’t a separate 4A violation nor was it subject to the exclusionary rule
“In short, and as explained below, the Court finds that Leake’s stance in the corner of the laundry room was suspicious, and that upon approaching him, Officer Pantaleon observed Leake holding a small clear plastic baggie containing a powder-like substance. Officer Pantaleon reasonably believed that the baggie contained narcotics, and as Officer Pantaleon grabbed Leake to investigate this suspicious activity, Leake attempted to flee, which resulted in a prolonged physical struggle between the police officers and Leake. Leake was not arrested for Fourth Amendment purposes until the officers saw that he was carrying a gun on his person. And given these findings, the Court further concludes that the officers’ actions were reasonable for Fourth Amendment purposes. Officer Pantaleon had a reasonable articulable suspicion that justified the initial investigatory stop of Leake, and he had probable cause to arrest Leake when the gun fell out of Leake’s waistband. Moreover, Leake does not have Fourth Amendment standing to claim that the officers’ presence in the building’s laundry room constituted a constitutional violation from the outset, nor was the officers’ use of force to detain and arrest Leake unreasonable given his active resistance (which was captured clearly on the officers’ body-worn cameras and the laundry room video surveillance system). Therefore, Leake’s Fourth Amendment rights were not violated when the officers arrested him on May 28, 2019, and, accordingly, Leake’s motion to suppress the tangible evidence recovered at the time of his arrest must be DENIED.” United States v. Leake, 2020 U.S. Dist. LEXIS 112934 (D.D.C. June 26, 2020)
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2019cr0194-44
Feeling a weapon during a patdown allows the officer to go beyond the outer clothing to retrieve it. United States v. Hightower, 2020 U.S. Dist. LEXIS 112557 (E.D. N.Y. June 26, 2020).
Defendant stopped his vehicle in an intersection where he had the right of way and no stop sign. The officer at the stop sign on the side street pulled him over. The stop was without reasonable suspicion for stopping in the intersection. State v. Colby, 2020 Tex. App. LEXIS 4769 (Tex. App. – Austin June 25, 2020).*
“Here, information provided information by a reliable confidential informant and the investigating officers’ collective observations of Davis’s nervousness and unusual behavior of ‘grabbing at his crotch area a lot after he was asked out of the vehicle, adjusting himself, [and] wanting to sit down’ provided reasonable suspicion for Davis’s temporary detention to allow the drug-detection dog to perform an open-air sniff.” Davis v. State, 2020 Tex. App. LEXIS 4770 (Tex. App. – Austin June 26, 2020).*
Posted inReasonable suspicion, Stop and frisk|Comments Off on E.D.N.Y.: Feeling apparent weapon during patdown allows officer to go inside clothing
Defendants removed their state criminal cases to federal court under 28 U.S.C. § 1443 based on claimed search and seizure issues. This isn’t a proper ground to remove, and they have a state law remedy. Texas v. Calzada, 2020 U.S. Dist. LEXIS 112829 (W.D. Tex. June 26, 2020).
Just because NCMEC is state action for Fourth Amendment purposes doesn’t mean it is for Brady. United States v. Lacey, 2020 U.S. Dist. LEXIS 112853 (D. Ariz. June 26, 2020).*
Failure to provide an affidavit about standing from a person with knowledge makes the motion to suppress fail. United States v. Figueroa, 2020 U.S. Dist. LEXIS 112492 (W.D. N.Y. June 22, 2020).*
Posted inAbstention, Burden of pleading, Standing|Comments Off on W.D.Tex.: State officer’s alleged 4A violation doesn’t permit removal of criminal case to federal court
“Approximately twenty minutes after Jacobs fled on foot, the police noticed Gilmore driving away from the neighborhood where the robbery occurred. At the time of the stop, Gilmore’s car was the only car on the road. Once the stop lawfully took place, the officers immediately noticed Jacobs in the back seat of Gilmore’s car and realized that he was the fleeing suspect. This gave the officers probable cause to arrest Gilmore and Jacobs.” United States v. Gutierrez, 2020 U.S. App. LEXIS 20038 (4th Cir. June 26, 2020).
Whether or not the District Court credits the testimony of the officer conducting the plain view determines its validity. The USMJ found the officer credible, and defendant gives no valid reason to upset that finding. United States v. Cigolo, 2020 U.S. Dist. LEXIS 112379 (D. Minn. June 26, 2020).*
Defendant was stopped for speeding, and he was found without a license. The police didn’t arrest him, just ticketed him. Impounding his car and inventorying it was unreasonable under the circumstances, and this was not a reasonable exercise of the community caretaking function. Defendant’s car was on the side of the road, and he was two miles from home. He could call for assistance or walk home. The fact the department policy was to impound didn’t make it reasonable. State v. Brooks, 2020 WI 60, 2020 Wisc. LEXIS 139 (June 25, 2020):
Posted inCommunity caretaking function, Inventory|Comments Off on WI: Impoundment of car because def was merely ticketed for not having a valid license was unreasonable
On this record, the second Tasing of plaintiff could be found unreasonable for lack of resistance, which the jury did. Jones v. Treubig, 2020 U.S. App. LEXIS 19883 (2d Cir. June 26, 2020).
The search under defendant’s consent for “firearms/evidence” was properly limited. On opening a shoe box, officers found a recorder and got a search warrant for it. That was reasonable. State v. Rhodes, 2020-Ohio-3479, 2020 Ohio App. LEXIS 2418 (2d Dist. June 26, 2020).*
The Iowa court of appeals agreed that plain feel was violated, but inevitable discovery applied. Petitioner does not show that the finding violates clearly established law under 2254. Stephen v. Smith, 2020 U.S. App. LEXIS 19923 (8th Cir. June 26, 2020).*
Not precisely following CHP policy in filing out the inventory papers didn’t per se make the inventory search unreasonable. United States v. Magdirila, 2020 U.S. App. LEXIS 19477 (9th Cir. June 23, 2020).
The community caretaking function of police permitted the seizure and impoundment of defendant’s car when he was stopped for speeding and had a suspended DL. An inventory ensued. State v. Brooks, 2020 WI 60, 2020 Wisc. LEXIS 139 (June 25, 2020).
The collective knowledge doctrine applies to traffic stops. United States v. Murray, 2020 U.S. Dist. LEXIS 111040 (S.D. Ohio June 24, 2020).
“Applying this [deferential] standard of review to the warrant application, the Court has reviewed the application and finds that probable cause existed for the warrant. For these reasons, the Court recommends that defendant’s request for suppression of evidence on these grounds be denied.” Besides, the good faith exception applies. United States v. Bowman, 2020 U.S. Dist. LEXIS 111683 (W.D. N.Y. May 26, 2020).*
“The defendant has presented no case law supporting his proposition that the target of a search warrant has a right to have counsel present during the execution of a warrant. The officers executed a warrant to search the defendant’s cell for writings that would show evidence of the murders and witness intimidation. Further, the officer in charge of the search did not, as the judge found, seize any writings that he verified were either to or from the defendant’s attorney. Such action does not amount to prosecutorial misconduct, particularly when the defendant has not identified any of the materials seized as subject to the attorney-client privilege.” Commonwealth v. Hall, 2020 Mass. LEXIS 329 (June 26, 2020).
Posted inWarrant execution|Comments Off on MA: No right to counsel at execution of SW
“Defendant’s objections do not address the Magistrate’s analysis or conclusions regarding Grounds 11 and 15. Instead, Defendant vaguely asserts that his counsel should have challenged the ‘validity of [the] evidence[.]’ (DE 406 at 7.) Defendant provides no basis to challenge the validity of the evidence collected in the search of the Berea home, and accordingly, he cannot show any ineffective assistance of counsel on this basis. The Court adopts the Magistrate’s analysis and conclusions regarding Defendant’s Ground 11 claim.” United States v. Smith, 2020 U.S. Dist. LEXIS 111597 (E.D. Ky. June 23, 2020).
Officers had a founded suspicion defendant was involved in an assault when he was found wearing the specific labeled jacket described by witnesses and he fled as soon as he saw the police. People v. Williams, 2020 NY Slip Op 03569, 2020 N.Y. App. Div. LEXIS 3663 (3d Dept. June 25, 2020).*
The city failed in its burden of proof for seizure for forfeiture that the owner was aware. Matter of Smith v. City of New York, 2020 NY Slip Op 03600, 2020 N.Y. App. Div. LEXIS 3687 (1st Dept. June 25, 2020).*
Defendant’s guilty plea was not a conditional plea, so the search issue is waived by the plea. State v. Fisher, 2020 La. App. LEXIS 967 (La. App. 5 Cir. June 24, 2020).*
Posted inForfeiture|Comments Off on NY1: Seizure for forfeiture fails for lack of notice to owner
“In the appeal, Macias argued against the application of the good-faith exception, claiming that the magistrate’s conduct showed he had abandoned impartiality or was unable to act in a neutral and detached manner. … However, to warrant exclusion of the evidence on this basis, the magistrate’s conduct must exhibit ‘systemic or patent partiality’ such that ‘the police knew or should have known that the magistrate was acting as a ‘rubber stamp’ for a police investigation.’ … This court held that Macias had proffered no evidence suggesting the issuing magistrate displayed systemic partiality toward law enforcement that would justify the application of the exclusionary rule.” Defendant’s post-conviction claim defense counsel didn’t properly investigate whether the issuing magistrate was neutral and detached fails for no systematic showing. State v. Macias, 2020 Ariz. App. LEXIS 623 (June 25, 2020).
Posted inNeutral and detached magistrate|Comments Off on AZ: Challenging neutral and detached magistrate requires showing “systemic or patent partiality”
“We conclude that the incapacitated driver provision is unconstitutional because the implied consent that incapacitated drivers are deemed to have given and presumed not to have withdrawn does not satisfy any exception to the Fourth Amendment’s warrant requirement. However, we also conclude that the circuit court should not have suppressed the test result in this case because the State has met its burden to prove that the officer who drew Prado’s blood acted in objective good-faith reliance on the constitutionality of the incapacitated driver provision. Accordingly, we reverse the order suppressing the test result and remand for further proceedings consistent with this opinion.” State v. Prado, 2020 Wisc. App. LEXIS 299 (June 25, 2020).
The CI was corroborated by a controlled buy. State v. Stubbs, 2020-Ohio-3464, 2020 Ohio App. LEXIS 2400 (5th Dist. June 23, 2020).
Despite the pandemic and court closures, arrestees are entitled to a prompt judicial determination of probable cause under Gerstein. Bullock v. Superior Court, 2020 Cal. App. LEXIS 575 (1st Dist. June 24, 2020).
During a search of defendant’s house under a warrant, he was questioned outside. This wasn’t custodial. His authority is inapposite because it involved an interrogation inside during the search. United States v. Islava, 2020 U.S. Dist. LEXIS 110991 (D.Ariz. June 23, 2020).*
Posted inArrest or entry on arrest, Probable cause|Comments Off on Cal.1: Despite the pandemic, arrestees are entitled to a prompt judicial determination of PC
The affidavit for the search warrant here was adequate to show nexus and probable cause for a search. The reliance on other officers’ information didn’t require this officer to independently corroborate it. United States v. Velazquez, 2020 U.S. Dist. LEXIS 110600 (D. Minn. Apr. 27, 2020), adopted, 2020 U.S. Dist. LEXIS 105172 (D. Minn. June 15, 2020).
“No reasonable officer could have understood these facts and circumstances to constitute probable cause to believe that Mills and Chun had committed the crime of theft by deception or any other violation of New Jersey law. … Thus, Mills and Chun have alleged facts sufficient to establish a violation of their constitutional rights, that is, the right under the Fourth Amendment to be free from arrest without probable cause. Such right was clearly established at the time of plaintiffs’ arrest. … When the arrest of a person is undertaken without probable cause as under the facts presented here, the search of that person and seizure of his or her property incident to arrest also violates that person’s clearly established rights under the Fourth Amendment. … Accordingly, the complaint states viable claims that defendants violated plaintiffs’ clearly established rights to be free from unreasonable search and seizure under the Fourth Amendment. Defendants are not entitled to qualified immunity.” Mills v. Golden Nugget Atl. City, LLC, 2020 U.S. Dist. LEXIS 110912 (D. N.J. June 24, 2020).*
Pleading and litigating a motion to suppress in the trial court that the officers lacked an arrest warrant or an exception waived his appellate claim of a lack of probable cause. People v. Montes, 2020 IL App (2d) 180565, 2020 Ill. App. LEXIS 403 (June 24, 2020).
The search warrant affidavit relied on a CI who wasn’t independently corroborated. Instead, “The information was, however, specific and detailed. CS, the affidavits reveal, was no mere anonymous tipster. The affidavits state that federal agents had been using CS investigatively for seven months. CS had a track record of reliability; his information had led to seizures of a large quantitiy of heroin, firearms, and cash.” That was probable cause on the totality. United States v. Dancy, 2020 U.S. Dist. LEXIS 110913 (D. N.J. June 24, 2020).”
AP: Michigan voters to decide on data protections in November election (“A state constitutional amendment to designate electronic communication and data as personal property has made it onto the November ballot. If passed, the amendment would put the same protections given to “person, houses, papers and possessions” that are in the state constitution and the Fourth Amendment of the U.S. Constitution. Law enforcement would require a warrant to access electronic data and communication.”)
Posted inThird Party Doctrine|Comments Off on AP: Michigan voters to decide on data protections in November election
“We first find that the district court did not abuse its discretion in excluding portions of testimony from two of Albert’s expert witnesses—Richard Lichten, a police-procedure expert, and Dr. Kris Sperry, the former Chief Medical Examiner for the State of Georgia. The district court held that three of Lichten’s opinions were inadmissible conclusions of law. See United States v. Williams, 343 F.3d 423, 435 (5th Cir. 2003) (‘Reasonableness under the Fourth Amendment or Due Process Clause is a legal conclusion.’); McBroom v. Payne, 478 F. App’x 196, 200 (5th Cir. 2012) (per curiam) (explaining that experts are not ‘permit[ted] … to offer legal conclusions, and whether an officer’s use of his firearm was unreasonable for purposes of the Fourth Amendment is a legal conclusion’ (citation omitted)). We agree.” Albert v. City of Petal, 2020 U.S. App. LEXIS 19673 (5th Cir. June 22, 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.
