The district court acted within its discretion to deny a motion for new trial on an ineffective assistance of counsel claim for not moving to suppress before the trial. Defendant can raise it in post-conviction. United States v. Atuana, 2020 U.S. App. LEXIS 18431 (2d Cir. June 11, 2020).
After a hung jury, defendant is proceeding pro se in the second trial. A motion to suppress was denied before first trial. Renewing the motion before the second trial is untimely. “In any event, such a motion would be undoubtedly frivolous, as prior counsel recognized. Even setting aside the question as to whether defendant would have standing to challenge a search of Ms. American Horse’s vehicle, she testified at defendant’s first trial that she gave consent for the search.” United States v. Pond, 2020 U.S. Dist. LEXIS 102409 (D. S.D. June 11, 2020).*
Lawfare: Did a Government Drone Flight Over a Protest Violate the Fourth Amendment? by Nathaniel Sobel (“On May 28, protestors in Minneapolis demonstrated late into the night against the killing of George Floyd and police brutality. The next day, on Twitter, Jason Paladino of the Project on Government Oversight noticed a Customs and Border Protection (CBP) drone was flying over the city. According to open-source data, as reported by Gizmodo, the drone took off from an Air Force base in Grand Forks, North Dakota, at around 10:10 a.m. At 11:47 a.m., the drone reached Minneapolis, where it entered a ‘hexagon-shaped holding pattern at 20,000 feet over the city.’ About an hour and a half later, around 1:15 p.m., it began its return to Grand Forks.”)
How? Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (aerial photography from 2,000′ of a factory violated no reasonable expectation of privacy).
Posted inOpen fields|Comments Off on Lawfare: Did a Government Drone Flight Over a Protest Violate the Fourth Amendment?
Rolling Stone: No-Knock Warrants: Inside Police Tactic That Killed Breonna Taylor by EJ Dickson (“In certain cases, judges may allow authorities to enter a suspect’s home without announcing themselves — but since the death of Breonna Taylor, their use is coming under sharp scrutiny.”)
Posted inKnock and announce|Comments Off on Rolling Stone: No-Knock Warrants: Inside Police Tactic That Killed Breonna Taylor
OneZero: Google’s Geofence Warrants Face a Major Legal Challenge by Liz Brody (“Police requests for Google data that pinpoints anyone near the scene of a crime increased by more than 500% last year…The opposition to geofencing warrants is growing. The National Association of Criminal Lawyers’ Fourth Amendment Center, which is defending Chatrie, has begun litigating other similar cases, and Rumold says EFF may be filing an amicus brief to suppress geofence warrant evidence in a case in San Francisco. In April, STOP helped introduce a bill in New York that would ban geofence warrants in the state.”)
Posted inSurveillance technology|Comments Off on OneZero: Google’s Geofence Warrants Face a Major Legal Challenge
Dog sniff for drugs in traffic stop was not reasonably related to the purpose of the stop, and it is suppressed. State v. Ikimaka, 2020 Haw. LEXIS 139 (June 9, 2020):
Defendant contends that the affiant officer should have known that the CI was lying because of a motive to falsify, but doesn’t say how the officer would have known or did know. That’s insufficient for Franks. Another CI was not present at the time of the offense, but her information could be considered on probable cause. United States v. McReynolds, 2020 U.S. Dist. LEXIS 99804 (D. Ariz. June 8, 2020).
“Here, assuming that the initial traffic stop was justified by the LPR alert, the State has not met its burden of showing that officers reasonably and diligently sought to confirm or dispel their suspicions as to the purpose for the initial stop, which was premised on a vehicle break-in the day before. In particular, during the suppression hearing, the State failed to establish why it was reasonable for Mullins to be detained for more than 38 minutes before anyone endeavored to review the surveillance video of the prior day’s break-in — which took yet another 20 minutes — and, after that, for another 54 minutes before a decision was made to impound the car and handcuff its occupants.” Mullins v. State, 2020 Ga. App. LEXIS 334 (June 10, 2020).*
Posted inFranks doctrine, Reasonable suspicion|Comments Off on D.Ariz.: Whether officer should have believed CI was lying not a Franks issue
Defendant’s dispute over whether the judge issuing the search warrant had jurisdiction over the vehicle from which DNA was taken because it was located in a different county is moot. The officers had probable cause in investigating a bloody homicide, and the automobile exception applied. State v. Whitaker, 2020 Tenn. Crim. App. LEXIS 397 (June 9, 2020).
The motion to suppress was properly denied. “The affidavit here offered more than a substantial basis for the magistrate judge to find a fair probability that contraband would be found in Thomas’s house.” United States v. Thomas, 2020 U.S. App. LEXIS 18219 (3d Cir. June 10, 2020).*
New Mexico requires under its state constitution that all questions during a traffic stop not be fishing expeditions about other things unless reasonable suspicion is present. Asking about where defendant had been and who he met were not related to the traffic part of the stop and were unreasonable because the officer was fishing for a drug offense. State v. Tuton, 2020 N.M. App. LEXIS 27 (June 9, 2020).
“Trooper Foster’s questions about the Defendant’s travels were reasonably related to the purpose of the [traffic] stop.” The trooper also knew defendant was under a drug investigation. United States v. Hernandez-Rubio, 2020 U.S. Dist. LEXIS 101080 (D. Neb. June 9, 2020).*
Posted inReasonable suspicion|Comments Off on NM doesn’t permit questions about travel in routine traffic stops while federal courts do
Don’t Shoot Portland v. City of Portland, 2020 U.S. Dist. LEXIS 100801 (D. Ore. June 9, 2020):
While the Court acknowledges that Mayor Wheeler has issued additional guidance on the use of tear gas during these protests, Defendant has not submitted sufficient evidence to show that this guidance will be effective in preventing its use against peaceful protestors in violation of the First and Fourth Amendment. The Court also notes that a court order offers Plaintiffs additional recourse in the event that these violations continue. The Court therefore orders that PPB be restricted from using tear gas or its equivalent except as provided by its own rules generally. In addition, tear gas use shall be limited to situations in which the lives or safety of the public or the police are at risk. This includes the lives and safety of those housed at the Justice Center. Tear gas shall not be used to disperse crowds where there is no or little risk of injury.
This order will expire in 14 days unless extended, superseded, or vacated by a subsequent order. Plaintiffs are not required to post security.
Posted inExcessive force|Comments Off on D.Ore. grants preliminary injunction against use of tear gas against peaceful protesters
The impoundment of defendant’s car on the property of another was reasonable. Officers were not required to wait for defendant to locate somebody to retrieve the car, and they didn’t have to leave it to inconvenience the property owner. United States v. Cornett, 2020 U.S. Dist. LEXIS 100536 (E.D. N.C. May 8, 2020), adopted, 2020 U.S. Dist. LEXIS 99902 (E.D. N.C. June 8, 2020).
The district court erred in finding implied consent without proper findings of fact and conclusions of law. The officers never testified that they asked for consent and the alleged consenter didn’t answer. She stepped aside at the door, and they took that as implied consent. United States v. Staggers, 2020 U.S. App. LEXIS 18085 (5th Cir. June 9, 2020).
Posted inConsent, Inventory|Comments Off on E.D.N.C.: Police not required to leave car on property of another rather than impound it
“In 2013, Wayne Jones, a black man experiencing homelessness, was stopped by law enforcement in Martinsburg, West Virginia for walking alongside, rather than on, the sidewalk. By the end of this encounter, Jones would be dead. Armed only with a knife tucked into his sleeve, he was tased four times, hit in the brachial plexus, kicked, and placed in a choke hold. In his final moments, he lay on the ground between a stone wall and a wall of five police officers, who collectively fired 22 bullets. Jones’s Estate sued under 42 U.S.C. § 1983, bringing a Fourth Amendment claim against the officers and a Monell claim against the City of Martinsburg. In protracted litigation, the Estate has been kicked out of district court three times. Most recently, the district court granted summary judgment to the defendants on both claims, holding that the officers are protected by qualified immunity and that the City cannot be liable under a Monell theory for failing to train those officers. Although we agree that the City is insulated from Monell liability premised on one incident of excessive force, we reverse the grant of summary judgment to the officers on qualified immunity grounds, as a reasonable jury could find that Jones was both secured and incapacitated in the final moments before his death.” Estate of Jones v. City of Martinsburg, 2020 U.S. App. LEXIS 18136 (also 2020 U.S. App. LEXIS 18944) (4th Cir. June 9, 2020) (and then the last paragraph):
Posted inExcessive force, Qualified immunity|Comments Off on CA4: “a reasonable jury could find that Jones was both secured and incapacitated” when police shot him; QI denied
The affidavit for search warrant failed to show nexus between defendant’s alleged drug dealing a month earlier and his residence. “The only information included in the affidavit to support this conclusory belief is the fact that Defendant, who happens to be a drug dealer, resides at that residence. Perhaps most concerning to the Court is that the affidavit does not offer a statement from Officer Evans, the affiant, that in his personal experience, ‘individuals involved with drug trafficking commonly keep records, documents, and money close by.’” [Thus inviting that the next time.] Also, the affidavit is short and conclusory, and the good faith exception will not be applied. United States v. Reed, 2020 U.S. Dist. LEXIS 99958 (W.D. Tenn. June 8, 2020).
“Defendant’s challenges to his pretrial detention have no bearing on the validity of his conviction and sentence. Accordingly, his appellate attorney was not ineffective for failing to raise these issues on appeal.” United States v. Groenendal, 2020 U.S. Dist. LEXIS 99763 (W.D. Mich. June 8, 2020).
Posted inIneffective assistance, Nexus, Probable cause|Comments Off on W.D.Tenn.: Affidavit was conclusory as to drugs at drug dealer’s home [but it’s easy to fix next time]
Defendant was indicted for child pornography, and the district court suppressed. The government appealed but dismissed the appeal without filing a brief. In the district court it dismissed the indictment. Later, on the same evidence from the same search warrant, the government indicted him in a different district. Collateral estoppel bars the second case because the suppression order stands. United States v. Arterbury, 2020 U.S. App. LEXIS 18047 (10th Cir. June 9, 2020).
The affiant officer’s statement that those involved in frauds often keep records of their activities, and that overcomes on the totality a claim of staleness. It was eight months between the fraud and the search warrant, and the warrant was for Facebook records, too. “A gap in time may not undermine the information contained in the warrant where ‘“a continuing pattern or other good reasons’ suggest that the evidence sought remains in the location to be searched[.]”’” United States v. Martinez, 2020 U.S. Dist. LEXIS 100277 (N.D. Cal. June 8, 2020).
Posted inIssue preclusion, Probable cause, Staleness|Comments Off on CA10: Unappealed suppression order from one district collateral estoppel on reindictment on same facts in a different district
Inconsistent travel plans coming from the driver and passenger justified a 15 minute call to EPIC to see if the vehicle had crossed the border recently, and this was not unreasonable. United States v. Morales, 2020 U.S. App. LEXIS 17865 (10th Cir. June 8, 2020).
Factual disputes precluded summary judgment on qualified immunity for Tasing a person without aiming who was running away from the officer, allegedly to keep her from getting hit by a car. She was hit in the head and fell, and training instructed not to Tase a running person because of risk of secondary injuries from falls. Pena v. City of Rio Grande City, 2020 U.S. App. LEXIS 17903 (5th Cir. June 8, 2020).* [I capitalize “Taser” and “Tasing” because Taser is a product name.]
Similar to Glover, Massachusetts held well before that the suspension of the owner’s DL can justify a stop. There was no indication [such as gender] here that the driver could not be the owner, so the stop was with reasonable suspicion. Commonwealth v. Puac-Cuc, 2020 Mass. App. LEXIS 67 (June 8, 2020).
Because defendant’s stop was continued because he had a suspended DL, the dog sniff wasn’t unreasonable. State v. Wilson, 2020-Ohio-3227, 2020 Ohio App. LEXIS 2167 (12th Dist. June 8, 2020).*
Posted inReasonable suspicion, Reasonableness|Comments Off on MA: Owner’s DL was suspended, and it wasn’t apparent that driver wasn’t owner when stop occurred
Opening pretrial detainee’s legal mail 15 times outside his presence was a First Amendment violation, even though he’d been suspected of receiving contraband about the witnesses against him both in legal and nonlegal mail. The First Amendment violation is injury in itself. His Fourth Amendment claim, however, that opening it outside his presence fails for qualified immunity because that isn’t clearly established. Haze v. Harrison, 2020 U.S. App. LEXIS 17957 (4th Cir. June 8, 2020):
Posted inPrison and jail searches|Comments Off on CA4: Opening jail legal mail away from inmate violated 1A, but separate 4A claim for that not clearly established
Proposed Justice in Policing Act of 2020 in the House of Representatives: some proposals on arrest and frisk, qualified immunity, use of force, and searches:
In § 103, repeals case law on qualified immunity in revised § 1983 (pdf at 6:14-7:9)
In § 341, requires the Attorney General to issue regulations on data collection of racial disparity in arrests, frisks, and searches (pdf 58:21 ff)
In § 362, bans no-knock warrants in federal drug cases and denies federal funds to state and local governments without such a policy (pdf at 66:1-66:22):
SEC. 362. BAN ON NO-KNOCK WARRANTS IN DRUG CASES. (a) BAN ON FEDERAL WARRANTS IN DRUG CASES.— Section 509 of the Controlled Substances Act (21 U.S.C. 879) is amended by adding at the end the following: “A search warrant authorized under this section shall require that a law enforcement officer execute the search warrant only after providing notice of his or her authority and purpose.”. (b) DEFINITION.—In this section, the term “no-knock warrant” means a warrant that allows a law enforcement officer to enter a property without requiring the law enforcement officer to announce the presence of the law enforcement officer or the intention of the law enforcement officer to enter the property. (c) LIMITATION ON ELIGIBILITY FOR FUNDS.—Beginning in the first fiscal year beginning after the date of enactment of this Act, a State or local jurisdiction may not receive funds under the COPS grant program for a fiscal year if, on the day before the first day of the fiscal year, the State or other jurisdiction does not have in effect a law that prohibits the issuance of a no-knock warrant in a drug case.
In § 363, incentivizes banning of chokeholds and carotid holds (pdf at 66:23 ff) and makes a chokehold a federal criminal civil rights violation (18 U.S.C. § 241) in § 363(e)(2). (pdf 67:14-68:2)
In § 372, it requires federal officers who make arrests or searches wear body camera and activate them. (pdf at 95:22 ff)
From House Judiciary:
A section-by-section summary of the Justice in Policing Act of 2020 is available here.
A fact sheet on the Justice in Policing Act of 2020 is available here.
Posted inUncategorized|Comments Off on Proposed Justice in Policing Act of 2020, some proposals on arrest and frisk, qualified immunity, use of force, and no-knock warrants
Officers thought defendant was on probation and searched him, but he wasn’t at the time. The state put on no evidence of good faith, so the search fails for lack of a factual or legal basis for the search. People v. Rosas, 2020 Cal. App. LEXIS 495 (2d Dist. June 8, 2020).
Defendant objected to a consent search, but police removed him from the home and then validly sought consent from a third person with authority. This was valid third party consent under Fernandez and Randolph. Thus, defense counsel wasn’t ineffective for not objecting. State v. Rodriguez, 2020-Ohio-3242, 2020 Ohio App. LEXIS 2177 (11th Dist. June 5, 2020).*
Posted inConsent, Probation / Parole search|Comments Off on Cal.2: Mistake of fact def was on probation made probation search unreasonable
"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.
