Defendant claimed his probation violation arrest warrant was defective and then argued the search incident to his arrest was thus invalid. On appeal, he doesn’t argue the validity of the arrest warrant, so the argument is waived. State v. Anglin, 2020 La. App. LEXIS 683 (La. App. 1 Cir. May 11, 2020).
“The fact that Edwards was not named in the search warrant for 803 Slate Lick Road does not provide a basis for challenging the search. … ‘[S]earch warrants are not directed at persons; they authorize the search of place[s] and the seizure of things, and as a constitutional matter they need not even name the person from whom the things will be seized.’ …” There was probable cause for his arrest for a felony, and an arrest warrant wasn’t required. United States v. Edwards, 2020 U.S. App. LEXIS 15216 (6th Cir. May 12, 2020).*
The trial court relied on the video of the stop and search, but it was not included by the defense in the record on appeal. This is considered waiver. State v. Hays, 2020-Ohio-2919, 2020 Ohio App. LEXIS 1869 (9th Dist. May 13, 2020).
An ineffective assistance of counsel claim for failure to file a motion to recuse the judge for alleged prejudice in summarily denying a motion to suppress requires an allegation and showing of prejudice that it should or likely would have been granted. Williams v. State, 2020 Fla. App. LEXIS 6514 (Fla. 2d DCA May 13, 2020).
Posted inIneffective assistance|Comments Off on OH9: When trial court relies on video of stop and search, failure to include in record on appeal is waiver
A hotel customer has a reasonable expectation of privacy in the hotel’s registry information about the customer from government intrusion, at least with reasonable suspicion under the state constitution. The statute permitting inspection is constitutional with this limitation. The officer’s warrantless search of the hotel registry here was an unreasonable search. State v. Leonard, 2020 Minn. LEXIS 284 (May 13, 2020).
Defendant consented to a video reenactment of an occurrence, and it wasn’t a violation of the Fourth or Fifth Amendment. Wahl v. State, 2020 Ind. App. LEXIS 200 (May 12, 2020).*
Posted inConsent, State constitution|Comments Off on MN: REP in hotel registry information under state constitution
A Montana DTF was tipped off to defendant bringing a cache of heroin to a motel to distribute. Officers set up surveillance and recognized local drug dealers coming and going. They called for uniformed backup and attempted a knock-and-talk which led to a slammed door. That was exigency for a forced entry to preserve the probable evidence, and it was reasonable. State v. Vegas, 2020 MT 121, 2020 Mont. LEXIS 1380 (May 12, 2020) [Coming out and being made here wasn’t a police-created exigency? The defendant admits probable cause.]:
WSJ: Coronavirus Demands a Privacy Law by Christine Wilson (“Silicon Valley’s role in contact tracing and social-distancing enforcement has Americans worried.”):
Four questions in 35 seconds at an immigration checkpoint were reasonable and for immigration purposes, not general crime control. United States v. Avery, 2020 U.S. App. LEXIS 15034 (5th Cir. May 11, 2020).
A random LPN check showed the owner’s DL under suspension. That justified the stop, and that validly led to a DUI arrest. State v. Anglin, 2020-Ohio-2907, 2020 Ohio App. LEXIS 1861 (5th Dist. May 11, 2020) (the stop was 18 months before Glover).
Appellant’s claim that defense counsel was ineffective for not challenging CSLI as to one of the counts against him is harmless when he was acquitted of that count. United States v. Hazley, 2020 U.S. App. LEXIS 15039 (7th Cir. May 12, 2020).*
Plaintiff had no reasonable expectation of privacy in his prison paperwork under Hudson v. Palmer or state law. If legal mail were involved, plaintiff would have to show actual injury [n.5]. Anctil v. Cassese, 2020 ME 59, 2020 Me. LEXIS 60 (May 12, 2020).
Defense counsel wasn’t ineffective for not filing a motion to suppress the search warrant for an eight day delay between obtaining it and executing it in a drug case. Bradley v. United States, 2020 U.S. Dist. LEXIS 83062 (S.D. Ala. Apr. 13, 2020).
Defendant’s stop for driving without a valid license was valid despite the officer’s subjective intent. A handgun was validly found on the floorboard. United States v. Sanchez, 2020 U.S. Dist. LEXIS 83345 (D. Del. May 12, 2020).*
Officers had an objectively reasonable basis for an entry and sweep under the emergency aid exception. Defendant was reportedly suicidal, wasn’t communicating at first, and then strange sounds were coming from where he was. “Based on these troubling circumstances, the officers had an objectively reasonable basis for believing that the occupant inside the apartment needed—whether welcomed or not—immediate aid.” Merid v. Commonwealth, 2020 Va. App. LEXIS 143 (May 12, 2020).
Plaintiff called the defendants and asked that his records be taken. They did. This was not a seizure. Reno v. Nielson, 2020 U.S. Dist. LEXIS 82672 (D. Haw. May 8, 2020).
Posted inEmergency / exigency, Seizure|Comments Off on VA: Fear of suicide attempt objectively justified warrantless entry as facts developed
Just because the Fourth Amendment was complied with doesn’t mean that the evidence seized is relevant (Rule 401) or the evidence could be more prejudicial than relevant (Rule 403). Then, suppression isn’t the remedy – a motion in limine is. United States v. Nelson, 2020 U.S. App. LEXIS 14931 (7th Cir. May 11, 2020) (see Treatise § 60.29 n.5).
A search warrant was executed at defendant’s house, and he came outside in shorts and sweatshirt and talked with the police. He was not arrested nor in custody for Miranda purposes. People v. Clark, 2020 CO 36, 2020 Colo. LEXIS 438 (May 11, 2020).
Defendant was subjected to controlled buys with a CI that led to his search warrant. The officers involved can testify to what happened, and defendant hasn’t shown necessity for disclosure of the informant. “Additionally, to the extent that some information is not covered by the confidential informant privilege, the Court finds that Sanders’ argument that the information might reveal some kind of doubt about the basis of the search warrant does not meet his burden of demonstrating that the information would ‘alter the quantum of proof in the case’ as controlling caselaw requires.” United States v. Sanders, 2020 U.S. Dist. LEXIS 81938 (E.D. Ky. May 11, 2020).
Habeas petitioner’s request for CoA denied; no IAC for, inter alia, not seeking identity of the CI for the search. McClain v. Vannoy, 2020 U.S. App. LEXIS 14844 (5th Cir. May 8, 2020).*
Posted inInformant hearsay|Comments Off on E.D.Ky.: No discovery on ID of CI; not material to any 4A issue
Defendant was arrested for murder, handcuffed and taken in for interrogation, all without probable cause. His statement was suppressed, and the state fails to show that obtaining his buccal swab during this time would clear even the low bar for inevitable discovery. But, the state can get a do over on remand. Commonwealth v. Pinney, 2020 Mass. App. LEXIS 49 (May 11, 2020):
Posted inArrest or entry on arrest, DNA|Comments Off on MA: DNA swab taken by consent during arrest without PC is suppressed, but state can do it over on remand
The Michigan Supreme Court sets aside part of a Court of Appeals decision that says that the Michigan Constitution’s search and seizure provision is coextensive with the Fourth Amendment because it’s not. Otherwise, it declines review of the decision. People v. Katzman, 2020 Mich. LEXIS 894 (May 8, 2020).
“[F]ailure to cite relevant case law” isn’t a ground for ineffective assistance of counsel on post-conviction of a Fourth Amendment claim when (1) defendant doesn’t say what it was that wasn’t cited to show a failure of performance, and (2) the facts clearly show abandonment. State v. Jackson, 2020 Del. Super. LEXIS 219 (May 8, 2020).*
When the vehicle stopped isn’t owned by the driver, he has to come forward with something showing standing. “However, Mr. Hernández-Marín failed to bring testimony other than himself to prove possession, control or ownership of the Dodge RAM pick-up truck he was driving the night of February 16, 2019. In Aguirre, the Court held that because ‘[t]here was no evidence that Aguirre owned or leased the Mazda, or that it was registered to him. …’ ‘[the] appellant had no expectation of privacy in the Mazda or its contents, and thus lacked “standing” to pursue the matter.’ Aguirre, 839 F.2d at 856-57).” He claimed he bought it and had the keys, but had nothing supporting that. United States v. Hernández-Marín, 2020 U.S. Dist. LEXIS 81803 (D.P.R. May 7, 2020).
Posted inStanding|Comments Off on D.P.R.: Def driver had to somehow independently show ownership or control of vehicle for standing under CA1 precedent
Defendant’s purse was validly searched under the automobile exception after the backup officer smelled marijuana coming from the car. It didn’t matter that it wasn’t in the car at the time of the search. State v. Lang, 305 Neb. 726 (May 8, 2020).
There is no basis for filing a motion to suppress (here pro se by a self-represented defendant) ex parte and under seal. The motion is unsealed, and the government shall respond in due course. United States v. Scott, 2020 U.S. Dist. LEXIS 81738 (D. Mont. May 8, 2020).
Posted inAutomobile exception, Motion to suppress|Comments Off on NE: Def’s purse could be searched under automobile exception even though it had already been removed from car
NYT: How Reuters Analyzed Court Data on Qualified Immunity (“Supreme Court Justice Sonia Sotomayor has repeatedly criticized her fellow justices for creating, as she put it in a 2018 dissent, an ‘absolute shield’ for police officers accused of excessive force. So Reuters reporters decided to test her words. Sotomayor isn’t alone in faulting the court for making it too easy for cops accused of violating the Fourth Amendment to the U.S. Constitution, which protects the public from unreasonable search and seizure. Groups from across the political spectrum have set their sights on the obscure legal doctrine known as qualified immunity, created half a century ago to shield police and other government employees from legal liability for actions they take on the job.”)
Posted inQualified immunity|Comments Off on NYT: How Reuters Analyzed Court Data on Qualified Immunity
The trial court granted a motion to suppress the search of defendant’s car’s black box (“event data recorder”). The state on appeal seeks to depart from State v. Worsham, 227 So. 3d 602, 603 (Fla. 4th DCA 2017), that there is a reasonable expectation of privacy in the black box. Denied. “However, based on the insufficiency of the record—including a suppression hearing without any witnesses or factual stipulations—we have no occasion to analyze the reasoning in Worsham which, among other things, likened EDRs to cell phones.” Also, n.1: “Further, the parties have not advanced any argument as to whether the physical entry into the defendant’s vehicle to download data from the EDR constituted a search under the trespass theory. See Mobley v. State, 834 S.E.2d 785, 792 (Ga. 2019) (‘The retrieval of data without a warrant at the scene of the collision was a search and seizure that implicates the Fourth Amendment, regardless of any reasonable expectations of privacy.’).” State v. Pierre, 2020 Fla. App. LEXIS 6415 (Fla. 5th DCA May 8, 2020).
“Here, the trial court made credibility determinations based on the testimony of multiple officers involved in defendant’s arrest and found that officers lacked probable cause to search defendant’s residence. Furthermore, observation that defendant’s home had security cameras failed to amount to exigent circumstances to enter defendant’s home after officers arrested him for possession of a small quantity of marijuana near his residence. Thus, the trial court correctly suppressed the evidence recovered from the residence and the statements made by defendant following the illegal entry. Therefore, the court of appeal’s ruling is reversed.” State v. Shisler, 2020 La. LEXIS 765 (May 1, 2020), rev’g State v. Shisler, 286 So. 3d 1226 (La. App. 4 Cir. 2019). [Note: With video doorbells, millions of people have security cameras at home.).
Plaintiff prison inmate doesn’t state a Fourth Amendment claim for alleged violation of the N.C. Financial Privacy Act by state officials disclosing his prison accounts balances. Under United States v. Miller, it doesn’t matter how the information was disclosed because there was no reasonable expectation of privacy in them. The court declines to exercise supplemental jurisdiction over the state claim for violation of the Act. Neal v. State Employees Credit Union, 2020 U.S. Dist. LEXIS 81444 (E.D. May 8, 2020).
Any ruse to get consent to search defendant’s bags after TSA was done with them came after consent was given and wasn’t considered. United States v. Benjamin, 2020 U.S. App. LEXIS 14755 (11th Cir. May 8, 2020).
Defendant was lawfully arrested after he fled first in a car and then on foot. He was carrying a gun that flew from his hand when he was tackled. The gun was properly seized incident to the arrest because it was right next to him. United States v. Mock, 2020 U.S. Dist. LEXIS 81249 (E.D. Mich. May 8, 2020).
Posted inSearch incident|Comments Off on CA11: Possible ruse mentioned by officer came after consent already granted
There was no reasonable suspicion to continue the stop in this case. The officer called for backup and a dog, and the first officer there told him to stall for the dog. Nothing was done for eight minutes to pursue the basis of the traffic stop. State v. Werder, 2020-Ohio-2865, 2020 Ohio App. LEXIS 1835 (6th Dist. May 8, 2020).
All the state had to show was reasonable suspicion for a traffic stop, which the dashcam supports. The trial court erred in requiring probable cause. The fact the officer might have been reasonably mistaken to the exact details doesn’t make it less with reasonable suspicion. State v. Burns, 2020-Ohio-2848, 2020 Ohio App. LEXIS 1814 (2d Dist. May 8, 2020).
Posted inReasonable suspicion|Comments Off on OH6: Deliberate stall of traffic stop for drug dog was 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.
