The government provided the district court a three page summary of the 17 page affidavit for search warrant. Defendant argues that the summary was more inculpatory than the affidavit itself. This is beyond the standard of review because it’s the affidavit that is to be examined, not the summary. There was probable cause for the search warrant, and the good faith exception would apply, too. United States v. Rees, 2020 U.S. App. LEXIS 13877 (7th Cir. Apr. 30, 2020).
Counsel filed an Anders brief, and defendant pro se argued the entry of his house with an arrest warrant, not a search warrant, was unreasonable. Defendant’s guilty plea waived this issue [which would appear to be proper under Payton]. State v. Allen, 2020 La. App. LEXIS 633 (La. App. 5 Cir. Apr. 30, 2020).
The inventory here was proper because there was no one to release the vehicle to to avoid it. Bowler v. State, 2020 Ga. App. LEXIS 257 (Apr. 30, 2020).
Posted inInventory, Standards of review|Comments Off on CA7: When PC for a SW is the issue, the affidavit is the sole thing to be reviewed on appeal, not the govt’s summary for district court
Defendant’s arrest outside his house near his front door did not justify a protective sweep of his house. “Indeed, this Court finds that the marshals’ broad search of the Westberry residence was conducted specifically to find the firearm. … Because the firearm was discovered during an unlawful protective sweep, the Fourth Amendment requires that the evidence be suppressed.” United States v. Westberry, 2020 U.S. Dist. LEXIS 75914 (D. N.J. Apr. 30, 2020).
Defendant’s motion for discovery of how the government learned of his IP address in this Playpen child pornography is granted. Defendant avers that the IP address could have been captured by a computer intrusion and malware. The government denies that’s how it happened, but it has to answer. United States v. Mitrovich, 2020 U.S. Dist. LEXIS 75978 (N.D. Ill. Apr. 30, 2020).
Defense counsel wasn’t ineffective for not moving to suppress defendant’s cell phone search that occurred a year before Riley because the good faith exception would apply. United States v. Kearn, 2020 U.S. Dist. LEXIS 75963 (D. Kan. Apr. 30, 2020).
Officers responded to a medical emergency at the entryway of defendant’s house. They ended up conducting a protective sweep for which there was no justification whatsoever. The firearm found in the protective sweep is suppressed. United States v. Gonzalez-Martin, 2020 U.S. App. LEXIS 13736 (9th Cir. Apr. 29, 2020).
The district court found the officer’s use of deadly force under these circumstances was subject to qualified immunity for lack of clearly established law. On appeal, the court of appeals found the use of force was justified under the circumstances and was not a Fourth Amendment violation. Siler v. City of Kenosha, 2020 U.S. App. LEXIS 13750 (7th Cir. Apr. 29, 2020).
Defendant was arrested for aggravated child molestation and aggravated sodomy, and he had a digital storage device on him. Police sought a search warrant for the storage device, but the affidavit failed to show any probable cause to believe evidence would be found there. Landers v. State, 2020 Ga. App. LEXIS 254 (Apr. 29, 2020):
Posted inComputer and cloud searches, Nexus, Probable cause|Comments Off on GA: Arrest for sex offense wasn’t PC to believe digital storage device on person had evidence; SW suppressed
Plaintiff was an extraditee transported from Colorado to Mississippi, a 17 hour trip, that took eight days and resulted in real injury and degradation from lack of stops and rest. Plaintiff sued in the Eastern District of California, but it was transferred to the Eastern District of Arkansas because that’s where the defendant corporation was domiciled. Plaintiff stated a claim under Bell v. Wolfish and due process of law. Stearns v. Inmate Servs. Corp., 2020 U.S. App. LEXIS 13724 (8th Cir. Apr. 29, 2020).
Posted in§ 1983 / Bivens|Comments Off on CA8: Extraditee stated Bell v. Wolfish due process claim from injury and degradation from 8 day transportation that should have taken about 17 hours
Despite a language barrier and a Spanish-language expert saying the officer’s request was ambiguous, the district court found that defendant consented to a search of his luggage. That finding is not clearly erroneous, even considering all the record. The officer also used a language app on his phone to converse with defendant. Finally, a Spanish-language consent form is desirable, but not a Fourth Amendment requirement. United States v. Garcia-Garcia, 2020 U.S. App. LEXIS 13722 (8th Cir. Apr. 29, 2020):
Posted inConsent|Comments Off on CA8: District court’s findings of voluntary consent supported by record despite language barrier and defense language expert
This dog sniff did not extend the stop where the dog arrived while the warning ticket was being written. Mickens v. State, 2020 Ark. App. 280, 2020 Ark. App. LEXIS 307 (Apr. 29, 2020).
The blood draw of the unconscious defendant was in accord with the statute at the time, and the good faith exception would be applied. The exclusionary rule serves no purpose here. Parks v. State, 2020 Ark. App. 267, 2020 Ark. App. LEXIS 302 (Apr. 29, 2020).
Plaintiff’s incarceration from arrest to making $1 bail was based on probable cause, so his § 1983 case fails to state a claim. His appearing at arraignment in jail clothes wasn’t a Fourth Amendment issue. Salem v. City of New York. 2020 U.S. App. LEXIS 13755 (2d Cir. Apr. 29, 2020).*
The search warrant for defendant’s cell phone had a particular list of files sought, but it still was effectively a general warrant in violation of the Fourth Amendment because it sought virtually everything on the cell phone without regard to the probable cause. People v. Coke, 2020 CO 28, 2020 Colo. LEXIS 383 (Apr. 27, 2020):
Tampa Bay Times: Lawmakers warn coronavirus contact-tracing is ripe for abusive surveillance by Tribune News Service (“But as tech firms lay the foundation for a potentially massive digital contact-tracing infrastructure, Washington is grappling with whether such technology can work without becoming a hulking, invasive surveillance system.”)
Posted inSurveillance technology|Comments Off on Tampa Bay Times: Lawmakers warn coronavirus contact-tracing is ripe for abusive surveillance
Law.com: Analysis: Seventh and Ninth Circuits Decide Important ‘Heck’ Issues by Martin A. Schwartz (“The Supreme Court in ‘Heck’ held that a §1983 constitutional claim that ‘necessarily’ implies the invalidity of the plaintiff’s conviction is not ‘cognizable’ unless the conviction was overturned on appeal, collateral review, or executive order. This doctrine has generated numerous difficult issues. Martin A. Schwartz discusses two important recent circuit court decisions applying the doctrine in this edition of his Section 1983 Litigation column.”)
Sioux Falls Argus Leader: Judge: Forced catheterizations by South Dakota law enforcement violated Constitution by Jonathan Ellis (“South Dakota law enforcement’s practice of using forced catheterizations to obtain urine samples from suspects violates the U.S. Constitution, a federal judge has ruled. In a sharp rebuke to the practice, Chief Judge Roberto Lange of the U.S. Federal Court for the District of South Dakota said that the process of involuntary catheterization is a violation of the Constitution’s Fourth Amendment, which protects citizens from unreasonable police searches and seizures. Lange declined to dismiss the case brought by six individuals who sued the cities of Pierre, Wagner and Sisseton, as well as various law enforcement officers who oversaw forced catheterizations.”)
Posted inBody searches, Reasonableness|Comments Off on Sioux Falls Argus Leader: Judge: Forced catheterizations by South Dakota law enforcement violated Constitution
After three weeks of recovery, I’m going to get started on getting caught up. Three weeks behind is hundreds of cases I have to screen. It will be six weeks getting caught up, probably. So, basic cases that won’t be in the supplement to the Treatise will be omitted until then to save time.
For 17 years, the longest break was during a week long jury trial in March. This has to be done daily, or one will never catch up.
Posted inUncategorized|Comments Off on We’re back, somewhat
The author has been out due to illness (not COVID-19 related!), and will begin updating this site again next week. It was to be two days in hospital, but will end up being 11-12.
Posted inUncategorized|Comments Off on Update on author
EFF: Thermal Imaging Cameras are Still Dangerous Dragnet Surveillance Cameras by Matthew Guariglia and Cooper Quintin (“As governments around the world continue to seek solutions to prevent the spread of COVID-19, companies are eager to sell their technology as a silver bullet to defeating the virus. The public already has seen privacy-invasive proposals for geolocation tracking and face recognition. Now, some vendors of surveillance equipment are advocating for the use of thermal cameras that would supposedly detect people who may be infected with the virus and walking around with a fever. These cameras threaten to build a future where public squares and sidewalks are filled with constant video surveillance—and all for a technology that may not even be effective or accurate at detecting fevers or infection.”)
Posted inSurveillance technology|Comments Off on EFF: Thermal Imaging Cameras are Still Dangerous Dragnet Surveillance Cameras
Criminal history checks are reasonable under any traffic stop because they negligibly extend the stop. This court held that en banc in 2001 in a case relied upon in Rodriguez. Other circuits are in accord. United States v. Mayville, 2020 U.S. App. LEXIS 10825 (10th Cir. Apr. 7, 2020).
Medical marijuana dispensaries don’t get to deduct business expenses when they pay their federal taxes because marijuana is still a federal schedule I drug. Summonses from the IRS for records were not overbroad or excessive, and they were sufficient under Powell because they were for a legitimate IRS investigation. Standing Akimbo, LLC v. United States, 2020 U.S. App. LEXIS 10827 (10th Cir. Apr. 7, 2020).
Failure to argue the constitutionality and scope of satellite based monitoring on appellant was waived by trial counsel. Because that part of the judgment is civil in nature under state law (“An order for enrollment in SBM is a civil penalty.”), ineffectiveness doesn’t apply to it. State v. Blankenship, 2020 N.C. App. LEXIS 256 (Apr. 7, 2020).
[Note: For the first time since my federal trial ended Mar. 12th, I’m caught up. [Uploaded 5:39 CDT Tuesday]]
Pro se defendant making a motion to suppress during trial was waiver. He talked about it with his former attorney and waited until the government offered it into evidence. United States v. Young, 2020 U.S. App. LEXIS 10820 (7th Cir. Apr. 7, 2020).*
Defendant learned of new information that he thought justified a Franks motion. Waiting 30 days, however, wasn’t timely. He had to file it within five days. The trial court found waiver but denied it on the merits. Defendant never showed good cause for the delay. Thompson v. State, 2020 Md. App. LEXIS 331 (Apr. 7, 2020).*
https://www.courts.state.md.us/data/opinions/cosa/2020/0198s19.pdf
Posted inMotion to suppress|Comments Off on Two on waiver for untimeliness
The purported inventory here (shown on video) was an investigative search, and the officer made no effort to comply with the inventory policy, noting nothing and just rummaging around. The paperwork also showed it was “incident to arrest.” Inevitable discovery doesn’t save this search either. This is what the exclusionary rule was intended for. Knight v. Commonwealth, 2020 Va. App. LEXIS 102 (Apr. 7, 2020):
“The movant’s unsubstantiated claim that counsel’s mistakes on a Fourth Amendment issue somehow rendered his guilty plea unknowing are insufficient to overcome a record that reflects that the plea was knowing and voluntary.” Hernandez-Rodriguez v. United States, 2020 U.S. Dist. LEXIS 59688 (N.D. Ga. Apr. 6, 2020).
Defendant’s probation search was valid. It was “directly related” to his supervision as required by N.C. law. United States v. Miller, 2020 U.S. Dist. LEXIS 59941 (E.D. N.C. Apr. 6, 2020).*
The previous stay through decision in Kansas v. Glover, decided this same day, is lifted. The parties now have to brief it. United States v. Watkins, 2020 U.S. Dist. LEXIS 60049 (W.D. Tenn. Apr. 6, 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.
