Defendant was found to be the subject of a tip that a man was pacing in a parking lot in an area known for burglaries. When confronted, the officer found a warrant for his arrest. When his vehicle had to be towed anyway, a dog alert was reasonable. United States v. Betts, 2020 U.S. App. LEXIS 9651 (6th Cir. Mar. 27, 2020).* [Note: As described by the court, it was essentially Terry-like.]
The stop led to the strong odor of cannabis coming from the vehicle, whether burnt or raw. Coupled with the passenger’s furtive movements, the officers were able to particularize the odor to defendant such that sufficient probable cause supported the search of his person before the observation of a weapon. Handcuffing defendant did not transform the valid Terry stop into an arrest. And, even it if did, both the inevitable discovery exception and the state good faith exception to the exclusionary rule applied to neutralize any possible threat to them where the worst that could be shown was isolated negligence. People v. Burns, 2020 IL App (3d) 170103, 2020 Ill. App. LEXIS 206 (Mar. 27, 2020).*
Posted inProbable cause, Stop and frisk|Comments Off on CA6: Tip of man pacing in a parking lot in an area known for burglaries was RS for stop
Michigan blood tests newborns for certain diseases. Based on Kanuszewski v. Michigan Department of Health and Human Services, 333 F. Supp. 3d 716 (E.D. Mich. 2018), the court finds that the parents are unlikely to succeed on a preliminary injunction. LaPorte v. Gordon, 2020 U.S. Dist. LEXIS 50431 (E.D. Mich. Mar. 24, 2020):
Defense counsel wasn’t ineffective for not moving to suppress the seizure of boxes of evidence from defendant’s car. It was reasonable for the officers to believe defendant was loading the car to move evidence to hide it when the police arrived. United States v. Miller, 2020 U.S. App. LEXIS 9613 (D.C. Cir. Mar. 27, 2020).
Even if defendant’s TSA encounter was an unconstitutional seizure, his subsequent interview with police was shown to be attenuated. United States v. Gordon, 2020 U.S. App. LEXIS 9633 (1st Cir. Mar. 27, 2020).*
Posted inAttenuation, Automobile exception|Comments Off on CADC: AE applied to boxes police reasonably believed contained evidence that was being removed from the premises
Courthouse News: San Francisco OKs $369,000 Settlement for Journalist Targeted by Police by Nicholas Iovino (“A journalist whose home was raided by police will get $369,000 from San Francisco taxpayers under the terms of a settlement approved by the city’s Board of Supervisors Tuesday.”)
Posted inUncategorized|Comments Off on Courthouse News: San Francisco OKs $369,000 Settlement for Journalist Targeted by Police
Plaintiff sued because the Baltimore Police Department used a cell site simulator to locate him, and that violated the Fourth Amendment. The district court’s findings are based on an inadequate record and the case is remanded for more factfinding. Andrews v. Baltimore City Police Dep’t, 2020 U.S. App. LEXIS 9641 (4th Cir. Mar. 27, 2020):
Two judges of the Eighth Circuit dissented from denial of rehearing en banc of 944 F.3d 704 (8th Cir. Ark. Dec. 3, 2019) that the panel misapplied qualified immunity. Jackson v. Stair, 2020 U.S. App. LEXIS 9540 (8th Cir. Mar. 26, 2020) (an order not on the court’s opinion page):
Is a government quarantine order for a person or group of people a violation of the Fourth Amendment as a reasonable seizure? Despite being an ardent civil libertarian, I must conclude the Constitution means: No.
Protection from
infectious diseases has long been a subject of the law. Quarantines were
recognized at common law, and the Supreme Court’s cases from 1824 on have all
assumed a legitimate public health quarantine is within the power of state and
local government under the Commerce Clause.
But what about the Fourth Amendment? Common law can direct the reasonableness inquiry under the Fourth Amendment. See, e.g., Wilson v. Arkansas, 514 U.S. 927, 931 (1995), and other cases below.
NYTimes: Justice Department Watchdog Cites More Flaws in FBI’s Handling of Surveillance Warrants by Reuters (“The FBI has failed to properly maintain supporting documentation when seeking surveillance warrants, raising questions about the factual underpinnings of the warrant applications and violating the bureau’s own internal procedures, the Justice Department watchdog said on Tuesday in a new report.”)
Posted inUncategorized|Comments Off on NYTimes: Justice Department Watchdog Cites More Flaws in FBI’s Handling of Surveillance Warrants
The district court didn’t err in sustaining the government’s objection to cross-examination about the execution of the search warrant on defendant’s cell phone because there was no showing that the warrant wasn’t improperly executed. United States v. Vargas, 2020 U.S. App. LEXIS 9512 (2d Cir. Mar. 27, 2020).
Defendant’s certified question should have been the voluntariness of consent, but his brief went off on other things. State v. Hyberger, 2020 Tenn. Crim. App. LEXIS 201 (Mar. 26, 2020).*
Posted inBurden of pleading, Warrant execution|Comments Off on CA2: Barring cross-examination on execution of SW on cell phone wasn’t shown to be prejudicial
Defendant’s flight into his house on hearing gunshots was not reasonable suspicion to give chase or probable cause to enter the house to arrest him. Anybody would flee gunshots. People v. Craine, 2020 IL App (1st) 163403, 2020 Ill. App. LEXIS 193 (Mar. 26, 2020).
“Appellant argues that his Fifth Amendment privilege against self-incrimination was violated when he was forced, via search warrant and an order to compel, to tell police the password to his locked cell phone. While that might otherwise be an interesting issue, there is nothing to analyze here. Appellant does not identify anything that the police obtained from his phone nor how anything obtained from his phone was used for purposes of their investigation or as evidence at trial. We affirm as to the balance of the issues raised as they deserve no discussion at all.” Love v. State, 2020 Fla. App. LEXIS 4052 (Fla. 5th DCA Mar. 27, 2020).*
“As should be apparent, Winfrey controls. Since Fusilier is challenging ‘an unlawful [detention] pursuant to a warrant’ that the defendants caused to be issued because of ‘misstatements,’ Fusilier’s claim best fits with a malicious prosecution analogy. Winfrey, 901 F.3d at 493; see also McDonough, 139 S. Ct. at 2158. Accordingly, the district court was wrong to conclude his claim accrued when he had his hearing in front of the magistrate judge. Instead, his claim accrued when he was acquitted. Winfrey, 901 F.3d at 493.” Fusilier v. Zaunbrecher, 2020 U.S. App. LEXIS 9477 (5th Cir. Mar. 26, 2020).
Defense counsel wasn’t ineffective for not making a CSLI challenge before Carpenter when circuit authority permitted production without a search warrant at the time. Stanley v. United States, 2020 U.S. Dist. LEXIS 52571 (E.D. N.C. Mar. 26, 2020).*
A cell phone search warrant is sufficiently particular by identifying merely the phone number and the expected owner of the phone. People v. Pettigrew, 2020 COA 46, 2020 Colo. App. LEXIS 656 (Mar. 26, 2020).
Defense counsel didn’t fail to provide effective assistance by not challenging this parole search. “This court has previously determined that the Utah law governing parole searches complies with the Fourth Amendment.” United States v. Waldron, 2020 U.S. App. LEXIS 9437 (10th Cir. Mar. 26, 2020).*
“[T]he officer did not commit an unlawful seizure when he instructed Salazar-Lopez to sit in the patrol car. The move to the patrol car did not impermissibly prolong the traffic stop, and was incidental to the mission of the stop.” Questions about his trip didn’t unreasonably prolong the stop. “Moreover, Salazar-Lopez’s answers warranted the officer’s brief follow-up questions when Salazar-Lopez could not readily identify where he was driving from and could not produce the rental agreement for the car he was driving.” United States v. Salazar-Lopez, 2020 U.S. Dist. LEXIS 51516 (N.D. Ind. Mar. 25, 2020).
The plaintiff prisoner stated a claim for arbitrary or retaliatory strip searches after medical visits that didn’t compare to other reasons. Khan v. Barela, 2020 U.S. App. LEXIS 9438 (10th Cir. Mar. 26, 2020).
Posted inReasonable suspicion|Comments Off on N.D.Ind.: Having def sit in the patrol car didn’t prolong the stop
A state district court judge of apparent limited jurisdiction, not general criminal jurisdiction, had apparent authority to approve a “track and trace” order, or at least subject to the good faith exception. Suppression here would prove nothing at all. As to search warrants for telephone subscriber information, it wasn’t unreasonable under state law that the order was faxed or served in another jurisdiction. United States v. Wise, 2020 U.S. Dist. LEXIS 51686 (W.D. Ky. Mar. 25, 2020).
Defendant’s dropping his gun in the street in flight from the police was an abandonment. United States v. Jackson, 2020 U.S. App. LEXIS 9434 (10th Cir. Mar. 26, 2020).
Posted inAbandonment, Warrant execution|Comments Off on W.D.Ky.: Not unreasonable under 4A that state “track and trace” warrant was served by fax in another jurisdiction; at least GFE applies
“[W]e find that a motion for the return of seized property may be a viable means to request the return of property even after conviction. Therefore, the trial court erred when it denied Mr. Castagnola’s motion for the return of seized property based on its presumed lack of jurisdiction to consider the motion.” State v. Castagnola, 2020-Ohio-1096, 2020 Ohio App. LEXIS 1004 (9th Dist. Mar. 25, 2020).
Defendant raises a Fourth Amendment and ineffective assistance of counsel claim about a search and seizure never raised before. It’s denied because it lacks merit even if it could be brought. Sanders v. United States, 2020 U.S. Dist. LEXIS 51936 (S.D. Ga. Feb. 10, 2020),* adopted, 2020 U.S. Dist. LEXIS 48971 (S.D. Ga. Mar. 12, 2020).*
Posted inRule 41(g) / Return of property|Comments Off on OH9: Motion for returned property may still be appropriate after conviction
Officers had seized defendant’s phone and applied for a search warrant for it and other things at the same time, and that led to a motion to suppress the phone search. “Suellentrop argues that the search of the phone was unlawful because it was beyond the scope of the warrant. Under the Constitution, however, the question is whether the officers reasonably believed that the warrant authorized the search, even if their interpretation was mistaken. United States v. Houck, 888 F.3d 957, 961 (8th Cir. 2018). The Fourth Amendment allows for some ‘honest mistakes’ that are made by officers in the process of executing search warrants. Maryland v. Garrison, 480 U.S. 79, 87, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987). [¶] Given the circumstances, we conclude that it was not unreasonable for investigators to believe that the state warrant authorized the search of Suellentrop’s phone, along with other electronic devices that might be found at Suellentrop’s residence. The warrant is not a model of clarity.” Still, the good faith exception applies. United States v. Suellentrop, 2020 U.S. App. LEXIS 9430 (8th Cir. Mar. 26, 2020).
Posted inCell phones, Scope of search, Warrant execution|Comments Off on CA8: SW for already seized cell phone came from SW for far more; apparently created confusion, but not suppression
“Watson’s unsubstantiated ‘belief’ that the warrants were forged does not raise the specter of a constitutional violation, and she offers nothing else in support of this claim. Furthermore, her claim in Ground Three that counsel was constitutionally ineffective because he did not file a motion to suppress the evidence against her likewise does not pass muster because she cannot show prejudice.” United States v. Watson, 2020 U.S. Dist. LEXIS 51711 (N.D. Fla. Feb. 26, 2020).*
No COA for a 2254 habeas Fourth Amendment claim: “Smith’s first two claims raised Fourth Amendment violations, which are not cognizable in federal habeas proceedings where the State provided an avenue to present the claims in state court. Good v. Berghuis, 729 F.3d 636, 639 (6th Cir. 2013). Moreover, the district court noted that, even if the claims were reviewable, they lacked merit. Essentially, Smith claimed that his arrest was illegal because the police officer wrote the wrong date, by two days, in his report, and over-estimated the age of the victim. Nevertheless, given the victim’s identification of Smith and the videos of the crime, there was sufficient evidence to support Smith’s arrest. Smith also argued that his arraignment was delayed, but the record showed that he was arrested for a parole violation, not for this crime, and therefore no requirement for a timely arraignment was violated.” Smith v. Christiansen, 2020 U.S. App. LEXIS 9374 (6th Cir. Mar. 25, 2020).
Posted inIneffective assistance|Comments Off on N.D.Fla.: Unsupported habeas claim that SWs were forged inadequate
When officers took defendant’s phone by consent and one left his card, he could have revoked consent by calling and leaving word with his office or writing a letter. United States v. Butler, 2020 U.S. Dist. LEXIS 51782 (M.D. Fla. Feb. 13, 2020), adopted, 2020 U.S. Dist. LEXIS 50713 (M.D. Fla. Mar. 24, 2020):
In a health care fraud case, a whistleblower confidential informant for a search warrant was entitled to more credit than a regular CI because of a likely “strong[er] motive to supply accurate information.” The search warrant for documents here was not overbroad and was as specific as possible. United States v. Indivior Inc., 2020 U.S. Dist. LEXIS 51692 (W.D. Va. Mar. 25, 2020):
An immigration detainer is not a demand to a state law enforcement officer to make a civil arrest, but, if a state law enforcement officer acts on it, it is a new arrest. It is ripe for judicial review because, on the state’s mootness challenge, it is capable of repetition but evading review. It implicates the Fourth Amendment and the state constitution. Ramon v. Short, 2020 MT 69, 2020 Mont. LEXIS 876 (Mar. 25, 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.
