A home security alarm went off signaling a burglary and police responded. Seeing a broken window, they could enter to conduct a protective sweep, and contraband in plain view could be seized. A cell phone was also seized and later searched with a warrant. United States v. Williams, 2020 U.S. App. LEXIS 5965 (8th Cir. Feb. 27, 2020).
Officers had probable cause to arrest defendant for being involved in drug trafficking from a house where there likely were guns. After his arrest, defendant consented to a buccal swab for DNA. United States v. Welch, 2020 U.S. App. LEXIS 5963 (8th Cir. Feb. 27, 2020).*
“[W]e find that the court properly denied his motion to controvert a search warrant, and that there was no basis for a hearing.” People v. Groome, 2020 NY Slip Op 01385, 2020 N.Y. App. Div. LEXIS 1427 (1st Dept. Feb. 27, 2020).*
Posted inConsent, Protective sweep|Comments Off on CA8: A home security system alarm is an invitation for a protective sweep when police see a broken window
Defendant questioned in his front yard was effectively in custody and should have been Mirandized. United States v. Leon, 2020 U.S. Dist. LEXIS 32964 (D. Neb. Feb. 18, 2020):
Defendant consented to a search of his car and his hotel room, but not to a search of his guitar case in the room. Thinking there might be drugs there, the officer seized the guitar case to preserve the potential evidence while he got a search warrant. There was no probable cause whatsoever to seize the guitar case or for the warrant. The claim of evidence preservation was based on lack of manpower and not a legal justification. The search also couldn’t be justified by inevitable discovery. United States v. Montes, 2020 U.S. Dist. LEXIS 32969 (D. N.M. Feb. 25, 2020).
“Even assuming the officers improperly questioned Defendant about the PIN prior to providing a Miranda advisement, the contents of the phone were accessible through alternate, legal means. Thus, the inevitable discovery exception renders the phone’s contents admissible.” The officers were able to access it with computer tools. United States v. Fischer, 2020 U.S. Dist. LEXIS 32965 (D. Neb. Feb. 16, 2020).
Faint smell of marijuana and nervousness was not reasonable suspicion. The court also doesn’t find the travel plans at all suspicious. United States v. Lee, 2020 U.S. Dist. LEXIS 33091 (D. Idaho Feb. 25, 2020).
Plaintiff’s nolo plea barred his malicious prosecution suit under Heck. Massey v. Pfeifer, 2020 U.S. App. LEXIS 5843 (3d Cir. Feb. 26, 2020).*
Defendant’s claims were raised and rejected on direct review and can’t be in a 2255. United States v. Christian, 2020 U.S. Dist. LEXIS 32788 (W.D. Okla. Feb. 26, 2020).*
An open container in a car is probable cause under the automobile exception to search for other open containers. In addition: “Here, Patrolmen Link and McClamroch had received information that a retaliatory shooting could occur near the location they stopped Defendants. Defendants drove at strange speeds and then sped up as police approached. Against the backdrops of the day-before killing and shooting, Patrolmen Link and McClamroch could believe Defendants were armed and dangerous.” Thus, a sweep of the car for weapons under Long was reasonable. United States v. Farrow, 2020 U.S. Dist. LEXIS 32499 (N.D. Ohio Feb. 26, 2020).
Defense counsel’s affidavit in this 2255 was credited that any motion to suppress would be meritless and would be denied. The court agrees. Polanco-Jimenez v. United States, 2020 U.S. Dist. LEXIS 32593 (W.D. Tex. Feb. 26, 2020).*
“Let’s step inside and talk for a second” did not lead to consent. “Although the language itself implies some joint or equal action, it also implies some level of insistence. See Williams v. United States, 263 F.2d 487, 849 (D.C. Cir. 1959) (finding a person’s failure to object to an officer’s statement ‘I don’t want to discuss my business out in the hallway, let’s go inside where its private’ was not a consent to search); United States v. Roldan, No. 97 CR. 567(JFK), 1997 WL 767564, at *6 (S.D.N.Y. Dec. 11, 1978) (finding an officer’s use of the imperative form ‘let’s look in the bag’ was a command and the defendant’s acquiescence did not constitute consent to search the bag). In context, that implied insistence combined with the lack of opportunity to object gives the statement the effect of a command. Barner had no time to respond either affirmatively or negatively before the officers advanced.” United States v. Hatcher, 2020 U.S. Dist. LEXIS 33792 (N.D. Iowa Feb. 5, 2020), adopted, 2020 U.S. Dist. LEXIS 32777 (N.D. Iowa Feb. 26, 2020).
Posted inConsent|Comments Off on N.D.Iowa: “Let’s step inside and talk for a second” did not lead to consent
The good faith exception applies to NCMEC’s receipt of suspected child pornography from AOL from an account holder. NCMEC objectively relied upon a statute that had never been challenged before. United States v. Ackerman, 2020 U.S. App. LEXIS 5806 (10th Cir. Feb. 26, 2020):
In a § 1983 Fourth Amendment excessive force suit, officers heard a gun shot and saw people running as a crowd left a concert. They shot and killed the decedent, and a jury could conclude that the officers unreasonably determined that the decedent was the active shooter and thus that the officers violated his Fourth Amendment right to be free from excessive force. However, the district court properly granted summary judgment in favor of the officers on the basis of qualified immunity because the officers had not violated clearly established law under the facts presented. In particular, the state of the law on the date of the incident did not provide the officers with fair warning that it was unconstitutional for them to open fire on a fleeing person they, perhaps unreasonably, believed was armed in what they believed to be an active shooter situation. Estate of Smart v. City of Wichita, 2020 U.S. App. LEXIS 5811 (10th Cir. Feb. 26, 2020). (Note: Reading this opinion left me incredulous. Qualified immunity is working to destroy trust between government and its citizens, and SCOTUS doesn’t seem to care.)
Posted in§ 1983 / Bivens, Excessive force, Qualified immunity|Comments Off on CA10: Shooting a person fleeing a shooting scene without determining he was the shooter might have been unreasonable, but right not to be shot in this situation not clearly established (Really)
No credible argument can be made that the statutory implied consent actually supplies the type of voluntary consent sufficient to create an exception to the warrant requirement. For purposes of the Fourth Amendment and state constitution, however, defendant voluntarily consented to the blood draw before the officer even read the implied consent form to her. She’d been advised she could refuse the blood draw, and she could be convicted of the offense of violating the implied consent law and lose her license for one year. No evidence suggested that defendant’s will was overborne or her capacity for self-determination critically impaired. Thus, the trial court erred by granting defendant’s motion to suppress. State v. Hafer, 2020 Tenn. Crim. App. LEXIS 143 (Feb. 26, 2020).*
It was reasonable to stop a vehicle already stopped in the turn lane of a five lane street, perpendicular to traffic, blocking one lane. The smell of marijuana and alcohol coming from the car justified a search. Sexton-Johnson v. State, 2020 Ga. App. LEXIS 98 (Feb. 26, 2020).*
Posted inConsent, Reasonable suspicion|Comments Off on TN: Def’s consent came before implied consent reading occurred
Defendant was in a vehicle that passed by the scene of a one vehicle accident the police were working. The officer somehow decided that the occupants of the passing vehicle had knowledge of the stop, and he engaged in a significant show of authority. That stop was without reasonable suspicion or even that defendant was a material witness to the accident. The motion to suppress should have been granted. State v. Middleton, 302 Ore. App. 339 (Feb. 20, 2020).
DOC employees have a reasonable expectation of privacy in their employment records as to outsiders, but not the agency itself. It can monitor employee performance. Speer v. State, Dept. of Corrections, 2020 MT 45, 2020 Mont. LEXIS 578 (Feb. 25, 2020).
Posted inUncategorized|Comments Off on OR: Stop of def for being either involved in accident or material witness to it lacked RS
Defendant had a cell phone seized from him in 2009 that remained in the police evidence room. After another crime, this time a capital murder, the phone was searched with a warrant in 2018. The delay wasn’t unreasonable because defendant never asserted recovery of the phone. Harmel v. State, 2020 Tex. App. LEXIS 1584 (Tex. App. – Austin Feb. 26, 2020).
Eight day delay from NYSP taking possession of defendant’s devices for suspected child pornography and then seeking a search warrant wasn’t an unreasonable delay. United States v. Schohn, 2020 U.S. Dist. LEXIS 32195 (W.D. N.Y. Jan. 2, 2020),* adopted, 2020 U.S. Dist. LEXIS 31222 (W.D.N.Y. Feb. 24, 2020).*
Posted inStaleness|Comments Off on TX3: Cell phone in evidence room from 2009 could be searched with SW after def charged with 2018 capital murder
Officer’s negligence [my word, not the court’s] in drafting and obtaining a search warrant that was potentially without probable cause and overbroad in scope didn’t overcome the good faith exception. United States v. Snow, 2020 U.S. Dist. LEXIS 31713 (D. Ariz. Feb. 24, 2020):
“Liang’s first argument, concerning the denial of a hearing on his motion to suppress evidence, is wholly frivolous. Because Liang is ‘a citizen and resident of [China] with no voluntary attachment to the United States’ and the challenged search occurred in international waters, ‘the Fourth Amendment has no application’ to this case. United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990).” United States v. Wu, 2020 U.S. App. LEXIS 5634 (5th Cir. Feb. 24, 2020).
At a traffic safety checkpoint, officers smelled marijuana coming from defendant’s car. A search of the car produced a gun. The checkpoint complied with the Fourth Amendment. “[T]he court finds that the police checkpoint was a reasonable intrusion into the privacy interests of motorists and thus constitutional.” United States v. Fishburne, 2020 U.S. Dist. LEXIS 31080 (D.S.C. Feb. 24, 2020).*
Posted inForeign searches, Roadblocks|Comments Off on CA5: Citizen of China on ship stopped on high seas by U.S. officers had no 4A rights
Facebook’s merely copying defendant’s account for a search warrant was not a seizure. United States v. Perez, 2020 U.S. App. LEXIS 5541 (9th Cir. Feb. 21, 2020).
Probable cause existed for plaintiff’s arrest for constructive possession when she was found asleep and undressed in a drug house when a search warrant was executed. Suero v. City of New York, 2020 NY Slip Op 01301, 2020 N.Y. App. Div. LEXIS 1344 (1st Dept. Feb. 25, 2020).*
Posted inUncategorized|Comments Off on CA9: Facebook copying an account for a coming SW was not a seizure
West Virginia requires an intercept order for officers to send in a wired CI to record a drug transaction, but exigency is an exception, which the court finds. It is determined on the totality of the circumstances. State v. Howells, 2020 W. Va. LEXIS 118 (Feb. 25, 2020) (dissent): Continue reading →
Posted inUncategorized|Comments Off on WV: Court order generally needed to send in wired CI
Defendant’s vehicle stop was by an officer outside his jurisdiction, but others with jurisdiction immediately showed up. Handcuffing defendant when the officers were outnumbered 4-2 was reasonable during the stop. State v. Davis, 2020-Ohio-619, 2020 Ohio App. LEXIS 570 (3d Dist. Feb. 24, 2020).*
A successor habeas petition doesn’t lie for ineffective assistance for not pursuing a Fourth Amendment claim because it was known all along. In re Nolley, 2020 U.S. App. LEXIS 5643 (11th Cir. Feb. 24, 2020).*
Posted inSeizure|Comments Off on OH3: Handcuffing detainee for safety when officers outnumbered 4-2 was reasonable
Plaintiff’s civil claim against Social Security Administration’s CID and local investigators stated a claim for unlawful entry into her home in a criminal investigation. Anh Tuyet Thai v. Saul, 2020 U.S. App. LEXIS 5425 (9th Cir. Feb. 19, 2020).*
Plaintiff was the target of a search warrant when his auto repair shop had a vehicle involved in a murder inside. He didn’t [and couldn’t] plead that the search violated the Fourth Amendment. Baeza v. Munro, 2020 U.S. App. LEXIS 5661 (10th Cir. Feb. 25, 2020).*
It was clearly established at the time of the incident that wrestling a passive misdemeanant to the grown and beating him up and tapering him was unreasonable and excessive force. Livingston v. Kehagias, 2020 U.S. App. LEXIS 5681 (4th Cir. Feb. 25, 2020).
A police officer on duty in a marked police car in his own neighborhood saw a car that wasn’t local to the neighborhood. He started to follow, and the car was engaging in evasive behavior. By the time of the stop, he had reasonable suspicion. “Nervous, evasive behavior is a factor in determining reasonable suspicion. Another consideration is unprovoked flight upon noticing the police. Other pertinent circumstances include the officer’s own direct observations, dispatch information, directions from other officers, and the nature of the area and time of day during which the suspicious activity occurred.” State v. Krannawitter, 305 Neb. 66 (Feb. 21, 2020).*
Posted inExcessive force, Reasonable suspicion|Comments Off on CA4: Wrestling a passive misdemeanant to ground and Tasing him was excessive force and unreasonable
A search warrant was executed on a divorce lawyer’s office for some client files after a $75,000 retainer was paid into the IOLTA account which had a -$49,000 balance. The district court erred in holding the client had no standing in her own files in the attorney’s office. There was probable cause for the search warrant to seek to prove the lawyer’s alleged crime of misapplication of funds of the client. The Houston County DA’s office was using a taint team to separate the client files. In re Cook, 2020 Tex. App. LEXIS 1563 (Tex. App. – Houston (14th Dist.) Feb. 25, 2020): Continue reading →
Posted inPrivileges, Scope of search, Standing|Comments Off on TX14: Client had standing to object to seizure of her files from her attorney’s office for his misapplication of her fee into trust account
"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.
