“In this case, Borawick and Appellees have raised genuine disputes of material fact over whether there was an objective basis to believe that Borawick was a danger to the officers or to the public; whether a reasonable officer, having been alerted to Borawick’s disability and medical history, would have employed alternative means of restraining her; and whether a reasonable officer would have known the handcuffs were causing Borawick unnecessary or unusually severe pain. As these disputes bear on whether Reyes and Correa engaged in conduct proscribed by clearly established law, the officers are not entitled to qualified immunity as a matter of law.” Borawick v. City of Los Angeles, 2020 U.S. App. LEXIS 4875 (9th Cir. Feb. 13, 2020).
The court does not believe that defendant was allegedly walking in the street when they initiated his stop. They were investigating a stolen car in what was not a high crime area. They saw four men leaving a house and lost sight of them. When they pulled up next to defendant with their lights flashing, he ran. There was no reasonable suspicion for anything up to that point, and the stop is suppressed. United States v. Gee, 2020 U.S. Dist. LEXIS 26592 (D. Nev. Feb. 17, 2020).*
It was clearly established that groping a (transgender) woman during prison searches was unreasonable as excessive force. Goff v. Ramirez, 2020 U.S. App. LEXIS 4876 (9th Cir. Feb. 13, 2020). (The plaintiff being transgender had nothing to do with the outcome.)
A Fourth Amendment claim can’t be brought in a 2255. (It was not raised as an ineffective assistance of counsel claim even though other IAC claims were sought to be brought) Bankston v. United States, 2020 U.S. App. LEXIS 4854 (6th Cir. Feb. 14, 2020).*
Habeas petitioner’s attempt to use Rule 60(b) to attack the rejection of a Fourth Amendment claim was a backdoor successor habeas that doesn’t satisfy grounds for one. In re Henderson, 2020 U.S. App. LEXIS 4856 (6th Cir. Feb. 14, 2020)*: Continue reading →
NPR.org: Warrant-Proof Encrypted Messages Targeted By Trump Administration (“‘End-to-end encryption’ has gone mainstream, which means tech companies can’t decrypt messages even when law enforcement has a warrant. The Trump administration says that’s taking privacy too far.”)
The search of defendant was not for officer safety where the officer told defendant to move his clothing around because, if he was armed, he would be putting his hands on the weapon. The order to remove his shoes also wasn’t for safety purposes. Bean v. State, 2020 Ind. App. LEXIS 51 (Feb. 13, 2020).
Based on the parsing of the statute and the photographs, including an aerial photograph, the court concludes the officer’s determination of the lane change violation was objectively reasonable. The smell of marijuana was probable cause, and the search could include the locked glove compartment. United States v. Marsh, 2020 U.S. Dist. LEXIS 26006 (M.D. Tenn. Feb. 14, 2020).*
Posted inReasonableness, Stop and frisk|Comments Off on IN: Having def manipulate his clothing and remove his shoes was a search, not a safety frisk for weapons
The state objected to hearsay to a defense question at the suppression hearing, but hearsay is admissible in suppression hearings under Rule 104(a). Here, however, it was harmless error. The lack of prejudice thus results in there being no ineffective assistance. State v. Kinn, 2020-Ohio-51, 2020 Ohio App. LEXIS 482 (2d Dist. Feb. 14, 2020).
In reviewing the R&R, the affidavit provides probable cause but there were irregularities in how the warrant was executed. On review by the USDJ, the court still had doubts about the record here and asks for guidance on another suppression hearing. United States v. Bradford, 2020 U.S. Dist. LEXIS 25866 (E.D. Wis. Feb. 14, 2020).*
Posted inSuppression hearings|Comments Off on OH2: Hearsay is admissible in a suppression hearing, and the trial court erred in sustaining the state’s objection to hearsay, but it was harmless on the totality
A police officer was convicted of official oppression for an entry into premises without exigent circumstances. “[W]e conclude that there is legally sufficient evidence supporting the jury’s determination that exigent circumstances did not justify the warrantless entry into Nutt’s trailer to effect the subsequent arrest of Nutt.” Ratliff v. State, 2020 Tex. App. LEXIS 1270 (Tex. App. – Austin Feb. 14, 2020).
Defendant was free to leave and not answer the officer’s request for identifying information. [Then why did the officer ask? Who wouldn’t be afraid to leave?] State v. Montgomery, 2020-Ohio-513, 2020 Ohio App. LEXIS 478 (2d Dist. Feb. 14, 2020).*
Posted inConsent, Emergency / exigency|Comments Off on TX3: Officer’s conviction for official oppression for exigentless warrantless entry into home affirmed
“‘[W]e impute collective knowledge among multiple law enforcement agencies, even when the evidence demonstrates that the responding officer was wholly unaware’ of the specific relevant facts. (Doc. 194, at 24 (quoting United States v. Lyons, 687 F.3d 754, 766 (6th Cir. 2012)).” United States v. Parker, 2020 U.S. Dist. LEXIS 25226 (E.D. Tenn. Feb. 13, 2020).
A tracking warrant that crossed jurisdictional lines could be issued by a state court judge in a federal prosecution. United States v. Douglas, 2020 U.S. Dist. LEXIS 25077 (N.D. W.Va. Feb. 13, 2020).
2255 petitioner’s own version of the Fourth Amendment claim shows he’d fail on it. Thomas v. United States, 2020 U.S. Dist. LEXIS 25775 (C.D. Ill. Feb. 14, 2020).*
Police and paramedics responded to a shooting call where the victim was shot through his door. While inside, police checked for other victims and saw a mushroom grow operation in a bedroom. That led to a search warrant, and the look in the bedroom was reasonable considering the exigencies. United States v. Logan, 2020 U.S. Dist. LEXIS 25801 (D. Kan. Feb. 14, 2020).
The officer approached a group of people where there was loud music telling them to turn it down. He asked for IDs and people consented to show it. His tone was conversational and non-confrontational. State v. Montgomery, 2020-Ohio-513, 2020 Ohio App. LEXIS 478 (2d Dist. Feb. 14, 2020).*
Posted inConsent, Emergency / exigency|Comments Off on D.Kan.: Police responding to a shooting call did a protective sweep for other victims and saw a mushroom grow; it was a reasonable look in the room
Defendant was arrested by NYPD for using a student fare MetroCard, and a computer search showed he was a transit recidivist. His backpack was searched. While it was an invalid search incident, he was taken to the precinct house and it would have been inventoried there, and that’s inevitable discovery. United States v. Sobers, 2020 U.S. App. LEXIS 4700 (2d Cir. Feb. 12, 2020).
Defendant dropped a cell phone while on a bicycle. A citizen picked it up and gave it to the police. The officer accessed the phone to determine the owner, and it had one contact, “Me,” and several images of child pornography were immediately apparent. A state judge ruled the warrant invalid for lack of probable cause, but the warrant was still executed in good faith. United States v. Stacy, 2020 U.S. App. LEXIS 4702 (2d Cir. Feb. 12, 2020).*
“The undersigned finds that the instant case is more akin to Navarette, than J.L. Although the tipster in the instant case was completely anonymous, there was sufficient indicia of reliability, based on the totality of the circumstances, to support Officer Trujillo’s reasonable suspicion that ‘criminal activity [was] afoot.’ Wardlow, 528 U.S. at 123. [¶] The threat and brandishing of the firearm occurred in a high-crime area. The Northside District has a shot spotter system in place and shootings are a common occurrence there. The area is more dangerous at night and Officer Trujillo testified that police have responded to other violent incidents at that particular U-Save supermarket.” It was also in a high crime area. United States v. Danbreville, 2020 U.S. Dist. LEXIS 25627 (S.D. Fla. Jan. 13, 2020).
The driver’s consent to search his car doesn’t apply to the passenger’s purse left inside. A drug dog alert, however, permitted a search of the car and the purse under the automobile exception. State v. Raslovsky, 2020-Ohio-515, 2020 Ohio App. LEXIS 481 (2d Dist. Feb. 15, 2020).*
Posted inDog sniff, Informant hearsay|Comments Off on S.D.Fla.: Tip of man brandishing a gun was more like Navarette than J.L.
Defendant’s lying about the smell of marijuana in his car was probable cause that he was in possession of more than the amount permitted under the state medical marijuana law. People v. Moorman, 2020 Mich. App. LEXIS 1111 (Feb. 13, 2020).
“To sum up: in this opinion, we have decided that the city of Monroe’s “disturbing the peace” ordinance is not unconstitutionally vague; that, because Sergeant Booth had probable cause to issue a summons under the ordinance, he was entitled to qualified immunity from Roy’s First Amendment retaliation claim; and that, in the light of these holdings, Roy cannot prevail on his claims under the Fourth Amendment and Due Process Clause.” Roy v. City of Monroe, 2020 U.S. App. LEXIS 4766 (5th Cir. Feb. 13, 2020).*
Posted inProbable cause, Qualified immunity|Comments Off on MI: Def’s lying about smell of MJ was PC despite state’s medical MJ law
Posted inProbable cause|Comments Off on Reason: Volokh Conspiracy: Can a State Police Officer Search a Car Based on Probable Cause of a Federal Marijuana Crime?
If a vehicle’s registration comes back to an unlicensed owner, there is reasonable suspicion for the stop even if SCOTUS holds otherwise in Kansas v. Glover. Probable cause developed after the stop. United States v. Legarrea, 2020 U.S. Dist. LEXIS 25633 (N.D. Iowa Feb. 13, 2020): Continue reading →
Posted inGood faith exception, Reasonable suspicion|Comments Off on N.D.Iowa: If a vehicle’s registration comes back to an unlicensed owner there is reasonable suspicion for the stop even if SCOTUS holds otherwise in Glover because of GFE
HuffPost: The NYPD May Be Secretly Using Facebook Photos In Its Facial Recognition Searches by Mike Hayes (“In two recent cases, however, official documents from the NYPD Facial Information Section (FIS) obtained by HuffPost indicate that social media photos were used to generate a match for a suspect who was later arrested and charged. If the department is indeed placing social media images into its facial recognition database, New Yorkers who post photos on Facebook or Instagram might be at risk of becoming suspects in a criminal investigation, since the NYPD uses facial recognition hits as starting points for criminal probes. Given the well-known inaccuracy of facial recognition software, both the innocent and the guilty could be swept into the department’s digital dragnet.”)
Posted inSurveillance technology|Comments Off on HuffPost: The NYPD May Be Secretly Using Facebook Photos In Its Facial Recognition Searches
A traffic safety checkpoint was sustained under Delaware v. Prouse. “The 51 citations issued at the checkpoint support Chief Warren’s testimony that the primary purpose of the checkpoint was traffic safety. Accordingly, the record clearly reflects that the checkpoint was designed to serve the special need of traffic safety.” “Chief Warren testified that the Operational Plan was followed by the officers in conducting the checkpoint, the vehicles were stopped briefly by the officers, and the motorists were subjected to a few questions relevant to traffic safety. Barton’s testimony corroborated the testimony of Chief Warren. There is no evidence in the record that the officers deviated from this procedure. Accordingly, the court finds that the balance of the interests weigh in favor of finding the checkpoint reasonable under the Fourth Amendment.” United States v. Turner, 2020 U.S. Dist. LEXIS 25275 (M.D. Ala. Jan. 27, 2020).
The government’s dual assertion of an entry justified by community caretaking function and consent is decided on consent, mooting the other. In addition, any claim the exigency abated is also mooted. United States v. Arredondo, 2020 U.S. Dist. LEXIS 25322 (D.S.D. Feb. 13, 2020).*
Posted inCommunity caretaking function|Comments Off on M.D.Ala.: traffic safety checkpoint was sustained under Delaware v. Prouse
The judge who signed the wiretap warrants in this case was not barred from conducting the trial. State v. Pippins, 2020-Ohio-503, 2020 Ohio App. LEXIS 467 (10th Dist. Feb. 13, 2020).
Second successive 2255 habeas petition is denied, including his about fourth attempt to challenge the search repeatedly resolved against him. United States v. Rice, 2020 U.S. App. LEXIS 4580 (10th Cir. Feb. 13, 2020).*
Defendant’s 2254 habeas petition cannot raise his search claim yet again. Eaves v. Colo. Dep’t of Corr., 2020 U.S. App. LEXIS 4570 (10th Cir. Feb. 13, 2020).*
Posted inIneffective assistance|Comments Off on OH10: Judge who issued SW wasn’t barred from handling trial
"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.
