2255 appellant gets a CoA to appeal an ineffective assistance of counsel that defense counsel did not pursue a valid motion to suppress. (A prima facie case was apparently made.) Spriggs v. United States, 2020 U.S. App. LEXIS 4162 (11th Cir. Feb. 10, 2020).*
Defendant was taken with her child to the child’s school and came back to the place of the search. This was not custody for Miranda. She also wasn’t asked any questions in transit. United States v. Cooper, 2020 U.S. App. LEXIS 4153 (D.C. Cir. Feb. 11, 2020).*
The affidavit for the search warrant was not the model of clarity, but common sense seems to indicate probable cause. Nevertheless, the court skips over probable cause and instead considers the good faith exception finding it applicable. United States v. Arwood, 2020 U.S. Dist. LEXIS 23113 (N.D. Ala. Jan. 16, 2020).*
“Galloway next argues that the district court erred in denying his motion to suppress because the IRS’s warrantless inspection of his financial records violated his private-property interests under the Fourth Amendment. But Galloway ‘never requested suppression on this ground in the district court,’ see United States v. Guerrero, 921 F.3d 895, 896-97 (9th Cir. 2019), petition for cert. filed, (U.S. Nov. 27, 2019) (No. 19-6825), and therefore Federal Rule of Criminal Procedure 12(c)(3) provides that we may only consider his untimely claim if he shows ‘good cause for failing to present in his pre-trial motion the new theory for suppression he raises in this appeal,’ id. at 898. Because Galloway failed to show good cause, we affirm the district court’s denial of his motion to suppress.” United States v. Galloway, 2020 U.S. App. LEXIS 3976 (9th Cir. Feb. 6, 2020).
The officer here investigated an attorney for something outside the officer’s jurisdiction, and that served to deny the officer qualified immunity. Robinson v. Ash, 2020 U.S. App. LEXIS 4067 (11th Cir. Feb. 11, 2020).*
Posted inBurden of pleading, Qualified immunity|Comments Off on CA9: Motion to suppress tax records obtained by IRS because his “private property interests” were invaded wasn’t presented below and is waived
Pepper spraying a prison inmate for no apparent reason (maybe just throwing a wad of toilet paper at the guard and having thrown water at him before) stated a claim. McCoy v. Alamu, 2020 U.S. App. LEXIS 4188 (5th Cir. Feb. 11, 2020): Continue reading →
Posted inExcessive force|Comments Off on CA5: Unjustified pepper spraying inmate stated claim for relief
Shooting at plaintiff’s car was reasonable when he refused to respond to officers who showed up for a shots fired call and then plaintiff fled squealing his tires. Smith v. Adams, 2020 U.S. App. LEXIS 4066 (7th Cir. Feb. 11, 2020): Continue reading →
Posted in§ 1983 / Bivens, Excessive force|Comments Off on CA7: Shooting at car fleeing recklessly from detention was reasonable
Defendant was stopped and apparently passed out on the Claiborne Street bridge in New Orleans. A truck driver called in to report it and that defendant had a gun in his lap. Then an accident occurred. The trial court erred in considering the truck driver as “anonymous” and unworthy of credit. State v. Jackson, 2020 La. LEXIS 387 (Jan. 31, 2020).
The fact an officer has state law authority to arrest throughout the county doesn’t translate into state law authority to conduct warrantless searches there, too. The denial of qualified immunity here is fact dependent and the court has no jurisdiction to go further. Robinson v. Ash, 2020 U.S. App. LEXIS 4067 (11th Cir. Feb. 11, 2020).*
Posted inInformant hearsay, Qualified immunity|Comments Off on LA: Truck driver who phoned in report of passed out driver with gun in lap on busy NOLA bridge was not “anonymous”
Defense counsel at trial didn’t object to a search. Appellate counsel attempted to argue it but it was waived. Post-conviction counsel doesn’t even attempt to show prejudice from the failure of trial counsel. Affirmed. State v. Assad, 304 Neb. 979 (Feb. 7, 2020).
Defendants came from Michigan to North Dakota and stayed in a motel for nine days, renewing daily on the internet and not in person. Hotel staff reported their own suspicions defendants were drug dealers to the police. The police experience was that people would come from Michigan with Oxys for resale in ND, and the hotel stay was indicative of awaiting money. The officer involved had executed two search warrants at the same motel that fit that scenario resulting in seizure of Oxys from people from Michigan. Locals frequenting the room for minutes later detained were known Oxy users. This was an adequate showing for probable cause for a search warrant. United States v. Sinnawi, 2020 U.S. Dist. LEXIS 22161 (D.N.D. Feb. 7, 2020).*
Defendant responded to a knock at his door, and answering the knock is not implied consent to enter. Officers couldn’t rely on defendant’s probation search waiver because they weren’t aware of it. “ Moreover, viewed in the light most favorable to the State, the evidence shows that, when the agents subsequently requested permission to enter, Little made no effort to engage in any discussion of the matter and instead continued to back up into the camper and turn his back on the agents.” That was mere acquiescence. Little v. State, 2020 Ga. App. LEXIS 37 (Feb. 10, 2020).
The smell of burnt marijuana justified the search of the passenger compartment which led to contraband and that led to the trunk. State v. Braxton, 2020-Ohio-424, 2020 Ohio App. LEXIS 380 (12th Dist. Feb. 12, 2020).*
Posted inConsent, Reasonable suspicion|Comments Off on GA: Responding to knock at the door and standing back when entrance demanded is mere acquiescence and not consent
The state’s subpoena for records in a pollution investigation were statutorily based, within the agency’s jurisdiction, and reasonable in scope. Here, the records were financial, and it was for imposing a reasonable penalty. The subpoena also did not violate a right to privacy because the records gathered can’t be otherwise disclosed. State Water Resources Control Bd. v. Baldwin & Sons, Inc., 2020 Cal. App. LEXIS 101 (4th Dist. Jan. 16, 2020) (published Feb. 10, 2020): Continue reading →
A US Marine working the border spotted a potential illegal crossing through a scope and reported it to the Border Patrol who made the stop and arrest. The Posse Comitatus Act as interpreted by the Ninth Circuit applies to the Marine Corps, but their actions were not systematic enough in aid of law enforcement to invoke it here. United States v. Rios-Montano, 2020 U.S. Dist. LEXIS 22044 (S.D. Cal. Feb. 7, 2020).
“We adopt the reasoning of the Florida court in Woldridge and hold that the tip from the Internet company was presumed reliable based on the mandatory federal reporting requirements. Also, Agent Roberts corroborated the tip by reviewing the images and verifying the IP address and the user’s name and physical address. Moreover, there was no ‘basis for the warrant-issuing magistrate to conclude that the … source was not credible.’ Silverstein, 378 Wis. 2d at 59, 902 N.W.2d at 559.” The information being three months old was not stale. Adams v. State, 2020 Ala. Crim. App. LEXIS 11 (Feb. 7, 2020).*
Posted inExclusionary rule, Informant hearsay|Comments Off on S.D.Cal.: USMC spotter working with CBP didn’t violate Posse Comitatus Act
Policeone.com: The constitutionality of blood draws in DWI cases: 3 recent SCOTUS opinions by Mike Callahan (the lede is about arresting a nurse for refusing a blood draw: “This incident was certainly a bad day for Nurse Wubbels, but it also marked the beginning of the end of the law enforcement career of Detective Payne.”)
Posted inDrug or alcohol testing|Comments Off on Policeone.com: The constitutionality of blood draws in DWI cases: 3 recent SCOTUS opinions
Whether plaintiff’s handcuffs were too tight was a question to be resolved by a trial and not on summary judgment here. Horace v. Gibbs, 2020 U.S. App. LEXIS 3823 (2d Cir. Feb. 6, 2020).
There was still probable cause for a search warrant of defendant’s phone and place four months after a home invasion robbery where the items taken were likely to still be there. As to the phone, it was likely the same one he had at the time of the robbery. State v. White, 2020 Conn. App. LEXIS 44 (Feb. 1, 2020).*
Posted inExcessive force, Staleness|Comments Off on CA2: Whether ptf’s handcuffs were too tight and injured him was question of fact not to be resolved on summary judgment
“But even assuming the officers had exceeded the time needed to handle the traffic stop, Officer Ullrich had reasonable suspicion to use the drug dog. As Officer Ullrich approached Jackson’s car after making the traffic stop, Jackson made numerous unprompted statements which created reasonable suspicion regarding his possession of illegal drugs. Jackson told Ullrich that there were ‘no illicit drugs’ in the car and told Ullrich that he was working with a DEA agent but because his status was classified, he could not talk about it. Under these circumstances, we conclude that Officer Ullrich had a particularized basis for suspecting criminal activity based on specific and articulable facts. Accordingly, the initial sniff by the drug dog was lawful, even if it had extended the seizure beyond the time necessary to complete the traffic stop.” United States v. Jackson, 2020 U.S. App. LEXIS 3826 (6th Cir. Feb. 5, 2020).*
“Reading the Fourth Circuit’s decisions in tandem, the Court FINDS the informant’s tip was reliable and that there was reasonable suspicion to conduct a Terry stop. In this case, the informant called 911 to report the brandishing of a firearm and then proceeded to approach responding officers to provide his testimony of events. During this interaction, the informant provided his identification card to the officers. The fact that the informant wished to remain anonymous is of no importance as he provided law enforcement with identifying information.” United States v. Holloman, 2020 U.S. Dist. LEXIS 21958 (E.D. Va. Feb. 7, 2020).
Posted inInformant hearsay, Reasonable suspicion, Uncategorized|Comments Off on CA6: Def’s volunteering to officer “he was working with a DEA agent but because his status was classified” contributed to RS
Defendant’s furtive movement as car stopped was reasonable suspicion. United States v. Young, 2020 U.S. Dist. LEXIS 21367 (W.D. Mo. Jan. 22, 2020).
Comparing numbers from search warrant obtained text and call history and CSLI for defendant’s phone provided probable cause for his phone and house because he allegedly was texting a young girl. United States v. Nixon, 2020 U.S. App. LEXIS 3822 (6th Cir. Feb. 6, 2020).*
The government got a search warrant for a phone alleged to be associated with defendant but they had no way to get into it because of encryption. Defendant, however, disassociated himself from the phone at the time of seizure and never retracted it. United States v. Mayer, 2019 U.S. Dist. LEXIS 226641 (D. Minn. Dec. 10, 2019).*
"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.
