“More fundamentally, we think that the premise of Blakeney’s argument — that a search warrant always must specify the crime for which the executing officers may seek evidence – is mistaken. The Fourth Amendment ‘specifies only two matters that must be particularly described in [a] warrant: the place to be searched and the persons or things to be seized.’” United States v. Blakeney, 2020 U.S. App. LEXIS 3590 (4th Cir. Feb. 6, 2020).
The exclusionary rule does not apply in revocation of supervised release proceedings. United States v. Hightower, 2020 U.S. App. LEXIS 3556 (2d Cir. Feb. 6, 2020).
Posted inParticularity, Probation / Parole search|Comments Off on CA4: 4A doesn’t require a particular statement of the crime under investigation if it otherwise adequately describes the place to be search or the person or thing to be seized
Pursuing a motion to suppress would have been contrary to trial strategy that it wasn’t his stuff. “In overruling the first assignment of error, on ineffective assistance of trial counsel for failing to move to suppress, this court noted that moving to suppress the search warrant would have contradicted Burton’s trial strategy that because he did not live in the house, he could not be guilty of charges.” State v. Burton, 2020-Ohio-375, 2020 Ohio App. LEXIS 343 (8th Dist. Jan. 31, 2020).
After an arrest outside the apartment, one defendant consented to an entry to discuss it further and to conduct a protective sweep inside, which was found to be consensual. United States v. Hall, 2020 U.S. Dist. LEXIS 19134 (E.D. Mo. Jan. 16, 2020).*
Posted inProtective sweep, Standing|Comments Off on OH8: Trial strategy was that the drugs weren’t def’s; a motion to suppress would have to argue standing; no IAC
The search incident of defendant’s room was valid because it occurred shortly after his arrest when he was still there, despite his being handcuffed which doesn’t per se make a search incident invalid. “Because defendant failed to allege facts which, if proved, would establish either a Fourth Amendment violative search or seizure, the burden never shifted to the Government and the motion should be properly denied. Because defendant does not allege facts which if true would require a grant of relief, the motion to suppress should be DENIED.” Even so, arguendo, when the untainted information is read out of the probable cause showing, probable cause still remains here. United States v. Oury, 2019 U.S. Dist. LEXIS 226495 (S.D. Ga. Dec. 10, 2019). [That’s incorrect: when it’s a warrantless search, the burden shifts to the government to justify it. That’s all defendant needs to show.]
The court assumes for sake of argument that there were false statements in the affidavit for search warrant. Removing them still leaves probable cause. United States v. Keleta, 2020 U.S. App. LEXIS 3566 (8th Cir. Feb. 6, 2020).
Posted inFranks doctrine, Search incident|Comments Off on S.D.Ga.: Search incident of def’s room on his arrest was valid even though he’d just been removed
When executing a felony arrest warrant on an occupant of a car, frisking companions in the car is reasonable for officer safety. United States v. Abbassi, 2020 U.S. App. LEXIS 3575 (9th Cir. Feb. 4, 2020).
“In her informal brief to this court, Ms. Pekrul argues that the Court of Federal Claims should have applied the Fourth Amendment, implying that the IRS’s assessment of taxes against her, and its use of liens and garnishments to collect those taxes, violated her right to be secure in her person, houses, papers, and effects. This characterization does not aid Ms. Pekrul in identifying a claim within the Court of Federal Claims’ jurisdiction.” Pekrul v. United States, 2020 U.S. App. LEXIS 3442 (Fed. Cir. Feb. 5, 2020).
Posted inScope of search, Stop and frisk|Comments Off on CA9: When arresting a vehicle passenger on a felony warrant, a frisk of others in the car is permissible for officer safety
Brendlin standing of a passenger to challenge a stop doesn’t translate into standing to also challenge the search. Defendant still has to show a reasonable expectation of privacy in the vehicle. “The Defendant attempts to establish standing by arguing that, because he was seized within the meaning of the Fourth Amendment when the trooper stopped the Vehicle, he has standing to challenge the seizure of evidence that followed from his detention. In making this argument, Defendant improperly relies on the Supreme Court’s decision in Brendlin v. California, which establishes the narrow principle that a passenger in a vehicle stopped by the police is deemed ‘seized’ under the Fourth Amendment and has standing to challenge the constitutionality of the detention. 551 US 249 (2007). Brendlin does not stand for the proposition that merely by virtue of such a seizure, rather than a showing of a legitimate expectation of privacy, a non-owner driver is entitled to challenge the search of an automobile.” United States v. Shuai Sun, 2020 U.S. Dist. LEXIS 19453 (S.D. N.Y. Feb. 3, 2020).
Posted inStanding|Comments Off on S.D.N.Y.: Brendlin standing of a passenger to challenge a stop doesn’t translate into standing to also challenge the search
Appellate counsel wasn’t ineffective for not arguing that a prior decision should be overruled when it would not likely be. State v. Newton, 2020-Ohio-376, 2020 Ohio App. LEXIS 340 (8th Dist. Jan. 30, 2020).*
Defendant’s claims of deficient performance were not supported by the record–defense counsel did what defendant said he didn’t. United States v. Mekaeil, 2020 U.S. Dist. LEXIS 19179 (D. Kan. Feb. 5, 2020).*
Defendant didn’t make a prima facie showing for a Franks hearing, but he got one anyway and failed to prove a violation. United States v. Manigault, 2020 U.S. Dist. LEXIS 18415 (E.D. Pa. Jan. 31, 2020).*
Pole camera observations from the street ended up in a wiretap application. Carpenter provides no relief. The only observations were the comings and goings from the house for which there was no reasonable expectation of privacy. “Because the Defendant has identified no facts suggesting that the pole camera in this case recorded areas or behavior over which he possessed a reasonable expectation of privacy, the motion to suppress the pole camera footage will be denied.” United States v. Edmonds, 2020 U.S. Dist. LEXIS 19023 (S.D. W.Va. Feb. 5, 2020).
“After reviewing the footage and the testimony, we agree with the district court. The body camera footage is inconclusive, but it does not contradict the lieutenant’s testimony. To address credibility determinations, we examine extrinsic evidence for contradictions in the officer’s testimony.” The trial court found the officer’s testimony on reasonable suspicion credible. State v. Stoppelmoor, 2020 Iowa App. LEXIS 140 (Feb. 5, 2020).*
Posted inBurden of proof, Pole cameras|Comments Off on S.D.W.Va.: No REP in pole camera observations of who came and went from def’s front door
A trash seizure [remember those?] was of trash on an alley awaiting pick up. There was no entry on the curtilage or his reasonable expectation of privacy. State v. Wright, 2020 Iowa App. LEXIS 151 (Feb. 5, 2020).
The officer’s encounter with defendant occurred after following him, seeing no traffic violations, and then watching him park the car. Only then was there an encounter. The Fourth Amendment was not violated in the encounter. State v. Poock, 2020 Iowa App. LEXIS 116 (Feb. 5, 2020).*
DALLAS (CN) – The American Civil Liberties Union sued federal immigration officials Wednesday, demanding the search warrants for a raid last year at a Dallas-area electronics repair company that netted over 280 arrests.
Posted inImmigration arrests|Comments Off on CNS: ACLU Sues ICE for Warrants in Dallas-Area Workplace Raid
Petitioner’s Fourth Amendment claims can’t be the basis for a successor habeas because none of the statutory grounds are available here. In re Hammond, 2020 U.S. App. LEXIS 3419 (11th Cir. Feb. 4, 2020): Continue reading →
Posted inUncategorized|Comments Off on CA11: 4A claims not cognizable for successor habeas
Posted inSurveillance technology|Comments Off on Boston Globe: Editorial: Facial-recognition tech may have value, but real-time surveillance goes too far
The R&R determined that there was no “search” for Fourth Amendment purposes, and if there was, it was reasonable. On review by the USDJ, the failure to challenge the “no search” holding isn’t a proper objection. United States v. Oury, 2020 U.S. Dist. LEXIS 18135 (S.D. Ga. Feb. 4, 2020).
“In this case, we have facts establishing a poorly drafted affidavit, not a search warrant procured in bad faith. As established at the evidentiary hearing on the motion to suppress, although the affiant officer submitted the affidavit knowing that he had personally observed the controlled purchases of cocaine, he failed to clearly articulate that point in the affidavit. The officer plainly would not have viewed his affidavit as so lacking in indicia of probable cause that his belief in the existence of probable cause was rendered unreasonable. The officer had personal knowledge regarding the controlled buys, and he personally knew that the unnamed purchaser was credible and that the information was reliable because the officer surveilled the transactions.” People v. Powell, 2020 Mich. App. LEXIS 862 (Feb. 4, 2020).
Defendant was stopped walking with another to a hotel in Columbia, Missouri by an officer pulling up behind them and turning on the patrol car’s emergency lights. Back up arrived, and defendant and his companion were told to put the backpacks down for safety, which they did. The stop, even if it started as consensual (likely not) turned into a detention without reasonable suspicion. Their patdown produced nothing. The search of the backpacks was unreasonable. State v. Johnson, 2020 Mo. App. LEXIS 129 (Feb. 4, 2020): Continue reading →
Posted inReasonable suspicion, Seizure|Comments Off on MO: Def’s stop became a seizure with RS and search of backpack was without PC
After a remand, the state is free to raise new grounds to support the search. People v. Tallent, 2020 COA 14, 2020 Colo. App. LEXIS 127 (Jan. 30, 2020).
“A bare assertion of authorization from a third party along with the lack of evidence the car was stolen, without more, is insufficient to show defendants’ have standing here.” Defendant identified Harris as the owner. Harris said it was a friend of a friend. Defendant showed nothing on a reasonable expectation of privacy in the vehicle. United States v. Leiva, 2020 U.S. Dist. LEXIS 17749 (N.D. Iowa Feb. 4, 2020).
Posted inBurden of proof, Standing|Comments Off on CO: State can assert new grounds to support search after remand
The truck inspection officer here had reasonable suspicion because the log book looked like it was false, there was an unnecessary private seal on the trailer, and the lock was on the wrong door meaning the load wasn’t protected. Two questions about travel and rate of pay didn’t add to the stop. People v. Bujari, 2020 IL App (3d) 190028, 2020 Ill. App. LEXIS 55 (Feb. 3, 2020).*
Defendant had no DL, and the officer ordered him out of the car. The bulge in his pants justified a frisk for weapons, and none were found. Getting the drug dog there was reasonable because the officer could also smell “the faint odor of marijuana.” State v. Carero, 2020 Tenn. Crim. App. LEXIS 63 (Feb. 3, 2020).*
COA denied on petitioner’s search issue for lack of standing. Rogers v. Sec’y, 2020 U.S. App. LEXIS 3416 (11th Cir. Feb. 4, 2020).*
Posted inAdministrative search, Reasonable suspicion|Comments Off on IL: Truck inspection search was with RS from suspect log book and wrong seal and locks on cargo door
Defendant was being watched by police, and he was being followed and ran a stop sign. In the stop, the officer told defendant to roll down his window and turn off the car. He rolled the window part way down and turned off the car. Then he rolled up the window and restated the car. “The Court finds that Defendant restarting the vehicle and rolling the passenger side windows back up, along with his general failure to comply with the officers’ instructions during the traffic stop, gave the officers probable cause to believe that he was, at the very least, about to commit the offense of attempt to flee or evade police in the second degree.” That justified removing him from the car and patting him down. The patdown produced drugs, and that justified a search of the car. United States v. Lyvers, 2020 U.S. Dist. LEXIS 17768 (E.D. Ky. Feb. 4, 2020).*
The affidavit for search warrant didn’t state what crime was under investigation to help narrow the search. “For the reasons stated above, the search warrant lacked the requisite particularity to comply with the Fourth Amendment because it did not refer to a particular crime. Nonetheless, the officers’ reliance on the warrant was objectively reasonable, so the good faith exception to the exclusionary rule applies. Therefore, the United States has shown by a preponderance of the evidence that the search warrant did not violate the Fourth Amendment.” United States v. Maynes, 2020 U.S. Dist. LEXIS 17864 (D.N.M. Jan. 31, 2020).*
Defendant’s probation search condition permitted the search here, and officers had reason: He was arrested twice for drug offenses and posted $125,000 in bond despite having no apparent source of income. United States v. Tucker, 2020 U.S. App. LEXIS 3264 (6th Cir. Jan. 31, 2020).
Defendant’s probation search was justified on the facts because of defendant’s association with known criminals. United States v. Chavez, 2020 U.S. Dist. LEXIS 17259 (N.D. Cal. Jan. 31, 2020).*
Posted inProbation / Parole search|Comments Off on CA6: Probation search justified by two drug arrests and posting $125k bond with no job
Plain error does not apply to any search issue not preserved below. In an IAC claim, defendant showed, even with this limited record, the likelihood that he could have prevailed in a motion to suppress for lack of reasonable suspicion to extend the stop. Reversed. Mills v. State, 2020 WY 14, 2020 Wyo. LEXIS 15 (Feb. 4, 2020): Continue reading →
Posted inIneffective assistance, Standards of review|Comments Off on WY: Plain error does not apply to unargued points in motion to suppress; however, IAC shown on lack of RS to extend stop
"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.
