In his 2255, defendant claims counsel was ineffective for not moving to suppress on the automobile search or consent search grounds. This was contrary to his defense at trial and the original suppression motion that the officers planted the gun, which the district court rejected in the motion to suppress and the jury rejected at trial. It wouldn’t succeed. Bauzó-Santiago v. United States, 2020 U.S. Dist. LEXIS 16413 (D. P.R. Jan. 27, 2020).*
“Accordingly, the factors indicate that the protective sweep was reasonable under the Fourth Amendment as to the rifle magazine found in the washing machine. The Court declines to make a finding regarding the reasonableness of the discovery of the handgun under Defendant’s mattress during the protective sweep but finds that its discovery was inevitable in light of the subsequent search pursuant to a warrant. Accordingly, neither item will be suppressed.” United States v. Tapp, 2020 U.S. Dist. LEXIS 16474 (E.D. La. Jan. 31, 2020).*
Posted inIneffective assistance, Protective sweep|Comments Off on D.P.R.: Def’s 2255 claim was based on a fact litigated below and at the trial on the merits; the jury’s determination on credibility can’t be challenged now
The search warrant for defendant’s CSLI was for 4 days before a murder and 2 weeks after. He pleads overbreadth. The warrant is particular as to the subject matter, just the time is excessive. Thus, it does not permit a “rummaging,” but it needs to be narrowed. The court declines to suppress all of it and agrees with the state that 24 hours after the murder is not excessive. State v. Waters, 2020 Del. Super. LEXIS 61 (Jan. 30, 2020): Continue reading →
Posted inOverbreadth|Comments Off on DE: SW for CSLI in murder case was overbroad as to seizures more than 24 hours after the murder; limited to that time period
Even an erroneous Fourth Amendment decision in state court does not overcome the Stone v. Powell bar in a § 2254. The question is the fair opportunity to litigate, not the result. Green v. Nagy, 2020 U.S. Dist. LEXIS 16502 (E.D. Mich. Jan. 31, 2020), prior opinion, 2019 U.S. Dist. LEXIS 124063 (E.D. Mich. July 25, 2019): Continue reading →
Posted inAbstention|Comments Off on E.D.Mich.: Sole 4A question in § 2254 is fair opportunity to litigate, not correctness of result
Hiding a gun in the wheel well of someone else’s vehicle to keep it from the police is an abandonment. “Defendant had no reasonable expectation of privacy in the wheel well of someone else’s red Ford parked on a public Philadelphia street, where he abandoned the 9 mm Taurus handgun.” Whatever happened after that is pretty much moot as far as finding the gun is concerned. United States v. Manigault, 2020 U.S. Dist. LEXIS 16269 (E.D. Pa. Jan. 30, 2020).
Defendant’s claim his stop was without probable cause was waived by not filing a motion to suppress. Village of St. Paris v. Galluzzo, 2020-Ohio-308, 2020 Ohio App. LEXIS 262 (2d Dist. Jan. 31, 2020).
The USMJ just doesn’t believe that defendant committed a lane violation or was following too closely to justify his stop based on the dashcam video. United States v. Diaz, 2019 U.S. Dist. LEXIS 225960 (D.S.C. Dec. 3, 2019).*
Posted inAbandonment, Burden of pleading|Comments Off on E.D.Pa.: Hiding gun in wheel well of vehicle of another was abandonment; nothing after that has any legal effect
There was probable cause on the totality of the information provided the issuing magistrate for issuance of a search warrant for bank robber. The error as to the city of the robbery was a mere clerical error that could be overlooked. State v. Vaughn, 2020-Ohio-307, 2020 Ohio App. LEXIS 263 (2d Dist. Jan. 31, 2020).
Defendant consented to the entry into the house. It didn’t matter that his mother owned it because he lived there. United States v. Rodriguez-Pacheco, 2020 U.S. Dist. LEXIS 16010 (D.P.R. Jan. 29, 2020).*
Defendant was convicted of a sex offense on a guilty plea. His probation condition of computer monitoring is struck as overbroad under the state constitution. Moreover, he doesn’t even have a computer yet. State v. Bouchard, 2020 Vt. LEXIS 9 (Jan. 31, 2020).*
In an investigation of defendant’s shooting, officers obtained a search warrant for his premises and the warrant included search for drugs. The warrant was overbroad, but the court declines to apply the exclusionary rule finding it was in good faith. State v. Ojezua, 2020-Ohio-303, 2020 Ohio App. LEXIS 261 (2d Dist. Jan. 31, 2020): Continue reading →
Posted inGood faith exception, Overbreadth|Comments Off on OH2: Def was shot and the SW for his house where it happened included searching for drugs without PC; still it was in good faith
Defendant was unconscious in a car slumped over at the wheel at 2 am, unresponsive to a spotlight on her. This was valid as a public safety stop. State v. McKenna, 2020 Kan. App. LEXIS 7 (Jan. 31, 2020).
“A court will not find that defense counsel was ineffective for failing to file a meritless motion to suppress.” People v. McIntosh, 2020 IL App (5th) 170068, 2020 Ill. App. LEXIS 47 (Jan. 30, 2020).
This was an immigration checkpoint, and the presence of a drug dog didn’t make it purely criminal enforcement. The dog didn’t delay the process at all. United States v. Yasin, 2020 U.S. App. LEXIS 3062 (5th Cir. Jan. 30, 2020).*
In a meth distribution case, a cell phone found in the back seat is logically connected to the crime because officers know that co-conspirators communicate with each other on cell phones during the crime. United States v. Allery, 2020 U.S. Dist. LEXIS 15834 (D. Minn. Jan. 29, 2020): Continue reading →
Posted inNexus|Comments Off on D.Minn.: In a meth possession with intent case, a cell phone in the back seat with def was logically connected to the crime
Officers reasonably believed defendant was in a motel room, and an arrest warrant permitted entry under Payton. The observations from that went to getting a search warrant for the room. State v. Brandon, 2020 Tenn. Crim. App. LEXIS 5 (Jan. 31, 2020).
“In determining whether an affidavit for a search warrant provides probable cause sufficient to justify the warrant’s issuance, I do not engage in de novo review. Illinois v. Gates, …. I am, rather, to give deference to the issuing judge’s probable cause finding. Id. If the affidavit shows a ‘fair probability’ that the items sought to be seized are then on the premises, then probable cause exists. … [¶] Applying these factors, I have no hesitation in finding that the affidavits showed probable cause that Grant was a drug dealer. Indeed, there is direct evidence to that effect: the sale to CS 1.[¶] Moreover, he was clever in how he did his dealing. Unlike those who expose themselves by dealing directly hand-to-hand with others, defendant, like a spy, used a vehicular equivalent of a ‘dead drop’ or ‘dead letter box.’ It was also apparent that it was likely he had prospered at his trade, as he was seen driving three different cars, none of which sounds off-the-shelf cheap.” United States v. Grant, 2020 U.S. Dist. LEXIS 16161 (N.D. Ohio Jan. 30, 2020).*
The D.C. Court of Appeals discusses the scope of the automatic companion rule and finds that it doesn’t have to decide that issue here. There was reasonable suspicion for the companion’s patdown. Jenkins v. District of Columbia, 2020 D.C. App. LEXIS 27 (Jan. 30, 2020): Continue reading →
Posted inStop and frisk|Comments Off on D.C.App. discusses “automatic companion” rule but concludes it doesn’t apply
Standing for Fourth Amendment purposes is not jurisdictional, so the court can consider the merits instead. United States v. Spadafore, 2020 U.S. App. LEXIS 2922 (9th Cir. Jan. 28, 2020).
The legality of the search warrant for defendant’s car is moot because it could have been searched by inventory as an independent basis. State v. Brinkley, 2020 Del. Super. LEXIS 47 (Jan. 24, 2020).
“[B]ased on the totality of the circumstances, Palmer’s proximity to the accident, a suspect description matching Palmer’s race, gender and some articles of clothing, the lack of other pedestrians in the area, and his suspicious reaction after noticing Officer Meyer—there was reasonable suspicion to stop Palmer. See Quinn, 812 F.3d at 700. Therefore, it is recommended that Palmer’s Motion to Suppress Evidence and Statements be denied.” United States v. Palmer, 2020 U.S. Dist. LEXIS 16113 (E.D. Mo. Jan. 10, 2020).*
“In this drug trafficking case under the MDLEA, we too must follow Verdugo-Urquidez and conclude that defendant Guagua-Alarcon, who is a non U.S. citizen and non-U.S. resident, and who has no significant connection to the United States, cannot challenge under the Fourth Amendment and McLaughlin the Coast Guard’s conduct in taking 49 days on the high seas outside of the United States to transport him to Florida for presentment to the magistrate judge. Rather, the correct analytical framework for Guagua-Alarcon’s delay-in presentment challenge is under Rule 5(a) and the Purvis factors as outlined above. Thus, Guagua-Alarcon has shown no plain error to establish his Fourth Amendment and McLaughlin claims.” United States v. Cabezas-Montano, 2020 U.S. App. LEXIS 2931 (11th Cir. Jan. 30, 2020).
Plaintiff tried a Rodriguez issue of the reasonableness of the length of the delay to a jury and lost. The court can’t say that the jury’s verdict is unreasonable and should be set aside. Hernandez v. Boles, 2020 U.S. App. LEXIS 2948 (6th Cir. Jan. 28, 2020).*
Posted in§ 1983 / Bivens, Foreign searches, Reasonableness|Comments Off on CA11: 49 days for presentment to a USMJ after arrest on the high seas of a foreign national wasn’t unreasonable
Defendants’ challenges to the state issuing magistrate’s jurisdiction over geolocation information that crosses jurisdictional lines were based on a Franks challenge that was negligence at worst and not an intentional misrepresentation as to the judge’s jurisdiction. Besides, as interesting as the arguments are, they only show that the state actors all acted with good faith. United States v. Rauda-Constantino, 2020 U.S. Dist. LEXIS 14915 (N.D.Ga. Jan. 28, 2020).
A police sergeant was walking in a bar’s parking lot. The place was known for a lot of illegal activity (fights, drugs, guns, liquor violations). He smelled burning marijuana and followed the smell to defendant’s car where he saw a burned joint and marijuana in plain view. The encounter was reasonable. State v. Crawford, 2020-Ohio-268, 2020 Ohio App. LEXIS 234 (8th Dist. Jan. 30, 2020).*
The detail of a 911 call and corroboration of significant parts provided reasonable suspicion for a stop under Naverette. United States v. Dan, 2020 U.S. Dist. LEXIS 14906 (D. Neb. Jan. 13, 2020): Continue reading →
Posted inInformant hearsay, Reasonable suspicion|Comments Off on D.Neb.: The detail of a 911 call and corroboration of significant parts provided RS for a stop under Naverette
Civil discovery must comply with the Fourth Amendment. Here, there was an order to turn over a cell phone for forensic evaluation, and it was essentially based on probable cause. Attorney-client privilege must also be protected. Martin v. Martin, 2020 Mich. App. LEXIS 708 (Jan. 28, 2020): Continue reading →
Posted inCell phones, Privileges|Comments Off on MI: Civil discovery must comply with the 4A; here a cell phone search
The Post and Courier: Charleston police disproportionately pull over black drivers. Here’s the plan to fix it. by Gregory Yee (“After years of concerns aired by members of the African American community, Charleston officials approved a racial bias audit of the department in late 2018. The report, released in November, found enough evidence to show racial disparities in traffic stops.”)
Posted inRacial profiling|Comments Off on The Post and Courier: Charleston police disproportionately pull over black drivers. Here’s the plan to fix it.
“Detention in a police car does not automatically constitute an arrest,” and it depends on all the facts and circumstances. [Officers do that for safety reasons since the detainee is locked in the back seat.] United States v. Bonner, 2020 U.S. App. LEXIS 2886 (6th Cir. Jan. 29, 2020): Continue reading →
Posted inArrest or entry on arrest, Seizure|Comments Off on CA6: “Detention in a police car does not automatically constitute an arrest”
Plaintiff seeks preindictment suppression of evidence and return of evidence of illegal employment of undocumented workers. Preindictment suppression is based on equitable grounds. In the face of the good faith exception, Koch Foods can’t show that it does not apply or that suppression would be warranted. It is, however, entitled to return of employee files under Rule 41(g) because, in the interim, the Department of Labor conducted an employee audit because it can show irreparable harm by lack of the records. Koch Foods of Miss., LLC v. United States, 2020 U.S. Dist. LEXIS 14610 (S.D. Miss. Jan. 29, 2020), motion to modify denied, 2020 U.S. Dist. LEXIS 34865 (S.D. Miss. Feb. 28, 2020).
Claimant’s money was seized by search warrant, and the government started forfeiture. Pleading the Fifth Amendment to all discovery is no defense to forfeiture. United States v. $46,340.00 in United States Currency, 2020 U.S. App. LEXIS 2877 (6th Cir. Jan. 27, 2020).*
Pro se prisoner’s complaint against the search warrant process in Georgia fails for a multitude of reasons and is legally frivolous. State law on search warrant does not conflict with federal law and he doesn’t sufficiently allege that the issuing magistrate was not neutral and detached nor part of law enforcement apparatus. Hesed-El v. McCord, 2020 U.S. App. LEXIS 2828 (11th Cir. Jan. 28, 2020)*: Continue reading →
Possession of a firearm is an ongoing offense, and passage of time alone doesn’t make it stale. United States v. Morelock, 2019 U.S. Dist. LEXIS 225737 (N.D. Ga. Dec. 9, 2019), adopted, 2020 U.S. Dist. LEXIS 12596 (N.D. Ga. Jan. 27, 2020).
Defendant is accused of stealing $150,000 of specialized equipment from a truck. The police tracked him to his home after the goods were for sale on Facebook and the victim confirmed it. “Under the circumstances outlined above, this court readily concludes that the affidavit submitted in support of the search warrant in this case sufficiently established a reasonable basis to conclude that Conway lived at 5600 Carmichael Road, Apartment 2321, Montgomery, Alabama and that he was in possession of contraband that was of the type that one would normally expect to be hidden there — a place ‘to which easy access may be had and in which privacy is nevertheless maintained.’” United States v. Grier, 2020 U.S. Dist. LEXIS 14082 (M.D. Ala. Jan. 7, 2020),* adopted, 2020 U.S. Dist. LEXIS 12755 (M.D. Ala. Jan. 27, 2020).*
Posted inProbable cause, Staleness|Comments Off on N.D.Ga.: Possession of a firearm is an ongoing offense, and passage of time alone doesn’t make it stale
"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.
