Defendant was stopped driving a moped without a helmet, and he was found not to have a license. “The officers also had the right [under Rodriguez] to check McIntosh’s criminal history during the stop, which included discovery in ISIS that McIntosh was on supervised release and in OMNIXX that he is a convicted felon.” He was a felon in possession. United States v. McIntosh, 2019 U.S. Dist. LEXIS 220748 (N.D.Ga. Dec. 26, 2019).
At a morning staff meeting, patrol officers were told of an arrest warrant for a guy named Lewis. The officer he was gassing up his patrol car in the area he regularly patrolled and saw defendant, a Lewis who he well knew also by reputation as a neighborhood bully, walk by. The officer radioed for more information on the name on the warrant as he followed. Defendant got to his house and the officer called out that he “may have a warrant on you.” Defendant fled. Warrant or not, the circumstances added up to reasonable suspicion. There also was no violation of the curtilage. United States v. Lewis, 2019 U.S. App. LEXIS 38491 (4th Cir. Dec. 26, 2019).*
Posted inReasonable suspicion|Comments Off on N.D.Ga.: A criminal history check can be run under Rodriguez, particularly where no DL on person
Probable cause for arrest can arise just from defendant’s connection and close association with others. Here, others were arrested for passing counterfeit bills, and defendant arrived in the same car. People v. Braswell, 2019 IL App (1st) 172810, 2019 Ill. App. LEXIS 1003 (Dec. 26, 2019). [Maryland v. Garrison says this, too.]
But, merely driving somebody else to a drug deal that happens outside his presence isn’t probable cause. United States v. Penaloza-Romero, 2019 U.S. Dist. LEXIS 221054 (D. Minn. Oct. 29, 2019). There, mere propinquity is not enough: Continue reading →
Defendant got a suppression hearing, but not yet a Franks hearing. The USMJ was “on the fence” about whether a Franks hearing was required. Ultimately the findings of fact and conclusions of law supported a lack of materiality on the alleged false claims, even without it being called a Franks hearing, and this was not error. United States v. Miller, 2019 U.S. Dist. LEXIS 221515 (N.D. Iowa Dec. 27, 2019).
Police had probable cause to seize defendant’s cell phone for possible child pornography on it to enable them to get a search warrant for it. United States v. Wainright, 2019 U.S. Dist. LEXIS 221489 (W.D. Mo. Dec. 27, 2019).*
Posted inCell phones, Franks doctrine|Comments Off on N.D.Iowa: Def sought Franks hearing but got a separate suppression hearing which led to his losing on merits of Franks claim
When police are at the door and ask for a person, and the person answering the door steps aside, it is apparent authority to enter that the wanted person is inside. State v. Smith, 2019 Fla. App. LEXIS 19116 (Fla. 2d DCA Dec. 27, 2019): Continue reading →
Posted inArrest or entry on arrest, Consent|Comments Off on FL2: Standing aside when answering door for police as to whether someone is inside is consent to entry by action
Plaintiff was charged with OVI and was convicted at trial. On appeal to the next level he was found not guilty of that but convicted of evading an interlock device. He sued over the OVI arrest, and it is dismissed under Heck. His conviction conclusively established probable cause unless it was obtained by fraud, and it wasn’t. Mills v. Hassan, 2019 U.S. Dist. LEXIS 220363 (D. Md. Dec. 23, 2019).*
The district court properly denied the police officer qualified immunity because it was clearly established that the use of a chokehold on a non-resisting, restrained person violated the Fourth Amendment’s and separately Nevada state law’s prohibition on the use of excessive force. Tuuamalemalo v. Greene, 2019 U.S. App. LEXIS 38360 (9th Cir. Dec. 24, 2019).*
Plaintiff sued an Atlanta police officer for false arrest during a Ferguson protest. Viewing the evidence most favorably to the officer, the district court was correct in denying qualified immunity. Toole v. City of Atlanta, 2019 U.S. App. LEXIS 38424 (11th Cir. Dec. 26, 2019).*
Pawnbrokers are “pervasively regulated” for consumer protection. City of Los Angeles v. Patel is way different because that industry was not so regulated. Collateral Loanbrokers Assn. of N.Y., Inc. v City of New York, 2019 NY Slip Op 09354, 2019 N.Y. App. Div. LEXIS 9417 (1st Dept. Dec. 26, 2019).
There was probable cause for the electronic devices despite the “any or all” language because it was limited to specific federal crimes. “The ‘any and all language,’ rather than being a fatal flaw, was merely explanatory of what the Government could seek within certain categories.” United States v. Holder, 2019 U.S. Dist. LEXIS 220455 (D. Colo. Dec. 21, 2019).
Report of a man with a gun led to defendant being stopped as he boarded a city bus in Newark. The court finds it was with reasonable suspicion based on reasonably corroborated citizen reports. United States v. Baker, 2019 U.S. Dist. LEXIS 220422 (D. N.J. Dec. 19, 2019).*
Defendant’s consent to a search of his car after a traffic stop moots the issue that the stop was based on a mistake of fact. United States v. Prado, 2019 U.S. App. LEXIS 38445 (3d Cir. Dec. 24, 2019).*
Facebook’s search warrant production included an affidavit of authenticity sufficient to make the records admissible as business records without a witness. State v. Garcia-Toro, 2019-Ohio-5336, 2019 Ohio App. LEXIS 5414 (8th Dist. Dec. 26, 2019).*
Defendant’s suppression issue was waived by his guilty plea. On the merits, it would have been denied because, as defense counsel put it, there was “overwhelming” probable cause. State v. Price, 2019 Del. Super. LEXIS 668 (Dec. 20, 2019).*
BuzzFeed: The Rise — And Rise — Of Mass Surveillance by Megha Rajagopalan (“Eavesdropping bureaucrats have been replaced by algorithm-driven facial recognition technology. But the real impact of indiscriminate surveillance may be in our minds.”)
Posted inSurveillance technology|Comments Off on BuzzFeed: The Rise — And Rise — Of Mass Surveillance
EFF: Courts Grapple with a Sea Change in Fourth Amendment Law After Carpenter v US: Year in Review 2019 by Jennifer Lynch (“In the year and a half since the Supreme Court’s ruling, Carpenter has been cited in more than 450 criminal and civil cases across the country. Carpenter caused a sea change in Fourth Amendment law because it expressly recognized that, under the right circumstances, we have a reasonable expectation of privacy in information we share with third parties and in our actions while we’re in public. The question courts began to grapple with in 2019 and will continue to address in 2020 is what those circumstances are.”)
“It may be worth commenting that the deputies may have subjectively used the social worker visit to pursue their interest in the reported firearm and drug violations — to the extent possible — just as traffic violations are often used by law enforcement to gain information about possible law violations. Defendant does not develop any ground for further review of subjective intentions.” United States v. Alloway, 2019 U.S. Dist. LEXIS 220348 (W.D. Mo. Dec. 23, 2019): How one USDJ views R&Rs in a Fourth Amendment case: Continue reading →
Posted inPretext, Standards of review|Comments Off on W.D.Mo.: How one USDJ views R&Rs in a 4A case; also, using social worker entry as pretext wasn’t unreasonable
The USMJ’s failure to conduct a Franks hearing in recommending a motion to suppress be granted was erroneous. The challenged statement was subject to two interpretations. “Faced with this situation, a Franks hearing would have allowed the Magistrate Judge to test the veracity of the claims in the warrant. Failing to conduct such a hearing was erroneous. [¶] But even if the statement could be considered false or misleading on its face, the affidavit as a whole establishes the requisite probable cause for the search. … The affidavit’s factual averments, taken as a whole, establish sufficient probable cause for the warrant to search Romero’s apartment, including opening the safe in his apartment.” The R&R is rejected, and the motion to suppress is denied. United States v. Romero, 2019 U.S. Dist. LEXIS 220401 (D. Minn. Dec. 19, 2019).*
The R&R found abundant probable cause for search of defendants’ office for evidence of a conspiracy to commit a bombing. “Thus, given the nature of the criminal activity under investigation, the items stored in Defendant’s office, and the recurrent association of Defendant’s office with criminal activity, the information linking Defendant’s office to criminal activity was not stale.” The same is said of defendant’s parent’s home. He stayed there often and made no attempt to show standing there. Even if he could, there also was probable cause as to their house, too. United States v. Hari, 2019 U.S. Dist. LEXIS 220398 (D. Minn. Dec. 20, 2019).*
Posted inFranks doctrine, Staleness|Comments Off on D.Minn.: R&R rejected; granting Franks motion without a hearing was error because alleged false statement had two interpretations
The AG’s office obtained a search warrant for defendant’s business for allegations of mortgage fraud. Several computers, hard drives, and many records were seized. After denial of suppression, defendant entered a conditional plea. The search warrant was a “general warrant” for its failure of particularity: “Most notably, other than a date restriction covering a period of approximately five years, the warrant permitted the OAG to search and seize all computers, hard drives, and computer files stored on other devices, without any guidelines, parameters, or constraints on the type of items to be viewed and seized.” People v. Melamed, 2019 NY Slip Op 09295, 2019 N.Y. App. Div. LEXIS 9318 (2d Dept. Dec. 24, 2019): Continue reading →
Defendant’s Fourth Amendment rights were not violated by officers who stopped on reasonable suspicion to stop him based on the fact that defendant was told to stop when he walked away from officers and attempted to leave their field of vision as soon as officers arrived at a known drug house to make an arrest. The officers reasonably feared that defendant might draw a weapon or warn the target of their arrest warrant if he were permitted to withdraw from view. United States v. Darrell, 2019 U.S. App. LEXIS 38209 (5th Cir. Dec. 23, 2019).
“Plaintiff asserts that the decedent was in an impaired mental state that should have been obvious to the officers and should have caused them to perceive less need to use deadly force. See Longoria, 873 F.3d at 708. Yet even assuming Defendants should have known that the decedent was mentally impaired, that would not have rendered their conduct less reasonable in this case, because the decedent posed a significant and immediate threat, leaving Defendants with no opportunity to attempt to de-escalate the situation. [¶] Because we hold that the officers’ use of deadly force was objectively reasonable at the time of the shooting, we reverse the district court’s denial of qualified immunity. Plaintiff can not establish a violation of the Fourth Amendment.” H.B. v. City of Torrance, 2019 U.S. App. LEXIS 38227 (9th Cir. Dec. 23, 2019).*
Posted inQualified immunity|Comments Off on CA5: Def was stopped on RS when officers arrived at a drug house to serve an arrest warrant; he could have been armed or would warn others
In a prior post, United States v. Wrensford, 2019 U.S. Dist. LEXIS 138235 (D. V.I. Aug. 15, 2019), the court held that the government didn’t get the benefit of inevitable discovery of defendant’s DNA for lack of proof. The court reopened the suppression hearing, and the government satisfied its burden and showed by a preponderance of the evidence that it would have inevitably obtained it. United States v. Wrensford, 2019 U.S. Dist. LEXIS 219574 (D. V.I. Dec. 22, 2019).*
The search warrant relied on by the officers wasn’t so obviously defective or without probable cause that they couldn’t rely on it. Thus, qualified immunity shields them from liability. Alba v. Cty. of Tulare, 2019 U.S. App. LEXIS 38221 (9th Cir. Dec. 23, 2019).*
Posted inDNA, Qualified immunity|Comments Off on D.V.I.: On reopening suppression hearing, govt proves inevitable discovery of def’s DNA
Defendant’s motion to disclose the CI in the affidavit for search warrant was properly denied because the CI provided nothing to the case on guilt or innocence. United States v. Swinton, 2019 U.S. App. LEXIS 38141 (2d Cir. Dec. 23, 2019). Same: United States v. Ranallo, 2019 U.S. Dist. LEXIS 220399 (D. Minn. Dec. 20, 2019).*
Defendant’s child pornography conviction based on a search from a Playpen warrant is affirmed under the good faith exception. His Franks motion was properly denied because even removing the challenged information from the affidavit still left probable cause. United States v. Bateman, 2019 U.S. App. LEXIS 38164 (6th Cir. Dec. 23, 2019).*
Posted inInformant hearsay|Comments Off on CA2: Def showed no reason to be able to obtain identify of CI who led to SW
An anonymous 911 call about suspicious men in a small town store brought police. Because the town was small, it was easy to identify strangers, and the officers encountered them inside the store and brought them out. Ultimately there was a patdown, but the whole venture was without reasonable suspicion, and the evidence found on them and in their car is suppressed. United States v. Puga, 2019 U.S. Dist. LEXIS 220181 (S.D.Tex. Dec. 24, 2019)*: Continue reading →
Posted inStop and frisk|Comments Off on S.D.Tex.: Anonymous 911 call brought police to local store; seizures and patdowns were without RS
911 call from an identified person that two men were waving guns in a library was reasonable suspicion. State v. Davidson, 2019-Ohio-5320, 2019 Ohio App. LEXIS 5399 (10th Dist. Dec. 24, 2019).*
Defendant fails in his ineffectiveness claim. “Even assuming appellant was given deficient advice, Buckley fails to demonstrate that a motion to suppress would have led to exclusion. It is his duty to support his argument with case law, but he does not direct us to any that supports his argument that suppression is warranted here.” Also, deficient advice isn’t state action. State v. Buckley, 2019-Ohio-5309, 2019 Ohio App. LEXIS 5372 (11th Dist. Dec. 23, 2019).* [This case actually deals with defense counsel telling him it would be wise to talk to the police, and then he incriminated himself. He alleges nothing to show that the statement would be suppressed. Not a search case, but the rule is the same.]
An alleged violation of Florida law in defendant’s arrest there with the participation of local law enforcement isn’t shown to be a Fourth Amendment violation. “And Teman has not cited any authority so holding or, for that matter, treating such a state-law violation as breaching any other provision of the federal Constitution. Second, the inevitable discovery exception to the Fourth Amendment’s exclusionary rule would firmly apply here to the evidence seized incident to Teman’s arrest, given that federal officers clearly would have lawfully obtained such evidence without Alessandrino—they had obtained a valid federal warrant and were present to effectuate Teman’s arrest pursuant to that warrant. … Third, Teman has not alleged facts making Detective Alessandrino’s participation in the arrest alongside federal law enforcement officers, if a violation at all of Florida law, anything other than a good faith violation. Absent a factual basis to find otherwise, the good-faith exception to the exclusionary rule …, would apply here.” United States v. Teman, 2019 U.S. Dist. LEXIS 220053 (S.D. N.Y. Dec. 20, 2019).
Posted inConflict of laws, Reasonableness|Comments Off on S.D.N.Y.: Alleged violation of Florida law by def’s arrest there where local officer assisted federal officers wasn’t a 4A violation
Plaintiff was restrained in school for behavioral problems. The case law is not clear as to whether this was a Fourth Amendment violation or not because some restraint in school is reasonable. The district court found a Fourth Amendment violation but defined the question at too “high [a] level of generality.” Qualified immunity applies. A.T. v. Baldo, 2019 U.S. App. LEXIS 38325 (9th Cir. Dec. 24, 2019).*
2255 claim that defense counsel was ineffective for not filing a motion to suppress on the ground that the search warrant here was not sufficiently particular to satisfy the Fourth Amendment fails on the merits. It was particular. Wilhelm v. United States, 2019 U.S. Dist. LEXIS 219845 (E.D. Mo. Dec. 23, 2019).*
Posted inExcessive force, Qualified immunity|Comments Off on CA9: DC erred in defining 4A at too “high [a] level of generality”; school officials get QI
Plaintiff was bloody and wielding a sharp stick at adults and children at a soccer field. He disobeyed police commands. He was finally shot when he was kneeling and far enough away from others that he was a lesser threat. A jury could conclude excessive force was unnecessarily used, but whether it was reasonable to shoot him was not clearly established at the time, so the officers get qualified immunity. Hernandez v. City of Huntington Beach, 2019 U.S. App. LEXIS 38322 (9th Cir. Dec. 24, 2019).*
A Colorado prison inmate sued pro se that he was sexually abused as a child, has PTSD from it, and cannot take communal showers in prison. The Prison Rape Elimination Act has provisos for certain issues allowing for separate shower facilities, but this isn’t one. He doesn’t state a Fourth Amendment claim. [He does, however, state an Eighth Amendment claim.] Thompson v. Lengerich, 2019 U.S. App. LEXIS 38237 (10th Cir. Dec. 23, 2019).*
Posted inExcessive force, Qualified immunity|Comments Off on CA9: Not clearly established that shooting a bloody man waving a sharp stick at adults and children at a soccer field was clearly established
"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.
