“It was [defendant]’s burden to prove custody. … Payne opted to remain silent at the suppression hearing; therefore, we have been provided no contrast to the evidence given by Detective Patterson, upon which the court reasonably relied.” The trial court’s decision was not clearly erroneous. Payne v. State, 2019 Md. App. LEXIS 1069 (Dec. 17, 2019).* [Take this one with a grain of salt.]
A license plate check revealed that defendant’s Trailblazer near the border hadn’t crossed before, and the occupants were, by USBP standards and training, acting not normal. Also, the vehicle was riding too low for the number of passengers, and the officer thought there might be other people hidden inside. On the totality, there was reasonable suspicion for the stop. United States v. Velasquez, 2019 U.S. Dist. LEXIS 217498 (D. Ariz. Oct. 23, 2019),* adopted, 2019 U.S. Dist. LEXIS 216422 (D. Ariz. Dec. 16, 2019).*
Posted inImmigration arrests, Seizure|Comments Off on MD: Def’s burden to prove custody, but he didn’t testify
“In short, we decline to opine on whether Campbell’s actions amount to a [Fourth Amendment] violation. Robles failed to meet his burden to show that such a violation was clearly established, particularly when dealing with an underlying violent crime. Accordingly, Campbell is entitled to qualified immunity.” Robles v. Ciarletta, 2019 U.S. App. LEXIS 37723 (5th Cir. Dec. 19, 2019).*
A doctor stated a privacy claim for surreptitious recording by a deceased patient’s mother in his office for noncompliance with the Florida recording statute. He had a reasonable expectation of privacy in his own office. Woliner v. Summers, 2019 U.S. App. LEXIS 37385 (11th Cir. Dec. 18, 2019).*
AP: South Bend OKs random inspections for body camera footage (“A new policy adopted in the wake of a black man’s fatal shooting by a white South Bend police officer calls for random inspections of officers’ body camera footage and for officers to state a reason before they end a recording.”)
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The officer was observing defendant and suspected he’d be engaged in a drug transaction. Finally there was a patdown, and in defendant’s pocket was a small ball of something, which the officer reached for. It was obvious it was not a weapon, and the search exceeded the Terry stop. Johnson v. State, 2019 Ind. App. LEXIS 560 (Dec. 19, 2019): Continue reading →
Defendant’s arrest for being a felon in possession justified his search incident. United States v. Westfall, 2019 U.S. Dist. LEXIS 217329 (E.D. Mo. Dec. 18, 2019).*
Defendant’s detention was without reasonable suspicion and unreasonably extended. A probation officer was working with police officers in a saturation and that led to defendant’s traffic stop in his girlfriend’s driveway, and that led to his immediate handcuffing and detention for more than an hour, and consent to search his cell phone that produced nothing much of interest. State v. Stevens, 2019 Del. Super. LEXIS 648 (Dec. 12, 2019).*
Plaintiff’s competing narrative about the force used against him was sufficient to overcome defendants’ claim of qualified immunity. Leonhardt v. City of Akron, 2019-Ohio-5223, 2019 Ohio App. LEXIS 5284 (9th Dist. Dec. 18, 2019).*
Defendant made a Fourth Amendment challenge then pled to the indictment without a plea agreement. He still waives his Fourth Amendment claim because he could have appealed. Dunbar v. United States, 2019 U.S. Dist. LEXIS 217464 (N.D. Tex. Nov. 14, 2019), adopted, 2019 U.S. Dist. LEXIS 216268 (N.D. Tex. Dec. 17, 2019).
Defendant was loudly and apparently obnoxiously talking on a cell phone in a convenience store, and the clerk was concerned that he was seriously annoying other customers. The officer, a Captain in plainclothes with a badge and gun on his ankle came in and saw it all. He called for backup. When backup arrived, he talked to defendant and told him to take the conversation elsewhere from the store. Defendant became nervous to the point his nervousness made the officer nervous. The officer was concerned defendant was armed. He asked for and received permission for a weapons patdown which resulted in the officer feeling an unmistakable group of packaged drugs in his pocket. That was plain feel. Defendant wasn’t seized by the request for consent. State v. Johnson, 2019 N.C. App. LEXIS 1017 (Dec. 17, 2019).*
Defendant pled to attempting to provide support to a terrorist organization. After the plea, the government disclosed it’s prosecution derived from the warrantless obtaining of his phone calls under § 702 of the FISA Amendments Act of 2008. He successfully set aside his plea to litigate it and lost. He entered a conditional plea again. “He now appeals, arguing inter alia that the warrantless surveillance and the collection of his communications violated the Fourth Amendment. We conclude that the collection of the communications of United States persons incidental to the lawful surveillance of non-United States persons located abroad does not violate the Fourth Amendment and that, to the extent that the government’s inadvertent targeting of a United States person led to collection of Hasbajrami’s communications, he was not harmed by that collection. [TEXT REDACTED BY THE COURT] Because there is insufficient information in either the classified or the public record in this case to permit us to determine whether any such querying was reasonable, and therefore permissible under the Fourth Amendment, we REMAND the case to the district court for further proceedings consistent with this opinion.” United States v. Hasbajrami, 2019 U.S. App. LEXIS 37583 (2d Cir. Dec. 18, 2019).
Posted inFISA|Comments Off on CA2: FISA violation or not? Case remanded for fact finding on whether def’s calls were reasonably collected
On the opening day of dove hunting season, wildlife officers were out. They heard shooting from open lands and went to investigate. They encountered defendant and another, and defendant tossed a bag aside when officers approached him. They asked what was in the bag, and he said “meth.” It turned out his grandmother owned the land, but it was open fields and was nowhere near the curtilage of her house. He lacked a reasonable expectation of privacy in the field. Tullos v. State, 2019 Miss. App. LEXIS 598 (Dec. 17, 2019).*
“The district court properly dismissed Martin’s action because Martin failed to allege facts sufficient to show that Berg and Rini in fact arrested him.” Martin v. Berg, 2019 U.S. App. LEXIS 37544 (9th Cir. Dec. 18, 2019).*
Defendant’s 2255 claimed defense counsel failed to move to suppress the contents of his cell phone because of lack of a search warrant. Except there was a search warrant. Blanc v. United States, 2019 U.S. Dist. LEXIS 217091 (S.D. Fla. Dec. 17, 2019).*
Posted in§ 1983 / Bivens, Open fields, Seizure|Comments Off on MS: Def was in open fields when he encountered wildlife officers and admitted he had meth on him
“‘[T]he task of a reviewing court is not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate judge’s decision to issue the warrant.’ United States v. Bushay, … (citing Massachusetts v. Upton, …). As a result, ‘[c]ourts reviewing the legitimacy of search warrants should not interpret supporting affidavits in a hypertechnical manner; rather, a realistic and commonsense approach should be employed so as to encourage recourse to the warrant process and to promote the high level of deference traditionally given to magistrates in their probable cause determinations.” United States v. Miller … (citing Gates, 462 U.S. at 236-37, and United States v. Ventresca, …). [¶] With these principles in mind, I readily conclude that Judge Salinas had a ‘substantial basis’ for concluding that probable cause existed to believe that evidence of violations of 18 U.S.C. § 1591 [child sex trafficking] would be found on the cell phone seized from Obie at his arrest.” United States v. Obie, 2019 U.S. Dist. LEXIS 217128 (N.D. Ga. Nov. 6, 2019),* adopted, 2019 U.S. Dist. LEXIS 216350 (N.D. Ga. Dec. 17, 2019).*
Same: United States v. Giddens, 2019 U.S. Dist. LEXIS 217676 (S.D. Ga. Dec. 18, 2019).*
Posted inProbable cause, Standards of review|Comments Off on N.D.Ga.: [For the 10,000th time,] the standard of review of PC is whether there is a “substantial basis” for finding PC, not whether there actually is
A judge of the Fifth Circuit granted a certificate of appealability in a 2255 denied by the district court alleging, inter alia, a Fourth Amendment ineffective assistance of counsel claim. The issue was waived by the guilty plea. The COA is set aside by a panel for lack of a “substantial preliminary showing” he could prevail on any ground. United States v. Smith, 2019 U.S. App. LEXIS 37574 (5th Cir. Dec. 18, 2019):* Continue reading →
Posted inIneffective assistance|Comments Off on CA5: COA previously granted in 2255 appeal is set aside for lack of a “substantial preliminary showing” he could prevail
These same individuals, leftists, aided by their complicit media accomplices, see nothing wrong with the violation of Fourth Amendment individual rights by a secret court, especially if the targets of that court are their political opposition.
Routine taking of booking fingerprints held not unreasonable, even if the arrest turned out to be unlawful. The district court held that they were admissible by inevitable discovery because the officers would have found that defendant was here unlawfully. The court of appeals goes farther and holds that it was reasonable in any event and the exclusionary rule would not be applicable. United States v. Cruz-Mercedes, 2019 U.S. App. LEXIS 37572 (1st Cir. Dec. 18, 2019): Continue reading →
Posted inArrest or entry on arrest, Exclusionary rule|Comments Off on CA1: Routine booking fingerprints even in an unlawful arrest not subject to exclusionary rule and are reasonable
Arrest of the “wrong guy” under a warrant here was unreasonable. Defendant claimed he was the wrong Troy Ford, and the officer searched him finding drugs before even attempting to verify whether he was the right one. It didn’t take long to find out he wasn’t, but the drugs on him were found. State v. Ford, 2019 Iowa App. LEXIS 1153 (Dec. 18, 2019): Continue reading →
Posted inArrest or entry on arrest, Reasonableness|Comments Off on IA: Arrest of the “wrong guy” under a warrant unreasonable where no effort made to determine if he was the right guy or not
“Because the Fourth Amendment values the practice of obtaining a warrant to reduce the perception of intrusive police conduct, we do not strictly scrutinize the sufficiency of the underlying affidavit. … Instead, we decide whether the issuing magistrate had a substantial basis for concluding probable cause existed. Id. [¶] Here, we find those common-sense inferences would lead a reasonably prudent person to believe evidence of a crime may have been found at Michael’s house.” State v. Syperda, 2019 Iowa App. LEXIS 1159 (Dec. 18, 2019).*
The body cam video showed that the person with apparent authority consented to the search on the totality. It started out as a welfare check. State v. Rutter, 2019 Iowa App. LEXIS 1130 (Dec. 18, 2019).*
The dash cam video shows defendant driving half the speed limit and swerving within his lane. The officer had reasonable suspicion for the stop. State v. Bertrand, 2019 Iowa App. LEXIS 1137 (Dec. 18, 2019).*
Defendant filed a “laundry list” 2255. His Franks IAC claim is rejected for lack of any offer of proof that it would remotely be granted. Johnson v. United States, 2019 U.S. Dist. LEXIS 216544 (N.D. Ohio Dec. 17, 2019).*
The officer testified that defendant crossed the centerline twice, and defendant admitted the vehicle pulled left. The trial court credited that, and it’s enough for a stop in Ohio. State v. Worstell, 2019-Ohio-5228, 2019 Ohio App. LEXIS 5292 (5th Dist. Dec. 16, 2019).*
Defense counsel was not ineffective for not moving to suppress the basis for the stop. There was reasonable suspicion for the stop. State v. Kelly, 2019-Ohio-5226, 2019 Ohio App. LEXIS 5289 (5th Dist. Dec. 17, 2019).*
Posted inUncategorized|Comments Off on N.D.Ohio: 2255 including a 4A IAC claim denied for lack of any statement of facts of what’s at issue
CNN: Attorney General Barr defends surveillance tool as Republican scrutiny grows by David Shortell (“Attorney General William Barr called the Foreign Intelligence Surveillance Act a ‘critical tool’ and vowed to preserve it Wednesday after suggestions from Republican lawmakers that the court that approves the powerful surveillance technique may have to be shut down absent sweeping reform.”)
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"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.
