Defendant filed his motion to suppress in the blind because didn’t have access to the affidavit for the search warrant. It was denied without a hearing. Remanded: He gets to see it to try to controvert it. People v. Lambey, 2019 NY Slip Op 07793, 2019 N.Y. App. Div. LEXIS 7773 (2d Dept. Oct. 30, 2019).
Plaintiff is a prison inmate filing § 1983 cases. In one, the defendants responded by filing copies of his mental health records on a motion for summary judgment. He sued under various provisions of the Bill of Rights and loses. He has no Fourth Amendment claim because the records were in the hands of a third party. Moreover, he put his mental health in issue in the first place thus waiving any privacy claim. Talley v. Pa. Dep’t of Corr., 2019 U.S. App. LEXIS 32491 (3d Cir. Oct. 30, 2019).*
Arguable probable cause supported plaintiff’s misdemeanor arrest, but there is a factual dispute denying qualified immunity to the officers of where exactly the arrest started and how it ended up indoors. That remains for trial. The complaint also survives on the question of whether excessive force was used to arrest a non-violent suspect, as evidenced by the body cam video. The law is clearly established. Longino v. Henry County, 2019 U.S. App. LEXIS 32469 (11th Cir. Oct. 30, 2019)*: Continue reading →
Defendant was a parolee, and the parties argued over whether no suspicion was required for a parole search or reasonable suspicion. The government argued no suspicion required. The parole conditions didn’t specify, but state statute did, and reasonable suspicion is the standard. And the officers had it. United States v. Henley, 2019 U.S. App. LEXIS 32482 (3d Cir. Oct. 29, 2019). [Note: State law is irrelevant to federal cases arising from a state search (Virginia v. Moore) except only under the law of probation and parole searches because it informs reasonableness under Samson: Continue reading →
Defendant was subject to a valid search incident, and that included not only her purse, but also a pouch within her purse. State v. Richards, 2019 Wash. App. LEXIS 2772 (Oct. 29, 2019).
Officers saw defendant and others and ordered them to put their hands up. Two men did, but defendant didn’t and he started to turn a way. He wasn’t seized with the order since he refused to comply. He was instead seized when the officers grabbed him. People v. McMichaels, 2019 IL App (1st) 163053, 2019 Ill. App. LEXIS 861 (Oct. 29, 2019).
A crooked license plate justified defendant’s traffic stop because it was partially obscured. United States v. Sims, 2019 U.S. Dist. LEXIS 187313 (D. Kan. Oct. 28, 2019).*
Defense counsel wasn’t ineffective for not seeking a Franks hearing where there was no search warrant in the first place. Freeman v. United States, 2019 U.S. Dist. LEXIS 187171 (N.D. Ill. Oct. 29, 2019).
Defendant’s general consent to search a duffle bag for narcotics included consent to search a ledger book found in the bag, too. United States v. Colin, 2019 U.S. Dist. LEXIS 187054 (W.D. Tex. Oct. 29, 2019).*
A motion to suppress filed four days before trial is denied as untimely. United States v. Villa-Guillén, 2019 U.S. Dist. LEXIS 185672 (D.P.R. Oct. 28, 2019).*
Defendant discovered he was under surveillance at his motel and he fled. Officers came back to his room in 10 minutes, and seeing his car entered his room thinking he had doubled back. He did not abandon his privacy interest in the room. Nonetheless, the entry and protective sweep of the motel room were valid because the officers reasonably believed that defendant was in the room because after chasing him for 10 minutes, they lost sight of him, they had not stayed behind to watch the motel, and his truck was still parked in the motel parking lot. It was thus eminently reasonable for the officers to conclude that defendant had doubled back to the motel and taken refuge in his motel room. United States v. Ross, 2019 U.S. App. LEXIS 32363 (11th Cir. Oct. 29, 2019).
Second Circuit declines to find a Fourth Amendment malicious prosecution claim in a traffic ticket that is only an infraction, not a criminal accusation. Azeez v. City of New York, 2019 U.S. App. LEXIS 32345 (2d Cir. Oct. 29, 2019).
Posted in§ 1983 / Bivens, Abandonment, Protective sweep|Comments Off on CA11: RS supported a protective sweep for def after a police foot chase and officers having reason to believe he could have doubled back to the hotel room from where he started
The reasonable expectation of privacy in a hotel room expires with the checkout time. Lindsey v. State, 2019 Ga. App. LEXIS 623 (Oct. 29, 2019).
The defendant officers were properly entitled to summary judgment on plaintiff’s excessive force claim. Also, plaintiff threw the first punch. “[A] jury could find nothing other than that the force used by Sergeant Bickle, Officer Gallagher and Chief Brown, force which brought Peters under control and did not harm Peters, was not excessive.” Peters v. Brown, 2019 U.S. App. LEXIS 32490 (3d Cir. Oct. 30, 2019).*
Defendant’s claims the search warrant for his car was defective are moot because the search was valid under the automobile exception. United States v. Mejia, 2019 U.S. App. LEXIS 32373 (9th Cir. Oct. 29, 2019).
WaPo: ACLU sues FBI, DOJ over facial-recognition technology, criticizing ‘unprecedented’ surveillance and secrecy by Drew Harwell (“The American Civil Liberties Union on Thursday sued the Justice Department, the Drug Enforcement Administration and the FBI for records detailing their use of facial-recognition software, arguing that the agencies have secretly implemented a nationwide surveillance technology that threatens Americans’ privacy and civil rights.”)
Posted inSurveillance technology|Comments Off on WaPo: ACLU sues FBI, DOJ over facial-recognition technology, criticizing ‘unprecedented’ surveillance and secrecy
Posted inUncategorized|Comments Off on Lexology: Courts continue to consider intersection of Fourth Amendment and technology: without a warrant, retrieval of car’s electronic data unconstitutional, but surveillance on hunting property permissible
Defendant’s conscious refusal to submit to a DNA buccal swab sought by a search warrant could be argued as consciousness of guilt. Haas v. Commonwealth, 2019 Va. App. LEXIS 237 (Oct. 29. 2019).
The officer’s knowledge from nearly six months to as little as a month before the stop that defendant’s driver’s license was suspended was justification for the stop. United States v. Spence, 2019 U.S. Dist. LEXIS 18633 (W.D. Okla Oct. 28, 2019).*
During defendant’s stop, the officer concluded that defendant likely was under the influence of drugs. “Trooper Walker’s testimony provided specific facts as to why he reasonably suspected—almost immediately—that Defendant had committed a drug-related crime.” In addition to the driver’s license check, he also ran defendant through a prescription database that revealed no prescriptions in case that was the reason. That justified extending the stop. United States v. Fields, 2019 U.S. Dist. LEXIS 186298 (E.D. Ky. Oct. 2, 2019).*
Posted inReasonable suspicion, Warrant execution|Comments Off on VA: Def’s refusal to submit to a SW for DNA could be argued as consciousness of guilt at trial
Defendant has standing to challenge the search of a mobile home he had rented even though he had not fully moved in, and the trial court erred in concluding otherwise. The state’s argument the entry into the mobile home required a protective sweep is also rejected for lack of any justification of exigency. However, on all the evidence at trial, this was harmless. State v. Fuentes, 2019 Ariz. App. LEXIS 968 (Oct. 28, 2019).
Omission from the cell phone search warrant affidavit was that defendant was in jail during part of the time period so it was not “ongoing” for staleness purposes here was not a Franks violation. That time wasn’t material on these facts. United States v. Gentry, 2019 U.S. App. LEXIS 32238 (5th Cir. Oct. 28, 2019).*
Posted inFranks doctrine, Protective sweep|Comments Off on AZ: Protective sweep that produced a bullet casing was unjustified (but harmless)
Defendant’s reaching out of sight during a traffic stop was a furtive movement justifying extending the stop and seeing what he was doing. United States v. Edwards, 2019 U.S. Dist. LEXIS 185987 (E.D. Mich. Oct. 28, 2019).*
The protective sweep revealed only a small amount of marijuana in the bathroom, and they did not find a more substantial quantity of harder drugs hidden later found with a search warrant. There thus was an independent source. United States v. Melancon, 2019 U.S. Dist. LEXIS 186090 (E.D. La. Oct. 28, 2019).*
Defendant’s 2255 search claim has already been litigated on direct appeal, and it can’t be relitigated. United States v. Wade, 2019 U.S. Dist. LEXIS 185219 (N.D. Cal. Oct. 24, 2019).*
The stop was prolonged but it was defendant’s own stalling, so Rodriguez wasn’t violated. “The fact that Thompson and Dwyer did not issue any ticket for the window tinting or the obstructed brake lights is not relevant to the question of whether they had reasonable suspicion to believe those violations occurred.” United States v. Davis, 2019 U.S. Dist. LEXIS 186250 (S.D. Ill. Oct. 28, 2019).*
A search warrant was issued for defendant’s house for evidence of materials for arson. While there was no direct link to defendant and his committing arson, there was circumstantial evidence of his motive, and that’s affidavit’s focus. It was close questions, but a “totality-of-the-circumstances analysis supported the issuance of the warrant.” Alternatively, the good faith exception was satisfied. People v. Khan, 2019 Cal. App. LEXIS 1053 (6th Dist. Oct. 28, 2019).*
Posted inWarrant execution|Comments Off on techdirt: Cops: People In Their Own Homes Are In The Wrong Place At The Wrong Time Whenever A Cop Enters Unlawfully
The inventory of defendant’s car was not done according to any policy, and it is not justifiable under the automobile exception or as a protective search for weapons either. People v. Allen, 2019 CO 88, 2019 Colo. LEXIS 1077 (Oct. 28, 2019): Continue reading →
Posted inInventory|Comments Off on CO: Vehicle inventory fails where no showing of policy enabling it
When the police destroy your house in aid of the police power because of a barricaded suspect, it’s not a taking under the Fifth Amendment. [The Fourth Amendment is not cited.] Lech v. Jackson, 2019 U.S. App. LEXIS 32393 (10th Cir. Oct. 29, 2019): Continue reading →
Posted in§ 1983 / Bivens, Uncategorized|Comments Off on CA10: When the police destroy your house in aid of the police power because of a barricaded suspect, it’s not a taking under the 5A
SCOTUSblog: Argument preview: Can the police stop a vehicle because its registered owner’s license has been suspended or revoked? by Evan Lee (“Next Monday, November 4, the Supreme Court will hear argument in a case that asks whether it is reasonable to suspect that the registered owner of a vehicle is currently its driver. In Kansas v. Glover, the state of Kansas warns of a serious threat to public safety should the judgment of the Kansas Supreme Court be affirmed, while the driver, Charles Glover, warns of dangerous police discretion if it is reversed.”)
Posted inSCOTUS|Comments Off on SCOTUSblog: Argument preview: Can the police stop a vehicle because its registered owner’s license has been suspended or revoked?
"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.
