Defendant’s unsupported claim that the state judge who signed off on his search warrant that led to a federal indictment was under some unspecified investigation doesn’t warrant dismissal of the indictment. United States v. Hamda, 2019 U.S. Dist. LEXIS 163199 (N.D. Fla. Aug. 20, 2019).
Police had probable cause to arrest defendant and thus seize his phone. It was searched with a search warrant. The trial court’s conclusory findings are unsupported, and suppression is reversed. People v. Goga, 2019 Mich. App. LEXIS 5741 (Sept. 23, 2019).*
2255 petitioner fails to show that the search warrant here was obtained by false statements or a “fraud on the court” or that the affidavit or search warrant were defective in anyway. Hendricks v. United States, 2019 U.S. Dist. LEXIS 163436 (C.D. Ill. Sept. 24, 2019).*
Posted inFranks doctrine, Neutral and detached magistrate|Comments Off on N.D.Fla.: Unsupported allegation state judge signing SW was “under investigation” doesn’t warrant dismissal of indictment
The government obtained defendant’s cell phone from somebody else using it while he was in jail, and they sought a search warrant which was denied. Later they searched the phone and claimed defendant had no standing. The court finds defendant did have standing; however, he loses because the possessor of the phone had complete access and the ability to consent, which she did. United States v. Perry, 2019 U.S. Dist. LEXIS 163218 (E.D. Va. Aug. 19, 2019), adopted, 2019 U.S. Dist. LEXIS 162516 (E.D. Va. Sept. 23, 2019). The Katz-Jones dichotomy is worth reading: Continue reading →
Defendant’s challenge to 18 search warrants for Franks violations fails for not showing what was false provided by the affiant and for lack of materiality to the finding of probable cause. The failures of the source documents, if any, aren’t attributable to the government. United States v. Stone, 2019 U.S. Dist. LEXIS 163252 (D.D.C. Sept. 19, 2019)*: Continue reading →
Posted inFranks doctrine|Comments Off on D.D.C.: Roger Stone’s Franks challenge to 18 SWs “completely failed” for lack of govt falsity or materiality
Reason: A License for Outrageous Police Conduct by Jacob Sullum (“Qualified immunity protects cops from liability for actions that would land ordinary people in jail.”)
Posted inQualified immunity|Comments Off on Reason: A License for Outrageous Police Conduct
A car stuck in the snow at the end of the alley and defendant without the key fob is still mobile for the automobile exception. “Any temporary loss of mobility is insufficient to take Williams’s case outside the automobile exception.” United States v. Williams, 2019 U.S. Dist. LEXIS 162244 (D. Minn. Aug. 5, 2019).
The patrol officer came up behind defendant and observed him following too close and based the stop on that. Once stopped, the officer smelled marijuana coming from the car. State v. Gurley, 2019-Ohio-3824, 2019 Ohio App. LEXIS 3899 (9th Dist. Sept. 23, 2019).*
Posted inAutomobile exception, Plain view, feel, smell|Comments Off on D.Minn.: Car being stuck in snow and key fob not there doesn’t nullify application of the automobile exception
Petitioner appears to be attempting to challenge his federal conviction in state court in a parallel criminal proceeding where the same search was used in both cases. He’s attempting to challenge the search in state court by writ of error coram nobis, and it’s untimely. Joy v. State, 2019 Tenn. Crim. App. LEXIS 593 (Sept. 20, 2019).
Defendant parked in the middle of the road, an obvious traffic offense, and officers watching with binoculars saw a hand-to-hand drug sale. That was all probable cause. United States v. Smith, 2019 U.S. Dist. LEXIS 161483 (E.D. Mich. Sept. 23, 2019).*
Defendant was slumped over his steering wheel on the side of the road, and that was reasonable suspicion for the police to get him out of the car. They had enough for a patdown. United States v. Johnson, 2019 U.S. Dist. LEXIS 161631 (N.D. Miss. Sept. 23, 2019).*
Posted inProbable cause, Reasonable suspicion|Comments Off on TN: Belated writ of error coram nobis can’t be used in state court to challenge search that already was used in a federal case too to attempt to undo the federal case
A typical Fourth Amendment qualified immunity outcome on appeal: You need a case that’s obvious or a case substantially on point. Without it, you lose. Sightler v. Nisleit, 2019 U.S. App. LEXIS 28702 (9th Cir. Sept. 23, 2019)*: Continue reading →
Posted inQualified immunity|Comments Off on CA9: QI: without a case almost on point, you lose
The inventory of defendant’s vehicle violated LVMPD’s limited inventory policy, and it is found unreasonable. The government’s search incident alternative wasn’t presented to the trial court. Even assuming it was not waived, this was during a “detention” on less than probable cause and not an arrest. United States v. Franco, 2019 U.S. App. LEXIS 28709 (9th Cir. Sept. 23, 2019).
The police had seen movement in defendant’s house before the entry, and a protective sweep was factually justified. A search warrant for the house then the car followed. The search warrant for the car was clearly justified by probable cause because the house search didn’t turn up what they were looking for, and the car was the next logical place. State v. Cane, 2019 Conn. App. LEXIS 353 (Sept. 24, 2019).*
Posted inProtective sweep, Search incident|Comments Off on CA9: When defendant is being “detained” and not under arrest, search incident doesn’t apply
Defendant was stopped because of a crack in the windshield. He argued it wasn’t sufficiently cracked to be a violation of law. The point is, however, that the stop was at least justified by the crack. “To summarize, Officer Johnson conducted a lawful traffic stop of Mr. Foster’s vehicle for having a cracked windshield, and even if Officer Johnson was mistaken in believing that Mr. Foster’s windshield violated Arkansas law, he was justified in asking Mr. Foster and his female passenger for identification. Simply put, at no point during the March 5, 2019 traffic stop was Mr. Foster subjected to an unconstitutional seizure within the meaning of the Fourth Amendment.” The stop revealed defendant had a parole search waiver, and that led to the car being searched finding a firearm. United States v. Foster, 2019 U.S. Dist. LEXIS 161140 (W.D. Ark. Sept. 20, 2019).*
Defendant is a DART transit officer who arrested plaintiff for an objectively unreasonable reason without probable cause and a jury will decide. Adelman v. Branch, 2019 U.S. App. LEXIS 28508 (5th Cir. Sept. 20, 2019).*
Posted inQualified immunity, Reasonable suspicion|Comments Off on W.D.Ark.: Whether windshield was cracked enough to be a violation of traffic laws doesn’t matter, it was still cracked which was enough for a stop
On arresting defendant at home, the police later obtained a search warrant, too. The initial entry into the rest of the house to look for someone to tend to the children with defendant at the time of arrest was reasonable. State v. Stoermer, 2019-Ohio-3804, 2019 Ohio App. LEXIS 3867 (2d Dist. Sept. 20, 2019).
Defendant drove up to the entry control box of a gated community with a lot of new construction going on at night. He stopped at the entry point with his brakes on. The officer came back a few minutes later, and he was still there, stopped. The officer decided to observe because it was night time, and he wanted to be sure that the car belonged there and wasn’t there to steal construction items. Another car pulled in behind and flashed his lights. Defendant didn’t respond or move. That driver walked up to the window and came back to his car. The officer then approached defendant’s car, and he seemed to be going between being passed out and lethargic when he was talked to, when he responded. The officer had reasonable suspicion defendant was under the influence. The trial court erred in suppressing the stop. State v. Welch, 2019 Fla. App. LEXIS 14335 (Fla. 2d DCA Sept. 20, 2019).*
The Colombian government requested a U.S. telephone number, and then they wiretapped it under their law. Later, they provided some information off the wiretap to the U.S. This was not sufficiently a joint venture to invoke the Fourth Amendment. United States v. Agosto-Pacheco, 2019 U.S. Dist. LEXIS 161088 (D.P.R. Aug. 19, 2019), adopted, 2019 U.S. Dist. LEXIS 161090 (D.P.R. Sept. 20, 2019).
Defendant challenges the stop based on the description of his car being wrong. “[W]ith respect to the description of the suspect’s vehicle, the body camera footage and testimony of Officers Martell and Slater clearly establish that the suspect’s vehicle was consistently described as a silver two-door Dodge Challenger.” His description was also consistent. The court concludes that, on the totality, officers had probable cause to stop defendant. United States v. Williams, 2019 U.S. Dist. LEXIS 160428 (D. Minn. Sept. 20, 2019).*
Posted inForeign searches, Probable cause|Comments Off on D.P.R.: Colombia requesting U.S. telephone number so they could wiretap it didn’t make this a joint venture
Defendant fails to satisfy his Franks burden that the affidavit for the search warrant was intended to be misleading. The affidavit was for trafficking in firearms, but a CI’s statement also references drugs. Defendant’s conclusory allegations don’t satisfy the “substantial preliminary showing” requirement. “Moreover, with respect to the claim that the true purpose of the search warrant was to find evidence of firearms trafficking as opposed to drug trafficking, the fact that law enforcement may have had a dual purpose for executing the search warrant—even a purpose that was not disclosed to the issuing judge—does not automatically satisfy the Franks standard. Instead, the nondisclosure of information must have been intended to mislead.” As to the merits of the search warrant for an apartment, the court finds the record inadequate to resolve all the issues or even the good faith exception, and a hearing will be scheduled. United States v. Thompson, 2019 U.S. Dist. LEXIS 161136 (W.D. N.Y. Sept. 19, 2019).
Posted inFranks doctrine|Comments Off on W.D.N.Y.: The fact a SW affidavit for guns also suggests drugs doesn’t make a Franks issue; a SW can have a dual purpose but rely more heavily on one
Defendant was unreasonably and mistakenly arrested without the officer having the arrest warrant in hand as required by state law, and the search incident to the arrest is suppressed. The court finds Heien and the good faith exception inapplicable because of this fundamental error. Berry v. State, 2019 Ala. Crim. App. LEXIS 64 (Sept. 20, 2019), different result and conviction affirmed on rehearing, Berry v. State, 2020 Ala. Crim. App. LEXIS 9 (Jan. 17, 2020), posted Jan. 21, 2020.
Defendant concedes that his frisk was justified. The only question is whether the plain feel doctrine applies to the crunchy wad in his pocket, which the court finds it does because it was obvious to the officer it was methamphetamine. Gardner v. State, 2019 Ala. Crim. App. LEXIS 66 (Sept. 20, 2019).*
The impoundment and inventory of defendant’s rented car was reasonable under all the circumstances at the time it happened, and it was factually justified and not pretextual. It would have been left in a high crime area on private property, and it was easily susceptible to theft or vandalism or being broken into before defendant could return. United States v. Woodard, 2019 U.S. Dist. LEXIS 160756 (N.D. Okla. Sept. 20, 2019): Continue reading →
Posted inInventory|Comments Off on N.D.Okla.: Impoundment and inventory was non-pretextual and reasonable
An electronic search condition for this juvenile involved in car burglaries was reasonable in its inception, but it had to be narrowed. The court finds an electronic search condition reasonable because of the inordinate amount of time he spends on devices and communicating with friends, particularly the others involved in this crime spree. Remanded, however, to narrow it so it serves a rehabilitative purpose. In re Alonzo M., 2019 Cal. App. LEXIS 901 (1st Dist. Sept. 20, 2019): Continue reading →
Posted inCell phones, Probation / Parole search|Comments Off on Cal.1: An electronic device probation search condition is reasonable to aid rehabilitation; but here it needs to be narrower
"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.
