Defendant concedes officers had probable cause. Just because they had advance notice defendant was coming because of the breadth of their investigation, the automobile exception allowed a vehicle search because of the mobility of the car. Advance notice still doesn’t require a search warrant for a vehicle when the automobile exception would otherwise apply. United States v. Johnson, 2019 U.S. Dist. LEXIS 160447 (D. Neb. Sept. 20, 2019), adopting, 2019 U.S. Dist. LEXIS 160768 (D. Neb. Aug. 5, 2019).
There was reasonable suspicion for a frisk. Defendant wouldn’t keep his hands visible, and the officer could see a bulge at his waistband. When they were trying to gain control of defendant, one of the officers felt the gun and shouted “GUN.” United States v. Byron, 2019 U.S. Dist. LEXIS 160461 (D. Mass. Sept. 20, 2019).*
Hearsay is specifically admissible in suppression hearings [and issuing search warrants] under Rule 104(a). [After all, that’s how informant hearsay and collective knowledge work.] The court credits one officer as to what another told him in the probable cause for the search of defendant’s car. United States v. Todd, 2019 U.S. Dist. LEXIS 160316 (N.D. Ga. Aug. 28, 2019), adopted, 2019 U.S. Dist. LEXIS 159555 (N.D. Ga. Sept. 19, 2019).
The 46 page search warrant application on the totality provided probable cause for issuance of the search warrant for a tracking device on defendant’s car, or at least a substantial basis for crediting that there was probable cause. United States v. Hasson, 2019 U.S. Dist. LEXIS 160498 (D. Md. Sept. 20, 2019).*
Plaintiff’s claim that an IRS CID investigator had to watch her go to the bathroom just in case she was hiding evidence survived a qualified immunity challenge. The right to bodily privacy was established at the time, and the officer’s claim that it was necessary wasn’t borne out by the facts. Plaintiff’s husband had to use the bathroom a half hour earlier during the search and nobody watched him. Ioane v. Hodges, 2019 U.S. App. LEXIS 28475 (9th Cir. Sept. 19, 2019): Continue reading →
Posted inBody searches, Qualified immunity|Comments Off on CA9: IRS agent’s need to watch ptf pee during SW was unreasonable; they didn’t do that to her husband when he did
Defendant’s traffic stop was justified for stopping in the crosswalk before turning on red. The search of the car was found by the trial court with probable cause and justified by the search incident doctrine and the automobile exception. Defendant only challenges search incident on appeal, and it was justified by search incident because of the probable cause. Defendant abandoned the automobile exception argument. Affirmed without prejudice to a post-conviction petition. Jones v. State, 2019 Fla. App. LEXIS 14244 (Fla. 5th DCA Sept. 20, 2019).* Continue reading →
Defendant in post-conviction raises seizure of a Western Union document from Kroger. First, that’s defaulted. Second, it’s admissible through the third-party doctrine. State v. Young, 2019-Ohio-3819, 2019 Ohio App. LEXIS 3873 (6th Dist. Sept. 20, 2019).*
Defendant’s guilty plea waives his 2255 claim that his wiretap warrant was complete fabrication. Burton v. United States, 2019 U.S. Dist. LEXIS 160047 (N.D. Ohio Aug. 5, 2019).*
Playpen warrant sustained. This circuit has already ruled, too, as recently as a month ago. United States v. Barnes, 2019 U.S. App. LEXIS 28454 (11th Cir. Sept. 20, 2019).*
Posted inThird Party Doctrine|Comments Off on OH6: Search claim can’t be raised on post-conviction, but def would lose on merits anyway
Plaintiff stated a claim that she was unreasonably seized in her home without probable cause or a warrant for a psych evaluation. Qualified immunity denied. Rudolph v. Atkinson, 2019 U.S. App. LEXIS 28477 (6th Cir. Sept. 20, 2019)*: Continue reading →
A federal tort claims act case was properly stated for an American citizen plaintiff’s four day detention in an immigration facility as lacking probable cause. Hernandez v. United States, 2019 U.S. App. LEXIS 28081 (2d Cir. Sept. 17, 2019).
Defendant is denied qualified immunity for taking down the plaintiff for alleged minor offenses when he wasn’t resisting and then using excessive force against him while down. McKibben v. Knuth, 2019 U.S. App. LEXIS 28347 (9th Cir. Sept. 19, 2019).*
The car that was searched was being hauled by a car carrier. By turning over a car to a car hauler, the car hauler has complete possession and actual and apparent authority to consent to a search, and the person turning over the car has waived his reasonable expectation of privacy. United States v. Alatorre, 2019 U.S. Dist. LEXIS 159858 (D. Minn. July 22, 2019), adopted, 2019 U.S. Dist. LEXIS 161314 (D. Minn. Sept. 18, 2019).
2255 petitioner can’t show that this counsel didn’t competently litigate his suppression issue. The search was based on consent, and defendant pled guilty which is a waiver of his Fourth Amendment claims. He can’t show that a motion to suppress had any chance of success. United States v. Mackey, 2019 U.S. Dist. LEXIS 159925 (N.D. Fla. Aug. 19, 2019),* adopted, 2019 U.S. Dist. LEXIS 158933 (N.D. Fla. Sept. 17, 2019).*
Defendant’s stop was pretextual, but it was with an objective basis. He was leaving a funeral at night with overtinted windows, and the officer couldn’t see inside. He was repeatedly asked about firearms in the car, something unrelated to the stop and without any reasonable suspicion. Q: “Is there maybe a gun in there? It’s not a big deal; I promise. I swear to God, it ain’t a big deal. I understand, you’ve gotta protect yourself.” A: “My gun’s in there.” Defendant was pulled out and handcuffed for “detention,” not arrest. The questions about a “little bit of bud” and the gun were unrelated to the stop, unreasonably extended it, and the motion to suppress is granted. United States v. Eberhardt, 2019 U.S. Dist. LEXIS 159837 (W.D. Ky. Sept. 19, 2019).
Remanded for factual findings that support the denial of the motion to suppress. The state contended a lack of standing in a shed behind a house, and, in a factually similar case, the defendant there disclaimed ownership of the shed. Here, the defendant didn’t. The findings don’t provide support for the trial court’s order. State v. Albritten, 2019 Ga. App. LEXIS 506 (Sept. 18, 2019).*
Posted inReasonable suspicion|Comments Off on W.D.Ky.: Questions about def having a firearm were unrelated to the basis of the stop; suppression granted
2255 petitioner’s claims include one that the search should have been suppressed for state officers not leaving a copy of the search warrant at the site of the search. That’s not a constitutional defect. It’s a Rule 41 requirement, but this is a state search warrant, and it hardly ever leads to suppression. Miller v. United States, 2019 U.S. Dist. LEXIS 159708 (E.D. Mo. Sept. 18, 2019).
Defendant raises his search issue again in a motion for new trial. Still, nothing shows he had standing in the vehicle, and nothing’s changed since the prior denial. United States v. Littlejohn, 2019 U.S. Dist. LEXIS 158658 (W.D. N.C. Sept. 18, 2019).*
Posted inWarrant execution|Comments Off on E.D.Mo.: No const’l requirement copy of SW be left at site of search
“Both the issuing judge and the reviewing court should take a totality of the circumstances approach in their review of the affidavit, rather than scrutinize the affidavit line-by-line.” A generalized allegation of “errors” is insufficient to get a Franks hearing. United States v. Carter, 2019 U.S. Dist. LEXIS 159406 (W.D. Ky. Sept. 19, 2019)*: Continue reading →
Posted inProbable cause|Comments Off on W.D.Ky.: “Both the issuing judge and the reviewing court should take a totality of the circumstances approach in their review of the affidavit, rather than scrutinize the affidavit line-by-line.”
While Carpenter is a “new rule,” courts on post-conviction haven’t been applying it, and this court does not either. State v. Neil, 2019-Ohio-3793, 2019 Ohio App. LEXIS 3843 (10th Sept. 19, 2019): Continue reading →
Posted inCell site location information|Comments Off on OH10: While Carpenter is a “new rule,” it’s not been applied in post-conviction proceedings
Defendant consented to a search of his motel room, and he was twice told he had the right to refuse a consent search. State v. Savage, 2019 Tenn. Crim. App. LEXIS 582 (Sept. 19, 2019).
Defendant wasn’t seized when he was first approached and talked to by a PRPD officer. “By extension, the defendant had not been seized when he showed the officer the content of the open bag.” “When the officer observed the content of the bag, he recognized the type of packaging used for heroin. At that point, he had probable cause to arrest the defendant, and did so.” United States v. Sierra-Ayala, 2019 U.S. Dist. LEXIS 159172 (D. P.R. Sept. 14, 2019).*
Defendant came out of woods and walked up to three officers and talked to them for 2-3 minutes. The encounter was consensual and not a seizure. His path was not blocked, and it wasn’t confrontational. United States v. Oden, 2019 U.S. App. LEXIS 28024 (11th Cir. Sept. 18, 2019).*
Posted inConsent|Comments Off on TN: Defendant’s consent was voluntary; he was twice told he could refuse
Knowing that defendant and his confederates talked about drug transactions on Facebook messenger, the limited search warrant for that was based on probable cause, and a message was recovered referring to acquiring a “ball” and it was almost certainly an “eight-ball” and not sports equipment. Here, however, the search warrant was way too overbroad under United States v. Blake, 868 F.3d 960 (11th Cir. 2017), seeking the entirety of the account for 10 months. “The search warrant that was issued in this case essentially allowed law enforcement to ‘rummage’ through Buck Hamilton’s entire digital life on Facebook, limited only temporally. The Sixth Circuit has not addressed this issue specifically. Based on case law from other circuits and Fourth Amendment case law generally, however, the Court concludes the search warrant at issue here lacked particularity.” A computer search warrant can be broad because of hiding files, but that’s not even an argument with a Facebook search warrant. Still, the good faith exception saves this warrant. It sure wasn’t bare bones going in. United States v. Hamilton, 2019 U.S. Dist. LEXIS 159077 (E.D. Ky. Aug. 30, 2019).
Posted inGood faith exception, Social media warrants|Comments Off on E.D.Ky.: Ten months of Facebook seizure was way overbroad, but the govt gets the benefit of the GFE
The Coast Guard boarded a Bahamian ship when it arrived in port in Delaware to inspect its potential for oil discharge and pollution. At issue was the oily water separator which was observed in operation, and this led to the ship’s owners indictment. The owner moved to suppress the inspection. “If a Coast Guard official develops a reasonable suspicion of criminal activity during a safety and document inspection, she may search the vessel without a warrant. United States v. Varlack Ventures, Inc., 149 F.3d 212,217 (3d Cir. 1998).” The limited inspection provided that. United States v. Chartworld Shipping Corp., 2019 U.S. Dist. LEXIS 158609 (D. Del. Sept. 11, 2019).
Defendant drove into a crowd of people, backed up and tried to drive off and ran into a car. He was stopped for suspicion of DUI. He gave actual consent to the blood test, and application of Birchfield doesn’t have to be addressed. People v. Nzolameso, 2019 Cal. App. LEXIS 878 (2d Dist. Sept. 17, 2019),* modified, 2019 Cal. App. LEXIS 956 (2d Dist. Oct. 1, 2019).*
Posted inAdministrative search, Consent|Comments Off on D.Del.: Coast Guard’s search of a ship after failure of an oily water test was reasonable under the 4A
The affidavit for a search warrant based in part on a dog sniff doesn’t have to also justify the dog’s training to show probable cause. Failure to provide it isn’t a Franks violation. United States v. Tullous, 2019 U.S. Dist. LEXIS 158266 (W.D. Tenn. July 25, 2019), adopted, 2019 U.S. Dist. LEXIS 156746 (W.D. Tenn. Sept. 13, 2019).
Playpen warrant sustained. The circuit has already ruled on that issue. United States v. Caswell, 2019 U.S. App. LEXIS 27910 (11th Cir. Sept. 17, 2019).*
2255 petitioner’s claim that his supervised release arrest warrant wasn’t supported by probable cause is denied, and a certificate of appealability is denied. United States v. Palacio, 2019 U.S. App. LEXIS 27913 (5th Cir. Aug. 13, 2019).*
Posted inDog sniff, F.R.Crim.P. 41|Comments Off on W.D.Tenn.: Affidavit for SW doesn’t need to support drug dog’s training, too
The defendants observed plaintiff’s actions and they saw probable cause to believe he committed trespass. Therefore, the false arrest claim fails. His excessive force claim, however, survives summary judgment. Using the criminal trial testimony wasn’t particularly helpful or controlling because the incentive to litigate was different there. The minutiae of the excessive force claim wouldn’t come out there. Baysa v. Gualtieri, 2019 U.S. App. LEXIS 27914 (11th Cir. Sept. 17, 2019).*
Posted inQualified immunity, Reasonableness|Comments Off on CA11: Criminal trial record not fully binding on ptf who was on trial there because incentives to litigate were different
Defendant’s cell phone was seized from his car when it was impounded after a high speed chase. The fact it was omitted from the inventory sheet does not make its seizure unreasonable. It was ultimately searched with a search warrant. United States v. Garay, 2019 U.S. App. LEXIS 27908 (9th Cir. Sept. 17, 2019).
The district court suppressed defendant’s stop and frisk outside and next door to a house being searched under a warrant. On the totality of circumstances, however, the officers had reasonable suspicion as to him based on observations earlier in the evening. Reversed. United States v. McElrath, 2019 U.S. App. LEXIS 27905 (6th Cir. Sept. 17, 2019).*
Posted inInventory, Stop and frisk|Comments Off on CA9: Failure to list a cell phone on the inventory sheet doesn’t void its seizure
“Second, Harris asserts that the inconsistencies between Gilbert’s and Wilbanks’s testimony undercut the district court’s credibility finding. This is a steep hurdle for Harris because the district court is ‘in the best position to judge credibility’ and we will not disturb its factual findings when it plausibly resolves discrepancies in the testimony. United States v. Bradshaw, 102 F.3d 204, 210 (6th Cir. 1996). Admittedly, there are several inconsistencies in the testimony.” Still, the district court is the determiner of credibility of witnesses in consent claims. United States v. Harris, 2019 U.S. App. LEXIS 27901 (6th Cir. Sept. 17, 2019).
The bail bond company argues that a Fourth Amendment waiver in a bail bond was constitutionally void, and that renders the bond void. The Fourth Amendment waiver issue is unresolved in California, but that has nothing to do with the bondsman’s liability. People v. Fin. Cas. & Sur., 2019 Cal. App. LEXIS 876 (4th Dist. Sept. 17, 2019).*
Posted inConsent|Comments Off on CA6: District Court’s credibility determination underlying consent to search aren’t reviewable
Defendant was an anti-abortion protestor with a sound system, and he was detained for a noise violation after officers with a 3M sound meter found him over the sound ordinance limit. He was to be arrested for that and he resisted. He raised on appeal that his arrest was unlawful; so therefore his arrest for resisting arrest was unlawful. He didn’t raise that in the trial court and can’t on appeal. State v. Pavkovic, 2019 N.C. App. LEXIS 761 (Sept. 17, 2019).
Petitioner’s proffer does not show an egregious violation of the Fourth Amendment to allow the exclusionary rule to apply to immigration searches. Euceda v. Barr, 2019 U.S. App. LEXIS 27822 (9th Cir. Sept. 16, 2019).*
"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.
