The case quickly fell apart when U.S. District Judge John Copenhaver found the only basis the officers used in their search warrant to state Figueroa “lived or stayed at” Sizemore’s was that they saw her in the house one time, they saw a car they connected her with parked there once, and they saw her leave the house once.
Posted in§ 1983 / Bivens, Franks doctrine, Warrant execution|Comments Off on WV Gazette: Officers found his $25K of heroin. He walked free, and now he’s suing police [for raiding the wrong house]
Defendant sort of raised a search claim as attacking a USSG enhancement, but the court finds that the enhancement applies no matter what. Martinez v. United States, 2019 U.S. Dist. LEXIS 154693 (D. N.M. Sept. 11, 2019).*
Defendant’s unconstitutional arrest led to his statement, and it is suppressed. No break in chain of events. United States v. Rollins, 2019 U.S. Dist. LEXIS 154677 (D. S.C. Sept. 11, 2019).*
“Even accepting Peake’s characterization of the video interview as accurate, it would not show that Officer Baker made ‘reckless and materially false statements’ in the search warrant affidavit that would need to be stricken.” It simply isn’t material to the probable cause finding. United States v. Peake, 2019 U.S. Dist. LEXIS 156102 (E.D. Va. Aug. 20, 2019).*
Posted inArrest or entry on arrest, Franks doctrine|Comments Off on D.N.M.: Search and seizure claim against USSG enhancement doesn’t have to be decided; it applies another way
Officers could approach defendant to talk to him because he generally fit the description and location of a person named in an arrest warrant. It turned out that he wasn’t the guy, but it doesn’t make it unreasonable to stop him. Miller v. State, 2019 Ga. App. LEXIS 497 (Sept. 9, 2019).
Police had an arrest warrant for a person also living at defendant’s address, and they entered on the arrest warrant and did a protective sweep. A sawed-off shotgun was found during the sweep, and it’s admissible and won’t be suppressed. United States v. Ford, 2019 U.S. Dist. LEXIS 107424 (N.D. Ind. June 27, 2019), on reconsideration, 2019 U.S. Dist. LEXIS 154555 (N.D. Ind. Sept. 11, 2019) (the parties’ mistake in their stipulation as to where gun actually was doesn’t change the outcome; it was still within plain view).
The affidavit for the search warrant shows plenty of probable cause. The alleged misstatements aren’t material at all. United States v. Aviles, 2019 U.S. App. LEXIS 27517 (3d Cir. Sept. 12, 2019).*
Posted inArrest or entry on arrest, Franks doctrine, Protective sweep|Comments Off on GA: Police were reasonable in stopping def because he looked like the guy wanted in an arrest warrant although it turned out he wasn’t the guy
Posted inStop and frisk|Comments Off on Sputnik International: ‘Inherently Racist’: Stop-And-Frisk Data Vindicates Activists’ Claims About DC Police Practice (opinion)
Two days after oral argument on a law firm’s appeal that a USMJ reviewed privileged materials seized from the firm by search warrant and not the USAO’s “filter team,” the Fourth Circuit orders the Magistrate to do it pending issuance of the opinion. United States v. Under Seal, 19-1730 (4th Cir. Sept. 12, 2019): Continue reading →
Posted inPrivileges, Warrant execution|Comments Off on CA4: USMJ must review law firm’s seized privileged materials, not USAO’s “filter team”
Petitioner’s 2255 Fourth Amendment claim was already decided on direct appeal and can’t be raised now. Felix v. United States, 2019 U.S. Dist. LEXIS 154587 (M.D. Fla. Sept. 11, 2019).*
Same with this state conviction. Haithcox v. State, 2019 MT 201, 2019 Mont. LEXIS 475 (Aug. 20, 2019).*
This is just fundamental collateral estoppel.
Posted inUncategorized|Comments Off on Search issues resolved on appeal can’t be considered in post-conviction
The warrantless search of defendant’s home was pretextual under the community caretaking function when there was no justification for it. The court also declines to adopt a “dead body rule.” State v. Boisselle, 2019 Wash. LEXIS 579 (Sept. 12, 2019): Continue reading →
Posted inCommunity caretaking function, Pretext|Comments Off on WA: Community caretaking function was a pretext to search for evidence, and search is suppressed
Posted inReasonable expectation of privacy|Comments Off on Legal Intelligencer: In Fight Over Nanny Cam Footage, Pa. Justices to Wrestle With Privacy Under Wiretap Law
City of Los Angeles v. Patel didn’t make the police look at a hotel registry a search. Defendants were suspected of bank fraud and aggravated identity theft in printing bogus checks and cashing them. Police went to a motel where they believed defendants were and asked to see the registry. The third-party doctrine applies. United States v. Sesay, 2019 U.S. App. LEXIS 27378 (8th Cir. Sept. 11, 2019).
Defendant officers don’t get qualified immunity at the pleading stage of this case because plaintiff alleges facts which constituted serious violations of rights including extortion that no “good faith” defense would apply to. Bradley v. Franklin, 2019 U.S. App. LEXIS 27344 (11th Cir. Sept. 11, 2019).*
Posted inQualified immunity, Third Party Doctrine|Comments Off on CA8: Patel didn’t bar police requesting look at hotel registry in looking for bank robbers; third-party doctrine applies
The officer had an objective basis for the stop, so defendant’s pretext claim fails. The dog sniff occurred almost immediately during the stop and the stop wasn’t prolonged for it. United States v. Martinez, 2019 U.S. Dist. LEXIS 155124 (N.D. Ohio Sept. 11, 2019).
When defendant’s car was stopped, there was reasonable suspicion he’d been involved in a bank robbery. The stop ripened to probable cause. United States v. Lewis, 2019 U.S. App. LEXIS 27394 (4th Cir. Sept. 11, 2019).*
The officer opening defendant’s car door was a search, but he stepped away when he was told the car wasn’t part of the search warrant. Shortly, however, there was a dog sniff of the car, and the dog alerted, and that permitted a search of the car. United States v. Bradley, 2019 U.S. Dist. LEXIS 155001 (W.D. Ky. Sept. 11, 2019).*
A traffic stop can be based on probable cause or reasonable suspicion of a traffic violation. The trial court credited that the officer believed a headlight was out, and the evidence supports that conclusion. State v. White, 2019 Iowa App. LEXIS 841 (Sept. 11, 2019).*
The 911 call involved an Audi and another car in a possible road rage incident. When the stop finally occurred, two cars were stopped, and defendant was in the second car. All were ordered out of the cars and searched and defendant had drugs. There was no reasonable suspicion for this passenger. Reversed. State v. Mai, 2019 Iowa App. LEXIS 867 (Sept. 11, 2019).*
The search of defendant’s purse was valid as a search incident. The court notes in a footnote that the state could have litigated abandonment but didn’t. State v. Schiebout, 2019 Iowa App. LEXIS 833 (Sept. 11, 2019).*
The trial court didn’t make specific findings that defendant consented to the taking of blood for a BAC test. So, the appellate court looks to the record and finds that the evidence supports a finding of consent and denial of the motion to suppress. O’Shields v. State, 2019 Ga. App. LEXIS 495 (Sept. 11, 2019).
Defendant’s CSLI claim was raised before Carpenter, and the Texas court decided the case on the state constitution but applied Fourth Amendment principles. SCOTUS GVR’ed this case and now it’s remanded back to the lower courts to decide the Fourth Amendment claim. The state constitutional claim is dismissed [as essentially moot]. Hankston v. State, 2019 Tex. Crim. App. LEXIS 859 (Sept. 11, 2019).
The court sides with the officer on the basis for the stop and doesn’t find the passengers, all relatives of the defendant, credible. The officer smelled marijuana, and that was a basis for continuing the stop. United States v. Turman, 2019 U.S. Dist. LEXIS 155181 (E.D. Mo. Sept. 11, 2019).*
This juvenile was subjected to a suspicionless bookbag search by school security in a St. Louis public school that found a gun. The court finds the search was reasonable based on the school safety factor alone. In the Interest of L.E., 2019 Mo. App. LEXIS 1418 (Sept. 10, 2019): Continue reading →
Posted inSchool searches, Special needs|Comments Off on MO: Suspicionless bookbag search at school was safety related and reasonable
A West Point cadet was the target of a child pornography investigation. HSI investigated it, and the Army CID didn’t violate the Posse Comitatus Act in being there but not doing anything. Hester v. United States, 2019 U.S. Dist. LEXIS 153312 (S.D. N.Y. Sept. 9, 2019).
The affidavit was not bare bones: it described a controlled buy and a CI’s statement to the officer. This affidavit is substantially the same as in United States v. Jones, 817 F.3d 489 (6th Cir. 2016). United States v. Palacio, 2019 U.S. Dist. LEXIS 153911 (E.D. Mich. Sept. 10, 2019).*
Petitioner’s successor 2255 raised a claim that his lawyer was ineffective for not effectively litigating his motion to suppress. That’s not a ground for a successor petition. Hernandez-Sanchez v. United States, 2019 U.S. Dist. LEXIS 155147 (W.D. Wash. Sept. 10, 2019).*
Posted inIneffective assistance, Probable cause|Comments Off on S.D.N.Y.: Army CID did not violate Posse Comitatus Act by watching CP investigation at West Point
PCMag: ICE Buys Smartphone Hacking Tech From Cellebrite by Michael Kan (“Cellebrite is best known for helping governments access data on locked cell phones. In June, ICE awarded it a contract worth up to $35 million, according to a federal filing.”).
Posted inCell phones|Comments Off on PCMag: ICE Buys Smartphone Hacking Tech From Cellebrite
Under 404(b), the officers will be permitted to testify at trial to controlled buys that led to the search warrant. United States v. Martinez, 2019 U.S. Dist. LEXIS 154066 (D. N.M. Sept. 10, 2019).
Defendants were stopped for speeding, and the officer approached from the passenger side and could smell marijuana in the car. He also saw a pine tree air freshener folded and stuck in the air vent, which was unusual. Then the stories of the two weren’t the same. There was then reasonable suspicion for a dog sniff. United States v. Yard, 2019 U.S. Dist. LEXIS 154326 (W.D. N.Y. May 14, 2019),* adopted, 2019 U.S. Dist. LEXIS 154157 (W.D. N.Y. Sept. 10, 2019).*
There was probable cause for a DNA sample, and the affidavit was not bare bones. It was substantial enough that the good faith exception had to apply and it would be egregious not to. United States v. Williams, 2019 U.S. Dist. LEXIS 154125 (M.D. Tenn. Sept. 10, 2019).*
Posted inDNA, Reasonable suspicion|Comments Off on D.N.M.: Controlled buys that led to SW come in through 404(b) or res gestae
The stop was for a traffic offense with probable cause. After a few questions, reasonable suspicion developed; United States v. Cole, 2019 U.S. Dist. LEXIS 154134 (C.D. Ill. Sept. 10, 2019); and it’s detailed and based in part on the officer’s knowledge about the vehicle and how it was licensed and insured: Continue reading →
Posted inReasonable suspicion|Comments Off on C.D.Ill.: RS based in part on officer’s knowledge of diversionary insuring after purchase of car
The Massachusetts court previously held that hearings on the issuance of criminal complaints are not presumptively public. A particular hearing was requested after the fact. The court holds that the issuing court must electronically record all such hearings and consider, in the interest of transparency, making hearing records public on request. Boston Globe Media v. Chief Justice of the Trial Court, 2019 Mass. LEXIS 508 (Sept. 9, 2019).
Visual observation of speeding is enough for a stop. State v. Lewis, 2019-Ohio-3630, 2019 Ohio App. LEXIS 3717 (5th Dist. Sept. 9, 2019).*
Posted inArrest or entry on arrest|Comments Off on MA: Hearings on criminal complaints don’t have to be open, but the record has to be later
Defendant succeeded in suppressing his cell phone, and the trial court erred in ordering defendant’s phone erased of the evidence suppressed before returning it. It was his property. Commonwealth v. Salmons, 2019 Mass. App. LEXIS 119 (Sept. 11, 2019): Continue reading →
Posted inRule 41(g) / Return of property|Comments Off on MA: Trial court erred in ordering cell phone purged of potential evidence as a condition of returning it after it was suppressed
"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.
