IRS seizure of funds in the registry of the court invades no Fourth Amendment interest of the taxpayer. United States v. Bigley, 2019 U.S. Dist. LEXIS 142220 (D. Ariz. Aug. 20, 2019).*
No showing that ICE raid was conducted egregiously in violation of the Fourth Amendment. Romero-Yanez v. Barr, 2019 U.S. App. LEXIS 24080 (9th Cir. Aug. 13, 2019);* Silva-Angon v. Barr, 2019 U.S. App. LEXIS 24076 (9th Cir. Aug. 13, 2019).*
Defendant concedes there is a link shown to him for robbery in the affidavit for search warrant, and there is probable cause for the search warrant. United States v. Gladney, 2019 U.S. Dist. LEXIS 142729 (E.D. Mo. Aug. 22, 2019).*
Posted inSeizure|Comments Off on D.Ariz.: IRS seizure of funds in registry of court not 4A violation
“It is well-established that a ‘person may not be arrested, or must be released from arrest, if previously established probable cause has dissipated.’ United States v. Ortiz-Hernandez, 427 F.3d 567, 574 (9th Cir. 2005) (per curiam). ‘As a corollary … of the rule that the police may rely on the totality of facts available to them in establishing probable cause, they also may not disregard facts tending to dissipate probable cause.’ Id. (quoting Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988)). A reasonable officer would know that participation in an ongoing seizure after any probable cause had dissipated violates the Fourth Amendment.” Detaining plaintiffs for five hours after probable cause dissipated was unreasonable. Nicholson v. City of L.A., 2019 U.S. App. LEXIS 24902 (9th Cir. Aug. 21, 2019).
The omissions from the search warrant affidavit weren’t material, and there was plenty for probable cause. United States v. Nichols, 2019 U.S. App. LEXIS 24793 (9th Cir. Aug. 20, 2019).*
First time CI’s admission of own criminal involvement bolstered his credibility for use in probable cause. State v. Mendoza, 2019-Ohio-3382, 2019 Ohio App. LEXIS 3457 (10th Dist. Aug. 22, 2019).
There was probable cause for issuance of the search warrant. But, even if there wasn’t, the warrant had substantial support for the good faith exception from the results of a traffic stop, defendant’s criminal history, anonymous tips, and detailed and fresh information from defendant’s girlfriend. United States v. Adams, 2019 U.S. App. LEXIS 24741 (7th Cir. Aug. 20, 2019).*
Mere negligence in an alleged false statement in a search warrant affidavit isn’t enough to overcome qualified immunity for a civil Franks claim. Butler v. City of Detroit, 2019 U.S. App. LEXIS 25062 (6th Cir. Aug. 22, 2019): Continue reading →
Posted inFranks doctrine, Qualified immunity|Comments Off on CA6: Mere negligent inclusion of information in SW affidavit doesn’t overcome QI for civil Franks claim
Having been shot, defendant did not abandon his car when he drove to the ER and went in, leaving his keys in the car at the entrance. The fact the battery was dead in the car didn’t remove the exigency. The subsequent search of the car was valid under the automobile exception. United States v. Fulton, 2019 U.S. Dist. LEXIS 142936 (W.D. Tenn. Aug. 22, 2019).
The court finds that the officers would have sought a search warrant if consent had been refused. There was also probable cause at that point. United States v. Anguiano, 2019 U.S. App. LEXIS 24754 (8th Cir. Aug. 20, 2019).*
Posted inAbandonment, Automobile exception, Inevitable discovery|Comments Off on W.D.Tenn.: Driving one’s car to ER and going in isn’t abandonment; dead battery doesn’t remove exigency for automobile exception
Any violation of the 48 hour rule to get defendant a judicial probable cause determination before further detention has nothing to do with seizures occurring before that. State v. Gedeon, 2019-Ohio-3348, 2019 Ohio App. LEXIS 3426 (9th Dist. Aug. 21, 2019).
Defendant’s stop was valid, so his argument of consent after an illegal stop fails. United States v. McNulty, 2019 U.S. Dist. LEXIS 142927 (D. Mont. Aug. 22, 2019).*
The body camera supports the conclusion that the officer smelled marijuana, then saw some in the car, then entered the car and found the firearm. The search was reasonable. United States v. Fulton, 2019 U.S. Dist. LEXIS 141940 (W.D. Tenn. Aug. 21, 2019).*
Posted inArrest or entry on arrest|Comments Off on OH9: Any violation of 48 hour rule for PC determination has no effect on seizures prior to it
Defendant was found passed out in a car. Defendant’s cell phone was seized as evidence, apparently of how he almost OD’d. An accidental glimpse at defendant’s phone revealed a thumbnail of potential child pornography. The district court applied the wrong standard for applying Riley and inevitable discovery and even the exclusionary rule and good faith exception, and the case is remanded. United States v. Evans, 2019 U.S. App. LEXIS 24895 (6th Cir. Aug. 21, 2019): Continue reading →
Posted inCell phones, Good faith exception|Comments Off on CA6: District Court’s limited record prevents finding cell phone search was reasonable or inevitable discovery or GFE applied
Pointing a gun for two minutes at nonthreatening teenagers in a car wreck violated clearly established Fourth Amendment law. Vanderhoef v. Dixon, 2019 U.S. App. LEXIS 24897 (6th Cir. Aug. 21, 2019).
Plaintiff is a frail 76-year-old man who came to a fire at his store to make sure the police and fire department had the keys. He ended up on the ground handcuffed and then kneed to the back and was injured. He shows enough of a fact dispute to get around qualified immunity. Judd v. City of Baxter, 2019 U.S. App. LEXIS 24892 (6th Cir. Aug. 21, 2019).
Also: Butler v. City of Detroit, 2019 U.S. App. LEXIS 25062 (6th Cir. Aug. 22, 2019) (no QI for excessive force against compliant person).
Posted inExcessive force, Qualified immunity|Comments Off on CA6: Pointing gun at teenagers in a car wreck for no apparent reason violated clearly established 4A law
2255 petitioner makes his case that defense counsel was ineffective for not moving to suppress the impoundment and search of his car as illegally parked because it wasn’t. Counsel’s wife was seriously ill, and he was out of the office for two months which added to the problem. Still, if a motion to suppress had been filed, it likely would have been granted. United States v. Gladden, 2019 U.S. Dist. LEXIS 141483 (S.D. N.Y. Aug. 20, 2019):* Continue reading →
Calling an out of time motion to suppress a motion in limine doesn’t get around the time limits. It was 14 months too late, and trial starts tomorrow. United States v. Fígaro-Benjamín, 2019 U.S. Dist. LEXIS 141655 (D. P.R. Aug. 19, 2019).
Defendant’s Fourth Amendment claim was defaulted before trial, and it can’t be raised on post-conviction. Tam Sing v. United States, 2019 U.S. Dist. LEXIS 140170 (C.D. Cal. Aug. 20, 2019).*
Who signed an arrest warrant is not ground for recusal. United States v. Fourstar, 2019 U.S. Dist. LEXIS 141270 (D. Mont. Aug. 21, 2019).*
Posted inArrest or entry on arrest, Burden of pleading|Comments Off on D.P.R.: Calling an out of time motion to suppress a motion in limine doesn’t get around the time limits
The fact a drug dog alerts on residual odor doesn’t mean there was a false positive. “Our review of the record and the order denying suppression satisfies us the judge conducted the proper Harris evaluation and committed no error in concluding Rex’s satisfactory certification and training provide sufficient reason to trust his alert or in concluding Rex’s training on residual odors is acceptable.” United States v. Simon, 2019 U.S. App. LEXIS 24929 (7th Cir. Aug. 21, 2019).
“The record supports the district court’s findings that the post-arrest protective sweep was permitted given that the officers had reasonable grounds to believe that there were both unsecured weapons and unsecured people in the home, posing a security risk to officers on the scene.” United States v. Jurado-Garcia, 2019 U.S. App. LEXIS 24934 (5th Cir. Aug. 21, 2019).*
Posted inDog sniff, Protective sweep|Comments Off on CA7: Dog alert on apparent residual odor isn’t a false positive under Harris
Defendant was in Rikers and called his codefendant. The calls were admissible and were not the product of an unreasonable search because he was warned of the recording. People v. Boyd, 2019 NY Slip Op 06219, 2019 N.Y. App. Div. LEXIS 6198 (2d Dept. Aug. 21, 2019).
Defendant procedurally defaulted his GPS tracking claim by abandoning his appeal. And, it doesn’t matter because nothing from it was used at the trial. Barnes v. United States, 2019 U.S. Dist. LEXIS 140749 (E.D. Mo. Aug. 20, 2019).*
Defendant’s 2255 Fourth Amendment claim was defaulted in the district court and doesn’t rely on an ineffective assistance claim. Bankston v. United States, 2019 U.S. Dist. LEXIS 141482 (N.D. Ohio Aug. 21, 2019).*
Posted inPrison and jail searches|Comments Off on NY2: Jail call to codefendant from Rikers was admissible
Dog alert on a car alone didn’t give probable cause to search a passenger. State v. Chapman, 2019-Ohio-3339, 2019 Ohio App. LEXIS 3422 (7th Dist. Aug. 20, 2019): Continue reading →
Posted inDog sniff|Comments Off on OH7: Dog alert on a car alone didn’t give PC to search passenger
Issue preclusion and full faith and credit deny federal courts the ability to determine a Fourth Amendment damages claim in an action after the state court denied suppression. Wade v. Barr, 2019 U.S. App. LEXIS 24723 (7th Cir. Aug. 20, 2019).
Defendant was searched when he showed up at a house being searched by the police [Why do people do that?], and he was arrested, too. His appeal is dismissed for lack of a proper certified question. State v. Mitchell, 2019 Tenn. Crim. App. LEXIS 507 (Aug. 21, 2019).*
Posted inAbstention|Comments Off on CA7: After state court affirms denial of motion to suppress, issue preclusion and abstention bar damages suit
“The summary judgment facts, as determined by the district court, are that Ryan posed no threat to the officers or others to support firing without warning. The ‘Officers had the time and opportunity to give a warning and yet chose to shoot first instead.’ This is an obvious case. Indeed, Officer Hunter conceded that he would have had no basis to fire upon Ryan unless Ryan had been facing him and pointing a gun at him. [¶] This case is obvious when we accept the facts as we must. It is also informed by our precedent. Before 2010, Baker v. Putnal established clearly that Cassidy’s and Hunter’s conduct—on the facts as we must take them at this stage—was unlawful.” Cole v. Carson, 2019 U.S. App. LEXIS 24807 (5th Cir. Aug. 20, 2019).*
Plaintiff doesn’t state a claim for relief for abuse of process when he was tested in custody for HIV and hepatitis under state law. He effectively admits that the state could do so. Bracey v. Huntingdon County, 2019 U.S. App. LEXIS 24783 (3d Cir. Aug. 20, 2019).*
Posted inBody searches, Excessive force|Comments Off on CA5: At summary judgment stage, “[t]his is an obvious case” that can’t be resolved on summary judgment
Defendant was an overnight guest with standing. His host’s consent was coerced by the police and wasn’t voluntary. United States v. Powell, 2019 U.S. Dist. LEXIS 141017 (M.D. Fla. July 16, 2019)*: Continue reading →
Posted inConsent, Standing|Comments Off on M.D.Fla.: Guest’s host’s consent was coerced and suppressed
The officer was justified in seizing defendant’s cell phone when there was probable cause and it appeared that defendant might be deleting things from it. Also, no great detail required to identify a cell phone for a search warrant. Gutierrez v. State, 2019 Tex. App. LEXIS 7316 (Tex. App. – Houston (14th Dist.) Aug. 20, 2019): Continue reading →
Posted inCell phones, Emergency / exigency|Comments Off on TX14: Exigency permitted seizure of cell phone where officer thought def was deleting things from it anticipating its search
With probable cause to believe that a vehicle has evidence in it, the automobile exception allows entry into a locked container (here a locked box) inside the vehicle. Also, a police officer following a car is not a seizure. United States v. Hylmon, 2019 U.S. Dist. LEXIS 141210 (E.D. Tenn. June 26, 2019), adopted, 2019 U.S. Dist. LEXIS 140572 (E.D. Tenn. Aug. 20, 2019).
The video of the traffic stop does not undermine the findings of fact that the state trooper testified that he could smell marijuana in the case. A subsequent search of the passenger compartment turned up none except for an Oxy pill. The search of defendant’s person thereafter turned up more pills. The searches were valid. State v. Farrow, 2019-Ohio-3311, 2019 Ohio App. LEXIS 3399 (9th Dist. Aug. 19, 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.
