“Wren cannot meet the statutory criteria for filing a second or successive § 2255 motion. First, even assuming that the search warrant is ‘newly discovered’ insofar as it had been sealed, it does nothing to establish by clear and convincing evidence that no reasonable juror would have found him ‘guilty of the offense.’ 28 U.S.C. § 2255(h)(1). The warrant in no way suggests that he did not factually commit the crimes for which he was convicted.” In re Wren, 2019 U.S. App. LEXIS 24485 (6th Cir. Aug. 16, 2019).
Search claims generally can’t be brought via a successor petition. United States v. Kimball, 2019 U.S. App. LEXIS 24592 (6th Cir. Aug. 19, 2019).
Defendants get qualified immunity for an arrest on an arrest warrant they sought that was based at least on “arguable probable cause.” Just because there was a fact question for a criminal case doesn’t mean it was without any probable cause. They reasonably relied on the arrest warrant and the judicial finding of probable cause. Thus: qualified immunity. Stefani v. City of Grovetown, 2019 U.S. App. LEXIS 24495 (11th Cir. Aug. 16, 2019).*
Posted inAbstention, Qualified immunity|Comments Off on CA11: A late discovered search claim doesn’t support a successor 2255 petition
Defendant was ID’ed by the police from surveillance videos, and it was a false statement that they could ID him without seeing his face. The search warrant to photograph his tattoos was issued with probable cause. United States v. Mitchell, 2019 U.S. Dist. LEXIS 138799 (N.D. Ga. Aug. 16, 2019).
Defendant was arrested with a warrant for his DNA. He was asked for consent to search his cell phone which he gave when he found out it might be a while before a search warrant was drafted and the search occurred. Then he was confronted with the contents of the phone and he attempted to lawyer up and not talk. United States v. Mathis, 2019 U.S. App. LEXIS 24516 (11th Cir. Aug. 16, 2019).*
Posted inConsent, Franks doctrine|Comments Off on N.D.Ga.: Officer’s SW affidavit that said def could be ID’ed from his tattoos without seeing his face wasn’t false
Defendant’s handcuffing and removal to the police station for interrogation could not be justified by Summers and was without probable cause. He was held eight hours and interrogated. United States v. Mitchell, 2019 U.S. Dist. LEXIS 139026 (N.D. Ga. June 24, 2019).
Defendant left the place about to be searched under a warrant, and he was stopped. “The fact that the officers involved were proceeding under the belief that the search warrant also authorized the search of Cousan’s person is of no moment since there was probable cause to arrest him at the time of the search and detention.” Alternatively, there was reasonable suspicion that ripened into probable cause. State v. Cousan, 2019 OK CR 16, 2019 Okla. Crim. App. LEXIS 18 (Aug. 16, 2019).
Posted inProbable cause, Seizure|Comments Off on N.D.Ga.: Def’s removal for questioning and 8 hour detention could’t be justified under Summers
Police received an anonymous call that a particular van was DUI. An officer found the van parked at a gas station, parked far enough away that defendant could back out, and he walked up and asked how defendant was doing, and this was not a stop. He developed reasonable suspicion for more from that. State v. Sharpfish, 2019 SD 49, 2019 S.D. LEXIS 78 (Aug. 14, 2019).
The search warrant was sufficiently particular for execution by the officer who sought it. Besides, the good faith exception also applies to particularity claims. United States v. Piper, 2019 U.S. Dist. LEXIS 139195 (W.D. Mo. July 30, 2019).*
Posted inGood faith exception, Seizure|Comments Off on SD: Def wasn’t stopped by the officer when he encountered car based on anonymous call
“After finding a bag of white powder in Harrison’s hair — which she admitted to the arresting officer was cocaine — and observing a suspicious baggie and a large amount of cash in plain view, the officers had a ‘reasonable basis’ to believe they might find additional drugs in the Camry in which Harrison, an arrestee, was a passenger.” Thus, the search incident exception applies. United States v. Norman, 2019 U.S. App. LEXIS 24312 (4th Cir. Aug. 15, 2019).
The court does not need to decide whether defendant’s supervised release search condition authorized this search because it was justified under the automobile exception based on the officer’s observations of defendant. United States v. McCoy, 2019 U.S. Dist. LEXIS 137657 (N.D. Cal. Aug. 14, 2019).*
The joint motions to suppress are denied as untimely and slowing the progression of this case. United States v. FÍgaro-BenjamÍn, 2019 U.S. Dist. LEXIS 139277 (D. P.R. Aug. 16, 2019).*
Posted inAutomobile exception, Search incident|Comments Off on CA4: Def’s admission she had cocaine in her hair permitted search incident of her car where arrested
Defendant had no reasonable expectation of privacy in a cell phone video he saw being recorded on his victim’s cell phone while he talked to her under the state wiretap law. Smiley v. State, 2019 Fla. App. LEXIS 12628 (Fla. 1st DCA Aug. 16, 2019).
Defendant’s theories that the search occurred before the search warrant issued are really just speculation. United States v. Thomas, 2019 U.S. Dist. LEXIS 138870 (D. D.C. Aug. 15, 2019).*
“The State argues that, even though the sock was no longer in Peele’s possession or control, Officer James could still reasonably have feared that the sock contained ‘an explosive or incendiary device.’ Appellee’s Brief at 30. However, there is no testimony suggesting that Officer James suspected or believed that Peele had secreted an explosive device in the sock placed in the waistband of his sweat pants. And, in any event, a mere suspicion or possibility would not justify a warrantless search.” Defendant was also handcuffed, and the court finds it highly unlikely he would have abandoned the sock simply because he couldn’t get to it. Peele v. State, 2019 Ind. App. LEXIS 360 (Aug. 15, 2019).
Posted inStop and frisk|Comments Off on Remember videos with “no guns, knives, bombs” in the request for consent?
The automobile exception applied to an already parked car because it’s still “mobile” for exigency purposes. United States v. Mizell, 2019 U.S. Dist. LEXIS 138171 (N.D. Ga. July 29, 2019), adopted, 2019 U.S. Dist. LEXIS 137988 (N.D. Ga. Aug. 15, 2019).
Defendant’s stop was without reasonable suspicion, and the officer admitted the purpose to make an investigative stop as soon as he saw defendant. Motion to suppress stop granted. United States v. Tellis, 2019 U.S. Dist. LEXIS 137924 (D. Nev. Aug. 14, 2019).*
Even if it was not a violation of the vehicle code to not signal turning coming out of a parking lot to the street [probably doubtful, but], any mistake of the officer would be objectively reasonable under Heien. United States v. Mills, 2019 U.S. Dist. LEXIS 137779 (E.D. Mich. Aug. 15, 2019).*
(1) The probable cause here was thin, and it was based on a CI’s credibility. The officer omitted important information to the CI’s credibility. This entitles him to at least a Franks hearing on remand. (2) A photograph of the motel room during the search shows the time as 25 minutes before the search warrant was issued. Whether the motel room clock was correct or not is a matter of speculation in light of the testimony, which the court credits instead. [What person has stayed in a hotel room where the clock was always correct? Nobody.] United States v. Clark, 2019 U.S. App. LEXIS 24332 (7th Cir. Aug. 15, 2019).
Officer’s question about drugs during an unavoidable lull in the traffic stop was reasonable and didn’t extend it at all. State v. McBride, 299 Ore. App. 11 (Aug. 15, 2019).
Without something to go on, the court declines to ascribe a supposed error in an address as a mere typo. Moreover, the affidavit fails to provide any nexus to defendant and the place to be searched, and the good faith exception is inapplicable. The court even finds the issuing judge failed to perform his or her judicial function in evaluating the affidavit. Andrews v. District of Columbia, 2019 D.C. App. LEXIS 336 (Aug. 15, 2019): Continue reading →
Not a Fourth Amendment case at this point of the litigation, but extremely interesting to everybody in the criminal justice system, including jailers, is United States v. Carter, 2019 U.S. Dist. LEXIS 137728 (D. Kan. Aug. 13, 2019), where there were wholesale recording of attorney-client calls with all inmate calls from a CCA lockup at Leavenworth KS recorded by Securus that were shared with the USAO. The FPD has litigated this for three years. Ultimately the USAO was held in contempt. A clear example of the consequences of recording, then sharing attorney-client calls in violation of the Sixth Amendment, and then covering it up.
Posted inPrison and jail searches, Privileges|Comments Off on D.Kan.: USAO in Kansas in contempt for handling litigation over recording attorney-client jail calls
Defendant was an unauthorized driver of a Dollar rental car. When he was stopped, the officer called Dollar, and they wanted the car repossessed. The court finds that the car rental company cannot be a third-party consenter to a search of one of their cars sufficient to override defendant’s reasonable expectation of privacy in the car. Otherwise, any contract violation would vitiate the Fourth Amendment. United States v. Bonner, 2019 U.S. Dist. LEXIS 138205 (D. Ore. Aug. 15, 2019).
The fact Texas law may have been violated in the issuance and execution of a search warrant doesn’t matter in federal court. Here, the Fourth Amendment governs along with the good faith exception, and both were satisfied. United States v. Black, 2019 U.S. Dist. LEXIS 138161 (N.D. Tex. Aug. 15, 2019).
Posted inConsent, Reasonableness|Comments Off on D.Ore.: Rental car company can’t be a third-party consenter just because def was unauthorized driver
Inevitable discovery doesn’t apply here because there was no effort or even indication the government was going to get a search warrant. “Accordingly, while the Court finds that the inevitable discovery doctrine is potentially applicable to Wrensford’s DNA sample, it concludes that the Government cannot meet its burden on the current record to demonstrate by a preponderance of the evidence that his DNA sample would inevitably have been obtained pursuant to routine VIPD procedures-that would necessarily have been followed here-for the collection of DNA samples by warrant.” The government, however, gets to reopen the suppression hearing to further develop this issue. United States v. Wrensford, 2019 U.S. Dist. LEXIS 138235 (D. V.I. Aug. 15, 2019).*
There was an incorrect address on the search warrant application, but, considering the nature of the records the officer was working from, the court doesn’t even find the officer negligent. Therefore, the Franks challenge failed, and that finding is credited. United States v. Glenn, 2019 U.S. App. LEXIS 24328 (5th Cir. Aug. 15, 2019).*
Posted inFranks doctrine, Inevitable discovery|Comments Off on D.V.I.: Inevitable discovery fails here because the govt doesn’t show it was trying to get a SW
The juvenile here was adjudicated guilty of burglary. A probation search condition of his electronic devices wasn’t reasonably related to the offense and it is ordered removed. In re Ricardo P., 2019 Cal. LEXIS 5949 (Aug. 16, 2019).
The seizure of petitioner’s property was eight years earlier. This appeal comes without the trial court having ruled and there’s thus no jurisdiction. Nowden v. State, 2019 Tex. App. LEXIS 7204 (Tex. App. – Ft. Worth Aug. 15, 2019).*
The government seized 1.3M documents, and 21 apparently were privileged. This doesn’t show that the government was willful disregarding the warrant or the need to protect privileged materials. His iPhone and laptop were properly seized by plain view then subjected to a search warrant. United States v. Sharma, 2019 U.S. Dist. LEXIS 136584 (S.D. N.Y. Aug. 14, 2019).
Plaintiff’s complaint isn’t a model of advocacy, but it sufficiently alleges to survive summary judgment for now that the officer and the CI set him up for false arrest. Howl v. Alvarado, 2019 U.S. App. LEXIS 24156 (10th Cir. Aug. 14, 2019).*
Defendant was visiting his mother while on supervised release. She consented to a search of the whole property. He apparently didn’t get the opportunity to make a Randolph objection: “a mere overnight guest’s objection to a search does not override the consent of a tenant, occupant, or resident with a possessory interest in the property.” United States v. Lopez, 2019 U.S. Dist. LEXIS 136615 (D. Conn. Aug. 14, 2019).*
Posted inOverseizure, Privileges|Comments Off on S.D.N.Y.: Seizure of 21 privileged documents out of 1.3M wasn’t a 4A or privilege violation
A warrantless protective sweep before obtaining a search warrant to prevent possible destruction of evidence was reasonable. A search warrant was later obtained [inevitable discovery]. United States v. Beazel, 2019 U.S. Dist. LEXIS 136901 (N.D. W.Va. Aug. 14, 2019).*
The search of defendant’s car was properly extended for a drug dog to arrive. He was on supervised release. Since the search was valid on the merits, the question of whether the exclusionary rule applies to supervised release searches isn’t even reached. United States v. Johnson, 2019 U.S. App. LEXIS 24183 (3d Cir. Aug. 14, 2019).*
Playpen warrant sustained. United States v. Harney, 2019 U.S. App. LEXIS 24166 (6th Cir. Aug. 14, 2019);* United States v. Pawlak, 2019 U.S. App. LEXIS 24366 (5th Cir. Aug. 15, 2019).*
Making plaintiff leave a city council meeting that had been disrupted by her and others was not a Fourth Amendment seizure. Guiding her out wasn’t either. Youkhanna v. City of Sterling Heights, 2019 U.S. App. LEXIS 24165 (6th Cir. Aug. 14, 2019): Continue reading →
Posted inSeizure|Comments Off on CA2: Ordering ptf out of a city council meeting that had been disrupted wasn’t a 4A seizure
Officers get qualified immunity for shooting a mentally retarded man they knew of when he was wandering the highway and was reported flashing a handgun at people. When the police encountered him, he wouldn’t show his hands and kept one hand behind his back, as if holding the gun there. Davis v. Edwards, 2019 U.S. App. LEXIS 24176 (11th Cir. Aug. 14, 2019):* Continue reading →
Posted inExcessive force, Qualified immunity|Comments Off on CA11: Shooting a man with a gun was close enough to reasonable under the circumstances for QI
Defendant lacked standing in the place searched, so he’s denied a Franks hearing to challenge that omission from the affidavit for search warrant. “The only connection between Defendant and 10 H Hall Manor reflected in the Affidavit of Probable Cause is that the informant tipped the police that Defendant, identified by his nickname ‘Menace,’ sold drugs from that address.” United States v. Sawyers, 2019 U.S. Dist. LEXIS 137080 (M.D. Pa. Aug. 14, 2019).
The parties’ dispute as to when defendant was seized is resolved by the government’s concession it was at least when he was ordered to put his hands in the air and get down on the ground. United States v. Cardona, 2019 U.S. Dist. LEXIS 136974 (D. N.M. Aug. 14, 2019).*
“In this case, Dorsey abandoned his phone by failing to contest its seizure or otherwise seek its return.” [What a Catch-22 that is. What’s wrong with waiting for the search and then contesting it when you find out about it. Seeking return of a cell phone is an utterly futile act when the government merely says: “It might be evidence.” because that means it’s denied.] United States v. Dorsey, 2019 U.S. Dist. LEXIS 136887 (D. Md. Aug. 14, 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.
