Petitioner’s IAC claim against defense counsel for not pursuing a Fourth Amendment claim was properly denied for lack of standing on the merits. Virgil v. Sec’y, Dept. of Corrections, 2019 U.S. App. LEXIS 23777 (11th Cir. Aug. 8, 2019).*
Defendant’s search claim was known before trial and waived. Onyelobi v. State, 2019 Minn. LEXIS 433 (Aug. 7, 2019).*
Defendant’s Carpenter claim in a new trial motion is denied. Carpenter was four months after trial, and the evidence was admissible under the good faith exception. United States v. Brown, 2019 U.S. Dist. LEXIS 131958 (C.D. Cal. Aug. 5, 2019).*
Defendant’s “furtive movement” in the car while talking to the police officer outside the car wasn’t significant enough in the testimony to show that he was secreting something or moving around a weapon. There thus was no objective basis for the frisk. Thornton v. State, 2019 Md. LEXIS 383 (Aug. 7, 2019): Continue reading →
Posted inStop and frisk|Comments Off on MD: Def’s alleged furtive movement while sitting in car wasn’t significant enough to show he was concealing a gun
Plaintiffs stated Art. III standing to bring a class action against Facebook for violation of the Illinois Biometric Information Privacy Act. Patel v. Facebook, Inc., 2019 U.S. App. LEXIS 23673 (9th Cir. Aug. 8, 2019).* Summary by the court: Continue reading →
Posted inSurveillance technology|Comments Off on CA9: Standing shown to sue Facebook under Illinois Biometric Information Privacy Act
“The district court did not err in dismissing Hollis’s right to privacy claims. Because Hollis voluntarily provided Defendants with the last four digits of his SSN, he abandoned a reasonable expectation of privacy in those digits. Miller, 425 U.S. at 443. Also, Hollis did not show that he had a fundamental right to privacy in the last four digits of his SSN. See Paul, 424 U.S. at 713; Collier, 477 F.3d at 1307-08. Finally, his Federal Privacy Act claim fails because the Act prohibits the denial of any right, benefit, or privilege provided by law as a result of an individual’s refusal to disclose his social security account number to the agency. Hollis, however, has not alleged the denial of any such right, benefit or privilege based on his refusal to disclose his social security number.” Hollis v. West Academic Charter, Inc., 2019 U.S. App. LEXIS 23657 (11th Cir. Aug. 8, 2019).
Defendant’s CSLI records were obtained by subpoena without a search warrant pre-Carpenter, and the record was preserved. The Fourth Amendment and the state constitution were violated. The state just can’t use a subpoena for something this intrusive that tracks one’s every move. State v. Phillip, 2019 Wash. App. LEXIS 2062 (Aug. 8, 2019), withdrawing and substituting for State v. Phillip, 2019 Wash. App. LEXIS 1695 (July 1, 2019): Continue reading →
The state didn’t support the departmental inventory policy at trial, and that was error. Also, what the officer calls a search (here “search incident”) the prosecutor didn’t, and that argument was waived for appeal. Smith v. State, 2019 Ind. App. LEXIS 350 (Aug. 7, 2019): Continue reading →
Posted inBurden of proof, Inventory|Comments Off on IN: Failure to prove dept’l inventory policy fatal to inventory search; officer calling search one thing but DA not arguing it is waiver
Defendant was in a bad wreck and the first responders could smell alcohol. He was going to be medicated and intubated for transport to the ER. A warrantless blood draw was reasonable for exigent circumstances because the sample would have been compromised if they waited for a search warrant. State v. Anderson, 2019 Wash. App. LEXIS 2023 (Aug. 5, 2019).
Defendant was somehow suspected of alcohol importation and an Alaska State Trooper met her at the Kotzebue airport. The interaction was consensual, and she consented to a search of her bag. Davis v. StateDavis v. StateDavis v. State, 2019 Alas. App. LEXIS 110 (Aug. 7, 2019).*
Posted inConsent, Drug or alcohol testing, Emergency / exigency|Comments Off on WA: EMTs would be medicating and intubating def in transit after car wreck, and that’s exigency for warrantless blood draw
Defendant was indicted and then the government sought a DNA test to connect him to the case. Based on the detention hearing, evidence showed “(1) links the defendant’s gun to the murder weapon; (2) connects scented oil vials found at the crime scene to the defendant; (3) matches a fingerprint from the crime scene to the defendant; and (4) indicates that the defendant engaged in premeditated activity based on several eyewitnesses identifying the defendant as being present outside Ms. Noel’s apartment in the days prior to her murder.” Also, defendant had been indicted and not just arrested as in King. United States v. Ausby, 2019 U.S. Dist. LEXIS 132042 (D.D.C. Aug. 7, 2019).
Posted inDNA|Comments Off on D.D.C.: Evidence at the detention hearing supports PC for a DNA test for defendant
A state trooper went to defendant’s house for a welfare check on a person, and pulled in the driveway and started toward the house. A car was coming down the driveway and he waved for the car to stop so he could see if it was the person he was looking for. The car stopped, driver window to driver window. Defendant ended up getting arrests for DUI in his own driveway. The initial stop was valid. State v. Labounty, 2019-012 (Vt. Aug. 8, 2019).
Defendant’s post-conviction claim that material information was withheld to attack the search warrant was denied because it wasn’t material for Franks purposes. Kovalevich v. State, 2019 ND 210, 2019 N.D. LEXIS 215 (Aug. 5, 2019).*
Posted inConsent, Franks doctrine|Comments Off on VT: Flagging down def in driveway while officer on welfare check call was consensual stop; led to DUI arrest
Defendant was properly subject to a suspicionless state probation condition. He had no right to have it announced in court as a part of the sentence. It occurs by operation of law. United States v. Linder, 2019 U.S. Dist. LEXIS 130702 (S.D. Ga. June 21, 2019), adopted, 2019 U.S. Dist. LEXIS 130615 (S.D.Ga. Aug. 5, 2019).
“The relevant complaint reveals that an officer arrested Romine without a warrant, and that he was later released when a grand jury declined to indict him. As a result, Romine was never subjected to a seizure pursuant to a legal process as required for a § 1983 malicious prosecution claim.” Romine v. Athens Clarke County, 2019 U.S. App. LEXIS 23427 (11th Cir. Aug. 6, 2019).*
http://media.ca11.uscourts.gov/opinions/unpub/files/201815307.pdf
The search of defendant’s U-Haul truck was justified by a dog alert. “Assuming arguendo that Third Circuit precedent supported defendants’ more taxing standard for what constitutes a positive and reliable alert, Trooper Hoy still had probable cause to search the U-Haul truck because Canine Tom also indicated to the specific location of the narcotics.” United States v. Xiao Wu Zhou, 2019 U.S. Dist. LEXIS 130934 (M.D. Pa. Aug. 6, 2019).
Defendant’s order for lifetime satellite based monitoring is reversed, knowing that the issue is pending before the state supreme court in other cases. State v. Tucker, 2019 N.C. App. LEXIS 640 (Aug. 6, 2019).*
Posted inDog sniff, GPS / Tracking Data|Comments Off on M.D.Pa.: Dog alert satisfied CA3 standards because it was to specific place
Defendant’s Fourth Amendment claim on appeal was waived by failure to fully argue it, as in “Fourth Amendment rights were violated because ….” Ducharme v. Commonwealth, 2019 Va. App. LEXIS 187 (Aug. 6, 2019): Continue reading →
Posted inStandards of review|Comments Off on VA: 4A claim waived for failure to fully brief it
Defendant and another were encountered by police after coming out of a drug house. The encounter was consensual until defendant tried to walk away, but the officer had already seen a baggie of drugs in his hand by plain view. His seizure then was justified. State v. Brown, 2019-Ohio-3160, 2019 Ohio App. LEXIS 3250 (10th Dist. Aug. 6, 2019).*
Defendant showed a possessory interest in the car he was driving and the black satchel he had inside it, so he has standing. There was probable cause for search of the car. United States v. Fabian, 2019 U.S. Dist. LEXIS 131667 (E.D. N.Y. Aug. 7, 2019).*
Posted inConsent, Plain view, feel, smell, Standing|Comments Off on OH10: Def’s stop turned from consensual to a seizure when the officer saw a baggie of drugs in his hand
Defendant attempts a second successor 2255 raising essentially the same issues, including a Fourth Amendment claim, which has already been litigated. He can’t show that this claim has any potential merit for a successor petition or wasn’t already decided. In re Petroff, 2019 U.S. App. LEXIS 23536 (11th Cir. Aug. 7, 2019).*
Petitioner’s second habeas raises ten issues and requests an evidentiary hearing, including a search issue. It’s construed as a successor petition and denied. United States v. Chase, 2019 U.S. Dist. LEXIS 131078 (D. Minn. Aug. 6, 2019).*
Defense counsel wasn’t ineffective for not filing a motion to suppress the search warrant for his vehicle for lack of probable cause because it was based on probable cause. Jones v. United States, 2019 U.S. Dist. LEXIS 131073 (E.D. Tenn. Aug. 5, 2019).*
Posted inIneffective assistance|Comments Off on CA11: Second successor 2255 denied as already decided or having no merit
Defendant was arrested on his porch, but one could see the bedroom from there. Officers did not have a search warrant. He requested an officer to turn off the stove. A protective sweep of the bedroom was valid. “Deputy Thomas observed a weapon in plain view in an open closet area in the bedroom.” The search was valid, and it is described as incident to the arrest. United States v. Whitehead, 2019 U.S. Dist. LEXIS 131349 (N.D. Ala. Aug. 6, 2019).* [If the closet was searched, it is invalid as a search incident to arrest. If the gun were visible in a walk through looking for people, then seizure of the gun would be valid in the protective sweep. The opinion is confusing, uses “search incident” and doesn’t tell us exactly what happened.]
A 911 call from a citizen informant was properly admitted into evidence becuase hearsay is admissible in suppression hearings. There was a factual basis for defendant’s stop on reasonable suspicion for DUI. The CI’s report was that he was too drunk to walk and got into a vehicle and drove away. State v. Goins, 2019-Ohio-3135, 2019 Ohio App. LEXIS 3223 (9th Dist. Aug. 5, 2019).
Defendant had no objective reasonable expectation of privacy under the seat of the car he was riding in. United States v. Parks, 2019 U.S. App. LEXIS 23267 (4th Cir. Aug. 2, 2019).*
“In this case, Davis expressly disclaimed possession (or even knowledge) of the truck. J.A. 427 (‘It’s not my white box truck. I don’t know anything about it.’). His words mirror the language we have found to constitute abandonment of a privacy interest in an object.” United States v. Davis, 2019 U.S. App. LEXIS 23273 (4th Cir. Aug. 2, 2019).*
Posted inStanding, Suppression hearings|Comments Off on OH9: Citizen informant’s 911 call properly admitted at suppression hearing even though hearsay
Violation of the NYC bicycle use ordinance justifies arrest if necessary, and defendant was riding his bike on the sidewalk. “Here, the officers’ search of Defendant was incident to the lawful stop of Defendant for a bicycle traffic infraction, that escalated when Defendant refused to comply with a lawful order to stop and get off the bicycle, appeared to be about to flee, and Officer Foley felt the outline of a firearm as he grabbed Defendant’s jacket in an effort to stop his flight. Even if the officers lacked probable cause to arrest Defendant at the time he was stopped, Defendant’s attempt to flee provides alternative support for the search.” United States v. Stokes, 2019 U.S. Dist. LEXIS 130050 (E.D. N.Y. Aug. 2, 2019).*
Even if the Playpen warrant violated Rule 41 and the Fourth Amendment, the officers were reasonable in executing it because there’s no dispute the good faith exception applies. United States v. Eldred, 2019 U.S. App. LEXIS 23294 (2d Cir. Aug. 5, 2019), amended 2019 U.S. App. LEXIS 23766 (2d Cir. Aug. 9, 2019); United States v. Allen, 2019 U.S. App. LEXIS 23285 (2d Cir. Aug. 5, 2019);* United States v. Scanlon, 2019 U.S. App. LEXIS 23283 (2d Cir. Aug. 5, 2019).*
Posted inGood faith exception, Search incident|Comments Off on E.D.N.Y.: Violation of NYC bicycle ordinance and evasiveness justified arrest and search incident
Plaintiff was unconscious in the hospital when the defendants manipulated her naked body to photograph Taser marks. She stated a claim under a 1963 Ninth Circuit case that overcame qualified immunity. Young v. Pena, 2019 U.S. Dist. LEXIS 131641 (W.D. Wash. Aug. 6, 2019).*
There were fact questions for trial on whether the warrantless entry to arrest was by consent, so qualified immunity is denied. Coffey v. Carroll, 2019 U.S. App. LEXIS 23306 (6th Cir. Aug. 5, 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.
