It was not unreasonable for a school resource officer to handcuff for 15 minutes a 7-year-old sobbing second grader who he suspected of active resistance to going to the principal’s office. Aside from reasonableness, qualified immunity applies because the right was not clearly established that handcuffing a 7-year-old in school was a Fourth Amendment violation, which it’s not anyway. K.W.P. v. Kan. City Pub. Schs, 2019 U.S. App. LEXIS 23023 (8th Cir. Aug. 1, 2019).
Plaintiff loses her § 1983 claim arising from a custody case for (a) consent, and (b) lack of supervisory liability. Arsan v. Keller, 2019 U.S. App. LEXIS 22986 (6th Cir. Aug. 1, 2019).*
Defense counsel’s failure to raise an excessive force claim as a part of his arrest wasn’t ineffective assistance of counsel on the merits of the arrest or subsequent search. Waters v. United States, 2019 U.S. Dist. LEXIS 128341 (D. S.C. Aug. 1, 2019).*
Plaintiff’s § 1983 arrest claim was barred by Heck v. Humphrey. Parkins v. Nguyen, 2019 U.S. App. LEXIS 23015 (8th Cir. Aug. 1, 2019).*
2254 petitioner exhausted his Fourth Amendment claim in state court and lost. “[T]he state court was not unreasonable to find that the warrantless search that yielded a gun did not violate Petitioner’s Fourth Amendment rights. Petitioner’s trial counsel cannot be ineffective for failing to challenge that search. A motion on that issue would have been a ‘meritless argument’”. McClure v. Palmer, 2019 U.S. Dist. LEXIS 128496 (E.D. Mich. Aug. 1, 2019).* [Note here that Stone abstention wasn’t determinative–it was AEDPA’s unreasonable application test.]
“So did the officer have reasonable suspicion to stop Lett? Yes. The eyewitness identifications, alone, created that suspicion.” United States v. Lett, 2019 U.S. App. LEXIS 22987 (6th Cir. Aug. 1, 2019).*
Defendant’s traffic stop for moving within his own lane lacked a factual basis, and everything is suppressed. State v. Raubenolt, 2019-Ohio-3112, 2019 Ohio App. LEXIS 3191 (5th Dist. Aug. 1, 2019).*
An anonymous call about trespassing in a car matching the description of defendant’s eight blocks away was without reasonable suspicion. There was no corroboration. Facio v. N.D. DOT, 2019 ND 199, 2019 N.D. LEXIS 204 (July 30, 2019).*
Posted inReasonable suspicion|Comments Off on CA6: Eyewitness identification alone can be RS
A guilty plea waives a Fourth Amendment claim. The plea is the basis of conviction, not the search. United States v. Porter, 2019 U.S. App. LEXIS 22990 (3d Cir. Aug. 1, 2019): Continue reading →
Posted inUncategorized|Comments Off on CA3: Guilty plea waives a 4A claim, and the plea is the basis of conviction, not the search
Defendant was on supervised release in Minnesota as a result of a state conviction. His cell phone was subject to search on reasonable suspicion, and Riley does not bar a parole or probation search of a cell phone. Moreover, his release conditions put him on notice. United States v. Collier, 2019 U.S. App. LEXIS 23022 (Aug. 1, 2019).
Defendant’s staleness of a child pornography search warrant for cell phones and other digital devices was waived by his guilty plea. [Not to mention the fact that, to my knowledge, no staleness challenge has ever worked in a child porn case.] State v. Rogers, 2019 Del. Super. LEXIS 365 (July 26, 2019).*
All the searches of defendant’s car came from the extended detention without reasonable suspicion. The R&R is adopted, and the evidence is suppressed. United States v. Ayala-Garcia, 2019 U.S. Dist. LEXIS 128654 (D. Ariz. Aug. 1, 2019),* reconsideration denied, 2019 U.S. Dist. LEXIS 147152 (D. Ariz. Aug. 29, 2019).*
Defendant lived in a drug dealer’s house where he rented the room in exchange for drugs. He had unfettered access to come and go. That gave him standing in his own room. The owner, however, also had unrestricted access to the whole house, and thus he had apparent authority to consent to a search of defendant’s room, too. United States v. Perdue, 2019 U.S. Dist. LEXIS 128555 (N.D. Ala. Aug. 1, 2019).
In a Title III case, the court notes the government in the application said that there was a prior search warrant but it only produced a small quantity of drugs. Therefore, more intensive measures are required, like a wiretap. United States v. Thompson, 2019 U.S. Dist. LEXIS 128763 (D. Nev. June 25, 2019).*
Another Playpen warrant sustained. United States v. Thompson, 2019 U.S. Dist. LEXIS 128685 (W.D. La. June 24, 2019).*
Posted inApparent authority, Standing|Comments Off on N.D.Ala.: Renting bedroom from homeowner and paying in drugs still gave renter standing; but owner had apparent authority to consent
Defendant answered the door of his hotel room, and he was pulled into the hallway and officers entered the room. Their justification: They understood he had a sawed off shotgun. But, they lacked any real factual justification that he actually did. Their officer safety as a justification fails. There was no exigency from sounds inside that were innocuous and not suggestive of destruction of evidence. “Interviewing the occupant” also can’t be justified as a protective sweep. There was probable cause for his arrest, but no exigency anywhere. A search warrant was later issued for the hotel room, and the CI’s information was sufficient and corroborated to find probable cause. Finally, probable cause was shown for taking defendant’s urine, too. United States v. Zarate, 2019 U.S. Dist. LEXIS 128719 (N.D. Iowa July 3, 2019): Continue reading →
Posted inArrest or entry on arrest, Constitutionally protected area|Comments Off on N.D.Iowa: Knocking on hotel room door and grabbing def to pull him out, even with an arrest warrant, violated his constitutionally protected area
In this child pornography case, defendant argued that NCMEC was not a private actor citing Ackerman from the Tenth Circuit, but the record was not sufficiently developed for the court to conclude that. There was probable cause for the search warrant through AOL’s service through its finding child pornography in defendant’s emails. United States v. DiTomasso, 2019 U.S. App. LEXIS 22522 (2d Cir. July 30, 2019).
In Nebraska, an IAC claim can be made on direct appeal for that which is apparent from the record or it is defaulted if there is separate counsel. Appellate counsel asserts that trial counsel was ineffective for not making a motion to suppress arguing that probable cause or consent for the search is not apparent from the record. But, that’s not arguing that there was no probable cause or consent. [I.e., if it wasn’t pursued, it’s not there.] State v. Sherrod, 27 Neb. App. 435 (July 30, 2019).*
Even if the officer’s omission was reckless or intentional, adding in the missing information only makes the probable cause stronger. Therefore, his Franks claim fails. United States v. O’Neal, 2019 U.S. Dist. LEXIS 126426 (D. Me. July 30, 2019).*
Defendant’s connection to the truck his girlfriend borrowed from a relative was too tenuous to have standing. He seldom drove it. As for the merits, the search of the truck was justified under the automobile exception because there was probable cause and exigency. United States v. Lewis, 2019 U.S. Dist. LEXIS 126284 (D. Kan. July 29, 2019).*
Posted inFranks doctrine, Standing|Comments Off on D.Me.: Even if omission was reckless, missing info only added to PC
Defendant’s parole officer had a warrant for defendant, and a patdown with the arrest resulted in plain feel of a gun. The trial court erred in suppressing the gun because it was validly found. People v. Jennings, 2019 NY Slip Op 05838, 2019 N.Y. App. Div. LEXIS 5846 (1st Dept. July 30, 2019).* (The only surprise here is that the trial court suppressed when there was an arrest warrant.)
Defendant fails to show that the search warrant affidavit is “so lacking in indicia of probable cause” that the good faith exception should not apply. Essentially, the court finds probable cause via the good faith exception. United States v. Jackson, 2019 U.S. Dist. LEXIS 126528 (N.D. Tex. July 30, 2019).*
Officers saw a group on a corner, so they initiated contact, just because they wanted to. They also attempted to get them to clean up the trash on the corner, which wasn’t shown to be their fault or responsibility. When it was apparent that defendant didn’t want to continue the encounter and tried to leave, they told him to “hang tight for a minute” because he wanted to run his name. That was a seizure without reasonable suspicion that defendant was free to break off. Porter v. Commonwealth, 2019 Ky. App. LEXIS 184 (July 30, 2019) (unpublished).
Defendant had no standing in the apartment he was in when it was searched because he was a mere trespasser without permission of the owner to be there. United States v. Allen, 2019 U.S. Dist. LEXIS 126887 (E.D. Tenn. June 11, 2019).*
Posted inReasonable suspicion, Seizure, Standing|Comments Off on KY: Officers approached men on a street corner talking; telling def to “hang tight for a minute” because he wanted to run his name and SSN was a seizure requiring RS
The exclusionary rule would not be applied to what turned out to be an illegal probation search at a time when the law was unclear. There is no deterrent effect to be gained by applying the exclusionary rule when other such searches were also going on when the law was unsettled. Now it is. People v Lloyd, 2019 NY Slip Op 05855, 2019 N.Y. App. Div. LEXIS 6005 (4th Dept. July. 31, 2019).
The use of force against plaintiff during execution of a search warrant in her house was reasonable because she wasn’t responding to officers’ requests to sit down during the search and not get in the way. It was reasonable to fear her cluttered house could have concealed a weapon. Bishop v. Bosquez, 2019 U.S. App. LEXIS 22694 (7th Cir. July 31, 2019).*
Posted inExclusionary rule, Probation / Parole search, Warrant execution|Comments Off on NY4: Exclusionary rule wouldn’t be applied to probation search during a time of uncertainty in the law where law now settled; no deterrence possible
An officer’s killing an unarmed man during a traffic stop was reasonable based on the officer’s reasonable reaction to what decedent was doing when he fished around in his vehicle and came out with an unknown object in his hand. The dashcam video supports the use of deadly force. Varnadore v. Merritt, 2019 U.S. App. LEXIS 22548 (11th Cir. July 30, 2019): Continue reading →
While the Fourth Amendment’s third party doctrine does not recognize a reasonable expectation of privacy in IP information, the court concludes that the state constitution does (and it follows several other states rejecting Miller and Smith on some basis). State v. Mixton, 2019 Ariz. App. LEXIS 708 (July 30, 2019) (we can expect the Arizona Supreme Court to resolve this): Continue reading →
Defendant’s ineffective assistance of counsel claim for not pursuing a search claim fails for lack of argument of probability of success. “While Vargas makes numerous arguments for alleged errors by counsel, he fails to support a finding that counsel was actually defective as to any of those claims.” United States v. Vargas, 2019 U.S. Dist. LEXIS 126571 (D.Kan. July 30, 2019).*
It was not unreasonable for defense counsel to not file a motion to suppress the search of defendant’s cell phone with a warrant and work out a plea deal considering there was probable cause for the search and the plea saved defendant pen time. Davis v. United States, 2019 U.S. Dist. LEXIS 126906 (S.D. N.Y. July 30, 2019).*
Defendant’s consent was involuntary. He refused consent and the officers kept asked him three times to get him to agree. United States v. Clark, 2019 U.S. Dist. LEXIS 126985 (D. V.I. July 30, 2019).
Defendant on the totality consented to the search of the premises. “Here, although the Ringgold apartment was not Defendant’s primary residence, he was a frequent overnight guest, he had his own key to the apartment, he kept his clothes there, and he had permission to come and go at his leisure. (Doc. 24 at 7). Under the circumstances, the Court finds that Defendant has standing to contest the search.” United States v. Sanders, 2019 U.S. Dist. LEXIS 127304 (S.D. Ohio July 31, 2019).*
Posted inConsent, Voluntariness|Comments Off on D.V.I.: Consent wasn’t voluntary where def refused consent and officers kept asking
The state trooper’s focus on defendant’s purse had nothing to do with the traffic stop, and it extended the stop. Her talking fast and not looking as good as the DL photo is not reasonable suspicion. The trial court’s suppression order is affirmed. State v. Goucher, 2019 Mo. App. LEXIS 1178 (July 30, 2019).
Defendant didn’t show that the officers who entered to arrest on an arrest warrant intended to search, too. They had a dog, but the dog didn’t come in. The pre-search briefing mentioned the possibility of firearms inside, but that was for safety concerns, not that they were going to search. United States v. Hernandez-Mieses, 2019 U.S. App. LEXIS 22759 (1st Cir. July 31, 2019).*
There was probable cause for defendant’s arrest. “Ruffin offers a parade of what-ifs in response” to that, but they’re all questions for the jury on guilt beyond a reasonable doubt, not probable cause. United States v. Ruffin, 2019 U.S. App. LEXIS 22709 (6th Cir. July 31, 2019).*
Appellate counsel wasn’t ineffective for not raising a search claim on appeal after defendant’s guilty plea waived it. Blaine v. United States, 2019 U.S. Dist. LEXIS 126672 (D.S.D. July 30, 2019).*
Defendant argued that the stop extended too long, but defendant signed a Spanish language consent form before that point. State v. Angulo-Chavez, 2019 Ariz. App. LEXIS 721 (July 30, 2019).*
Posted inConsent, Probable cause|Comments Off on CA6: Attacks on facts of PC with “what-ifs” are question for jury on proof BRD
The officer who had defendant’s cell phone asked her to unlock it. She entered the passcode without sharing it or him seeing her do it. It wasn’t a communicative act. It’s like providing a key. Her motion to suppress the cell phone for lack of a Miranda warning before unlocking the phone was denied under Patane. United States v. Oloyede, 2019 U.S. App. LEXIS 22741 (4th Cir. July 31, 2019).
Defendant failed to show that the government overseized evidence without regard to the search warrant thereby making it a general warrant. United States v. Williams, 2019 U.S. Dist. LEXIS 125335 (D.Haw. July 26, 2019).*
Posted inCell phones, Overseizure, Privileges|Comments Off on CA4: Def’s unlocking cell phone without sharing passcode was not communicative act
The petitioners in an immigration proceeding alleged a race based stop and detention by state officers stated enough to get a hearing on whether this was an egregious violation of the Fourth Amendment. Yoc-Us v. AG United States, 2019 U.S. App. LEXIS 22736 (3d Cir. July 31, 2019): Continue reading →
Posted inExclusionary rule, Pretext|Comments Off on CA3: Petrs stated enough to get an immigration hearing on application of exclusionary rule to race-based stop as egregious violation of 4A
"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.
