“An appellant making an unconstitutional seizure claim has the burden of proving that a seizure occurred. … [¶] Here, Yang consented to Koster’s entry. Throughout their time in the house, Lucas and Koster told Ho what they were doing. They asked permission to interview N.Y. in his bedroom and stopped the interview when N.Y. said he did not want to speak anymore. They did not investigate the house, apart from the time spent in the entryway and living room talking to Yang and Ho, in N.Y.’s bedroom, and in the basement, after being led down there by Ho. Ho handed Koster the dowel. Koster and Lucas repeatedly asked Ho to take N.Y. to the hospital. Only after all of these events and after talking to Heitzman did Koster decide to arrest Ho. These facts provide sufficient evidence to support a conclusion that a reasonable person would feel she could terminate the interview or leave to a different room.” State v. Ho, 2019 Wash. App. LEXIS 713 (Mar. 26, 2019).
Officers had reasonable suspicion to stop defendant’s car based on location and description and erratic driving that it likely was involved in a shooting in the area. United States v. Jones, 2019 U.S. Dist. LEXIS 49424 (S.D. Fla. Mar. 5, 2019).*
Defendant on felony probation and subject to a warrantless search condition. It was reasonable to search his cell phone under this condition because his mother reported threats and it was possible the cell phone’s contents could corroborate it. State v. Lietzau, 2019 Ariz. App. LEXIS 285 (Mar. 25, 2019).
Defendant was subjected to an arrest on an illegal warrant, but the search incident to the arrest of his briefcase at the time was valid. United States v. Abernathy, 2019 U.S. Dist. LEXIS 49448 (M.D. Tenn. Mar. 25, 2019).*
Plaintiff stated a claim that forced catheterization of her children for a UA was a Fourth Amendment violation. Whether there was consent in the face of an alleged threat to take the children without a UA also goes to a jury. Hunter v. South Dakota Dep’t of Soc. Servs., 2019 U.S. Dist. LEXIS 49224 (D. S.C. Mar. 25, 2019).
This case is virtually identical to one filed by plaintiff in 2016 and dismissed, and res judicata applies. Britton v. No. Southaven, 2019 U.S. Dist. LEXIS 49273 (N.D. Miss. Mar. 25, 2019).*
Posted inBorder search|Comments Off on D.S.C.: Forced catheterization of children for UA stated a 4A claim
Plaintiff’s Fourth Amendment claims were Heck barred because they would interfere with the state prosecution. Shipman v. Sowell, 2019 U.S. App. LEXIS 8736 (5th Cir. Mar. 23, 2019): Continue reading →
Posted inAbstention|Comments Off on CA5: Ptf’s 4A claims were Heck barred because they would interfere with the state prosecution.
Officer who was at front of house to do a knock and talk did not conduct an illegal search when he heard noise inside and looked through a gap in the blinds. Jardines is distinguished, and the court used the same Jardines analogy: “Instead, Officer Shourds did what a girl scout or a trick of treater who approached the door in the same manner would — briefly observe the activity inside the apartment clearly visible from the front door window. The record does not suggest he lingered or attempted to peer through a window not located on the door, actions we explicitly found to violate the Fourth Amendment in J.K. v. State, 8 N.E.3d 222, 232 (Ind. Ct. App. 2014).” Taylor v. State, 2019 Ind. App. LEXIS 133 (Mar. 22, 2019): Continue reading →
Posted inCurtilage, Knock and talk|Comments Off on IN: Officer at front door to do knock-and-talk could look through gap in blinds
In AirBnB’s case against NYC, the city gets discovery of some of AirBnB’s customer records because it is third-party information subject to disclosure at least to determine the extent of an expectation of privacy. AirBnB, Inc. v. City of New York, 2019 U.S. Dist. LEXIS 48245 (S.D. N.Y. Mar. 23, 2019): Continue reading →
Posted inThird Party Doctrine|Comments Off on S.D.N.Y.: AirBnB can’t block all discovery of customer’s third-party records
Reasonable suspicion supported the stop for no license plate light. Then, defendant lacks a reasonable expectation of privacy in the car or its contents. “However, neither Defendant’s affidavit nor the evidence adduced at the hearing establish that Defendant had any ownership or possessory interest in the vehicle, the potato chip bag, or the firearm. Without any such evidence, the Court cannot find that he had a subjective expectation of privacy.” United States v. Legree, 2019 U.S. Dist. LEXIS 48209 (E.D. N.Y. Mar. 23, 2019).*
There was reasonable suspicion for the stop and detention, and then probable cause developed to conduct an automobile exception search of the car. United States v. Somerville, 2019 U.S. Dist. LEXIS 47485 (W.D. Pa. Mar. 22, 2019).*
Posted inReasonable suspicion, Standing|Comments Off on E.D.N.Y.: Def did nothing to show his standing in the car or the things seized from it
The state didn’t make a sufficient showing required by NY law that the CI actually existed. The motion to suppress should have been granted. People v. Givans, 2019 NY Slip Op 02220, 2019 N.Y. App. Div. LEXIS 2237 (4th Dept. Mar. 22, 2019).*
In a Medicare fraud case, the affidavit was detailed and the information wasn’t stale because the operation was ongoing. United States v. Douglas, 2019 U.S. Dist. LEXIS 47801 (E.D. Mich. Mar. 22, 2019).*
The search warrant for defendant’s cell phone did not lack particularity. State v. Roden, 296 Ore. App. 604 (Mar. 22, 2019).*
Defendant’s Franks challenge fails. The officer’s assertion of fact was a reasonable inference based on what he saw and wasn’t false. United States v. Cruz-Arroyo, 2019 U.S. Dist. LEXIS 47172 (D. P.R. Mar. 19, 2019).*
Defendant’s Franks challenge fails for not “identify[ing] for the Court any omitted facts that were known by Officer Riley at the time he applied for the search warrant yet were not included in the search warrant affidavit.” United States v. Turner, 2019 U.S. Dist. LEXIS 46533 (E.D. Mich. Mar. 21, 2019).*
“Here, probable cause supported the searches at issue regardless of whether the Affiant falsely stated that the legal opinions at issue created an ‘illegal tax scheme.’ Lebowitz, 676 F.3d at 1010. The detailed 32-page affidavit in support of the warrant provided sufficient evidence for the issuing magistrate to conclude that Appellants may have devised the BPP scheme precisely to effect the submission of materially false tax returns.” United States v. Donaldson, 2019 U.S. App. LEXIS 8684 (11th Cir. Mar. 22, 2019).*
Posted inFranks doctrine|Comments Off on D.P.R.: Factual assertion in SW affidavit based on inference was reasonable and not false
The Sacramento Bee and defendant seek unsealing of search warrant materials in an extradition matter, but the motion is denied. Extradition is different than prosecution. If a criminal prosecution will result in the United States, and it still could, the case is still preindictment and that’s another ground to deny. In re Ameen, 2019 U.S. Dist. LEXIS 47391 (E.D. Cal. Mar. 21, 2019).
“Further pertinent to the case and facts at hand, the Fourth Circuit has stated that a ‘motorist stopped by police is obliged to endure ‘certain negligibly burdensome precautions’ that may not relate directly to the reason for the traffic stop, such as checking whether the driver has a criminal record or outstanding warrants.’ United States v. Palmer, 820 F.3d 640, 651 (4th Cir. 2016) (quoting Rodriguez, 135 S. Ct. at 1616).” United States v. Boley, 2019 U.S. Dist. LEXIS 48120 (N.D. W.Va. Feb. 15, 2019).*
In the search of a juvenile’s room in his grandmother’s house she has the authority to consent over his objection. State v. A.S., 296 Ore. App. 722 (Mar. 22, 2019): Continue reading →
Posted inConsent|Comments Off on OR: Grandmother of juvenile living with her has authority to consent to search of his room despite his objection
A police lie that conveyed the need to defendant for urgent action to address a pressing threat to person or property vitiated any voluntary consent. Moreover, the officer doesn’t get qualified immunity. Págan-González v. Moreno, 2019 U.S. App. LEXIS 8716 (1st Cir. Mar. 22, 2019). Introductory paragraph: Continue reading →
Posted inConsent, Qualified immunity|Comments Off on CA1: Police lie about exigency vitiated consent; and there was no qualified immunity
404(b) evidence obtained in violation of the Fourth Amendment is subject to suppression. United States v. Hill, 60 F.3d 672, 677 (10th Cir. 1995). Here, however, it was harmless beyond a reasonable doubt. United States v. Dalton, 2019 U.S. App. LEXIS 8495 (10th Cir. Mar. 21, 2019).
Defendant’s 2255 on his search claim fails. The daytime warrant search started before night and continued passed the final time for a daytime search, and Ohio already held that this was not grounds for suppression. Smith v. United States, 2019 U.S. Dist. LEXIS 47197 (N.D. Ohio Mar. 21, 2019).*
Posted inExclusionary rule, Warrant execution|Comments Off on CA10: 404(b) evidence is subject to 4A exclusion, but harmless error applies
Defendant’s providing a false name was enough for the officer to extend the stop with reasonable suspicion. United States v. Boley, 2019 U.S. Dist. LEXIS 46935 (N.D. Va. Mar. 21, 2019).
Revealing the plaintiff’s identity as a CI in a search warrant affidavit resulted in his being shot. That stated a claim for relief under at least state law, and maybe § 1983 too [but what about qualified immunity]. Corgan v. Keema, 2019 U.S. App. LEXIS 8569 (9th Cir. Mar. 22, 2019).*
Not a search issue but worth noting: Defendant’s home surveillance system caught images of several drug deals and a drug cook. The case doesn’t, however, describe the probable cause for searching the DVR. State v. Groce, 2019-Ohio-1007, 2019 Ohio App. LEXIS 1062 (10th Dist. Mar. 22, 2019).*
“In this case, Special Agent Dosch, a 22-year veteran of the DEA, submitted a 51-page and 72-page detailed affidavit in support of the search warrants which were based on surveillance, information from confidential informants, financial records, evidence including drug contraband and large amounts of currency obtained through other seizures, drug ledgers, text messages, and other evidence. The agents obtained search warrants, which did not contain false information, were not ‘bare bones,’ and were not so facially deficient as to render the agents’ reliance upon them to be unreasonable. … Therefore, even if the search warrants were not sufficiently supported by probable cause, the court applies the good-faith exception to the exclusionary rule.” United States v. Attisha, 2019 U.S. Dist. LEXIS 46798 (E.D. Mich. Mar. 21, 2019).*
Posted inGood faith exception|Comments Off on E.D.Mich.: Two affidavits of 51 and 72 pages showed they were not “bare bones” and GFE applied
The search warrant application didn’t show a nexus between the phone and the crime under investigation. State v. Reese, 2019 Del. Super. LEXIS 140 (Mar. 18, 2019): Continue reading →
Posted inCell phones, Nexus|Comments Off on DE: No nexus shown between cell phone and the crime under investigation
Property not in the hands of the federal government cannot be ordered returned under Rule 41(g). Administratively forfeited case can’t be returned; there was a remedy. United States v. Morris, 2019 U.S. Dist. LEXIS 45071 (S.D.Ga. Mar. 19, 2019).
Defendant’s car being blocked in was a seizure because it meant he wasn’t free to leave. The officer had word that the car was stolen, and the VIN was run. Defendant claimed it wasn’t his car; he was just cleaning it out. There was, however, reasonable suspicion. United States v. Baca, 2019 U.S. Dist. LEXIS 45100 (D.N.M. Mar. 18, 2019).*
Defendant’s guilty plea waived his possible appeal of his suppression motion. People v. Brown, 2019 NY Slip Op 02178, 2019 N.Y. App. Div. LEXIS 2192 (3d Dept. Mar. 21, 2019).*
The history of subpoenas, and the fiery congressional hearings that have captivated Americans for centuries began with a Founding Father raising his hand to say, “Investigate me!”
The judge issuing the search warrant didn’t swear the affiant, and the fact that the papers said it was under oath and there is a jurat isn’t enough. Wheeler v. State, 2019 Tex. App. LEXIS 2233 (Tex. App. – Ft. Worth Mar. 21, 2019).
Defendant raised a search issue involving a car that he disclaimed responsibility for. The motion to suppress was denied and the issue not appealed. His ineffective assistance of counsel claim for counsel not appealing an issue he’d lose on fails. He had no reasonable expectation of privacy in the car. United States v. Maddox, 2019 U.S. Dist. LEXIS 45541 (E.D. Tenn. Mar. 20, 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.
