Plaintiff showed enough of a fact question that officers never announced they were attempting to enter on a search warrant, breaking in her door, to survive their motion for summary judgment. They said, she said. Greiner v. Wall, 2019 U.S. App. LEXIS 3850 (9th Cir. Feb. 7, 2019).*
2254 habeas petitioner is denied a certificate of appealability on the merits of his claim. He had a full and fair opportunity to litigate his search and seizure issue through the state courts and trial, appeal, and post-conviction. Stone v. Powell bars relief in federal court. West v. Bryant, 2019 U.S. App. LEXIS 3842 (10th Cir. Feb. 7, 2019).*
Posted in§ 1983 / Bivens, Knock and announce|Comments Off on CA9: Ptf’s affidavit there was no announcement before battering ram broke in her door makes her civil case survive summary judgment
Failure to file a motion to suppress before trial constituted a waiver of claims regarding the admissibility of items found at defendant’s garage. There was no plain error in the application of the inevitable discovery rule because it was clear that police would have inevitably discovered the address of the garage though other lawful means, such as walking up to and looking at the garage mailbox, without needing to test defendant’s keys. The affidavit for the search warrant showed a nexus between drug dealing and the garage–it provided at least two observations of illegal and suspicious activity there, including defendant illegally purchasing a firearm at the garage. Bradley v. State, 2019 Del. LEXIS 48 (Feb. 4, 2019).*
Defendant’s argument on post-conviction that trial counsel was ineffective was not sufficiently formulated to even be decided. Hoskins v. State, 2019 Iowa App. LEXIS 106 (Feb. 6, 2019).*
Defendant consented to a patdown for weapons. Removing an object and opening it that couldn’t be holding a weapon exceeded the consent. State v. Hampton, 2019 Iowa App. LEXIS 108 (Feb. 6, 2019).
The evidence the police gathered showed that defendant was likely attempting to make child pornography by getting his 12 year old son to have sex with a minor so he could record it. They also had evidence that defendant apparently admitted having some child pornography on his computer. There was probable cause, but, even if not, the good faith exception allowed the search warrant obtained evidence to be admissible. United States v. Evans, 2019 U.S. Dist. LEXIS 18981 (E.D. Mich. Feb. 6, 2019).*
Posted inConsent, Good faith exception, Stop and frisk|Comments Off on IA: Def’s consent to patdown for weapons wasn’t consent to open container that could not have contained a weapon
The search warrant was for defendant’s person and his house. The police also searched two cars on the premises. The court finds the cars outside the warrant and suppresses them. People v. Gordon, 2019 NY Slip Op 00901, 2019 N.Y. App. Div. LEXIS 874 (2d Dept. Feb. 6, 2019).
Defense counsel wasn’t ineffective for counseling defendant to consent to a search. [As almost impossible as that would be to show an ineffective assistance of counsel claim,] The police also had a search warrant. Thus, defense counsel’s advising consent wasn’t prejudicial. Tilley v. United States, 2019 U.S. Dist. LEXIS 19132 (E.D. Tenn. Feb. 6, 2019).*
“The Court concludes that Defendant was lawfully detained, and the detention ‘last[ed] no longer than [was] necessary to effectuate its purpose.’” He also consented to a search, and that’s another ground to sustain the search. United States v. Segoviano, 2019 U.S. Dist. LEXIS 17757 (N.D. Ill. Feb. 5, 2019).*
Posted inConsent, Overseizure|Comments Off on NY2: SW for person and house didn’t permit search of cars out front
Essentially the only evidence supporting defendant’s conviction came from his search and seizure of evidence. Thus, his § 1983 case over the search is barred by Heck. Anderson v. Houston, 2019 U.S. Dist. LEXIS 19246 (D.Utah Feb. 5, 2019).*
For the third time now (Presley v. United States, 895 F.3d 1284 (11th Cir. 2018); BMP Family Ltd. P’ship v. United States, 741 Fed. Appx. 764 (11th Cir. 2018)), an IRS summons to a law firm was valid and enforceable under the Fourth Amendment. The law firm can’t use this appeal to resurrect a defaulted issue. Presley & Presley P.A. v. United States, 2019 U.S. App. LEXIS 3526 (11th Cir. Feb. 5, 2019).*
Posted in§ 1983 / Bivens|Comments Off on D.Utah: Heck barred § 1983 case over his search which produced only evidence in case
The use of a cell site simulator with a search warrant to locate defendant’s cell phone was reasonable. The issue on appeal was whether the trial court abused its discretion in denying a motion to continue while the defense tried to learn more about it after the court had already denied a motion to suppress. People v. Johnson, 2019 Cal. App. LEXIS 99 (4th Dist. Feb. 5, 2019).
Defendant’s search claim can’t be presented in habeas. Blaisdell v. Perry, 2019 U.S. Dist. LEXIS 19292 (W.D. Mich. Jan. 17, 2019).*
Posted inCell site simulators|Comments Off on Cal.4th: Use of cell site simulator with SW was reasonable
A USMJ under Florida v. Harris concludes that the defense successfully rebutted the reliability of a drug dog on the job only one month, and the alert based search was held without probable cause. United States v. Acosta, 2019 U.S. Dist. LEXIS 17946, 2019 WL 454247 (N.D. Iowa Feb. 5, 2019). (The opinion is long and detailed and too much for here. The court’s online version of the opinion is not yet online at the GPO website.) It is remarkable because a defendant actually prevailed. The FPD for the defense: Continue reading →
Posted inDog sniff|Comments Off on N.D.Iowa: Def overcomes presumption of reliability of new drug dog under Florida v. Harris
Defendants’ stop is found to be based on a hunch and not reasonable suspicion founded on facts. The purported tip is found to be a pretext for the stop. United States v. Hall, 2019 U.S. Dist. LEXIS 18088 (M.D. Ga. Feb. 5, 2019)*: Continue reading →
Posted inReasonable suspicion|Comments Off on M.D.Ga.: A stop based on a mere hunch of wrongdoing is suppressed
The protective sweep of other rooms had no reasonable suspicion justification under Buie that another person might be present. There were two and they were unreasonable. The product of the walk through made it into a search warrant for the premises, and that taints the warrant. Motion to suppress is granted. United States v. Fuentes-Rodriguez, 2019 U.S. Dist. LEXIS 18225 (M.D. Fla. Feb. 5, 2019).
Plaintiff’s civil Franks claim doesn’t allege or show materiality to the finding of probable cause. Motion to dismiss granted on this and other grounds without prejudice. Gower v. All But Furgotten Humane Rescue a Non Profit Org., 2019 U.S. Dist. LEXIS 17188 (W.D. Pa. Feb. 4, 2019).*
Posted inFranks doctrine, Protective sweep|Comments Off on M.D.Fla.: No showing of RS for protective sweep on entry; observations in other rooms suppressed
The court finds that a minimal showing of at least recklessness was made in a representation in the search warrant application that a black cloth had not been disturbed during a crime. The video surveillance shows several people did. On the probable cause showing, however, defendant fails because his DNA was on the cloth “with an error rate of 1 in 138 cotillion.” United States v. North, 2019 U.S. Dist. LEXIS 18330 (D. Nev. Feb. 5, 2019).
Defendant had his full and fair opportunity to litigate his suppression motion in state court, did, and lost. It can’t now form the basis of a habeas claim. Scott v. Sheldon, 2019 U.S. Dist. LEXIS 17400 (N.D. Ohio Feb. 4, 2019).*
Posted inFranks doctrine|Comments Off on D.Nev.: DNA match overcame alleged Franks violation
Obtaining a search warrant with a narrative affidavit, inter alia, is hardly outrageous governmental conduct warranting dismissal. United States v. Ortiz, 2019 U.S. Dist. LEXIS 17455 (D. Minn. Feb. 4, 2019).*
Plaintiff’s excessive force claim against a probation search which was alleged to have happened when she resisted a search when the officer told her not to go into a room alone while they were there was minimal, de minimus, and reasonable under the circumstances. The probation search was not shown to be unreasonable otherwise with any positive evidence in the face of the officers’ summary judgment motion. Porter v. Munoz, 2019 U.S. Dist. LEXIS 17686 (E.D. Cal. Feb. 5, 2019).*
Police were called to a motel room because of a loud music complaint. The renter turned the music down, and, with that, the police should have left. Instead they wanted IDs and found a warrant on defendant. There was no basis for a detention at that point, and the subsequent search was invalid. State v. Chisum, 2019 N.J. LEXIS 187 (Feb. 5, 2019). Syllabus by the court: Continue reading →
Posted inReasonable suspicion|Comments Off on NJ: When the subject of a loud music complaint turned down the sound, no RS existed for continued detention
Officers responded to a drive-by shooting allegedly picked up by ScatterShot. Officers grabbed defendant’s arm ostensibly to see if he’d been shot, and it was readily apparent that he had not been, and he denied it. The community caretaking function is primarily for searches, not really seizures. The government’s authorities don’t support its position. United States v. Johnson, 2019 U.S. Dist. LEXIS 16858 (D. D.C. Feb. 4, 2019): Continue reading →
Posted inCommunity caretaking function, Seizure|Comments Off on D.D.C.: Community caretaking function doesn’t apply well to seizures; seizure and frisk suppressed
Defendant was tracked by a state issued tracking warrant. A state imposed limitation on the tracking warrant was arguably violated, but that doesn’t by any means mean that the Fourth Amendment was violated when his case was brought in federal court. United States v. Brewer, 2019 U.S. App. LEXIS 3451 (7th Cir. Feb. 4, 2019): Continue reading →
Defense counsel was not ineffective for not challenging defendant’s consent to search of his cell phone in a stalking investigation. Defendant understood that the scope of the search would be as broad as necessary, and he knowingly consented. The court also notes that he was a graduate of the Naval Academy. Any challenge to the consent would have failed. United States v. Spinoza, 2019 CCA LEXIS 40 (N.-M. Ct. Crim. App. Feb. 4, 2019).
Defendant made a facially valid post-conviction claim to at least avoid summary dismissal that defense counsel mishandled a search and seizure claim. He gets to amend. Hanania v. State, 2019 Fla. App. LEXIS 1336 (Fla. 2d DCA Feb. 1, 2019).*
Posted inCell phones, Consent, Ineffective assistance|Comments Off on N.-M. Ct.Crim.App.: Def knowingly consented to cell phone search in stalking investigation; he was graduate of Naval Academy
Defendant rented a motel room in Minnesota, and state law requires the hotelier to gather certain basic identifying information about the renter. The police came and inquired of the hotel. They ran defendant’s information and learned that he’d been convicted of fraud and drug offenses. They then attempted a knock-and-talk on the hotel room. He refused consent, but the police saw from the door what appeared to be an identity theft operation. They obtained a search warrant. Defendant’s reliance on Patel v. City of Los Angeles is misplaced. This is basic third party information under Miller and Smith, and he had no reasonable expectation of privacy in the information. The state constitution does not compel a different result. State v. Leonard, 2019 Minn. App. LEXIS 45 (Feb. 4, 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.
