The state’s claim of a Heien-type mistake of law fails. The statute is not ambiguous, and the defendant didn’t violate it. State v. Trout, 2019 Ohio ___, 2019 Ohio App. LEXIS 124 (5th Dist. Jan. 15, 2019).
Defendant operated a medical marijuana grow in Michigan. He was subjected to a search, and he was indicted federally. He can’t meet his burden to enjoin the federal prosecution for violating the state MMJ statute under the federal appropriations act that limits use of federal funds from interfering with state MMJ activities. United States v. Trevino, 2019 U.S. Dist. LEXIS 7917 (W.D. Mich. Jan. 16, 2019).*
Posted inReasonableness|Comments Off on OH5: State’s claim of reasonable mistake of fact rejected: statute not ambiguous and not violated
Plaintiff adequately pled that defendant officers, members of CPD Team 6713, were engaged in a theft and robbery ring where they used bogus and apparently real search warrants to rob their victims. Motion to dismiss for failing to state a claim is denied. Robles v. City of Chicago, 2019 U.S. Dist. LEXIS 9022 (N.D. Ill. Jan. 18, 2019): Continue reading →
Posted in§ 1983 / Bivens, Police misconduct|Comments Off on N.D.Ill.: Ptf adequately pled that def officers used SWs as excuse to commit theft and robberies of search targets
A school security officer gets qualified immunity for a patdown search of 21 students in a class for allegedly stolen money because there was reasonable suspicion as to all 21. Woods v. Rio Rancho Pub. Schs, 2019 U.S. Dist. LEXIS 8236 (D. N.M. Jan. 17, 2019).*
Defendant claimed in his Rule 60(b) effort to supplement a 2255 petition, that there was fraud on the court in obtaining the search warrant in his case: “Additionally, Black cannot make the requisite showing as to his Rule 60(b) motion. In his motion, Black merely made a conclusory allegation of fraud committed by the government without providing any evidence, and he did not allege how the government’s alleged fraudulent conduct prevented him from fully presenting his case. Waddell v. Hendry Cty. Sheriff’s Office, 329 F.3d 1300, 1309 (11th Cir. 2003). Thus, reasonable jurists would not debate the district court’s denial of Black’s Rule 60(b) motion. Accordingly, Black’s motion for a COA is DENIED.” Black v. United States, 2019 U.S. App. LEXIS 1502 (11th Cir. Jan. 17, 2019).*
Posted inQualified immunity, Reasonable suspicion|Comments Off on D.N.M.: Pocket and backpack search and patdown of 21 students at school for stolen money was with RS so officer gets QI
Seizure of defendant’s clothing from a hospital room floor was justified by the plain view doctrine. United States v. Clancy, 2019 U.S. Dist. LEXIS 8471 (W.D. Tenn. Jan. 17, 2019), adopting, 2018 U.S. Dist. LEXIS 219585 (W.D. Tenn. Dec. 19, 2018).
City inspectors entering into public business areas did not violate the Fourth Amendment or invade any reasonable expectation of privacy. S. Allegheny Pittsburgh Rest. Enters. v. City of Pittsburgh, 2019 U.S. Dist. LEXIS 8314 (W.D. Pa. Jan. 17, 2019).*
Because officers did not ask defendant for the combination to his safe to search it under a warrant, he was not required to have the Indiana Pirtle advisement before they searched it. Brown v. State, 2019 Ind. App. LEXIS 14 (Jan. 15, 2019).*
On the totality of evidence, there was a substantial basis for concluding there was probable cause for issuance of the three search warrants in this case, and the motion to suppress was properly denied. State v. Carpenter, 2019-Ohio-58, 2019 Ohio App. LEXIS 66 (3d Dist. Jan. 14, 2019).*
Posted inProbable cause, Warrant execution|Comments Off on IN: Advice of Pirtle rights before search of safe under SW not required
Plaintiff stated a Franks claim that his arrest warrant was based on false evidence and omitted exculpatory evidence. The officer is denied qualified immunity. Rainsberger v. Benner, 17 2521 (7th Cir. Jan. 15, 2019): Continue reading →
Defendant’s clothing was properly seized under the plain view doctrine whether he was a suspect or a victim. Defendant also didn’t have standing in the car involved because it wasn’t his. United States v. Hood, 2019 U.S. Dist. LEXIS 5357 (N.D. Ga. Jan. 11, 2019).
There is no reasonable expectation of privacy in jail calls. Here, the court goes one step further and finds implied consent from making the call when hearing notice that the calls are being recorded. United States v. Christensen, 2019 U.S. Dist. LEXIS 6167 (C.D. Ill. Jan. 14, 2019).
Six month delay in getting a search warrant for a hard drive in a child pornography case was unreasonable. The government could give a good reason for the delays which might have justified it. Search recommended suppressed. United States v. Fife, 2018 U.S. Dist. LEXIS 218951 (N.D. Iowa Dec. 26, 2019).*
Defendant was stopped for going 43 in a 40, and that was a justified stop. The stop was based on the information from another officer under collective knowledge, and there was reasonable suspicion to continue the stop. Pier v. State, 2019 WY 3, 2019 Wyo. LEXIS 4 (Jan. 11, 2019)
Plaintiff’s claim that a search warrant for his house was retaliatory for First Amendment activities doesn’t overcome the fact there was independent probable cause for the warrant. Therefore, the Fourth Amendment claim fails. Fredin v. Clysdale, 2018 U.S. Dist. LEXIS 219049 (D. Minn. Dec. 20, 2018).
A search incident can precede the arrest. But, on the totality, the automobile exception applies. Defendant’s actions with the glove compartment and what was seen there amounted to probable cause. United States v. Johnson, 2019 U.S. App. LEXIS 640 (9th Cir. Jan. 9, 2019).*
Posted inIndependent source, Search incident|Comments Off on D.Minn.: 1A retaliatory SW claim defeated by actual PC for the warrant as an independent source
“The record was inadequate to review the defendant’s unpreserved claim that the search warrant for M’s cell phone records and the warrant for his arrest were obtained without probable cause because the police included false information in the affidavits in support of the issuance of those warrants, as the defendant did not challenge the sufficiency of the affidavits to support the warrants at trial, neither affidavit was entered into evidence or placed on the record, and, thus, there was no way to determine what information was included in the challenged affidavits or to evaluate the defendant’s claim; moreover, even if the record was adequate to review the claim, it nevertheless failed and lacked merit, as the defendant had no standing to assert his claim because he did not have a reasonable expectation of privacy in M’s cell phone records, and an illegal arrest does not void a subsequent conviction.” (Syllabus by the court) State v. Bethea, 2019 Conn. App. LEXIS 20 (Jan. 15, 2019).
Posted inSuppression hearings|Comments Off on CT: When challenging a SW affidavit’s PC, it needs to be in the record for appellate review
“As an initial matter, it is not clear that Lang even has standing to challenge the warrant. Lang testified (against the advice of counsel) that he was merely a temporary guest in his girlfriend’s mother’s residence, there to help ‘clean up’ after its owner/occupant’s death, that law enforcement did not search the premises while he was present and had refused to consent to any search, and that he was already in custody at the time the warrant was executed the following day.” … “Defendant has not met his burden to show that he had a subjective — much less a legitimate — expectation of privacy sufficient to challenge the search of someone else’s home, in which he was no more than a visitor, when he was no longer present.” United States v. Lang, 2018 U.S. Dist. LEXIS 218641 (S.D. Ga. Dec. 11, 2018), adopted, 2019 U.S. Dist. LEXIS 2679 (S.D. Ga. Jan. 7, 2019).
Posted inStanding|Comments Off on S.D.Ga.: Def was a day visitor, and it was tenuous at best he had standing; once he left, he sure didn’t
The officer had reasonable suspicion to stop defendant for suspicion of sexual assault since he was leaving the house from where the report came at 2:30 am. A search warrant for a flash drive found in defendant’s backpack was reasonable because the officer had information that defendant had allegedly previously recorded a sexual assault. State v. Brady, 2019-Ohio-46, 2019 Ohio App. LEXIS 54 (2d Dist. Jan. 11, 2019).
“‘The informing or failure to inform the accused concerning the implied consent law shall not affect the admissibility of such results in any case, including a prosecution for a violation of § 4177 of this Title.’” State v. Drake, 2018 Del. Super. LEXIS 1946 (Dec. 21, 2018)
Posted inConsent, Nexus, Probable cause|Comments Off on OH2: PC for SW for flash drive for possible evidence was shown by prior allegation of recorded assault
There is no Fourth Amendment issue in a police officer posing as a false friend on social media accounts to see defendant’s private pages he shares with others. Here, defendant was seen wearing a gold chain taken from his robbery victim, and it was admissible in evidence. People v. Pride, 2019 Cal. App. LEXIS 34 (4th Dist. Jan. 11, 2019).
Defendant consented to a search of text messages on his cell phone for alleged sexual extortion evidence, which led to finding a picture of sex with a minor. The consent was voluntary. United States v. Gitto, 2019 CCA LEXIS 6 (N-M Ct. Crim. App. Jan. 9, 2019).*
Posted inConsent, Social media warrants|Comments Off on Cal.4: There is no 4A issue in police creating fake social media identities to “friend” a suspect to see more private pages
CSLI was admitted at trial without objection. Carpenter was decided after the notice of appeal. On plain error review, there is no error because the CSLI was lawfully obtained at the time and the good faith exception applies. United States v. Ibarra-Banuelos, 2019 U.S. App. LEXIS 981 (6th Cir. Jan. 10, 2019).*
Defendant’s tag light being out was cause for his stop, and then the officer smelled marijuana coming from the car. United States v. Hardy, 2018 U.S. Dist. LEXIS 218691 (W.D. Tenn. Nov. 21, 2018), adopted, 2019 U.S. Dist. LEXIS 2524 (W.D. Tenn. Jan. 7, 2019).*
Playpen warrant was valid under good faith exception. United States v. Moorehead, 2019 U.S. App. LEXIS 639 (6th Cir. Jan. 9, 2019).*
Defendant was not entitled to discovery of the exploit code used in the NIT warrant to locate him. Many other cases are in accord. United States v. Tagg, 2019 U.S. Dist. LEXIS 3828 (E.D. Mich. Jan. 9, 2019).*
Posted inGood faith exception|Comments Off on CA6 sustains Playpen warrant under GFE
The exclusionary rule does not apply to a Social Security ALJ’s determination on supplemental income unless the illegal search can be shown to be egregious. Viewing the video, this one was not. Foote v. Berryhill, 2019 U.S. App. LEXIS 928 (9th Cir. Jan. 10, 2019): Continue reading →
Posted inExclusionary rule|Comments Off on CA9: Exclusionary rule doesn’t apply is SSI proceedings unless illegal search “egregious”
"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.
