On remand from the Sixth Circuit in this forfeiture case on the question of standing, claimant asserted Fourth Amendment privilege to all discovery requests about his standing to claim the money. The court finds no facts for standing means no standing. United States v. $774,830.00 in United States Currency, 2024 U.S. Dist. LEXIS 51965 (N.D. Ohio Mar. 25, 2024), on remand from United States v. $774,830.00 in U.S. Currency, 2023 U.S. App. LEXIS 3624 (6th Cir. Feb. 13, 2023).
This search warrant in a fraud case is particular because of incorporated documents and limiting the search to records of nine entities. United States v. Yanping Wang, 2024 U.S. Dist. LEXIS 51531 (S.D.N.Y. Mar. 22, 2024).*
Plaintiff, an alleged school bully, was told to remove his shoes and sweatshirt to look for banned items from school. This was not a strip search, as it was alleged, and it was justified and reasonable. Having decided that, qualified immunity doesn’t even have to be decided. Vlahopolous v. Roslyn Union Free Sch. Dist., 2024 U.S. Dist. LEXIS 51625 (E.D.N.Y. Mar. 22, 2024).*
The juvenile here was searched for weapons three days into his sophomore year. He was known to bring firearms to school, and his family and the school developed a “safety plan” to permit searches, which happened most of the freshman year. It was three days into the sophomore year before he was finally searched, and a gun was found. He was sent to juvenile court. The search was reasonable under T.L.O. and not just based on his criminal history. People in Interest of J.G., 2024 CO 16, 2024 Colo. LEXIS 240 (Mar. 25, 2024):
Posted inGPS / Tracking Data, Surveillance technology|Comments Off on NYU L. Rev.: If Wheels Could Talk: Fourth Amendment Protections Against Police Access to Automobile Data
Virginia Lawyers Weekly: Officials denied immunity for strip searching jail nurse by Nick Hurston (Mar. 24, 2024) (“Prison officials who strip searched a jail nurse were not entitled to qualified immunity because mistaking her for an inmate was unreasonable and her right to be free from unreasonable strip searches was clearly established, the 4th U.S. Circuit Court of Appeals has held. [¶] The officers argued that misidentifying the nurse as an inmate meant they didn’t need individualized suspicion that she possessed contraband to conduct a strip search. [¶] Chief U.S. Circuit Judge Albert Diaz said the officers’ error was unreasonable; their subjective belief was immaterial.”). The case was decided a month ago.
Posted inUncategorized|Comments Off on VA Lawyers Weekly: Officials denied immunity for strip searching jail nurse
Defendant in his car in a high crime area with overly tinted windows was not reasonable suspicion. Any furtive movements were attributed to the officer opening the door to see in the car for officer safety. The protective sweep of the car was unreasonable. Citing a 1990 state case, the good faith exception doesn’t apply to reasonable suspicion. State v. Williams, 2024 Ohio App. LEXIS 1009 (1st Dist. Mar. 22, 2024).
Defendant’s arrest for domestic violence was with probable cause so the trial court is reversed. State v. Gipp, 2024-Ohio-1076 (2d Dist. Mar. 22, 2024).*
The affidavit for warrant here showed probable cause to believe defendant was involved in a large-scale drug operation, and nexus was shown to his home. “Finally, Tatum’s motion does not contend that the agents and officers executing the search warrant lacked a good faith reliance on the warrant. But even assuming arguendo that the affidavit was somehow lacking, the officers executing the search warrant were acting in reasonable and good faith reliance on it.” United States v. Tatum, 2024 U.S. Dist. LEXIS 51432 (E.D. Mo. Feb. 26, 2024).*
An off-duty police officer has the authority to make a traffic stop. Defendant cites no law that says they can’t. In addition, he had probable to make the stop. State v. Netter, 2024-Ohio-1068, 2024 Ohio App. LEXIS 997 (4th Dist. Mar. 20, 2024).
Plaintiff’s excessive force claim in jail fails for lack of clearly established law. Farris v. Oakland Cty., 2024 U.S. App. LEXIS 6838 (6th Cir. Mar. 22, 2024).*
Defendant’s post-conviction claim that his defense counsel didn’t obtain the search warrant materials so they could evaluate them didn’t state a claim. [In addition, there’s nothing in the opinion about whether the claim would be any good.] Reyburn v. State, 2024 Fla. App. LEXIS 2208 (Fla. 5th DCA Mar. 22, 2024).*
After a suppression hearing, the trial court orally denied the motion to suppress after hearing conflicting evidence. The state was to prepare findings and didn’t. After defendant was convicted on that evidence, there was nothing for the appeal. Remanded for findings of fact and conclusions of law. State v. Jordan, 2024 N.C. LEXIS 145 (Mar. 22, 2024).
Defendant would have been arrested for driving without a license, and the contraband on his person would have been found in a search before going into the patrol car for transport. Therefore, inevitable discovery. State v. Jackson, 2024 N.C. App. LEXIS 226 (Mar. 19, 2024).*
The Fourth Amendment claim that marijuana and hemp smell the same and thus there was no plain smell was waived by the guilty plea. United States v. Perdue, 2024 U.S. App. LEXIS 6839 (6th Cir. Mar. 20, 2024).*
There were mistakes in the affidavit that at least gets defendant a Franks hearing. The government, however, will get to provide more information about the justification for a protective sweep which is not confined to the four corners. United States v. Lopez, (GRB), 2024 U.S. Dist. LEXIS 50786 (E.D.N.Y. Mar. 21, 2024).
Even if the tracking warrant for defendant’s car had expired and was void, his flight from police when they lit him up provided an independent basis for his stop and arrest with probable cause. Therefore, no ineffective assistance of counsel. United States v. Pickens, 2024 U.S. Dist. LEXIS 50090 (D. Minn. Mar. 21, 2024).*
Under Roviaro and other cases, defendant doesn’t get discovery of the CIs that led to the search warrant. United States v. Young, 2024 U.S. Dist. LEXIS 49629 (D.N.M. Mar. 20, 2024).*
Defendant was arrested in the hallway outside his apartment. The entry when he went in to get his keys and shoes was reasonable. Neal El v. Showman, 2024 U.S. Dist. LEXIS 50545 (N.D. Ohio Mar. 21, 2024).*
April 11th, register here, but only for NACDL members:
Automatic License Plate Reader (ALPR) surveillance systems are getting more sophisticated and cheaper, meaning they are increasingly accessible to police. ALPRs can gather information about people and their movements, but law enforcement also use them creatively: creating associations between vehicles and identifying “suspicious” travel patterns. As more police departments use ALPRs in new ways, defense lawyers need to be prepared. [Coincidentally, the email about this webinar came just as I posted the following case.]
Even if Carpenter applied to automated license plate readers, it was decided the day after this happened, so the good faith exception would apply in any event. In addition, the officer’s testimony about it was lay testimony under F.R.E. 702. United States v. Mapson, 2024 U.S. App. LEXIS 6785 (11th Cir. Mar. 21, 2024).
Defendant’s detention for loitering because he was standing with two others at an intersection was without any justification at all. Moreover, the officer had great difficulty explaining what the loitering statute meant. It’s not suggestive of a crime to stand at an intersection, and there’s no indication they were impeding movement on the sidewalk. McDougal v. State, 2024 Del. LEXIS 97 (Mar. 21, 2024).*
Defendant’s ineffective assistance of counsel claim that a reenactment of the crime violated the Fifth and Fourth Amendment and wasn’t objected to fails under Strickland for lack of prejudice. The proof of homicide was overwhelming. People v. Logan, 2024 IL 129054 (Mar. 21, 2024).*
“The Supreme Court has repeatedly admonished courts ‘not to define clearly established law at a high level of generality.’ Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (citation omitted). ‘The dispositive question is “whether the violative nature of particular conduct is clearly established.” … Such specificity is especially important in the Fourth Amendment context.” Mullenix v. Luna, 577 U.S. 7, 12, 136 S. Ct. 305, 308 (2015) (emphasis in original) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S. Ct. 2074, 2084 (2011)).” United States Court of Appeals Fifth Cir. Filed Donald Woods v. Harris County, 2024 U.S. App. LEXIS 6684 (5th Cir. Mar. 19, 2024).*
“‘[S]pecificity is especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an offic[ial] to determine how the relevant legal doctrine … will apply to the factual situation the offic[ial] confronts.’ Id. (citation omitted). Finally, whether a government official may be held liable ‘generally turns on the ‘objective legal reasonableness’ of the action, … assessed in light of the legal rules that were “clearly established” at the time it was taken.’ Jenkins, 838 F.3d at 946-47 (quoting Anderson v. Creighton, 483 U.S. 635, 639-40 (1987)).” Davitt v. Spindler-Krage, 2024 U.S. App. LEXIS 6697 (8th Cir. Mar. 21, 2024).*
Posted inQualified immunity|Comments Off on Two more on “clearly established”
Even if the jury could conclude that the fifth and sixth shots into decedent’s body were unreasonable, the officer was entitled to qualified immunity because decedent was trying to get up and there’s no clearly established law. Est. of Hernandez v. City of L.A., 2024 U.S. App. LEXIS 6729 (9th Cir. Mar. 21, 2024).
Plaintiff was advancing on the officer with a knife and had stabbed the police dog. He was shot 8′ away. There’s no case like this, so qualified immunity. Kelley v. O’Malley, 2024 U.S. App. LEXIS 6734 (3d Cir. Mar. 21, 2024).*
The fact a search warrant was obtained from a USMJ in a separate division of the same district isn’t unreasonable. United States v. Triplett, 2024 U.S. Dist. LEXIS 49876 (N.D. Ohio Mar. 21, 2024).*
“Here, Jean-Baptiste did not plead sufficient facts to state a valid Fourth Amendment claim premised on the alleged monitoring of his laptop. He also did not plead non-conclusory facts suggesting that any conduct was motivated by unlawful discrimination or unconstitutional conduct, and neither the federal statutes he cited, nor the Ninth Amendment, provides an independent source of substantive rights.” Jean-Baptiste v. United States DOJ, 2024 U.S. App. LEXIS 6598 (2d Cir. Mar. 20, 2024).*
A few lawyer friends elsewhere have asked; here’s the unsealed and redacted search warrant for the ATF raid of the Little Rock Airport Executive Director’s house that led to his death during the raid earlier this week.
A search warrant isn’t void because the affidavit in support was missing a notary seal. The rest of the statutory requirements were satisfied, and this wasn’t an error of constitutional magnitude. State v. Whittle, 2024-Ohio-1023,2024 Ohio App. LEXIS 958 (1st Dist. Mar. 20, 2024).
Under red flag law, surrender of an illegal weapon under court order is self-incriminating and protected by the Fifth Amendment. In re R.M. v. C.M., 2024 NY Slip Op 01545, 2024 N.Y. App. Div. LEXIS 1556 (2d Dept. Mar. 20, 2024).*
Officers had reasonable suspicion defendant might be armed which would mean he was a felon in possession and that justified handcuffing. State v. Harris, 2024-Ohio-1025, 2024 Ohio App. LEXIS 960 ((1st Dist. Mar. 20, 2024).*
The USMJ erred in finding a Fourth Amendment claim in plaintiff’s complaint when plaintiff didn’t specifically plead one. Daniels v. Christoff, 2024 U.S. Dist. LEXIS 49388 (E.D. Mich. Jan. 24, 2024).*
The stop of defendant’s car for expired tags but within the period of the state’s Covid executive order extending time to register cars was objectively not reasonable, even where the officer was unaware of the meaning of the EO. United States v. Castillo, 2024 U.S. Dist. LEXIS 48480 (E.D. Cal. Mar. 19, 2024).
The affidavit for the search warrant for defendant’s cell phone showed probable cause to believe that defendant was involved in his wife’s murder and that cell phone calls were made that could be evidence in the case. Pugh v. State, 2024 Ga. LEXIS 80 (Mar. 14, 2024).*
Probable cause was shown by a common sense reading of the affidavit for defendant’s CSLI to connect him to a murder. State v. Wiggins, 2024 Minn. LEXIS 134 (Mar. 20, 2024).*
This search warrant was executed at 6 am, and the district court erred in granting the motion to suppress. “While 6:00 a.m. is the earliest time provided, it cannot be said that executing a warrant in accordance with its text–which directly mirrors Rule 41–is unreasonable. [No law was cited.] Given that we review the officers’ actions objectively, we see no reason to hold that the officers’ decision to execute the search in line with the warrant and the federal rules was unreasonable. [¶] The officers’ forcible entry into Joyce’s apartment–after knocking and announcing their presence and waiting thirty to fifty seconds–was also not unreasonable. [¶] To begin, the thirty-to-fifty-second wait was reasonable because the officers on the scene ‘had a general idea of the apartment’s size and possible layout,’ which was only one floor with one or two bedrooms.” United States v. Joyce, 2024 U.S. App. LEXIS 6603 (2d Cir. Mar. 20, 2024).
Defendant’s tail light was out and that objectively justified this stop. United States v. Blakeney, 2024 U.S. App. LEXIS 6593 (3d Cir. Mar. 20, 2024).*
A tribal search warrant was issued for defendant’s car which was attacked as not complying with Rule 41 [which is irrelevant]. It was issued with probable cause and the good faith exception would apply. But, the search of the vehicle was valid under the automobile exception. She also didn’t have standing to challenge the search of another person’s house. United States v. Floyd, 2024 U.S. Dist. LEXIS 48793 (D.S.D. Mar. 18, 2024).*
Suspecting VA benefits fraud, the VA OIG surveilled defendant for months and then installed a remote controlled and motion activated pole camera on top of a school across the street. They had 15 hours of video for 68 days, and it was used to prosecute him for VA benefits fraud. The use of the pole camera was reasonable. Carpenter doesn’t require different result. Nothing the camera saw was what passersby could see, even at night. United States v. Hay, 2024 U.S. App. LEXIS 6491 (10th Cir. Mar. 19, 2024). Update: techdirt: 10th Circuit Appeals Court Says 68 Days Of Pole Camera Surveillance Doesn’t Violate 4th Amendment by Tim Cushing
Drug testing of schoolteachers requires reasonable suspicion by state law. The court looks to the criminal law to define it, and the school had it. Bartolotta v. Hum. Res. Agency of New Britain, Inc., 2024 Conn. App. LEXIS 65 (Mar. 19, 2024).
Alleged misstatement in the affidavit for warrant about defendant’s role in the DTO was not material for probable cause and purposes. United States v. Locke, 2024 U.S. Dist. LEXIS 48058 (E.D. Wis. Mar. 19, 2024).*
Defendant was on supervision for a sex offense. He was required to disclose all his dating relationships. A parole search of his cell phone was reasonable, and it revealed other violations. In re Pers. Restraint of Allgoewer, 2024 Wash. App. LEXIS 511 (Mar. 19, 2024).
2254 petitioner had his full and fair opportunity to litigate his Fourth Amendment claim and did. Hrytsyak v. Ohio, 2024 U.S. Dist. LEXIS 48010 (N.D. Ohio Feb. 7, 2024).*
The district court did not adequately explain the search condition on supervised release. Vacated. United States v. Jackson, 2024 U.S. App. LEXIS 6398 (4th Cir. Mar. 18, 2024).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"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
"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]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"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)
