Defendant didn’t plead enough to get a state court hearing on his Franks issue. The state court’s decision falls within Stone v. Powell’s “full and fair opportunity” to litigate, and he took that issue up on his state appeal. Rooks v. Brewer, 2018 U.S. Dist. LEXIS 22954 (E.D. Mich. Feb. 13, 2018).*
State appellate counsel chose not to pursue a Fourth Amendment claim that defendant’s cell phone was unreasonably searched after the trial court sustained it. On post-conviction, the state court found contents of the cell phone harmless compared to all the other proof in the case, and that was not an unreasonable determination under AEDPA. Chavira v. Soto, 2018 U.S. Dist. LEXIS 22889 (S.D. Cal. Feb. 13, 2018).*
In a domestic relations order of protection dispute, defendant’s challenge to the search warrant affidavit as inadmissible hearsay is harmless because there was other competent evidence to support the findings. Whitaker v. Whitaker, 2018 Neb. App. LEXIS 30 (Feb. 13, 2018)* (memorandum).
Posted inFranks doctrine|Comments Off on E.D.Mich.: State court’s finding def didn’t plead enough for Franks hearing was not “unreasonable” for AEDPA
Lawmakers are considering long-overdue civil asset forfeiture reform, and law enforcement leaders aren’t happy.
Posted inForfeiture|Comments Off on Reason: Alabama Prosecutor, Sheriff Threaten to Put More People in Prison in Order to Keep Seizing Massive Amounts of Property
Defendant was a police officer and he’s convicted here of cirminal civil rights violation for wrongful entry into the victim’s house. The event started when the victim came home to his apartment building, found defendant parked in his parking spot, and he asked defendant to move. He told the victim he would when he felt like it. The victim said something to the effect of “fuck off” and walked toward his apartment. Defendant told him to repeat himself and the victim said: “I did not stutter. I said ‘fuck off.’” and he went in his apartment. Defendant went to the door (body camera on) and demanded that he come out, and he refused without a warrant. “Baize repeatedly refused, saying that defendant needed a warrant, but defendant responded that he did not ‘need no warrant.’ Defendant told Baize that ‘right now you’re out here hollering at me and you ran in there, which means there’s exigent circumstances.’ Baize again refused to come outside. Defendant reached inside Baize’s home to grab Baize, who braced himself against his doorjamb and said ‘you are not allowed in my house.’ Defendant then entered Baize’s home, grabbed Baize by the back of the neck, and began to arrest him.” The entry and arrest were without probable cause or exigent circumstances and the victim was maliciously prosecuted for three misdemeanors. “It is therefore impossible, under defendant’s theory, that defendant had probable cause to believe Baize had met all of the elements of fleeing and evading when defendant made the decision to arrest.” United States v. Corder, 2018 U.S. App. LEXIS 3225 (6th Cir. Feb. 12, 2018).
Posted inArrest or entry on arrest|Comments Off on CA6: LEO’s conviction for criminal civil rights violation for wrongful entry to arrest affirmed
The defendant filed a motion to suppress under Franks alleging numerous falsehoods in the search warrant application issued by a state judge in Arizona. “James is surprised by the government’s response. Rather than defend the credibility and integrity of the law enforcement officer who is the affiant on the warrant, the government has simply informed the court of its intent to refrain from using any evidence seized.” Therefore, the motion to suppress is moot. United States v. James, 2018 U.S. Dist. LEXIS 22292 (D. Nev. Feb. 12, 2018).*
Defendant pled guilty, and he can’t show that defense counsel’s failure to challenge the search warrant caused him to plead guilty or that he would even win a suppression motion. Brown v. State, 2018 Miss. App. LEXIS 64 (Feb. 13, 2018).*
Posted inFranks doctrine|Comments Off on D.Nev.: Def files a Franks challenge to a state issued SW, and the government says it won’t use the product of the search
“As explained in the plea agreement, the search warrant was a state warrant obtained by the Lexington Police Department. D.E. 95 at 2. The materials related to the warrant are not in the record of this case. Strickland provides no factual support for this claim. The Court cannot find a meritorious Fourth Amendment claim when Strickland points to no alleged defect in the warrant materials. Thus, this claim fails under both the factual-support rule of Blackledge and Elzy and the meritorious-claim rule of Kimmelman.” He just alleges the search was bad and doesn’t say how. United States v. Strickland, 2018 U.S. Dist. LEXIS 23432 (E.D. Ky. Jan. 22, 2018), adopted, 2018 U.S. Dist. LEXIS 23036 (E.D. Ky. Feb. 13, 2018).
Posted inIneffective assistance|Comments Off on E.D.Ky.: To claim IAC for not challenging SW, the affidavit and SW have to be in the 2255 submission or say how
The trial court properly granted defendant’s motion to suppress because his consent to a search for drugs or firearms “in the vehicle” did not authorize an officer to search under the vehicle’s hood and to remove the air filter, since a reasonable person would have understood the scope of such consent to be limited to a search of the interior of the vehicle, including the trunk. Under the Fourth Amendment and the state constitution, unless it was reasonably clear that the consent to search extended beyond the interior of the vehicle, the police had to obtain explicit consent before a vehicular search could extend beneath the hood; where such consent was not reasonably clear at the outset, the defendant’s silence when the police opened the hood cannot be an adequate substitute for consent. Commonwealth v. Ortiz, 2018 Mass. LEXIS 26 (Feb. 12, 2018).
Posted inConsent, Scope of search|Comments Off on MA: Consent to search for firearms and drugs “in the vehicle” wasn’t notice that the officer would search under the hood; no consent for that search
The officer made a drug arrest in the park, and defendant was around and fidgeting with his hands repeatedly going in and out of his pockets. A frisk of defendant for a weapon was reasonable, but a search of his wallet was unjustified. The fact a search incident could have occurred doesn’t work for the state because there was no arrest. Shay v. State, 2018 Ark. App. 101, 2018 Ark. App. LEXIS 112 (Feb. 7, 2018).
The DEA got a search warrant for defendant’s house and previously had a tracking device on his vehicle. When the search warrant was executed, they searched the vehicle parked on the street. There was probable cause as to it, it was mobile and parked in front of his house, and it was subject to seizure for civil forfeiture for having hauled drugs, even if the search warrant didn’t cover defendant’s vehicles at the house. United States v. Dickerson, 2018 U.S. Dist. LEXIS 22099 (W.D. Tex. Feb. 12, 2018).*
A civil commitment detainee has more rights than a convict in a jail, but still practically none in his living area from a search for alleged contraband. Warrior v. Santiago, 2018 U.S. Dist. LEXIS 22742 (E.D. Cal. Feb. 12, 2018).
Assuming the officer conducted a search by opening the rear passenger door, his plain view was the same as if the passenger had rolled down the window as he initially requested. That’s inevitable discovery. “Nor is there reason to doubt that, upon request, Alvarado would have handed Campbell the bottle through the window, as she did through the open door. The court thus finds that, had Campbell never opened the door, he inevitably would have seen the bottle, gained possession of it, read its label, and discovered that it was a prescription belonging to someone other than the occupants of the car. The evidence found in Campbell’s subsequent search is therefore not tainted by his opening of the door.” United States v. Aranda, 2018 U.S. Dist. LEXIS 22679 (M.D. Tenn. Feb. 12, 2018).*
Weapons tossed by somebody other than the defendant aren’t abandoned as to the defendant. The search was valid as a parole search under state law. United States v. Scott, 2017 U.S. Dist. LEXIS 217307 (E.D. N.C. Dec. 20, 2017) (R&R).
Defendant submitted no affidavit claiming an interest in the parcel here sufficient to give him standing to contest the search. Even so, the search was with a search warrant issued on probable cause. United States v. Villegas, 2018 U.S. Dist. LEXIS 21940 (W.D. N.Y. Feb. 9, 2018).*
Posted inAbandonment, Burden of pleading|Comments Off on E.D.N.C.: Weapons tossed by somebody other than def isn’t his abandonment
New Orleans has proposed ordinance 32,107 regulating bars, and part is about surveillance systems. This caught my eye because, in college, I first considered the privacy concerns of street cameras being installed here. That was probably 1969-70, and Katz was only about a year old. [Do the math.] Back then, it sounded too “Big Brothery” for me. Today, it’s de rigueur. I saw a sign in a window of a side street bar (none of these on Bourbon Street, probably because there’s no room) with this, noting that the ordinance Continue reading →
Posted inAdministrative search, Surveillance technology|Comments Off on NOLA considering ordinance to put surveillance cameras in and outside all bars feeding to a city central server
A police officer’s handcuffing a compliant child after a discussion in the school office violated the child’s Fourth Amendment rights. The event was long past with no risk of violence being shown by the child by the time that happened. The law, however, wasn’t clearly established by that time, and the officer gets qualified immunity. E.W. v. Dolgos, 2018 U.S. App. LEXIS 3245 (4th Cir. Feb. 12, 2018): Continue reading →
When the person in the photo is a white man, the software is right 99 percent of the time. But the darker the skin, the more errors arise – up to nearly 35 percent for images of darker skinned women, according to a new study that breaks fresh ground by measuring how the technology works on people of different races and gender.
“They all look alike to me” written into software. I can see this coming up in a mistaken ID case, which, by coincidence, is in my local paper today.
Posted inSurveillance technology|Comments Off on NYTimes: Facial Recognition Is Accurate, if You’re a White Guy
The officer here stopped Perez and Ramirez when he reasonably suspected Perez of carrying a firearm. The situation was tense, and, on the totality, the court finds the frisk of Ramirez, too, was reasonable for officer and public safety. Commonwealth v. Ramirez, 2018 Mass. App. LEXIS 16 (Feb. 9, 2018): Continue reading →
Posted inStop and frisk|Comments Off on MA: Two men walking together are stopped because of RS as to one; frisk of second was reasonable for officer safety
The affidavit only showed probable cause to search for weapons, not drugs, and there was no probable cause for drugs in the affidavit. As to drugs, the search warrant is suppressed. Defendant also raised the argument that the officer sought to “juice up” the affidavit by mentioning that defendant claimed he was a “sovereign citizen” and above the law who was more likely to be armed. [That’s unanswered because it doesn’t have to be.] State v. Hakim, 2018-Ohio-492, 2018 Ohio App. LEXIS 495 (8th Dist. Feb. 8, 2018).
Posted inOverseizure, Warrant execution|Comments Off on OH8: Affidavit for SW showed PC for weapons only; search for drugs exceeded SW’s limits
Defendant was subject to a state parole search condition that required reasonable suspicion and is also governed by Griffin’s special needs exception. “the language in a parole search condition is an important factor to consider when assessing the reasonableness of an individual’s expectation of privacy. See Knights, 534 U.S. at 118; Samson, 547 U.S. at 847, 852; United States v. Hill, 776 F.3d 243, 249 (4th Cir. 2015) (citing Knights and Samson and determining that a person on federal supervised release is not subject to warrantless home searches unless a condition authorizing such searches is imposed).” The government fails to establish reasonable suspicion or special needs for this search. [Note that this is the only area of the Fourth Amendment where state law does govern reasonableness. The rule varies from state to state and depends explicitly on the scope of the state authorization, and that binds in federal court.] United States v. Vanderwerf, 2017 U.S. Dist. LEXIS 217034 (E.D. N.C. Dec. 21, 2017).
Posted inProbation / Parole search|Comments Off on E.D.N.C.: State law limits on parole and probation’s search authority applies in federal court; it defines the REP
“This means that pursuant to section 108(1-A), French was not entitled to use nondeadly force against Ferland—who was trying to arrest her—for the purpose of defending her premises, regardless of the lawfulness of Ferland’s entry into the residence or his resulting presence inside.” Not error to deny jury instruction. State v. French, 2018 ME 21, 2018 Me. LEXIS 25 (Feb. 8, 2018).
Posted inArrest or entry on arrest|Comments Off on ME: Nondeadly force can’t be used on a LEO arresting def in def’s own home
It doesn’t violate any law or constitutional provision for a state trial court judge to issue a search warrant and then preside over the trial of the case. McKinley v. State, 2018 Tenn. Crim. App. LEXIS 91 (Feb. 9, 2018).
The City of San Francisco has a searchable database of landlord-tenant buyout agreements, and the database has redacted information about tenants but not landlords. The landlords have no protectable privacy interest in the information under the California Constitution [the Fourth Amendment not being an issue]. San Francisco Apt. Ass’n v. City & County of San Francisco, 2018 U.S. App. LEXIS 3051 (9th Cir. Feb. 8, 2018).*
"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.
