Defendant was ordered out of his vehicle during a traffic stop, but there were no grounds to search it, starting with a cigarette pack. Motion to suppress granted. United States v. Ramos-Rios, 2017 U.S. Dist. LEXIS 102516 (D. P.R. June 29, 2017).*
Defendant and his girlfriend lived with his father in the father’s apartment. The police came looking for defendant and the father admitted them and allowed them to follow him to the son’s apartment. He fled out the back door. The entry leading to the finding of marijuana otherwise in plain view was with consent. People v. Colon, 2017 NY Slip Op 05343, 2017 N.Y. App. Div. LEXIS 5423 (4th Dept. June 30, 2017).*
Defendant was likely under the influence, but the officer lacked reasonable suspicion that he was in possession of drugs for the detention. State v. Davis, 286 Ore. App. 528, 2017 Ore. App. LEXIS 861 (July 6, 2017): Continue reading →
Posted inReasonable suspicion|Comments Off on OR: Def being under influence of drugs isn’t per se RS he’s in possession
Defendant’s claim that the officers did not follow administrative regulations on conducting his parole search was moot where the trial court also found defendant consented to the search and he didn’t challenge consent. State v. Holley, 2017 Conn. App. LEXIS 279 (July 11, 2017).
The CI’s admissions against penal interest and the officer’s corroboration of them supported probable cause to search. Fosen v. State, 2017 WY 82, 2017 Wyo. LEXIS 82 (July 6, 2017),*
Posted inInformant hearsay, Standards of review|Comments Off on CT: When two grounds are found to support the search, def on appeal has to challenge both
Defendant’s [creative] argument that the probable cause for search of defendant’s car dissipated when another person came into the equation is rejected. In fact, it appears contemplated. United States v. Henley, 2017 U.S. Dist. LEXIS 105138 (N.D. Ga. May 19, 2017).*
Playpen warrant was properly issued and executed under the good faith exception. United States v. Hart, 2017 U.S. Dist. LEXIS 102833 (M.D. Fla. April 25, 2017),* adopted, 2017 U.S. Dist. LEXIS 101952 (M.D. Fla. June 30, 2017).*
The stop was justified by the license not matching the vehicle, so it wasn’t pretextual. United States v. Barnette, 2017 U.S. Dist. LEXIS 102835 (N.D. Ga. June 1, 2017),* adopted, 2017 U.S. Dist. LEXIS 101900 (N.D. Ga. June 30, 2017).*
Posted inPretext, Probable cause|Comments Off on N.D.Ga.: PC for search of def’s car didn’t dissipate just because another person came into the case
“Because they had a reasonable suspicion of criminal activity, the BPD officers were entitled to exert a minimal restraint on Defendant’s freedom of movement by directing him to roll down his vehicle’s windows in order to investigate further.” “In the instant case, for a little over an hour, Defendant stood outside his rental vehicle in a public parking garage and spoke in a conversational manner with two police officers in plain clothes with holstered firearms. During the encounter, he was permitted to call Ms. Roberts on his cell phone and he arranged for Sergeant Petralia to speak with her as well. It is unclear whether the BPD officers retained his identification or returned it to him. It is uncontroverted, however, that Defendant was not subjected to displays or threats of force.” United States v. Alexander, 2017 U.S. Dist. LEXIS 101803 (D. Vt. June 30, 2017).*
Posted inReasonable suspicion|Comments Off on D.Vt.: Officers had RS when they told def to roll his window down
Defendant’s lawyer was present at the time consent was granted and advised defendant to do so. The consent is valid. United States v. Beckman, 2017 U.S. Dist. LEXIS 101142 (E.D. Mo. June 1, 2017), adopted, 2017 U.S. Dist. LEXIS 99954 (E.D. Mo. June 28, 2017).
The officer’s statement to the defendant was that he had to give a blood test, so the state failed to prove by clear and convincing evidence that the blood draw was without coercion. State v. Blackman, 2017 WI 77, 2017 Wisc. LEXIS 392 (July 7, 2017).*
Posted inConsent|Comments Off on E.D.Mo.: Def’s lawyer was present and advised on consent, and it was voluntary
Payton does not require that an arrest warrant also be obtained to arrest a suspect during the execution of a search warrant on his premises. Defendant was lawfully arrested in the house when the search warrant was executed. United States v. Hoisington, 2017 U.S. Dist. LEXIS 99459 (D. Vt. June 27, 2017).
Defendant showed he was an overnight guest, and he thus had standing to challenge the search of the apartment. The court “find[s] the officers’ warrantless entry into the apartment was justified under the community caretaker exception [because there were children inside] but not under the exigent circumstances exception based on a fear that evidence would be destroyed.” United States v. Sallis, 2017 U.S. Dist. LEXIS 100758 (N.D. Iowa June 28, 2017),* adopted, 2017 U.S. Dist. LEXIS 123867 (N.D. Iowa Aug. 7, 2017).*
The court finds the officer’s testimony credible: “The court is likewise unpersuaded by the defendants’ arguments that Arwood’s testimony regarding the events of the day and his reason for stopping defendants’ vehicle lacks credibility. Defendants raise a litany of concerns about Arwood’s statements, but offer no evidence to refute his testimony. Instead, the court is left with only bare suppositions, which in this case the court finds insufficient to tip the balance in favor of finding Arwood’s testimony incredible or untrustworthy. Arwood’s testimony at the suppression hearing was not so ‘exceedingly improbable,’ ‘unbelievable,’ or ‘contrary to the laws of nature’ that ‘no reasonable factfinder could accept it.’ See United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (emphasis in original). Thus, the court accepts as credible Arwood’s testimony and has no reservations relying on it in determining that the initial stop was constitutional.” United States v. Anguiano, 2017 U.S. Dist. LEXIS 99169 (M.D. Ala. Feb. 24, 2017),* adopted, 2017 U.S. Dist. LEXIS 98091 (M.D. Ala. June 26, 2017),* reaffirmed, 2017 U.S. Dist. LEXIS 116789 (M.D. Ala. July 26, 2017).*
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Posted inBurden of proof, Reasonable suspicion|Comments Off on M.D.Ala.: Supposition isn’t enough to discredit officer’s testimony about the stop
Defense counsel didn’t provide ineffective assistance of counsel for not pursuing a motion to suppress consent to search her cell phone. Defendant verbally consented to search her home and then in writing, and then she verbally consented to the search of her phone, entered the passcode, and then disabled the passcode. State v. Dawson, 2017-Ohio-5709, 2017 Ohio App. LEXIS 2742 (7th Dist. June 15, 2017).
There almost certainly was probable cause for defendant’s arrest, so “Counsel was not ineffective for failing to raise a meritless argument.” Lynn v. United States, 2017 U.S. Dist. LEXIS 105157 (N.D. Tex. June 12, 2017).*
Punching plaintiff in the face was objectively reasonable on these facts, and the officer is entitled to qualified immunity. “Viewing the evidence in the light most favorable to Avery, Davis saw a brawl break out between two groups of young men. He saw one of them, Avery, chasing someone from the other group, apparently in an effort to continue the brawl. Davis saw Avery continuing to run full speed in his direction despite the fact that his police car’s blue lights were illuminated, and despite the fact that he was wearing a police uniform. ‘An objectively reasonable officer’ in Davis’ situation, confronted with that set of facts, ‘could have believed the use of force was not excessive.’ See Brown, 608 F.3d at 738. As a result, the district court erred in denying Davis qualified immunity as to the excessive force claim.” Avery v. Davis, 2017 U.S. App. LEXIS 12058 (11th Cir. July 6, 2017).*
The record supported that defendant consented to the search of his car. The IAC claim was denied because the failure to call one of the officers would not have changed the outcome. State v. Floyd, 2017 WI 78, 2017 Wisc. LEXIS 397 (July 7, 2017).
There was probable cause for issuance of the search warrant in this case, and, in any event, the good faith exception would apply. United States v. Salsberry, 2017 U.S. Dist. LEXIS 105191 (W.D. Mo. May 18, 2017),* adopted, 2017 U.S. Dist. LEXIS 104576 (W.D. Mo. July 6, 2017).*
Posted inIneffective assistance, Probable cause|Comments Off on WI: Failure to call one officer was not IAC because it wouldn’t change the outcome of suppression hearing
Plaintiffs’ neighbor made a 911 call about a possible altercation with a gun. The Pima County AZ Sheriff’ Office arrived, beat on the door and ordered the plaintiffs out, handcuffed them and placed them in police cars, and then searched their house. The neighbor came and said that they were searching the wrong house. $1.25M verdict affirmed with $200k in attorneys fees. The county admitted a violation of the plaintiffs’ constitutional rights. Larson v. Napier, 2017 U.S. App. LEXIS 11453 (9th Cir, June 27, 2017). See also Arizona Star (the neighbor was apparently somewhat unbalanced).
Posted in§ 1983 / Bivens|Comments Off on CA9 affirms $1.25M verdict for search of wrong house in Pima Co. AZ
The tax assessor’s demand to see the interior of plaintiffs’ house is a search governed by the Fourth Amendment. Because it is the home, it is not “minimal,” and there is no administrative search exception that permits it. The city can assess the property without it. The Court even cites Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765). Macdonald v. Town of Dover, 2017 WI 79, 2017 Wisc. LEXIS 396 (July 7, 2017).
The part of defendant’s motion to suppress for a Franks violation doesn’t need to be decided because not considering what was challenged still leaves probable cause. (The motion to suppress his statement was granted in the R&R but reversed by the USDJ. United States v. Ruhl, 2017 U.S. Dist. LEXIS 99600 (D. Minn. April 24, 2017),* adopted in part, 2017 U.S. Dist. LEXIS 97629 (D. Minn. June 23, 2017).*
The trial court erred in granting the motion to suppress for the nonattendance of its police witnesses after they were subpoenaed but didn’t show. The state sought an adjournment which the trial court denied. It was the first request for the state for a continuance. Considering the state’s “unqualified duty of scrupulous candor,” the reasons for nonappearance should have been credited, and it was an abuse of discretion to not continue the hearing. People v. Schafer, 2017 NY Slip Op 05551, 2017 N.Y. App. Div. LEXIS 5369 (4th Dept. July 7, 2017).
The state provided a wealth of evidence that a violent crime was going on in the house they entered, so the entry was justified by the emergency doctrine. People v. Samuel, 2017 NY Slip Op 05542, 2017 N.Y. App. Div. LEXIS 5395 (4th Dept. July 7, 2017).*
There is a First Amendment right to video or photograph the police doing their jobs. Plaintiffs were arrested for doing that, despite a city policy saying it was legal, and the district court ruled against them on the First Amendment claim but permitted the Fourth Amendment claim for the arrest to go to trial. Plaintiffs then dismissed the Fourth Amendment claims so the First Amendment claim could be appealed. Fields v. City of Philadelphia, 2017 U.S. App. LEXIS 12159 (3d Cir. July 7, 2017)*: Continue reading →
Posted in§ 1983 / Bivens, Qualified immunity|Comments Off on CA3: Ptfs dismissed their 4A claims to appeal 1A claim of right to video police in action, and they prevailed
The Second Circuit declines to find its precedent in In re Application of the United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government was still binding. Looking at the issue anew and in detail, it still concludes that CSLI information is not protected by the Fourth Amendment. United States v. Martinez, 2017 U.S. App. LEXIS 12146 (2d Cir. July 7, 2017): Continue reading →
Wisconsin analyzes at length whether defendant impliedly consented and then actually consented, concluding that he did. State v. Brar, 2017 WI 73, 2017 Wisc. LEXIS 395 (July 6, 2017)*: Continue reading →
Posted inConsent|Comments Off on WI analyzes at length whether defendant impliedly consented and then actually consented
2255 petitioner can’t make a free standing Fourth Amendment claim. Walker v. United States, 2017 U.S. Dist. LEXIS 104358 (W.D. Tenn. April 20, 2017).*
Defendant’s post-conviction claim that the search warrant in his case were counterfeits was waived by his guilty plea. Verkler v. United States, 2017 U.S. Dist. LEXIS 105314 (W.D. Wash. June 14, 2017).*
Posted inIneffective assistance|Comments Off on W.D.Tenn.: No free standing 4A claim in 2255
"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.
