“The crux of the Gammarinos’ [Fourth Amendment] argument is that the Defendants entered their properties and removed their personal property without a warrant. As a result, they claim these searches and seizures are presumptively unreasonable and thus violated the Fourth Amendment. Yet entering land to post notice of a civil infraction is not a Fourth Amendment search and thus does not require a warrant. … And seizing property that has been declared a public nuisance is reasonable, provided that the property owner has been provided constitutionally adequate due process. … Because the Gammarinos received adequate due process, the abatement actions did not constitute an unreasonable search or seizure.” Gammarino v. Sycamore Twp., 2025 U.S. App. LEXIS 5181 (6th Cir. Mar. 3, 2025).
“Based on a totality of the circumstances, the affidavit contained sufficient facts to give rise to the requisite level of probable cause for issuing the search warrant. Accordingly, this Court recommends the District Judge find that the evidence obtained resulting from the search warrant should not be suppressed. [¶] Even if there was no probable cause for the search warrant, the Leon good-faith exception to the exclusionary rule applies.” United States v. Shumny, 2025 U.S. Dist. LEXIS 39444 (W.D. Mo. Jan. 30, 2025).* Virtually the same holding: United States v. Washington, 2025 U.S. Dist. LEXIS 39440 (D. Minn. Jan. 13, 2025),* adopted, 2025 U.S. Dist. LEXIS 38827 (D. Minn. Mar. 4, 2025).*
Defense counsel didn’t argue CSLI was improperly obtained because it was important to argue defendant had no connection to that phone. United States v. Carter, 2025 U.S. Dist. LEXIS 39425 (D. Mass. Mar. 5, 2025).*
Controlled buys that included trips to defendant’s house was nexus. “Regardless of whether Sims was constantly within the detectives’ view, the affidavit establishes that for each controlled buy, Sims went straight to the buy location from the residence and returned immediately after the transaction, thereby supplying the required nexus with the residence. The mere possibility that detectives might not have had eyes on Sims for a brief period while Sims was headed towards or returning from the buy location does not take away from this common-sense conclusion. Overall, the affidavit undeniably provides ‘reasonable grounds’ to conclude that Sims had drugs stored at the residence.” United States v. Sims, 2025 U.S. App. LEXIS 5208 (6th Cir. Mar. 4, 2025).
“Defendant’s unsupported assertion that he was an overnight guest at the Subject Residence ‘approximately’ five times in 2021 and he went there ‘frequently’ for meals … does not establish that he has a reasonable expectation of privacy in the Subject Residence.” He raised an interesting, but ultimately unavailing, nexus argument, and the good faith exception would apply in any event. United States v. Yarbough, 2025 U.S. Dist. LEXIS 40168 (W.D. Pa. Mar. 6, 2025).*
Posted inNexus, Probable cause, Standing|Comments Off on CA6: Nexus to home based on controlled buys doesn’t require constant visual surveillance
Defense counsel’s acceptance of a warrant was a waiver of the service requirements for a warrant in Rule 41. It was also otherwise valid. United States v. Reynoso, 2025 U.S. Dist. LEXIS 40555 (D.P.R. Mar. 4, 2025).
“The search and seizures appear to have been conducted in accordance with the Warrants; accordingly, the Court sees no evidence of a deliberate attempt to conceal information from the Defendant in order to expand the scope of the search. The facts of record simply do not support a finding that the police conduct in this case constitutes a deliberate abuse of the process, but rather, at worst, an unfortunate oversight. As such, the exclusionary rule does not apply.” United States v. Perez, 2025 U.S. Dist. LEXIS 41184 (W.D. Pa. Mar. 7, 2025).*
“Here, Smith cannot establish a reasonable probability of a different outcome had the knife been successfully excluded. In the overall evidentiary picture, the knife does not occupy a central role. Even without the knife’s admission, the State’s case would have remained strong, as it was supported by the following robust evidence: (1) [the victim’s] testimony about the rape; (2) Scott’s testimony that he was outside the locked apartment during the incident, witnessed Smith leaving, and then immediately heard [her] recount the incident while ‘crying hysterically’; [and DNA]. State v. Smith, 2025 Utah App. LEXIS 36 (Mar. 6, 2025).*
Posted inIneffective assistance, Warrant execution|Comments Off on D.P.R.: Defense counsel’s agreement to accept a SW was waiver of Rule 41 service requirements
The affidavit showed probable cause. And, “Detective Ames did not knowingly or recklessly omit exculpatory information from the affidavit because she was not aware of any such information when she prepared the affidavit.” Weidner v. McHale, 2025 U.S. App. LEXIS 5197 (10th Cir. Mar. 5, 2025).
After the court granted a Franks hearing, the government decided not to offer what was obtained from the search at trial, so it became moot. United States v. Walker, 2025 U.S. Dist. LEXIS 39437 (D. Minn. Feb. 4, 2025).*
Where defendant claims the USMJ was wrong for failure to consider the video as a part of the motion to suppress, it was his duty to make it an exhibit. United States v. Barnard, 2025 U.S. Dist. LEXIS 39421 (S.D. Fla. Mar. 5, 2025).*
Posted inBurden of proof, Franks doctrine|Comments Off on CA10: A Franks violation can’t be based on information that had not been discovered yet
The VA’s rule-based IT inspection authority for remote access to its databases is overbroad and violates the Fourth Amendment because it includes remote computers and the place where the computers are housed. Military-Veterans Advoc. v. Sec’y of Veterans Affairs, 2025 U.S. App. LEXIS 5214 (Fed. Cir. Mar. 6, 2025):
Officers came to plaintiff’s property to investigate a marijuana grow. His property was surrounded by a fence, and he didn’t respond to air horns to get his attention, so they climbed over the fence to be able to get to the front door and knocked. Plaintiff refused to consent to a search and ordered them off the property, and they left. The district court held that this was a Fourth Amendment violation, but the law was not clearly established that it was, so qualified immunity applies. An unreported case is not clearly established law. [And this one is unreported, too, so the law remains not clearly established.*] Nidiffer v. Lovato, 2025 U.S. App. LEXIS 5235 (10th Cir. Mar. 6, 2025).
One of the nine ineffective assistance of counsel claims here is failure to move to suppress a CVS store video as a violation of the Fourth Amendment. All grounds were rejected as woefully unsupported. State v. Lewis, 2025-Ohio-730 (5th Dist. Mar. 5, 2025).*
Prior to his guilty plea, defendant withdrew his motion to suppress. [And the guilty plea waived it anyway.] State v. Crawford, 2025-Ohio-731 (5th Dist. Mar. 5, 2025).*
_________ * “There was only one catch and that was Catch-22, which specified that a concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle. “‘That’s some catch, that Catch-22,’ he observed. “’It’s the best there is,’ Doc Daneeka agreed.” –Joseph Heller, Catch-22 ch. 5 at 46 (1961).
Posted inCurtilage, Ineffective assistance, Qualified immunity, Waiver|Comments Off on CA10: The district court properly held that officers climbing over a fence to get to ptf’s front door was a 4A violation, but QI applies, still
Warning of a right to refuse a consent search is only required for knock-and-talk. This was an animal cruelty case, and officers had been there repeatedly to observe horses with consent. Finally, they got a warrant to enter the enclosure based on the prior observations. State v. Mercedes, 2025 Wash. LEXIS 142 (Mar. 6, 2025).
Defendant didn’t show defense counsel was ineffective for not challenging a search warrant for his mother’s property [for which he didn’t have standing and] for which there was probable cause. Ramirez v. State, 2025 Ga. App. LEXIS 103 (Mar. 7, 2025).*
The officer’s plain view observation of a baggie of drugs in defendant’s car’s cupholder was reasonable. United States v. Daniels, 2025 U.S. Dist. LEXIS 40948 (N.D. Cal. Mar. 6, 2025).*
The affidavit for warrant showed probable cause for a four-year plan for murder for hire and stalking. United States v. Barnard, 2025 U.S. Dist. LEXIS 40709 (S.D. Fla. Feb. 22, 2025),* adopted, 2025 U.S. Dist. LEXIS 39421 (S.D. Fla. Mar. 5, 2025).*
Officers keyed on defendant as a shooting suspect because of a social media post from a year before with him wearing what appear to be the pants worn by the shooter. As for nexus to defendant’s phone, they rely on more than just the generalized belief that cell phones are usually carried by everyone. The suspect regularly posted his whereabouts. United States v. Samuels, 2025 U.S. Dist. LEXIS 40372 (S.D.N.Y. Mar. 6, 2025):
NYT: The Persistent Problem of Stop and Frisk by Shayla Colon (“New York Police Department supervisors failed to rein in unlawful stops, frisks and searches by anti-crime units in 2023, a monitor said in a new report.”)
Posted inStop and frisk|Comments Off on NYT: The Persistent Problem of Stop and Frisk
A concurring opinion where there wasn’t probable cause for a search warrant, which is really hard to do these days: Staley v. State, 2025 Tex. App. LEXIS 1523 (Tex. App. – Ft. Worth Mar. 6, 2025)*:
The Corporate Transparency Act reporting requirements amount to an unreasonable search under the Fourth Amendment. Small Bus. Ass’n of Mich. v. Yellen, 2025 U.S. Dist. LEXIS 40975 (W.D. Mich. Mar. 3, 2025):
Defendant lost a motion to suppress but won a speedy trial dismissal without prejudice. Reindicted, he filed another motion to suppress, but law of the case applies. United States v. Bell, 2025 U.S. Dist. LEXIS 41924 (W.D. Mo. Mar. 7, 2025).
“Attenuation is determined, in turn, using the Brown factors: ‘(1) the temporal proximity of the illegal entry and the consent, (2) the presence of intervening circumstances, and, particularly, (3) the purpose and flagrancy of the official misconduct.’ United States v. Robeles-Ortega, … (citing Brown v. Illinois, … (cleaned up). [¶] The Court isn’t so sure that Brown applies, but in the interest of efficiency, it takes Hurd at his word. Even assuming the officers’ conduct violates the Fourth Amendment, the taint of those violations quickly dissipated throughout the episode.” United States v. Hurd, 2025 U.S. Dist. LEXIS 41516 (N.D. Ill. Mar. 7, 2025).*
“Throughout his various briefing, Nixon claims that the County violated his Fourth, Eighth, and Fourteenth Amendment rights. We need not address his Fourth Amendment claim any further as he fails to include it in his Amended Complaint.” Nixon v. Dall. Cty., 2025 U.S. App. LEXIS 5389 (5th Cir. Mar. 7, 2025).*
Plaintiff didn’t adequately plead his Fourth Amendment claim of seizure. Djonovic v. Septer, 2025 U.S. App. LEXIS 5380 (6th Cir. Mar. 6, 2025).*
The trial court granted defendant’s motion to suppress the search of his cell phone in a murder case. On the state’s interlocutory appeal, suppression is reversed. There was sufficient nexus shown between the cell phone and the offense under investigation before and after the killing. State v. Archey, 2025 Tenn. Crim. App. LEXIS 119 (Mar. 7, 2025):
A pole camera outside defendant’s business for 50 days was not an unreasonable search. United States v. Harry, 2025 U.S. App. LEXIS 5329 (2d Cir. Mar. 7, 2025).
Defendant was improperly denied a hearing. The codefendant had a suppression hearing and lost, and this defendant didn’t have standing as to that one. What transpired there showed defendant couldn’t prevail here, even though he wasn’t participating, because he had no standing to ask questions. A 34-day delay in seeking a search warrant after seizure of cell phones wasn’t unreasonable. United States v. Pierce, 2025 U.S. Dist. LEXIS 38690 (W.D.N.Y. Mar. 4, 2025).*
Defendant had no standing in a trash container where work clothes were stashed with his DNA on it. People v. Contreras, 2025 NY Slip Op 50289(U), 2025 N.Y. Misc. LEXIS 1213 (Queens Co. Feb. 10, 2025).*
Granted that there was a misstatement in the affidavit, the reconstructed affidavit still provides probable cause. United States v. Clark, 2025 U.S. Dist. LEXIS 41079 (E.D. Pa. Mar. 7, 2025).*
Posted inFranks doctrine, Pole cameras, Standing|Comments Off on CA2: 50 days of pole camera surveillance outside a business wasn’t unreasonable search
Information in the affidavit for warrant about a 2021 overdose was valid background and not stale information. State v. Martin, 2025 Ohio App. LEXIS 727 (6th Dist. Mar. 7, 2025).
Officers getting a search warrant to enter to arrest was what they can do. The defense argument that doing that means they didn’t have reason to enter [to me] doesn’t even follow. Also, it “disincentivizes officers from seeking search warrants out of fear that courts will read their actions as evidencing a lack of reasonable belief or probable cause.” [Besides, the issuance of a search warrant almost always shows probable cause, doesn’t it?] United States v. Maiden, 2025 U.S. Dist. LEXIS 38434 (W.D. Ky. Mar. 4, 2025).*
An arrest allegedly without probable cause doesn’t prevent the government from later trying the accused. Evidence related to the faulty arrest may be excludable, but none is identified here. United States v. Robinson, 2025 U.S. Dist. LEXIS 38422 (N.D. Ill. Mar. 4, 2025).*
Driver’s consent to search did not extend to a woman’s purse that obviously wasn’t his. Myers v. Commonwealth, 2025 Va. App. LEXIS 138 (Mar. 4, 2025).
On the totality of the circumstances, including a suspected drug transaction, the vehicle’s evasive conduct, and defendant’s admission to having a gun, there was reasonable suspicion he was engaged in criminal activity and was armed and dangerous. In light of that, the officers reasonably chose to draw their weapons and use handcuffs to protect themselves. United States v. Williams, 2025 U.S. App. LEXIS 4942 (6th Cir. Mar. 3, 2025).*
These search warrants satisfied the particularity requirement because they sufficiently described the generic classes of electronic evidence that could contain recordings of the victim. This was necessary given the hidden nature of the suspected recordings. Defendant failed to show that a motion to suppress would have clearly succeeded, so his ineffective assistance claim fails. Smerk v. State, 2025 Ga. App. LEXIS 95 (Mar. 4, 2025).*
The affidavit for the warrant wasn’t “bare bones.” It alleged facts and nexus could be inferred, even if probable cause couldn’t be fully shown. Therefore, the good faith exception applied. United States v. Norman, 2025 U.S. App. LEXIS 4908 (5th Cir. Mar. 3, 2025).*
It is clearly established that shooting an unarmed non resisting person is unreasonable. Johnson v. Myers, 2025 U.S. App. LEXIS 4926 (9th Cir. Mar. 3, 2025).*
The Georgia implied consent warning informs drivers multiple times of their right to refuse testing and does not mention any criminal penalty for refusal, so it does not coerce consent. State law allows evidence of a driver’s refusal to consent to blood testing, and this is not unconstitutional. Defendant freely and voluntarily consented to the blood test. La Anyane v. State, 2025 Ga. LEXIS 41 (Mar. 4, 2025).*
"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.
