Today is Bill of Rights Day

Fourth Amendment, established December 15, 1791.

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E.D.Mo.: It was settled over 50 years ago that an officer could surreptitiously record a face-to-face conversation

“Bolden’s entire focus is on recordings between himself and an undercover federal agent who was outfitted with a covert recording device. The government is correct-Bolden’s argument is foreclosed by long-standing caselaw.” As in 1971. United States v. Bolden, 2024 U.S. Dist. LEXIS 225670 (E.D. Mo. Oct. 21, 2024).*

Defendant isn’t entitled to the name of the tipster that led to the search warrant because he or she is not a material witness in the case. United States v. Brown, 2024 U.S. Dist. LEXIS 225729 (D. Minn. Dec. 13, 2024).*

Plaintiff’s complaint he was stopped, detained, searched, and harassed outside a state court house in Nebraska wasn’t specific enough on the facts to state a claim for relief. Welch v. Wooster, 2024 U.S. Dist. LEXIS 225747 (D. Neb. Dec. 13, 2024).*

Plaintiff’s complaint fails to state facts for a Fourth and Fourteenth Amendment claim. Merely citing them isn’t enough. Jordan v. Dep’t of Corr., 2024 U.S. Dist. LEXIS 225836 (D. Conn. Dec. 13, 2024).*

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E.D.Cal.: Successor habeas petition can’t be based on withheld information of a 4A violation

A successor habeas can’t be based on allegedly withheld evidence of a Fourth Amendment violation. Sanchez v. Cates, 2024 U.S. Dist. LEXIS 226067 (E.D. Cal. Dec. 12, 2024).

Defendant can’t show that defense counsel was ineffective for not moving to suppress a search that wasn’t invalid anyway. Craven v. Schultz, 2024 U.S. Dist. LEXIS 225540 (N.D. Cal. Dec. 12, 2024).*

Plaintiff states a colorable claim for an unreasonable strip search in pretrial detention. Blaxon v. Nevada, 2024 U.S. Dist. LEXIS 225611 (D. Nev. Dec. 12, 2024).*

Qualified immunity for plaintiff’s arrest and search is reserved for later summary judgment. There’s not enough information available to resolve it on a 12(b)(6) motion to dismiss. Kelly v. Bell, 2024 U.S. Dist. LEXIS 225633 (M.D. Pa. Dec. 13, 2024).*

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S.D.Fla.: Def showed enough for a Franks violation with reckless false material fact

A misstated fact in the search warrant affidavit was material to probable cause because there was so much other stuff. United States v. Ibanez-Molina, 2024 U.S. Dist. LEXIS 225948 (S.D. Fla. Oct. 25, 2024)*:

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OH8: Failure to attempt to distinguish contrary settled cases is waiver of argument

“In similar situations to the second transaction, federal courts have upheld the validity of the warrant to search a drug dealer’s premises based on the ‘common sense’ inference that drugs would be found in the home, essentially finding that evidence of the defendant leaving the house, directly proceeding to the site of the drug buy, and then immediately returning to the same house demonstrates that the house was essentially used as the defendant’s base of operations. [citations omitted] Harris has not discussed nor given any reasons to distinguish that line of authority, especially as it pertains to the second controlled buy. Harris’s avoidance of discussing the totality of the case authority surrounding the Fourth Amendment and controlled-buy transactions limits our review.” State v. Harris, 2024-Ohio-5807 (8th Dist. Dec. 12, 2024).*

“There are three recognized ways a plaintiff can show that a law is clearly established. … First, by pointing to a case with materially similar facts decided by the Supreme Court, the Eleventh Circuit, or the highest court of the relevant state. … Second, by showing ‘a broader, clearly established principle should control the novel facts in this situation.’ … This principle must be ‘specific enough to give the officers notice of the clearly established right.’ … Finally, ‘the plaintiff can show that the conduct at issue so obviously violated the Constitution that prior case law is unnecessary.’” Plaintiff fails to show a constitutional violation or that it was clearly established. Metz v. Bridges, 2024 U.S. App. LEXIS 31566 (11th Cir. Dec. 12, 2024).*

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NYTimes: Mount Vernon Police’s Strip Searches Were Unconstitutional, U.S. Says

NYTimes: Mount Vernon Police’s Strip Searches Were Unconstitutional, U.S. Says by Alyce McFadden (”A report by federal prosecutors found that a Westchester County police department violated the Fourth Amendment ‘on an enormous scale.’ [¶] Two women, 65 and 75 years old, were taken to a police station in Mount Vernon, N.Y., after a traffic stop in 2020. Officers instructed both women to undress. Then they were told to bend over and cough. [¶] Neither woman was arrested, and an investigation determined there had been no basis for the traffic stop in the first place. One of the women said she had been left ‘very humiliated’ and ‘on the verge of fainting’ from fear after the invasive search, commonly used in drug arrests. [¶] The encounter is just one example of a long-running pattern of improper strip searches conducted by the police department in Mount Vernon, in Westchester County, according to a report released Thursday by the Department of Justice and the U.S. attorney’s office for the Southern District of New York.”)

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Reason: Kindle Version of “The Digital Fourth Amendment” Is Now Available

Reason: Kindle Version of “The Digital Fourth Amendment” Is Now Available by Orin S. Kerr (“You have to wait until January for the physical book, but you can read the electronic version now. … I’m very pleased to say that the Kindle version of my new book, The Digital Fourth Amendment: Privacy and Policing in Our Online World, is now available for sale. The print version comes out January 10th, but the electronic version is out today.”)

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NY3: “Common sense” that a drug dealer might have evidence on his cell phone isn’t PC

Just because defendant was a suspected drug dealer, there wasn’t probable cause for searching his cell phone. “While [officer] Bruno recounted that there was a quantity of drugs found in the motel room, along with the two phones, he did not explain why the phones likely contained evidence of a crime. Although common sense and experience might suggest that cell phones found in the same room as a quantity of drugs could potentially contain evidence related to the sale of those drugs, ‘common sense alone does not establish probable cause to search a person’s cell phone.’” People v. Poulos, 2024 NY Slip Op 06239, 2024 N.Y. App. Div. LEXIS 6627 (3d Dept. Dec. 12, 2024).

Plaintiff was validly stopped for walking on the wrong side of the road, and the situation devolved into an excessive force claim for which the officers get qualified immunity. Martinez v. City of Rosenberg, 2024 U.S. App. LEXIS 31477 (5th Cir. Dec. 11, 2024).*

2254 petitioner’s Fourth Amendment habeas claim is barred by Stone. Eisenmann v. Thornell, 2024 U.S. Dist. LEXIS 224260 (D. Ariz. Dec. 10, 2024).*

The 911 tip here was corroborated by officers when they arrived. That was reasonable suspicion. United States v. Flournah, 2024 U.S. Dist. LEXIS 224459 (M.D. Ga. Dec. 11, 2024).*

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W.D.La.: Dog sniff at door of commercial rented storage unit violated no REP

A dog sniff at the door to a rented commercial storage unit violated no reasonable expectation of privacy. United States v. Harris, 2024 U.S. Dist. LEXIS 224506 (W.D. La. Nov. 4, 2024).

There’s no reasonable expectation of privacy in one’s IP address, so defense counsel wasn’t ineffective for not challenging the government’s acquiring it. Schmeling v. United States, 2024 U.S. App. LEXIS 31511 (6th Cir. Dec. 11, 2024).*

The smell of marijuana justified extending the stop. United States v. Delgado, 2024 U.S. Dist. LEXIS 224175 (D.S.C. Dec. 11, 2024).*

Defendant’s probation search claims were never presented in a motion to suppress so they’re waived. Hill v. State, 2024 Ark. App. 613 (Dec. 11, 2024).*

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AR: LA judge could issue SW for LA medical records for AR crime

After an accident in South Arkansas, defendant was airlifted to a hospital in Shreveport, Louisiana. A search warrant in Louisiana was issued for his medical records. There was no requirement that an Arkansas judge issue a warrant first, just so a Louisiana judge could. Also, a blood sample was seized not specified in the warrant, but it was later validly searched with a warrant. The officers acted in good faith. Nowlin v. State, 2024 Ark. App. 607 (Dec. 11, 2024). [This isn’t new. Texarkana TX/AR sees this all the time. The trauma center is on the Texas side of the city.]

The affidavit for arrest warrant here was based on probable cause. United States v. Shain, 2024 U.S. Dist. LEXIS 223586 (D. Mont. Dec. 10, 2024).*

One of defendant’s brake lights was out and that justified the stop. United States v. Porter, 2024 U.S. Dist. LEXIS 223688 (D. Md. Dec. 10, 2024).*

The alleged unconstitutional motive for plaintiff’s arrest is irrelevant where there was an objective basis. Green v. Sec. Assurance Mgmt., 2024 U.S. Dist. LEXIS 223793 (D.D.C. Dec. 11, 2024).*

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S.D.N.Y.: No stay of execution of a computer and cell phone SW after def was indicted

Defendant was arrested in Malaysia and a computer and cell phones were seized. He was then indicted in NYC. The nine-day delay in getting a warrant was not unreasonable considering defendant was in custody and unable to use them. A stay of execution of the warrant is denied. He’s been indicted, and there was probable cause. The only case he cites doesn’t provide any support for its rationale, plus it was pre-indictment. United States v. Hiya, 2024 U.S. Dist. LEXIS 222422 (S.D.N.Y. Dec. 6, 2024).

Amazon has surveillance equipment in delivery vans, and plaintiff’s was hit by a train. Amazon released the video publicly, and plaintiff sued claiming a violation of state law. He had no reasonable expectation of privacy in the van. Evans v. Amazon.Com, Inc., 2024 U.S. Dist. LEXIS 223002 (E.D. Wis. Dec. 10, 2024).*

Search incident doesn’t require proof of actual exigency. State v. Duffee, 2024 Ore. App. LEXIS 1686 (Dec. 11, 2024).*

The affiant’s failure to cross-reference information in the file was “regrettable” but insufficient for a Franks violation. Burgos v. United States, 2024 U.S. Dist. LEXIS 223456 (S.D.N.Y. Dec. 10, 2024).*

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E.D.Pa.: Cover story at time of justified stop didn’t make it unreasonable

Months of electronic surveillance gave probable cause for defendant’s stop and search. Police use of a cover story for the stop was reasonable to prevent other co-conspirators from finding out. United States v. Arrington, 2024 U.S. Dist. LEXIS 222969 (E.D. Pa. Dec. 10, 2024).

There was reasonable suspicion for defendant’s stop for parking in a fire lane, but not for drinking in a vehicle. United States v. Morgan, 2024 U.S. Dist. LEXIS 222886 (D. Md. Dec. 9, 2024).*

The 48 hour P&A rule was violated, but there was no prejudice. Perez v. Pallares, 2024 U.S. Dist. LEXIS 223254 (E.D. Cal. Dec. 9, 2024).*

As defendant drove, the temporary tag was lifted by the air flow and was thus unreadable. That was reasonable suspicion for a stop, even though the tag was visible when he stopped. State v. Gaither, 2024-Ohio-5777 (7th Dist. Dec. 5, 2024).*

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D.Mass.: Copying electronic device for delayed search is not per se unreasonable

In an electronic search, the government copied the device’s memory for later search, and the probable cause did not get stale during the delay. Because of the capacity of electronic devices, this is the most efficient manner of searching. United States v. Chenguang Gong, 2024 U.S. Dist. LEXIS 223050 (D. Mass. Dec. 10, 2024):

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CA8: Takedown was lawful, assault thereafter wasn’t

Plaintiff’s takedown was lawful, but not the assault after he was down. “It is even more clearly established now. A suspect’s ‘right[] to be free from excessive force [is] violated if officers choke, kick, or punch [him] when [he is] restrained, not fighting, and not resisting.’ Tatum v. Robinson, 858 F.3d 544, 552 (8th Cir. 2017) … With Tatum on the books nearly a year earlier, Officers Beeman and Gugliano would have ‘known for certain that the[ir] conduct was unlawful’ and that, once they crossed the line identified in that case, they would no longer be ‘immune from liability’ no matter how many expletives came their way. Ziglar v. Abbasi, 582 U.S. 120, 152 (2017); see Shannon, 616 F.3d at 865.” Cartia v. Beeman, 2024 U.S. App. LEXIS 31211 (8th Cir. Dec. 10, 2024).

There was no reasonable suspicion defendant was armed just because he was slow getting out of his car and some ambiguous movements inside. United States v. Galindo, 2024 U.S. Dist. LEXIS 222544 (N.D.W. Va. Dec. 9, 2024).*

Plaintiff was shot in the back while holding a bike lock, not a weapon. Questions of fact remain and summary judgment for the defense is inappropriate. Elena v. Jones, 2024 U.S. App. LEXIS 31172 (9th Cir. Dec. 9, 2024).*

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CA6: Arrest based on unreliable eyewitness violates clearly established law

“Our precedent holds that it was clearly established that an officer may not arrest an individual based solely on an eyewitness account that is untruthful or unreliable. That is exactly what happened here when Officer Wieber learned that the prior trespasser had not returned to the house as the neighbor stated but proceeded to arrest plaintiffs anyway. Wieber’s actions violated plaintiffs’ clearly established constitutional rights.” Brown v. City of Wyoming, 2024 U.S. App. LEXIS 31173 (6th Cir. Dec. 9, 2024).

“Accordingly, the right to be protected under the Fourth Amendment from malicious prosecution was not clearly established at the time the individual Defendants participated in Garcia’s arrest and prosecution. … Because it would not have been clear to Defendants that their conduct violated the Fourth Amendment’s protection against malicious prosecution in 2017 and 2018, they are entitled to summary judgment based on their qualified immunity as to Garcia’s malicious-prosecution claim.” Garcia v. Bexar Co., 2024 U.S. Dist. LEXIS 222243 (W.D. Tex. Dec. 9, 2024);* Salazar v. Bexar Cty., 2024 U.S. Dist. LEXIS 222244 (W.D. Tex. Dec. 9, 2024).*

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404 Media: Location Data Firm Offers to Help Cops Track Targets via Doctor Visits

404 Media: Location Data Firm Offers to Help Cops Track Targets via Doctor Visits by Joseph Cox (“A location data company is asking police for the address of specific people’s doctors in case that can be useful in finding their mobile phone in a massive set of peoples’ location data, according to a document provided to U.S. law enforcement and obtained by 404 Media. The document is a ‘Project Intake Form’ that asks police for information about the person of interest they would like to track, such as biographical information and known locations, including family and friends’ addresses and doctors offices they may visit. It shows that, in a time when surveillance of abortion and reproductive health clinics could rise in a post-Roe America, companies providing monitoring tools to the government are prepared to use healthcare information to track down targets. The company is called Fog Data Science, and its product uses location data harvested from smartphones either through ordinary apps or the advertising ecosystem.”)

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Drug dog nose into a car window

“The drug dog’s fleeting touch of the passenger door and de minimus intrusion into the vehicle cabin through a window left open by a passenger does not justify the exclusion of evidence under the Supreme Court’s Fourth Amendment jurisprudence.” It also didn’t violate the state constitution. State v. Mumford, 2024 Iowa Sup. LEXIS 99 (Dec. 6, 2024).

The drug dog here was asked to sniff from a higher position and put his paws on the side of the car. His snout broke the plane of the window, but this was not an unreasonable intrusion because it was instinctive. United States v. Fellmy, 2024 U.S. Dist. LEXIS 222155 (E.D. Ky. Dec. 9, 2024).

A drug dog putting his paws on a vehicle is not an unreasonable search. United States v. Keller, 2024 U.S. App. LEXIS 31098 (5th Cir. Dec. 9, 2024).

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PA: State failed in its burden of proof on inventory policy

The state failed to put on proof of the impoundment and inventory policy, so the trial court erred in finding it was reasonable. Commonwealth v. Brinson, 2024 PA Super 293, 2024 Pa. Super. LEXIS 536 (Dec. 9, 2024).

Defendant’s car had been shot up and left in a business parking lot with the window down. “Using a license plate reader, McCarthy tracked the Charger’s movements, confirming it was in the vicinity at the time of the shooting. … This information was obtained on the night of the incident and confirmed the Charger’s presence near the reported gunfire.” It was also owned by somebody else. It was found to be abandoned, and thus there was no standing in the car. There were also two cell phones left in the car. United States v. Bradley, 2024 U.S. Dist. LEXIS 221762 (W.D. La. Nov. 18, 2024).*

“Additionally, the exclusionary rule does not apply to sentencing proceedings, and evidence seized in violation of the Fourth Amendment can be considered at sentencing as long as it is reliable. United States v. Jackson, 713 F. App’x 963, 968 (11th Cir. 2017) (per curiam) (citing United States v. Lynch, 934 F.2d 1226, 1235-37 (11th Cir. 1991)).” Tolbert v. United States, 2024 U.S. Dist. LEXIS 221853 (S.D. Ala. Nov. 4, 2024).*

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CA8: Car on car hauler’s tractor trailer still mobile for automobile exception

Defendant shipped a car on a car hauler paying in advance. All things considered, the hauler suspected drugs were involved because it had happened to him before. He called HSI which came to investigate. On the totality, there was probable cause that the car had drugs in it when it was searched. Even on the car hauler trailer, it was “inherently mobile” for the automobile exception to apply. United States v. Mims, 2024 U.S. App. LEXIS 31017 (8th Cir. Dec. 9, 2024).

There was reasonable suspicion for continuing the stop in this case because of defendant’s movements and words. The officer finally called in a drug dog because defendant didn’t know whether there would be drugs in his car. Suppression order reversed. State v. Tannehill, 2024 OK CR 32, 2024 Okla. Crim. App. LEXIS 30 (Dec. 5, 2024).*

Plaintiff’s Bivens false arrest claim fails on merits because of probable cause. Lynch v. United States, 2024 U.S. App. LEXIS 30973 (7th Cir. Dec. 5, 2024).*

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ND: Calling 911 about OD’g child in your house is exigency for entry

Calling 911 that the child you’re caring for OD’ed on your fentanyl is consent to their emergency entry. State v. Gothberg, 2024 ND 217, 2024 N.D. LEXIS 221 (Dec. 5, 2024).

2255 petitioner pled guilty knowing the facts of the search claim, and it’s waived for even ineffective assistance. Also, he can’t show he’d have prevailed. McFadden v. United States, 2024 U.S. Dist. LEXIS 221200 (E.D. Tenn. Dec. 6, 2024).*

Here there was a dog sniff warrant, and the factual basis for it justifies the good faith exception. United States v. Williams, 2024 U.S. Dist. LEXIS 220797 (D. Minn. Dec. 6, 2024).*

Petitioner’s successive habeas claim about a search claim is barred because what’s raised doesn’t comply with the statute on successor petitions. In re George, 2024 U.S. App. LEXIS 30961 (11th Cir. Dec. 6, 2024).*

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