Defense counsel wasn’t ineffective for not forecasting Carpenter years before it was decided. Cooper v. United States, 2024 U.S. App. LEXIS 29853 (6th Cir. Nov. 22, 2024).*
Defendant was on parole for a child exploitation offense, and he was polygraphed and that led to a warrantless search of his phone that produced child pornography. Then a search warrant was obtained, too. The searches were valid. State v. Goforth, 2024 Kan. App. LEXIS 33 (Nov. 22, 2024).*
The court finds the search warrant was signed before it was executed. United States v. Dew, 2024 U.S. Dist. LEXIS 213391 (W.D. La. Oct. 29, 2024).*
There was reasonable suspicion for defendant’s stop based on not having headlights on in rainy conditions. United States v. High, 2024 U.S. Dist. LEXIS 213651 (N.D. Ga. Nov. 25, 2024).*
“The CSLI and cell-site simulator warrants provided evidence of the general and specific location of one of Brown’s cell phones and, therefore, of Brown’s likely movements between his indictment and arrest. Brown contends that investigators procured these warrants by falsely representing that they required the CSLI and cell-site simulator information to locate and arrest him. The Government vigorously denies falsity. We need not resolve this dispute or ask the District Court to do so. First, to procure a search warrant, the Government need show only probable cause to believe that the search will yield incriminating evidence-or, in this case, facilitate an authorized arrest. It need not show that it has exhausted other investigative means without success.” United States v. Brown, 2024 U.S. App. LEXIS 29898 (2d Cir. Nov. 25, 2024).
The CI provided detailed information about defendant’s possession of PCP down to keeping it in a thermos because it needed to be stored in a glass container. “Given the CI’s lengthy and proven track record of providing truthful and corroborated information, under the totality of the circumstances, law enforcement had probable cause to search the Defendant’s vehicle. Indeed, ‘there [was] a fair probability that contraband or evidence of a crime [would] be found in’ the vehicle. Gates, 462 U.S. at 214.” United States v. Streater, 2024 U.S. Dist. LEXIS 211910 (D. Conn. Nov. 21, 2024).*
The false statements in the affidavit for warrant were neither reckless nor intentional nor even material. United States v. Clanton, 2024 U.S. Dist. LEXIS 212304 (E.D.N.Y. Nov. 21, 2024).*
Salon: “It is a weapon”: Ronan Farrow discusses the spyware in our pockets in “Surveilled” by Gary M. Kramer (“You never know [spyware] was there. It copies everything on your phone and it leaves” … “The cogent documentary, ‘Surveilled,’ now available on HBO, tracks journalist Ronan Farrow as he investigates the proliferation and implementation of spyware, specifically, Pegasus, which was created by the Israeli company NSO Group. The company sells its product to clients who use it to fight crime and terrorism. It is claimed that Pegasus was instrumental in helping capture Mexican drug lord, Joaquín ‘El Chapo’ Guzman. However, there are also reports that NSO’s products are being used to target journalists, human rights activists and political dissidents.”)
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Posted inCell phones|Comments Off on techdirt: Two Missouri Cops Are Facing Criminal Charges For Helping Themselves To Nude Photos Found On Drivers’ Phones
Reuters: Republican Rand Paul opposes Trump talk of using military in deportations by Bo Erickson (“A 19th century U.S. law prohibits federal troops from being used in domestic law enforcement except when authorized by Congress. [¶] Paul, at times a maverick within his party, noted that he supports the idea of deporting people living in the United States illegally who have criminal records, but said that law enforcement authorities are better equipped than the military to carry out that role and to heed the U.S. Constitution’s Fourth Amendment prohibition on unreasonable searches and seizures. There is a “distrust of putting the Army into our streets” among Americans, Paul said.”)
Posted inUncategorized|Comments Off on For originalists, is using the military to conduct arrests and detentions in the U.S. a “reasonable search and seizure”?
“Bivens is now all but dead.” Rowland v. Matevousian, 2024 U.S. App. LEXIS 29406 (10th Cir. Nov. 19, 2024). But we already knew that. Not a Fourth Amendment case, but a prison denial of medical care, but that’s where Bivens been going for several years now:
Handswabbing didn’t require advice of Pirtle rights under Indiana Constitution. DNA swabs don’t. Owens v. State, 2024 Ind. App. LEXIS 316 (Nov. 20, 2024).*
The false statements in the affidavit for warrant were neither reckless nor intentional nor even material. United States v. Clanton, 2024 U.S. Dist. LEXIS 212304 (E.D.N.Y. Nov. 21, 2024).*
Because seized evidence could be used in case of a reversal of the conviction, return is denied for now. State v. Humphrey, 2024-Ohio-5510 (2d Dist. Nov. 22, 2024).*
Defendant doesn’t show why intermediate discretionary appellate review of his Franks challenge is necessary. State v. Rekieta, 2024 Minn. App. LEXIS 505 (Nov. 19, 2024).*
Under the closely regulated business exception, the State of Maine can require lobsterman to have GPS tracking on their boats. (It’s an important question and the plaintiffs are urged to appeal to the First Circuit.) Thompson v. Keliher, 2024 U.S. Dist. LEXIS 211714 (D. Me. Nov. 21, 2024).
Defense counsel at trial likely was ineffective in not discovering there was a search warrant for defendant’s phone, but, on this record, it wouldn’t change the result. There’s plenty of evidence to support the conviction besides that. Buford v. State, 2024 Tenn. Crim. App. LEXIS 519 (Nov. 21, 2024).*
“It is undisputed that the initial seizure of the Vehicle was lawful, so a Fourth Amendment seizure claim based on the Vehicle’s unlawful retention cannot stand. See Shaul, 363 F.3d at 187. Accordingly, summary judgment is granted to Defendants on Santander’s Fourth Amendment claim. But Santander is not without recourse, for the Fourteenth Amendment affords it a ‘right with respect to a government agency’s retention of lawfully seized property.’ Shaul, 363 F.3d at 187; see also Bennett, 832 F. App’x at 60.” Santander Consumer USA, Inc. v. City of Yonkers, 2024 U.S. Dist. LEXIS 211330 (S.D.N.Y. Nov. 18, 2024).*
Officers checked a law enforcement database and found an arrest warrant on defendant. They rechecked. Afterward, it turned out the warrant had been recalled but was still in the system due to a clerical error. The court will not suppress because the exclusionary rule is to remedy police misconduct, and there isn’t any here. People v. Nash, 2024 IL App (4th) 221078, 2024 Ill. App. LEXIS 2602 (Nov. 21, 2024).
“The Court determines that from the DEA investigation, probable cause existed for Jimerson’s arrest. The DEA corroborated its tips from confidential sources by conducting surveillance of Jimerson’s residence, obtained conversations between Jimerson and those sources regarding the transactions, and observed several people arriving at the residence empty-handed or with large suitcases and leaving with bags. Based on these facts, the Court concludes that a reasonable officer would conclude that there was ‘a substantial chance of criminal activity’ occurring at Jimerson’s Cahokia residence.” Defendant’s stop was valid under Tenth Circuit caselaw, no matter how compelling he thinks other circuits cases are. United States v. Jimerson, 2024 U.S. Dist. LEXIS 211523 (S.D. Ill. Nov. 20, 2024).*
The affidavit for search warrant provides sufficient detail for probable cause to show reliance on it was in good faith. State v. Cheley, 2024 La. App. LEXIS 1984 (La. App. 3 Cir Nov. 20, 2024).*
“Mr. King challenges the foundation for the Terry stop, emphasizing that smoking marijuana in public and jaywalking are not arrestable offenses. True enough, but officers can issue tickets for both offenses. Cincinnati Mun.Code § 506-46 and 512-1; R.C. 3780.99(B). And while an individual may carry a firearm in Ohio under a variety of circumstances, carrying a gun while smoking marijuana gives rise to a reasonable concern that the individual might be using weapons while intoxicated in violation of R.C. 2923.15(A).” State v. King, 2024-Ohio-5459 (1st Dist. Nov. 20, 2024).*
Defendant’s claim the officer unreasonably detained him by holding on to his parolee identification was rejected. His claim in his reply brief that the officer lacked probable cause for a search incident was waived by not raising it below and sooner. State v. Chism, 2024 Tenn. Crim. App. LEXIS 512 (Nov. 19, 2024).*
Inventory can be an independent basis for a search. “The police department’s standard procedure dictates that an inventory search must be performed when police determine a vehicle must be towed, regardless of the reason for the initial call to the scene.” Commonwealth v. Wilson, 2024 PA Super 278, 2024 Pa. Super. LEXIS 511 (Nov. 20, 2024).*
A defense attorney’s email about evidence on a cell phone was used to get authority to search and seize the phone. Defendant claimed privilege; the state claimed that defense counsel was obligated to turn over material evidence. It was not privileged information. State v. Landon, 2024 La. App. LEXIS 1953, 2024 WL 4835521 (La. App. 5 Cir Nov. 19, 2024):
Reason: Justice Department Orders DEA to Halt Airport Searches Because of ‘Significant Issues’ With Cash Seizures by C.J. Ciaramella (“The DEA paid one airline employee tens of thousands of dollars to snoop on travel itineraries and flag passengers for searches.” “The Justice Department has ordered the Drug Enforcement Administration (DEA) to suspend most searches of passengers at airports and other mass transit hubs after an independent investigation found DEA task forces weren’t documenting searches and weren’t properly trained, creating a significant risk of constitutional violations and lawsuits.”)
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Defendant didn’t object pretrial or at trial to the search, and he can’t argue plain error now. State v. Lane, 2024 Mo. App. LEXIS 837 (Nov. 19, 2024).
The finding defendant was stopped because of a seatbelt violation is not clearly erroneous. His pretext argument fails. A bag of crack was in plain view. United States v. Noel, 2024 U.S. App. LEXIS 29425 (6th Cir. Nov. 19, 2024).*
A state trooper made an objectively reasonable mistake under Heien in stopping a vehicle during Covid with an expired inspection more than a year earlier. “Based on the unique facts presented in this case, and limited to these facts, following our de novo review we cannot conclude that the circuit court’s decision to deny petitioner’s motion to suppress evidence from the stop that occurred in this case was in error; it was supported by substantial evidence and was based on the court’s interpretation and application of our law and that of the Supreme Court in Heien. Accordingly, we affirm the circuit court’s order denying petitioner’s motion to suppress based on the court’s conclusion that the trooper had a reasonable suspicion to stop petitioner’s vehicle, and the reasonable suspicion rested on an objectively reasonable mistaken understanding of whether West Virginia Code section 17C-16-1 was suspended by Executive Order No. 7-20 at the time of the stop.” State v. Taylor, 2024 W. Va. LEXIS 508 (Nov. 20, 2024) (unpublished).*
It was reasonable for the officer to reach in an open door and secure a gun seen in plain view under Pennsylvania’s more stringent automobile exception. Commonwealth v. Saunders, 2024 Pa. LEXIS 1734 (Nov. 20, 2024) (and there’s three opinions; from the majority):
Shareholders cannot bring a Fourth Amendment claim on behalf of a corporation that isn’t a party. Elfand v. Adams, 2024 NY Slip Op 24289, 2024 N.Y. Misc. LEXIS 19021 (N.Y. Co. Nov. 18, 2024).
The CI’s information led to a controlled buy, but this doesn’t allow discovery of identity. United States v. Warner, 2024 U.S. Dist. LEXIS 209725 (D. Neb. Nov. 19, 2024).*
Defendant’s girlfriend had enough common authority over the premises to consent to its search. State v. Brashear, 2024 Wash. App. LEXIS 2215 (Nov. 19, 2024).*
Defendant was constitutionally seized when he was seen. He was known to the police and he was wearing a wig to hide his identity, and he was known to have an arrest warrant outstanding. State v. Stanley, 2024 MT 271 (Nov. 19, 2024).*
The officers had knowledge defendant had confederates in his drug operation. While he was arrested outside his house, a protective sweep inside was still shown to be reasonable. United States v. Pope, 2024 U.S. Dist. LEXIS 209740 (W.D. Pa. Nov. 19, 2024).
Running an LPN is not an illegal search. Also, lack of insurance doesn’t have to be confirmed to be probable cause. White v. State, 2024 Ark. App. 572 (Nov. 20, 2024).*
The defense actually filed a motion to suppress: “In this case, Ptlm. Kassing observed a vehicle that did not have an operable license plate light while on routine patrol. He followed the vehicle to initiate a traffic stop. In response, the driver failed to stop after the emergency lights were activated, traveled in excess of the speed limit, threw evidence out of the window, failed to stop at three stop signs, and fled from the vehicle while it was still moving. Kassing had not only a reasonable and articulable suspicion that a traffic violation had been committed by an unknown person in the vehicle but also probable cause that multiple traffic violations had been committed by the driver. After Nabors’ flight from the Fusion, Ptlm. Kassing secured the black sock that was tossed out the window during the chase and other officers secured the abandoned vehicle.” Denied. United States v. Nabors, 2024 U.S. Dist. LEXIS 210244 (E.D. Mo. Oct. 23, 2024).*
A trial judge in New Mexico noticed that there were an unusual number of suspect warrantless searches going unchallenged by the defense. She set suppression hearings and several cases were nolle prossed. A few survived to be heard. On certification from the court of appeals, the Supreme Court held that, without violating separation of powers, a trial court can sua sponte set a suppression hearing and make the parties litigate and the state defend the warrantless search, which is the state’s burden. Freedom from an unreasonable search is a fundamental right in this state, and the courts are to protect those rights. State v. Vasquez, 2024 N.M. LEXIS 245 (Nov. 18, 2024) (3-2) (A fascinating case worth one’s time to read.)
2255 petitioner seeks to litigate his search again but that’s barred by Stone. There’s no allegation that he was denied any opportunity to litigate or that evidence was hidden from him. Hahn v. United States, 2024 U.S. Dist. LEXIS 209354 (D.N.M. Nov. 18, 2024).*
The anonymous complaint of a man in a specific car harassing a woman at a restaurant justified his stop when he was found. “If the defendant had simply requested the female’s phone number, it is unlikely that she would have made the complaint.” State v. Brumfield, 2024 La. App. LEXIS 1893 ( La. App. 5 Cir Nov. 18, 2024).*
No search warrant is needed for the jail to turn over plaintiff’s jail telephone calls to the DA’s office. Wallace v. Maricopa Cty. Prosecutor’s Office, 2024 U.S. Dist. LEXIS 209545 (D. Ariz. Oct. 24, 2024).*
When an officer invokes the implied consent statute in a DUI case, the procedures must be followed or suppression occurs. State v. Flynn, 2024 Iowa Sup. LEXIS 91 (Nov. 15, 2024).*
“This Court finds, after looking at the totality of the circumstances, that Logwood’s consent to search the vehicle was voluntary. Therefore, Nugent had probable cause to search the vehicle based on Logwood’s consent as well as based on the detection of the odor of marijuana and Logwood’s admission that marijuana was inside.” United States v. Logwood, 2024 U.S. Dist. LEXIS 207844 (W.D. La. Oct. 29, 2024),* adopted, 2024 U.S. Dist. LEXIS 206534 (W.D. La. Nov. 13, 2024).* [Court could have gone with probable cause and not even decided consent.]
An NYPD officer sued the homeowner for defective stairs he fell down during execution of a search warrant. He lost. Fahim v. De Leon, 2024 NY Slip Op 51558(U) (Richmond Co. Nov. 8, 2024).*
Furtive movements during a traffic stop added to reasonable suspicion of a potential weapon. Bazemore v. Commonwealth, 2024 Va. App. LEXIS 659 (Nov. 12, 2024).*
“Under our highly deferential standard of review, it also created a sufficient—if weak—nexus between Deeble’s apartment and his alleged criminal activity.” [Followed by five paragraphs on nexus.] State v. Deeble, 2024-Ohio-5418 (6th Dist. Nov. 15, 2024).*
Defendant’s ineffective assistance of counsel claim is essentially a challenge to the proof at trial and rejected. The issues were thoroughly developed at trial and cross-examined on. State v. Gregory, 2024-Ohio-5420 (6th Dist. Nov. 15, 2024).*
Officers had probable cause to arrest for at least one offense, although not all they thought, and that defeats plaintiff’s false arrest claim. Bey v. Ayers, 2024 U.S. App. LEXIS 29333 (7th Cir. Nov. 19, 2024).*
The officer’s body slam of a resisting minor suspect about half his weight was entitled to qualified immunity. “But even if the facts of our case did fit Richmond, the statement that ‘less force is appropriate’ would not put every objectively reasonable officer on notice that a wrestling move to subdue a potentially armed, actively resisting plaintiff violated the Fourth Amendment.” H.M. v. Castoro, 2024 U.S. App. LEXIS 28991 (11th Cir. Nov. 15, 2024).*
The search warrants here were issued with sufficient particularity [without telling the rest of us why which is typical of the New York Appellate Divisions], considering they are “cloaked with the presumption of validity.” People v. Irwin, 2024 NY Slip Op 05684 (4th Dept. Nov. 15, 2024).*
Two searches: One allegedly invalid because without a warrant followed by another with a warrant. The first was based on entry on an emergency that led to a plain view, and that led to the warrant for the second search. People v. Howard, 2024 NY Slip Op 05733 (4th Dept. Nov. 15, 2024).*
"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.
