NYT Editorial: More Disclosures About Stop-and-Frisk:
Mayor Michael Bloomberg has often defended New York City's discredited stop-and-frisk program by arguing that it is necessary to cut crime. That claim was never credible; crime declined in cities that did not detain citizens millions of times over the course of the decade, as New York did, often without legitimate reason.
Defendant was a homeless graphics designer, and he had a campsite next to a cemetery. Every day he packed his valuables, including a computer, in a suitcase, and hid it in the woods away from his campsite. Significantly, he admitted that he expected it to be seen by somebody sooner or later. A person walking by saw the suitcase and retrieved it, taking it to the police. He had no reasonable expectation of privacy in the suitcase. Even if he did, it was reasonable for the police to open it to look for evidence of ownership, and that included looking in the computer for evidence of who owned it. United States v. Wilson, 2013 U.S. Dist. LEXIS 168493 (E.D. Ky. November 20, 2013).
Two trucking companies operated at one location and shared office space, computers, and employees. When a search warrant for records of one was executed, the officers were aware of the overlap, and some records of the other were seized. The search was still reasonable, and, even if the overseizure was an issue, the records of the overseizure would be seized. United States v. Dahl, 2013 U.S. Dist. LEXIS 168602 (D. Minn. November 15, 2013).*
The CI gave accurate predictive information, so there was probable cause under a common sense reading of the affidavit. United States v. Bravo, 2013 U.S. Dist. LEXIS 168782 (D. Neb. October 10, 2013).*
A BOLO for a Dodge Charger that was “silver or dark” with an unknown number of black males in it was insufficient to justify a stop three miles from the scene of the alleged crime. Allen v. State, 2013 Ga. App. LEXIS 982 (November 22, 2013).
The evidence supported consent. “Agent Geer testified that Mr. Djenasevic was ‘eager to cooperate’ and told officers that there was nothing in the condominium and that officers were free to search it using the key on his key ring. Sergeant Ronald Graham also testified that officers used a key to enter the condominium.” United States v. Djenasevic, 2013 U.S. App. LEXIS 23725 (11th Cir. November 26, 2013).*
Considering the “great deference” given search warrants, the court concludes that there was probable cause to believe that drug trafficking information would be found in defendant’s house. It was based entirely on an officer’s assertion in the affidavit, but the court credited it because of that deference. United States v. Rodriguez, 2013 U.S. Dist. LEXIS 168520 (D. Ore. November 26, 2013).*
There is no reasonable expectation of privacy in telephone numbers dialed under the Fourth Amendment or the state constitution. State v. Clark, 2013 W. Va. LEXIS 1392 (November 26, 2013).
Defendant’s known drug history, presence of marijuana, and five GPS units in the back seat (suggesting they were stolen; who has five?) was reasonable suspicion for further detention. State v. Sinha, 2013-Ohio-5203, 2013 Ohio App. LEXIS 5414 (12th Dist. November 25, 2013).*
Since the police acted on a tip from an informant who had proved uniformly reliable on several prior occasions, and the police corroborated that information through their own surveillance, their decision to stop the vehicle was supported by probable cause. The police did not need a warrant to search the vehicle once it was moved to the police station since the search was valid under the automobile exception to the Fourth Amendment. For the same reasons the police had probable cause to stop the vehicle, they had probable cause to search it. The automobile exception permitted the police the same latitude to conduct the search without a warrant back at the station as it did at the place of the stop. United States v. Thompson, 2013 U.S. App. LEXIS 23626 (3d Cir. November 25, 2013):
The government failed in its heavy burden of proving the validity of the protective sweep it conducted on the defendant’s apartment as all the occupants were arrested as they came out one by one. United States v. Wynn, 2013 U.S. Dist. LEXIS 168368 (S.D. Ohio November 25, 2013):
Officers had probable cause to search defendant's truck after they smelled a strong odor of marijuana coming from it as they approached and saw a shotgun lying in plain view when they looked inside. State v. Gregory, 2013 Tenn. Crim. App. LEXIS 1027 (November 25, 2013).*
The district court misinstructed the jury on municipal liability, instructing that the plaintiff’s Fourth Amendment rights were violated in the plaintiffs’arrest. A huge number of officers raided a club in Houston. Reversed. Boyd v. City of Houston, 2013 U.S. App. LEXIS 23819 (5th Cir. November 26, 2013).*
Defendant consented to a search of his car and residence, and a second search under a search warrant was justified by information that the police would find stolen property there. United States v. Clark, 2013 U.S. Dist. LEXIS 167539 (N.D. Ga. October 28, 2013).*
Officers arrested a person in a parked car outside a house. The person arrested wanted to leave the keys with the person in the house, and the officers agreed. The house was on a corner, and the kitchen window faced the street. From the street, the officers couldn’t make out who was inside, so they went to the window to look, and they saw defendant inside with drugs. The officers unlawfully entered the curtilage to make the view. Sayers v. State, 2013 Tex. App. LEXIS 14436 (Tex. App. – Houston (1st Dist.) November 26, 2013):
Extended GPS monitoring in 2010 (Jones was 2012) without a warrant violated the Fourth Amendment. Good faith rejected. State v. White, 2013-Ohio-5221, 2013 Ohio App. LEXIS 5428 (5th Dist. November 22, 2013):
Defendant was on probation for forgery. His PO came to his house and found him in possession of a laptop computer, provided by defendant’s employer for his work. The PO seized the laptop and wanted to search it because he had reason to believe defendant traveled in violation of his conditions. The defendant consented, but the employer revoked consent under Randolph. The employer filed a motion for return of the computer in the probation case. The court still had jurisdiction over defendant’s probation to do something, and it was proper for the employer to file a state Rule 41 motion for return of the property. While the laptop is not ordered returned, the state needs a search warrant to search the laptop because it’s the employer’s. State v. Ruck, 2013 Ida. LEXIS 303 (November 26, 2013):
Officers had a description of vehicle being involved with drugs but no detail. Defendant’s vehicle matched the description, so he was validly stopped because it was suspected that his license plate was expired. After the stop, it was determined that the vehicle was in fact properly licensed and the tag was on the wrong corner of the plate. The officer noticed defendant was nervous. He asked defendant for consent, and defendant refused. The officer had defendant get out and he frisked him. Asked for consent a second time, defendant consented, but this consent was the product of an illegal detention, even though it was only four minutes long. Heard v. State, 2013 Ga. App. LEXIS 990 (November 22, 2013):
Civil Rights Blog: The Third Amendment, Privacy and Mass Surveillance:
Defendant was arrested after eight officers entered his business with guns drawn. After he was handcuffed, the guns were holstered, and he was asked for consent. The consent was voluntary. In fact, he signed a form saying that he wasn’t coerced: “No evidence exists that the agents pressured Sinclair to execute the form through promises, threats or other coercive means. Indeed, the form that Sinclair signed contained the printed statement, “‘I have not been threatened, nor forced in any way.’” United States v. Sinclair, 2013 U.S. Dist. LEXIS 167475 (W.D. N.Y. May 10, 2013), adopted 2013 U.S. Dist. LEXIS 166622 (W.D.N.Y., Nov. 22, 2013).*
While the language of the affidavit was intended to enhance the eyewitness identification related in it, the court doesn’t find that it amounts to a Franks violation. “While I agree that the language quoted above from the affidavit could have been articulated more clearly with respect to the four eyewitness identifications and the language appears deliberately chosen by affiants to strengthen the identification, in and of itself the language is not so misleading as to call the probable cause determination into question.” United States v. Jackson, 2013 U.S. Dist. LEXIS 167892 (M.D. Fla. October 18, 2013).*
Defendant’s warrantless arrest as an unregistered sex offender was valid. He was arrested in a bedroom, and the officer’s protective sweep of the closet, sweeping his arm through the clothes hanging there, was designed to see if a person was there. Instead, he felt a firearm, and it was thus in plain view. United States v. Gray, 2013 U.S. Dist. LEXIS 167536 (N.D. Ga. October 31, 2013).*
2255 petitioner is arguing “semantics” whether this trash was at the “curb” or not, and he pled guilty with no motion to suppress. “As such, the Supreme Court's decision in California v. Greenwood clearly supports the legality of Agent Crain's search and there is no conceivable way in which Petitioner's counsel was ineffective in failing to challenge the search. Despite his vigorous assertions, Petitioner's legal and factual bases for this Ground are erroneous.” Garries v. United States, 2013 U.S. Dist. LEXIS 167464 (E.D. Va. November 25, 2013).*
WaPo: Microsoft, suspecting NSA spying, to ramp up efforts to encrypt its Internet traffic by Craig Timberg, Barton Gellman, and Ashkan Soltani:
HuffPo: Top-Secret Document Reveals NSA Spied On Porn Habits As Part Of Plan To Discredit 'Radicalizers' by Glenn Greenwald, Ryan Gallagher, and Ryan Grim (link won't imbed:
The DEA was at an oncologist’s office and demanded to see the paid drugs. The officer manager “Ms. Posey flatly testified that she never consented to any search, and that she believed that she had no choice but to comply with West's demands. She said that she was ‘completely paralyzed, she was so scared.’ [¶] Ms. Posey's testimony is believed, without qualification. Remarkably, Agent West tends to corroborate Ms. Posey's testimony that she was extremely frightened during her interaction with these agents. West himself, early in the interview, told Ms. Posey she ‘looked like a deer in the headlights.’ [¶] ... The United States has failed to carry th[e] burden [on consent]. Ms. Posey's 'consent' was not voluntary. Thus, there was no consent at all.” United States v. Sen, 2013 U.S. Dist. LEXIS 167641 (E.D. Tenn. November 14, 2013).*
“The district court correctly concluded that the anonymous letter carries little weight in this analysis—it simply prompted D'Alessandro to visit Defendant's home. ... But the remaining facts—the NPLEx e-mail, Defendant's history of manufacturing methamphetamine, and, above all, the odor of a methamphetamine precursor—together gave D'Alessandro probable cause to believe that criminal activity was afoot.” There was no clear error in crediting the testimony. United States v. Lykins, 2013 U.S. App. LEXIS 23602, 2013 FED App. 0996N (6th Cir. November 21, 2013).*
An Officer looking at defendant’s laptop saw a thumbnail image that was child pornography, and that was probable cause for a seizure of the computer. The 13 month delay in getting a search warrant for the computer was not unreasonable under the circumstances here because defendant’s own liberty was not restrained. The delay was based on an error, not lack of diligence. United States v. Howe, 2013 U.S. App. LEXIS 23608 (2d Cir. November 25, 2013):
Seizure of a gun off property defendant admitted wasn’t his meant he had no reasonable expectation of privacy there. United States v. Stile, 2013 U.S. Dist. LEXIS 167144 (D. Me. May 6, 2013)* (Pro se motion not adopted by defense counsel decided anyway.)
Seizure of property out of another’s car meant defendant had no reasonable expectation of privacy there. Also, a search warrant involved in this motion was particular enough. United States v. Stile, 2013 U.S. Dist. LEXIS 166904 (D. Me. May 2, 2013)* (same).
The stop of the car defendant was a passenger in was based on the fact the driver was known to have a suspended DL. Defendant was previously suspected of methamphetamine trafficking in 2012, with a new allegation from 2013. Thus, there was reasonable suspicion to detain her further because of that. United States v. Rolenc, 2013 U.S. Dist. LEXIS 166681 (D. Neb. October 18, 2013).*
The use of a relatively innocuous ruse to gain entry to defendant’s room was not unconstitutional. The officers did not exploit a made up exigent circumstance; rather, it was asking for help locating a stolen cell phone and to look out the window. Therefore, the consent to enter was valid. United States v. Monzon-Luna, 2013 U.S. Dist. LEXIS 166735 (E.D. N.Y. November 22, 2013), reconsideration denied 2014 U.S. Dist. LEXIS 7415 (E.D. N.Y. January 21, 2014):
NYT: N.S.A. May Have Hit Internet Companies at a Weak Spot by Nicole Perloth and John Markoff:
Security experts said they believe that spies bypassed Google and Yahoo and accessed their data through the fiber-optic cables that link their data centers.
NRC (Netherlands): NSA infected 50,000 computer networks with malicious software by Floor Boon, Steven Derix, and Huib Modderkolk:
Defendant was subjected to a patdown because he had a knife clipped to his pocket. He consented to removing a pill box from his pocket but not to its search, and the search of the box could not be justified by the frisk. McCormack v. State, 2013 Ga. App. LEXIS 985 (November 22, 2013).
Mirandized defendant told he didn’t have to consent to search was found to have consented. United States v. Young, 2013 U.S. Dist. LEXIS 166621 (W.D. N.Y. November 22, 2013).*
The state parole search of defendant’s residence was valid. The PO received information defendant had drugs and guns, so he went there to look and found marijuana and a firearm. United States v. Perkins, 2013 U.S. Dist. LEXIS 166623 (W.D. N.Y. October 11, 2013).*
Defendant was accused of battery of a woman, and, when the police arrived, he refused to consent to police entry because he didn’t want them to see her. Assuming, arguendo, that this was clear constitutional error, there was plenty of other evidence admitted without objection proving the same thing. Thus, “Carmouche has not shown that the testimony referencing his exercise of his Fourth Amendment rights, and the prosecutor's brief comment on this testimony, affected the outcome of the trial proceedings. We conclude the error was harmless beyond a reasonable doubt.” State v. Carmouche, 2013 Ida. App. LEXIS 87 (November 21, 2013).
2255 petitioner consented to seizure and search of his computer, so the unsupported claim that the government searched it and lied about it has no merit. It appears that it was never searched. Hargrove v. United States, 2013 U.S. Dist. LEXIS 166361 (N.D. W.Va. September 18, 2013).*
Petitioner’s IAC allegation that defense counsel didn’t order the transcript of the suppression hearing alleges nothing about performance. State ex rel. Adkins v. Dingus, 2013 W. Va. LEXIS 1339 (November 21, 2013).*
A search warrant for evidence of untaxed cigarette possession included a clause for seizing photographic evidence of possession of untaxed cigarettes. When executing the warrant, officers picked up a camera and looked at the screen and scanned photographs finding apparent child pornography. A common sense reading of “photographs” includes their digital or hard copy format. The search was valid because the warrant specifically included photographs, and it was in good faith. United States v. Miller, 2013 U.S. Dist. LEXIS 166618 (W.D. N.Y. August 16, 2013).
Defendant was arrested for bank robbery after his picture was picked out of about 1000 as the suspect. The video of the bank robbery is inconclusive, and it can’t be said that defendant was clearly not the robber. His wife consented to a search of their place, and a gun and ammunition were found, and he’s a felon in possession. United States v. Bartee, 2013 U.S. Dist. LEXIS 166366 (S.D. N.Y. November 12, 2013).*
Defendant “flipped his pickup truck” in the Great Smoky Mountains National Park, and it took the officer a while to get to do a field sobriety test. Some of the officer’s time was spent directing traffic around the scene. Based on the damage to defendant’s truck, the officer called EMS. He couldn’t do a field sobriety test until 25 minutes into it, and, all things considered, the officer acted reasonably. United States v. Lane, 2013 U.S. Dist. LEXIS 166339 (E.D. Tenn. November 5, 2013).*
A project providing free online access to federal court opinions has expanded to include 64 courts. The federal Judiciary and the Government Printing Office partner through the GPO’s Federal Digital System, FDsys, to provide public access to more than 750,000 opinions, many dating back to 2004.
Federal court opinions are one of the most heavily used collections on FDsys, with millions of retrievals each month. Opinions are pulled nightly from the courts’ Case Management/Electronic Case Files (CM/ECF) systems and sent to the GPO, where they are posted on the FDsys website. Collections on FDsys are divided into appellate, district or bankruptcy court opinions and are text-searchable across courts. FDsys also allows embedded animation and audio – an innovation previously only available with opinions posted on a court’s own website or on the Public Access to Court Electronic Records (PACER).
FDsys is now added to the sidebar, and it is a service of the GPO. Featured today are records of the Kennedy assassination. I tried searching for the Moalin opinion in the previous post, but that court is not online yet.
Defendant’s post-trial learning of an NSA leak claim that defendant’s phone calls were captured by the NSA affords no relief. The court finds no reasonable expectation of privacy in the metadata of a telephone call seized off of a third party’s telephone call. United States v. Moalin, 2013 U.S. Dist. LEXIS 166582 (S.D. Cal. November 14, 2013):
Defendant’s DNA was collected in 2005 by grand jury subpoena duces tecum, and no charges were filed. In 2011, defendant became the focus of something else, and his DNA was examined again, and this time he was matched up. While collection of the DNA violated Maryland v. King, it was collected years before in good faith, and the exclusionary rule would not be applied. United States v. Thomas, 736 F.3d 54 (1st Cir. 2013), on appeal from United States v. Thomas, 815 F. Supp. 2d 384 (D. Me. 2011):
Defendant’s stop was without reasonable suspicion of any criminal activity. While other criminal activity had occurred at or near some of the residences in that area, and defendant appeared nervous and was "breathing heavily," and the officer found his answers to the officer's questions to be "inconsistent," there was nothing else to show crime was “a foot.” Therefore, no reasonable suspicion. United States v. Kessler, 2013 U.S. Dist. LEXIS 166172 (W.D. Mo. October 15, 2013), Adopted by, Motion granted by United States v. Kessler, 2013 U.S. Dist. LEXIS 165546 (W.D. Mo. Nov. 21, 2013).
Defendant’s claim that an attorney for a bank illegally seized records during a bankruptcy was both waived and a private action claim. United States v. Prince, 2013 U.S. App. LEXIS 23504 (5th Cir. November 22, 2013).*
Defendant’s 2255 search claim was defaulted by appealing before without asserting it. Not only that, the issue would fail. Benford v. United States, 2013 U.S. Dist. LEXIS 166252 (N.D. Ala. November 22, 2013).*
Defendant was in an adult bookstore where a police officer was hanging out because it had been robbed a few times. Suspecting defendant and his girlfriend were underage, the officer asked them for their driver’s licenses which he held for 10-15 seconds and handed them back. He called it in for verification but did not ask for wants or warrants. Dispatch radioed back that the young man’s was under suspension. He waited for them to get into a car and leave, and he pulled defendant over for driving on a suspended license. He moved to suppress that information. The court held that asking for ID under those circumstances was not a seizure. Also, people expect that LEOs will run any ID they have. State v. Backstrand, 354 Ore. 392, 313 P.3d 1084 (2013):
WaPo: How (and how much) the 50 states do drugs, in 5 maps by Aaron Blake:
NYT: A Spur in the Filibuster Fight: A Court’s Workload and Politics by Adam Liptak:
NYT: N.S.A. Report Outlined Goals for More Power by James Risen and Laura Poitras:
Document: A Strategy for Surveillance Powers
HuffPo: Earl Sampson Stopped 258 Times In Four Years -- All Cops Found Was Pot by Simon McCormack:
Ligon v. City of New York, 13-3123-cv, 13-3088-cv (2d Cir. November 22, 2013) (per curiam):
Even assuming defense counsel was deficient in not presenting a search and seizure issue on appeal, defendant fails to show how the outcome would be different or that the appellate court would have reversed. Penney v. United States, 2013 U.S. Dist. LEXIS 165019 (E.D. Tenn. November 20, 2013):
Plaintiff filed this 1983 action against local police for ordering her out of a house after spending two hours trying to figure out whether she was stealing a $10,000 check from the elderly occupant who was dying of Parkinson’s. The interaction with the police was not a seizure and was reasonable. They had reason to believe she was attempting to commit fraud. Hamilton v. Village of Oak Lawn, 735 F.3d 967 (7th Cir. 2013)* (read the opinion and see what else Judge Posner has to say about the plaintiff):
Officers unreasonably assumed that the person answering the door in a knock-and-talk who did not live there had apparent authority to consent to a view of the entire residence. The government bears the burden of proving voluntariness of consent and apparent authority and it failed here. United States v. Arreguin, 735 F.3d 1168 (9th Cir. 2013), prior appeal United States v. Arreguin, 453 Fed. Appx. 678 (9th Cir. 2011):
An apparent hand-to-hand drug deal occurred on a convenience store parking lot. There were possible innocent explanations, but this particular place was notorious to the police. Where the car parked, the length of the meeting, the officer’s vast experience, the bad history of his particular place all factored into the officer’s assessment of reasonable suspicion, and it is credited. Granted, cases elsewhere say that an apparent hand-to-hand deal alone is not enough but the court decides there was considerably more here. State v. Anderson, 2013 Utah App. LEXIS 277 (November 21, 2013).
The search warrant for the entirety of a flea market to get to defendant’s booth where he was selling counterfeit stuff was not overbroad because it couldn’t be compared to a case of searching an entire building with discrete living or working units inside. And, of course, the good faith exception saves it. State v. Baro, 2013-Ohio-5139, 2013 Ohio App. LEXIS 5356 (10th Dist. November 21, 2013).* [Apparently only his booth was searched, so what’s the complaint? An overbroad warrant that was never broadly executed is far less of a viable issue.]
A “citizen informant” set up a drug deal, and the police came in to complete it. Crediting her statements in full, the best that can be said is that it gave reasonable suspicion for a stop. Here, defendant was stopped and searched by the police solely on the citizen informant’s story which had not been fully corroborated. Kelly v. State, 997 N.E.2d 1045 (Ind. 2013).*
Defendant was arrested outside his mobile home at night. Merely having information of guns inside, noise [it turned out to be a dog] inside, and officer safety doesn’t justify this entry. Officer safety was accomplished by the arrest outside. Many homes have guns, and the state’s rule would make every home with a gun subject to search. Noise from inside is to be expected if there is anybody else there, but it doesn’t mean there’s a threat. Brumley v. Commonwealth, 413 S.W.3d 280 (Ky. 2013):
Defendant allegedly raped a woman and stole her purse and her cell phone. The police tracked the phone to where he was staying, but they milled around outside for hours, and then they decided to do a knock-and-talk at 5 am because they declined to get a search warrant, not wanting to compromise the technology used to track the phone. Defendant’s girlfriend refused admittance, and said to come back with a warrant. When she attempted to shut the door, the first officer blocked the door shutting with his foot and then they pushed their way in. The entry violated the Fourth Amendment. Thomas v. State, 127 So. 3d 658 (Fla. 1st DCA 2013):
Tasering defendant to remove drugs from his mouth raised a Fourth Amendment question of excessive force to search. The trial court erred in denying his motion to suppress without a hearing. People v. Atkinson, 2013 NY Slip Op 7769, 111 A.D.3d 1061, 975 N.Y.S.2d 227 (3d Dept. 2013):
Defendant’s residence was a place where co-conspirators met and a payment was made, so that makes nexus between the crime and that place. United States v. Jeremiah, 2013 U.S. Dist. LEXIS 165222 (D. R.I. November 19, 2013).*
The officer had reasonable suspicion to stop defendant’s vehicle in an active kidnaping investigation where the vehicle was the only one on the road in the area and he was directed to be on the lookout for it. United States v. Benais, 2013 U.S. Dist. LEXIS 165220 (D. Minn. October 18, 2013).*
Probable cause was shown for the tracking order on defendant’s cell phone GPS limited to 30 days. United States v. Gibbs, 2013 U.S. App. LEXIS 23412 (4th Cir. November 21, 2013).*
NYT: Latest Release of Documents on N.S.A. Includes 2004 Ruling on Email Surveillance by Charlie Savage and James Risen
NYT: Warrantless Surveillance Continues to Cause Fallout by Charlie Savage:
Defense counsel was not ineffective for not predicting the outcome in Jones when he recommended to defendant to plead guilty based on GPS evidence. State v. Miranda, 2013-Ohio-5109, 2013 Ohio App. LEXIS 5303 (10th Dist. November 19, 2013):
Grits for Breakfast: Fort Worth cops used roadblock to gather cheek swabs, blood draws for federal research project:
And another court held search incident of a cell phone unreasonable. See the previous post.
Defendant's cell phone was unlawfully searched without a warrant, and he asserted a privacy interest in it. State v. McClatchey, 259 Ore. App. 531, 314 P.3d 721 (2013). [No real discussion of the unlawfulness of the search; it is assumed.]
Defendant’s consent was voluntary. “The agents advised Defendant that they were seeking his cooperation, that he could refuse to consent and that he could revoke any consent that he had given.” He knew they were looking for child pornography. United States v. Williams, 2013 U.S. Dist. LEXIS 165176 (N.D. Ga. September 5, 2013).*
The evidence showed that ten marijuana plants were on the curtilage to defendant’s home, 35 yds from the house applying the Dunn factors. Defendant conceded nine others were outside the curtilage. United States v. Couch, 2013 U.S. Dist. LEXIS 165182 (E.D. Ky. June 28, 2013).*
Defendant was not unreasonably detained when he was stopped for suspicion of DUI when he attempted to enter a military base. MPs had to be called to the gate who could do a DUI investigation. United States v. Tataw, 2013 U.S. Dist. LEXIS 164826 (W.D. Ky. November 19, 2013).*
Defendant did not show in his 2255 that his girlfriend did not actually consent to the search of the premises, so defense counsel was not ineffective. Penney v. United States, 2013 U.S. Dist. LEXIS 165019 (E.D. Tenn. November 20, 2013).* [Implicit in the discussion to me is whether she had any authority whatsoever to consent, and apparently that wasn’t pursued.]
Defendant police officer was questioned about sexual molestation of a 15 year old girl. He was not in custody but he was told Garrity applied, up to his taking a polygraph, which wasn’t. Then he admitted he was with the girl. Lengsfeld v. State, 2013 Ga. App. LEXIS 933 (November 18, 2013).* [Can a police officer actually say that he didn’t know his Miranda rights?]
The warrant was partially general, but the remedy would be to suppress the parts of the warrant that are overbroad and that seized under it, not the whole search. United States v. Couch, 2013 U.S. Dist. LEXIS 164827 (E.D. Ky. November 20, 2013):
Officer’s statement to defendant “give me the drugs you just bought” was a command, not a request. Hernandez-Espino v. State, 2013 Ga. App. LEXIS 945 (November 19, 2013):
Defendant sought a subpoena to test the software used on a P2P search of defendant’s computer. The subpoena is quashed because the information sought is not relevant to the Fourth Amendment issue which is settled, and defendant will lose for lack of a reasonable expectation of privacy. United States v. Brashear, 2013 U.S. Dist. LEXIS 163865 (M.D. Pa. November 18, 2013).*
The arresting and searching officer had PC to believe defendant had a gun in the car, and that authorized a search. United States v. Sands, 2013 U.S. Dist. LEXIS 163889 (N.D. Ill. November 18, 2013).*
Defendant’s admission he had a gun justified a pat down. United States v. Hines, 2013 U.S. Dist. LEXIS 164056 (N.D. Ga. November 18, 2013).*
Defendant’s house was the subject of what fireman quickly decided was a meth lab fire. The fire marshal’s later entry was for a “cause and origin” determination, and it was justified by Tyler and Clifford. A police officer called during that entry was still justified in his entry. Later entries were by search warrant and were clearly justified. United States v. Mayne, 2013 U.S. Dist. LEXIS 163898 (N.D. Iowa November 15, 2013).
Officers found in a records check that defendant had a firearms prohibition. Based on another record, the affiant erroneously concluded that it was for domestic violence. The database consulted was regularly checked by LEOs and there was no reason to doubt its veracity. Therefore, the false statement was not recklessly nor maliciously made, and the Franks challenge fails. United States v. Franck, 2013 U.S. Dist. LEXIS 164451 (E.D. Wis. November 18, 2013),* R&R 2013 U.S. Dist. LEXIS 164452 (E.D. Wis. September 30, 2013).*
Defendant knew exactly what the police were looking for when he confessed to having child pornography on his computer before originally denying it. He was advised of his right to refuse consent and then consented to a search. United States v. Williams, 2013 U.S. Dist. LEXIS 164177 (N.D. Ga. November 18, 2013).*
Defendant failed to appear to serve a federal sentence, and he was found in New Mexico in a hotel room under an alias. His use of an alias to rent the hotel room did not deny him standing. United States v. Donahue, 2013 U.S. Dist. LEXIS 164351 (M.D. Pa. November 19, 2013):
“We need not decide today whether to join other circuits in holding that an egregious Fourth Amendment violation affirmatively compels exclusion in a removal proceeding because the Petitioners have not alleged an egregious violation.” Lopez-Fernandez v. Holder, 735 F.3d 1043 (8th Cir. 2013).*
Officers had reasonable suspicion to stop defendant. Independent of that, he was identified within an hour as being a suspect in a robbery. Ansley v. State, 2013 Ga. App. LEXIS 935 (November 18, 2013).*
A police officer who called a prosecutor during a stop for legal advice was entitled to qualified immunity for relying on the advice even though it was contrary to clearly established law. Kelly v. Borough of Carlisle, 2013 U.S. App. LEXIS 23273 (3d Cir. November 19, 2013),* prior appeal Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010) (same).
“File names and opinions of qualified investigating officers that images downloaded from a suspect's computer are ‘child pornography,’ even without a factual description of the images downloaded, may establish probable cause that child pornography will be found.” “Also, unsworn statements that are submitted with and that are, as a matter of common sense and realistic construction, considered part of the affidavit of a search warrant application may be considered as support for a magistrate's probable cause determination.” United States v. Bursch, 2013 U.S. App. LEXIS 23278 (9th Cir. November 19, 2013).*
The GPS tracking warrant was issued with PC and the good faith exception applied. United States v. Rios-Lopez, 2013 U.S. App. LEXIS 23280 (9th Cir. November 19, 2013).*
A claim that plaintiff’s Fourth Amendment rights were violated by not letting her go to the bathroom after was in jail didn’t lie against the arresting officers. Davenport v. Dovgin, 2013 U.S. App. LEXIS 23111 (7th Cir. November 14, 2013).*
The government had two valid reasons to pull defendant over: that his DL was suspended, and a detailed statement from a probationer that defendant was involved in a crime were both enough to be PC. United States v. Ove, 2013 U.S. Dist. LEXIS 163799 (D. Minn. October 4, 2013),* adopted 2013 U.S. Dist. LEXIS 163452 (D. Minn. November 18, 2013).*
“He that is without sin among you, let him first cast a stone at her.”
--Jesus Christ, in John 8:7
Update: He pled Wednesday to misdemeanor probation in D.C. court.
HuffPo: Florida Rep. Trey Radel, Busted On Cocaine Charge, Voted For Drug Testing Food Stamp Recipients by Arthur Delaney:
One defendant cannot challenge another defendant’s arrest. Here, it was under a violation of a mutual aid agreement. State v. Mitchell, 2013 Fla. App. LEXIS 18003 (Fla. 2d DCA November 13, 2013).*
The interaction between defendant and the officer was consensual up until the officer grabbed his hand on seeing a baggie of dope. Then it was justified by reasonable suspicion. State v. Simmons, 2013-Ohio-5088, 2013 Ohio App. LEXIS 5285 (9th Dist. November 18, 2013).*
The defense cannot show clear error on whether taillights were operating or not on a car where the district court found that they weren’t based on the officer’s testimony and a proffer of evidence that was not necessarily reliable that the taillights were working some other time that month. United States v. McGee, 736 F.3d 263 (4th Cir. 2013).*
There is no per se rule that there is no reasonable expectation of privacy in a police interview room. Here, the microphone was hidden in the thermostat. It should have been suppressed; however, the harmless error rule applied. State v. Williams, 2013-Ohio-5076, 2013 Ohio App. LEXIS 5278 (11th Dist. November 18, 2013):
Officers had both exigent circumstances and consent for an entry. Neighbors complained of a strong chemical smell coming from defendant’s house, and officers determined it was obviously from a meth lab. When they knocked, the fan turned off, and the people inside wouldn’t respond for a while. United States v. Reed, 2013 U.S. App. LEXIS 23178 (8th Cir. November 18, 2013).
The warrant for search of one defendant’s house was valid. Excluding the evidence challenged under Franks, there was still probable cause for the warrant. United States v. Gray, 2013 U.S. App. LEXIS 23120 (11th Cir. November 15, 2013).*
Defendant’s motion to suppress merely argued he was a passenger in the back seat of a car that was not even alleged to be unlawfully stopped, so his motion to suppress is denied for lack of standing. United States v. Allie, 2013 U.S. Dist. LEXIS 163350 (W.D. Pa. November 18, 2013).*
A motion to exclude evidence under 404(b) does not work like a motion to suppress under the Fourth Amendment. Taking it on plain error, it isn’t even error because the stuff was taken from a storage unit that was abandoned. Also there was a computer search issue, but there was no reasonable expectation of privacy in the computers because defendant gave them to her daughter to sell. United States v. Kannell, 2013 U.S. App. LEXIS 23206 (11th Cir. November 18, 2013).
Defense counsel was not ineffective for not arguing the issue in Jardines long before it was decided; it wouldn’t apply to these facts anyway, and, even if it did, Davis good faith would apply. United States v. Lozano, 2013 U.S. Dist. LEXIS 163670 (D. Minn. November 18, 2013).*
Defendant’s ducking to his right as he was pulled over for a seatbelt violation was a furtive movement justifying a frisk. United States v. Tillman, 2013 U.S. App. LEXIS 23146, 2013 FED App. 0983N (6th Cir. November 14, 2013).
N.D. Ga. follows Wurie and Smallwood and holds search incident of cell phone unreasonable under Gant. United States v. Dixon, 2013 U.S. Dist. LEXIS 163674 (N.D. Ga. August 29, 2013):
HuffPo: Big Brother's Always Been Watching Some of U.S. by Laura W. Murphy and Sandra Fulton:
Defendant was subjected to two stops of his truck. After he refused consent, he was let go on his way, but that officer radioed ahead to others who stopped him again after a traffic violation. This time, reasonable suspicion was found [and probably existed in the first stop]. His possession of a million in cash in the same trailer two years earlier was a factor. A dog alerted, and 90 pounds of cocaine was found. Austin v. State, 997 N.E.2d 1027 (Ind. 2013)*:
The first justification offered by the officers was concededly a mistake of law, and defendant did not violate a city ordinance. However, another justification was that defendant left his engine running with the car unattended. That justified the stop. United States v. Williams, 2013 U.S. Dist. LEXIS 163241 (W.D. Mo. October 11, 2013).*
The lessee of an apartment has the ability to consent to its search as to all common areas he goes into. Nothing was shown to have been stored in a bag. People v. Plumley, 2013 NY Slip Op 7624, 111 A.D.3d 1418, 975 N.Y.S.2d 309 (4th Dept. 2013).*
The officers had at least arguable reasonable suspicion that the plaintiffs and decedent were going to commit a burglary in an area known for burglaries of vacant houses. They stopped and approached the three with their guns drawn, and the decedent wouldn’t take his hands from his pocket and pulled a gun which resulted in a gun battle where he and the two officers were shot. There was enough reasonable suspicion one of them was armed for qualified immunity. Clark v. City of Atlanta, 2013 U.S. App. LEXIS 23061 (11th Cir. November 15, 2013).* [I know it’s tempting to say that the proof is in the pudding, but reasonable suspicion has to be based on what they knew not what happened, but plaintiffs weren’t in a good position here. A man died and both cops got shot, one potentially by the other. Bad facts and bad law and all that.]
Taking plaintiff’s facts as true at the pleading stage, a throwdown for a misdemeanor theft arrest resulting in a dislocated shoulder was excessive, and qualified immunity denied. Long v. Fulmer, 2013 U.S. App. LEXIS 23093 (10th Cir. November 15, 2013).*
On Friday, SCOTUS granted cert. in Plumhoff v. Rickard, a Fourth Amendment reasonableness/qualified immunity case that essentially applies Scott v. Harris on the reasonableness of deadly force during a police chase that started in West Memphis, Arkansas and ended in Memphis, Tennessee, three years before Scott was decided. The issues:
The officer credits the named citizen informant who claimed to fear defendant, and the court does too. United States v. Smith, 2013 U.S. Dist. LEXIS 163009 (D. Mass. November 13, 2013).*
A USMJ issued a tracking warrant for installation of a GPS device, and it was issued with probable cause. Defendant led the police on a brief high speed chase, ditched the car, and ran across a freeway. That’s abandonment of the car. United States v. Smith, 2013 U.S. Dist. LEXIS 161722 (D. Minn. October 31, 2013).*
The strip search policy at the D.C. Superior Court cell block has changed, and the officers implementing the past policy have qualified immunity. Johnson v. Gov't of the Dist. of Columbia, 734 F.3d 1194 (D.C. Cir. 2013).*
The affidavit for the search of the apartment was with probable cause to believe the occupant was a drug courier from the mainland. United States v. Guzman, 2013 U.S. Dist. LEXIS 162920 (D. Haw. November 15, 2013).*
Use of a flash bang device is governed by the Fourth Amendment. Its use by the police cuts both ways: It creates noise and smoke and a bright light, and it disables the citizen briefly, but it also disables the police. Are they reckless when they shoot into the smoke not fully knowing what’s going on? A jury will decide in this case. Jones v. Sandusky County, 2013 U.S. App. LEXIS 23137, 2013 FED App. 0967N (6th Cir. November 12, 2013):
The search warrant for defendant’s computer hard drive was executed by its seizure within the ten days as required by statute. It was not, however, searched until after the ten days. That is not material. Mastrogiovanni v. State, 324 Ga. App. 739, 751 S.E.2d 536 (2013):
A stop based on a cracked windshield was not shown to be valid by the state. “The difficulty for the state's position is that there is insufficient evidence about the nature of the crack to conclude that McKay's observations made it objectively reasonable to believe that the windshield created the probable risk of harm or loss necessary to establish a violation of ORS 815.020. ‘[W]hether a windshield crack poses a danger depends on the characteristics of the crack.’ Stookey, 255 Ore. App at 499. The only information adduced about the crack at the motion to suppress hearing that distinguished this crack from the one in Stookey was that there was ‘some spiderwebbing’ of the crack.” [Apparently the state needs a picture of the cracked windshield.] The stop led to finding defendant’s DL was suspended. State v. Anderson, 2013 Ore. App. LEXIS 1368 (November 14, 2013).*
Defendant did not support his claim of a Franks violation with an offer of proof. The affidavit said it did not include all facts (hardly any do). Even if he did make an offer of proof, he'd fail because there was probable cause. United States v. Ciotti, 2013 U.S. Dist. LEXIS 163134 (D.Vt. November 14, 2013).
Defendant’s search and seizure claim was waived by his guilty plea, so he can’t raise it in a 2255. United States v. Aleman, 2013 U.S. Dist. LEXIS 163095 (D. Minn. November 13, 2013).*
Defendant was stopped because of a man with a gun report at 4 am. When he was found with bullets but no gun, it was reasonable for the officers under Quarles’s public safety exception to ask about the gun. United States v. Smith, 2013 U.S. Dist. LEXIS 163009 (D. Mass. November 13, 2013).*
Defendant’s stop in Georgia for a traffic offense was reasonable because the car came back stolen. There is no constitutional reason for requiring the state prove that the person reporting the car theft was a “citizen informant.” She was connected to a murder in Tennessee. State v. Norwood, 2013 Tenn. Crim. App. LEXIS 990 (November 15, 2013).
The officer had reasonable suspicion for detaining defendant who was parked the wrong way in a rest area and seemed a little hyped up. The 20 minute wait for a drug dog was not unreasonable. State v. Rice, 2013-Ohio-5056, 2013 Ohio App. LEXIS 5241 (2d Dist. November 15, 2013).*
If there was a factual basis for ordering defendant out of the vehicle to continue the stop, the fact the officer mentioned one that turned out to be untrue doesn’t void the stop. Any basis is sufficient. State v. Sarno, 2013-Ohio-5058, 2013 Ohio App. LEXIS 5246 (2d Dist. November 15, 2013).*
The Verge: The edge of the abyss: exposing the NSA's all-seeing machine by T.C. Sottek:
On November 4th, 1952, a new federal agency was created in secret, chartered with spying on foreign adversaries around the world. There was no mention in the press. There was no discussion on the floor of Congress. The existence of the agency appeared nowhere in the Federal Register.
"I know the capability that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return."
--Senator Frank Church on Meet The Press, 1975
Ars Technica: NSA has no idea when it spies on Americans, top lawyer says by Cyrus Farivar:
Because doing so would "require a greater invasion of that person's privacy."
Speaking before a senatorial subcommittee on Wednesday, the intelligence community’s top lawyer told senators that the National Security Agency is incapable of knowing how often Americans’ data is captured inadvertently. Robert Litt, general counsel at the Office of the Director of National Intelligence, told the Senate Judiciary Subcommittee on Privacy the problem is that it would be “very resource-intensive” to figure out whether foreign targets are communicating with Americans, according to The Hill.
Wiretap information and a controlled buy ten days before the SW issued for a house was not stale. United States v. Gray, 2013 U.S. App. LEXIS 23120 (11th Cir. November 15, 2013).*
“While the officers did not have absolute certainty that the Defendant was on the premises on March 13, 2012, this Court finds that the officers had at least a reasonable belief that the Defendant was within the premises,” and that made execution of the warrant reasonable. United States v. Foster, 2013 U.S. Dist. LEXIS 162925 (M.D. La. November 15, 2013).*
Defendant contended that some of the information for the SW was illegally obtained. But, even if it was, the remainder establishes probable cause. United States v. Aguilar, 2013 U.S. Dist. LEXIS 162965 (N.D. Ill. November 12, 2013).*
The video of the stop does not support that defendant did not signal 100' before his turn. State v. Hneidy, No. 04-12-00692-CR, 2013 Tex. App. LEXIS 7788, 2013 WL 3279743 (Tex. App. – San Antonio June 26, 2013), is virtually identical, and the motion to suppress is granted. United States v. Gipson, 2013 U.S. Dist. LEXIS 162079 (N.D. Tex. November 14, 2013).*
The question whether defendant was arrested when handcuffed is really moot because a frisk was justified and it produced marijuana. United States v. McCullough, 2013 U.S. Dist. LEXIS 162402 (E.D. Tenn. September 4, 2013),* adopted 2013 U.S. Dist. LEXIS 161411 (E.D. Tenn. November 13, 2013).*
Defense counsel was not ineffective for not filing a motion to suppress on the grounds stated because it would fail. Penton v. United States, 2013 U.S. Dist. LEXIS 162325 (M.D. Ala. September 19, 2013).*
The search of defendant’s cell phone was unreasonable. It could not be justified as a search incident because it wasn’t on him when he was first arrest. He asked if it could be brought with him. Then, he consented to give the password only so the officer could look at text messages. The search of photographs exceeded consent. United States v. Shanklin, 2013 U.S. Dist. LEXIS 161947 (E.D. Va. November 13, 2013):
Consent tolls the 15 minute statutory stop and frisk rule. And, even if it didn’t developing probable cause obviates the stop and frisk statute’s application. People v. Taman, 2013 Guam 22, 2013 Guam LEXIS 22 (November 8, 2013):
Police investigating a murder for hire scheme in Tulsa developed information that defendant likely provided the van used in the murder. Sufficient probable cause developed in that case to issue the search warrant that led to the felon in possession of firearm case against him. The information was not constitutionally stale because the probable cause pointed to current possession of what the police were looking for. “The relevant question is whether the information in the search warrant affidavit suggests the items sought are currently located in the place officers seek to search.” United States v. Harris, 735 F.3d 1187 (10th Cir. 2013):
The NYPD officer’s union, Patrolmen's Benevolent Association of the City of New York, Inc., sued NYC over its policy requiring a breathalyzer of any officer involved in a shooting. The court previously affirmed denial of summary judgment. Lynch v. City of New York ("Lynch I"), 589 F.3d 94 (2d Cir. 2009). As in Lynch I, the court reaffirms that the “special needs” analysis prevails, and judgment is for the city. Lynch v. City of New York, 737 F.3d 150 (2d Cir. 2013):
Officers at a knock and talk who saw a bubbling bottle in the “shake and bake” method manufacturing methamphetamine was in plain view. State v. Lee, 124 So. 3d 1282 (La. App. 3 Cir. 2013).*
The harmless error rule does not apply to conditional guilty pleas. Defendant moved to suppress and lost, and should have had the whole case reconsidered. “The harmless error rule was ‘formulated to review trial verdicts’ (People v Grant, 45 NY2d at 378).” People v Wells, 2013 NY Slip Op 7511, 2013 N.Y. LEXIS 3130 (November 14, 2013).
Defendant had no standing to challenge a state wiretap that wasn’t on his phones and never recorded his voice. Deleon-Alvarez v. State, 324 Ga. App. 694, 751 S.E.2d 497 (2013).*
State did not prove valid inventory, and no inventory policy was admitted by the state to support it. Reversed. Shaw v. State, 324 Ga. App. 670, 751 S.E.2d 478 (2013). Lexis overview:
MSNBC: New analysis shows just how ineffective stop-and-frisk has been by Trymaine Lee:
Rory Little, Argument recap: Court seems poised to limit Georgia v. Randolph to “physically present” co-tenants, SCOTUSBlog:
Truthout: How Can the States Provide Fourth Amendment Protection Against the NSA? by Michael Boldin (Op-Ed):
Plaintiff was held down to forcibly remove cocaine from his mouth, and it was objectively reasonable for the officers to believe he was at medical risk for holding it there. He was also finally forcibly sedated, but that issue wasn’t raised in the district court, so it’s waived. Spotsville v. Hall, 2013 U.S. App. LEXIS 23024 (5th Cir. November 14, 2013).
Plaintiff’s arrest was with probable cause, so his 1983 claim fails. Jones v. Las Vegas Metro. Police Dep't, 2013 U.S. App. LEXIS 22994 (9th Cir. November 14, 2013).*
Officers did not violate clearly established law in entering plaintiff’s property and entering alleged curtilage. Roloff v. Washington County, 2013 U.S. App. LEXIS 23014 (9th Cir. November 14, 2013).*
Plaintiff’s stop in this 1983 case was valid, and it was not unreasonably extended. It was 40 minutes, but that was because of the plaintiff’s own conduct. “Picray recorded his forty-minute interaction with the officers. A certified transcript of this recording clearly demonstrates that the officers detained Picray only for the amount of time necessary to effectuate their investigation and that Picray's combative conduct and failure to cooperate caused the investigation to last forty minutes.” Picray v. Heeb, 2013 U.S. App. LEXIS 22837 (9th Cir. November 12, 2013).*
There is no clearly established constitutional right to have an officer talk to all witnesses before making an arrest on probable cause. Beattie v. Smith, 2013 U.S. App. LEXIS 22884 (10th Cir. November 13, 2013):
Ligon v. City of New York (In re Reassignment of Cases), 2013 U.S. App. LEXIS 22942 (2d Cir. November 13, 2013)
A few days ago, I posted United States v. Thomas, one of about 64 P2P search cases nationwide. This one case, for some reason, caught the attention of writers about Internet privacy. Knowing this issue isn't new, I did a Lexis search and I estimate 64 reported criminal cases (since 2006) have already held there is no reasonable expectation of privacy in a computer left on running P2P. The commonality of this issue is now being recognized:
The testifying officer heard the drug deal go down on a wire and watched the defendant go in his house and get the drugs and return for the sale. That’s PC. Any falsity in the information or testimony was mere oversight and not deliberate. State v. Hudson, 2013-Ohio-4967, 2013 Ohio App. LEXIS 5167 (11th Dist. November 12, 2013).*
No basis to file a motion to suppress, so no IAC. Moore v. State, 2013 Tenn. Crim. App. LEXIS 969 (November 6, 2013).*
Defendant’s girlfriend consented to an entry into the property, and then defendant consented to a patdown inside. State v. Stephens, 2013-Ohio-5008, 2013 Ohio App. LEXIS 5206 (5th Dist. November 7, 2013).*
Officers had a search warrant for defendant’s vehicle with plenty of probable cause. Defendant fled from the vehicle, however, effectively abandoning it, and that’s all the court needs to say. United States v. Smith, 2013 U.S. Dist. LEXIS 161722 (D. Minn. October 31, 2013).*
Officer’s testimony he saw the gun in plain view was credited by the district court and the evidence clearly supports that conclusion. United States v. Cunningham, 2013 U.S. App. LEXIS 22902 (4th Cir. November 13, 2013).*
A search in Mexico was authorized by defendant’s landlord, which Mexican officers believed was valid and represented it to be valid. It’s not clear it was valid, but, assuming the search was invalid, the good faith exception still applies. State v. Johnson, 2013 WI App 140, 352 Wis. 2d 98, 841 N.W.2d 302 (2013):
A gun in the house is not an exigent circumstance, but reasonable suspicion of its use is. State v. Mattocks, 2013-Ohio-4965, 2013 Ohio App. LEXIS 5168 (11th Dist. November 12, 2013):
NYLJ: Plaintiffs Say Stop-and-Frisk Panel Should Be Replaced by Mark Hamblett:
Montana has a constitutional right to privacy and right to know. The Montana Supreme Court concludes that lower level employees disciplined for viewing pornography on city time on city computers had a reasonable expectation of privacy not to be publicly disclosed, and disclosure of their identities was not in the public interest. The Fourth Amendment reasonable expectation of privacy analogy was not apt because of the state privacy protection. Billings Gazette v. City of Billings, 2013 MT 334, 372 Mont. 409, 313 P.3d 129 (2013)*:
Defendant was seen retrieving drugs from his car in a high crime area at night. When he was arrested, that justified a search incident of the car for more because it was reasonable to believe more would be found there. Suppression order reversed. People v. Crum, 2013 CO 66, 312 P.3d 186 (2013). [Note: This is the same as finding nexus to drugs in a house because the accused left the house to go to a drug deal.]
Since the CI’s recordings of his dealings with the defendant are admissible in federal court, they could form the basis of a search warrant application. United States v. Garecht, 2013 U.S. Dist. LEXIS 159708 (C.D. Ill. October 11, 2013).*
Defendant clearly waived his motion to suppress in his guilty plea, with defense counsel directly asking about it. United States v. Forehand, 2013 U.S. Dist. LEXIS 161063 (N.D. Fla. October 7, 2013).*
Reasonable suspicion for continuing a stop. United States v. Juarez-Moreno, 2013 U.S. Dist. LEXIS 160650 (D. Utah October 16, 2013)*:
1. Recent Vehicle Registration. ...
2. Third-PartyVehicle Registration. ...
3. Lack of Knowledge of Vehicle Owner. ...
4. Vague, Inconsistent, or Evasive Answers. ...
5. Deceptive answers. ...
6. Other Indicators. Trooper Wood noted a single key in the ignition, rather than on a key ring with other keys, suggesting the vehicle may have been purchased or used for illegal activity. ... Trooper Wood also took note of luggage on the rear seat of the car—rather than in the trunk as is generally the case for the motoring public—a circumstance he has observed in other pipeline stops. ... Trooper Wood has observed these same indicators during other pipeline stops. ... And, while of limited significance, such indicators nevertheless support a finding of reasonable suspicion to briefly detain the defendant for further investigation.
Reasonable suspicion near the border for an immigration stop: United States v. Russell, 2013 U.S. Dist. LEXIS 158945 (D. Ariz. September 17, 2013)*, adopted 2013 U.S. Dist. LEXIS 158946 (D. Ariz. Nov. 5, 2013)*:
The factors relied upon by Agent Cordova in this case were as follows: sensor activity showed vehicle traffic in an area commonly used by alien and drug traffickers to circumvent the border patrol check point; the area where the senor was located was a desolate area, accessible only by a dirt road; the car was relatively clean indicating that it had recently been on a paved highway; Defendant's car was the only one seen coming out of the area; the car was registered to a woman in Phoenix and was not a car that was familiar to the agent as belonging to one of the locals; and the car was riding low as if it was carrying a heavy load.
Defendant’s car was stopped because it was speeding in a high crime area at night, and, when the police car was seen, it jerked back into its lane. When the car was stopped, defendant fled from the car. That was all reasonable suspicion. United States v. Edmonds, 2013 U.S. Dist. LEXIS 160773 (W.D. Pa. November 12, 2013).*
Whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant.
NYT Editorial: When the Police Enter a Home:
But what if the police lawfully arrest the objecting tenant and remove him from the home, may they enter then? That is the question the Supreme Court is considering on Wednesday in Fernandez v. California.
HuffPo: Anal Probes And The Drug War: A Look At The Ethical And Legal Issues by Radley Balko: (link won't embed: http://www.huffingtonpost.com/2013/11/11/anal-probes-and-the-drug-_n_4254600.html):
Iris scanning and GPS tracking are increasingly central to the delivery of aid. The consequences could be devastating.
On review of a USMJ’s R&R, the USDJ may apply the “clearly erroneous” standard of review. And, the USDJ is free to come to a different conclusion under “de novo” review. Purchase of a larger quantity of drugs the day before, when there also had been purchases every three days, was not stale. United States v. Sandoval, 2013 U.S. Dist. LEXIS 158819 (N.D. Iowa October 23, 2013):
Clearly established law does not say that swearing a false arrest warrant violates the Fourth Amendment, so 1983 defendant gets qualified immunity. The complaint could potentially state a claim for malicious prosecution, but plaintiff never alleged that. Schulz v. Gendregske, 2013 U.S. App. LEXIS 22755, 2013 FED App. 0950N (6th Cir. November 5, 2013)*:
Officers drove past defendant, turned around, stopped, and got out of the car to talk to him, one in front and one to the side. “The act of blocking one's path to leave is conduct which indicates that a seizure has occurred.” A reasonable person would think he’d been seized, and this was without reasonable suspicion. State v. Goodloe, 2013-Ohio-4934, 2013 Ohio App. LEXIS 5129 (10th Dist. November 7, 2013)*:
Flight in a high crime area was reasonable suspicion for a stop. State v. Garcia, 2013 Fla. App. LEXIS 17851 (Fla. 2d DCA November 8, 2013)*; State v. Garcia, 2013 Fla. App. LEXIS 17849 (Fla. 2d DCA November 8, 2013).*
The suppression hearing judge erred in concluding that the affidavit in support of the search warrant didn’t show probable cause. Suppression grant reversed. State v. McGill, 2013 Fla. App. LEXIS 17866 (Fla. 5th DCA November 8, 2013).*
From the stop to the dog walk-around was five minutes. The license on the rental car had expired, and it was still being checked out. State v. Brown, 2013-Ohio-4952, 2013 Ohio App. LEXIS 5147 (6th Dist. November 8, 2013).*
Blatantly violating the jurisdictional requirement of Rule 41(b)(2) is not a mere “technical defect.” (Here, it arose in the context of a Title III warrant, too.) A USMJ cannot issue a warrant with no connection to his or her district. United States v. Glover, 2013 U.S. App. LEXIS 22667 (D.C. Cir. November 8, 2013):
You know your co-defendant’s become a snitch when his counsel won’t return or take your calls.
I’m supposed to be in trial this week, but ...
I figured this on my own after three days of trying. Trial is Wednesday-Friday. Then the deputy prosecutor confirmed it Friday afternoon. Surprise! No; not really. I’m not new at this. It’s happened before; it will happen again. I guess that happens from being “the most likely to go to trial.”
And I know co-defendant’s counsel doesn’t read this blog. Not that curious a lawyer.
(One of these days I will write some of these down for posterity.)
After a lengthy suppression hearing in a child pornography case, the court concludes one of the government’s experts on protocols for finding hash values on a computer shouldn’t be credited, but, at bottom, it didn’t change the outcome. This was a computer left on in file sharing mode on a P2P network, and that was an invitation to enter. “Because there is no evidence that law enforcement's use of automated software reached information on Defendants' computers that was not made available for sharing by the public, Defendants' motions to suppress on the basis of a warrantless search in violation of the Fourth Amendment must be DENIED.” United States v. Thomas, 2013 U.S. Dist. LEXIS 159914 (D. Vt. November 8, 2013).*
In a dissent from denial of rehearing en banc, one judge finds the panel essentially blew off an immigration case’s Fourth Amendment claim with no discussion whatsoever, and more is required. Gupta v. McGahey, 2013 U.S. App. LEXIS 22596 (11th Cir. November 7, 2013).*
Defendant’s guilty plea waived his alleged Fourth Amendment claim. United States v. Hernandez, 2013 U.S. Dist. LEXIS 160142 (D. Nev. November 7, 2013).*
Defendant’s stop was [state] unconstitutionally extended by the officer after the need for it ended, and his car was blocking defendant’s car, so the defendant did not feel free to leave. The officer offered to move the car, and the defendant didn’t say so, but that’s not determinative. State v. Peterson, 259 Or. App. 294, 313 P.3d 388 (2013):
A state court determination a 1983 plaintiff’s Fourth Amendment rights were violated in a criminal case ruled out at trial of the 1983 case under F.R.E 403 as more prejudicial than relevant and confusing to the jury. That was not an abuse of discretion. Thomas v. O'Brien, 2013 U.S. App. LEXIS 22664 (2d Cir. November 8, 2013).*
“[T]he Border Patrol agents identified ‘specific articulable facts, together with rational inferences from those facts, that reasonably warrant[ed] suspicion that the vehicle's occupant [was] engaged in criminal activity.’ Brignoni-Ponce, 422 U.S. at 884.” United States v. Carranza, 2013 U.S. Dist. LEXIS 159340 (W.D. Tex. November 7, 2013).*
Defendant’s Michigan parole search was authorized by regulation and satisfied Griffin. United States v. Mills, 2013 U.S. Dist. LEXIS 159739 (E.D. Mich. November 7, 2013).*
Two Posner opinions of note involving the Fourth Amendment decided a day apart:
In Balthazar v. City of Chicago, 2013 U.S. App. LEXIS 22744 (7th Cir. November 8, 2013), police had a search warrant and were in an apartment building, and the officer with the battering ram went to the wrong door. Another officer yelled “wrong door,” but he couldn’t check the swing, and broke the door. They went to the right door and entered. The city promptly paid to fix the door, but the officers didn’t otherwise “search.” Plaintiff sued under § 1983. At trial, it was apparent she was lying, so they had to go with alternate theory and lost. “ If you know you’re in the wrong place—a place you’re not authorized to search or want to search—the “unavoidable glance through the open door is not a search.”.*
Morrow v. May, 735 F.3d 639 (7th Cir. 2013)*, is a false arrest § 1983 case. It’s great, entertaining writing (appellant's counsel wouldn't think so) and you wonder why there was an appeal, but it adds nothing to the body of Fourth Amendment law.
eff.org: San Diego Gets in Your Face With New Mobile Identification System by Jennifer Lynch:
A 1983 plaintiff stated a claim for excessive and unnecessary use of a prisoner restraint chair when he was in juvenile detention. Blackmon v. Sutton, 734 F.3d 1237 (10th Cir. 2013):
A single trash pull, without more, is not probable cause of possession of drugs. State v. Jones, 2013-Ohio-4915, 2013 Ohio App. LEXIS 5109 (8th Dist. November 7, 2013):
Despite the laments from most in the criminal defense bar, the Fourth Amendment is “not dead yet.”
The pace of decisions since August has increased. I get a document dump from Lexis every morning. For the last two months, Tuesday-Saturday averages (just a guess) 20-25 new cases a day from all court sources that post to Lexis: U.S. District Courts, some state trial courts (more notably MA, NY, DE, RI, VI), and all the appellate courts in the U.S. Civil cases at the trial level aren't covered anymore because there are too many of them, and I have a day job. It's hard enough covering the criminal cases, and some weekday mornings I have court to prepare for.
But the sheer number of cases that come out shows that lawyers and courts have not given up on the Fourth Amendment. Yes, the limiting of the exclusionary rule and the growth of the good faith exception and qualified immunity make it harder to win, but we keep trying, and we keep winning some. Once and awhile, something earthshaking occurs, like 2012's United States v. Jones that creates new litigation possibilities. (See §§ 3.05–3.07 of the Fifth Edition) How many cases just die in the trial court because a suppression motion was granted and never appealed? Or the plea offer got really good after a losing motion to suppress where the prosecutor doesn't want to defend an appeal? None of those end up in reported decisions. And I've had a few.
My hat’s off to American criminal defense lawyers: Keeping the Fourth Amendment alive through litigation. We've come so far since James Otis, Jr. argued Paxton’s Case, the Writs of Assistance case in Boston Superior Court, Tuesday, February 24, 1761 where he said: “[T]he liberty of every man [is] in the hands of every petty officer,” quoted in Boyd v. United States, 116 U.S. 616, 625 (1886). (See § 1.03 of the Fifth Edition) We can say that today about the NSA, or any traffic stop.
Everyday, somebody prevails on a Fourth Amendment claim because the government overreached. It’s how we as lawyers keep the government in check. It’s our calling; it’s our duty to the law. I figured that out in college in the late 60's.
Defendant’s 9 plant marijuana patch was seen by the police from a neighbor’s yard. They claimed to have a warrant, and none was produced at the suppression hearing. The police entered his house when he didn’t answer the door. No legal justification for entry onto the curtilage or the house was shown, and the search and seizure is suppressed. Smith v. State, 324 Ga. App. 542, 751 S.E.2d 164 (2013).
At the time of defendants’ stops, officers had reasonable suspicion that both defendants had been involved in a robbery, and that supported the stops. Davis v. State, 2013 Ark. App. 658, 2013 Ark. App. LEXIS 665 (November 6, 2013)*; McBurrows v. State, 2013 Ga. App. LEXIS 883 (November 7, 2013).*
An apartment complex resident called 911 to complain that four men were “robbing” an apartment and making off with stuff. The car was described. Few cars were on the road at the time and the officer saw the likely car and stopped it. The stop was with reasonable suspicion. Johnson v. State, 324 Ga. App. 508, 751 S.E.2d 141 (2013).*
Officers on bike patrol in Albuquerque saw a car on an apartment building parking lot with three men in it, so they approached to inquire. An abrupt movement of one of them made the first officer say “get out of the car,” and they did. This was a stop without reasonable suspicion and defendant surely didn’t feel free to leave. State v. Murry, 2013 N.M. App. LEXIS 116 (November 6, 2013):
Blood draw by hospital staff for medical treatment was subpoenaed by the state for prosecution, and that did not violate the Fourth Amendment. Owens v. State, 2013 Tex. App. LEXIS 13767 (Tex. App. – Houston (1st Dist.) November 7, 2013):
The conclusory statement defendant’s attorney waived a motion to suppress was meaningless on an IAC claim. State v. Rohm, 2013 Iowa App. LEXIS 1158 (November 6, 2013).*
The appellate court could not determine the waiver of search claim on appeal as IAC, so defendant should raise it in a post-conviction proceeding. State v. Clark, 2013 Iowa App. LEXIS 1186 (November 6, 2013).*
Petitioner’s IAC claim that defense counsel failed to file a meritorious motion to suppress loses because it wasn’t meritorious. United States v. Brown, 2013 U.S. Dist. LEXIS 159344 (N.D. Ill. November 7, 2013).*
Defendant was arrested for a violent crime and had DNA taken from him. Those charges were nolle prossed, but the DNA made it to CODIS and matched him to another crime. Use of that evidence in the new case did not violate the Fourth Amendment. Browne v. State, 215 Md. App. 51, 79 A.3d 410 (2013).
Plaintiff’s prison strip search after a cell shake down was reasonable. Moton v. Walker, 2013 U.S. App. LEXIS 22654 (11th Cir. November 5, 2013).
Plaintiff previously litigated the probable cause for her arrest to Eighth Circuit and lost (Veatch v. Bartels Lutheran Home, 627 F.3d 1254 (8th Cir. 2010)), so that precludes her from litigating it again in state court. Veatch v. City of Waverly, 2013 Iowa App. LEXIS 1169 (November 6, 2013).*
An officer’s inability to read a temporary license plate that was otherwise in order led to a stop that was without reasonable suspicion. Defendant did nothing wrong. State v. Carmody, 2013 Iowa App. LEXIS 1145 (November 6, 2013):
Two anonymous calls that were recorded provided no indicia of reliability. The police tried to call back and got no answer. United States v. Freeman, 2013 U.S. App. LEXIS 22594 (2d Cir. November 7, 2013)*:
Officer who arrested 1983 plaintiff for possession of a semi-automatic weapon who was clearly on a “journey,” a complete defense at the time [since strengthened by new state law], had no qualified immunity. Because of the complete defense, there was no probable cause for the arrest. Stoner v. Watlingten, 2013 U.S. App. LEXIS 22586 (8th Cir. November 7, 2013).
The product of wiretaps was attested to by four officers on the search warrant affidavit. Defendant was talking about packaging and distributing drugs. That was probable cause. United States v. Dowdell, 2013 U.S. App. LEXIS 22619 (4th Cir. November 7, 2013).*
Officers were called to a domestic disturbance, and they approached plaintiff’s house in the dark without sirens and saw him come out with a shotgun pointing down. They shot him without warning. They were not entitled to qualified immunity in a 1983 case. Cooper v. Sheehan, 2013 U.S. App. LEXIS 22616 (4th Cir. November 7, 2013)*:
PC was shown for a search of defendant’s house based on the fact he left the house after phone calls to make drug transactions. State v. Russell, 2013-Ohio-4895, 2013 Ohio App. LEXIS 5086 (9th Dist. November 6, 2013).
Two warrants were issued on defendant 30 days apart and the second warrant had the information from the first one plus new information. The new information made the second warrant not stale. Given that the lapse could make the prior information stale, the new information with the old information was probable cause. State v. Winningham, 2013-Ohio-4872, 1 N.E.3d 501 (1st Dist. 2013).
Defendant made no effort to preserve his search issue for appeal via a conditional plea. Therefore, the result of the suppression hearing was considered a part of the plea. Bland v. State, 2013 Tex. Crim. App. LEXIS 1651 (November 6, 2013).
Under Florida statute, suspension of a DL for DUI requires a valid stop. Therefore, the driver gets to challenge the stop in the DMV suspension proceedings. Carrizosa v. Dep't of Highway Safety & Motor Vehicles, 2013 Fla. App. LEXIS 17597 (Fla. 2d DCA November 6, 2013).
The officer had PC to take defendant in for a breath test. Trial court reversed. State v. Gilbert, 997 N.E.2d 414 (Ind. App. 2013).*
Defendant’s traffic stop was valid. Even if it wasn’t, his crime of evasion was still not subject to suppression. Williams v. State, 2013 Miss. App. LEXIS 749 (November 5, 2013)* [The Mississippi court website is so bad I’m not even going to try and find this. See for yourself.]
CI’s story was corroborated by his making a controlled buy from the defendant, and the controlled buy was PC for the search warrant. United States v. Mitchner, 2013 U.S. Dist. LEXIS 158520 (D. R.I. November 5, 2013).*
An FBI agent’s car was broken into and a duffle bag with his gun, ID, and wallet was stolen. His CC was shortly used and the police keyed on defendant’s car. When it was found, there was PC to search it for evidence of the break-in and theft. A search of a common storage area at defendant’s apartment was valid because he had no standing. United States v. Rucker, 2013 U.S. App. LEXIS 22491 (8th Cir. November 6, 2013).*
FedEx in Tulsa began opening a suspicious package before the police even got there. It was about opened when they arrived. Private search. United States v. Storey, 2013 U.S. Dist. LEXIS 158017 (N.D. Okla. November 5, 2013).*
AOL’s computers scan attachments looking for known child pornography hash values, and the information is all reported to NCMEC with the IP addresses. It can lead to opening an investigation. United States v. Keith, 2013 U.S. Dist. LEXIS 158282 (D. Mass. November 5, 2013):
Defendant’s arrest was with PC, and thus the search incident of the cell phone was valid. “See United States v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009) (holding that officers may seize cell phones incident to an arrest and retrieve text messages and other information without a search warrant).” United States v. Graves, 2013 U.S. App. LEXIS 22523 (4th Cir. November 6, 2013).*
The city sent plaintiff notice stuff growing in her yard was a nuisance, and she never appealed it. They later came around and seized. Her due process rights were satisfied under a 2004 case in the same circuit, and that’s enough to find the entry reasonable under the Fourth Amendment. Morrison v. Cox, 2013 U.S. App. LEXIS 22508 (10th Cir. November 6, 2013).*
There was probable cause to arrest the defendant. The after-acquired information was not considered by the USMJ. United States v. Uriel, 2013 U.S. Dist. LEXIS 158939 (W.D. N.C. November 6, 2013).*
A First Circuit warrantless cell phone search pre-Wurie (United States v. Wurie, 728 F.3d 1, 13 (1st Cir. 2013)) violated the Fourth Amendment. “Thus, it is simply inappropriate to analogize cell phones to cigarette packs, purses, and address books; the more apt comparison is to computers.” The Davis good faith exception, however, applies. United States v. Mayo, 2013 U.S. Dist. LEXIS 158866 (D. Vt. November 6, 2013):
A typo on the date the affidavit was signed (June 1) v. the warrant date (July 1) was curable at the suppression hearing. State v. Spradling, 413 S.W.3d 670 (Mo. App. 2013).
A dog alert on a car is probable cause to search the car. State v. Lloyd, 129 Nev. Adv. Rep. 79, 2013 Nev. LEXIS 91 (October 31, 2013).*
Odor of marijuana around the driver did not give probable cause to search the passenger. State v. Malunda, __ N.C. App. __, 749 S.E.2d 280 (2013):
Old outdated information that wasn’t corroborated didn’t provide reasonable suspicion for defendant’s stop. Thus, the detention thereafter failed, too. United States v. Cardona, 2013 U.S. Dist. LEXIS 158103, 2013 U.S. Dist. LEXIS 158126 (E.D. Pa. November 5, 2013):
The district court erred in finding the officer’s use of force in striking a man while he was down after the police car ran over his motorcycle while he was fleeing. The parties had differing views of the evidence, and the video didn’t capture it all. A jury will have to decide. Coker v. Ark. State Police, 734 F.3d 838 (8th Cir. 2013).*
FedEx employee was acting as private citizen for search of a package in transit. The police were called and they arrived after the search was ongoing. United States v. Storey, 2013 U.S. Dist. LEXIS 158017 (N.D. Okla. November 5, 2013).*
A search warrant need only be left as the officers depart the premises. Pre-search showing of the warrant is not required. State v. Ollivier, 178 Wn.2d 813, 312 P.3d 1 (2013).
OH12 applies Davis good faith to placement of a GPS device pre-Jones. State v. Johnson, 2013-Ohio-4865, 1 N.E.3d 491 (12th Dist. 2013).
The search warrant was not unconstitutionally overbroad so as to require suppression. The overbroad parts here were severable. State v. Higgs, 177 Wn. App. 414, 311 P.3d 1266 (2013):
Reasonable suspicion as to a passenger can support a stop. Brendlin n. 3. United States v. Burton, 2013 U.S. Dist. LEXIS 157676 (M.D. Fla. November 4, 2013).
Defendant consented on the totality to a search of his person for drugs. That included seizure of a crack pipe [what about plain feel?]. State v. Boling, 2013-Ohio-4813, 2013 Ohio App. LEXIS 5019 (2d Dist. November 1, 2013).*
Defendant could be ordered out of his semi for officer safety. The officer had a CI about defendant driving a semi under the influence which he corroborated by observation. The stop was reasonable State v. Durham, 2013-Ohio-4764, 999 N.E.2d 1233 (12th Dist. 2013).*
An Ohio “statute, by negative implication, prohibits an officer from arresting and detaining without a warrant any person outside the officer's territorial jurisdiction.” A violation of that statute is not subject to an exclusionary rule; that’s for constitutional violations unless statute otherwise provides. State v. Wilson, 2013-Ohio-4799, 2013 Ohio App. LEXIS 5006 (10th Dist. October 31, 2013).
Being in a car on the edge of a large parking lot slumped down is not reasonable suspicion of a crime, and the detention thereafter was unreasonable. State v. Fox, 2013-Ohio-4786, 2013 Ohio App. LEXIS 4986 (5th Dist. October 30, 2013).*
Marijuana seen in plain view in a car supported a search of the whole car for more drugs. State v. Thompson, 2013-Ohio-4825, 2013 Ohio App. LEXIS 5029 (2d Dist. November 1, 2013).*
Texas’s 14th Appellate District follows In re Application of the United States. 724 F.3d 600 (5th Cir. 2013), that cell site location data is information held by a third person in which there is no reasonable expectation of privacy. Barfield v. State, 416 S.W.3d 743 (Tex. App. — Houston (14th Dist.) 2013).
A “motion to suppress illegally obtained evidence” does not preserve for review a claim that a breath test is not admissible under scientific Rule 702 as expert testimony. State v. Esparza, 413 S.W.3d 81 (Tex. Crim. App. 2013).*
Defendant was in a car that matched the description of one involved in an attempted burglary. As an officer in an unmarked car closed in on it, a gun was tossed. The gun was reasonable suspicion for a stop. Commonwealth v. Gorman, 84 Mass. App. Ct. 482, 998 N.E.2d 344 (2013).*
A sexually violent predator in civil confinement and on probation in Texas has no reasonable expectation of privacy in his stuff while confined there. Goodwin v. State, 416 S.W.3d 90 (Tex. App. – Beaumont 2013):
Defendant was stopped for a traffic violation and said he was on his way to his PO for a drug test on supervised release. In the car in plain view was a bladder for falsifying the UA. That was reasonable suspicion to detain longer, and the PO was called. At the scene they saw a gun, too, and defendant was arrested. A search of the car found methamphetamine. The detention and search were reasonable. United States v. Cash, 733 F.3d 1264 (10th Cir. 2013).
An officer does not have to “know” that a bill is counterfeit to make an arrest on PC for defendant passing it. United States v. Jones, 2013 U.S. App. LEXIS 22381 (5th Cir. November 4, 2013).*
Wallace v. Kato changed the limitations period for certain § 1983 cases in Utah, and this plaintiff is entitled to equitable tolling where Wallace came after his claim accrued and then ostensibly cut it off. Garza v. Burnett, 2013 UT 66, 2013 Utah LEXIS 160 (November 1, 2013) (on certification from the Tenth Circuit for an opinion on state law).*
False arrest § 1983 case accrues when a judicial officer determines PC exists. Serino v. Hensley, 2013 U.S. App. LEXIS 22382 (7th Cir. November 4, 2013).*
Plaintiff did not state a claim against an officer that accidentally shot him during a mental health episode, but he did against the department for a lack of training in dealing with mentally ill persons. Estate of Bleck v. City of Alamosa, 2013 U.S. App. LEXIS 22328 (10th Cir. November 4, 2013).*
There is no tolling of limitations in Wisconsin for false arrest while you’re in jail. Segues v. Springob, 2013 U.S. App. LEXIS 22333 (7th Cir. November 4, 2013).*
After defendant succeeded in suppressing a child pornography search, the government indicted him for conspiring to receive child pornography with a higher mandatory minimum. The district court held that the defendant made a case of government retaliation for winning the suppression motion, which he had a right to file. After considering all the countervailing arguments, the district court’s opinion is affirmed and was not an abuse of discretion. United States v. Ladeau, 2013 U.S. App. LEXIS 22313, 2013 FED App. 0320P (6th Cir. November 4, 2013):
The Ninth Circuit below in finding no qualified immunity for an entry in misdemeanor pursuit necessarily included that the officers were “plainly incompetent.” In light of the split in the case law, that court was wrong. Maybe the entry was constitutional, maybe it wasn’t, but they weren’t “plainly incompetent” in making the entry. “Stanton may have been mistaken in believing his actions were justified, but he was not ‘plainly incompetent.’” Stanton v. Sims, 2013 U.S. LEXIS 7773 (November 4, 2013) (per curiam):
The trial evidence is no longer to be considered in Pennsylvania in deciding whether a motion to suppress was properly granted. Must be based on the suppression hearing evidence alone. Appeal Of: L. J., 79 A.3d 1073 (Pa. 2013).
The officer had reasonable suspicion to confront defendant, and defendant fled abandoning marijuana. The seizure was valid. State v. Jones, 128 So. 3d 436 (La. App. 5 Cir. 2013).*
There was reasonable suspicion that an officer observed defendant engage in a drug transaction justifying the stop. Butler v. State, 2013 Md. App. LEXIS 142 (November 1, 2013).*
“Because Champers' observed conduct was objectively suspicious [for criminal trespass], Deputy Sturrup did not violate Champers' Fourth Amendment rights by briefly detaining him to investigate his presence on the property. Accordingly, we reverse the suppression order and remand for further proceedings.” State v. Champers, 2013 Fla. App. LEXIS 17325 (Fla. 5th DCA November 1, 2013).*
The trial court made a credibility determination, which was its province, and sided with the state on whether the police could come to the door. It discounted the defendant’s testimony because the photographs were apparently manipulated. State v. Phillips, 2013 MT 317, 2013 Mont. LEXIS 443 (October 29, 2013).*
Defendant’s conditional plea did not conform to the rule so there is no jurisdiction for the appeal. Southern v. State, 2013 Ark. App. 623, 2013 Ark. App. LEXIS 643 (October 30, 2013).*
“The trial court erred in finding that Cooper did not have standing to challenge the search. Although Cooper did not introduce a lease or deed or other documentation, the evidence showed that Cooper had a possessory interest in the residence. Bradley's father testified that Bradley was living with Cooper. And the testimony of Bradley's mother twice referred to 2450 North Market as ‘Ms. Cooper's house.’ This witness testimony about Cooper's residency was unchallenged.” Cooper v. State, 80 A.3d 959 (Del. 2013).
Defendant waived review of the U.S.M.J.’s R&R by not seeking de novo review. Even so, defendant was arrested in his house and there was a protective sweep. He was Mirandized and spoken to in Spanish and consented, so the search is good on the merits. United States v. Brache, 2013 U.S. App. LEXIS 22181 (11th Cir. October 31, 2013).
The motion to suppress was denied on the police report and the pleadings by agreement. The case is remanded to settle the record as to what exactly happened. Jones v. State, 2013 Ark. App. 611, 2013 Ark. App. LEXIS 640 (October 30, 2013).*
A suppression hearing is a search for the truth, too, and the trial court acted within its discretion in permitting the state to reopen its proof. State v. Freeman, 2013 Conn. LEXIS 363 (November 5, 2013).
The search of the rental car was valid by probable cause and consent, and none of the defendants had standing as an authorized driver. United States v. Goode, 2013 U.S. App. LEXIS 22094 (3d Cir. October 30, 2013).*
The search of the rental car was valid for lack of standing. Text messages from a seized cell phone were properly authenticated. [Apparently no motion to suppress the seizure of the text messages was filed.] United States v. Mebrtatu, 2013 U.S. App. LEXIS 22093 (3d Cir. October 30, 2013).*
Each week, Weekend Edition Sunday host Rachel Martin brings listeners an unexpected side of the news by talking with someone personally affected by the stories making headlines. Ta-Nehisi Coates grew up in Baltimore, and it was there, as a teenager, when he first felt like he was being singled out for his race. He and a friend walked into a store, and the employees followed them the entire time as they shopped.
Privacy advocates and at least one U.S. senator are expressing concern that legislation introduced Thursday would not only endorse the National Security Agency's collection of all Americans' phone records, but also give the agency permission to collect massive amounts of their e-mail records.
Defendant was arrested in a cavernous room, and a cursory search of nearby closets was a valid protective sweep. United States v. Iruke, 2013 U.S. App. LEXIS 21979 (9th Cir. October 28, 2013).
Defendant was arrested when officers came in to his house with guns drawn to search for child pornography. He was not Mirandized and made admissions while the officers were searching and talking to him. Statements suppressed because it was custodial. United States v. Hashime, 2013 U.S. App. LEXIS 22044 (4th Cir. October 29, 2013).*
Bent and illegible paper tag on a vehicle was the basis for the stop, but officers smelled marijuana immediately. They didn’t have to follow up on the LPN issue with that. United States v. Johnson, 2013 U.S. App. LEXIS 22032 (4th Cir. October 29, 2013).*
GPS monitoring can be a valid and constitutional condition of juvenile probation. Here, however, the record was muddled on it. In re A.M., 2013 Cal. App. LEXIS 881 (1st Dist. October 30, 2013). Official summary of the court:
Construing the warrant as a whole, it did not authorize a “general search,” and the good faith exception applied to its execution. United States v. De La Torre, 2013 U.S. App. LEXIS 22269 (10th Cir. November 1, 2013):
An internet “gripe site” was not a conventional news gathering source covered by the N.J. Subpoena First Act. A search warrant was issued for his records, and he sued. Even if he were covered, suppression of evidence was not a remedy under the Act. Oettinger v. Township of Bedminster, __ N.J. Super. __, 77 A.3d 1242 (2013):
HuffPo: A Police Chief Tries To Reform The System From Within by Radley Balko (part 6 of a 6 part series):
There is a presumption of good faith, and the good faith exception can be decided other than probable cause. There was a dog sniff of a garage door two years before Jardines (application of which was not briefed since briefs came before it), and it was valid at the time of the dog sniff, and that supports the warrant. United States v. Ponce, 734 F.3d 1225 (10th Cir. 2013):
A 1983 pro se plaintiff’s computer search was suppressed under the Alaska Constitution, but that did not govern the Fourth Amendment analysis in a 1983 case. Every step of the way, the officers involved prosecutors and supervisors in their actions. They were entitled to qualified immunity under Messerschmidt v. Millender. Armstrong v. Asselin, 734 F.3d 984 (9th Cir. 2013).*
Plaintiff’s disorderly conduct arrest was without arguable probable cause because she said “hell” and “damn” in a loud voice when told to move her legally parked car. Wilkerson v. Seymour, 2013 U.S. App. LEXIS 22058 (11th Cir. October 30, 2013).*
The district court erred in not considering the Fourth Amendment reasonableness of defendant’s take down in the jail during booking in a 1983 excessive force claim. Reversed. Burgess v. Fischer, 2013 U.S. App. LEXIS 22279 (6th Cir. November 1, 2013).*
Plaintiff in this 1983 case was held overnight in jail for a seatbelt violation for which she could only be sentenced to a fine of $15. She was also primarily held on the officer’s conclusion that she was a person named in a probation violation warrant although she didn’t match the description. Atwater v. City of Lago Vista made the jailing reasonable for the seatbelt violation mooting the other claim. Cruz v. Davidson, 2013 U.S. App. LEXIS 22194 (11th Cir. October 31, 2013):
For some reason, my Lexis alert disappeared or expired. I ran it today, and about 240 opinions come up for last week, about half of them unpublished or trial court civil cases.
Because I'm working on a brief this weekend and have a trial Wednesday, it will take a while to get caught up. Probably a week total.
The webmaster of a site created to draw complaints about a Rutgers University official can't seek cover from a New Jersey law that generally prohibits police from searching news organizations' offices, a state appeals court rules.
HuffPo: An Unexpected Reformer Fights To Hold Police Accountable by Radley Balko (part 5 of a 6 part series):
NYT: Angry Over U.S. Surveillance, Tech Giants Bolster Defenses by Claire Cain Miller:
The Second Circuit's stay opinion in Ligon v. City of New York (13-3123), Floyd v. City of New York (13-3088) (2d Cir. October 31, 2013):
Second day in a row. Don't know why.
An interlocal agreement is not required for a law enforcement officer to execute a search warrant anywhere in the county. Such a search is not per se unreasonable. State v. Robinson, 2013 Ark. 425 (October 31, 2013):
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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
—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
—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
"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]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"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)