The smell of marijuana from a car is no longer probable cause under California law, but it is still in a national park. United States v. Tolmosoff, 2024 U.S. Dist. LEXIS 83134 (E.D. Cal. May 7, 2024).
Defendant wasn’t seized by the officer parking by his car, but he fled and attenuation applies. United States v. Zamora, 2024 U.S. Dist. LEXIS 82489 (D. Mont. May 6, 2024).*
Defense counsel’s failure to file a reply brief on a suppression motion isn’t a showing of prejudice. Carpenter v. United States, 2024 U.S. Dist. LEXIS 82928 (N.D. Ill. May 7, 2024).*
Probable cause was based both on informant hearsay and officers watching a controlled buy. United States v. Britton, 2024 U.S. App. LEXIS 10672 (8th Cir. May 2, 2024).*
CA10, Tymkovich, Circuit Judge, dissenting: Bivens is a relic of the 20th Century and it’s just a matter of time until it’s gone. Mohamed v. Jones, 2024 U.S. App. LEXIS 11089 (10th Cir. May 7, 2024).
The affidavit for the warrant for defendant’s BAC was based on probable cause. State v. Kroese, 2024 Tenn. Crim. App. LEXIS 187 (May 7, 2024).*
Defendant’s guilty plea waived his Fourth Amendment claim. Hollon v. State, 2024 Miss. App. LEXIS 194 (May 7, 2024).*
Defendant’s drug activities showed nexus for a warrant to search his basement apartment. United States v. Doe, 2024 U.S. Dist. LEXIS 82883 (D. Mass. May 7, 2024).*
Defendant’s consent to look in his backpack didn’t require separate consent to look in a pill bottle. Lee v. Commonwealth, 2024 Va. App. LEXIS 258 (May 7, 2024).
CBP had reasonable suspicion for the stop of a Jeep meeting four jet skis from Puerto Rico coming to the Virgin Islands in rough seas when they had a tip that’s how drugs would arrive. United States v. Vazquez-Lopez, 2024 U.S. Dist. LEXIS 81992 (D.V.I. May 6, 2024).*
Pacing a speeder was reasonable suspicion for a stop. United States v. Pearson, 2024 U.S. Dist. LEXIS 82383 (N.D.W. Va. May 6, 2024).* Same: United States v. Jones, 2024 U.S. App. LEXIS 11111 (4th Cir. May 7, 2024).*
The argument that a protective sweep was necessary is actually mooted by the fact it was a probation search. United States v. Wallace, 2024 U.S. Dist. LEXIS 82485 (D. Mont. May 6, 2024).*
Defendant’s arrest body cavity search pulling out heroin was unreasonable. People v. Chase, 2024 NY Slip Op 01837, 2024 N.Y. App. Div. LEXIS 1877 (3d Dist. Apr. 4, 2024). [Sentencing was five years ago, and that should be an embarrassment to NY courts.]
Plaintiff is a U.S. Citizen living in Japan. When his Japanese bank account exceeded $10,000 he was required to file an IRS Form 114. He sued the Secretary of Treasury that it was an invasion of privacy. The district court denied the claim based on California Bankers Assn. While the case was pending he filed the form. The district court had no jurisdiction at that point. Mano v. Yellen, 2024 U.S. App. LEXIS 10952 (7th Cir. May 6, 2024).*
Defendant’s detention was without reasonable suspicion, so his obstruction was not a crime. State v. Mrozowski, 2024 Ga. App. LEXIS 175 (May 6, 2024).*
Tracking money from a bank robbery was probable cause for defendant’s stop and arrest. United States v. Whitmore, 2024 U.S. Dist. LEXIS 82202 (N.D. Ill. May 1, 2024).*
Plaintiff’s strip search was objectively reasonable, no matter the subjective intent that motivated it. Jones v. Degrave, 2024 U.S. App. LEXIS 10953 (7th Cir. May 6, 2024).
Plaintiff doesn’t show that GPS monitoring as a condition of his state probation was unreasonable. Hamlet v. Irvin, 2024 U.S. Dist. LEXIS 81233 (W.D. Va. May 3, 2024).*
The protective sweep was reasonable, and statements made during it are admissible. United States v. Johnson, 2024 U.S. App. LEXIS 10910 (6th Cir. May 3, 2024).*
The defense didn’t show that the state destroyed his router during the search of his house such that exculpatory evidence that others were involved instead could have been destroyed. The government showed significant amounts of child pornography on electronics in his house. United States v. Hulse, 2024 U.S. App. LEXIS 10911 (6th Cir. May 2, 2024).*
Plaintiff showed sufficient facts to support a § 1983 Franks claim for false statements supporting probable cause for arrest. Franks is clearly established law. Hughes v. Garcia, 2024 U.S. App. LEXIS 10922 (5th Cir. May 3, 2024).
“Based upon our review of the record submitted on appeal, we agree with the trial court’s well-reasoned and thorough order that the affidavit supporting the search warrant did not contain any material omissions or misrepresentations that rendered the warrant invalid.” State v. Chaney, 2024 N.H. LEXIS 83 (May 3, 2024).*
Defendant’s Franks challenge is tenuous at best and fails. The CI’s information here was sufficient to show probable cause within the lengthy and detailed affidavit for warrant. United States v. Overton, 2024 U.S. Dist. LEXIS 80955 (W.D. Pa. May 3, 2024).*
In the Michigan zoning drone use case, the court finds that the exclusionary rule would not be applied in civil cases, so the constitutionality of use of the drone didn’t need to be decided. Long Lake Twp. v. Maxon, 2024 Mich. LEXIS 841 (May 3, 2024).
“[T]he Officers reasonably believed that Mr. Craven posed an immediate risk of harm when he persisted in advancing toward them and, despite their commands, dropped his hands toward his waist where a gun holster was located.” Craven v. Novelli, 2024 U.S. App. LEXIS 10834 (4th Cir. May 3, 2024).*
A cell phone stuck inside to the windshield was reasonable suspicion for a stop. United States v. Reyes-Rosario, 2024 U.S. Dist. LEXIS 80948 (W.D. Pa. May 3, 2024).*
Lawful possession of marijuana in a car is not probable cause for a search. A minor in possession is unlawful, so it is. In re Randy C., 2024 Cal. App. LEXIS 292 (1st Dist. May 3, 2024).
There was a substantial basis for concluding that probable cause existed despite the week long delay between the shooting and warrant issuance because a difference of a week during an ongoing investigation of felonious assault where the perpetrator was unidentified was not unreasonable. State v. Griffin, 2024-Ohio-1699 (1st Dist. May 3, 2024).*
Whether defendant consented to a search of his closet is a moot point because it was valid as a probation search. United States v. Rivera-Pitre, 2024 U.S. Dist. LEXIS 80723 (D.P.R. Apr. 29, 2024).*
“Although Defendant suggests that a Franks-like challenge was made during the suppression hearings in the Puerto Rico state court, he fails to develop any type of Franks argument in this case. Indeed, Defendant does not provide copies of the search warrant and affidavit in support thereof in any of his briefings. Accordingly, Defendant has failed to raise a Franks challenge.” United States v. Marin-Rodríguez, 2024 U.S. Dist. LEXIS 80722 (D.P.R. Apr. 29, 2024).
Plaintiff waived his Fourth Amendment and other claims by not raising them in his opening appellate brief. Crandall v. Newaygo Cty., 2024 U.S. App. LEXIS 10784 (6th Cir. May 1, 2024).*
Stone v. Powell requires only that the accused has the opportunity to litigate the search issue, not that he actually did. Archuleta v. Covello, 2024 U.S. Dist. LEXIS 80589 (N.D. Cal. May 2, 2024).*
The exclusionary rule does not apply to the IRS allegedly violating it’s own operations manual. United States v. Pacheco, 2024 U.S. Dist. LEXIS 80448 (D. Nev. May 2, 2024).
“Neither party cites, nor have we have found, any published cases from our court that address whether a criminal-history check and ELSAG search fit within a traffic stop’s original mission. In two unpublished cases, we have assumed they do, but without confronting the question directly. … We need not weigh in today because we conclude that McKee already had a reasonable suspicion that Daniel was engaging in other criminal activity by the time he ran the checks and requested the dog sniff.” United States v. Daniel, 2024 U.S. App. LEXIS 10744 (5th Cir. May 2, 2024).*
The government waived some of the exceptions to the exclusionary rule by not raising them before the USMJ. United States v. Gibson, 2024 U.S. Dist. LEXIS 80620 (W.D.N.C. May 2, 2024).*
Defendant’s phone was pinged by Utah court order, but it left the state and was spot checked when out-of-state. “Further, the ping data that ultimately led to the traffic stop at issue was collected while phone 3145 was in Utah. Defendant has not provided, nor can the Court find any case law to support that all data collected from the ping warrant must be excluded if the scope of the warrant was exceeded at any point.” The traffic stop was justified, and the dog showed up within seven minutes, a reasonable time. United States v. Perez-Espinoza, 2024 U.S. Dist. LEXIS 80709 (D. Utah May 1, 2024).*
“The information containing Officer Lehr’s prior experience with defendant, in conjunction with contemporary surveillance and Lehr’s training and experience, could provide the Circuit Court Judge with a sufficient information to establish probable cause to believe there was on-going drug activity in the house where defendant stated he resided. Because of the deference to be accorded the judge who issued the warrant, this Court cannot find the application was so lacking in detail that evidence found at the house in which defendant resided should be suppressed.” Thus, the good faith exception applies, too. United States v. Smith, 2024 U.S. Dist. LEXIS 80438 (C.D. Ill. Apr. 4, 2024), adopted, 2024 U.S. Dist. LEXIS 79500 (C.D. Ill. Apr. 30, 2024).*
Posted inDog sniff, Probable cause|Comments Off on D.Utah: Drug dog arriving within 7 minutes was reasonable and part of the initial stop
If an arrest lacks probable cause, the preliminary hearing can moot that. Taylor v. Szewc, 2024 U.S. Dist. LEXIS 57791 (D. Kan. Mar. 29, 2024).
Omitted information about the CI doesn’t support this Franks challenge. United States v. Williams, 2024 U.S. Dist. LEXIS 80117 (W.D. Pa. May 2, 2024).*
The tracking order for defendant’s cell phone was issued with probable cause despite the lack of knowledge whether this person carried the phone to drug deals. [The common knowledge that drug dealers and couriers use cell phones regularly in their deals goes a long way.] United States v. Santos-Hunter, 2024 U.S. Dist. LEXIS 80112 (D. Minn. May 2, 2024).*
In a state filed § 1983 case, plaintiff’s complaint only alleged a seizure, with no facts that it was legal or not. Motion to dismiss properly granted. Markunas v. Vill. of Lake Delton, 2024 Wisc. App. LEXIS 364 (May 2, 2024).*
Defendant was arrested in Arkansas on a California extradition warrant, and he had a California parole search waiver. The California search waiver parallels the Arkansas statute, and Arkansas officials could search his clothing under that. In addition, the search incident of clothing was valid on arrest. Scarbrough v. State, 2024 Ark. 71 (May 2, 2024).
It was reasonable for officers to infer defendant drove his car to drug deals since he was active throughout the Minneapolis-St. Paul area. Therefore, there was probable cause for the car. United States v. Escudero, 2024 U.S. App. LEXIS 10667 (8th Cir. May 2, 2024).*
Petitioner’s public records request for search warrant materials is denied based on the statute involved that only permitted it for cases filed after a certain date. State ex rel. Onunwor v. Savannah O., 2024-Ohio-1685 (8th Dist. Apr. 30, 2024).*
Compliance or not with inventory procedure is a factor in the totality of circumstances. Here, the totality showed that the officers were investigating, not just inventorying. Denial of suppression reversed. United States v. Anderson, 2024 U.S. App. LEXIS 10708 (9th Cir. May 2, 2024) (en banc, 6-5). Syllabus by the court:
Posted inInventory|Comments Off on CA9: Compliance or not with inventory procedure is a part of totality of circumstances; here they were investigating
After farm equipment went missing from rural property over a week long span, police got a geofence warrant for the land that put defendant there. It proved unimportant under the standard of review for warrants (“substantial basis”) the fact they had no idea whether their suspect had a cell phone on him at the time of the thefts. Tomanek v. State, 2024 Md. App. LEXIS 329 (May 1, 2024):
An initial bail setting is nonadversarial and informal under the Fourth Amendment, so the court follows Gerstein and finds it not a critical stage. State v. Mills, 2024 Mo. LEXIS 140 (Apr. 30, 2024).
The information from identified 911 callers was reliable, but here it still didn’t add up to reasonable suspicion. Motion to suppress granted. United States v. Greene, 2024 U.S. Dist. LEXIS 79810 (C.D. Cal. May 1, 2024).*
Probable cause was based both on informant hearsay and officers watching a controlled buy which alone was enough. United States v. Britton, 2024 U.S. App. LEXIS 10672 (8th Cir. May 2, 2024).*
The entry into the house was reasonable because of exigent circumstances because of ongoing drug operations there. Protective sweep is rejected because the defendant had already been arrested by the time the sweep occurred. United States v. Avitia-Enriquez, 2024 U.S. Dist. LEXIS 79920 (D. Alaska May 1, 2024).
The court struggles with the rationale offered by the government on this protective sweep that it was subjectively inappropriate, but objectively reasonable. One of the officers isn’t found credible, but that doesn’t matter in the final analysis. United States v. Raban, 2024 U.S. Dist. LEXIS 79797 (D. Colo. May 1, 2024).*
The smell of marijuana from defendant’s car justified extending the stop. United States v. Carson, 2024 U.S. Dist. LEXIS 79847 (W.D.N.C. May 1, 2024).*
The seizure of this car was with probable cause that a gun would be found in it. The four day delay in applying for a search warrant for the car was not unreasonable. As to standing, defendant transferred ownership of a BMW convertible to another, and he didn’t show a reasonable expectation of privacy in it after that. United States v. Tuttle, 2024 U.S. Dist. LEXIS 79798 (D. Colo. May 1, 2024).
Defendant’s car was totaled in a wreck. He was suspected of DWI and the car could be searched under inventory when removing it or searching it for evidence of the DWI. That state law might be different means nothing. “Unsurprisingly, every federal court of appeals agrees—state law plays no role in assessing the constitutional reasonableness of a Fourth Amendment search or seizure.” United States v. Vallez, 2024 U.S. Dist. LEXIS 78985 (D.N.M. Apr. 30, 2024).*
Defendant’s motion to suppress 450 bitcoin from being used at trial is moot because the government doesn’t intend to introduce it. Aside from that, his motion fails both its probable cause and Franks challenge. United States v. Patel, 2024 U.S. Dist. LEXIS 79800 (D.D.C. May 1, 2024).*
In a civil case, the court granted a writ of certiorari against the trial court’s order permitting access to a party’s cell phone by forensic imaging. “We recognize, of course, that Swezy is not altogether foreclosed from seeking electronically stored information on Roque’s cellphone. But there must be an appropriate showing by Swezy and a proper balancing of the competing interests by the trial court.” There wasn’t here. Roque v. Swezy, 2024 Fla. App. LEXIS 3369 (Fla. 3d DCA May 1, 2024).
Defendant’s admission to the officer who stopped him that the thing the officer saw was a marijuana grinder was probable cause to search. United States v. Felix, 2024 U.S. Dist. LEXIS 79431 (D. Del. May 1, 2024).*
Whether the Secretary of DHS was lawfully appointed has nothing to do with the good faith of DHS officers in conducting searches. The exclusionary rule would not be applied, even if this were a valid issue. United States v. Cuevas-Almonte, 2024 U.S. Dist. LEXIS 79616 (D.V.I. May 1, 2024).*
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"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
"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)
