Defendant showed at a hospital ER with a gunshot wound. Hospital policy was for its security staff to search GSW patients’ clothing for staff safety. This was a private search, and it produced ammunition from a convicted felon. United States v. Brown, 2021 U.S. Dist. LEXIS 90311 (W.D. Mo. May 12, 2021), adopting 2021 U.S. Dist. LEXIS 90460 (W.D. Mo. Apr. 2, 2021).
Defendant contends he was strip searched, but he wasn’t. He had basketball shorts with pockets under his pants, and he was only asked to remove his outer pants. United States v. Chism, 2021 U.S. Dist. LEXIS 89809 (E.D. Tenn. Apr. 21, 2021).*
The court does not have to decide whether NY law permits a suspicionless parole search because there was reasonable suspicion here. United States v. DeJesus, 2021 U.S. Dist. LEXIS 89747 (S.D. N.Y. May 11, 2021) (a extensive analysis of the competing arguments).*
Taking the facts from the plaintiff’s perspective, but still crediting the facts developed in discovery, it can reasonably be concluded that the use of deadly force here was reasonable. Thus, the officers get qualified immunity. Estate of Green v. City of Indianapolis, 2021 U.S. App. LEXIS 13993 (7th Cir. May 12, 2021).*
Defendant’s parking on railroad property was trespassing at least, and it was reasonable for the officer to investigate whether it was drug use or underage drinking, what he’d usually find. “Assuming without deciding King was acting on a mere hunch as to drug activity or underage drinking, when he arrived, Freking’s vehicle was still partially parked on private property. These circumstances provided reasonable suspicion to initiate a brief investigatory stop for King to ‘resolve the ambiguity as to whether criminal activity was afoot.’” State v. Freking, 2021 Iowa App. LEXIS 390 (May 12, 2021).*
“The facts above support the conclusion that Sgt. Danius had reasonable suspicion that Defendant was armed and dangerous, justifying the pat down. Defendant was accused of harassment and fled the scene. Moreover, when Sgt. Danius approached he reasonably and credibly believed that Defendant was abnormally nervous and had his hands raised.” United States v. Anderson, 2021 U.S. Dist. LEXIS 89629 (D. N.M. May 11, 2021).*
There was reasonable suspicion on the totality for continuing the interaction with defendant. The record supports the district court’s conclusion defendant consented to the continued interaction with him. United States v. Bass, 2021 U.S. App. LEXIS 13927 (5th Cir. May 11, 2021).*
Posted inReasonable suspicion|Comments Off on IA: Trespassing on RR property was RS for stop
Where the officer stood defendant up and turned him around, defendant was seized. Going directly into defendant’s pockets to search exceeded the power of a frisk. United States v. Brown, 2021 U.S. App. LEXIS 14015 (9th Cir. May 12, 2021).
Probable cause for the warrant existed, but if it didn’t, the good faith exception applies. United States v. Bridges, 2021 U.S. Dist. LEXIS 89537 (N.D. Iowa Apr. 1, 2021).*
“Based on the information obtained during the stop, including the comparison of the car and suspects to information about the robbery at the TCF Bank in Homewood and information obtained from the bank employees, the officers had a particularized and objective basis for suspecting that McKinney was involved in criminal activity. … The arresting officers had information that provided more than a bare suspicion that McKinney was involved in bank robbery. The Court recommends that the District Court conclude that there was probable cause to arrest McKinney.” “The Government has shown by the preponderance of the evidence that McKinney’s consent to search his phone was freely and voluntarily given. The Court recommends that the request to suppress evidence obtained from the phone be denied.” United States v. McKinney, 2021 U.S. Dist. LEXIS 89538 (N.D. Ind. Apr. 23, 2021).*
Jail conditions can be so bad that they amount to a § 1983 “assault” without there being a more traditional assault. Here, it was a suicidal inmate knowingly put into solitary confinement and that could be pled as excessive force under the Fourth Amendment. Moderwell v. Cuyahoga Cty., 2021 U.S. App. LEXIS 14051 (6th Cir. May 12, 2021):
“The Geo-Location Warrant was supported by probable cause because the affidavit established ‘a connection between the defendant and the location to be searched; a link between the location and criminal activity; and the informant’s veracity and basis of knowledge.’” There was also probable cause as to his phone. United States v. Troup, 2021 U.S. Dist. LEXIS 90210 (N.D. Ga. May 11, 2021).
The affidavit for the cell phone search warrant established probable cause. It was alleged that the phone had been used in setting up other drug transactions and a drug robbery. United States v. Martinez, 2021 U.S. Dist. LEXIS 89972 (S.D. N.Y. May 11, 2021).*
Defendant is incorrect that he was ordered to stop by the police. The court finds defendant was merely asked to talk to them. Reasonable suspicion developed thereafter that defendant might have been involved in a shooting. United States v. Duarte, 2021 U.S. Dist. LEXIS 90177 (N.D. Ill. May 12, 2021).*
There was reasonable suspicion for the officer to encounter a person in a “park and ride” lot where cars might be there at night but people with them usually were up to no good. Here, the person was acting “secretively.” Johnson v. State, 2021 Tex. Crim. App. LEXIS 434 (May 12, 2021).*
Defendant declined to consent to a DNA test during his statement which is sought to be admitted. He later sought and consented to a DNA test. It should not be excluded at trial because it isn’t seeking to penalize his right to refuse. United States v. Chism, 2021 U.S. Dist. LEXIS 89799 (E.D. Tenn. Apr. 21, 2021):
Stale information that a warrant existed for defendant was not probable cause when the warrant had been recalled, and no one checked the day of the arrest. State v. Pines, 2021 Wash. App. LEXIS 1160 (May 10, 2021).
Subpoenas to a Franks hearing of the issuing USMJ quashed. The testimony is irrelevant. United States v. Davis, 2021 U.S. Dist. LEXIS 89483 (D. Alaska May 11, 2021).
A text message sent after a search warrant was executed will be admissible to show harassment of a witness. United States v. Arnold, 2021 U.S. Dist. LEXIS 89168 (E.D. Wash. May 10, 2021).
Defendant’s arrest for robbery was with probable cause on collective knowledge. United States v. Schexnayder, 2021 U.S. Dist. LEXIS 89436 (N.D. Tex. May 11, 2021).*
The government’s 15 month delay in searching defendant’s cell phone was unjustified and was not saved by the good faith exception. United States v. Wilkins, 2021 U.S. Dist. LEXIS 89419 (D.D.C. May 11, 2021):
In a civil case over probable cause to arrest, the USMJ’s determination of probable cause at the preliminary hearing will not be revisited absent a showing of judicial deception. Martinez v. United States, 2021 U.S. App. LEXIS 13888 (9th Cir. May 11, 2021):
Posted inArrest or entry on arrest, Probable cause|Comments Off on CA9: In civil challenge to PC to arrest, PC determination at preliminary hearing usually binding
There was probable cause to stop defendant’s truck:
“Probable cause is ‘not a high bar.’ Kaley v. United States, 571 U.S. 320, 338, 134 S. Ct. 1090, 188 L. Ed. 2d 46 (2014). It ‘does not require an actual showing of criminal activity, or even that the existence of criminal activity is more likely true than not.’ … By definition, probable cause looks to probabilities—‘examining the totality of the circumstances in a common sense manner,’ …, and the ‘factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ Gerstein v. Pugh, 420 U.S. 103, 121, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975) (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949)). Probable cause is determined by reasonable conclusions drawn from the facts known to the officer at the time of the search or arrest. Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003). A law enforcement officer may act based on firsthand observations. …” United States v. Hahn, 2021 U.S. Dist. LEXIS 88732 (N.D. Ind. May 10, 2021).*
Posted inProbable cause|Comments Off on N.D.Ind.: PC doesn’t require actual showing of a crime
There was probable cause for the search and seizure of defendant’s vehicle for evidence of a violent crime. The fact a plain view wasn’t possible at the moment of the stop doesn’t mean there wasn’t. The police department with the vehicle was actively investigating and the ten day delay in getting a search warrant wasn’t unreasonable under all the circumstances. Moreover, defendant was in custody the whole time and had a lesser possessory interest. United States v. Bridges, 2021 U.S. Dist. LEXIS 88709 (N.D. Iowa May 10, 2021):
Posted inProbable cause, Warrant execution|Comments Off on N.D.Iowa: Ten day delay in getting SW for def’s car where he was in custody and investigation was ongoing was not unreasonable
Even though Colorado has decriminalized personal use of marijuana, a dog sniff is still reasonable under federal law because possession of marijuana is still a violation of federal law because it’s unlawful for “any purpose.” United States v. Spikes, 2021 U.S. Dist. LEXIS 88589 (D. Colo. May 10, 2021).
Search of two bags defendant was carrying when he was arrested with probable cause were subject to the search incident doctrine. His restraint before the search did not make them unreasonable. United States v. Henderson, 2021 U.S. Dist. LEXIS 88379 (S.D. Ohio May 10, 2021).
A citizen’s complaint that defendant was harassing her on the street and she was “shaken up” was reasonable suspicion for an encounter when she reported it to the police. United States v. Anderson, 2021 U.S. Dist. LEXIS 88424 (D.N.M. May 10, 2021).*
Plaintiff showed a factual dispute to deny summary judgment to the officer that he unreasonably shot her when she got out of her car with her hands up. Huff v. Reeves, 2021 U.S. App. LEXIS 13784 (10th Cir. May 10, 2021).*
Defendant who orchestrated delivery of a package whose name wasn’t on it as sender or recipient had standing in the package. United States v. Williams, 2021 U.S. Dist. LEXIS 88747 (N.D. Ill. May 10, 2021):
Alleged plain view of glass vials on defendant’s couch wasn’t a legitimate plain view because the alleged incriminating nature of the objects wasn’t immediately apparent. It was maybe a hunch and not obvious at all. Grant of suppression motion affirmed. United States v. Arredondo, 2021 U.S. App. LEXIS 13736 (8th Cir. May 10, 2021):
Posted inPlain view, feel, smell|Comments Off on CA8: A mere hunch possession of something might be criminal was not “immediately apparent” for plain view
Defendant’s ER blood draw after he was admitted for an accident was by a private actor, and the results are obtainable by the state and admissible. People v. Mueller, 2021 IL App (2d) 190868, 2021 Ill. App. LEXIS 227 (May 6, 2021).
Police were dispatched because the driver of a car was passed out in the driveway. Police arrived and defendant was the person but was awake. The community caretaking function still permitted them to inquire further when they arrived. City of West Fargo v. Medbery, 2021 ND 81, 2021 N.D. LEXIS 80 (May 6, 2021).
The evidence supports the district court’s conclusion there was implied consent to enter defendant’s house. The officers knocked and introduced themselves, and the door was opened more to let them in. United States v. Morrison, 2021 U.S. App. LEXIS 13682 (5th Cir. May 7, 2021).
Defendant’s claim that the wrong trailer was searched under a search warrant, even if true, was not an actual innocence claim for a successor habeas. United States v. Hernandez-Gomez, 2021 U.S. Dist. LEXIS 87970 (D. Idaho May 7, 2021).
Arkansas parole and probation searches under statute that is similar to Samson, require no reasonable suspicion. United States v. Rivera, 2021 U.S. Dist. LEXIS 88147 (W.D. Ark. May 6, 2021) (also following Clingmon v. State posted here decided a month ago).
The reasonableness of 2½ months of pole camera observation of defendant’s house was waived by not filing a motion to suppress until after the First Circuit granted en banc review on that issue and then a month later. United States v. Ladd, 2021 U.S. Dist. LEXIS 87589 (N.D. Tex. May 7, 2021)*:
Not having a license plate justified defendant’s stop and then running names. Commonwealth v. Malloy, 2021 PA Super 90, 2021 Pa. Super. LEXIS 278 (May 7, 2021).
The backup light being on while driving justifies a stop. People v. Ambrose, 2021 COA 62, 2021 Colo. App. LEXIS 643 (May 6, 2021).*
Defendant’s 2255 arguments are mere expansions of the search and seizure issues litigated in the direct appeal and are denied. United States v. Russia, 2021 U.S. Dist. LEXIS 87456 (D. Kan. May 7, 2021).*
Defendant’s broad Fourth Amendment challenge to the search here without specifics is denied as telling the court nothing. People v. Murray, 2021 NY Slip Op 02896, 2021 N.Y. App. Div. LEXIS 3038 (4th Dept. May 7, 2021).*
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
“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
"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)
