The officer was justified in a welfare check of defendant sleeping in his car, but it never developed into reasonable suspicion. The stop was unreasonably extended. State v. Zeimer, 2022 MT 96, 2022 Mont. LEXIS 479 (May 24, 2022).
A zoning inspection here to get a permit was reasonable. The homeowner couldn’t require the county to do it after the permit was granted. Schmid v. Cnty. of Sonoma, 2022 U.S. App. LEXIS 14096 (9th Cir. May 24, 2022).*
The CI was questioned under oath by the state court judge [as happens in NY], and the redacted portions of the transcript relate only to his or her identity and not the merits of the probable cause. United States v. Bailey, 2022 U.S. Dist. LEXIS 93149 (W.D.N.Y. May 24, 2022).*
The inventory here was proper in scope and within the NYSP policy. United States v. Morris, 2022 U.S. Dist. LEXIS 93273 (W.D.N.Y. Apr. 12, 2022).*
There was reasonable suspicion for and continuing defendant’s stop. A dog sniff was permitted. The dog’s alert, however, didn’t permit a strip search of defendant. It did permit a search of the person. State v. Owensby, 2022-Ohio-1702, 2022 Ohio App. LEXIS 1592 (12th Dist. May 23, 2022).
Even though the officer had probable cause for a search warrant, his threat to “toss” defendant’s father’s place and unreasonably search it was coercion for defendant’s statement. United States v. Jacobs, 2022 U.S. Dist. LEXIS 92701 (E.D.Ohio May 24, 2022).
The warrant affiant doesn’t have to be the one involved in the controlled buy under collective knowledge. United States v. McCallister, 2022 U.S. App. LEXIS 13964 (4th Cir. May 23, 2022).*
“This appeal arises out of a traffic stop where a single officer, without having reasonable suspicion that a crime involving the passenger was afoot, checked the passenger for outstanding warrants. The officer used her patrol vehicle’s computer and received a ‘hit’ for a warrant and arrested the passenger. After the arrest, the officer discovered methamphetamine in the passenger’s purse, the rear of the patrol vehicle where the passenger was seated, and on the passenger’s person. The district court ordered the methamphetamine evidence suppressed after concluding the officer unlawfully extended the traffic stop by checking the passenger for outstanding warrants absent reasonable suspicion or a safety justification particular to that stop. We reverse and remand as the Fourth Amendment permits law enforcement to check passengers for outstanding warrants as a matter of course during traffic stops because of officer safety concerns.” State v. Wharton, 2022 Ida. LEXIS 60 (May 23, 2022).
This inventory followed policy and was otherwise reasonable, despite the investigative motive the police also probably had. State v. Johnson, 2022-Ohio-1733, 2022 Ohio App. LEXIS 1613 (10th Dist. May 24, 2022).
The anticipatory warrant here was lawful, so defense counsel wasn’t ineffective for not challenging it. Gober v. United States, 2022 U.S. Dist. LEXIS 92964 (N.D.Ala. May 24, 2022).*
The affidavit failed to show probable cause. There was a minimal showing of nexus. That’s enough here for the good faith exception. United States v. Helton, 2022 U.S. App. LEXIS 13943 (6th Cir. May 24, 2022):
The City of Los Angeles e-scooter ordinance requires the scooters to have GPS and provide real time tracking information. This is classic third-party data, and there is no reasonable expectation of privacy of scooter users in that information. Sanchez v. Los Angeles Dep’t of Transp., 2022 U.S. App. LEXIS 13821 (9th Cir. May 23, 2022).
Tackling an unarmed and unresisting person suspected of a robbery breaking his hip could be found by a jury to be unreasonable. “Although plaintiff was suspected of a serious crime, viewing the evidence in his favor, the detectives knew that he was not armed and was not posing an immediate threat to anyone as he exited the courthouse. Under these circumstances, a reasonable jury could find that the degree of force used against plaintiff violated his Fourth Amendment right against excessive force, and the detectives were not entitled to summary judgment on the question of whether they committed a constitutional violation.” Andrews v. City of Henderson, 2022 U.S. App. LEXIS 13809 (9th Cir. May 23, 2022).*
On the totality, the officer had reasonable suspicion from the inability of defendants to provide basic information about themselves and each other. There was voluntary consent to search the car. United States v. Gonzalez-Carmona, 2022 U.S. App. LEXIS 13908 (8th Cir. May 24, 2022).*
The Michigan Supreme Court remanded Long Lake Twp. v. Maxon, 2021 Mich. App. LEXIS 1819 (Mar. 18, 2021) (posted here) to determine below whether the exclusionary rule should apply in a zoning case. Long Lake Twp. v. Maxon, 2022 Mich. LEXIS 981 (May 20, 2022).*
Alleged violation of prison mail regulations in handling legal mail on a flash drive doesn’t make a Fourth Amendment claim. Young v. Michigan Dep’t of Corr., 2022 U.S. App. LEXIS 13724 (6th Cir. May 18, 2022).
Defendant’s argument reasonable suspicion dissipated during his stop is rejected based on his demeanor during the stop. United States v. Baird, 2022 U.S. Dist. LEXIS 91410 (D.Utah May 20, 2022).*
The subpoena to the RNC raises complicated Fourth Amendment issues despite the Speech and Debate Clause. A stay pending appeal is granted because the case could become moot and the RNC suffer irreparable harm before the appeal is complete. Republican Nat’l Comm. v. Pelosi, 2022 U.S. Dist. LEXIS 91503 (D.D.C. May 20, 2022).*
A person in prison has no standing to contest a wiretap on a contraband cell phone. United States v. Yandell, 2022 U.S. Dist. LEXIS 91166 (E.D.Cal. May 20, 2022).
“The facts of this case indicate that [Officer] Leitzen, while conducting a lawful Terry frisk for weapons, determined based on his experience that the objects he felt in Hunt’s pocket were packaged drugs, specifically either powder cocaine, crack cocaine, or heroin. Unlike in Dickerson, the record in this case contains no evidence to suggest that Leitzen extended the pat-down or explored Hunt’s pocket further than permitted to discover if Hunt was armed. This determination that Hunt at that moment possessed illegal drugs, if founded, would establish probable cause for Hunt’s arrest and seizure of the drugs after a search incident to his arrest.” State v. Hunt, 2022 Iowa Sup. LEXIS 60 (May 20, 2022).* https://www.iowacourts.gov/courtcases/14183/embed/SupremeCourtOpinion
This stop was reasonably extended because reasonable suspicion developed during it. United States v. Taylor, 2022 U.S. Dist. LEXIS 91172 (E.D.Tenn. May 20, 2022).*
The government’s first justification for the stop, a traffic offense, fails. It’s “fall back argument” that there was reliable information from a CI does not. United States v. Boatright, 2022 U.S. Dist. LEXIS 90944 (N.D.Tex. May 20, 2022).*
Broad conclusory motions to suppress should be summarily denied. “The Government and the Court had no warning that Munguia-Lopez was going to challenge his own stop at the hearing. This Court does not look favorably on counsel filing motions with the broadest possible conclusory language that counsel later seeks to flesh out in court. Accordingly, the Court denied Munguia-Lopez’s request to challenge his own stop during the hearing but will allow Munguia-Lopez a grace period to file a Motion to Suppress. If Munguia-Lopez desires to file his own Motion to Suppress regarding any Fourth Amendment violations regarding his own traffic stop, he must do so within fourteen days of the issuance of this order.” And that order denies the co-defendants’ motions to suppress. United States v. Munguia-Lopez, 2022 U.S. Dist. LEXIS 90635 (D.Idaho May 18, 2022).
A witness’s statement that a search was by consent when it wasn’t is for cross-examination at trial. “Wanless believes that the witness’s statement misled the jury about the source of the ledger and financial documents. That the witness misstated the authority for the search, however, does not amount to prosecutorial misconduct or otherwise justify a new trial. If the nature of the authority for the search was relevant to the defense, then it was a proper subject for cross-examination.” United States v. Unpradit, 2022 U.S. App. LEXIS 13648 (8th Cir. May 20, 2022).*
Posted inBurden of pleading|Comments Off on D.Idaho: Broad conclusory motions to suppress should be summarily denied
The warrantless search of defendant’s brother’s garage where both had keys and defendant kept things from their construction business was unreasonable. Defendant had standing because it was used for business purposes, and he did not have to spend the night there to have standing. United States v. Arreola-Alvardo, 2022 U.S. Dist. LEXIS 90326, 2022 U.S. Dist. LEXIS 91453 (E.D.Mich. May 19, 2022).
The entry into defendant’s apartment was with weapons in hand, and it was consensual. The information gathered (defendant’s presence) is suppressed. United States v. Martin, 2022 U.S. App. LEXIS 13630 (9th Cir. May 19, 2022).
“At first blush, this case may present ‘thorny constitutional issues.’ The Court, however, ultimately finds that the issuing magistrate judge had a substantial basis to conclude that the Residence contained evidence of drug trafficking. But even if the Affidavit were lacking, the investigators relied on the Search Warrant in good faith, which precludes the exclusion of evidence.” United States v. Navedo, 2022 U.S. Dist. LEXIS 90640 (N.D.Ohio May 19, 2022).*
Posted inConsent, Good faith exception, Standing|Comments Off on E.D.Mich.: Def had standing in his brother’s garage where only they had keys and it was used for business purposes
Commercial fishing is a closely regulated industry. “Appellant also had a sea scallop permit, requiring the vessel to have a vessel monitoring system (VMS), which transmits global positioning system (GPS) coordinates every half hour to the National Marine Fisheries Service.” Those were subject to inspection. Benson v. State, Dept. of Environmental Mgmt., 2022 R.I. Super. LEXIS 38 (May 19, 2022).
Officers were dispatched to a “fight in progress” in a park and area known for juvenile fights.“ And from E.V.’s appearance and location — sweaty and out of breath and inside the apartment building — they reasonably suspected that he was involved in the assault.” There was thus reasonable suspicion. People v. E.V., 2022 COA 53, 2022 Colo. App. LEXIS 737 (May 19, 2022).*
The ticket writing process would take 7-8 minutes, and a second officer with a drug dog didn’t extend the stop. Defendant’s claim that the officer had a pretextual motive to search for drugs is factually evident, but barred by existing law. United States v. McMillin, 2022 U.S. Dist. LEXIS 89942 (D.Kan. May 18, 2022).*
Defendant was seized without reasonable suspicion, and defense counsel was ineffective for not raising it. State v. Demby, 2022 Del. Super. LEXIS 198 (Apr. 29, 2022).*
WaPo: Florida sheriff’s deputy uses Taser at gas station, setting man on fire by Lindsey Bever (“A Florida sheriff’s deputy is facing a criminal charge after using a Taser near gasoline, igniting a fire that severely burned a 26-year-old suspect and injured the deputy himself and two fellow officers.”). And, for excessive force purposes and municipal liability, it seems to evince a complete lack of training.
Posted in§ 1983 / Bivens, Excessive force|Comments Off on WaPo: Florida sheriff’s deputy uses Taser at gas station, setting man on fire
The third-party consent here was invalid because there was no reason to believe they had apparent authority. State v. Marcellus, 2022 N.J. Super. LEXIS 69 (May 18, 2022).
The vehicle safety checkpoint was set up with a valid programmatic purpose, and defendant avoided it and took the police on a high-speed chase. The checkpoint was valid. United States v. Britain, 2022 U.S. App. LEXIS 13447 (5th Cir. May 18, 2022).*
Officers here got a warrant for a dog sniff of a commercial building’s door seams. United States v. Escudero, 2022 U.S. Dist. LEXIS 89853 (D.Minn. Mar. 21, 2022).*
There was probable cause for the warrant. “Defendant failed to preserve his challenge to alleged technical defects in the search warrant as the issue was not raised in his omnibus motion or during the suppression hearing.” People v. Gillespie, 2022 NY Slip Op 03279, 2022 N.Y. App. Div. LEXIS 3227 (3d Dept. May 19, 2022).*
When one leaves his cell phone in a car, he or she assumes the risk that the phone will be found by the police and searched. United States v. Hagy, 2022 U.S. Dist. LEXIS 89437 (S.D.W.Va. May 18, 2022).
“They also propose facts they believe the police should have added to the affidavit. … But ‘[t]he affidavit is judged on the adequacy of what it does contain, not on what it lacks, or on what a critic might say should have been added.’ United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000); …” Franks challenge denied. United States v. Goddard, 2022 U.S. Dist. LEXIS 89143 (S.D.Ohio May 18, 2022).*
A parole search in Arkansas does not require reasonable suspicion. Hall v. State, 2022 Ark. App. 232, 2022 Ark. App. LEXIS 241 (May 18, 2022).*
Torrential Downpour warrant for child pornography was reasonable. United States v. Harper, 2022 U.S. Dist. LEXIS 89375 (W.D.Tenn. May 18, 2022).*
There was no probable cause for the tracking warrant for defendant. But, it was not so lacking in probable cause that the good faith exception does not apply. United States v. Escudero, 2022 U.S. Dist. LEXIS 89120 (D.Minn. May 18, 2022).*
There was reasonable suspicion to extend the stop when the officers abandoned the traffic stop and it became an investigation. United States v. Whitley, 2022 U.S. App. LEXIS 13398 (6th Cir. May 18, 2022).*
“Collado-Rivera has not shown he suffered ineffective assistance of trial counsel from counsel’s failure to obtain a Franks hearing because he has not provided prima facie proof that any search warrant affidavit in this case was falsified.” United States v. Collado-Rivera, 2022 U.S. Dist. LEXIS 89147 (S.D.Ohio May 17, 2022).*
The initial dog alert here did not provide probable cause for search of defendant’s vehicle. Thus, defense counsel was ineffective for not pursuing a Fourth Amendment challenge. “In summary, based on the record before us, a motion to suppress the evidence discovered in the vehicle appears meritorious—that is, it would have had a reasonable likelihood of success. The record contains no indication that the officers had probable cause at the outset or during Timber’s first entry into the car and, as a result, for the search following Timber’s re-entry to be permissible, Handler Officer must not have orchestrated it and Timber’s re-entry into the car must have been purely instinctual. In this instance, that was clearly not the case: Timber’s second entry into the vehicle was orchestrated by Handler Officer, who encouraged Timber to re-enter the car, whereupon Handler Officer shut the driver’s side door to keep Timber in the car to search for drugs.” State v. Beames, 2022 UT App 61, 2022 Utah App. LEXIS 64 (May 12, 2022).
Merely occupying a hotel room doesn’t give one standing to challenge its search. In the Second Circuit, an affidavit showing one’s reasonable expectation of privacy has to be presented with the motion to suppress. United States v. Wiley, 2022 U.S. Dist. LEXIS 89004 (D.Conn. May 18, 2022).*
A visitor had standing to contest the search of his own stuff while he was there. (And the alleged consent of his mother was suspect.) State v. Marcellus, 2022 N.J. Super. LEXIS 67 (May 18, 2022).
Defendant was stopped for a traffic offense, but she didn’t speak English. The three-minute delay in getting a translator on the phone was not unreasonable. United States v. Del Angel, 2022 U.S. App. LEXIS 13304 (5th Cir. May 17, 2022).
The district court properly dismissed plaintiffs’ Fourth Amendment excessive force claims against four officers as plaintiffs’ amended complaint simply made no allegations whatsoever regarding those officers in relation to the force used against the decedent. Carr v. City of Spring Valley Vill., 2022 U.S. App. LEXIS 13307 (5th Cir. May 17, 2022).*
The defense claim the officer somehow violated department policy in obtaining consent doesn’t bear on the constitutional question at all. There was at least reasonable suspicion for his stop and the encounter. United States v. Lopez-Garcia, 2022 U.S. Dist. LEXIS 88505 (N.D.Ill. May 17, 2022).
Officers had probable cause for defendant’s arrest for a sex trafficking crime for a meeting with a minor for sex during a biker rally. The search incident of his vehicle was reasonable. “Here, officers reasonably believed the car contained evidence of attempted commercial sex trafficking of a minor and attempted enticement of a minor for sexual activity. Slim agreed to bring a condom for the meeting, to pay $200, and used a phone to plan his meeting with Russell. It was reasonable for officers to believe they would find this evidence in the car.” [For what it’s worth, the description also supports the automobile exception.] United States v. Slim, 2022 U.S. App. LEXIS 13199 (8th Cir. May 17, 2022).*
The suppression hearing didn’t address a Franks claim. “But this hearing did not address any alleged omission in the search warrant affidavit. It addressed only whether the Algorithm was reliable enough to establish probable cause.” Therefore, plain error applies on appeal. United States v. Weyerman, 2022 U.S. App. LEXIS 13244 (3d Cir. May 17, 2022).*
Posted inConsent, Staleness, Voluntariness, Waiver|Comments Off on N.D.Ill.: Alleged violation of police dept policy on consent didn’t affect 4A claim here
The officer bumped defendant on a bike. It was potentially a seizure, but “Under Hodari D. and Torres, the seizure thus ended when Daniels got up and began running down the driveway.” United States v. Daniels, 2022 U.S. Dist. LEXIS 88072 (N.D.Cal. May 16, 2022).
It is harder to show staleness during an ongoing drug dealing offense. United States v. Fort, 2022 U.S. Dist. LEXIS 88117 (E.D.N.C. Mar. 29, 2022).*
During a traffic stop with the occupants out of the car, officers had reasonable suspicion for a protective sweep and found a gun. The tougher question of defendant’s standing as a passenger doesn’t have to be decided. United States v. Rodriguez, 2022 U.S. App. LEXIS 13021 (5th Cir. May 13, 2022).*
Posted inProtective sweep, Seizure, Staleness|Comments Off on N.D.Cal.: If bumping def on a bike was a seizure, it ended when he ran away
The good faith exception applies to the warrant affidavit’s showing of nexus. The showing wasn’t great, but it was sufficient to not be bare bones. The officer adequately connected defendant to the premises. United States v. Jackson, 2022 U.S. App. LEXIS 13147 (5th Cir. May 16, 2022).
The affidavit for search warrant here was based on an anonymous source, but it was corroborated by the officers through intel, records searches, and surveillance. [Remember Gates?] Probable cause and nexus were shown, and the good faith exception applies. United States v. Burrell, 2022 U.S. Dist. LEXIS 87168 (E.D.Mich. May 14, 2022).*
Defendant’s speeding at 20 over at 2:30 am then his slurred speech and appearance was reasonable suspicion of DUI. Tex. Dep’t of Pub. Safety v. Diaz, 2022 Tex. App. LEXIS 3295 (Tex. App. – Texarkana May 16, 2022).*
On Super Bowl weekend, Seminole Police Department officers were patrolling outside the Seminole Hard Rock Hotel and Casino and they saw defendant dressed as a security guard but with a “badge” they did not recognize as law enforcement or casino security. They talked to him and came to reasonable suspicion that he had a gun in a backpack. The encounter was consensual. United States v. Philpot, 2022 U.S. App. LEXIS 13113 (11th Cir. May 16, 2022).*
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)
