Category Archives: Waiver

MD: Full searches of cell phones can be a general search; there must be particularity or time limitation

Blanket full searches of cell phones without a particularity or time limitation can violate the Fourth Amendment and become a general search. It is suggested there be a search protocol if possible to limit the officers’ discretion. Despite all those … Continue reading

Posted in § 1983 / Bivens, Cell phones, Particularity, Standing, Waiver | Comments Off on MD: Full searches of cell phones can be a general search; there must be particularity or time limitation

CAAF: Loaning your cell phone to another doesn’t grant common authority to consent to a search

Defendant loaned his phone to another service member who accidentally discovered child pornography on it. The person the phone was loaned to had no common authority to consent to a search it. United States v. Black, 2022 CAAF LEXIS 614 … Continue reading

Posted in Cell phones, Consent, Issue preclusion, Waiver | Comments Off on CAAF: Loaning your cell phone to another doesn’t grant common authority to consent to a search

NE: Changing the 4A argument between hearing and appeal is waiver

Defendant’s Fourth Amendment ineffective assistance of counsel claim is presented on appeal differently than at the hearing level, and that’s waiver. State v. Lessley, 312 Neb. 316 (2022). The affidavit for search warrant was issued with probable cause under the … Continue reading

Posted in Probable cause, Standing, Waiver | Comments Off on NE: Changing the 4A argument between hearing and appeal is waiver

CA11: § 1983 suit that only claimed violations of state law did not state 4A claim

Plaintiff’s § 1983 suit that only claimed violations of state law did not state a Fourth Amendment claim. Lyons v. City of Abbeville, Ala., 2022 U.S. App. LEXIS 24110 (11th Cir. Aug. 26, 2022). Defendant does not get return of … Continue reading

Posted in § 1983 / Bivens, Administrative search, Rule 41(g) / Return of property, Waiver | Comments Off on CA11: § 1983 suit that only claimed violations of state law did not state 4A claim

CA6: No QI for 3 strip searches a day for inmate in segregation

Plaintiff’s prison warden denied qualified immunity for ordering three strip searches a day on plaintiff when he was in segregation. Fugate v. Erdos, 2022 U.S. App. LEXIS 23208 (6th Cir. Aug. 18, 2022). “The defendant officers were attempting to locate … Continue reading

Posted in Excessive force, Prison and jail searches, Qualified immunity, Waiver | Comments Off on CA6: No QI for 3 strip searches a day for inmate in segregation

PA: Failure to argue new case law where it came out 3-1/2 months before suppression hearing was waiver

Defendant doesn’t get the application of a case to his decided 3½ months before his suppression hearing where he didn’t argue it. Commonwealth v. Brown, 2022 PA Super 138 (Aug. 10, 2022). CSLI lawfully obtained before Carpenter saved by the … Continue reading

Posted in Good faith exception, Probable cause, Waiver | Comments Off on PA: Failure to argue new case law where it came out 3-1/2 months before suppression hearing was waiver

D.C.Cir.: Bivens not extended to immigration detention

Bivens should not be extended to an immigration detention. K.O. v. Sessions, 2022 U.S. App. LEXIS 20984 (D.C. Cir. July 29, 2022). Plaintiff filed a § 1983 case against his prosecution which fails on Younger grounds. As to an illegal … Continue reading

Posted in § 1983 / Bivens, Burden of pleading, Immigration arrests, Waiver | Comments Off on D.C.Cir.: Bivens not extended to immigration detention

N-M: Cell phone search authorization for one day produced 200,000 images; but still not unreasonable because of how it was done

The search authorization for defendant’s cell phone for location data and images for a particular date was supported by probable cause. The Cellebrite download included 200,000 images, far more than the day in question. While looking for the day in … Continue reading

Posted in Cell phones, Overseizure, Waiver, Warrant execution | Comments Off on N-M: Cell phone search authorization for one day produced 200,000 images; but still not unreasonable because of how it was done

OH5: Both patdowns without RS

Defendant’s first minute-long patdown was unreasonable, but produced nothing. There was no separate reasonable suspicion for the second one. State v. Barcus, 2022-Ohio-2491, 2022 Ohio App. LEXIS 2355 (5th Dist. July 20, 2022). Police went to defendant’s house on a … Continue reading

Posted in Community caretaking function, Reasonable suspicion, Waiver | Comments Off on OH5: Both patdowns without RS

PA: No REP in drug prescription database

There is no reasonable expectation of privacy nor HIPAA privacy in a drug prescription database. Commonwealth v. McFarland, 2022 PA Super 116, 2022 Pa. Super. LEXIS 288 (June 29, 2022). Defendant’s Fourth Amendment claim was litigated before trial and on … Continue reading

Posted in Good faith exception, Issue preclusion, Waiver | Comments Off on PA: No REP in drug prescription database

IL: Requirement of some testing of fire sprinkler system doesn’t require a search

A condominium association installed a newer fire protection system, and it was subject to annual testing. The ordinance only required it be tested by somebody, and who would likely be a contractor. It did not compel a search under the … Continue reading

Posted in Administrative search, Private search, Waiver | Comments Off on IL: Requirement of some testing of fire sprinkler system doesn’t require a search

CA6: A police order to come out of one’s house is a seizure

“These cases clearly establish that forced compliance with orders is a Fourth Amendment seizure. Mendenhall and Saari establish that words that compel compliance with the officer’s orders to exit a house constitute a seizure. Thus, when taking the facts in … Continue reading

Posted in Probable cause, Seizure, Waiver | Comments Off on CA6: A police order to come out of one’s house is a seizure

IA: Failure to articulate why state const. applies for different result is waiver

Failure to articulate one’s argument that the state constitution requires a different result is waiver. State v. Versteegh, 2022 Iowa App. LEXIS 434 (June 15, 2022). “Here, the issuing judge reasonably concluded, based on all of the circumstances, that there … Continue reading

Posted in Good faith exception, GPS / Tracking Data, Reasonable suspicion, State constitution, Waiver | Comments Off on IA: Failure to articulate why state const. applies for different result is waiver

E.D.Tex.: Whether RV was immobile and used as a residence doesn’t matter where GFE applies

“In his third numbered objection, Lee argues that contrary to Officer Kennedy’s testimony, the RV was completely immobile at the time it was searched and that it was being used as a residence. But whether the RV was mobile or … Continue reading

Posted in Automobile exception, Good faith exception, Ineffective assistance, Waiver | Comments Off on E.D.Tex.: Whether RV was immobile and used as a residence doesn’t matter where GFE applies

E.D.Mo.: Cell phone passcode was provided by consent; alternatively, inevitable discovery applies

Defendant consented to providing his passcode to his cell phone. Even if not, it was admissible because of inevitable discovery. United States v. Morales, 2022 U.S. Dist. LEXIS 104053 (E.D.Mo. June 10, 2022).* “Defendant’s contention that his right to due … Continue reading

Posted in Cell phones, Probable cause, Waiver | Comments Off on E.D.Mo.: Cell phone passcode was provided by consent; alternatively, inevitable discovery applies

OH8: Disavowing reliance on Franks at suppression hearing is waiver

Defendant’s disavowing the search issue in his motion to suppress involved Franks is waiver for appeal. The state sought clarification it wasn’t an issue and got it. State v. Claytor, 2022-Ohio-1938, 2022 Ohio App. LEXIS 1812 (8th Dist. June 9, … Continue reading

Posted in Franks doctrine, Ineffective assistance, Reasonable suspicion, Waiver | Comments Off on OH8: Disavowing reliance on Franks at suppression hearing is waiver

HI: DWI stop not “custody”, and statements made during FST were admissible

Defendant was not in custody at the time she made statements during a FST. State v. Sagapolutele-Silva, 2022 Haw. LEXIS 85 (June 3, 2022); State v. Manion, 2022 Haw. LEXIS 86 (June 3, 2022). Defendant’s claim that her daughter was … Continue reading

Posted in Consent, Custody, Reasonable suspicion, Waiver | Comments Off on HI: DWI stop not “custody”, and statements made during FST were admissible

OH2: Warrant found during traffic stop justified search of person

Defendant was stopped for a traffic offense, and a warrant surfaced. That justified a search incident of his person. State v. Fleming, 2022-Ohio-1876, 2022 Ohio App. LEXIS 1749 (2d Dist. June 3, 2022). Plaintiff’s claim on appeal that probable cause … Continue reading

Posted in Consent, Search incident, Waiver | Comments Off on OH2: Warrant found during traffic stop justified search of person

OK: Exclusionary rule applies in civil cases under state constitution

The exclusionary rule applies to Oklahoma City’s effort to enforce a warrantless entry to seize and forfeit birds in apparent distress. Oklahoma applies the exclusionary rule in most civil cases under its state constitutional provision against unreasonable searches. There was … Continue reading

Posted in Exclusionary rule, Reasonable suspicion, State constitution, Waiver | Comments Off on OK: Exclusionary rule applies in civil cases under state constitution

D.Minn.: Alleged alibi wasn’t enough for Franks challenge here

Defendant wasn’t entitled to a Franks hearing by attempting to show that he had an alibi for only one controlled buy at issue, which wasn’t quite good enough anyway for probable cause. United States v. Washington, 2022 U.S. Dist. LEXIS … Continue reading

Posted in Burden of pleading, Franks doctrine, Waiver | Comments Off on D.Minn.: Alleged alibi wasn’t enough for Franks challenge here