Category Archives: Qualified immunity

CA10: Traffic stop to flirt with motorist was unreasonable, and clearly established that cause needed

The officer’s stop of plaintiff to flirt with her was without basis and thus unreasonable, and clearly established. Shepherd v. Robbins, 2022 U.S. App. LEXIS 36056 (10th Cir. Dec. 13, 2022) [corrected Dec. 28, 2022]. Defense counsel wasn’t ineffective for … Continue reading

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D.Minn.: All theories to suppress must be raised to USMJ on referral or it’s waived

Defendant’s storage unit had the doors and handles tested with Ion Scanning. He had no reasonable expectation of privacy in that. Before the USDJ, however, he raised it was a trespass to do it as the officers did. That’s waived … Continue reading

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CA6: 4A generally doesn’t apply to sentencing enhancements

“The Fourth Amendment does not apply to sentencing enhancements. … We have recognized a possible exception to this rule—when officers illegally seized the evidence for the very purpose of enhancing the defendant’s sentence—but Wyse makes no such allegation.” United States … Continue reading

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D.Nev.: Flight not RS, but in a high crime area it more likely is

Flight alone is not reasonable suspicion. Flight in a high crime area is more likely to be. United States v. Holmes, 2022 U.S. Dist. LEXIS 225855 (D. Nev. Dec. 14, 2022). “Determining the appellant’s identity was necessary to permit the … Continue reading

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CA10: Traffic stop to flirt with a motorist violates clearly established law

A traffic stop to flirt with a motorist violates clearly established law. But this is a more complicated. “Ultimately, Plaintiff’s appeal rises and falls on the question of whether Defendant’s conduct violated clearly established law. To the degree that Defendant acted … Continue reading

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WI: A description of a Harley in Wisconsin in April is generic and not RS

The description of the offending vehicle as a Harley in Wisconsin is so generic it can’t support a stop. “After all, Wisconsin is the home of Harley-Davidson, and it is one of, if not the most popular manufacturers of motorcycles … Continue reading

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OH: Opening car door was to secure uncooperative def, not search; plain view valid

Opening the car door was not for the purpose of searching; it was to secure the uncooperative defendant. During the interaction, evidence in plain view was seen and the officer then could enter the car to secure it. State v. … Continue reading

Posted in Inevitable discovery, Mail and packages, Plain view, feel, smell, Qualified immunity, Search, Standing | Comments Off on OH: Opening car door was to secure uncooperative def, not search; plain view valid

S.D.Ind.: Forced Covid test didn’t violate 4A

Requiring plaintiff, who said he was positive for Covid-19, be tested before putting him in hospital was reasonable under the Fourth Amendment. It’s less intrusive than swabbing for DNA. Alternatively, qualified immunity applies. Mercado v. Columbus Reg’l Hosp., 2022 U.S. … Continue reading

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CA5: 1836 US-Morocco Treaty of Peace and Friendship as applied to courthouse metal detector not “clearly established law”

Plaintiffs are Moorish-Americans who, on the way to file papers with the clerk, refused to go through the metal detector at the Caddo Parish Courthouse. Entrance was denied. They refused to leave and were then arrested for trespass. They sued … Continue reading

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techdirt: Immunity Denied To Deputies Who Tried To Turn Muscular Dystrophy Into Reasonable Suspicion

techdirt: Immunity Denied To Deputies Who Tried To Turn Muscular Dystrophy Into Reasonable Suspicion by Tim Cushing (reporting on Klaver v. Hamilton Cty., 2022 U.S. App. LEXIS 30642 (6th Cir. Nov. 3, 2022)*)

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E.D.N.Y.: A single incident of legal mail being opened in jail doesn’t state a claim

A single incident of legal mail being opened before it got to plaintiff in a county jail doesn’t state a constitutional violation. Braithwaite v. Suffolk Cty. N.Y., 2022 U.S. Dist. LEXIS 204233 (E.D.N.Y. Nov. 9, 2022). There is no reasonable … Continue reading

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CA7: 4½ days to figure out ptf was innocent didn’t violate 4A or 14A

“Eli Martinez spent four and a half days in custody while he tried to explain to his jailers that his brother, Hector M. Rodriguez, was the one described in an arrest warrant. After Martinez was released, he sued two probation … Continue reading

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CA5: Standard of review for QI in excessive force cases

In this excessive force case, the Fifth Circuit discusses qualified immunity in the heat of a confrontation. Henderson v. Harris County, 2022 U.S. App. LEXIS 28436 (5th Cir. Oct. 12, 2022). The standard of review:

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N.D.N.Y.: Lack of consent no defense to a probation search

Lack of consent is no defense to a probation search. United States v. Lombardo, 2022 U.S. Dist. LEXIS 173618 (N.D.N.Y. Sep. 20, 2022).* Defendant was detained after furtive gestures. He ultimately voluntarily spoke to the officers. There was no constitutional … Continue reading

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CA6: District Court cannot order search of juror’s cell phone to investigate alleged juror misconduct

In a hearing on alleged juror misconduct, the district court cannot order the juror’s cell phone to be searched for evidence of what happened. In re Sittenfeld, 2022 U.S. App. LEXIS 26700 (6th Cir. Sep. 23, 2022). Plaintiff’s complaint against … Continue reading

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NV: Protective sweep doesn’t require a prior arrest and state didn’t articulate the RS of potential danger for it

“While we hold that a protective sweep does not require a prior arrest, we conclude that the district court correctly concluded that the search performed here was not a lawful protective sweep because it was not based on articulable facts … Continue reading

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ID & CA3: Two views same day on misdemeanor arrests

Defendant was already stopped and the officer suspected DUI. She was handcuffed and transported for a breath test. This was an arrest for a misdemeanor that did not happen in the officer’s presence, and it thus violated the state constitution. … Continue reading

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CA9: Arrest for misd without having seen it violated state law but not 4A; qualified immunity granted

The requirement that an arrest for a misdemeanor have occurred in the officer’s presence is a statutory rule [I thought common law], but not a Fourth Amendment requirement. Here, the officer still had probable cause, but didn’t see it. Not … Continue reading

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CA9: Oral amendment to SW to add a place to be searched never incorporated violates 4A, but GFE here because no controlling authority

Officers had a search warrant for plaintiff’s hotel room searching for evidence of a drug operation. They called the issuing judge for permission to search plaintiff’s home under the same affidavit, which was orally granted, but the warrant was not … Continue reading

Posted in Admissibility of evidence, Excessive force, Good faith exception, Particularity, Qualified immunity | Comments Off on CA9: Oral amendment to SW to add a place to be searched never incorporated violates 4A, but GFE here because no controlling authority

DDC: Delay in return of seized cell phone not necessarily unreasonable; Rule 41(g) provides procedural due process

DC Metro police seized numerous cell phones from BLM protestors, and they sued to recover them. The DC police policy wasn’t followed, but only by negligence, and that doesn’t state a claim against it. Rule 41(g) applies despite lack of … Continue reading

Posted in Automobile exception, Cell phones, Excessive force, Qualified immunity, Rule 41(g) / Return of property | Comments Off on DDC: Delay in return of seized cell phone not necessarily unreasonable; Rule 41(g) provides procedural due process