Category Archives: § 1983 / Bivens

E.D.Mo.: No claim where no damages shown for alleged unreasonable dog sniff; nothing was found, detention was otherwise reasonable

Officers were surveilling a van that they believed might have a connection to an unsolved homicide. They observed what appeared to be hand-to-hand drug transactions, and the van’s LPN was expired. They approached. There were others around the van, and … Continue reading

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CA5: Ptf’s excessive force claim arising from a traffic stop expands Bivens

Plaintiff’s shooting during a traffic stop gone bad is an expansion of Bivens and is rejected. Hernandez v. Causey, 2024 U.S. App. LEXIS 32527 (5th Cir. Dec. 23, 2024). Defendant had standing to contest the search of his room at … Continue reading

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CA8: Car on car hauler’s tractor trailer still mobile for automobile exception

Defendant shipped a car on a car hauler paying in advance. All things considered, the hauler suspected drugs were involved because it had happened to him before. He called HSI which came to investigate. On the totality, there was probable … Continue reading

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MO: Def’s 4A ineffective assistance claim fails because he doesn’t show he’d prevail on the 4A claim

Defendant’s ineffective assistance of counsel claim was based on defense counsel’s failure to file a motion to suppress of a marital vehicle. He never, however, showed that he did, in fact, have standing. Moreover, the trial court found that the … Continue reading

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Leftovers

2255 petitioner fails to show grounds for a CoA from his search claims, without telling us the rationale. United States v. Renteria, 2024 U.S. App. LEXIS 30239 (5th Cir. Nov. 26, 2024).* Defendant’s stop and frisk was without reasonable suspicion. … Continue reading

Posted in § 1983 / Bivens, Cell phones, Informant hearsay, Reasonable suspicion, Reasonableness, Stop and frisk, Strip search | Comments Off on Leftovers

CA10: “Bivens is now all but dead.”

“Bivens is now all but dead.” Rowland v. Matevousian, 2024 U.S. App. LEXIS 29406 (10th Cir. Nov. 19, 2024). But we already knew that. Not a Fourth Amendment case, but a prison denial of medical care, but that’s where Bivens … Continue reading

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W.D.Ark.: State remedy for return of property bars § 1983 claim for it

Plaintiff’s § 1983 suit for return of property is denied because there is a state law remedy, even if a federal claim was barred by Heck. Owens v. Samuel, 2024 U.S. Dist. LEXIS 189894 (W.D. Ark. Sep. 24, 2024), adopted, … Continue reading

Posted in § 1983 / Bivens, Excessive force, Reasonable suspicion, Rule 41(g) / Return of property | Comments Off on W.D.Ark.: State remedy for return of property bars § 1983 claim for it

AR & PA: Def’s statements at time of search used at trial

Defendant’s DNA was taken by warrant at the jail, and his admissions about the offense during that captured on bodycam were admitted at trial. There was no questioning; it was voluntary. Torres v. State, 2024 Ark. App. 457 (Sep. 25, … Continue reading

Posted in § 1983 / Bivens, Custody, Franks doctrine, Qualified immunity | Comments Off on AR & PA: Def’s statements at time of search used at trial

Cal.6: Cell phone SW was limited to a specific date and time for certain materials, but the search far exceeded it; suppressed, no GFE

The search warrant here was issued for evidence of a sexual assault of an adult. There were pretext text messages sent by the police pretending to be the victim to get an admission. When the search warrant was executed, child … Continue reading

Posted in § 1983 / Bivens, Cell phones, Good faith exception, Scope of search, Third Party Doctrine | Comments Off on Cal.6: Cell phone SW was limited to a specific date and time for certain materials, but the search far exceeded it; suppressed, no GFE

MO: Break in chain from Good Samaritan Law entry occurred when def was searched for transport in police car

The Missouri Good Samaritan Law provides immunity from prosecution from evidence of crime found as a result of a medically-related entry. Here, however, defendant was searched before he was placed in a patrol car, and immunity wasn’t what the legislature … Continue reading

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FL3: Officers could enter def’s home to make his arrest with an arrest warrant

Defendant was convicted of resisting arrest without violence. The jury was properly instructed that the officers could enter his home on an arrest warrant. Martinez v. State, 2024 Fla. App. LEXIS 6538 (Fla. 3d DCA Aug. 21, 2024). Plaintiff’s malicious … Continue reading

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CA9: Where officers were attempting to de-escalate a situation, warning about deadly force not required

A warning before deadly force would be used was contrary to the officers’ efforts to de-escalate the situation. Otherwise qualified immunity applies. Eyre v. City of Fairbanks, 2024 U.S. App. LEXIS 19770 (9th Cir. Aug. 7, 2024) (2-1).* Plaintiff’s claim … Continue reading

Posted in § 1983 / Bivens, Body searches, Excessive force, Qualified immunity | Comments Off on CA9: Where officers were attempting to de-escalate a situation, warning about deadly force not required

W.D.N.C.: While NCIC data error on warrant was “troubling,” the arrest was still in good faith

While there was an NCIC warrant entry error which was “troubling,” it has nothing to do with the good faith of the officers in executing it under Evans. United States v. Valdez, 2024 U.S. Dist. LEXIS 138952 (W.D.N.C. Aug. 6, … Continue reading

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CA9: Ptf’s protestations of innocence at arrest doesn’t undermine this arrest warrant

“Farber’s § 1983 claims also fail because she has not shown an underlying constitutional violation. Her arrest did not violate the Fourth Amendment because the arresting officers ‘had a good faith, reasonable belief that [Farber] was the subject of the … Continue reading

Posted in § 1983 / Bivens, Arrest or entry on arrest, Good faith exception, Probation / Parole search, Reasonable suspicion | Comments Off on CA9: Ptf’s protestations of innocence at arrest doesn’t undermine this arrest warrant

CA6: Knowing of a search starts the SoL from any claim on it

Knowing of a search starts the statute of limitations for any claim on it. Reguli v. Russ, 2024 U.S. App. LEXIS 19008 (6th Cir. July 31, 2024). Defendant waived his motion to suppress by not adequately supporting it with factual … Continue reading

Posted in § 1983 / Bivens, Emergency / exigency, Qualified immunity, Waiver | Comments Off on CA6: Knowing of a search starts the SoL from any claim on it

CA11: No standing in geofence warrant for girlfriend’s cell phone location

Defendant lacks standing to challenge a geofence warrant directed at his girlfriend’s cell phone. “Davis lacks Fourth Amendment standing to challenge the geofence warrant because the search did not disclose any information about the data on his own electronic device, … Continue reading

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NY Kings: Jurisdiction of the issuing magistrate didn’t matter here

“The fact that the warrant was signed by Justice Tully as an Acting Supreme Court Justice is irrelevant; Justice Tully was authorized to issue the search warrant regardless of whether she was sitting as a Criminal Court Judge or as … Continue reading

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E.D.Pa.: Exposure to Covid-19 in prison doesn’t state a 4A or 8A claim

Exposure to Covid-19 in prison didn’t state a Fourth or Eighth Amendment claim. Dingle v. Tommage, 2024 U.S. Dist. LEXIS 124710 (E.D. Pa. July 16, 2024). Defendant was driving with a suspended license, and WVSP protocol dictated impoundment of the … Continue reading

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CA3: No per se irreparable injury from 4A violation

The Third Circuit does not find per se irreparable injury from a Fourth Amendment violation, recognizing a conflict in the circuits. Del. State Sportsmen’s Ass’n v. Del. Dep’t of Safety & Homeland Sec., 2024 U.S. App. LEXIS 17214 (3d Cir. … Continue reading

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CA2: Excessive force claims are new under Bivens and can’t be brought

Excessive force claims are new for Bivens, and rejected. Here, it was his restraint in a courtroom by US Marshals and CSOs. Edwards v. Gizzi, 2024 U.S. App. LEXIS 17100 (2d Cir. July 12, 2024). Plaintiff was shot in the … Continue reading

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