Officers entered with an arrest warrant and found defendant in bed. He was handcuffed. Getting his clothing to dress him, a gun was found in a coat. This was valid as a search incident, despite his being handcuffed. Also, there is no definitive distance from the object search for search incident. Borges v. State, 2024 Md. App. LEXIS 576 (Aug. 1, 2024) (“See Feaster, 206 Md. App. at 237 (‘As long as the arrest scene retains any potential of volatility, however, the courts, unwilling to risk a dead officer, will look on the arrestee as if he were Harry Houdini. The controversial calls almost invariably will go to the State.’)”
“Even assuming that Gemelli’s allegations regarding material omissions in the affidavit are true, the reconstructed affidavit still contains sufficient facts to lead a prudent person to believe that a crime had been committed.” Gemelli v. Nicosia, 2024 U.S. App. LEXIS 19199 (5th Cir. Aug. 1, 2024).*
In a Terry stop, handcuffing with reasonable suspicion the detainee is possibly armed and dangerous is reasonable. Est. of Richards v. City of N.Y., 2024 U.S. Dist. LEXIS 136610 (S.D.N.Y. July 31, 2024).*
Here, an open container with the smell of alcohol justified a full vehicle search under the automobile exception. “Applying this totality of the circumstances analysis, we hold that the circuit court did not err in finding that probable cause justified the search of Durham’s car. Officer Labat’s testimony reveals that, leading up to the search, he made three key observations: (1) the odor of alcohol coming from inside Durham’s vehicle; (2) an open cup of amber, alcohol-smelling liquid in a front seat cupholder (albeit in the one a little further from the driver); (3) and an open bottle of liquor in the left rear footwell.” Durham v. Commonwealth, 2024 Va. LEXIS 48 (Aug. 1, 2024).
“It is ‘plausible in light of the record as a whole’ that Palmer’s front windshield was illegally tinted. … Accordingly, the district court did not err when it concluded that officers had reasonable suspicion to stop Palmer. Because this basis alone supports reasonable suspicion, we need not decide whether officers had reasonable suspicion to believe Palmer committed additional traffic violations for the length of his rims.” United States v. Palmer, 2024 U.S. App. LEXIS 19200 (5th Cir. Aug. 1, 2024).*
The insufficiency of evidence to sustain a conviction moots the search issue on appeal. State v. Isaac, 2024 Minn. LEXIS 408 (July 31, 2024).*
Posted inReasonable suspicion|Comments Off on VA: Open container violation here justified full search of car
Unlocking a door, here that opens out, when the police are knocking is not implied consent to enter. Quinn v. Zerkle, 2024 U.S. App. LEXIS 19154 (4th Cir. Aug. 1, 2024).
There was a reckless geographical error in the affidavit for warrant, but removing it still left probable cause. United States v. Osterman, 2024 U.S. App. LEXIS 19072 (7th Cir. Aug. 1, 2024).*
Even if defendant’s lane violation was not justification for the stop, his flight from the stop attenuated it. State v. Cohen, 2024 Ida. App. LEXIS 17 (Aug. 1, 2024).*
The officer here gets qualified immunity for using force against a mentally disturbed man charging at him and risking others. William v. Langfitt, 2024 U.S. App. LEXIS 19123 (9th Cir. Aug. 1, 2024).*
As an invited guest into the home, defendant had a reasonable expectation of privacy and right to refuse contact with the police at the door without violating the law. People v. Jones, 2024 IL App (1st) 221555, 2024 Ill. App. LEXIS 1766 (Aug. 1, 2024).
There was probable cause for the multiple search warrants of gambling operations, so the good faith exception doesn’t even come into play. United States v. Arvay, 2024 U.S. Dist. LEXIS 135710 (D. Colo. July 31, 2024).*
The search incident of defendant’s backpack on his arrest for murder was reasonable. Commonwealth v. Williams, 2024 Mass. App. LEXIS 102 (Aug. 1, 2024).*
“Here, the marijuana in plain view, combined with Root’s providing a false name and questionable story about his presence in the area, provided officers probable cause to search Root’s vehicle for further evidence of drugs.” United States v. Root, 2024 U.S. Dist. LEXIS 135874 (N.D. Iowa Aug. 1, 2024).*
During the George Floyd murder unrest, defendant told an acquaintance he was traveling to Wisconsin with a machine gun to kill and loot. The acquaintance told law enforcement. They obtained ping information based on exigency, which was valid. Also, Franks does not apply to emergency requests for ping information because it’s not a search warrant. United States v. Karmo, 2024 U.S. App. LEXIS 19047 (7th Cir. July 31, 2024).
There is no reasonable expectation of privacy in a police interview room, at least where the police did not assure defendant there was. Thus, the conversation with a co-defendant was properly admitted at trial. Marotta v. State, 2024 Fla. App. LEXIS 5955 (Fla. 4th DCA July 31, 2024).
Defendant claims an unreasonable seizure and questioning. It was harmless. “For the reasons below, we conclude that the jury’s verdict here was ‘surely unattributable’ to the claimed error.” State v. Zielinski, 2024 Minn. LEXIS 403 (July 31, 2024).*
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 allegations. On the merits, with what the court could find, he’d have lost anyway. People v. Patton, 2024 NY Slip Op 04080 (2d Dept. July 31, 2024).*
Summary judgment was properly denied because of material questions of fact in whether the entry into the house here under the emergency exception was continued unreasonably. Von Derhaar v. Watson, 2024 U.S. App. LEXIS 18844 (5th Cir. July 30, 2024).*
“Viewing the facts in the light most favorable to Setchfield, we conclude that the officers had neither actual nor arguable cause for Setchfield’s arrest. Thus, the district court’s denial of summary judgment based on qualified immunity was proper.” Setchfield v. St. Charles Cty., 2024 U.S. App. LEXIS 18948 (8th Cir. July 31, 2024).*
“To the extent that the court of appeals read our opinion in Baldwin necessarily to require, as a prerequisite of probable cause, that an affidavit must establish (1) use of the cell phone either during, or immediately before or after, commission of (2) the specific offense on trial, it was misguided. Such a showing is not always required before a magistrate may find that a search warrant affidavit ‘state[s] facts and circumstances that provide … probable cause to believe that … searching the telephone … is likely to produce evidence in the investigation of’ certain criminal activity. Tex. Code Crim. Proc. art. 18.0215(c)(5)(B). The court of appeals should reexamine its decision.” Stocker v. State, 2024 Tex. Crim. App. LEXIS 516 (July 31, 2024).
Franks challenge fails: “That said, Oldham’s preliminary showing is insufficient to warrant a Franks hearing. Officer Meier’s statements were not false. Nor is there any evidence that Officer Meier acted with the subjective intent to deceive the issuing judge. And to the extent that Oldham contends that Officer Meier omitted information—such as the weight of the marijuana recovered from the Explorer—he also withheld substantial incriminating information. In large part, it appears that Oldham challenges the wording of the Affidavit. But perfection is not the standard for a search warrant affidavit. Truthfulness and completeness are. When reviewing Oldham’s Offer of Proof, Officer Meier’s narrative was both.” United States v. Oldham, 2024 U.S. Dist. LEXIS 134198 (N.D. Ind. July 30, 2024).*
Posted inCell phones, Franks doctrine, Nexus|Comments Off on TX: Court of Appeals required state to show more than necessary to show cell phone nexus; remanded
Defendant’s cell phone was seized in 2011 and an SD card was unexpectedly found with sexual images of children. When defendant questioned that, a separate search warrant was sought for the SD card. The state does not show inevitable discovery here. State v. Rose, 334 Or. App. 66 (July 31, 2024).
No ineffective assistance of counsel in not challenging this warrant. “[T]he Court finds that the October 29 Warrant is sufficiently particular, not overbroad, and satisfies the Fourth Amendment’s specificity requirement. Moreover, even if the warrant were deficient, the Court would find that the good faith exception to suppression applies. The Government has adequately shown that Steele was not ‘dishonest or reckless in preparing [his] affidavit’ and he ‘harbored an objectively reasonable belief in the existence of probable cause.’” United States v. Smith, 2024 U.S. Dist. LEXIS 134067 (D. Nev. July 29, 2024).*
Defendant’s leaving a backpack in the house of another when he fled police was abandonment. United States v. Rahmings, 2024 U.S. App. LEXIS 18919 (11th Cir. July 31, 2024).*
Baltimore Sun: Baltimore settles lawsuit from shooting victims whose property was seized by police by Madeleine O’Neill (“The city of Baltimore has settled a federal lawsuit brought by shooting survivors who said police unlawfully confiscated their belongings without warrants, victimizing them a second time. [¶] As part of the settlement, the Baltimore Police Department adopted a new policy that will help crime victims retrieve their property and clarify what can be seized by officers, according to the lawyers for the plaintiffs. The department did not respond to a request for comment and for a copy of the policy Friday.”)
Posted inWarrant execution|Comments Off on Baltimore Sun: Baltimore settles lawsuit from shooting victims whose property was seized by police
“We conclude that the facts in the affidavit did not create a sufficient nexus between the apartment and the suspected drug activity. The affidavit provided that during each of the controlled buys, one officer observed Phillips exiting the apartment, and at some unknown time later, a different officer observed Phillips meeting up with the CRI at an undisclosed location to distribute drugs. The affidavit did not show that police observed Phillips’s travel path to the undisclosed locations, nor that police ensured that Phillips did not stop somewhere prior to meeting the CRI. In addition, the affiant did not discuss the distance between the apartment and the undisclosed locations, nor how much time elapsed between Phillips leaving the apartment and arriving at those locations.” Training doesn’t fill the gaps. “A magistrate cannot infer probable cause from an absence of facts, especially when, as here, there are any number of reasons why the affidavit did not provide critical information, such as the route Phillips took or the amount of time it took him to travel between the apartment and the sites of the controlled buys, and not all of them are favorable to the police.” State v. Colgrove, 334 Or. App. 128 (July 31, 2024).
Posted inNexus|Comments Off on OR: Lack of nexus from disconnected controlled buys
When the police arrive for an arrest and the occupants say the guy they’re looking for isn’t there, police don’t have to credit that and just leave. Green-Page v. United States, 2024 U.S. Dist. LEXIS 134563 (W.D.N.Y. July 30, 2024)* (see, e.g., United States v. Bryant, 2024 U.S. App. LEXIS 18736 (8th Cir. July 30, 2024), posted 7/30 where the first occupant told the police raiding the house that their target wasn’t there, and that was a lie.)
An ineffective assistance of counsel claim can’t be considered on direct appeal from a conviction. Here, defense counsel didn’t challenge a search that was now foreclosed by the guilty plea. United States v. Rosado, 2024 U.S. App. LEXIS 18778 (2d Cir. July 30, 2024).*
Qualified immunity was properly denied by the district court. The decedent was mentally ill and unarmed and died in police custody from application of alleged excessive force. Scott v. Smith, 2024 U.S. App. LEXIS 18786 (9th Cir. July 30, 2024).*
Even if the testimony that defendant refused to consent to a search and a warrant had to be obtained was error, here it was harmless beyond a reasonable doubt. State v. Gililung, 2024 Wash. App. LEXIS 1534 (July 30, 2024).*
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, reflected only his limited movements in public areas, and did not encompass his home.” United States v. Davis, 2024 U.S. App. LEXIS 18803 (11th Cir. July 30, 2024).
Officers with a warrant for evidence of fraud could search defendant’s backpack in his apartment. United States v. Lewis, 2024 U.S. Dist. LEXIS 133963 (D.D.C. July 29, 2024).*
Defendants that had nothing to do with plaintiff’s search can’t be sued for it. Sullivan v. Hamilton Cty. Court of Common Pleas, 2024 U.S. App. LEXIS 18747 (6th Cir. July 29, 2024).*
The officer corroborated enough of the informant’s tale to satisfy Aguilar-Spinelli. People v. Elliot, 2024 NYLJ LEXIS 2429 (Kings Co. July 24, 2024).*
New arguments raised at the suppression hearing are considered waived. Even if it was considered, it lacks merit: The officer could open the car for a check for other passengers for officer safety. United States v. Hargraves, 2024 U.S. Dist. LEXIS 133903 (D. Del. July 29, 2024).
“The Fourth Circuit has not addressed a case with the exact facts presented here, but it had clearly established the right to be free from deadly force when armed, fleeing, and nonthreatening. Henry v. Purnell, 652 F.3d 524, 534 (4th Cir. 2011). Thus, the right not to be shot in the back while fleeing officers when the officers suspected that the individual was armed but the individual never pointed a firearm at the officers was clearly established on January 8, 2021.” A fact dispute remains on that. Cooper v. Doyle, 2024 U.S. Dist. LEXIS 133030 (D. Md. July 29, 2024).*
Flight in a high crime area can add to make reasonable suspicion. Defendant’s claim flight was provoked is rejected. United States v. Taylor, 2024 U.S. Dist. LEXIS 133548 (D.D.C. July 19, 2024).*
Showing nexus in a search warrant affidavit between defendant’s cell phone and the crime. How much of the officer’s opinion matters? United States v. Santos, 2024 U.S. Dist. LEXIS 133564 (E.D.N.Y. July 29, 2024):
The use of a pole camera watching the front of defendant’s home for nearly three months was not an unreasonable search. Carpenter does lend some weight to his argument, but all Fourth Amendment precedent is against him. United States v. Salaman, 2024 U.S. Dist. LEXIS 133184 (D. Conn. July 29, 2024)*:
“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 a Supreme Court Justice, because she ‘was exercising the preliminary jurisdiction of the local criminal court.’” People v. Jean, 2024 NYLJ LEXIS 2420 (Kings Co. July 29, 2024).
“We affirm the district court’s dismissal of the claims against the City. However, we conclude that the district court erred in granting Officer Sletten’s motion to dismiss, because the video recording did not ‘blatantly contradict’ the allegations of the amended complaint. We hold that the plaintiff’s allegations of excessive force under § 1983, when properly construed, are sufficient to state a claim. We therefore reverse the district court’s judgment in favor of Officer Sletten on the excessive force claim and remand that claim to the court for further proceedings.” Doriety v. Sletten, 2024 U.S. App. LEXIS 18672 (4th Cir. July 29, 2024).*
A prison visitor was fully strip searched on entry into a Georgia state prison. This search violated the Fourth Amendment. But, because this circuit and SCOTUS have never confronted this issue, the law is not “clearly established” and she loses on qualified immunity. Gilmore v. Ga. Dep’t of Corr., 2024 U.S. App. LEXIS 18668 (11th Cir. July 29, 2024).
Plaintiff shows a question of fact for whether false information was used to make his arrest, so summary judgment denied. Remanded for a determination of qualified immunity. Saintil v. Borough of Carteret, 2024 U.S. App. LEXIS 18608 (3d Cir. July 29, 2024).*
The fact that destruction of evidence in a criminal case was well established at the time doesn’t mean it was for a 1983 Fourth Amendment case. Doe v. Charlotte Mecklenburg Bd. of Educ., 2024 U.S. App. LEXIS 18645 n.10 (4th Cir. July 29, 2024).*
When the district court holds that the warrant is valid both on probable cause and good faith, only challenging probable cause on appeal means that the alternative basis is sufficient to affirm. United States v. Bryant, 2024 U.S. App. LEXIS 18736 (8th Cir. July 30, 2024).
The search warrant here was for defendant’s son and evidence linking him to another crime. When the entry was made, the son was already in custody. The warrant was still valid. United States v. Ladson, 2024 U.S. App. LEXIS 18660 (4th Cir. July 29, 2024).*
Defendant’s Franks challenge fails for not showing falsity. Materiality isn’t even reached. United States v. Henderson, 2024 U.S. App. LEXIS 18572 (6th Cir. July 26, 2024).*
A court order for defendant’s saliva for a touch DNA comparison required a showing of probable cause. State v. Steeprock, 2024 Minn. App. LEXIS 345 (July 29, 2024).
“[T]he record evidence demonstrates that three police officers ran from the police vehicle, immediately surrounded the minivan and the rear passenger door where defendant was seated, and blocked the defendant’s only reasonable means of egress from the parked vehicle he occupied. In addition to the three officers who surrounded defendant, this event involved a police raid van and two additional patrol vehicles that appear to have blockaded the road and several additional officers who had fanned out to pursue the individuals who were observed drinking alcohol on the public street. This was not a consensual encounter, and a reasonable person would not believe that they were free to leave or terminate the encounter once three officers in tactical body armor exited a raid van and quickly surrounded them while they sat in a parked vehicle.” People v. Hicks, 2024 Mich. LEXIS 1414 (July 26, 2024).*
Plaintiff’s Fourth Amendment private search claim fails. Rapp v. SSM Agnesian Health, 2024 U.S. App. LEXIS 18566 (7th Cir. July 25, 2024).*
Kansas High School uses AI to analyze students’ “homework assignment, email, photo, and chat on your school-supplied device is being monitored by artificial intelligence for indicators of drug and alcohol use, anti-social behavior, and suicidal inclinations.” Kansas Reflector: Spyware turned this Kansas high school into a ‘red zone’ of dystopian surveillance by Max McCoy:
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“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
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"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, Let it Bleed (album, 1969)
"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]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"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)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
