Federal regulations permit FTCA actions for excessive force claims, so Bivens/Egbert bar this claim. Wimberly v. Selent, 2024 U.S. App. LEXIS 13557 (11th Cir. June 5, 2024).
Defendant provided nothing to show he had a reasonable expectation of privacy in a shanty he was hiding in then departed, leaving stuff behind. He was essentially a trespasser with no expectation of privacy. United States v. Walter, 2024 U.S. Dist. LEXIS 98951 (D.V.I. June 4, 2024).*
An SIS sentence is not a final appealable order, so the appeal of the denial of suppression is dismissed. State v. Bodenhamer, 2024 Mo. LEXIS 174 (June 4, 2024).*
Posted in§ 1983 / Bivens, Excessive force|Comments Off on CA11: Excessive force claim against HSI barred by Bivens/Egbert
Just because the client insists on defense counsel making a frivolous Fourth Amendment argument doesn’t mean counsel should raise it. “Counsel for Temple suggested during the suppression hearing that the first four arguments are ‘north of frivolous’ but acknowledged the arguments lack real merit. He indicated Temple had insisted he make the arguments. The undersigned agrees the first four arguments lack merit. More aptly, they wholly and unequivocally lack merit. Given as much, the undersigned addresses them below only briefly. Temple’s last two arguments present closer questions than the first four but nonetheless fail.” United States v. Temple, 2024 U.S. Dist. LEXIS 99112 (N.D. Ala. May 10, 2024),* adopted 2024 U.S. Dist. LEXIS 98042 (N.D. Ala. June 3, 2024).*
Habeas petitioner’s Fourth Amendment claim brought to preserve for further review was barred by Stone. Schiller v. Tegels, 2024 U.S. Dist. LEXIS 98817 (E.D. Wis. June 4, 2024).*
Defendant’s claim that automated license plate readers are unconstitutional searches is moot by probable cause for the stop. United States v. Gonzalez, 2024 U.S. Dist. LEXIS 98953 (D. Kan. June 4, 2024).*
Posted inIssue preclusion|Comments Off on N.D.Ala.: Def insisted on counsel raising arguments that were “wholly and unequivocally lack[ing] merit”
“Here, Plaintiff seeks compensatory and punitive damages for his improper search, seizure, and entrapment claims. Plaintiff has not alleged he is prevented from bringing his ‘entrapment,” search and seizure claims in state court. Accordingly, it is appropriate, pursuant to the Younger doctrine, to stay Plaintiff’s Fourth Amendment claims against Defendants until his state criminal case concludes.” Tate v. Jackson, 2024 U.S. Dist. LEXIS 99105 (W.D. Ark. May 13, 2024), adopted, 2024 U.S. Dist. LEXIS 98282 (W.D. Ark. June 3, 2024).
The warrant for defendant’s iCloud account was not overbroad. The crime was alleged to be August 2022, but the warrant extended to April 2023, and justification was shown. Defendant’s further claim this is barred as a geofence warrant fails because it’s simply not. United States v. Byrd, 2024 U.S. Dist. LEXIS 98748 (E.D. Pa. June 4, 2024).*
Plaintiff’s Fourth Amendment claim accrued when she turned 18, and she was aware of what happened. Barred by SoL. Doe v. City View Indep. Sch. Dist., 2024 U.S. Dist. LEXIS 98831 (N.D. Tex. June 4, 2024).*
“Furtive movements can support reasonable suspicion that an individual is armed, justifying a frisk. Moorefield, 111 F.3d at 14. An officer ‘need not be absolutely certain’ that movements are an attempt to ‘hide narcotics or a firearm’ for ‘the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ Id. (citing Terry, 392 U.S. at 27).” … “Finally, escalating police encounters, including refusal to follow officer orders, physical resistance, and flight, buttress findings of dangerousness, and even probable cause. Many in-Circuit district courts have held that flight and resisting police commands augment an officer’s justifiable suspicion.” United States v. Seabreeze, 2024 U.S. Dist. LEXIS 98746 (E.D. Pa. June 4, 2024).*
“Because Smith failed to show that any evidence or statements would have been suppressed had counsel filed a motion to suppress, he has not established that his trial counsel was deficient, and this claim fails.” Smith v. State, 2024 Ga. App. LEXIS 212 (June 4, 2024).*
Plaintiff’s claim that defense counsel violated the Fourth Amendment in her representation of him didn’t state a claim. No facts at all. Lewis v. Walsh, 2024 U.S. Dist. LEXIS 98664 (N.D.N.Y. June 4, 2024).*
Posted inIneffective assistance, Stop and frisk|Comments Off on E.D.Pa.: “Furtive movements can support reasonable suspicion that an individual is armed, justifying a frisk.”
USMS Fugitive Task Force shot and killed a person they were arresting. Under Egbert, there’s no Bivens claim here. Robinson v. Sauls, 2024 U.S. App. LEXIS 13432 (11th Cir. June 4, 2024) (another death knell for Bivens).
Defendant abandoned his car by fleeing from it. The government didn’t waive claiming his lack of standing by abandonment. It raised it in a responsive pleading before the ruling on the motion to suppress. United States v. Young, 2024 U.S. Dist. LEXIS 96037 (N.D. Ind. May 30, 2024).*
The court credits the testimony of the officers that the license plate placed in the rear window of this car was hardly visible before the stop because of heavily tinted windows. United States v. Payne, 2024 U.S. Dist. LEXIS 96086 (D.V.I. May 30, 2024).*
“The officer had probable cause to search Jackson and the vehicle, whether based on the totality of the circumstances or because of the smell of unburnt marijuana alone.” United States v. Jackson, 2024 U.S. App. LEXIS 13408 (7th Cir. June 4, 2024).*
“Defendant did not preserve his claim that the admission of evidence that he did not open the door when the police knocked to show his consciousness of guilt violating his Fourth Amendment rights and his right to a fair trial …., and we decline to review it in the interest of justice. As an alternative holding, we reject them on the merits. The police conduct did not violate defendant’s Fourth Amendment rights, and the People did not introduce evidence obtained in violation of his constitutional rights ….” People v. Taveras, 2024 NY Slip Op 03016, 2024 N.Y. App. Div. LEXIS 3063 (1st Dep’t June 4, 2024) (but no real explanation); often common in New York).
“The relevant inquiry is whether a habeas petitioner had an opportunity to litigate his or her claims—not whether he or she, in fact, did so or even whether the Fourth Amendment claim was correctly decided.” Rosinski v. Howard, 2024 U.S. Dist. LEXIS 96266 (E.D. Mich. May 30, 2024).*
This 2255 is partly based on an attempt to relitigate his Fourth Amendment claim already lost on appeal with an Anders brief. Dismissed. Pitts v. United States, 2024 U.S. Dist. LEXIS 95656 (S.D. Ga. Apr. 12, 2024),* adopted, CoA denied, 2024 U.S. Dist. LEXIS 94616 (S.D. Ga. May 28, 2024).*
Posted inIssue preclusion, Privileges|Comments Off on NY1: Evidence of failing to open door when police are there with a SW doesn’t violate 4A
A search warrant that included “electronic files” meant that a computer could be searched. United States v. Lukassen, 2024 U.S. App. LEXIS 13392 (8th Cir. June 4, 2024).
Defendant didn’t show standing in the car he was driving, and it was abandoned. Trial court’s order suppressing is reversed. Commonwealth v. Lyn, 2024 PA Super 112, 2024 Pa. Super. LEXIS 217 (May 31, 2024).*
Reports from a homeowner remotely watching home security video and a neighbor’s report was probable cause when defendant’s car was seen leaving the scene. United States v. Burk, 2024 U.S. Dist. LEXIS 98433 (D. Alaska June 3, 2024).*
Petitioner doesn’t claim that New York has not provided an adequate corrective procedure for litigating search and seizure claims. Indeed, the Second Circuit has upheld the New York State procedures. Burton v. Wolcott, 2024 U.S. Dist. LEXIS 95438 (N.D.N.Y. May 29, 2024).*
What defendant knows about his search, since it happened to him, is enough to file a motion to suppress. His discovery request beyond what he already knows about the search should wait for him to file a motion to suppress. Then the court will entertain it. United States v. Hertel & Brown Physical & Aquatic Therapy, 2024 U.S. Dist. LEXIS 98239, at *67-68 (W.D. Pa. June 3, 2024):
WaPo: +Google cuts part of team that vets police requests for user data by Gerrit De Vynck (“The tech giant gives reams of data to police. It has laid off part of the team that ensures those requests are legal. [¶] Before the cuts, the Legal Investigations Support team already struggled to handle the huge amount of government requests it was responsible for, said the person familiar with the team’s operation. Members of the team both develop policies about how to respond to requests and review individual requests themselves to ensure they are legal, the person said. Sometimes Google will send back the requests and ask police to narrow them to try to decrease the amount of user data that is provided. The layoffs come as police and spy agencies around the world increasingly ask tech firms for user data.”)
In a child sex abuse case, the trial court erred in finding the warrant stale that a massaging tool used on the victim wouldn’t likely be there. It was a physical object and nonperishable. It was not stale. State v. Santiago, 2024 Ga. App. LEXIS 211 (June 3, 2024).
Federal DUI: Defendant had a one vehicle wreck while on cruise control. The officers at the scene saw the driver swaying and smelled of alcohol. That was probable cause. United States v. Pratt, 2024 U.S. Dist. LEXIS 97550 (M.D. Ga. May 31, 2024).*
As to probable cause: “Surveillance of the location and attendant hand-to-hand transactions combined with the empty bags with drug residue found at the location (suggesting that significant amounts of drugs were dumped before the search warrant was executed) tends to prove that large quantities of narcotics had been at that location. And the evidence also confirms that Hulbert was present in the house on numerous occasions.” United States v. Hulbert, 2024 U.S. Dist. LEXIS 95321 (S.D. Ohio May 29, 2024).*
Stuttgart Daily Leader: Mid-South Conference: Panel to discuss Fourth Amendment, warrantless search of private lands (“The Institute for Justice recently found that nearly 96 percent of all private land in the country, which is about 1.2 billion acres, is essentially open to warrantless government access. In recent years, IJ, a public interest law firm representing clients free-of-charge, has been active on this issue, partnering with clients from Tennessee, Louisiana, Ohio and other states. For instance, a Louisiana landowner, partnered with IJ, filed a lawsuit after two instances of officers from the Louisiana Department of Wildlife and Fisheries entering his land.”)
Posted inOpen fields|Comments Off on Stuttgart Daily Leader: Mid-South Conference: Panel to discuss Fourth Amendment, warrantless search of private lands
Younger bars an injunction against defendant’s criminal prosecution for an alleged illegal search. McDowell v. Plymouth Twp. Police Dep’t, 2024 U.S. Dist. LEXIS 96568 (E.D. Mich. May 30, 2024).
“Reasonable jurists could not disagree with the district court’s denial of Moore’s claim that his Fourth and Fourteenth Amendment rights were violated by the denial of his motion to suppress and the admission of the results of his blood-alcohol test.” Ohio law provided a remedy, and disagreement with the results isn’t reason for habeas. CoA denied. Moore v. Hildebrand, 2024 U.S. App. LEXIS 12915 (6th Cir. May 29, 2024).*
“The officers had reason to believe that evidence of a crime was in the vehicle. At the suppression hearing, the district court found that knowledge concerning Broussard’s activity the morning of the arrest and months-long investigation established probable cause. A few hours before the stop, law enforcement observed Broussard, a convicted felon, with a handgun around a known drug trafficking house. Broussard went out of sight and, simultaneously, a Honda Accord was seen leaving the premises. This amounted to probable cause to pull Broussard over because, although the officers were not certain Broussard was in the Honda, the officers correctly relied on their own inferences and experiences to stop the car.” United States v. Broussard, 2024 U.S. App. LEXIS 12891 (5th Cir. May 29, 2024).*
“Counsel did not perform deficiently when they raised the Fourth Amendment argument [under applicable law at the time], even though this Court and the Seventh Circuit found that the good faith applied.” Castro-Aguirre v. United States, 2024 U.S. Dist. LEXIS 95954 (S.D. Ind. May 29, 2024).*
“However, ‘the exclusionary rule does not apply in federal supervised release revocation proceedings.’ … Because the evidence challenged by Faucette was considered in a revocation proceeding, not a criminal prosecution, Armstrong forecloses his constitutional challenge to the evidence supporting the revocation of his supervised release.” United States v. Faucette, 2024 U.S. App. LEXIS 12989 (4th Cir. May 30, 2024).*
Defendant was a codefendant in a 77-count indictment, and she was spending the night at a codefendant’s place when the search warrant was executed. No person was named as a target of the search, and her cell phones were within the scope of the warrant. “[T]hat special considerations exist in the context of cellphones” does not change this. The good faith exception applies because a USMJ issued the warrant, and inquiry into the probable cause is moot. United States v. Inyang, 2024 U.S. Dist. LEXIS 95912 (W.D. Tex. May 30, 2024).*
“When the deputies encountered him, he appeared intoxicated; they reasonably feared that he might become dangerous, and he became so when, as Culley later admitted in state court, he lunged at them and resisted arrest before they pushed him to the ground. ‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’ violates the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 396 (1989) (citation omitted). … “And Culley has cited no case suggesting that the shove to the ground–after he lunged at the police and resisted arrest despite his declared shoulder injury–was not a reasonable effort to subdue him. Because he has not shown a violation of a clearly established Fourth Amendment right, summary judgment was proper.” Culley v. Miller, 2024 U.S. App. LEXIS 12823 (7th Cir. May 29, 2024).*
This is not purely a suicide based excessive force claim. When police were called, they expected a man armed with a meat cleaver and probably a gun and prepared to use it. Foulke v. Weller, 2024 U.S. App. LEXIS 12861 (11th Cir. May 29, 2024).*
Dismissal of plaintiff’s § 1983 excessive force case reversed. “Although Watkins’s allegations are imprecise, her Fourth Amendment excessive force claims against the officers survive dismissal because she alleges she was restrained and nonresistant when the individual officers used force against her absent any police or penological purpose.” Watkins v. City of St. Louis, 2024 U.S. App. LEXIS 12797 (8th Cir. May 29, 2024).*
“Because there has been no Fourth Amendment violation, the Court does reach the issue of qualified immunity.” French v. Pierce Cty., 2024 U.S. Dist. LEXIS 94638 (W.D. Wash. May 28, 2024).*
Conflict of laws: The search was in the Ninth Circuit but the court sits in the Tenth. Which version of the independent source doctrine applies? As interesting as that question is, despite differences, it doesn’t actually matter here, because it does. United States v. Haack, 2024 U.S. Dist. LEXIS 95623 (D.N.M. May 29, 2024), recon. den. 2024 U.S. Dist. LEXIS 108291 (D.N.M. June 18, 2024).
“Trooper Winters’ bodycam footage and heard the testimony of Trooper Winters, which it finds credible, and concludes it was more than reasonable for Trooper Winters to believe Perez adequately spoke English and, further, that Perez consented to the search of his Vehicle.” United States v. Perez, 2024 U.S. Dist. LEXIS 95027 (D. Neb. May 29, 2024).*
Defendant’s being unable to be awakened in a car justified opening the door. Rogers v. State, 2024 Ark. App. 340 (May 29, 2024).*
There was no reasonable suspicion to extend defendant’s traffic stop by tribal police based on nervousness. “It is not uncommon for individuals to appear nervous when confronted by law enforcement, especially when considering Panasuk’s prior interactions with law enforcement, the fact that he did not have a license plate on his trailer, and the fact that he was unable to produce his driver’s license upon request.” It was produced a little later. State v. Panasuk, 2024 MT 113, 2024 Mont. LEXIS 567 (May 28, 2024).*
Defendant was not seized when his cell phone was subjected to a probation search. United States v. Aryeetey, 2024 U.S. Dist. LEXIS 94292 (S.D.N.Y. May 23, 2024).*
The officer’s testimony that all this happened in a high crime area doesn’t need documentation to make him credible on that point. United States v. Adams, 2024 U.S. Dist. LEXIS 94450 (S.D. W. Va. May 28, 2024).*
The good faith exception applied to defendant’s probation search. The officer checked and reasonably concluded that defendant was still on searchable probation at the time. People v. Pritchett, 2024 Cal. App. LEXIS 348 (1st Dist. May 8, 2024), certified for publication May 28, 2024).
Seizure of defendant’s cell phone was not reasonable under the search incident exception where he was arrested and moved to where the phone was. Exigent circumstances also did not apply. Plain view did apply because officers were executing a search warrant and cell phones are known tools of the drug trade. Alleged false statements in the warrant affidavit aren’t material because probable cause exists without them. United States v. Santos, 2024 U.S. Dist. LEXIS 94025 (D.P.R. May 23, 2024).*
Plaintiff’s strip search in jail after return from court was conducted reasonably. Smith v. McGinley, 2024 U.S. Dist. LEXIS 94054 (M.D. Pa. May 28, 2024).*
Defendant’s truck was still readily mobile such that the automobile exception applied. Turnage v. State, 2024 Miss. App. LEXIS 231 (May 28, 2024).*
"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.
