“Lenhart does not assert fraud on the court, seek to clarify the mandate, or identify a clerical mistake. He instead attempts to relitigate the Fourth Amendment claim that this court fully considered and rejected on direct appeal. If Lenhart believed that the court’s adjudication of that claim was in error, he should have timely petitioned for panel or en banc rehearing before this court or petitioned the Supreme Court for a writ of certiorari. He did not do so, and he cannot now obtain a belated rehearing of his direct appeal via a motion to recall the mandate.” United States v. LeNhart, 2024 U.S. App. LEXIS 11450 (6th Cir. May 9, 2024).*
Defendant had a zoom call with a prison inmate that was recorded, about which he was told was being monitored, and which ended up being evidence in his own criminal trial for his admissions of criminality. There was no reasonable expectation of privacy in the call. United States v. Campbell, 2024 U.S. Dist. LEXIS 84976 (E.D. Pa. May 10, 2024).*
A preservation request under 18 U.S.C. § 2703(f) for defendant’s Snapchat account isn’t an unreasonable search or seizure. Even if, “suppression would not be warranted because the FBI acted in good faith reliance on the Stored Communications Act. As a result, Colbert’s suppression motion is denied.” United States v. Colbert, 2024 U.S. Dist. LEXIS 85096 (D. Kan. May 9, 2024).
Considering the totality, the district court did not clearly err on the voluntariness of consent of a man handcuffed in a holding cell. “The district court concluded that Deputy Maleno did not threaten Shephard with a warrant or suggest that refusing consent would be futile, and Deputy Maleno had a reasonable basis for informing Shephard that a search warrant could be obtained because officers already had a warrant for Shephard’s person, home, and car. The court’s determination that this factor weighed in favor of voluntariness was not clearly erroneous.” United States v. Shephard, 2024 U.S. App. LEXIS 11431 (9th Cir. May 10, 2024).*
Plaintiff’s complaint against these defendants are against private actors not subject to the Fourth Amendment. They move to dismiss and plaintiff doesn’t respond. Granted. Rowe v. Santilli, 2024 U.S. Dist. LEXIS 85079 (D. Conn. May 10, 2024).*
Even assuming the officer had reasonable suspicion defendant was involved in a prior incident, he had no reasonable suspicion for stopping defendant this time. State v. Correa, 2024 UT App 69, 2024 Utah App. LEXIS 69 (May 9, 2024).
Petitioner doesn’t get a certificate of appealability for his search claim on particularity. The state court decision isn’t shown to be unreasonable for 2254(d) purposes. Bowman v. Andrewjeski, 2024 U.S. App. LEXIS 11424 (9th Cir. May 10, 2024).*
“We therefore assume that Dominguez did not appear to be actively reaching for a gun, nor did he appear to be making any other furtive movement or gesture, when he dropped his hands and leaned forward by some amount and, perhaps, raised his hands again. It was clearly established at the time of the relevant events that deadly force is not justified ‘absent some reason to believe that the suspect will soon access or use [a] weapon.’ Peck, 51 F.4th at 888 (citing Cruz, 765 F.3d at 1077-78). [¶] Accordingly, Officer Pina’s use of deadly force violated Dominguez’s Fourth Amendment right under clearly established law. Officer Pina, therefore, is not entitled to qualified immunity.” Dominguez v. Pina, 2024 U.S. App. LEXIS 11425 (9th Cir. May 10, 2024).*
Plaintiff adequately alleged personal injury for his Fourth Amendment. Invasion of privacy is enough. Dismissal reversed. Amigon v. Luzon, 2024 U.S. App. LEXIS 11415 (2d Cir. May 10, 2024):
The issuing magistrate had probable cause to issue a search warrant for possible child pornography because the affidavit contained the officer’s description of an image depicting nude juveniles from 13-15 years, and the tip provider employee’s personal observation of the images and defendant’s prior criminal history. Defendant was not entitled to a Franks hearing because he merely challenged the veracity of the officer’s affidavit by offering his own account of events, and defendant still admitted the images depicted nude males. A mere denial is not a “substantial preliminary showing.” Commonwealth v. Dunn, 2024 Mass. LEXIS 186 (May 9, 2024).*
A dismissed civil case against an officer for malfeasance in office fails to show misconduct with a falsified search warrant to overcome defendant’s voluntary guilty plea. [Apparently the act occurred, but it just wasn’t a crime.] United States v. Jordan, 2024 U.S. Dist. LEXIS 83439 (E.D. Va. May 7, 2024).*
Defendant’s vehicle was particularly described for a warrant to be executed on it. United States v. Kirtdoll, 2024 U.S. App. LEXIS 11240 (6th Cir. May 8, 2024).*
Because the Tennessee Constitution uses “possessions” rather than “effects,” plaintiff had a reasonable expectation of privacy in rural land that he used that wildlife officers entered upon to enforce hunting laws. Rainwaters v. Tenn. Wildlife Res. Agency, 2024 Tenn. App. LEXIS 208 (May 9, 2024).
Petitioner’s 2254 claim that his search warrant paperwork had Brady material in it for trial, stuff he didn’t see before trial, is defaulted by not having raised it before. Paape v. Baker, 2024 U.S. Dist. LEXIS 84479 (N.D. Ill. May 9, 2024).*
Defendant was an attorney convicted of swindling a client out of $15,000. The search warrant for her office electronics was constitutionally particular under both the Fourth Amendment and the state constitution. In addition, it was harmless beyond a reasonable doubt based on other documentary evidence that proved the case. State v. McNeilly, 2024 Minn. LEXIS 232 (May 8, 2024).*
Posted inParticularity, State constitution, Waiver|Comments Off on TN: “Possessions” in search clause of state const. gives REP in rural hunting land
Georgia has granted review of a geofence warrant case, including whether its prior case law holding the good faith exception was limited should be overruled. Jones v. State, 2024 Ga. LEXIS 110 (May 9, 2024)*:
There’s no difference between the privacy interest in DNA abandoned at the scene of a crime and the specific genetic information within it. State v. Carbo, 2024 Minn. LEXIS 236 (May 8, 2024). [A creative argument, but one always doomed to fail.]
Defendant’s appellate argument saved for the reply brief is waived. Considering it on plain error, it isn’t even error, let alone plain error, based on the record the court has. Williams v. United States, 2024 D.C. App. LEXIS 182 (May 9, 2024).*
Defendant’s motion to suppress is denied for a host of reasons: “Defendant moves to suppress the firearm and argues the warrantless search of his bag violated the Fourth Amendment. The Court disagrees and denies the motion because the search of his bag was valid under the Fourth Amendment. The automobile exception justifies the search if the bag was a container apart from Defendant’s person. The search-incident-to-arrest exception justifies the search if the bag was part of his person (or within his control). Further, even if the bag’s search violated the Fourth Amendment, the Court would not suppress the firearm because officers would have inevitably discovered it.” United States v. Walker, 2024 U.S. Dist. LEXIS 84511 (D. Kan. May 9, 2024).*
Posted inAbandonment, Automobile exception, Search incident, Waiver|Comments Off on MN: No difference between the privacy interest in DNA abandoned at the scene of a crime and the specific genetic information within it
A search for stored video evidence must necessarily be broad because of the types of things on which it could be stored. United States v. Mila, 2024 U.S. Dist. LEXIS 84465 (S.D. Fla. Apr. 4, 2024), adopted, 2024 U.S. Dist. LEXIS 83768 (S.D. Fla. May 8, 2024).
There was probable cause to arrest plaintiff for violation of the state false alarm statute for false 911 calls. Germany v. Watkins, 2024 U.S. App. LEXIS 11281 (6th Cir. May 8, 2024).*
Plaintiff’s acquittal in state court denied the opportunity for issue preclusion of the probable cause finding. Issues of fact remained on qualified immunity. Koelzer v. Westrick, 2024 U.S. App. LEXIS 11287 (6th Cir. May 7, 2024).*
Lack of detail of more specific detail of witnesses’ identification of suspects wasn’t a Franks violation. State v. Crummey, 2024 S.C. App. LEXIS 36 (May 8, 2024).*
Defendant’s quibbling¹ over the word choices in the affidavit didn’t provide a “substantial preliminary showing” for Franks. Review shows it wasn’t even inaccurate. United States v. Pettigrew, 2024 U.S. App. LEXIS 11328 (6th Cir. May 7, 2024).* [¹My choice of words, not the court’s. Franks challenges are hard to meet, and intentionally so. Remember that search warrants are presumptively valid, and overcoming that presumption requires something significant. Defense counsel shouldn’t waste time on them unless there’s something significant that amounts to actually misleading the issuing judge, not just word usage. You have a case to prepare, and a Franks challenge can be a lot of wasted effort.]
“The valid waiver of the right to appeal forecloses review of defendant’s suppression claim. Regardless of the validity of the waiver, upon our in camera review of the search warrant materials and the minutes of the search warrant application hearing, we conclude that there was probable cause for issuance of the search warrant …. The search warrant also described with sufficient particularity the premises to be searched and property to be seized ….” People v. Williams, 2024 NY Slip Op 02601 (1st Dep’t May 9, 2024).*
Defendant argues he didn’t know he was waiving his suppression issues, but the plea colloquy show he was. United States v. Peeples, 2024 U.S. App. LEXIS 11332 (6th Cir. May 8, 2024).*
A service member has a reasonable expectation of privacy in a private barracks room because it was not shared with anyone else. United States v. Rocha, 2024 CAAF LEXIS 250 (C.A.A.F. May 8, 2024) (not a Fourth Amendment search case).
“Wright asserted that because the dog could not distinguish between illegal and legal marijuana, the police lacked probable cause to search his vehicle. The trial court denied the motion and Wright entered a no-contest plea. Wright now appeals. [¶] We hold that the dog’s alert, combined with the other circumstances known to the police at the time of the search, established probable cause and supported the search of Wright’s vehicle.” State v. Wright, 2024-Ohio-1763 (1st Dist. May 8, 2024).*
There was no basis for search of defendant’s car under the automobile exception or even with a warrant that was obtained. It was so lacking in probable cause that the good faith exception does not apply. “The Court has no choice but to suppress the evidence gathered during the illegal search and seizure.” United States v. George, 2024 U.S. Dist. LEXIS 83977 (W.D. Pa. May 8, 2024).*
This was a show of authority: “With the emergency lights activated, each officer exited the vehicle and yelled, ‘Let me see your hands’ and quickly approached Mr. Mitchell. Officer Phillip had a hand on her firearm while doing so. Officers Phillip and Pantaleon’s conduct constituted a show of authority sufficient for a seizure because any innocent, reasonable person in Mr. Mitchell’s position would believe that compliance with the officers’ commands under those circumstances was required and not subject to being merely disregarded. Michigan v. Chesternut, 486 U.S. 567, 574, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988) (explaining that the reasonable person standard, in the context of a seizure ‘does not vary with the state of mind of the particular individual being approached’).” Mitchell v. United States, 2024 D.C. App. LEXIS 181 (May 9, 2024).*
HSI and NCIS had a search warrant for an early morning child pornography search. Defendant was explicitly told he was not being arrested, and he was not “in custody” for Miranda purposes when he made a statement. United States v. Cunningham, 2024 CCA LEXIS 182 (N-M Ct. Crim. App. May 8, 2024).*
Defendant arrived in Chicago on a flight from Italy, and his cell phone was taken and validly border searched. United States v. Didani, 2024 U.S. Dist. LEXIS 83897 (E.D. Mich. May 8, 2024).*
Posted inBorder search, Cell phones, Custody, Seizure|Comments Off on DC: Lights, coming out of car with hand on gun, and “Let me see your hands” was a seizure
In a kidnapping case, the 30-day delay in seeking a search warrant for defendant’s storage unit after its seizure was not unreasonable. “The Court next considers the degree to which the seizure and retention of Lepe’s storage unit and its contents was necessary for the promotion of important governmental interests. Place, 462 U.S. at 703-04. It finds that, under the circumstances in this case, the Government had an interest in investigating and finding evidence of the kidnapping across state lines and abuse of a woman. Further, once the Government suspected that Lepe was involved in the distribution of illegal drugs, it had a significant interest in investigating and finding evidence of Lepe’s role in drug distribution.” United States v. LePe, 2024 U.S. Dist. LEXIS 82631 (D. Mont. May 6, 2024).
The detail from the CI was well supported and corroborated. The affidavit for the warrant was not so lacking in probable cause that the good faith exception doesn’t apply. State v. Windland, 2024-Ohio-1760 (5th Dist. May 6, 2024).*
Nebraska police chased fleeing plaintiff into Iowa and there was a crash. A Nebraska county could be sued in Iowa. Wade v. Pottawattamie County, 23-1059 (8th Cir. May 7, 2024).* [That’s what happened in Plumhoff v. Rickard, SCOTUS ten years ago; police chase started in Arkansas (8th Cir.) and ended in Memphis with a shooting death (6th Cir.).
Posted in§ 1983 / Bivens, Informant hearsay|Comments Off on D.Mont.: 30-day delay in getting SW for seized storage building not unreasonable
The smell of marijuana from a car is no longer probable cause under California law, but it is still in a national park. United States v. Tolmosoff, 2024 U.S. Dist. LEXIS 83134 (E.D. Cal. May 7, 2024).
Defendant wasn’t seized by the officer parking by his car, but he fled and attenuation applies. United States v. Zamora, 2024 U.S. Dist. LEXIS 82489 (D. Mont. May 6, 2024).*
Defense counsel’s failure to file a reply brief on a suppression motion isn’t a showing of prejudice. Carpenter v. United States, 2024 U.S. Dist. LEXIS 82928 (N.D. Ill. May 7, 2024).*
Probable cause was based both on informant hearsay and officers watching a controlled buy. United States v. Britton, 2024 U.S. App. LEXIS 10672 (8th Cir. May 2, 2024).*
CA10, Tymkovich, Circuit Judge, dissenting: Bivens is a relic of the 20th Century and it’s just a matter of time until it’s gone. Mohamed v. Jones, 2024 U.S. App. LEXIS 11089 (10th Cir. May 7, 2024).
The affidavit for the warrant for defendant’s BAC was based on probable cause. State v. Kroese, 2024 Tenn. Crim. App. LEXIS 187 (May 7, 2024).*
Defendant’s guilty plea waived his Fourth Amendment claim. Hollon v. State, 2024 Miss. App. LEXIS 194 (May 7, 2024).*
Defendant’s drug activities showed nexus for a warrant to search his basement apartment. United States v. Doe, 2024 U.S. Dist. LEXIS 82883 (D. Mass. May 7, 2024).*
Defendant’s consent to look in his backpack didn’t require separate consent to look in a pill bottle. Lee v. Commonwealth, 2024 Va. App. LEXIS 258 (May 7, 2024).
CBP had reasonable suspicion for the stop of a Jeep meeting four jet skis from Puerto Rico coming to the Virgin Islands in rough seas when they had a tip that’s how drugs would arrive. United States v. Vazquez-Lopez, 2024 U.S. Dist. LEXIS 81992 (D.V.I. May 6, 2024).*
Pacing a speeder was reasonable suspicion for a stop. United States v. Pearson, 2024 U.S. Dist. LEXIS 82383 (N.D.W. Va. May 6, 2024).* Same: United States v. Jones, 2024 U.S. App. LEXIS 11111 (4th Cir. May 7, 2024).*
The argument that a protective sweep was necessary is actually mooted by the fact it was a probation search. United States v. Wallace, 2024 U.S. Dist. LEXIS 82485 (D. Mont. May 6, 2024).*
Defendant’s arrest body cavity search pulling out heroin was unreasonable. People v. Chase, 2024 NY Slip Op 01837, 2024 N.Y. App. Div. LEXIS 1877 (3d Dist. Apr. 4, 2024). [Sentencing was five years ago, and that should be an embarrassment to NY courts.]
Plaintiff is a U.S. Citizen living in Japan. When his Japanese bank account exceeded $10,000 he was required to file an IRS Form 114. He sued the Secretary of Treasury that it was an invasion of privacy. The district court denied the claim based on California Bankers Assn. While the case was pending he filed the form. The district court had no jurisdiction at that point. Mano v. Yellen, 2024 U.S. App. LEXIS 10952 (7th Cir. May 6, 2024).*
Defendant’s detention was without reasonable suspicion, so his obstruction was not a crime. State v. Mrozowski, 2024 Ga. App. LEXIS 175 (May 6, 2024).*
Tracking money from a bank robbery was probable cause for defendant’s stop and arrest. United States v. Whitmore, 2024 U.S. Dist. LEXIS 82202 (N.D. Ill. May 1, 2024).*
Plaintiff’s strip search was objectively reasonable, no matter the subjective intent that motivated it. Jones v. Degrave, 2024 U.S. App. LEXIS 10953 (7th Cir. May 6, 2024).
Plaintiff doesn’t show that GPS monitoring as a condition of his state probation was unreasonable. Hamlet v. Irvin, 2024 U.S. Dist. LEXIS 81233 (W.D. Va. May 3, 2024).*
The protective sweep was reasonable, and statements made during it are admissible. United States v. Johnson, 2024 U.S. App. LEXIS 10910 (6th Cir. May 3, 2024).*
The defense didn’t show that the state destroyed his router during the search of his house such that exculpatory evidence that others were involved instead could have been destroyed. The government showed significant amounts of child pornography on electronics in his house. United States v. Hulse, 2024 U.S. App. LEXIS 10911 (6th Cir. May 2, 2024).*
Plaintiff showed sufficient facts to support a § 1983 Franks v. Delaware claim for false statements supporting probable cause for arrest. Franks is clearly established law. Hughes v. Garcia, 2024 U.S. App. LEXIS 10922 (5th Cir. May 3, 2024).
“Based upon our review of the record submitted on appeal, we agree with the trial court’s well-reasoned and thorough order that the affidavit supporting the search warrant did not contain any material omissions or misrepresentations that rendered the warrant invalid.” State v. Chaney, 2024 N.H. LEXIS 83 (May 3, 2024).*
Defendant’s Franks challenge is tenuous at best and fails. The CI’s information here was sufficient to show probable cause within the lengthy and detailed affidavit for warrant. United States v. Overton, 2024 U.S. Dist. LEXIS 80955 (W.D. Pa. May 3, 2024).*
“[T]he Officers reasonably believed that Mr. Craven posed an immediate risk of harm when he persisted in advancing toward them and, despite their commands, dropped his hands toward his waist where a gun holster was located.” Craven v. Novelli, 2024 U.S. App. LEXIS 10834 (4th Cir. May 3, 2024).*
A cell phone stuck inside to the windshield was reasonable suspicion for a stop. United States v. Reyes-Rosario, 2024 U.S. Dist. LEXIS 80948 (W.D. Pa. May 3, 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.
