Defendant in his car in a high crime area with overly tinted windows was not reasonable suspicion. Any furtive movements were attributed to the officer opening the door to see in the car for officer safety. The protective sweep of the car was unreasonable. Citing a 1990 state case, the good faith exception doesn’t apply to reasonable suspicion. State v. Williams, 2024 Ohio App. LEXIS 1009 (1st Dist. Mar. 22, 2024).
Defendant’s arrest for domestic violence was with probable cause so the trial court is reversed. State v. Gipp, 2024-Ohio-1076 (2d Dist. Mar. 22, 2024).*
The affidavit for warrant here showed probable cause to believe defendant was involved in a large-scale drug operation, and nexus was shown to his home. “Finally, Tatum’s motion does not contend that the agents and officers executing the search warrant lacked a good faith reliance on the warrant. But even assuming arguendo that the affidavit was somehow lacking, the officers executing the search warrant were acting in reasonable and good faith reliance on it.” United States v. Tatum, 2024 U.S. Dist. LEXIS 51432 (E.D. Mo. Feb. 26, 2024).*
An off-duty police officer has the authority to make a traffic stop. Defendant cites no law that says they can’t. In addition, he had probable to make the stop. State v. Netter, 2024-Ohio-1068, 2024 Ohio App. LEXIS 997 (4th Dist. Mar. 20, 2024).
Plaintiff’s excessive force claim in jail fails for lack of clearly established law. Farris v. Oakland Cty., 2024 U.S. App. LEXIS 6838 (6th Cir. Mar. 22, 2024).*
Defendant’s post-conviction claim that his defense counsel didn’t obtain the search warrant materials so they could evaluate them didn’t state a claim. [In addition, there’s nothing in the opinion about whether the claim would be any good.] Reyburn v. State, 2024 Fla. App. LEXIS 2208 (Fla. 5th DCA Mar. 22, 2024).*
After a suppression hearing, the trial court orally denied the motion to suppress after hearing conflicting evidence. The state was to prepare findings and didn’t. After defendant was convicted on that evidence, there was nothing for the appeal. Remanded for findings of fact and conclusions of law. State v. Jordan, 2024 N.C. LEXIS 145 (Mar. 22, 2024).
Defendant would have been arrested for driving without a license, and the contraband on his person would have been found in a search before going into the patrol car for transport. Therefore, inevitable discovery. State v. Jackson, 2024 N.C. App. LEXIS 226 (Mar. 19, 2024).*
The Fourth Amendment claim that marijuana and hemp smell the same and thus there was no plain smell was waived by the guilty plea. United States v. Perdue, 2024 U.S. App. LEXIS 6839 (6th Cir. Mar. 20, 2024).*
There were mistakes in the affidavit that at least gets defendant a Franks hearing. The government, however, will get to provide more information about the justification for a protective sweep which is not confined to the four corners. United States v. Lopez, (GRB), 2024 U.S. Dist. LEXIS 50786 (E.D.N.Y. Mar. 21, 2024).
Even if the tracking warrant for defendant’s car had expired and was void, his flight from police when they lit him up provided an independent basis for his stop and arrest with probable cause. Therefore, no ineffective assistance of counsel. United States v. Pickens, 2024 U.S. Dist. LEXIS 50090 (D. Minn. Mar. 21, 2024).*
Under Roviaro and other cases, defendant doesn’t get discovery of the CIs that led to the search warrant. United States v. Young, 2024 U.S. Dist. LEXIS 49629 (D.N.M. Mar. 20, 2024).*
Defendant was arrested in the hallway outside his apartment. The entry when he went in to get his keys and shoes was reasonable. Neal El v. Showman, 2024 U.S. Dist. LEXIS 50545 (N.D. Ohio Mar. 21, 2024).*
April 11th, register here, but only for NACDL members:
Automatic License Plate Reader (ALPR) surveillance systems are getting more sophisticated and cheaper, meaning they are increasingly accessible to police. ALPRs can gather information about people and their movements, but law enforcement also use them creatively: creating associations between vehicles and identifying “suspicious” travel patterns. As more police departments use ALPRs in new ways, defense lawyers need to be prepared. [Coincidentally, the email about this webinar came just as I posted the following case.]
Even if Carpenter applied to automated license plate readers, it was decided the day after this happened, so the good faith exception would apply in any event. In addition, the officer’s testimony about it was lay testimony under F.R.E. 702. United States v. Mapson, 2024 U.S. App. LEXIS 6785 (11th Cir. Mar. 21, 2024).
Defendant’s detention for loitering because he was standing with two others at an intersection was without any justification at all. Moreover, the officer had great difficulty explaining what the loitering statute meant. It’s not suggestive of a crime to stand at an intersection, and there’s no indication they were impeding movement on the sidewalk. McDougal v. State, 2024 Del. LEXIS 97 (Mar. 21, 2024).*
Defendant’s ineffective assistance of counsel claim that a reenactment of the crime violated the Fifth and Fourth Amendment and wasn’t objected to fails under Strickland for lack of prejudice. The proof of homicide was overwhelming. People v. Logan, 2024 IL 129054 (Mar. 21, 2024).*
“The Supreme Court has repeatedly admonished courts ‘not to define clearly established law at a high level of generality.’ Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (citation omitted). ‘The dispositive question is “whether the violative nature of particular conduct is clearly established.” … Such specificity is especially important in the Fourth Amendment context.” Mullenix v. Luna, 577 U.S. 7, 12, 136 S. Ct. 305, 308 (2015) (emphasis in original) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S. Ct. 2074, 2084 (2011)).” United States Court of Appeals Fifth Cir. Filed Donald Woods v. Harris County, 2024 U.S. App. LEXIS 6684 (5th Cir. Mar. 19, 2024).*
“‘[S]pecificity is especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an offic[ial] to determine how the relevant legal doctrine … will apply to the factual situation the offic[ial] confronts.’ Id. (citation omitted). Finally, whether a government official may be held liable ‘generally turns on the ‘objective legal reasonableness’ of the action, … assessed in light of the legal rules that were “clearly established” at the time it was taken.’ Jenkins, 838 F.3d at 946-47 (quoting Anderson v. Creighton, 483 U.S. 635, 639-40 (1987)).” Davitt v. Spindler-Krage, 2024 U.S. App. LEXIS 6697 (8th Cir. Mar. 21, 2024).*
Posted inQualified immunity|Comments Off on Two more on “clearly established”
Even if the jury could conclude that the fifth and sixth shots into decedent’s body were unreasonable, the officer was entitled to qualified immunity because decedent was trying to get up and there’s no clearly established law. Est. of Hernandez v. City of L.A., 2024 U.S. App. LEXIS 6729 (9th Cir. Mar. 21, 2024).
Plaintiff was advancing on the officer with a knife and had stabbed the police dog. He was shot 8′ away. There’s no case like this, so qualified immunity. Kelley v. O’Malley, 2024 U.S. App. LEXIS 6734 (3d Cir. Mar. 21, 2024).*
The fact a search warrant was obtained from a USMJ in a separate division of the same district isn’t unreasonable. United States v. Triplett, 2024 U.S. Dist. LEXIS 49876 (N.D. Ohio Mar. 21, 2024).*
“Here, Jean-Baptiste did not plead sufficient facts to state a valid Fourth Amendment claim premised on the alleged monitoring of his laptop. He also did not plead non-conclusory facts suggesting that any conduct was motivated by unlawful discrimination or unconstitutional conduct, and neither the federal statutes he cited, nor the Ninth Amendment, provides an independent source of substantive rights.” Jean-Baptiste v. United States DOJ, 2024 U.S. App. LEXIS 6598 (2d Cir. Mar. 20, 2024).*
A few lawyer friends elsewhere have asked; here’s the unsealed and redacted search warrant for the ATF raid of the Little Rock Airport Executive Director’s house that led to his death during the raid earlier this week.
A search warrant isn’t void because the affidavit in support was missing a notary seal. The rest of the statutory requirements were satisfied, and this wasn’t an error of constitutional magnitude. State v. Whittle, 2024-Ohio-1023,2024 Ohio App. LEXIS 958 (1st Dist. Mar. 20, 2024).
Under red flag law, surrender of an illegal weapon under court order is self-incriminating and protected by the Fifth Amendment. In re R.M. v. C.M., 2024 NY Slip Op 01545, 2024 N.Y. App. Div. LEXIS 1556 (2d Dept. Mar. 20, 2024).*
Officers had reasonable suspicion defendant might be armed which would mean he was a felon in possession and that justified handcuffing. State v. Harris, 2024-Ohio-1025, 2024 Ohio App. LEXIS 960 ((1st Dist. Mar. 20, 2024).*
The USMJ erred in finding a Fourth Amendment claim in plaintiff’s complaint when plaintiff didn’t specifically plead one. Daniels v. Christoff, 2024 U.S. Dist. LEXIS 49388 (E.D. Mich. Jan. 24, 2024).*
The stop of defendant’s car for expired tags but within the period of the state’s Covid executive order extending time to register cars was objectively not reasonable, even where the officer was unaware of the meaning of the EO. United States v. Castillo, 2024 U.S. Dist. LEXIS 48480 (E.D. Cal. Mar. 19, 2024).
The affidavit for the search warrant for defendant’s cell phone showed probable cause to believe that defendant was involved in his wife’s murder and that cell phone calls were made that could be evidence in the case. Pugh v. State, 2024 Ga. LEXIS 80 (Mar. 14, 2024).*
Probable cause was shown by a common sense reading of the affidavit for defendant’s CSLI to connect him to a murder. State v. Wiggins, 2024 Minn. LEXIS 134 (Mar. 20, 2024).*
This search warrant was executed at 6 am, and the district court erred in granting the motion to suppress. “While 6:00 a.m. is the earliest time provided, it cannot be said that executing a warrant in accordance with its text–which directly mirrors Rule 41–is unreasonable. [No law was cited.] Given that we review the officers’ actions objectively, we see no reason to hold that the officers’ decision to execute the search in line with the warrant and the federal rules was unreasonable. [¶] The officers’ forcible entry into Joyce’s apartment–after knocking and announcing their presence and waiting thirty to fifty seconds–was also not unreasonable. [¶] To begin, the thirty-to-fifty-second wait was reasonable because the officers on the scene ‘had a general idea of the apartment’s size and possible layout,’ which was only one floor with one or two bedrooms.” United States v. Joyce, 2024 U.S. App. LEXIS 6603 (2d Cir. Mar. 20, 2024).
Defendant’s tail light was out and that objectively justified this stop. United States v. Blakeney, 2024 U.S. App. LEXIS 6593 (3d Cir. Mar. 20, 2024).*
A tribal search warrant was issued for defendant’s car which was attacked as not complying with Rule 41 [which is irrelevant]. It was issued with probable cause and the good faith exception would apply. But, the search of the vehicle was valid under the automobile exception. She also didn’t have standing to challenge the search of another person’s house. United States v. Floyd, 2024 U.S. Dist. LEXIS 48793 (D.S.D. Mar. 18, 2024).*
Suspecting VA benefits fraud, the VA OIG surveilled defendant for months and then installed a remote controlled and motion activated pole camera on top of a school across the street. They had 15 hours of video for 68 days, and it was used to prosecute him for VA benefits fraud. The use of the pole camera was reasonable. Carpenter doesn’t require different result. Nothing the camera saw was what passersby could see, even at night. United States v. Hay, 2024 U.S. App. LEXIS 6491 (10th Cir. Mar. 19, 2024). Update: techdirt: 10th Circuit Appeals Court Says 68 Days Of Pole Camera Surveillance Doesn’t Violate 4th Amendment by Tim Cushing
Drug testing of schoolteachers requires reasonable suspicion by state law. The court looks to the criminal law to define it, and the school had it. Bartolotta v. Hum. Res. Agency of New Britain, Inc., 2024 Conn. App. LEXIS 65 (Mar. 19, 2024).
Alleged misstatement in the affidavit for warrant about defendant’s role in the DTO was not material for probable cause and purposes. United States v. Locke, 2024 U.S. Dist. LEXIS 48058 (E.D. Wis. Mar. 19, 2024).*
Defendant was on supervision for a sex offense. He was required to disclose all his dating relationships. A parole search of his cell phone was reasonable, and it revealed other violations. In re Pers. Restraint of Allgoewer, 2024 Wash. App. LEXIS 511 (Mar. 19, 2024).
2254 petitioner had his full and fair opportunity to litigate his Fourth Amendment claim and did. Hrytsyak v. Ohio, 2024 U.S. Dist. LEXIS 48010 (N.D. Ohio Feb. 7, 2024).*
The district court did not adequately explain the search condition on supervised release. Vacated. United States v. Jackson, 2024 U.S. App. LEXIS 6398 (4th Cir. Mar. 18, 2024).
Defendant was on parole for armed robbery, wearing a GPS tracker. It was reasonable for parole to send his tracking information to a detective investigating him for another robbery. Commonwealth v. Rosendary, 2024 PA Super 51, 2024 Pa. Super. LEXIS 95 (Mar. 19, 2024).
No suppression hearing required when the facts alleged in the motion to suppress don’t show a fact dispute. United States v. Torres, 2024 U.S. App. LEXIS 6475 (11th Cir. Mar. 19, 2024).
The use of deadly force against plaintiff was reasonable in the videos of the occurrence. Howard v. DeKalb Cty., 2024 U.S. App. LEXIS 6476 (11th Cir. Mar. 19, 2024).*
Defendant asleep in his car wasn’t reasonable suspicion. Marijuana found. Harvell v. Commonwealth, 2024 Va. App. LEXIS 142 (Mar. 19, 2024) (unpublished).*
Plaintiff’s excessive force claim under Bivens is barred by Egbert. Butler v. Trett, 2024 U.S. App. LEXIS 6469 (6th Cir. Mar. 18, 2024).
Frequent filer sued library for kicking him out, again. He’s under a screening requirement for so many frivolous cases. “Watkins’s brief encounter with law enforcement did not violate his right to be free of unreasonable searches and seizures. Although Watkins contends he was ‘detained’ by the BSO deputy, the complaint lacks any allegations that Watkins was physically restrained or that he was advised that he was not free to leave. See Chandler, 695 F.3d at 1199. And while the deputy would have been required to show reasonable suspicion that Watkins had committed or was about to commit a crime to conduct a more intrusive detention, Watkins was not subjected to a seizure within the meaning of the Fourth Amendment.” In re Watkins, 2024 U.S. App. LEXIS 6477 (11th Cir. Mar. 19, 2024).*
Collateral estoppel bars relitigating a search in a § 1983 case found lawful in an underlying criminal case. Boseman v. Flint Police Dep’t, 2024 U.S. Dist. LEXIS 46699 (E.D. Mich. Mar. 15, 2024).
“As discussed, Brown acquired the information giving rise to his reasonable suspicion during the mission of the stop. The conflicting stories surfaced during Brown’s initial contact with Jackson and while he was measuring window tint. And the interaction with Jackson while sitting in his patrol car occurred while Brown was writing the citation. While Jackson suggests that Brown deliberately prolonged the stop when he rewrote the citation, Brown’s explanation is plausible, and the Court finds it credible.” Both stuck with their inconsistent stories when asked again. United States v. Jackson, 2024 U.S. Dist. LEXIS 47612 (M.D. Ga. Mar. 18, 2024).*
“On appeal, Hadsell contends that the trial court erred in denying the motion to suppress because the search warrant issued was based on false statements. We do not reach the merits of Hadsell’s argument because he failed to file the transcript of the suppression hearing or a written statement of facts in lieu of the transcript necessary for our review.” Hadsell v. Commonwealth, 2024 Va. App. LEXIS 148 (Mar. 19, 2024) (unpublished).*
Posted inBurden of proof, Issue preclusion|Comments Off on E.D.Mich.: Collateral estoppel bars religitating search in a § 1983 case where motion to suppress lost in criminal case
techdirt: Court To Cops: There’s No ‘Instinct Exception’ For Drug Dogs Handlers Refuse To Handle by Tim Cushing (“Officers who handle drug dogs like to claim they’re so highly skilled at animal handling they can recognize otherwise imperceptible moves by their animals as the dog ‘alerting,’ giving them (and, more literally) their animals free rein to perform warrantless searches of vehicles. [¶] But when these arguments fail, and it’s apparent a K-9 cop just let their animal roam free, these same officers who pride themselves (at least when sworn in as witnesses) in controlling their animals claim these same animals can’t possibly be controlled. After all, the dogs operate on instinct, and who among us is capable of preventing an animal from acting on its urges?”) The case is here.
Posted inDog sniff|Comments Off on techdirt: Court To Cops: There’s No ‘Instinct Exception’ For Drug Dogs Handlers Refuse To Handle
“A police search of garbage set out for collection does not violate the Fourth Amendment to the United States Constitution or article I, section 10 of the Minnesota Constitution even if a local municipal ordinance prohibits the inspection or removal of items from a private waste receptacle.” State v. Hansen, 2024 Minn. App. LEXIS 135 (Mar. 18, 2024).
Sovereign citizen brought a claim against his arresting officer under the criminal civil rights statute. Case dismissed for failure to plead sufficient facts and because it was frivolous. People of United States ex rel. Powell v. Knowles, 2024 U.S. Dist. LEXIS 47213 (S.D. Ohio Mar. 18, 2024).*
Former federal inmate sued under Bivens for Fourth, Fifth, and Eighth Amendment claims while in prison. These are not within Bivens’ illegal search claim and the other claims, and the case is dismissed. Spivey v. Breckon, 2024 U.S. Dist. LEXIS 47286 (W.D. Va. Mar. 18, 2024).*
The target of a search filed an emergency motion to quash a search warrant for DNA to compare it to a firearm but without a showing there was DNA on the gun. The motion is denied, but the target can challenge the search after the fact. The case law goes both ways on the need for finding DNA before the warrant can be obtained. In re Search Warrant, 2024 U.S. Dist. LEXIS 47064 (S.D. Fla. Mar. 18, 2024).
The license plate light being out, the stop was justified, and the officers could smell marijuana. United States v. Traywick, 2024 U.S. Dist. LEXIS 47060 (N.D. Iowa Mar. 18, 2024).*
The search incident to arrest of defendant’s fanny pack was reasonable. Defendant tried to hand it off to a friend, and the officer felt something hard inside. It was a gun. United States v. Cobb, 2024 U.S. Dist. LEXIS 47043 (M.D. Ala. Mar. 18, 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.
