Defendant’s motion to reopen his suppression hearing is granted. “To resolve Defendant’s motion, the Court must determine whether Defendant has provided a sufficient explanation for failing to present at the suppression hearing the evidence that Defendant now wishes to introduce. If Defendant has made such a showing, then the Court must consider (1) whether Defendant’s motion is timely; (2) the character of the evidence that Defendant would introduce; (3) the effect reopening the suppression hearing; and (4) whether the Government will be prejudiced if the suppression hearing is reopened. See United States v. Holland, 522 F. App’x 265, 270 (6th Cir. 2013). Defendant provided a sufficient explanation for failing to introduce at the suppression hearing the evidence that he now wishes to present, and the other four Holland factors weigh in his favor.” United States v. Goodson, 2024 U.S. Dist. LEXIS 16203 (E.D. Mich. Jan. 30, 2024).
The legality of possession of a firearm isn’t determinative for reasonable suspicion. “Additionally, Officer Taylor had reasonable suspicion that Conner was armed and dangerous, permitting the frisk of Conner’s pocket. As the Fourth Circuit explained, pursuant to Supreme Court precedent, ‘the legality of the frisk does not depend on the illegality of the firearm’s possession.’ United States v. Robinson, 846 F.3d 694, 701 (4th Cir. 2017). Rather, ‘[t]he danger justifying a protective frisk arises from the combination of a forced police encounter and the presence of a weapon, not from any illegality of the weapon’s possession.’ Id. at 696. In addition to testifying regarding his knowledge that Conner was likely armed, Officer Taylor testified concerning the safety risks to officers when approaching groups of individuals who are suspected to be armed. Officer Taylor also testified that there were moments where the officers could not see all four men, which made it possible for the men to be in possession of additional firearms of which the officers were unaware.” United States v. Conner, 2024 U.S. Dist. LEXIS 15773 (E.D. La. Jan. 30, 2024).*
Defendant came to an ER for treatment for a gunshot wound. The medical staff bagged his clothing after getting it off him, and then gave it to the police who requested it. He had no reasonable expectation of privacy in the clothing after presenting himself to the ER for treatment for his GSW. Meredith v. Commonwealth, 2024 Va. App. LEXIS 36 (Jan. 30, 2024) (unpublished).
As an overnight guest for the last three days before the search, defendant had standing to challenge the search. The warrant was found defective for a failure of particularity. State v. Yearwood-Cabbel, 2024 Ga. App. LEXIS 40 (Jan. 30, 2024).*
When the government elected not to use seizure of evidence challenged under the Fourth Amendment, the lack of a hearing on defendant’s motion to suppress is moot. United States v. Lingala, 2024 U.S. App. LEXIS 2006 (3d Cir. Jan. 30, 2024).*
Posted inStanding|Comments Off on GA: ER GSW patient had no REP in his clothing removed by staff and then given to police
The court finds defendant lacked standing in a car he claims to have rented through Turo from the owner. The innocent driver of car stolen by someone else could have standing, but he doesn’t even get there. The rental couldn’t be proved by Turo. United States v. Thomas, 2024 U.S. Dist. LEXIS 15107 (D. Nev. Jan. 26, 2024), adopting 2024 U.S. Dist. LEXIS 16249 (D.Nev. Jan. 11, 2024).
The state officers obtained four warrants for defendant’s places and things. The product of the unchallenged first led to the others for which there was probable cause. The second warrant claimed a Franks violation, but materiality wasn’t shown. United States v. Hollins, 2024 U.S. Dist. LEXIS 13337 (N.D. Ind. Jan. 24, 2024).*
One officer relayed that defendant committed a traffic violation for the stop. The officer making the stop then saw two more violations, obviating collective knowledge. United States v. Alfred, 2023 U.S. Dist. LEXIS 233889 (W.D. La. Dec. 18, 2023),* adopted, 2024 U.S. Dist. LEXIS 12471 (W.D. La. Jan. 23, 2024).*
The 64-page DEA Task Force Officer’s affidavit for warrant showed probable cause. United States v. Marshall, 2024 U.S. Dist. LEXIS 14978 (E.D. Wis. Jan. 29, 2024).*
The warrant affiant’s failure to mention the CI was paid or had convictions wasn’t material to change the outcome of the probable cause determination. With CIs, things like that can be assumed. United States v. Riaski, 2024 U.S. App. LEXIS 1890 (8th Cir. Jan. 29, 2024).
This search warrant in a years’ long wire fraud conspiracy case was not stale. Money launderers also keep records. Nexus was shown because the records sought to show the crime were the type commonly kept at home. United States v. Ohwovoriole, 2024 U.S. Dist. LEXIS 14413 (E.D. Tex. Jan. 5, 2024).*
A parent doesn’t have standing to assert a search and seizure claim of his child. Sinanan v. Children, Youth & Family Division, 2024 U.S. Dist. LEXIS 14480 (E.D. Pa. Jan. 26, 2024).*
The officers’ threat to get a search warrant was not baseless. They had probable cause. Therefore, consent wasn’t coerced. State v. Nipper, 2024 W. Va. LEXIS 16 (Jan. 25, 2024).*
Fast Company: Schools are using surveillance tech to catch students vaping—and doling out harsh punishments (“Sensors marketed as fighting COVID-19 are actually being used to monitor students and then threaten them with suspension—or even criminal charges.”). Is there a reasonable expectation of privacy inside any school anymore, with all the surveillance cameras and equipment?
Posted inSchool searches, Surveillance technology|Comments Off on Fast Company: Schools are using surveillance tech to catch students vaping—and doling out harsh punishments
The emergency aid exception justified the search of defendant’s purse. She was passed out on a convenience store bathroom floor with drug paraphernalia around her. It was reasonable to look in her purse to see what drug it might have been and her name. State v. Dixon, 2024 Kan. App. LEXIS 1 (Jan. 26, 2024).
Four exceptions to the warrant requirement apply here: consent, plain view, exigent circumstances, and inevitable discovery. As to the delay in searching his cell phone: “In United States v. Laist, 702 F.3d 608 (11th Cir. 2012), the Circuit made clear that there is no bright-line rule concerning how long of a delay is unreasonable.” This delay was not unreasonable. United States v. Meyung, 2024 U.S. Dist. LEXIS 13576 (N.D. Ga. Jan. 3, 2024),* adopted, 2024 U.S. Dist. LEXIS 12279 (N.D. Ga. Jan. 24, 2024).*
The state court judge that issued this warrant had probable cause to issue the warrant, so the good faith exception wasn’t an issue. Nexus was also shown. United States v. Williams, 2023 U.S. Dist. LEXIS 233888 (N.D. Ala. Dec. 12, 2023).*
“The first warrant authorized the seizure of ‘mobile cellular phones,’ clearly imparting sufficient particularity to allow the officer to know that petitioner’s phone was to be seized. Where the warrant clearly authorized seizure of the phone, there can be no claim that Corporal Hartman misrepresented its scope.” Defendant’s statement after the search won’t be suppressed because it was otherwise consensual. Brown v. Searls, 2024 W. Va. LEXIS 3 (Jan. 25, 2024).
Failure to file motions, including a motion to suppress, isn’t ineffective assistance of counsel without showing that any of them would be granted. State v. Said, 2024-Ohio-277 (2d Dist. Jan. 26, 2024).*
2254 petitioner’s ineffective assistance of counsel for not challenging a search fails on the merits of the search because he had no standing. Frady v. Warden , Perry Correctional Inst., 2024 U.S. Dist. LEXIS 13419 (D.S.C. Jan. 25, 2024).*
“We conclude the affidavit adequately established probable cause that Ivey’s cell phone would contain evidence of a firearms offense. Officers found the phone in Ivey’s possession while he was located in a vehicle with a gun under his seat. The affiant explained that in his training and experience, offenders often use social media to talk about their crimes and to post images of their activities. Ivey’s own Facebook account displayed a photograph of a firearm posted less than a year before the traffic stop. There was a fair probability that evidence connecting Ivey to a firearms offense would be present in his phone.” Also, “The possibility that Ivey’s phone also contained information unrelated to the criminal investigation did not transform the warrant into an impermissible general warrant.” United States v. Ivey, 2024 U.S. App. LEXIS 1792 (8th Cir. Jan. 26, 2024). [Now anything can lead to a cell phone search? Regretfully, the officer is right. I’ve seen plenty of social media posts and TMs bragging about their guns, money, and drugs in discovery. Or the client’s denial, and then the co-defendant’s social media shows the client with a gun, money, or drugs. “I’ve never touched a gun.” “Let me ask you about this picture of you on [co-def’s] Facebook page.”]
Defendant was a lawful driver of the vehicle of another, so he had standing. The dog alert, however, was lawfully obtained and gave probable cause. United States v. Jiles, 2023 U.S. Dist. LEXIS 233863 (D. Neb. Dec. 29, 2023).*
Stone bars litigating defendant’s Fourth Amendment claim in his 2255. Moreover, he lost on that issue already in a motion to set aside the plea, and that’s binding. Williams v. United States, 2024 U.S. Dist. LEXIS 13124 (D. Me. Jan. 25, 2024).*
Defendant was stopped ostensibly for a traffic violation, and he was handcuffed and the officers literally did nothing to investigate that–they didn’t even ask for his license and registration. Despite the fact Whren says pretext doesn’t matter, that lack of action shows that the officers did not pursue the traffic offense and it became unreasonable. Real time CSLI was used to track him, but the government failed to show how or why. “By failing to provide this information, the Government failed to meet its burden to show that there was no reasonable expectation of privacy specifically in the data it searched.” United States v. Broderick, 2024 U.S. Dist. LEXIS 13710 (N.D. Cal. Jan. 25, 2024).
Defendant’s Franks challenge fails. The parties stipulated that the officer could provide a supplemental affidavit explaining, and he said that what was omitted wasn’t material to anything underlying the probable cause, and the court of appeals agrees. Frankson v. State, 2024 Alas. App. LEXIS 8 (Jan. 24, 2024).*
Officers saw defendant stuffing what apparently were drugs into a bag, and that justified a search incident of the bag. United States v. Davis, 2024 U.S. App. LEXIS 1741 (4th Cir. Jan. 25, 2024).*
Defendant had no reasonable expectation of privacy from images taken on a street light camera where he parked his vehicle. Carpenter just doesn’t apply. Moreover, a store surveillance camera had him there, too. People v. Cartwright, 2024 Cal. App. LEXIS 40 (4th Dist. Jan. 25, 2024).
“At bottom, this evidence established a nexus between the Residence and the crimes under investigation, and neither the lapse of time between controlled purchases, nor the lapse of time between the last controlled purchase and obtaining the search warrant, rendered this nexus stale.” Even if not, the good faith exception applies. United States v. Gillard, 2024 U.S. Dist. LEXIS 12324 (E.D. Pa. Jan. 24, 2024).*
Testimony three times that defendant insisted on a search warrant was harmless error if anything. “In this case, although the State referred to the Defendant’s insistence upon a search warrant on three occasions, it did not try to convince the jury to attribute any particular significance to the statement. More importantly, the State’s proof of the Defendant’s guilt was overwhelming.” State v. Sullivan, 2024 Tenn. Crim. App. LEXIS 20 (Jan. 24, 2024).*
Nexus doesn’t require positive evidence defendant has drugs at home; an inference suffices. United States v. Green, 2024 U.S. App. LEXIS 1737 (3d Cir. Jan. 25, 2024).
“Kirik’s particularity challenges are unavailing. With respect to Kirik’s challenge to the articulation of items to be seized, ‘[a] warrant only needs to be specific enough to permit the executing officer to exercise reasonable, rational, and informed discretion and judgment in selecting what should be seized.’” This is not an overbroad general warrant. United States v. Kirik, 2023 U.S. Dist. LEXIS 233693 (W.D.N.Y. Dec. 5, 2023),* adopted, 2024 U.S. Dist. LEXIS 11042 (W.D.N.Y. Jan. 22, 2024).*
Defendant had no reasonable expectation of privacy in a water cooler covered with brush in an open field. United States v. Pineda, 2024 U.S. Dist. LEXIS 12336 (D. Minn. Jan. 24, 2024),* adopting 2023 U.S. Dist. LEXIS 233919 (D. Minn. Dec. 4, 2023).*
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Finding short term CSLI obtained by a cell phone tower dump also protected by the Fourth Amendment, the court holds, disagreeing with other courts, that a warrant was required, but the good faith exception applies. An long, interesting opinion. “The ‘basic purpose of [the Fourth] Amendment’ is to ‘safeguard the privacy and security of individuals against arbitrary invasions by government officials.’ Carpenter, 138 S. Ct. at 2213 (citation omitted). People quite reasonably assume that the Government should not be able to use your cell phone to spy on you. Here, the Government engaged in mass surveillance of an entire population for over four hours. This was a violation of the Fourth Amendment. [¶] The Court finds that Defendants have a reasonable expectation of privacy in their short-term CSLI, and thus a warrant was required for the Tower Dump Order.” United States v. Medina, 2024 U.S. Dist. LEXIS 13031 (D.R.I. Jan. 23, 2024).
When a search warrant was signed is not an innocence issue for a successor habeas petition. In re Herrera, 2024 U.S. App. LEXIS 1678 (5th Cir. Jan. 24, 2024).*
The USPO got consent from defendant to open a closet door during a home check, and there was reasonable suspicion for the search. Also, protective sweep is rejected. United States v. Rivera-Pitre, 2024 U.S. Dist. LEXIS 12207 (D.P.R. Jan. 18, 2024).*
Posted inUncategorized|Comments Off on MSNBC: Opinion: A hospitalized baby, a terrified mother: A botched police raid in Ohio is the tip of the iceberg
The Delaware DOJ sought records in an administrative proceeding against the defendant, and the defendant claimed the subpoena violated the Fourth Amendment and attempted to remove the whole case to federal court because that was a federal defense. This is not remotely removable, and the plaintiff’s petition to remand and for attorneys fees is granted. The parties are to confer on reasonableness. Delaware ex rel. Jennings v. Cabela’s Inc., 2024 U.S. Dist. LEXIS 12451 (D. Del. Jan. 24, 2024).
A police officer’s statement “Hey, come here a minute,” while nominally couched in the form of a demand, is actually a request that a citizen is free to regard or to disregard. Defendant was asked for consent to search for “weapons or contraband” and that included his pockets. State v. Wells, 2024-Ohio-236 (5th Dist. Jan. 24, 2024).*
Defendant’s wife had common control over a hidden camera and its memory card in a digital clock used for video voyeurism to give it to the police. Kobielusz v. State, 2024 WY 10, 2024 Wyo. LEXIS 10 (Jan. 24, 2024).*
Posted inAdministrative search, Apparent authority, Consent, Seizure|Comments Off on D.Del.: Claiming a state administrative subpoena creates a “Fourth Amendment defense” is frivolous; removal denied, attorneys fees imposed
Caller’s “cries of ‘please help me, don’t hurt me’ could lead an officer to infer that an assault is taking place.” That was reasonable suspicion. State v. Sinclair, 2024 Iowa App. LEXIS 74 (Ct. App. Jan. 24, 2024).
“Cordova argues the warrant may be predicated on false or misleading information. But he tenders no evidence to support this claim. At this point, Cordova’s questions regarding the veracity of the information supporting the warrant are pure speculation. His unsubstantiated assertions do not undermine the validity of the warrant, nor do such claims entitle him to discovery. He must make a threshold showing of falsehood before the factual predicate of the agents’ affidavit may be challenged.” Motion to suppress denied. United States v. Cordova, 2024 U.S. Dist. LEXIS 12024 (D.N.M. Jan. 23, 2024).* Similar and from the same USDJ the same day is United States v. Boyce, 2024 U.S. Dist. LEXIS 12020 (D.N.M. Jan. 23, 2024).*
The dashcam and bodycam videos support the conclusion there was reasonable suspicion. United States v. Reed, 2024 U.S. App. LEXIS 1550 (6th Cir. Jan. 22, 2024).*
Posted inFranks doctrine, Reasonable suspicion|Comments Off on IA: RS: “cries of ‘please help me, don’t hurt me’ could lead an officer to infer that an assault is taking place”
“Villarreal fails to satisfy her burden on either [qualified immunity] prong. This is not a case about a ‘citizen journalist just asking questions.’ That clever but misleading phrase cannot relieve this court of our obligation to evaluate Villarreal’s conduct against the standards of Texas law. Villarreal was arrested on the defendants’ reasonable belief, confirmed by a neutral magistrate, that probable cause existed based on her conduct in violation of a Texas criminal statute that had not been declared unconstitutional. We need not speculate whether section 39.06(c) allegedly violates the First Amendment as applied to citizen journalists who solicit and receive nonpublic information through unofficial channels. No controlling precedent gave the defendants fair notice that their conduct, or this statute, violates the Constitution facially or as applied to Villarreal. Each defendant is entitled to qualified immunity from suit.” Villarreal v. City of Laredo, 2024 U.S. App. LEXIS 1533 (5th Cir. Jan. 23, 2024) (en banc, 9-7).
Officers had probable cause to arrest plaintiff as a shoplifter outside a store in Manhattan where he “indisputably” matched the description given by the shopkeeper. Harry v. City of N.Y., 2024 U.S. App. LEXIS 1618 (2d Cir. Jan. 24, 2024).*
Officers had an arrest warrant for plaintiff, and that gave them the ability to enter his home to look for him under Payton when they had a reasonable belief he was inside. United States v. Johnson, 2024 U.S. App. LEXIS 1617 (2d Cir. Jan. 24, 2024).
Successor habeas petition based on grounds already known that do not show actual innocence is denied. Davis v. Neal, 2024 U.S. App. LEXIS 1538 (7th Cir. Jan. 23, 2024).*
Probable cause was shown enough: “Here, the affidavit does not lack for veracity, reliability, or basis of knowledge—most of the facts derive from investigations of specific robberies by named police officers and interviews with victim witnesses. This is not a situation involving anonymous sources of unknown reliability or veracity. Some of the statements are conclusory; others are based on verifiable facts. It cannot be said that the affidavit contains ‘only’ the affiant’s ‘belief’ that probable cause existed, or that it is ‘nothing more than a guess … completely devoid of facts … or so vague as to be conclusory or meaningless.’ [¶] Reading the warrant in ‘a practical, common sense manner,’ … and keeping in mind that ‘legal principles do not operate in a vacuum but instead only with reference to particular facts,’ …, the Court concludes that the affidavit provides ‘some connection’ between the criminal activity it describes and Wright’s unit, such that reasonable officers would not know to second-guess the issuing judge’s decision to authorize the warrant.” United States v. Wright, 2024 U.S. Dist. LEXIS 10935 (E.D. Mich. Jan. 22, 2024).*
CNN: Amazon’s Ring to shutter video-sharing program popular with police by Brian Fung [“shutter” isn’t quite correct, is it?:] (“ Amazon’s Ring will no longer let police and other government agencies request doorbell camera footage from within the company’s Neighbors app, in what privacy advocates are hailing as a long-awaited victory for civil liberties. [¶] Authorities seeking Ring surveillance videos must now submit a formal legal request to the company, rather than soliciting footage directly from users through the app, Ring said in a blog post Wednesday.”). Giving access by legal process is hardly “shuttering” Ring.
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The “moment of threat” doctrine of excessive force cases in this circuit seems contrary to Tennessee v. Garner, and it should be revisited by the whole court. Barnes v. Felix, 2024 U.S. App. LEXIS 1530 (5th Cir. Jan. 23, 2024):
Posted inExcessive force|Comments Off on CA5: This circuit’s “moment of threat” doctrine for excessive force should be re-examined as contrary to Garner
"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.
