Defendant was arrested two days after a shooting. A search warrant was obtained for his cell phone. He resisted because there was no allegation he had the phone on him at the time of the shooting. Essentially, people always have their cell phones on them, and that’s nexus enough. “Against this backdrop, this court finds that it was unnecessary for Detective Santiago to allege that defendant was holding or using his cell phone at the time of the crime, as a court of coordinate jurisdiction has also observed (see People v Williams, 79 Misc 3d 809, 817, 188 N.Y.S.3d 417 [Sup Ct Albany Co 2023] [notion that people always carry their cell phones sufficient to show nexus between suspect and cell phone], citing Carpenter, 138 S Ct 2206; Riley, 573 U.S. 373).” People v. Gaynor, 2023 NY Slip Op 23395, 2023 N.Y. Misc. LEXIS 23096 (Kings Co. Dec. 18, 2023).
Defendant knew why he’d been detained (admitting “for talking to a minor”) and he wasn’t handcuffed. He consented to a search of his phone and social media accounts. At the suppression hearing over his Miranda waiver, he disclaimed the search suppression issue for the time being. The same factors apply, and the court concludes he consented. United States v. Velazquez-Perez, 2023 U.S. Dist. LEXIS 224026 (D.P.R. Dec. 15, 2023).*
Defendant’s motion to reconsider his suppression motion in the fifth day of trial is denied. The testimony is pretty much the same as the suppression hearing, and this isn’t the proper way to do it. United States v. Hernandez, 2023 U.S. Dist. LEXIS 224114 (S.D. Fla. Dec. 17, 2023).*
Posted inCell phones, Consent, Nexus|Comments Off on NY Kings Co.: The logic that people always have their cell phones on them is enough for nexus to get this SW
Defendant was arrested on a warrant. At the first appearance there was no determination of probable cause for the arrest, so state law required that he be ORed. The $10,000 bond is set aside. State v. Nelson, 2023 La. App. LEXIS 2160 (La. App. 4 Cir Dec. 18, 2023).
2254 petitioner had a full and fair opportunity to litigate his search issue which ended up in a state Anders brief and silent affirmance which is presumed a determination on the merits. Schulze v. Sec’y, Dep’t of Corr., 2023 U.S. Dist. LEXIS 223344 (M.D. Fla. Dec. 15, 2023).*
The bulge in defendant’s waistband, his evasiveness, and then his flight was all reasonable suspicion for a Terry stop. He wasn’t actually stopped until he was taken down. Hawkins v. State, 2023 Md. App. LEXIS 856 (Dec. 14, 2023).*
Reason: This Innocent Woman Is on the Hook for Thousands After a SWAT Team Destroyed Her Home by Billy Binion (“In June of 2022, law enforcement arrived at a modest home on East Calvert Street in South Bend, Indiana. They threw dozens of tear gas grenades into the house, launched flash-bangs through the front door, smashed windows, destroyed the security cameras, punched holes in the walls, ripped a panel and fan from the bathroom wall and ceiling, ransacked and tossed furniture, snatched curtains down, and broke a mirror and various storage containers. The tear gas bombs left openings in the walls, floors, and ceiling. Shattered glass lay strewn across the interior, and a litany of personal belongings—from clothing, beds, and electronics to childhood drawings and family photos—were ruined.”). This is not the first time this has happened to an innocent person, and it won’t be the last. It happened to a friend of mine where the local police did $250,000 damage to her house over a five-hour siege to get her suicidal son to surrender. It turned out he shot himself to death before the first tear gas round came in. Insurance is paying, but they were out of the house for over a year.
Posted inReasonableness, Warrant execution|Comments Off on Reason: This Innocent Woman Is on the Hook for Thousands After a SWAT Team Destroyed Her Home
Bloomberg Law: Google’s Location Data Move Will Reshape Geofence Warrant Use by Skye Whitley (“There are at least three cases seeking to suppress geofence-based evidence before federal appellate courts in the Fourth, Fifth, and District of Columbia circuits. Dozens more are percolating in the federal district courts, even as the likelihood of future geofencing cases dwindles after Google’s change takes effect, said Michael Price, the litigation director at the National Association of Criminal Defense Lawyers’ Fourth Amendment Center. A key point of contention in litigation has been whether an individual’s location history is their private data or Google’s business records. Google’s decision indicates the former is true, he added. ‘I would encourage anybody litigating one of these cases to make use of it because I think it really does put that question to bed of whose data is it and is it private,’ Price said.”)
Posted ingeofence|Comments Off on Bloomberg Law: Google’s Location Data Move Will Reshape Geofence Warrant Use
Defendant was a passenger in a car, and the police ordered the occupants out. She left her purse inside, and another male passenger consented to search of the interior. His consent did not include her purse. The state’s argument she abandoned her purse by getting out of the car without it is rejected. State v. O’Connor, 2023 Mo. App. LEXIS 955 (Dec. 19, 2023).
There was probable cause for this child exploitation search warrant based on the investigation bolstered to some extent by defendant’s jail calls. United States v. Chacon-Gonzales, 2023 U.S. Dist. LEXIS 225000 (D.N.M. Dec. 18, 2023).*
Defendant’s parking coming out from behind a chiropractor’s officer and stopping in front at 1:30 am, in a high crime area, opening the hood and making like they were pouring something was reasonable suspicion for the encounter. United States v. Perkins, 2023 U.S. Dist. LEXIS 224688 (N.D. Ala. Dec. 18, 2023).*
Officers procured multiple warrants for defendant’s apartment, a cooler, and another vehicle, but never his car. Then they saw a gun in the car and decided to inventory. The government also claimed probable cause and a valid reason for seizure, but the court didn’t buy it. Their “post hoc” claim of probable cause failed because there wasn’t to begin with. United States v. Johnson, 2023 U.S. Dist. LEXIS 224378 (E.D. La. Dec. 18, 2023):
Posted inForfeiture, Inventory|Comments Off on E.D.La.: Seizure of car for inventory on seeing gun was without PC; “post hoc” claim of PC falls on deaf ears because they never acted like there was
Kansas City Star: Kansas police searched their car without a warrant, and they lost custody of their son by Katie Moore & Katie Bernard (“It’s been more than two years since Claudia Astudillo Aguirre lost custody of her child. [¶] Garden City Police searched her family’s car without their consent, resulting in criminal charges that were later dropped. But she’s still grappling with the fallout from the search after the loss of precious years with her infant son, who remains in the foster care system. [¶] Her experience represents what many attorneys say is the most common form of Fourth Amendment rights violations – the warrantless vehicle search.”)
The question is whether there was probable cause. Period. Not a warrant. Moreover, the arrest of an innocent person is not a due process or Fourth Amendment violation. Baker v. McCollan, 443 U.S. 137, 145 (1979) (“Respondent’s innocence of the charge contained in the warrant, while relevant to a tort claim of false imprisonment in most if not all jurisdictions, is largely irrelevant to his claim of deprivation of liberty without due process of law. The Constitution does not guarantee that only the guilty will be arrested.”).
Posted inArrest or entry on arrest|Comments Off on Kansas City Star: Kansas police searched their car without a warrant, and they lost custody of their son
The use of surveillance cameras viewing the toilet areas of the Cook County Courthouse lockups are, on balance of the interests involved, reasonable. Alicea v. Cty. of Cook, 2023 U.S. App. LEXIS 33401 (7th Cir. Dec. 18, 2023):
Posted inUncategorized|Comments Off on ProPublica: Body Cameras Were Sold as a Tool of Police Reform. Ten Years Later, Most of the Footage Is Kept From Public View.
A Franks violation from cut-and-paste of another cell phone search affidavit resulted in serious factual errors in this one. Coupled with the government’s late disclosure of the phone’s contents despite a date certain trial, the court concludes the exclusionary rule should be applied. United States v. Brown, 2023 U.S. Dist. LEXIS 224158 (M.D. Pa. Dec. 15, 2023):
Posted inCell phones, Franks doctrine|Comments Off on M.D.Pa.: Cut-and-paste errors and delay in execution and discovery results in suppression of cell phone
Pinging defendant’s cell phone to try to find him after he had shot three people seven hours apart was with exigent circumstances. This is already settled in this state. State v. Smith, 2023-Ohio-4565, 2023 Ohio App. LEXIS 4389 (2d Dist. Dec. 15, 2023).*
Defendant was stopped for erratic driving. Once stopped, other indicia of being under the influence were apparent. The arrest for DUI was with probable cause. State v. Woolard, 2023 N.C. LEXIS 941 (Dec. 15, 2023).*
When the search for drugs was four days after arrest: “Merritt does not deny that it was her residence, her truck, her purse, or her makeup bag in which the methamphetamine was found. Her only argument appears to be that because the shed was possibly unlocked and the passenger door of her truck was possibly open for the four days between her arrest and the execution of the search warrant, the jury necessarily had to speculate to conclude that she possessed the methamphetamine.” It’s not speculation. Merritt v. State, 2023 Ark. App. 575, 2023 Ark. App. LEXIS 632 (Dec. 14, 2023).*
2255 petitioner gets an evidentiary hearing on his motion to withdraw his guilty plea after he discovered the affiant, who he’d previously complained to all was a “dirty cop,” actually lied on the search warrant affidavit back in 2015. At serious issue was the fact the government argued two versions of the “truth” in the case. “But, there cannot be two sides to the truth. The truth is the truth. Nonetheless, in this case the Government proffers two versions.” The cop was prosecuted, too, and the government argued his misconduct potentially affected 1700 convictions. Discovery and evidentiary hearing granted. United States v. Paylor, 2023 U.S. App. LEXIS 33243 (4th Cir. Dec. 15, 2023). (Apparently the USAO involved has no shame? They should have resolved this case without an appeal to avoid this outcome, but they did not. Outrageous.)
Posted inDue process, Franks doctrine|Comments Off on CA4: 2255 pet’r gets discovery and evidentiary hearing on “dirty cop” the govt both embraced and disavowed at its convenience
Defendant was unlawfully arrested for failing to produce an ID. While Michigan retains the common law right to resist an unlawful arrest, defendant’s biting and kicking was found reasonable. People v. Murawski, 2023 Mich. App. LEXIS 9151 (Oct. 26, 2023) (per curiam).
The charge is a driving death on tribal lands. Defendant’s medical records support that, despite his head injury from the accident, he was alert and responding to the doctors. Therefore, his consent to talking to them was not coerced or involuntary. United States v. Whipple, 2023 U.S. Dist. LEXIS 222749 (D.S.D. Dec. 12, 2023).*
Plaintiff went on a drinking binge, shot a hole in his ceiling, and then called 911 threatening suicide. Police showed up and he said he had seven guns, and he threatened to use them. He came out with a long gun and raised it toward officers, getting shot twice. The officers get qualified immunity. Maser v. City of Coralville, 2023 U.S. Dist. LEXIS 222969 (S.D. Iowa Nov. 2, 2023),* appeal filed Dec. 4, 2023) (No. 23-3637).
Posted inCommon law, Consent, Qualified immunity|Comments Off on MI: Biting and kicking were reasonable responses to an unlawful arrest that can be resisted at common law
Defendant here actually showed that the affidavit for search warrant was completely lacking in even an inference that defendant might have stolen property on his property. He was located nearby the primary offender, and his criminal history said nothing about the crime under investigation as to similarity of offenses. [The affidavit reads like it was all speculation.] Mentioned is the fact only the issuing magistrate found probable cause. The one the motion to suppress was referred to didn’t, and neither did the USDJ. (So no PC on a 2-1 vote, assuming the affidavit was actually scrutinized or the USMJ just signed off like some of them always do.) Truly bare bones. United States v. Ralston, 2023 U.S. App. LEXIS 33027 (8th Cir. Dec. 14, 2023).
Defendant is indicted for money laundering, and the search warrant for his cell phone is limited in the offense subject to the search. “Contrary to Kim’s argument, this conclusion does not require endorsement of a categorical rule that there is always probable cause to search a purported drug trafficker’s home in drug trafficking cases. Nor is this a case where the only basis for probable cause is an agent’s opinion. Rather, the culmination of Kim’s meetings to hand off large amounts of cash; agents’ observations of Kim leaving his residence with what they reasonably suspected was another bag of cash; and Agent Rivera’s experience-informed opinion that evidence would be found in Kim’s apartment–all against the backdrop of a monthslong investigation into money laundering networks associated with drug trafficking–supplies enough to make a ‘practical, common-sense determination that there is a fair probability that contraband or evidence of a crime’ would be found in the apartment.” United States v. Joon Kim, 2023 U.S. Dist. LEXIS 222672 (N.D. Ill. Dec. 14, 2023).*
Because defendant’s stop at a checkpoint was already with reasonable suspicion, the court does not have to decide on the constitutionality of the roadblock [that appears to have caused it]. State v. Alvarez, 2023 N.C. LEXIS 940 (Dec. 15, 2023). The court’s problem here is that defendant’s bad driving occurred as he was stopping for the checkpoint. The trial court found the checkpoint violated the Fourth Amendment. The court of appeals affirmed in July 2021. “The trial court did not address whether the officers had independent reasonable suspicion to stop defendant, despite having heard arguments on independent reasonable suspicion.” SCOTUS will never take this despite the “fruit of the poisonous tree.”
The protective sweep of plaintiff’s property was reasonable because a serious crime involving him was just reported, and he was nowhere to be found. Russell v. Comstock, 2023 U.S. Dist. LEXIS 222544 (E.D. Wis. Dec. 14, 2023).*
The court finds the search warrant was based on an unsupported CI and had old information. The good faith exception, however, is not briefed. Briefs due in mid-January. United States v. Price, 2023 U.S. Dist. LEXIS 222649 (N.D. Ind. Dec. 14, 2023).*
Defendant didn’t have to show an investigative pretext for the impoundment of his vehicle and the finding of the machine gun. He prevails on the Tenth Circuit’s Sanders standard. “United States v. Sanders, 796 F.3d 1241, 1243 (10th Cir. 2015) (holding that to be valid under the community-caretaking doctrine, an impoundment must be both consistent with standardized policy and supported by a valid community-caretaking rationale)”: “(1) whether the vehicle is on public or private property; (2) if on private property, whether the property owner has been consulted; (3) whether an alternative to impoundment exists (especially another person capable of driving the vehicle); (4) whether the vehicle is implicated in a crime; and (5) whether the vehicle’s owner and/or driver have consented to the impoundment.” All these factors favor defendant, and the order denying suppression is reversed. United States v. Ramos, 2023 U.S. App. LEXIS 33173 (10th Cir. Dec. 15, 2023). [Caution: Few circuits or states have this rigorous a standard for inventory. Don’t be surprised if the Solicitor General petitions for cert for a uniform standard.]
There was no nexus shown between one of defendant’s cell phones and communication with others of interest on Snapchat, so the search warrant was not based on probable cause. The good faith exception, however, saves it because it was reasonable to believe the phone was used to set up drug transactions. United States v. Simpson, 2023 U.S. Dist. LEXIS 222785 (E.D. Ky. Nov. 20, 2023),* adopted, 2023 U.S. Dist. LEXIS 221723 (E.D. Ky. Dec. 13, 2023).*
Posted inGood faith exception, Inventory|Comments Off on CA10: Inventory fails circuit’s standards, and seizure of machine gun reversed
Rental of storage unit in one of defendant’s known aliases gave him standing. United States v. Eberhart, 2023 U.S. Dist. LEXIS 222575 (D. Haw. Dec. 14, 2023).
Defendant’s Franks challenge fails for lack of the proffer of good reason. Aside from that, the remainder at least satisfies the good faith exception. United States v. D’Luna-Mendez, 2023 U.S. Dist. LEXIS 222519 (W.D. Tex. Dec. 13, 2023).*
“Accordingly, the undersigned finds that Defendant has not made the required substantial showing of an intentional or reckless falsehood or disregard for the truth on behalf of the affiant and the investigating law enforcement officers. Therefore, Defendant is not entitled to relief under Franks, and the Court need not excise the alleged false statements and omissions to evaluate probable cause.” The affidavit also is valid under the good faith exception. United States v. D’Luna-Mendez, 2023 U.S. Dist. LEXIS 222519 (W.D. Tex. Dec. 13, 2023).*
Defendant lacked standing in a package shipped under and to assumed names, neither of which could be linked to him as a known alias. State v. Herbert, 2023-Ohio-4490, 2023 Ohio App. LEXIS 4311 (7th Dist. Dec. 11, 2023).
“We think that under the circumstances presented to Amos, a reasonable individual would have understood that the officers were exercising control and showing authority. No reasonable person who is commanded to stop and show their hands in the middle of the night by uniformed officers with a marked police car would feel free to ignore the command and walk away.” United States v. Amos, 2023 U.S. App. LEXIS 33058 (3d Cir. Dec. 14, 2023).*
Defendant’s guilty plea was waiver of the search claim. Aside from that, there was no hearing and no ruling to appeal. People v. Dunbar, 2023 NY Slip Op 06448, 2023 N.Y. App. Div. LEXIS 6503 (1st Dept. Dec. 14, 2023).*
Defendant’s being in his home when he received a call from the CI for a controlled buy and then his driving to the buy and back was sufficient nexus. United States v. Badley, 2023 U.S. App. LEXIS 33031 (6th Cir. Dec. 12, 2023).
Defendant’s search incident to arrest for an only citable offense under California law doesn’t control the Fourth Amendment analysis. Virginia v. Moore. This search incident was valid. United States v. Estrella, 2023 U.S. App. LEXIS 33048 (9th Cir. Dec. 14, 2023).*
“Gross alleges that Cairo ‘suddenly’ and ‘violently’ struck her in her ‘visibly pregnant’ stomach while she was moving toward her neighbor’s doorway to conduct a welfare check. … The blow was targeted at a discernibly vulnerable part of Gross’s body and was powerful enough to cause immediate pain and placental hemorrhaging. These facts are sufficient to demonstrate an objective intent to restrain Gross’s movement. See Torres, 141 S. Ct. at 998 ….” The officer was on notice that striking an unarmed person could be excessive, without there being a case with a pregnant victim. Gross v. Cairo, 2023 U.S. App. LEXIS 33055 (3d Cir. Dec. 14, 2023).*
Defendant’s condition (“Baltes had observed Betts’s symptoms of drug use: rotting teeth, quick speaking, profuse sweating, and rapid, shallow breathing.”), a torch lighter, and unusual travel plans added up to reasonable suspicion to extend the stop. United States v. Betts, 2023 U.S. App. LEXIS 33029 (8th Cir. Dec. 14, 2023).
The charge is DUI accident on Indian lands. A search warrant was obtained for defendant’s BAC. The accident alone wasn’t enough probable cause for the blood test, but the good faith exception carries the search anyway. Denied. United States v. Vineyard, 2023 U.S. Dist. LEXIS 221682 (E.D. Okla. Dec. 13, 2023).*
The good faith exception applies to the search warrant for one cell phone. It was kinda bare bones but not completely. Defendant lacks standing as to the other. United States v. Simpson, 2023 U.S. Dist. LEXIS 221723 (E.D. Ky. Dec. 13, 2023).*
Posted inGood faith exception, Reasonable suspicion|Comments Off on CA8: Def’s condition (“rotting teeth, quick speaking, profuse sweating, and rapid, shallow breathing”) plus odd travel plans was RS
"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.
