Defendant doesn’t get to see the affidavit for warrant yet just for his bail application because the government asserts the investigation is still ongoing. Discovery of child pornography was inadvertent, and the bail application isn’t a discovery device. The question is whether he is a danger to the community or would flee, and child porn defendants get released all the time. In re Search Warrant Dated October 4, 2023, 2023 U.S. Dist. LEXIS 196629 (S.D.N.Y. Nov. 1, 2023).
Defendant’s probation search conditions explicitly included his electronic devices, and the search here was with reasonable suspicion. United States v. Lajeunesse, 2023 U.S. App. LEXIS 28975 (2d Cir. Nov. 1, 2023).*
Defendant was legitimately detained as a visitor on the premises under Michigan v. Summers when the search warrant was being served, and then he consented to search of his vehicle. United States v. Hernandez, 2023 U.S. Dist. LEXIS 196172 (S.D. Fla. Oct. 17, 2023).*
Posted inComputer and cloud searches, Overbreadth|Comments Off on techdirt: Court Rejects Extremely Broad Google Search Warrant, Citing Both Carpenter And Riley
The search warrant here was for delta-8,9,10-THC but 8 and 10 are not controlled substances. Lacking probable cause for them, the search target is entitled to return of its property. Elements Distribution v. State, 2023 Ga. App. LEXIS 535 (Nov. 2, 2023).
Defendant was met with drawn weapons and officers shouting profanities when he opened his door. His actual consent, however, was separated from that after things calmed down. United States v. McGhee, 2023 U.S. Dist. LEXIS 194988 (N.D. Ala. Sep. 27, 2023).*
Defendant didn’t show standing in the place searched that was lived in by someone else. He also effectively abandoned the argument by not challenging the R&R. United States v. Davis, 2023 U.S. Dist. LEXIS 195179 (E.D. Tenn. Oct. 31, 2023).*
The Mine Safety and Health Administration sought an inspection of the respondent goldmine based on safety complaints it had received. The Fourth Amendment does not require an administrative warrant for an inspection. “Regulatory inspections pursuant to the Mine Act are legal.” Su v. Alaska Goldmine LLC, 2023 U.S. Dist. LEXIS 196475 (D. Alaska Nov. 1, 2023).
Petitioner’s 2254 fails because the state court ruled against him on the merits of the search in the state post-conviction proceeding. “Because Petitioner’s underlying Fourth Amendment claim lacks merit, his ineffective assistance claim premised upon counsel’s failure to move to suppress the CSLI evidence and subsequent arrest necessarily fails.” Moore v. Howard, 2023 U.S. Dist. LEXIS 194822 (W.D. Mich. Oct. 31, 2023).*
The state argued there was reasonable suspicion for defendant’s stop regardless of the constitutionality of the DWI roadblock the police set up. On appeal, it’s apparent that they didn’t until the stop occurred. Suppression affirmed. State v. Varela-Coronado, 2023 N.M. App. LEXIS 87 (Oct. 30, 2023).*
“[T]here is no constitutional right to be free from arrest on the basis of illegally obtained evidence.” Santiago v. Swain, 2023 U.S. Dist. LEXIS 194607 (M.D. Fla. Oct. 31, 2023).*
Plaintiff’s civil Franks claim fails because there was probable cause even without the challenged statements. Land v. Sheriff of Jackson Cty. Fla., 2023 U.S. App. LEXIS 28835 (11th Cir. Oct. 31, 2023).*
The horizontal and vertical collective knowledge of 20 officers formed the probable cause here. United States v. Lozano, 2023 U.S. Dist. LEXIS 194661 (D. Me. Oct. 31, 2023).*
Defendant’s guilty plea barred his collateral attack on the legality of his probation search. United States v. Taylor, 2023 U.S. Dist. LEXIS 194664 (S.D.N.Y. Oct. 30, 2023).*
Consent to search granted by a non-English speaking suspect via Google Translate app was not properly preserved for appeal as to the accuracy of the translation. “While Hernandez’ counsel objected to the admission of the evidence obtained from the search of the vehicle on Fourth Amendment grounds, no objections were made at trial during any of the testimony concerning the Google Translate translations. Without any objection made during this testimony—particularly an objection that attacked the translation’s foundational reliability—the issue was not preserved for appeal. Accordingly, this argument fails.” State v. Cisneros, 32 Neb. App. 354 (Oct. 31, 2023).
It was objectively reasonable for the officer to stop defendant here for a wide turn despite there might be a subjective motive for it. United States v. Thomas, 2023 U.S. Dist. LEXIS 194540 (D.S.D. Oct. 27, 2023).*
Defendant’s claim defense counsel was ineffective for not investigating a motion to suppress was waived by his guilty plea. Even so, he doesn’t even show how he would have prevailed if it had been pursued. Dzuy Tran v. State, 2023 Miss. App. LEXIS 433 (Oct. 31, 2023).*
“We view the totality of the circumstances at the time Deputy Ruiz seized Defendant through the lens of the district court’s factual finding that the suspect did not hide, as our standard of review requires. Based on the passage of thirty-seven to forty minutes and the location of the stop—just one mile from the alleged stabbing—in combination with Deputy Ruiz’s testimony that (1) he did not know whether the model of Defendant’s car was an Accord or a Civic, (2) he did not know whether Defendant’s car had damage to the front fender corresponding with the BOLO description, and (3) his department was ‘stopping anything that looked similar to a grey Honda’ within the area, we conclude that it was not objectively reasonable for Deputy Ruiz to stop Defendant’s car.” State v. Espinoza, 2023 N.M. LEXIS 237 (Oct. 30, 2023).
The court observes that Fourth Amendment “corners were cut,” but the whole process was still reasonable on the totality. United States v. Ferguson, 2023 U.S. Dist. LEXIS 194016 (N.D. Ill. Oct. 30, 2023).*
Defendant’s failure to present his specific issue in the motion to suppress to the trial court is waiver. State v. Funk, 2023 Tenn. Crim. App. LEXIS 436 (Oct. 30, 2023).*
Posted inReasonable suspicion, Reasonableness, Waiver|Comments Off on NM: Too vague a description wasn’t RS for this stop, one mile from crime scene, 37-40 minutes later, vague description of car
The government executed a search warrant for emails on defendant’s computer. The searching officers have no duty to seize exculpatory information when they execute the warrant. “All Brady requires is that if the prosecution seized those emails, it turn over any exculpatory content within them to the defense. Brady does not require the prosecution to have a good reason for not possessing exculpatory content; it simply asks whether the prosecution in fact possessed it or not.” United States v. Crump, 2023 U.S. Dist. LEXIS 193514 (D. Minn. Oct. 27, 2023).
The car’s occupants’ failure to identify themselves led to the delay. Seven minutes into the stop, an open bottle of tequila was seen in the back seat. Extension of the stop wasn’t unreasonable. Villamares v. State, 2023 Tex. App. LEXIS 8217 (Tex. App. – Amarillo Oct. 30, 2023).*
The Fourth Amendment does not specifically require a “Rodriguez moment,” but here there was one, when the rental contract was returned and the warning ticket should have been started. The reasonable suspicion threshold is “not onerous.” “In this court’s view, by quite a narrow margin, the government has met its burden.” United States v. Robbins, 2023 U.S. Dist. LEXIS 193952 (E.D. Okla. Oct. 30, 2023).*
Posted inReasonable suspicion, Warrant execution|Comments Off on D.Minn.: There is no duty under Brady for officers executing a SW to seize exculpatory evidence, too
NYT: Cars Seized by Police Get Supreme Court Scrutiny in Civil Forfeiture Case by Adam Liptak (“Several justices seemed wary of allowing law enforcement officials to take vehicles used to commit crimes when their owners were not at fault.”) This is a due process case, not a Fourth Amendment case. But maybe a Fourth Amendment due process case?
Posted inForfeiture|Comments Off on NYT: Cars Seized by Police Get Supreme Court Scrutiny in Civil Forfeiture Case
techdirt: Don’t Want To Be Part Of A Geofence Warrant Line-Up? You Have Options. by Tim Cushing (“Shira Ovide’s article for the Washington Post first details everything that’s extremely questionable about law enforcement’s reliance on geofence warrants. In a typical search warrant, police have a suspect in mind and ask for a judge’s approval to search their home, phone data and other potential evidence. Legal experts are generally fine with those targeted warrants to Google. In the large-scale search term and location warrants, police know a crime occurred but don’t know who might have committed it. They come up with what could be potential evidence — the location near a crime or a search term like ‘pipe bomb’ — and ask a judge to order Google to provide information on people who match those criteria. ‘That’s not the way criminal investigations are supposed to go,’ said Jumana Musa, director of the Fourth Amendment Center of the National Association of Criminal Defense Lawyers. That’s correct. Warrants are supposed to be particular (in the legal sense of the word) and supported by probable cause the search will turn up evidence of criminal activity.”)
Posted ingeofence|Comments Off on techdirt: Don’t Want To Be Part Of A Geofence Warrant Line-Up? You Have Options.
Defendant drove his vehicle to multiple controlled buys. The vehicle was usually parked at his home. That’s nexus. United States v. Brooks, 2023 U.S. Dist. LEXIS 193635 (N.D. Ohio Oct. 30, 2023).
This child pornography affidavit for search warrant didn’t include copies of the images, but the description of the sex acts show it was not mere nudity and it showed probable cause. United States v. Baxter, 2023 U.S. Dist. LEXIS 193925 (D. Mass. Oct. 30, 2023).*
Defendant’s stop for speeding was justified, but officers also had plenty of probable cause he was involved in drug dealing. United States v. Alkayisi, 2023 U.S. Dist. LEXIS 193922 (D. Mass. Oct. 30, 2023).*
Posted inNexus, Probable cause|Comments Off on N.D.Ohio: Nexus shown by car involved in controlled buys parked at def’s house
“We consider in this appeal whether a judge who participates in the search of a litigant’s home is entitled to judicial immunity for actions related to the search. Judge Louise Goldston went to Matthew Gibson’s residence to look for items he had failed to turn over to his ex-wife after their divorce. She entered his home over his objections after threatening him with arrest should he try to stop her. She then supervised the seizure of designated items in the house. The only question before us is whether judicial immunity shields these acts. We hold it does not. Judicial immunity protects only judicial acts. It does not shield the conduct of judges who step outside their judicial role, as Judge Goldston did when searching Gibson’s home.” The judge was also barefoot during part of the search. Gibson v. Goldston, 2023 U.S. App. LEXIS 28744 (4th Cir. Oct. 30, 2023).
There is no reasonable expectation of privacy in an IP address which is third-party information. United States v. Milligan, 2023 U.S. Dist. LEXIS 193558 (E.D. Mich. Oct. 27, 2023).*
Plaintiff’s Bivens claim is likely doubtful, but whether Bivens applies doesn’t even have to be decided because the statute of limitations bars the claim. Foster v. Guillou, 2023 U.S. App. LEXIS 28752 (11th Cir. Oct. 30, 2023).*
The protective sweep here wasn’t justified by any current facts justifying it. The government first relied on it being a rural area, but that’s rejected because it would render most of the country a zone where protective sweeps could always occur. Other information about presence of others was months old information. United States v. Rogers, 2023 U.S. Dist. LEXIS 193192 (W.D. Ky. Oct. 27, 2023).
Plaintiff filed a Fourth Amendment case in 2016 while his state court criminal prosecution was ongoing, and this case was stayed. Once it was concluded, this was reopened. Plaintiff’s Fourth Amendment claim is barred by collateral estoppel because it was litigated to conclusion in the state case. Carter v. Kuspa, 2023 U.S. Dist. LEXIS 193071 (E.D. Wis. Oct. 27, 2023).
The car defendant was driving was parked with the rear wheels on the sidewalk and the trunk open. It wasn’t on the curtilage and the open trunk provided plain view. United States v. Beasley, 2023 U.S. Dist. LEXIS 192965 (M.D. Fla. Oct. 27, 2023).*
Defendant’s cell phone was used to arrange a robbery. A search warrant was also obtained for defendant’s backup iCloud account before the robbery even occurred, and there was no probable cause for that. Yet, the Eleventh Circuit [some would say astonishingly] sustains the iCloud search on good faith. United States v. McCall, 2023 U.S. App. LEXIS 28655 (11th Cir. Oct. 27, 2023):
It was not error to permit the state to inquire that a search warrant was used to get defendant’s DNA, as long as there was no reference to his refusal of consent. Finch v. Commonwealth, 2023 Ky. LEXIS 302 (Oct. 26, 2023).
Omission of potentially exculpatory evidence from the affidavit potentially misled the issuing magistrate. [Essentially, giving the benefit of the doubt to defendant,] The court finds the first element of Franks [arguably] satisfied. However, there is no prejudice here because there is probable cause even including it all that defendant was involved in this conspiracy. [The omission really cut both ways.] United States v. Broadbent, 2023 U.S. Dist. LEXIS 193320 (E.D. Cal. Oct. 26, 2023).*
It wasn’t just plain smell of marijuana that authorized continuing this detention because there was reasonable suspicion before that. Baxter v. State, 2023 Fla. App. LEXIS 7381 (Fla. 2d DCA Oct. 27, 2023).*
The inclusion of legal conduct in the affidavit for search warrant doesn’t make the warrant lack probable cause. There’s sufficient information otherwise. United States v. Reebel, 2023 U.S. Dist. LEXIS 192048 (N.D. Ohio Oct. 26, 2023).
Defendant is accused of shoplifting liquor, and, when confronted at the store, he said he had a gun. The outline of a gun was visible in his clothes. He fled to the house. That was nexus. United States v. Blackwell-Esters, 2023 U.S. Dist. LEXIS 192525 (E.D. Mich. Oct. 26, 2023).*
The affidavit for search warrant for child pornography on defendant’s computer was not bare bones. United States v. Delaney, 2023 U.S. App. LEXIS 28591 (2d Cir. Oct. 27, 2023).*
Plaintiff stated a claim for malicious prosecution under the Fourth Amendment. The officer omitted critical facts from the arrest affidavit that completely undermined the probable cause. No qualified immunity. Butler v. Smith, 2023 U.S. App. LEXIS 28630 (11th Cir. Oct. 27, 2023).*
Posted inNexus, Probable cause|Comments Off on N.D.Ohio: Just because legal conduct is mentioned in the SW affidavit does not mean it lacks PC otherwise shown
The state relied on inventory at trial and prevailed. On appeal it also relies on search incident. The record developed supports that, too. Cobb v. State, 2023 Ind. App. LEXIS 299 (Oct. 26, 2023). [In my state, it’s “right result, wrong reason” which flies in the face of parties being bound by their arguments below, except when it’s the state, which can get away with that.]
The affidavit for warrant showed that defendant’s house was a place of drug dealing and his pickup truck was used by others for burglaries. State v. Brown, 2023-Ohio-3906 (5th Dist. Oct. 26, 2023).*
Defendant submits that this warrant is anticipatory and the triggering condition didn’t occur. It was part anticipatory, but it showed probable cause on its own without the triggering condition. United States v. Medina-Feliz, 2023 U.S. Dist. LEXIS 192388 (S.D. Ohio Oct. 26, 2023).*
No certificate of appealability in this 2254. It was raised below as an ineffective assistance of counsel claim. Now it’s a merits claim, and it’s waived. McNabb v. Lumpkin, 2023 U.S. App. LEXIS 28579 (5th Cir. Oct. 25, 2023).*
Defendant was stopped driving a rental car four hours after the rental expired and he was not an authorized driver. He doesn’t show standing. United States v. Maiden, 2023 U.S. Dist. LEXIS 192555 (D. Minn. Sep. 5, 2023), adopted 2023 U.S. Dist. LEXIS 191510 (D. Minn. Oct. 25, 2023).
Appellant’s argument that the stop was extended without reasonable suspicion fails because this was a probation search that didn’t need it. United States v. Orey, 2023 U.S. App. LEXIS 28524 (5th Cir. Oct. 26, 2023).*
Defendant admits his stop was reasonable because his brake lights were out. “Under Whren, that the officers, including Agent Hadzewycz, subjectively were motivated to stop the van based on suspicion that driver Rivera was the supplier for an imminent narcotics transaction did not detract from the reasonableness of the traffic stop.” Ten kgs of fentanyl not suppressed based on inventory exception. United States v. Rivera, 2023 U.S. Dist. LEXIS 192444 (S.D.N.Y. Oct. 26, 2023).*
An open container violation justifies a search of the passenger compartment. United States v. Smith, 2023 U.S. Dist. LEXIS 192108 (D. Neb. Oct. 24, 2023).
The warrant affidavit’s discussion of the silver truck was a reasonable inference and not a Franks violation. United States v. Mikaele, 2023 U.S. Dist. LEXIS 191927 (D. Alaska Oct. 25, 2023).*
The case was DUI for running over and killing an 11-year-old child. The defense prevailed upon the trial court to grant a new trial because the search was without probable cause. The state appealed arguing that even if no probable cause it was all harmless error. It was harmless. State v. Robertson, 2023 Ga. App. LEXIS 519 (Oct. 26, 2023).*
Officers made a traffic stop for investigative purposes, and there was probable cause to believe defendant was involved in a murder when they stop occurred. Bishop v. State, 2023 Ark. 150, 2023 Ark. LEXIS 202 (Oct. 26, 2023).*
"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.
